Staff Report — 2885 West Shore Parkway: Statutory Right-of-Way and Easement Registration

Background

In 2022, the City of Langford sold 1365 Goldstream Avenue, Lot 2, Section 1, Goldstream District, Plan 12263 Except Part in Plan EPP60296 to 1326349 BC Ltd. A condition of the sale of this property was that the lot be constructed in accordance with the Attainable Housing Down Payment Assistance Program. This property is now under construction and has two multi-family buildings being built in accordance with the program.

During the civil and site servicing design stage of the construction of these two buildings the owner requested to service the site with water, sanitary sewer, and storm drain overflow through minor portions of adjacent land owned by the city at 2885 West Shore Parkway, Lot 1, Section 1, Goldstream District, Plan VIP69106. Typically, services to developing lands are extended from municipal road but for this property servicing from Goldstream Avenue was determined not to be the best option. Staff reviewed the request internally as well as with the utility companies and the engineer of record. Based on the information provided and available it was determined that installing these services through 2885 West Shore Parkway in Statutory Right-of-Ways (SRW) and a private easement was the best option.

Shown below in Area C, a watermain extension from the Trans-Canada highway directly north of 2885 West Shore Parkway was determined the best connection point because there is a 300mm water distribution main there. On Goldstream Avenue the water distribution main does not extend beyond Lake End Road (approximately 350m East).

Shown below in Area B and C, a municipal owned sanitary sewer extension from West Shore Parkway was determined as the best option because the property could connect to sanitary sewer by gravity through that route. If they connected to the main on Goldstream Avenue they would need to tie into a sanitary sewer force main with a new pumped system.

Shown below in Area A: The storm drain overflow into 2885 West Shore Parkway was accepted as the practical option because there is no municipal storm drain system in this area and historically any storm water runoff from this property would naturally drain towards 2885 West Shore Parkway. During the review process staff required the owner to extend the storm drain overflow outlet under the multi-use path so that any possible discharge be directed downstream of the path. On Point Project Engineers have designed the storm water system for the buildings and parking lots in accordance with Langford Bylaw 1000. The onsite drainage system is designed with catch basins with sumps and then channeled into vertical seepage pits to infiltrate and treat the storm water runoff up to the 1:25-year storm event. According to On Point's design the outlet overflow pipe “is meant only for the rainfall events that exceed the infiltration rate, which would be a 1:200-year event.” There are no treatment systems available for overland flow in a 1:200-year event. There will be a covenant registered on title requiring the owner(s) to maintain their onsite storm water system(s) in good working order.

Statutory Right-of-Way Areas B and C, Easement Area A:

Commentary

The proposed SRWs and Easement area over 2885 West Shore Parkway are within Potential Habitat and Biodiversity Development Permit Areas and overlaps with the edge of the 200-Yr Floodplain Development Permit Area. As such the owner engaged a biologist who provided an assessment of the lands, and a Development Permit (DP23-0017) was required to install these services under the supervision of the biologist. A condition of the Development Permit is to replant and restore habitat in the area, as well as reconstruct and improve the public trail. The owner has provided full security, in cash, to the city to complete the works.

A construction license (CON23-024) was entered into with the owner permitting them to install the servicing works. The owner provided the necessary insurance requirements, and their contractor has now completed the servicing works.

The purpose of this report is to request council to authorize the registration of the SRWs and the easement on the title of 2885 West Shore Parkway. The SRW for sanitary sewer will be registered in favor of the City of Langford. The statutory right-of-way for the watermain will be registered in favor of CRD Water. The easement for the storm drain outlet will be registered in favour of 1326349 BC Ltd., which will transfer to the future stratas of the two buildings.

Granting an SRW or easement over city owned land is considered a disposition of an interest in land. Section 26 of the Community Charter requires the city to publish notice in accordance with Section 94 of the Community Charter before council disposes of an interest in any city owned land. Staff have completed this requirement and advertised this disposition in the paper two consecutive weeks prior to this meeting. The SRW for the sanitary sewer that will be registered in favor of the City of Langford is not considered a disposition, but it should be registered on the title as a separate interest in the land.

Financial Implications

All cost associated with these SRWs and easement will be at the expense of the developer of 1365 Goldstream Avenue.

Once the SRW and Easement are registered it will be the charge holder’s obligation to operate and maintain their utility at their own expense.

Staff have considered the need for consideration for these encumbrances. For the CRD Water SRW the consideration received by the City for this SRW area is the extension of the infrastructure for the provision of the water service. For the easement to the landowner for the storm water outlet, the consideration received by the City for SRW area is trail improvements including the purchase and installation of two new standard benches along the adjacent trail. In both cases staff have determined that the value of the consideration exceeds the value of the SRW areas.

Legal Implications

The draft SRWs and easement are attached for reference and have been drafted using standard legal terms.

Options

Option 1

THAT Council authorize the Mayor and Chief Administrative Officer to enter into the Statutory Right-of-Way with CRD Water and the City of Langford, and to enter into the easement with 1326349 BC Ltd, substantially on the terms as attached, to install, repair and maintain their utility over the portion of city owned land at 2885 West Shore Parkway, Lot 1, Section 1, Goldstream District, Plan VIP69106, subject to minor amendments as may be necessary.

OR Option 2

THAT Council take no action at this time with respect to these Statutory Right-of-Ways and easement at 2885 West Shore Parkway.

SUBMITTED BY: Daryl Minifie, AScT, Senior Land Development Technologist

Concurrence:
Leah Stohmann, MCIP, RPP, Deputy Director of Planning and Subdivision
Donna Petrie, Senior Manager of Business Development and Events
Yari Nielsen, Director of Parks, Recreation and Facilities
Matthew Baldwin, MCIP, RPP, Director of Planning and Subdivision
Katelyn Balzer, P.Eng., Director of Engineering and Public Works
Michael Dillabaugh, CPA, CA, Director of Finance
Marie Watmough, Deputy Director of Corporate Services
Braden Hutchins, Director of Corporate Services
Darren Kiedyk, Chief Administrative Officer

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Land Title Act — Form C (Statutory Right of Way)

Form C (Section 233)
2023 01 17 14:31:59.681

1. Application

• Reed Pope Law Corp
  202 - 1007 Fort Street
  Victoria BC V8V 3K5
  2504195077

2. Description of Land

3. Nature of Interest

4. Terms

Part 2 of this instrument consists of:
(b) Express Charge Terms Annexed as Part 2

5. Transferor(s)

• CITY OF LANGFORD

6. Transferee(s)

• CITY OF LANGFORD
  2ND FLOOR, 877 GOLDSTREAM AVENUE
  LANGFORD BC V9B 2X8

7. Additional or Modified Terms

(See Part 2 – Express Charge Terms)

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TERMS OF INSTRUMENT – PART 2

#1898222

STATUTORY RIGHT OF WAY FOR SANITARY SEWER

BETWEEN:

CITY OF LANGFORD (the “Grantor”)

AND:

CITY OF LANGFORD (the “Grantee”)

WHEREAS:

A. The Grantor is the registered owner of the lands and premises located in the City of Langford, and legally described as:

PID: 024-550-451
Lot 1, Section 1, Goldstream District, Plan VIP69106
(the “Lands”).

B. The Grantor has agreed to grant this Statutory Right of Way in favour of the Grantee to construct, install, operate, maintain, repair and use certain works for sanitary sewer drainage across those portions of the Lands labelled as Area B and Area C on Reference Plan EPP124859, a copy of which is attached hereto as Schedule “A” (the “SRW Area”), all on the terms and conditions contained herein;

C. Section 218 of the Land Title Act R.S.B.C. 1996, c. 250, provides that there may be registered as a charge against title to any land, a Right of Way in favour of the Grantee as set forth herein; and

D. This Statutory Right of Way is necessary for the operation and maintenance of the Grantee’s undertaking.

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the sum of TEN DOLLARS ($10.00) of lawful money of Canada and other good and valuable consideration paid by the Grantee to the Grantor, the receipt of which is hereby acknowledged, the Grantor does hereby covenant and agree as follows:

GRANT OF STATUTORY RIGHT OF WAY

1. The Grantor, pursuant to Section 218 of the Land Title Act, for itself, its successors and assigns, hereby gives and grants unto the Grantee, the perpetuity, the full, free and unrestricted right, licence, liberty and easement and right-of-way on, over, under and through the SRW Area for: a) the construction, installation, removal, alteration, repair, maintenance, operation, replacement and use of pipes, valves, fittings, manholes, conduits, culverts, facilities and all appurtenances necessary or convenient for the carrying of sanitary sewer as part of the Grantee’s system of sanitary works and drainage works (the “Works”); b) having unobstructed access to and from the SRW Area at any and all times; c) making surveys and tests; d) excavating or otherwise altering the contours of the SRW Area and backfilling trenches; e) clearing the SRW Area and keeping it clear of anything which in the opinion of the Grantee constitutes or may constitute an obstruction to the Grantee’s use of the SRW Area or the Works; and f) doing all other things on the SRW Area as are reasonably necessary or incidental to the foregoing.

2. The Grantor hereby reserves for itself and retains for its servants, agents, licensees, invitees, successors and assigns the full right and liberty to use the SRW Area for any and all purposes to which the SRW Area may legally be put, provided that such uses do not unduly interfere with the grant in section 1 hereof.

GRANTEE’S COVENANTS

3. The Grantee covenants and agrees: a) to use the SRW Area and construct the Works in a good and workmanlike manner in order to cause no unnecessary damage or disturbance to the Grantor, the Lands or any improvements on the Lands; b) to thoroughly clean all areas of the SRW Area to which it has had access under this Agreement of all rubbish and construction debris created or placed thereon by the Grantee and its invitees, servants, agents, workers, citizens, and licensees and agrees to maintain the SRW Area in a neat and clean condition; c) not to disturb the soil, surface or any other portion of the SRW Area except as may be reasonably necessary for exercising its rights under the grant in section 1 hereof; d) to make good at its own expense all damage or disturbance which may be caused to the SRW Area in the exercise of its rights under this Agreement; and e) as soon as weather and soil conditions permit, and as often as it may exercise this right of entry to any of the Lands, to replace the surface soil, reconstruct any disturbed trail works and replant the areas of disturbance as near as reasonably possible to the same condition as it was prior to the entry, in order to restore the natural drainage, public use, and environmental sensitive areas on the Lands.

GRANTOR’S COVENANTS

4. The Grantor shall not: a) do or permit to be done any act or thing which in the reasonable opinion of the Grantee might interfere with, injure, impair the operating efficiency of, or obstruct access to or the use of the within statutory right of way or the Works; b) erect, place or maintain any building, structure or retaining wall on any portion of the SRW Area and will maintain the SRW Area free to sky; c) diminish or increase the soil cover over any Works installed in the SRW Area without the Grantee’s approval; d) carry on blasting on or adjacent to the SRW Area without the Grantee’s approval; and e) not in any way prohibit, obstruct, or otherwise prevent the Grantee from peaceably holding and enjoying the rights granted by this Agreement.

MISCELLANEOUS

5. The parties hereto each hereby covenant to and agree with the other that this Agreement runs with the Lands and each and every part into which the Lands may be subdivided or consolidated by any means (including subdivision plan, reference or explanatory plan, strata plan, bare land strata plan or lease), but no part of the fee of the Lands passes to or is vested in the Grantee under or by this Agreement and the Grantor may fully use the Statutory Right of Way and Lands subject only to the common law and the rights, obligations and restrictions expressly set out in this Agreement.

6. This Agreement enures to the benefit of and is binding on the parties notwithstanding any rule of law or equity to the contrary.

7. None of the covenants herein contained shall be personal or binding upon the parties hereto, save and except during their respective ownership of an interest in the Lands.

8. The Grantee is entitled to peaceably hold and enjoy the rights and liberties hereby granted without hindrance, molestation or interruption by the Grantor or any person, firm or corporation claiming by, through, under or in trust for the Grantor.

9. Any notice to be given pursuant to this Agreement must be in writing and must be delivered personally or by mail. The address of the Grantor for the purpose of notice is the address set out on the title to the Lands at the Land Title Office. The address for the Grantee for the purpose of notice is the Grantee’s office address. Notice may be left at the relevant address in the same manner as ordinary mail is left by Canada Post and is to be deemed to have been given when delivered. Notwithstanding the above, any party may at any time give notice in writing to the other of any change of address and from and after the receipt of notice the address therein specified is to be deemed to be the address of such party for the giving of notice.

10. If any section, subsection, sentence, clause or phrase in this Agreement is for any reason held to be invalid by the decision of a court of competent jurisdiction, the invalid portion is to be severed and the decision that it is invalid does not affect the validity of the remainder of this Agreement, the parties hereby agreeing that they would have entered into the Agreement without the severed provision.

11. This Agreement is the entire agreement regarding its subject between the parties, and no amendment of this Agreement, is valid or binding unless in writing and executed by the parties.

12. Every reference in this Agreement to a party is deemed to include the heirs, executors, administrators, successors, assigns, employees, agents, officers, and invitees of such party wherever the context so requires or allows.

IN WITNESS WHEREOF the parties hereto acknowledge that this Agreement has been duly executed and delivered by the execution of the Form C (and Form D if applicable) forming part of this Instrument, as of the date so executed.

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Land Title Act — Form C (Easement for Storm Water)

Form C (Section 233)
2023 01 17 14:40:12.148

1. Application

• Reed Pope Law Corporation
  202 - 1007 Fort Street
  Victoria BC V8V 3K5
  250-383-3838
  File no. 250-383-3838

2. Description of Land

3. Nature of Interest

4. Terms

Part 2 of this instrument consists of:
(b) Express Charge Terms Annexed as Part 2

5. Transferor(s)

• CITY OF LANGFORD

6. Transferee(s)

• 1326349 B.C. LTD.
  BC1326349
  116 - 967 LANGFORD PARKWAY
  VICTORIA BC V9B 0A5

7. Additional or Modified Terms

(See Part 2 – Express Charge Terms)

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TERMS OF INSTRUMENT – PART 2

#1894833

EASEMENT FOR STORM WATER

BETWEEN:

CITY OF LANGFORD (the “Grantor”)

AND:

1326349 B.C. LTD. (the “Grantee”)

WHEREAS:

A. The Grantor is the registered owner of the lands and premises located in the City of Langford, and legally described as:

PID: 024-550-451
Lot 1, Section 1, Goldstream District, Plan VIP69106
(the “Servient Lands”).

B. The Grantee is the registered owner of the lands and premises located in the City of Langford and legally described as:

PID: 004-052-544
Lot 2, Section 1, Goldstream District, Plan 12263, Except Part in Plan EPP60296
(the “Dominant Lands”).

C. The owner of the Servient Lands has agreed to grant an easement in favour of the Dominant Lands to construct, install, operate, maintain, repair and use certain works for storm water drainage from the Dominant Lands across those portions of the Servient Lands labelled as Area A on Reference Plan EPP124859, a copy of which is attached hereto as Schedule “A” (the “Easement Area”), all on the terms and conditions contained herein.

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration the mutual agreements herein contained and other good and valuable consideration paid among the parties hereto, the receipt of which is hereby acknowledged, the parties hereto covenant and agree as follows:

GRANT OF EASEMENT

1. The Grantor as owner of the Servient Lands hereby grants to the Dominant Lands the full, free and non-exclusive right, liberty and easement over the Easement Area, which will be appurtenant to and for the benefit of the Dominant Lands as dominant tenement, and will run with and bind the Servient Lands as servient tenement, for the owners of the Dominant Lands and its tenants and invitees, in common with the owner of the Servient Lands and all others now or hereafter having the like right, to enter into and upon the Easement Area for going, returning, passing and repassing on foot and with vehicles for the purpose of: a) constructing, installing, operating, maintaining, repairing and using certain works for storm water drainage from the Dominant Lands across the Easement Area, including all pipes, valves, conduits, wires and other installations and equipment required for such service over, upon and under the Easement Area (the “Works”). b) having unobstructed access to and from the Easement Area at any and all times; c) making surveys and tests; d) excavating or otherwise altering the contours of the Easement Area and backfilling trenches; e) clearing the Easement Area and keeping it clear of anything which in the opinion of the owner of the Dominant Lands constitutes or may constitute an obstruction to its use of the Easement Area or the Works; and f) doing all other things on the Easement Area as are reasonably necessary or incidental to the foregoing.

2. The Grantor as owner of the Servient Lands hereby reserves for itself and retains for its servants, agents, licensees, invitees, successors and assigns the full right and liberty to use the Easement Area for any and all purposes to which the Easement Area may legally be put, provided that such uses do not unduly interfere with the grant in section 1 hereof.

3. The Grantee as owner of the Dominant Lands covenants and agrees: a) to use the Easement Area and construct the Works in a good and workmanlike manner in order to cause no unnecessary damage or disturbance to the Servient Lands or any improvements thereon; b) to thoroughly clean all areas of the Easement Area to which it has had access under this Agreement of all rubbish and construction debris created or placed thereon by the owner of the Dominant Lands and its invitees, servants, agents, workers, citizens, and licensees; c) not to disturb the soil, surface or any other portion of the Easement Area except as may be reasonably necessary for exercising its rights under the grant in section 1 hereof; d) to make good at its own expense all damage or disturbance which may be caused to the Easement Area in the exercise of its rights under this Agreement; and e) as soon as weather and soil conditions permit, and as often as it may exercise this right of entry to any of the Servient Lands, to replace the surface soil, reconstruct any disturbed trail works and replant the areas of disturbance as near as reasonably possible to the same condition as it was prior to the entry, in order to restore the natural drainage, public use, and environmental sensitive areas on the Servient Lands.

GENERAL

4. The parties hereto covenant and agree that they will do and execute such further acts and deeds and give such further assurances as may be reasonably necessary to implement the true meaning of this Agreement.

5. The covenants and easements contained herein shall be covenants running with the lands but no part of the fee of the soil thereof shall pass to or be vested in any other party under or by this Agreement.

6. No provision of this Agreement shall be deemed to have been waived by any party unless written waiver signed by the party waiving a provision has first been obtained by the party asserting a wavier and, without limiting the generality of the foregoing, no condoning, excusing or overlooking by a part of a breach of the provisions hereof nor any earlier written waiver shall be taken to operate as a waiver or constitute acquiescence to subsequent default or breach of this Agreement by either party.

7. Any notice to be given pursuant to this Agreement must be in writing and may be delivered personally or sent by prepaid mail. The addresses of the parties for the purpose of notice are the addresses set out, in the case of the Grantor, on the title to the Servient Lands, and in the case of the Grantee, on title to the Dominant Lands. If notice is delivered personally, it may be left at the registered office of the addressee, or if no registered office is available, then at the relevant address in the same manner as ordinary mail is left by Canada Post and is to be deemed given when delivered. If notice is mailed, it is to be deemed given five days after mailing by deposit at a Canada Post mailing point or office. In the case of any strike or other event causing disruption of ordinary Canada Post operations, a party giving notice must do so by personal delivery as provided in this section. Any party may at any time give notice in writing to the other of any change of address and from and after the receipt of notice the address therein specified is to be deemed to be the address of such party for the giving of notice.

8. If any section, subsection, sentence, clause or phrase in this Agreement is for any reason held to be invalid or unenforceable by the decision of a court of competent jurisdiction, the invalid portion is to be severed and the decision that it is invalid does not affect the validity of the remainder of this Agreement.

9. No amendment of this Agreement is valid or binding unless in writing and executed by the parties.

10. The easements granted hereby severally run with the Lands and each and every part into which the Lands may be subdivided or consolidated by any means (including subdivision plan, reference or explanatory plan, strata plan, bare land strata plan or lease), but no part of the fee of the Lands passes to or is vested in any other party under or by this Agreement and the grantors may fully use the Lands subject only to the common law and the rights, obligations and restrictions expressly set out in this Agreement. This Agreement enures to the benefit of and is binding on the parties notwithstanding any rule of law or equity to the contrary.

IN WITNESS WHEREOF the parties hereto acknowledge that this Agreement has been duly executed and delivered by the execution of the Form C (and Form D if applicable) forming part of this Instrument, as of the date so executed.

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SCHEDULE A — REFERENCE PLAN EPP124859

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