HomeMy WebLinkAbout01 151 EN ostrowski/johnson 11
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THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
NO. 2001 - 151
BEING A BY-LAW TO PERMIT AN ENCROACHMENT ONTO
MUNICIPAL PROPERTY
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.
NOW THEREFORE the Corporation of the Municipality of Kincardine ENACTS as
follows:
1. The owners of Lot 3, Registered Plan 828, (former Township of Kincardine) in
the Municipality of Kincardine, known municipally as 11 Huronview Place, are
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 is approximately 15 feet on the municipal property and shall
be subject to the terms and conditions of the encroachment agreement
attached to this by-law.
3.
That the mayor and clerk be authorized to sign, on behalf of The Corporation of
the Municipality of Kincardine the Encroachment Agreement with Steven
Ostrowski and Jodi Johnson and to affix the Municipality's Corporate seal as
and when required.
4. This by-law may be cited as the "Ostrowski & Johnson Encroachment
Agreement By-law".
READ a FIRST, SECOND and THIRD time and DEEMED TO BE PASSED this 19th
day of December, 2001.
Clerk
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Notaries Public
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Graham E. Mahood, B.Math.. M.Math., LL.B
Irma D. Darcy, LL.B.
313 Lamblon Street
Kincardine, Ontario N2Z 2Y8
Tel: (519)391H3144
Fax: (519)396-9446
December 18, 2001
The Municipality of Kincardine
1475 Concession 5
R. R. #5
Kincardine, Ontario
N2Z 2X6
Attention: Bob Waram, Deputy CAO/Deputy Clerk
Dear Mr. Waram:
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Re: Ostrowski & Johnson purchase from Carter
R.R. 2, Tiverton, Ontario NOG 2TO
Lot 3, Plan 828, Township of Kincardine, County of Bruce
This letter is firstly to confirm that I am acting for Steven Ostrowski and Jodi Johnson who
are purchasing the above-noted property from Frederick Alexander (Sandy) Carter. The transaction
was originally intended to close on September 28, 2001 but was delayed because of the need to
obtain a minor variance. Since the minor variance was in turn conditional upon entering the
encroachment agreement, the only remaining obstacle to closing the transaction is the execution of
the agreement by the Municipality. The parties would be most grateful if the council would approve
the agreement at its meeting this evening so that the transaction can finally close on Thursday,
December 20.
Since my clients will not become the owners of the property before December 20, the
agreement is forwarded to you on the basis that it will only become effective once the transaction
has been completed.
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Thank you for your assistance in this matter and I look forward to hearing from you on
Thursday moming.
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Graham E. Mahood
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ENCROACHMENT AGREEMENT
THIS AGREEMENT made this 19th day of December 2001
BETWEEN:
STEVEN OSTROWSKI & JODI JOHNSON
(the "licensee")
-and-
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(the "Municipality")
The licensee owns Lot 3, Registered Plan 828, known municipally as 11
Huronview Place (former Township of Kincardine) situated in the Municipality of
Kincardine, and more particularly described in Schedule "A" attached.
2. The Municipality owns the shore road allowance.
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3. A deck owned or controlled by the Licensee, encroaches upon the municipal
property approximately fifteen feet and is more or less as shown on the sketch
attached as Schedule "B" and referred to as the encroachment.
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 Council's passing 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 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 the extension and assignment
agreement prepared by the Municipality.
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Ostrowski & Johnson Encroachment Agreement
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;
(ij) 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 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, a"er 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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Ostrowski & Johnson Encroachment Agreement
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 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.
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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Ostrowski & Johnson Encroachment Agreement
. 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 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 calendar 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
to be made annually on the property tax bill.
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 inure 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.
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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Stev strowski
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THE CORPORATION OF THE
MUNICIPALITY OF KINC DIN
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Ostrowski & Johnson Encroachment Agreement
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SCHEDULE 'A'
ALL AND SINGULAR that certain parcel or tract of land and premises, situate,
lying and being in the Municipality of Kincardine (former Township of Kincardine), in
the County of Bruce, and Province of Ontario, and being composed of Lot 3, as shown
on Registered Plan 828, (former Township of Kincardine) registered in the Land
Registry Office, Bruce No.3, Land Titles Division of Bruce at Walkerton, Ontario.
Instrument Number 325758
Being the whole of the said Parcel.
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SCHEDULE "B"
TO
ENCROAcHMENT AGREEMENT FOR OSTROWSKI & JOHNSON
LOT 3, PLAN 828 KNOWN MUNICIPALLY As 11 HURONVIEW PLACE
MUNICIPALITY OF kiNCARDINE
(FORMER TOWNSHIP OF KINCARDINE)
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THIS IS SCHEDULE "B" TO OSTROSKI & JOSHNS
PASSE T I 19TH DAY OF DECEMBER, 2001
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ST OSTROWSKI Date
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T AGREEMENT
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