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HomeMy WebLinkAbout09 171 McLeod 2009 Armow Encroachment Agreement By-LawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE KBT • / /gIITY OF K \N� � � 1 NO. 2009 -171 BEING A BY -LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT TO PERMIT AN ENCROACHMENT ONTO MUNICIPAL PROPERTY (Lot 18, Concession 7) WHEREAS Section 11 (3) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provides that a lower -tier municipality may pass by -laws, respecting • matters within the sphere of jurisdiction of highways, including parking and traffic on highways; WHEREAS Section 8 (1) and 9 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provide that 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 other Act; AND WHEREAS the Council of The Corporation of the Municipality of Kincardine has been requested to enter into an agreement to allow encroachments on municipal property. NOW THEREFORE the Council of The Corporation of the Municipality of Kincardine ENACTS as follows: 1. The owners of Lot 18, Concession 7 Kincardine; being all of Pin 33297- • 0065, Municipality of Kincardine, is hereby allowed to maintain and use the portion of the encroachment upon municipal property subject to the Encroachment Agreement attached as Schedule `A' to this by -law. 2. The encroachment includes the installation of pipes under the public highway subject to the terms and conditions of the encroachment agreement attached as Schedule 'A' to this by -law. 3. That the Mayor and Chief Administrative Officer be authorized to sign and execute, on behalf of the Council of The Corporation of the Municipality of Kincardine, the Encroachment Agreement with Douglas Wray McLeod and to affix the corporate seal of the Municipality of Kincardine. 4. This by -law may be cited as the "McLeod 2009 Armow Encroachment Agreement By -law ". • .../2 Page 2 McLeod 2009 Armow Encroachment Agreement By -law By -law No. 2009 - 171 r� • READ a FIRST and SECOND time this 2 day of December, 2009. W ay — or Clerk READ a THIRD time and FINALLY PASSED this 2 day of December, 2009. Mayor THIS AGREEMENT made thisJ of bt- O CeMbf t , 2009 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Municipality ") -and- DOUGLAS WRAY MCLEOD (the "Licensee ") RECITALS: 1. Kincardine is a lower tier Municipality with jurisdiction over certain public highways known as Concession 7 and Sideroad 15 North located in the former Township of Kincardine, Municipality of Kincardine, County of Bruce and referred to hereafter as the "public highway". 2. The Licensee is an owner of land located within the Hamlet known as Armow and which land abuts the public highway. The Licensee requests that an Encroachment Agreement be undertaken to ensure water supply to his property. 3. The Municipality agrees to permit the installation of pipes under the public highway and the construction of the encroachment of the said pipes upon the highway 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 public highway subject to the following provisions: 1. The location of the encroachment is described in Schedule "A" to this Agreement. 2. The term of this Licence shall expire on the earlier of: (a) Twenty years from the enactment date of this By -law or (b) The date of the voluntary removal of the encroachment by the Licensee or (c) Two years from the date of the enactment of a by -law by the Council of the Municipality directing the encroachment to be removed by the Licensee from the public highway 3. In the event that the Municipality enacts 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 highway. 4. The Licensee shall at its own cost, charge and expense and to the satisfaction of the Manager of Public Works or his designate or such other person occupying a similar position for the Municipality (the "Manager"): (a) keep and maintain the encroachment in a good and proper state of repair and safety; (b) make no additions or modifications to the encroachment which are not authorized or contemplated by this Agreement; and (c) the Licensee shall authorize the Municipality to install a standard water shut off valve inside the road allowance on the well delivery side to ensure the ability to isolate the water distribution in case of a water main break, maintenance or emergency issue; (d) comply with such further and additional requirements, as may be required by the Manager, acting reasonably. 5. The Licensee shall fully indemnify and hold harmless the Municipality against all actions, suits, claims and demands to any issues relating to the construction, operation or maintenance of the encroachment and any related matter. 6. 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 ONE MILLION DOLLARS ($1,000,000,00) inclusive of all injuries or death to person and damage to property of others arising from any one occurrence. The Municipality is to be an additional 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. 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. The Licensee shall provide proof of coverage to the Municipality. 7. Where, in the opinion of the Manager, 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 Manager, alter or remove the encroachment or any part thereof from the Road, and restore the affected area upon receiving notice in writing from the Manager so 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 150 days of receiving the foresaid notice to alter or remove, then the Municipality may alter or remove the encroachment or parts thereof from the Road, as determined by the manager at the cost, charge and expense of the Licensee and the certificate of the Manager 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 a like manner as taxes. 8. The parties acknowledge and agree that no length of time of, or enjoyment by the Licensee of the permission granted 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 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 Road to the satisfaction of the Municipality at the Licensee's expense. 9. 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 inspect, alter or remove the encroachment from the Road. 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. 10. The parties acknowledge and agree that this Licence does not in any way whatsoever diminish the rights of the Municipality, or any gas, telephone, cable, municipal electricity company 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, gas pipes, poles, wires or other 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's 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 Manager may direct pursuant to the exercise of the Municipality's or utility company's rights. 11. The Licensee covenants and agrees to assign and to transfer this Agreement to any successor or assignee of the lands and premises described in Schedule "A" and 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. 12. The Licensee agrees that for the purpose of this Agreement, notice may be given to the Licensee or by mailing the same, by prepaid registered mail, addressed to the Licensee at its address as last know to the Manager. Such notice shall be deemed to have been received by the Licensee or 15 days following the date when it was handed to the Post Office. 13. The Licensee shall, at all times during the currency 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. 14. This Agreement shall be read with all changes of gender or number required by the context. IN WITNESS WHEREOF the hands and seals of the Licensee hereto. THE LICENSEE WITNESS WITNESS - "., dzt;w , e��l� Dougl s Wray McLeod THE UNI LI Per: Larry mer, Mayor Per: �s WITNESS o n deRosenroll, Chief Administrative Officer We have authority to bind the Corporation SCHEDULE "A" Location of lands owned by the Licensee. McLeod - Lot 18, Concession 7 Kincardine; Kincardine being all of Pin 33297 -0065 (LT).