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THIS AGREEMENT made this 06 day of June A.D. 1983.
BETWEEN:
NU-WEST GROUP LIMITED
a body corporate incorporated pursuant to the
laws of the Province of Alberta
(hereinafter referred to as "Nu-West")
- and -
CANADIAN NATIONAL RAILWAY COMPANY
a corporation established pursuant to The
Canadian National Railways Act
(hereinafter collectively referred to as "the Company")
OF THE FIRST PART
- and -
CANADIAN NATIONAL RAILWAY COMPANY
a Corporation established pursuant to The
Canadian National Railways Act
(hereinafter referred to as "Canadian National")
OF THE SECOND PART
- and -
THE CITY OF EDMONTON
a municipal corporation
(hereinafter referred to as "the City")
OF THE THIRD PART
WHEREAS Nu-West and Canadian National have made application to redistrict the CN lands and the City lands from CMX*(Area 1)(Commercial Mixed Use District) to DC2 (Comprehensively Planned Development District) except that portion of the MacDonald Hotel shown on the plan of survey annexed hereto as Schedule "D", for which portion an application to redistrict to DC1 (Direct Development Control District) was made; and
WHEREAS the Company pursuant to an agreement with Canadian National whereby the Company will acquire a leasehold interest in the said lands intend to tear down certain portions of the Macdonald Hotel presently occupying the site, to retain the original portion of the Macdonald Hotel, and construct the Project (as hereinafter defined); and
WHEREAS the Municipal Planning Commission at its meeting of 1982 05 27 supported the application to so redistrict the said lands on conditions; and
WHEREAS the Municipal Council of the City, on 1982 06 29 gave first reading to Bylaw No. 6953, and on 1982 11 09 gave second reading to Bylaw No. 6953, to redistrict the said lands to DC1 and DC2, and required that, prior to third reading the Company and Canadian National enter into this agreement with the City; and
WHEREAS it is the intention of the City with the co-operation of the Company and Canadian National to designate the portion of the Macdonald Hotel constructed in or about 1915 as a municipal historic resource pursuant to the Alberta Historic Resources Act for compensation as may be agreed to by the City and Canadian National when the bylaw designating the said portion of the Macdonald Hotel is considered, including:
(a) a grant equal to the amount of the redevelopment levy otherwise payable for the Project pursuant to Bylaw No. 6477, the Downtown Area Redevelopment Plan Bylaw on the conditions set out in Article 13.11(b) hereof;
(b) tax relief in the form of a rebate of a portion of the property taxes otherwise collected during the First Five Full Years of Operation of the hotel portion of the Project and being the difference between the 1983 property taxes and the taxes levied in the First Five Full Years of Operation of the hotel portion of the Project;
(c) a transfer of the City lands to Canadian National on the terms and conditions hereinafter set out; and
(d) because Bylaw No. 6477, the Downtown Area Redevelopment Plan Bylaw, permits higher densities for developments retaining municipal historic resources, approval of Project density and recognition of unused density of the said lands;
it being understood that City Council is not, by the terms of this Agreement bound to pass the bylaws to bring the items enumerated above, into effect; and
WHEREAS after the Project shall have been completed according to this Agreement, the Company shall have unused density potential determined according to the calculations annexed hereto as Schedule "H";
NOW THEREFORE this agreement witnesseth that in consideration of the mutual and other covenants hereinafter set forth, the parties hereto covenant and agreement each with the other as follows:
1.1 For the purposes of this Agreement, the recitals hereof and the Schedules annexed hereto, or any other document, agreement, undertaking or assurance delivered in accordance with or in furtherance of the purposes and intent of this Agreement, unless there is something in the subject matter or context inconsistent therewith, the following expressions shall have the following meanings respectively:
(a) "Agreement" or "hereto", "herein", "hereby", "hereunder", "hereof" and similar expressions when used in this Agreement and the annexed Schedules refer to the whole of this Agreement and the annexed Schedules, and not to any particular article, clause, or other portions thereof and includes any and every document supplemental hereto, and every reference to a Section, Clause or Article by number means the appropriate Clause, Section or Article of this Agreement and attached Schedules unless the context is expressly to the contrary or otherwise requires, and any reference to Schedule by letter or number means the appropriate Schedule annexed to this Agreement;
(b) "City" means the City of Edmonton, a municipal corporation;
(c) "City lands" means the lands described on Certificates of Title Nos. 88-W-123 and 59-C-133, set out in Schedule "A-2" annexed hereto and as shown outlined in green on the plan annexed hereto as Schedule "C", and any other lands or interest therein to be added to the City lands by reference;
(d) "Canadian National" means the Canadian National Railway Company, a corporation established pursuant to The Canadian National Railways Act;
(e) ”CN lands” means the lands described on Certificates of Title Nos. 173-Q-154 and 157-C-252, set out in Schedule "A-1" annexed hereto, and as shown outlined in red on the plan annexed hereto as Schedule "C";
(f) "Company" means Canadian National and Nu-West acting as co-tenants of a leasehold interest to be granted in the said lands in the development of the Project pursuant to this Agreement, or any agreement arising out of this Agreement;
(g) ”Construction Completion Certificate” means the certificate approved and issued by the City Engineer, pursuant to which the maintenance periods set out in Article 5.9 hereof for the municipal improvements commence and which contains a statement signed and sealed by a professional engineer acting for the Company stating that the municipal improvements or works to which it relates have been installed and constructed in accordance with the Servicing Standards Manual and that all other terms of the Agreement related to the construction and installation of municipal improvements have been complied with;
(h) ”Downtown Area Redevelopment Plan Bylaw” means City of Edmonton Bylaw No. 6477, as amended from time to time;
(i) ”Edmonton Land Use Bylaw” means City of Edmonton Bylaw No. 5996, as amended from time to time;
(j) "Exchange lands" means that portion of the CN lands, shown outlined in a broken orange line on Schedule "C" annexed hereto, described in Article 6.1 hereof;
(k) ”Final Acceptance Certificate” means the certificate approved and issued by the City Engineer, upon issuance of which the City shall be responsible, to the extent set out herein, for the said municipal improvements and which contains a statement signed and sealed by a professional engineer acting for the Company stating that the municipal improvements or works have been installed, constructed and maintained throughout their maintenance periods as set out in Article 4 hereof in accordance with this Agreement and the Servicing Standards Manual, and that all other terms of this Agreement have been complied with;
(l) ”First Full Year of Operation of the hotel portion of the Project” means the 365 1/4 day period following the day on which the hotel portion of the Project is opened to the Public;
(m) ”Heritage Trail” means the public walkway system to be developed pursuant to the Downtown Area Redevelopment Plan Bylaw;
(n) ”Heritage Trail Easement” means the easement referred to in Article 7.1 hereof, in the form annexed hereto as Schedule "N";
(o) "municipal highways" means those portions of Jasper Avenue, 100th Street and Thornton Court, adjacent to the and abutting said lands;
(p) "Municipal improvements" means all municipal works to be constructed by the Company pursuant to this Agreement, and includes, but is not limited to, sidewalks, curbs, gutters, roads, power, telephone ducts and lines, storm and sanitary sewers and water lines;
(q) "Nu-West" means Nu-West Group Limited, a body corporate incorporated pursuant to the laws of the Province of Alberta;
(r) "Office Tower No. 1" means that building forming part of the Project, shown on Schedule "B" annexed hereto, and identified thereon as Office Tower No. 1;
(s) "Office Tower No. 2" means that building forming part of the Project, shown on Schedule "B" annexed hereto, and identified thereon as Office Tower No. 2;
(t) ”Pedway” means the underground pedestrian walkway described in Article 8 hereof, and shown outlined in green on page 7 of Schedule "B" annexed hereto;
(u) ”Pedway Area” means the area under Jasper Avenue adjoining the said lands in which the Pedway is to be constructed, as set out in Article 8.3 hereof;
(v) ”Pedway Entrance Easement” means the easement referred to in Article 7.3 hereof, in the form annexed hereto as Schedule "K", in the location shown crosshatched in yellow on page 3 of Schedule "B";
(w) ”Project" means the development to be constructed on the said lands by the Company shown on the plans in Schedule "B" annexed hereto, and consisting of renovating certain portions of the Macdonald Hotel constructed in or about 1915, constructing an addition thereto, and two office towers, one 29 and the other 39-stories in height, together with parking facilities and retail uses;
(x) ”Retail Space” means the area of Retail Space within and fronting onto, the Pedway, as set out in Article 8.2 hereof;
(y) ”said lands” means the City lands and the CN lands less the Exchange lands, as shown outlined in red on Schedule "M" annexed hereto;
(z) "Servicing Standards Manual” means the most recent edition of the manual prepared by the City of Edmonton governing the design, preparation and submission of plans and specifications for the construction of municipal improvements within the City;
(aa) ”Sign Regulations” means City of Edmonton Bylaw No. 6610, as amended from time to time;
(bb) ”substantial completion” means when the Project, Office Tower No. 1, Office Tower No. 2 or the hotel portion thereof, or other work contemplated herein to be performed by the Company has been substantially performed, as that term is defined in the Builders' Lien Act, R.S.A 1980, c.B-12, in the sole opinion of the City Building Inspector, acting reasonably;
(cc) ”Utility and Roadways Easement” means the easement referred to in Article 7.2 hereof, in the form annexed hereto as Schedule "J".
2.1 This Agreement is subject to the following conditions and shall not come into force and effect until they have all been satisfactorily completed by the relevant parties as stated, but nothing herein shall preclude the Company from applying for a development permit which contains the same conditions prior to their completion, namely:
(a) three readings having been given by Municipal Council of the City to a bylaw designating that portion of the Macdonald Hotel constructed in or about 1915 as a municipal historic resource pursuant to the Alberta Historic Resources Act; and
(b) the Company, in the event that a portion of the hotel portion of the Project will be located on City-owned land,
(i) having done all things necessary for, at its expense, and having received, subdivision approval for the subdivision of that parcel on which the hotel portion of the Project is located, being given third reading of a bylaw to redistrict the said parcel from the then existing district to DC2 by Municipal Council and having sold or leased the said parcel by the City on terms as approved by Council; or
(ii) being given third reading of a bylaw to redistrict the said parcel from the then existing district to DC2 (Comprehensively Planned Development District) by Municipal Council, and entering into an encroachment agreement between the Company and the City, in a form satisfactory to the City Solicitor, permitting the encroachment of the Hotel.
2.2 It is understood and agreed that the City will not request reserve dedication from the subdivisions contemplated in Article 2.1(b); however, nothing herein shall be construed so as to bind the Edmonton Municipal Planning Commission, being the subdivision approving authority, to accept or adopt such recommendation.
3.1 (a) When the Company proceeds with the Project, it shall construct the Project upon the said lands substantially in accordance with the set of Plans annexed hereto as Schedule "B". Nothwithstanding anything expressed or implied herein, if the said Schedule "B" varies in any way with a specific provision of this Agreement, the parties shall comply with this Agreement and not Schedule "B".
(b) No changes shall be permitted to the Plans described in Article 3.1(a) above, except:
(i) minor revisions which may be necessary for the express purpose of complying with any existing statutes, bylaws, regulations or City policies, which would be violated by strict interpretation of the said Plans;
(ii) minor revisions which may be required by the Building Inspector of the Bylaw Enforcement Department to ensure conformity with the Alberta Uniform Building Standards Act, R.S.A. 1980, c.U-4, as amended, and regulations made thereunder;
(iii) minor revisions requested by the Company and approved by the City's Development Officer;
(iv) minor revisions to the parking layout, provided that the new layout conforms to the Land Use Bylaw, and the location, and number of parking stalls and facilities otherwise comply with this Agreement.
(v) that the Company may build the Project in accordance with the Plans annexed hereto as Schedule "I", depending on the location of the pool selected by the Company.
(c) For the purposes of Article 3.1(b), the Development Officer, acting reasonably, shall be the sole judge of what constitutes a minor revision.
3.2 Without limitation to Article 3.1, the Project to be developed, shall conform to the following requirements:
(a) The Company shall provide direct, at-grade access from sidewalks to the retail areas of the Project, wherever possible, and shall use glass windows to provide views from the street to the interior of these areas, both to the approval of the Development Officer, acting reasonably.
(b) The Company shall incorporate built-form and landscape techniques in the design of the Project to ensure that the comfortable micro-climatic conditions recommended in the wind impact study of Morrison, Hershfield, Theakston & Rowan Limited, annexed hereto as Schedule "E" are maintained to the satisfaction of the Development Officer, acting reasonably.
(c) The height (as defined in the Edmonton Land Use Bylaw) of the Project, including construction operations, cranes, clearance lights, and antennae thereon, both during and after construction, shall not exceed 489.82 feet above the height of the existing curb on the municipal highways, and shall comply in all respects with Section 810 of the Edmonton Land Use Bylaw.
(d) The Company shall establish sign criteria for commercial signs to be used within the Project, in accordance with Bylaw 6610, being the Sign Regulations, acceptable to the Development Officer, acting reasonably, prior to the issuance of any building permits for above-ground construction of the Project, or any portion thereof, and agrees that all commercial signs to be erected or installed within the Project shall conform to the approved criteria.
(e) In order to include a health club as part of the Project, as an amenity area as defined in the Edmonton Land Use Bylaw, the Company agrees to make the health club and pool facility to be located in the Project available for the use of hotel guests and tenants of the Project, without the requirement of club membership.
3.3 The Company shall use its best efforts to negotiate with the owners of the proposed retail areas on the east side of Macdonald Mews, beyond the boundary of the said lands, to encourage such owners to develop the propose retail area in accordance with the plans annexed hereto as Schedule "B", and the City agrees to assist the Company in such regard. Notwithstanding the foregoing, the Company shall not be obligated to make any payments or bear any costs or assume any liabilities in respect of the development of the said proposed retail area.
3.4 In the event that the Company chooses to construct the Project in stages, the Company shall construct the hotel portion thereof, including underground parking, in the first stage.
4.1 Prior to the issuance of the first building permit for construction of the Project or any portion thereof, above grade, the Company shall submit to the Development Officer, acting reasonably, for his approval, in consultation with the General Manager of the City Parks and Recreation Department and the City Engineer, detailed landscaping plans, specifications and design plans prepared by a professional Landscape Architect, for all outdoor areas of the Project, on the said lands and immediately adjacent thereto on the north and west sides, including the area of the proposed Macdonald Court and Macdonald Mews, which plans and specifications will include details as to the following:
(a) existing and proposed grading of these areas;
(b) the type of pavement and finish in different locations on sidewalks and pedestrian areas;
(c) the size, species and location of all new and existing plantings, which shall have sufficient soil cover to sustain their natural growth;
(d) the provision to be made for wheelchair ramps, where feasible;
(e) proposed street furniture;
(f) all access areas;
(g) all steps and grade irregularities;
(h) any exterior lighting proposed to be provided;
(i) the means whereby potential wind problems created by existing and proposed surrounding developments and identified in a wind impact study and statement conducted in accordance with the requirements of the Edmonton Land Use Bylaw are to be alleviated so that comfort standards, acceptable to the Development Officer, will be maintained;
(j) fencing and other safety barriers;
(k) signage and location of water and art features, if provided;
(l) the means whereby access to the Heritage Trail will be provided through the said lands at no cost to the City; and
(m) special street treatment along Jasper Avenue consistent with Bylaw No. 6477, the Downtown Area Redevelopment Plan Bylaw.
4.2 Prior to the issuance of the first building permit for construction of the Project, or any portion thereof, above-grade, the Company shall submit to the Development Officer, acting reasonably, for his approval, in consultation with the General Manager of the City Parks and Recreation Department, the General Manager of the Planning Department and the City Engineer, detailed landscaping plans, specifications and design plans prepared by a professional Landscape Architect for that portion of the River Valley between the southern projection of the east and west boundaries of the said lands, as far as is necessary, in the opinion of the General Manager of the Parks and Recreation Department, acting reasonably, showing the Heritage Trail and restoration of the land and vegetation cover thereon to as nearly as possible the condition it was in prior to construction of the Project, preventing erosion and ensuring soil stability, which plans and specifications shall include details as to the following:
(a) existing and proposed grading of the said area;
(b) the size, species and location of all new and existing plantings, which shall have sufficient soil cover to sustain their natural growth;
(c) all access areas;
(d) all steps and grade irregularites;
(e) fencing and other safety barriers;
(f) the means whereby erosion and soil instability of the lands lying to the south of the said lands as are mutually satisfactory to the parties, are to be controlled, including the seeding and planting of these lands; and
(g) (i) the location as shown on page 9 of Schedule "B", design, construction and surface finish of the Heritage Trail, including, but not limited to, the type of pavement and finish of the walkway and pedestrian areas, proposed furniture, access from the said lands, signage, steps and grade irregularities, lighting, fences and safety barriers, and the means of continuing the Heritage Trail to the east and west; or
(ii) in the event that technical and economic feasibility studies conducted by or on behalf of the Company demonstrate to the satisfaction of the City Engineer that it is technically and economically reasonable to locate the Heritage Trail in the location approved by Council in the form of a Heritage Trail policy, then it shall be in the latter location.
4.3 The Company shall, for the life of the Project or any portion thereof, provide and maintain the landscaping and Heritage Trail at no cost to the City, in accordance with the plans described in Articles 4.1 and 4.2 above, and to the satisfaction of the Development Officer in consultation with the General Manager of the City Parks and Recreation Department, acting reasonably, and shall construct the Heritage Trail in connection with the first stage of the Project so that it is substantially completed within 60 days after the substantial completion of the first stage thereof.
4.4 (a) To ensure compliance with the detailed landscaping plans and specifications, prior to the issuance of a building permit authorizing construction of the Project or any portion thereof to proceed above grade, the Company shall provide a performance bond or irrevocable letter of credit to the City, for a period of not less than two (2) years, in a form satisfactory to the City Solicitor, in an amount of One Hundred Percent (100%) of the estimated cost of completing the landscaping and Heritage Trail. When the landscaping and Heritage Trail have been completed, in the opinion of the General Manager of the Parks and Recreation Department, acting reasonably, the security shall be reduced to Fifty Percent (50%) of the actual cost of having installed the landscaping and Heritage Trail. In the event that the landscaping and Heritage Trail have not been so completed when the initial bond or letter is to expire, the said bond or letter shall be renewed by the Company at least two (2) weeks prior to its expiry to the satisfaction of the City Solicitor, acting reasonably, so that it is continually in effect until two (2) years following completion of the landscaping and Heritage Trail. If the letter or bond is not so renewed, and the two (2) year period following landscaping and Heritage Trail completion has not yet expired, the City may cash in the bond or letter and do the landscaping or maintenance or construction of the Heritage Trail at the expense of the Company.
(b) In the event the Company defaults on the obligations undertaken to be observed by it with respect to the landscaping and Heritage Trail requirements of this Agreement, the said bond or irrevocable letter of credit may be realized upon by the City for the purpose of completing all or any portion of the landscaping and Heritage Trail construction either or restoring or repairing the same, or to remedy any defects in the installation thereof.
(c) For the purposes of this Article, the estimated cost of landscaping shall mean all costs associated with the provision and installation of all landscaping materials, including the Heritage Trail, in accordance with the detailed plans and specifications set out in this Article, based upon an estimate prepared by an independent professional agency skilled and Manager of the Parks and Recreation Department, acting reasonably, the security shall be reduced to Fifty Percent (50%) of the actual cost of having installed the landscaping and Heritage Trail. In the event that the landscaping and Heritage Trail have not been so completed when the initial bond or letter is to expire, the said bond or letter shall be renewed by the Company at least two (2) weeks prior to its expiry to the satisfaction of the City Solicitor, acting reasonably, so that it is continually in effect until two (2) years following completion of the landscaping and Heritage Trail. If the letter or bond is not so renewed, and the two (2) year period following landscaping and Heritage Trail completion has not yet expired, the City may cash in the bond or letter and do the landscaping or maintenance or construction of the Heritage Trail at the expense of the Company.
(d) In the event the Company defaults on the obligations undertaken to be observed by it with respect to the landscaping and Heritage Trail requirements of this Agreement, the said bond or irrevocable letter of credit may be realized upon by the City for the purpose of completing all or any portion of the landscaping and Heritage Trail construction either, or restoring or repairing the same, or to remedy any defects in the installation thereof.
(c) For the purposes of this Article, the estimated cost of landscaping shall mean all costs associated with the provision and installation of all landscaping materials, including the Heritage Trail, in accordance with the detailed plans and specifications set out in this Article, based upon an estimate prepared by an independent professional agency skilled and experienced in the provision of landscaping services and certified by a professional landscape architect, such estimate to be supplied to the City upon approval of landscaping plans by the Development Officer.
4.5 Office Tower #1 shall be sited in accordance with the plans submitted and approved by the Development Officer, acting reasonably, and the area between the base of the tower and 100 Street shall be developed as a park by the Company at its sole cost, and landscaped to the approval of the General Manager of the Parks and Recreation Department.
4.6 The Company shall design the landscaping of the park to the west of Office Tower #1 described in Article 4.5, to incorporate the existing plaques commemorating Frank Oliver, to the approval of the Development Officer in consultation with the General Manager of the Parks and Recreation Department, acting reasonably, and the Director of the Historic Sites and Monuments Board of Canada.
5.1 Prior to commencing any construction or excavation upon the said lands, the Company and the City Engineer, or person designated by the City Engineer, shall perform a site inspection of the municipal highways and shall make written note of all visible defects thereon. Except as to the defects so noted, all City-owned property adjacent to the said lands and capable of visible inspection shall be deemed to be in good condition. The Company shall make written request for this inspection at least ten (10) days before any excavation or construction begins.
5.2 (a) Except as otherwise expressly provided herein, the Company shall pay any and all costs of:
(i) roadway restorations or modifications which, in the opinion of the City Engineer, are required by, or occur as a result of, the development of the Project upon the said lands, including but not restricted to, upgrading of existing curb crossings, filling in of unutilized curb crossings, provision of new curb crossings where required, and the repair or replacement of sidewalks, curbs and gutters, lane paving, and roadways, to City specifications; and
(ii) the relocation, repair or provision to City specifications of utility services due to construction of the Project, whether incurred by the City or by the Company.
(b) The Company shall provide and pay for, at such times as required by the City Engineer:
(i) the establishment or re-establishment of grades at all access points between the municipal highways and the Project, necessitated by the Project, to conform to the requirements of the City Engineer;
(ii) public roadway widenings and related resurfacing on the municipal highways necessitated by the Project, excluding land acquisition costs of lands on the north side of Jasper Avenue;
(iii) the design, construction and costs directly related thereto, for a centre median on Jasper Avenue and the design and construction of a centre median on 100th Street contiguous to the said lands;
all to conform to the requirements of the City Engineer.
(c) Without restricting the generality of the foregoing, the costs to be paid hereunder by the Company shall include, but shall not be limited to, all out-of-pocket expenses incurred by the City in the re-design of the curbs, sidewalks and lanes, the surveying of same and of inspections made prior to, during and after the construction of the alterations to the roadways as aforesaid.
(d) (i) Prior to the issuance of a building permit to the Company authorizing construction of the Project or first phase thereof, the Company shall provide a performance bond or irrevocable letter of credit to the City, for a period of not less than two (2) years, in a form satisfactory to the City Solicitor, in an amount of Fifty Thousand ($50,000) Dollars. When the said work has been completed, the security shall be reduced to Twenty Five Thousand ($25,000) Dollars, which shall be in effect until all Final Acceptance Certificates have been issued for the said work. In the event that the work has not been completed when the initial bond or letter is to expire, the said bond or letter shall be renewed by the Company at least two (2) weeks prior to its expiry to the satisfaction of the City Solicitor, acting reasonably, so that it is continually in effect until the Final Acceptance Certificates have been issued. If the letter or bond is not so renewed, and Final Acceptance Certificates not issued, the City may cash in the bond or letter and so construct the work at the expense of the Company.
(ii) In the event the Company defaults on the obligations undertaken to be observed by it with respect to the requirements of this Article 5.2, the said bond or irrevocable letter of credit may be realized upon by the City for the purpose of completing all or any portion of the work and to restore or repair the same, or to remedy any defects in the construction thereof.
5.3 The Company shall obtain from the Engineering Department of the City grades and specifications for any modification or improvement to be carried out upon the municipal highways and shall construct, at its sole expense, any such modifications or improvements to those grades and specifications to the satisfaction of the City Engineer.
5.4 The City Engineer shall control the use of any hoarding, municipal highways, and pedestrian and traffic control during the period of construction of the Project.
5.5 In the event any change, temporary or permanent, is required by the Company to the municipal highways the Company agrees that such change shall be subject to approval of the City Engineer or City Council, as the case may be, and that the cost of any such change, including extra traffic controls of men, equipment or other devices or advertising costs, shall be borne by the Company.
5.6 Prior to the issuance of any building permit for the Project or any portion thereof, the Company shall provide a detailed plan and geo technical assessment showing the proposed support systems for the excavation and construction of the Project, to the satisfaction of the Development Officer and the City Engineer both acting reasonably. The plan shall also identify any proposed encroachments upon any City-owned lands. When the proposed support system has been approved by the City, the Company shall execute whatever documentation is reasonably required by the City to settle the terms of the construction of the support system upon the municipal highways or any portion thereof.
5.7 The Company shall submit soil stability information prior to the issuance of the development permit for the Project with respect to the top of the bank of the North Saskatchewan River Valley, the said lands and the lands south of the said lands as mutually agreed to by the parties, to the satisfaction of the Development Officer, in consultation with the City Engineer and the General Manager of the Parks and Recreation Department, all acting reasonably, to determine what measures are required to be taken in the construction of the Project, and landscaping to stabilize the lands described in this Article 5.7, at its sole cost and expense in whatever manner is required by the City Engineer, acting reasonably, to so stabilize the soil.
5.8 Wherever any backfilling is carried out by the Company upon City-owned lands or the municipal highways, the Company shall provide to the City Engineer a report of density tests carried out by an independent testing company, which tests are to be taken at a maximum of twenty-five (25) feet apart along the perimeter of the building and taken at every five (5) feet of lift. The results of such density tests shall be submitted to the City Engineer within seven (7) days of the testing having been carried out.
5.9 The Company agrees, at its sole cost and expense, to replace the sidewalks, curbs, gutters and roadways abutting and on the said lands, damaged during construction of the Project, to the specifications of the City Engineer, and to unconditionally guarantee such replacement work for a minimum period of two (2) years. If the Company desires to use any construction materials other than those normally used for standard sidewalk, curb, gutter and roadway construction by the City (including, but not limited to interlocking paving stone or colored paving materials), then the Company and the City shall enter into a separate agreement to cover such items as maintenance, construction and design of the sidewalk, curb, gutter and roadway and the parties' liability therefore.
5.10 The Company, upon completion of the sidewalks, curbs, gutters and roadways, shall make application to the City Engineer for the issuance of a Construction Completion Certificates for the said works.
5.11 From and after the date of issuance of the Construction Completion Certificates, the Company shall maintain and guarantee unconditionally the sidewalks, curbs, gutters and roadways constructed and installed by it for a period of two (2) years, prior to issuance of Final Acceptance Certificates. Maintenance by the Company shall be to the same standard as the City maintains such works in other public roadways within the City after the issuance of Final Acceptance Certificates. In the event the Company fails to maintain or repair the work to the approval of the City Engineer, acting reasonably, the City, at the sole cost and expense of the Company, shall be entitled to maintain and repair as aforesaid the sidewalks, curbs, gutters and roadways or cause the sidewalks, curbs, gutters and roadways to be so maintained or repaired.
5.12 The Company shall, not later than six (6) months prior to the expiration of the maintenance and guarantee for the sidewalks, curbs, gutters and roadways, provide to the City Engineer as-built drawings of the sidewalks, curbs, gutters and roadways, and in the event that the Company fails to provide as-built drawings as herein required, the Final Acceptance Certificates shall not be issued until six (6) months after the date of the submission of the as-built drawings. In any event, the Final Acceptance Certificates shall not be issued prior to the expiration of the maintenance and guarantee period and as-built drawing approval, which approval shall not be unreasonably withheld.
5.13 Upon application of the Company to be submitted sixty (60) days prior to the expiration of the maintenance and guarantee period for the sidewalks, curbs, gutters and roadways, the City Engineer shall, within sixty (60) days issue a Final Acceptance Certificates, if satisfied, upon inspection, that the sidewalks, curbs, gutters and roadways have been maintained and are in a suitable state of repair as herein required. If the City Engineer shall fail to issue the Final Acceptance Certificates or notify the Company of the cause thereof, the sidewalks, curbs, gutters and roadways shall be deemed to have been maintained and guaranteed as required and the Final Acceptance Certificates issued therefore.
5.14 From and after the date of issuance of the Final Acceptance Certificates, the City shall assume full responsibility for the sidewalks, curbs, gutters and roadways.
5.15 In the event that a Final Acceptance Certificate is not issued upon application therefore, the Company shall rectify all defects and deficiencies or comply with the terms hereof, as the case may be, and thereafter shall resubmit its application for a Final Acceptance Certificate in accordance with this Article.
5.16 All vehicular access to the said lands shall be from the access points, as shown on Page 3 of Schedule "B" annexed hereto. All vehicular access to the said lands shall be subject to the approval of the City Engineer.
5.17 Prior to undertaking any reconstruction of the sidewalks, curbs and gutters, or road and lane paving, on public roadways, the Company shall make arrangements for inspections by requesting such inspections at the offices of the City Engineer at least forty-eight (48) hours before commencing the said reconstruction.
5.18 During and immediately after completion (as determined in the sole discretion of the City Engineer) of any construction operation contemplated by this Agreement, the Company shall be responsible for the cleaning up of any construction debris, mud, soil or garbage which may be tracked onto City sidewalks, lanes or roadways or the municipal highways, or any other land owned by the City, by the Company, its servants, agents, employees or independent contractors. If the Company fails to clean up mud, dust or other construction debris on the roadway in a manner satisfactory to the City Engineer, or within a reasonable length of time, the City shall clean the roadway and invoice the Company for the clean-up, and the Company shall pay the City within thirty (30) days of receiving the invoice.
5.19 A minimum of forty-eight (48) hours prior to using any mobile cranes on the municipal highways during construction of the Project or for any other operation, the Company shall obtain the approval of such use from the City Engineer. In such event, no restriction on the use of any lane of traffic on a municipal highway shall be made until such approval has been given.
5.20 Prior to requesting approval of the use of any mobile cranes on the municipal highways, the Company shall submit to the City Engineer the mobile crane specifications of the crane to be used, detailing the type and size of crane, the magnitude of loads, and the location and distribution of loads to the road surface to ensure roadway capacities are not exceeded. If the crane is located near a tunnel, pedway encroachment or other underground structure, a certificate of structural adequacy must also be submitted.
5.21 The Company shall submit to the City Engineer, at least thirty (30) days prior to commencement of construction of the Project, and any phase of it, a detailed construction schedule and staging plan for all work to be performed on, under, or over City-owned property and the said lands.
5.22 (a) The Company shall design and construct the on-site vehicular circulation, including, but not limited to, accesses to the Project and parking facilities therein, loading areas and on-site roadways, generally in accordance with the plans annexed hereto as Schedule "B", except that the access to and from 100 Street shall be generally in accordance with the plan annexed hereto as Schedule "0", provided that the detailed design of the vehicular circulation shall be approved by the City Engineer prior to the issuance of the first development permit for the Project, or any stage thereof.
(b) The Company shall not permit buses on the said lands without prior approval of the City Engineer to a redesign of the on-site circulation and accesses thereto to accommodate such buses.
(c) The Company shall restrict above-grade parking in Office Tower #1 to hotel patrons and shall, prior to issuance of the development permit for the hotel portion of the Project, have the means of implementing and enforcing such restriction approved by the Development Officer, in consultation with the City Engineer.
(d) The Company shall design and construct the Project so that all access to parking and loading areas for the office component and the loading area for the hotel portion of the Project shall be from Thornton Court.
(e) The Company shall provide 725 parking spaces for the Project, subject to such modifications approved by the Development Officer that may result from incorporation of the Heritage Trail into the structure of the Project. The spaces shall be provided as follows: 399 to be underground in the Project, with access from Thornton Court; 150 to be acquired by the Company from Macdonald Place, with access from Thornton Court; and 176 above-grade in Office Tower #1, which tower is shown on Schedule "B" annexed hereto, with access from the north-south lane to be known as Macdonald Mews.
(f) Parking garages and facilities within the Project shall be constructed so that ticket dispensers are located a minimum distance of 30.5 metres along the parking entrance ramps.
(g) In the event that the Company obtains off-site parking spaces on a parcel adjacent to the said lands, equivalent in number to the parking spaces in Office Tower #1, as shown on the plans annexed hereto as Schedule "B", the space so designated on the plans annexed hereto for parking may be used for office uses, subject to the approval of the Development Officer and City Engineer, such approval not to be unreasonably withheld.
5.23 (a) The Project shall be constructed in such a manner that transit operations and trolley lines are maintained without interruption throughout construction except as approved by the General Manager of Edmonton Transit. In the event relocations, modifications or restoration are required to Edmonton Transit facilities as a result of construction of the Project, they shall be to the specifications of the General Manager of Edmonton Transit and the City Engineer, and performed at no cost to the City.
(b) The Company shall at its sole expense, construct, operate and maintain a sheltered transit passenger waiting area of a minimum area of 10 square metres, in addition to the pedway entrance to be constructed on Jasper Avenue, to the approval of the General Manager of Edmonton Transit. The Company shall heat the transit shelter during inclement weather during the hours of operation of Edmonton Transit.
6.1 (a) Immediately after third reading of the Bylaw designating the portions of the Macdonald Hotel constructed in or about 1915 as a municipal historic resource pursuant to the Alberta Historic Resources Act, Canadian National shall make an application for the subdivision of the Exchange lands at its sole cost and expense. It is understood and agreed that the City will not request reserve dedication from the said subdivision; however, nothing herein shall be construed so as to bind the Edmonton Municipal Planning Commission, being the subdivision approving authority, to accept or adopt such recommendation.
(b) To facilitate the said subdivision, the City and Canadian National shall provide and deliver each to the other, registrable transfers of the City lands and the Exchange lands respectively to be released in trust to the solicitors charged with the responsibility to register the said plan of subdivision.
(c) As soon as possible after all requisite approvals for the said subdivision shall have been obtained, Canadian National shall have the necessary linen plan of subdivision prepared and signed and Canadian National and the City will release the said transfers and duplicate certificates of title as required to register the necessary linen plan of subdivision at the Land Titles Office for the North Alberta Land Registration District, and to transfer the Exchange lands to the City as referred to in Article 6.2 hereof, all at its sole cost.
(d) Immediately upon registration of the plan of subdivision Canadian National shall pay all fees and disbursements incurred by the City to redistrict the Exchange lands to the district requested by the City.
6.2 Concurrent with the registration of the plan of subdivision as described in Article 6.1(b), and provided that the old portion of the Macdonald Hotel constructed in or about 1915 have been designated as a municipal historic resource, by bylaw,
(a) (i) the City agrees to transfer to, and Canadian National agrees to purchase, at and for a consideration of one dollar ($1.00), the City lands subject to the usual conveyancing conditions. The City shall retain the Utility and Roadway Easement and rights granted therein, and such easement as is deemed necessary by the City Solicitor to maintain the City's and the public's rights of access to and through the present pedway entrance on the City lands; or
(ii) in the event that the engineering study in Article 7.2(c) determines that the utilities therein identified cannot be accommodated within the Utility and Roadway Easement, as part of the Project, to the satisfaction of the City Engineer, the City shall transfer, and the Company or Canadian National shall purchase, the lands outlined in purple on Schedule "G" annexed hereto, at and for consideration of One ($1.00) Dollar but shall retain the portion of the Utility and Roadway Easement and rights granted therein that extends south of the City lands; and
(b) Canadian National agrees to transfer, and the City to purchase, at and for a consideration of One ($1.00) Dollar the Exchange lands free and clear of all liens, charges or encumbrances on terms and conditions to be agreed to by the parties, consistent with the terms of this Agreement.
6.3 (a) (i) In the event that the Company or Canadian National applies for a redistricting of the said lands prior to the expiry of the Agreement; or
(ii) In the event that the Company or Canadian National takes any other steps to develop the said lands or any portion thereof other than substantially in accordance with this Agreement, prior to commencement of construction of the above-grade portion of the hotel portion of the Project, or does not commence construction of the Project in the opinion of the City Engineer, prior to the expiry of the Agreement;
then the City shall have the right to repurchase the City lands at and for a consideration of One ($1.00) Dollar, and the Company shall have the right to repurchase the Exchange lands on the same terms, if Council repealed the bylaw designating the portion of the Macdonald Hotel constructed in or about 1915 as a municipal historic resource within one year of the date of subclauses (i) or (ii) above.
(b) The Company shall make an application for the subdivision from the said lands of the City lands, at its sole expense and provide to the City Solicitor a registrable transfer of those subdvided lands for a consideration of One ($1.00) Dollar.
(c) Canadian National or the Company shall, prior to disposing of its interest or any part thereof in the City lands, obtain a covenant from anyone to whom it may so dispose of its interest or part thereof, in the City lands, that the City lands shall be used only for construction of the Project as described in this Agreement.
6.4 (a) Canadian National shall grant the City, its servants, agents and employees, in common with all others with a like right and the public-at-large, immediately upon substantial completion of the Project or any stage thereof access to and permit it to use for the purposes intended, that area of the said lands generally shown crosshatched in blue on page 3 of Schedule "B" annexed hereto or any portion thereof adjacent to the completed stage (hereinafter referred to as the "Landscape Area") 24 hours a day, every day, for the life of the Project, and shall not bar access to such persons from any part of the Landscape Area unless such is required for reasons of safety, or for effecting repairs to the Landscape Area or surrounding structures, or if such persons are not using the Landscape Area for the purposes thereby intended, that is to say, quietly enjoy the same. Nothing herein shall preclude the use of the Landscape Area by the Company for outdoor cafes or like uses.
(b) The Company shall maintain, at its sole cost, all landscaping within the Landscape Area for the life of the Project.
7.1 In the event that the location of the Heritage Trail, as described in this Agreement, traverses the said lands, Canadian National, within thirty (30) days of the issuance of a building permit for the first stage of the Project, shall grant to the City for a consideration of the sum of ONE DOLLAR ($1.00), an easement, in, over, along and under that portion of the said lands (hereinafter referred to as "the Heritage Trail Easement"), with the specific legal description to be determined by survey prepared at the expense of the Company and acceptable to the City Engineer, in the form annexed hereto as Schedule "N".
7.2 (a) Contemporaneously with the land sale described in Article 6.2(a) Canadian National shall grant to the City for a consideration of the sum of One Dollar ($1.00) an easement, in, over, along, through and under that portion of the said lands generally as shown outlined in orange on Page 6 of Schedule "B" annexed hereto (hereinafter referred to as "the Utility and Roadway Easement"), with the specific legal description to be determined by survey prepared at the expense of the Company and acceptable to the City Engineer, in the form annexed hereto as Schedule "J".
(b) The Company shall pay all costs of registering the easement at the Land Titles Office for the North Alberta Land Registration District.
(c) The transaction described in this Article shall be conditional on the results of an independent engineering study, conducted by a professional engineer and approved by all companies or organizations whose utilities and roadways may traverse the area of the Utility and Roadway Easement within two years of the date of the study. Such study shall demonstrate to the satisfaction of the City Engineer that all roadways and utilities identified at the time of such study as being required to be accommodated within the easement area within two years of the date of the study, can be accommodated within the Utility and Roadway Easement and as part of the Project.
7.3 (a) Canadian National, within thirty (30) days of the issuance of the first building permit for any part of the Project, shall grant to the City, for a consideration of the sum of One Dollar ($1.00), an easement in, along, through and under that portion of the said lands generally as shown crosshatched in yellow on Page 3 of Schedule "B" annexed hereto (hereinafter referred to as "the Pedway Entrance Easement"), with the specific legal description to be determined by survey prepared at the expense of the Company, and acceptable to the City Engineer, in the form annexed hereto as Schedule "K".
(b) The Company shall pay all costs of registering the Pedway Entrance Easement at the Land Titles Office for the North Alberta Land Registration District.
7.4 In the event that the Company requires the relocation of the power line situated within the Easement registered as Instrument No. 6622 R.T. at the Land Titles Office for the North Alberta Land Registration District, the Company shall pay for all costs associated with relocating the power line and granting an easement required by the City, all to the satisfaction of the City Engineer.
8.1 The Company agrees that it shall, subject to it commencing construction of either office tower of the Project or construction relative thereto design, construct, operate, maintain and pay for the design, construction, operation and maintenance to the approval of the General Manager of Edmonton Transit and the City Engineer, of the Pedway shown outlined in green on Page 7 of Schedule "B" connecting the Project to the Trade and Convention Centre through a future pedway to be built to the east of the said lands, and to the McCauley Plaza pedway to the west of the said lands. Nothing herein shall be construed so as to require the City to construct any connecting pedways or any part of them.
8.2 The Pedway is intended to be an access pedway as defined in the document entitled "Standards for Pedway Development" attached hereto as Schedule "F", and the Pedway shall be constructed in conformity with the said Schedule "F", and in such manner that the alignment, grade and specifications are acceptable to the City Engineer, acting reasonably. The Pedway shall contain Retail Space fronting onto and accessible from the Pedway, generally as shown in red on Page 7 of Schedule "B" annexed hereto.
8.3 Pursuant to Section 176 of the Municipal Government Act, R.S.A. 1980, c.M-26, as amended, the City agrees to grant to the Company from the date of issuance of a building permit for the Pedway, the right and privilege to construct, operate and maintain the Pedway and any portion of Retail Space under part of the municipal highway known as Jasper Avenue, at the location generally as shown on Page 7 of the plan annexed hereto as Schedule "B", for which a detailed legal description will be provided by the Company at its sole cost and expense by survey acceptable to the City Engineer within 30 days prior to commencement of construction of the Pedway which right and privilege shall include, amongst such others as may be agreed to by the parties, the following terms and conditions:
(a) The said right and privilege shall be granted for the purpose of constructing and thereafter operating, maintaining, repairing and reconstructing the Pedway and any portion of Retail Space constructed by the Company within the Pedway Area, except as otherwise provided herein.
(b) Subject to earlier termination of the right and privilege as hereinafter provided, the right and privilege granted to the Company shall continue for the life of the longest standing portion of the Project or One Hundred (100) years, whichever shall first occur.
(c) In the event that the Office Tower #1, is beyond reasonable repair as determined by an independent expert chosen by both the City and the Company, the right and privilege granted to the Company by the City shall be terminated and surrendered, notwithstanding Article 8.3(b) above.
(d) Upon termination of the right and privilege, with the concurrence of both parties, it may be renewed upon whatever terms and conditions both parties at that time may agree to, or, alternatively, control of the Pedway Area shall be returned to the City with no further or special compensatory payment.
(e) Following completion of construction of the Pedway, the Company agrees to grant public access during the normal operating hours of the Edmonton Transit Light Rail Transit System to the Pedway from the future pedway to the east of the Project to McCauley Plaza to the west of the Project, and to provide an easement, or other interest in land deemed necessary by the City Solicitor, acting reasonably, to provide access to the public, including supporting documents as required by the City to enforce such access.
(f) The construction of the Pedway by the Company within the Pedway Area shall be performed in a good and workmanlike manner and all such construction shall be executed within time limits and in such manner as are reasonable to minimize disruptions to the operations of the City.
(g) Thirty (30) working days prior to the commencement of any work to be performed by the Company upon the Pedway Area, the Company shall provide to the City Engineer detailed engineering drawings and specifications and a construction schedule of the Pedway for his review, and make arrangements for inspection services by the City Engineer. The drawings and specifications shall generally comply with Schedule "B" annexed hereto, as determined by the City Engineer, acting reasonably.
(h) After the provision of the detailed drawings, specifications and schedule referred to in Article 8.3(g), construction of the Pedway shall strictly follow those drawings, specifications and schedule, subject to such modifications or alterations as the parties hereto may agree upon, provided further that all such drawings and specifications shall conform to the requirements of Article 8.1 above.
(i) The Pedway and works to be constructed by the Company within the Pedway Area shall be constructed in such a manner to ensure that existing utilities and services are accommodated at the Company's expense, to the satisfaction of the City Engineer.
(j) Costs of design and construction of the Pedway and the costs of construction shall include design, inspection, planning and all incidental costs, as well as the actual costs of construction of the Pedway.
(k) Maintenance of the Pedway shall include the following:
(i) cleaning,
(ii) heating,
(iii) lighting,
(iv) air conditioning,
(v) decorating,
(vi) general or special repairs, and
(vii) fire protection facilities.
(l) Actual maintenance of the Pedway to the standards provided to the Project shall be carried out by the Company or a party employed by the Company to do maintenance work for the Company at no cost to the City.
(m) The Company agrees to provide security measures in the Pedway in a manner and to a level which is consistent with that generally provided in all other like access pedways within the City, and the City, in its sole discretion, may require the Company to provide for the installation of a closed circuit television monitoring system within the Pedway, and the cost thereof shall be borne by the Company.
(n) The Company acknowledges that in the event that a City Pedway Bylaw is passed by the Municipal Council of the City, the Pedway shall be subject to the terms and conditions of the Bylaw only insofar as the same relate to the operation, maintenance and security of pedways, and that the Company will not be required to replan, renovate, reconstruct or alter the construction or design of the Pedway as a result of the passage of such Bylaw. Nothing herein shall be construed so as to bind the Municipal Council to pass such a Bylaw or any other Bylaw.
(o) Within Sixty (60) days of completion of the Pedway, the Company shall submit to the City:
(i) as-built drawings of the Pedway constructed in accordance with the provisions hereof; and (ii) a certificate signed by a surveyor qualified in Alberta identifying the area of encroachment of such facilities upon City-owned lands or stating that the Pedway does not encroach on any City-owned lands.
(p) For the right and privilege hereby granted and commencing upon the date upon which the building permit for construction of the Pedway is issued, the Company agrees to pay for the space so occupied or to be occupied by the Pedway Area below municipal highways pursuant to Section 176 of the Municipal Government Act, as amended, an annual rental, which shall be calculated on the basis of the following formula:
Area of the municipal highways over which the Pedway Area is located (in square feet) multiplied by twelve percent (12%), multiplied by X, plus an additional amount equal to the taxes, rates, duties and assessments whatsoever upon land and improvements charged in respect of the year of the term of the right and privilege as if the portion of the Pedway situate under municipal highways were subject to assessment and taxation at the same rate as the said lands;
Where X is, in the first ten years of the term of the right and privilege, ten percent (10%) of the average square foot value of the surface of the adjoining lands, and twenty percent (20%) thereafter.
(q) For the purposes of determining annual rental under Article 8.3(p) after the first ten years of the right and privilege, the average square foot value shall be appraised every five (5) years by a person designated by the General Manager of the Real Estate and Housing Department, acting reasonably, and is hereby established at the rate of Three Hundred Sixty Dollars ($360.00) for the first ten (10) years of the term hereof, and the rent payable hereunder shall be adjusted directly in accordance with such reappraisal.
(r) The Company shall provide and install, at its expense, directional signs to the LRT, such signs to be approved by the Development Officer, acting reasonably, in consultation with the General Manager of Edmonton Transit.
8.4 The Company shall indemnify and save harmless the City from and against any and all actions, causes or action, proceedings, claim, demands, losses, costs, damages and expenses whatsoever, which may be brought or made against the City or which the City may sustain, pay or incur as a result of, or in connection with, the exercise by the Company of any rights, liberties or privileges hereby or otherwise vested in the Company by the City in connection with the use of the Pedway, or by virtue of any operations of the Company in and upon the Pedway area.
8.5 The Company shall neither permit nor suffer any liens to remain registered against any lands owned by the City for a period exceeding thirty (30) days in respect of any of the work to be performed by the Company upon the Pedway Area from the date upon which the City notifies the Company of said liens.
8.6 (a) Prior to the issuance of a building permit to the Company authorizing construction of the Project or any portion thereof, the Company shall provide a performance bond or irrevocable letter of credit to the City, for a period of not less than two (2) years, in a form satisfactory to the City Solicitor, in an amount of One Hundred Percent (100%) of the estimated cost of construction of the Pedway. When the Pedway has been completed, the security shall be reduced to Fifty percent (50%) of the actual cost of having constructed the Pedway, which shall be in effect for another two year period. In the event that the Pedway has not been completed when the initial bond or letter is to expire, the said bond or letter shall be renewed by the Company at least two (2) weeks prior to its expiry to the satisfaction of the City Solicitor, acting reasonably, so that it is continually in effect until two (2) years following completion of the said construction. If the letter or bond is not so renewed, and the 2 years following Pedway completion has not yet expired, the City may cash in the bond or letter and so construct the Pedway at the expense of the Company.
(b) In the event the Company defaults on the obligations undertaken to be observed by it with respect to the Pedway construction requirements of this Agreement, the said bond or irrevocable letter of credit may be realized upon by the City;
(i) when the Company subsequently commences construction of Office Tower #1, as shown on Schedule "B", or
(ii) within 12 months of substantial completion of the hotel portion of the Project, or
(iii) if the existing pedway adjacent to the northern boundary of the said lands is demolished,
whichever is the earlier, for the purpose of completing all or any portion of the Pedway, and to restore or repair the same, or to remedy any defects in the construction thereof. In the event the situation described in subsection (b)(iii) above arises, the City shall use the monies released from the bond or letter for constructing the Pedway in accordance with the plans annexed hereto as Schedule "B".
(c) In the event the City constructs or has constructed, the Pedway, pursuant to Article 8.6(b) hereof, the City agrees that it shall commence proceedings to have removed any liens registered against the said lands or other lands owned by the Company in regards to such Pedway construction within thirty (30) days after being notified of the existence of such liens by the Company.
(d) For the purposes of this Article, the estimated cost of construction of the Pedway shall mean all costs associated with the design, materials and labour for the construction of the Pedway in accordance with this agreement, based upon an estimate prepared by an independent professional engineer, such estimate to be supplied to the City upon application for a building permit for construction of the Pedway.
(e) The City agrees to provide the Company with its drawings and specifications within fourteen (14) days of the City commencing construction of the Pedway in accordance with Article 8.6(b).
(f) In the event that the City exercises its rights under Article 8.6(b) hereof, and any portion of the Pedway traverses the said lands, or the City requires access to any portion of the said lands, the Company agrees to grant access to the said lands, from the said lands, without compensation.
8.7 (a) The Company shall construct the Pedway and the Project so that they are able to accommodate the Retail Space and have ready such Retail Space for occupation upon substantial completion of the Pedway, subject to Article 8.6(b).
(b) In the event that a market analysis prepared by the Company at its expense indicates, to the satisfaction of the General Manager of the Real Estate and Housing, and Planning Department, that it is not economical to lease the Retail Space, the Company may use such space for parking only and temporarily until such time as the leasing of the retail space is shown to be economical. In the event that analysis shows the retail space to be uneconomical the General Manager of the Real Estate and Housing Department may request such analysis to be done at the Company's expense every two years during the life of the Project until the Retail Space is constructed.
8.8 (a) The Company shall demolish or cause to be demolished, the entrance to McCauley Plaza located in the lands known as Frank Oliver Park, and reconstruct the entrance to McCauley Plaza so that it forms part of the continuous Pedway to be constructed according to Article 8.1. The Company shall pay to the City the amount, including principal and interest, that the City owes on the debentures issued to the City by the Province of Alberta to finance construction of the Frank Oliver Park entrance to the McCauley Plaza, within 7 days after demolition has commenced, in the opinion of the City Engineer.
(b) Notwithstanding subsection (a) above, the Company shall not close the entrance to McCauley Plaza in the lands known as Frank Oliver Park, until 48 hours prior to demolition of the said entrance, or such other time as approved by the City Engineer.
8.9 (a) The Company shall construct a knock-out panel for a future access pedway connection to the lands presently owned by the Canadian Imperial Bank of Commerce, legally described as Plan E, Lots 17 and 18 excepting thereout (a) the easterly 30 feet in perpendicular width throughout of the said Lot 17, and (b) the westerly 10 feet in perpendicular width throughout of the said Lot 18 (Edmonton, R.L.8 Edmonton Settlement), excepting thereout all coal, (hereinafter referred to as the "CIBC site"), generally in the location shown marked in brown on page 7 of Schedule "B" annexed hereto which knock-out panel shall contain, dead-ended, the following services: electrical power, emergency power, ventilation ducts, heating ducts, empty conduit for audio-visual surveillance lines, and sprinkler and alarm system connections, to the satisfaction of the City Engineer and General Manager of Edmonton Transit so that these may be connected into the pedway when it is constructed.
(b) In the event that there is an application for redevelopment of the property known as the CIBC site across Jasper Avenue from the said lands, and insofar as it is legally empowered to do, the City shall use it best efforts to require the developer of such site to assume obligations to construct an underground pedway to join the Pedway. The Company agrees that if agreement is reached between the City and the owner of such property, it will accept such pedway connection.
9.1 If a dispute arises between the parties in respect of Articles 4.2(f), 5.7, 5.11, 5.13 or 5.15, then such dispute shall be settled by Arbitration in the manner hereafter set forth. It is agreed that only such matters listed may be arbitrated under this Agreement.
9.2 (a) The party desiring to refer the dispute to arbitration shall notify the other party in writing of the details and the nature and extent of the dispute.
(b) Within fifteen (15) days of receipt of such notice, the opposite party shall, by written notice, advise the disputing party of all matters referred to in the initial notice except those for which the party admits responsibility and proposes to take remedial action. Such party shall then take such remedial action.
(c) The terms of reference for arbitration shall be those areas of dispute referred to in the initial notice with respect to which the second party has not admitted or proposed to take remedial action.
(d) Immediately following the identification of those terms of reference, the parties in dispute shall meet and attempt to appoint a single arbitrator, and if the parties refuse to meet, or having met, are unable to agree on a single arbitrator, then upon written demand of any party, within 15 days of such date, each party to the arbitration shall appoint one arbitrator in writing and the two (2) arbitrators shall, within five (5) days of their appointment, appoint a third member to Arbitration Committee to be known as the Chairman.
(e) If either party fails to appoint an arbitrator, then the other party may apply to a Justice of the Court of Queen's Bench of Alberta to have such arbitrator appointed.
(f) If the two arbitrators fail to appoint a Chairman, then both parties, or either of them, may apply to a Court of Queen's Bench of Alberta to have the Chairman appointed.
(g) Within fifteen (15) days of the appointment of the single arbitrator or the establishment of such period as may be agreed upon by the parties, the Arbitration Committee shall resolve all matters and disputes in accordance with the terms of reference therefore.
(h) The arbitrators shall have the power to obtain the assistance, advice or opinion of such engineer, surveyor, appraiser, or other expert as they may think fit and shall have the discretion to act upon any assistance, advice or opinion so obtained.
(i) Each of the arbitrators shall provide a separate written decision with full reasons. The decision of the majority of the Arbitration Committee shall be the decision of the Arbitration Committee, providing that if no majority exists, then the decision of the Chairman shall be deemed to be the decision of the Arbitration Committee.
(j) The decision of the Arbitration Committee shall be final and binding upon the parties hereto.
(k) The costs of the Arbitration shall be determined by the Arbitration Committee, provided that any award of costs, notwithstanding the provisions of the Arbitration Act, shall not necessarily be limited to the scale of rates provided therein.
9.3 Notwithstanding that a matter has become the subject of arbitration, the parties shall, where reasonably possible, proceed with all other matters and things under this Agreement as if such matter had been settled and the dispute determined to the intent that no arbitration procedure shall delay the expeditious operation of the terms of this Agreement.
9.4 The time taken for any Arbitration that further delays a party in the performance of any thing or act shall be added to the time of performance thereof unless the Arbitration Committee finds that the delay in performance being arbitrated was not beyond the reasonable control of the party required to perform.
10.1 Any and all amounts owing by one party to the other shall, within thirty (30) days after the date of invoicing of any one party by the other and until the date of payment, bear interest at the rate of one and one-half percent (1 1/2%) per month or eighteen percent (18%) per year.
11.1 Throughout the period this Agreement, the Company shall maintain in full force and effect the following:
A comprehensive General Liability Insurance policy providing coverage of at least two million ($2,000,000) dollars inclusive for bodily injury and/or property damage, including coverage for:
(a) Non City-Owned Automobiles;
(b) Independent Contractors;
(c) Completed Operations;
(d) Contractual Liability including this Agreement;
(e) Excavation, collapse, shoring and pile driving; and
(f) Broad form Property Damage Endorsement.
11.2 Notwithstanding Article 11.1, the insurance limits may be reviewed from time to time by the City Risk Manager and the amount of the insurance altered in accordance with the said review.
11.3 The Company shall provide the City with a copy of the insurance policies defined above, together with proof of payment of premiums, within ten (10) days of the date that the premium payments become due.
12.1 Any notice to be given pursuant to the terms of this agreement shall be sufficiently given,
(a) in the case of notice to the City, if such notice is sent by prepaid registered mail or personally delivered and confirmed by prepaid registered mail addressed to:
Manager, Land Development Coordination
Planning Department
13th Floor, Phipps-McKinnon Building
10020 - 101 A Avenue
Edmonton, Alberta T5G 3G2
and:
Office of the City Solicitor
8th Floor, City Hall
Edmonton, Alberta
T5J 2R7
(b) in the case of notice to the Company, if such notice is sent by prepaid registered mail or personally delivered and confirmed by prepaid registered mail addressed to:
Jack Agrios, Q.C.
Barrister and Solicitor
1400, 10303 Jasper Avenue
Edmonton, Alberta
T5J 3N6
12.2 Notice given as foresaid, if posted in Alberta, shall conclusively be deemed to have been given on the fifth business day following the date on which such notice is mailed. Any notice personally delivered shall be deemed to have been given on the date of personal delivery.
12.3 Either party may, at any time, give notice in writing to the other of any change in address of the party giving such notice and, from and after the giving of such notice, the address therein specified shall be deemed to be the address of the said party for the giving of notice hereunder.
12.4 The word "notice" in this Article 12 shall be deemed to include any requests, statements or other writing in this Agreement provided, required or permitted to be given by the City to the Company or by the Company to the City.
13.1 (a) This Agreement may be assigned in whole or part as collateral to any financing of the Company without consent in writing from the City and otherwise may not be assigned without consent in writing from the City, which consent shall not be unreasonably or arbitrarily withheld.
(b) The Company covenants and agrees that it shall obtain the same covenants as are contained in this agreement from any person to who it may, in any way, convey the said Lands, or any part thereof, so that the said covenants shall be enforceable by the City.
(c) In the event that this Agreement is assigned in the form annexed hereto as Schedule "L", containing an assumption of all liability of the Company by the assignee, the City agrees to release the Company from the obligations contained herein.
13.2 The parties agree to execute all such other assurances and documents reasonably required by the solicitors for either of them to give full force and effect to this agreement.
13.3 (a) The Company agrees that the City may file a caveat against the title of the said lands to protect its interest herein. The City agrees to discharge such caveat when all conditions contained herein have been satisfied upon receiving a written request for such discharge.
(b) The City agrees to postpone such caveat to bonafide arms length construction financing or long term Project financing upon receipt of written request for such postponement, written acknowledgement by the financing institution that without such postponement financing would not be approved and written acknowledgement by such institution that, in the event of foreclosure, and subsequent sale of the said lands or development of the said lands by the institution or its transferee, a covenant shall be granted or obtained, that the said lands shall be developed solely in accordance with this Agreement.
13.4 The Company agrees that it will execute any encroachment agreement required by the City due to the Company's encroachment, upon, over or under municipal highways by way of canopies, overhangs, tie-backs, back-sloping or any other encroachments.
13.5 The City agrees that it shall discharge any presently existing encroachment agreements and abandoned utility easements which affect any portion of the said lands, subject to the Company carrying out the restoration of any surface improvements abutting any part of the said lands, to the satisfaction of the City Engineer.
13.6 Within six (6) months of completion of the Project, the Company shall submit to the City:
(a) as-built drawings of the Project constructed in accordance with the provisions hereof; and
(b) a surveyor's certificate identifying the area of encroachment of such facilities upon City-owned lands.
13.7 This Agreement is not intended to nullify, replace, circumvent, extend or modify any existing statutes, bylaws, permit conditions or general requirements which govern development or construction within the City.
13.8 Whenever the singular or neuter or masculine is used in this Agreement, it shall be construed as meaning the plural, and feminine or body corporate, where the context so requires.
13.9 This Agreement shall enure to the benefit of, and be binding upon the parties hereto, their successors and assigns.
13.10 In addition to the indemnity granted by the Company to the City with respect to the Pedway in Article 8.4 the Company shall pay, indemnify and save harmless the City from and against any and all claims, demands, actions, suits, damages and expenses of every nature and kind, including costs that may arise directly or incidentally out of the exercise by the Company of the rights, obligations and privileges granted by this Agreement, which the City may suffer or become liable for as a result of the exercise by the Company of its said rights, obligations and privileges.
13.11 (a) It is hereby acknowledged that the unused density of the said lands upon completion of the Project only is 16,179 square metres of commercial floor area, and 27,846 square metres of residential floor area. In the event that any future Council adopts a transfer of development rights policy, such policy may, at the discretion of such Council apply to the said unused density.
(b) In the event that a transfer of development rights policy is adopted by a future Council and in the further event that the Company transfers its unused density, or any portion thereof as described in subsection (a), above, the Company shall pay, from the proceeds it receives, to the City, an amount of money equal to the consideration received by the Company for the transfer, up to the amount of the redevelopment levy paid or agreed to be paid upon application for a development permit for the Project by the Company, provided that Council has passed a bylaw designating that portion of the Macdonald Hotel constructed in 1915 as a municipal historic resource pursuant to the Alberta Historic Resources Act and grants as compensation, inter alia an amount equal to the redevelopment levy payable on the Project.
13.12 In the event that Council passes a bylaw designating that portion of the Macdonald Hotel constructed in 1915 as a municipal historic resource pursuant to the Alberta Historic Resource Act, and grants, as compensation for so doing, inter alia, tax relief, in the form of a rebate of a portion of the property taxes otherwise collected during the first five years of operation of the hotel portion of the Project, as envisaged in the preamble hereof, the Company nevertheless agrees to pay to the City such amount of money the City would otherwise have received in taxes from the said lands, by 1990, had the Project not been constructed, such payment to be made by December 31, 1990.
13.13 It is understood and agreed that nothing herein shall be construed so as to require City Council to pass any bylaw related to any matter dealt with or arising from this Agreement.
13.14 Nu-West and Canadian National shall be jointly and severally liable for the obligations of the Company in this Agreement.
13.15 In the event that one or more Articles of this Agreement are declared invalid or unenforceable by a Court of competent jurisdiction, the parties agree that such Article or Articles shall be severable from the remainder of the Agreement, and that the other provisions thereof shall continue in full force and effect.
13.16 This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Alberta.
13.17 Pursuant to the Edmonton Land Use Bylaw this Agreement shall be in force for one year from the date all conditions precedent of this Agreement have been met, unless a development permit has been issued within that time for the Project as herein described, in which case the Agreement expires at the same date as the development permit, but nothing herein is intended to preclude the Company from seeking an extension thereto from Municipal Council.
13.18 Neither of the parties hereto shall be deemed to be in default in respect of non-performance of any obligations under this Agreement if and so long as the non-performance is due to strikes, walkouts, fires, tempests or other Acts of God or of the Queen's enemy or any other cause (whether similar or dissimilar to those enumerated) beyond the parties' control, but lack of finances or failure to apply for a development permit shall in no event be deemed to be a cause beyond the control of any of the parties hereto. The length of time the parties shall have to rectify or perform the obligation in default shall be at the discretion of Council.
13.19 A waiver by any party hereto of the strict performance of any of the other parties hereto of any covenant, condition or provision of this Agreement, shall not of itself constitute a waiver of any such subsequent covenant, condition or provision or any other covenant, condition or provision of this Agreement by such party, nor shall such waiver entitle any party to this Agreement to a similar waiver of such covenant, condition or provision or any other covenant, condition or provision of this Agreement.
13.20 It is hereby acknowledged and agreed that the Company will be granted a leasehold interest in the said lands from Canadian National, and that upon the termination of such lease by the effluxion of time or sooner termination, Canadian National shall thereupon assume and shall be deemed to have assumed all of the rights, liabilities and obligations of the Company herein, whereupon the Company shall, without further documentation, be and be deemed to be released and discharged from all rights, liabilities and obligations herein.
13.21 (a) The City acknowledges receipt of a copy of the patent to part of the CN Lands and of the title issued pursuant to the said patent showing ”r;also reserving thereout the Public Road or Trail one chain in width crossing the said lot.”
(b) The City and Canadian National have treated the CN Lands as though the said Public Road or Trail was not reserved from the said patent and the title issued pursuant thereto and the City hereby acknowledges to Canadian National that it has no interest in the CN Lands with respect to the said Public Road or Trail and if necessary will take such reasonable steps at the expense of Canadian National to perfect the title to the satisfaction of the Registrar of Land Titles.
13.22 Notwithstanding anything herein otherwise expressed or implied, it is understood and agreed that wherever any matter or thing is to be done to the approval of, satisfactory to, acceptable to, or is subject to a similar determination, to or by the City or the Company or their respective officers or employees shall act reasonably.
IN WITNESS WHEREOF the parties have hereunto affixed their corporate seals, attested to by their proper officers in behalf on the day and year first above written.
