2001-01-02_Minutes
88-297
COMMON COUNCIL
JANUARY 2, 2001
At a meeting of the Common Council, held at the City Hall in the City of
Saint John, on Tuesday, the second day of January, A.D., 2001, at 7:00 o'clock p.m.
present
Shirley McAlary, Mayor
Councillors Chase, Court, Fitzpatrick, Titus, Trites, Vincent and
White
- and -
Messrs. 1. Totten, City Manager; J. Nugent, City Solicitor; A.
Beckett, Commissioner of Finance and Commissioner of
Corporate Services; P. Woods, Deputy City Manager; J. C.
MacKinnon, Commissioner of Environment and Development
Services; P. Groody, Commissioner of Municipal Operations; W.
Butler, Commissioner of Community Services; J. Baird, Manager
of Community Planning; W. Edwards, Building Inspector; S.
Lodhi, Manager of Real Estate and Facility Management; G. Tait,
Fire Chief; C. Cogswell, Chief of Police; Mrs. M. Munford,
Common Clerk; and Ms. C. Mosher, Assistant Common Clerk.
1. MeetinQ Called To Order - Prayer
Mayor McAlary called the meeting to order, and Rev. Ron Curtis of the
Central Baptist Church offered the opening prayer.
2. Approval of Minutes
On motion of Councillor White
Seconded by Councillor Fitzpatrick
RESOLVED that minutes of the meeting
of Common Council, held on December 18, 2000, be approved.
(Councillor Fitzpatrick withdrew from the meeting.)
Question being taken, the motion was carried.
3 & 6. Municipal Plan Amendment & Re-Zoning
264 Golden Grove Road (Gordon Defazio)
Consideration was given to a report from the City Manager regarding the
application of Gordon Defazio for a Municipal Plan amendment and re-zoning of property
located at 264 Golden Grove Road, the public hearing for which was held on July 31,
2000 at which time first and second readings were given and the third readings of the
proposed amendments were tabled pending a report from the Building Inspector;
advising that the Building Inspector and his staff met with Mr. Defazio a number of times
and have been unsuccessful in obtaining compliance with certain Building Code issues
and, in fact, Mr. Defazio stated that he would not seek professional engineering advice
as required by the Building Inspector; and also advising that the Building Inspector's
office will proceed with enforcement of the Zoning and Building By-laws, and first and
second readings will be ineffective January 4, 2001.
The Mayor advised that Council could not move forward in the above
regard at this meeting because there was no quorum of the Council members who were
present at the July 31, 2000 public hearing for the proposed By-law amendments, which
also means that she will be eliminating item 6 from the agenda of this meeting as it
refers to the same issue.
(Councillors Fitzpatrick re-entered and Councillor Vincent entered the
meeting during the above comments.)
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4. 2001 Salary Grid - ManaQement Employees
On motion of Councillor Court
Seconded by Councillor Trites
RESOLVED that as recommended by the
City Manager, Common Council approve the submitted 2001 Salary Grid and the 2001
Transitional Salary Grid for Management Employees.
Question being taken, the motion was carried.
5. Business Improvement Levy By-law Amendment
On motion of Councillor Fitzpatrick
Seconded by Councillor Court
RESOLVED that the by-law entitled, "By-law
Number B-114-12 A Law To Amend The Business Improvement Levy By-law", be read a
third time and enacted and the Corporate Common Seal be affixed thereto.
The by-law entitled, "By-law Number B-114-12 A Law To Amend The
Business Improvement Levy By-law", was read in its entirety.
Question being taken, the motion was carried.
7. Committee Of The Whole Report
Read the report of the Committee of the Whole
(as follows)
To the COMMON COUNCIL of the City of Saint John
The Committee of the Whole
reports
Your Committee reports that it sat on Monday, December 18, 2000, when
there were present Mayor McAlary and Councillors Ball, Chase, Court, Desmond,
Fitzpatrick, Titus, Trites, Vincent and White, and your Committee submits the following
recommendations, namely:
1. That as recommended by the City Manager, Common Council authorize
the execution of a one-year lease with Aitken Bicentennial Exhibition Centre Inc.
(ABEC), effective January 1, 2001, including a provision that ABEC must provide the
City no later than April 1, 2001 with its plan for the use of the building for the balance of
the year and that, if such plan is not satisfactory to the City, the City may terminate the
lease upon thirty days notice to ABEC and that, with the exception of the foregoing, the
terms of the lease will be as were contained in the draft lease that was submitted in a
report from the City Manager to Council dated December 19, 1997 (M&C 97-440).
2. That as recommended by the City Manager, the City of Saint John enter
into an agreement with the Board of Commissioners of Public Utilities and the owners of
15 Market Square whereby the City of Saint John will sublease to the Board of
Commissioners of Public Utilities (hereinafter referred to as the Sublessee) for a period
commencing as set out below and ending April 30, 2006 for the space identified as a
7,640:t square foot portion of the 14th floor of 15 Market Square (hereinafter referred to
as the Subpremises) as generally shown on the submitted plan, according to the
following terms and conditions: (1) area of the Subpremises - for rent calculation
purposes, the Subpremises be a 7,640 :t square foot portion of the 14th floor, as
generally shown on the submitted plan, and 83% or 1,179 :t square feet of the common
corridors, washrooms, elevators and stairwells, being a total of 8,819 :t square feet of
space; (2) rental term and rates - the sublease with the City shall be 6.33 years more or
less commencing on January 1, 2001 and ending April 30, 2006, and the lease with the
owners of 15 Market Square shall be 3.67 years more or less commencing on May 1,
2006 and ending April 30, 2006, with the combined terms of the sublease and lease to
be 10 years (hereinafter referred to as the term), and rent for the term to be as follows:
A. for that portion of the term between December 1, 2001 and April 30, 2006 (hereinafter
referred to as the sublease), rent shall start at $14.10 per square foot gross per annum
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with an annual increase of 5 cents per square foot; B. for that portion of the term after
May 1, 2006 and provided 15 Market Square (the premises) is not owned by the City of
Saint John (hereinafter referred to as the lease with the owners) rent shall be $17 per
square foot gross per annum; C. in the event that the City of Saint John purchases the
premises or renews its lease to include the 14th floor, rent for that portion of the term
after May 1, 2006 shall start at $15 per square foot gross per annum with an annual
increase of 10 cents per square foot; (3) HST - HST is in addition to rent; (4) common
corridors, elevators, stairwells and washrooms, etc. - the portion of the space associated
with the common area and facilities on the 14th floor will be calculated as follows: area
of Subpremises currently being 7,640 :t square feet divided by the gross useable space
on the 14th floor (9,206 square feet) = .83; .83 x 1,421 square feet (being the total area
of common corridors, washrooms, elevators, stairways, etc., excluding airshaft) = 1,179
:t square feet; space: meaning the area of Subpremises plus a percentage of common
area and facilities on the 14th floor; (5) real property taxes - property taxes shall be
included as part of the rent; (6) lease with the owners - upon the expiration of the lease
between the building owners and the City and provided the City does not purchase the
premises or renew its lease with the owners to include the 14th floor, the owners will
lease the Subpremises to the Sublessee, as per the terms and conditions contained
herein and at that time the Sublessee shall release the City of all obligations contained
herein; (7) option to sublease the remaininQ portion of the 14th floor - the Sublessee
shall be given a one-year option, commencing on the date of execution of the sublease,
to sublease the remaining space on the 14th floor on the same terms and conditions,
provided this right does not limit the City's ability to sublease the said space to a third
party on a month-to-month basis or limit the City's use of the said space, until such time
as the Sublessee exercises its option; (8) first riQht of refusal - in the event the
Sublessee does not exercise its option to occupy the remaining portion of the 14th floor
on or before the first anniversary of the sublease, the Sublessee shall be given a first
right of refusal to commence on the day after the first anniversary of the sublease and
end on the fifth anniversary of the sublease, to sublease the remaining space on the
14th floor on same or similar terms and conditions as that being offered to the City by a
third party (at that time), provided such rent is not less than that set out in paragraph 2(a)
herein; (9) parkinQ - rent, from commencement of the sublease to April 30, 2006, shall
include parking of 15 vehicles with the parking spaces allocated as follows: two in the
City Hall garage, two in the Brunswick Square garage until such time as two spaces
become available in the City Hall garage, and eleven at the Harbour Station parking lot
or closer and, in the event the City does not purchase the premises or renew its lease to
include the 14th floor, rent after May 1, 2006 shall not include parking and the owners
will provide 4 spaces (to the Sublessee) in the premise's parking garage, at market rate;
(10) tenant inducement - in consideration for the expense incurred by the Sublessee for
the cost of demolition of existing walls and partitions on the 14th floor (Subpremises) and
in consideration for common hallway improvements, upon the execution of the sublease,
the Sublessee shall be given: a 45-day fixturing/renovation period - rent-free, and the
first 60 days after the commencement date - rent-free, the commencement date being
the occupancy of the Subpremises by the Sublessee for business purposes, or 45 days
from the execution of the sublease, whichever occurs first, and rent being the total
monthly amount due payable to the City based upon the annual rate reference in
paragraph 2(a), and rent-free being the temporary exemption of the obligation to pay
rent, except for an amount equivalent to $1.60 per square foot, if the commencement of
parking has been requested by the Sublessee; if parking for Sublessee staff is not
required during the fixturing/renovation period, then no money will be due payable during
this period; (11) General Provisions - the Sublessor (being the City of Saint John) shall
provide heat, lights, air conditioning and other general electrical needs; the cleaning of
the common corridors; the stocking of the common washrooms; maintenance of lights
and the resetting of breakers, insurance, except where noted herein; proportionate share
of property taxes; general building maintenance and operations to today's standards, as
provided to the Sublessor by the owners; (12) payment of rent - rent is due payable on
the 1 st of each month, in advance, and the cheque is to be made payable to the City of
Saint John; (13) renovations - with the approval of the owner and Sublessor, the
Sublessee can undertake improvements to the premises; (14) other responsibilities of
the Sublessee - the Sublessee shall be responsible for any additional electrical or air
conditioning needs required for its computers; cleaning the Subpremises and cost
therefor and for parking beyond what has been provided for herein; (15) use of
Subpremises - the intended use of the Subpremises is for an office; a change in use
must be approved by the owners and Sublessor and such approval will not be
unreasonably withheld; (16) assiQnment of sublease - the sublease cannot be assigned
in whole or in part except with the prior written consent of both the Sublessor and the
owners and shall be in accordance with the terms of the head lease and this sublease,
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such approval will not be unreasonably withheld; (17) liability insurance - the Sublessee
shall obtain and provide to the Sublessor, proof of issuance of a liability insurance policy
of an amount not less than two million dollars ($2 million); the Sublessor and the
building's owners be co-named in this policy, and this policy be maintained during the
term of the sublease; (18) the head lease - the Sublessee shall perform and observe all
the covenants on the part of the Sublessor in the head lease dated April 15, 1969 as
from time to time amended other than the covenant to pay rent thereunder and those
covenants which may be in conflict with this sublease or increase the Sublessee's
monetary obligation under the terms of the sublease; the Sublessor shall give the
Sublessee written notice and opportunity to cure in the event the Sublessee is found to
be in default of these additional covenants; except to the extent caused by the negligent
acts or omissions of Sublessor and/or owner, their licenses, agents or contractors; the
Sublessee will keep the Sublessor indemnified against all actions, expenses, claims and
demands arising out of or in connection with any loss, damage or injury resulting from
the Sublessee's default or any of the covenants it is required to comply with; and the
Sublessor covenants with the Sublessee that the Sublessor shall: pay the rent reserved
by the head lease; perform and observe the covenants on the part of the Sublessee
contained in the head lease with respect to the premises including the Subpremises so
far as such covenants are not required to be performed and observed by the Sublessee,
and at all times keep the Sublessee indemnified against all actions, expenses, claims
and demands of any kinds on account of the non-performance of the covenants of the
Sublessor in the head lease; (19) violation of sublease - if and whenever the rent or any
portion thereof hereby reserved is not paid by the Sublessee and remains unpaid for a
period of fifteen (15) days after any of the days upon which the same ought to have been
paid, or if the Sublessee is in breach of or in default under any of the Sublessee's
covenants, conditions or agreements contained in this sublease and such breach or
default continues for fifteen (15) days after written notice thereof has been given by the
Sublessor to the Sublessee without the Sublessee proceeding promptly and diligently to
remedy such breach or default, then in any such case the Sublessor shall have the right
to terminate this sublease and, upon the exercise of such right, the Sublessor may
terminate this sublease and re-enter into and upon and take possession of and enjoy the
Subpremises, or any part thereof, in the name of the whole, as of the Sublessor's former
estate; and the failure of the Sublessor to insist upon the strict performance of any of the
agreements, terms, covenants and conditions hereof shall not be deemed a waiver of
any rights or remedies that the Sublessor may have and shall not be deemed a waiver of
any subsequent breach or default of any such agreements, terms, covenants and
conditions:
AND FURTHER that, in the event the City of Saint John acquires the
ownership of 15 Market Square or extends its tenancy of the space in question beyond
April 30, 2006, the terms of the sublease shall be extended for a further period ending
December 31, 2010, or with the termination of the City's interest in the said space, which
ever occurs first; and the owners of 15 Market Square shall lease to the Board of
Commissioners of Public Utilities the space identified as a 7,640 :t square foot portion of
the 14th floor of 15 Market Square commencing May 1,2006 and expiring December 31,
2010 upon the terms and conditions agreed to by the Board of Commissioners of Public
Utilities and the owners of 15 Market Square:
AND FURTHER that upon commencement of the sublease, the City of
Saint John make payment of $5,000 plus HST to Royal LePage Summit Real Estate
Services Ltd. as a real estate commission; and further that the Mayor and Common
Clerk be authorized to execute the required documents.
Tuesday, January 2, 2001,
Saint John, N.B.
Respectfully submitted,
(sgd.) Shirley McAlary,
C h air man.
7.1. Lease With Aitken Bicentennial Exhibition Centre
On motion of Councillor Court
Seconded by Councillor Fitzpatrick
RESOLVED that section 1 of the above
report be adopted. (Rescinded January 15,2001 Bk. 88 pg. 314 )
Question being taken, the motion was carried.
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7.2. Sublease Of Portion Of 14th Floor, City Hall
On motion of Councillor Court
Seconded by Councillor White
RESOLVED that section 2 of the above
report be adopted. (Rescinded February 5, 2001 Bk. 88 pg. 351 )
Question being taken, the motion was carried.
8. NJP Developments Inc. - Re-ZoninQ 7 MaQazine Street
On motion of Councillor Trites
Seconded by Councillor Court
RESOLVED that the application of NJP
Developments Inc. for the re-zoning of property located at 7 Magazine Street be referred
to the Planning Advisory Committee for a report and recommendation and that the
necessary advertising be authorized in this regard, with the public hearing to be held on
Monday, February 5,2001, at 7:00 o'clock p.m.
Question being taken, the motion was carried.
9. Horst Sauerteig - Community Environment
MonitorinQ AQreement, Crane Mountain Landfill
On motion of Councillor Court
Seconded by Councillor White
RESOLVED that the letter from Horst
Sauerteig commenting further to the City Solicitor's report to Council on December 18,
2000 on the Community Environmental Monitoring Agreement between the Fundy
Region Solid Waste Commission and the Fundy Future Environment and Benefits
Council with regard to the Crane Mountain landfill, be received and filed.
Councillor Chase, Council's representative on the Fundy Region Solid
Waste Commission, advised that the position he follows, based on the City Solicitor's
opinion to Council, is that the expenditure of funds by the host benefits council off-site is
not legal and that it was his intent, after Council dealt with the above motion, to propose
a motion that Council invite the host benefits council to meet with it to discuss the issue.
Question being taken, the motion was carried.
10. Fundy Region Solid Waste Commission
Re Host Community Enhancement Fund
On motion of Councillor Chase
Seconded by Councillor Court
RESOLVED that the letter from the Fundy
Region Solid Waste Commission advising that it has taken note of an opinion rendered
to Council by the City Solicitor concerning authority to use portions of the Commission's
Host Community Enhancement Fund for off-site projects and, having considered the
matter at the Commission's December 20, 2000 meeting, it does not agree with Mr.
Nugent's opinion; submitting a copy of the Commission's letter to the Minister of the
Environment and Local Government, The Honourable Kim Jardine, requesting that she
thoroughly review the legislation, regulations, orders in Council, etc. which constitute the
Commission's authorities; and also advising that it will keep Council posted as its
communications with the Minister evolve, be received and filed and Council await the
Minister's response.
The initial motion proposed by Councillor Chase and seconded by
Councillor Court was to invite the Fundy Future Environment and Benefits Council to
meet with Council at a meeting set for after January 9, 2001, after the Benefits Council
meets. The Mayor made the observation that the Minister's response might not be
received before Council hears from the Benefits Council, and Councillor Fitzpatrick
suggested that the invitation to meet with Council should also be extended to Peter
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LeBlanc, Chair of the Commission. Councillor Titus advised that he would not support
the motion because Council has a legal opinion from the City Solicitor that what the
Benefits Council is doing is improper, thus from his point of view it would be a waste of
time to have the group in to tell Council about something the City Solicitor tells Council it
cannot do and also that the fact that the Commission disagrees with the City Solicitor's
opinion, unless it has a legal opinion to support it, means nothing. Councillor Vincent
suggested that the Environment Minister should be invited to the next Council meeting to
respond in this regard. The Mayor advised that, while she was not against hearing from
the Benefits Council, she did not know what Council would do with any information from
the Benefits Council without knowing the Minister's response, and also that Council, if it
did not like the Minister's answer or wanted more information, could invite the Minister to
meet at that time. The initial motion was withdrawn with the consent of the mover and
seconder, and the above motion was proposed. Councillor Fitzpatrick advised that he
would not support the motion in that this particular government does not have a good
record of responding promptly, and communities in the Saint John area, by hearing from
the Benefits Council, might get information which communities like Greenwich Village,
Browns Flat and others have received on how to apply for funds from the Benefits
Council, who qualifies and who does not qualify and to what communities are entitled.
Question being taken, the motion was carried with Councillor Fitzpatrick
voting "nay".
Adiournment
The Mayor declared the meeting adjourned.
Common Clerk