Address: 10216 - 124 Street
Legal Description: Plan XXII, Blk 33, Lots 11 to 16
THIS ENCROACHMENT AGREEMENT made this 28th day of February, 1984.
BETWEEN:
THE CITY OF EDMONTON,
a municipal corporation,
(hereinafter referred to as "the City"),
OF THE FIRST PART
and
TRIPLE FIVE CORPORATION LTD.,
(hereinafter referred to as
"the Company"),
OF THE SECOND PART
WHEREAS the Company is the registered owner of certain lands within the City of Edmonton, legally described as Lots 11 to 16 inclusive, Block 33, Plan XXII (River Lot 2), Groat Estate; and
WHEREAS the City and predecessor in title to the Company entered into a Development Agreement on the 28th day of October, 1980 (hereinafter referred to as "the Development Agreement"), with respect to the development of a building known as "Plaza 124", together with an underground garage" (hereinafter referred to as "the Project"); and
WHEREAS pursuant to Article 4.1.1 of the Development Agreement the Company transferred to the City a 20 ft. by 20 ft. corner cut from the southeast corner of Lot 11, Block 33, Plan XXII (River Lot 2) (hereinafter referred to as "the City lands") by registration of Roadway Plan 822 3017; and
WHEREAS the Company constructed the said building and underground parking garage in accordance with the Development Agreement, but in such manner that following dedication to the City of the City lands the parking garage encroaches underneath the City lands as shown on the survey plan annexed hereto as Schedule "A" (hereinafter referred to as "the Permitted Encroachment"); and
WHEREAS pursuant to the Municipal Government Act, Chapter M-26 RSA 1980 City Council may grant to a person owning land adjacent to a highway the right to encroach thereunder on the payment of rent and on certain other conditions;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual and other covenants herein contained, the parties hereto hereby agree as follows:
1. The City grants to the Company the right and privilege to maintain the Permitted Encroachment as shown on the survey plan annexed hereto as Schedule "A", on the terms and conditions hereinafter set out.
2. The privilege is granted for the purposes of operating, maintaining and repairing the Permitted Encroachment only.
3. (a) Subject to earlier termination of the privilege as hereinafter provided, the privilege shall continue for the life of the Project.
(b) The Company may terminate the privilege by giving the City 60 days' notice in writing of such termination.
(c) Upon expiry of the term or earlier termination of the privilege, the Company shall, at its sole expense, remove the parking garage and repair any damage done to the City lands or the land above as a result of the occupation by the parking garage or its removal and return it to as nearly as possible the state it was in prior to occupation or repair by the Company. In the event the Company fails to remove the parking garage and return the City surrounding lands to as nearly as possible, their former state, within 90 days of the termination of this Agreement, the City may do so and the Company shall pay all costs and expenses so incurred by the City to the City.
4. The Company or its successors or assigns shall in each and every year of the term, pay a rental payment equal to the taxes, rates, duties and assessment whatsoever upon land and improvements charged in respect of each year of the term as if the portion of the City lands upon which the Permitted Encroachment is situated were subject to assessment and taxation.
5. All rental payments identified in Article 4 of this Agreement shall terminate upon completion of demolition of the Permitted Encroachment as determined by the City Engineer in his sole discretion.
6. If and whenever the rent hereby reserved by this article is or shall be unpaid for 15 days after the day on which the same shall become due, the City may give notice in writing to the Company demanding that the sum so in arrears be paid forthwith, and failure by the Company to pay arrears within 60 days following delivery of such notice shall, at the option of the City, and subject to the notice and the rights to be extended to any mortgagee or encumbrancee of which the City has notice, operate as a forfeiture of the covenants granted by this article, and it shall be lawful for the City at any time thereafter to terminate the licence.
7. If the Company is at any time in default of the observance of any of its covenants contained in this article, other than the covenant to pay rent, and if the City shall serve notice in writing upon the Company specifying the default and requiring it to rectify the default, and the Company has failed to rectify the default within 60 days after delivery of such notice, or if the default is such that in the opinion of the City acting reasonably, it cannot be rectified within 60 days, the Company fails to commence rectification or fails to proceed with rectification in a manner satisfactory to the City, acting reasonably, within the said 60 days, the City may, in its sole discretion, in addition to any other remedy available to it for breach of the particular covenant, and subject to the notice and the rights to be extended to any mortgagee or encumbrancee of which the City has notice:
(a) forthwith determine the covenants in this article set forth, and re-enter and take possession of the City lands; or
(b) cure the default itself for the account of, and at the cost of, the Company and the sum so expended or incurred by it shall be deemed to be additional rent, and shall be paid by the Company within 30 days after the presentment to it of an invoice therefore, and if not paid by the Company, shall be treated in the same manner and be subject to the same remedies as for non-payment of rent.
If default is, in the opinion of the City, of such nature as to be incapable of being cured by the City at the cost of the Company, the City may without further notice or demand on the Company, at any time after the expiration of the 60 day period referred to above, subject to the notice and to the rights to be extended to any mortgagee or encumbrancee of which the City has notice, re-enter into and upon the City Lands and repossess the same and the privileges granted by the article shall be thereby determined.
8. The Company shall, so long as the Agreement continues as permitted by its terms, keep the Permitted Encroachment in a reasonable state of repair at the discretion of the City Engineer.
9. If the Company fails to keep the Permitted Encroachment in a reasonable state of repair, the Company shall indemnify and save harmless the City from and against any and all damages, costs or expenses of any kind whatsoever incurred by the City resulting from such failure.
10. The Company shall indemnify the City in full against any claim for damage sustained by reason of the existence of this privilege.
11. All costs of maintenance and repair of the Permitted Encroachment shall be costs to be borne by the Company. Such costs shall include repairs to the Permitted Encroachment whether resulting from operations of the City in any maintenance activities, tree planting or sidewalk, street or utility repair, as the case may be.
12. If the Company fails to comply with any notice of repair given by the City Engineer or his duly authorized representatives respecting the Permitted Encroachment, the City or its duly authorized representatives after a minimum of 30 days from the delivery of such notice may cause the Permitted Encroachment referred to in such notice to be repaired, and the Company agrees to pay the City upon demand the amount of all expenses incurred by such repair.
13. Throughout the period of this Agreement, the Company shall maintain in full force and effect a comprehensive general liability insurance policy in the amount of $2,000,000.00 against claims for bodily injury, death and property damage in or about the City lands. Policies for such insurance shall waive to the extent available from Owner's carriers, any right of subrogation against the City. The Owner shall forward evidence of insurance to the City Risk Manager upon request in the form of a Certificate of Insurance or Certified Copy of the policy.
14. It is understood and agreed that upon termination of the Agreement, the termination shall not affect any right or protection given to the City by the insurance carried under paragraph 6 herein during such time as the Permitted Encroachment remains on the City lands, during the dismantling and removing thereof, and during the restoration of the surface of the land where the Permitted Encroachment was located, provided that the Company shall no longer be obligated to provide any indemnity or insurance protection once such removal and restoration has been completed. The termination shall not affect the right of the City to collect monies owing by the Company to the City at or prior to the date of termination of this Agreement.
15. Any notice to be given pursuant to the terms of this Agreement shall be sufficiently given:
(a) In the case of notice to the Company, if such notice is hand delivered to the following address and marked "Urgent":
Triple Five Corporation
900 - 9707 - 110 Street
Edmonton, Alberta
Attention: R. Ghermezian
(b) In the case of notice to the City, if such notice is hand delivered in an envelope addressed to:
City Solicitor City Hall
1 Sir Winston Churchill Square
Edmonton, Alberta
T5J 2R7
or to such other address within the City of Edmonton as may be designated by written notice from time to time.
16. In the event the City incurs any additional or extra expenses in carrying out its operations as a result of the presence of the Permitted Encroachment the Company shall compensate the City for all such expenses.
17. All the covenants and conditions herein contained shall extend to, be binding upon, and enure to the benefit of the successors and assigns of the City and the Company respectively. In the event the Company sells or transfers its interest in the Project, the Company shall make it a condition of such sale or transfer that the purchaser or transferee shall accept an assignment from the Owner of this Agreement. From and after the date of the sale of the lands, the purchaser or assignee shall assume all responsibility for compliance with the obligations of the Company hereunder and the assignor or transferor shall thereafter be forever released and discharged of its obligations hereunder, save as to any obligations which arose prior to the date of such assignment or transfer.
18. Where the singular or masculine is used the same shall be construed as meaning the plural or feminine, or a body corporate, where the context or the parties so require.
19. This Agreement may be amended by mutual agreement of the parties and any amendment so made becomes a part of this Agreement with the same force and effect.
20. This Agreement shall be interpreted in accordance with the laws of Alberta.
IN WITNESS WHEREOF the parties hereto have affixed their corporate seals by the hands of their proper officers duly authorized in that behalf on the day and year first above written.
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