Keeping it Green Through Covenants and ... - McCarthy TÃ©trault

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Dockside Green, once completed, will include an on-site waste water treatment plant (the “Sewage Plant”), a bio-mass plant for heating (the “District Energy System”), a car cooperative, green roofs, technology enabling its owners and residents to control the level of heat in the suite via Internet, and other innovative technologies. A number of “green” measures, such as dedication of trails and conservation of trees, are not unusual and are often required by local governments in large scale developments. Others are purely technological, such as the ability to monitor the level of heat in any particular suite via Internet. Some measures, such as the car cooperative, Sewage Plant and District Energy System, require ongoing monitoring and operation. A. The Developer and the Society Dockside Green is developed by Dockside Green Limited Partnership (“DGLP”). DGLP subdivided the original lands into a number of different lots. The lots to be used for multi-family residential purpose will be further stratified. Dockside Green (Victoria) Society (the “Society”) was formed with the mandate to, inter alia, maintain and operate various common amenities and facilities. B. The Master Development Agreement DGLP entered into the MDA with the City of Victoria. The MDA set out the parties’ agreement as to the manner in which Dockside Green would be developed. Under the MDA, DGLP was obliged to, inter alia: • comply with design guidelines; • building to certain LEED standards; and • construct and provide the Sewage Plant and the District Energy System. The MDA was registered as a section 219 covenant on title to all of the lands. C. Site-Wide Instruments Two site-wide instruments, a reciprocal easement and a statutory right of way in favour of the Society, were registered on title to establish a regime for the access to and use of common roadways, utilities, amenities and facilities including the Sewage Plant (collectively, the “DG Common Facilities”) by all Dockside Green occupants. The Society has the mandate to operate and maintain the DG Common Facilities as set out in its bylaws. The statutory right of way grants the Society the legal right to access the lands for such purpose. The easement grants the owners rights to access other owners’ lands to carry out maintenance in case the Society fails to do so. A reciprocal easement binding and benefiting all the subdivided lots in Dockside Green was registered to enable access, use and maintenance of the DG Common Facilities. The intent is that the Society will maintain and repair the DG Common Facilities, so that the owner of a dominant tenement may not exercise its rights unless the Society ceases to carry out its responsibilities, and even then, such owner may not exercise its rights except in respect of works that benefit its lands exclusively. Page 3 Keeping it Green through Covenants and Easements
A statutory right of way, section 219 covenant and rent charge have been granted in favour of the Society to operate and maintain the DG Common Facilities. The agreement contains covenants by the Society to authorize the mini-transit service and car share program and to engage in practices necessary to support the applicable LEED certification levels in maintaining the DG Common Facilities. The Society also covenants to prepare an annual budget of the maintenance costs for the DG Common Facilities and to apportion to each owner its applicable share. D. Waste Water Treatment Plant Although responsible for maintaining the Sewage Plant, the Society has contracted with an operator experienced in designing, building and operating wastewater collection and treatment infrastructure to carry out this function. Accordingly, the Society entered into an Operation and Maintenance Agreement (the “O&M Agreement”) with DGLP and Corix Utilities Inc. Under the O&M Agreement, Corix is responsible for the operation and maintenance of the Sewage Plant. In the event of an emergency, if it is necessary to use the City of Victoria’s sanitary sewer system to dispose of sewage and waste water, the Society would be responsible for paying to the City its disposal rates for such use, unless the emergency is due to negligence by Corix. E. Bio-Mass Plant The development includes the District Energy System which provides hot water and heat for residents. The premise is that rather than burning wood waste, a thermochemical gasification process can be used to create a synthetic gas that will be burned to produce heat. The resulting products are then scrubbed, cleaned and burned to produce heat for a heating water boiler, which will supply heat to the development. Dockside Green Energy LLP (the “Utility”) was established to design, install, own and operate the District Energy System. The Utility is regulated under the Utilities Commission Act. A statutory right of way, section 219 covenant and rent charge will be registered over each subdivision lot prior to filing of the strata plan. These instruments will be in favour of Dockside Green Power Ltd. (“DG Power”) to enable DG Power to operate and maintain the District Energy System. Since the Utility cannot be a grantee because it is a partnership, DG Power shows on the charge as the grantee instead. The section 219 covenant provides that the owner of the subdivision lot will not do anything on its lands or buildings which will interfere with or damage the District Energy System. The rent charge secures the fees and charges payable by the residents which are established by DG Power from time to time. F. Car Share Program Agreement DGLP entered into an agreement with the Society and Victoria Car Share Cooperative (the “Cooperative”) to create an opportunity for residential and commercial owners to participate in a car sharing program. The initial ten cars for the program are to be subsidised by DGLP, and if further cars are required, the Cooperative will be responsible for purchasing them. Page 4 Keeping it Green through Covenants and Easements
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Keeping it Green Through Covenants and ... - McCarthy TÃ©trault

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