HomeMy WebLinkAboutWD-73-92 Addendum #2 THE CORPORATION OF THE TOWN OF NEWCASTLE
REPORT
Meeting: COUNCIL File #
Date: JANUARY 25, 1993 Res. #
ADDENDUM #2 By-Law#
Report#:___W11-_7_3_-_9_2_ File #: D9 . 31. 01, D8 . 31. 01
Subject: ENCROACHMENT AGREEMENTS
1. ESTATE OF FREDERICK MILTON SAMIS AND VERNA MARION SAMIS
2 . ESTATE OF JESSIE MARIE LLOYD
Recommendations:
It is respectfully recommended that Council approve the following:
1. THAT Addendum #2 to Report WD-73-92 be received;
2 . THAT authorization to execute an encroachment agreement with
the Estate of Frederick Milton Samis and Verna Marion Samis as
set out in Report WD-73-92 (Attachment No. 1) be amended as
recommended by Dennis Hefferon, Town Solicitor, in his
correspondence to W.A. Evans, Director of Public Works, dated
January 25, 1993, (Attachment No. 2) ;
3 . THAT authorization to execute an encroachment agreement with
the Estate of Jessie Marie Lloyd as set out in Report WD-87-92
(Attachment No. 3) be amended as recommended by Dennis
Hef f eron, Town Solicitor, in his correspondence to W.A. Evans,
Director of Public Works, dated January 25, 1993, (Attachment
No. 2) ;
4 . THAT By-law 93-24, (Attachment No.4) being a by-law to repeal
By-laws 92-210 and 92-222, be passed;
REPORT ADDENDUM WD-73-92 PAGE 2
5 . THAT By-law 93-25, (Attachment No. 5) 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 be passed;
6 . THAT By-law 93-26 (Attachment No. 6) being a by-law to
authorize the execution of an encroachment agreement between
the Corporation of the Town of Newcastle and Floyd Lloyd be
passed; and
7 . THAT Mr. Ronald Worboy, Solicitor, and Mr. J.A. Yanch,
Solicitor, be advised of Council 's decision and provided with
a copy of the amended encroachment agreement.
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REPORT
1.0 ATTACHMENTS
No. 1: Report WD-73-92
No. 2 : Correspondence dated January 25, 1993, from Dennis
Hefferon, Town Solicitor
No. 3 : Report WD-87-92
No. 4 : By-law 93-24
No. 5 : By-law 93-25
No. 6 : By-law 93-26
2 . 0 BACKGROUND
2 . 1 At its meeting of October 13, 1992, Council passed Resolution
#C-670-92 and By-law 92-210 was approved.
"THAT Addendum to Report WD-73-92 be received;
THAT Report WD-73-92 be lifted from the table;
THAT Report WD-73-92 be received;
. . . /3
REPORT ADDENDUM WD-73-92 PAGE 3
THAT, upon receipt of a "registered" reference
plan, Council pass a by-law authorizing the
Mayor and Clerk to enter into an Encroachment
Agreement, shown as Schedule "A" to the
proposed by-law (Attachment No. 3 to Report
WD-73-92) , with the Estate of Frederick Milton
Samis and Verna Marion Samis to permit the
house to encroach onto the road allowance
between Lots 30 and 31, Concession 9 , in the
former Darlington Township;
THAT the applicant be responsible for all
costs, such as survey and legal costs,
associated with this agreement;
THAT the Town's solicitor be directed to take
all actions necessary to complete the
transaction; and
THAT Mr. Ronald F. Worboy, Solicitor for the
applicant, be advised of Council's decision. "
2 . 2 At its meeting of November 23, 1992, Council passed Resolution
#GPA-724-92 and By-law 92-222 was approved.
"THAT Report WD-87-92 be received;
. . . /4
REPORT ADDENDUM WD-73-92 PAGE 4
THAT Council pass a by-law authorizing the
Mayor and Clerk to enter into an Encroachment
Agreement, shown as Schedule "A" to Report WD-
87-92 to the proposed by-law (Attachment No. 3
to Report WD-87-92) , with the Estate of Jessie
Marie Lloyd to permit the house and a frame
building to encroach onto the road allowance
between Lots 30 and 31, Concession 8, (Enfield
Road) in the former Township of Darlington;
THAT the applicant be responsible for all
costs, such as survey and legal costs,
associated with this agreement;
THAT the ,Town's solicitor be directed to take
all actions necessary to complete the
transaction; and
THAT Mr. J.A. Yanch, LL.B. , Solicitor for the
applicant, be advised of Council's decision. "
2 . 3 In processing the subject encroachment agreements for
execution difficulty has been encountered as stated in
correspondence from Dennis Hefferon in Attachment No. 2 . Mr.
Hefferon reviewed the standard form encroachment agreement
authorized to be made with the Estate of Frederick Milton
Samis and Verna Marion Samis, and the Estate of Jessie Marie
Lloyd in Reports WD-73-92 and WD-97-92, respectively.
2 .4 By-law 92-210 authorized the encroachment agreement with the
Estate of Frederick Milton Samis and Verna Marion Samis; and,
By-law 92-222 authorized the encroachment agreement with the
Estate of Jessie Marie Lloyd. By-law 93-24 (Attachment No. 4)
repeals By-laws 92-210 and 92-222 .
. . . /5
REPORT ADDENDUM WD-73-92 PAGE 5
3.0 REVIEW AND COMMENT
3 . 1 The standard form of Encroachment Agreement (Attachment No. 2 )
has been revised and the changes may be summarized as follows :
1 . The recitals have been amended to annex a true copy of
the authorizing by-law as a Schedule. Recent Registry
practise has changed such that they will not permit
registration of a document which refers to an
unregistered document.
2 . The minimum amount of insurance has been reduced to
$1,000,000 .00 .
3 . The insurance provision has been amended so that where a
residential property is unoccupied and the owner is
unable to obtain insurance, then the requirement for
insurance is waived upon application by the owner to the
Town's Treasurer but only during such time as the
residential property is unoccupied and the owner is
unable to obtain the insurance. We have spoken with the
Town's insurance broker who has confirmed that waiving
the insurance requirement will not affect the Town's
coverage under the Town's policy of liability insurance.
4 . The termination provision has been amended so that it
terminates 30 days after the sale or transfer of the
property unless the new owner enters into an Agreement to
assume the owner's obligations under the Encroachment
Agreement. After an assumption agreement is made, the
previous owner will not have any further obligation under
the Encroachment Agreement.
. . . /6
REPORT ADDENDUM WD-73-92 PAGE 6
3 .2 By-laws 93-25 and 93-26 (Attachment Nos . 5 and 6) to -approve
execution of the amended encroachment agreements are set out
for Council 's approval.
3 . 3 By-law 92-222 authorized the execution of an encroachment
agreement with the Estate of Jessie Marie Lloyd. Mr. Yanch,
Solicitor, requested that the encroachment agreement be made
with Floyd Lloyd. By-law 93-26 authorizes the encroachment
agreement to be made with Floyd Lloyd.
Respectfully submitted, Recommended for presentation
to the Committee,
Z
--------------------- i -, � s- -----
Walter�A. Evans, P.Eng. , Lawrence E. Kots f,
Director of Public Works Chief Administr ive Officer
JCO*WAE*hj
January 25, 1993
Attachments
UNFINISHED BUSINESS o o
THE CORPORATION OF THE TOWN OF NEWCASTLE
REPORT
Meeting: COUNCIL File#
Date: OCTOBER 13, 1992 Res. #
ADDENDUM
By-Law#
Report#: WD-73-92 File#: D. 09 . 31.01
Subject: REQUEST FOR ENCROACHMENT AGREEMENT ESTATES OF FREDERICK
MILTON SAMIS AND vERNA MARION SAMIS PART OF LOT 31,
CONCESSION 9, TOWN OF NEWCASTLE
Recommendations:
It is respectfully recommended that Council approve the following:
1. THAT Addendum to Report WD-73-92 be received;
2 . THAT Report WD-73-92 be lifted from the table and received;
and
3 . THAT the Recommendations in Report WD-73-92 be approved.
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REPORT
1.0 ATTACHMENTS
No. 1: Report WD-73-92
2.0 BACKGROUND
2 . 1 Mr. Worboy appeared as a delegation and expressed his concern
with respect to 2 items in the proposed encroachment
agreement:
1. That the permit to encroach is not transferrable with the
sale of the property
2 . That the Town is required to give the property owner only
s- 30 days notice to remove the encroachment
�.: At its meeting of October 13, 1992, the General Purpose and
Administration Committee passed the following resolution:
• •
/2 ATTACHMENT N0. 1
ADDENDUM WD-73-92
• 'f
THE CORPORATION OF THE TOWN OF NEWCASTLE
REPORT
e mg; GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File #
ate: OCTOBER 5, 1992 Res. #
al: rt#:__ t^7D-7 — File#: D.,09 . 31 ,01 By-Law#
JC'^ct: REQUEST FOR ENCROACHMENT AGREEMENT
ESTATE OF FREDERICK MILTON SAMIS
AND VERNA MARION SAM-IS
PART OF LOT 31, CONCESSION 9
TOWN OF NEWCASTLE
commendations:
L is respectfully recommended that the General Purpose and
administration Committee recommend to Council the following:
THAT Report WD-73-92 be received;
THAT, upon receipt of a "registered" reference plan, Council
pass a by-law authorizing the Mayor and Clerk' to enter into,
an Encroachment Agreement, shown as Schedule "A" to the
proposed by-law (Attachment No. 3) , with the Estate of
Frederick Milton Samis and Verna Marion Samis to permit the
house to encroach onto the road allowance between Concessions
8 and 9 and on the road allowance between Lots 30 and 31,.
Concession 9 , in the former Darlington Township;
THAT the applicant be responsible for all costs, such as -
survey and legal costs, associated with this agreement;
THAT the Town's solicitor be directed to take all actions -
necessary to complete the transaction; and
L»
4 THAT Mr. Ronald F. Worboy, Solicitor for the applicant, be
advised of Council 's decision.
• ATTACHMENT #1
ADDENDUM WD-73-92
..............
TEl£PN 8 ONE(416)723-229
�ON.A LD F. WORBOY, B.A ,LT.�.
�xrri,�ter,�alicitar
P.O.BOX 21
1S3 SIMCOE STREET NORTH
OSIidwA, ONTARIO
UN 7Kg
November 12th, 19911_•r
AC'',
Corporation of the Town of Newcastle,
40 Temperance Street, - _.__ _
Howmanville, Ontario. VFIL�E-
Verna �t` if Attention: Ms. ' Jan O'Neill Dear Sirs:
Re: Estate of Frederick Milton Samis and Marion Samis, Part of Lot 31, T
Concession 9, Town of Newcastle
Regional Municipality of Durham
File No. 101670/90
Please be advised that the writer is solicitor for the Estate
of Frederick Milton Samis and Verna Marion Samis_
I enclose copy of Plan 1OR3970 which is an R Plan recently
deposited in the Registry Office.
The R. Plan shows the location of the home of Mrs. Samis in
Part 1 and you will note that a portion of the home encroaches on
the road allowance between Concession 8 and 9 and further on the
? ,road allowance between Lots 30 and 31, Concession 9.
The subject home was constructed in or about 1877. The home
has been of great historical significance in the Hamlet of Enfield
as prior to the occupation by Mr. and Mrs. Samis it was the store
°°and post office.
. . . . . . . . . . . . . .2
ATTACHMENT N0. 1
WD-73-92
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0.09 m
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1.74 m
2 storey frame house '
1.54 m
street line (5.1•)
1.02 m 1.02 m
(3.4')
CONCESSION ROAD 9
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OI} ROAO 9 ( j
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SITE
DRAWN BY: J. M DATE: MAY 1992
ATTACHMENT N0. 2
I WD-73-92
P,
� ,� � ,
SCHEDULE
THIS AGREEMENT rrade as of the day of , 199 .
BETWEEN:
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 Concession Road 9 (hereinafter referred to as "the Property");
B. The public highways known as Conc. Road 9 and Enfield Road forms part
of the road system under the jurisdiction of the Town;
C. The Licensee has made application to the Town for permission to maintain an
encroachment within the road allowance of Conc. 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 Licensee has agreed to do; and
F. The making of this Agreement authorized by By-law #92- passed on the
13th day Of October 1992.
NWY THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises, and of the covenants and agreements hereinafter contained, the parties agree as
follows:
1. The Town hereby grants to the Licensee permission to erect and maintain the
Encroachments until such time as the removal of the Encroachments is required as
hereinafter provided (hereinafter referred to as the "Licence").
2.r,-
The Licensee will, at its own cost, charge and expense and to the satisfaction of the
Director of Public Works of the Town (hereinafter referred to as "the Director")
keep and maintain the Encroachments in good and proper repair and condition.
3
8. Without derogating from paragraph 3 hereof, if the Town passes regulations which
would have the effect of requiring removal of the Encroachments over the Road
Allowance, the Licensee, upon receipt of notice 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 t' remove the Encroachments
and appurtenances thereto and restore the Road Allowance as the
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.
9. The Encroachments shall be constructed,installed,occupied,and maintained in such
a manner so as to ensure that there will be no interference with pedestrian or
vehicular traffic and that the line of sight of any traffic sign or signal is not obscured.
10. The construction, installation, occupation, operation and maintenance of the
Encroachments shall comply with all applicable statutes, by-laws and regulations.
11. 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.
12. 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 thereof.
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 reasonable times during the currency of this Agreement, to
enter in and upon the Property and/or the Encroachments or any part thereof,kith
all necessary people, plant equipment and material for the purposes of inspecting the
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 Encroachments in good and proper repair and condition.
14. Any notice, request,communication or demand under this Licence shall be in ,ritin,
and shall be considered properly delivered when given or served personally or by
registered mail 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 delivered 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 ser"ice affecting the delivery of such notice, the notice shall not be deemed to
have been delivered until five (5) business days after the date that normal mail
se-ice is restored.
15. Tt[is A`,reet1ent may be registered against title to the I'Fopert� and the cost of
preparation and re'istra[ion 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,
i ; post o:ements of any encumbrances registered against title to the Property.
i
16. Aotl'Inc herein contained shall be construed as giving to the Licensee anyihing more
than permission to erect on and attach the Encroachments to the Road :Mlowalice
and to maintain the same until such time as the removal of the Encroachments from
t;ie Road Allowance may be required as hereinbefore provided.
i V
az.,
5
SCHEDULE W
Height of
part Location on Approximate Bottom Maximum
of Pronert• Pto� Slu Above Grade Encroachment
k:8
sa
naa -
Shibley Righton
Barristers & Solicitors
RICHARD E.SHIBLEY,Q.C. RUPERT F.RIGHTON,Q.C. HAROLD H.ELLIOTT,Q.0
DENNIS C.HEFFERON DONALD K.ROBINSON,Q.C. RICHARD E.ANKH,Q.C. RECEPTION:(416)363-9381
BARRY S.WORTZMAN,Q.C. LESLIE S.MASON TIMOTHY W.SARGEANT,Q.C. VOICEMAIL:(416)363-3.425
DEZ WINDISCHMANN JOHN P.BELL MICHAEL FTIZPATRICK,Q.C. EXTENSION 461
GEORGE CORN PETER H.SMITH V.ROSS MORRISON
LINDA S.BOHNEN ALAN L.BROMSTEIN JOHN C.SPEARN FAX:(416)363-5339
MICHAEL C.BIRLEY PETER C.WILLIAMS PAUL E.McINNIS
PETER G.NEILSON CLIFFORD 1.COLE JONATHAN H.FLANDERS
CHARLES SIMCO THOMAS A.STEFANIK BARBARA R.C.DOHERTY
WILLIAM L.NORTHCOTE JAMES ROSSTTER HELDER M.TRAVASSOS BOX 32-401 BAY STREET
PETER V.RAYTEK J.JAY RUDOL.PH CYNTHIA J.GUNN TORONTO,CANADA
MARTIN J.HENDERSON NICHOLAS T.MACOS WARREN S.RAPOPORT M5H 2ZI
RICHARD E.COLES MARTIN PETERS ALEXANDER P.TORGOV
CHARLES M.GASTLE PHILIP P.HEALEY SHEILA M.QUIGLEY
CHARLES G.T.WIEBE TIMOTHY J.HILL J.PAUL R.HOWARD
WADE D.JAMIESON LEONARD D.RODNESS SANDRA E.DAWE SUITE 1800
LINDA J.GODEL JANIS E.INGRAM CHRISTINE M.SILVERSIDES THE SIMPSON TOWER
SALVATORE J.P.FRISINA THOMAS McRAE JAMES W.BUSSIN
KAREN L.McMASTER
MICHAEL GORDON(1969-1991)
COUNSEL
MARTIN L.O'BRIEN,Q.C. BARRY D.LIPSON,Q.C.
January 25, 1993
File No. 8801183
BY TELECOPIER AND
HAND DELIVERED
Mr. Walter Evans
Director of Public Works
Town of Newcastle
40 Temperance Street
Bowmanville, Ontario
L1C 3A6
Dear Mr. Evans:
Re: Standard Form of Encroachment Agreement
We have been advised that some parties who have requested that the Town enter
into Encroachment Agreements with them have expressed concern about certain provisions
contained in the Town's standard form of Encroachment Agreement. Specifically, some
parties have had difficulty obtaining insurance in the amount required by the Agreement.
Additionally, the existing termination provisions in the Agreement may be of concern to
those wishing to sell their property with the benefit of the Encroachment Agreement.
We enclose a revised form of Agreement, amended to address the foregoing
concerns. The changes may be summarized as follows:
1. The recitals have been amended to annex a true copy of the authorizing by-
law as a Schedule. Recent Registry practise has changed such that they will
not permit registration of a document which refers to an unregistered
document.
2. The minimum amount of insurance has been reduced to $1,000,000.00.
We have spoken with a consultant to the insurance industry who has confirmed that:
ATTACHMENT N0. 2
WD-73-92
S hibley Righton
-2-
(1) although insurance in the amount of $5,000,000.00 is available, home
owners cannot obtain it as an endorsement on their standard home
owners policy; and
(2) liability insurance may not be readily available when the property is
unoccupied particularly in a rural setting.
3. The insurance provision has been amended so that where a residential
property is unoccupied and the owner is unable to obtain insurance, then the
requirement for insurance is waived upon application by the owner to the
Town's Treasurer but only during such time as the residential property is
unoccupied and the owner is unable to obtain the insurance. We have spoken
with the Town's insurance broker who has confirmed that waiving the
insurance requirement will not affect the Town's coverage under the Town's
policy of liability insurance.
4. The termination provision has been amended so that it terminates 30 days
after the sale or transfer of the property unless the new owner enters into an
Agreement to assume the owner's obligations under the Encroachment
Agreement. After an assumption agreement is made, the previous owner will
not have any further obligation under the Encroachment Agreement.
We recommend that the Town's standard form of Encroachment Agreement be
amended as follows:
(1) Recital F - Amend to annex a true copy of the authorizing by-law;
(2) Paragraph 6 - Add a new sentence as follows:
"If i) the Property is used for residential purposes and ii) the
Property is temporarily unoccupied and iii) following the
application of the Licensee to the Town's Treasurer, the
Treasurer is of the opinion that insurance required to be
obtained pursuant to this paragraph is not commercially
available at normal consumer rates for home owner's insurance,
the Licensee shall not be required to maintain such insurance
during the period of time that the Property is unoccupied."
(3) Paragraph 7 - Amend it to read:
"If the Licensee shall transfer or sell the Property or any portion
thereof then i) the Licensee shall forthwith notify the Town in
writing of such sale or transfer, together with the name and
address of the transferee or purchaser and ii) this Licence shall
terminate on the expiry of the period of thirty (30) days
Shibley Righton
-3-
following such sale or transfer unless such transferee or
purchaser, within the aforesaid thirty (30) days, enters into an
agreement with the Town to assume the obligations of the
Licensee pursuant to the Licence. On the making of the
aforesaid assumption agreement with the Town, the transferee
or purchaser shall be deemed to be the Licensee for the
purposes of this Licence and the transferor or vendor of the
Property shall have no further obligation under this Licence."
I also recommend that the authority to execute Encroachment Agreements,
previously granted by Council, also be amended to give effect to the foregoing. Draft by-
laws to accomplish this end are being forwarded to the Council under separate cover.
Yours truly,
SHIBLEY RIGHTON
DH/bg Dennis Hefferon
Enclosure
THIS AGREEMENT made as of the day of , 199
BETWEEN:
THE CORPORATION OF THE TOWN OF NEWCASTLE
(hereinafter referred to as the "Town")
-and-
(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
(hereinafter referred to as "the Property");
B. The public highway(s) known as forms part of the road
system under the jurisdiction of the Town;
C. The Licensee has made application to the Town for permission to maintain an
encroachment within the road allowance of
(hereinafter referred to as the "Road Allowance") in the manner 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
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 Licensee has agreed to do; and
F. The making of this Agreement authorized by By-law #93- passed on the
day of , 199, a true copy of which is annexed as Schedule "C".
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises, and of the covenants and agreements hereinafter contained, the parties agree as
follows:
1. The Town hereby grants to the Licensee permission to erect and maintain the
Encroachments until such time as the removal of the Encroachments is required as
hereinafter provided (hereinafter referred to as the "Licence").
2. The Licensee will, at its own cost, charge and expense and to the satisfaction of the
Director of Public Works of the Town (hereinafter referred to as "the Director")
keep and maintain the Encroachments in good and proper repair and condition.
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 requested by the Director,the Town may remove
or alter the same and restore the Road Allowance, all at the cost, charge and
2
expense of the Licensee and the certificate 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 hereby 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 said Encroachments, as may be required from time to
time by the Director by written notice given to the Licensee.
6. The 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 One Million Dollars ($1,000,000.00) for all damages arising out of an
accident or occurrence or series of accidents or occurrences naming the Town as
additional named insured and containing a cross-liability endorsement 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 policies of insurance or
the acceptance of it or them by the Town shall not be construed to relieve the
Licensee from responsibility for other or larger claims for which the Licensee may
be held responsible. If i) the Property is used for residential purposes and ii) the
Property is temporarily unoccupied and iii)following the application of the Licensee
to the Town's Treasurer, the Treasurer is of the opinion that insurance required to
be obtained pursuant to this paragraph is not commercially available at normal
consumer rates for home owner's insurance, the Licensee shall not be required to
maintain such insurance during the period of time that the Property is unoccupied.
7. If the Licensee shall transfer or sell the Property or any portion thereof then i) the
Licensee shall forthwith notify the Town in writing of such sale or transfer, together
with the name and address of the transferee or purchaser and ii) this Licence shall
terminate on the expiry of the period of thirty (30) days following such sale or
transfer unless such transferee or purchaser, within the aforesaid thirty (30) days,
enters into an agreement with the Town to assume the obligations of the Licensee
pursuant to this Licence. On the making of the aforesaid assumption agreement with
the Town, the transferee or purchaser shall be deemed to be the Licensee for the
purposes of this Licence and the transferor or vendor of the Property shall have no
further obligation under this Licence.
3
8. Without derogating from paragraph 3 hereof, if the Town passes regulations which
would have the effect of requiring removal of the Encroachments over the Road
Allowance, the Licensee, upon receipt of notice 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.
9. The Encroachments shall be constructed,installed,occupied,and maintained in such
a manner so as to ensure that there will be no interference with pedestrian or
vehicular traffic and that the line of sight of any traffic sign or signal is not obscured.
10. The construction, installation, occupation, operation and maintenance of the
Encroachments shall comply with all applicable statutes, by-laws and regulations.
11. 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.
12. 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 thereof.
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 reasonable 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 the
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 Encroachments in good and proper repair and condition.
14. 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 mail 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 delivered 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 such 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.
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 encumbrances registered against title to the Property.
16. Nothing herein contained shall be construed as giving to the Licensee anything more
than permission to erect on and attach the Encroachments to the Road Allowance
and to maintain the same until such time as the removal of the Encroachments from
the Road Allowance may be required as hereinbefore provided.
4
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, successors and assigns.
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
Province of Ontario in order to enforce this licence.
IN WITNESS WHEREOF this licence has been duly executed by the parties hereto
eto
as of the day and year first above written.
THE CORPORATION OF THE TOWN
OF NEWCASTLE
By:
Mayor - Diane Hamre
And:
Clerk - Patti Barrie
1
WITNESS: )
1
WITNESS: )
newcastl\coxagt.cln
5
SCHEDULE "B"
Heot of
Part Location on Approximate Bottom Mazimnm
of Prom Property Size Above Clracle Pncrowhment
I
it
a
THE CORPORATION OF THE TOWN OF NEWCASTLE
REPORT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File#
Date: NOVEMBER 16, 1992 Res. #
Report#: WD-87-92 File#: D. 0 8 .31.01 By-Law#
Subject: REQUEST FOR ENCROACHMENT AGREEMENT
THE ESTATE OF JESSIE MARIE LLOYD
PART OF LOT 31, CONCESSION 8,
TOWN OF NEWCASTLE
Recommendations:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-87-92 be received;
2 . THAT Council pass a by-law authorizing the Mayor and Clerk to
enter into an Encroachment Agreement, shown as Schedule "A"
to the proposed by-law (see Attachment No. 3) , with the Estate
of Jessie Marie Lloyd to permit the house and a frame building
to encroach onto the road allowance between Lots 30 and 31,
Concession 8, (Enfield Road) in the former Darlington
Township;
L. 3. THAT the applicant be responsible for all costs, such as
survey and legal costs, associated with this agreement;
4 . THAT the Town's solicitor be directed to take all actions
necessary to complete the transaction; and
4
5 . THAT Mr. J. A. Yanch, LL.B. , Solicitor for the applicant, be
advised of Council's decision.
ATTACHMENT N0. 3
• ° •
/2 WD-73-92
ADDENDUM
REPORT NO: WD-87-92 PAGE 3
-The encroachments. ,are .identified as Parts 2' and. 3, Plan' 10R
14463 (see Attachment No. 1) . . The, applicant. has requested
that a by-law be passed to legalize the encroachments .
2 .2 There are no plans to alter the existing intersection and the
encroachments have not presented a problem in the past.
2 . 3 Mr. and Mrs. Lloyd acquired title to the property in 1958 and
the owner thinks the house was built before the turn of the
century. The applicant has submitted & registered reference
plan, specifically 40R-14463, which identifies the
encroachments as Parts 2 and 3 .
3.0 CONCLUSION
3 . 1 It is, therefore, recommended that the attached by-law be
passed authorizing the Mayor and Clerk to enter into an
agreement to permit the encroachment at a nominal cost of $2 .
Respectfully submitted, Recommended for presentation
to the Committee,
Walter A. Evans, P.Eng. , Lawrence E. Ko seff,
Director of Public Works Chief Administrative Officer
JCO:ph:hj
November 9 , 1992
Attachments
pc : J. A. Yanch, LL.B.
Parkhill & Yanch
Barristers, Solicitors, Notaries
` 63 King Street East, Suite 102
P.O. Box 154
Oshawa, Ontario
L1H 7L1
X030
TELEPHONE 728-9495
AREA CODE 416
P A R K H I L L & Y A N C H ----�"l�-
' �,nrristcrs, o�olirifor�, tdotnrics
A. J. PARKHILL, O.C. (1898-1969) J. A. YANCH. LL.B. O.C.
L. A.YANCH, LLB.
63 KING STREET EAST, SUITE 102
P.O. BOX 154 REPLY TO
OSHAWA BOX 154
ONTARIO OSHAWA
L1 H 7L1 L1 H 7L1
- .- May 13, 1992
n L V
t
Ma or & Members of The .Town u�ac:ia". �` - - �1p1Y . 1 5 1992
The Corporation of the Town �otewcaste-- t l; ,=;:; c ,;_ TOWN Q �fEWCASTtE
40 Temperance Street w!?'_ MAYORS OFFICE_-'
D 0 CE.,..-:
BOWMANVILLE, Ontario _� ?^--
L1C 3A6
Dear Sirs & Madames:
Re: JESSIE MARIE .LLOYD ESTATE—&
Re: Title to Part of Lot 31 , Conc. 8, former Twp of Darlington
We are solicitors in this Estate, date of death August 14, 1991 , and are
presently acting for the deceased's husband Floyd Lloyd, the present regist-
ered owner of their residence by right of survivorship.
Mr. and Mrs. Lloyd acquired title to the property by deed dated August 18,
1958 registered as # 6872, for the Township of Darlington. Now that
Mr. Lloyd is widowed and himself approaching the twilight years, he plans-
putting his residence on the market. And with that in mind has had a
recent location survey prepared, we enclose a copy, and beg your indulgence
to review what it discloses. Both the residence and frame building to the
rear encroach on Enfield Road. These buildings are very old, Mr. Lloyd
thinks built long before the turn of the century.
We have suggested to our client, he should permit us to solicit Council to
regularize the infractions by an encroachment agreement, to which the
survey would be attached. The Agreement would acknowledge the encroachment
and permit the buildings to remain. The present owner would of course be
agreeing that if and when the buildings are demolished, they cannot be
reconstructed in their present location, but must be relocated within the
title boundary. The Agreement would be registered on title so the present
owner's covenant would run with the land and subsequent purchasers bound
by it.
The board fence which encroaches on the north road allowance can and will
be removed. It is for this reason we have asked the surveyor to withhold
registration. Please note this survey is being prepared as a reference plan,
ATTACHMENT NO . 2
1 WD-87-92
s
CORPORATION OF THE TOWN OF NEWCASTLE
BY-LAW 92-
Being a by-law to authorize the execution of
an encroachment agreement between the
Corporation of the Town of Newcastle and the
Estate of Jessie Marie Lloyd and.Floyd Lloyd
The Corporation of the Town of Newcastle hereby enacts as follows:
1. That the Mayor and Clerk are hereby authorized ,tQ._execute .on
behalf. of�•the Corporation..of•`the -Town".bf Newcastle* and seal
with the Corporate Seal, an Encroachment Agreement between The
Corporation of the Town of Newcastle and the Estate of Jessie
Marie Lloyd, in the form attached hereto as Schedule
2. That Schedule "A" attached hereto form's part of this by-law.
By-law read a first and second time this day of ,
1992.
By-law read a third and final time this - day of ,
1992.
MAYOR
CLERK
w�
ATTACHPfENT NO. 3
F WD-87-92
t
%d
._ �`�3 �
2
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.haying 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 hereby 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 setting 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 said Encroachments, as may be required from time to time by the Director by
written notice given to the Licensee.
6. The 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
Dollars ($5,000,000.00) for all damages arising out of an accident or occurrence or series of
accidents or occurrences naming the Town as additional named insured and containing a cross-
liability endorsement 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 policies of insurance
or the acceptance of it or them by the Town shall not be construed to relieve the Licensee from
responsibility for other or larger claims for which the Licensee 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 the Town 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. Without derogating from paragraph 3 hereof,if the Town passes regulations which would have
the effect of requiring removal of the Encroachments over the Road Allowance, the Licensee,
upon receipt of notice 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.
9. The Encroachments shall be constructed,installed, occupied, and maintained in such a manner
so as to ensure that there will be no interference with pedestrian or vehicular traffic and that
the line of sight of any traffic sign or signal is not obscured.
10. The construction, installation, occupation, operation and maintenance of the Encroachments
shall comply with all applicable statues, by-laws and regulations.
11. 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 encroaclunents 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
C encroachments.
n3
4
SCHEDULE"A"
Height of
Part of Location on Approximate Bottom Haximum
Property Property Size Above Grade Encroachment
i
e
t r
rt�,
THE CORPORATION OF THE TOWN OF NEWCASTLE
BY-LAW 93-24
Being a by-law to repeal By-laws 92-210 and
92-222
The Council of The Corporation of the Town of Newcastle hereby
enacts as follows:
1. THAT By-laws 92-210 and 92-222 are repealed.
BY-LAW read a first and second time this 25th day of January, 1993.
BY-LAW read a third and final time this 25th day of January, 1993.
MAYOR
CLERK
ATTACHMENT NO. 4
ADDENDUM WD-73-92
THE CORPORATION OF THE TOWN OF NEWCASTLE
BY-LAW 93-25
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 Council of 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 with 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 25th day of January, 1993.
BY-LAW read a third and final time this 25th day of January, 1993.
MAYOR
CLERK
ATTACHMENT NO. 5
ADDENDUM WD-73-92
THE CORPORATION OF THE TOWN OF NEWCASTLE
BY-LAW 93-26
Being a by-law to authorize the execution of
an encroachment agreement between the
Corporation of the Town of Newcastle and Floyd
Lloyd
The Council of 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 with the
Estate of Floyd Lloyd, 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 25th day of January, 1993.
BY-LAW read a third and final time this 25th day of January, 1993.
MAYOR
CLERK
ATTACHMENT NO. 6
ADDENDUM WD-73-92
i