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HomeMy WebLinkAboutLGL-006-12 Cfarftwn REPORT LEGAL DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: October 15, 2012 Resolution #: By-law I #: 4 t'ne,l Report #: LGL-006-12 File #: L2030-03-02 Subject: LEASE OF CLOSED ROAD ALLOWANCE (BOND STREET) TO SHERYL AND STAN ZULY 627 MILL STREET SOUTH, NEWCASTLE RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report LGL-006-12 be received for information; and 2. THAT Stan and Sheryl Zuly and Catherine Love be advised of Council's position respecting Ms. Love's delegation on September 17, 2012. Submitted by: Reviewed bk Andrew C. Allison, B. Comm., LL.B. Franklin Wu, MAOM Municipal Solicitor Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379 REPORT NO.: LGL-006-12 PAGE 2 1.0 BACKGROUND 1.1 At the May 9, 2011 General Purpose and Administration Committee, Sheryl Zuly appeared as a delegation. The minutes of that meeting recorded her comments as follows: Sheryl Zuly was present to request the use of an unopened road allowance as a vegetable garden. Ms. Zuly read a letter from her husband requesting to either lease or be given permission to use the unopened road allowance, adjacent to their property, for a vegetable garden. She acknowledged that the initial request was denied, but she noted that other municipalities allow residents to use unopened road allowances for garden plots. She confirmed there will not be any building erected and it would be for their exclusive use. The "initial request" that Ms. Zuly was referring to in her delegation was a request to purchase the unopened road allowance. She was advised that staff could not support such a request. 1.2 Following the delegation, Committee passed the following resolution (#CPA-338- 11): THAT the request of Stan and Sheryl Zuly, to use the unopened road allowance adjacent to their property in Newcastle, be approved in principle, subject to any conditions set out and reported by staff for the Council meeting of May 16, 2011. 1.3 On May 16, 2011, Council passed the following resolution (#C-271-11): THAT the request of Stan and Sheryl Zuly to use the unopened road allowance adjacent to their property in Newcastle, be approved. THAT the final lease between the .Municipality of Clarington and Stanley and Sheryl Zuly for the closed portion of the Bond Street road allowance, as drafted by the Municipal Solicitor be approved; and THAT the Mayor and Municipal Clerk be authorized to execute the lease on behalf of the Municipality. 1.4 A copy of the executed lease agreement (the "Zuly Lease") is attached to this Report (Attachment 1). 1.5 In response to a delegation from Catherine Love at the Council meeting on September 17, 2012, Council passed the following resolution (#C-258-12): THAT Correspondence Item D - 12 from Catherine Love, with respect to renewal of a lease agreement, be referred to staff for review and for REPORT NO.: LGL-006-12 PAGE 3 policy direction on how to handle these matters in future; and THAT the report be presented in the next month or so. 1.6 The purpose of this Report is to provide information to Council respecting requests to lease unopened road allowances generally and the specific request of Ms. Love to terminate the Zuly Lease effective May 8, 2013. 2.0 POLICY DISCUSSION 2.1 In the opinion of staff, there is no need to create further policy because existing Municipal by-laws and policies adequately address issues relating to municipal road allowances. 2.2 All requests to close and convey a municipal road (whether opened or unopened) are dealt with in accordance with Council approved "Policy and Procedure for Road Closures" dated October 26, 1992 (as amended). It provides a very detailed description of the process to be followed, including public notice, when the Municipality is requested to close and sell any portion of a municipal road allowance. This Policy does not deal with requests to lease portions of a road allowance; it only deals with the potential sale of a road allowance. The Policy was followed most recently when the Municipality sold a portion of the road allowance between Lots 34 and 35 in Concession 8 (former Township of Clarke) to the Orono Fish and Hunt Club. 2.3 By-law 2011-11 governs the sale or other disposition of surplus municipal land, but it specifically exempts the sale of road allowances made in accordance with the "Policy and Procedure for Road Closures". 2.4 Section 15 of By-law 2011-11 provides as follows: Delegation The CAO shall have the authority to enter into agreements and sign all documents necessary to sell or acquire the fee simple interest in any land required for public infrastructure purposes, or any interest in land for temporary and permanent easements and rights-of-way, encroachment agreements, and leases and licences provided, (a) the consideration paid or received for the land or the interest in land does not exceed$10,000.00; (b) no other Municipal interests will be adversely affected by the conveyance; REPORT NO.: LGL-006-12 PAGE 4 (c) for all sales, the party acquiring the land or the interest in land pays all transaction costs and enters into an agreement that is acceptable to the Municipal Solicitor; and (d) the Finance Department is advised of the sale or purchase for the purpose of maintaining an up-to-date tangible capital asset listing. 2.5 Issues respecting community gardens, including the location criteria, were thoroughly considered in Report OPD-006-11 dated June 11, 2011. 2.6 Requests to lease portions of a road allowance are very rare. The only other example of a similar request that staff are aware of is the recent request of the Port Hope Area Initiative Management Office to lease a portion Elliott Road for purposes related to the Port Granby Project. Council agreed to enter into a lease with "HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Minister of Natural Resources" for such purpose. 2.7 There will always be one-offs or exceptions to any policy; there is no way to get around it. Section 15 of By-law 2011-11 is specifically intended to provide a mechanism to deal with some of these one-offs (e.g. minor licences, leases and easements in relation to municipal property including municipal road allowances). Given the frequency with which requests to lease portions of a road allowance come up, it is the opinion of staff that no further policies are required and that such requests should continue to be dealt with on an individual basis as they arise in accordance with existing policies. 3.0 ZULY LEASE 3.1 As part of her delegation, Ms. Love requested that the Municipality terminate the Zuly Lease. She offered several reasons for her request, among them the loss of privacy and nuisance. Ms. Love also advised Council that she had not been given any notice prior to Council authorizing the Zuly Lease, and that her only communication on the subject was with Ms. Zuly shortly prior to Council passing its resolutions in May 2011. 3.2 With regard to notice, existing Municipal policies do not require any form of notice for the type of request (lease) that was made by Mr. and Mrs. Zuly. 3.3 During her delegation, Ms. Love presented evidence in support of her assertion that what was happening on the leased property (the unopened road allowance) was affecting her privacy and creating a nuisance. 3.4 Ms. Love mentioned that trees had been planted in the leased area. The lease does not permit trees to be planted. The only permitted use is a vegetable garden (see sections 8 and 17 of the Zuly Lease). REPORT NO.: LGL-006-12 PAGE 5 3.5 Section 12 of the Zuly Lease provides as follows: Either party may terminate this Lease for any reason whatsoever upon delivery to the other at least three months'prior notice to terminate effective the last day of the Term or any renewal of the Term. (emphasis added) 3.6 If it is Council's desire to terminate the Zuly Lease effective May 8, 2013, staff need to be given direction to that effect. 4.0 CONCURRENCE 4.1 The Director of Corporate Services, Director of Operations, Director of Engineering Services and Director of Planning Services have reviewed this Report and concur with its recommendations. CONFORMITY WITH STRATEGIC PLAN — Not Applicable Attachment 1: Zuly Lease dated May 9, 2011 LEASE AGREEMENT THIS LEASE is made as of the 91" day of May, 2011 BETWEEN: THE CORPORATIONOF THE MUNICIPALITY OF CLARINGTON (the "Municipality') - and - STANLEY VALENTINE ZULY and SHERYL DIANNE ZULY (the "Tenants") ARTICLE 1 — INTERPRETATION i Definitions I 1. In this Lease, (a) "Commencement Date" means May 9, 2011; (b) "Lease" means this lease as it may be amended from time to time. (c) "Property' means the closed portion of the Bond Street road allowance legally described as Part of Bond St., PI Village of Newcastle, Hannings Plan, undated Newcastle, Closed by N111252, Pts 1 and 2, 10R-1470, in the Municipality of Clarington, Regional Municipality of Durham as shown i in Schedule "A" to this Lease; and (d) "Term" means the term of this Lease as set out in Section 10. i Headings 2. The division of this Lease into parts, sections, subsections and schedules and the insertion of headings are for the convenience of reference only and shall not affect the construction or interpretation of this Lease. i i I Severability 3. If any provision of this Lease is held to be rendered invalid, unenforceable or illegal, then it shall be considered separate and severable from this Lease and the remaining provisions of this Lease shall remain in force. Number 4. Wherever a word importing the singular number only is used in this Lease, such word shall include the plural. Words importing either gender or firms or corporations shall include the other gender and individuals, firms or corporation where the context so requires. Governing Law 5. This Lease shall be governed by, and interpreted and enforced in accordance with, the laws in force in the Province of Ontario. Entire Agreement 6. This Lease constitutes the entire agreement between the parties concerning the Property and may only be amended or supplemented by an agreement in writing I signed by both parties. ARTICLE II — GRANT AND USE Grant i 7. In consideration of the performance by the Tenants of their obligations under this Lease, the Municipality leases to the Tenants the Property for the Term. In consideration of the performance by the Municipality of its obligations under this Lease, the Tenants takes the Property on lease from the Municipality and covenants to pay the rent and to observe and perform all other covenants to be observed and performed by the Tenants under this Lease. Use of Property 8. The Property shall be used for gardening purposes and for no other purpose without the prior written consent of the Municipality. Nuisance 9. The Tenants shall not carry on any business or do or suffer any act or thing that constitutes a nuisance or which is offensive or an annoyance to the Municipality or any adjoining landowners. Page 2 Ud`� ARTICLE III — TERM Term I 10. Subject to section 11, the term of this Lease shall be one year commencing on the Commencement Date and expiring on May 8, 2012. 11. The Term shall automatically be extended for further periods of one year upon the same terms and conditions as set out in this Lease unless either party gives notice to the other in accordance with section 12. 12. Either party may terminate this Lease for any reason whatsoever upon delivery to the other at least three months' prior notice to terminate effective the last day of the Term or any renewal of the Term. ARTICLE IV— RENT Rent 13. The Tenants shall pay to the Municipality as rent the sum of TWO DOLLARS ($2.00) per annum. i Property Taxes I i 14. The Tenants shall pay all real estate taxes, general taxes, school taxes, levies, i rates, duties, assessments and charges imposed against the Property by municipal or other governmental authorities having jurisdiction. If following a i reassessment by MPAC the real property taxes imposed against the Property exceed $50 per year, the Tenants shall have the option to immediately terminate this Lease without penalty or charge. 15. The Tenants have the right to contest or review the assessment of the Property for property taxes by legal proceedings or in such a manner as the Tenants in their option deem advisable. Any proceedings or other steps taken by the Tenants, if instituted, shall be conducted at their own expense. ARTICLE V— MAINTENANCE, REPAIRS AND ALTERATIONS Maintenance and Repair of Property 16. The Tenants, at their sole cost and expense, shall maintain and keep the Property as is or in an improved state of repair, as they choose. i Page 3 Alterations/improvements to Property 17. The Tenants shall not be permitted to make alterations and improvements to the Property unless they are agreed to by the Municipality except to the extent that such alterations or improvements are not structural and are related to the intended use of the Property as a vegetable or flower garden. Removal of Improvements 18. The Tenants shall, unless specifically requested by the Municipality not to do so, remove all improvements that it may have made to the Property and shall restore the Property, as nearly as possible, to the state it was in before such improvement was made at the expiry of the Term. ARTICLE VI INSURANCE AND INDEMNITY Tenants Insurance 19. The Tenants, at their sole cost and expense, shall take out and maintain, (a) insurance upon property owned by it which is located on the Property; and (b) commercial general liability insurance pertaining to the Tenants' liability to others in respect of injury, death or damage to property occurring upon, in or about the Property, such insurance to be an amount which is reasonable and sufficient having regard for the scope of the risk and the j current practice of prudent owners of similar Property for the carrying on of similar businesses, but in any event in an amount not less than one million dollars ($1,000,000.00)for claims arising out.of one occurrence. Such policy shall also name the Municipality as an additional insured and may not be cancelled unless prior notice by registered letter has been given to the Municipality by the insurer 30 days in advance of the expiry date. 20. Upon request, the Tenants shall file with the Municipality a Certificate of Insurance in a form satisfactory to the Municipa'lity's Treasurer verifying that the commercial general liability insurance policy is in effect and setting out the essential terms and conditions of the insurance. 21. The provision of the insurance policy required by this section shall not relieve the Tenants from liability for claims not covered by the policy or which exceed its limits, if any, for which the Tenants may be held responsible. i Page 4 Insurance Risks 22. The Tenants shall not do, omit to do, or permit to be done or omitted to be done upon the Property anything that may contravene or be prohibited by any of the Municipality's insurance policies in force from time to time covering or relevant to any part of the Property or which would prevent the Municipality from procuring its policies with companies acceptable to the Municipality. Indemnification 23. Each of the Municipality and the Tenants shall indemnify and save harmless the other from and against any and all actions, losses, damages, claims, costs and expenses (including solicitor's fees on a solicitor and client basis)to which the party being indemnified shall or may become liable by reason of any breach, violation or non-performance by the party so indemnifying of any covenant, term or provision of this Lease or by reason of any damage, injury or death occasioned to or suffered by any person or persons including the Municipality or the Tenants, as the case may be, or any property by reason of any wrongful act, neglect or default on the part of the party so indemnifying or any of those persons for whom it is in law responsible. ARTICLE VII — REMEDIES ON DEFAULT Municipality's Right to Remedy Default 24. In addition to all other remedies the Municipality may have under this Lease and in law, if the Tenants are in default of any of its obligations under this Lease, and such default has continued for a period of ten (10) days after receipt of notice by the Tenants (or such longer period as may be reasonably required in the circumstances to cure such default, except in an emergency where the Municipality will not be required to give notice), the Municipality, without prejudice to any other rights which it may have with respect to such default, may remedy such default and the Tenants shall be responsible for all such costs. Waiver 25. No condoning, excusing or overlooking by the Municipality of any default, breach or non-observance by the Tenants at any time or times in respect of any covenant, obligations or agreement under this Lease shall operate as a waiver of the Municipality's rights hereunder in respect of any continuing or subsequent default, breach or non-observance, or so as to defeat or affect in any way the rights of the Municipality in respect of any such continuing or subsequent default or breach, and no waiver shall be inferred from or implied by anything done or omitted by the Tenants save only an express waiver in writing. I Page 5 ARTICLE VIII — MISCELLANEOUS I Quiet Enjoyment 26. The Municipality shall permit the Tenants to peaceably possess and enjoy the Property during the Term without any interference from the Municipality or any { person lawfully claiming by, from or under the Municipality provided the Tenants c' not in default. Right of Entry j i 27. The Tenants agree to permit the Municipality and authorized representatives of the Municipality to enter the Property during normal business hours for the purpose of inspecting the same on prior notice to the Tenants (except in an emergency where no notice shall be required). Fees 28, The Tenants shall pay to the Municipality the sum of$250 for fees associated with the preparation of this Lease. i Compliance with Laws 29. The Tenants, at their sole cost and expense, shall comply with all legal requirements (including statutes, laws, by-laws, regulations, ordinances, orders, rules and regulations of every governmental authority having jurisdiction)that relate to the use or occupation of the Property by the Tenants. Notice 30. Any notice required to be given by the Tenants to the Municipality under this Lease shall be in writing and shall be delivered to: The Corporation of the Municipality of Clarington 40 Temperance St. Bowmanville, Ontario L1 C 3K5 j Attention: Purchasing Manager or such other address of which the Municipality has notified the Tenants in writing, and any such notice delivered shall be deemed good and sufficient notice under the terms of this Lease. i Page 6 �� i I 31. Any notice required to be given by the Municipality to the Tenants under this Lease shall be in writing and shall be delivered to: I Sheryl and Stanley Zuly 627 Mill St South Newcastle, Ontario L1B 1L9 or such other address of which the Tenants have notified the Municipality in writing, and any such notice delivered shall be deemed good and sufficient notice under the terms of this Lease. Assignment and Subletting i 32. The Tenants shall not assign this Lease or sublet all or any portion of the Property without the prior written consent of the Municipality. Successors and Assigns 33. This Lease shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. IN WITNESS WHEREOF the parties have executed this Lease. THE CORPORATIO F THE MUNICPALITY OF CLARINGTON Adrian Foste Patti L. arri uni ' al Clerk Sh ryl Dia ne Z I Stanley Valentine Zuly I Page 7 i I ti6ss�p2'�a OT 4 OS1T 16(k9p1�9 8�.0�NO�S`Otiy 0°HES ��+�pp18 16665 2 S666O" 2�1pp95 �TeravleW 0 17 34 51 68 as 102 Metres N May 6,2011 WH Protected by Copyright. May not he reproduced without permission. This map was compiled using plans and documents S recorded In the Land Registry System and has been prepared for property Inde)dng purposes only. This is not a Plan of Survey. For actual dimensions of property boundaries,see recorded plans and documents. 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