CITY OF VICTORIA SUBDIVISION and STRATA APPLICATION FORM SCHEDULE D TO BYLAW NO. 12-042 Victoria Subdivision and Development Servicing Bylaw 2012
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Application No.: Preliminary SUBDIVISION APPLICATION FORM Corporation of the City of Victoria Engineering Department Land Development Section Final Purpose: Proposed Subdivision: (Type Is this a small lot rezoning Yes No Fee Simple Bareland Strata Building Strata Other Information Please Print Address: Legal Description: PID: PROPERTY Existing Zoning: Proposed Zoning: Certify current actual use of existing buildings: Single Family Duplex Other Name / Address / Postal Code / Phone # / Email: APPLICANT OWNER(S Name / Address / Postal Code / Phone # / Email: Tree Bylaw Certification: The undersigned acknowledges that the City has adopted a Tree Preservation Bylaw (No. 105-106 and that the applicant and owner are responsible to comply with the regulations outlined in the bylaw as they apply to the subject property. SIGNATURE (OWNER OR AUTHORIZED APPLICANT DATE v:\land development\forms\subdivision application letter size form Revised May 2011
Page 2 of 2 Submission Requirements: Property information: Copy of certificate of title (within 5 days of application date. Copy of easements, restrictive covenants or rights-of-way registered on or appurtenant to subject property. Written proof of applicant authorized by owner. Proof of property tax payment. Plan Submission: NOTE: All plan submissions to be in metric, dimensioned and prepared by a BC Land Surveyor Detailed site plan 1:500, 1:250 or 1:200 [ To include the following information ] Existing building and proposed building envelope locations with dimensions. Existing and proposed Parking and Access Plan. Preliminary Site Servicing Plan. Site profile (Waste Management Act. To the best of your knowledge has this property ever been used for industrial or commercial purposes or activities as set out in schedule 2 of the Contaminated Sites Regulations (attached. Yes No Signature If you have answered yes then a Site Profile must be completed and submitted with this application, unless the property qualifies for an exemption as noted on the attachment. If you have any questions contact : Land Development Technologist 1 Centennial Square, Victoria BC V8W 1P6 Telephone: 250-361-0501 Fax: 250-361-0311 email: sstern@victoria.ca internet: www.victoria.ca
CITY OF VICTORIA SUBDIVISION and DEVELOPMENT SERVICING AGREEMENT SCHEDULE E TO BYLAW NO. 12-042 Victoria Subdivision and Development Servicing Bylaw 2012
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THIS AGREEMENT made this day of,. BETWEEN: THE CORPORATION OF THE CITY OF VICTORIA #1 Centennial Square Victoria, B.C. V8S 1P6 AND: ( the "City" [NAME OF OWNER] OF THE FIRST PART W H E R E A S: (the "Owner" OF THE SECOND PART A. The Owner is the registered owner of those lands in the City of Victoria legally described as [insert legal description] (the "Lands"; B. The City of Victoria Subdivision and Development Servicing Bylaw No. [number], (the "Subdivision and Development Servicing Bylaw" requires the provision of various works and services upon the subdivision or development of land and regulates the standards to which such works and services must be constructed and installed; C. The Owner has applied to subdivide [or develop] the Lands as generally shown on the draft subdivision [or, development] plan attached as Schedule "A" to this Agreement, and has under section 940 of the Local Government Act, R.S.B.C., 1996, c. 323 requested the City to enter into this Agreement in order to enable the Approving Officer to approve the subdivision [or, the Building Inspector to issue the building permit] before the construction and installation of all works and services required by the Subdivision and Development Servicing Bylaw; D. The Owner has agreed to grant and transfer to the City all its right, title and interest in and to the works and services required to be constructed and installed by the Subdivision and Development Servicing Bylaw and the City has agreed to accept such transfer of the works and services on the terms set out in this Agreement. NOW THEREFORE in consideration of the mutual promises contained in this Agreement and in consideration of the City entering into this Agreement to allow the construction and installation of the works and services after the approval of the subdivision of the Lands, [or, after the issuance of the building permit for the development of the Lands] the Owner covenants and agrees with the City as follows:
- 2 - Part 1 - Definitions 1. In this Agreement: "complete" or "completion" with respect to the works and services means completion to the satisfaction of the Director of Engineer evidenced by the certificate under section 18(b of this Agreement; Director or "Director of Engineering" means the Director of Engineering and Public Works of the City and any City employee authorized to act on his or her behalf; "works and services" means all those works and services required to be provided in connection with the subdivision [or development] of the Lands under the Subdivision and Development Servicing Bylaw and, without limitation, includes those works and services described in the design and construction drawings that are listed in Schedule B to this Agreement (the Approved Drawings. 2. All other words and expressions used in this Agreement that have a defined meaning under the Subdivision and Development Servicing Bylaw shall have the same meaning as under that bylaw. Part 2 - Owner's Covenants 3. The Owner covenants and agrees: (a (b (c (d to install, construct and complete the works and services; that as security for the due and proper performance by the Owner of all of the covenants, agreements and obligations of the Owner under this Agreement, the Owner has deposited with the City either by cash or letter of credit the sum of $[amount] (the "Deposit"; that the Deposit, less the amount required by section 12(c to be maintained during the Warranty Period (as defined in section 12 herein, will only be returned to the Owner upon completion of the Works in strict conformance with this Agreement; and that no interest on the Deposit shall be paid to the Owner. 4. The Owner covenants and agrees: (a that the Owner has engaged a professional engineer to carry out the survey, design and field inspection of the works and services (other than any landscaping work, to lay out and supervise the construction and installation of the works and services, and to prepare and certify as-built drawings of the works and services as the engineer of record, all in conformity with the standards and specifications required under section 11 of the Subdivision and Development Servicing Bylaw (the Specifications and the other requirements of the Subdivision and Development Servicing Bylaw; and
- 3 - (b that the Owner has caused the professional engineer to deposit with the City a letter, signed by the professional engineer, outlining the scope of the professional engineer's engagement, including: (i (ii (iii (iv (v the schedule of inspection of the works and services to be undertaken by the professional engineer; the professional engineer's assurance that the works and services have been designed in accordance with the Specifications; professional certification of all design and construction drawings for the works and services; that the professional engineer will certify and submit as-built drawings for the works and services; a statement that the professional engineer has read and understands the requirements of all City bylaws that apply to and govern the works and services. 5. The Owner must cause the professional engineer to supervise the construction and installation of the works and services, including by way of sufficient on-site inspections, in such a manner as to ensure that the works and services are constructed and installed strictly in accordance with the Specifications. The Owner must not construct the works and services or any part of them except under the supervision of the professional engineer. 6. Without limiting the generality of section 5, "sufficient on-site inspections" means a minimum of one site visit per day, or such inspections as the Director agrees are sufficient to ensure the works and services are constructed in accordance with good engineering practice, during construction and installation of the works and services. The Owner shall cause the professional engineer to maintain daily inspection reports and to provide such daily inspection reports to the City upon request. 7. The Owner must immediately notify the Director of Engineering of any severance of the Owner's engagement of the professional engineer that occurs during the course of the design or construction of the works and services, and must provide the Director of Engineering with a letter signed by the professional engineer or landscape professional retained in their place, outlining the scope of that professional s engagement. 8. The Owner further covenants and agrees that the Owner has retained a landscape professional to carry out the design and field inspection of any landscaping work that is required as part of the works and services, and that the requirements of sections 4 to 7 of this Agreement, so far as they refer to the role and function of the professional engineer, shall with the necessary changes apply to the role and function of the landscape professional in respect of the design and construction of that landscaping work. 9. In carrying out the works and services the Owner covenants and agrees:
- 4 - (a (b (c (d (e (f (g (h (i (j not to commence the construction or installation of the works and services without first advising the Director of Engineering in writing at least five days before commencement; to construct, install and complete the works and services in accordance with the Specifications, the Approved Drawings and in conformance with the other requirements of the Subdivision and Development Servicing Bylaw; to obtain the prior written approval of the Director of Engineering for any changes to the Approved Drawings; to comply with any changes to the Approved Drawings required by the Director of Engineering as may be necessary to satisfy the Director that the works and services will function and operate in a manner satisfactory to the Director; to pay the cost of all necessary connections by the City of the works and services to municipal water distribution, storm drainage and sewerage systems as the case may be; not to damage any works, services or property of the City, or remove, alter or destroy any survey, pins, posts or monuments, and if in default to replace, repair and restore any damage of whatever nature to the reasonable satisfaction of the Director of Engineering; to comply with all statutes, laws, regulations and orders of any authority having jurisdiction and without limiting the generality of the foregoing all bylaws of the City; to not deposit or permit the deposit of any material or debris upon any highways or lands of the City; not to employ any person or contractor in the construction of the works and services who, in the reasonable opinion of the Director of Engineering is unfit, incapable or unskilled, and at all times, in connection with the execution of the works and services, to employ and keep on site a competent general works superintendent capable of speaking, reading and writing the English language. Any explanations, directions and requests given by the Director of Engineering to the superintendent shall be conclusively deemed to have been given to the Owner; and not to engage any contractor in respect of the works and services unless that contractor holds a valid and subsisting business license issued by the City. 10. The Owner shall prosecute the works and services diligently without interruptions and shall complete the construction and installation of the Works by [month, day, year]. 11. Upon completion of the works and services, the Owner covenants and agrees: (a to assign the City all of its right, title and interest in and to the works and services
- 5 - free and clear of all encumbrances; (b (c (d to grant or cause to be granted to the City in registrable form all statutory rightsof-way reasonably required by the Director of Engineering for the operation, maintenance, repair and replacement of the works and services, on such terms as are satisfactory to the Engineer; to execute and deliver or cause to be executed and delivered at the request of the City all such further transfers, instruments, agreements, documents and plans and to perform all such acts as may be necessary to give full effect to this Agreement; and to deliver to the City final as-constructed drawings of the works and services which drawings shall be prepared by the professional engineer in accordance with good engineering practice (and in the case of any landscaping work, which drawings shall be prepared by the landscape professional in accordance with the standards acceptable to that professional s governing body or professional association and be in a form satisfactory to the Director of Engineering. 12. The Owner covenants and agrees to: (a (b (c maintain the works and services by repairing any deficiencies in design, materials or workmanship in the works and services that may arise for a period of one year from completion of the works and services (the "Warranty Period"; remedy any deficiencies in design, materials or workmanship appearing within the Warranty Period and pay for any damage to other works or property resulting therefrom, save and except for defects caused by reasonable wear and tear, or by the negligence of the City, its servants or agents; and keep deposited with the City throughout the Warranty Period, the sum of 10% of the initial Deposit, or $1,000.00, whichever is greater, by cash or letter of credit. 13. The Owner agrees that the Director of Engineering may upon written notice to the Owner, given before the issuance of the Certificate of Completion under section 18(b of this Agreement, increase the Warranty Period to a period the Director of Engineering considers reasonable, given the nature of the works and services, but in any event not to exceed three years. 14. The Owner shall release, and does hereby indemnify and save the City harmless from and against: (a (b all costs, expenses, damages, claims, demands, actions, suits and liability by whomever brought or made and however arising whether directly or indirectly, from the construction or installation of the works and services and any injury or damage thereby caused to person or property (including death except that arising from the exclusive negligence or other fault of the City; all costs and expenses incurred by the City arising directly or indirectly from any
- 6 - engineering operation, constructions, repair, replacement or maintenance by the City to or on any real or personal property which is affected by the works and services which the City either owns or is by duty or custom obliged, directly or indirectly to construct, repair, replace or maintain; and (c all expenses and costs incurred by reason of liens for non-payment of labour or material, workers' compensation assessments, unemployment insurance, federal or provincial tax in relation to works and services and for unlawful encroachments by the works and services. 15. The Owner shall take out and maintain at all times from commencement of construction and installation of the works and services until the Director of Engineering issues a Certificate of Acceptance, insurance at its sole expense. Such insurance shall include comprehensive general liability insurance against claims for bodily injury including death and property damage or loss arising from is operations in or about the Lands, highways or other lands in carrying out the construction and installation of the works and services and in performing its obligations under this Agreement. Such insurance shall name the City as an additional insured and shall contain a cross-liability or severability of interest clause so that the City and the Owner may be insured in the same manner and to the same extent as if individual policies had been issued to each. Such insurance shall be for the amount of not less than $5,000,000.00 combined single limit or such other amount as the Director of Engineering may reasonably require. The Owner shall provide to the Director of Engineering proof in writing of such insurance before commencing the works and service sand again before the issuance of any certificate of Completion. The policy of insurance shall contain a provision requiring the insurer to give to the City 30 days prior written notice before any alteration of or cancellation of the policy shall be effective. 16. The Owner acknowledges and agrees that the Owner relies exclusively on its own professional engineer, landscape professional and contractor and that the City does not, by its approvals, inspections or acceptance of the works and services, warrant or represent that the works and services are without fault or defect and that all approvals and inspection of the works and services given or made by the City are for the sole benefit of the City and shall in no way relieve or excuse the Owner from constructing and installing the works and services in strict compliance with the provisions of this Agreement. 17. The Owner acknowledges and agrees that the City makes no representation or warranty as to the subsurface soil conditions within the area in which the works and services are to constructed, including any road allowance or road right of way (collectively, the "Works Area". Without limiting the foregoing, the City makes no representation or warrant as to whether the soil or groundwater within the Works Area contains any contaminant, waste, special waste or any other prescribed substance in a quantity or concentration that exceeds the standards permitted under the provisions of the Environmental Management Act, or any regulation thereunder including the Contaminated Site Regulation, or any enactment or regulation that may replace municipal, regional, provincial or federal (collectively, the "Environmental Laws". The City will not be responsible for any costs incurred by the Owner as a result of the presence of any such contaminant, waste, special waste, prescribed substance or other soil or groundwater contamination within the Works Area, including without limitation any costs associated with delays in proceeding with the works and services, environmental
- 7 - consultants' fees, the cost of any permits for removal or disposal of contaminated soils or groundwater under the provisions of the Environmental Management Act and the Contaminated Site Regulation, the removal, disposal or treatment of contaminated soil or groundwater that is required to be removed from the Works Area as a result of the work being undertaken, or any similar or related costs. 18. The City covenants and agrees that: (a (b (c it will permit the Owner to perform the works and services on the terms and conditions contained in this Agreement and to occupy and use municipal highways and lands of the City as necessary for the construction of the works and services subject to such terms and conditions as the Director of Engineering may impose from time to time; it will issue a Certificate of Completion signed by the Director of Engineering upon the Owner satisfactorily completing the works and services and performing all other requirements of this Agreement except the requirements of section 12; and upon the satisfactory completion by the Owner of all the covenants and conditions in this Agreement, and without limiting the generality of the foregoing, including the maintenance of the works and services constructed under this Agreement in complete repair throughout the Warranty Period, it shall provide to the Owner a Certificate of Acceptance of the works and services, signed by the Director of Engineering, together with the remaining Deposit. 19. Nothing in this Agreement shall exempt the Owner or the Lands from the ordinary jurisdiction of the council of the City, its bylaws and regulations, and without limitation the construction of the works and services shall not confer directly or indirectly any exemption or right of set-off from development cost charges, connection charges, application fees, user fees or other fee or charge, except as statutorily required. 20. Any letter of credit provided by the Owner to the City shall be a clean unconditional and irrevocable letter of credit in favour of the City drawn on a Canadian chartered bank or such other financial institution satisfactory to the Director of Engineering. Such letter of credit shall be maintained as good and valid security by the Owner at all times as required by this Agreement, and if the Owner fails or omits to renew any letter of credit and deliver such renewal to the City within 14 days before the expiry of any letter of credit then held by the City, the City may draw down on the then current letter of credit without notice or restriction, and hold the monies in lieu thereof. 21. If the Owner shall fail to observe, perform or keep any of the provisions of this Agreement to be observed, performed or kept by the Owner, the City may at its sole discretion and without prejudice to any other remedy rectify the default of the Owner, at the Owner's expense and without limiting the generality of the foregoing may: (a enter onto the Lands or any highway, right of way or other place where the works and services are to be constructed, and do or cause to be done through its servants, contractors and others, all such things as may be required to fulfil the obligations of the Owner including without limitation, the completion of the works and services;
- 8 - (b (c make any payments required to be made for and on behalf of the Owner; and retain the services of a professional engineer or landscape professional to inspect the works and services in order to determine whether they have been constructed in accordance with the requirements of this Agreement. and for such purposes may without notice or limitation deduct from the Deposit all costs, and expenses incurred, payment and expenditures made, and monies due and owing to the City. 22. If the City incurs any costs and expenses or makes payments all as either provided in section 21 of this Agreement or otherwise in this Agreement, or if the Owner is otherwise indebted to the City under this Agreement, and the Deposit is not sufficient to fully recompense the City, the Owner shall forthwith upon notice from the City pay to the City the amount of such deficiency together with interest thereon at the annual prime rate of interest charged by the Royal Bank of Canada plus 2%, calculated and compounded monthly from the date such cost or expense was incurred or payment or expenditure was made by the City. Such amounts required to be paid by the Owner shall constitute a debt due and owing to the City. 23. Wherever in this Agreement the approval of the Director of Engineering is required or some act or thing is to be done to the satisfaction of the Director of Engineering: (a (b such provisions shall not be deemed to have been fulfilled or waived unless the approval or expression of satisfaction is in writing signed by the Director of Engineering and no prior approval or expression of satisfaction and no condoning, excusing or overlooking by the City or the Director on previous occasions when such approval or satisfaction was required shall be taken to operate as a waiver of the necessity for such approval or satisfaction wherever required by this Agreement; and such approval or satisfaction shall be at the discretion of the Director of Engineering acting reasonably in conformance with sound and accepted public municipal engineering practice. 24. Unless otherwise expressly provided in this Agreement, wherever the Owner is obliged or required to do or cause to be done any act, matter or thing, such act, matter or thing shall be done by the Owner at its sole expense. Part 3 - Time 25. Time shall be of the essence of this Agreement. Part 4 - General 26. Nothing in this Agreement shall be interpreted as creating an agency, partnership or joint ventureship amongst or between the parties. 27. The City has made no representations, warranties, guarantees, promises, covenants or agreements to or with the Owner other than those set out in this Agreement.
- 9-28. No amendment to this Agreement is valid unless in writing and executed by the parties. 29. This Agreement will enure to the benefit of and be binding upon the parties and their respective heirs, administrators, executors, successors, and permitted assignees. 30. The waiver by a party of any failure on the part of the other party to perform in accordance with any of the terms or conditions of this Agreement is not to be construed as a waiver of any future or continuing failure, whether similar or dissimilar. 31. The headings in this Agreement are inserted for convenience and reference only and in no way define, limit or enlarge the scope or meaning of this Agreement or any provision of it. 32. Wherever the singular, masculine and neuter are used throughout this Agreement, the same is to be construed as meaning the plural or the feminine or the body corporate or politic as the context so requires. 33. No remedy under this Agreement is to be deemed exclusive but will, where possible, be cumulative with all other remedies at law or in equity. 34. If any section or provision of this Agreement is found to be invalid by a court of competent jurisdiction, the invalid section or provision shall be severed and the invalidity of such section or provision shall not affect the validity of the remainder of this Agreement. 35. This Agreement is to be construed in accordance with and governed by the laws applicable in the Province of British Columbia. IN WITNESS WHEREOF the parties hereto have set their hands and seals as of the day and year first above written. THE CORPORATION OF THE CITY OF VICTORIA by its authorized signatories this day of, 20. [NAME OF OWNER] by its authorized signatories this day of, 2010. Name: Name:
- 10 - Schedule "A" Subdivision [or Development] Plan
- 11 - Schedule "B" List of Approved Drawings
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CITY OF VICTORIA STANDARD FORMS FOR STATUTORY RIGHTS OF WAY SCHEDULE F TO BYLAW NO. 12-042 Victoria Subdivision and Development Servicing Bylaw 2012
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Page 3 TERMS OF INSTRUMENT - PART 2 Statutory Right of Way W H E R E A S: A. The Transferor is the registered owner in fee simple of the following land in the Province of British Columbia: (the "Lands" B. The Transferee is the Corporation of the City of Victoria; C. This Right of Way is necessary for the operation and maintenance of the Transferee's undertaking as described in Recital D; and D. To facilitate the installation of a system of waterworks/sewerage works/drainage works including all related pipes, valves, fittings, facilities, equipment, power lines, wires, pumps, building, kiosks, treatment plants, signage, outfalls, culverts and appurtenants (the "Works", the Transferor has agreed to permit the construction by the Transferee of the Works on a portion of the Lands and to grant for that purpose the Right of Way in Section 1.1. NOW THEREFORE, in consideration of the sum of One ($1.00 Dollar of lawful money of Canada, now paid by the Transferee to the Transferor (the receipt and sufficiency of which is now acknowledged by the Transferor, and in consideration of the covenants and conditions agreed to be observed and performed by the parties and for other valuable consideration: 1.0 THE TRANSFEROR: 1.1 Pursuant to Section 218 of the Land Title Act, hereby grants, conveys, confirms and transfers, in perpetuity, to the Transferee the full, free and uninterrupted right, license, liberty, privilege, easement, permission and right of way to lay down, install, erect, construct, entrench, operate, maintain, repair, inspect, alter, remove, replace, bury, cleanse, string, and otherwise establish one or more systems of Works upon, over, under and across that part of the Lands shown outlined in bold on the Statutory Right of Way Plan prepared by BCLS, and filed in the Land Title Office under Plan No. (the "Right of Way"; 1.2 Covenants and agrees to and with the Transferee that the Transferee shall: (a (b for itself and its agents, workers, contractors and all other licensees of the Transferee; together with machinery, vehicles, equipment, and materials;
Page 4 (c (d (e upon, over, under and across the Right of Way; as may be necessary, useful, or convenient for the purposes in Section 1.1; and in connection with the operations of the Transferee in relation to the Works; be entitled at all times to enter, use, pass and repass, labour, construct, erect, install, dig, carry away soil or other surface or subsurface materials, and clear of all trees, growth, buildings or obstructions now or hereafter in existence upon, over, under and across the Right of Way; 1.3 Grants, conveys, confirms and transfers unto the Transferee for itself, and its employees, agents, workers, contractors and all other licensees of the Transferee together with machinery, vehicles, equipment and materials, the right at all times to enter upon and to pass and repass over such of the Lands of the Transferor as may reasonably be required for the purpose of ingress to and egress from the Right of Way; 1.4 Transfers, assigns and conveys to the Transferee all right, title and interest in and to any Works that the Transferee, or the Transferor have prior to this Agreement established or constructed or maintained or operated within the Right of Way or in relation to any similar Works previously constructed by any party whatsoever within the Right of Way; 1.5 Grants unto the Transferee the license, permission, easement and Right of Way to lay down, install, erect, construct, operate, maintain, repair, inspect, alter, remove, replace, cleanse, string, and otherwise establish one or more temporary systems of works upon the Lands of the Transferor, in the event of a breakdown or malfunction of the Works; 2.0 THE TRANSFEROR COVENANTS: 2.1 Not, and not to permit or allow any other person, to erect, place, install or maintain any building, structure, addition to a building or structure, mobile home, paved driveway or patio, pipe, wire or other conduit on, over or under any portion of the Right of Way within 3 metres of the Works; 2.2 Not to do anything that in any way interferes with or damages or prevents access to or is likely to cause harm to the Works installed in or upon the Right of Way; 2.3 Not to do, or knowingly permit or allow to be done, any act or thing which, in the opinion of the Transferee, will interfere with or injure the Works and in particular, without limitation, will not carry out any blasting on the Right of Way without the consent in writing of the Transferee, which consent shall not be unreasonably withheld; 2.4 Not to substantially add to or diminish the soil cover over any of the Works installed in the Right of Way and in particular, without limitation, will not construct open drains or ditches along or across any of the Works installed in the Right of Way without the consent of the Transferee, which consent shall not be unreasonably withheld; 2.5 From time to time and at all times at the reasonable request and at the cost of the Transferee to do and execute or cause to be made, done or executed any further and other lawful acts, deeds, things, devices, conveyances and assurances in law required
Page 5 to ensure the Transferee of its rights under this Agreement; and 2.6 To permit the Transferee to peaceably hold and enjoy the rights hereby granted. 3.0 THE TRANSFEREE COVENANTS: 3.1 As soon as weather and soil conditions permit, and as often as it may exercise this right of entry to the Right of Way, to replace the surface soil as nearly as may be reasonably possible to the same condition as it was prior to the entry, in order to restore the natural drainage to the Lands. This shall not require the Transferee to restore any trees or other surface growth, but the Transferee shall leave the Lands in a condition which will not inhibit natural regeneration of that growth; 3.2 As far as reasonably possible, to carry out all work in a proper and workmanlike manner so as to do as little injury to the Lands as possible; 3.3 To make good at its own expense damage or disturbance which may be caused to the Lands in the exercise by the Transferee of its rights under this Agreement except as permitted under this Agreement; 3.4 As far as reasonably possible, to restore any fences, lawns or flower beds, at its cost as nearly as may be reasonably possible to the same condition that they were in prior to any entry by the Transferee upon the Lands; 4.0 THE PARTIES COVENANT TO AND AGREE WITH EACH OTHER, as follows: 4.1 No right herein granted to or reserved by the Transferee shall require the Transferee to clear, repair or maintain the Works or the Right of Way unless the Transferee is expressly required herein to perform such cleaning, repairing or maintenance; 4.2 If the Transferor defaults in observance or performance of its obligations hereunder, the Transferee, after 10 days prior written notice to the Transferor specifying the default and at any time in case of emergency, may (but is not obligated to rectify the default, and the Transferor shall pay to the Transferee, on demand, its reasonable costs in connection with so rectifying; 4.3 The Transferor shall, after execution hereof by it at the expense of the Transferor, do or cause to be done all acts necessary to grant priority to this Agreement over all financial charges and encumbrances which are registered, or pending registration, against the Title to the Lands in the Land Title Office save and except those as have been specifically approved in writing by the Transferee or have been granted in favour of the Transferee; 4.4 Waiver of any default by either party shall not be deemed to be a waiver of any subsequent default by that party; 4.5 Whenever this Agreement creates a power or obligation of the Transferee to make a decision or to exercise any contractual right or remedy, the Transferee may do so in accordance with the provisions of this Agreement and no public law duty, whether arising from the principals of fairness or the rules of natural justice, shall have any
Page 6 application; 4.6 Notwithstanding anything herein contained, the Transferee reserves all rights and powers of expropriation otherwise enjoyed by the Transferee; 4.7 Without limiting Section 4.6, nothing contained or implied in this Agreement will derogate from the obligations of the Transferor under any other agreement with the Transferee or prejudice or affect the Transferee s rights, powers, duties or obligations in the exercise of its functions under all public and private statutes, by-laws, orders and regulations, which may be as fully and effectively exercised in relation to the Lands as if this Agreement had not been executed and delivered by Transferor and the Transferee; 4.8 In spite of any rule of law or equity to the contrary, the Works brought on to, set, constructed, laid, erected in, upon or under the Right of Way by the Transferee shall at all times remain the property of the Transferee, even if the Works are annexed or affixed to the freehold, and the Works shall at any time and from time to time be removable in whole or in part by the Transferee; 4.9 In the event that the Transferee abandons the Works or any part of them, the Transferee may, if it so elects, leave the whole or any part of the Works in place and if so abandoned the Works, or part thereof, shall become the property of the Transferor; 4.10 No part of the title in fee simple to the Lands of the Transferor shall pass to or be vested in the Transferee under or by virtue of this Agreement, and the Transferor may fully use and enjoy all of the Lands of the Transferor subject only to the rights and restrictions in this Agreement; 4.11 If any section, subsection, sentence, clause or phrase in this Agreement is for any reason held to be invalid by the decision of a court of competent jurisdiction, the invalid portion shall be severed and the decision that it is invalid shall not affect the validity of the remainder of the Agreement; 4.12 This Agreement shall attach to and run with the Lands and each and every part to which the Lands may be divided or subdivided whether by subdivision plan, strata plan or otherwise howsoever; 4.13 In the event that the Transferee abandons the Works or any part of them, the Transferee may, if it so elects, leave the whole or any part of the Works in place and if so abandoned the Works, or part thereof, shall become the property of the Transferor; 4.14 The Transferor acknowledges that (a these Covenants are enforceable against the Transferor and his successors in title, but (b the Transferor is not personally liable for breach of these Covenants where such liability arises by reason of an act or omission occurring after the Transferor named herein or any future owner ceases to have a further interest in the Lands; 4.15 If at the date hereof the Transferor is not the sole registered owner of the Lands of the Transferor, this Agreement shall nevertheless bind the Transferor to the full extent of his interest therein, and if he acquires a greater or the entire interest in fee simple, this Agreement shall likewise extend to such after-acquired interests;
Page 7 4.16 Where the expression "Transferor" includes more than one person, all covenants made by the Transferor shall be construed as being several as well as joint with respect to all persons constituting the Transferor; 4.17 This Agreement shall continue to benefit and be binding upon the Transferor and Transferee, and their respective heirs, administrators, executors, successors and permitted assigns, as the case may be; 4.18 Gender specific terms include both genders and corporations, and the singular and plural forms are interchangeable, according to the context; and 4.19 This Agreement will be governed and construed according to the laws of the Province of British Columbia. 5.0 PRIORITY AGREEMENT 5.1 *, as the registered holder of a charge by way of * against the within described property, which said charge is registered in the Land Title Office at Victoria, British Columbia, under number *, for and in consideration of the sum of One Dollar ($1.00 paid by the Transferee to the said Chargeholder (the receipt whereof is hereby acknowledged, agrees with the Transferee, its successors and assigns, that the within Right of Way shall be an encumbrance upon the within described property in priority to the said charge in the same manner and to the same effect as if it had been dated and registered prior to the said charge. The Transferor and Transferee acknowledge that this Agreement has been duly executed and delivered by the parties executing Forms C and D attached hereto.
Schedule A Page 8
Statutory Right of Way - Highway TERMS OF INSTRUMENT - PART 2 W H E R E A S: A. The Transferor is the registered owner in fee simple of the following land in the Province of British Columbia: (the "Lands" B. The Transferee is the Corporation of the City of Victoria; C. This Right of Way is necessary for the operation and maintenance of the Transferee's undertaking as described in Recital D; D. The Transferee wishes to be able to construct, operate and maintain a public highway and other works including but not limited to a system of roadways, sidewalks and utility services in perpetuity over a portion of the Lands; and E. To facilitate the construction and use by the Transferee and the public of a public highway, and to facilitate the installation and use of works that may be placed by the Transferee on, under or over the highway including pavements, sidewalks, boulevards, curbs, gutters, drains, sewers, utility poles, wires, fences, overhead and underground cables, traffic signals, transit shelters, and landscaping including but not limited to trees, shrubs, flowers and grass, and irrigation works required for the maintenance of that landscaping, and any other works, facilities or appurtenants necessary for the use of the Right of Way as a public highway (collectively the "Works", the Transferor has agreed to grant the Right of Way in this Agreement. NOW THEREFORE, in consideration of the sum of One ($1.00 Dollar of lawful money of Canada, now paid by the Transferee to the Transferor (the receipt and sufficiency of which is now acknowledged by the Transferor, and in consideration of the covenants and conditions agreed to be observed and performed by the parties and for other valuable consideration: 1.0 THE TRANSFEROR: 1.1 Pursuant to Section 218 of the Land Title Act, hereby grants, conveys, confirms and transfers, in perpetuity, to the Transferee, its officers, employees, contractors,
licensees and invitees, including without limitation the general public, the full, free and uninterrupted right, licence, liberty, privilege, permission and right of way to use as a public highway, including but not limited to the right to enter onto, use, go, return, pass over and across for highway purposes, that portion of the Lands, shown in heavy outline on the Right of Way Plan prepared by [Name of Surveyor] and filed in the Victoria Land Title Office under Plan No. a reduced copy of which is attached hereto as Schedule A (the Right of Way ; 1.2 Covenants and agrees to and with the Transferee that in connection with the grant under Section 1.1 of this Agreement, the Transferee and its officers, employees, contractors, licensees and invitees shall have the full, free and uninterrupted right, licence, liberty, privilege, permission and right of way to lay down, install, construct, entrench, operate, maintain, inspect, alter, repair, remove, replace, bury, cleanse, string, and otherwise establish one or more system of Works upon the Right of Way; 1.3 Covenants and agrees to and with the Transferee that the Transferee shall: (a (b (c (d (e for itself and its agents, workers, contractors and all other licensees of the Transferee; together with machinery, vehicles, equipment, and materials; upon, over, under and across the Right of Way; as may be necessary, useful, or convenient for the purposes in Section 1.1 and Section 1.2; and in connection with the operations of the Transferee in relation to the Works; be entitled at all times to enter, use, pass and repass, labour, construct, erect, install, dig, carry away soil or other surface or subsurface materials, and clear of all trees, growth, buildings or obstructions now or hereafter in existence upon, over, under and across the Right of Way; 1.4 Grants, conveys, confirms and transfers unto the Transferee for itself, and its employees, agents, workers, contractors and all other licensees of the Transferee together with machinery, vehicles, equipment and materials, the right at all times to enter upon and to pass and repass over such of the Lands of the Transferor as may reasonably be required for the purpose of ingress to and egress from the Right of Way; 1.5 Transfers, assigns and conveys to the Transferee all right, title and interest in and to any Works that the Transferee, or the Transferor have prior to this Agreement established or constructed or maintained or operated within the Right of Way or in relation to any similar Works previously constructed by any party whatsoever within the Right of Way.
2.0 THE TRANSFEROR COVENANTS: 2.1 Not, and not to permit or allow any other person, to erect, place, install or maintain any building, structure, addition to a building or structure, mobile home, paved driveway or patio, pipe, wire or other conduit on, over or under any portion of the Right of Way; 2.2 Not to do anything or to permit any act or thing which in the opinion of the Transferee in any way interferes with or damages or prevents access to or use of the Right of Way or is likely to cause harm to the Works installed in or upon the Right of Way; 2.3 To trim or, if the Transferee determines it is necessary, cut down any tree or other growth on the Lands which in the opinion of the Transferee, constitutes or may constitute a danger or obstruction to the Right of Way or the Works or those using same; 2.4 From time to time and at all times at the reasonable request and at the cost of the Transferee to do and execute or cause to be made, done or executed any further and other lawful acts, deeds, things, devices, conveyances and assurances in law required to ensure the Transferee of its rights under this Agreement; and 2.5 To permit the Transferee to peaceably hold and enjoy the rights hereby granted. 3.0 THE TRANSFEREE COVENANTS: 3.1 As far as reasonably possible, to carry out all work in a proper and workmanlike manner so as to do as little injury to the Lands as possible; and 3.2 To make good at its own expense damage or disturbance which may be caused to the Lands in the exercise by the Transferee of its rights under this Agreement except as permitted under this Agreement. 4.0 THE PARTIES COVENANT TO AND AGREE WITH EACH OTHER, as follows: 4.1 The Transferor shall not diminish or increase the soil cover over any pipe installed in the Right of Way without the Transferee s prior written consent; 4.2 No right herein granted to or reserved by the Transferee shall require the Transferee to clear, repair or maintain the Works or the Right of Way unless the Transferee is expressly required herein to perform such cleaning, repairing or maintenance; 4.3 If the Transferor defaults in observance or performance of its obligations hereunder, the Transferee, after 10 days prior written notice to the Transferor specifying the default and at any time in case of emergency, may (but is not obligated to rectify
the default, and the Transferor shall pay to the Transferee, on demand, its reasonable costs in connection with so rectifying; 4.4 The Transferor shall, after execution hereof by it at the expense of the Transferor, do or cause to be done all acts necessary to grant priority to this Agreement over all financial charges and encumbrances which are registered, or pending registration, against the Title to the Lands in the Land Title Office save and except those as have been specifically approved in writing by the Transferee or have been granted in favour of the Transferee; 4.5 Waiver of any default by either party shall not be deemed to be a waiver of any subsequent default by that party; 4.6 Whenever this Agreement creates a power or obligation of the Transferee to make a decision or to exercise any contractual right or remedy, the Transferee may do so in accordance with the provisions of this Agreement and no public law duty, whether arising from the principals of fairness or the rules of natural justice, shall have any application; 4.7 Notwithstanding anything herein contained, the Transferee reserves all rights and powers of expropriation otherwise enjoyed by the Transferee; 4.8 Without limiting Section 4.7, nothing contained or implied in this Agreement will derogate from the obligations of the Transferor under any other agreement with the Transferee or prejudice or affect the Transferee s rights, powers, duties or obligations in the exercise of its functions under all public and private statutes, by-laws, orders and regulations, which may be as fully and effectively exercised in relation to the Lands as if this Agreement had not been executed and delivered by Transferor and the Transferee; 4.9 In spite of any rule of law or equity to the contrary, the Works brought on to, set, constructed, laid, erected in, upon or under the Right of Way by the Transferee shall at all times remain the property of the Transferee, even if the Works are annexed or affixed to the freehold, and the Works shall at any time and from time to time be removable in whole or in part by the Transferee; 4.10 No part of the title in fee simple to the Lands of the Transferor shall pass to or be vested in the Transferee under or by virtue of this Agreement, and the Transferor may fully use and enjoy all of the Lands of the Transferor subject only to the rights and restrictions in this Agreement; 4.11 If any section, subsection, sentence, clause or phrase in this Agreement is for any reason held to be invalid by the decision of a court of competent jurisdiction, the invalid portion shall be severed and the decision that it is invalid shall not affect the validity of the remainder of the Agreement; 4.12 This Agreement shall attach to and run with the Lands and each and every part
to which the Lands may be divided or subdivided whether by subdivision plan, strata plan or otherwise howsoever; 4.13 The Transferor acknowledges that (a these Covenants are enforceable against the Transferor and his successors in title, but (b the Transferor is not personally liable for breach of these Covenants where such liability arises by reason of an act or omission occurring after the Transferor named herein or any future owner ceases to have a further interest in the Lands; 4.14 If at the date hereof the Transferor is not the sole registered owner of the Lands of the Transferor, this Agreement shall nevertheless bind the Transferor to the full extent of his interest therein, and if he acquires a greater or the entire interest in fee simple, this Agreement shall likewise extend to such after-acquired interests; 4.15 Where the expression "Transferor" includes more than one person, all covenants made by the Transferor shall be construed as being several as well as joint with respect to all persons constituting the Transferor; 4.16 This Agreement shall continue to benefit and be binding upon the Transferor and Transferee, and their respective heirs, administrators, executors, successors and permitted assigns, as the case may be; 4.17 Gender specific terms include both genders and corporations, and the singular and plural forms are interchangeable, according to the context; and 4.18 This Agreement will be governed and construed according to the laws of the Province of British Columbia. 5.0 PRIORITY AGREEMENT 5.1 *, as the registered holder of a charge by way of * against the within described property, which said charge is registered in the Land Title Office at Victoria, British Columbia, under number *, for and in consideration of the sum of One Dollar ($1.00 paid by the Transferee to the said Chargeholder (the receipt whereof is hereby acknowledged, agrees with the Transferee, its successors and assigns, that the within Right of Way shall be an encumbrance upon the within described property in priority to the said charge in the same manner and to the same effect as if it had been dated and registered prior to the said charge. The parties hereto acknowledge that this Agreement has been duly executed and delivered by the parties executing Forms C and D attached hereto.