HomeMy WebLinkAboutWD-73-92 Addendum UNFINISHED BUSINESS
THE CORPORATION OF THE TOWN OF NEWCASTLE
REPORT
Meeting: COUNCIL File #
Date: OCTOBER 13, 1992 Res. #
ADDENDUM By-Law#
Report#:__WD-73-92 File #: -a-. 09 . 31. 01
Subject: REQUEST FOR ENCROACHMENT AGREEMENT ESTATES OF FREDERICK
MILTON SAMIS AND VERNA MARION SAMIS PART OF LOT 31,
CONCESSION 9, TOWN OF NEWCASTLE
Recommendations:
It is respectfully recommended that Council approve the following:
1. THAT Addendum to Report WD-73-92 be received;
2 . THAT Report WD-73-92 be lifted from the table and received;
and
3 . THAT the Recommendations in Report WD-73-92 be approved.
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REPORT
1.0 ATTACHMENTS
No. 1: Report WD-73-92
2.0 BACKGROUND
2 . 1 Mr. Worboy appeared as a delegation and expressed his concern
with respect to 2 items in the proposed encroachment
agreement:
1 That the permit to encroach is not transferrable with the
sale of the property
2 . That the Town is required to give the property owner only
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
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. Mir. 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,
J11(ld
Walter A. Evans, P.Eng. , � awrence E. Kot e' f,
Director of Public Works Chief Administ ate Officer
JCO*WAE*hj
October 7, 1992
Attachment
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OVS
THE CORPORATION OF THE TOWN OF NEWCASTLE
REPORT
Meeting: GENERAL, PURPOSE AND ADMINISTRATION COMMITTEE File #
Date: OCTOBER 5, 1992 Res. #
report#: WD-7-3-92— File#: D..09 . 31 _ 01 BY-Law#
Subject: REQUEST FOR ENCROACHMENT AGREEMENT
ESTATE OF FREDERICK MILTON SAMIS
AND VERNA MARION SAM-IS
PART OF LOT 31, CONCESSION 9
TOWN OF NEWCASTLE
Recommendations:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-73-92 be received;
2 . 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;
2 . THAT the applicant be responsible for all costs, such as
survey and legal costs, associated with this agreement;
3 . THAT the Town's solicitor be directed to take all actions -
necessary to complete the transaction; and
4 . THAT Mr. Ronald F. Worboy, , Solicitor for the applicant, be
advised of Council 's decision.
. . . 2
ATTACHMENT #1
ADDENDUM WD-73-92
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REPORT NO. : WD-73-92 PAGE 2
REPORT
1.0 ATTACHMENTS
No. 1: Letter dated November 12, 1991, from Ronald F.
Worboy
No. 2: Key Map
No. 3: Proposed By-law
2.0 BACKGROUND
2 . 1 The house owned by Verna Marion Samis encroaches onto I
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,
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, t
Walter A. Evans, P.Eng. Lawrence E. Kots ff,
i
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
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RONALD E WORBOY B,A.,I TELEPHONE (4(6)723-2288
.L.B.
16ttrriotrr,Jsal4iter
• P.O.BOX 21
IS3 SIMCOE STREET NORTH
OSHAWA, ONTARIO
UH 7K8
November 12th, 1991?"--
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Mj. r-!
Corporation of the Town of Newcastle, .. —
40 Temperance Street, Gc.—
Bowmanville, Ontario.
Attention: Ms. - Jan O'Neill
Dear Sirs:
Re: Estate of -
Frederick Milton Samis and FILE____ _
Verna Marion Samis, Part of Lot 31, -'
Concession 9, Town of Newcastle
Regional Municipality of Durham
File No. 101670/90
Please be advised that the writer is solicitor for the Estat
Of Frederick Milton Samis and Verna Marion Samis. e
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 on
Part 1 and you will note that a portion of the home encroaches
the road allowance between Concession 8 and 9 and further on the
road allowance between Lots 30 and 31, Concession 9.
The subject home was constructed in or about 1877. The home
has been of great historical significance in the Hamlet of Enfield
as prior to the occupation by Mr. and Mrs. Samis it was the store
and post office.
. . . . . . . . . . . . . .2
ATTACHMENT N0. 1
WD-73-92
,{ i
- 2 -
Mr. and Mrs. Samis have resided on the subject property since '
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 tru
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RFW/LRB RON D F. WORBOY
ENCLOSURES
CC. Mrs. Griffin
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DRAWN BY: J. M DATE: MAY 1992 .
ATTACHMENT N0. 2
_) WD-73-92
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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 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
CLERK
ATTACHMENT NO. 3
WD-73-92
f
SCHEDULE
THIS AGREEMENT made as of the day of , 199 .
BETWEEN:
THE CORPORATION OF THE TOWN OF NEWCASTLE
(hereinafter referred to as-the 'Town")
-and- ESTATE OF FREDERICK MILTON SAMIS
AND VERNA MARION SAMIS
(hereinafter referred to as the "Licensee")
WHEREAS:
A. The Licensee is the registered owner of the Lands in the Town of Newcastle
described in Schedule "A" annexed hereto, which lands are municipally known as
1648 Concession Road 9 (hereinafter referred to as "the Property");
B. The public highways known as Conc. Road 9 and Enfield Road forms part
of the road system under the jurisdiction of the Town;
C. The Licensee has made application to the Town for permission to maintain an
encroachment within the road allowance of Conc. Road 9 and Enfield Road
(hereinafter referred to as the 'Road Allowance") in the 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
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.
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3. The Licensee will, at its own cost, charge and expense and to the satisfaction of the M
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 SLA
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 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 ($5,000,000.00) 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. The 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
with the name and address of the transferee or purchaser and ii) this Licence shall
terminate.
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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 th
Encroachments shall comply with all applicable statutes, by-laws and regulations.e
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.
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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 Hamre
And:
Clerk - Patti Barrie
WITNESS: )
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WITNESS: )
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SCHEDULE "B"
4 Height of
Part I.oeation on Approximate Bottom Maximum
of Prone Size Above Grade Encroachment
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