HomeMy WebLinkAbout16 004 Bird 2016 Encroachment Agreement (95 John Street) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
KB
0 0 '-----a bf.
•4 / 0 PALlry OF KIND'
BY -LAW
NO. 2016 - 004
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT TO
PERMIT AN ENCROACHMENT ONTO MUNICIPAL PROPERTY
(95 John 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
matters within the sphere of jurisdiction of highways, including parking and traffic
III 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 Lot 17, Plan 372 and known municipally as 95 John Street
(geographic Township of Bruce), Municipality of Kincardine, is hereby
1111 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 a septic system, 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
Audrey Isobel Bird and to affix the corporate seal of the Municipality of
Kincardine.
4. This by -law may be cited as the "Bird 2016 Encroachment Agreement (95
John Street) By -law ".
READ a FIRST and SECOND TIME this 13th day of January, 2016.
• READ a THIRD TIME and FINALLY PASSED this 13th day of January, 2016.
/I .1 4 o�nna l SLQ
III
Mayor Clerk
This is Schedule "A_ " to By -Law
No.2o11° -co 4 passed the 3 day
of 0anuory 201 (p
ENCROACHMENT AGREEMENT
THIS AGREEMENT made this 1 day ofUo(* J( , 2016
BETWEEN:
Bird, John Clifford
-and -
Bird, Larry Cameron
-and-
Bird James Ross
-and -
Bird, Donald Gordon
(the "Licensee ")
— and —
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality ")
1. The Licensee owns Lot 17, Plan 372 known municipally as 95 John Street
(geographic Township of Bruce) situated in the Municipality, and more
particularly described in Schedule "A" attached.
2. The Municipality owns the Lake Street road allowance.
3. A septic system is owned or controlled by the Licensee, encroaches upon Lake
Street.
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 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 that municipal water and sewers becomes available.
(iv) 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.
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;
(ii) 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 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. 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) A thirty (30) day written notice of cancellation
2. The Licensee shall provide the Municipality with a valid Certificate of
Insurance as evidence of the 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 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.
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 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.
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.
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 the municipality an annual fee of $100.00 during
each calendar year of the term of this agreement. The payment is 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 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.
17. 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.
18. 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.
Witness Date Bird, John Clifford Date
Witness Date Bird, Larry Cameron Date
tOk Ct . \OCI ( led
Witness Date Bird, ames Ross Date
3TICIA a 4 CCc_Oec
Witness Date Bird, Donald Gordon Date
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per: - ...e....." nn Eadie, Mayor
Per: �J"(
Murray Clar e, CAO
We have the authority to bind the
Corporation. '
and premises described in Schedule "A" shall have the benefit of and be liable
for performance of the obligations contained in this 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 the municipality an annual fee of $100.00 during
each calendar year of the term of this agreement. The payment is 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 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.
17. 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.
18. This agreement shall be read with ail 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.
Witness Date Bird, John Clifford Date
1au6 Vi2 c /LAJOV2V
W tness Date Bird, Larry Cameron Date
Witness Date Bird, James Ross Date
Witness Date Bird, Donald Gordon Date
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per:
An Eadie, Mayor
Per:
Murray Clarke, CAO
We have the authority to bind the
Corporation.
and premises described in Schedule "A" shall have the benefit of and be liable
for performance of the obligations contained in this 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 the municipality an annual fee of $100.00 during
each calendar year of the term of this agreement. The payment is 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 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.
17. 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.
18. 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.
Witness Date Bird, John Clifford Date
ness Date Bird, Larry Cameron Date
r
/VA r —` 1( ,,) � Ea1 � Kd. exa -wb� Zv i)
1�Witness Dat �(/ =ird, Ja - - .ss Date
yy �
Witness / 1 �..k Date /tC / Bird I Gordon � D / ate j�
ICU v�:w K' /.'; -h /YOtt - (/ ili/J' M - fc7.4- . 1r. - /T 26, J. ,.-
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per:
Anne Eadie, Mayor
Per:
Murray Clarke, CAO
We have the authority to bind the
Corporation.
ScheTo ant for Bt, Mu
ft-
'A'
Encroachment Agreement
Lot 17, Plan 37 known municipally as 95 D John Streenicipality of Kincardine,
(former Township of Bruce)
� � '
9r. � ! y 0 y .g 3s $
I s - ` 1 x 5 , a •
� '
. p si: " .9-." \ a �� """ _..._ i. ' v.� v _
i
1
\ \