September 23, 2019
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THIS AGREEMENT made as of this 14 day of November, A.D. 1985
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY,
a corporation established pursuant to
the Canadian National Railways Act
(hereinafter referred to as "CN")
OF THE FIRST PART
- and -
THE CITY OF EDMONTON, a municipal
corporation (hereinafter referred
to as "the City")
OF THE SECOND PART
WHEREAS CN intends to demolish portions of the Macdonald Hotel Addition presently occupying the site, to retain the Original Macdonald Hotel and construct the Project (as hereinafter defined); and
WHEREAS CN made application to redistrict portions of the said lands from CMX*(Area 1) (Commercial Mixed Use District) to DC2 (Comprehensively Planned Development District) and DC1 (Direct Development Control District); and
WHEREAS the Edmonton Municipal Planning Commission at its meeting of 1982 05 27 supported the application to so redistrict the said lands on conditions; and
WHEREAS the Council of the City, on 1982 11 09 gave second reading to Bylaw No. 6953, to redistrict the said lands to DC1 and DC2 ("the Bylaw"), and required that, prior to third reading of the Bylaw that the CN enter into an Agreement with the City; and
WHEREAS the Council of the City on 1983 05 24 gave third reading to the Bylaw and a form of agreement dated June 6, 1983 was entered into with Nu-West Group Limited, CN and the City; and
WHEREAS it has become appropriate to revise and replace the June 6, 1983 Agreement with the within Agreement; and
WHEREAS it is the intention of the City, with the co-operation and consent of CN, to designate the Original Macdonald Hotel on the Designated Site as a municipal historic resource pursuant to the Alberta Historical Resources Act for compensation agreed to by the City and CN in the within Agreement; and
WHEREAS it is the intention of the parties that the said designating Bylaw shall be considered by City Council concurrently with the approval of this Agreement;
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) "Act" means when used in this Agreement the Historical Resources Act, R.S.A., 1980, c. H-8, as amended;
(c) "City lands" means the lands described in Schedule "A-2" annexed hereto and outlined in green in Schedule "C" hereto;
(d) "CN lands" means the lands described in Schedule "A-1" annexed hereto and outlined in red on Schedule "C" hereto;
(e) "Construction Completion Certificate" means the certificate approved and issued by the City Engineer, pursuant to which the maintenance periods set out in Article 5.11 hereof for the municipal improvements commence and which contains a statement signed and sealed by a professional engineer acting for CN 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;
(f) "Designated Site" means that portion of the CN lands shown outlined in red on Schedule "D" hereto on which the Original Macdonald Hotel is located;
(g) "Downtown Plan Bylaw" means City of Edmonton Bylaw No. 6477, as amended from time to time;
(h) "Edmonton Land Use Bylaw" means City of Edmonton Bylaw No. 5996, as amended from time to time;
(i) "Exchange lands" means that portion of the CN lands, shown outlined in orange on Schedule "C" hereto;
(j) "Existing Macdonald Hotel" means the structure composed of the Original Macdonald Hotel, as herein defined, and the Macdonald Hotel Addition, as herein defined.
(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 CN stating that the municipal improvements or works have been installed, constructed and maintained throughout their maintenance periods as set out in Article 5 hereof in accordance with this Agreement and the Servicing Standards Manual, and that all other terms of this Agreement have been complied with;
(l) "Heritage Trail" means the public walkway system to be developed pursuant to the Downtown Plan Bylaw either in a temporary location on a temporary easement granted by CN or in a permanent location on the Heritage Trail Easement;
(m) "Heritage Trail Easement" means the easement referred to in Article 7 hereof and in the form annexed hereto as Schedule "L";
(n) "Macdonald Hotel Addition" means the obsolete portion of the Existing Macdonald Hotel constructed in or about 1950 and to be demolished as part of the renovation of the Renovated Macdonald Hotel;
(o) "municipal highways" means those portions of Jasper Avenue, 100th Street and Thornton Court, adjacent to and abutting the said lands;
(p) "Municipal improvements" means all municipal works to be constructed by CN 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) "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;
(r) "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;
(s) "Original Macdonald Hotel" means the portion of the Existing Macdonald Hotel constructed in or about 1915;
(t) "Pedway" means the underground pedestrian walkway described in Article 8 hereof, in the location 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 hereof;
(v) "Pedway Entrance Easement" means the easement referred to in Article 7 hereof, in the form annexed hereto as Schedule "J";
(w) "Project" means the development to be constructed on the said lands by CN as shown on the plans in Schedule "B" annexed hereto and consisting of the following phases of construction
(i) the renovation of the Original Macdonald Hotel,
(ii) construction of an addition to complete the Renovated Macdonald Hotel,
(iii) an office tower, twenty-nine (29) storeys in height,
(iv) an office tower, thirty-nine (39) storeys in height, and
(v) related parking facilities and retail uses, all such development to be constructed in a series of independent phases of development as shown in Schedule "N" hereto it being understood that the foregoing description of the phases of development does not indicate or require that construction proceed in the sequence described with the exception of the renovation of the Original Macdonald Hotel which shall in all events be the first phase constructed;
(x) "Renovated Macdonald Hotel" means the renovated version of the Macdonald Hotel constructed in or about 1915 and the proposed addition thereto as shown on the plans in Schedule "B" and to be renovated and constructed in phases, the first phase being the renovation and the second phase being the addition;
(y) "Retail Space" means the area of Retail Space within and fronting onto, the Pedway, as set out in Article 8 hereof;
(z) "said lands" means the City lands and the CN lands but excluding the Exchange lands and as shown outlined in red on the second page of Schedule "C" hereto;
(aa) "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:
(bb) "substantial completion" when used in reference to any phase of the Project has the meaning given in the Builders' Lien Act, R.S.A. 1980, c. B-12, as amended;
(cc) "Utility and Roadway Easement" means the easement referred to in Article 7 hereof and in the form annexed hereto as Schedule "I".
2.1 This Agreement is subject to the condition precedent and shall not come into force and effect until three readings have been given by City Council to a bylaw designating the Original Macdonald Hotel and the Designated Site as a municipal historic resource pursuant to the Act.
2.2 CN recognizes the agreement by the City to transfer unused density contained in this Article as part of the compensation for the municipal historic resource designation referred to in Article 2.1 hereof. It is hereby acknowledged that the unused density of the said lands upon completion of the Project is 16,179 square metres of commercial floor area, and 27,846 square metres of residential floor area. The calculation of unused density is reflected in Schedule "G" hereto. 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.
2.3 (a) In the event that City Council passes a bylaw under the Act designating the Original Macdonald Hotel and the Designated Site as a municipal historic resource then, in that event, the City intends to grant, insofar as it is legally able to do so under Sec. 24(4) of the said Act as part of the compensation for such designation, tax relief in the form of a cancellation or rebate of a portion of the municipal property taxes levied by the City on the Renovated Macdonald Hotel and the Designated Site during the five year period commencing on January 1 of the year in which an occupancy permit for any portion of the residential component of the first phase of the Renovated Macdonald Hotel is issued by the City ("the five year period"). For the purposes of this Article 2.3 "municipal property taxes" shall mean the tax amount levied by the City based on the City assessment and the millrate established by Edmonton City Council but specifically excludes the school taxes levied by the School Boards in Edmonton and the Provincial Department of Education.
(b) It is the intention of the parties to this Agreement that during each year of the five year period CN shall pay to the City $35,000.00 in municipal property taxes on the first phase of the Renovated Macdonald Hotel and the Designated Site. The portion of municipal taxes which shall be cancelled or rebated each year during the five year period shall be the difference between $35,000.00 and the municipal property taxes levied in each year of the five year period on the first phase of the Renovated Macdonald Hotel and the Designated Site. PROVIDED HOWEVER, that in no event shall the City be obligated to cancel or rebate a total amount of municipal property taxes related to the Renovated Macdonald Hotel and the Designated Site in excess of $900,000.00 during the five year period. If the total of municipal property taxes cancelled or rebated during the five year period for the Renovated Macdonald Hotel and the Designated Site exceeds $900,000.00 during the said five year period then the City shall not be obligated to cancel or rebate any sum in excess of that amount but the CN shall be obligated to pay municipal property taxes due in excess of that amount with respect to the first phase of the Renovated Macdonald Hotel and the Designated Site.
(c) CN shall be entitled to apply for such tax cancellations or rebates forthwith upon receiving notice of the amount of municipal property taxes due for the Renovated Macdonald Hotel and the Designated Site and due for each year of the five year period. Upon receipt of such application City Council shall forthwith consider such claim for cancellations or rebates having regard to the intent of this Article and City Council shall, pursuant to the power granted in Sec. 24(4) of the Act, make the cancellation or rebate according to the terms of this Article 2.3.
(d) If at any time during the five year period CN is issued an occupancy permit by the City for the second phase of the Renovated Macdonald Hotel, Office Tower No. 1 or Office Tower No. 2, then in that event on January 1 of the year in which such an occupancy permit is issued all tax relief as described in this Article shall cease and determine and CN shall not be entitled to apply for such cancellation or rebate thereafter. In the event CN has already received a cancellation or rebate for muncipal property taxes in that particular year and related to the Renovated Macdonald Hotel and the Designated Site the liability for municipal property taxes for that year shall revive and shall be paid to the City by CN.
2.4 Excepting only the obligation contained in Article 2.3 hereof, it is understood and agreed that nothing herein shall be construed so as to require City Council to pass any bylaw or resolution related to any matter dealt with or arising from this Agreement.
2.5 The parties acknowledge the existence of a prior development agreement ("the original development agreement") dated June 6, 1983 between the City, CN and Nu-West Group Limited ("Nu-West"). Nu-West has withdrawn from the Project and all right, title and interest of Nu-West in the original development agreement and the Project has been assigned to CN and the City has consented to the assignment. In light of the change of parties, changed economic circumstances and upon further negotiation having occurred the parties have agreed to replace the original development agreement with the within Agreement. The time for issuing the development permit under the original development agreement is extended and shall be governed by the provisions of Article 2.6 hereof.
2.6 This Agreement shall be in force for six (6) months from the date the condition precedent referred to in Article 2.1 herein has been met and unless a building permit application by CN has been submitted for the Project during that six (6) month period this Agreement shall thereupon expire. In the event a building permit has been issued for the first phase of the Project but construction is not commenced within the life of that building permit then upon the expiry of that building permit this Agreement shall also terminate. Nothing herein is intended to preclude CN from seeking an extension of this Agreement from City Council. Further, it is acknowledged that the Project is intended to be constructed in phases and development permits may be issued for separate phases. It is further agreed by the City that, in the event a development permit or a building permit is issued for any phase of the Project, the within Agreement shall remain in full force and effect until terminated as provided herein, or by the further agreement of the parties or by demolition of all buildings to be renovated or constructed as part of the Project.
2.7 It is the intention of the parties that the parking requirement for the Project be assessed prior to the issuance of a development permit for each separate phase of the Project such that each proposed phase and the users thereof shall be adequately served in terms of the provision of parking spaces. Provided, however, nothing in this provision shall detract from the obligation of CN to provide the seven hundred twenty five (725) parking spaces obligated to be provided in Article 5.22(e) of this Agreement.
3.1 (a) When CN 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". Notwithstanding 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" and in accordance with the phasing plan for the Project attached as Schedule "N" to this Agreement.
(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 Chief Building Inspector of the Planning 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 CN and approved by the City's Development Officer;
(iv) minor revisions to the parking layout, provided that the new layout conforms to the Edmonton Land Use Bylaw, and the location, and number of parking stalls and facilities otherwise comply with this Agreement.
(v) that CN may build the Project in accordance with the Plans annexed hereto as Schedule "H", depending on the location of the pool selected by CN.
(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 limiting the effect of Article 3.1, the Project to be developed shall conform to the following requirements:
(a) CN 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, all to the approval of the Development Officer, acting reasonably.
(b) CN shall incorporate built-form and landscape techniques in the design of the Project to ensure that comfortable micro-climatic conditions as 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 of the Project, (as defined in the Edmonton Land Use Bylaw), 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 CN and its contractors shall comply in all respects with Section 810 of the Edmonton Land Use Bylaw.
(d) CN shall establish sign criteria for commercial signs to be used within and on the Project, in accordance with the Edmonton Land Use Bylaw, 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, CN 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 CN 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 proposed retail area in accordance with the plans annexed hereto as Schedule "B", and the City agrees to assist CN in such regard. Notwithstanding the foregoing, CN 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.
4.1 Prior to the issuance of the first building permit for construction of any portion of the Project above grade, CN 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 shall 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 the Downtown Plan Bylaw.
4.2 Prior to the issuance of the first building permit for construction of any portion of the Project above-grade, CN shall submit to the Development Officer 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, all acting reasonably, detailed landscaping plans, specifications and design plans ("River Valley landscaping 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 to the extent required by the General Manager of the Parks and Recreation Department, acting reasonably. The River Valley landscaping plans shall show 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, shall provide details on measures to prevent erosion and ensure soil stability. The River Valley landscaping plans shall also 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 irregularities;
(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" of the 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 CN 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; or
(iii) in the event of the phasing of the Renovated Macdonald Hotel portion of the Project the Heritage Trail may be designed and located in a temporary location to be approved by the General Manager of the Planning Department.
4.3 (a) CN shall, within one hundred and twenty (120) days of the substantial completion of the first phase of the Renovated Macdonald Hotel, complete the landscaping in accordance with the plans described in Articles 4.1 and 4.2 above.
(b) CN shall, for the life of the Project or any portion thereof, provide and maintain all of the landscaping in accordance with the plans described in Articles 4.1 and 4.2 above, all at no cost to the City, and to the satisfaction of the Development Officer in consultation with the General Manager of the City Parks and Recreation Department, acting reasonably.
(c) CN may construct the Heritage Trail in a temporary location acceptable to the General Manager as aforesaid and shall complete same in its temporary location in connection with the first phase of the Renovated Macdonald Hotel so that the Heritage Trail in its temporary location is substantially complete within sixty (60) days after substantial completion of the first phase of the Renovated Macdonald Hotel.
(d) In the event the addition to the Renovated Macdonald Hotel is constructed the Heritage Trail in its permanent location shall be substantially complete within sixty (60) days after the substantial completion of the addition to the Renovated Macdonald Hotel.
4.4 In the event that CN, in the opinion of the City, has not completed the landscaping and Heritage Trail improvements in accordance with the landscaping plans described in Articles 4.1 and 4.2 herein within the time limited under Article 4.3, then the City shall give CN written notice to remedy such default within sixty (60) days of the date of the delivery of the notice ("the notice period"). In the event CN does not commence work to remedy such default within the notice period then the City shall be entitled to complete all or any portion of the landscaping, including the Heritage Trail construction, or restoring or repairing same. All costs incurred by the City in that regard shall be paid to the City by CN promptly on demand.
4.5 Office Tower No. 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 CN at its sole cost and landscaped to the approval of the General Manager of the Parks and Recreation Department.
4.6 CN shall design the landscaping of the park to the west of Office Tower No. 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, CN 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. CN shall make written request for this inspection at least ten (10) days before any excavation or construction begins on each phase of the Project.
5.2 (a) Except as otherwise expressly provided herein, CN 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, land 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 CN.
(b) CN shall provide and pay for, at such times as required by the City Engineer:
(i) the establishment or re-establishment or 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;
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 CN shall include, but shall not be limited to, all out-of-pocket expenses incurred by the City in the redesign 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 CN for each phase of the Project, CN 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 ($50,000.00) Dollars. When the work related to the particular phase of the Project has been completed, the security shall be reduced to Twenty Five Thousand ($25,000.00) 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 CN 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 CN.
(ii) In the event CN 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 CN 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 CN to the municipal highways CN 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 CN.
5.6 Prior to the issuance of any building permit for the second phase of the Renovated Macdonald Hotel, CN shall provide a detailed plan and geotechnical 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, CN 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 CN shall submit soil stability information prior to the issuance of a building permit for the second phase of the Renovated Macdonald Hotel 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 CN upon City-owned lands or the municipal highways, CN 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 buiding 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 CN 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 CN 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 coloured paving materials), then CN 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 CN, upon completion of the sidewalks, curbs, gutters and roadways, shall make application to the City Engineer for the issuance of a Construction Completion Certificate for the said works.
5.11 From and after the date of issuance of the Construction Completion Certificates, CN 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 CN 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 CN 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 CN, 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 CN 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 CN 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 CN 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 the Final Acceptance Certificate(s), 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 Certificate(s) or notify CN 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 Certificate(s) issued therefore.
5.14 From and after the date of issuance of the Final Acceptance Certificate(s), the City shall assume full responsibility for the sidewalks, curbs, gutters and roadways.
5.15 In the event that a Final Acceptance Certificate(s) is not issued upon application therefore, CN 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(s) 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, CN 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, CN 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 CN, its servants, agents, employees or independent contractors. If CN 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 CN for the clean-up, and CN 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, CN 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, CN 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 CN shall submit to the City Engineer, at least thirty (30) days prior to commencement of construction of the Project, any 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) CN 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 "M", 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 any stage of the Project.
(b) CN 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) Prior to issuance of a building permit for Office Tower No. 1 CN shall carry out a parking demand study with respect to the parking requirements for the Renovated Macdonald Hotel and its users. The parking demand study shall be submitted to the City and based on the said parking demand study the General Manager of the Planning Department, acting reasonably, shall determine the number of parking stalls in the above-grade parking structure in Office Tower No. 1 required to be dedicated to meet the demand for parking, if any, by users of the Macdonald Hotel.
(d) CN 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) CN 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 provided by CN from Macdonald Place with access from Thornton Court; and 176 above-grade in Office Tower No. 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 CN obtains off-site parking spaces on a parcel adjacent to the said lands, equivalent in number to the parking spaces in Office Tower No. 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) CN shall, concurrently with the completion of construction of Tower No. 1, at the sole expense of CN, construct, operate and maintain a sheltered transit passenger waiting area with a minimum area of ten (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. CN 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 Original Macdonald Hotel and the Designated Site as a municipal historic resource pursuant to the Act, CN shall make applications for subdivision to create separate parcels for the Exchange lands and the Designated Site at its sole cost and expense. It is understood and agreed that the City shall not require municipal reserve dedication from the lands made subject to the subdivision applications; however, nothing herein shall be construed so as to bind the Edmonton Municipal Planning Commission, being the subdivision approving authority, to adopt this position on the part of the City.
(b) Immediately after all requisite approvals for the said subdivision applications shall have been obtained and all statutory appeal periods relating thereto shall have expired, CN shall have the necessary linen plan of subdivision prepared and signed and the City shall provide all necessary endorsements to permit the subdivision linen to be completed in final form. Upon completion of the linen plan of subdivision in final form CN shall register the plan of subdivision at the Land Titles Office for the North Alberta Land Registration District and shall complete a transfer of the Exchange lands to the City all at the sole cost of CN. CN shall provide title to the Exchange lands to the City free and clear of all liens, charges and encumbrances.
(c) Immediately upon registration of the plan of subdivision and the conveyance of title of the Exchange lands to the City the CN shall forthwith pay all reasonable fees and disbursements incurred by the City to redistrict the Exchange lands to a land use districting requested by the City but the City shall be responsible for applying for and processing such redistricting application.
(d) Immediately upon the registration of the plan of subdivision creating a separate parcel for the Designated Site, the City shall discharge the designating bylaw from the title to that portion of the said lands not included within the Designated Site.
6.2 Upon the passage of the bylaw designating the Original Macdonald Hotel and the Designated Site as a municipal historic resource pursuant to the Act and upon the registration of the plan of subdivision referred to in Article 6.1 hereof,
(a) The City shall grant a licence of the City lands, in a form satisfactory to the City Solicitor, to CN for the sum of $1.00 for a term ending at the earlier of:
(i) fifty (50) years from the date of this First Amending Agreement, or
(ii) CN delivering to the City a written notice of intention of CN to commence construction of the Pedway described in Article 8 hereof and registration of a transfer of the City lands to CN.
(b) The licence shall permit CN to use, improve and maintain the City lands for the purposes of demolishing the Macdonald Hotel Addition and not designated under the historic designation bylaw referred to herein, for construction activities related to the renovation and addition to the Renovated Macdonald Hotel and to install and maintain the landscaping improvements contemplated by this Agreement, all such improvements of a landscaping nature and the maintenance thereof to be at the sole expense of the CN. The licence shall be subject to the Utility and Roadway Easement as defined in this Agreement and shall further be subject to such additional easement as is deemed necessary by the City Solicitor to maintain the rights of the City and the public to gain access to and through the existing pedway entrance on the City lands.
(c) The uses of the City lands described in this Article shall be permitted by the City. The City also approves the interim park use in the portion of the CN lands on which the Macdonald Hotel Addition now stands and which is to be demolished.
(d) Concurrently with the registration of the plan of subdivision referred to in Article 6.1(b) hereof the City shall deliver to the solicitors of CN in Edmonton a registrable transfer of the City lands to be held in trust by said solicitors until the expiration of the term of the licence or delivery to the City of a notice as hereinbefore referred to in the notice of intention of CN to commence construction of the Pedway. Upon the delivery of such notice the solicitors of CN shall be free to register the transfer conveying title of the City lands into the name of CN at and for a consideration of One ($1.00) Dollar. The City at such time shall provide title to the City lands to CN free and clear of all liens, charges or encumbrances and subject only to the Utility and Roadway Easement.
6.3 In the event that CN, prior to commencement of construction of the first phase of the Renovated Macdonald Hotel and in the opinion of the General Manager of the Planning Department, takes any steps to develop the said lands or any portion of the Project other than substantially in accordance with this Agreement, or does not commence construction of any portion of the Project prior to December 31, 1985 then the provisions of this Agreement contained in Article 6.1 and 6.2 respectively shall cease to be in effect, the licence granted for the City lands shall be terminated and in the event the Exchange lands have been conveyed into the title of the City the City shall be obligated to reconvey the Exchange lands to the CN at the sole expense of CN, and in the event the bylaw designating the portion of the Original Macdonald Hotel and the Designated Site has been passed the same may be repealed at the request of CN.
6.4 CN shall, prior to disposing of any or all of its interest under the licence or its fee simple interest in the City lands, obtain a covenant from any party to whom it may so dispose of its interest or part thereof such that the City lands shall be used only for construction of the Project as described in this Development Agreement.
6.5 (a) CN 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 in this subarticle 6.5(a) as the "Landscape Area") twenty four (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 CN for outdoor cafes or like uses.
(b) CN shall maintain, at its sole cost, all landscaping within the Landscape Area for the life of the Project.
6.6 In the event the second phase of the Renovated Macdonald Hotel being the construction of an addition proceeds and extends beyond the boundary of the CN lands into lands owned by the City then in such event the City shall enter into an encroachment agreement between CN and the City in a form satisfactory to the City Solicitor permitting the encroachment of the second phase of the Renovated Macdonald Hotel into the City lands ("the encroachment area"). In the event it becomes necessary to obtain a subdivision approval to create a parcel to permit such encroachment and to define the encroachment area then such subdivision application shall be made by CN and shall be processed at its expense. Further, upon such encroachment agreement being executed the City may, at its sole cost and expense, make application to redistrict the said encroachment area to a land use district which will permit the construction of the second phase of the Renovated Macdonald Hotel in the said encroachment area.
6.7 CN agrees that it will execute any encroachment agreement required by the City due to CN's encroachment, upon, over or under municipal highways by way of canopies, overhangs, tie-backs, back-sloping or any other encroachments.
6.8 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 CN carrying out the restoration of any surface improvements abutting any part of the said lands, to the satisfaction of the City Engineer.
6.9 Within six (6) months of completion of the Project, CN 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.
6.10 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 "also reserving thereout the Public Road or Trail one chain in width crossing the said lot". The City and CN 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 CN 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 CN to perfect the title to the satisfaction of the Registrar of Land Titles.
7.1 In the event that the location of the Heritage Trail, as described in this Agreement, traverses the said lands, CN, 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 the form annexed hereto as Schedule "L" 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 CN and acceptable to the City Engineer. Provided, however, that the Heritage Trail may be placed in a temporary location on the said lands until all phases of the Renovated Macdonald Hotel are completely constructed. CN shall grant to the City a temporary easement for an interim location of the Heritage Trail and such temporary easement shall be in the same form as the Heritage Trail Easement. Once the Renovated Macdonald Hotel portion of the Project is completely constructed CN shall, in such event, provide a final location on the said lands for the Heritage Trail Easement and the final survey as hereinbefore contemplated shall be completed and the Heritage Trail Easement shall be registered in relation to such final surveyed right of way plan.
7.2 (a) Contemporaneously with the registration of the transfer of land described in Article 6.2(d) CN shall grant to the City for a consideration of the sum of One Dollar ($1.00) an easement in the form annexed hereto as Schedule "I", 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 CN and acceptable to the City Engineer.
(b) CN 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 7.2(a) 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. If additional area is required to accommodate the roadways and utilities, the parties shall negotiate with respect to such additional area and failing agreement shall arbitrate the question pursuant to Article 9 hereof.
7.3 (a) CN, 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 the form annexed hereto as Schedule "J", 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 CN, and acceptable to the City Engineer.
(b) CN 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 CN required the relocation of the power line situated within the Easement registered as Instrument No. 6622 R.A.T. at the Land Titles Office for the North Alberta Land Registration District, CN 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 CN 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". The Pedway shall connect the Project to the Trade and Convention Centre through a future underground pedway to be built to the east of the said lands, and to the underground McCauley Plaza pedway to the west of the said lands. The Pedway shall be substantially completed within sixty (60) days of substantial completion of the first office tower to be constructed as part of the Project. 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 documents entitled "Standards for Pedway Development" attached hereto as Schedule "F" ("the standards") and the Pedway shall be constructed in conformity with the said Schedule "F" or in the event of a change to the standards to the then existing standards, if any, adopted by the City. The Pedway shall be constructed 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 CN 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 CN 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 CN 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 CN 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 No. 1 is beyond reasonable repair as determined by an independent expert chosen by both the City and CN, the right and privilege granted to CN 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, CN 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 CN 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 CN upon the Pedway Area, CN 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 CN within the Pedway Area shall be constructed in such a manner to ensure that existing utilities and services are accommodated at CN'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 CN or a party employed by CN to do maintenance work for CN at no cost to the City.
(m) CN 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 CN to provide for the installation of a closed circuit television monitoring system within the Pedway, and the cost thereof shall be borne by CN.
(n) CN 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 CN 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, CN 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, CN 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 ($360.00) Dollars per square foot 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) CN 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 CN shall indemnify and save harmless the City from and against any and all actions, causes or action, proceedings, claims, demands, losses, costs, damages and expenses whatsoever, which may be brought or made againt the City or which the City may sustain, pay or incur as a result of, or in connection with, the exercise by CN of any rights, liberties or privileges hereby or otherwise vested in CN by the City in connection with the use of the Pedway, or by virtue of any operations of CN in and upon the Pedway area.
8.5 CN 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 CN upon the Pedway Area from the date upon which the City notifies CN of said liens.
8.6 (a) In the event the City Solicitor decides in his sole discretion that the CN has defaulted on the Pedway construction obligations of this Agreement, the City shall give the CN written notice to remedy such default within sixty (60) days of the date of the delivery of the notice ("the notice period"). In the event CN does not commence work to remedy such default within the notice period then the City shall be entitled to complete all or any portion of the Pedway, to restore or repair the same, or to remedy any defects in the construction thereof. All costs incurred by the City in that regard shall be paid to the City by CN promptly on demand.
(b) In the event the City constructs or repairs or has constructed or repaired the Pedway, pursuant to Article 8.6(a) hereof, the City agrees that it shall commence proceedings to have removed any liens registered against the said lands or other lands owned by CN related to such Pedway construction within thirty (30) days after being notified of the existence of such liens by CN.
(c) The City shall provide CN with all drawings and specifications relating to the Pedway within fourteen (14) days of the City commencing construction or repair of the Pedway in accordance with Article 8.6(a) hereof.
(d) In the event the City exercises its right under Article 8.6(a) hereof and any portion of the Pedway traverses the said lands or the City requires access to any portion of the said lands CN shall grant access to the said lands without compensation for such purposes.
8.7 (a) CN shall construct the Pedway and the Project so that they can accommodate the Retail Space and will have ready such Retail Space for occupation upon substantial completion of the Pedway.
(b) In the event that a market analysis prepared by CN at its expense indicates, to the satisfaction of the General Manager of the Real Estate and Housing and Planning Department, CN 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 CN's expense every two years during the life of the Project until the Retail Space is constructed.
8.8 (a) CN 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. CN 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, CN 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) CN 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 its best efforts to require the developer of such site to assume obligations to construct an underground pedway to join the Pedway. CN 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, 5.15 or 7.2, 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 fifteen (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 of this Agreement, CN shall maintain in full force and effect the following:
A comprehensive General Liability Insurance policy providing coverage of at least Two Million ($2,000,000.00) 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 CN 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 Bldg.
10020 - 101A Avenue
Edmonton, Alberta
T5J 3G2
and:
The Office of the City Solicitor
8th Floor, City Hall
1 Sir Winston Churchill Square
Edmonton, Alberta T5J 2R7
(b) in the case of notice to CN, if such notice is sent by prepaid registered mail or personally delivered and confirmed by prepaid registered mail addressed to:
Director
Real Estate Development
Canadian National Railway Company Real Estate
Suite 2222
145 King Street West
Toronto, Ontario M5H 1J8
and to:
The Secretary
Canadian National Railway Company
835 rue de la Gauchetiere
West Montreal, Quebec
12.2 Notice given as aforesaid, 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 CN or by CN to the City.
13.1 (a) This Agreement may be assigned in whole or part as collateral to any financing of CN 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) CN 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 "K", containing an assumption of all liability of CN by the assignee, the City agrees to release CN from the obligations contained herein.
13.2 The parties agree to execute all such other assurance and documents reasonably required by the solicitors for either of them to give full force and effect to this Agreement.
13.3 (a) CN 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 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 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.
13.5 Whenever the singular of 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.
13.6 This Agreement shall enure to the benefit of and be binding upon the parties hereto, their successors and assigns.
13.7 In addition to the indemnity granted by CN to the City with respect to the Pedway in Article 8.4 CN 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 CN 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 CN of its said rights, obligations and privileges.
13.8 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.
13.9 This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Alberta.
13.10 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.
13.11 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.
13.12 It is hereby acknowledged and agreed that CN may grant a leasehold interest in the said lands to third parties which shall assume all rights and obligations of CN under this Agreement. Upon the termination of such lease or leases by the effluxion of time or sooner termination, CN shall thereupon assume and shall be deemed to have assumed all of the rights, liabilities and obligations of the lessees to which it may have granted leases whereupon the lessees shall without further documentation be and be deemed to be released and discharged from all rights, liabilities and obligations herein.
13.13 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 CN, or their respective officers of employees, the City or CN 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.