DC2 (R) Carreo Condo Agreement

Address 11115 - 80 Avenue

Legal Description: CDE 812 1997; Plan 7225 A.R., Blk. A., Lot E; Plan 3700R, Blk A, Lot 8

THIS AGREEMENT made this 17th day of October, A.D. 1980.

BETWEEN:

THE CITY OF EDMONTON, a municipal corporation

(hereinafter called the "City")

OF THE FIRST PART

- and -

THE CARREO CORPORATION LTD., a body corporate

with an office at the City of Edmonton,

Province of Alberta,

(hereinafter called the "Company")

OF THE SECOND PART

WHEREAS:

1. The Company is the registered owner of those lands lying within the City of Edmonton as legally described in Schedule "A" attached hereto and as shown outlined in red on the plan attached hereto as Schedule "B" (hereinafter called the "Total Lands");

2. The Company has made application to the City to redistrict the Total Lands from RF3 Low Density Redevelopment District to DC2 Comprehensively Planned Development District;

3. The Company wishes to construct a condominium project (hereinafter called the "Project") on the Company Lands (as hereinafter defined);

4. The Company has agreed to provide certain land to the City (the balance of the Total Lands following the provision of such land to the City being herein called the "Company Lands") and to effect certain improvements to the City lane herein provided.

NOW THEREFORE this Agreement witnesseth that in consideration of the premises and the covenants herein contained to be performed by the parties, the City and the Company covenant, undertake and agree as follows:

Article 1 - Covenants Running with the Lands

1.01 The conditions, terms and provisos to be performed and observed by the Company under the terms of this Agreement shall be deemed to be covenants running with the Company Lands and to be binding upon the registered owner or owners from time to time of the Company Lands.

1.02 The terms, conditions and provisos contained in Section 4.02 and Section 2.09 of this Agreement shall be enforceable by the City in the same manner and to the same extent as a restrictive covenant, filed by way of Caveat, pursuant to the provisions of The Planning Act, being Chapter 89 of the Statutes of Alberta, 1977.

1.03 The City may file a Caveat or Caveats, to protect all or any portion of its interests herein, against title to the Total Lands or the Company Lands provided always however that any such Caveat or Caveat relating to one or more of Sections 4.02 or 2.09 hereof shall specifically refer to such Section or Sections of this Agreement and only to such Section or Sections.

1.04 Each term, condition or proviso of this Agreement to be performed or observed by the Company (other than those referred to in Section 1.03) shall cease and determine when the same has been satisfied and upon all terms, conditions or provisos of this Agreement, protected by any Caveat or Caveats having so ceased and determined, the City shall discharge such Caveat or Caveats.

1.05 The City shall, from time to time, following written request therefor:

(a) postpone any Caveat or Caveats as aforesaid to and in favour of any mortgage or mortgages or encumbrances or other related instruments registered or to be registered against title to the Company Lands or any part thereof;

(b) endorse as required because of the existence of such Caveat or Caveats any and all plans or instruments of subdivision and condominiumization and such other assurances as may be required or necessary and acceptable to the Municipal Planning Commission and/or other planning authorities, as the case may be, having jurisdiction with respect to any such subdivision or condominiumization.

Article 2 - Construction on the Company Lands

2.01 The Company shall construct the Project upon the Company Lands generally in accordance with the plans and specifications attached hereto as Schedule C submitted with the Company's application for redistricting, as such plans may be modified or altered to secure compliance with the conditions of approval of the Municipal Planning Commission or City Council, or to permit the issuance of the necessary building permits for the Project from the City, or as may be requested by the Company and approved by the General Manager of Planning for the City.

2.02 The Company hereby acknowledges that only one (1) Development Permit (but not necessarily only one building permit) shall be issued for the Project and that staged development shall not be permitted.

2.03 The Company shall supply (with respect to the Company Lands) a detailed landscaping and amenity plan for the Project (herein-after called the "Landscape Plan") to the satisfaction and approval of the Development Officer of the City, acting reasonably, prior to the issuance of the Development Permit for the Project. Such Landscape Plan shall show all of the proposed amenities, the proposed buffering and screening as well as the landscaping and, upon approval of the same by the Development Officer as aforesaid, shall be deemed to form a part of this Agreement and to constitute a portion of Schedule C.

2.04 (a) To secure compliance with the installation of and construction of the landscaping and amenities required pursuant to the Landscape Plan (such installation and construction being hereinafter referred to as the "Landscaping") the Company shall, prior to the issuance of a Building Permit for the Project, or any portion thereof, provide to the City a performance bond or letter of credit, in a form satisfactory to the City solicitor, acting reasonably, in the amount of one hundred (100%) percent of the estimated cost of the Landscaping.

(b) Upon substantial completion of the Landscaping the aforesaid performance bond or letter of credit shall be reduced to an amount equal to twenty-five (25%) percent of the aforesaid amount and the same shall be maintained in force and effect for a period of two (2) years (or such shorter period as the City may determine) from the date of substantial completion of the Landscaping.

(c) In the event of the Company failing to complete the Landscaping within such reasonable time as may be determined upon by the City, or in the event of the Company failing to restore or repair or remedy any defects in the installation of the Landscaping that appear within the aforesaid two (2) year period, the City may, after reasonable notice to the Company, realize upon such security bond or letter of credit for the purpose of completing all or any portion of the Landscaping or restoring or repairing or remedying any defects in the installation thereof.

(d) For the purposes of this Section 2.04, the estimated cost of Landscaping shall mean all costs associated with the Landscaping based upon an estimate prepared by an independent professional agency, skilled and experienced in the provision of landscaping services, which estimate shall be supplied to the City upon the approval of the Landscape Plan by the Development Officer.

2.05 The Company shall pay any and all costs of roadway restorations or modifications immediately adjacent to the Company Lands which, in the opinion of the City Engineer, acting reasonably, are required by the development of the Project, including but not restricted to, upgrading of any existing curb crossings, filling in of unutilized curb crossings and provision of new curb crossings where required, all to City specifications.

2.06 All vehicular access to the Project will be constructed and designed in accordance with the reasonable requirements of the City Engineer.

2.07 Prior to the issuance of a Building Permit for the Project or any portion thereof, the Company will provide to the Transportation Systems Design Department of the City a Traffic/Parking Impact Study prepared by an independent professional agency skilled in the same satisfactory to such Department and shall abide by and be bound by all recommendations contained therein.

2.08 The City acknowledges that it is aware that the Company, in conjunction with the construction of the Project intends to make any necessary applications to the Municipal Planning Commission and/or other planning authorities having jurisdiction for approval of registration of a plan or plans of condominiumization with respect to the Company Lands, it being understood that the separate unit tiles shall conform to the separate dwelling units and may conform as well to the separate parking stalls shown on or to be constructed in accordance with the plans and specifications referred to in Section 2.01.

2.09 The Company agrees that the Company Lands shall be bound by the condition that the same are districted as DC2 Comprehensively Planned Development District and that any and all development thereon may only be carried out in accordance with the terms of this Agreement or as otherwise permitted under the terms of the Land Use Bylaw of the City of Edmonton currently in force or under the terms of any successor or replacement Bylaws thereto.

Article 3 - Transfer of Lands and Construction of Lane

3.01 The Company, at its sole cost and expense, shall provide to the City certain lands from the Total Lands required for lane widening purposes in connection with the Project and being a strip of land 1.75 feet in perpendicular width throughout along each of the north and south boundaries of the lane running through the Company Lands, such portion to be provided being shown outlined in blue on Schedule "B" attached hereto.

3.02 The Company, at its sole cost and expense, shall provide to the City from the Total Lands a corner cut, 15 feet by 15 feet, more or less, in size, on the northeast corner of Lot 4, Block A, Plan 1882 E.O. and a corner cut, 15 feet by 15 feet, more or less, in size, on the southeast corner of Lot E, Block A, Plan 1882 E.O., each as shown outlined in blue on Schedule "B" attached hereto.

3.03 The Company, at its sole cost and expense, shall effect the following improvements on or adjacent to the Company Lands, as necessitated by the Project, namely:

(a) Construction of a lane as shown outlined in green on Schedule "B" attached hereto, which construction shall include base, pavement, any necessary catch basins, manholes and/or sewers required to drain the lane, the paved surface of the lane to be twenty (20) feet, more or less, in width throughout from the eastern boundary thereof to the north-south projection of the most westerly side of the most westerly underground parking garage entrance contained in the Project, the balance of the paved surface of the lane to be fourteen (14) feet, more or less, in width throughout.

3.04 Any and all construction required pursuant to this Article 3 is subject to the following conditions:

(a) The Company shall, at its sole cost and expense, prior to commencement of construction required under this Article 3, provide to the City Engineer for his approval, detailed construction plans and specifications of the work to be undertaken, which plans, upon approval thereof, shall be deemed to be a schedule to this Agreement and be deemed to be a part hereof.

(b) Without restricting the generality of Section 3.04 (a) the Company shall produce plans showing the alignment and depth of all utilities and services situated adjacent to or on the Company Lands, and shall obtain the approval from all affected utility owners of the construction plans referred to in Section 3.04 (a).

(c) Any and all construction required under this Article 3 shall be in accordance with the approved construction plans and specifications and the City of Edmonton Servicing Standards Manual.

(d) During the course of construction required under this Article 3, the Company shall take such steps as may be necessary or as may be reasonably required by the City or utility owners, or both, for:

(i) the protection of City property, including, but not restricted to utilities, landscaping and private utility services;

(ii) the protection of the general public, including but not restricted to, placement of barricades, flares and traffic control personnel or devices reasonably required by the City consistent with normal and usual City practices.

(e) In the event that damage is caused to any City property or utility service, or both, the Company shall immediately take all necessary and possible actions to prevent further damage, protect the public and minimize liability, and shall notify the City Engineer and the owner of the damaged utility.

(f) At least thirty (30) days prior to scheduled commencement of construction required under this Article 3, the Company shall submit to the City Engineer, for his approval, not to be unreasonably withheld, detailed construction and staging schedule for all work to be performed. No such work shall commence unless and until the Company has received the City Engineer's written approval of such construction and staging schedule.

(g) The Company shall be responsible for the cost of relocation, temporary or otherwise, or adjustment of any hydrants, catch basins, trees, valves, traffic signs or other improvements or structures which may be necessitated by the construction. All such relocation or adjustments shall be carried out by the City and the cost of such work shall be billed to and payable by the Company.

(h) Prior to the commencement of work on City rights-of-ways or the cutting of any pavement, the Company shall apply for and obtain a street excavation permit from the City Engineer and no such work shall commence until such permit is obtained. Any conditions attached to such permit shall be deemed to be a part of this Agreement.

(i) At least forty-eight (48) hours before construction as required under this Article 3 is scheduled to begin, the Company shall make arrangements with the City Engineer for the inspection of the Company Lands and adjacent rights-of-ways and lands owned by the City.

(j) Upon completion of all construction the Company shall apply to the City Engineer for a Construction Completion Certificate. Within thirty (30) days after such application the City Engineer shall cause the construction to be inspected and if the construction is satisfactory the City Engineer shall issue the Construction Completion Certificate or provide written reasons to the Company for the failure to issue such Construction Completion Certificate. If within the aforesaid time the City Engineer fails to issue the Construction Completion Certificate or provide written reasons for the failure to issue the same, the Construction Completion Certificate shall be deemed to have been issued at the expiration of the aforesaid time.

(k) Notwithstanding the issuance or deemed issuance of a Construction Completion Certificate the Company shall warrant the construction free of all defects in material and workmanship, including the stability of the base, for a period of two (2) years following the issuance or deemed issuance of such Certificate and shall be responsible for all repairs to and maintenance of the completed construction arising as a result of any such defects during the said two (2) year period.

(l) The Company shall apply to the City Engineer for a Final Acceptance Certificate twenty-three (23) months after the issuance of the Construction Completion Certificate. The City Engineer shall cause the construction to be inspected within thirty (30) days thereafter and if such inspection is satisfactory shall issue the Final Acceptance Certificate. In the event that the City fails to serve a notice specifying defects in the material or workmanship prior to the expiration of two (2) years after the issuance of a Construction Completion Certificate, the Final Acceptance Certificate shall be deemed to have been issued by the City; PROVIDED HOWEVER, that the City shall have thirty (30) days after application for a Final Acceptance Certificate to carry out inspections and serve notice of unacceptability, and any warranty and maintenance period shall be extended to the end of such thirty (30) day period;

(m) No special loading or parking privileges shall be given to the Company on the lane and the same shall be deemed to be and is part of the street system and subject to the control of the City, except as to the warranty and maintenance obligations of the Company.

3.05 All costs associated with the design and inspection by the City of the construction of the lane, being a sum of $2,500.00 shall be paid by the Company to the City upon execution of this Agreement.

3.06 The Company shall indemnify and save harmless the City from and against all claims, causes, suits or actions for damages arising out of or occasioned by any injury to persons, including death resulting therefrom, or loss of or damage to property resulting from, the Company's construction activity referred to in this Article 3 or any defect in construction, workmanship or material, or failure to repair any construction as required by this Article 3; PROVIDED the claim in respect of such injury, loss or damage, is made within two (2) years after issuance of the Final Acceptance Certificate in respect to such construction, and save and except if the same is occasioned by or arises from the negligent acts or omissions or wilful misconduct of the City, its servants, agents, employees or contractors.

Article 4 - Lane Lighting

4.01 In conjunction with the construction of the lane required to be constructed pursuant to Article 3, the Company shall make arrangements satisfactory to Edmonton Power for the relocation or protection, or both, of any light standards or power poles located on or adjacent to such lane and for the conversion from aerial to buried transmission lines (including power, telephone and cable television) of all such lines along the length of the lane to the property line of, but not through, or into adjacent lands to the lane. Such relocation, protection or conversion shall be at the sole cost and expense of the Company and such cost shall be payable by the Company to the City on demand. In addition, the Company shall make arrangements satisfactory to Edmonton Power for the installation of lighting along the entire length of the lane, the Company to pay the excess of the capital cost of the same above that recoverable under the Uniform Unit Rate Bylaw relating to such improvement as provided in Section 4.02 hereof.

4.02 The cost of the lighting required to be installed pursuant to and referred to in Section 4.01 (to the extent the same is not paid by the Company in accordance with Section 4.01 hereof) shall be recoverable from the Company or its successors in title to the Company Lands in accordance with the provisions of the Uniform Unit Rate Bylaw applicable thereto, in force, at the commencement of construction of such municipal improvement, such assessment to be placed on the tax roll in respect of the Company lands, the Company agreeing that the Company Lands will bear the burden of the costs thereof for the complete length of the lane referred to in Section 3.03.

Article 5 - General Requirements

5.01 Prior to any excavation being commenced by the Company upon the Company Lands or upon any lands owned by the City, the Company and the City Engineer or a person designated by the City Engineer shall at request of the Company perform a site inspection of the municipal highways and other City property adjacent to the Company Lands or lands owned by the City and shall make written notes of all visible defects thereon. Except as to the defects so noted, all property adjacent to the Company Lands capable of visible inspection shall be deemed to be in generally good condition.

5.02 The Company shall provide, at its own expense, any easement, right-of-way or chase through the Company Lands which may be required as a result of the original construction of the Project for the re-routing of any utilities within the Company Lands and the Company shall negotiate with the owner of each utility to determine the necessity of any relocation of its utility and the location for the same.

5.03 The Company agrees that:

(a) Any outstanding municipal taxes against the Total Lands shall be paid to the City in full upon execution of the Agreement.

(b) Any local improvement charges presently on the tax rolls for the Total Lands shall be commuted upon execution of this Agreement.

5.04 The Company shall until the development of the Project and the construction of the lane are substantially completed within the meaning of The Builder's Lien Act of the Province of Alberta, at its sole expense, maintain public liability insurance against claims for personal injury, death and property damage occurring within or upon the Company Lands, the lane or on or about the adjacent City lands with respect to construction being undertaken by the Company, except claims which arise by reason of any default of the City in respect of any responsibility of the City under this Agreement or the negligent acts or omissions or wilful misconduct of the City, servants, agents, employees or contractors. Such insurance shall provide protection in an amount of not less than Two Million ($2,000,000.00) Dollars with respect to public liability and/or property damage for any one accident. The Company shall deliver to the City such Certificate of Insurance or other evidence of coverage as the Comptroller of the City may from time to time reasonably require.

5.05 The Company shall bear all costs directly or indirectly associated with the extension, as required by the Company, of temporary telephone services into the Project, it being further agreed that the Company shall pay all estimated costs thereof in advance, the determination of the estimated costs to be in the sole discretion of the General Manager, Edmonton Telephones.

Article 6 - Miscellaneous Provisions

6.01 This Agreement is not intended to nullify, replace, circumvent or modify any existing statutes, bylaws, permit conditions or general requirements which cover development or construction within the City. The conditions attached to the issuance of any permit required for the construction will have the same effect as if included in this Agreement.

6.02 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 the following manner:

(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 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 Company shall, within seven (7) days of the establishment of the terms of reference pursuant to Section 6.02 (c) above, each appoint an arbitrator, and the two (2) arbitrators shall, within seven (7) days of their appointment, appoint a third member of 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 Court of Queen's Bench, Province of Alberta, to have such arbitrator appointed; and 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 Court of Queen's Bench, Province of Alberta, 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 according to the terms of reference therefore;

(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 Section 6.02;

(g) The decision of the Arbitration Committee shall be binding and final upon the parties hereto; and,

(h) Except as hereby modified, the provisions of The Arbitration Act of Alberta shall apply to the arbitration procedure.

6.03 The Company agrees that any and all amounts owing by the Company to the City shall, thirty (30) days after the date of the invoicing of the Company by the City and until date of payment, bear interest at the rate of 1-1/2 percent per month.

6.04 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 (except during time of postal strike during which all matters must be personally delivered) is sent by prepaid registered mail in an envelope addressed to, or personally delivered to:

The General Manager

Land Development Co-Ordination Branch

The City of Edmonton, Planning

13th Floor Phipps-McKinnon Building

10020 - 101A Avenue EDMONTON,

Alberta T5J 3G2

(b) In the case of notice to the Company, if such notice (except during time of postal strike during which all matters must be personally delivered) is sent by prepaid registered mail in an envelope addressed to, or personally delivered to:

The Carreo Corporation Ltd.

c/o Hilldale Developments Ltd.

1000 Royal Trust Tower,

Edmonton Centre

EDMONTON, Alberta

T5J 2Z2

Notice given by mail as aforesaid, if posted in Alberta, shall conclusively be deemed to have been given on the third business day following the date on which such notice is mailed. 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. The word "notice" in this clause shall be deemed to include any requests, statement or other writing in this Agreement provided or permitted to be given by the City to the Company or by the Company to the City. Any notice personally delivered shall be deemed to have been given on the date of personal delivery.

6.05 This Agreement shall be deemed to have been made in and shall be constructed 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 the exclusive jurisdiction to entertain any action arising under this Agreement. If any provisions herein contained shall in any way contravene the laws of the Province of Alberta where this Agreement is to be performed such provision or provisions shall be severed from the Agreement and the remaining provisions shall continue in force and effect.

6.06 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.

IN WITNESS WHEREOF the parties hereto have hereunto affixed their respective corporate seals by their proper signing officers in that behalf on the date and year first above written.

Schedules

Schedule A - Land Description
Schedule B - Road Access Map
Schedule C - Amendment Application

Caveats