Heritage Revitalization Agreements: Sample Enabling Bylaw
With minor alterations, this sample bylaw was prepared by Lidstone, Young, Anderson for Heritage Conservation: A Technical Manual for Local Governments, 1995.)
WHEREAS:
A. The Council may by bylaw pursuant to the Local Government Act, Division 5 — Continuing Protection: Heritage revitalization agreements enter into a heritage revitalization -agreement with the owner of heritage property;
B. The Council considers that certain lands and premises situate within the District described as:
(the “Lands”)
have heritage value and ought to be conserved.
C. The Owner of the Land and the District have agreed on nature, character and extent of the heritage value of the Lands and on the nature, extent and form of conservation necessary to protect the heritage value.
NOW THEREFORE IN OPEN MEETING ASSEMBLED, THE COUNCIL ENACTS AS FOLLOWS:
1. TITLE:
This may be cited for all purposes as “District of _____ Heritage Revitalization Agreement Bylaw, No. _____
2. HERITAGE REVITALIZATION AGREEMENT
The Council of the District is authorized hereby to enter into that certain Heritage Revitalization Agreement appended to this Bylaw as Schedule “A”, (the ”Heritage Revitalization Agreement”) in respect of the Lands;
3. EXECUTION OF AGREEMENT
The Mayor and the Clerk are authorized on behalf of the Council to sign and seal the Heritage Revitalization Agreement.
4. SCHEDULE
Schedule “A” forms a part of this bylaw.
(approvals and signatures)
SCHEDULE “A”
This Agreement made the _____ day of _____ 20_____
BETWEEN:
(the “Owner”)
OF THE FIRST PART
AND:
THE CORPORATION OF THE _______________, a municipal corporation by letters patent pursuant to the Local Government Act and having offices at: ____________.
(the “District”)
OF THE SECOND PART
WHEREAS:
A. The Owner is the registered owner in fee simple of the following lands and premises situate in the District of ______, British Columbia and described as:
(the “Lands”);
B. The District and the Owner consider that the lands have heritage value.
C. The Owner and the District desire to conserve those improvements on and the heritage character of the lands which collectively constitute such heritage value;
D. For the purpose·o·f conservation of the heritage value of the Lands, the Owner and the District have agreed to enter into this Agreement setting out the terms and conditions of continuing protection for ·the heritage value of the Lands.
E. The improvements on and heritage character of the lands which both the Owner and the District desire to conserve and which constitute the heritage value of the site have been described by text, drawings, illustrations, photographs and plans attached.as Schedule “A” (the “Conservation Plan”) to this Agreement
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual premises of the parties hereto and for other good and valuable consideration (the receipt and sufficiency of whereof is hereby the parties acknowledged) the Owner and the District covenant and agree with one another pursuant to section Part 30 of the Local Government Act, Division 5 — Continuing Protection: Heritage revitalization as follows.
Conservation Plan
1.
a) The Conservation Plan forms a part of this Agreement and to the extent that the text, drawings, illustrations, photographs, and plans constituting the Conservation Plan require interpretation, the District shall determine the matter and section 16 of this Agreement shall apply.
b) Part I of the Conservation Plan identifies, details and describes the character, extent and nature of the improvements on and heritage character of the Lands that have heritage value. Part Il of the Conservation Plan provides for the timing and phasing of, and sets out standards and specifications for restoration, rehabilitation, replication, or repair to be undertaken and completed pursuant to this Agreement. Part III of the Conservation Plan sets out restrictions, requirements and guidelines for the conservation and maintenance of all improvements and features on the Lands having heritage value.
Owner’s Obligations to Conserve and Maintain
2. The Owner covenants and agrees that:
a) no improvement on·the Lands identified in the Conservation Plan as having heritage value or a part of the heritage characters of the Lands shall be altered including alterations required or authorized by this Agreement, except pursuant to a heritage alteration permit issued by the District;
b) each action of restoration, rehabilitation, replication, repair or maintenance, required by Part II of the Conservation Plan shall be commenced and completed in accordance with the phasing, timing, standards and specifications set out in Part Il of the Conservation Plan;
c) all improvements identified in Part I of the Conservation Plan as having heritage value shall be maintained to the minimum standards and in accordance with the guidelines and requirements set out in Part m of the Conservation Plan;
d) all those undeveloped areas of the Lands cross hatched in heavy black on the “Site Plan” forming part of the Conservation Plan, being lands in the opinion of the District necessary for the conservation of proximate improvements, identified in the Conservation Plan as having heritage value shall continue to remain free of all development and shall be kept in their landscaped and cultivated state, as required in and in accordance with the guidelines set out in Part II of the Conservation Plan, and without limiting the generality of the foregoing, the elevation and configuration of the land and terrain shall not· be altered, and no trees or landscaping shall be removed or cut, except for reasonable pruning and grooming;
e) the Owner shall do or cause to be done all such things, and shall take or cause to be taken all such actions as are necessary to be taken all such actions as are necessary to ensure that the restrictions and requirements provided in subsections (a), (b), (c) and (d) of this section 2 are fully observed, and the Owner shall not do, cause or allow to be done anything that would be in breach of the restrictions herein.
Variation of Bylaws
[The items in this section, which may relate to zoning, parking, loading, and development cost bylaws, should be worded as they would be in a Development Permit or Development Variance Permit.]
Discretion
4. Wherever in this Agreement a heritage alteration permit is required, the discretion to approve, refuse or issue such permit is delegated by the District to the Director of Planning and:
a) such exercise of discretion relating to the issuance of the heritage alteration permit shall be made by the Director acting reasonably in accordance with sound municipal heritage and conservation practice;
b) such exercise of discretion, including any terms and conditions imposed shall be consistent with the Local Government Act, and with the intent, terms, conditions and guidelines of the Conservation Plan;
c) the Director of Planning may refer to any exercise of discretion to Community Heritage Commission for advice.
Construction and Maintenance of Works
5. Wherever in this Agreement the Owner is issued a heritage alteration permit to restore, rehabilitate, replicate, repair, replace, maintain or in any way alter improvements on, or features of the Lands identified in the Conservation Plan as having heritage value, or to construct or maintain other works to protect or conserve such improvements or features, all such work shall be done at the Owner’s sole expense strictly in accordance with the Conservation Plan and with the heritage alteration permit and all plans and specifications forming part thereof and shall be diligently and continuously maintained in good repair and efficient operating condition by the Owner at the Owner’s sole expense in accordance with good engineering, design, heritage and conservation practice.
No Liability to District
6. In no case shall the District be liable or responsible in any way for:
a) Any personal injury, death or consequential damage of any nature whatsoever, howsoever caused, that be suffered or sustained by the Owner or by any other person who may be on the Lands; or
b) Any loss or damage of any nature whatsoever, howsoever caused to the Lands or any improvements or personal property thereon belonging to the Owner or to any other person;
Arising directly or indirectly from compliance with the restrictions and requirements herein, wrongful or negligent failure or omission to comply with restrictions and requirements herein, or refusal, omission or failure of the District to enforce or require compliance by the Owner with the restrictions or requirements herein or with any other term, condition or provision of this Agreement.
Reasonable Care and Risk
7. The Owner shall at all times, in complying with the restrictions or requirements herein and its obligations in respect thereof, take reasonable care not to injure any. person or cause or allow damage to any property, and shall take reasonable care not to cause, suffer, permit or allow any condition to exist that might reasonably lead to, cause or result in injury to any person or property including persons and property on adjacent lands. It shall be the sole responsibility of the Owner to comply and maintain compliance with the restrictions and requirements herein in a safe manner, and without reasonably foreseeable risk to person or property as aforesaid Subject to section 8 hereof, compliance with the restrictions and requirements in this Agreement shall be at the sole and exclusive risk of the Owner.
Modification
8. If, in fulfilling its responsibilities and obligations pursuant to this Agreement, the Owner perceives or becomes aware of any unreasonable risk of injury to persons or damage to property or other potential loss that cannot be reasonably avoided, alleviated, reduced·or eliminated except by measures that would be a breach of the restrictions, requirements or its obligations herein, the Owner shall notify the District in writing of the nature and extent of the risk and of the measures proposed by the Owner to be undertaken at its sole cost to reduce, alleviate, a-void or eliminate the risk. Risk shall remain with the Owner, and if the District has not approved such measures as proposed by the Owner within 90 days of receipt of such notice, risk shall pass to the District and the Owner or the District may proceed pursuant to section 19 and in the case of the District, S. 16 applies mutatis mutandis.
Indemnity
9. The Owner shall at all times indemnify and save harmless the District of and from all loss and damage, and all actions, claims, costs, demands, expenses, fines, liabilities and suits of any nature whatsoever by whomsoever brought for which the District shall or may become liable, incur or suffer by reason of existence and effect whether direct or indirect of the restrictions or requirements herein, or breach or non-performance of its obligations hereunder, or by reason of any wrongful act or omission, default or negligence of the Owner.
Alternative Remedies
10. Any performance by the District pursuant to a statutory right to perform the obligations of an Owner arising out of this Agreement, including out of any heritage alteration permit issued out of this Agreement, be exercised fully in accordance with the Local Government Act and shall be without prejudice to any and all remedies at law and equity available to the District, and no reference herein to, or exercise of any specific right or remedy by the District, shall preclude the District from .exercising· other right or remedy.
Damages
11. The Owner covenants and agrees that the measure of the damages for any breach of the restrictions or requirements of this Agreement shall include, but shall not be limited to the actual cost and expense of all administration, labour, materials, equipment, services and work required for all remedial acts necessary to fully restore, rehabilitate, replace or maintain the building, structure, improvement on or feature of the Lands having heritage value to be protected, conserved, preserved or kept in its natural state. The nature and extent of any breach of the said restrictions and requirements, and the nature and extent of any restoration, rehabilitation, replacement, maintenance or remedial work or action of any nature required to remedy such breach shall be determined by the District by reference to the Conservation Plan, the sections 2 and 3 of this Agreement.
No Waiver
12. No restrictions, requirements or other provisions in this Agreement shall be deemed to have been waived by the District unless a written waiver authorized by resolution of the Council and signed by an officer of the District has first been obtained and without limiting the generality of the foregoing, no condoning, excusing or overlooking by the District on previous occasions of any default nor any previously written waiver shall be taken to operate as a waiver by the District of any subsequent default or in any way to defeat or affect the rights or remedies the District.
Statutory Authority and Proprietary Rights
13. Nothing in this Agreement shall limit, impair, fetter, or derogate from the statutory powers of the District all of which powers may be exercised by the District from time to time and at any time to the fullest extent that the District is enabled, and no permissive bylaw enacted by the District, or permit, license or approval, granted, made or issued thereunder, or pursuant to Statute, by District shall stop, limit or impair the District from relying upon and enforcing this Agreement in its proprietary capacity as the owner of an interest in the Lands.
Compliance with Laws
14. Despite any provision of this Agreement, the Owner shall comply with all laws, including bylaws of the District and all regulations and orders of any authority having jurisdiction, and to the extent only that such laws, regulations and orders are mandatory and necessarily require the breach of any restriction or positive obligation herein to be observed or performed by the Owner, or less than strict compliance with the terms hereof, then the Owner upon sixty (60) days written notice to the District shall be excused from complying with such _restrictions· or performing such obligation and such restriction or obligation shall be suspended but only to the extent and for the time that such mandatory law, regulation or order is inconsistent with compliance with the said restrictions of obligations.
Notice
15. Any notice to be given hereunder shall be in writing and may be either delivered personally or sent by prepaid registered mail and if so mailed shall be deemed to have been given five (5) days following the date upon which it was mailed. The address of the parties for the purpose of notice shall be as follows:
If to the District:
Attention: Municipal Clerk, District of ______, BC, ______
If to the Owner:
Attention: ______
Any party hereto may at any time give notice in writing to the other of any change of address and after the third day of giving of such notice the address therein specified shall be the address of such party for the giving of notices hereunder.
Arbitration
16. The Owner, if dissatisfied with the District’s interpretation of the Conservation Plan and any determination pursuant tot S. 1(a) of this Agreement may require that the matter be decided and determined by binding arbitration as follows:
a) the Owner must within fourteen (14) days of any exercise of discretion by the District give notice to the District of its intention to dispute and in such notice shall name a member in good standing of the Architectural Institute of British Columbia who has agreed to act as an arbitrator;
b) the District shall within seven (7) days of receipt of the aforesaid notice either accept the Owner’s arbitrator, or name another with the same qualifications willing to act, and shall give notice of the same to the Owner;
c) where each of the Owner and the District has named an arbitrator, the two arbitrators shall within fourteen (14) days of the District’s notice pursuant to this section 19(b) appoint a third arbitrator having the same qualifications and the three arbitrators shall decide the dispute;
d) where the District accepts the arbitrator first selected by the Owner, that arbitrator shall act as a single arbitrator· and forthwith decide the dispute;
e) any arbitrator’s decision in respect of the exercise of a discretion by the District shall be final, conclusive and binding on all parties.
Without limiting the District’s power of inspection conferred by statute and in addition thereto, the District shall be entitled at all reasonable times and from time to time to enter onto· the Lands for the purpose of ensuring that the Owner is fully observing and performing all of the restrictions and requirements in this Agreement to be observed and performed by the Owner.
Headings
18. The headings in this Agreement are inserted for convenience only and shall not affect the construction of this Agreement or any provision hereof.
Schedules
19. All schedules to this Agreement are incorporated into and form part of this Agreement.
Number and Gender
20. Whenever the singular or masculine or neuter is used in this Agreement, the same shall be construed to mean the plural or feminine or body corporate where the context so requires.
Interpretation
21. Terms used in this Agreement shall take their meaning from the Local Government Act.
Successors Bound
22. All restrictions, rights and liabilities herein imposed upon or given to the respective parties shall extend to and be binding upon their respective heirs, executors, administrators, successors and assigns. When the Owner is more than one party they shall be bound jointly and severally by the terms, covenants and agreements herein on the part of the Owner.
IN WITNESS WHEREOF the Owner and the District have executive this Agreement as of the date first above written.
(seal and signatures)
SCHEDULE “A”
Conservation Plan
[In respect of a building, structure or other improvements on land this Conservation Plan should consist of photographs, blueprints, plans, drawings, illustrations and explanatory text identifying with certainty and describing in detail the features, components and other elements that constitute the heritage value to be conserved.
To the extent that action and work are required of the Owner, Part Il of the Conservation Plan should set out with certainty what detailed action and work is required, when it must be commenced and completed, and to what standards and specifications (all to be included) it is to be done.
Part III of the Conservation Plan should set standards for continuing ongoing maintenance of all aspects of the Lands having heritage value]