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HomeMy WebLinkAbout07 283 Reid's Heritage Homes Ltd 2007 Encroachment Agreement (Pt Lt4, Bl30, Pl M-35) . . . . THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO. 2007-283 BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT TO PERMIT AN ENCROACHMENT ONTO MUNICIPAL PROPERTY (Part Lot 4, Block 30, Plan M-35) WHEREAS Section 9 (3) of The Municipal Act, 2001, S.O. 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 Municipal Act, 2001, S.O. 2001, c. 25, Sections 8 and 9 (1) provide thai the powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern Its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues and has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authorIty under this or any olherAct; 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: ,. That Reid's Heritage Homes Ltd. is hereby allowed to maintain and use that portion of municipal property described as Part Lot 4, Block 30, Plan M-35, The Highlands at Hunter Ridge Subdivision, MunIcipality of Kincardine, geographic Town of Kincardine, subject to the Encroachment Agreement attached to this by-law as Schedule 'A'. 2. The encroachment is to allow for the installation of several signs that encroach upon municipal land a distance of approximately 3.7 metres, more particularly shown on the sketch attached as 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 Reid's Heritage Homes Ltd.. 4. This by-law may be cited as the "Reid's Heritage Homes Ltd. 2007 Encroachment Agreement (Pt Lt 4, 81 30, PI M--35) By-law". .../2 . . . . Page 2 Reid's Heritage Homes Lid. 2007 Encroachment Agreement (PI L14, BI 30, PI M-35) By-law By-law No. 2007 - 283 READ a FIRST and SECOND time this 3rd day of October, 2007. Mayor I*-~"", Clerk READ a THIRD time and FINALLY PASSED this 3m day of October, 2007. '----' [l,..._ll~ Clerk ENCAOACHMENTAGREEMENT THIS AGREEMENT made this 3YCldaY of (9::fv~ 2007 This is Schedule R..tL R to By-Law No. ]DQ1.)O'passedthe~day of 10 ~ 200.1. ;~ . BETWEEN: REID'S HERITAGE HOMES LTD. (the "Licansee") -and- THE. CORPORATION OF THE MUNICIPAUTY OF KJNCARDINE (the "Municipality") 1. The Licensee owns Part Lot 4, Block 30, Plan M-35, The Highlands at Hunter Ridge Subdivision situated in the Municipality. 2. The signs owned or controlled by the Licensee, encroaches upon municipal land a distance of approximately 3.7 metres, more particularly shown on the (sketch or sUNey) attached as Schedule "A' and referred to as the "Encroachment'. (If no $UNey is available refer to sketch attached or delete if necessary). 3. The Municipality agrees to permit the Encroachment to continue upon the municipal land 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 pennit the Encroachment upon the lands of the Municipality, subject to the following provisions: 1. The tenn of this Licence shall expire on the earlier of: (i) 30 months from tile dale of passage of this agreement or when the subdivision is 80% sold, provided that, at the expiry of the term and at the Licensee's request, Council of the Municipality ~ay, at its discretion, extend the term for such period of time and on such terms and conditions as it deems advisable; or . (iI) The date of removal of the Encroachment. _ 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 over, under or upon the publiC roadway. ~ ...1/ 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) Compty with such further and additional requirements, as may be required by the Municipality, acting reasonably. 4. The licensee agrees to indemnify and hold harmless the Municipality from and against all suits, judgments, claims, demands, expenses actions, caused of action and losses and form any and all liability jor damages to property and injury to persons (including death) which the Municipality may incur, otherwise than by reason of their own negligence or wiltful,misconduct, as a result of or arising out of or in relation to any breach of the terms of this Agreement, or the Municipality's own negligence or willful misconduct. 5. The Licensee shall put in effect and maintain in its name, at its expense, all the necessary insurance that would be considered appropriate for a prudent tenant undertaking this type of operation for the period during which the Agreement is in effect with insurers acceptable to the Municipality, including: 1. General Liability Insurance, for third party bodily injury, personal injury and property damage to an inclusive limit of not less than Two Million Dollars ($2,000,000.00) per occurrence. The policy shall include: a) The Corporation of the Municipality of Kincardine as an additional insured; b) Cross liability c) Property coverage on a replacement cost basis for all property owned by the Licensee and located on this property d) A thirty (30) day written notice of cancellation 2. The Licensee shall provide the Municipality with a valid Certificate of Insurance as evidence of .he above coverages upon signing the Agreement. The Licensee shall provide the Municipality with any renewal replacement certificates as may be necessary during the term of the Agreement. 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 Road, and restore the affected area upon receiving notice In writing from the Municipality to do, without being entitied to any compensation whatsoever for such alteration or removal and restoration. If the Licensee neglects, refuses or falls 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 Ucensee anq the Municipality may recover such costs from the Licensee in like manner as taXes. ...2/ 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 acl<:nowledge 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, titie or interest to the Licensee or its successors in litle, 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 th9 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 & in part, or is in need of replacement, and in any event, upon the expiry or termination of this a~reement, that the works formerly comprising such Encroachment shall be removed, at the Licensee's sole expense, so that they are located entirely off thEl 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 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 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. ihe parties acknowledge and agree that this Ucense 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, until fully paid. 13. The Licensee covenants and agrees not to assign or to transfer this agreement to any successor or assignee of the premise~ without the consent of the Municipality and if such assignment is agreed the !-icel'lsee 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 tif its assignment as aforesaid, it being the intention that the owner from time to time of the lands, and premises shall have the benefit of and be liable for performance of the obiigations contained in this agreement. ...31 .. . 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 lis 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 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 aU 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. ' 17. This agreement and everything herein contained shall run with the lands and enure to the benefit of and be binding upon the parties, their heirs, executors, administrators, successors and assigns. 18. This agreement shall be read with aU 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 auU,ori2',ed in that b alf. ~6c{!. 'i:tb,lor t Witn'ess D I ASO for Reid's Heritag THE CORPORATION OF THE MUNIOr ITY NINE Per: P~X\ ......- Mayor: Larry Kraemer ~_'?",_ _ /J! CAO: John de ~ We have the authority to bind the corporation. , , , " ", , , , , " " , , "- ill . "' ..,. ." 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