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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 t)o 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, - and - 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"); - 2 - 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 - 3 - 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. - 4 - 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. - 5 - 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; - 6 - 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. - 7 - 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. - 8 - 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 - 9 - 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 b7 O rrorHH0 a rw -,o o G] , C p x 7 llcC 3 > y y r m 3 N ? •N MO *3 1 C H N- t7 z i0 ?O ro r- ?g z H m P-0 O H O rt O Fr. rt z a m o G ° r r+ K n x o w x F.. En t7 0 " 0 tj x L] Fl, w w (D rn O ¢ rn tri rn z z N H O (D r ¢ N m ID O ( ro H x ¢ to z C) H x CD 0 ro 0 H H z° 0 ro t+3 H 0 N d H [*J 0