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HomeMy WebLinkAboutWD-73-92 Addendum#2 THE CORPORATION OF THE TOWN OF NEWCASTLE REPORT Z_ Meeting: COUNCIL File# Date: JANUARY 25, 1993 Res. # ADDENDUM #2 By-Law# Report#: WD-7 -92: 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; /2 UH- 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. ---------------------------------------------------------------- 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; i . . . /3 I 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; i . . . /4 i i 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 maybe 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. 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, • w ----------------------- �c— P C - 1sf ----------- Walter'A. Evans, P.Eng. , Lawrence E. Kot f, Director of Public Works Chief Administr ive Officer JCO*WAE*hj / January 25, 1993 Attachments I I UNFINISHED BUSINESS fs0 0 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 SAM-IS 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. ------------------------------------------------ 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 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 REPORT NO. : ADDENDUM WD-73-92 PAGE 2 THAT Report WD-73-92 be received and referred back to staff for consultation with the Town Solicitor pertaining to Ronald Worboy's request for relief from some of the provisions of the Encroachment Agreement; and THAT Ronald Worboy be advised of Council's decision. 3.0 REVIEW AND COMMENT 3 . 1 Mr. Ron Worboy, Solicitor contacted Mr. Dennis Hefferon and discussed his concerns with respect to the contents of the proposed encroachment agreement. Mr. Hefferon insists that due to the extent of the encroachment, the agreement as presented is, in fact, necessary. Mr. Worboy's concerns have been satisfied and he has since contacted staff and advised that he wishes to proceed with the encroachment agreement, unamended, and the recommendations in Report WD-73-92 . Respectfully submitted, Recommended for presentation to the Committee, y Walter A. Evans, P.Eng. , awrence E . Kot e f, Director of Public Works Chief Administ �aq*ve Officer JCO*WAE*hj October 7, 1992 Attachment i i i t . THE CORPORATION OF THE TOWN OF NEWCASTLE REPORT e Ong: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File # ate: OCTOBER 5, 1992 Res. # 2f rt#:. WD-7-3-92 File #: D.09 . 31 ,01 By-Law# Jt.^ct: REQUEST FOR ENCROACHMENT AGREEMENT ESTATE OF FREDERICK MILTON SAMIS AND VERNA MARION SAMIS PART OF LOT 31, CONCESSION 9 TOWN OF NEWCASTLE commendations: t is respectfully recommended that the General Purpose and x,dministration 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 i� 4 •. THAT Mr. Ronald F. Worboy, . Solicitor for the applicant, be advised of Council 's decision. ATTACHMENT #1 t ADDENDUM WD-73-92 i .j .J I REPORT NO. : WD-73-92 PAGE 2 REPORT 1.0 ATTACHMENTS No. 1: Letter dated November 12, 1991, from Ronald F. Worboy j I No. 2: Key Map No. 3: Proposed By-law 2.0 BACKGROUND 2 . 1 The house owned by Verna Marion Samis encroaches onto Concession Road 9 (road allowance between Concessions 8 and 9) and Enfield Road (road allowance between Lots 30 and 31) . The garage encroaches onto Enfield Road (Attachment No. 2) . The applicant has requested that a by-law be passed to legalize the encroachments (Attachment No. 4) . There are no plans to alter the existing intersection and the encroachment has not presented a problem in the past. The house was built in or about 1877 . The encroachment has existed for a long time and it is therefore recommended that, 1 upon receipt of a registered reference plan, a by-law be passed authorizing the Mayor and Clerk to enter into an agreement to permit the encroachment at a nominal cost of $2 . Respectfully submitted, Recommended for presentation to the Committee, Walter A. Evans, P.Eng. Lawrence E. Kots/eff, Director of Public Works Chief Administrative Officer JCO:ph September 16, 1992 pc : Ronald F. Worboy, Barrister, Solicitor P.O. Box 21, 153 Simcoe Street North Oshawa, Ontario L1H 7K8 • i TELEPHONE (416)723-2266 �.ON.ALD F. WORBOY, B.A"T,T"$. P N �xrrist¢r,�alicitar • P.O.BOX 21 153 SIMCOE STREET NORTH OSIL&W&, ONTARIO UH 7K6 November 12th, 19911_, PXVA ......... . . AC;.. Corporation of the Town of Newcastle, = 40 Temperance Street, + :• =�►._. ; Bowmanville, Ontario. Attention: Ms. • Jan O'Neill VE_ Dear Sirs: Re: Estate of Frederick Milton Samis and Verna Marion Samis, Part of Lot 31, -- - Concession 9, Town of Newcastle Regional Municipality of Durham File No. 101670V90 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. r: . . . . . . . . . . . . . .2 ATTACH`ENT N0. 1 VD-73-92 i . I I I 2 - Mr. and Mrs. Samis have resided on the subject property since M 1948 and remained in the home until the recent death of Frederick Milton Samis. As the building is presently located as above referred to I am writing to request that the Corporation of the Town of Newcastle consent to an encroachment agreement permitting the home to be legally on the road allowance. In the writer' s submission the house does not impair in any manner whatsoever the traffic that flows through the Hamlet of Enfield. The Executrix of the Estate desires to sell the subject home and the encroachment agreement is necessary to permit the ready sale. Please advise if I could make representation at Committee or Council pertaining to this matter. Your ery trul • 1 RFW/LRB RON D F. WORBOY ENCLOSURES CC_ Mrs. Griffin f i I O • metal clad garage I I f-� N C m (0.2 (0.28') [� CL Q a 1.74 m I 2 storey frame houso ' 1.54 m street line (5.1') 1.02 rn 1.02 m (3.4') CONCESSION ROAD 9 41 <p q t p oK N p Jp N o; � R s Rona v � IF T 2 _ 1 VBJEC1 5IT Y � t s DRAWN B\ J. f� iFOAti1 TE: AY 1992 ATTACHUENT N0. 2 WD-73-92 F CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW 92- ' a .. Being a by-law to authorize' the execution of an encroachment agreement between the Corporation of the Town of Newcastle and the Estate of Frederick Milton Samis and Verna Marion Samis The Corporation of the Town of Newcastle hereby enacts as follows: 1. That the Mayor and Clerk are hereby authorized to execute on behalf of the Corporation of the Town of Newcastle, and seal with the Corporate Seal, an Encroachment Agreement between the Estate of Frederick Milton Samis and Verna Marion Samis, in the form attached hereto as Schedule "A". 2. That Schedule "A" attached hereto forms part of this by-law. By-law read a first and second time this 13th day of October, 1992. By-law read a third and .final time this 13th day of October, 1992. MAYOR CLERIC ATTACHMENT NO. 3 WD-73-92 ) r,i I I SCHEDULE "A" THIS AGREEMENT made as of the day of 199 . B E T W EEN:'' 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 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 , 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. NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the prelllises, 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 t Encroachments until such time as the removal of the Encroachments is required as hereinafter provided (hereinafter referred to as the "Licence'). 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. I 2 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 NIVA 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 kill 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 Licencee. 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 (55,000,000.00) for all damages arising out of an accident or occurrence or series of accidents or occurences 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. "Ilse issuance of such policy or poicies of insurance or the acceptance of it or them by the Town shall not be construed to relieve the Licencee from responsibility for other or larger claims for which the Licencee may be held responsible. 7. if the Licensee shall transfer or sell the Property or any portion thereof then i) the Licensee shall forthwith notify the Town in writing of such sale or transfer, together ­iih the name and address of the transferee or purchaser and ii) this Licence shall terminate. . 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 t}te 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, pt�ant 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. Arty notice, request,communication or demand under this Licence shall be in writin, and s'_1,111 be considered properly delivered when given or served personally or by registered mail to tite 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 n•i have been delivered until five (S) business days after the date that normal mail sece is restored. IS. Zitis A 7reemertt may be registered against title to the Property and the cost of preparation and registration of the same shall be paid by the Licensee. fie Licensee shall deliver to the Town, in registerable form and at the postno:,ements of any encumbrances registered against title to the Property.Licensee's cost, 16. \othi;; "erein contained shall be construed as giving to the Licensee am thing more than per mission to erect on and attach the Encroachments to the Road :allowance ana to c:attuaul the same until such time as the removal of the Et croachr.ients from the Road Allowance may be required as hereinbefore provided. i 4 17. This Agreement and everything contained herein shall enure to the benefit of and gr ryt g 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 Hamre And: Clerk- Patti Barrie WI'T'NESS: ) WITNESS: ) , t i � U 5 SCHEDULE W Height of Pact L.ocatlon on Approximate Bottom Maximum of PrOps Property Size above Grade Encroachment t,_. 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)363-3425 DEZ WINDISCHMANN JOHN P.BELL MICHAEL FITZPATRICK,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 I.COLE JONATHAN H.FLANDERS CHARLES SIMCo THOMAS A.STEFANIK BARBARA R.C.DOHERTY WILLIAM L.NORT 4COTE JAMES ROSSTTER HELDER M,TRAVASSOS BOX 32-401 BAY STREET PETER V.RAYTEK J.JAY RUDOLPH CYNTHIA J.GUNN TORONTO,CANADA MARTIN J.HENDERSON NICHOLAS T.MACOS WARREN S.RAPOPORT M5H 2Z1 RICHARD E.COLES MARTIN PETERS ALEXANDER P.TORGOV CHARLES M.CASTLE 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 I.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. i 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 i 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 i 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 i 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. i I 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. i I 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 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: ) newcastl\coxaguln I 5 SCHEDULE "B" Heot of Part Location on Approximate Bottom Maximum ofd Property Size Above Grade Encroachment I 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 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; 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 i r 5 . THAT Mr. J. A. Yanch, LL.B. , Solicitor for the applicant, be advised of Council's decision. j ATTACHMENT N0. 3 . . . /2 WD-73-92 ADDENDUM j J 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 I allowance between Lots 30 and 31, in Concession 8 (Enfield Road) . . . /3 i REPORT NO: WD-87-92 PAGE 3 • The encroachments. •are -identified as Parts .2 and. 3, Plan'.*IOR- 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, rj 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 ; 030 F N PART 2 OF RO 40R- 14463 A�D t. (8.34 -1 ft.) i 2 STOREY STUCCO DWELLING 6.913 m 1.018 nt (3.34 fl.) 1.058 m L 1.731 (3.27 ft.) (5.68 ft PART 1 OF --J PLAN 40R- 14463 W W W � �— 0.920 m (3.02 f`) - PART 3 OF OLD -{ 40R- 14463 ILFRAME 608 m BUILDING N.40 it.) 1.058 m (3.47 ft.) CONCESSION ROAD 10\ SITBURK 0 CONCESSION ROtiD 9 o FORAIIEP 7'0 Yl'N,.S 0 0 C:\ATTACHS\DARL\40R 14463 �I REGIONAL ROAD NO. 7 DAR AAWN BY: JM DATE: NOV. t992 ATTACHMENT ENO. KEY MAP WD-87-92 i � '? 3 i TELEPHONE 728-9495 AREA CODE 416 P A R K H I L L & Y A N C H _------ --- �nmstcrs, o�o(icitors, �otnrics A. J. PARKHILL, O.C. (1898-1969) J. A. YANCH. LL.B. OC L. A.YANCH, LLB 63 KING STREET EAST, SUITE 102 P.O. BOX 154 REPLY TO OSHAWA BOX 154 ONTARIO OSHAWA L1H7L1 (( L1H7L1 • - .. May 13. 1992 � L D f Mayor & Members of The.-Town _ MAY. 1 5 1992 --� _ ... . The Corporation of the Town 1.0 wcast e— �. I_ TQV�1N Q �IEWCAS�tE 40 Temperance Street -"MAYOkS OFFICE._:' BOWMANVILLE, Ontario L1C 3A6 Dear Sirs & Madames: f ` • - lit..'.,;ij;i r ..1: .t:':3"_ Re: JESSIE MARIE .LLOYD ESTATE & q3___ 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 fir` 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 vie have asked the surveyor to withhold registration. Please note this survey is being prepared as a reference plan, ATTACHMENT N0 . 2 1 �l Z 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 �� 3D i 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 her authorized to._� ecute .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 1992. day of MAYOR CLERK i ws ATTACHPIENT NO. 3 ! WD-87-92 SCHEDULE"A" THIS AGREEMENT made as of the day of 199 BETWEEN : THE CORPORATION OF TBE TOWN OF NEWCASTLE (hereinafter referred to as the"Town") and - TILE 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 Fleisclima m Petrich Ltd.,Ontario Land Surveyors,dated October 6, 1992, and annexed hereto as Schedule "A"; F. The Town has granted to the Licensee permission to erect and maintain the Encroach inenI's 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 THIS AGREEMENT WITNESSETII that in consideration of the premises, and of the covenants and agreements hereinafter contained, the parties agree as follows: L, 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 wi➢, 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 sae 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. � 3 5 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 having utilities or services which may in any manner be affected by the erection or maintenance of the Encroachments from arid 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 clams for which the Licensee may be held responsible. 7. If the Licensee shall transfer or sell the Property or any portion thereof then y 4 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 acrd 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 i the fine 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 pad 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. I 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. IT 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 WI'T'NESS WIlFREOF, 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 ) g -j 7 4 SCHEDULE"A" Height of Part of Location on Approximate Bottom maximum Property Property Size Above Grade Encroachment i l.Sr til`;Y;:14Yiiy,Ylh.;'N i i:1: e t x 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 i CLERK I 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