Address: 10403 - 158 Avenue
Legal Description: Plan 812-1757, Blk 59, Lot 11
THIS AGREEMENT is made in quadruplicate 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 -
F. TONN CONSTRUCTION CO. LTD.
a Body Corporate
(hereinafter called "the Company")
OF THE SECOND PART
WHEREAS:
1. The Company is the registered owner of lands within the City, as described on Schedule "A" attached hereto and generally being those lands shown outlined in red on Schedule "B" attached hereto (hereinafter referred to as "the said lands");
2. The Company has applied to amend the Zoning Bylaw of the City by rezoning the said lands from AGU to DC2;
3. The Municipal Planning Commission of the City at its meeting held on June 12, 1980 supported the application to amend the Zoning Bylaw upon the condition that the Company enter into a development agreement with the City prior to such amending bylaw being given third reading by the Municipal Council of the City;
4. The Company proposes to construct upon the said lands a combined residential and commercial development in accordance with plans and specifications submitted to and approved by the City.
5. The Company has agreed to provide at its sole cost and expense all municipal services and connections required to adequately service the said lands;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual and other covenants herein contained, the parties hereto covenant and agree as follows:
Article 1
In consideration of the sum of One ($1.00) Dollar 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 89 of the Statutes of Alberta, 1977, 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 purpose of financing any construction or development on or within the said lands.
Article 2
2.1 Upon passage of the amending bylaw and rezoning of the said lands from AGU to DC2, the Company or its successors in title ,shall commence and carry through to completion the construction of the proposed development (hereinafter referred to as "the Project") upon the said lands, such development to be substantially in accordance with the plans and specifications submitted to the City and attached hereto as Schedule "C" (hereinafter referred to as "the said Plans"); and the Company acknowledges and agrees that the commercial component of the development shall consist of any of the uses set out as permitted uses in a CNC zone pursuant to Section 310 as designated in the land use bylaw of the City of Edmonton, being Bylaw 5996, but excluding the following uses, namely:
(a) gas bars and service stations;
(b) drive-in restaurants;
(c) discotheques and public ballrooms;
(d) fun arcades;
(e) liquor stores;
(f) taverns, cabarets and cocktail lounges; and
(g) body rub parlours and escort services
2.2 The parties agree that no variations from the said Plans shall be permitted, with the exception of such minor revisions as may be required by the Building Inspection Branch of the City to ensure conformity to the Building Code of the Province of Alberta, or such revisions as may be required to ensure conformity to any existing statutes, bylaws, regulations or City policies.
2.3 The General Manager of the Planning Department of the City shall act as the sole judge in determining what variations shall constitute permitted revisions pursuant to this Article.
2.4 The Company hereby acknowledges that only one Development Permit shall be issued for the Project and that staged development shall not be permitted.
Article 3
The Company shall carry out the construction and installation of all municipal services required to service the said lands to acceptable City standards, and without limiting the generality of the foregoing, the Company shall:
(1) locate the sanitary storm and water services at the locations established or accepted by the Water and Sanitation Department of the City.
(2) construct and maintain such private water mains and fire hydrants as required by the Water and Sanitation Department of the City. Design requirements for this construction shall conform to City Bylaw #4078, and construction, operation and maintenance of the main shall be to the satisfaction of the Water and Sanitation Department of the City.
Article 4
The Company agrees to construct Two (2) points of access to the said lands from Beaumaris Road and Two (2) points of access from 158th Avenue as shown on Schedule "C" annexed hereto, and the Company further covenants and agrees to apply for the necessary crossing permits for such access points, to the City Engineer. All construction and scheduling shall be to the specifications, inspection and satisfaction of the City Engineer.
Article 5
The Company agrees to construct and maintain One Hundred and Twenty Seven (127) parking stalls, of which:
(a) there shall be One Hundred Three (103) residential parking stalls, of which Ten (10) shall be set aside for visitor parking; and
(b) there shall be Twenty Four (24) commercial parking stalls; all as shown on Schedule "C" annexed hereto. All parking stalls shall be clearly demarcated, and substantial signs shall be posted to show the intended use of the stalls in accordance with this paragraph.
All parking areas shall be paved and properly curbed so as to allow ingress and egress of traffic only at approved points, and the Company shall carry out such extra or additional construction as may from time to time prove necessary or desirable to ensure that only approved points of ingress and egress are used.
Article 6
6.1 The Company shall supply a detailed landscaping and amenity plan for the Project to the satisfaction and approval of the Development Officer, prior to the issuance of the Development Permit. This plan shall show all of the proposed amenities, the proposed buffering and screening as well as the landscaping itself and shall form part of this Agreement.
6.2 To secure compliance with the detailed plans and specifications required by this clause, the Company shall, prior to the issuance of a building permit for the Project, provide to the City a performance bond or letter of credit, in a form satisfactory to the City Solicitor, in the amount of One Hundred (100%) per cent of the estimated costs of completing the landscaping to be installed upon the said lands. For the purposes of this clause, the estimated costs of landscaping shall mean all costs associated with the completion of landscaping upon the said lands in accordance with the detailed plans and specifications required pursuant to Article 6.(1), based upon an estimate prepared by an independent professional agency or person, skilled and experienced in the provision of landscaping services, which estimate shall be supplied to the City upon approval of the landscaping plans by the Development Officer. Upon substantial completion of the required landscaping work, the City will, at the Company's request, reduce the security to Twenty Five (25%) per cent of the estimated costs of completing the landscaping as aforesaid, and the security shall remain in full force and effect for a period of not less than Two (2) years after the completion of the landscaping as required by the said plans and specifications, and may be realized upon at any time by the City to complete all or any portion of the landscaping upon the said lands or to restore or repair the same or to remedy any defects in the installation thereof.
6.3 The Company shall landscape and maintain the landscaping on all boulevard areas adjacent to the Project to the satisfaction and approval of Edmonton Parks and Recreation, and should the maintenance of these areas not be satisfactory to Edmonton Parks and Recreation, the City may perform the necessary maintenance and call upon the security mentioned in Article 6.(2), and in the event this should occur after the lapsing or return of the security, the City may invoice the Company for such maintenance and collect the debt in the same manner as taxes.
Article 7
7.1 Prior to excavation upon the said lands, the Company and the City Engineer or person designated by the City Engineer shall, if requested by the Company, perform a site inspection of the adjoining City property, including municipal highways, and shall make writen note of all visible defects thereon. Except as to the defects so noted, all City property adjacent to the said lands and capable of visible inspection shall be deemed to be in generally good condition.
7.2 The Company shall pay any and all costs of roadway restorations or modifications which, in the opinion of the City Engineer, are required by the development of the Project upon the said lands, including, but not restricted to, upgrading of existing curb crossings, filling in of unutilized curb crossings, provision of new curb crossings where required and the repair or replacement of sidewalks, curbs and gutters, lane paving and roadways, to City specifications.
Article 8
The Company shall construct, furnish, operate and maintain, in the residential component of the Project, a children's playground at the south-east corner of the site, and an indoor children's playroom on the main floor of the main building of the said residential component, in the locations shaded yellow on the plans annexed as Schedule "C" hereto.
Article 9
All commercially oriented display advertising signs and postings shall be located so as to face outwards from the commercial area, and away from the residential area; provided however that fascia signbands shall be permitted along the store fronts.
Article 10
The Company agrees that any and all amounts owing by the Company to the City shall, Thirty (30) days after the date of invoicing of the Company by the City and until the date of payment, bear interest at the rate of One and One-Half (1 1/2%) per cent per month.
Article 11
The Company shall provide, at its own expense, any Easement and right-of-way through the said lands which may be required for servicing the said lands.
Article 12
The Company agrees that:
(a) any outstanding municipal taxes against the said lands shall be paid to the City in full upon execution of this Agreement;
(b) any local improvement charges presently on the tax rolls for the said lands shall be paid in full upon execution of this Agreement.
Article 13
The Company shall bear all costs directly or indirectly associated with the extension of temporary and permanent telephone services into the Project or the provision of same, and it is further agreed that the Company shall pay all estimated costs in advance, such determination of the estimated costs to be in the sole discretion of the General Manager, Edmonton Telephones.
Article 14
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 though included in the Agreement.
Article 15
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 which third member shall be the Chairman thereof; 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 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 other 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 16
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 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 17
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:
The Manager,
Land Development Coordination,
City Planning Department,
13th Floor, Phipps-McKinnon Building,
Edmonton, Alberta
T5J 3G2
and to the Company at:
F. Tonn Construction Co. Ltd.,
175 Brander Drive,
Edmonton, Alberta
Article 18
Whenever the singular and masculine or neuter are used throughout this Agreement, such terms shall be construed as if the plural, neuter or feminine had been used where the context so requires, and the rest of the sentence shall be construed as if the necessary grammatical and terminological changes thereby rendered necessary had been made.
Article 19
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.
Article 20
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 hereto have set their hands and seals by their proper officers in that behalf on the day and year first above written.
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Schedules
- Schedule A - Legal Description
- Schedule B - Neighborhood Zoning Map
- Schedule C - Design Report for Proposal