THIS AGREEMENT made this 31 day of October A.D. 1980
BETWEEN:
THE CITY OF EDMONTON
a Municipal Corporation
(hereinafter called "the City")
- and -
MACLACHLAN & MITCHELL HOMES (1979) LTD.,
(hereinafter called "the Company")
WHEREAS the Company is the registered owner or is entitled to become the registered owner of the following lands located in the City of Edmonton, namely:
Lots 1 and 2, in Block 1, Plan 762 - 0205
Reserving thereout all Mines and Minerals.
(hereinafter called "the development site").
AND WHEREAS the Company applied to the City to rezone the said development site from M-1 Industrial District to CD - 1 Comprehensive Development District;
AND WHEREAS on October 12th, 1978, the Municipal Planning Commission supported the Company's application to rezone the development site from M-1 to CD-1, subject to the terms and conditions of this agreement;
AND WHEREAS the provisions of the Zoning Bylaw, being Bylaw 2135 of The City of Edmonton, Section 35, require that the Company enter into this agreement.
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:
l. The Company agrees that any and all development upon the said development site shall be substantially in accordance with the proposal submitted by the Company to the City on or about September 6, 1978, and with the plans attached hereto as Schedule 11A11 and forming part of this agreement, and without restricting the generality of the foregoing, in the event that a theatre or theatre complex is developed upon the said development site, the said theatre shall be developed in the portion of the site outlined in blue on Schedule "A".
2. In addition to the plans attached hereto as Schedule "A", the Company, prior to the issuance of the development permit or permits for any phase of the development proposed in Schedule 11A11, shall submit detailed plans and specifications to the City of the landscaping to be constructed upon that portion of the development site for which development permits are being sought, including provision of a buffer strip, all of which plans shall be to the satisfaction of the Planning Department of the City, acting reasonably. To ensure compliance with the detailed landscaping plans submitted and approved hereunder, the Company, prior to issuance of a development permit or permits, shall provide to the City a Performance Bond in a form satisfactory to the City Solicitor, acting reasonably, in the amount of Fifty Percent (50%) of the estimated costs of completion of the landscaping, which security shall remain in full force and effect until the landscaping has been completed to the satisfaction of the Planning Department. The City may realize upon the security provided to it by the Company, in the event the Company fails to complete the landscaping in accordance with the detailed landscaping plans, for the purpose of completing the construction and installation of the landscaping as set out in the said plans.
3. The Company, at its sole cost and expense, shall provide all easements and other rights of way as may be required by the City, acting reasonably, for the installation, operation and maintenance of any and all utility services provided to the development site, and shall execute such formal documentation as may be required by the City Solicitor with respect thereto. All costs, including survey costs, legal costs and Land Titles registration fees in respect thereof shall be paid by the Company.
4. The Company hereby undertakes to provide noise attenuation measures along the boundary of the site abutting Calgary Trail and 45th Avenue, in accordance with the plans attached hereto as Schedule 11B11 and forming part of this agreement, and hereby undertakes that the said noise attenuation measures will result in a noise level less than Sixty (60) dba at the first window level of abutting residential units.
5. The Company will provide buffering or screening between the commercial and office component of the proposed development and the residential portion thereof, in accordance with landscaping plans submitted and approved by the City pursuant to paragraph 2 hereof, and shall maintain the same to the satisfaction of the Planning Department of the City, acting reasonably.
6. The Company shall provide tot lots and play areas upon the development site and shown on Schedule 1"A", and shall design, construct, and maintain the same to the satisfaction of the Planning Department of the City, acting reasonably. Without restricting the generality of the foregoing, prior to the issuance of a development permit or permits for the development of any portion of the development site, the Company shall submit to the Planning Department detailed plans showing the proposed design of the tot lots and play areas to be developed in that portion of the site for which application for a development permit or permits is being made, and which tot lots and play areas are to be
·developed in conjunction with that portion of the site in accordance with paragraph 13 hereof.
7. The Company undertakes to provide on the portion of the development site intended for commercial use, as shown on the plans attached as Schedule “A”, a range of commercial and professional office uses as specified in Schedule "C" attached hereto, and forming part of this agreement.
8. As a condition precedent to this agreement, and the execution thereof by the City, the Company, at its sole cost and expense shall prepare a plan of subdivision, and shall apply for approval of the subdivision of the development site, substantially in accordance with the plan attached hereto as Schedule "D".
9. (a) The Company shall provide three (3) park areas as shown on the plans attached as Schedule "A" hereto, and shall develop and maintain said park areas in accordance with the provisions of this paragraph.
(b) Prior to the issuance of a development permit or permits for any portion of the development site, the Company shall submit detailed plans showing the proposed design and development of the park areas to be developed in conjunction with the portion of the site for which development permits are being sought pursuant to paragraph 13 hereof, to the Parks and Recreation Department and the Planning Department of the City for their approval.
(c) The Company shall construct the said parks in accordance with the plans submitted to and approved by the Parks and Recreation Department and the Planning Department, pursuant to subparagraph (b).
(d) The Company at its sole cost and expense shall maintain the park areas to the satisfaction of the Parks and Recreation Department, acting reasonably, and in accordance with such maintenance standards as may be developed from time to time by that Department. In default of the Company's obligation hereunder, the City may undertake the maintenance of such park areas, and recover the cost of so doing from the Company.
(e) It is understood and agreed that the City shall have title to and ownership of the park areas provided hereunder, notwithstanding anything herein contained.
10. (a) The Company shall pay all local improvement charges presently assessed or hereafter assessed in connection with the provision of any any all utility services, and roadways to the development site, including, but not restricted to, any and all connections to City utility lines, and, hereby agrees that any local improvement charges presently assessed against the development site, will be transferred to any parcels created by the registration of a subdivision plan pursuant to paragraph 8 hereof.
(b) In addition to the charges required to be paid by the Company pursuant to subparagraph (a) hereof, the Company hereby agrees that it shall be responsible for and shall pay costs of any roadway modifications, additions, alterations, or extensions arising as a direct result of or necessitatted by the proposed development upon the development site, including, but not restricted, to the installation of a traffic signal at the intersection of 48A Avenue and Calgary Trail, and, if required the closing of a median break presently located at 51st Avenue and 104A Street.
(c) In recognition of the change in zoning of the subject land from M-1 to CD-1 and a consequent change in the storm sewer run off factor, the Company shall pay the following additional charges upon execution of this Agreement.
| for Lot 1 | - $2,876.00 |
| for Lot 2 | - $5,030.50 |
| Total | - $7,906.50 |
(d) The Company shall construct and maintain all sewer and water lines required within the development site at its cost. Should it fail to maintain said sewer and water lines such maintenance may be performed by the City and billed to the Company.
(e) Insofar as sufficient storm sewer capacity to drain the development site now exists, should the Company request a storm sewer connection adjacent to Whitemud Freeway, such connection will be provided by the City at the sole cost and expense of the Company.
11. The Company shall construct, or, at its option, pay for the construction of a bus bay and shelters on the development site, to the standards required by the City, and at a location and in a number to be determined by the City, in the event that bus service becomes available to the said development site.
12. The Company hereby agrees that if a need is demonstrated for day care services in connection with the use of the development site prior to the completion of the project upon the development site in accordance with the plans attached as Schedule “A”, it shall provide a maximum of Twentyfive Hundred (2,500) square feet of space in the office/commercial component of the development, for rental at cost for use for day care facilities.
13. The Company hereby undertakes to commence construction of all portions of the proposed development not later than the fourth year after the passage of the bylaw rezoning the property from M-1 Industrial District to CD-1 Comprehensive Development District, so that the same shall be finished and completed not later than the sixth year after passage of the said zoning bylaw, and without restricting the generality of the foregoing, the Company hereby undertakes and agrees to develop the parks, tot lots, play areas, and berm, on each portion of the site in conjunction with development of that portion of the site for other uses as specified in the plans attached as Schedule "A".
14. The Company hereby agrees to dedicate to the City, those roadways and thoroughfares shown or indicated on Schedule “A” as public roadways, provided however, that the Company shall construct and maintain all roadways, including public roadways, and roadways retained in the name of the Company, within the development site to the standards required by the City. In the event that the Company fails to maintain as required hereunder, the City may undertake such maintenance, at the sole cost and expense of the Company such cost and expense may be recovered in the same manner as taxes assessed pursuant to the provisions of the Municipal Taxation Act, and may be added to the tax roll as a charge against the land.
15. The Company acknowledges and agrees that nothing herein contained shall obligate or intends to obligate the City to rezone the said development site to CD-1 Comprehensive Development District.
16. It is understood and agreed by the parties hereto that this agreement is subject to approval of the subdivision, substantially in accordance with the plan attached hereto as Schedule “D”, and approval pursuant to the provisions of the Planning Act of an amendment to the Preliminary Regional Plan - Metropolitan Park to permit the rezoning of the said development site to CD-1 Comprehensive Development District. In the event that the conditions herein specified are not satisfied, the zoning of the development site shall revert to M-1 Industrial District.
17. The Company acknowledges and agrees that the terms and conditions herein contained are covenants running with the lands located within the development site and are 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 lands in the development site or any part thereof, so that the said covenants shall run with the land or development site, 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, and the City may file a caveat to protect its interests herein, provided always that such caveat shall cease and determine when all conditions 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 Titles Office for the purpose of financing any construction or development on or within the development site. The City further agrees to discharge such caveat upon demand, against the lands on or within the development site, or such portion thereof, when all conditions contained herein have been satisfied as relating to the lands within the development site or such portion thereof.
IN WITNESS WHEREOF the parties hereto have hereunto set their hand and seal at the City of Edmonton, in the Province of Alberta, the day and year first above written.
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