Address: 10531 - 90 Street
Legal Description: Plan 155 H.W. Blk 5
THIS AGREEMENT made this 01 day of August A.D. 1980.
BETWEEN:
THE CITY OF EDMONTON
a Municipal Corporation (hereinafter called "the City")
OF THE FIRST PART
- and -
BELVEDERE DEVELOPMENTS LTD. and
HARVEY HOLDINGS LTD.
bodies corporate in the City of Edmonton in the Province of Alberta, and
MR. FRED SEGAL, Businessman
(collectively hereinafter called "the Company")
OF THE SECOND PART
WHEREAS THE Company is the registered owner or is entitled to become the registered owner of the lands within the City of Edmonton, legally described in Schedule "A" attached hereto and as shown outlined in "red" on plans attached hereto as Schedule "B" ("the Company lands");
AND WHEREAS the Company has made application to the City of Edmonton to rezone the said lands from R-5 Medium Density Residential Density to DC-2 Comprehensively Planned Development District;
AND WHEREAS the Company wishes to construct two towers of apartments and commercial space together with a parkade ("the Project"), subject to the terms and conditions hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the sum of ONE ($1.00) DOLLAR now paid by the City to the Company, receipt of which sum is hereby acknowledged by the Company, 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. The Company shall extract the same covenants as herein contained from any person whom it may in any way convey the said lands or any part thereof so that the said covenants shall run with the said lands and the terms, conditions, covenants and provisos of this Agreement shall be enforceable by the City in the same manner and to the same extent as a restrictive covenant and the City may file a Caveat against the said lands to protect its interest herein, provided always that the covenants contained herein shall cease and determine when the same has been satisfied and in the event the City agrees to provide a discharge of such Caveat against the said lands or any portion thereof when the conditions contained herein have been satisfied as relating to the said lands or any portion thereof. The City from time to time following written demand therefore agrees to unconditionally postpone such Caveat in favour any mortgage or mortgages or other instruments or encumbrances registered or to be registered at the Land Titles for the purpose of securing financing for the construction of the Project or refinancing of the lands and Project following the completion thereof. In respect of the interest protected by the Caveat 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.
1. The Company shall construct the Project upon the said lands generally in accordance with plans and information attached hereto as Schedule "C" submitted with the Company's application for a Rezoning or as such plans may be modified or altered to secure compliance with the conditions of approval of the Municipal Planning Commission or Council to secure compliance with the conditions of approval of the General Manager of Planning for the City ("the General Manager") or as may be requested by the Company and approved by the General Manager, as the case may be.
2. The Company hereby acknowledges that only one Development Permit shall be issued for the Project and that staged development shall not be permitted.
3. The Company further covenants and agrees that the cafeteria space referred to in Schedule "C" shall be limited to a maximum of 6,000 square feet and the retail commercial space within the Project shall be limited to a maximum of 12,549 square feet and further provided that any single commercial operation within the Project shall be limited to a maximum of 3,000 square feet.
4. The Company shall supply a detailed landscaping and amenity plan for the Project to the satisfaction and approval of the Development Officer, prior the issuance of the Development Permit. This plan shall show all of the proposed amenities, the proposed buffering and screening as well as the landscaping itself and shall form part of this Agreement.
5. To secure compliance with the detailed plans and specifications required by this clause, the Company, shall prior to the issuance of a building permit for the Project, provide to the City a performance bond or letter of credit, in a form satisfactory to the City Solicitor, in the amount of One Hundred (100%) per cent of the estimated costs of completing the landscaping to be installed upon the said lands, which security shall remain in full force and effect for a period of not less than Two (2) years after the completion of the landscaping as required by the plans and specifications, and may be realized upon at any time by the City to complete all or any portion of the landscaping upon the said lands or to restore or repair the same or to remedy any defects in the installation thereof. For the purposes of this clause, the estimated costs of landscaping shall mean all costs associated with the completion of landscaping upon the said lands in accordance with the detailed plans and specifications required pursuant to Article 4 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 City upon approval of the landscaping plans by the Development Officer.
6. The Company shall landscape and maintain the landscaping on all boulevard areas adjacent to the Project to the satisfaction and approval of Edmonton Parks and Recreation and should the maintenance of these areas not be satisfactory to Edmonton Parks and Recreation, the City may perform the necessary maintenance and call upon the aforesaid security and in the event, this should occur after the return of the securities, the City may invoice the Company for such maintenance and collect the debt in the same manner as taxes.
7. Prior to 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 and shall make written note of all visible defects thereon. Except as to the defects so noted, all City property adjacent to the said lands and capable of visible inspection shall be deemed to be in generally good condition.
8. The Company hereby acknowledges the general good condition of all City property, including parks, roadways and utilities, adjacent to the said lands.
9. The Company shall pay any and all costs of roadway restorations or modifications which, in the opinion of the City Engineer, are required by 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.
10. The Company shall obtain a curb crossing permit from the City Engineer and further shall, if directed by the City Engineer, the Company at its own expense shall take whatever action is necessary to stop vehicles entering or emerging from the Project at unauthorized access points.
11. The Company shall construct on the Project to the approval of the City Engineer a surface parking area along the Jasper Avenue frontage to accommodate a minimum of ten parking stalls to be designated for short term uses. The Company shall cause signs to be erected and posted upon the Project to indicate a maximum of thirty minute customer parking. Further the Company agrees that it shall not enter into any lease or arrangement whereby the said parking stalls shall be for the exclusive use of any private organization or individual, provided however, that the parking stalls may be designated for the exclusive use of the customers of the commercial establishments within the Project.
12 The Company shall cause to be posted a sign, acceptable to the City, along the front of the Project indicating the location of the covered commercial office parking area.
13. The Company agrees that any and all amounts owing by the Company to the City shall, Thirty (30) days after the date of invoicing of the Company by the City and until the date of payment, bear interest at the rate of One and One-Half (1 1/2%) percent per month.
14. The Company shall provide, at its own expense, any Easement, right-of-way or chase through the said lands which may be required for the re-routing of any utility within the said lands and the Company shall negotiate with the owner of each utility to determine the relocation of its utility. In the event the Company and the owner of any utility are unable to agree upon the relocation of a utility, then the Company acknowledges that the owner shall be at liberty to relocate its utility in whatever location it wishes, but at the Company's sole cost and expense.
15. The Company agrees that:
(a) any outstanding municipal taxes against the said lands shall be paid to the City in full upon execution of this Agreement;
(b) any local improvement charges presently on the tax rolls for the said lands shall be commuted upon execution of this Agreement.
16. The Company shall until the development of the said lands is substantially complete within the meaning of the Builders Lien Act of the Province of Alberta, at is sole expense, maintain public liability insurance against claims for personal injury, death and property damage occurring upon or within the said lands, except claims which arise by reason of any default of the City in respect of any responsibility of the City under this Agreement, and such insurance shall provide protection in an amount not less than Two Million ($2,000,000.00) Dollars with respect to public liability and/or property damage for any one accident. The Company shall deliver to the City such certificate of insurance or other evidence of coverage as the Comptroller may from time to time reasonably require.
17. The Company shall bear all costs directly or indirectly associated with the extension of temporary and permanent telephone services into the Project or the provision of same, and it being further agreed that the Company shall pay all estimated costs in advance, such determination of the estimated costs to be in the sole discretion of the General Manager Edmonton Telephones.
18. This Agreement is not intended to nullify, replace, circumvent or modify any existing statutes, bylaws, permit conditions or general requirements which cover development or construction within the City. The conditions attached to the issuance of any permit required for the construction will have the same effect as though included in the Agreement.
19. 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 in an envelope addressed to
Manager, Land Development Co-Ordination Branch,
City Planning Department,
13th Floor, Phipps McKinnon Building,
10020 - 101 A Avenue,
Edmonton, Alberta
T5J 3G2
(b) In the case of notice to the Company, if such notice is sent by prepaid registered mail in an envelope addressed to
Belvedere Developments Ltd.
Suite 105, 10106 - 111 Avenue,
Edmonton, Alberta
T5G OB4
The Company and the City may, from time to time, designate in writing, any other such address to which notice may be given. Notice given as aforesaid, 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. Either party may at any time, give notice in writing to the other of any change of 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. The word "notice" in this clause shall be deemed to include any requests, statement or other writing in this Agreement provided or permitted to be given by the City to the Company or by the Company to the City. Any notice personally delivered shall be deemed to have been given on the date of personal delivery.
20. This Agreement shall be deemed to have been made in and shall be constructed in accordance with the laws of the Province of Alberta and for the purposes of all legal proceedings this Agreement shall be deemed to have been performed in the said Province and the Courts of the said Province shall have the exclusive jurisdiction to entertain any action arising under this Agreement. If any provisions herein contained shall in any way contravene the laws of the Province of Alberta where this Agreement is to be performed such provision or provisions shall be severed from the Agreement and the remaining provisions shall continue in force and effect.
21. It is agreed that everything herein contained shall enure to the benefit of and be binding upon the parties hereto, their administrators, successors and assigns respectively.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their hands and seals at the City of Edmonton, in the Province of Alberta, the day and year first above written.
Schedules
Other Documents