Address 10611 - 98 Avenue
Legal Description: Plan B, Blk 6, Lots 97-99
THIS AGREEMENT made this 7TH day of September A.D. 1982.
BETWEEN:
THE CITY OF EDMONTON
a Municipal Corporation
(hereinafter referred to as "the City")
OF THE FIRST PART
- and –
INTRAWEST PROPERTIES LTD.
a Company incorporated to the laws of
the Province of Alberta
(hereinafter referred to as "the Company")
OF THE SECOND PART
WHEREAS Intrawest Properties Ltd. is the registered owner, of lands lying within the City of Edmonton, in the Province of Alberta, legally described as Lots 97, 98 and 99, Block 6, Plan B (Hudson's Bay Reserve) (hereinafter referred to as "the Company lands"); and
WHEREAS the City is the registered owner of the lands bordering the Company lands and described and known as 98 Avenue and 106 Street, (hereinafter referred to as "the said highways"), and outlined in black on Schedule "A" attached hereto; and
WHEREAS Intrawest Properties Ltd. proposes to construct on the Company lands a 16 storey residential and commercial building with three levels of underground parking, and has retained the Company for the purposes of constructing such building; and
WHEREAS Section 176 of the Municipal Government Act provides, in part, that Council may grant to certain persons the privilege of excavating under public highways, subject to certain terms and conditions which Council may impose; and
WHEREAS the City has agreed to allow the required encroachments by construction of temporary backsloping in the area shown outlined in yellow and tiebacks in the area shown outlined in red, on the plans attached hereto as Schedule "A", upon the terms and conditions herein provided;
NOW THEREFORE THIS AGREEMENT witnesseth that in consideration of the mutual and other covenants hereinafter set forth, the parties hereto covenant to agree each with the other as follows:
Article 1 - Backsloping and Tiebacks
1.1 The City hereby grants to the Company, its agents, employees and independent contractors a license to occupy the lands outlined in yellow on Schedule "A" attached hereto, and encroaching 6.5 metres onto 106 Street, and the top 1.75 metres of that excavation which will encroach 1.75 metres onto the lane west of 106 Street, and the top 1 meter of that excavation which will encroach onto 98 Avenue, all adjacent to the Company lands in order to provide a temporary backslope for construction project excavations during the construction period and to occupy indefinitely portions of the subsurface commencing 1.75 metres below the surface of the lane west of 106 Street and 1 metre below the surface of 98 Avenue, adjacent to the Company lands, with tiebacks upon the terms, conditions and covenants herein contained to be performed or observed by the Company.
1.2 (a) Prior to the commencement of the construction of the backslope, the Company shall provide detailed engineering drawings and specifications of the required sloping, including plans of the location and proposed support of all utility lines or other structures, within, under, near, or in the said highways, to the approval of the City Engineer, and shall do any work required by him for the protection of utility lines or other structures at their sole expense.
(b) The Company shall notify Edmonton Power of the proposed construction, and carry out whatever procedures are required by Edmonton Power to protect or relocate light standards and other related equipment, at the Company's expense, payment for such work to be made to Edmonton Power before any work described herein is commenced.
(c) The Company shall assume sole responsibility for determining the location of all utilities or other structures, and shall not hold the City liable by the City's acceptance or approval of any plans or drawings whatsoever.
(d) (i) Upon completion of the sloping construction, the Company shall restore or replace the said highways and the sidewalks, curbs and gutters lying within the said highways, to the approval of the City Engineer, to the standards then in effect for the City of Edmonton for the said highways, sidewalks, curbs and gutters. To secure compliance with the terms of this Article, the Company, or its contractor or agent, upon execution of this Agreement, shall provide to the City, in a from satisfactory to the City Solicitor, a performance bond or an irrevocable letter of credit form a chartered bank or other financial institution carrying on business within the Province of Alberta, security in the amount of Twenty Five Thousand Dollars ($25,000.00), and in the event of default by the Company in compliance with the terms herein, the City shall be able to call upon such security to complete restoration of the said highways, sidewalks,. curbs and gutters.
(ii) In the event that the Company determines that it will not comply with Article 1.2(d)(i) above, the Company shall notify the City of such intention sixty (60) days prior to the said highways being ready for restoration, and the City shall do such restoration at the sole expense of the Company, and the Company shall pay to the City the costs thereof within fifteen (15) days after the City invoices the Company for the reasonable costs incurred by the City under the circumstances in such restoration.
(iii) If the Company completes the restoration in accordance with Article 1.2(d)(i) above, the Company shall unconditionally guarantee all restoration or other work in, on or under the said highways carried out by it or under its direction for a period of two (2) years from the date of completion of the said work. The Company shall immediately advise the City of the date of completion of the said work upon its completion.
(iv) The City shall make whatever inspection or demand whatever tests from the Company it deems necessary relating to the work done by the Company or its agent, pursuant to this Article, at the sole expense of the Company, provided such expense incurred by the City is reasonable under the circumstances.
(e) The Company shall cause the restoration work described above to be completed on or before November 30, 1983 or such later date as the parties may agree on.
1.3 The Company hereby covenants and agrees with the City as follows:
(a) Prior to commencing construction of tiebacks, the Company shall supply to the City Engineer scale drawings of the proposed location of all tiebacks, together with such other drawings as the City Engineer may require, such drawings to be subject to the approval of the City Engineer, and subject to such modifications or alterations as the parties hereto may agree upon.
(b) The Company shall not commence construction of tiebacks until the written approval of the City Engineer to the said drawings has first been obtained.
(c) The tiebacks shall be constructed strictly in accordance with the said drawings as approved.
(d) If deviations in construction of the tiebacks from the said drawings are required by the Company, the Company shall first obtain the approval of the City Engineer.
(e) The tiebacks shall be constructed by drilling only, it being understood that none of the tiebacks shall be driven.
(f) (i) The Company shall take all necessary precautions to and shall protect all existing utility and natural gas lines or other structures, whether privately or publicly owned, located on or under the said highways and thereafter the Company shall immediately repair or cause to be repaired the damage under the supervision and direction of the City Engineer at the sole expense of the Company.
(ii) The City has the right to make whatever inspections or demand whatever tests from the Company it deems necessary at the sole expense of the Company.
(g) Upon completion of the construction project, the Company shall:
(i) Supply to the City Engineer a certificate from an independent professional engineer certifying that the tiebacks are in accordance with the terms and conditions hereof, together with scale drawings showing the tiebacks as actually constructed; and
(ii) Supply a certificate of an Alberta Land Surveyor that there are no encroachments on City land not authorized by this Agreement or any other agreement between the parties hereto; and
(iii) Release the tension on all tiebacks and remove steel rods from all tiebacks.
1.4 The Company shall have sole responsibility for determining the exact location of all utilities or other structures by inspection and the City has no liability or responsibility for such by virtue of the acceptance or approval or any drawings by it.
Article 2 - Existing Utilities
2.1 Prior to commencing any of the work contemplated by this agreement, the Company shall contact the City Engineer, who shall inspect all City property adjacent to a site of the excavation, and shall note all deficiencies and damage therein or thereto. Except for such deficiencies and damage noted at this time, all City property and utilities adjacent to the site shall be deemed to be in good condition, and if damaged, deemed to have been damaged by the Company, unless the Company can conclusively demonstrate to the satisfaction of the City Engineer that such damage is unrelated to the operations of this Company pursuant to the agreement.
2.2 (a) In the event that any underground utility or Edmonton Power or Telephone line is damaged by the Company, it shall immediately notify the City Engineer of such damage and take whatever action is required to minimize further damage and protect the public. The City shall do whatever repair, reconstruction or restoration work is required to its utilities, and the total cost thereof shall be paid by the Company upon invoicing therefore.
(b) The Company shall pay all costs of requiring, reconstructing and restoring all property, utilities and other improvements in, on, under or along municipal highways adjacent to the site, to the satisfaction of the City Engineer, to nearly as possible the same condition in which they were prior to the undertaking by the Company of work contemplated by this agreement.
(i) In the event that any surface improvement, curb, gutter or boulevard requires repair, reconstruction or restoration, the City shall do such work and invoice all costs thereof to the Company, costs shall be paid by the Company within thirty (30) days of the date of the invoice thereof. The Company may perform such work by informing the City Engineer of its election to do such, only under the following conditions:
1. The Company shall submit such plans and schedules as are requested by the City Engineer for the performance of such repair work and shall not carry out any such work until these have been approved by the City Engineer.
2. Carrying out such work, the Company shall follow the specifications set out in the then current addition of the City of Edmonton Servicing Standards Manual for the improvement requiring repair.
3. The City shall carry out such inspections as it deems necessary upon its road rights-of-way and the Company shall pay the City's costs of inspections or any other costs to the City resulting from such inspections within thirty (30) days of receipt of an invoice therefore from the City. The developer agrees to perform or have perform such materials and construction testing as is reasonably required by the City Engineer at its own cost and expense.
4. The Company agrees to comply with the City Engineer's determination of the need for and control of the use of hoarding, streets and pedestrians and traffic control methods during the period of construction, and shall provide any traffic control personnel or devices so required on City right-of-way at its own costs and expense. All repair, reconstruction or restoration work performed by the Company shall be unconditionally guaranteed by it for a minimum period of two years, and shall follow the procedures outlined in Schedule "B" hereto for obtaining construction completion and final acceptance certificates.
Article 3 - Indemnification
3.1 The Company agrees to indemnify and save harmless the City from all claims, demands, actions, costs, charges and expense of any kind or nature or which the City may become liable 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.
3.2 (a) To secure compliance with Article 2 and Schedule B of this Agreement, upon execution of this Agreement, the Company shall provide to the Manager, Land Development Co-ordination Branch, City of Edmonton Planning Department, an irrevocable letter of credit or performance bond, satisfactory to the City Solicitor, in the amount of FIFTY THOUSAND DOLLARS ($50,000), such security to remain in effect for a period of not less than two years following final inspection of all street work to be done by the Company upon completion of same, by the City Engineer or his designate.
(b) In the event that the Company defaults on any of the obligations undertaken to be observed by it in the said Articles and Schedule B the security may be realized upon by the City for the purpose of completing all or any of the works to be done by the Company, or to restore or repair the same, or to remedy any defects in the installation thereof.
Article 4 - Arbitration
In the event a dispute arises 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 settled by arbitration in accordance with the following terms and conditions:
(a) The party desiring to refer the dispute to arbitration shall notify the other party in writing of the nature and extent of the dispute.
(b) Within seven (7) days of receipt of such notice, the notified party shall, by written notice, advise the disputing party of all matters referred to in the initial notice except those for which the party admits responsibility and proposes to take remedial action to the satisfaction of the disputing party.
(c) The terms of reference for arbitration shall be those areas of dispute referred to in the initial notice for which the notified party has not admitted responsibility or proposed to take remedial action to the satisfaction of the disputing party.
(d) The City and the Company shall, within seven (7) days of the establishment of the terms of reference pursuant to Article 5(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. If either party fails to appoint an Arbitrator, the other party may apply to a Justice of the Court of Queen's Bench to have such Arbitrator appointed. 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 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 according to the terms of reference therefore.
(f) The decision of the majority of the Arbitration Committee shall be the decision of the Committee. If no majority decision is reached, the decision of the Chairman shall be deemed to be the decision of the Committee.
(g) The decision of the Committee shall be final and binding upon the parties hereto, and any costs agreed to by the Committee shall be paid by the party to whom such costs have been assessed.
(h) Except as hereby modified, the provisions of the Arbitration Act R.S.A. 1980, cA—49, as amended, shall apply to the arbitration procedure herein.
Article 5 - Interest
Any and all amounts owing by one party to the other shall, within thirty (30) days after the date of invoicing of any one party by the other and until the date of payment, bear interest at the rate of one and one half percent (1 1/2%) per month.
Article 6 - Insurance
6.1 The Company shall maintain in full force and effect the following insurance policies from the date upon which this Agreement is executed until six (6) months after backfilling has been completed and all restorations of sidewalk and roadway have been effected:
A Public Liability Policy in favor of the Company providing coverage in respect of any claim or demand of whatever kind being carried out by the Company under the provisions of this Agreement or in any way arising by reason of the existence of the Agreement as follows:
BODILY $2,000,000.00 Inclusive . . . . .each person
INJURY $2,000,000.00 Inclusive . . . . .each occurrence
All sums resulting from the liability imposed by law upon the Company for loss or damage including damage for care and loss of services because of bodily injury to or the illness or death of any person or persons.
PROPERTY DAMAGE $2,000,000.00 inclusive . . . . .each occurrence
BODILY INJURY AND PROPERTY DAMAGE inclusive Limited . . . . .$4,000,000.00
All sums resulting from the liability imposed by law upon the Company for damage to or destruction of property of others of any or every description including the loss of use thereof.
6.2 The Company shall grant a policy of indemnity in favor of the City saving the City harmless from all claims, demands, charges, losses, costs or damages arising or alleged to arise directly, indirectly or incidentally by reason of the operations of the company or its agents, servants or independent contractors in carrying out this Agreement.
6.3 The Company shall provide the City with a copy of the insurance policies defined above, together with proof of payment of premiums, within ten (10) days of the date that the premium payments become payable.
Article 7 - Notice
7.1 Any notice to be given pursuant to the terms of this Agreement shall be sufficiently given,
(a) in the case of notice to the City, if such notice is sent by prepaid registered mail in an envelope addressed to:
Manager, Land Development Coordination
Planning Department
13th Floor, Phipps-McKinnon Building
10020 - 101 A Avenue
Edmonton, Alberta T5G 3G2
(b) in the case of notice to the Company, if such notice is sent prepaid registered mail in an envelope addressed to:
Stuart Olson Construction Ltd.
12836 - 146 Street
Edmonton, Alberta
T5L 2H7
Attention: Brent Fillmore, P. Eng., Project Manager
and:
Intrawest Properties Ltd.
#204, Centurion Building
10335 - 172 Street
Edmonton, Alberta
T5J 1K9
Attention: Ray Tornack, Esq.
7.2 Notice given as aforesaid, if posted in Alberta, shall conclusively be deemed to have been given on the fifth business day following the date on which such notice is mailed. An notice personally delivered shall be deemed to have been given on the date of personal delivery.
7.3 Either party may, at any time, give notice in writing to the other of any change of address of the party giving such notice and from and after the giving of such notice, the address therein specified shall be deemed to be the address of the said party for the giving of notice hereunder.
7.4 The word "notice" in this clause shall be deemed to include any requests, statements or other writing in this Agreement provided, required or permitted to be given by the City to the Company or by the Company to the City.
Article 8: General Provisions
8.1 This Agreement is not intended to nullify, replace, circumvent or modify any existing statutes, bylaws, permit conditions or general requirements which govern development or construction within the City.
8.2 This Agreement shall enure to the benefit of, and be binding upon, the parties hereto, their successors and assigns.
8.3 This Agreement shall be deemed to have been made in and shall be construed in accordance with the laws of the Province of Alberta, and for the purposes of all legal proceedings this Agreement shall be deemed to have been performed in the said Province, and the Courts of the said Province shall have exclusive jurisdiction to hear any action arising under this Agreement. If any provisions herein contained in any way contravene the laws of the Province of Alberta, such provision or provisions shall be severed from the Agreement and the remaining provisions shall continue in force and effect.
IN WITNESS WHEREOF the parties have hereunto affixed their corporate seals attested to by their proper officers in that behalf on the day and year first above written.
Schedule B - Construction Completion Certificates, Maintenance, and Final Acceptance Certificate