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2007-05-28_Agenda Packet--Dossier de l'ordre du jourCity of Saint John Common Council Meeting Monday, May 28, 2007 Committee of the Whole 1. Call to Order 5:00 p.m. 8th Floor Boardroom 1.1 Property Matter 10.2(4)(c,d) 1.2 Legal Matter 10.2(4)(g) 1.3 Legal Proceedings 10.2(4)(f,g) Regular Meeting 1. Call to Order -Prayer 6:15 p.m. Council Chamber 2. Approval of Minutes 3. Adoption of Agenda 4. Disclosures of Conflict of Interest 5. Consent Agenda 5.1 FUSION Request to Present (Recommendation Refer to Clerk to Schedule) 5.2 Letter of Thanks from Salvage Corps & Fire Police (Recommendation: Receive for Information) 6. Members Comments 7. Proclamation 8. Delegations /Presentations 9. Public Hearings 10. Consideration of By-laws 10.1(a) Third Reading Zoning By-law Amendment 1490 Manawagonish Rd 10.1(b) Section 39 Conditions 10.2(a)Third Reading Municipal Plan Amendment 303 Golden Grove Rd 10.2(b)Third Reading Zoning By-law Amendment 11. Submissions by Council Members 12. Business Matters -Municipal Officers 12.1 Contract 2006-36 Millidge Street -Street Reconstruction 12.2 Contract 2007-27 Asphalt Concrete Resurfacing - 2007 12.3 2007 Water & Sewerage Utility Fund Capital Program Adjustments 13. Committee Reports 13.1 Committee of the Whole Report Land Acquisition Bell Aliant 14. Consideration of Issues Separated from Consent Agenda 15. General Correspondence 16. Adjournment City of Saint John Seance du Conseil communal Le lundi 28 mai 2007 Comite plenier 1. Ouverture de la seance 17 h Salle de conference du 8~ etage 1.1 Question relative aux biens-fonds -alinea 10.2(4)c) et d) 1.2 Question juridique -alinea 10.2(4)g) 1.3 1.4 Procedures judiciaires -alinea 10.2(4)f) et g) Seance ordinaire 1. Ouverture de la seance, suivie de la priere 18 h 15 Salle du Conseil 2. Approbation du proces-verbal 3. Adoption de 1'ordre du jour 4. Divulgations de conflits d'interets 5. Questions soumises a 1'approbation du Conseil 5.1 Demande soumise par FUSION qui desire se presenter devant le Conseil (recommandation : transmettre au greffier pour qu'une date de presentation soit fixee) 5.2 Lettre de remerciement provenant du Service de protection et du Service de police-incendie (accepter a titre informatifj 6. Commentaires presentes par les membres 7. Proclamation 8. Delegations et presentations 9. Audiences publiques 10. Etude des arretes municipaux 10.1(a) Troisieme lecture du projet de modification de 1'arrete de zonage visant le 1490, chemin Manawagonish 10.1(b) Conditions imposees par Particle 39 10.2(a) Troisieme lecture du projet de modification du plan muiucipal relatif au terrain situe au 303, chemin Golden Grove 10.2(b) Troisieme lecture de la modification relative a 1'arrete concernant le zonage 11. Intervention des membres du Conseil 12. Affaires municipales evoquees par les fonctionnaires municipaux 12.1 Contrat n° 2006-36 relatif aux travaux de refection sur la rue Millidge 12.2 Contrat n° 2007-27 relatif au resurfa~age au moyen de beton asphaltique pour 2007 12.3 Modifications au programme d'immobilisations relatif au fonds du reseau d'aqueduc et d'egouts pour 2007 13. Rapports deposes par les comites 13.1 Rapport du comite plenier relatif a 1'acquisition de biers-fonds par Bell Aliant 14. Etude des sujets ecartes des questions soumises a 1'approbation du Conseil 15. Correspondance generale 16. Cloture de la seance May 24, 2007 Saint John City Council City of Saint John 15 Market Square C.P.1971 Saint John NB, E2L 4L1 Mayor ~, Council, FUSION Saint John Enc. is an organization that is good at making headlines-positive headlines. A social and business network for young Saint Johners, FUSION Saint John Inc. strives to make Saint John ayouth-friendly and youth-relevant city. Since its inception in April 2004, FUSION Saint Jahn Inc. has quickly garnered the support and acclamation of the cammuni#y for its efforts to attract and retain youth to Saint John. FUSION Saint John Inc. has hosted fun, edgy mixers, pro-democracy concerts, arts & culture events, information sessions with local stakeholders, and our annual gala dinner with the premier. Each FUSIC)N Saint John Inc. event serves apurpose-to introduce young Saint Johners to each other and to highlight a city that goes out of its way to welcome youth. Wanting an edgy, focused, celebratory event to ring in Canada Day in the country's first incorporated city, FUSION Saint John Inc. proudly introduced Canada Day Countdown to Saint John on June 30, 2005. Starting at dusk and culminating in a New Years Eve-style countdown to July 1st midnight, the Countdown has attracted award_winning bands and record-setting crowds to the Market Square Boardwalk -and has earned the reputation of an event that is a unique amongst other Canada Day celebrations in Saint John and around Atlantic Canada. Entering its third year, Canada Day Countdown continues to be an event that people are planning far and want to be involved in -from artists to sponsors to Atlantic Canadians wanting to kick-start Canada's birthday party in Saint John. In 2005, Saint John City Council saw the vision of the Countdown event and generously contributed $5000 to kick-start the hugely successful first Canada Day Countdown on June 30th, 2005. lc 200fi, the event carried on as a continued success without financial support required from Council. Now in 2007, the event has lost a few key corporate financial sponsors from previous years and FUSION Saint John Inc. would like to ask Saint John City Council for a contribution of $2500 to keep the event alive 8 well. On behalf of the Fusion Events Planning committee and the Members of 1=USION Saint John lnc., we would like to make a forma! presentation before council & request for sponsorship from the City of Saint John for the 2007 Canada Day Countdown. 8i erely, Kate Barnett 1st Vice Chair and Events Chair FUSION Saint John Inc. Tel:506-333-fi476 Email: Kate.barnett@xerox.com ~~.ccea,~w~ 5~x~,u~e ~Ze~~rl~.x . ~~~ ~~~ City of Saint John 15 Market Square C.P.1971 Saint John (NB) E2L 4L1 Thursday, May 24, 2007 Attention; Mayor & Council of The City of Saint Jahn: We would like to thank you for recognizing our 125 years of service to the City and surrounding communities. We appreciate last evenings event and we were honoured to have you present. Thank you once again from the officers and members of the Saint John Salvage Corps and Fire Police. Sincereiy, ~~ ~~ Harold Mayes Captain of the Saint John Saivage Corps & Fire Police ~~ ~ /"')~ l `~ BY-LAW NUMBER C.P. 110-41 A LAW TO AMEND THE ZONING BY-LAW OF THE CITY OF SAINT JOHN ARRETE N° C.P. 110-41 ARRETE MODIFIANT L'ARRETJJ SUR LE ZONAGE DE THE CITY OF SAINT JOIIN Be it enacted by The City of Saint Lors dune reunion du Conseil John in Common Council convened, as communal, The City of Saint John a follows: decrete ce qui suit The Zoning By-law of The City of L'arret8 sur le zonage de The City Saint John enacted on the nineteenth day of of Saint John, decrete le dix-neuf (19) December, A.D. 2005, is amended by: decembre 2005, est modifie par 1 Amending Schedule "A", the Zoning Map of The City of Saint John, by re-zoning a parcel of land having an area of approximately 2 hectares, located at 1490 Manawagonish Road, also identified as PID Numbers 403451 and 55002190, from "SC" Shopping Centre to "SC-2" Shopping Centre 1 La modification de 1'annexe «A>s, Plan de zonage de The City of Saint John, permettant de modifier la designation pour une parcelle de terrain dune superficie approximative de 2 hectares, situee au 1490, chemin Manawagonish, et portant les NID 443451 et 55002190, de zone de centre commercial « SC >r a zone de centre commercial « SC-2 » - all as shown on the plan attached hereto and forming part of this by-law. IN WITN1tiSS WHEREOF The City of Saint John has caused the Corporate Common Seal of the said City to be affixed to this by-law the * day of *, A.D. 2007 and signed by: - toutes les modifications sont indiqu8es sur le plan ci-joint et font partie du present arrete. EN FOI DE QUOI, The City of Saint John a fait apposer son sceau communal sur le present arrete le 2007, avec les signatures suivantes Mayor/M afire Common Clerk/Greffier communal First Reading -May 22, 2007 Premiere lecture -May 22, 2007 Second Rcading -May 22, 2007 Deuxieme lecture -May 22, 2007 Third Reading - Troisieme lecture - PLANNING AND DEVELOPMENT / URBANISME ET D~VELOPPEMENT REZONING ! REZONAGE Amending Schedule "A" of the Zoning By-Law of The City of Saint John Modifiant Annexe «Ay> de I'Arr~t~ de zonage de The City of Saint John 1 ti' %~ 1 ~~1 az ~ ~~ ~'/ _3 /~ :: %~// /i , ~' ~~ ~ `/ - ' B-~ n.-~ ~:~ i ~ U8 ~ ~~' ~ ~ RF % ~~=3 ~~, ~.// ~ •. / !- \ ~/ ~= y f j'; ~~~ ~ :..•~. •~ ~ ~ , ' .. FROM / DE TO / A SC Shopping Center /Zone de centre . SC-2 Shopping Center commercial Zone de centre commercial Pursuant to a Resolution under Section 39 of the Community Planning Act * Confarm~ment ~ une resolution adoptese par le Conseil municipal en vertu de Particle 39 de la Loi surPurbanisme Applicant: Stacey Murray / Murray's Pub Location: 1490 Manawagonish Road PID(s)/NIP(s) 00403451 and/et 55002190 06N-65SW Drawn By/Cr~~e Par: David Couture Date Drawn/Carte Cr~~e: May 24 mai, 2007 Considered by P.A.C./consid~r~ par le GC.U.: May 15 mal, 2007 Enacted by CounciVApprouve par le Conseil: Filed in Registry OfficelEnregistr~ le: 4 ~~~ ! . '~ (~J] SECTION 39 CONDITIONS - 1490 MANAWAGONISH ROAD That, pursuant to the provisions of Section 39 of the Community Planning Act, the proposed establishment of a club ar launge within the existing shopping centre on the parcel of land having an area of approximately 2 hectares, located at 1490 Manawagonish Road, also identified as P1D Numbers 403451 and 55002190, be subject to the following conditions: a) The number of licensed clubs or lounges in the shopping centre is restricted to a maximum of one. b) The club or lounge must be located in the southwest corner of the existing shopping centre building having civic number 1490 Manawagonish Raad and is restricted in size to the following: i) a maximum floor area of 230 square metres (2,500 square feet) within the building; ii) a maximum of one outdoor fenced patio area on the southwest side of the building, with maximum dimensions of 4.5 metres (15 feet}by 7 metres {24 feet); iii) a maximum of 75 seats. c} Notwithstanding condition {b}{i}, the floor area of the club or lounge may be increased to a maximum of 280 square metres {3,000 square feet} within the existing building provided that such additional floor area is devoted to additional food preparation facilities and the number of seats in the facility remains at a maximum of 75. d) The provision of entertainment in conjunction with the club or launge is subject to the following restrictions: i) entertainment is restricted to the interior of the building; ii} the sound from any recorded music ar live entertainment must not be detectable outside of the building; iii) "exotic entertainment" is prohibited. BY-LAW NUMBER C.P. 105-9 A LAW TO AMENA THE MUNICIPAL PLAN BY-LAW ARRETE N° C.P. 105-9 ARRETE MOAIFIANT L'A.RRETE RELATIF AU PLAN MUNICIPAL Be it enacted by The City of Saint Lors dune reunion du Conseil John in Common Council convened, as communal, The City of Saint John a follows: decrete ce qui suit The Municipal Plan By-law of The City of Saint John enacted on the 3rd day of January, A.D. 2006 is amended by: L'an•ete relatif au plan municipal de The City of Saint John edicte le 3 janvier 2006 est modifie par 1 Amending Schedule 2-A, the Future Land Use Plan, by redesignating a parcel of land with an area of approximately 11,478 square metres, located at 303 Golden Grove Road, also identified as being PID Number 00436725 and portions of PID Number 55153217, from Low Density Residential to Light Industrial classification. 1 la modification de ]'annexe 2-A relative au plan d'amenagement futur des terres, afin de faire passer la designation dune parcelle de terrain dune superficie d'environ 11 478 metres carres, situee au 303, chemin Golden Grove, portant le NID 00436725 et etant aussi une partie du NID 55153217, de zone residentielle a faible densite ~ zone d'industrie leg6re. 2 Adding the following to the list of 2 L'ajout des parcelles de terrain Approved Light Industrial Developments suivantes a la liste de zones industrie insub-section 2.4,7.15: legure a titre de developpement approuve a ]'alines 2.4,7.15 yy) a parcel of land with an area of approximately 11,478 square metres, located at 303 Golden Grove Road, also identified as being PID Number 00436725 and portions of PID Number 55153217. -all as shown on the plan attached hereto and forming part of this by-]aw. yy) une parcelle de terrain dune superftcie d'environ 11 478 metres carres, situee au 303, chemin Golden Grove et faisant partie du terrain portant le NID 00436725 et etant aussi une partie du NID 55153217. - toutes les modifications sont indiquees sur le plan ci joint et font partie du present anete. IN WITNESS WHEREOF The City of Saint John has caused the Corporate Common Seal of the said City to be affixed to this by-]aw the * day of *, A.D. 2006 and signed by: EN FOI DE QUOI, The City of Saint John a fait apposer son sceau communal sur le present arrete ]e * jour de '~ 2006, avec les signatures suivantes: Mayor/Maire Common Clerk/Greffier communal First Reading -May 22, 2007 Premiere lecture -May 22, 2007 Second Reading -May 22, 2007 Deuxieme lecture -May 22, 2007 Third Reading - Troisieme lecture - PLANNING AND DEVELOPMENT / URBANISME ET D~VELOPPEMENT MUNICIPAL DEVELOPMENT PLAN !PLAN D'AMENAGEMENT Amending Schedule 2-A Modifiant annexe 2-A ~, ~ ~ ~ ~ ~ ~ ~ , .,~ ~ ~ ~_ ~ ~~ ~ ~ ~ ~~Y ~~ %~ ~~ 'y ~~~~ _- -. - ate.. ~ ~ ~~ ~ ~• ~ `'~ ~ ~ ~ ~ ~~ % ~ ~ ~ ~ ~- ~ /// ~_ ~~~ ~ _ - ~. ~ ~ FROM / DE TO / A low Density Residential Light Industrial r~sidentielle de density basse Indus#rie legere Applicant: Hughes Surveys & Consultants Inc. Location: 303 Golden Grove Road PID(s)/NIP(S) 00436725 and/et 55153217 07P-13SE Drawn By/Creee Par: David Couture Date Drawn/Carte Creee: Mai 24 mai, 2007 Recommended by P.A.C.IRecommand~ par !e C.C.U.: Mai 15 mai, 2007 Enacted by Council/Approuve par le Conseil Approved 6y MinisterlApprouv~ par le Ministre: Filed in Registry OfftCelEnregistre le: i~ b `, r) BY-LAW NUMBER C.P. 11D-~40 A LAW TO AMEND THE ZONING BY-LAW OF THE CITY OF SAINT JOHN ARRETE N° C.P. 110-40 ARRETE MODIFIANT L'ARRETE SUR LE ZONAGE DE THE CITY OF SAINT JOHN Be it enacted by The City of Saint Lors dune reunion du Conseil John in Common Council convened, as communal, The City of Saint John a follows; decrete ce qui suit The Zoning By-law of The City of L'arrete sur le nonage de The City Saint John enacted on the nineteenth day of of Saint John, decrete le dix-neuf (14) December, A.D. 2005, is amended by: decembre 2005, est modifie par 1 Amending Schedule "A", the Zoning Map of The City of Saint John, by re-zoning a parcel of land located at 303 Golden Grovc Road, having an area of approximately 3,530 square metres, also identified as being portions of PID Number 55153217, from "RS-2" One and Two Family Suburhan Residential to "I-1" Light Industrial classification 1 La modification de 1'annexe c A», Plan de nonage de The City of Saint John, permettant de modifier la designation dune parcelle de terrain situee au 303, chemin Golden Grove, dune superficie approximative de 3 530 metres caries et etant des parties du NID 55153217, afin de faire passer la classification de zone residentielle de banlieue _ habitations unifamiliales et bifamiliales aRS-2r> a zone d'industrie legere « I-1 ». -all as shown nn the plan attached hereto and forming part of this by-law. IN WITNESS WHEREOF The City of Saint John has caused the Corporate Common Seal of the said City to be affixed to this by-law the * day of *, A.D. 2007 and signed by: Mayor/ Maire - toutes les modifications soot indiquees sur le plan ci-joint et font partie du present arretrs. EN FOI DE QUOI, The City of Saint John a fait apposer son sceau communal sur le present arrete le 2007, avec les signatures suivantes Common C1erk/Greffier communal First Reading -May 22, 2047 Premiere lecture -May 22, 2007 Second Reading -May 22, 2067 Deuxieme lecture -May 22, 2007 Third Reading - Troisieme lecture - PLANNfNG AND DEVELOPMENT I URBANISME ET D~VELOPPEMENT REZONING / REZONAGE Amending Schedule "A" of the Zoning By-Law of The City of Saint John Modifiant Annexe «A» de I'Arrete de zonage de The City of Saint John ~i ~/ /~, --~~ ~ ~ " ~.~ ~ (~~ ~~ ~~ ~ ~~~~ / i~ ~~ 7 ~~ -~. ~ \~~~ j ~~~~- ~ FROM / DE TO / A R5-2 One and Two Family Suburban I-1 Light Industrial I Residential / Zane residentielle Zone d'industrie Iegere. de banlieu-habitations unifamiliales et bifamiliales. Applicant: Hughes Surveys & Consultants Inc. Location: 303 Golden Grove Road PID(s}/NIP(S) 55153217 07NP135E Drawn By/Creee Par: David Couture Date Drawn/Carte Creee: May 24 mai, 2007 Considered by P.A.G.lconsid~r~ par Ie C_C.U.: May 15 mal, 2007 Enacted by CouncillApprouv~ par le Conseil: Filed in Registry Office/Enregistre le: ~~~ ~~~ .~ t M & C 2007 - 162 May 24, 2007 His Worship Mayor Norm McFarlane & Members of Common Council Your Worship and Members of Council: SUBJECT: Contract 2006-36: Millidge Street -Street Reconstruction BACKGROUND rt~~ rrt~` ~~ s~~~ ~~r~ This Contract consists of projects that are approved in the 2006 General Fund Capital Program and under the 2006 Water & Sewerage Utility Fund Capital Program Adjustments as follows: 1. A full street reconstruction on Millidge Street, from Moore Street to Paradise Row, which includes excavation, baclcfill, curb, sidewallc, landscaping, and paving. Anew storm sewer and 70 m long retaining wall are also included in the project. 2. The existing 450 mm sanitary sewer on Millidge Street between Moore Street and Paradise Row is in poor condition and will be replaced. TENDER RESULTS Tenders closed on May 23, 2007 with the following results: 1) Gulf Operators Ltd., Saint Jolui, NB $ 290,316.00 2) Fairville Construction Ltd., Saint John, NB $ 296,276.40 3) Galbraith Construction Ltd., Saint John, NB $ 336,922.00 The Engineer's estimate for the work was $305,076.90. M & C 2007 - 162 May 24, 2007 Page 2 ANALYSIS The tenders were reviewed by staff and all tenders were found to be formal in all respects. Staff is of the opinion that the low tenderer has the necessary resources and expertise to perform the work, and recommend acceptance of their tender. FINANCIAL IMPLICATIONS The contract includes work that is charged against two capital work projects. Assuming award of the contract to the low tenderer, an analysis has been completed which includes the estimated amount of work on this project that will be performed by the City and others. The analysis concludes that a total amount of $270,000.00 was provided in the budgets and that the projected completion cost of the projects included in the Contract are estimated to be $274,282.29, including the City's eligible HST rebate - a positive difference of $4,556.10 in the General Fund Capital Program and a negative difference of $8,838.39 in the Water & Sewerage Utility Fund Capital Program. POLICY -TENDERING OF CONSTRUCTION CONTRACTS The recommendation in this report is made in accordance with the provisions of Council's policy for the tendering of construction contracts, the City's General Specifications and the specific project specifications. RECOMMENDATION It is recommended that Contract 2006-36: Millidge Street -Street Reconstruction be awarded to the low tenderer, Gulf Operators Ltd., at the tendered price of $290,316.00 as calculated based upon estimated quantities, and further that the Mayor and Common Clerk be authorized to execute the necessary contract documents. Respectfully submitted, J.M. Paul Groody, P. Eng. Commissioner Municipal Operations & Engineering Terrence L. Totten, F.C.A. City Manager M & C 2007 - 163 May 24, 2007 His Worship Mayor Norm McFarlane & Members of Common Council Your Worship and Members of Council, SUBJECT: CONTRACT NO. 2007-27: ASPHALT CONCRETE RESURFACING - 2007 BACKGROUND rt~~ ~ii~' ~~.~~~~ ~~~ The 2007 General Fund Operating Budget for Municipal Operations & Engineering and the General Fund Transportation Capital Program include a provision for the resurfacing of a number of streets in the City. This is an annual program to upgrade and maintain deteriorating street surfaces under the maintenance and capital resurfacing programs. Tlus contract includes all work associated with the resurfacing of a total of 18 streets or segments of streets. This work consists generally of the supply of all necessary labour, materials and equipment for the placement of approximately 11,156 tonnes of mix type "D" asphalt concrete and 41,910 m~ of asphalt cold milling, along with the adjusting and rebuilding of existing catch basins and manholes. TENDER RESULTS Tenders closed on May 23, 2007, with the following results: Classic Construction Ltd., Saint John, N.B. $ 1,549,177.00 2. Debly Enterprises Ltd., Saint John, N.B. $ 1,706,583.20 Lafarge Canada Inc., Saint John, N.B. $ 1,822,351.04 The Engineer's estimate for the work was $1,617,280.00. M & C 2007 - 163 May 24, 2007 Page 2 ANALYSIS The tenders were reviewed by staff and all tenders were found to be formal in all respects. Staff is of the opinion that the low tenderer has the necessary resources and expertise to perform the worl~, and recommend acceptance of their tender. FINANCIAL IMPLICATIONS This contract involves work that is to be charged to various operating and capital budgets. Assuming award of this contract to the low tenderer, an analysis has been completed which concludes that a total amount of $1,478,555.00 was provided in the various budgets and the projected completion cost of the projects included in this contract is estimated to be $1,428,203.85, including the City's eligible H.S.T. rebate - a $13,225.47 positive difference in the General Fund Transportation Capital Program and a $37,125.68 positive difference in the General Fund Operating Budget. The variance between the engineer's estimate and the low tendered price can mainly be attributed to a slightly lower than expected unit price on asphalt concrete. There was no significant increase in price from 2006 to 2007. POLICY -TENDERING OF CONSTRUCTION CONTRACTS The recommendation in this report is made in accordance with the provisions of Council's policy for the tendering of construction contracts, the City's General Specifications and the specific project specifications. RECOMMENDATION It is recommended that Contract No. 2007-27: Asphalt Concrete Resurfacing - 2007, be awarded to the low tenderer, Classic Construction Ltd., at the tendered price of $1,549,177.00 as calculated based upon estimated quantities, and further that the Mayor and Common Clerk be authorized to execute the necessary contract documents. Respectfully submitted, J. M Paul Groody, P.Eng. Commissioner Municipal Operations & Engineering Terrence L. Totten, F.C.A. City Manager M & C 2007-161 rt~~ ~ii~' ~~.~~~~ ~~~ May 24, 2007 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council: SUBJECT: 2007 Water & Sewerage Utility Fund Capital Program Adjustments PURPOSE The purpose of this report is to obtain Council's approval for proposed adjustments to the 2007 Water & Sewerage Utility Fund Capital Program. BACKGROUND Conunon Council approved the 2007 Water & Sewerage Utility Fund Capital Program on January 29, 2007 (M&C 2007-17). Adjustments to the Capital Program were approved on May 7, 2007 (M&C 2007-130). ANALYSIS It is proposed to increase the budget for one project and decrease the budget for one project while maintaining the overall program envelope at the original level approved by Council. A project summary for each proposed revision to the 2007 Capital Program is attached to this report as Appendix "A." The table on page 2 summarizes the proposed adjustments to the 2007 Capital Program. M & C 2007-161 May 24, 2007 Page 2 2007 WATER & SEWERAGE UTILITY FUND CAPITAL PROGRAM ADJUSTMENTS Item Program Project Change Approved Proposed Amount Amount A Infrastructure Rothesay Avenue Complex - Increase $75 000 $475 000 Renewal -Water Back-up Electrical Generator Budget , , B Water Service Needs Manawagonish Road -Water Decrease Budget $g05,000 $405,000 TOTALS $880,000 $880,000 RECOMMENDATION It is recommended that Conunon Council approve the revisions to the 2007 Water & Sewerage Utility Fund Capital Program as outlined in this report. Respectfully submitted, J. M Paul Groody, P. Eng. Conuilissioner, Municipal Operations & Engineering Terrence L. Totten, F.C.A. City Manager M & C 2007-161 May 24, 2007 Page 3 APPENDIX "A" REVISIONS TO 2007 WATER & SEWERAGE UTILITY FUND CAPITAL PROGRAM PROJECT SUMMARIES The following revisions are proposed for the 2007 Capital Program: • Manawagonish Road - Watermain Tenders closed on May 15, 2007, for the Manawagonish Road -Water, Sanitary, Storm and Street Reconstruction project. A budget surplus was reported for the Watermain component of the project. It is proposed to utilize the budget surplus to offset the proposed scope changes to the Rothesay Avenue Complex -Backup Electrical Generator project. • Rothesay Avenue -Backup Electrical Generator During the preliminary design stage of the Rothesay Avenue -Backup Electrical project, it was identified that the scope of the project would have to be increased to include a new backup electrical generator. The existing generator was deternuned to be undersized when the overall backup power requirements were assessed for the Rothesay Avenue Complex. The main requirement for backup power is to support the new SCADA infrastructure being installed at the Rothesay Avenue Complex. The City of Salnt John May 23, 2007 Deputy Mayor Michelle Hooton And Members of Common Council Deputy and Members of Council, SUBJECT: Land Acquisition -Bell Aliant Common Council meeting in Committee of the Whole reports that it sat on May 22, 2007 and your Committee submits the following recommendation, namely, That as recommended by the City Manager, Common Council approve the terms of the property acquisition between the City of Saint John and Sell Aliant Regional Communications LLP and Be11 Canada, as set out in the attached Agreement for Exchange of Parking Lot Lands, and authorize the Mayor and Common Clerk to execute all documents necessary to complete the exchange. Respect y Submitted ~'`..~~ Norm McFarlanc Chairman ~~~~., SAINT JigHN ----~~ P,Q. Sox 1971 Saint John, NB Canada E2L 4L1 ~ wwv~saintJohn.ca ~ C.P. 1971 Saint john, N: B. Canada E2L 4L1 AGREEMENT FOR THE EKCHANGE OF PARKING LOT LANDS IN SAINT Jol~v, xEw slRUxSwrclc BETWEEN BELL ALIANT REGIONAL COMMUNICATIONS L. P. A limited partnership farmed under the laws of the province of Manitoba by its General Partner Bell Aliant Regional Com;n~tnicadons Iuc. ("Bell Aliant"} and BELL CANADA (~Beil and THE CITY OF.~~INT JOHN A body corporate by Royal Charter cow`" ed and amend ~ at` ~e nM:_ Legislative Assembly of the Pr~n~'e;~ ew Brans the "Ci '~~~ -:.-.-..~:K ~~ 9 ~~~ I THE EXCHANGE 1. Bell Aliar-t`~i~.the City agreed to exchange certain lands anal premises in the .; ~-~: uptow - of~~~int Jahn ( ,fExcl~ange") for the dcvaloPmcnt of the new Police H facil~i~e "Poli c' ' "} by the City. The Exchange shall 6e an the and cnnditlOtLS~~l1~ 111 this ement. ti that tho~;ds owned by the City having the following P1D's (the }' ~;, 381383 PID 00037903 PID 55046379 P ?5 FID 00037325 PID 0003000 PTD $87 PID 55446361 PID {3003$018 PID 37895 shall be exchran~ged for those lands owned by Bell Aliant having the fallowing PID's (the IfBell A11ant Lands"}. D PID il(1037'S07' PID 00037481 PID OOQ377G~ PID 13(1037515 PID 00037457 PID 00037410 PID 0(1037465 PID 00037473 PID 00037408 _~_ THE TERMS 2. For purposes of the Exchange, the fair market value of the City Lands and the cast of other conditions set out herein tv be paid far by the City shall be deemed to be equal to the fair market value of the Bell Aliaat Lauds. 3. The closing date shall be the 31st day of Au us 2007 (the "Closing Date") or such other date as may be agreed upon. The closing of the Exch~ge-shall take place en the Closing Date at the offices of Bell Aliant°s solicitors in Saint Jahn, New Brunswick or at such other place as may be agreed upon. 4. lax the event that the City does not proceed with the de~elap~ment of the Police Facility within 2 years after the Closing Date of the Exchange~~=$ell Aliant shall have the option upon written notice to the City to require the Bell ~Aliant~ands to be excb~auiged for the !l1i Lands at the sole ex a of the Cit . ~ '_~ - t3' 1~ Y ~~:~ _:. ....... 5. The City shall have gaud and marketab 'eta the City L.ancffree an!`'clear of all encuaxxbrauces. Bell Aliant shall not cal ctian of anyi1ti~,ie~deeds, abstracts, surveys, building location certificates, or er of iiile except such as are in possession of the City. C7p ua~l the Closin ate, ' exatuine the title to the City Lands at its own exgc~e. If within t' any v jection to title is made in writing by Bell Aliant fo t1ie=City which ity shall _ unable or unwilling to remove within ten (lU} days of naf~;catian of th 'd objection ar objections and which Bell Aliant will not vy~iye, this Agreement shall, n i ding any intermediate acts ar negotiations in res_pier~=~~~lr~obj_ectionslae null old and the City shall xxot be liable for an of Bel ~ i.ant's~osts~tiar"" ~ -~ y atuagcsi='~ve as a any valid objection so made within such time ian# shal~be conclusively~ilceined to have accepted the title of the City to the Ci " f. Be1lAtisrii= shall and niai'ketable title to the Bell Aliant Lands free and clear of all{`encumbrances. 'ty shall ,oat call for production of any title deeds, abstracts, =~eys, building locati ~tes, ar other evidence of title except such as are iu pas~ession;,:ofBell Aliaat. til the Cloaiaxg Date the City may examine the title to the Bell`liaht Latxcs at its a expense. If within that time atxy valid vbjectiori to title is anade~~"~~riting by the City to the Bell Aliant which Bell Aliant shall be unable ar unwilling=~tai~:remove within ten (10) days of notification of the said abjection ar abjec#ians ailhieh the Gity will not waive, ibis Agreement shall, notwithstanding any intermediate ao#s=or negatiaiians in respect of such objections, be null and void and Bell Aliant shall mdt be liable for any of the City's casts or damages. Save as to any valid objection so made within such time the City shall be conclusively deemed to have accepted the title of Bell Aliani to the Bell Aliant Lands. 7. Dn November 15 2 Bell Aliant shall deliver vacant possession of the Bell Aliant Lands to the City and the City shall deliver vacant possession of the City lands to Bell Aliant. S. Property Taxes shall be adjusted as of the Closing Date. 9. Harmonized Sales Tax ("HST") is payable in respect of this transaction in accordance with the Excise Tax Act (Canada} (tile "Act"). -3- Bell Aliant, Sell, and the City each represent that they are registered far the purposes of the HST imposed under the Act. Bell Aliant, having the HST number 860147925 shall be responsible far the remittance of all HST payable pursuant to the exchange of the City Lands, and the City, having the HST number R122 , 1158. shall be responsible for the remittance of all HST payable pursuant to the exchange of ttm Acll Aliant Lands. Bell's HST number is 100458652. 10. The City shall reimburse Bell Aliant for any income taxes payable by Bell Aliant arising out of the disposition of the Bell Aliant Lands. Bell Aliant has estimated that the income taxes payable arising out of the disposition of the Bell Ali t Lands will be approximately $50,954.44. ll. The City shall reimburse Bell Aliant for all reasonab 1 fees in the ount of $25,404.4Q and reasonable disbursements incurred by Bell in connecti with this Exchange. 12. The City shall reimburse Bell Aliant for Aliant prior tv the Closing Date in cotutec City Lands. appraisal urred by Bell ang the Bell ant Lands ar the 13. CIClNDITIUNS i3.1 Bell Aliaat's Cw The obligations of thy' Exchange shall be subject to the fulfillment ntrrsatisfactivn ~ ' ar carttpliance on or before the Closing Date, each of -w,a~ the following' Ctfiiditions pre ent: (a) 1'h ali, provided that floe oho Horticultural Association shall give and not w its consent=`~~_assistan here and when required, bring to the Legislative mbly the Province,~vf Ir~ew Bnmswic~ (the "i,egislature") a Private Bill (the re the Le~is~tsre to autharixe the conveyance of the freehold title free fro umbrances and{~~restrictians to Lot 86-1 vn the Subdivision Plan filed in the Saint ~ aunty Registry Office as No. 2079 together with a Right of Way an foot and with v machinery and equipment aver the Right of Way shown on the said Subdivision the purposes of ingress, egress and regress between the said Lot $6- 1 and the San oint lt4ad. The Bill shall be in a farm and format acceptable to the Legislature. a City shall-pay the cost of the preparation and translation of the Bill, the cast of the preparation and publication of all notices required for the Bill and any fees required by the Legislature to be paid upon the submission of the Bill. The City shall irx good faith provide all actions necessary to suppntt the approval of the Bill. Bell herein aclaxowledges that the approval of the Bill is subject to the political processes inherent under the Rules of the Legislature and nothing herein shall be construed as a guarantee by the City that the Bill will be approved by the Legislature. Upon the enactment of legislation by the Legislature authorizing the conveyance of the said Lot $6-1 together with the said Right of Way, the City shall promptl}+ execute appropriate documentation in registerable form and deliver same to Bell. On the elate the said conveyance is made to Bell, Bell sh,a11 pay to the City and the Saint Jahn Horticultural Association the suns of Sixteen Thousand ($16,444.00) Dollars plus HST and the City shall pay to Bell Aliant the -4- said sum t~f Sixteen Thousand [$1b,000.00) Dollars plus HST. This condition shall survive the completion of the exchange herein contemplated, (b} Qn the Closing Date, the City will provide Bell Aliant with a Release in the form set out in Schedule "A" hereto with respect to any environmental liability with respect to the Bell Aliant Lauds. {c} Qn the Closing Date, the City shall reimburse Be11 Aliant far any Land Transfer Tax payable to the Provipce ofNew Brunswick an the City Lands. [d) Prior to the Closing Date, the City shall place precast concrete curbs laetweeu the City Lands having P1D's (K1037$$7 and ©003$083 and the adja~ceat parking area awned by the City having P1IJ's 00037$79 and 00©38091. {e} Prior to the Closing Date, the City will, at its sole ex migrate to the nd Titles System those portions of the City Lands not already an d Titles tem. At closing, the City shall deliver to Bell Aliattt a Transfer itt re le forth respect to the City Lands. ~'' :~, [f} Up until the Closing Date, Bell ~Uiant shall eiittfl~tQ;,at its awn ease, conduct all reasonable engineering asses is and surveys of tl~=~-?~.~;s and tv enter an the City Lands far those pure 't being unders{i?odat suc~`yries are to be rainitnally interfering with the current l? chants of tlii~rlrity Lands};provided that if Bell Aliant is not satisfied with the results of s , assessnaezis and surveys, Bell Aliant may cancel the Exchange by w ~ n notice deliver the Cite prier to.the Closing Date. -~ 13.2 Couditians of~tl~e C` The c~bligatoina=~of,the City ~mplete the Exchange shall be subject to the fulfillment or satisfn of, t'sfmpliance , on or before the Closing Data, each of the fallowing [a) ~ 1 Alianf 'I1 farward~oritte City's solicitors at least ten [10} business days prior to the [b} Up until the Closing Date, the City shall be entitled to, at its awn expense, conduct all reasonable engineering assessments and surveys of the Bell Aliant Lands and to enter on the Bell Aliaztt Lands for those purposes, {it being understood that such entries are to be minimally interfering with the current parkiuug tenants of the Bell Aliaut Lands) provided that if the City is not satisfied with the results of such assessments and surveys, the City may cancel the Exchange by written notice delivered to Bell Aliant prior to the Closing Date. - ~ g D executed A'i~avit of Applicant (Form 2) under the Land Titles Aet and at Transfer in registerable form with respect to the Bell Aliant Lands. The City's 'tors are hereby appointed agents of the Bell Aliant for purposes of migration of the B ~ iant Lands to the Land Titles System and the City's solicitors shall, at the sole expens City, apply for the required PID approval, certify title to the Bell Aliant Lands a purpose of migration to the Land Title System, and migrate the Bell Aliant Lands the Land Title System. -5- (c} The City is permitted to post signage upon the Bell Aliant lands far the purpose of pr~pmating the development proposed by the City, provided that permission is exercised by the City with as little disttubartce as possible to the Bell Aliant lands and does not unduly interfere with the current use of the Bel! Aliant lands. GENERAL l4. Any tender of documents or money hereunder maybe made upon any p~Y hereto ar their solicitors and money may be tendered by negotiable cheque from a Canaan chartered bank ar trust company. l S. All public notices to thud parties and all other publicity concerning the transactions contemplated by this Agreement shall be jointly plaand ca~rdiiaa#ed by the parties hereto and no party shall act unilaterally in this regard wittioitt~e prior approval';af the other ~,3x.;, parties heretq such approval not to be unreasonably withheld:`.-~'~=~__. .::_ 16. Qther than as provided for herein, all cos uses {includ,itz~~zy~thoutg~ihutagon, the fees srrd disbursements of legal caimsel) in rmection with tliis:=g~eecnecrt and the -.~_:.. transactions contemplated hereby shall be poi ~ ` . earring suc~~expenses. ~~ l 7. Time shall be of the essence hef. l S. Any notice, direcc~ion ar other document required = 'tted to be given hereunder or far •:_ ._ the purposes hereof..(hereinafter in this~~on a "notice's to any party shall be in writing and shall bes}~~iTeaati~giuen, if delivered ally, or if sent by prepaid registered mail ar if transmitted by=facsiiinte ar~o~lier-~'r~u of ded communication tested prior to (a} ,~~in the a notice to-Bell Aliant and Bell Canada at: ll 1 2W3 Real 1=state Manager (Rod Winters) (b} in ttae case of a notice to the City at; 15 Market Square P'. Q-Box 1971 .Saint John, NB E2L 4Ll Facsimile Number. 5{?6-b74-421 ~ Attention: The Common Clerk -6- or at such other address as the party to whom such notice is to be given shall have last notified the party giving the same in the maruter provided in this section. Arty notice delivered to the party to whorri it is addressed as hereinbefore provided shall be deemed to have been given apd received on the day it is sa delivered at such address, provided that if such day is not a business day then the notate shall be deemed to have. been givers and receivntl as the first business day next fallowing such clay. Any notice mailed as aforesaid shall be deemed to Dave boen given and received an the third business day fallowing the date a£ its mailing. Any native transmitted by faesirnile or other farm of recorded carnmuniratian shall be deemed given and received on the fast business day after its harrSmi.QisiOIl. 1~. Bell Aliant shall have the right to assign this Agreement any of it's rights or obligations hereunder to art affliatetl entity. Subject tlurzrta, net 's Agreement nor arty rights ar obligations hereunder shall be assignable by any rety without the prior written consent of the other parties hereto. Tlxis Agreement sha to the brae of and be binding upon the parties and their respective heirs, executors, 'strators ccessors and permitted assigns. 2Q. The parties hereto shall with reasonable di]i~~v,.,all such things vide all such .~:-~,. reasonable as~rances as rosy be wired to~.ca~:seate the ons contemplated _,. ~.~~ ,-r.~,.~ . hereby, aad each party shall pro such fiutti<r_docurricst#~~ents required t?y any other party as may be teas y necessary .or; desirable ~fo=effect the purpose of this Agreement and carry out its pro , whether ciz1e or after tteClosing Date. 21. If aay covenant or vision of thus went ispmhibited in whale or ira part, such covenant or pro . °,"~ '~ to the~ztent of such pmhibitaan without invalidating the Tema' 'ions hereof and shall be deemed to be severed frornthis Agreem the extent o rohibitian. 22. F~c speetftcly suet Earth ferrc~d to herein, nothing herein, express or implied, is in -shall liestrued to pan ar to giv$ any pezsou, other than the parties their respective sssars arxdy 'fled assigns, any rights or remedres under ar by 23. ens may not ;lie amended or modified in any respect, except by written ecuted by all of the parties hereto. 24. This A he rights, obligations and relations of the parties shall be governed by and coastrued accordance with the laws of the 1?ravinre of New Brunswick and the federal laws Canada applicable therein. The parties agree that the courts of New Brunswick shall have jurisdiction to entertain any actin or other legal proceedings based on any provisions o£ then Agreement and each party claw hereby attorn and ime~vocably submit to the exclusive juuisdiction of the courts of New Brunswick. -7- IN WITNESS WHEREdF thte parties hereto have executed this Agreement as oftite date hereinahove first appearing, SIGNED, SEALED & DIsLIVERED} In the Presence of: ) BELL ALIANT REGIONAL COMMUNICATIONS ANC. Per; Per: J. Patrick Woods, Common Clerk Gammon Council Resolution: .__,_ , 2007. -8- EXCHANGE AGREEMENT SCHEDULE uA" INDEMNITY AND RELEASE AGREEMENT This AgreemenC made this day of , 2047. BETWEEN: THE CITY OF SAINT~,iCSHN, a body corporate by Royal Charter cpnfirmed~'iild~amanded by Acts of the ~,:::: Legislative Assembly of ~T`'~~_.. Province;-~=of New $runswiereinafter called "tfe~ity" -and a cal led rill'IUNiCATIQNS under the laws of WHEREAS pursuant ~;~iu'`exa'lran;agreetieni datl~ even date herewith (the "Exchange Agreement"), the C' green tca e~~hattge ceertaiii~l'iin~s~lacated in the aptawn area of Saint Sohn with Aliani as lay to the Eacc~atYge Agreement will more fully appear, AI~~~VPFTE ity agreed~~„tlSe Exchange Agreement fia execute this indemnity anti rele ~agr~emeot (the ement"}.confirming its obligations to indemnify and release Aliam~~=provided m~the Exch _ _ ent with respect to the Bell Aliant Lands; ND'r?RFFORE in con~'deration of the mutual covenants and agreeaments contained in the Exchange=~~igreentent, and the sum of One Do11ar ($1.00} paid by Aliant to the City (the rec~iipt and sufl~renc~y of which is hereby aclrnowledged by the City), the parties hereto ague as follows: -_..._...___._, 1. Defined Terms All capitalized terms used itt this Agreement (including the recitals hereof] shall have the same meaning as ascribed to thana in the Exchange Agreement, unless the context otherwise requires nr indicates. Otlaerwi.se, throughput this Agrcemer~t, {a} "Environmental Matters" rr~eans en~viranmental matters relating the 13e11 Aliant Lands, whenever and however arising, including, withnut limiting the generality of the foregoing: _ _ _ { 1 } {A) the existence in, on, under or near, the Bel! Aliant Lands, or, _~_ {B) on or after tha Closing Bate, the emanation in any manner frorra or onto the Bell Aliant Lands of any condition or substance (including without limitation, crude ail, refined petroleum products and derivatives thereat, heat, sound, vibration ar radiation resulting from human activity which might impair the quality or usefulness a£ any air, land or water or adversely afFect human health or safety or the reasonable enjoyment of life ar property or damage any plant or animal; {2) the existence of any waste or other substance (including, without limitation, crude oil, relined petroleum prnducts and derivatives thereof) in, an, under nr near the Bell Aliant Lands, or resulting from the emanation in any manner :such waste or other substance fmm ar rota the $eIl Aliant L~and,s; (3} the existence of or depositing iss, an, under or near Aliant disclarge Pram or onto the Bell Aliant Lands of any Co t { limitation, crude oil, refsaed petroleum products and derivati near the Bell Aliant Lands or into any sa~1;-=water ar air in, an, Aliant Lands; _ . -_..... r„~._,..,, (4) any barns, discomfort, illness, ' 'ury ar dead plant or animal and any ad impact or envirannr~ent ar property caused _ 1), {2) or (5) compliance by Ali with the canazn ~ lav regulations, ar ' b certificates, approvals, s matters described in this nitinrs in its en tr and dfor the without the Bell e or injury to any ar damage to the r any present or future laws, rules, {including Remedial Qrders), consents or direction relating to the (b) 1 cans aiai~~.laim, suit, eecling, charge, loss, cyst, expense, liability, denr~and, a , ~ t, fvnealty, jud order (including without limitation Remedial interest, pa~tken~, and/or amage (including reasonable couuscl and other (c) "C 'ant" means (i) ~Y matter, chemicals, materials, substances or conditions {all of w 11 include, without Imitation, odour, smoke, radiation or other farm of energy) re defined, listed, prohibited, controlled or regulated by Ettvimzanental Laws nr. ath ' ossified pursuant to any applicable Environmental Laws or any other formulation in ed te] defuse, list, prohibit, control, regulate or classify substauces by reason of del erious or harmful potentially deleterious ar potentially harnsful properties sceh as igtsitability, corrosivity, reactivity, radioactivity, carcinogenicity or toxicity; {u) any contaminant or pollutant or any substance that when released to the natural environment causes or is likely to cause harm, adverse impact, damage or degradation to or irnpaira}errt of ar the use of the environment, risk to or an adverse effect on human safety or health, injure ar materially discomfort any pcrsorz or interfere with the reasonable enjoyment of life ar property or the normal conduct of business; (iii) getroleurrt and petroleum products, fertilizer, agricultural chemicals and related products, radioactive ma#erials, asbestos in any form that is or could- be friable, transformers ar other equipment that contains polychlorinated biphenyls, and radar gas; (iv} any other chemical, material ar subataaace exposure to which or the release ar discharge of which is lp regulated by any Governmental Authority; and {v) it includes, without limitation, used or waste oil, crude oil and refined petroleum products and their additives and derivatives. (d) "Governmental Authorities" means any government, regulatory authority, governmental department, bureau, agency, catnmissian, board, tribunal, crown corporation, licensing body, court, judicial body, arbitral body oe other law, rule ar regulation-making entity having or purporting tv have jurisdiction over the Bell Aliant bands or any adjacent ar neighbouring property. (e) "Environmental Laws" mean all present artd future environmental, land use, zoning, health, chemical use, safety and sanitation laws, statutes, by-laws and regulations of any Crovernrnental Authorities relating to the protection of th errviror3sraentond governing the presence, management, remediation, use, storage, ent, generation, transportation, processing, handling, production or disposal of Co .. ts, including air pollution and water pollution and the rules, regulations, policies, gui interpretation deoisians, approvals, consents, orders (including without limitation " 1 fkders) an dives of any Governmental Authorities. (fj "Remedial Order" means any complaint, dictaa~t.; _nstrrrction, orde ctian which is issued, filed or imposed by any Governmental,Autli'oTtes~.gursuant to y Environmental Laws and includes, without 1' `tation, any order rrgit>g any, Ludy, investigation, remediatian, control, t~emov enagement, alean~p of oi-c~ft> action io address any Environmental Matters or requ' ,any form of~payment or coperation to be provided to any Gavernntental Authorities. 2. addition to any other indemnities ants and agrees: (a) to be liabl~"fl Claim wi"fespect to the Bell Aliant Lands; and in addition (b) to ir3demiify and Aliant successors and assigns completely harmless in respect of any Claim espect t e Hell Aliant Lands whenever and however caused -;~ ~~o~ incurredand which 'rec jr or indirectly incurred, sustained or suffered by or ~~ , -asserted aganst;,Aliant rela o, arising out of, resulting from or in any way connected wifla~a~~!;)vviranmental M rs, including, without limitation, the fallowing: any latent defects=j~Q4+vSOGV@r caused whether through ar attributable to the negligeztce, wilful misoondt~ct'ar ether actions of Aliant and/or any other person or otherwise; the failure of Aliant and/or~lay _other person to comply with any laws, rules, regulations, ordinances, standards, by-laws, orders {including without limitation Remedial t?rders), Certificates, permits, approvals, guidelines, policies, consen#s or directions connected therewith whether existing prior to or arising after the Closing Date, the costs and expense to study, investigate, Glean up, remediate, coatml, remove, manage or undertake other action. relating to the Bell Aliant Lands or any other properties affected by Contaminants, substances or wastes emanating, migxatit~ ar originating from or auto the Bell Aliant Lands required by Gammon law artdlor as a result of a remedial order, or compliance with any issued or threatened Remedial Orders. 9. City's Release of Aliant The City dues hereby release Aliant; with effect as and from the Closing Date, from each and every Claim whatsoever that the City may now have or may have hereafter, or howsoever suffer, sustain or incur in regard to; arising nut nf., or in any way connected with Environmental Matters with respect to the Bell Aliant Lands. The City further -ll.- covenants and agrees that, in respect of the Bell Aliant Lands, the City will not directly or indirectly attempt to compel Aliant bo study, investigate, remediate, control, clean up, remove ar manage or to pay for the study, investigatiota, remediation, control, clean up, removal or management of any sludge or any u~erground petraleunt or other substances, rr~aierial, or waste, or any Contaminant, ar any constituent element thereof, or seek damages ar other remedies therefor with respect to the Sell Alisnt Lands. 4. I3-sdosure by A~ll~t Aliant has na knowledge of any Environmental Matter or Claim ar Contamination affecting the Bell Aliant Lands other than those disclosed ir1 the Phase 1 Environmental Site Assessment dated December 2#lQ6 and the Fhase II Environmental 5~ite Assessment dated February 2fl07, bath of which were prepared by Fundy Engineering (the "Assessments") and other than problems with lands located adjacertt to the Bell Aliant Lands and referred to in the Assessments. This disclosure is provided a~n;#.he understanding that Aliant has not conferred with former employees or officers of Aliant on:t`Esnatter, 5. N dce Any notice required hereunder shall be given in tleme manner as vided in the Exchange Agreement. -~._-. -_ __-- 6. Amcadmeat No amendment or supF Agreement, and no waiver of any right, remedy or upon Aliant unless expressly sat forth ixx;,writing an, or other ti~c~difi~stion of this hereunder shall be binding ?. Non-Waiver No delay, restraint or payanent ar any other performance by the~'~'iiy remedy or privilege, shall operate .as a waivers shall preclude env other ar>~rther=ea~reise.there on the Aliant in demanding r in the exercise of any other right, ia~single or partial exercise thereof S. Sueressors and '~ s This, Agreement slail'~eztend to and enure to the benefit of Aliant and its successors3" sand b~'lsiuding on the City and its successors and assigns. 9. Further: Assurance - The City~~~sl~all= and will from time to tines and at all times hereafter:.;;"execute such. surances.~l perform and do such further acts as may be u~, ;. required for more e€fiectively i , ntiug and carrying out the true intent and meaning of this 10. Sewersb` •`.ti;~~:. Any provision of this Agreezt~eut which is determined to be void, prohibited. or urien~o~eable, shall be severable to the extent of such avoidance, prohibition or unenforceability, wt~oiit-invalidating. or otherwise limiting or impairing the remaining provisiotas of this Agreement. _ , ]L Guvernin¢ Law This Agreement shall be construed and interpreted in accordance with the laws of the Province of New Brunswick and the laws of Canada applicable therein, 12. Other The obligations, releases and indemnifications of the City herein shall survive the closing of the transactions camternplated by the Exchange Agreement and shall continue in full force and effect indefinitely notwithstanding any change in the legal andlor beneficial ownership of, ar use or occupation af, the Bell Aliant Lands from time to time. 1~_ IN WITNESS WHEREOF the parties have executed this Indenu-ity and Release Agreement as cif the day and year first laereinalaove appearing. THE CITY OF SAIl~'I` J'OSN N.M. 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