HomeMy WebLinkAbout01 017 EN Mercer Lt 19 Pln M35
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THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2001 - 17
BEING A BY-LAW TO PERMIT AN ENCROACHMENT ONTO
MUNICIPAL PROPERTY KNOWN AS BLOCK A, REGISTERED PLAN M-35
(FORMER TOWN OF KINCARDINE)
MUNICIPALITY OF KINCARDINE
WHEREAS pursuant to Section 210 P.107 of the Municipal Act, R.S.O. 1990, c.M. 45,
the Council of a municipality may pass by-laws authorizing the encroachment of
buildings or structures upon municipal property subject to such terms and conditions
and may fix annual fees or charges for such privilege.
AND WHEREAS the Corporation of the Municipality of Kincardine has been requested
to enter into an agreement to allow encroachments on municipal· property described as
Block A, Registered Plan M-35 (former Town of Kincardine) in the Municipality of
Kincardine.
NOW THEREFORE the Corporation of the Municipality of Kincardine ENACTS as
follows:
1.
The owners from time to time of the improvements described in the
Supplementary Encroachment Agreement attached as Schedule B to this
by-law, hereinafter called the "improvements· on the property known as Lot 18,
Registered Plan M-35, (former Town of Kincardine) in the Municipality of
Kincardine are hereby allowed to maintain and use the portion of the
improvements as they encroach upon municipal property known as Block A,
Registered Plan M-35, (former Town of Kincardine) in the Municipality of
Kincardine, subject to the Encroachment Agreement attached as Schedule A to
this by-law.
2. The encroachment with respect to the portion of the improvements hereby
authorized, is approximately 12.2 metres on the municipal property and shall be
subject to the terms and conditions of the encroachment agreement attached to
this by-law as Schedule A.
3. That the mayor and clerk be authorized to sign, on behalf of The Corporation of
the Municipality of Kincardine:
a) the Encroachment Agreement with William Paul Mercer and Bonnie
Christina Mercer which is attached to this by-law as Schedule A;
b) the Supplementary Encroachment Agreement with William Paul Mercer
and Bonnie Christina Mercer which is attached to this by-law as
Schedule B.
and to affix the Municipality's Corporate seal as and when required and to
register the Encroachment Agreement, Schedule A, on the property.
4.
This by-law affects the lands described as Schedule A and Schedule B in the
said Encroachment Agreement attached to this by-law. .../2
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Mercer Encroachment Agreement By-law
No. 2001 -17
Page 2 of 2
5. This by-law may be cited as the "Mercer Encroachment Agreement By-law".
READ a FIRST, SECOND and THIRD time and DEEMED TO BE PASSED this
28th day of February, 2001.
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ENCROACHMENT AGREEMENT
THIS AGREEMENT made this )¡ft.dayof February 2001
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BETWEEN:
WILLIAM PAUL MERCER AND BONNIE CHRISTINA MERCER
(the "Licensee")
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THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality")
1.
The Licensee owns Lot 18, as shown on Registered Plan M-35, known
municipally as 500 Scott Street (former Town of Kincardine) situated in the
Municipality, and more particularly described in Schedule "A attached.
2. The Municipality owns the property known as Block A, Registered Plan M-35.
3. A fence and shed owned or controlled by the Licensee, encroaches upon the
municipal property.
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 registration 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
(Hi) 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 and registered the extension
and assignment agreement prepared by the Municipality.
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Mercer Encroachment Agreement
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.
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 r.
authorized or contemplated by this agreement; and
(iii) Comply with such further and additional requirements, 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, 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 Licensee 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 settling any such actions, suits, claims or demands,
based on a solicitor and own client basis.
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.
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 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 Licensee 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.
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Mercer Encroachment Agreement
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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.
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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 anq 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
remc;>ving 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 Licence 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.
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 Schedule "A" attached hereto, 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 Schedule "A" shall have the benefit of and be liable for
performance of the obligations contained in this agreement.
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Mercer Encroachment Agreement
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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 $250.00, being administration fees to the Municipality to
defray the cost of preparing, registering 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 first such annual payment to be made at the
time this agreement is executed by the Licensee and the subsequent payments f.
to be made annually on each day which is the anniversary date of the
registration of this agreement.
16. The Licensee consents to the registration of this agreement against the title to
the lands described in Schedule "A" attached hereto.
17. 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.
18. This agreement and everything herein contained shall run with the lands
described in Schedule "A" and enure to the benefit of and be binding upon the
parties, their heirs, executors, administrators, successors and assigns.
19. This agreement shall be read with all changes of gender or number required by
the context.
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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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THE CORPORATION OF THE
MUNICIPALITY OF KINCAR INE
Per:
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Per:
Mayor
Clerk
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Mercer Encroachment Agreement
SCHEDULE' A'
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ALL AND SINGULAR that certain parcel or tract of land and premises, situate,
lying and being in the Municipality of Kincardine (former Town of Kincardine), in the
County of Bruce, and Province of Ontario, and being composed of Lot 18, as show on
Registered Plan M-35, (former Town of Kincardine) registered in the Land Registry
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Office, Bruce No.3, Land Titles Division of Bruce at Walkerton, Ontario
Being the whole of the said Parcel.
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SUPPLEMENTARY ENCROACHMENT AGREEMENT
THIS AGREEMENT made this # day of F:b>'-'A'ý 2001
. BETWEEN:
WILLIAM PAUL MERCER AND BONNIE CHRISTINA MERCER
(the "Licensee")
- and -
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THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality")
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WHEREAS by an Encroachment Agreement made on the date above recorded,
the Municipality did agree to allow the continued encroachment of a shed and a fence
owned by the Licensee upon the adjacent municipal property owned by the
Municipality in accordance with the terms and conditions contained in the said
agreement.
AND WHEREAS it is desirous that the location and extent of the encroachment
be established as of the date of this agreement.
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IN CONSIDERATION of the Encroachment Agreement entered Into between
the parties it is agreed and acknowledged by the parties as follows:
1. The shed and the fence owned or controlled by the Licensee and referred to in
Encroachment Agreement of even date hereof, encroaches upon the municipal
property approximately 12.2 meters, and is more or less as shown on the
sketch attached as Schedule "A" and referred to as the encroachment.
2.
It is acknowledged that this Supplementary Encroachment Agreement is
intended to be incorporated by reference when interpreting or enforcing the
Encroachment Agreement between the parties.
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WITNESS the signatures of the parties.
~¿_UtJ..> ,~Ir¡{Jo/ rJ/~~ 'frr.<ÞL
ess Date Licensee
THE CORPORATION OF THE
MUNICIPA TV OF
Per:
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Clerk
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SCHEDULE "A"
to Mercer Supplementary Encroachment Agreement
Lot 18, Registered Plan M-35 (known municipally as 500 Scott Street),
Municipality of Kincardine, (former Town of Kincardine).
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