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HomeMy WebLinkAboutCOD-030-08 CJ. U L~~ REPORT CORPORATE SERVICES DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMIr:rEE ~ June 2, 2008 \2.-e:so\u.-\lon ~PA-~S1-0g Date: Report #: COD-030-08 File#_ By-law # Subject: NEWCASTLE FELLOWSHIP BAPTIST CHURCH - LETTER OF AGREEMENT - LEGAL RIGHT-OF-WAY - EXISTING DRIVEWAY Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report COD-030-08 be received; 2. THAT the Letter of Agreement between the Newcastle Fellowship Baptist Church and the Municipality of Clarington granting the right-of-way of the existing driveway, in perpetuity, be approved subject the approval of the Newcastle Fellowship Baptist Church; and 3. THAT the attached By-law marked Schedule "A" authorizing the Mayor and the Clerk to execute the Letter of Agreement with the Newcastle Fellowship Baptist Church be forw a to Council for approval. Reviewed by: (:= ~~~)l..... Franklin Wu, Chief Administrative Officer Submitted by: David Crome, MCIP, RPP Director of Planning Services MMI\JDBlkm CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T(905)623-3379 F (905)623-4169 REPORT NO.: COD-030-08 PAGE 2 BACKGROUND AND COMMENT As part of the site development process for the Newcastle Branch Library an agreement was negotiated with the Newcastle Fellowship Baptist Church to provide a right-of-way, in perpetuity, over the existing driveway leading from King Avenue, bordering on the library property and running north to the church property. Use of this driveway is necessary to gain access to the library parking lot situated on the north side of the library. Included in the agreement is an understanding that the Municipality will repair, reasonable wear and tear excepted, the drive-way, including snow removal. A copy of the proposed Agreement for information is attached as Schedule "B". At the time of report preparation the representatives for the Church have not seen the proposed agreement. As a result some minor changes may be required to satisfy both parties. Consequently our recommendation is that the agreement be approved subject to the approval of both parties (Municipality and Church). . Upon execution of the agreement and receipt of the required consent by the Church, the Municipality will prepare all documents and pay all costs including GST needed for the registration of the easement on title. Attachments: Attachment 1 - Schedule "A", By-law Attachment 2 - Schedule "B", Agreement Schedule "A" THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2008- Being a By-law to authorize an agreement between the Corporation of the Municipality of Clarington and Newcastle Fellowship Baptist Church, Newcastle, Ontario, agreement for the legal right-of-way of the existing driveway at the Newcastle Fellowship Baptist Church, 200 King Avenue, East, Newcastle, Ontario. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, a letter of agreement between, Newcastle Fellowship Baptist Church, Newcastle, Ontario, and said Corporation; and 2. THAT the contract attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this day of ,2008. By-law read a third time and finally passed this day of ,2008. Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk SCHEDULE "B" May 23, 1008 THIS AGREEMENT made as of this day of June, 2008 BETWEEN: NEWCASTLE FELLOWSHIP BAPTIST CHURCH (hereinafter called the "Church") OF THE FIRST PART - and- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE SECOND PART WHEREAS: A. The Church is the owner in fee simple of the lands and premises located in the former Village of Newcastle which are more particularly described as Part Lot 27, Concession 2, former Township of Clarke (Newcastle) ("Church's Lands"), now in the Municipality ofClarington, Regional Municipality of Durham. They are shown as Parts 1 and 2 on Plan 10R-1857, subject to Instruments No. Nl18456 and N92281 assigned by D452044. B. Part 2 shown on Plan 10R-1857 is subject to a non-exclusive right-of-way reserved by the Grantor by Instrument No. Nl18456 and annexed to the lands and premises shown as Part 3 on Plan 10R-1857. C. The Municipality is the owner in fee simple of Part Lot 27, Concession 2, former Township of Clarke (Newcastle) as described in Instrument No. VN252, now in the Municipality of Clarington, Regional Municipality of Durham ("Municipality's Lands"). D. The Church has agreed to transfer to the Municipality for a nominal consideration an easement or right in the nature of an easement in perpetuity in Part 2 shown on Plan 2 10R-1857 ("Driveway") together with the rights and subject to the duties set out below, with the intent that the benefit of them be annexed to the Municipality's Lands and the burden of them be annexed to the Church's Lands. E. The parties have agreed that the easement or right in the nature of an easement will permit the non-exclusive use of the Driveway for access by pedestrians and vehicles to and from King Street East, Newcastle to the Newcastle Public Library Building, parking area and park located on the Municipality's Lands. F. The Mayor and the Municipal Clerk were authorized to execute this Agreement on behalf of the Municipality by By-law No. 2008-_ passed by the Municipality's Council at its meeting on June _' 2008. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each ofthe parties is hereby acknowledged) the parties covenant and agree with each other as follows: I. (a) The Church shall transfer to the Municipality for a consideration of Two ($2.00 ) Dollars (the receipt of which is acknowledged by the Church) a non-exclusive easement or right in the nature of an easement in perpetuity in, along, on and over the land shown as Part 2 on Plan IOR-1875 for use by the Municipality, its contractors, employees, invitees, licencees and members of the public as pedestrians, operators of or passengers in motor vehicles, including without limitation, emergency vehicles, in order to have ingress to and egress from King Street East, Newcastle, to the Newcastle Public Library Building, including its loading facilities, parking area, and the Municipality's park located or to be located on the Municipality's Lands, together with the right to post on Part 2 on Plan 10R-1875 one or more directional and/or emergency route "No Parking" signs as considered appropriate by the Municipality. (b) Forthwith after the execution of this Agreement, the Church shall deliver to the Municipality the transfer of easement or right in the nature of an easement provided for in paragraph (a), together with the necessary authorization to allow it to be registered on title. The Church consents to the registration of the said easement or right in the nature of an easement on the title to Part 2 on Plan 10R-1875. The Municipality shall prepare all necessary documents and pay all costs and GST incurred by the Municipality in registering the easement or right in the nature of an easement on the title to the said Part 2, including reasonable legal fees incurred by the Church in connection therewith. 2. If the Driveway and/or its entrance to and from King Street East are damaged during the construction of the Newcastle Public Library Building, the 3 Municipality, at its cost, shall reconstruct it or them as soon as is reasonably practicable and in any event no later than the date of the completion of construction of the Newcastle Public Library Building, provided that the Municipality, at its cost, will promptly make temporary repairs to the Driveway and/or entrance to King Street East if it or they are damaged during the said construction so that safe access to and from King Street East is maintained to the Church's Lands for pedestrians and vehicular traffic. 3. The Municipality, at its cost, shall keep in repair, reasonable wear and tear excepted, the Driveway including the said entrance to King Street East and maintain the same, including without limitation, the clearance of snow, to a reasonable standard for the full length of the Driveway, throughout the duration of the easement or right in the nature of an easement transferred to the Municipality pursuant to this Agreement. 4. The Municipality shall provide without cost to the Church a location on the lands owned by the Municipality adjacent to the Driveway for a sign identifying the Church, provided that the size, construction and location of the sign shall be at the discretion of the Municipality, and the cost of the construction and installation of the sign is the exclusive responsibility of the Church. 5. The Municipality, at its cost, shall erect at least one sign which identifies the Church's parking lot as private property and which direct library and park pedestrians and vehicular traffic to the parking area on the Municipality's Lands. For clarity, the number, construction and location of the signs shall be at the discretion of the Municipality. 6. (a) Each party to this Agreement shall be responsible for defending and/or paying any claims and demands made against such party which may arise out of the use of the Driveway pursuant to in the case of the Church, its o\^'nership of the Driveway, and in the case of the Municipality, by the exercise of the rights it has pursuant to the easement or right in the nature of an easement transferred to it by the Church. If a claim is made against one party for which the other party is responsible under this paragraph 6(a), the responsible party shall indemnify and save harmless the other party from all such claims or demands made against it including expenditures made by it in connection with any action brought against it, together with, without limitation, costs incurred by it in the defence of such action and/or the satisfaction of any order of the Court, including the payment of legal expenses that may be awarded by the Court to the claimant against it. If such a claim or demand is made or action is brought against either party, it shall promptly give written notice of the same to the other party. (b) The Municipality shall obtain and maintain comprehensive liability and property damage insurance in amounts and in a form and with an insurer 4 acceptable to the Municipality's Director of Finance for loss suffered as a result of the use of the Driveway by the Municipality, its contractors, employees, invitees, licencees and members of the public pursuant to the easement or right in the nature of an easement referred to in paragraph I (a), for its duration. 7. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality to the Church, or by the Church to the Municipality, such notice shall be mailed by first class prepaid post, mailed by first class registered prepaid post, or delivered to: The Church: Newcastle Fellowship Baptist Church 200 King Street East Newcastle, ON LIB IH5 c/o Bruce Kovack OR, The Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON LlC 3A6 Attention: Purchasing Manager Fax: 905-623-3330 or such other telefax number or address of which any party has notified the other parties in writing. Any such notice if mailed by first class prepaid post or delivered shall be deemed good and sufficient notice under the terms of this Agreement on the day on which it is received, if it is delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) otherwise such notice shall be deemed to be received on the next following business day (excluding Saturdays, Sundays and statutory holidays) after the day on which in fact it was delivered. If such notice is mailed by first class prepaid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the day on which it is mailed. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. 8. This Agreement shall enure to the benefit of and bind the parties hereto and their respective successors and assigns 9. Time shall be of the essence of this Agreement. 5 IN WITNESS WHEREOF each of the parties hereto has affixed its corporate seal by the hands of its proper officers on the date inscribed on the first page of this Agreement. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Jim Abernethy, Mayor Patti 1. Barrie, Municipal Clerk We have authority to bind the Corporation NEWCASTLE FELLOWSHIP BAPTIST CHURCH Per: Bruce Kovack, Chairman of the Board I have authority to bind the Corporation.