Address 12720 - 111 Avenue
Legal Description: Plan 782-2455, Lots 1 and 2
THIS AGREEMENT made in quadruplicate this 17th day of December, A.D. 1976
BETWEEN:
THE CITY OF EDMONTON
a Municipal Corporation
(hereinafter called "the City")
OF THE FIRST PART
- and -
ST. ANDREW'S HOUSING LIMITED
a Body Corporate
(hereinafter called "the Company")
OF THE SECOND PART
1. WHEREAS the Company is the registered owner or is entitled to become the registered owner of those lands situate in the City of Edmonton, in the Province of Alberta and legally described as:
(a) Lots Four (4), Five (5) and Six (6) in Block 8, Plan LX
(b) Lots Thirteen (13), Fourteen (14) and Fifteen (15) in Block 3, Plan LX
(c) Lots Sixteen (16) and Seventeen (17) in Block 3, Plan 1450 NG
(d) Part of Lot E, Block 8, Plan 892 A.J.
and generally being those lands shown outlined in red on Schedule "A" annexed hereto (hereinafter called the "Company lands");
2. WHEREAS the City is the owner of those lands shown outlined in blue on Schedule "A" annexed hereto and being part of that highway municipally known as the St. Albert Trail (hereinafter called the "said highway");
3. WHEREAS the Municipal Planning Commission of the City recommended the closure of the said highway subject to the Company registering a consolidated plan of subdivision for the said lands at the North Alberta Land Registration District;
4. WHEREAS the Municipal Council of the City at its regular meeting held on the 11th day of JANUARY, A.D. 1977 duly passed Bylaw 4512 a copy of which is annexed hereto as Schedule "B", for the closure of the said highway;
5. WHEREAS the Company has made application to the City for the purchase of the said highway;
6. WHEREAS the Municipal Council of the City has approved the sale of the said highway to the Company on the terms and conditions as hereinafter set forth;
7. WHEREAS the Company has made application to the City for the development of a Senior Citizen's Centre (hereinafter called the "project") upon the Company lands and the said highway (the Company lands and the said highway hereinafter jointly referred to as the "said lands");
8. WHEREAS the development of the project necessitates the rezoning of the said lands;
9. WHEREAS the Municipal Council of the City at its regular meeting held on the 11th day of January, A. D. 1977 duly passed Bylaw 4669, a copy of which is annexed hereto as Schedule "C", which Bylaw rezoned the said lands from RC-1 and R-4 to CD-1;
10. AND WHEREAS it was a condition of the passage of Bylaw 4669 that the Company enter into this agreement with the City;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual and other covenants herein contained the parties hereto covenant and agree each with the other as follows:
Article 1
In consideration of the sum of One Dollar ($1.00) now paid by the City to the Company, receipt of which 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 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, filed by way of caveat, pursuant to the provisions of the Planning Act, being Chapter 276 of the Revised Statutes of Alberta, 1970, and the City may file a caveat to protect its interest herein; provided always that the covenants shall cease and determine when all conditions contained herein have been satisfied. The City agrees to absolutely postpone such caveat in favour of a mortgage or mortgages registered at the North Alberta Land Registration District for the purposes of financing any construction or development on or within the said lands. The City agrees to discharge such caveat, upon demand, against the said lands, or such portion thereof when all conditions contained herein have been satisfied as relating to the said lands or such portion thereof.
Article 2
Upon execution hereof and upon title to the said highway vesting in the name of the City, after the closure of the said highway, the City shall sell to the Company the said highway upon the following conditions:
(a) as a condition precedent to the City providing to the Company a registrable transfer to the said highway, the Company shall pay to the City a sum to be calculated by multiplying the price per square foot as set by the Municipal Council for the City, and being $3.50 per square foot, by the actual number of square feet lying within the said highway, such number of square feet to be determined upon the title to the said highway vesting in the name of the City;
(b) as a further condition precedent to the City providing to the Company a registrable transfer to the said highway, all plans and specifications referred to in Article 3 below shall have been submitted by the Company to the City and shall have been as approved by the appropriate City authority, specified in Article 3 below;
(c) upon submitting the transfer to the North Alberta Land Registration District for registration, the Company shall submit to the North Alberta Land Registration District a consolidated plan of subdivision for the said lands, such plan to be substantially in accordance with the plan annexed hereto as Schedule "D", to the intent that the existing church building upon the said lands shall be wholly within proposed Lot 1 and the project shall be wholly within proposed Lot 2, with the exception of an access to be constructed between the project and the existing church building.
Article 3
Upon execution hereof the Company shall commence through to completion the construction of the project substantially in accordance with the plans and specifications attached hereto as Schedule "E" and without limiting the generality of the foregoing the following shall apply;
(a) the Company shall provide detailed plans and specifications of the cul-de-sac to be constructed on those lands shown outlined in green on Schedule "D" annexed hereto and without limiting the generality of the foregoing the Company shall provide detailed plans and specifications of the aforementioned cul-de-sac detailing the alignment, grade and landscaping, all of which are subject to the approval of the City Engineer acting reasonably. The City shall construct the cul-de-sac and the costs incurred thereby by the City shall be borne solely by the Company, such costs presently estimated at Fifty Thousand Dollars ($50,000.00) and, prior to the City commencing construction and upon the City making demand therefore, the Company shall pay to the City the aforementioned sum of Fifty Thousand Dollars ($50,000.00) and upon completion of construction of the cul-de-sac any costs incurred by the City in excess of the aforementioned sum of Fifty Thousand Dollars ($50,000.00) shall be paid by the Company to the City and in the event that the cul-de-sac is constructed for a lesser cost, the City shall refund any monies owing to the Company;
(b) the Company will provide, for the approval of the Manager of Edmonton Transit, detailed plans and specifications of a bus shelter to be constructed upon proposed Lot 1, and generally in that location shown shaded in orange on Schedule "D" annexed hereto and the Company, at its sole cost and expense, shall construct and maintain such bus shelter during the life of the project; the Company shall further provide, in a form to the approval of the City Solicitor, acting reasonably, an easement and right-of-way and generally to be in the form annexed hereto as Schedule "F" across proposed Lot 1, to the intent that users of the public transportation systems of the City shall have free and uninterrupted access to such bus shelter and further granting the right to the City to go upon Lot 1 and maintain the bus shelter, in default of the Company maintaining the bus shelter;
(c) the Company shall provide detailed plans and specifications, to the approval of the Development Officer, acting reasonably, of the size and location of all parking stalls. The Company further agrees to provide during the life of the project parking facilities to a minimum of forty (40) stalls for the use of The Catholic Archdiocese of Edmonton and in particular the Roman Catholic Parish of St. Andrew's, and shall submit plans showing the location of such forty (40) parking facilities;
(d) the Company shall provide to the approval of the Development Officer of the City detailed plans and specifications of the proposed recreation space that is to be located within the project.
Article 4
The Company, shall pay to the City, all costs incurred by the City in relation to the physical closure of the said highway and without limiting the generality of the foregoing this shall be deemed to include all costs incurred by the City in relocating the said highway and the related curbs, gutters, street lighting and walkways. The Company shall also pay to the City upon demand, the costs incurred by the City in relocating any trees presently located upon the said highway, such costs of relocating the trees presently estimated to be Two Thousand, Five Hundred Dollars ($2,500.00).
Article 5
The Company further acknowledges and agrees that:
(a) there shall be no vehicular access from the project to the lane lying to the west of 127th Street or to the lane south of 112th Avenue, and generally being those lands shown outlined in blue on Schedule "D" annexed hereto;
(b) the lane to the east of 129th Street and generally being that lane shown shaded in blue on Schedule "D" annexed hereto is to be paved a full width at the sole cost and expense of the Company and, without limiting the generality of the foregoing, the portion of such costs that would normally be charged to the lots lying outside the said lands and abutting upon such lane shall be paid by the Company; and may, at the option of the Company, be amortized over the time period as permitted by the Uniform Unit Rate Bylaw as such Bylaw relates to paved lanes;
(c) access to the said lands from the municipal highway known as 111th Avenue will be restricted to one point of ingress and one point of egress;
(d) the Company, being the registered owner of the said lands, being all those lands benefiting by the installation of certain local improvements, hereby petitions the Municipal Council of the City pursuant to Section 152 of the Municipal Taxation Act, being Chapter 251 of the Revised Statutes of Alberta, 1970, to undertake the construction and installation of pavement upon those lands mentioned in (a) above and upon registration of the consolidated plan of subdivision as described in Article 2 hereof and upon completion of construction of the project the City may commence and carry through to completion the construction and installation of such pavement without undue delay and in accordance with sound engineering practices and existing City standards at the date of construction of such pavement; and the costs to the City of the aforementioned pavement shall be collected by the City through the Uniform Unit Rate Bylaw in force in the year of commencement of construction of the pavement such assessment to be placed on the tax rolls and may, at the option of the Company be amortized according to the terms of the Uniform Unit Rate Bylaw.
Article 6
The Company acknowledges and agrees that the proposed Lot 2 within the said lands will be subject to an assessment for storm sewers, such assessment to be based on the Uniform Unit Rate Bylaw in force in the year that application is made for a service connection. The Company further acknowledges and agrees that if the project requires an interior sprinkler system, the lands will be subject to a further assessment for water service, such assessment to be based upon the Uniform Unit Rate Bylaw in effect in the year of construction of the project.
Article 7
The Company shall provide detailed plans and specifications to the approval of the Development Officer of the City, acting reasonably, of the landscaping to be constructed and installed on or within the said lands and the Company shall maintain such landscaping for the life of the project. In order to secure performance of the landscaping provisions as herein set out, the Company upon execution hereof, and as a condition precedent to the execution hereof by the City, shall provide to the City, in a form to the approval of the City Solicitor, acting reasonably, an irrevocable letter of credit or other financial guarantee in the amount of fifty percent (50%) of the estimated cost of construction of landscaping; and, in default of the Company completing, constructing or maintaining such landscaping, the City shall be entitled to enter upon the said lands and complete, construct or maintain such landscaping and to call upon such security; provided further, that any and all costs incurred thereby by the City shall be at the sole expense of the Company.
The aforementioned security shall remain in full force and effect until the expiration of One (1) full growing season (a growing season is hereby deemed to mean that period of time commencing on October 1st of any given year and ending on September 30th of the following year) from the date of issuance of a Construction Completion Certificate for maintenance.
In the event that, at any time during the life of the project, the Company shall not maintain such landscaping to the satisfaction of the Development Officer of the City, the City shall be entitled to enter upon the said lands and do whatever the City, acting reasonably, deems requisite to maintain the landscaping, and the costs incurred thereby by the City shall be borne by the Company and such costs may, at the discretion of the City, be placed upon the tax rolls for the said lands and be collected in the like manner as the City collects other municipal taxes pursuant to the provisions of the Municipal Taxation Act, being Chapter 251, Revised Statutes of Alberta, 1970, and amendments thereto.
Article 8
8.1 The Company acknowledges and agrees that an advisory committee shall be selected by the Company from the following groups and services:
(a) two representatives from the residents of the project;
(b) two representatives from senior citizens residing within the community surrounding the project; such community now deemed to be that area within the area having as:
(i) a southerly boundary, the highway municipally known as 107th Avenue;
(ii) an easterly boundary, the highway municipally known as 121st Street;
(iii) a northerly boundary, the highway municipally known as 118th Avenue; and
(iv) a westerly boundary, the highway municipally known as Groat Road
(c) two representatives from the neighborhood groups in the area as set out in (b) above;
(d) one representative from St. Andrew's Parish Council; and
(e) one representative from the Company to give advice to the Company as to the demand and use of the recreation space and dining space in the project. The Company further acknowledges and agrees that no charge will be made against the residents of St. Andrew's for use of the recreation space and any charges made to other groups shall be such to ensure that the recreation space is self-supporting but shall not be to the extent that a profit is made.
8.2 The Company acknowledges and agrees that any recreation space and any dining facilities to be located within the project shall be made available not only to the residents of the project but also to Senior Citizens residing within the surrounding communities; provided further that the Company shall be entitled to determine the hours of access to such areas for other than residents of the project to ensure the safety and comfort of the residents of the project.
Article 9
The Company acknowledges and agrees if the Company has not applied for and received a development permit within one (1) year from the date of passage of Bylaw 4669 by the Municipal Council of the City, the said lands shall revert to the zoning in force at the time immediately prior to the passage of Bylaw 4669.
Article 10
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:
(a) the party desiring to refer dispute for arbitration shall notify the other party in writing of the details of the nature and extent of the dispute;
(b) within seven (7) days of 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 except those for which the party admits responsibility and proposes to take remedial action and such party shall then take such remedial action;
(c) 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 admitted or proposed to take remedial action to the satisfaction of the first party;
(d) the City and the Company shall, within seven (7) days of the establishment of the terms of reference pursuant to (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 the two (2) arbitrators fail to appoint a Chairman, then both parties or either of them may apply to a Justice of the Supreme Court of Alberta to have the Chairman appointed;
(e) if either party fails to appoint an Arbitrator within the seven (7) day period outlined in (d) above then the Arbitrator appointed by the one party shall be deemed to be the Arbitration Committee and the decision of such Arbitrator shall be binding upon the parties hereto;
(f) 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 accorded in the terms of reference therefore;
(g) 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;
(h) the decision of the Arbitration Committee shall be binding and final upon the parties hereto;
(i) the costs of the Arbitration Committee shall be determined by the Arbitration Committee;
(j) except as hereby modified, the provisions of the Arbitration Act of Alberta shall apply to the arbitration procedure.
Article 11
The Company agrees to indemnify and save harmless the City from all claims, demands, action, costs, charges and expenses of any kind or nature for which the City may become liable or which the City may by reason of any actions of the Company taken on the authority of this Agreement or by reason of any injury occasioned to or suffered by any person or persons or any property by reason of any act, neglect, or default on the part of the Company, its employees, agents or independent contractors in relation hereto.
Article 12
Any and all amounts owing by one party to the other shall, thirty (30) days after the date of invoicing of one party by the other and until the date of payment, bear interest at the rate of one and one-half per cent (1 1/2%) per month until the date of payment.
Article 13
Any notice or other communication required or authorized to be given under this Agreement shall be sent by prepaid registered mail
addressed to the City at:
Director, Realty Development
8th Floor, City Hall
EDMONTON, Alberta
T5J 2R7
and to the Company at:
c/o 601 Chancery Hall
EDMONTON, Alberta
T5J 2E2
and all such notices shall be deemed to have been received upon the second day after mailing. Either party hereto may change its mailing address by providing the other party with notice of such change and such change shall be effective seven (7) days after receipt of the notice by the other party. In the event of a mail disruption notices may be hand delivered to the aforementioned addresses.
Article 14
Whenever the singular and masculine or neuter are used throughout this Agreement, it shall be construed as if the plural, neuter and masculine had been used where the context or the party or parties hereto so require, and the rest of the sentence shall be construed as if the necessary grammatical and terminological changes thereby rendered necessary had been made.
Article 15
Each of the parties hereto shall execute and deliver to the other all such further assurances and documents which may be deemed necessary by the Solicitors for either of them, acting reasonably, to give full force and effect to this Agreement according to the true intent and meaning hereof.
This Agreement shall enure to the benefit of and be binding upon the parties hereto, their heirs, successors and assigns respectively.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals by their proper officers on that behalf on the day and year first above written.
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Schedules
Schedule A - Proposed Road Closure
Schedule B - Bylaw 4515
Schedule C - Bylaw 4669
Schedule D - Proposed Subdivision
Schedule E - Site Plans
Schedule F - Agreement between City of Edmonton, St. Andrews Housing Ltd. and Catholic Archdiocese
Other Document