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Home My WebLink About04 031 encorachment wood e e e e THE CORPORATION OF THE MUNICIPALITY OF KINC INE BY-LAW NO. 2004 ·31 BEING A BY-LAW TO PERMIT AN ENCROACHMENT NTO MUNICIPAL PROPERTY 21 SAMONA BEACH LANE WHEREAS Section 9 (3) of The Municipal Act, 2001, S.D. 2001, c. 25, as amended, authorizes municipalities to pass by-laws respecting matters and im osing conditions as a requirement for obtaining permits; AND WHEREAS the Corporation of the Municipality of Kincardine ha been requested to enter into an agreement to allow encroachments on municipal prop rty. NOW THEREFORE the Corporation of the Municipality of Kincar ine ENACTS as follows: 1. The owners of Part Lot 22, Concession A, (former Township 0 Kincardine) in the Municipality of Kincardine, known municipally as 21 Sarno a Beach Lane, are hereby allowed to maintain and use the portion of the encr achment upon municipal property subject to the Encroachment Agreement a ched to this by- law. 2. The encroachment is approximately 5.7 feet on the municipal roperty and shall be subject to the terms and conditions of the encroach ent agreement attached to this by-law. 3. That the Mayor and CAD be authorized to sign, on behalf of T e Municipality of Kincardine the Encroachment Agreement with Charles Wood nd Nancy Wood. 4. This by-law may be cited as the 'Wood Encroachment Agree ent (21 Samona Beach Lane) By-law". READ a FIRST, SECOND and THIRD time and DEEMED TO BE ASSeD this 10th day of March, 2004. ~. ¡(. A - Mayo(" ( ~ k Clerk MUN OF KINCARDINE PAGE 02 " ".. 02/24/2804 16:82 15193961430 ... ,. ENCROACHMENT AGREEMENT THIS AGREEMENT made this day of 2004 .' BETWEEN: CHARLES WOOD AND NANCY WOOD 1. . 2. 3. '. (the "Licensee") - and - THE CORPORATION OF THE MUNICIPAUTY OF KINCARDINE (the "Municipality') The Licensee owns Part Lot 22, Concession A, known municipally as 21 Samona Beach Lane (former Township of Kincardine) Roll No. 41-21-4087 situated in the Municipality of Kincardine, The Municipality owns the road known as the Original Road Allowance or Marine Reserve along the Shore of Lake Huron. A deck owned or controlled by the Licensee, encroaches upon the municipal properly approximately 5.7 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. 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 dete of removal of the Encroachment; or (iii) The date of the sale or transfer of the lands described in paragraph 1 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. .,21 15193961430 PAGE 03 , , . , 82/24/2004 16:02 MUN OF" KWCARDINE . . . Wood 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 aliowance 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: 4. (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. The Licensee shall at all times fully indemnity 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 end 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 tenns as the MlI1icipality may deem advisable and the Licensee hereby covenants and agrees with the Municipality to forthwith pay to the Muníeipality 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. 5. The lìcensee 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 properly 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. 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 properly, and restore the affected area upon receiving notice in writing from the Municipality to do, without being enWed 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 maImer as taxes. ....3/ 02/24/2004 16:02 15193961438 MUN OF KINCARDINE PAGE 04 '. Wood Encroachment Agreement . 7. Nothing contained herein shall be construed as giving to the Licensee anything moN than pgrmi8lilion to oroct and maintain the Em¡roachment until 8uoh time as this agreement expires or is terminated or the removal of such Encroachment may be required as provided. 8. The parties ecknowledge and agree that no length of time of, or enjoyment by the Licensee of the permission granted herein shall enure to, or give any right, title or interest to the Licensee or its successors in title, of the municipal properly or any right to maintain the proposed Encroachment upon the municipal properly, 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 properly 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, wortters, 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 paragraph 1 or any part thereof, with all necessary wortters, plant, equipment and material for the purpose of inspecting, altering or removing the Encroachment from the municipal properly 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 properly 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 acharge or lien on the lands set out in paragraph 1, until fully paid. 13. The Licensee covenants and agrees not to assign or to transfer this agreement to any sucœS$Or 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 l!1at 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 paragraph 1 shall have the benefit of and be liable for performance of the obligations conteined in this agreement. ...4/ . . . '. . . . 02/24/2004 16:02 15193961430 MUN OF KINCARDINE PAGE 05 , . Wood 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 Licenses 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, beir19 administration fees to the MunicipaJìty 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 payments are to be made annually on the properly 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 statlJtes, orders and rules made or to be made by a lawfully constituted authority having jurisdiction therein. 17. This agreement and everything herein contained shall rLW'l with the lands described in paragraph 1 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. j~ W7~: Witness v=- J kPf.- D<\:. Dete ~~~b'Ý ~ ~ .1,~ ~Z'''?- Nancy W Date .3 M.~ðt Date THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE Per: .b.-tf· ~ , Mayor p~T~~)...~~.... "JJ_ CAO ... 82/24/2004 16:02 15193961430 ~ OF KINCA~DINE PAGE 06 - ~.' . " , Wood Encroachment Agreement SCHEDULE 'A' . . 8U~ . ""1'- HUHDH . &.~ . .... "-'. B§i ~ ~ 'aJ ~ Ji: -! '1, -------.- .- ,..,~~. ........ -- .... '....~.. .--.-' .._._.~, "-- i~ O~~¡G¡H,!\.L ~:HO:~[ :~ D/·.D Of~ M.·\f~!¡'¡E f..Li.O\:V,&\j"iCf·: ~ . - - . r----------- _. -"'-'--- I i+- , M2,,,,'t ,.. :-f . " - , I' - t , , 8i::g n-¡¡ i!l,1 ... ...- c:~O~~ ~ I I ~~£~-1 2 ~ !f:>~V)~ !I! C;¡; 1/1 . -.-- .. ~-(nOr 0 L -- - - -- -- !i¡dzO of - -- - :z --- .... .,J_,' o i>-1 '" '" "". ... ...... m~!I! ~ '" c --- --- - --- - !)?'b G -- -- -- -..,- ..... .,-- -- -- -- , 2!õ! ž ' - 'I,).,. '" -, f i. z'" 1..(",. I m_ ~ ....'1· ~ Z . "(~:'- ~ '. ., \1,'\ v\_~<....... 0 iW¡;U '..../~,. Z m , I¡:>.I " ....:. ~ ~ 'i!l~ " · ~ !I ~ I · i . þj I - Ii! - MJ,,,I'C 71' i' a ;::¡ __--1__ J ~ · f "1 I to< PART' I'UN JR-'''' ~ . ....-..-.-...-.."'--."'...- . . . o /04/2004 09:09 FAX u~/U~/U4 15'49 ~4X '014032318 T~E CGiS GROUP I~C ROYAL StJN.W.I.\NCE III 002/003 iii 001 RDY~ SUNALLlANCE ONT AllIO ÙQION 2225 RlUN MILLS I'AlUCWAY MISSISSAU[A' ONTAllIO LSK lS9 PhoJ\c: (905 403-2333 Pu' (90S) .j 3-3324 . Fa'x .. ;' ... i RaI8 Kìng 1- r- Mlch.~II. Rajah .... Marol\ 3, 2004 All CO & B GItIUø Inc. .... 1 1166-456~ .... 2 ~ EnoItIedvn8ntA;~t . + C Aa 1111 U . C......... []..... a..... lit l .;; Hi llaija, W ~ have :reviewed your fax aDd alreecl to all.end tu policy addUa. the fol~owiD&: liT" Corporation of the Municipality of Klllcardlne 15 hereby added with resplct to Premises Liability to cover an encroachment upon wJnlclpality property of approximately 5.1 feet. C "-..,., AI other terms, exclusions and condItions of- the policy apply ·to t s extens Ion." lope tbi. is auffiçe»t. I'le... reel trea to c:&11111' If yOIl have Iny questions or c:~cernl. . 'I ~ yturrr:':., .ll~ p:j reotlal Litles Property Team ,