Address 12420 - 104 Avenue
Legal Description: Plan 3328 R.S., Blk. 31, Lot 1
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 -
UNITED MANAGEMENT LTD.
(hereinafter called "the Developer")
OF THE SECOND PART
WHEREAS the Developer is the registered owner of the following lands located in the City of Edmonton, namely:
LOT ONE (1), BLOCK THIRTY-ONE (31), PLAN 3328 R.S. CONTAINING ONE AND THIRTY-FOUR HUNDREDTHS (1.34) ACRES MORE OR LESS (EDMONTON)
(GROAT ESTATE RIVER LOT 2, EDM. SETT.)
EXCEPTING THEREOUT ALL MINES AND MINERALS
AND WHEREAS the Developer wishes to develop that part of the aforesaid lands shown outlined in red on Page One of Schedule "A" attached hereto and forming part hereof, which part is hereinafter called the "Development Site";
AND WHEREAS the Developer has made application to the City of Edmonton to rezone the said Development Site from RC-1 and C-2A to CD-1 Comprehensive Development District;
AND WHEREAS Council at its meeting of June 24, A.D., 1980, gave first and second reading to By-Law 6002, being a bylaw to amend the Zoning Bylaw from RC-1 and C-2A to CD-1 Comprehensive Development as it applies to the Development Site;
AND WHEREAS at its meeting of June 24th, A.D. 1980, Council required that prior to third reading of the proposed Bylaw 6002, the Developer enter into this Agreement;
AND WHEREAS the Developer has agreed to enter into this Agreement.
AND WHEREAS City Council at its meeting of July 3, 1980 gave third reading to a new Land Use Bylaw, and Bylaw 6135 will be equivalent to Bylaw 6002 and the designation CD-1, RC-1 and C-2A are equivalent to the designations DC2, RF3 and CB1 respectively and this Agreement shall apply to By-Law 6135 and the aforesaid new designations mutatis mutandis;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the sum of One ($1.00) Dollar now paid to the City by the Developer and in consideration of the City rezoning the said Development Site from RC-1 and C-2A to CD-1 Comprehensive Development District, and in consideration of other good and valuable consideration, the parties hereto, for themselves, their successors and assigns, hereby covenant and agree as follows:
Article 1 – Development of the Development Site
1.1 The Developer shall construct any and all developments upon the Development Site substantially in accordance with the plan submitted to and approved by the Development Officer and substantially in accordance with the plans attached hereto as Schedule "A" and forming part of this Agreement.
1.2 Without restricting the generality of Article 1.1 hereof, the Developer hereby agrees that:
(i) the uses of the said Development Site shall be restricted to those listed in Schedule "B" attached hereto and forming part of this Agreement; and
(ii) where parking stalls are required for any use proposed to be developed within the Development Site, the total number of parking stalls required having regard to each use of the development on the Development Site shall meet the requirements of Section 12 of Zoning Bylaw 2135.
1.3 The Developer hereby agrees that no changes shall be permitted to the plans attached as Schedule "A" except as follows:
(1) Such minor revisions as may be required by the Building Inspection Branch of the By-Law Enforcement Department of the City of Edmonton to ensure conformity with the Building Code;
(2) Minor changes that may be required by the City for the express purpose of complying with any existing statutes, bylaws, regulations or City policies, which would be violated by strict interpretation of the plans attached hereto as Schedule "A"; PROVIDED HOWEVER, the General Manager of the Planning Department of the City, acting reasonably, shall be the sole judge as to what constitutes a minor revision.
1.4 The Developer shall obtain a Development Permit for the construction of the development upon the said Development Site in accordance with the plans attached hereto as Schedule "A" within one (1) year of the date of the third reading of Bylaw 6002.
Article 2 - Landscaping
2.1 Prior to the issuance of the development permit or permits authorizing the construction of the project to proceed above grade, the Developer shall submit detailed plans and specifications of the landscaping to be constructed and installed upon the Development Site, all of which plans shall be to the satisfaction of the Development Officer, acting reasonably, ad upon approval thereof by the Development Officer, shall be attached to and form part of this Agreement.
2.2 (a) The parties acknowledge that in conjunction with the proposed development on the Development Site, a mini-park will be developed on those lands outlined in yellow on Schedule "C" attached hereto and forming part hereof, and that the City owns that part of the mini-park outlined in red thereon (hereinafter called the "City mini-park land") and the Developer owns the remainder (hereinafter called the "Developer mini-park land").
(b) In the event that City Council shall determine that the Developer shall be responsible for the design and construction of the mini-park, but not the maintanence of the City mini-park land, section 2.3 shall come into force and effect excepting that:
(i) All references therein to maintenance by the Developer of the City mini-park land shall be deemed deleted therefrom;
(ii) In section 2.3(b) the words "mini-park" shall be deleted and the words "Developer mini-park land" inserted therein;
(iii) Section 2.3(g) shall be deemed deleted therefrom;
and the City shall maintain the City mini-park land to current City park standards.
(c) In the event that City Council shall determine that the Developer shall be responsible for the landscape design fees only for the said mini-park, wherever the term "mini-park" appears in sections 2.3(a), (b) and (d) to (g) inclusive, it shall be deleted therefrom and the words "Developer mini-park land" shall be inserted therein, provided always that the Developer shall be responsible for and pay all costs associated with the landscape design of the entire mini-park.
(d) In the event that City Council shall determine that the City shall be responsible for and pay for design, construction and maintenance of the park on the City mini-park land, the City covenants and agrees to comply with such resolution and whenever the term "mini-park" appears in the section 2.3, it shall be deleted therefrom and the words "Developer mini-park land" shall be inserted therein.
2.3 (a) The Developer shall be solely responsible and pay all costs associated with the design, construction and maintenance of the mini-park including but not limited to supplying and laying sod in the said mini-park, supplying and planting all trees and shrubs in the said mini-park, supplying and installing hard landscaping and laying necessary bikeways and footpaths eight (8) feet in width and bollards at the terminus thereof in the said mini-park, supplying paraplegic ramps at the curb crossings, supplying and installing aesthetic lighting, and conversion of existing street lighting to lighting suitable for park purposes within the said mini-park.
(b) The Developer shall maintain the said mini-park to current City park standards;
(c) The Developer shall provide detailed landscaping plans for the said mini-park for the approval by the Development Officer, such approval not to be unreasonably withheld;
(d) To secure compliance with the said detailed plans specifications for the said mini-park prior to issuance of the Building Permit authorizing the construction of the project to proceed above grade, the Developer shall provide a performance bond or letter of credit to the City, in a form satisfactory to the City's solicitor acting reasonably, in an amount equal to One Hundred (100%) per cent of the estimated cost of completing the said landscaping, providing that such security shall be reduced to Twenty-Five (25%) per cent of the actual cost of the said landscaping forthwith upon substantial completion thereof and such security shall thereafter remain in force and effect for a period of Two (2) years following completion; PROVIDED THAT if the Developer is in default of its obligations in relation to such landscaping, the said security may be realized upon by the City for the purpose of completing all or any portion of the landscaping on the said mini-park, or to restore or repair same or to remedy any defects in the installation thereof;
(e) Forthwith following approval of the said plans, the Developer shall provide to the City an estimate of the cost for the landscaping of the said mini-park prepared by an independent agency skilled in landscaping, based on the detailed approved plans;
(f) There shall be no changes in grades on the said mini-park exceeding one (1) foot without the approval in writing of the General Manager of Edmonton Water and Sanitation within twenty (20) feet of the existing water lines, existing valves, or water hydrants in final locations;
(g) The City may, at its own cost and expense, and from time to time, alter the landscaping design and recreational amenities located on the City mini park land so long as such alterations shall not cause any material or significant additional maintenance costs to the Developer.
Article 3 - Access
3.1 The Developer agrees that any and all access to all or any portions of the Development Site shall be as provided in this Article 3.
3.2 The Developer shall provide access to the lands and premises adjacent to the Development Site legally described as:
LOT TWO (2), BLOCK THIRTY-ONE (31) PLAN 3328 R.S.
EXCEPTING THEREOUT ALL MINES AND MINERALS
by way of easement over those lands shown outlined in blue on Schedule "C" attached hereto and forming part hereof.
3.3 The parties hereto agree that there shall be all directional access to the Development Site substantially as shown on Schedule "A".
3.4 The Developer covenants and agrees that the tenants of the Development to be constructed upon the Development Site pursuant to the terms of this Agreement, their servants, agents and invitees, shall have the right, in common, to use the private laneway shown outlined in green on Schedule "C" for ingress and egress to the Development.
Article 4 – Roadway Modifications
4.1 The Developer shall pay the cost of all roadway modifications, extensions, alterations and construction required by or occasioned specifically and solely by the development to be constructed upon the Development Site or the mini-park site pursuant to the terms of this Agreement, including, but not restricted to, filling in unutilized curb crossings and the repair or replacement of sidewalks, curbs, gutters and drainage (if necessary), street lighting and fire hydrants, all adjacent to the Development Site, or the said mini-park, all to the satisfaction of the City Engineer, acting reasonably, including, but not limited to the following:
(i) the curb crossing for access to the Development Site from 125th Street;
(ii) curb crossings for the access to the Development Site from 104th Avenue;
(iii) modification of the existing access to the Development Site off 125th Street,
all as shown on Schedule "A" attached hereto.
4.2 In addition to those costs specified in Article 4.1 hereof, the Developer shall construct and maintain any and all internal roadways required upon the Development Site, it being acknowledged and agreed that under no circumstances shall costs of such internal roadways be the responsibility of the City in any manner whatsoever, whether as to construction or maintenance.
Article 5 - Land Requirements
5.1 The Developer shall dedicate to the City for the purpose of future widening Stony Plain Road the following land, namely:
ALL THAT PORTION OF LOT ONE (1), BLOCK THIRTY-ONE (31),
PLAN 3328 R.S.
EXCEPTING THEREOUT ALL MINES AND MINERALS.
shown outlined in orange on Schedule "C" attached hereto.
5.2 This Agreement is conditional upon the closure of those portions of 104th Avenue and Wadhurst Road referred to in bylaw 6018 on or before the 8th day of July, A.D. 1980, and the designation of such lands as park. In the event that this condition is not fulfilled on the date specified above, or on such later date as the parties by mutual agreement shall specify, this Agreement shall be null and void and of no further force and effect.
Article 6 - Relocation of Existing Utilities and Services
6.1 (a) The Developer covenants and agrees to extend, alter construct or re-locate, or pay for the extension, alteration, construction or relocation of those services and utilities existing at the date hereof which must be extended, altered, constructed or re-located solely as a result of the development to be constructed on the Development Site or mini-park pursuant to the terms of this Agreement. The design, construction and scheduling of the works referred to in this paragraph 6.1(a) shall be to the satisfaction of the City Engineer acting reasonably.
(b) The Developer shall pay to the City Fifty (50%) per cent of the estimated cost of the re-location of those utilities and services which shall be re-located by the City (hereinafter called the "Advance Payment") prior to the commencement of any work by the City or its servants or agents with respect thereto, and the Developer shall pay to the City, after the City has credited on account to the Developer the Advance Payment, the balance of the cost of such re-location within thirty (30) days of invoicing by the City, invoices to be rendered monthly, from time to time, as work progresses.
6.2 (a) The Developer covenants and agrees to provide to the City an easement for sewer utility services in a form satisfactory to the City solicitor, acting reasonably, under those portions of the Development Site shown outlined in yellow on Schedule "D".
Article 7 - Taxes
7.1 (a) The Developer covenants and agrees to pay all outstanding taxes levied by the City of Edmonton in respect of the Development Site, owing to the City at the date of execution of these presents, on execution by the City of these presents.
(b) The Developer shall commute any existing local improvement charges on the tax rolls in respect of the Development Site on execution by the City of these presents.
Article 8 - Arbitration
8.1 In the event of a dispute 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:
(a) The party desiring to refer the dispute for arbitration shall notify the other party in writing of the nature and extent of the dispute;
(b) 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;
(c) The terms of the 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;
(d) The City and the Developer shall, within seven (7) days of the establishment of the terms of reference pursuant to Article 8.1(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, 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;
(e) 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 therefor;
(f) 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 8.
(g) The decision of the Committee shall be binding and final upon the parties hereto;
(h) Except as hereby modified, the provisions of The Arbitration Act, of Alberta, shall apply to the arbitration procedure.
Article 9 - General
9.1 This Agreement is not intended to nullify, replace, circumvent, extend, or modify any existing statutes, by-laws, permit conditions or general requirements which govern development or construction within the City.
9.2 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 6002, or any other zoning amendment bylaw, or any road closure by-law, provided however, it is understood and agreed that this Agreement is conditional upon such rezoning and in the event that the Development Site is not rezoned by the 8th day of July, A.D., 1980, to permit the development of the Development Site in accordance with the terms of this Agreement, this Agreement shall be null and void and of no further force and effect.
9.3 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 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.
9.4 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 provisos 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 absolutely postpone such caveat in favour of a mortgage or mortgages to be registered at the North Alberta Land Titles Office, for the purpose of financing or refinancing any construction or development upon the Development Site in accordance with the provisions of this Agreement.
9.5 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.
9.6 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.
9.7 In the event that the Developer shall sell, transfer or assign a substantial part or all of its interest in the Development Site, or buildings thereon, it shall have the right to assign all of its rights and obligations pursuant to this Agreement to the purchaser, transferee or assignee of the aforesaid interest, with the prior consent in writing of the City, such consent not be unreasonably withheld, and the Developer shall thereupon be released from any and all obligation to the City hereunder.
9.8 Any and all amounts owing by one party to the other pursuant to the terms hereof shall, thirty (30) days following the date of invoicing of one party to the other and until the date of payment, bear interest at the rate of One and One Half (1½ %) percent per month (being Eighteen (18%) per cent per annum) until the date of payment.
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.
Schedules
Schedule A - Site Plans
Schedule B - Interior Map of Uses
Schedule C - Landscape Concept Plans
Schedule D - Utility Easement Map