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Home My WebLink AboutWD-73-92 THE CORPORATION OF THE TOWN OF NEWCASTLE REPORT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File # L-L( -,—1/1 Date: OCTOBER 5, 1992 Res. # Report#: File #: _D_JL9_-_3—1.0 1 By-Law# Subject: REQUEST FOR ENCROACHMENT AGREEMENT ESTATE OF FREDERICK MILTON SAMIS AND VERNA MARION SAMIS 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 "All 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 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 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 . I Respectfully submitted, Recommended for presentation to the Committee, Walter A. Evans, P.Eng. Lawrence E. Kots f , Director of Public Works Chief Administr. t. 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)723-2288 RONALD F. WORBOY, B.A.,LL.B. �ttrri�ter,�saliritar • P.O.BOX 21 153 SIMCOE STREET NORTH OSHAWA, ONTARIO LIH 7K8 November 12th, 1991.-.r- P.w 0: : --------------- r-,,: ----- Corporation of the Town of Newcastle, G ; 40 Temperance Street, Bowmanville, Ontario. Attention: Ms. • Jan O'Neill i 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 Estate of Frederick Milton Samis and Verna Marion Samis. I enclose copy of Plan 1OR3970 which is an R Plan recently deposited in the Registry Office. The R. Plan shows the location of the home of Mrs. Samis in Part 1 and you will note that a portion of the home encroaches on the road allowance between Concession 8 and 9 and further on the road allowance between Lots 30 and 31, Concession 9. The subject home was constructed in or about 1877. The home has been of great historical significance in the Hamlet of Enfield as prior to the occupation by Mr. and Mrs. Samis it was the store and post office. . . . . . . . . . . . . . .2 ATTACHMENT N0. 1 WD-73-92 i 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 RFW/LRB RON D F. WORBOY ENCLOSURES CC. Mrs. Griffin I o •. — 0.13 m metal clad I garage N 0.09 m I>1 Q' O L d 1.74 m 2 storey frame house 1.54 m street line (5.1') 11.02 m 1.02 m (3.4') (3.4') CONCA'SSION ROAD 9 II CONCESSION II �II 1 POAO 10 I 11 f 11 all II r 11 0ll Z 11 JII II II W'I Oil 11 r 1 ull II ~�I < O ; I CONCESSION 57 It It � O O ROAD 9 � O h N it 11 ONC SION ti ROAD 9 J O SUBJECT I AQ7' o HII Sl TE, Q Z fll Q� OII � II l DRAWN BY: J. MM DATI E: MAY 1_ s ATTACHMENT N0. 2 III WD-73-92 11UJ 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 j I SCHEDULE "A" 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. I I J ;J 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 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 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. 3 8. Without derogating from paragraph 3 hereof, if the Town passes regulations which would have the effect of requiring removal of the Encroachments over the Road Allowance, the Licensee, upon receipt of notice in writing from the Director to do so, will remove the Encroachments and appurtenances thereto from the Road Allowance and restore the Road Allowance, all to the satisfaction of the Director before the date specified in such notice, without being entitled to any compensation whatsoever for such removal,and if the Licensee fails to remove the Encroachments and appurtenances thereto and restore the Road Allowance as herein provided, the Town may remove same at the cost, charge and expense of the Licensee and the certificate of the Director as to the cost of such removal shall be final and binding upon the Licensee and the Town may recover such costs from the Licensee in any court of competent jurisdiction as a debt due and owing to the Town. 9. The Encroachments shall be constructed,installed,occupied,and maintained in such a manner so as to ensure that there will be no interference with pedestrian or vehicular traffic and that the line of sight of any traffic sign or signal is not obscured. 10. The construction, installation, occupation, operation and maintenance of the Encroachments shall comply with all applicable statutes, by-laws and regulations. 11. The Licensee will pay to the Town such fee or fees for the privilege hereby granted to maintain the Encroachments as may be hereafter from time to time prescribed by the Council of the Town to be paid by all owners of encroachments which project in whole or in part over any public highway, street or lane in the Town of Newcastle for the privilege of maintaining such encroachments. 12. All such sums and costs so paid,sustained or incurred by the Town as aforesaid,and all such annual .fees or minimum fees, or further or other fees to be paid by the Licensee as aforesaid,shall form and constitute a charge or lien on the Property until fully discharged by payment thereof. 13. The Town, its respective officers, servants, workers, employees, agents and contractors under its control or supervision or any of them shall have the right from time to time and at all reasonable times during the currency of this Agreement, to enter in and upon the Property and/or the Encroachments or any part thereof,with all necessary people,plant equipment and material for the purposes of inspecting the Encroachments or removing the same from the Road Allowance as hereinbefore provided; provided that such inspection shall not free or relieve the Licensee in any way whatsoever from the liability under the covenant hereinbefore set forth to keep and maintain the Encroachments in good and proper repair and condition. 14. Any notice,request,communication or demand under this Licence shall be in writing and shall be considered properly delivered when given or served personally or by registered mail to the Town at 40 Temperance Street, Bowmanville, Ontario, Attention: Director of Public Works and the Licensee at Attention: . Such notice, request or demand shall be deemed to have been delivered on the date it is delivered if given or served personally or on the third day following mailing, if it is mailed. If at any time notice is delivered by mail and there is any cessation (whether anticipated or existing) of mail service affecting the delivery of such notice, the notice shall not be deemed to have been delivered until five (5) business days after the date that normal mail service is restored. 15. This Agreement may be registered against title to the Property and the cost of preparation and registration of the same shall be paid by the Licensee. The Licensee shall deliver to the Town, in registerable form and at the Licensee's cost, postponements of any encumbrances registered against title to the Property. 16. Nothing herein contained shall be construed as giving to the Licensee anything more than permission to erect on and attach the Encroachments to the Road Allowance and to maintain the same until such time as the removal of the Encroachments from the Road Allowance may be required as hereinbefore provided. 4 17. This Agreement and everything contained herein shall enure to the benefit of and be binding upon the parties hereto and their respective (where applicable) heirs, executors, administrators, successors and assigns. 18. This licence shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the parties submit to the jurisdiction of the courts of the Province of Ontario in order to enforce this licence. IN WITNESS WHEREOF,this licence has been duly executed by the parties hereto 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: ) WITNESS: ) i I �.� iU 5 SCHEDULE "B" Height of Part Location on Approximate Bottom Maximum of Property Proper y Size Above Grade Encroachment j j j