HomeMy WebLinkAbout92-210
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AMENDED BY
a?.~ Q::2~REPEALED BY
BY.LAW #~~d.......-r.O~ - d4
aY.LAW #.&.-r.-.......L
CORPORATION OF THE TOWN OF NEWCASTLE
BY-LAW 92- 210
Being a by-law to authorize the execution of an
encroachment agreement between the Corporation of the
Town of Newcastle and the Estate of Frederick Milton
Samis and Verna Marion Samis
The Corporation of the Town of Newcastle hereby enacts as follows:
1. That the Mayor and Clerk are hereby authorized to execute on
behalf of the Corporation of the Town of Newcastle, and seal
with the Corporate Seal, an Encroachment Agreement between the
Estate of Frederick Milton Samis and Verna Marion Samis, in
the form attached hereto as Schedule "A".
2. That Schedule "A" attached hereto forms part of this by-law.
By-law read a first and second time this 13th day of October, 1992.
By-law read a third and final time this 13th day of October, 1992.
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MAYOR
CLERK
SCHEDULE "A"
THIS AGREEMENT made as of the
day of
,199 .
BET WEE N:
THE CORPORATION OF THE TOWN OF NEWCASTLE
(hereinafter referred to as' the "Town")
-and-
ESTATE OF FREDERICK MILTON SAMIS
AND VERNA MARION SAMIS
(hereinafter referred to as the "Licensee")
WHEREAS:
A. . The Licensee is the registered owner of the Lands in the Town of Newcastle
described in Schedule "A" annexed hereto, which lands are municipally known as
1648 Conc"ession Road 9 (hereinafter ,referred to as "the Property"); .
B.
The public highways known as Cone. Road 9 and Enfield Road
of the road system under the jurisdiction of the Town;
forms part
C. The Licensee has made application to the Town for permission to maintain an
encroachment within the road allbwance of Cone. Road 9 and Enfield Road
(hereinafter referred to as' the "Road Allowance") in the mariner and to the extent
as described in Schedule "B" (hereinafter referred to as the "Encroachments");
D. The Encroachments are to be erected and maintained in accordance with. the
Reference. Plan No. prepared by , Ontario Land
Surveyor, dated , and annexed hereto as Schedule" ";
E. The Town has granted to the Licensee permission to erect and maintain the
Encroachments upon the condition that the Licensee enters into and executes this
Agreement, which the Lice~.ee:'has agreed to do; and .
F.
The making of this Agreement authorized by By-law #92~
13th day of October , 1992.
passed on the
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises, and of the covenants and ag'reements hereinafter contained, the parties agree as
follows: .
1. The Town hereby grants to the Licensee permission to erect and maintain the
Encroachments ~ntil such time as the removal of the Encroachments is required as
hereinafter provided (hereinafte~, referred to as the "Licence").
.. o.
2. The Licensee will, at' its own cost,. charge and expense and to the satisfaction of the
Director of Public W or~ of th~ Town (hereinafter referred to as "the Director")
keep and maintain the Encroachments in good and proper repair and condition.
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3. The Licensee will, at its own cost, charge and expense and to the satisfaction of the
Director, alter or remove the Encroachments from the Road Allowance forthwith
after being given thirty (30) days' notice in writing from the Director to do so, before
the date specified by such notice without being entitled to any compensation
whatsoever for such alteration or removal, and if the Licensee fails to alter or
remove the said Encroachments as requeste9 by the Director, the Town may remove
or alter the same and restore. the Road Allowance, all at the cost, charge and
expense of the Licensee and the ~ertificate of the Director as to the cost of such
removal or alteration or restoration shall be final and binding upon the Licensee and
the Town may recover the same from the Licensee in any court of competent
jurisdiction, as a debt due and owing to the Town.
4. The Licensee will, from time to time and at all times hereafter, well and truly save,
defend and keep harmless and fully indemnify the Town and any other Corporations,
Boards, Commissions or Bodies having utilities or services which may in any manner
be affected by the erection or maintenance of the Encroachments from and against
all actions, suits, claims and demands whatsoever which may be brought against or
made upon any or all of them and from and against all loss, costs, charges, damages
and expenses whatsoever which'. may be sustained, incurred or paid by any or all of
them, regardless or whether or not they be parties hereto, for or by reason of or
on account of the permission h~reby granted to the Licensee and/or the exercise by
the Licensee of such permission and/or the erection and maintenance of the
Encroachments and appurtenances thereto and/or anything in any manner relating
thereto, including, but without limiting the generality of the foregoing, all actions,
suits, claims and demands which may arise as a result of water dripping from the
Encroachments onto the said public sidewalk and/or highway because of the lack of
adequate drain connections affixed to the Encroachments, and that in case any
action, suit, claim or demand be brought against or made upon the Town or any of
its respective officers, servants,. workers or employees, the Town may, upon written
notice to the Licensee, and if not forbidden by the Licensee within fourteen days
thereafter, if the Town shall see fit, compromise. any such actions, suits, claims or
demands on such terms as the Town shall see fit, and the Licensee shall thereupon
, forthwith pay to the Town the sum or sums to be paid together with such sum as
shall represent the reasonable costs of the Town or its solicitors in defending or
settling any such actions, suits, claims or demands, but if the Licensee forbids such
compromise within the said period, or if no such compromise be affected, then the
Licensee may be made party to such actions, suits, claims or demands and will in
every case fully indemnify the -Town, its officers, servants, workers or employees.
5. The Licensee shall facilitate the 'repair, relocation and construction of. any and all
utilities over or under the sai~: Encroachments, as may be required from time to
time by the Director by wr~ttennotice given to the Licencee.
6. 1 he Licensee shall obtain and maintain public liability insurance (personal injury and
property damage) covering the maintenance of the Encroachments in the amount of
at least Five Million Pollars .($5,000,000.00) for all damages arising out of an
accident or occurrente or series of accidents or occurences naming the Town as
additional named insured and co~iaining a cross-liability endors'ement all satisfactory
to the Treasurer of the Town.. The Licensee shall deliver to the Treasurer of the
Town, from time to time when requested, a copy of such insurance policy certified
and signed by the insurer. The issuance of such policy or poicies of insurance or the
acceptance of it or them by. the Town shall not be construed to relieve the Licencee
from responsibility for other or larger claims for which the Licencee may be held
responsible. '
7. If the Licensee shall transfer or"sell the Property or any portion thereof then i) the
.Licensee shall forthwith notify theTown in writing of such sale or transfer, together
with the name and address of the transferee or purchaser and ii) this Licence shall
terminate.
8.
9.
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10.
Without derogating from parag!-aph 3 hereof, if the Town passes regulations which
would have the effect of requiting removal of the Encroachments over the Road
Allowance, the Licensee, upon -re.ceipt of no~ce in writing from the Director to do
so, will remove the Encroachments and appurtenances thereto from, the Road
Allowance and restore the Road Allowance, all to the satisfaction of the Director
before the date specified 'in such notice, without being entitled to any compensation
whatsoever for such removal, and if the Licensee fails to remove the Encroachments
and appurtenances thereto and restore the Road Allowance as herein, provided, the
Town may remove same at the cost, charge and expense of the Licensee and the
certificate of the Director as to the cost of such removal' shall be final and binding
upon the Licensee and the Town may recover such costs from the Licensee in any
court of competent jurisdiction as a debt due and owing to the Town.
The Encroachments shall be co.nstructed, installed, occupied, and maintained in such
a manner so as to ensure thai there will be no interference with pedestrian or
vehicular traffic and that the Une'ofsight of any. traffic sign or signal is not obscured.
The construction, installation;, occupation, operation and maintenance of the
Encroachments shall comply with all applicable statutes, by-laws and regulations.
The Licensee will pay to the Town such fee or fees for the privilege hereby granted
to maintain the Encroachments as may be hereafter from time to time prescribed
by the Council of the Town to be' .paid by all owners of encroachments which project
in whole or in part over any public highway, street or lane in the Town of Newcastle
for the privilege of maintaining such encroachments.
All such sums and costs so paid, sustained or incurred by the Town as aforesaid, and
all such annual fees or minimum fees, or further or other fees to be paid by the
Licensee as aforesaid, shall form and constitute a charge or lien on the Property until
fully discharged by payment thereo~.
11.
12.
13.
The Town, 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 reason'able times during the currency of this Agreement, to
enter in and upon the Property and/or the Encroachments or any part thereof, with
all necessary people, plant equipment and material for the purposes of inspecting ~he
Encroachments or removing the same' from the Road Allowance as hereinbefore
provided; provided that such inspection shall not free or relieve the Licensee in any
way whatsoever from the liability under the covenant hereinbefore set forth to keep
and maintain the Encroa<:bments in good an~ proper repair and condition.
Any notice, request, communication or demand under this Licence shall be in writing
and shall be considered properly delivered when given or served personally or by
registered m~l to the Town at 40 Temperance Street, Bowmanville, Ontario,
Attention: Director of Public Works and the Licensee at
Attention: . . Such notice, request or demand shall be
deemed to have. been delivei~d on the date it is delivered if given or served
personally or on the third day following mailing, if it is mailed. If at any time notice
is delivered by mail and there is any cessation (whether anticipated or existing) of
mail service affecting the delivery of s\lch notice, the notice shall not ,be deemed to
have been delivered until five (5) business days after the date that normal mail
service is restored.
14.
15.
This Agreement may be registered against title to the Property and the cost of
preparation and registration of the same shall be paid' by the Licensee. The
Licensee shall deliver to the Town, in registerable .form and at the Licensee's cost,
postponements of any encum.~r~ces registered against title to the Property.
. .
Nothing herein contained shall' he COnstrued as giving to the Licensee anything more
than. permission to erect on an4 attach the Encroachments to the Road Allowance
and to maintain the same until ~uch .time as the removal of the Encroachments from
the Road Allo~ance may be required as hereinbefore provided.
16.
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17. This Agreement and everything contained herein shall enure to the benefit of and
be binding upon the parties hereto and their respective (where applicable) heirs,
executors, administrators, succ~~sors and assi~ns.
18. This licence shall be governed by and interpreted in accordance with the laws of the
Province of Ontario and the parties submit to the jurisdiction of the courts of the
Provlnce of Ontario in order t9' enforce this licence.
. .
II ~ WITNESS WHEREOF, this licence has been duly executed by the parties hereto
as of the day and year first above written. .
THE CORPORATION OF THE TOWN
OF NEWCASTLE
By:
. And:
WITNESS:
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. WITNESS:
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Part
or Pronertv
Location on
Propertv
5
SCHEDULE "B"
Approximate
Size
Height or
Bottom
Above Grade
),
Maximum
Encroachment