DC2 (N) Ermineskin Place Agreement

Address 2421 - 104 Street

Legal Description: CDE 832-322, Plan 802-0073

THIS AGREEMENT made this 19 day of March, A.D. 1980.

BETWEEN:

THE CITY OF EDMONTON,

A Municipal Corporation,

(hereinafter called "the City")

- and -

QUALICO DEVELOPMENTS LTD.,

A Body Corporate,

(hereinafter called "the Developer")

WHEREAS the Developer is the registered owner or entitled to become the registered owner of certain land in the City of Edmonton, in the Province of Alberta, namely:

Lot Ninety-three (93), in Block Twenty - three (23),

Plan 802 0073

Reserving thereout all Mines and Minerals.

(Hereinafter called "the development site"); and

WHEREAS the Developer made application to the City to rezone the development site from AG-U Agricultural General Urban District to CD-1 Comprehensive Development District; and

WHEREAS Council of the City, at its meeting of September 24, 1979, gave first and second reading to Bylaw 5812, being a bylaw to rezone the development site to CD-1 Comprehensive Development District; and

WHEREAS Section 35 of Bylaw 2135, being the Zoning Bylaw of the City, requires that the Developer enter into a development agreement; and

WHEREAS the Developer has agreed to enter into this agreement.

NOW THEREFORE in consideration of the sum of One Dollar ($1.00) now paid by the City to the Developer, and in consideration of the City rezoning the development site from AG-U Agricultural General Urban District to CD-1 Comprehensive Development District, the Developer for itself, its successors and assigns hereby undertakes and agrees as follows.

Article 1 - Development upon the Development Site
1.1 Any and all development upon the development site shall be constructed substantially in accordance with the plans attached hereto as Schedule "A" and forming part of this agreement, and with any conditions imposed on the development permit upon the issuance thereof (which conditions shall be deemed to form part of this agreement as though the same were incorporated herein.).

1.2 The Developer shall not be permitted to substantially amend, modify or change the plans attached hereto as Schedule "A" provided however, that the General Manager of the Planning Department may in his sole discretion require minor revisions to the plans to ensure conformity of such plans with the provisions of the Alberta Uniform Building Standards Act and regulations thereunder, and any other bylaws, regulations, or City policies. For the purpose of this Article 1.2, the General Manager of the Planning Department shall be the sole judge as to what constitutes a minor revision.

1.3 The Developer shall apply for and obtain a Development Permit for the entire development to be constructed upon the Development site within one year of the date of third reading of Bylaw 5812 and, for the sake of greater certainty, the Developer acknowledges and agrees that only one Development Permit will be issued for the development; provided that nothing herein set forth shall obligate the Developer to ensure that only one building permit is issued relative to the said Development Permit, to the intent that actual construction of the development can be staged pursuant to building permits from time to time applied for and obtained by the Developer.

1.4 Concurrently with the application for a Development Permit, the Developer shall submit to the City a proposed schedule for the construction of the various stages of the said development, which schedule shall provide for commencement of construction of the first stage of such development within ninety days after the issuance of a building permit therefore and for the commencement of construction of each other stage of construction identified on such schedule within ninety days after the issuance of a building permit for each other stage.

1.5 The Developer agrees to diligently and conscientiously proceed to construct each such stage of the development so that each such stage and, hence the entire development, is completed and in place as soon as is reasonably practicable therefore in the circumstances.

1.6 Notwithstanding any provision herein contained, the Developer shall comply with any existing bylaws, statutes, permit conditions or general requirements relating to construction and development within the City, and nothing herein contained is intended to circumvent, nullify, replace or modify such requirements.

1.7 Provided the Developer is not in default hereunder, the City agrees to co-operate with the Developer in obtaining such extensions, if any, as may be necessary to the Development Permit so as to ensure same does not lapse.

Article 2 - Landscaping
2.1 Prior to the issuance of a development permit for the development upon the development site, the Developer shall submit detailed plans and specifications of the landscaping to be constructed and installed upon the development site, including, but not restricted to, proposed buffering and screening, all of which plans shall be to the satisfaction of the Development Officer, and upon approval thereof by the Development Officer shall be attached to and form part of this agreement.

2.2 The Developer shall landscape and maintain all boulevard areas adjacent to the development site to the satisfaction of the City Parks and Recreation Department, acting reasonably. In the event that the Developer fails to maintain or landscape in accordance with City standards, the City may maintain or landscape as the case may be, and may, at its sole option, recover such costs from the Developer, either directly, or in the manner and to the same extent as the recovery of taxes, or realize upon the security provided to it pursuant to Article 2.3 hereof.

2.3 To ensure compliance with the detailed landscaping plans submitted and approved pursuant to Article 2.1, and to ensure compliance with Article 2.2, the Developer shall submit a performance bond in a form satisfactory to the City Solicitor, acting reasonably, in the amount of one hundred percent (100%) of the estimated costs of the completion of landscaping of the entire site. Upon the completion of landscaping on the development site in accordance with the landscaping plans, and to the satisfaction of the Planning Department, acting reasonably, the amount of the performance bond may be reduced to twenty-five percent (25%) of the estimated costs of landscaping. For the purpose of this Article 2.3, the estimated cost of landscaping shall mean all costs associated with the completion of landscaping of the development site in accordance with the detailed plans and specifications required pursuant to Article 2.1, 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 immediately upon the approval of the landscaping plans by the Development Officer.

2.4 The security provided to the City pursuant to Article 2.3 above, shall remain in full force and effect for a period of not less than two (2) years after the completion of the landscaping in accordance with the required plans, and may be realized upon at any time by the City until the expiry thereof, to complete the landscaping of the development site in accordance with the plans, or to restore, or repair the same, or to remedy any defects in the installation of the same.

Article 3 - Access and Roadway Modifications
3.1 The Developer shall pay the costs of all roadway modifications, extensions, alterations and construction required by or occasioned specifically by the development to be constructed upon the development site pursuant to the terms of this Agreement, including, but not restricted to, filling in or unutilized curb crossings and the repair or replacement of sidewalks, curbs, and gutters adjacent to the development site, all to the satisfaction of the City Engineer. Such costs not payable on a local improvement basis shall be billed directly to the Developer as they are incurred by the City, and shall be paid within 30 days of the receipt by the Developer of the invoices, failing which the City shall have the right to collect such costs in the same manner and to the same extent as taxes levied against the land pursuant to the provisions of the Municipal Taxation Act.

3.2 The Developer shall apply for and obtain the written approval of the City Engineer for any and all curb crossings to the development site, all of which shall be constructed to his satisfaction at the sole cost and expense of the Developer.

3.3 Without restricting the generality of Article 3.2, vehicular access to the development site shall be from 104 Street only, and only emergency access permitted from the service road, at which point the Developer shall construct bollards. If the City Engineer should determine, in his sole discretions, that vehicles are entering the development site other than as specifically permitted pursuant to Articles 3.2 and 3.3, he may direct the Developer to take such action as may be necessary to stop such unauthorized access, and the Developer shall, at his sole cost and expense forthwith carry out such activity.

3.4 The Developer acknowledges and agrees that the City may in the future construct, maintain, repair and operate the following improvements, namely:

3.4.1 A grade separated interchange at 23 Avenue and the Calgary Trail, and

3.4.2 A Light Rail Transit line adjacent to the development site, and the Developer for itself, its successors, and assigns hereby consents to such future construction, maintenance, repair and operation, and hereby waives any and all claims for damages of every land nature and description to the development site or the Developer arising by reason of such construction, maintenance, repair or operation SAVE AND EXCEPT damages arising from the negligent act or omission, or wilful misconduct of the City, its agents or employees.

Article 4 - Utilities and Taxes
4.1 All servicing of the development site shall be the responsibility of and at the sole cost of the Developer, and is subject to the following conditions:

4.1.1 Sewer connections will be available from 104 Street only;

4.1.2 Water connections will be available from 104 Street only.

4.2 Any and all taxes assessed against the development site and shown on the tax rolls shall be paid before execution of this agreement by the City, provided however, that local improvement charges presently on the tax rolls will be commuted.

Article 5 - Arbitration
5.1 In the event of a dispute arising 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 determined by:

(1) The party desiring to refer the dispute for arbitration shall notify the other party in writing of the nature and extent of the dispute;

(2) Within Seven (7) days of the receipt of such notice, the opposite party shall by written notice advise the party so desiring to refer the dispute to arbitration of all matters referred to in the initial notice which he disputes, except those for which he admits responsibility and proposes to take remedial action and he shall then take such remedial action;

(3) The terms of reference for the arbitration shall be those areas of dispute referred to in the initial notice with respect to which the second party has not admitted or proposed to take remedial action;

(4) The City and the Developer shall, within Seven (7) days of the establishment of the terms of reference pursuant to Article 6.1(3) 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, provided further that, if either party fails to appoint an Arbitrator, then the other party may apply to a Justice of the Queen's Bench to have such Arbitrator appointed, and provided further that 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.

(5) Within Ninety (90) 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 accorded in the terms of reference therefore;

(6) The decision of the majority of the Arbitration Committee shall be the decision of the Committee, provided that if no majority decision is reached, the decision of the Chairman shall be the decision of the Committee, and provided further, that if both of the other members dispute the decision of the Chairman, a new panel shall be selected in accordance with this Article 6.

(7) The decision of the Committee shall be binding and final upon the parties hereto;

(8) Except as hereby modified, the provisions of The Arbitration Act of Alberta, shall apply to the arbitration procedure.

Article 6 - General
6.1 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 with the City.

6.2 Nothing herein contained is intended to or does obligate the City to rezone any or all portions of the development site or to pass Bylaw 5812 or any other zoning amendment bylaw.

6.3 The parties hereto agree that each and every article of this Agreement is a necessary and integral part of the Agreement and the due performance of each and every provision is essential to the validity hereof and in the event that one or more articles herein contained is for any reason declared invalid or unenforceable, such article shall not be severable from the whole agreement, but rather, the Agreement shall be invalid and at an end except as to matters which have been completed prior to such declaration of invalidity, and provided further, should this agreement be rendered unenforceable or should the Developer fail to observe, or to perform the covenants herein contained on his part to be observed and performed, subject only to circumstances over which the Developer has no control and which, by the exercise of due diligence by the Developer could not have been avoided, the Council of the City shall be at liberty upon notice to the Developer and after hearing the Developer, to repeal any rezoning of the development site undertaken by the City to permit the development hereunder, it being understood and agreed that any rezoning hereunder passed by the Council of the City is conditional upon the due observance and performance of each and every article herein contained on the part of the Developer to be observed and performed. It is understood that this provision as to failure to observe or perform covenants shall be applicable on a lot by lot basis to each individual lot, and any failure to observe or perform covenants shall be applicable solely as to the lot that the covenants are applicable to.

6.4 The Developer acknowledges and agrees that the terms and conditions of this Agreement are covenants running with the lands located within the development site and are binding upon the Developer, his successors and assigns. The Developer shall extract the same covenants as herein contained from any person it may in any way convey all or a portion of the development site, so that the covenants shall run with the lands within the development_ site. The City may enforce the terms, conditions and provisions of this Agreement in the same manner and to the same extent as any other restrictive covenant filed by way of caveat and the City may file a caveat to protect its interest herein, provided however, that the said caveat shall cease and determine when all conditions herein have been satisfied and, provided further, that the City shall forthwith upon the request of the Developer, absolutely postpone such caveat in favour of a mortgage or mortgages registered at the North Alberta Land Titles Office, for the purpose of financing any construction or development upon the development site in accordance with the provisions of this Agreement.

6.5 Whenever the singular or masculine is used throughout this Agreement the same shall be construed as meaning the plural or feminine or body corporate, where the context or parties hereto require.

6.6 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 hand and seal at the City of Edmonton, in the Province of Alberta, the day and year first above written.