HomeMy WebLinkAbout00 027 EN Agreement - McLean
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TIlE CORPORATION OF TIlE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2000 - 27
BEING A BY-LAW TO PERMIT AN ENCROACHMENT ONTO
THE ORIGINAL SHORE ROAD ALLOWANCE IN FRONT OF
PART LOT 40, CONCESSION A, MUNICIPALITY OF KINCARDINE
(FORMER TOWNSHIP OF KINCARDINE)
WHEREAS pursuant to Section 210 P.107 of the Municipal Act, R.S.O. 1990, c.M. 45,
the Council of a municipality may pass by-laws authorizing the encroachment of
buildings or structures upon any highway subject to such tenns and conditions and
may fix annual fees or charges for such privilege.
NOW THEREFORE the Corporation of the Municipality of Kincardine ENACTS as
follows:
1. The owners from time to time of the improvements described in the
encroachment agreement attached as Schedule A to the by-law, hereinafter
called the "improvements" on the lands described as Part Lot 40, Concession
A, (fonner Township of Kincardine) in the Municipality of Kincardine are hereby
allowed to maintain and use the portion of the improvements as they encroach
upon the Original Shore Road Allowance.
2. The encroachment with respect to the portion of the improvements hereby
authorized, is approximately 6 metres the Original Shore Road Allowance and
shall be subject to the tenns and conditions of the encroachment agreement
attached to this by-law.
3.
That the mayor and clerk be authorized to sign, on behalf of The Corporation of
the Municipality of Kincardine, the agreement with David Malcolm Ian McLean
which is attached to this by-law as Schedule "A" and to affix the Municipality's
Corporate seal as and when required.
4. This by-law affects the lands described as Schedule "A" in the said
encroachment agreement attached to this by-law.
5. This by-law may be cited as the "McLean Encroachment Agreement By-law".
READ a FIRST, SECOND and THIRD time and DEEMED TO BE PASSED this 23rd
day of February, 2000.
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ENCROACHMENT AGREEMENT
THIS AGREEMENT made this 23rd day of February 2000
. BETWEEN:
DAVID MALCOLM IAN McLEAN
.1.
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(the "Licensee")
-and-
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality")
The Licensee owns Part Lot 40, concession "A" (formerly the Township of Kincardine)
situated in the Municipality of Kincardine, and more particularly described in Schedule
"A", which abuts the public road allowance known as the Original Shore Road Allowance.
2.
The Municipality owns the public road allowance known as the Original Shore Road
Allowance, referred to as the "Road".
3.
A one storey frame cottage and wooden deck owned or controlled by the Licensee,
encroaches upon the Road a distance of approximately 6 metres, more particularly
shown on the reference plan attached as Schedule "B" and referred to as the
"Encroachment" .
4.
Through the passage of By-Law #2000- ..:n.. of the Municipality of Kincardine dated
Feb 23, 2009, Council authorized the execution of an encroachment agreement on
certain terms.
5.
The Municipality agrees to pennit the Encroachment to continue upon the Road on
certain terms and conditions as set out.
IN CONSIDERATION of other good and valuable consideration and the sum of $2.00 of lawful
money of Canada now paid by the Licensee to the Municipality (the receipt whereof is hereby
acknowledged) the Municipality grants, subject to the provisions set forth, to the Licensee, a
Licence to permit the Encroachment upon the lands of the Municipality, subject to the following
provisions:
1. The term of this Licence shall expire on the earlier of:
(i) Five (5) years from the date of registration of this agreement, provided that, at the
expiry of the term and at the Licensee's request, Council of the Municipality may,
at its discretion, extend the term for such period of time and on such terms and
conditions as it deems advisable;
(ii) The date of removal of the Encroachment; or
(Hi) The date of the sale or transfer of the lands described in Schedule "A", unless the
Municipality at the request of the purchaser or transferee of the lands, approved
an extension and assignment of this agreement and the purchaser or transferee
has executed and registered the extension and assignment agreement prepared
by the Municipality.
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2.
McLean Encroachment Agreement
Page 2 of 4
In the event of the Municipality at any time enacting a by-law levying a tax upon all
encroachments of buildings or other structures over, under or upon any highway, street,
lane, road allowance or easement in the Municipality, the Licensee shall pay forthwith on
demand whatever tax may be levied in respect of the Encroachment over, under or upon
the public highway.
3. The Licensee shall at its own cost, charge and expense and to the satisfaction of the
Municipality:
(i) Keep and maintain the Encroachment in a good and proper state of repair and
safety;
(ii) Make no additions or modifications to the Encroachment which are not authorized
or contemplated by this agreement; and
(iii) Comply with such further and additional requirements, as may be required by the
Municipality, acting reasonably.
4.
The Licensee shall at all times fully indemnify and save harmless the Municipality against
all actions, suits, claims and demands whatsoever which may be brought against or
made upon the Municipality and from and against all loss, costs, damages, charges and
expenses whatsoever which may be incurred, sustained or paid by the Municipality for or
by reason of or on account of the permission hereby granted to the Licensee or the
exercise by the Licensee of such permission or the erection and maintenance of the
Encroachment and appurtenances thereto or anything in any matter relating thereto, and
the Licensee hereby grants to the Municipality full power and authority to settle any such
actions, suits, claims or demands on such terms as the Municipality may deem advisable
and the Licensee hereby covenants and agrees with the Municipality to forthwith pay to
the Municipality on demand all moneys paid by the Municipality in pursuance of any such
settlement and also such sum as shall represent the reasonable costs of the Municipality
or its solicitors in defending or settling any such actions, suits, claims or demands, based
on a solicitor and own client basis.
5.
The Licensee covenants and agrees to provide the Municipality with a certificate of
general liability insurance, on or before execution of this agreement. covering the
Licensee and the Municipality in respect of the lands subject to the Encroachment during
the term of this agreement and any extensions authorized by the Council of the
Municipality to the extent of not less than $1,000,000.00 inclusive of all injuries or death
to person and damage to property of others arising from anyone occurrence. The
Municipality is to be an added insured under the insurance policy. Without limiting the
generality of the foregoing, such public liability insurance shall contain provisions 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 days after written notice of such change or
cancellation shall have been given to the Municipality.
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 own cost, charge and expense,
and to the satisfaction of the Municipality, alter or remove the Encroachment or any part
thereof from the Road, and restore the affected area upon receiving notice in writing from
the Municipality to do, without being entitled to any compensation whatsoever for such
alteration or removal and restoration. If the Licensee neglects, refuses or fails so to do
within 90 days of receiving the aforesaid notice to alter or remove, then the Municipality
may alter the Encroachment or parts thereof from the Road, as determined by the
Municipality at the cost, charge and expense of the Licensee and the certificate of the
Municipality as to 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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7.
McLean Encroachment Agreement
Page 3 of 4
Nothing contained herein shall be construed as giving to the Licensee anything more
than permission to erect and maintain the Encroachment until such time as this
agreement expires or is terminated or the removal of such Encroachment may be
required as provided.
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8.
The parties acknowledge and agree· that no length of time of, or enjoyment by the
Licensee of the permission granted herein shall enure to, or give any right, title or interest
to the Licensee or its successors in title, in the Road or any right to maintain the
proposed Encroachment over, under or upon the Road, or shall deprive the Municipality
by the operation of any limitation period or otherwise of any right to require the removal
of the Encroachment or any restoration of the Road to 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 of replacement, and in any event, upon the
expiry or termination of this agreement, that the works formerly comprising such
Encroachment shall be removed, at the Licensee's sole expense, so that they are
located entirely off the Road and at such time, this agreement shall become null and void
and be of no further effect.
The Licensee covenants and agrees that the Municipality, and its respective officers,
servants, workers, employees, agents and contractors under its control or supervision or
any of them shall have the right from time to time and at all reasonable times during the
currency of this agreement, to enter in and upon the lands described in Schedule "A" or
any part thereof, with all necessary workers, plant, equipment and material for the
purpose of inspecting, altering or removing the Encroachment from the Road in
accordance with this agreement. Such inspection shall not free or relieve the Licensee 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.
The parties acknowledge and agree that this Licence does not in any way whatsoever
diminish the rights of the Municipality, or any gas, telephone, telegraph, electric light or
other public utility company, their respective officers, servants, workers, employees,
agents and contractors, to enter at all times upon the Road for the purpose of
constructing, repairing, maintaining, replacing or removing any sewers, mains, culverts,
drains, water pipes, poles, wires or otherwise underground services and 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 expense shall carry out such
alteration or removal of the Encroachment as the Municipality may direct pursuant to the
exercise of the Municipality's or utility company's rights.
12. The Licensee agrees that any and all costs, sums and expenses paid, incurred or
sustained by the Municipality as herein provided shall form and constitute a charge or
lien on the lands set out in Schedule "A" attached hereto, until fully paid.
13. The Licensee covenants and agrees not to assign or to transfer this agreement to any
successor or assignee of the premises described in Schedule "A" without the consent of
the Municipality and if such assignment is' agreed the Licensee will obtain from such
successor or assignee a covenant in favour of the Municipality that the successor or
assignee will be bound by all of the tenns 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 time of the lands and premises described in Schedule "A" shall have the benefit
of and be liable for performance of the obligations contained in this agreement.
14.
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The Licensee agrees that for the purpose of this agreement, notice may be given to the
Licensee by mailing the same, by prepaid registered mail, addressed to the Licensee at
its address as last known to the Municipality pursuant to the most recent revised
assessment rolls. Such notice shall be deemed to have been received by the Licensee 7
days following the date when it was handed to the post office,
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15.
McLean Encroachment Agreement
Page 4 of 4
The Licensee agrees to pay to the Municipality prior to the execution of this agreement,
the sum of $250.00, being administration fees to the Municipality to defray the cost of
preparing, registering and administering this agreement, and shall further pay to the
Municipality an annual fee of $ 100.00 during each year of the term of this agreement.
The first such annual payment to be made at the time this agreement is executed by the
Licensee and the subsequent payments to be made annually on each day which is the
anniversary date of the registration of this agreement.
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16. The Licensee consents to the registration of this agreement against the title to the lands
described in Schedule "AU attached hereto.
17. The Licensee shall, at all times during the life of this license agreement, be subject to all
laws, by-laws and regulations now or hereinafter enacted, to all statutes, orders and rules
made or to be made by a lawfully constituted authority having jurisdiction therein.
18. This agreement and everything herein contained shall run with the lands described in
Schedule "A" and enure to the benefit of and be binding upon the parties, their heirs,
executors, administrators, successors and assigns.
19. This agreement shall be read with all changes of gender or number required by the
co ntext.
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IN WITNESS WHEREOF the parties have set their hands and corporate seals attested by the
hands of their respective officers duly authorized in that behalf.
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THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
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SCHEDULE "A"
TO
ENCROACHMENT AGREEMENT
BETWEEN
THE MUNICIPALITY OF KINCARDINE
AND
DAVID MALCOLM IAN McLEAN
LEGAL DESCRIPTION OF THE PROPERTY:
Part Lot 40, Concession "A", Township of Kincardine (now Municipality of
Kincardine), County of Bruce, and being more particularly described as follows:
PREMISING that the astronomic bearing of the northerly limit of the said Lot 40 is
North 60 degrees, 31 minutes West and referring all bearings herein thereto.
COMMENCING at a point within said Lot which may be located thus;
Beginning at the northwesterly angle of the said Lot 40;
THENCE South 60 degrees, 31 minutes East along the Northerly limit of said Lot
a distance of 58.50 feet to an iron survey bar;
THENCE South 24 degrees, 32 minutes, 30 seconds West a distance of 109.68
feet to the Point of Commencement;
THENCE South 24 degrees, 32 minutes, 30 seconds West a distance of 87.98
feet,
THENCE North 65 degrees, 27 minutes, 30 seconds West a distance of 39.50
feet to the Westerly limit of said Lot;
THENCE Northerty along said Westerty limit a distance of 88 feet, more or less,
to its intersection with a line drawn on a bearing of North 67 degrees, 42 minutes,
30 seconds West from the Point of Commencement;
THENCE South 67 degrees, 42 minutes, 30 seconds East a distance of 50.97
feet, more or less, to the Point of Commencement.
As previously described in Instrument No. 248157.
TOGETHER WITH A RIGHT OF WAY in common with all those now and
hereafter entitled thereto, over, along and upon a strip of land 66 feet in
perpendicular width and being designated Parts 1, 2, 6 & 7 on Reference Plan
3R-6495.
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SCHEDULE "B"
TO
ENCROACHMENT AGREEMENT FOR MCLEAN
PART LOT 40, CONCESSION "A"
MUNICIPALITY OF KINCARDINE
(FORMER TOWNSHIP OF KINCARDINE)
N.W. ANGL.E PART 7
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SCHEDULE "B"
THIS IS SCHEDULE "B" TO McLEAN
ENCROACHMENT AGREEMENT PASS THIS
23rd DAY OF Februa"y ,2 00
MAYOR
CLERK
DAVID MALCOLM IAN McLEAN