DC2 (E) Hotel Macdonald Agreement C170d Schedule J

THIS ENCROACHMENT AGREEMENT made this ______ day of ________, 1987.

BETWEEN:

THE CITY OF EDMONTON,

a municipal corporation,

(hereinafter referred to as the "City"),

OF THE FIRST PART

and

_________________________________,

(hereinafter referred to as the "Owner"),

OF THE SECOND PART

WHEREAS the Owner is the registered owner or is entitled to become the registered owner of those lands in the City of Edmonton, in the Province of Alberta, legally described in Appendix 1 hereto (hereinafter referred to as "the Owner's Lands");

AND WHEREAS by Development Agreement made the ___________ day of _________, 1987 between the City and Canadian Pacific Hotels Corporation (hereinafter referred to as "CPH"), CPH agreed to convey or surrender to the City all its interest in and to that portion of the Owner's Lands identified as roadway on the plan attached as Appendix 2 hereto (the "Roadway Lands");

AND WHEREAS the City is now the owner of the Roadway Lands together with the municipal highway adjacent to the Owner's Lands and situated in the City of Edmonton, municipally known as 100th Street (hereinafter collectively referred to as the "City Lands");

AND WHEREAS the development constructed or to be constructed upon the Owner's Lands as approved pursuant to that certain Development Agreement aforesaid between the City and CPH provides for encroachments beyond the boundary of the Owner's Land into the Roadway Lands;

AND WHEREAS the Roadway Lands were conveyed to the City upon the express understanding that such encroachments or any similar encroachments arising upon development of the Owner's Lands below-grade or overhanging the Roadway Lands (but not at the grade of the surface of the Roadway Lands) would be authorized without obligation on behalf of the Owner to make payment therefore but subject to the terms and conditions hereinafter set forth;

AND WHEREAS pursuant to Section 176(1) of the Municipal Government Act, c. M-26, R.S.A. 1980, as amended, a Council may grant to any person owning land adjacent to a highway the privilege of erecting a structure overhanging the highway or of excavating under such highway, for such purposes and upon such terms and conditions as Council shall fix;

NOW THEREFORE THIS ENCROACHMENT AGREEMENT WITNESSETH that in consideration of the mutual and other covenants hereinafter contained, the parties hereto hereby covenant and agree as follows:

1.       The City grants to the Owner the privilege of erecting and/or maintaining all those encroachments upon the Roadway Lands more particularly identified in Appendix 3 hereto (the "Encroachments") each of which shall be constructed in accordance with Appendix 3.

2.       No payment shall be required to be made to the City of Edmonton by way of annual rental fee, or otherwise for the Encroachments within the Roadway Lands.

3.       The Owner shall indemnify and save harmless the City from and against any and all claims, demands, actions, suits, judgments, damages and expenses of every nature and kind brought or claimed against the City by any party whatsoever which may rise directly, indirectly or incidentally by reason of the existence of the Encroachments.

4.       The Owner shall obtain all permits and licenses required with respect to the construction and maintenance of the Encroachments.

5.       Within 60 days of completing construction of 'the Encroachments the Owner shall provide the City with a certificate signed by an Alberta Land Surveyor identifying the precise nature and location of the Encroachments.

6.       The Owner shall maintain insurance from an insurer licensed to do business in Alberta for public liability in an amount not less than $1,000,000.00 for the term of this Agreement, and shall provide evidence satisfactory to the City that such insurance has been acquired and all premiums relating thereto have been paid as required.

7.       The Encroachments in respect of the Roadway Lands shall continue to exist for so long as the Owner shall wish to exercise such privileges and may not be terminated by the City except by agreement with the Owner or by expropriation.

8.       Upon termination of the encroachment privilege in accordance with Article 7 or upon abandonment of the Encroachments within the Roadway Lands, the Owner shall remove the Encroachments shown in the surveyors certificate described in Article 6 and shall restore the Roadway Lands as nearly as practicable to the condition in which they existed prior to construction of the Encroachments.

9.       Neither the termination of the encroachment privilege in accordance with Article 7 nor the abandonment of the Encroachments shall affect any right of protection given to the City by the insurance carried under Article 6 herein during such time as the Encroachments remain on the Roadway Lands, during the dismantling and removing thereof, and during the restoration of the surface of the Roadway Lands where these improvements were located. The termination or abandonment aforesaid shall not affect the right of the City to collect monies owing by the Owner to the City at or prior to the date of termination of this Agreement.

10.     This Agreement shall enure to the benefit of and be binding upon the City and Owner, their successors and assigns respectively.

IN WITNESS WHEREOF the parties hereto have affixed their corporate seals by the hands of their proper officers in that behalf on the day and year first above written.