HomeMy WebLinkAbout05 094 EN Agree Barker
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THE CORPORATION OF THE MUNICIPALITY OF KINCA~INE
II.
BY-LAW
NO. 2005 . 094
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BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN AclREEMENT TO
PERMIT AN ENCROACHMENT ONTO MUNICIPAL PRPPERTY
(69 McFarlan Road) i
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WHEREAS Section 9 (3) of The Municipal Act, 2001, 5.0. 12001, c. 25, as
amended, authorizes municipalities to pass by-laws respect~g matters and
imposing conditions as a requirement for obtaining permits; !
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AND WHEREAS the Corporation of the Municipality of Kin~rdine has been
requested to enter into an agreement to allow encroachme~ts on municipal
property. . .
NOW THEREFORE the Corporation of the Municipality of Kinqardine ENACTS
as follows: .
The Licensee owns a cottage on the road allowance west of Part Lot 33,
Lake Range, (former Township of Bruce) in the Municipal" of Kincardine,
known municipally as 69 McFar1an Road. The owner is h reby allowed to
maintain and use the portion of the encroachment upon unicipal property
subject to the Encroachment Agreement attached to this y-Iaw.
The encroachment is almost entirely on municipal propJrty and shall be
subject to the terms and conditions of the encroachrjnent agreement
attached to this by-law. i
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3. That the Mayor and CAO be authorized to sign, o~ behalf of The
Municipality of Kincardine the Encroachment Agreem+nt with Andrea
Baker. .
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4. This by-law may be cited as the "Baker Encroachmen~ Agreement (69
McFar1an Road) By-Iaw".· ,
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READ a FIRST, SECOND and THIRD time and DEEMED TO $E PASSED this
6th day of July, 2005. '
}(LQ.ø;f.A
Mayor'
ENCROACHMENT~REEM
THIS AGREEMENT made this~ day of
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BETWEEN:
ANDREA BAKER
(the "Licensee")
-and-
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
the "Municipality")
1 . The Licensee owns a cottage on the road allowance west 0 Part Lot 33, Lake
Range, known municipally as 69 McFarlan Road, (former T wnship of Bruce)
Roll No. 26-5-031 in the Municipality of Kincardine.
2. The Municipality owns the public highway known as McFarla Road, referred to
as the "Road".
3. A framed cottage, boat house and other minor improvem nts as noted on
Schedule "A" owned or controlled by the Licensee, encroach s upon the Road.
The cottage is almost entirely on the road allowance, more particularly shown
on the sketch attached as Schedule "A" and referred to as t encroachment.
4. The Municipality agrees to permit the Encroachment to conti ue upon the Road
on certain terms and conditions as set out.
IN CONSIDERATION of other good and valuable considerati n and the sum of
$2.00 of lawful money of Canada now paid by the Licensee to th Municipality (the
receipt whereof is hereby acknowledged) the Municipality gran s, subject to the
provisions set forth, to the Licensee, a Licence to permit the Encro chment upon the
lands of the Municipality, subject to the following provisions:
1. The term of this Licence shall expire on the ear1ier of:
(i) Five (5) years from the date of passage ofthis agree ent, provided that,
at the expiry of the term and at the Licensee's requ st, Council of the
Municipality may, at its discretion, extend the term for uch period of time
and on such terms and conditions as it deems advisab
(ii) The date of removal of the Encroachment; or
(iii) The date of the sale or transfer of the lands describ in paragraph 1
unless the Municipality at the request of the purcha r or transferee of
the lands, approved an extension and assignment of t is agreement and
the purchaser or transferee has executed the extensi n and assignment
agreement prepared by the Municipality.
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Baker Encroachment Agreement
2. In the event of the Municipality at any time enacting a by-Ia levying a tax upon
all encroachments of buildings or other structures over, under or upon any
highway, street, lane, road allowance or easement in t e Municipality, the
Licensee shall pay forthwith on demand whatever tax may be levied in respect
of the Encroachment upon the municipal property.
3. The Licensee shall at its own cost, charge and expense a to the satisfaction
of the Municipality:
(i)
Keep and maintain the Encroachment in a good nd proper state of
repair and safety;
Make no additions or modifications to the Encroach~ent which are not
authorized or contemplated by this agreement; and I
Comply with such further and additional reqUirerents, as may be
required by the Municipality, acting reasonably. I
(ii)
(iii)
4. The Licensee shall at all times fully indemnify and ave harmless the
Municipality against all actions, suits, claims and demand whatsoever which
may be brought against or made upon the Municipality and rom and against all
loss, costs, damages, charges and expenses whatsoe er which may be
incurred, sustained or paid by the Municipality for or by rea n of or on account
of the permission hereby granted to the Licensee or t e exercise by the
Licensee of such permission or the erection and intenance of the
Encroachment and appurtenances thereto or anything in any matter relating
thereto, and the Licensee hereby grants to the Municip lity full power and
authority to settle any such actions, suits, claims or deman s on such terms as
the Municipality may deem advisable and the Licensee he eby covenants and
agrees with the Municipality to forthwith pay to the Munici ality on demand all
moneys paid by the Municipality in pursuance of any such ettlement and also
such sum as shall represent the reasonable costs of th Municipality or its
solicitors in defending or settling any such actions, suits, laims or demands,
based on a solicitor and own client basis.
5. The Licensee covenants and agrees to provide the unicipality with a
certificate of general liability insurance, on or before execution of this
agreement, covering the Licensee and the Municipality in spect of the lands
subject to the Encroachment during the term of this reement and any
extensions authorized by the Council of the Municipality to e extent of not less
than $1,000,000.00 inclusive of all injuries or death to pe on and damage to
property of others arising from anyone occurrence. The M icipality is to be an
added insured under the insurance policy. Without limiting he generality of the
foregoing, such public liability insurance shall contain p visions for cross-
liability and severability of interests and further that the policy will not be
changed or amended in any way or cancelled until 90 day after written notice
of such change or cancellation shall have been given to the unicipality.
6. Where, in the opinion of the Municipality, it is necessary to remove or alter the
Encroachment or part thereof, the Licensee shall, at its 0 n cost, charge and
expense, and to the satisfaction of the Municipality, al er or remove the
Encroachment or any part thereof from the municipal prop rty' and restore the
affected area upon receiving notice in writing from the Municipality to do,
without being entitled to any compensation whatsoever fo such alteration or
removal and restoration. If the Licensee neglects, refu s or fails so to do
within 90 days of receiving the aforesaid notice to alter r remove, then the
Municipality may alter the Encroachment or parts thereof from the municipal
property, as determined by the Municipality at the cost, cha e and expense of
the Licensee and the certificate of the Municipality as t the cost of such
alteration or removal and restoration shall be final and binding upon the
Licensee and the Municipality may recover such costs from the Licensee in like
manner as taxes.
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Baker Encroachment Agreement
7. Nothing contained herein shall be construed as giving to th Licensee anything
more than permission to erect and maintain the Encroach ent until such time
as this agreement expires or is terminated or the removal of such
Encroachment may be required as provided.
8. The parties acknowledge and agree that no length of time f, or enjoyment by
the Licensee of the permission granted herein shall enure ,or give any right,
title or interest to the Licensee or its successors in titl , of the municipal
property or any right to maintain the proposed Encro chment upon the
municipal property, or shall deprive the Municipality by t e operation of any
limitation period or otherwise of any right to require e removal of the
Encroachment or any restoration of the municipal property 0 the satisfaction of
the Municipality at the Licensee's expense.
9. The Licensee hereby covenants and agrees that at the time that the
Encroachment is removed in whole or in part, or is in need f replacement, and
in any event, upon the expiry or termination of this agree ent, that the works
former1y comprising such Encroachment shall be remove , at the Licensee's
sole expense, so that they are located entirely off the muni ipal property and at
such time, this agreement shall become null and void a d be of no further
effect.
10. The Licensee covenants and agrees that the Municipality and its respective
officers, servants, workers, employees, agents and contract rs under its control
or supervision or any of them shall have the right from ti e to time and at all
reasonable times during the currency of this agreement, t enter in and upon
the lands described in paragraph 1 or any part thereof, with all necessary
workers, plant, equipment and material for the purpose of in pecting, altering or
removing the Encroachment from the municipal property in ccordance with this
agreement. Such inspection shall not free or relieve the L censee in any way
whatsoever from the liability under the covenant set out to keep and maintain
the Encroachment in good and proper repair and condition.
11. The parties acknowledge and agree that this Licence d s not in any way
whatsoever diminish the rights of the Municipality, or a y gas, telephone,
telegraph, electric light or other public utility company, thei respective officers,
servants, workers, employees, agents and contractors, t enter at all times
upon the municipal property for the purpose of con tructing, repairing,
maintaining, replacing or removing any sewers, mains, cu erts, drains, water
pipes, poles, wires or otherwise underground services a d installations and
appurtenances thereto. The Licensee shall not be entitled to any damages or
compensation by reason of the exercise of the Municipality or utility company's
rights contained in this clause and the Licensee at its own xpense shall carry
out such alteration or removal of the Encroachment as t e Municipality may
direct pursuant to the exercise of the Municipality's or utility mpany's rights.
12. The Licensee agrees that any and all costs, sums and exp nses paid, incurred
or sustained by the Municipality as herein provided shall fo and constitute a
charge or lien on the lands set out in paragraph 1, until fully aid.
13. The Licensee covenants and agrees not to assign or to tra fer this agreement
to any successor or assignee of the premises described in aragraph 1 without
the consent of the Municipality and if such assignment is a reed the Licensee
will obtain from such successor or assignee a covena t in favour of the
Municipality that the successor or assignee will be bound by all of the terms and
conditions of this agreement from and after the date of its assignment as
aforesaid, it being the intention that the owner from time to ti e of the lands and
premises described in paragraph 1 shall have the benefit f and be liable for
performance of the obligations contained in this agreement.
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Baker Encroachment Agreement
14. The Licensee agrees that for the purpose of this agree ent, notice may be
given to the Licensee by mailing the same, by pre id registered mail,
addressed to the Licensee at its address as last known to the Municipality
pursuant to the most recent revised assessment rolls. ch notice shall be
deemed to have been received by the Licensee 7 days foil ing the date when
it was handed to the post office.
15. The Licensee agrees to pay to the Municipality $100.00 for the first year ofthis
agreement. The annual payment for the following years for the term of the
agreement is subject to increase in 2006 and subsequent ears. The payment
is to be made on the property tax bill.
16. The Licensee shall, at all times during the life of this lic nse agreement, be
subject to all laws, by-laws and regulations now or herein' fter enacted, to all
statutes, orders and rules made or to be made by a lawfully constituted
authority having jurisdiction therein.
17.
This agreement and everything herein contained shall
described in paragraph 1 and inure to the benefit of and
parties, their heirs, executors, administrators, successors a
un with the lands
e binding upon the
assigns.
18. This agreement shall be read with all changes of gender or number required by
the context.
IN WITNESS WHEREOF the parties have set their hands and co rate seals attested
by the hands oftheir respective officers duly authorized in that beh If.
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Date
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDIN
Per:
Mayor
Per'
CAO
SCHEDULE ',11 I
PART LOT 33, LAKE RANGE
69 MCFARLAN ROAD
FORMER TOWNSHIP OF BRUCE
MUNICIPALITY OF KINCARD
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