HomeMy WebLinkAboutBy-law 1374/81THE CORPORATION OF THE TOWN OF PICKERING
BY-LAW NO. 7374/81
Being a By-Law to authorize the execution
of an Easement Agreement between Brougham
Union Lodge No. 269 and the Corporation
of the Town of Pickering respecting the
conservation of the Brougham Union Masonic
Lodge (4955 Brock Road South; Part North
Half Lot 18, Concession 8)
WHEREAS the Architectural Conservation Committee of the Ontario
Heritage Foundation has determined that the Brougham Union Masonic
Lodge, located at 4955 Brock Road South, Claremont, is of regional
architectural significance; and
WHEREAS a condition of the making of a grant by the Ontario Heritage
Foundation to Brougham Union Lodge No. 269, the owner of the Brougham
Union Masonic Lodge, for the conservation of the present historical,
architectural, aesthetic and scenic character and condition of the
exterior of the building requires that Brougham Union Lodge No. 269
and the Town enter into an Easement Agreement, pursuant to the pro-
visions of section 37(1) of the Ontario Heritage Act, R.S.O. 1980,
chapter 337;
NOW THEREFORE, the Council of the Corporation of the Town of Pickering
HEREBY ENACTS AS FOLLOWS:
1. The Mayor and Clerk are hereby authorized to execute an Easement
Agreement, in the form attached hereto as Schedule "A", between
Brougham Union Lodge No. 269 and the Corporation of the Town of
Pickering respecting the conservation of the Brougham Union
Masonic Lodge, 4955 Brock Road South, Claremont (Part North
Half Lot 18, Concession 8).
BY-LAW read a first, second and third time and finally passed this
5th day of October , 1981.
Mayor
erg k
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SCHEDULE "A" to By-law #1379/81
THIS EASEMENT AGREEMENT made this
day of
, 1981.
B E T W E E N:
BROUGHAM UNION LODGE NO. 269
hereinafter called the "Owner"
OF THE FIRST PART,
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THE CORPORATION OF THE TOWN OF PICKERING
hereinafter called the "Town"
OF THE SECOND PART.
WHEREAS, the owner is the owner of certain lands and premises situated
in the north half of Lot 18, Concession 8, Pickering (hereinafter
called the "Property"), more particularly described in Schedule "A"
attached hereto; and
WHEREAS, one of the purposes of the Ontario Heritage Act, R.S.O. 1980,
c.337 is to support, encourage and facilitate the conservation, pro-
tection and preservation of the heritage of Ontario; and
WHEREAS, the Architectural Conservation Committee of the Ontario Her-
itage Foundation has determined that the Brougham Union Masonic Lodge,
located on the property and owned by the owner, is of regional archi-
tectural significance; and
WHEREAS, pursuant to the provisions of section 37(1) of the said Act,
the Town is entitled to enter into easements or covenants with owners
of real property, for the conservation of buildings of historic or
architectural value or interest; and
WHEREAS, pursuant to the provisions of section 37(3) of the said Act,
such easements or covenants, when registered in the proper land regis-
try office against the real property affected by them, shall run with
the real property and may, whether positive or negative in nature, be
enforced by the Town or its assignee against the Owner or any subse-
quent owners of the real property, even where the Town owns no other
land which would be accommodated or benefitted by such easement or
covenant; and
WHEREAS, a condition of the making of a grant by the Ontario Heritage
Foundation to the Owner for the conservation of the present historical,
architectural, aesthetic and scenic character and condition of the
exterior of the building on the Property (hereinafter called the
"Facade") requires that the Owner and the Town enter into this Easement
Agreement (hereinafter called the "Agreement");
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NOW THEREFORE, THIS AGREEMENT WITNESSETH THAT in consideration of the
sum of TWO DOLLARS ($2.00) of lawful money of Canada now paid by each
Party to the other (the receipt of which by each is hereby acknow-
ledged), and for other valuable consideration, and in further consid-
eration of the granting of the easements herein and in further consid-
eration of the mutual covenants and restrictions hereinafter set forth,
the owner and the Town agree to abide by the following easements and
covenants which shall run with the Property forever.
1. NORMAL REPAIRS & ALTERATIONS
(1) The Owner shall not, except as hereinafter set forth, without
the prior written approval of the Town, undertake or permit
any demolition, construction, alteration, remodelling, or any
other thing or act which would materially affect the appear-
ance or construction of the Facade, as depicted in the copies
of the drawings and other documents attached hereto and
incorporated herein as Schedule "B", and in the originals or
facsimiles thereof which are filed in, and may be examined
at, the Archives of Ontario, wherever they may be from time
to time located.
(2) The approval required to be obtained from the Town herein
shall be deemed to have been given upon the failure of the
Town to respond in writing to a written request for it within
sixty (60) days of receiving such request at its address as
set out in section 18(1) of this Agreement.
(3) If the approval of the Town is given or deemed to be given
under this section, the Owner, in undertaking or permitting
the construction, alteration, remodelling, or other thing or
act so approved of or deemed to be approved of, shall use
materials specified by the Town.
(4) The Owner shall be permitted, without the prior written
approval of the Town, to undertake or permit the repair or
refinishing of presently existing parts or elements of the
Facade, damage to which has resulted from casualty, loss,
deterioration, or wear and tear, provided that such repair or
refinishing may not be performed in a manner which would
materially affect the construction or appearance of the
Facade, as depicted in the copies of drawings and other
documents constituting Schedule "B" to this Agreement and in
the originals or facsimiles thereof filed in the Archives of
Ontario.
2. INSURANCE
(1) The owner shall at all times during the currency of this
Agreement keep the building insured against normal perils
that are coverable by fire and extended coverage insurance in
an amount equal to the replacement cost of the building.
(2) The Owner shall have a form as set out in Schedule "C"
attached hereto completed and certified by their insurance
company and delivered to the Town within three (3) weeks of
the date of this Agreement, and thereafter evidence satis-
factory to the Town of the renewal of insurance shall be
delivered to the Town at least three (3) clear days before
the termination thereof.
(3) If the Owner fails to so insure the building, or if any such
insurance on the building is cancelled, the Town may effect
such insurance as the Town reasonably deems necessary and any
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2.
INSURANCE (Cont'd)
sum paid in so doing shall forthwith be paid by the owner to
the Town, or if not, shall be a debt due and owing forthwith
to the Town and recoverable from the Owner by action in a
court of law.
3
4.
(4) All proceeds receivable by the Owner under any fire and
extended coverage insurance policy or policies on the build-
ing shall, on the written demand and in accordance with the
requirements of the Town, be applied to replacement, rebuild-
ing, restoration or repair of the building to the fullest
extent possible having regard to the particular nature of the
building, the cost of such work and any existing or subsequent
mortgages registered against the title to the Property.
(5) The Owner's financial liability to replace, rebuild, restore
or repair the building if it has been damaged or destroyed
shall not exceed the proceeds receivable by the Owner under
any fire and extended coverage insurance policy or policies.
RIGHTS OF MORTGAGEES
The owner's obligations to apply all proceeds receivable under any
fire and extended coverage insurance policy or policies on the
building to replace, rebuild, restore or repair the building shall
be subject to the rights of any mortgagees of the Property.
ASSIGNMENT OF INTERESTS OF MORTGAGEES
In the event that any mortgagee refuses to release to the Owner
any monies payable under any fire and extended coverage insurance
policy or policies after the building has been damaged or des-
troyed, thereby preventing the Owner from fulfilling its obli-
gation to replace, rebuild, restore or repair the building with
the proceeds receivable under any fire and extended coverage
insurance policy or policies, the owner shall use its best efforts,
if so requested by the Town, to make whatever arrangements are
necessary to allow the Town to take an assignment of such mort-
gagee's interests in the Property, thereby effectively assuring
that the proceeds of insurance under any fire and extended cover-
age insurance policy or,policies are made available to the Owner
so that such proceeds may be applied by the Owner to replace,
rebuild, restore or repair the building pursuant to the provisions
of sections 2, 6 and 7.
5. DEMOLITION
(1) The Owner shall notify the Town of any damage or destruction
to the building within ten (10) clear 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, or because
a mortgagee has refused to release to the Owner any insurance
monies payable under any fire and extended coverage insurance
policy or policies and the Town has been unable to secure an
assignment of a mortgage from a mortgagee as described in
section 4, the owner shall, in writing within forty (40) days
of the giving by the Owner of notice of such damage or des-
truction, request written approval of the Town to demolish
the building, and in the event of receiving such approval, be
entitled to retain any proceeds from the insurance herein-
before mentioned and to demolish the building.
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5. DEMOLITION (Cont'd)
(3) Such approval shall be deemed to have been received upon
failure of the Town to respond in writing to a written
request for it within forty (40) days of the receipt thereof.
6. RECONSTRUCTION BY OWNER
(1) If the Town does not give the approval referred to in section
5, or if the Owner has not requested the approval referred to
in section 5, the owner shall replace, rebuild, restore or
repair the building to the limit of any proceeds receivable
under any fire and extended coverage insurance policy or
policies on the building to effect a partial or complete
restoration of the Facade.
(2) 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 Town for its
written approval within one hundred and thirty-five (135)
days of the damage or destruction occurring to the building.
(3) A refusal by the Town to approve any plans and specifications
may be based upon choice of materials, unattractive appear-
ance, nonconforming architectural style, or any other ground
or grounds, including but not limited to purely aesthetic
grounds, and the determination of the Town shall be final.
(4) The owner shall not commence or cause restorative work to be
commenced on the Facade before receiving the written approval
of the Town of the plans and specifications for it, and such
restorative work shall be performed upon such terms and con-
ditions as the Town may stipulate.
(5) Such approval shall be deemed to have been received upon
failure of the Town to respond in writing to a written
request for it within ninety (90) days of the receipt of such
request by the Town.
(6) The Owner shall cause all replacement, rebuilding, restor-
ation and repair work on the Facade to be commenced within
thirty (30) days of the approval by the Town 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 its 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 Town.
7. RECONSTRUCTION BY TOWN
(1) In the event that the request to demolish the building is not
submitted or is refused pursuant to the provisions of section
5 and the Owner fails to submit plans and specifications for
the replacement, rebuilding, restoration or repair of the
Facade pursuant to section 6 which are acceptable to the Town
within one hundred and thirty-five (135) days of the damage
or destruction occurring to the building, the Town may pre-
pare its own set of acceptable plans and specifications for
the Facade.
(2) The Owner shall have thirty (30) days from receiving a copy
of such plans and specifications to notify the Town in writ-
ing that it intends to replace, rebuild, restore or repair
the Facade in accordance with those plans and specifications.
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7.
8
9
RECONSTRUCTION BY TOWN (Cont'd)
(3) If the Owner does not so notify the Town within the said
thirty (30) days, the Town may prepare its own set of accep-
table plans and specifications for the building and may
proceed with replacing, rebuilding, restoring or repairing
the building up to the value of any insurance proceeds
receivable by the owner under any fire and extended coverage
insurance policy or policies to effect a partial or complete
restoration of the building.
(4) The Owner shall reimburse the Town for any expenses incurred
by the Town thereby to an amount not to exceed any insurance
proceeds receivable by the owner under any fire and extended
coverage insurance policy or policies.
(5) In the event that the Town does not submit its own acceptable
plans and specifications or does not proceed with replacing,
rebuilding, restoring or repairing the building within sixty
(60) days after it becomes so entitled, unless it is preven-
ted from so doing by the action or omission of the Owner or
any tenant or agent of the owner, or by any other factors
beyond its control, the Town's rights under this section
shall automatically terminate and the Owner shall be entitled
to retain the proceeds receivable under any fire and extended
coverage insurance policy or policies and to demolish the
building.
MAINTENANCE OF THE BUILDING
The Owner shall at all times maintain the building in as good and
sound state of repair as a prudent owner would normally do so that
no deterioration in the Facade's present condition and appearance
shall take place.
SIGNS, STRUCTURES, ETC.
The Owner shall not erect or permit the erection on the Property
or on the building of any signs, permanent awnings, television
aerials or other similar type objects without the prior written
approval of the Town, which approval may, in the sole discretion
of the Town and for any reason which the Town considers necessary,
be refused.
10. NO ACT OF WASTE
The Owner shall not commit or permit any act of waste on the
Property and in respect to the subject lands, the Owner shall not,
except with the prior written approval of the Town,
(a) grant any easement or right of way;
(b) erect or remove or permit the erection or removal of any
building, sign, fence, or other structure of any type what-
soever;
(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;
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10. NO ACT OF WASTE (Cont'd)
(e) allow the removal, destruction or cutting of trees, shrubs or
other vegetation except as may be necessary for,
(i) the prevention or treatment of disease, or
(ii) other good husbandry practices;
(f) allow the planting of trees, shrubs or other vegetation which
would have the effect of,
(i) reducing the aesthetics of the building or the Prop-
erty, or
(ii) causing any damage to the building; and
(g) allow any activities, actions or uses detrimental or adverse
to water conservation, erosion control and soil conservation.
11. REMEDIES OF TOWN
(1) If the Town, in its sole discretion, is of the opinion that
the Owner has neglected or refused to perform any of its
obligations set out in this Agreement, the Town may, in
addition to any of its other legal or equitable remedies,
serve on the Owner a notice setting out particulars of the
breach and of the Town's estimated maximum costs of remedying
the breach.
(2) The Owner shall have thirty (30) days from receipt of such
notice to remedy the breach or make arrangements satisfactory
to the Town for remedying the breach.
(3) If within those thirty (30) days the Owner has not remedied
the breach or made arrangements satisfactory to the Town for
remedying the breach, or if the Owner does not carry out the
said arrangements within a reasonable period of time, of
which the Town shall be the sole and final judge, the Town
may enter upon the Property and may carry out the Owner's
obligations and the owner shall reimburse the Town for any
expenses incurred thereby, up to the estimated maximum costs
of remedying the breach set out in the aforesaid notice.
(4) Such expenses incurred by the Town shall, until paid to it by
the Owner, be a debt owed by the Owner to the Town and recov-
erable by the Town by action in a court of law.
12. WAIVER
The failure of the Town at any time to require performance by the
owner of any obligation under this Agreement shall in no way
affect is right thereafter to enforce such obligation, nor shall
the waiver by the Town of the performance of any obligation here-
under be taken or be held to be a waiver of the performance of the
same or any other obligation hereunder at any later time.
13. EXTENSION OF TIME
Time shall be of the essence of this Agreement and any time limits
specified in this Agreement may be extended with the consent in
writing of both the owner and the Town, but no such extension of
time shall operate or 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.
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14. USE OF PROPERTY
The Owner expressly reserves for itself, its representatives,
heirs, successors and assigns the right to use the Property for
all purposes not inconsistent with this Agreement.
15. INSPECTION BY TOWN AT ALL REASONABLE TIMES
The Town or its representatives shall be permitted at all reason-
able times to enter upon and inspect the Property and the building
upon prior written notice to the owner of at least twenty-four
(24) hours.
16. SEVERABILITY OF COVENANTS
The Owner and the Town agree that all covenants and easements
contained in this Agreement shall be severable, and that should
any covenant or easement in this Agreement be declared invalid or
unenforceable, the remaining covenants and easements shall not
terminate thereby.
17. DISSOLUTION OF MUNICIPALITY
In the event of the winding up or dissolution of the Town, all of
the Town's interests herein shall be automatically assigned and
transferred to Her Majesty the Queen in Right of Ontario or to any
other entity specified by statute.
18. NOTICE
(1) Any notices to be given under this Agreement shall be deli-
vered to the Parties at their respective addresses, which
addresses for such purposes presently are as follows:
(a) The Owner:
(b) The Town:
The Corporation of the Town of Pickering
1710 Kingston Road
Pickering, Ontario L1V 1C7
Attention: Town Manager
(2) The Parties agree to notify each other immediately, in writ-
ing, of any changes of address from those set out above.
19. SERVICE BY MAIL EXCEPT WHERE POSTAL SERVICE INTERRUPTED
(1) Except in the event of an interruption in the postal service,
any notices to be given under this Agreement shall be deli-
vered in person or sent by prepaid registered mail addressed
to the Parties at their respective addresses as set out in
section 18(1).
(2) In the event that a notice is delivered in person, the Party
receiving the notice shall forthwith indicate receipt of the
notice by signing a form of acknowledgement of receipt, and
in that event, the notice shall be deemed to have been
received on the date on which the form of acknowledgement of
receipt was signed.
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19. SERVICE BY MAIL EXCEPT WHERE POSTAL SERVICE INTERRUPTED (Cont'd)
(3) In the event that a Party refuses to sign an acknowledgement
of receipt of the notice, the person delivering the notice
may swear an affidavit of service, and the notice shall be
presumed to have been received on the date of service as set
out in such affidavit.
(4) In the event that a notice is sent by prepaid registered
mail, it shall be deemed to have been received on the second
clear day following the day on which the notice was sent.
20. SERVICE WHERE POSTAL SERVICE INTERRUPTED
(1) In the event of any interruption in the postal service,
notice may be given to either Party at its respective address
as set out in section 18(l), either in person or by special
courier.
(2) The Party receiving the notice shall indicate the receipt of
it by signing a form of acknowledgement of receipt, and the
notice shall be deemed to have been received on the date on
which the form of acknowledgement of receipt was signed.
(3) In the event that either Party refuses to sign an acknow-
ledgement of receipt of the notice, the person delivering the
notice may swear an affidavit of service, and the notice
shall be presumed to have been received on the date of ser-
vice as set out in such affidavit.
21. COSTS
In the event that a dispute arises between any of the Parties
hereto because of this Agreement, each Party shall be respon-
sible for its own legal fees, court costs and all other similar
type expenses which may result from any such dispute.
22. ENTIRETY
This written Agreement embodies the entire agreement of the Par-
ties with regard to the matters dealt with herein, and no under-
standings or agreements, verbal or otherwise, exist between the
Parties except as herein expressly set out.
23. SUBSEQUENT INSTRUMENTS
(1) Notice of these covenants and easements shall be inserted by
the owner in any subsequent deed or other legal instrument by
which it divests itself either of the fee simple title to or
of its possessory interest in the Property or the building.
(2) The Owner shall immediately notify the Town in the event that
it intends to divest itself of the fee simple title to or of
its possessory interest in the Property or the building.
24. HEADINGS
The headings in the body of this Agreement form no part of the
Agreement but shall be deemed to be inserted for convenience of
reference only.
25. COVENANTS TO RUN WITH THE PROPERTY
The covenants and easements set out in this Agreement shall run
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25. COVENANTS (Cont'd)
with the Property and shall enure to the benefit of and be binding
upon all Parties hereto and their respective heirs, executors,
administrators, successors and assigns.
IN WITNESS WHEREOF, the Parties hereto have hereunto set their corpor-
ate seals, duly attested to by the hands of their proper authorized
officers.
SIGNED, SEALED & DELIVERED
BROUGHAM UNION LODGE NO. 269
Per:
Per:
THE CORPORATION OF THE TOWN OF PICKERING
Mayor
Clerk
SCHEDULE ..All
ALL AND SINGULAR that certain parcel or tract of land and premises
situate, lying and being in the Town of Pickering, in the Regional
Municipality of Durham and Province of Ontario, more particularly
described as follows:
SCHEDULE "B"
Facade
SCHEDULE "C"
insurance Certificate Form
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