Address 10216 - 124 Street
Legal Description: Plan XXII, Blk 33, Lots 11 to 16
THIS AGREEMENT made this 28th day of October A.D. 1980.
BETWEEN:
CITY OF EDMONTON,
a Municipal Corporation,
(the "City")
OF THE FIRST PART
- and -
ROYCE PROPERTIES LTD.,
(the "Company")
OF THE SECOND PART
1. 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 blue on plans attached hereto as Schedule "B" ("the said Lands");
2. WHEREAS the Company has made application to the Municipal Council of the City of Edmonton to have the said Lands designated DC2 under the City of Edmonton Land Use By-law 5996;
3. AND WHEREAS the City, as a condition of approving the DC2 district for the said Lands requires that the Company enter into this Agreement to ensure that the proposed development is compatible with surrounding developments;
4. AND WHEREAS the City concurrently with the adoption of the amendments to the Land Use Bylaw 5996 has processed desired amendments to the General Plan Bylaw 6000 and the Groat Estate Implementation Plan;
5. AND WHEREAS the Company proposes to develop a comprehensively planned and designed office building, with ancillary retail space upon the said Lands, in accordance with the terms and conditions herein set forth, such development being hereinafter called the Project;
6. AND WHEREAS the proposed development, subject to the aforesaid By-law amendments, is consistent with the provisions of all statutory plans and the Land Use Bylaw;
7. AND WHEREAS the Planning Act, 1977, as amended, authorizes the Municipal Council to require a development agreement in conjunction with the approval of a development;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the sum of ONE DOLLAR ($1.00) 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 to 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 any other restrictive covenant and the City may file a caveat against the said Lands to protect its interests herein. The City from time to time following written demand therefor 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.
Article 1 - Planning Requirement
1.1 The Company shall construct the Project upon the said Lands substantially in accordance with the set of plans attached hereto as Schedule "C" as such plans may be modified or altered to secure compliance with the conditions of approval of the Municipal Council of the City or such minor modifications as may be requested by the Company and approved by the Development Officer for the City ("the Development Officer").
1.2 Without limitation to the preceding paragraph 1.1 above, the Project shall conform to the following requirements:
1.2.1 occupied space within the Project shall not be constructed to a height exceeding eighty-eight (88) feet measured from the sidewalk elevation at 124th Street adjacent to the Project, nor shall any portion of the east and west perimeters of the Project exceed the height of sixty-four (64) feet as prescribed in Schedule "C" hereto, measured from the sidewalk elevation at 124th Street as aforesaid;
1.2.2 ticket spitter(s) or other access control devices for the underground parking, shall be situated to minimize the stacking of traffic on the adjacent highways, with the downward slope of ramps to underground parking to comply with the requirements of sound traffic and engineering practices as approved by the Development Officer, acting reasonably;
1.2.3 two hundred and sixty-nine (269) underground parking stalls shall be constructed in accordance with the Plans attached as Schedule "C" hereto;
1.2.4 if during the normal business hours of the Project, there are no parking stalls available for general public use, such shall be clearly indicated to vehicular traffic prior to entry upon the parking ramp;
1.2.5 the Company shall construct, operate and maintain on the exterior of the south side of the Project a sheltered area for the patrons of Edmonton Transit, which shall be constructed in the manner architecturally compatible to and as part of the Project;
1.2.6 the Company shall construct sidewalks on the south and east sides of the Project, in accordance with the then existing standards of the City as required by the Development Officer acting reasonably.
1.3 The uses to which the Project may be put shall be such uses as are consistent with any applicable statutory plans, including, without limitation, the uses authorized under Section 330 of the Land Use Bylaw as may be approved by the Development Officer or Development Appeal Board on any appeal taken from the decision of the Development Officer but excepting thereout all of those uses set forth in Schedule "D" hereto.
1.4 Except as otherwise expressed or implied herein, the Company shall comply with all applicable requirements of the General Development Regulations and Special Land Use Provisions of the Land Use Bylaw 5996.
1.5 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 lawfully brought or made against the City or which the City may sustain, pay or incur as a result of or in connection with the approval by the City of the design of the entrance and exiting requirements for vehicles to and from the Project onto adjacent municipal highways.
Article 2 - Landscaping
2.1 Prior to the issuance of a building permit permitting the construction of the Project to proceed above grade, the Company shall submit to the Development Officer for his approval detailed landscaping plans and design plans for outdoor areas both at grade and upon stepped terraces, generally in accordance with the plans annexed as Schedule "C" hereto including details as to the following:
2.1.1 the type of pavement and finish on the sidewalks and pedestrian areas adjacent to the Project;
2.1.2 the size and species of all new plantings; (all plantings shall have sufficient soil cover to sustain their natural growth);
2.1.3 the details of all existing vegetation to be maintained or replaced, if any;
2.1.4 the provision to be made for wheelchair ramps;
2.1.5 the details of proposed street furniture;
2.1.6 all access areas clearly defined;
2.1.7 all steps and grade irregularities clearly defined;
2.1.8 any exterior lighting proposed to be provided.
2.2 To secure compliance with the said detailed 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 letter of credit to the City in a form satisfactory to the City's solicitor in the amount of ONE HUNDRED (100%) PER CENT of the estimated cost of completing the landscaping provided that the security shall be reduced to TWENTY-FIVE (25%) PER CENT of the actual cost of having installed the landscaping upon completion thereof. Such security shall thereafter remain in force and effect for a period of not less than two (2) years following completion of the landscaping. Provided that if the Company is in default of the obligations herein undertaken to be observed by it, the security may be realized upon by the City for the purpose of completing all or any portion of the landscaping upon the said Lands and to restore or repair the same or to remedy any defects in the installation thereof. For the purposes of this Article 2.2, the estimated cost of landscaping shall mean all costs associated with the installation of plant materials upon the said Lands 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 upon approval of the landscaping plans by the Development Officer.
Article 3 - Engineering Requirements
3.1 The Company in accordance with paragraph 3.4 below agrees to pay all costs associated with roadway modifications made necessary by the construction of the Project written notice of which has been given to the Company prior to the date of issuance of a building permit authorizing construction of the Project above grade (modifications made pursuant to paragraph 3.2 below excepted) including, without limitation:
3.1.1 the filling in of all existing curb crossings to City specifications where such curb crossings are rendered obsolete by the Project;
3.1.2 the upgrading of existing curb crossings to City specifications;
3.1.3 the provision of new curb crossings where required;
3.1.4 road widening on the west side of 124 Street adjacent to the Project.
The costs to be assumed hereunder by the Company shall include all costs, charges and expenses incurred by the City in the re-design of the curbs, sidewalks and lanes, the surveying of same and of inspections during the construction of the alterations to the roadways as aforesaid together with such additional costs as may be recovered by local improvement charges; and such costs shall be recoverable by local improvement charge upon the said lands pursuant to paragraph 3.4 hereof.
3.2 Subject to paragraph 3.6 hereof, the Company at its cost may have a lay-by constructed upon 124 Street adjacent to the east boundary of the said Lands in accordance with the requirements of the Development Officer, acting reasonably. No lay-by shall be constructed upon 102 Avenue notwithstanding anything to the contrary set forth in Schedule "C".
3.3 The Company shall pay all costs associated with the repair and/or replacement of sidewalks, curbs and gutters and lane paving within the Municipal Highways adjacent to the said Lands damaged by the construction of the Project by the Company, its servants, agents, contractors or suppliers and such costs shall be recoverable by the City pursuant to paragraph 3.4 below.
3.4 The Company hereby petitions the Municipal Council of the City to undertake the construction of any improvements under the preceding paragraphs 3.1, 3.2, and 3.3 as local improvements. Such works may be performed by the City as either a special frontage or local benefit assessment as the City, in its discretion, may resolve. All of such works shall be scheduled by the City having regard to the construction schedule for the Project.
3.5 If within three (3) years of substantial completion of the Project, the Development Officer for the City shall determine, based upon traffic studies of arteries adjacent to the Project, that there is sufficient traffic generated by the Project to necessitate the elimination of left-turning vehicles into or out of the Project from 102nd Avenue or 124th Street, the City may construct medians along either or both of such highways immediately adjacent to the Project and all costs thereby incurred together with any costs incurred in roadway modifications necessarily incidental to such medians, shall be due and be payable by the Company to the City upon demand therefore.
3.6.1 At the option of the Company or if requested by the City and provided that a lay-by can be constructed without unreasonably interfering with the exit and entrance to the parking facilities, a lay-by may be constructed on 124 Street adjacent to the said lands.
3.6.2 If a lay-by shall be constructed, the Company shall grant an easement and right-of-way to the City over that portion of the said lands immediately adjacent to the lay-by to make provision for a continuous uniform width of sidewalk adjacent to the said lands, such easement to contain provisions permitting the installation and maintenance of power poles or light standards within the right-of-way lands.
3.7 The Company shall provide a detailed plan showing proposed support systems for the excavation of the Project identifying encroachments upon City lands and where the proposed support system has been approved by the City the Company shall execute whatever documentation is reasonably required by the City in order to settle the terms of the construction of the support system upon a Municipal Highway.
3.8 Wherever any backfilling is to be carried out by the Company upon City lands adjacent to the Project, the Company shall provide to the City Engineer density tests carried out by an accredited testing company, such test to be a maximum of twenty-five (25) feet apart along the perimeter of the building and taken at every five (5) feet of lift. Such density tests shall be submitted to the City Engineer within forty-eight (48) hours of testing.
3.9 The Company shall pay to the City the costs, if any, incurred by the City in physically rerouting, relaying, realigning or abandoning any utility, street light, hydrant or service presently existing and adjacent to the Project which costs are made necessary by reason of the development of the Project.
3.10 The Company shall pay to the City all costs of making temporary telephone services available to the site during construction and shall pay all costs necessary to remove or relocate such facilities upon completion of the Project.
3.11 At least thirty (30) days prior to commencement of any work herein authorized, the Company shall submit construction plans and a proposed work schedule to the City Engineer and the General Manager of Edmonton Transit for the City.
Article 4 - Land Requirements
4.1 The Company in consideration of the payment by the City to the Company of the sum of ONE DOLLAR ($1.00) (receipt whereof is hereby acknowledged by the Company) shall upon the date of registration of a roadway plan, convey to the City;
4.1.1 a twenty foot (20') by twenty foot (20') corner cut in the southeast corner of the said Lands to be provided from that portion of the said Lands legally described as:
Plan XXII (R.L. 2)
Block Thirty-three (33)
Lot Eleven (11)
and
4.1.2 the most easterly five (5) feet in uniform width throughout of said Lands;
all as generally shown outlined in yellow on Schedule "B" hereto.
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 arbitration in accordance with the following terms and conditions:
5.1 the party desiring to refer a dispute to arbitration shall notify the other party in writing of the details of the nature and extent of the dispute;
5.2 within seven (7) days of receipt of such notice, the opposite party shall, by written notice, advise the party claiming the dispute of all matters referred to in the initial notice with respect to which that party proposes to take remedial action;
5.3 the terms of reference for arbitration shall be those areas of dispute referred to in the initial notice with respect to which the second party has not agreed to take remedial action;
5.4 the City and the Company shall, within seven (7) days of establishing the terms of reference, 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;
5.5 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 in accordance with the terms of reference therefor;
5.6 a 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 will be the decision of the Committee;
5.7 the decision of the Committee shall be final and binding upon the parties hereto;
5.8 except as hereby modified, the provisions of the Arbitration Act shall apply to the arbitration procedure.
Article 6 - General
6.1 The Company agrees that:
6.1.2 any outstanding municipal taxes against the said Lands shall be paid to the City in full upon execution of this Agreement;
6.1.3 any local improvement charges presently on the tax rolls for the said Lands shall be commuted by the Company upon execution of this Agreement;
6.2 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.
6.3 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 its 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, such insurance shall provide protection in an amount not less than TWO MILLION DOLLARS ($2,000,000.00) 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.
6.4 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. Notwithstanding that any portion hereof may be found to be unenforceable, the remaining portions of this Agreement shall be given full force and effect, excepting that Article 4 shall not survive if any development hereby intended to be authorized shall not be permitted because other provisions hereof may not be lawful.
6.5 Any notices authorized or permitted to be given hereunder may be validly given if sent by pre-paid registered mail addressed as follows:
To the City
c/o Director, Land Coordination Branch
13th Floor, Phipps McKinnon Building
Edmonton, Alberta
or
To the Company
Royce Properties Ltd.
2700 Alberta Telephone Tower
Edmonton, Alberta
or at such other address as may be established by notice properly given hereunder.
6.6 Any monies due and payable by one party to the other hereunder and outstanding for a period in excess of thirty (30) days shall bear interest at the rate of ONE AND ONE HALF PER CENT (1 1/2%) per month for each and every month during which such indebtedness is outstanding from its due date to the date of payment.
6.7 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.
6.8 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.
Article 7 - Acknowledgements
7.1 It is acknowledged and understood by the Company that:
7.1.1 at some time in the future 125th Street and/or the N/S lane between 124th Street and 125th Street may become a one-way street or lane;
7.1.2 at some time in the future through traffic in the N/S lane may be restricted.
and the Company undertakes that it shall not object to either such changes.
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.
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Schedule A - Land Legal Description
Schedule B - Concept Landscape Plans
Schedule C - Concept Plans
Schedule D - Non-Permitted Uses