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THE CORPORATION OF THE MUNICIPALITY OF KINC INE
BY-LAW
NO. 2002 - 67
BEING A BY-LAW TO PERMIT AN ENCROACHMEN ONTO
MUNICIPAL PROPERTY
WHEREAS pursuant to Section 210 P.107 of the Municipal Act, R. .0. 1990, c.M. 45,
the Council of a municipality may pass by-laws authorizing th encroachment of
buildings or structures upon municipal property subject to such te s and conditions
and may fix annual fees or charges for such privilege.
AND WHEREAS the Corporation of the Municipality of Kincardine as been requested
to enter into an agreement to allow encroachments on municipal p perty.
NOW THEREFORE the Corporation of the Municipality of Kin rdine ENACTS as
follows:
1. The owner of Part Lot 40, Concession A, (former Township Kincardine) in the
Municipality of Kincardine, known municipally as 6 Redmond Drive, are hereby
allowed to maintain and use the portion of the encroachment upon municipal
property subject to the Encroachment Agreement attached t this by-law.
2. The encroachment is approximately 22 feet on the municipa property and shall
be subject to the terms and conditions of the encroa hment agreement
attached to this by-law.
That the mayor and clerk be authorized to sign, on behalf of The Corporation of
the Municipality of Kincardine the Encroachment Agreem nt David Malcolm
McLean and to affix the Municipality's Corporate seal as and when required.
3.
4. This by-law may be cited as the "McLean Encroachment Agr ement By-law".
READ a FIRST, SECOND and THIRD time and DEEMED TO BE PASSED
22nd day of May, 2002.
Clerk
ENCROACHMENT AGREEMENT
THIS AGREEMENT made this /JfI.day of Jláy¡2002
. BElWEEN:
DAVID MALCOLM McLEAN
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(the "Licensee")
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THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(the "Municipality")
1.
The Licensee owns Part Lot 40, Concession A, known municipally as 6
Redmond Drive (former Township of Kincardine) situated in the Municipality of
Kincardine, and more particularty described in Schedule "A" attached.
2. The Municipality owns the road known as the Original Shore Road Allowance.
3. A one storey frame cottage and a deck owned or controlled by the Licensee,
encroach upon the municipal property approximately 22 feet and is more or less
as shown on the sketch attached as Schedule "B" and referred to as the
encroachment.
~,_._ The Mljnicipality agrees· to permit Jhe Enc[!)achment to. continue upon the
municipal property 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:
The term of this Licence shall expire on the earlier of:
(i) Five (5) years from the date of passage 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
(iii) The date of the sale or transfer of the lands described in Schedule "An,
unless the Municipality at the request of the purchaser or transferee of
the lands, approved an extension and assignment of this agreement and
thé purchaser or tnIflMeree has executed the extension and assignment
agreement prepared by the Municipality.
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McLean Encroachment Agreement
2.
In the event of the Municipality at any time enacting a by-taw levying a tax upon
allencrqéichments 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 upon the municipal property.
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.
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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 municipal property, 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 municipal
property, 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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McLean Encroachment Agreement
7. Nothing contained herein shall be construed as giving to the Licensee anything
more thiW permission to erect and maintain tQe Encroachment 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 of, or enjoyment by
the Licensee of the permission granted herein shall ensure to, or give any right,
title or interest to the Licensee or its successors in title, of the municipal
property or any right to maintain the proposed Encroachment upon the
municipal property, 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 municipal property 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 municipal property and at
such time, this agreement shall become null and void and be of no further
effect.
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 municipal property 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.
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 municipal property 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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McLean Encroachment Agreement
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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,
The Licensee agrees to pay to the Municipality prior to the execution of this
agreement, the sum of $100.00, being administration fees to the Municipality to
defray the cost of preparing and administering this agreement, and shall further
pay to the Municipality an annual fee of $100.00 during each calendar year of
the term of this agreement. The payments are to be made annually on the
property tax bills. .
15.
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16. 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.
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17, This agreement and everything herein contained shall run with the lands
described in Schedule "A" and inure to the benefit of and be binding upon the
parties, their heirs, executors, administrators, successors and 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 corporate seals attested
by the hands of their respective officers duly authorized in that behalf.
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THE CORPORATION OF THE
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McLean Encroachment Agreement
SCHEDULE 'A'
ALL AND SINGULAR that certain parcel or tract of land and premises, situate,
lying and being in the Municipality of Kincardine (former Township of Kincardine), in
the County of Bruce, and Province of Ontario, and being composed of Part Lot 40,
Concession A, (former Townlhipbf Ki~ine) registered in the Land Registry Office,
Bruce No.3, Land Titles Division of Bruce at Walkerton, Ontario.
Instrument Number 248157
Being the whole of the said Parcel.
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SCHEDULE "8"
TO
ENCROACHMENT AGREEMENT FOR MCLEAN
PART LOT 40. CONCESSION "A"
MUNICIPALITY OF KINCARDINE
(FORMER TOWNSHIP OF KINCARDINE)
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THIS IS SCHI:DULE "8- TO McLEAN ENCROACHMENT AGREEMENT PASSED THIS
DAY OF .2002
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