September 23, 2019
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THIS HOTEL AGREEMENT made as of the 22nd day of September, 1989,
BETWEEN:
CANADIAN PACIFIC HOTELS CORPORATION,
a body corporate,
(hereinafter referred to as "CPH"),
.
OF THE FIRST PART
and
THE CITY OF EDMONTON, a municipal
Corporation (hereinafter referred
to as "the City"),
OF THE SECOND PART
WHEREAS the Council of the City on May 24, 1983 gave third reading to Bylaw 6953 redistricting to DC1 and DC2 those lands more particularly described in the bylaw relating to the Macdonald Hotel site;
AND WHEREAS in conjunction with the redistricting of the lands aforesaid, Council approved an agreement subsequently executed June 6, 1983 (the "1983 Agreement") amongst Nu-West Group Limited, Canadian National Railway Company (herein called "CN") and the City relating to the development of the said site;
AND WHEREAS Nu-West Group Limited in 1985 withdrew from the project and assigned its interest in the site to CN and the 1983 Agreement was replaced by an agreement between CN and the City dated January 14, 1985 (the "1985 Agreement");
AND WHEREAS the 1985 Agreement provides amongst other things for renovating the original Macdonald Hotel, an addition to the Macdonald Hotel and for the development of 2 office towers;
AND WHEREAS Bylaw 7700 of the City of Edmonton, a copy of which is annexed hereto as Schedule "K" designates the Original Macdonald Hotel (as hereafter defined) as a Municipal Historical Resource and prohibits any development upon the designated site except in accordance with said Bylaw;
AND WHEREAS the original parcel owned by CN was subdivided under Plan 852-2037 and CN in fulfillment of its obligations under the 1985 Agreement transferred Lot 1 within the said plan to the City such lands being subsequently redistricted to AP pursuant to Bylaw 8477.
AND WHEREAS development permits and building permits have been issued by the City for the renovations to the Original Macdonald Hotel, for demolition of the annex to the Macdonald Hotel and for landscaping and parking on an interim basis for the lands designated DC1 and DC2 by City Bylaw 6953;
AND WHEREAS the General Manager of the Planning and Building Department on January 13, 1987 conditionally approved the proposed exterior renovations to designated portions of the Original Macdonald Hotel as conforming to the requirements of Bylaw 7700;
AND WHEREAS CN assigned its interest in the said Lands and in the 1985 Agreement to CPH on the 30th day of March, 1988, with the consent of the City;
AND WHEREAS the development proposed for the said Lands by CPH is substantially in accordance with the 1985 Agreement, but CPH have requested that the existing agreement be replaced by an agreement relating to redevelopment of the Renovated Macdonald Hotel, the Hotel Addition and Office Tower No. 2 and by a second agreement relating to the development of Office Tower No. 1, and the City subject to the terms and conditions herein set forth have agreed thereto;
AND WHEREAS as an inducement to CPH to proceed with completion of the Macdonald Hotel the City Council at its meeting of June 27, 1989 approved that certain inducements be granted to CPH;
NOW THEREFORE this Agreement witnesseth that in consideration of the mutual and other covenants hereinafter set forth, the parties hereto covenant and agree each with the other as follows:
1.1 Prior Agreements Replaced
This Agreement is adopted in substitution for and in replacement of the 1983 Agreement and the 1985 Agreement and the 1983 Agreement and the 1985 Agreement shall have no further force or effect following the execution and delivery hereof and of the agreement of even date herewith relating to development upon adjoining lands of Office Tower No. 1.
1.2 Definitions
For the purpose 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) "Act" means the Historical Resources Act, R.S.A., 1980, c. H-8, as amended;
(b) "City lands" means the lands described on page 1 of Schedule "A" annexed hereto as shown cross hatched on the site plan attached as page 2 of Schedule "A", excluding the Roadway Lands;
(c) "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 each of the Municipal Improvements commences and which contains a statement signed and sealed by a professional engineer acting for CPH stating that such Municipal Improvement has 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 such Municipal Improvement have been complied with;
(d) "Downtown Area Redevelopment Plan Bylaw" means City of Edmonton Bylaw No. 6477, as amended from time to time;
(e) "Edmonton Land Use By-law" means City of Edmonton Bylaw No. 5996, as amended from time to time;
(f) "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 each of the said Municipal Improvements and which contains a statement signed and sealed by a professional engineer acting for CPH stating that each Municipal Improvement has been installed, constructed and maintained throughout its maintenance period as set out in Article 5.11 hereof in accordance with this Agreement and the Servicing Standards Manual and that all other terms of this Agreement related to the construction and installation of such Municipal Improvement have been complied with;
(g) "Heritage Trail" means the public walkway system to be developed pursuant to the Downtown Area Redevelopment Plan Bylaw in a temporary location on a temporary easement granted by CPH generally at the location shown on Schedule "D" and thereafter in a permanent location on the Heritage Trail Easement generally at the location shown on page 9 of Schedule "B";
(h) "Heritage Trail Easement" means the easement referred to in Article 7 hereof, in the form annexed hereto as Schedule "C";
(i) "Hotel Addition" means the development of an addition to the Original Macdonald Hotel and consisting of a 9 storey hotel, related facilities and necessary parking as identified in Schedule "B";
(j) "municipal highways" means those portions of 100th Street (including the Roadway Lands) and Thornton Court adjacent to and abutting the said Lands;
(k) "Municipal Improvements" means the municipal works to be constructed by CPH in conjunction with the development of the Renovated Macdonald Hotel, the Hotel Addition or Office Tower 2 pursuant to this Agreement, and includes, but is not limited to, sidewalks, curbs, gutters, roads and telephone ducts and lines;
(l) "Office Tower No. 1" means that building shown on Schedule "B" annexed hereto, and identified thereon as Office Tower No. 1;
(m) "Office Tower No. 2" means that building shown on Schedule "B" annexed hereto, and identified thereon as Office Tower No. 2;
(n) "Original Macdonald Hotel" means the hotel structure originally constructed in or about 1915;
(o) "Project" means that portion of the development as depicted on Schedule "B" to be constructed on the said Lands together with encroachments beyond the boundary of the said Lands on Block B Plan 3073 A.J. by CPH as shown on the plans in Schedule "B" annexed hereto and consisting of:
(i) the renovation of the Original Macdonald Hotel,
(ii) the Hotel Addition, and
(iii) Officer Tower No. 2,
(p) "Renovated Macdonald Hotel" means the renovated version of the Original Macdonald Hotel to be developed in accordance with Schedule "B-1", including the temporary recreational facilities identified therein but does not include the Hotel Addition;
(q) "Roadway Lands" means the lands designated for roadway purposes on the survey plan filed at the Land Titles Office for the North Alberta Land Registration District as instrument 852-2039 and generally as shown shaded in black on page 6 of Schedule "B";
(r) "said Lands" means Lot 2, Plan 852 2037 containing 0.729 Hectares, more or less (R.L. 8 - Edmonton Settlement) together with Lot 3, Plan 852 2037, excepting thereout all mines and minerals;
(s) "Servicing Standards Manual" means the 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, in effect at the date of approval of plans authorizing construction of the Municipal Improvements.
2.1 Density Transfer
As part of the compensation for the municipal historic resource designation pursuant to the Act, the City, subject to the terms hereof, agrees to transfer the unused density from the said Lands and from the adjoining lands proposed for the development of Office Tower 1. It is hereby acknowledged that such unused density is 16,179 square metres of commercial floor area, and 27,846 square metres of residential floor area which unused density, until used, is vested in the owner of Lot 2, Plan 852 2037. The calculation of unused density is reflected in Schedule "E" hereto. In the event that any future Council adopts a transfer of development rights policy, such policy may apply to the said unused density.
2.2 Tax Abatement
(a) Insofar as it is legally able to do so under s.24(4) of the Act, as compensation for the adoption of Bylaw 7700 the City hereby grants tax relief in the form of a cancellation or rebate of a portion of the municipal property taxes levied by the City for the Renovated Macdonald Hotel and Lot 2, Plan 852-2037 during the five year period commencing on January 1st of the year in which the Renovated Macdonald Hotel is reopened to the public and is operating as a full service hotel, in accordance with Schedule "B-1" ("the five year period"). For the purposes of this Article 2.2 "municipal property taxes" shall mean the tax amount levied by the City based on the City assessment and the mill rate established by 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 referred to in the preceding paragraph, CPH shall pay to the City $35,000.00 in municipal property taxes on the Renovated Macdonald Hotel and said Lot 2. The portion of the 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 Renovated Macdonald Hotel and said Lot 2. 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 said Lot 2 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 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 CPH shall be obligated to pay municipal property taxes due in excess of that amount with respect to the Renovated Macdonald Hotel and said Lot 2.
(c) CPH shall be entitled to tax cancellations or rebates forthwith upon receiving notice of the amount of municipal property taxes due for the Renovated Macdonald Hotel and said Lot 2 and due for each year of the five year period. The City shall forthwith arrange for cancellations or rebates having regard to the intent of this Article and the City shall, pursuant to the power granted in Section 24(4) of the Act, make the cancellation or rebate according to the terms of this Article 2.2. In the year that the aggregate amount of tax relief realized by CPH is $900,000.00, CPH shall be liable to pay to the City that portion of the municipal taxes levied against the Renovated Macdonald Hotel and said Lot 2 which, if forgiven, would result in aggregate tax relief realized by CPH upon the said Lands exceeding $900,000.00.
2.3 Limited Obligation to Pass Bylaws
Excepting only the obligation contained in Article 2.2 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.
2.4 Validity of Agreement
The 1985 Agreement provides that such Agreement shall remain in full force and effect unless a building permit relating to the project was not applied for within 6 months of the adoption of a by-law designating the Macdonald Hotel an historic resource, or the building permit lapsed without commencement of construction, and further provided that if a development and building permit were issued for any phase of the project (as then defined) the 1985 Agreement would remain in full force and effect until terminated in the manner prescribed by the Agreement. A building permit and development permit were applied for in relation to a phase of the project (as defined in the 1985 Agreement) within 6 months of the adoption of Bylaw 7700 and work commenced in accordance with such building permit. It is intended that the adoption of this Agreement in substitution for the 1985 Agreement not result in any variation of the development rights which have accrued under the 1985 Agreement and accordingly, this Agreement shall remain in full force and effect until modified or terminated by further agreement.
3.1 Compliance with Plans
(a) Subject to subparagraph (b) of this Article 3.1, when CPH 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", with the first phase of development to be undertaken in accordance with Schedule "B-1". Notwithstanding anything expressed or implied herein, if Schedule "B" or Schedule "B-1" varies in any way with a specific provision of this Agreement, the parties shall comply with the Agreement and not Schedule "B" or Schedule "B-1".
(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 Manager of the Building Inspection Branch of the Planning and Building 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 CPH 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.
(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.
(d) Refinements to Schedule "B" depicting changes of a physical nature to the Renovated Macdonald Hotel incorporated into Schedule "B-1" are acknowledged to be minor changes. Those changes to Schedule "B" incorporated into Schedule "B-1" illustrating recreational uses at the location of the Hotel Addition and Office Tower No. 2 are permitted on an interim basis only pending development of the Hotel Addition and/or Office Tower No. 2.
3.2 Building Constraints and Requirements
Without limiting the effect of Article 3.1, the Project to be developed shall conform to the following requirements:
(a) CPH 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 "F" are maintained to the satisfaction of the Development Officer.
(b) 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 CPH and its contractors shall comply in all respects with Section 810 and Section 810A of the Edmonton Land Use Bylaw.
(c) CPH 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 prior to the issuance of any sign permits for the Project, or any portion thereof, and all commercial signs to be erected or installed within the Project shall conform to the approved criteria.
(d) CPH agrees to make the health club and pool facility to be located in the Project available for the use of the hotel guests and to those tenants of Office Tower No. 1 and Office Tower No. 2; Provided that CPH may be relieved of this obligation if like facilities or other amenities satisfactory to the Development Officer sufficient to meet the requirements of the Land Use Bylaw are provided in any Office Tower separated from the MacDonald Hotel.
(e) CPH shall provide direct at grade access to the retail areas of Office Tower No. 2, where possible, and shall use glass windows to provide views from the exterior to the interior of the retail areas, all to the approval of the Development Officer.
3.3 Undertaking to Complete Renovations
(a) CPH acknowledges on behalf of itself and its successors in title to the said Lands that the completion of renovations to the Original Macdonald Hotel in a timely manner is in the best interest of all concerned and CPH therefore covenants and agrees to use all reasonable efforts to complete the renovations to the Original Macdonald Hotel on or before June 1, 1991. The City shall give timely consideration to all requests and applications for approvals, including modifications to the Development Permit in accordance herewith, in order to prevent delays in completion of the Project.
(b) CPH acknowledges that pursuant to the terms hereof, or pursuant to the agreement of even date herewith respecting Office Tower No. 1, the City may have incurred expenses in the nature of lost tax revenues, park maintenance expenses and expense associated with modifications to the existing Municipal Improvements required to be paid for by the City in accordance with Article 5.1. In the event that the Macdonald Hotel is not opened for business on or before June 1, 1991, then CPH shall repay to the City the amount of such costs or expenses to such date incurred by the City including, without limitation, all usual administrative and overhead charges associated with construction or maintenance activities of the City; provided that only if CPH abandons the completion of the renovations to the Original Macdonald Hotel prior to such date will penalties be payable on the amount of the taxes which would otherwise be recoverable by the City.
(c) Any dispute as to the amount of any such cost or expense incurred by the City shall be resolved by arbitration as herein provided.
4.1 Site Landscape Plans
Within 6 months of the execution and delivery hereof, CPH 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 on the said Lands as identified on Schedule "B-1", 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 attached hereto as Schedule "F" 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; and
4.2 Landscape Plans for Subsequent Phases
Prior to the issuance of a development permit for the Hotel Addition or Office Tower No. 2, CPH shall comply with provisions of paragraph 4.1 to the extent that changes in the existing or approved landscaping may be required as a result of the development of such phase of the Project.
4.3 (a) Soil Stability Analysis for Hotel Addition and Office Tower No. 2
Prior to the issuance of a development permit for any portion of the Hotel Addition or Office Tower No. 2, CPH shall submit soil stability information 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 to the satisfaction of the Development Officer, to determine what measures are reasonably required to be taken in the construction of such phase of the Project and landscaping to stabilize the lands described in this Article 4.3(a) at the sole cost and expense of CPH.
(b) River Valley Landscape Plans
Prior to the issuance of a development permit for any portion of the Hotel Addition or Office Tower No. 2, CPH shall submit to the Development Officer for his approval, in consultation with the General Manager of the City Parks and Recreational Department, the General Manager Planning and Development Department and the City Engineer, detailed landscaping plans, specifications and design plans ("River Valley Landscaping Plans") prepared by a professional landscape architect for the portion of the River Valley lying to the south of the said Lands to the extent required for the purposes of bank stabilization. The River Valley Landscaping Plans shall show the restoration of the land and vegetation cover thereon as nearly as possible to the condition it was in prior to construction of the Project, and 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:
(i) existing and proposed grading of the said area;
(ii) the size, species and location of all new and existing plantings, which shall have sufficient soil cover to sustain their natural growth;
(iii) all access areas;
(iv) all steps and grade irregularities;
(v) fencing and other safety barriers;
(vi) the permanent location of the Heritage Trail, if approved by the City.
4.4 Completion of Landscaping
(a) CPH shall, within 120 days of the substantial completion of the Renovated Macdonald Hotel, complete the landscaping in accordance with the plans described in Article 4.1.
(b) CPH shall, within 120 days of substantial completion of any additional phase of the Project, complete the landscaping in accordance with the plans described in Article 4.2 and Article 4.3.
(c) CPH shall for the life of the Project or any portion thereof, provide and maintain all of the landscaping upon or immediately adjacent to the said Lands in accordance with the plans, all at no cost to the City.
(d) To secure compliance with the said detailed landscaping plans and specifications, within the time limited herein for approval of such plans, CPH shall provide a letter of credit to the City, in a form and content satisfactory to the Office of the City Solicitor, in the amount of 100% of the estimated cost of completing the landscaping in accordance with such plans, and CPH shall thereafter maintain such security in force and effect for a period of 2 years following completion of the landscaping, provided that the security shall be reduced for the maintenance period to 50% of the actual cost of having installed the landscaping and no security shall be required after the maintenance period. For the purposes of this Article 4.4, the estimated cost of landscaping shall mean all costs associated with the provision and installation of all landscaping materials in accordance with such detailed plans and specifications approved pursuant to Articles 4.1, 4.2 and 4.3 based upon an estimate prepared by an independent professional agency skilled and experienced in the provision of landscaping services, which estimate shall be supplied to the Development Officer upon approval of the landscaping plans.
4.5 Default in Landscaping by CPH
In the event that CPH, in the opinion of the City, has not completed the landscaping improvements in accordance with the landscaping plans described in Articles 4.1, 4.2 and 4.3 within the time limited under Article 4.4, then the City shall give CPH written notice to remedy such default within 60 days of the date of the delivery of the notice ("the notice period"). In the event CPH does not commence work to remedy such default within the notice period then the City may realize upon the security to complete all or any portion of the landscaping, including the Heritage Trail construction, or restoring, repairing or maintaining same.
5.1 Modifications to Municipal Highways
(a) Prior to the opening of the Renovated Macdonald Hotel scheduled to occur prior to June 1, 1991, CPH shall cause to be completed surface improvements as shown on Schedule "H" namely:
(i) replacement of the existing curb, gutter and sidewalk along those areas adjacent to the west boundary of the said lands upon 100 Street, such sidewalk to be completed with interlocking paving stones;
(ii) installation of new curb, gutter and sidewalk north of the Renovated Macdonald Hotel upon or adjacent to the said Lands, north to Jasper Avenue such sidewalks to be completed with interlocking paving stones;
(iii) removal and replacement of existing or construction of new asphalt surface for the onsite Hotel access road;
(iv) installation of all new light standards and luminaries along 100 Street serviced by underground power;
(v) completion of curb crossings to provide for suitable access from Jasper Avenue and from 100 Street to the onsite Hotel access road.
(b) Notwithstanding anything expressed or implied hereinbefore, upon payment by CPH to the City of the sum of $10,000.00, the City undertakes to install light standards, luminaries and wiring to light standards along 100 Street in conduit and pole bases installed by CPH.
(c) All work shall be completed to the standard prescribed in the Servicing Standards Manual, if applicable, provided that nothing herein shall prevent CPH at its sole cost and expense from undertaking to complete the work to a greater standard than that herein prescribed.
(d) CPH shall cause the aforesaid surface improvements to be completed on or before June 1st, 1991. Provided such improvements are then completed, the City shall reimburse to CPH the sum of $175,000.00. Subject to the approval of the City Engineer, progress claims for the surface improvements not exceeding $175,000.00 and certified for payment by CPH's architect shall be reimbursed by the City to CPH within 30 days of receipt of the progress claim by the City.
5.2 Inspection of Existing Improvements
Prior to commencing any construction or excavation upon the said Lands for each phase of the Project, CPH 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 visual inspection shall be deemed to be in good condition. CPH shall make written request for this inspection at least 10 days before any excavation or construction commences on the Project.
5.3 Roadway Modifications
(a) Unless otherwise agreed to in Article 5.1 herein, CPH, at its sole cost and expense shall complete or cause to be completed:
(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 curbs 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 such phase of the Project, whether incurred by the City or by CPH.
(b) CPH shall provide and pay for, at such times as required by the City Engineer the establishment or re-establishment of grades at all access points between the municipal highways and any phase of the Project other than as referred to in Article 5.1, necessitated by such phase of the Project, to conform to the requirements of the City Engineer.
(c) Without restricting the generality of the foregoing, the costs to be paid under this Article 5.3 by CPH 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) For any roadway modifications required pursuant to this Article 5.3, prior to commencing such works, CPH shall provide security (the "security") in the form of an irrevocable letter of credit or other security satisfactory to the Office of the City Solicitor, for a period of not less than two years, in the amount of $50,000.00. When a Construction Completion Certificate for the Municipal Improvements required to be restored for such phase of the Project has been issued, the security for such phase shall be reduced to $25,000.00, which shall be in effect until all Final Acceptance Certificates have been issued for the said work. In the event that a Final Acceptance Certificate has not been issued when the security is to expire, the security shall be renewed by CPH at least two weeks prior to its expiry to the satisfaction of the Office of the City Solicitor, acting reasonably, so that it is continually in effect until the Final Acceptance Certificates have been issued.
(ii) In the event CPH defaults on the obligations undertaken to be observed by it with respect to the requirements of this Article 5.3, including the obligation to renew this security, the security 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.
5.4 Grades and Specifications
CPH and the Transportation Department of the City shall co-ordinate grades and specifications for any modification or improvement to be carried out upon the municipal highways and each of the City or CPH shall construct, at its sole expense, any such modifications or improvements to those grades and specifications in conjunction with works to be completed by such party.
5.5 Hoarding & Traffic Control
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, and CPH shall pay all hoarding fees associated with development of Project, other than roadway modifications to be completed by the City.
5.6 Roadway Modification
Except as otherwise provided herein, in the event any change, temporary or permanent, is required by CPH to the municipal highways other than in relation to the Renovated Macdonald Hotel, CPH 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, men, equipment or other devices or advertising costs, shall be borne by CPH.
5.7 Excavation Support System
Prior to the issuance of any building permit for the Hotel Addition or Office Tower No. 2, CPH shall provide a detailed plan and geotechnical assessment showing the proposed support systems for the excavation and construction of such development, to the satisfaction of the Development Officer and the City Engineer. The plan shall also identify any proposed encroachments upon any lands owned by the City. When the proposed support system has been approved by the City, CPH shall execute whatever documentation is reasonably required by the City to settle the terms of the construction of the support system upon any lands owned by the City and which is consistent with prevailing City practices.
5.8 Backfill on Municipal Highways
Wherever any backfilling is carried out by CPH upon City-owned lands or the municipal highways, CPH 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 25 feet apart along the perimeter of the building and taken at every five feet of lift. The results of such density tests shall be submitted to the City Engineer within seven days of the testing having been carried out.
5.9 Non Standard Materials
If CPH desires to use any construction materials other than those used or required to be used for sidewalk, curb, gutter and roadway construction by the City, then CPH 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 Construction Completion Certificate
Upon completion of the construction of any of the Municipal Improvements constructed by CPH, CPH shall apply for a construction completion certificate and the City shall provide CPH with a Construction Completion Certificate when all deficiencies in such construction of the Municipal Improvements have been rectified to the satisfaction of the City Engineer.
5.11 Final Acceptance Certificate
Following receipt of the Construction Completion Certificate CPH shall maintain the Municipal Improvements constructed by CPH for 2 years in accordance with the standards prescribed in the City Servicing Standards Manual, reasonable wear and tear excepted, and shall thereafter apply for a Final Acceptance Certificate. The City shall provide CPH with a Final Acceptance Certificate when all deficiencies in the construction and maintenance of the Municipal Improvements have been rectified to the satisfaction of the City Engineer.
5.12 As-Built Drawings of Roadway Improvements
CPH shall, not later than six months prior to the expiration of the maintenance period for the sidewalks, curbs, gutters and roadways or other Municipal Improvements constructed by it, provide to the City Engineer as-built drawings of the sidewalks, curbs, gutters and roadways, or other Municipal Improvements and in the event that CPH fails to provide as-built drawings as herein required, the Final Acceptance Certificates shall not be issued until six 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 City Responsibility for Improvements
From and after the date of issuance of the Final Acceptance Certificate(s), the City shall assume full responsibility for maintenance and repair of the sidewalks, curbs, gutters and roadways or other Municipal Improvements constructed by CPH.
5.14 Vehicular Access to Lands
All vehicular access to the said Lands shall be from the access points, as shown on Schedule "B" annexed hereto. All vehicular access to the said Lands shall be subject to the approval of the City Engineer. CPH on behalf of itself and its successors on title to the said Lands acknowledges that:
(a) access to the said Lands for on-site parking and loading is available only from the Thornton Court;
(b) vehicular access at grade from Jasper Avenue must cross the adjoining lands proposed for development of Office Tower 1; and
(c) it is the responsibility of CPH to ensure that it has acquired all necessary rights to continuously maintain access between the said Lands and Thornton Court and Jasper Avenue as aforesaid.
Prior to re-opening of the Renovated Macdonald Hotel following the renovations, CPH shall provide evidence satisfactory to the Office of the City Solicitor that an easement has been granted across the adjacent lands for continuous vehicular access from Thornton Court to the loading bays of the Renovated Macdonald Hotel, and across the adjacent lands to provide at grade vehicular and pedestrian access from Jasper Avenue at the location of Macdonald Mews in accordance with Schedule "B".
5.15 Inspection of Improvements during Construction
Prior to undertaking any reconstruction of the sidewalks, curbs and gutters, or road and lane paving, on public roadways, CPH shall make arrangements for inspections by requesting such inspections at the offices of the City Engineer at least 48 hours before commencing the said construction.
5.16 Clean-up of Roadways
During and immediately after completion (as determined in the sole discretion of the City Engineer) of any construction operation contemplated by this Agreement by CPH, CPH shall be responsible for the cleaning up of any construction debris, mud, soil or garbage which may be tracked onto the municipal highways, or any other land owned by the City, by CPH, its servants, agents, employees or independent contractors. If CPH as herein required fails to clean up mud, dust or other construction debris on the municipal highways in a manner satisfactory to the City Engineer, or within a reasonable length of time, the City shall clean the municipal highways and invoice CPH for the clean-up, and CPH shall pay the City within 30 days of receiving the invoice.
5.17 Use of Cranes on Highway
A minimum of 48 hours prior to using any mobile cranes on the municipal highways during construction of the Project or for any other operation, CPH 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. Prior to requesting approval of the use of any mobile cranes on the municipal highways, CPH 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.
5.18 Construction Schedule on Roadways
CPH shall submit to the City Engineer, at least 30 days prior to commencement of construction of any phase of the Project other than the Renovated Macdonald Hotel, a detailed construction schedule and staging plan for all work to be performed on, under, or over City-owned property and the said Lands.
5.19 On Site Circulation
(a) The on-site vehicular circulation, including, but not limited to, accesses to the Project and parking facilities therein, loading areas and on-site roadways, shall be designed and built 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 "G", provided that the detailed design of the vehicular circulation shall be approved by the City Engineer for each phase of the Project prior to the issuance of the development permit for such phase of the Project.
(b) CPH shall provide 150 parking spaces for the Renovated Macdonald Hotel and Hotel Addition within Macdonald Place Apartments. The parking requirements for Office Tower No. 2 shall be independently assessed in conjunction with the development permit application for Office Tower No. 2. The parking spaces for the Renovated Macdonald Hotel and the Hotel Addition shall be provided in Macdonald Place with access from Thornton Court or on site at the time of substantial completion of the parking facility to the Hotel Addition or Office Tower No. 2, or at such other location as the Development Officer shall approve.
(c) Parking garages and facilities within the Hotel Addition or the Office Tower No. 2 shall be constructed so that ticket dispensers are located a minimum distance of 30.5 metres along the parking entrance ramps.
5.20 Transit Operations Uninterrupted
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 the Transportation Department. 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 the Transportation Department, and performed at no cost to the City.
5.21 Pedway Access
If a pedway connection from Office Tower 1 or other immediately adjacent buildings to the Renovated Macdonald Hotel through to the pedway system proposed for Jasper Avenue is determined to be advantageous, the City subject to approval of the Development Officer, in accordance with the City's Pedway Policies, agrees to permit such connection to be made.
5.22 Landscaped Amenity Area
From and after substantial completion of the Project, CPH shall grant to the City, its servants, agents, employees and the public at large the non-exclusive right, together with all others, to access to that area of the said lands shown shaded on page 3 of Schedule "B" hereto, the landscaping for which is substantially completed (the "Landscaped Area"), for passive recreational purposes 24 hours a day, every day, for the life of the Project. CPH shall not bar access to any part of the Landscaped Area unless such is required for reasons of safety, security, or for effecting repairs to the Landscaped Area or surrounding structures, or if such persons are not using the Landscaped Area for the intended purposes. Nothing herein shall preclude the use of the Landscaped Area by CPH for outdoor cafes or like uses.
5.23 Utility Easements
CPH, at its sole expense, shall provide any easement or right-of-way through or upon the said Lands which may be required to ensure continuous services to the Project or to Office Tower No. 1.
6.1 Roadway Lands
As soon as practicable following the execution and delivery hereof, the City shall register at the Land Titles Office for the North Alberta Land Registration District such documents as may be necessary to vest the Roadway Lands in the City. As consideration for the transfer of the Roadway Lands to the City and the prior transfer of Lot 1 Plan 852-2037, the City shall transfer to CPH the City Lands. The Roadway Lands shall be transferred subject only to the conditions and reservations expressed in the original grant thereof from the Crown and in the existing certificate of title and such easements or other interests as may appear in the Existing Certificates of Title including encroachment privileges expressed herein.
6.2 Building Encroachment Agreements
To the extent that the Project extends beyond the boundary of the said Lands into the Roadway Lands, the City shall enter into an encroachment agreement between CPH and the City in the form attached hereto as Schedule "J" permitting the encroachment of the Project into the Roadway lands ("the encroachment area"). To the extent the Project encroaches beyond the said Lands other than onto the Roadway Lands, the City and CPH shall enter into such agreement as the City shall require.
6.3 Excavation Encroachment
CPH agrees that it will execute any encroachment agreement reasonably required by the City due to CPH's encroachment, upon, over or under municipal highways by way of tie-backs, back-sloping or any other encroachments of like nature arising during the course of construction of the Project.
6.4 Discharge of Existing Encroachment Agreements
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 CPH carrying out the restoration of any surface improvements abutting any part of the said Lands, to the satisfaction of the City Engineer.
6.5 Survey of Encroachments
Within six months of completion of such phase of the Project, CPH shall submit to the City a surveyor's certificate identifying the nature and area of any encroachment upon City-owned lands.
7.1 Temporary Heritage Trail
The Heritage Trail at its temporary location shown on Schedule "D" hereto shall be constructed by CPH to the Heritage Trail Standards at their sole cost and expense as part of the Landscaping Plans to be approved by the Development Officer of the City for the Renovated Macdonald Hotel, and shall be completed concurrently with the site landscaping for the Renovated Macdonald Hotel. To the extent deemed necessary by the Development Officer, CPH shall also provide soil stability analysis and portions of the River Valley Landscaping Plans in connection with the temporary Heritage Trail, and the River Valley Landscaping shall be completed by CPH in accordance with such plans.
7.2 Permanent Heritage Trail
The Heritage Trail at its permanent location shall be constructed by CPH to the Heritage Trail Standards at its sole cost and expense generally at the location shown on page 9 of Schedule "B" hereto in accordance with plans to be approved by the Development Officer and as close as possible to the top of the Bank as determined by the Development Officer, projected to be not more than 15 feet below the top of the Bank. The Heritage Trail at its permanent location shall be completed concurrently with the site landscaping for the Hotel Addition or Office Tower No. 2. Notwithstanding anything otherwise herein provided, within 120 days of receipt of notice from the City that the City intends to commence construction of that portion of the Heritage Trail between the Convention Centre and Lot 3, Plan 852-2037 the City and CPH shall coordinate their designs and geotechnical information such that within 180 days of the City commencing construction CPH shall commence and thereafter continuously and diligently carry through to completion their construction.
7.3 Heritage Trail Easement
CPH shall grant to the City a temporary easement for the interim location of the Heritage Trail in the form of the Heritage Trail Easement. The temporary easement shall be discharged upon registration at the Land Titles Office for the North Alberta Land Registration District of the permanent easement or if no permanent easement is required, upon completion of the Heritage Trail at its location. The specific location of the Heritage Trail Easement shall be determined by survey plan prepared at the expense of CPH and acceptable to the City Engineer.
7.4 Landscape Provisions Apply
The provisions of this Agreement respecting construction and maintenance of the landscaping and security for the completion of landscaping shall apply mutatis mutandis to the landscaping completed in conjunction with Heritage Trail at either its temporary or permanent location.
8.1 Disputes Referred to Arbitration
If a dispute arises between the parties in respect of Articles 3.3(b), 5.10, and 5.11, 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.
8.2 Arbitration Procedure
(a) The party (the "Applicant") desiring to refer the dispute to arbitration shall notify the other party (the "Respondent") in writing of the details and the nature and extent of the dispute.
(b) Within 15 days of receipt of such notice, the Respondent shall, by written notice, advise the Applicant of all matters referred to in the initial notice except those for which the Respondent admits responsibility and proposes to take remedial action. The Respondent 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 Respondent has not admitted or proposed to take remedial action.
(d) Immediately following the identification of the 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 arbitrators shall, within five days of their appointment, appoint a third member to the 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 or them, may apply to a Court of Queen's Bench of Alberta to have the Chairman appointed.
(g) Within 15 days of the appointment of the single arbitrator or the establishment of the Arbitration Committee, or such longer period as may be agreed upon by the parties, the single arbitrator or Arbitration Committee shall resolve all matters and disputes in accordance with the terms of reference therefore.
(h) The arbitrator(s) 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 single arbitrator or the Arbitration Committee shall be final and binding upon the parties hereto.
(k) The costs of the arbitration shall be determined by the single arbitrator or 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.
8.3 Disputes not to Delay Project
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.
8.4 Time Periods Extended
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 single arbitrator or Arbitration Committee finds that the delay in performance being arbitrated was not beyond the reasonable control of the party required to perform.
9.1 Interest on Overdue Payments
Any and all amounts owing by one party to the other shall, 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 1 1/2% per month or 18% per year.
10.1 General Liability Insurance
Pending completion of construction activities upon the Municipal Highways required of CPH, CPH shall, unless waived by the Director of Risk Management of the City, maintain in full force and effect the following:
A comprehensive General Liability Insurance policy providing coverage of at least $2,000,000.00 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.
10.2 Limits Subject to Review
Notwithstanding Article 10.1, the insurance limits may be reviewed from time to time by the Director of Risk Management of the City and the amount of the insurance altered in accordance with the said review.
10.3 Evidence of Insurance
CPH shall provide the Director of Risk Management of the City with a Certificate of Insurance for the coverages described above upon execution of this Agreement, and proof of renewals of such policies as renewed from time to time. A certified copy of the aforesaid insurance policies shall be provided upon request to the General Manager of Finance of the City.
11.1 Address for Notices
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:
General Manager,
Planning and Development Department
2nd Floor, Boardwalk
10310 - 102 Avenue
Edmonton, Alberta
T5J 2X6
and
The Office of the City Solicitor
9th Floor, Chancery Hall
1 Sir Winston Churchill Square
Edmonton, Alberta
(b) in the case of notice to CPH, if such notice is sent by prepaid registered mail or personally delivered and confirmed by prepaid registered mail addressed to:
Canadian Pacific Hotels Corporation
Vice President Development
Suite 1400, One University Avenue
Toronto, Ontario
M5J 2P1
Attention: L. Beare
With copies to:
Canadian Pacific Hotels Corporation
Suite 1400, One University Avenue
Toronto, Ontario
M5J 2P1
Attention: C. Sauve
And to:
Canadian Pacific Hotels Corporation
Vice President Construction
Suite 1400, One University Avenue
Toronto, Ontario
M5J 2P1
Attention: R. Tanaka
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. Notices during any actual or threatened postal disruption shall be personally delivered.
11.3 Change of Address
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.
11.4 Notice Defined
The word "notice" in this Article 11 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 CPH or by CPH to the City.
12.1 Assignment of Agreement
(a) This Agreement may be assigned in whole as collateral to any financing of CPH 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) CPH covenants and agrees that it shall obtain the same covenants as are contained in this Agreement from any person to whom 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 "I", containing an assumption of all liability of CPH by the assignee, the City agrees to release CPH from the obligations contained herein from and after the date of execution of the assignment.
12.2 Further Assurances
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.
12.3 City Caveat
(a) CPH 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 are satisfied and upon receiving a written request for such discharge and shall discharge caveats filed against the said Lands pursuant to any agreement preceding this Agreement upon the execution and delivery hereof.
(b) The City agrees to postpone such caveat to bona fide construction financing or long term Project financing upon receipt of written request for such postponement, written acknowledgment by the financing institution that without such postponement financing would not be approved and written acknowledgment 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.
12.4 Existing Laws not Superseded by Agreement
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.
12.5 Interpretation
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.
12.6 Enurement
This Agreement shall enure to the benefit of and be binding upon the parties hereto, their successors and assigns.
12.7 CPH Indemnity of City
CPH 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 CPH 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 CPH of its said rights, obligations and privileges excepting any such claim, demand, action, suit or damage arising from the willful misconduct or negligence of the City, its officers, servants, agents or employees.
12.8 Severability
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.
12.9 Laws of Alberta Govern
This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta.
12.10 Force Majeure
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.
12.11 Waiver
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.
12.12 City and CPH to Act Reasonably
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 CPH, or their respective officers or employees, the City or CPH or their respective officers or employees shall act in a reasonable and timely manner.
12.13 Schedules
The following schedules are annexed hereto and form part hereof:
City Lands |
|
Project Plans |
|
Renovated Macdonald Hotel Plans |
|
Heritage Trail Easement |
|
Temporary Heritage Trail Location |
|
Unused Density Calculation |
|
Morrison, Hershfield, Theakston & Rowan Limited Wind Study |
|
100 Street Access |
|
Surface Improvements |
|
Assignment |
|
Encroachment Agreement |
|
Bylaw 7700 as amended |
IN WITNESS WHEREOF the parties have hereto affixed their corporate seals, attested to by their proper officers in that behalf, on the day and year first above written.
