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HomeMy WebLinkAbout05 038 agree encroach johnston e e e e - THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE NO. 2005 - 038 BEING A BY-LAW TO PERMIT AN ENCROACHMENT ONTO MUNICIPAL PROPERTY FOR THE INSTALLATION OF A DIRECTIONAL SIGN AT THE INTERSECTION OF KINCARDINE AVE. AND PENETANGORE ROW, MUNICIPALITY OF KINCARDINE WHEREAS Section 9 (3) of The Municipal Act, 2001, S.O. 2001, c. 25, as amended, authorizes municipalities to pass by-laws respecting matters and imposing conditions as a requirement for obtaining permits; AND WHEREAS the Corporation of the Municipality of Kincardine has been requested to enter into an agreement to allow an encroachment onto municipal property to install a directional sign at the intersection of Kincardine Avenue and Penetangore Row. NOW THEREFORE the Corporation of the Municipality of Kincardine ENACTS as follows: 1. That Karen Johnston and Dale Johnston, owners and operators of Lakefront B & B located at 328 Goderich Street, (former Town of Kincardine), Municipality of Kincardine. are hereby allowed to maintain and use a portion of municipal property for the installation of a directional sign at the intersection of Kincardine Avenue and Penetangore Row, subject to the Encroachment Agreement attached to this by-law as Schedule "A". That the Mayor and CAO be authorized to sign, on behalf of The Corporation of the Municipality of Kincardine the Encroachment Agreement with Karen Johnston and Dale Johnston. 2. 3. This by-law may be cited as the "Johnston Lakefront B & B Encroachment Agreement By-law". READ a FIRST, SECOND and THIRD time and FINALLY PASSED this 6111 day of April,2005. )blot _£. ~ Mayo(" Clerk . . ~ , o This is Schedule ft L · to~-Law No.~~sed theIL-day ofIJP«/0 2~ ENCROACHMENT AGR~ THIS AGREEMENT made thiS~~d~L 2cÞ ~ . BETWEEN: . . . KAREN JOHNSTON AND DALE JOHNSTON (the "Licensee") -and- THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Municipality") 1. The Licensee owns Lots 29 and 30, Plan 347, known municipally as 328 Goderich Street, (former Town of Kincardine) Roll No. 22-6-246 situated in the Municipality of Kincardine. 2. The Municipality owns the roads known as Kincardine Avenue and Penetangore Row. 3. The Licensee has requested the installation of a directional sign to be installed at the intersection of Kincardine Avenue and Penetangore Row as shown in attached Schedule "An. The Municipality agrees to permit the Encroachment 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: 4. 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) (Iii) The date of removal of the Encroachment; or 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 , . · · . · ,. .' Johnston 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; (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 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. 5. 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. 6. 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. 7. The parties acknowledge 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 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. ...13 . f . . Johnston Encroachment Agreement · 8. 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. 9. 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. · 10. 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 paragraph 1, until fully paid. 11. 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 paragraph 1 shall have the benefit of and be liable for performance of the obligations contained in this agreement. 12. 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. 13. 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 payments are to be made annually on the property tax bills. 14. 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. 15. This agreement and everything herein contained shall run 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. · 16. This agreement shall be read with all changes of gender or number required by the context. ...14 " , . Johnston Encroachment Agreement 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. .~ ~ ess . . . {11rll . (10 ~ / Date ~... a n Johnston l'(Iwd( b/ \ Kf, v¡z/ - Date Dale nston 1//;2 c:<::J 5 THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE Per: / ayor ( r: ~ <:II..- ~~ AO '":... 4 .¡.. Johnston Encroachment Agreement SCHEDULE 'A' . . . .