HomeMy WebLinkAbout20 114 Gramigna 2020 Encroachment Agreement (947 Princes Street) By-law
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2020 - 114
BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT TO
PERMIT AN ENCROACHMENT ONTO MUNICIPAL PROPERTY
(947 Princes 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
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
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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 enterinto 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 5 Plan 120, Kincardine,known municipally as 947
Princes Street Municipality of Kincardine, (geographic Town of
Kincardine), is hereby allowed to maintain and use the portion of the
encroachment upon municipal property subject to the Encroachment
Agreement attached ;M 9=B?>OF? U/V to this by-law.
2. The encroachment includes a garage, as outlined on the sketchattached
to the agreement and shall be subject to the terms and conditions of the
encroachment agreement attached ;M 9=B?>OF? U/V to this by-law.
3. That the Mayor and CAO be authorized to execute, on behalf of the
Council of The Corporation of the Municipality of Kincardine,the
Encroachment Agreement withMegan Gramigna.
4. This by-F;Q G;S <? =CN?> ;M NB? WGramigna 2020 Encroachment
Agreement (947 Princes Street) By-F;QX#
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READ a FIRST and SECOND TIME this 9 day of September, 2020.
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READ a THIRD TIME and FINALLY PASSED this 9 day of September, 2020.
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Mayor Clerk
ENCROACHMENT AGREEMENT
THIS AGREEMENT made this 9th day of September 2020
BETWEEN:
MEGAN GRAMIGNA
(the "Licensee")
— and —
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality")
1. The Licensee owns Lot 5 Plan 120, Kincardine known municipally as 947
Princes Street (former Town of Kincardine) situated in the Municipality, and
more particularly described in Schedule "A" attached.
2. The Municipality owns the road known as Princes Street.
3. A garage is owned or controlled by the Licensee, encroaches upon the
municipal property approximately 4' feet and is more or less as shown on the
sketch attached as Schedule `A', 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.
rovisions: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 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.
ncluding: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.
Megan GramibCna �iII�IIIIIIIIIIIIIIIIIIII"IIi ui�i
Signed with ConsignO Cloud(2020/09/15) IIIIIIIR III IIIIIII September 15,
Verify with ConsignO or Adobe Reader. Sept
2020
Megan Gramigna Date
THE CORPORATION OF THE
MUNICIPALITY
EadieCAi��iiIIRDINE
Per. Ve ned W�h Co,sl lgO or Adobe Reader.
IIIIIIIIIII Oil
Anne Eadie, Mayor
.........................
Sharon Chambers �
Signed with ConsignO Cloud(2020/10/09) IIIIII II III III@ IIIA VIII
Per. Verify with ConsignO or Adobe Reader.
Sharon Chambers, CAO
We have the authority to bind the
Corporation.
Schedule `A'
To
Encroachment Agreement for
Lot 5 Plan 120, Kincardine, known municipally as 947 Princes Street,
Municipality of Kincardine, (geographic Town of Kincardine)
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