HomeMy WebLinkAbout02 081 agree walker en
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THE CORPORATION OF THE MUNICIPALITY OF KINC^fnINE
KBT
BY-LAW
NO. 2002 - 81
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BEING A BY-LAW TO PERMIT AN ENCROACHMEN~ ONTO
MUNICIPAL PROPERTY i
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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. I
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AND WHEREAS the Corporation of the Municipality of Kincardine ~as been requested
to enter into an agreement to allow encroachments on municipal prc!>perty.
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NOW THEREFORE the Corporation of the Municipality of Kinc4rdine ENACTS as
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1. The owner of Plan 361 Lot 11, RP 3R4448 Part 56, (former ownship of
Kincardine) in the Municipality of Kincardine, known municip lIy 72 Victoria
Street, are hereby allowed to maintain and use the portion 0 the encroachment
upon municipal property subject to the Encroachment Agree ent attached to
this by-law. I
2. The encroachment is approximately 5.1 feet on the mUflicipJI property and shall
be subject to the terms and conditions of the encroaphment agreement
attached to this by-law. I
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3. That the mayor and clerk be authorized to sign, on behalf of The Corporation of
the Municipality of Kincardine the Encroachment Agreemen with Eldon Stanley
Walker and Beverly Ann Walker and to affix the Municipality' Corporate seal as
and when required.
4. This by-law may be cited as the "Walker Encroachment Agr ement By-law".
READ a FIRST, SECOND and THIRD time and DEEMED TO BE ~ASSED
this 12th day of June, 2002. . I
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Clerk
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ENCROACHMENT AGREEMENT
THIS AGREEMENT made this day of
2002
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BETWEEN:
ELDON STANLEY WALKER AND BEVERLY ANN WALKER
(the "Licensee")
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THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(the "Municipality")
1. The Licensee owns Plan 361 Lot 11, RP 3R4448 Part 56 known municipally as
72 Victoria Street (former Township of Kincardine) situated in the Municipality of
Kincardine, and more particularly described in Schedule "A" attached.
2.
The Municipality owns the road known as Victoria Street.
3.
A garage owned or controlled by the Licensee, encroach upon the municipal
property approximately 5.1 feet and is more or less as 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
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:
1. 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 "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 the extension and assignment
agreement prepared by the Municipality.
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Walker Encroachment Agreement
2. In the event of the Municipality at any time enacting a by-law levying a tax upon all
encroachments of buildings or other structures C1\Ier, under or upon any highway, street, lane,
road allowance or easement in the Municipality, the licensee shall pay forthlNith on demand
whatever tax may be levied in respect of the Encroachment upon the municipal property.
The licensee shall at its own cost, charge and expense and to the satisfaction of the
Municipality:
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(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 requinements, as may be required by the
Municipality, acting reasonably.
The Licensee shall at all times fully indemnify and save harmless the Municipality against all
actions, suits, cfaims 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 incuned, 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 pemission 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, cfaims 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.
The. ~ covenants SlId ¡¡grees to provide the Municipality -with a certificate of general
liabîlity insurance, on or before execution of this agreement, covering the Licensee and the
Municipality in respect 01 the lands subject to the Encroac;trnent during the term 01 this
agreement and any extensions authorized by the Council 01 the Municipality to the extent 01 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 prCNisions 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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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, aRer or nemC1IIe 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 nemC1\lal and
restoration. If the Licensee neglects, refuses or fails so to do within 90 days of receiving the
aforesaid notice to alter or rernC1\le, 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 nemC1\lal and restoration shall be final and binding upon the Licensee and the Municipality
may recC1\ler such costs from the Licensee in like manner as taxes.
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Walker Encroachment Agreement
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 remC1\lal of such Encroachment may be required as prC1\lided.
8.
The parties acknowledge and agree that no length of time of, or enjoyment by the Ucensee of
the permission granted herein shall ensure to, or give any right. tiUe or interest to the Licensee
or its successors in tiUe, 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 oIheIwise of any right to require the remC1\lal of the Encroachment or any
restoration of the municipal property to the satistaction of the Municipality at the Ucensee's
expense.
9. The Licensee hereby CC1\Ienants and agrees that at the time that the Encroachment is nemC1\led
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 'NOI1<s fonnerly comprising such Encroachment shall be nemC1\led, 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 CC1\Ienants 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
remC1\ling 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 CC1\Ienant set out to keep and maintain the Encroachment in good and proper repøir
and condition.
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The parties acknowiedge 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
~ l".lheir ~Vl¡.offioen¡. servants, workers, employees; agents and contractors. cto
enter at all times upon the muniàpal 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 instaUations and appurtenances thereto. The
Licensee shall not be entiUed 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 remC1\lal 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 prCNided shall form and constitute a charge or lien on the lands set
out in Schedule "A" attached hereto, until fully paid.
The Licensee CC1\Ienants and agrees not to assign or to transfer this agreement to any
successor or assignee of the pnemises 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 CC1\Ienant 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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Walker Encroachment 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 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 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.
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.
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.
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This8;greemept shall þe r~ad 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 'Á_çlj¡4(,~«-'¢:~-O.J- ~¿J~
~ Date Eldon Stanley Walker
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A JJAJP)" lL.) 1110LJ ÝÌÎ~ d3 'Dd..
Beverly ~'JIIaí'ker Date V
THE CORPORATION OF THE
MUNICIPALITY OF KIN DINE
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Per:
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Clerk
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Walker 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 Provinoe of Ontario, and being composed Plan 361 Lot 11,
RP 3R4448 Part 56 (former Township of Kincardine) registered in the Land Registry
Office, Bruce No.3, Land Titles Division of Bruce at Walkerton, Ontario.
Instrument Number 305650
Being the whole of the said Parcel.
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85(23/2882 12:28
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151'33'3&1438
i't.N OF KINCARDII'E
PAGE 81/81
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SCHEDULE "S"
TO
ENCROACHMENT AGREEMENT FOR WALKER
PLAN 361 LOT 11. RP 3R4448 PART 56,72 VICTORIA STREET MUNICIPALITY OF
KINCARDINE
(FORMER TOWNSHIP OF KINCARDINE)
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THIS IS SCHEDULE "S" TO WALKER ENCROACHMENT AGREEM
DAY OF JW'\~ 2002. .
-dld.r¡.,,) WcJÀc,v r)z.., Iu L
ÈLDON STANLEY WALK R Date
ED THIS 1.1'J.
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CLERK
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