HomeMy WebLinkAboutWD-87-92 THE CORPORATION OF THE TOWN OF NEWCASTLE
REPORT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File#
Date: NOVEMBER 16, 1992 Res. #
Report#: File#: _D,_0_8_,31_._0 1 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 "All
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;
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
5 . THAT Mr. J. A. Yanch, LL.B. , Solicitor for the applicant, be
advised of Council's decision.
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REPORT NO: WD-87-92 PAGE 2
REPORT
1.0 ATTACHMENTS
No. 1: Key Map;
No. 2 : Letter dated May 13, 1992, from Parkhill & Yanch to
Mayor and Members of Council; and
No. 3 : Proposed By-law.
1.0 BACKGROUND
1. 1 At a meeting held on May 25, 1992, the Council of the Town of
Newcastle passed the following Resolution #C-360-92 :
"THAT the correspondence dated May 13, 1992,
from J. A. Yanch, Parkhill & Yanch, regarding
title to Part of Lot 31, Concession '8, former
Township of Darlington, be received;
THAT the correspondence be referred to the
Town's Solicitor for review and preparation of
a report to be submitted to the General
Purpose and Administration Committee; and
THAT J. A. Yanch be advised of Council 's
decision. "
1 .2 Public Works ' staff prepared this report in conjunction with
the Town's solicitor. Mr. Hefferon will complete the legal
aspects of the by-law and the agreement.
2 . 0 BACKGROUND
i
2 . 1 The property referred to as the estate of Jessie Marie Lloyd
consists of two buildings which encroach onto the road
allowance between Lots 30 and 31, in Concession 8 (Enfield
Road) .
. . . /3
0 `) p
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REPORT NO: WD-87-92 PAGE 3
The encroachments are identified as Parts 2 and 3, Plan 1OR-
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 a 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 eff,
Director of Public Works Chief Adminisr tive 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
i
1030
i
I
I V
PART 2 OF ROAD
40R- 14463 2.542 m
(8.34 ft.)
2 STOREY STUCCO
DWELLING 6.913 m
(22. 8 ft.)
1.018 m
(3.34 ft.)
1.058 m
(3.27 ft.) 1.731 ft
(5.68 ft.
CD
PART 1 OF --�
PLAN 40R- 14463 W
W
0.920 m
(3.02 ft.) PART 3 OF
OLD
40R- 14463
FRAME 5.608 m
BUILDING 718.40 ft.)
1.058 m
(3.47 ft.)
CONCESSION ROAD 10 -
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W -
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CONCESSION ROAD 9
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z FORMER TVN
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RFGIONA ROAD REGIONAL ROAD N0. 7 C:\ATTACHS\DARL 40R 14463
DRAWN BY. JM DATE. NOV.1992
ATTACHMENT N0, 1
KEY MAP WD-87-92
? o3 )
TELEPHONE 728-9495
AREA CODE 416
P A R K H I L L & Y A N C H --
Parristem, *Iiriturs, Notarte8
A. J. PARKHILL, Q.C., (1898-1969) J. A. YANCH, LLB, Q.C.
L. A,YANCH, LLB.
63 KING STREET EAST, SUITE 102
P.O. BOX 154
REPLY TO
OSHAWA BOX 154
ONTARIO OSHAWA
L1 H 7 L1 L1 H 7 Li
May 13, 1992 F-
Mayor @ R O M V
V& Members of TheJown Qu;.�, - _MAY 15 1992
The Corporation of the Town �n `', r _ � � i0iVIN of . t J1,, K
T°` eweasttie'�-`.. -a r''�� fWN 9,"EWCAStt
40 Temperance Street L,)!q. L,nti MAYDRSOEFaCE:.,..
.._ . 4.:. (....
BOWMANVILLE, Ontario .. _._•-`. ._. �4 F,n` "..
L1C 3A6 -.-......__.�.w._.
Dear Sirs & Madames:
Re: JESSIE MARIE .LLOYD ESTATE & M
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 byIdeed 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
WD-87-92
PAGE 2
so the land will henceforth be described as Part 1 on this plan when
registered.
Our client will of course bear all costs involved in the Town's solicitor
preparing or reviewing the draft agreement as the case may be.
Please acknowledge our correspondence and advise the steps we must take
to pursue the matter on our client's behalf.
Yours truly,
PARKHILL & YANCH
Per:
JAY:mc
enc
cc Mr. Floyd Lloyd
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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 an&Vloyd Lloyd
The Corporation of the Town of Newcastle hereby enacts as follows:
1. That the Mayor and Clerk are hereby �authorized ,to.•,�y�ecute .on
be ha: f.ef: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 "A".
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
i
ATTACHMENT N0. 3
WD-87-92
3 it
SCIIEDULE "A"
THUS AGREEMENT made as of the day of 199
BETWEEN :
THE CORPORATION OF THE TOWN OF NEWCASTLE
(hereinafter referred to as the "Town")
and -
THE ESTATE OF JESSIE MARIE LLOYD
(hereinafter referred to as the "Licensee")
WHEREAS:
A. The Licensee is the registered owner of the Lands in the Town of Newcastle described as
Schedule "A" annexed hereto, which lands are municipally known as 8894 Enfield Road
(hereinafter referred to as "the Property");
B. The public highway known as the road allowance between Lots 30 and 31, 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 encroachments
within the road allowance between Lots 30 and 31, Concession 8, Former Township of
Darlington, Enfield Road (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. 40R-14463, prepared by Donevan Fleischmann Petrich Ltd.,Ontario Land Surveyors,dated
October 6, 1992, and annexed hereto as Schedule "A";
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 day of
19
NOW THEREFORE TBIS 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
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.
105
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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.havmg 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 fmal 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 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.
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3
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.
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 as of the day and
year first above written.
THE CORPORATION OF THE TOWN OF NEWCASTLE
By:
Mayor - Diane Harare
And:
Clerk- Patti Barrie
WITNESS )
)
WITNESS )
�1 .17
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SCEEDULE"A"
Part of Height of
Location on Approximate Bottom Maximum
Property Property Size Above Grade Encroachment
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