Address10104 - 111 Avenue
Plan 3151 R.S.
Lot 330 A
Table of Contents
Article 1 - Conditions Precedent
Article 2 - Planning Requirements
Article 3 - Landscaping
Article 4 - Engineering Requirements
Article 5 - Arbitration
Article 6 - Interest
Article 7 - Insurance
Article 8 - Notice
Article 9 - General
THIS AGREEMENT made this 24th day of November, A.D. 1982.
THE CITY OF EDMONTON
a municipal corporation
(hereinafter referred to as "the City")
OF THE FIRST PART
- and -
WORLD LAND LTD.
a body corporate incorporated pursuant to the
laws of the Province of Alberta
(hereinafter referred to as "the Company")
OF THE SECOND PART
WHEREAS the Company is the registered owner of these lands within the City of Edmonton legally described as Lots 327 to 329 inclusive, Block 1, Plan 7540 A.H. (Hudson Bay Reserve), excepting thereout all mines and minerals, on Certificates of Title 792 278 813 and 792 221 260, generally located in the area shown outlined in red on the plan annexed hereto as Schedule "A" (hereinafter referred to as "the said lands"); and
WHEREAS the Company has applied to City Council for a redistricting of the said lands from CB2 (General Business District) to DC2 (Comprehensively Planned Development District) and received 1st and 2nd reading of Bylaw No. 7021, being a bylaw to redistrict these lands, on 1982 09 14; and
WHEREAS, City Council imposed as a condition of third reading that the Company enter into this Agreement with the City; and
WHEREAS the Company has applied for a development permit to construct a mixed-use residential-commercial complex composed of a 10-storey 100-unit residential apartment building atop a two-storey commercial podium, together with underground and above-grade parking (hereinafter referred to as "the Project");
NOW THEREFORE in consideration of the mutual and other covenants hereinafter contained, the parties hereto covenant and agree each with the other as follows:
1.1 This Agreement shall come into force and effect upon:
(a) the Company dedicating to the City, a 3 metre by 3 metre corner cut at the southwest corner of the said lands as shown outlined in yellow on the plans annexed hereto as Schedule "B", and registering at its sole expense, a road plan in the Land Titles Office for the North Alberta Land Registration District transferring such corner cut to the City; and
(b) the Company granting to the City, an easement over the surface of a 3 metre by 3 metre corner cut at the northeast corner of the said lands as shown outlined in blue on the plans annexed hereto, and registering at its sole expense, an easement document approved by the City Solicitor, in the Land Titles Office for the North Alberta Land Registration District, and the Company agrees not to develop or landscape this area in any way that sight lines are interfered with.
2.1 (a) The Company shall construct the Project upon the said lands substantially in accordance with the set of Plans annexed hereto as Schedule "B". Notwithstanding anything expressed or implied herein, if the said Schedule "B" varies in any way with a specific provision of this Agreement, the Company shall comply with the specific provision in this Agreement, and not with Schedule "B".
(b) No changes shall be permitted to the Plans described in Article 1.1(a) above, except:
(i) revisions which may be necessary for the express purpose of complying with any existing statutes, bylaws, regulations or City policies, which would be violated by strict interpretation of the said Plans;
(ii) minor revisions which may be required by the Building Inspection Branch of the City Bylaw Enforcement Department, to ensure conformity to the Alberta Uniform Building Standards Act, R.S.A. 1980, c.U-4, as amended, and regulations made thereunder; and
(iii) minor revisions requested by the Company and approved by the City's Development Officer.
(c) For the purposes of Article 2.1(b), the Development Officer shall be the sole judge as to what constitutes a minor revision.
2.2 Without limitation to Article 2.1, the Project shall conform to the following requirements:
(a) The height of that portion of the Project, inclusive of construction operations, cranes, clearance lights and antennae thereon, both during and after construction, shall not exceed 42 metres (138 feet) above the height of the existing curb on the municipal highways adjoining the said lands.
(b) The underground parking garage shall be constructed according to the following requirements:
(i) The underground parking shall be provided in accordance with the dimensions required by the Edmonton Land Use Bylaw.
(ii) In the event that the Company wishes to place ticket dispensers such shall be placed by the Company at the bottom of the entrance ramp.
(iii) The Company shall allocate and clearly sign parking stalls reserved for tenants, visitors and customers, to the satisfaction of the Development Officer.
(iv) The Company shall provide an automatic warning device indicating if the parking garage is full, at locations satisfactory to the Development Officer and City Engineer.
(c) The Company shall establish sign criteria for commercial signs to be used within the Project, acceptable to the Development Officer, acting reasonably, and all commercial signs to be erected or installed within the Project shall conform to the approved criteria.
(d) The Company shall provide two loading stalls for the Project, which shall comply with the standards in the Edmonton Land Use Bylaw.
(e) The facade of the ground floor of the commercial component of the Project shall be made of transparent glass.
(f) The Company shall provide an uninterrupted pedestrian arcade a minimum of 3 metres in width along and immediately adjacent to the entire north and east ground level building faces of the Project.
3.1 Prior to the issuance of a building permit authorizing the construction of the Project to proceed above grade, the Company shall submit to the Development Officer, in consultation with the General Managers of the City Planning and Parks and Recreation Departments, for his approval, detailed landscaping plans, specifications and design plans prepared by a professional Landscape Architect for all outdoor areas within and immediately adjacent to the Project, including details as to the following:
(a) the type of pavement and finish on sidewalks, pedestrian areas, and within and adjacent to, the Project;
(b) the size, species and location of all new and existing plantings within and around the exterior of the Project, which plantings shall have sufficient soil cover to sustain their natural growth;
(c) the provision to be made for wheelchair ramps;
(d) proposed street furniture;
(e) all access areas;
(f) all steps and grade irregularities;
(g) any exterior lighting proposed to be provided; and
(h) landscape treatment of the rooftop garden.
3.2 The Company shall provide the landscaping in accordance with the plans described in Article 3.1 above, and shall maintain the landscaping to the satisfaction of the General Manager of the City Parks and Recreation Department.
3.3 (a) To ensure compliance with the detailed landscaping plans and specifications, prior to the issuance of a building permit authorizing construction of the Project to proceed above grade, the Company shall provide a performance bond or irrevocable letter of credit, to the City, for a period of not less than two (2) years, in a form satisfactory to the City Solicitor, in an amount of One Hundred Percent (100%) of the estimated cost of completing the landscaping. When the landscaping has been completed the security shall be reduced to Fifty Percent (50%) of the actual cost of having installed the landscaping. In the event that the landscaping has not been completed when the initial bond or letter is to expire, the said bond or letter shall be renewed by the Company at least two (2) weeks prior to its expiry to the satisfaction of the City Solicitor, acting reasonably, so that it is continually in effect until two (2) years following completion of the landscaping. If the letter or bond is not so renewed, and the two (2) year period following landscaping completion has not yet expired, the City may cash in the bond or letter and do the landscaping or maintenance at the expense of the Company.
(b) In the event the Company defaults on the obligations undertaken to be observed by it with respect to the landscaping requirements of this Agreement, the said bond or irrevocable letter of credit may be realized upon by the City for the purpose of completing all or any portion of the landscaping, and to restore or repair the same, or to remedy any defects in the installation thereof.
(c) For the purposes of this Article, the estimated cost of landscaping shall mean all costs associated with the provision and installation of all landscaping materials in accordance with the detailed plans and specifications, based upon an estimate prepared by an independent professional agency skilled and experienced in the provision of landscaping services, such estimate to be supplied to the City upon approval of landscaping plans by the Development Officer.
4.1 Prior to commencing any construction or excavation upon the said lands, the Company and the City Engineer, or person designated by the City Engineer, shall perform a site inspection of the municipal highways adjacent to the said lands and shall make written note of all visible defects thereon. Except as to the defects so noted, all City property adjacent to the Company lands and capable of visible inspection shall be deemed to be in good condition. The Company shall make written request for this inspection at least ten (10) days before any excavation or construction begins.
4.2 (a) Except as otherwise expressly provided herein, the Company shall pay any and all costs of roadway construction, 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.
(b) The Company shall provide and pay for:
(i) the establishment or re-establishment of grades at all access points between the municipal highways and the Project to conform to the requirements of the City Engineer; and
(ii) public roadway widenings and related resurfacing.
(c) Without restricting the generality of the foregoing, the costs to be paid hereunder by the Company shall include, but shall not be limited to, all out-of-pocket expenses incurred by the City in the re-design of the curbs, sidewalks and lanes, the surveying of same and of inspections made prior to and during the construction of the alterations to the roadways as aforesaid.
4.3 The Company shall obtain from the Engineering Department of the City grades and specifications for any modification or improvement to be carried out upon the municipal highways immediately adjacent to the said lands and shall construct any such modification or improvement to those grades and specifications.
4.4 The City Engineer shall control the use of any hoarding, municipal highways, and pedestrian and traffic control during the period of construction of the Project.
4.5 In the event any change, temporary or permanent, is required by the Company to the existing municipal highways, the Company agrees that such change shall be subject to the approval of the City Engineer, as the case may be, and that the cost of any such change, including extra traffic controls of men, equipment or other devices, shall be borne by the Company.
4.6 The Company shall provide a detailed plan showing proposed support systems for the excavation of the Project to the satisfaction of the city Engineer, which plan shall identify encroachments upon City lands. When the proposed support system has been approved by the City, the Company shall execute whatever documentation is reasonably required by the City to settle the terms of the construction of the support system upon municipal highway.
4.7 Wherever any backfilling is to be carried out by the Company upon City lands or Municipal Highways adjacent to the Project, the Company shall provide to the City Engineer a report of density tests carried out by an accredited testing company, which tests are to be taken at a maximum of twenty five (25) feet apart along the perimeter of the building and taken at every five (5) feet of lift. The results of such density tests shall be submitted to the City Engineer within forty eight (48) hours of the testing having been carried out.
4.8 The Company agrees, at its sole cost and expense, to replace the sidewalks, curbs, gutters and roadways abutting the said lands damaged during construction of the Project to the specifications of the City Engineer, and to unconditionally guarantee such replacement work for a minimum period of two (2) years. If the Company desires to use any construction materials other than those normally used for standard sidewalk, curb, gutter and roadway construction by the City, then the Company and the City shall enter into a separate agreement to cover such items as maintenance, construction and design of the sidewalk, curb, gutter and roadway and the parties' liability therefore.
4.9 The Company, upon completion of the sidewalks, curbs, gutters and roadways, shall make application to the City Engineer for the issuance of a construction completion certificate for the said works.
4.10 From and after the date of issuance of the construction completion certificate, the Company shall maintain and unconditionally guarantee the sidewalks, curbs, gutters and roadways constructed and installed by it for a period of two (2) years, prior to issuance of a final acceptance certificate. Maintenance by the Company shall be to the same standard as the City maintains such works in other public roadways within the City after the issuance of the final acceptance certificate. In the event the Company fails to maintain or repair the work to the approval of the City Engineer, the City, acting reasonably, at the sole cost and expense of the Company, shall be entitled to maintain or repair as aforesaid the sidewalks, curbs, gutters and roadways or cause the sidewalks, curbs, gutters and roadways to be so maintained or repaired.
4.11 The Company shall, not later than six (6) months prior to the expiration of the maintenance and guarantee period for the sidewalks, curbs, gutters and roadways, provide to the City as-built drawings of and apply for the final acceptance certificate for the sidewalks, curbs, gutters and roadways, and in the event that the Company fails to provide as-built drawings as herein required, the final acceptance certificate shall not be issued until six (6) months have elapsed subsequent to the date of the submission of the as-built drawings. In the event, the final acceptance certificate shall not be issued prior to expiration of the maintenance and guarantee period and as-built drawing approval, which approval shall not be unreasonably withheld.
4.12 Upon application of the Company to be submitted sixty (60) days prior to the expiration of the maintenance and guarantee period for the sidewalks, curbs, gutters and roadways, the City Engineer shall, within sixty (60) days issue a final acceptance certificate, if satisfied, upon inspection, that the sidewalks, curbs, gutters and roadways have been maintained and are in a suitable state of repair as herein required. If the City Engineer shall fail to issue the final acceptance certificate or notify the Company of the cause thereof, the sidewalks, curbs, gutters and roadways shall be deemed to have been maintained and guaranteed as required and the final acceptance certificate issued therefore.
4.13 From and after the date of issuance of a final acceptance certificate, the City shall assume full responsibility for maintaining the sidewalks, curbs, gutters and roadways.
4.14 In the event that final acceptance certificate is not issued upon application therefore, the Company shall rectify all defects and deficiencies or comply with the terms hereof, as the case may be, and thereafter shall resubmit its application for a final acceptance certificate in accordance with Article 4.12 above.
4.15 (a) The Company shall construct, operate and maintain, at its sole expense, an Edmonton Transit passenger waiting area, generally in the location as shown outlined in green on the plans annexed hereto as Schedule "B", to the satisfaction of the General Manager of Edmonton Transit. "Operate" shall include heating the waiting area during cold weather.
(b) The Company shall, at its sole expense replace, relocate, reconstruct or repair any trolley overhead facilities which in the opinon of the General Manager of Edmonton Transit were damaged, destroyed or require relocation as a result of the construction by or for the Company of the Project.
(c) The Project shall be constructed in such a manner that there is no interference with traffic circulation or transit operations, including trolley lines, except as permitted by the General Manager of Edmonton Transit.
4.16 Prior to undertaking any reconstruction of the sidewalks, curbs and gutters, or road and lane paving on public roadways, the Company shall make arrangements for inspections by requesting such inspections at the offices of the City Engineer at least forty-eight hours before commencing said reconstruction.
4.17 The Company shall provide upon the said lands a satisfactory receiving area for the storage of refuse bins.
4.18 During construction operation contemplated by this Agreement, the Company shall be responsible for the cleaning up of any construction debris, mud, soil or garbage which may be tracked onto City sidewalks, lanes or roadways or the municipal highways, or any other land owned by the City, as requested by the City Engineer. In the event the Company fails to so clean up, within a reasonable period of time the City may do the work and charge the cost of same to the Company.
4.19 A minimum of forty-eight (48) hours prior to using any mobile cranes on the municipal highways during construction of the Project or for any other operation, the Company shall obtain the approval of such use from the City Engineer. In any event, no restriction on the use of any lane of traffic on a municipal highway shall be made until such approval has been given.
4.20 Prior to requesting approval of the use of any mobile cranes on the municipal highways, the Company shall submit to the City Engineer any mobile crane requirements, detailing the type and size of crane, the magnitude of loads, and the location and distribution of loads to the road surface to insure 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 be submitted.
4.21 The Company shall, prior to the issuance of a footing and foundation permit, provide a detailed assessment of existing storm water run-off rates on the said lands, run-off rates resulting from construction of the Project on the said lands, and the means of limiting such stormwater run-off to a maximum 1.27 cm (0.5 in.) per hour, or the existing run-off rate, approved by the General Manager of Water and Sanitation. The Company shall implement the means of controlling stormwater run-off to such maximum approved by the General Manager of Water and Sanitation.
5.1 In the event a dispute arises between the parties hereto as to the interpretation, application, operation or alleged violation of this Agreement or any of the provisions hereof, such dispute shall be resolved by arbitration in accordance with the following terms and conditions:
(a) The party desiring to refer the dispute to arbitration shall notify the other party in writing of the nature and extent of the dispute.
(b) Within seven (7) days of receipt of such notice, the notified party shall, by written notice, advise the disputing party of all matters referred to in the initial notice except those for which the party admits responsibility and proposes to take remedial action to the satisfaction of the disputing party.
(c) The terms of reference for arbitration shall be those areas of dispute referred to in the initial notice with which the notified party has not admitted or proposed to take remedial action to the satisfaction of the disputing party.
(d) The City and the Company shall, within seven (7) days of the establishment of the terms of reference pursuant to Article 5.1(c) above, each appoint an Arbitrator and the two Arbitrators shall within seven (7) days of their appointment, appoint a third member to the Arbitration Committee to be known as the Chairman. If either party fails to appoint an Arbitrator, the other may apply to a Justice of the Court of Queen's Bench to have such Arbitrator appointed. If the two Arbitrators fail to appoint a Chairman, then both parties or either of them may apply to a Justice of the Court of Queen's Bench to have the Chairman appointed.
(e) Within thirty (30) days of the establishment of the Arbitration Committee, or such further period as may be agreed upon by the parties, the arbitration Committee shall resolve all matters and disputes according to the terms of reference therefore.
(f) The decision of the majority of the Arbitration Committee shall be the decision of the Committee. If no majority decision is reached, the decision of the Chairman shall be deemed to be the decision of the Committee.
(g) The decision of the Committee shall be final and binding upon the parties hereto.
(h) Except as hereby modified, the provisions of the Arbitration Act, R.S.A. 1980, c.A-43, as amended, shall apply to the arbitration procedure herein.
6.1 Any and all amounts owing by one party to the other shall, within thirty (30) days after the date of invoicing of any one party by the other and until the date of payment, bear interest at the rate of one and one-half percent (1 1/2%) per month or eighteen percent (18%) per year.
7.1 The Company shall maintain in full force and effect the following insurance policies from the date upon which the first building permit for the Project is approved until six (6) months after construction of the Project has been completed and all restorations of sidewalk and roadway have been effected:
A Public Liability Policy in favor of the Company providing coverage in respect of any claim or demand of whatever kind being carried out by the Company under the provisions of this Agreement or in any way arising by reason of the existence of the Agreement as follows:
BODILY $2,000,000.00 inclusive . . . . . . . . . . . . . . .each person
INJURY $2,000,000.00 inclusive . . . . . . . . . . . . . . .each occurrence
All sums resulting from the liability imposed by law upon the Company for loss or damage including damage for care and loss of services because of bodily injury to or the illness or death of any person or persons.
PROPERTY $2,000,000.00 inclusive . . . . . . . . each occurrence
DAMAGE Inclusive Limited . . . . . . . . . . . . $4,000,000.00
All sums resulting from the liability imposed by law upon the Company for damage to or destruction of property of others of any or every description including the loss of use thereof.
7.2 The Company shall grant a Policy of Indemnity in favor of the City saving the City harmless from all claims, demands, charges, losses, costs or damages arising or alleged to arise directly, indirectly or incidentally by reason of the operations of the Company or its agents, servants or independent contractors in carrying out this Agreement.
7.3 The Company shall provide the City with a copy of the insurance policies defined above, together with proof of payment of premiums, within ten (10) days of the date that the premium payments become payable.
8.1 Any notice to be given pursuant to the terms of this agreement shall be sufficiently given,
(a) in case of notice to the City, if such notice is sent by prepaid registered mail in an envelope addressed to:
Manager, Land Development Coordination
13th Floor, Phipps-McKinnon Building
10020 - 101 A Avenue
(b) in the case of notice to the Company, if such notice is sent by prepaid registered mail in an envelope addressed to:
World Land Ltd.
5th Floor, 1110 Centre St. N.
World Land Ltd.
303 - 15333 Castle Downs Road
8.2 Notice given as foresaid, if posted in Alberta, shall conclusively be deemed to have been given on the third 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.
8.3 Either party may, at any time, give notice in writing to the other of any change in address of the party giving such notice and, from and after the giving of such notice, the address therein specified shall be deemed to be the address of the said party for the giving of notice hereunder.
8.4 The word "notice" in this Article 8 shall be deemed to include any requests, statements or other writing in this Agreement provided, required or permitted to be given by the City to the Company or by the Company to the City.
9.1 The Company covenants, undertakes and agrees that the conditions, terms and provisos of this Agreement shall be deemed to be covenants running with the said lands and to be binding upon the Company and its successors in title.
9.2 The Company covenants and agrees that it shall obtain the same covenants as are contained in this agreement from any person to who it may, in any way, convey the said lands, or any part thereof, so that the said covenants shall be enforceable by the City. In respect of the interest protected by the encumbrance aforesaid, the City agrees that it shall from time to time forthwith, after written demand therefore, endorse the plans or instruments of subdivision and such other assurances which may be required or necessary and acceptable to the planning authorities as shall have jurisdiction with respect to such subdivision.
9.3 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.
9.4 The Company agrees that the City may file a caveat against the title of the said lands to protect its interest herein. The City agrees to discharge such caveat when all conditions contained herein have been satisfied upon receiving a written request for such discharge.
9.5 The Company shall indemnify and save harmless the City from and against any and all actions, causes of 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 enure as a result of, or in connection with, the exercise by the Company of any of the rights or privileges, hereby or otherwise vested in the Company, or by virtue of any operations of the Company on the said lands.
9.6 The Company agrees that within ninety (90) days of substantial completion of the Project, it shall provide to the Manager of Land Development Coordination Branch of the Planning Department of the City a survey plan showing all boundaries of any portion of the Project which extend beyond the boundaries of the said lands, such plan to include area calculations.
9.7 The Company agrees that it will execute any encroachment agreement required by the City due to the Company's encroachment, upon, over or under municipal highways by way of canopies, overhangs, tie-backs, backslopes or any other encroachments.
9.8 The City agrees that it shall discharge any presently existing encroachment agreements which affect any portion of the said Lands, subject to the Company carrying out the restoration of any surface improvements abutting any part of the said lands, to the satisfaction of the City Engineer.
9.9 Within ninety (90) days of completion of the Project, the Company shall submit to the City:
(a) as-built drawings of the Project constructed in accordance with the provisions hereof; and
(b) a surveyor's certificate identifying the area of encroachment of such facilities upon City-owned lands.
9.10 The Company shall not assign this Agreement nor any part thereof without the City's consent, which consent shall not be unreasonably or arbitrarily withheld.
9.11 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.
9.12 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.
9.13 This Agreement shall enure to the benefit of, and binding upon the parties hereto, their successors and assigns.
9.14 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.
IN WITNESS WHEREOF the parties have hereunto affixed their corporate seals, attested to by their proper officers in behalf on the day and year first above written.