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HomeMy WebLinkAboutPLN 31-20Report to Executive Committee Report Number: PLN 31-20 Date: December 7, 2020 From: Kyle Bentley Director, City Development & CBO Subject: Heritage Property Tax Relief Program and Implementing By-law City of Pickering File: A-3300-049 Recommendation: 1.That the Heritage Property Tax Relief Program and By-law be approved and the implementing by-law to provide property tax relief to eligible heritage properties in the City of Pickering, as set out in Appendix I to Report PLN 31-20, be enacted by Council; 2.That the City Clerk give notice of this by-law to the Minister of Finance and the Region of Durham within 30 days of the passing of the by-law; and 3.That the appropriate City of Pickering officials be authorized to take actions as necessary to implement the recommendations in this report. Executive Summary: The Municipal Act provides a tool for municipalities to provide property tax relief to eligible heritage properties through the enactment of a by-law. The program provides an incentive for owners to make regular investments in the ongoing maintenance and conservation of their properties. Further, with ongoing repair and maintenance, costly major renovation projects can be avoided. Eligible properties include those either individually designated or those designated within the Whitevale Heritage Conservation District, under the Ontario Heritage Act (the “Act”), specifically those listed as having cultural or architectural significance within the district. Eligible properties must also be subject to a Heritage Easement Agreement with the City under Section 37 of the Act and must comply with other additional criteria as set out in the by-law. Additionally, through this program, property owners will be required to make an application to the City each year, and City staff must be permitted to arrange a site visit to inspect the property when appropriate. Heritage Pickering supports the proposed Heritage Tax Relief Program and recommends that the by-law to provide property tax relief to eligible heritage properties in the City of Pickering be approved. Accordingly, staff recommend that Council approve the Program and corresponding by- law to provide property tax relief to eligible heritage properties in the City of Pickering. The draft by- law to be enacted is attached as Appendix I. Report PLN 31-20 December 7, 2020 Subject: Heritage Property Tax Relief Program and Implementing By-law Page 2 Financial Implications: Approximately 50 properties could be eligible for this program in the City of Pickering. The by-law identifies a 20 percent refund to properties enrolled in the program, which represents a refund of approximately $22,000 in City taxes yearly. Any costs associated with enrollment into the program will be paid for by the property owner. 1.Discussion At the September 28, 2020 Council meeting, staff were directed to report back to Council, by the end of 2020, with a Heritage Property Tax Rebate Program, based on the Notice of Motion presented at the July 27, 2020 Council meeting. Heritage property tax relief is a financial tool for municipalities to help owners of eligible heritage properties continue to maintain and restore these properties. Section 365.2 of the Municipal Act gives municipalities the option of establishing a program to provide property tax relief to owners of heritage properties. Municipalities must first pass a by-law to adopt the program. The draft by-law to provide property tax relief to eligible heritage properties, attached as Appendix I to this report, has been prepared in consultation with the City’s Finance Department and Corporate Services Department. 2.Benefits of a heritage property tax relief Well maintained heritage properties enrich the quality of life and give communities a sense of place and unique character. However, many are privately owned. The program provides an incentive for owners to make regular investments in the ongoing maintenance and conservation of their properties, which avoids costly deferred major renovation projects. 3.Property Tax Relief Amount The Municipal Act allows municipalities to provide between 10 and 40 percent tax relief . The refund amount for this program is proposed to be 20 percent. The refund is applied to the City of Pickering portion of municipal taxes, as well as on the education portion. For example, a property owner would receive a 20 percent refund on the City’s portion of their tax bill and a 20 percent refund on the education portion of their tax bill. Should Council approve the attached by-law, a notice will be sent to the Ministry of Finance so that the province can fund the education portion. The Region of Durham is currently not participating in the program. Report PLN 31-20 December 7, 2020 Subject: Heritage Property Tax Relief Program and Implementing By-law Page 3 Municipalities may choose between a reduction and a refund to provide tax relief to the homeowner. Staff recommend that the City provide a credit to the property tax account similar to the Low Income Seniors/Persons with Disabilities Property Tax Grant program. The amount of taxes a property owner pays depends on the assessment of the property from the Municipal Property Assessment Corporation (MPAC). Municipalities can work with MPAC to determine the area of a property that will be subject to the heritage tax relief. It is assumed that most properties will be straightforward to assess as the tax relief would typically apply to the area of the entire property. However, in some instances, a heritage house may be located on a large farm, with other outbuildings and farming activities not described in the heritage by-law. The municipality may then apply the tax relief to only the assessed portion surrounding the dwelling or a portion of the dwelling. 4. Eligible Properties The Municipal Act sets out minimum criteria for an eligible property and also allows the municipality to have flexibility with additional criteria. The draft by-law includes the following eligibility requirements:  designated under Part IV of the Ontario Heritage Act (an individually designated property);  a property that is part of a heritage conservation district under Part V of the Ontario Heritage Act, except for properties listed without having historical or architectural significance within the Whitevale Heritage Conservation District Guide;  subject to a Heritage Easement Agreement with the City of Pickering under Section 37 of the Ontario Heritage Act;  has a realty tax class of R – Residential, and a realty tax qualifier of T – Taxable;  complies with the additional eligibility criteria, including: a building that is in a good and habitable condition, as determined by the City; staff are permitted to conduct a site inspection by the owner; the property is not in contravention of work orders, municipal requirements or liens; and applicable taxes, penalties, interest and other charges for the property have been paid to the City. There are approximately 50 eligible properties in Pickering, both within the Whitevale Heritage Conservation District and outside of the District. This number excludes properties that are currently owned by the provincial or federal governments. Should those properties be purchased by a private owner in the future for residential use, they may be considered eligible for the program. The heritage tax relief program intends to incentivize the maintenance and repair of buildings with cultural and architectural significance. Accordingly, properties within the Whitevale Heritage Conservation District that are on the list as not having historical or architectural significance, as noted in the District Guide, are excluded from the program. Report PLN 31-20 December 7, 2020 Subject: Heritage Property Tax Relief Program and Implementing By-law Page 4 5.Application process and enrollment For any given year the owner is seeking to obtain a heritage property tax refund for an eligible property, the owner may apply for the program at any time before the last day in February of the following year (a deadline mandated by the Municipal Act). The property owner will be required to submit an application form along with any additional information such as photos of the property and proof of ownership. Staff will then confirm the heritage attributes of the property and whether it meets the eligibility requirements, and may conduct research and a site visit to verify conditions. A Heritage Easement Agreement must be registered on title with the Land Registry Office. This one-time process of executing and registering the Agreement could take a few weeks to finalize. Finance staff will then enroll the eligible property into the program. The owner will be responsible to pay to the City all costs incurred by the City relating to the registration of the Heritage Easement Agreement on title with the local Land Registry Office. No additional fee will be charged by the City for enrollment. Applications must be made each year that an Owner wishes an eligible property to be considered. Staff anticipate that the homeowner, if enrolled, will receive a credit directly on their tax bill. 6.Heritage Easement Agreement A heritage easement agreement is a voluntary legal agreement between the municipality and an owner to protect the heritage features of a property and to encourage good stewardship of the property. As the agreement is voluntary, it recognizes the intention of both parties to protect the heritage character of the property. The heritage easement agreement is binding on future owners of the property. The agreement is required because, under Section 29 of the Ontario Heritage Act, municipal designation alone does not oblige owners to maintain their properties on an ongoing basis. As the purpose of the tax relief measure is to offer an incentive for heritage property conservation, relief will only be made available to those owners who have made a long -term commitment to conserving their heritage properties. The City of Pickering has prepared a draft Heritage Easement Agreement to reflect its by-law and program (see Heritage Easement Agreement, Schedule “A” of Appendix I). In addition to identifying the heritage characteristics of the property, all agreements contain certain core elements to ensure the conservation of heritage properties, including requirements for the owner to maintain the property in good condition and seek approval for alterations that would affect its heritage attributes or features, and provisions for the municipality to monitor the condition of the property periodically. Report PLN 31-20 December 7, 2020 Subject: Heritage Property Tax Relief Program and Implementing By-law Page 5 7.Program promotion The Heritage Property Tax Relief program will be advertised on the City’s website. The website will outline the process, fees, eligibility criteria and steps to make an application. Applicants will be encouraged to consult with City Development staff before making an application to ensure eligibility. Staff also plan to send potentially eligible property owners a letter by first class post each year and will advertise the program on the City's social media pages. Other options for promotion may include listing the enrolled properties on the website so that the public can view which properties are participating in the program. 8.Heritage Pickering supports the draft by-law and program The Heritage Property Tax Relief Program and the draft by-law was presented to Heritage Pickering at its October 28, 2020 meeting. Staff from the City’s Finance Department and City Development Department responded to various questions regarding the program including matters related to: the cost to run the program; the gradual growth of the program over time; how the refund will be physically given to the eligible property owner; how the program will be funded; promotion of the program; how the eligible property owner is held accountable to the program; what happens when the eligible property is sold; and, what the consequences are to an enrolled property owner opting out of the program. The Committee further noted that many heritage properties have gone through unsympathetic changes and whether those properties would be eligible, to which staff noted a site visit would be required before eligibility is determined. Heritage Committee members noted that it is very costly to maintain and repair a heritage home, so the program is a good incentive for a heritage homeowner to build up a reserve through a tax credit. They further noted it would make the City an attractive place. The Committee passed the following motion: Heritage Pickering recommends that Council approve the by-law to provide property tax relief to eligible heritage property in the City of Pickering. 9.Staff recommend approving the program and by-law to provide property tax relief to eligible heritage property in the City of Pickering Recognizing that preserving built heritage is a community benefit, the by-law provides an incentive for property owners to provide ongoing maintenance before repairs become too costly. Staff recommend that the by-law and program be approved. Appendix: Appendix I Draft By-law to provide property tax relief to eligible heritage property in the City of Pickering and Heritage Easement Agreement Report PLN 31-20 December 7, 2020 Subject: Heritage Property Tax Relief Program and Implementing By-law Page 6 Prepared By: Approved/Endorsed By: Elizabeth Martelluzzi Catherine Rose, MCIP, RPP Planner II, Heritage Chief Planner Nilesh Surti, MCIP, RPP Kyle Bentley, P. Eng. Manager, Development Review Director, City Development & CBO & Urban Design Stan Karwowski Director, Finance & Treasurer Recommended for the consideration of Pickering City Council Marisa Carpino, M.A. Interim Chief Administrative Officer Appendix I to Report PLN 31-20 Draft By-law to provide property tax relief to eligible heritage property in the City of Pickering and Heritage Easement Agreement The Corporation of the City of Pickering By-law No. XXXX/20 Being a By-law to provide property tax relief to eligible heritage property in the City of Pickering. Whereas Subsection 365.2 of the Municipal Act, 2001, S.O. 2001, c.25, as amended, provides that a local municipality may establish a program to provide tax reductions or refunds in respect of eligible heritage property; And whereas The Corporation of the City of Pickering finds it in the public interest to provide financial assistance in the terms set out in this by-law as an incentive for property owners to renovate, restore and maintain heritage property in the City of Pickering; Now therefore The Council of The Corporation of the City of Pickering hereby enacts as follows: Part 1 – Definitions “Act” means the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended. “Assessment Corporation” means the Municipal Property Assessment Corporation. “City” means The Corporation of the City of Pickering or the geographic area of the City of Pickering as the context requires. “Council” means the Council of The Corporation of the City of Pickering. “Eligible Property” means a property or portion of a property located within the limits of the City, that a) is designated under Part IV of the Act; b) is part of a heritage conservation district under Part V of the Act, except for properties listed without having Historical or Architectural Significance within the Whitevale Heritage Conservation District Guide; c) is subject to a Heritage Easement Agreement with the City under Section 37 of the Act; d) complies with the additional eligibility criteria set out in this by-law; e) has a realty tax class of R – Residential, and a realty tax qualifier of T – Taxable; and f) is in a good and habitable condition, as determined by the City. Draft By-law No. XXXX/20 Page 2 Draft “Heritage Easement Agreement” means an agreement made under Section 37 of the Act, which sets out easement or covenant obligations with respect to but not limited to the preservation of heritage features and value of heritage property and is registered on title to an Eligible Property in the Land Registry Office, and which is enforceable by the City against the Owner and subsequent Owner of an Eligible Property. “Owner” means the registered owner(s), from time to time, of an Eligible Property, and includes a corporation and partnership and the heirs, executors, administrators and other legal representatives. “Program” means the Heritage Property Tax Relief Program. Part 2 – Application and Eligibility 2.1 An Owner of an Eligible Property must make an application to the Program by submitting the prescribed application form to the City no later than the last day of February in the year following the year for which the Owner is seeking to obtain a heritage property tax reduction or refund. Applications received after this deadline will not be accepted. 2.2 Upon acceptance of a satisfactorily completed application, the Director, City Development & CBO, and if necessary in consultation with the Heritage Committee, may approve a Heritage Easement Agreement with the Owner. Upon confirmation that the Heritage Easement Agreement has been approved, executed and registered on title to the Eligible Property, the City’s Finance Department shall enroll the Eligible Property in the Program. 2.3 Applications to the Program must be made each year that an Owner wishes an Eligible Property to be considered for a heritage property tax reduction or refund. 2.4 In order to determine eligibility for the Program, the Owner consents to the inspection of the potentially Eligible Property as and when deemed necessary by the City Development Department of the City or its designate. 2.5 Where multiple Heritage Easement Agreements are registered on title to one parcel of land comprising an Eligible Property, multiple heritage property tax reductions or refunds will not be provided in respect of the same heritage features of the Eligible Property. 2.6 The Program is subject at all times to funding made available by Council in its annual budget. This by-law does not obligate Council to provide funding for the Program, and the heritage property tax reduction or refund contemplated by this by-law may be eliminated by Council through repeal of this by-law at any time with no notice whatsoever to any affected persons. 2.7 The Program is subject to any regulations that the Minister of Finance may make governing by-laws on tax reductions or refunds for heritage property. By-law No. XXXX/20 Page 3 Draft Part 3 – Non-Compliance 3.1 In the event that: (a) Pickering’s City Development Department or its designate determines that the Heritage Easement Agreement has not been complied with to the satisfaction of the City; (b) the Eligible Property is in contravention of work orders, municipal requirements or liens; or (c) applicable taxes, penalties, interest and other charges for the Eligible Property have not been paid to the City, then no heritage property tax reduction or refund will be issued to the Owner and the City shall require the Owner to repay part or all of any heritage property tax reduction or refund previously provided to the Owner during any period of non-compliance. Upon the City Development Department or its designate being satisfied that the Owner has brought the Eligible Property back into compliance, the Eligible Property will be re-enrolled in the Program. 3.2. Pickering’s City Development Department or its designate shall send written notice to the Owner of the Eligible Property informing the Owner that the Eligible Property was found to be out of compliance. The written notice shall describe the nature of the non-compliance. 3.3. An Owner who has received written notice pursuant to Section 4.1, shall have thirty (30) days to: (a) bring the Eligible Property into compliance to the satisfaction of the Pickering’s City Development Department or its designate; or (b) satisfy Pickering’s City Development Department or its designate that a workable plan has been developed to bring the Eligible Property into compliance. 3.4 Upon being satisfied that the Eligible Property is back in compliance, Pickering’s City Development Department or its designate shall provide written notification to the Owner and the City’s Finance Department indicating that the Eligible Property is in compliance and that the heritage property tax reduction or refund will continue. 3.5 In the event the Owner does not bring the Eligible Property back into compliance within the timeline pursuant to Section 4.3, the City shall remove the Eligible Property from the Program. 3.6 Should an Eligible Property be removed from the Program for non -compliance, the City shall add the value of any heritage property tax reduction or refund previously provided, plus applicable penalties and interest, to the Owner’s property tax bill. By-law No. XXXX/20 Page 4 Draft Part 4 – Annual Tax Reduction or Refund 4.1 Subject to the conditions set out in this by-law, an Owner shall receive a heritage property tax reduction or refund for each year in which the Owner and the Eligible Property meet all of the requirements of this by-law. Part 5 – Amount of Tax Reduction or Refund 5.1 The amount of heritage property tax reduction or refund provided in respect of an Eligible Property shall be twenty percent (20 percent) of the taxes for municipal and school purposes levied on the whole or a portion of the Eligible Property. 5.2 The Owner shall pay to the City all costs incurred by the City to register the Heritage Easement Agreement on title to the Eligible Property prior to such registration. Part 6 – Property Assessment 6.1 The City will work with the Assessment Corporation to determine the whole or portion of a property’s total assessment that is attributable to the building or structure that is an Eligible Property, and the land used in connection with it . It will be solely the City’s decision to determine the amount of heritage property tax reduction or refund applicable to the Eligible Property. 6.2 In the event that an Eligible Property’s assessed value, as determined by the Assessment Corporation, changes for any reason whatsoever, then the amount of the heritage property tax reduction or refund shall be recalculated accordingly. Part 7 – Interest 7.1 The City may require the Owner to pay interest on the amount of any repayment under this by-law, at a rate not exceeding the lowest prime rate reported to the Bank of Canada by any of the Banks listed in Schedule I of the Bank Act (Canada), calculated from the date or dates the heritage property tax reduction or refund was provided. Part 8 – Penalty 8.1 If the Owner of an Eligible Property demolishes the property or breaches the terms of a Heritage Easement Agreement, the City shall require the Owner to repay part or all of any heritage property tax reductions or refunds provided to the Owner for one or more years under this by-law. By-law No. XXXX/20 Page 5 Draft Part 9 – Sharing of Repayment 9.1 Any amount repaid to the City by the Owner pursuant to this by-law shall be shared by the City and the School Boards and the Region of Durham, if the Region has enacted a heritage property tax by-law, that share in the revenue from taxes on the Eligible Property, in the same proportion that they shared in the cost of the heritage property tax reduction or refund on the Eligible Property. Part 10 – Notification 10.1 The City Clerk is hereby directed to give notice of this by-law to the Minister of Finance and the Region of Durham within thirty (30) days of the passing of this by-law. Part 11 – Schedules 11. 1 Schedule “A” (Form of Heritage Easement Agreement) is attached to and forms part of this by-law. 11.2 Unless otherwise specified, references in this by-law to Parts, Sections and Schedules are to Parts, Sections and Schedules in this by-law. Part 12 – Delegation 12.1 Council delegates to the Mayor and City Clerk the authority to execute all Heritage Easement Agreements, and any amendments thereto, as required from time to time, in the form attached hereto as Schedule “A” and subject to such revisions as are satisfactory to the Director, City Development & CBO, for the purpose of satisfying the City’s requirements for such Agreement pursuant to this by-law. Part 13 – Force and Effect 13.1 This by-law shall come into force and effect on the date it is passed. By-law passed this XX day of XXXX, 2020. ________________________________ David Ryan, Mayor ________________________________ Susan Cassel, City Clerk Schedule “A” Form of Heritage Easement Agreement This Heritage Easement Agreement made _________________, B e t w e e n: * (the “Owner”) and The Corporation of the City of Pickering (the “City”) Whereas: (1) The Owner is the registered owner of certain lands and premises situated in the City of Pickering in the Regional Municipality of Durham and Province of Ontario, and municipally known as ________________________, and more particularly described in Schedule “A” attached hereto (the “Property”) and on which is erected a heritage building (the “Building”). (2) One of the purposes of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended or re-enacted from time to time (the “Act”), is to support, encourage and facilitate the conservation, protection and preservation of the heritage of Ontario. (3) By Subsection 37(1) of the Act, the City is entitled to enter into easements or covenants with owners of real property, or interests therein, for the conservation, preservation and protection of property of historic or architectural value or interest. (4) By Subsection 37(3) of the Act, such easements and covenants entered into by the City when registered in the proper Land Registry Office against the real property affected by them shall run with the real property and may, whether positive or negative in nature, be enforceable by the City or its assignee against the Owner or any subsequent owner of the real property, even where the City owns no other land which would be accommodated or benefited by such easements and covenants. (5) The Owner and the City recognize the heritage significance, ch aracter and features of the Property as set out in the by-law designating the Property to be of cultural heritage value or interest (the “Heritage Features”) which Heritage Features are described in Schedule “B” attached hereto. Draft Draft (6) The Owner and the City desire to conserve the historical, architectural, contextual, aesthetic, scenic and heritage characteristics and condition of the Property through the conservation of its Heritage Features. (7) To this end, the Owner and the City agree to enter into this heritage easement agreement (the “Agreement”). The parties agree that in consideration of the sum of Two Dollars ($2.00) of lawful money of Canada now paid by the City to the Owner (the receipt of which is hereby acknowledged), and for other valuable consideration, and in further consideration of the granting of the easements herein and in further consideration of the mutual covenants and restrictions hereinafter set forth, the Owner and the City agree to abide by the following covenants, easements and restrictions which shall run with the Property forever. 1. Purpose (1) It is the purpose of this Agreement to ensure that the heritage character of the Property will be preserved in perpetuity as part of the herit age of Ontario (the “Purpose”). To achieve this Purpose, the Owner and the City agree that the Heritage Features will be retained, maintained and conserved by the Owner through the application of recognized heritage conservation principles and practices and that no change shall be made to the Heritage Features that will adversely affect the heritage character of the Property as set out in the Heritage Character Statement (as hereinafter defined). (2) Any reference in this Agreement to the Property includes the Building. 2. Heritage Character Statement The Owner and the City agree that the heritage character statement, as outlined in By-law ____/__ and set out in Schedule “B” attached hereto (the “Heritage Character Statement”), explains the heritage significance and character of the Property and that the Heritage Features comprise the features of the Property that are to be conserved under this Agreement in order to preserve and protect the heritage significance and character of the Property. 3. Photographs Relevant to Duties of Owner (1) The Owner and the City agree that the photographs, contained in Schedule “C” attached hereto (the “Photographs”), the originals of which are filed with, and may be examined at, the City or wherever they may be from time to time located, generally depict certain significant features of the appearance or the construction of the Property. The Heritage Character Statement, Heritage Features and the Photographs shall be referred to in determining the duties of the Owner under this Agreement. Draft (2) In the event that alterations are made to the Property pursuant to Section 4(2), the Owner shall, within ninety (90) days of completion of such alterations and at the Owner’s expense, provide to the City new photographs taken from the same vantage point and identifying the same features of the appearance or construction as the original Photogra phs contained in Schedule “C”. Such replacement photographs shall be incorporated immediately into Schedule “C” by way of amendment to this Agreement, and shall replace the Photographs contained in Schedule “C”. After such amendment is made, all references in this Agreement to the Photographs contained in Schedule “C” shall be taken to be references to such replacement photographs. 4. Duties of Owner (1) The Owner shall at all times and, subject to compliance with the requirements of Section 4(2), maintain the Property in as good and sound a state of repair as a prudent owner would normally do so that no deterioration in the present condition and appearance of the Heritage Features shall take place except for reasonable wear and tear. The Owner’s obligation to maintain the Property shall require that the Owner undertake such preventative maintenance, repair, stabilization and replacement whenever necessary to preserve the Property in substantially the same physical condition and state of repair as that existing on the date of this Agreement and to take all reasonable measures to secure and protect the Property from vandalism, fire and damage from inclement weather. (2) The Owner shall not, without the prior written approval of the City, undertake or permit any demolition, construction, reconstruction, renovation, restoration, alteration, remodeling, or any other thing or act which would materially affect the condition, appearance or construction of the Heritage Features. The Owner may, without the prior written approval of the City, undertake or permit the repair or refinishing of the Property where damage has resulted from casualty, loss deterioration or wear and tear, provided that such repair or refinishing is not performed in a manner which would materially affect the condition, appearance or construction of the Heritage Features. (3) Notwithstanding the provisions of Section 4(2), the Owner may undertake such temporary measures in respect of the Property as are reasonably necessary to deal with an emergency situation which puts the security or integrity of the Property at risk of damage or occupants of the Property at risk of harm provided that such measures are: (a) in keeping with the Purpose of this Agreement; (b) consistent with the conservation of the Heritage Features; (c) consistent with the requirements of the Building Code Act, 1992, S.O. 1992, c.23, as amended or re-enacted from time to time; and (d) where time permits, the City is consulted before any such measures are undertaken. Draft In any case, the Owner shall advise the City forthwith when it undertakes temporary measures in respect of the Property in an emergency situation. (4) The Owner shall not place or affix on the Property any signs, permanent storm screens, awnings, satellite receiving dishes, or other similar objects and fixtures without the prior written approval of the City. Such approval may, in the sole discretion of the City and for any reason which the City considers necessary, be refused. (5) The Owner shall not in respect of the Property, except with the prior written approval of the City: (a) grant any easement or right-of way which would adversely affect the easement hereby granted; (b) erect or remove or permit the erection or removal of any building, sign, fence or other structure of any type whatsoever; (c) allow the dumping of soil, rubbish, ashes, garbage, waste or other unsightly, hazardous or offensive materials of any type or description; (d) except for the maintenance of existing improvements, allow any changes in the general appearance or topography of the lands, including and without limiting the generality of the foregoing, the construction of drainage ditches, transmission towers and lines, and other similar undertakings as well as the excavation, dredging or removal of loam, gravel, soil, rock, sand or other materials; (e) allow the planting of trees, shrubs or other vegetation which would have the effect of (i) reducing the aesthetic value of the Building or the Property; or (ii) cause any damage to the Building or the Property; (f) allow any activities, actions or uses detrimental or adverse to water conservation, erosion control and soil conservation; and (g) allow the removal, destruction or cutting of trees, shrubs or vegetation except as may be necessary for (i) the prevention or treatment of disease; or (ii) other good agriculture practices. 5. Owner’s Reserved Rights The Owner expressly reserves for itself the right to use the Property and carry out such activities as are consistent with the Purpose of this Agreement and which do not materially affect, directly or indirectly, the Heritage Features in an adverse manner. Draft 6. Alterations and Development (1) Where the Owner seeks pursuant to Subsection 33 of the Act to alter or develop the Property, the Owner shall, at its expense, provide to the City such information in such detail as the City may reasonably require in order for the City to consider and assess the Owner’s request including without limitation the following: (a) plans, specifications and designs for any proposed work; (b) materials samples; (c) work schedule; and (d) such other reports, studies or tests as may in the circumstances be reasonably required for the City to assess appropriately the impact of the proposed work on the Heritage Features. (2) Where any request for approval required under this Agreement is submitted to the City, the determination of the City may be based upon choice of materials, architectural design, historical authenticity or any other grounds, and not limited to purely aesthetic or historical grounds. In giving its approval, the City may specify such conditions of approval as the City considers necessary or appropriate in the circumstances to ensure the conservation of the Heritage Features. (3) If the approval of the City is given, the Owner in undertaking or permitting the construction, alteration, remodeling, or other thing or act so approved of, shall comply with all of the conditions of approval specified by the City in its approval including its use of materials and methods. (4) In the event that the Owner is in default of any of its obligations under this Agreement and the City has, pursuant to Section 11(1), notified the Owner of such default, then the City may refuse to consider any request for approval submitted by the Owner whether requested before or after such notice of default has been given to the Owner. (5) Any approval given by the City under this Agreement shall have application only to the requirements of this Agreement and does not relieve the Owner from obtaining any approvals, pe rmits or consents of any authority whether federal, provincial, municipal or otherwise that may be required by any statute, regulation, by-law, guideline, policy or by any other agreement. Draft 7. Indemnity The Owner shall hold harmless and indemnify the City, its employees, officers, elected officials, agents, contractors and representatives against and from any and all actions, claims costs, damages, demands, judgments, liabilities, losses, proceedings, suits, expenses or costs whatsoever (including all costs of defending such claims) arising out of, incidental to, or in connection with any injury or damage to person or property of every nature and kind (including death resulting therefrom), occasioned by any act or omission of the Owner related to this Agreement, save and except for any such liabilities and claims caused by the City, its employees, officers, elected officials, agents, contractors and representatives. 8. Insurance (1) The Owner shall deliver to the City upon the execution of this Agreement a certificate of insurance in a form satisfactory to the City, evidencing that the Building is insured against normal perils that are coverable by fire and extended coverage insurance in an amount equal to the replacement cost of the Building. Thereafter, evidence satisfactory to the City of the renewal of the insurance shall be delivered to the City at least thirty (30) days before the termination thereof. The insurance policy shall, state that the policy will not be altered, cancelled or allowed to lapse without thirty (30) days prior notice to the City. (2) If the Owner fails to obtain the insurance or if the insurance is cancelled, the City may effect such insurance and the premium and any other amount paid in so doing shall forthwith be paid by the Owner to the City, or if not, shall be a debt owing to the City and recoverable from the Owner by action in a court of law. (3) All proceeds receivable by the Owner under the insurance shall, on the written demand and in accordance with the requirements of the C ity, be applied to the replacement, rebuilding, restoration or repair of the Building to the fullest extent possible having regard to the Heritage Features, the particular nature of the Building and the cost of such work. 9. Damage or Destruction (1) The Owner shall notify the City of any damage or destruction to the Building within ten (10) days of such damage or destruction occurring. (2) In the event that the Building is damaged or destroyed and the replacement, rebuilding, restoration or repair of it is impractical because of the financial costs involved, or because of the particular nature of the Building, the Owner shall, in writing within forty (40) days of the giving by the Owner of notice under Section 9(1) of such damage or destruction, request written approval by the City to demolish the Building in accordance with Section 4(2). Draft (3) In the event that either the Owner does not request or the City does not give the approval referred to in Section 9(2), the Owner shall replace, rebuild, restore or repair the Building so as to effect the complete restoration of the Building. Before the commencement of such work, the Owner shall submit all plans and specifications for the replacement, rebuilding, restoration or repair of the Building to the City for its written approval within one hundred and thirty-five (135) days of the damage or destruction occurring to the Building. A refusal by the City to approve any plans and specifications may be based upon choice of materials, appearance, architectural style or any other ground or grounds including, but not limited to, purely aesthetic grounds, and the determination of the City shall be final. The Owner shall not commence or cause such work to be commenced before receiving the written approval of the City of the plans and specifications for it, and such work shall be performed upon such terms and conditions as the City may stipulate. The Owner is required to obtain any approvals, permits or consents of any authority whether federal, provincial, municipal or otherwise that may be required by any statute, regulation, by-law, guideline, policy or by any other agreement as necessary. The Owner shall cause all replacement, rebuilding, restoration and repair work on the Building to be commenced within thirty (30) days of the approval by the City of the plans and specifications for it and to be completed within nine (9) months of commencement, or as soon as possible thereafter if factors beyond their control prevent completion within the said nine (9) months, and the Owner shall cause all such work to conform to the plans and specifications approved of and terms and conditions stipulated by the City. (4) In the event that either the Owner does not request or the City does not give the approval referred to in Section 9(2) and the Owner fails to submit plans and specifications pursuant to Section 9(3) which are acceptable to the City within one hundred and thirty-five (135) days of the damage or destruction occurring to the Building, the City may prepare its own set of plans and specifications for the work and shall deliver a set of the City’s plans and specifications to the Owner. The Owner shall have thirty (30) days from receiving a copy of such plans and specifications to notify the City in writing that it intends to undertake the work in accordance with those plans and specifications. (5) If the Owner does not so notify the City within the said thirty (30) days, the City may (but shall not be obligated to) undertake the work. The Owner shall reimburse the City for all expenses incurred by the City in undertaking the work, including any professional or consulting costs reasonably incurred in connection with the work. Such expenses incurred by the City shall, until paid to it by the Owner, be a debt owing to the City and recoverable by the City from the Owner by action in a court of law. Draft (6) The Owner grants to the City the right and licence to enter and occupy the Property and the Building or such part of parts thereof that the City considers necessary or convenient for the City and its contractors to undertake and complete the work. Such licence shall be exercisable by the City on the commencement of any work undertaken by the City and shall terminate when such work has been completed. 10. Inspection The City or its representatives shall be permitted at all reasonable times during normal business hours to enter upon and inspect the Property and the Building upon giving at least twenty-four (24) hours prior written notice to the Owner. 11. Remedies of City (1) If the City, in its sole discretion, is of the opinion that the Owner has neglected or refused to perform any of its duties or obligations set out in this Agreement, the City may, in addition to any of its other legal or equitable remedies, give the Owner written notice setting out the particulars of the Owner’s default and the actions required to remedy the default. The Owner shall have thirty (30) days from receipt of such notice to remedy the default in the manner specified by the City or to make other arrangements satisfactory to the City for remedying the default within such period of time as the City may specify. (2) Where the Owner does not rectify the default as required by the City or make arrangements satisfactory to the City for remedying the default, or if the Owner does not carry out the arrangements to remedy the default within the period of time specified by the City, the City may, (a) cancel the Owner’s heritage tax reduction or refund; and/or (b) enter upon the Property and carry out the Owner’s obligations and the Owner shall reimburse the City for any expenses incurred thereby. Such expenses incurred by the City shall, until paid to it by the Owner, be a debt owed by the Owner to the City and recoverable by the City by action in a court of law. The provisions of Section 9(6) shall apply with all necessary changes required by the context to any entry by the City onto the Property to remedy the default. Draft 12. Notice (1) Any notices to be given or required under this Agreement shall be in writing and sent by personal delivery, electronic transmission (facsimile or email), or by ordinary prepaid mail to the following addresses: to the Owner at: Address: Attention: _______________________, Fax No./Email: and to the City at: Pickering Civic Complex, One The Esplanade, Pickering, ON L1V 6K7 Attention: City Clerk, Fax No.: 905.420.9685 (2) The parties may designate in writing to each other a change of address at any time. Notice by mail shall be deemed to have been received on the fifth (5th) business day after the date of mailing, and notice by personal delivery or electronic transmission (facsimile or email) shall be deemed to have been received at the time of the delivery or transmission. In the event of an interruption in postal service, notice shall be given by personal delivery or electronic transmission (facsimile or email). 13. Plaque and Publicity The Owner agrees to allow the City, at its expense, to erect a plaque on the Property, in a tasteful manner and in such location as the City may determine, acting reasonably, indicating that the City holds a heritage conservation agreement on the Property. The Owner also agrees to allow the City to publicize the existence of this Agreement and the Heritage Features in its publications, educational materials and research databases. 14. General (1) The failure of the City at any time to require performance by the Owner of any obligation under this Agreement shall in no way affect its right thereafter to enforce such obligation, nor shall the waiver by the City of the performance of any obligations hereunder be taken or be held to be a waiver of the performance of the same or any other obligation hereunder at any later time. Any waiver must be in writing and signed by the City. (2) Time shall be of the essence of this Agreement. Any time limits specified in this Agreement may be extended with the consent in writing of the City, but no such extension of time shall operate to be deemed to operate as an extension of any other time limit, and time shall be deemed to remain of the essence of this Agreement notwithstanding any extension of any time limit. Any extension must be in writing and signed by the City. Draft (3) All covenants, easements and restrictions contained in this Agreement shall be severable, and should any covenant, easement or restriction in this Agreement be declared invalid or unenforceable, the validity and enforceability of the remaining covenants, easements and restrictions shall not be affected. (4) In the event that a dispute arises between the parties hereto because of this Agreement, each party shall be responsible for its own legal fees, court costs and all other similar expenses that may result from any such dispute except where costs are awarded by a court or a tribunal. (5) This Agreement embodies the entire agreement of the parties with regard to the matters dealt with herein, and no understandings or agreements, verbal, collateral or otherwise, exist between the parties except as herein expressly set out. (6) Notice of this Agreement shall be inserted by the Owner in any subsequent deed, lease or other legal instrument by which it transfers the fee simple title to or its possessory interest in the whole or any part of the Property provided that such notice shall not be required where the Owner, in leasing and licensing premises associated with the Property, retains responsibility for the alteration of any Heritage Features forming part of the licensed or leased premises and the tenant or licensee has no authority to alter such Heritage Features. (7) The Owner shall immediately notify the City in the event that it transf ers either the fee simple title to or its possessory interest in the whole or any part of the Property, provided that such notice shall not be required where the Owner, in leasing and licensing premises associated with the Property, retains responsibility for the alteration of any Heritage Features forming part of the licensed or leased premises, and the tenant or licensee has no authority to alter such Heritage Features. Notice of these covenants, easements and restrictions shall be inserted by the Owner in any subsequent deed or other legal instrument by which they divest themselves either of the fee simple title to or of their possessory interest in the Property. (8) This Agreement shall be registered on title to the Property by the City, at the Owner’s expense, and the covenants, easements and restrictions set out herein shall run with the Property and enure to the benefit of and be binding upon the parties hereto and their heirs, executors, administrators, personal representatives, successors and assigns, as the case may be. (9) The Owner shall, at its expense, obtain and register any postponements or other agreements that the City may require to ensure that this Agreement shall be a first encumbrance on title to the Property in all mortgages, charges, leases and other encumbrances or agreements affecting the Property. Draft (10) The City may assign all of its interest in this Agreement to any person in accordance with Subsection 37(4) of the Act. The City shall not be liable to the Owner for any breach or default in the obligations owed to the Owner under this Agreement committed after notice of the assignment of this Agreement has been given to the Owner. (11) No person who is an Owner shall be liable to the City for any breach of or default in the obligations of the Owner owed to the City under this Agreement committed after the registration of a transfer by such person of that person’s entire interest in the Property to another person, provided that the Owner has delivered to the City notice of such transfer and an acknowledgement and assumption executed by the new registered owner, acknowledging the priority of this Agreement and the interest of the City, and assuming the obligations of the Owner under this Agreement. (12) Words importing the masculine gender include the feminine or neutral gender and words in the singular include the plural, and vice versa. Whenever the Owner comprises more than one person, the Owner’s obligations in this Agreement shall be joint and several. (13) The headings in the body of this Agreement form no part of the Agreement but are inserted for convenience of reference. (14) The recitals at the head of this Agreement are true and accurate and form a part thereof. (15) Schedules “A”, “B” and “C” are attached to and form part of th is Agreement. (16) This Agreement may be executed in any number of counterparts, and each of such counterparts shall constitute an original of this Agreement and all such counterparts together shall constitute one and the same agreement. This Agreement or counterparts hereof may be executed and delivered by fax or email, and the parties adopt any signatures provided or received by fax or email as original signatures of the applicable party or parties. Draft In Witness Whereof the City and the Owner have executed this Agreement as of the date first written above. Witness: ____________________________ __________________________________ Print Name: * Witness: ____________________________ __________________________________ Print Name: * The Corporation of the City of Pickering __________________________________ David Ryan, Mayor _________________________________ Susan Cassel, City Clerk Draft Schedule “A” Description of the Property [insert complete legal description (include PIN if available)] Draft Schedule “B’” Heritage Character Statement and Heritage Features 1. Heritage Character Statement [to be inserted] 2. Heritage Features [to be inserted] Draft Schedule “C” Photographs [to be inserted}