HomeMy WebLinkAbout00 119 EN - Agreement Scott
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TIlE CORPORATION OF TIlE MUNICIPALITY OF KINCARDINE
NO. 2000 -119
BEING A BY-LAW TO PERMIT AN ENCROACHMENT ONTO THE ROAD
ALLOWANCE WEST OF PART LOT 41, LAKE RANGE, KNOWN AS 33 SCOTTS
POINT, (FORMER TWP OF BRUCE),
MUNICIPALITY 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 terms 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 41, Lake Range,
(former Township of Bruce) in the Municipality of Kincardine are hereby allowed
to maintain and use the portion of the improvements as they encroach upon the
Road Allowance.
2. The encroachment with respect to the portion of the improvements hereby
authorized, encroaches upon the Road Allowance. The cottage is entirely on
the road allowance, more particularly shown on the sketch attached as
Schedule "B" and referred to as the "Encroachment".
3.
That the Mayor and Clerk be authorized to sign, on behalf of The Corporation of
the Municipality of Kincardine, the agreement with Gordon D. Scott which is
attached to this by-law as Schedule "AD and to affix the Municipality's Corporate
seal as and when required.
4. This by-law affects the lands described as Schedule "AD in the said
encroachment agreement attached to this by-law.
5. This by-law may be cited as the "Scott Encroachment Agreement By-law".
READ a FIRST, SECOND and THIRD time and DEEMED TO BE PASSED this
111h day of October, 2000.
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Mayor
Scott Encroachment Agreement By-Law
By-Law 2000-119
SCHEDULE 'A'
"THE PROPERTY KNOWN AS PART OF THE ORIGINAL SHORE ROAD
ALLOWANCE IN THE MUNICIPALITY OF KINCARDINE (FORMER TOWNSHIP OF
BRUCE) AND FRONT OF LOT 41, ON THE LAKE RANGE AND AN AREA KNOWN
AS SCOTTS POINT AND LIMITED TO THE AREA COVERED BY THE LICENSEES
SEASONAL DWELLING HOUSE, OUT BUILDINGS AND SERVICES
APPURTENANT THERETO WHICH WERE IN EXISTENCE ON THE 1ST DAY OF
JUNE 1978, AND IN THE AREA MARKED IN RED ON THE ATTACHED PLAN.
PROVIDED THAT ACCESS TO THE SHORES OF LAKE HURON FOR
PEDESTRIAN USE SHALL NOT BE HINDERED IN ANY WAY."
THIS PROPERTY IDENTIFIED BY THE REGIONAL ASSESSMENT OFFICE AS
ROLL #4108 260 005 11500.
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ENCROACHMENT AGREEMENT
THIS AGREEMENT made this 11-11.. day of &'¡'o her 2000
BETWEEN:
GORDON D. SCOTT
(the "Licensee")
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THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality")
1.
The Licensee owns a cottage on the road allowance west of Part Lot 41, Lake
Range, former Township of Bruce, situated in the Municipality, and more
particularly described in Schedule "A", which abuts the public road allowance
known as Concession 8.
2. The Municipality owns the public highway known as Concession 8, referred to
as the "Road".
3. A framed cottage and other minor improvements as noted on Schedule "B"
owned or controlled by the Licensee, encroaches upon the Road Allowance.
The cottage is entirely on the road allowance, more particularlÿ shown on the
sketch attached as Schedule "B" and referred to as the "Encroachment".
4. The Municipality agrees to permit 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 be for the 5-year period from January 1, 2000 to
December 31,2004 and shall expire on the earlier of:
(i) December 31, 2004, 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
(iii) 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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Scott 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.
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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Scott 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 th~ 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.
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10. 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.
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11. 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 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 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.
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Scott Encroachment Agreement
Page 4 of 4
14. 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.
15. The Licensee agrees to 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 billed annually to the owners on the municipal tax
bill.
16. The Licensee consents to the registration of this agreement against the title to
the lands described in Schedule "A" 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 context.
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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Date
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~ordon D. Scott
Witness
Date
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
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Gord Thompson Mayor
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Per: I " r --'V-C'-. 01 I l~..t
Rosaline Graham - ·Clerk
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SCHEDULE "A"
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"THE PROPERTY KNOWN AS PART OF THE ORIGINAL
SHORE ROAD ALLOWANCE IN THE MUNICIPALITY OF
KINCARDINE (FORMER TOWNSHIP OF BRUCE) AND
FRONT OF LOT 41, ON THE LAKE RANGE AND AN AREA
KNOWN AS SCOTTS POINT AND LIMITED TO THE AREA
COVERED BY THE LICENSEES SEASONAL DWELLING
HOUSE, OUT BUILDINGS AND SERVICES
APPURTENANT THERETO WHICH WERE IN EXISTENCE
ON THE 1sT DAY OF JUNE, 1978 AND IN THE AREA
MARKED IN RED ON THE ATTACHED PLAN. PROVIDED
THAT ACCESS TO THE SHORES OF LAKE HURON FOR
PEDESTRIAN USE SHALL NOT BE HINDERED IN ANY
WAY."
THIS PROPERTY IDENTIFIED BY THE REGIONAL
ASSESSMENT OFFICE AS ROLL #4108 260 005 11500. .
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SCHEDULE "B"
r PART LOT 41, LAKE RANGE
P
:s FORMER TOWNSHIP OF BRUCE
Q. MUNICIPALITY OF KINCARDINE
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