HomeMy WebLinkAbout11 062 Encroachment Agreement (249 Harbour Street) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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B - LAW
NO. 2011 - 062
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT TO
PERMIT AN ENCROACHMENT ONTO MUNICIPAL PROPERTY
(249 Harbour Street)
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
111 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 owner of Plan 172 Lot A, Part Lot B, Harbour N/S and known
municipally as 249 Harbour Street (geographic Town of Kincardine),
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 two (2) directional signs, as outlined in the
attached agreement and shall be subject to the terms and conditions of
the Encroachment Agreement attached.
3. That the Mayor and Chief Administrative Officer be authorized and
directed to sign and execute, on behalf of the Council of The Corporation
of the Municipality of Kincardine, the Encroachment Agreement with
1091711 Ontario Ltd. and to affix the corporate seal of the Municipality of
Kincardine.
4. This by -law may be cited as the "Encroachment Agreement (249 Harbour
Street) By -law ".
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Encroachment Agreement (249 Harbour Street) By -law
By-law No. 2011 - 062
11111 READ a FIRST and SECOND TIME this 13 day of April, 2011.
ayor� Clerk d
READ a THIRD time and FINALLY PASSED this 13 day of April, 2011.
'Mayor Clerk
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ENCROACHMENT AGREEMENT
THIS AGREEMENT made this 13 of F f » e 1 , 2011
BETWEEN:
1091711 Ontario Ltd.
(the "Licensee ")
— and —
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality ")
1. The Licensee owns Plan 172 Lot A, Part Lot B, Harbour N/S known municipally
as 249 Harbour Street (former Town of Kincardine) situated in the Municipality,
2. The Municipality owns the roads known as Queen Street, Durham Street and
Harbour Street.
3. Two directional sign are owned or controlled by the Licensee; encroach upon
the municipal property as shown on Schedule 'A'
4. The Municipality agrees to permit the Encroachments 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 as Plan 172 Lot
A, Part Lot B, Harbour N/S 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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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) Cover all costs associated with sign purchase and installation.
(ii) Maintenance for the Encroachment to be kept in a good and proper state
of repair and safety;
(iii) Make no additions or modifications to the Encroachment which are not
authorized or contemplated by this agreement; and
(iv) Comply 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, causes of
action and losses and for any and all liability for damages to property and injury
to persons (including death) which the Municipality may incur, otherwise than
by reason of their own negligence or willful 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. Where, in the opinion of the Municipality, it is necessary to remove or alter the
Encroachment or part thereof, the Licensee shall, receive notice in writing from
the Municipality without being entitled to any compensation whatsoever for such
alteration or removal and restoration. 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.
6 Nothing contained herein shall be construed as giving to the Licensee anything
more than permission to maintain the Encroachment until such time as this
agreement expires or is terminated or the removal of such Encroachment may
be required as provided.
7. 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.
8. 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.
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 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 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.
10. 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 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.
11. 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 Schedule "A" attached hereto, until fully
paid.
12. 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 Schedule "A" shall have the benefit of and be liable
for performance of the obligations contained in this agreement.
13. 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.
14. The Licensee agrees to pay to the Municipality prior to the execution of this
agreement, the sum of $117.00, being administration fees to the Municipality to
defray the cost of preparing and administering this agreement, and shall further
pay the municipality an annual fee of $200.00 ($100 each sign) during each
calendar year of the term of this agreement. The payment is to be made
annually on the property tax bills.
15. 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.
16. 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.
17. 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.
/913r
Witness Date D iel Show , ate
President 1091711 Ontario Ltd.
I / We have the authority to bind the
Corporation
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per: ("-\
Larry Kra er, Mayor
Per 1.„.,
Job deRosenroll, CAO
We have the authority to bind the
Corporation.
Schedule `A'
To
Encroachment Agreement for 1091711
Plan 172, Lot `A' and Part Lot `B', Harbour N /S, Municipality of Kincardine,
(former Town of Kincardine)
ur Street
Queen Street & Harbour i
1
N.,,,, R
K L r f i . .
'# --J J it,
- II . 1 1 it
Durham Street & Queen Street
sl
` �,
es
, 'A aa r ,
1 - th a w t , , t
J Indicates approximate Sign Location