HomeMy WebLinkAbout06 129 Lake St-Encroachment
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THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2006 -129
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT TO
PERMIT AN ENCROACHMENT ONTO MUNICIPAL PROPERTY
(169 Lake Street)
WHEREAS Section 9 (3) of The Municipal Act, 2001, S.D. 2001, c. 25, as
amended, authorizes municipalities to pass by-laws respecting matters and
imposing conditions as a requirement for obtaining permits;
AND WHEREAS the Corporation of the Municipality of Kincardine has been
requested to enter into an agreement to allow encroachments on municipal
property.
NOW THEREFORE the Corporation of the Municipality of Kincardine ENACTS
as follows:
1. The owner of Lot 22, Plan 372, Townplot of Inverhuron, (former Township
of Bruce) in the Municipality of Kincardine, known municipally as 169 Lake
Street, is hereby allowed to maintain and use the portion of the
encroachment upon municipal property subject to the Encroachment
Agreement attached to this by-law.
2.
The encroachment includes a frame cottage and other minor
improvements as noted on Schedule "A" of the agreement and shall be
subject to the terms and conditions of the encroachment agreement
attached to this by-law.
3. That the Mayor and CAD be authorized to sign, on behalf of The
Municipality of Kincardine the Encroachment Agreement with Robert
Skingley and Virginia Tolman.
4. This by-law may be cited as the "SkingleyfTolman 2006 Encroachment
Agreement (169 Lake Street) By-law".
READ a FIRST, SECOND and THIRD time and FINALLY PASSED this 2nd day
of August, 2006.
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Mayof
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Clerk
"-1IÎIs~~e:Á-" to By-Law
No. 1~ ~ passed the ~ day
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ENCROACHMENT AGREEMENT ·
7t ΠCk~
THIS AGREEMENT made this /0 day of <J'1.r ~>' , 2006 '
BETWEEN:
..... .~
ROBERT SKINGLEY
VIRGINA TOLMAN
(the "Licensee")
- and -
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality")
1. The Licensee owns a cottage on Lot 22, Plan 372, Townplot of I nverhuron,
known municipally as 169 Lake Street, (former Township of Bruce) Roll No. 26.:.
4-014 situated in the Municipality of Kincardine.
2. The Municipality owns the public highway a road allowance known as Lake
Street, referred to as the "Road".
3. A framed cottage owned or controlled by the Licensee, encroaches upon the
Road a distance of approximately 11 metres, more particularly shown on the
sketch attached as Schedule "A" 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 tenn of this Licence shall expire on the ear1ier of:
(i) One (1) year 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 paragraph 1
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.
...21
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Skingley / Tolman Encroachment Agreement
Page 20f4
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 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 Ucensee 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 setUing 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 Uœnsee 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 Ucensee 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.
...3/
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Skingley / Tolman Encroachment Agreement
Page 3 0'4
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 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 paragraph 1 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 License 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 cI~use 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 paragraph 1, 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 paragraph 1 shall have the benefit of and be liable
for performance of the obligations contained In this agreement.
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Skingley / To/man Encroachment Agreement
Page 40f4
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 for
the term of this agreement. The payment is to be made on the property tax bill.
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
statues, orders and rules made or to be made by a lawfully constituted authority
having jurisdiction therein.
17. This agreement and everything herein contained shall run with the lands
described in paragraph 1 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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Virg' Tolman DatéÏ
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
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S 372
LOT 22. PLAN INVERHURON
TOWNPLOT OF SHIP OF BRUCE
FORMER TOWN OF KINCARDINE
MUNICiPALITY
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