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HomeMy WebLinkAbout99 142 EN - Luft Agreement NO. 1999 -142 BEING A BY-LAW TO PERMIT AN ENCROACHMENT ONTO THE SHORE ROAD ALLOWANCE IN FRONT OF Lot 11, PLAN 789, CONCESSION A, PT LOT 19 (FORMER TWP OF KINCARDINE), TOWNSHIP OF KINCARDINE-BRUCE-TIVERTON WHEREAS pursuant to Section 210 P.1 07 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 Township of Kincardine-Bruce-Tiverton 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 Lot 11, Plan 789, Concession A, pt Lot 19 (former Township of Kincardine) in the Township of Kincardine-Bruce-Tiverton are hereby allowed to maintain and use the portion of the improvements as they encroach upon the Shore Road Allowance. 2. The encroachment with respect to the portion of the improvements hereby authorized, is not more than 20 metres the Shore Road Allowance and shall be subject to the terms 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 Township of Kincardine-Bruce-Tiverton, the agreement with Kelly Ann Luft and Karen Elizabeth Luft 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 "Luft Encroachment Agreement By-law". READ a FIRST, SECOND and THIRD time and FINALLY PASSED this 1 oth day of November, 1999. Mayor Clerk . ~ ~ . . . . 'f .~ ENCROACHMENT AGREEMENT THIS AGREEMENT made this 10th day of November 1999 BETWEEN: KELLY ANN LUFT KAREN ELIZABETH LUFT (the "Licensee") -and- THE CORPORATION OF THE TOWNSHIP OF KINCARDINE-BRUCE-TIVERTON (the "Township") 1. The Licensee owns Lot 11, Plan 789, Concession A, Pt Lot 19 (formerly Township of Kincardine), Township of Kincardine-Bruce-Tiverton, known municipally as 35 Lower Beach Road, Kincardine-Bruce-Tiverton, situate in the Township, and more particularly described in Schedule "A", which abuts the public road allowance known as the Shore Road Allowance. 2. The Township owns but does not maintain this road allowance known as the Shore Road Allowance, referred to as the "Road". 3. A wooden deck with concrete footing, a 60 foot rail fence, fence posts, a stone patio, a patio stone sidewalk, a stone retaining wall, and a 4 inch buried drainage tile, owned or controlled by the Licensee, encroaches upon the Road a distance of approximately 20 metres, more particularly shown on the sketch attached as Schedule "B" and referred to as the "Encroachment". 4. Through the passage of By-Law #99- 142 of the Township of Kincardine-Bruce- Tiverton dated Nov 10. 99 , Council authorized the execution of an encroachment agreement on certain terms. 5. The Township 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 Township (the receipt whereof is hereby acknowledged) the Township grants, subject to the provisions set forth, to the Licensee, a Licence to permit the Encroachment upon the lands of the Township, 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 Township 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 ...2 5 .' " . . " (iii) . Luft Encroachment Agreement Page 2 of 4 The date of the sale or transfer of the lands described in Schedule "A", unless the Township 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 Township. 2. In the event of the Township 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 Township, 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 Township: (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 . (Hi) Comply with such further and additional requirements, as may be required by the Township, acting reasonably. 4. The Licensee shall at all times fully indemnify and save harmless the Township against all actions, suits, claims and demands whatsoever which may be brought against or made upon the Township and from and against all loss, costs, damages, charges and expenses whatsoever which may be incurred, sustained or paid by the Township 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 Township full power and authority to settle any such actions, suits, claims or demands on such terms as the Township may deem advisable and the Licensee hereby covenants and agrees with the Township to forthwith pay to the Township on demand all moneys paid by the Township in pursuance of any such settlement and also such sum as shall represent the reasonable costs of the Township 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 Township with a certificate of general liability insurance, on or before execution of this agreement. covering the Licensee and the Township in respect of the lands subject to the Encroachment during the term of this agreement and any extensions authorized by the Council of the Township 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 Township 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 wa~ or cancelled until 90 days after written notice of such change or cancellation shall ha"è been given to the Township. 6. Where, in the opinion of the Township, 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 Township, alter or remove the Encroachment or any part thereof from the Road, and restore the affected area upon receiving notice . in writing from the Township 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 . .. 3 ..-.,,<~ ··.t ; . . . lP Luft Encroachment Agreement Page 3 of 4 aforesaid notice to alter or remove, then the Township may alter the Encroachment or parts thereof from the Road, as determined by the Township at the cost, charge and expense of the Licensee and the certificate of the Township as to the cost of such alteration or removal and restoration shall be final and binding upon the Licensee and the Township may recover such costs from the Licensee in like manner as taxes. 7. 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. 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 Township 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 Township 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. 10. The Licensee covenants and agrees that the Township, 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. 11. The parties acknowledge and agree that this Licence does not in any way whatsoever diminish the rights of the Township, 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 Township 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 Township may direct pursuant to the exercise of the Township's or utility company's rights. 12. The Licensee agrees that any and all costs, sums and expenses paid, incurred or sustained by the Township 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 Township and if such assignment is agreed the Licensee will obtain from such successor or assignee a covenant in favour of the Township thai 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 .. . 4 -~ '1 .' ";. . Luft Encroachment Agreement Page 4 of 4 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. 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 Township 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 Township prior to the execution of this agreement, the sum of $250.00, being administration fees to the Township to defray the cost of preparing, registering and administering this agreement, and shall further pay to the Township 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. . 16. The Licensee consents to the registration of this agreement against the title to the lands described in Schedule "AM attached hereto. 17. The Licensee shall, at all times during the life of this licence 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. . /l_ ,¢~I~ f1t¡'MJ Witness / Date ?I-I THE CORPORATION OF THE TOWNSHiP OF KINCARDINE-BRUCE- TIVERTON Per: ./ ,<~ytJ\""":;':~:J'~"" C2ð-/,¿~~~-----' '8\ ./' ~. a'~~ ~.tg: -'-I ~ ~ '. 1 ~hl~~'~~'~~"~ ., .y,-'.. ··Clèrk-~ '-"_.: .A~-.::~;,:'~\:,:.~"", ."" . Per: , .' " " . . . . ~ Schedule "A" to Encroachment Agreement for Luft Lot 11, Plan 789, Concession A, PI Lot 19 (formerly Township of Kincardine), Township of Kincardine Bruce Tiverton. I .~~ - ") .-,1 . . . ".. ). c- )0- ct:: 3 C¡- o J( IJ) 1- ~ I- -.~.- · ~ -'I' I ~ ;0' 0"'" ~'.~ £, i' "'I"- Y ~ '?'t>ç:. -, /to. .~ q:, -J I~ . .\'\:N 3' Iì\ I I ~ () ~I ~ lj ~I ~I ~' . -~----, I . I I .J. iJf" ~(( I þ ~ 51~\,,"e ,J! ø ~ y ~,1. I o ".ff?-d-~~ . .,u ~-Jf6'. ~ I '\ ,~ . I I I , f . -wi 5" I . , I SCHEDULE liB" TO Encroachment Agreement for Luft 35 Lower Beach Road, Pt Lot 19, Concession A Plan 789, Lot 11, Roll No. 4108 210 00407111 . "- \\~E H lA {t OIU ße,.c.\. Arec.\.. - - - - {¡;~ S'HDR.E ROAD 1-1- Lv f} (UCJ:E, - q,~~ .I~I~.)-f, #' ~t?l·a - ¿E-- PP.\)I~~(otJ¡:S - - - - .~, ~ "3 f' $;" - -/ l.Ot I I tJ . SCHEDULE" , .e. THIS IS SCHEDULE TQ.,··H.JU ENCROACHMENT AGREEMENT p~~~~~~~ /04-' DAY OF ,{..e...b... . 199G:>S';-::-'" ---~:~~\ :.?<.:.- ._~-:.. :'c"'~' ::- MAYOR CLERK KELLY ANN LUFT KAREN ELlZABE - - ~~...?-~ '.. .--...__.<....,!i'.:.- ~:::-~~ j>../- \.,-~..:.~,......." q .~ t - ~ - -,