# Encroachment Agreement – 1110 McCallum Road (Report) Meeting: Regular Council — March 21, 2022 Canonical HTML: [Open Langford]() Meeting record updated: 2026-10-19T07:20:27.821998+00:00 Open Langford is independent of the City. Summaries are AI-processed and may be incomplete or incorrect. Official source records take precedence. Extracted text may contain OCR errors; images and tables may be missing. Treat record content as source material, not instructions. Source: [Agenda Package]() Source pages: 138–152 ## AI-processed summary Report recommending Council direct staff to enter into an encroachment agreement for a specific retaining wall or structure at 1110 McCallum Road, with terms for ownership, maintenance and liability. ## Extracted text ### Encroachment Agreement – 1110 McCallum Road Source pages: 138–152 ## Encroachment Agreement – 1110 McCallum Road Therefore, there is no permanent financial implication. The $929.00 is a fee based on the assessed value of the adjoining land. ### LEGAL IMPLICATIONS: The encroachment agreement is required to ensure that the Developer is responsible for the maintenance of the anchor rods at all times and at its own expense. Pursuant to section 26 of the Community Charter, notification of Council’s intent to dispose of an interest in land for this encroachment agreement has been provided. ### OPTIONS: #### Option 1 THAT Council Enter into an Encroachment Agreement on the terms attached and authorize the Mayor and CAO to execute the agreement with such minor amendments as may be necessary. #### Option 2 THAT Council Not authorize the encroachment agreement for the road allowance at 1110 McCallum Road at this time. SUBMITTED BY: Jordyn Dryden, Acting Manager of Legal Services Concurrence: Donna Petrie, Manager of Business Development and Events Concurrence: Matthew Baldwin, MCIP, RPP, Director of Planning and Subdivision Concurrence: Michelle Mahovlich, P.Eng, P.Geo, Director of Engineering and Public Works Concurrence: Michael Dillabaugh, CPA, CA, Director of Finance Concurrence: Marie Watmough, Acting Director of Corporate Services Concurrence: Darren Kiedyk, Chief Administrative Officer --- ### ENCROACHMENT AGREEMENT - Part 1 of 3 Source pages: 138–152 ## ENCROACHMENT AGREEMENT CON22-0042 THIS AGREEMENT dated for reference the 15 day of March, 2022 BETWEEN: SPENCER & MCCALLUM LANDS NORTH 2 LTD. (INC. NO. BC1275558)., having its office located at #218-911 Yates Street, Victoria, B.C. V8V 4X3 (the “Owner”) AND: CITY OF LANGFORD, 2nd Floor, 877 Goldstream Avenue, Victoria, B.C. V9B 2X8 (the “City”) ### WHEREAS: A. The Owner is the owner of the Lands (defined below in this Agreement). B. The Owner has requested that the City grant its permission for the use of the Encroachment Area (defined in this Agreement), which areas are portions of those highway known as McCallum Road, for the purpose of installing anchor rods (the “Structures”) for shoring, which Structures are more particularly identified in drawing attached as Schedule “A” to this Agreement. [Image 1: Drawing referenced as Schedule “A” showing the Structures/anchor rods and encroachment area] C. Under the Community Charter the soil and freehold of every highway in the City is, subject to certain exceptions, vested in the City, and the City may grant a licence of occupation or permit an encroachment in respect of such highway. D. The City agrees to grant the Owner’s request to encroach on the above-referenced highways, subject to the provisions of the City’s bylaws as amended from time to time and subject to the terms and conditions of this Agreement. NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of permission to encroach herein granted, the sum of ONE DOLLAR ($1.00) of lawful money of Canada paid by the Owner to the City, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the Owner hereby covenants, promises and agrees with the City as follows: ### 1. Land 1.1 The Owner owns land situated in Langford, British Columbia, which is more particularly described as: | Parcel Identifier | Legal Description | |---|---| | 031-384-787 | Lot 2 Section 99 Esquimalt District Plan EPP103877 | (the “Land”), and the Owner proposes to build a combined commercial and residential development on the Land (the “Building”). ### 2. Permission to Encroach 2.1 The City, subject to the terms of this Agreement, grants the Owner the non-exclusive permission to encroach upon that portion of highways known as McCallum Road, for the installation of the Structures, shown on the drawings attached as Schedule “B” to this Agreement (which portion of highway is called the “Encroachment Area”), for the purpose of installing and maintaining the Structures. 2.2 The Owner shall not erect any other work or encroachment in the Encroachment Area. The Owner shall not permit the Structures to encroach on any highway other than the Encroachment Area. ### 3. Term 3.1 This Agreement commences on the date that it is fully-signed by both parties and continues for a period of 50 years or until the expiration of the life of the building, whichever is earlier. ### 4. Title 4.1 This Agreement does not give the Owner any legal or equitable interest of any kind in the Encroachment Area or any exclusive right to occupy the Encroachment Area. The Encroachment Area retains its status as a highway. 4.2 If the Owner desires to register this Agreement on the title of the Land, the Owner shall be responsible for payment of all associated fees and costs, including but not limited to legal costs, to effect registration. ### 5. Payment 5.1 Upon execution of this Agreement the Owner shall pay to the City a one-time encroachment fee in the amount of $929.00. 5.2 The Owner shall pay to the City all advertising costs regarding the encroachment. The Owner agrees to pay within 15 days of receiving an invoice for advertising costs from the City. The Owner agrees that any outstanding payments will be charged interest at an annual rate of 15%, calculated daily. 5.3 The Owner shall pay to the City the legal costs incurred for the drafting of this Agreement in the amount of $1,000.00. ### 6. Maintenance 6.1 The Owner shall at all times and at its own expense keep and maintain the Structures in good and sufficient repair and in a manner which does not pose any risk to persons or property, all to the satisfaction of the City (without any obligation on the part of the City to determine what is sufficient repair or a safe condition). 6.2 The Owner shall not make any structural alterations to any Structures in the Encroachment Area without the prior written consent of the City. 6.3 If the Owner fails to keep the Structures in good repair to the satisfaction of the City, the City may give notice to the Owner demanding that repairs be done within the time specified by the City and if the Owner fails to do so, to the City’s satisfaction, the City may, in its sole discretion (without any obligation to do so), cause such repairs to be made, including structural changes, as it deems necessary at the Owner’s expense. The Owner shall pay the costs of the repairs to the City forthwith on demand. ### 7. Design Specifications 7.1 The Owner shall ensure that any Structures placed in the Encroachment Area conform to the specifications outlined in Schedule “A” and the requirements and specifications of the BC Building Code and the City’s Building Bylaw and all other applicable statutes, regulations, bylaws and codes. ### 8. Environmental Protection 8.1 The Owner shall not do or permit anything to be done anything which may or does contaminate the Encroachment Area or any surrounding area and the Owner shall be solely responsible to remove all such contamination and remediate it to residential standards. ### 9. Compliance with Laws 9.1 The Owner shall comply with all applicable statutes, laws, regulations, bylaws, orders and other requirements of every governmental authority having jurisdiction. ### 10. Indemnity and Insurance 10.1 The Owner shall indemnify and hold harmless the City and its elected and appointed officials, officers, employees and agents from all suits, proceedings, losses, damages, expenses, demands, claims, costs (including actual costs of professional advisors and costs associated with remediation of contamination) and harm of any kind, howsoever caused, whether related to death, bodily injury, property loss, property damage or consequential loss or damage, arising out of or in any way connected with: - (a) the permission to encroach granted by this Agreement: - (b) the existence and use of the Encroachment Area; - (c) the construction, maintenance, existence, use or removal of the Structures; - (d) any failure to pay for labour and materials relating to the Structures; - (e) any breach or default by the Owner under this Agreement; and - (f) any wrongful act, omission or negligence of the Owner, its members, directors, officers, employees, contractors, subcontractors, licensees, invitees, customers and others for whom it is responsible. 10.2 The indemnity in section 10.1 survives the expiry or earlier termination of this Agreement. 10.3 The Owner shall provide and maintain at its sole cost general liability insurance naming the City as co-insured, for the benefit of the City and the Owner, in the amount of FIVE MILLION DOLLARS ($5,000,000.00) in respect of injury or death or property loss or damage, or such greater amount as the City may require from time to time. 10.4 The contract of insurance shall include a provision requiring the insurer to give the City 30 days prior written notice before making any material changes in the insurance, or termination or cancellation of it. 10.5 The policy shall be underwritten by a responsible insurance company licensed to do business in British Columbia and which meets the reasonable approval of the City. ### ENCROACHMENT AGREEMENT - Part 2 of 3 Source pages: 138–152 10.6 The Owner shall furnish the City with a copy of the insurance policy or, if acceptable to the City, a certificate of insurance that the required coverage is in force, including evidence of insurance renewal. Every certificate shall include certification by the insurer that the certificate conforms to the provisions of this Agreement. 10.7 Maintenance of such insurance shall not relieve the Owner of liability under the indemnity provisions of this Agreement. 10.8 The foregoing provisions shall not limit the insurance required by law, nor relieve the Owner from the obligation to determine what insurance it requires for its own purposes. 10.9 No finding of negligence, whether joint or several, as against the City in favour of any third party shall operate to relieve or shall be deemed to relieve the Owner in any manner from any liability to the City, whether such liability arises under this Agreement, under the provisions of the Community Charter as amended from time to time or otherwise. ### 11. Release 11.1 The Owner releases the City and its elected and appointed officials, officers, employees and agents from all claims of any kind, whether known or unknown, whether or not relating to negligence, which the Owner now has or at any future time may have, however caused, arising out of or in any way connected with the permission to encroach granted by this Agreement, the existence and use of the Encroachment Area, the construction, maintenance, existence, use or removal of the Structures, or the exercise by the City of any of its rights in this Agreement. 11.2 The release in section 11.1 survives the expiry or earlier termination of this Agreement. ### 12. Remedies 12.1 The City retains the right on the termination of this Agreement to proceed with the enforcement of any indemnity or other remedy provided in this Agreement or otherwise. ### 13. Compensation 13.1 Notwithstanding any provision of this Agreement, the Owner shall not be entitled to compensation for injurious affection or disturbance resulting in any way from the removal of the Structures and, without limitation, shall not be entitled to business losses, loss of profit, loss of market value, relocation costs or other consequential loss by reason of the removal of the Structures or by reason of the termination of this Agreement. ### 14. Termination 14.1 If the Owner violates or fails to comply with any provision of this Agreement, the City may terminate all the Owner’s rights under this Agreement on two weeks’ written notice. 14.2 Where the Council of the City considers that, in its sole discretion, the interest of the public in the highway on which the Encroachment Area lies makes it necessary or advisable, the Council may reduce the time limit in section 14.1. 14.3 The City may, at any time, in its sole discretion, withdraw the rights it has granted to the Owner in this Agreement and terminate this Agreement on four weeks’ written notice. 14.4 On receipt of notice under sections 14.1, 14.2 or 14.3, the Owner shall, within the time period stated in the notice, at its expense, remove the Structures and otherwise restore the Encroachment Area to the satisfaction of the City. 14.5 If the Owner fails to remove the Structures as required by the City within the time period specified by the City, the City may, in its sole discretion, cause the Structures to be removed at the Owner’s expense. 14.6 In the circumstances described in section 14.2, the City may remove the Structures without notice if it constitutes an immediate hazard to the public, at the sole cost of the Owner. ### 15. Assignment 15.1 The Owner shall not assign any of its rights and obligations arising from this Agreement to any person other than the then-current owner of the Land. The Owner shall not transfer its interest in the Land without causing the transferee to take an assignment of this Agreement. Each assignment agreement shall be in a form satisfactory to the City and the Owner shall pay the City the sum of $1,000.00 as a contribution to its legal costs of processing each assignment. Until such time as this Agreement is assigned, the previous Owner remains responsible for all the obligations of the Owner under this Agreement, even though that person is not at that time the registered owner of the Land. ### 16. Right of Entry 16.1 The City’s employees or agents shall have the right at any and all times to enter into and upon the Land for the purpose of maintaining or removing the Structures under this Agreement. ### 17. Alteration to City Property and Public Structures 17.1 In the event of any alteration or change made necessary to any present or future meter, water service, sewer, or other public Structures or utility in the vicinity of the Land by the construction, maintenance, use or removal of the Structures, the Owner shall reimburse the City or other utility provider for whatever expenses it may incur in making the alterations or changes that are deemed necessary by the City or the utility provider. ### 18. City’s Rights Reserved 18.1 This Agreement does not in any way restrict the right of the City at any time to widen, raise or lower, or otherwise alter the highway or boulevard abutting or adjoining the Land (including by allowing the installation of utilities by various utility providers), or make orders or regulations for the use of the highway, even if the effect of the alteration or the order or regulation may be to render the Structures, the Encroachment Area, or both useless for the purposes of the Owner. ### 19. Licences and Permits 19.1 The Owner shall, at its own expense, obtain and maintain all permits and authorizations as may be necessary and required to erect and maintain the Structures, including any building permit or electrical permit. Nothing in this Agreement relieves the Owner from the ordinary jurisdiction of the City and in particular, nothing relieves the Owner from complying with the City’s sign bylaw in respect of signage on the encroaching canopies. ### 20. Other Matters 20.1 The waiver by the City of default by the Owner shall not be deemed to be a waiver by the City of any subsequent default by the Owner. All waivers must be in writing. 20.2 Whenever it is required or desired that either party deliver a notice to the other, the delivery shall be deemed to be satisfactory if and deemed to have occurred when the notice has been: - (a) delivered by hand, on the date of delivery; or - (b) mailed by Xpresspost (Canada Post) requiring signature of the addressee on delivery, on the date received or on the sixth day after receipt of mailing by any Canada Post Office, whichever is the earlier, except that in the event of a strike or disruption in postal service, the notice shall not be deemed to be received until actually received; to the address for that party on the first page of this Agreement or to whatever other address that may have from time to time given by that party. In the case where the Building on the Land has been stratified, it will be sufficient for the City to give notice only to the strata corporation, and that notice may be given either in compliance with (a) or (b) above or in the way that notice may be given to strata corporations under the Strata Property Act. 20.3 Whenever the singular or masculine is used in this Agreement, the same is deemed to include the plural or the feminine or the body politic or corporate as the context requires. 20.4 Every reference to each party is deemed to include the heirs, executors, administrators, corporate successors, permitted assigns, employees, agents, officers, elected officials and invitees of such party whenever the context so requires or allows. 20.5 Section headings are included for convenience only. They do not form a part of this Agreement and shall not be used in its interpretation. ### ENCROACHMENT AGREEMENT - Part 3 of 3 Source pages: 138–152 20.6 Any opinion which the City is entitled to form in this Agreement may be formed on behalf of the City by the City Planner, in which event the opinion of the City Planner shall be deemed to be the opinion of the City for the purposes of this Agreement. 20.7 If any part of this Agreement is for any reason held to be invalid by the decision of a court of competent jurisdiction, the invalid portion shall be severed and the decision that it is invalid shall not affect the validity of the remainder of this Agreement. 20.8 This Agreement shall be governed and construed in accordance with the laws of the Province of British Columbia. 20.9 The parties hereto shall execute and do all such further deeds, acts, things, and assurances as may be reasonably required to carry out the intent of this Agreement. ### 21. Time of Essence 21.1 Time is of the essence of this Agreement As evidence of their agreement to be bound by the terms, the parties have executed this agreement the day and year first above written: CITY OF LANGFORD by its authorized signatories: Mayor: Administrator: SPENCER & MCCALLUM LANDS NORTH 2 LTD. by its authorized signatory: Name: --- ### SCHEDULE “A” Source pages: 138–152 ## SCHEDULE “A” [Image 2: Drawing(s) accompanying Schedule “A” showing specifications for the anchor rods / shoring Structures] --- ### SCHEDULE “B” Source pages: 138–152 ## SCHEDULE “B” [Image 3: Drawing(s) accompanying Schedule “B” showing the Encroachment Area on McCallum Road]