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THIS OFFICE TOWER 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 and adjoining lands;
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 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 Canadian National Railway Company and the 1983 Agreement was replaced by an agreement between Canadian National Railway Company and the City dated January 14, 1985 (the "1985 Agreement");
AND WHEREAS the 1985 Agreement provides amongst other things for development of two office towers and related parking and upgrading of the Macdonald Hotel;
AND WHEREAS Bylaw 7700 of the City of Edmonton designates portions of the Macdonald Hotel as a Municipal Historical Resource and prohibits any development upon the designated site except in accordance with said Bylaw;
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 Canadian National Railway Company assigned its interest in the said Lands and in the 1985 Agreement to CPH on the 30th day of March, 1988, with consent of the City;
AND WHEREAS the original parcel owned by CN was subdivided under Plan 852-2037 and CN in accordance with 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 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 Macdonald Hotel 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;
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 such agreements shall have no further force or effect following the execution and delivery hereof and of the Agreement of even date herewith relating to development of Lots 2 and 3, Plan 852 2037.
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) "Adjoining Lands" means Lots 2 and 3, Plan 852 2037;
(b) "City lands" means the lands described on page 2 of Schedule "A" annexed hereto and shown cross hatched on the site plan attached as page 3 of Schedule "A" hereto 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 4.9 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 Bylaw" means City of Edmonton By-law 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 4.9 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 upon or near the said Lands on a temporary easement granted by CPH or 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 6.1 hereof, in the form annexed hereto as Schedule "F"
(i) "Macdonald Hotel Agreement" means the agreement of even date herewith governing development of the Adjoining Lands;
(j) "Macdonald Hotel" means the hotel constructed upon the Adjoining Lands;
(k) "municipal highways" means those portions of Jasper Avenue, 100th Street (including the Roadway Lands) and Thornton Court, adjacent to and abutting the said Lands;
(l) "Municipal Improvements" means all municipal works to be constructed by CPH pursuant to this Agreement, and includes, but is not limited to, sidewalks, curbs, gutters, roads, and telephone ducts and lines;
(m) "Office Tower No. 1" means that 39 storey office building shown on Schedule "B" annexed hereto, and identified thereon as Office Tower No. 1, to be constructed upon the said Lands;
(n) "Office Tower No. 2" means that 29 storey office building shown on Schedule "B" annexed hereto, and identified thereon as Office Tower No. 2 to be constructed upon the Adjoining Lands pursuant to the Macdonald Hotel Agreement;
(o) "Pedway" means the underground pedestrian walkway described in Article 7 hereof, in the location shown on page 7 of Schedule "B" annexed hereto;
(p) "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 7 hereof;
(q) "Pedway Entrance Easement" means the easement referred to in Article 7 hereof, at the location shown on page 7 of Schedule "B" hereto, in the form annexed hereto as Schedule "E";
(r) "Project" means the development to be constructed by CPH on the said Lands together with encroachments beyond the boundary of the said Lands onto Lot 2, Plan 852 2037 and onto the municipal highways as shown on the plans in Schedule "B" annexed hereto and consisting of Office Tower No. 1 together with the related parking facilities, retail space and related pedway improvements and access;
(s) "Retail Space" means the area of retail space within and fronting onto the Pedway as set out in Article 7 hereof as shown on page 7 of Schedule "B";
(t) "Renovated Macdonald Hotel" means the renovated version of the original Macdonald Hotel upon Lot 2, Plan Edmonton 852 2037 and does not include the addition to the Macdonald Hotel;
(u) "Roadway Lands" means the lands specifically identified as roadway on the survey plan filed as instrument 852 2039 at the Land Titles Office for the North Alberta Land Registration District and generally shown shaded in black on page 6 of Schedule "B";
(v) "said Lands" means the lands described in Schedule "A" hereto including the City Lands;
(w) "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 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 bylaw 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 vested in CPH under the 1985 Agreement and accordingly, this Agreement shall continue in full force and effect until modified or terminated by further agreement.
2.2 Compliance with Plans
(a) Subject to subparagraph (b) of this Article 2.2, when CPH proceeds with the Project, it shall construct the Project upon the said Lands substantially in accordance with the 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 the Agreement and not Schedule "B".
(b) No changes shall be permitted to the Plans described in Article 2.2(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 2.2(b), the Development Officer, acting reasonably, shall be the sole judge of what constitutes a minor revision;
(d) CPH and the City acknowledge that Development Permit 84-065564 and plans submitted therewith are consistent with the requirements of preceding subparagraphs (a) and (b) of this Article
2.2. The landscaping of a portion of the said Lands in accordance with Schedule "C" is approved on an interim basis only, pending development of Office Tower No. 1.
2.3 Building Constraints and Requirements
Without limiting the effect of Article 2.2, the Project to be developed shall conform to the following requirements:
(a) CPH 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;
(b) 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 "I" are maintained to the satisfaction of the Development Officer;
(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 CPH and its contractors shall comply in all respects with Section 810 and Section 810A of the Edmonton Land Use Bylaw;
(d) 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.
2.4 Parking and Loading Requirements
It is the intention of the parties that the parking and loading requirements for the Project be assessed prior to the issuance of a development permit for the Project such that the users thereof shall be adequately served in terms of the provision of parking spaces and loading bays. Provided, however, nothing in this provision shall detract from the obligation of CPH to provide the number of parking spaces specified to be provided in Article 4.18 of this Agreement.
2.5 Amenity Area
It is acknowledged that the amenity area required by the Land Use Bylaw to be provided within the Project is satisfied by the plans annexed as Schedule "B" only if the Project is entitled to receive credit for the health club facilities upon the Adjoining Lands as amenity space.
2.6 Density
CPH acknowledges that the additional density for the said Lands calculated in accordance with Schedule "K" hereto has been transferred by CPH to the owner of Lot 2, Plan 852 2037. The Project shall have a floor area calculated in accordance with the Land Use Bylaw not exceeding 72,434 square metres.
2.7 Macdonald Mews
CPH shall encourage the owners of the adjoining lands incorporating the proposed retail areas on the east side of Macdonald Mews, beyond the boundary of the said Lands, to develop the proposed retail area. CPH shall not be obligated to make any payments or bear any costs or assume any liabilities in respect to development of such area.
3.1 Predevelopment Landscape Plans
(a) It is expected that development of the Project is unlikely to proceed within 5 years of the date hereof. It is desirable that the site of Office Tower No. 1 as identified on page 1 of Schedule C, be landscaped pending commencement of the Project and CPH therefore agrees that forthwith following the execution and delivery of this Agreement, the landscaping of the said Lands in accordance with Schedule "C" hereto will be completed by CPH at its cost and expense.
(b) Upon approval by the City of the landscaping following its completion in accordance with Schedule C, CPH shall transfer to the City and the City will register the transfer for the lands described on page 1 of Schedule A in accordance with Article 5.1.
(c) CPH shall replace any growing materials intended for permanent installation which fail to achieve a normal growth rate within two years of the date upon which such materials were installed by CPH, the failure of which is attributable to causes other than want of maintenance. A like warranty shall apply to any replacement materials.
(d) Subject to subparagraph (c) above, from the date of transfer of the lands aforesaid until CPH acquires title to the said Lands as provided in Article 5.1, the City shall be responsible for all regular maintenance of the landscaped area including the planting of bedding plants in each year in locations designated for such materials, to be planted in each year in a timely manner. The standard of maintenance and care shall be that standard normally applied by the City to its most prestigious and best maintained municipal locations.
3.2 Development Landscape Plans
Prior to the issuance of the first building permit for construction of any portion of the Project above grade, CPH shall submit to the Development Officer, 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, 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 "I" 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) replacement of special street treatment along Jasper Avenue consistent with the City Jasper Avenue Improvement program; and
(m) the location of the existing plaque commemorating Frank Oliver Park.
3.3 Completion of Landscaping
(a) CPH shall, within 120 days of the substantial completion of the Project, complete the landscaping in accordance with the plans described in Article 3.2 above.
(b) CPH shall for the life of the Project or any portion thereof, provide and maintain all of the landscaping installed pursuant to paragraph 3.2 upon or immediately adjacent to the said Lands in accordance with the plans, 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.
(c) 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 form and content satisfactory to the Office of the City Solicitor, in the amount of 100% of the estimated cost of completing the landscaping, 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 to 50% of the actual cost of having installed the landscaping upon completion thereof. For the purposes of this Article 3.3, the estimated cost of landscaping shall mean all costs associated with the provision and installation of all landscaping materials upon the said Lands in accordance with the detailed plans and specifications required pursuant to Article 3.3, 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.
3.4 Default in Landscaping by CPH
In the event that CPH, in the opinion of the City, has not completed the landscaping in accordance with the landscaping plans described in Article 3.2 within the time limited under Article 3.3, 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 shall be entitled to realize upon the security to complete all or any portion of the landscaping, or restoring, repairing or maintaining same.
3.5 Frank Oliver Park
CPH shall design and landscape the areas referenced in Articles 3.1 and 3.2 incorporating the existing plaque commemorating Frank Oliver to the approval of the Development Officer in consultation with the General Manager of the Parks and Recreation Department and the Director of the Board of Canada Historic Sites and Monuments.
3.6 Public Access to Landscaped Area
(a) From and after completion of the site landscaping until development of the Project, the City, its servants, agents, employees and the public at large shall be and are hereby granted the non-exclusive right, together with all others, to access to the landscaped area shown on Schedule "C" hereto, the landscaping for which is substantially completed and all such persons shall have the right to use such area for passive recreational purposes at all times.
(b) 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 from 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.
4.1 Inspection of Existing Improvements
Prior to commencing any construction or excavation upon the said Lands for 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 visible 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 begins on the Project.
4.2 Roadway Modifications
(a) Except as otherwise expressly provided herein, or otherwise agreed to by the parties, 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 curb crossings, provision of new curb crossings where required and the repair or replacement of sidewalks, curbs and gutters, lane paving and roadways, to City specifications; and
(ii) the relocation, repair or provision to City specifications of utility services due to construction of the Project, whether incurred by the City or by CPH.
(b) CPH shall provide and pay for, at such times as required by the City Engineer:
(i) the establishment or re-establishment of grades at all access points between the municipal highways and the Project, necessitated by the Project, to conform to the requirements of the City Engineer;
(ii) the bus shelter and at grade access to the Pedway below at the location on Jasper Avenue as shown in Schedule "B" and in accordance with the requirements of the Downtown Area Redevelopment Plan;
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 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 adjacent to the said Lands as aforesaid.
(d) (i) Prior to the issuance of a development permit to CPH for the Project, 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 the 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 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 4.2 including the obligation to renew the 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.
4.3 Grades and Specifications
CPH shall obtain from the Transportation 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.
4.4 Hoarding and 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 therewith.
4.5 Roadway Modifications
In the event any change, temporary or permanent, is required by CPH to the municipal highways 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 costs of men, equipment, extra traffic controls or other devices or advertising costs, shall be borne by CPH.
4.6 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.
4.7 Non Standard Materials
If CPH desires to use any construction materials other than those normally used for standard 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.
4.8 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 constructed or reconstructed by CPH have been rectified to the satisfaction of the City Engineer.
4.9 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.
4.10 As-Built Drawings of Roadway Improvements
CPH shall, not later than six months prior to the expiration of the maintenance and guarantee for the sidewalks, curbs, gutters and roadways or other Municipal Improvements, 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.
4.11 City Responsibility for Roadway Improvements
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 or other Municipal Improvements.
4.12 Access to Lands and Adjoining 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 acknowledges that the adjoining Lot 2, Plan 852 2037 is intended to obtain vehicular access for parking, loading and drop off across the said Lands and CPH agrees to act in good faith to ensure continuous vehicular access across the said Lands as aforesaid is available to said Lot 2. CPH further acknowledges that the interests of the City and the owners of Lot 2 aforesaid will best be served by providing below grade pedestrian connections across the said Lands to the pedways to be constructed by CPH pursuant to Article 7 and CPH agrees to act in good faith in endeavoring to negotiate terms satisfactory to both the City and owner of Lot 2 to permit such pedestrian access.
4.13 Inspections 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.
4.14 Clean-up of Roadway
During and immediately after completion (as determined in the sole discretion of the City Engineer) of any construction operation contemplated by this Agreement, 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 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 CPH for the clean-up, and CPH shall pay the City within 30 days of receiving the invoice.
4.15 Use of Cranes on Highways
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.
4.16 Additional Support for Cranes
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 may also be required by the City Engineer.
4.17 Construction Schedule on Highways
CPH shall submit to the City Engineer, at least 30 days prior to commencement of construction of the Project, or of any phase, a detailed construction schedule and staging plan for all work to be performed on, under, or over City-owned property and the said Lands.
4.18 On-Site Circulation
(a) CPH 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 and access to Lot 2, Plan 852 2037, generally in accordance with the plans annexed hereto as Schedule "B", except that the access to and from 100 Street shall generally conform with the plan annexed hereto as Schedule "G", provided that the detailed design of the vehicular circulation shall be approved by the City Engineer prior to the issuance of the development permit for such phase of the Project.
(b) CPH shall design and construct the Project so that all access to parking and loading areas for the Project shall be from Thornton Court, except as otherwise allowed by the Development Officer in relation to the access to the above grade parking facilities in Office Tower No. 1.
(c) CPH shall provide 375 parking spaces for the Project (exclusive of parking spaces required for the Macdonald Hotel, if any, as contemplated in subparagraph (d) hereof) subject to such modifications as may be approved by the Development Officer in accordance with the City Land Use Bylaw. Not more than 176 parking stalls shall be above grade in Office Tower No. 1 as shown on Schedule "B" hereto with access from the north south lane known as Macdonald Mews. The remaining 199 parking stalls shall have access only to Thornton Court.
(d) Prior to issuance of a building permit for the Project, CPH shall submit to the City a parking demand study for the parking requirements for Lot 2, Plan 852 2037. Based upon the said study, the General Manager of the Planning and Development Department shall determine the number of parking stalls in the above grade parking within the Project, if any, required to be dedicated to meet the demand for parking by users of Lot 2, Plan 852 2037. In making his assessment, the General Manager shall be mindful that the number of parking stalls normally provided by historic developments generally are less than the number of parking stalls normally required of new developments.
(e) 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.
(f) In the event that CPH obtains off-site parking spaces on a parcel adjacent to the said Lands, subject to the approval of the Development Officer and City Engineer, the above grade parking in Office Tower No. 1 designated on the plans annexed hereto for parking may be reduced by the equivalent number of parking stalls and the area of such above grade stalls may be used for office or related commercial uses, subject to approval of the Development Officer.
4.19 Transit Operations Uninterrupted
(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 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.
(b) CPH shall, concurrently with the completion of construction of Office Tower No. 1, at the sole expense of CPH, construct, operate and maintain a sheltered transit passenger waiting area with a minimum area of 10 square metres in addition to the Pedway entrance to the approval of the General Manager of the Transportation Department. CPH shall heat the transit shelter during inclement weather during the hours of operation of Edmonton Transit.
5.1 Conveyance of Park Site
(a) In order to expedite the completion of renovations to the Macdonald Hotel and as additional incentive to CPH to do so, the City has agreed that upon approval of the landscaping by the Development Officer, in consultation with General Manager of the Parks and Recreation Department, as required pursuant to paragraph 3.1, CPH shall transfer title to the lands described on page 1 of Schedule "A" hereto and the City shall retain title to such lands for a period not exceeding 5 years. The City shall own and operate such lands together with the balance of the said Lands as a passive park area bearing all expenses associated with such ownership. Taxes respecting such lands will be adjusted as at the date upon which the transfer is registered with payment of any adjustment of taxes to be made to the party entitled thereto within 30 days following registration of such transfer. Title to such lands would be conveyed free and clear of all liens, charges or encumbrances of a financial nature, but subject to such encroachments as now exist including encroachments of Macdonald Place or by virtue of development of the Macdonald Hotel may exist, and subject to such easements and rights-of-way as may be necessary to provide access to and/or services to the Macdonald Hotel and Office Tower No. 2.
(b) From and after the date upon which the City registers the aforesaid transfer, the City grants to CPH the exclusive and irrevocable option to purchase the said Lands at any time within 5 years of the original date of transfer on the terms and conditions hereinafter set forth. The option may be exercised by CPH delivering to the City at its address set forth for notices herein, notice of exercise of the option duly signed by the optionees. Payment of the option price calculated in the manner hereinafter specified shall be due on the closing date of the purchase and sale to be 30 days following the exercise or deemed exercise of the option.
(c) Notwithstanding subparagraph (b) above the option shall be deemed to have been exercised by CPH upon the earlier of the 5th anniversary date of registration of the transfer vesting such lands in the City or 30 days following the date upon which notice is given by the City to CPH that CPH is in default of the covenant contained in the agreement of even date herewith respecting the opening of the Macdonald Hotel (the "Macdonald Hotel Agreement").
(d) The option price payable by CPH to the City for conveyance of the said Lands shall be $1.00, provided that if the option is deemed to be exercised by CPH by reason of its failure to open the Macdonald Hotel within the time limited therefor in the Macdonald Hotel Agreement, there shall be added to the amount payable for the said Lands the amount, if any, of costs and expenses incurred by the City in operating, maintaining or holding title to the said Lands, including an amount which would have been levied and assessed against the said Lands had such lands remained in the title of CPH, from the original date of the transfer, and in operating and maintaining the landscaping upon the lands, plus the costs, if any, to such date paid by the City in restoring, repairing or replacing Municipal Improvements on 100 Street and/or Jasper Avenue pursuant to Article 5.1 of the Macdonald Hotel Agreement.
(e) Taxes in respect of the said Lands shall be re-adjusted as at the earlier of; (a) the 5th anniversary date of conveyance of lands to the City, or (b) if the option is exercised by CPH at an earlier date, upon the closing of such purchase and sale, and CPH shall be entitled to possession of the said Lands upon the registration of the transfer therefor subject to the terms and conditions herein contained. Title to the said Lands shall be conveyed by the City to CPH free and clear of all liens, charges and encumbrances, save and except those recorded against title as at the date upon which title to such lands was conveyed to the City of Edmonton together with such further liens, charges or interests as may have been made or suffered by CPH or by the City with the consent of CPH including if necessary, an easement to accommodate the McCauley Plaza Pedway entrance located at the northwest corner of the said Lands unless determined by the City Engineer that such easement is not required.
5.2 Retention of Roadway Lands
(a) The City shall retain the Roadway Lands which shall vest in the City by virtue of the registration of such documents as may be required to remove such lands from the existing certificate of title therefor, such documents to be registered at the Land Titles Office for the North Alberta Land Registration District as soon as possible after execution and delivery hereof.
(b) If the Pedway fronting Jasper Avenue has not been substantially completed on or before January 14th, 2035 (the "Condition Date"), then within 60 days of the Condition Date, CPH at its option shall either:
i) pay to the City the estimated costs determined as at the Condition Date of completing the Pedway; or
(ii) reconvey to the City the City lands.
(c) In the event that the parties cannot agree upon the estimated costs of completing the Pedway, such value shall be ascertained as follows:
(i) one estimate of the cost of the Pedway (hereinafter referred to as "valuation") shall be obtained by each of the parties from individuals qualified in their respective field and the cost of such valuation shall be paid by the party on whose behalf such valuation has been obtained;
(ii) a valuation (the neutral valuation) shall be obtained from an appraiser or estimator who shall be selected by the two appraisers, or two estimators, as the case may be, selected by the parties and the costs of such valuation shall be borne equally by the parties;
(iii) the estimated construction costs of the Pedway, as the case may be, shall be the sum of one-quarter of the CPH valuation plus one-quarter of the City valuation plus one-half of the neutral valuation;
(iv) the parties covenant and agree that they shall use their best efforts to secure the required estimates within 30 days of the Condition Date;
(v) all transactions contemplated hereunder shall be completed as soon as practicable following the Condition Date.
5.3 Building Encroachment Agreements
To the extent that the Project extends beyond the boundary of the CPH 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. To the extent that the Project extends beyond the said Lands other than onto the Roadway Lands, the City and CPH shall enter into such agreement as the City may require and normally utilized by City for like encroachments.
5.4 Excavation Encroachment
CPH agrees that it will execute any encroachment agreement 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.
5.5 Discharge of Existing Encroachment Caveats
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.
5.6 Survey of Encroachments
Within six months of completion of the Project, CPH shall submit to the City a surveyor's certificate identifying the area and nature of any encroachment upon City-owned lands.
6.1 Heritage Trail Easement
In the event that the temporary location of the Heritage Trail, as described in Schedule "F" hereto traverses the said Lands, CPH, within 30 days of approval of the landscape plan approved for the Renovated MacDonald Hotel under the MacDonald Hotel Agreement, shall grant to the City for a consideration of the sum of $1.00, an easement, in the form annexed hereto as Schedule "F" 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 CPH and acceptable to the City Engineer. If required by the City to accommodate the Heritage Trail at a temporary location upon the said Lands, CPH 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.
6.2 Pedway Entrance Easement
(a) Prior to substantial completion of Office Tower No. 1, CPH, shall grant to the City, for a consideration of the sum of $1.00, an easement in the form annexed hereto as Schedule "E", in, along, through and under that portion of the said Lands generally as shown in Schedule "B" annexed hereto (hereinafter referred to as "the Pedway Entrance Easement"), with the specific legal description to be determined by survey plan prepared at the expense of CPH, and acceptable to the City Engineer.
(b) CPH shall pay all costs of registering the Pedway Entrance Easement at the Land Titles Office for the North Alberta Land Registration District.
7.1 Convention Centre Pedway Connection
CPH agrees that it shall, subject to it commencing construction of the Project design, construct, operate, maintain and pay for the design, construction, operation and maintenance to the approval of the City Engineer, of the Pedway shown shaded on Page 7 of Schedule "B". The Pedway is intended to connect the Project to the 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 60 days of substantial completion of the Project. Nothing herein shall be construed so as to require the City to construct any connecting pedways or any part of them.
7.2 Access Pedway Standards
The Pedway is intended to be an access pedway as defined in the documents entitled "Standards for Pedway Development" attached hereto as Schedule "D" ("the standards") and the Pedway shall be constructed in conformity with the said Schedule "D" 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.
7.3 Construction and Operation of Pedways
Pursuant to Section 176 of the Municipal Government Act, R.S.A. 1980, c. M-26, as amended, the City agrees to grant to CPH 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 plans annexed hereto as Schedule "B", for which a detailed legal description will be provided by CPH 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 rights and privileges 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 CPH 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 CPH shall continue for the life of the Project or 100 years, whichever shall first occur.
(c) In the event that the Office Tower No. 1 is damaged beyond reasonable repair as determined by an independent expert chosen by both the City and CPH, the right and privilege granted to CPH by the City shall be terminated and surrendered, notwithstanding Article 7.3(b) above; provided always that if the Pedway shall survive the damage to Office Tower No. 1, the owner shall accept as a condition of redevelopment of the site the obligation of connection to the Pedway.
(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, CPH 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 and 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 CPH 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) 30 working days prior to the commencement of any work to be performed by CPH upon the Pedway Area, CPH 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 7.3(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 7.1 above.
(i) The Pedway and works to be constructed by CPH within the Pedway Area shall be constructed in such a manner to ensure that existing utilities and services are accommodated at CPH'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 reasonable design, inspection, planning and incidental costs, as well as the actual costs of construction of the Pedway.
(k) Maintenance of the Pedway shall be undertaken by CPH at its sole cost and expense to the standards generally provided to the Project and 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) CPH 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 CPH to provide for the installation of a closed circuit television monitoring system within the Pedway, and the cost thereof shall be borne by CPH.
(m) CPH 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 By-law insofar as the same relate to the operation, maintenance and security of pedways and that CPH will not be required to replan, renovate, reconstruct or alter the construction or design of the Pedway as a result of the passage of the Bylaw. Nothing herein shall be construed so as to bind the Municipal Council to pass such a Bylaw or any other Bylaw.
(o) Within 60 days of completion of the Pedway, CPH 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) Unless otherwise prohibited by a petition received by the City pursuant to the Municipal Government Act, no rental or other charges shall be payable by CPH to the City for the right and privilege hereby granted. CPH shall pay the cost of advertising the disposition by the City of such interest in the subsurface lands occupied by the Pedway at less than its market value - if such disposition is then required to be advertised. Such advertisement and the terms of disposition of the Pedway lands shall be resolved prior to issuance of a development permit for the Pedway.
(q) CPH 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 Transportation Department.
7.4 Pedway Indemnity
CPH 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 against the City or which the City may sustain, pay or incur as a result of, or in connection with, the use of the Pedway. Nothing herein shall render CPH liable for the wilful misconduct or negligence of the City, its officers, servants, agents or employees.
7.5 Builders Liens
CPH shall neither permit nor suffer any liens to remain registered against any lands owned by the City for a period exceeding 30 days in respect of any of the work to be performed by CPH upon the Pedway Area from the date upon which the City notifies CPH of said liens.
7.6 Default by CPH of Pedway Requirements
(a) In the event that CPH defaults in the Pedway construction obligations of the Agreement, the City shall give the 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 of such default and CPH 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 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 CPH promptly on demand.
(b) In the event the City constructs or repairs or has constructed or repaired the Pedway, pursuant to Article 7.6(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 CPH related to such Pedway construction within 30 days after being notified of the existence of such liens by CPH.
(c) The City shall provide CPH with all drawings and specifications relating to the Pedway within 14 days of the City commencing construction or repair of the Pedway in accordance with Article 7.6(a) hereof.
(d) In the event the City exercises its right under Article 7.6(a) hereof and any portion of the Pedway traverses the said Lands or the City requires access to any portion of the said Lands CPH shall grant access to the said Lands without compensation for such purposes.
7.7 Retail Space Adjoining Pedway
(a) At the request of the City, CPH shall construct the Pedway and the Project so that they can accommodate the Retail Space and may have ready such Retail Space for occupation upon substantial completion of the Pedway.
(b) In the event that a market analysis prepared by CPH at its expense indicates, to the satisfaction of the General Manager of the Planning and Building Department, that such use is not economically viable, CPH 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 Planning and Development Department may request such analysis to be done at CPH's expense at intervals not more frequently than every two years until the Retail Space is constructed.
7.8 McCauley Plaza Entrance
CPH shall reconstruct the entrance to the pedway below 100th Street leading to McCauley Plaza so that it forms part of a continuous Pedway to be constructed according to this Article 7 which shall be completed within 60 days of substantial completion of the Project. CPH shall pay to the City the amount, including principal and interest, if any, 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 of such pedway entrance has commenced.
7.9 CIBC Pedway
(a) CPH shall construct within the Pedway 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 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 Transportation Department 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 or to the Project. CPH agrees that if agreement is reached between the City and the owner of such property, it will accept such pedway connection.
7.10 Macdonald Hotel Pedestrian Access
CPH on behalf of itself and on behalf of its successors in title recognizes that it may be desirable to provide and maintain indoor pedestrian access between the Macdonald Hotel and the Pedway and CPH agrees to negotiate in good faith with the owners of the Macdonald Hotel to endeavour to obtain such access upon terms and conditions reasonably satisfactory to such owners and CPH.
8.1 Disputes Referred to Arbitration
If a dispute arises between the parties in respect of Articles 4.8, 4.9 and 5.1(d) 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 those terms of reference, the parties in dispute shall meet and attempt to appoint a single arbitrator, and if the parties refuse to meet, or having met, are unable to agree on a single arbitrator, then upon written demand of any party, within 15 days of such date, each party to the arbitration shall appoint one arbitrator in writing and the two 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 of 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 therefor.
(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 Accounts
Any and all amounts owing by one party to the other shall, within 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
Unless waived by the Director of Risk Management, CPH shall maintain in full force and effect throughout the construction period of the Project 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 Manager of Finance 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
8th Floor, City Hall
1 Sir Winston Churchill Square
Edmonton, Alberta
T5J 2R7
(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
Vice President Development
Western Region
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
11.2 Deemed Receipt of Notice
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. During any actual or threatened postal disruption, all notices 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 or part 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) The City agrees to release CPH from the obligations contained herein from and after the date of execution of an assignment in the form of Schedule "H" containing an assumption of all liability of CPH hereunder by the assignee.
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 CPH 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 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 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.
12.8 Laws of Alberta Govern
This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta.
12.9 General Indemnity
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 wilful misconduct or negligence of the City, its officers, servants, agents or employees.
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. The length of time the parties shall have to rectify or perform the obligation in default shall be at the discretion of Council.
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
Nothwithstanding 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 of employees, the City or CPH or their respective officers or employees shall act reasonably.
12.13 Schedules
The following Schedules are annexed hereto and form part hereof:
Schedule A - Said Lands
Schedule B - Project Plans
Schedule C - Predevelopment Landscape Plans
Schedule D - Pedway Standards
Schedule E - Pedway Entrance Easement
Schedule F - Heritage Trail Easment
Schedule G - 100 Street Access
Schedule H - Assignment
Schedule I - Morrison, Hershfield, Theakston, Rowan Limited Wind Study
Schedule J - Encroachment Agreement
Schedule K - Unused Density
IN WITNESS WHEREOF the parties have hereunto affixed their corporate seals, attested to by their proper officers in be
