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2006-07-31_Agenda Packet--Dossier de l'ordre du jourCity of Saint John Common Council Meeting Monday, July 31, 2006 Location: Common Council Chamber Committee of the Whole 1. Call to Order — 5:00 pm 1.1 Property Negotiations 10.2(4)(d) (Referred July 17, 2006) 1.2 Saint John Waterfront Development 10.2(4)(d) 1.3 Property Negotiations 10.2(4)(d) 1.4 Nominating Committee 10.2(4)(b) Regular Meeting 1. Call to Order — Prayer 7:00 p.m. 2. Approval of Minutes 2.1(a) July 17, 2006 Minutes 2.1(b) July 18, 2006 Minutes 3. Adoption of Agenda 4. Disclosures of Conflict of Interest 5. Adoption of Consent Agenda 5.1 Letter from Janice Chase re Dumping of Leachate in Lorneville (Refer to City Manager) 5.2 Seniors Resource Centre Request for Study to Change Street Construction (Refer to City Manager) 5.3 Request from Estelle Middleton for Crosswalk at Simms St (Refer to City Manager) 5.4 Letter from Police Commission Use of Firing Range by Rothesay Police (Receive for Information) 5.5 Family Plus Request to Present - Understanding the Early Years (Refer to Clerk to Schedule) 5.6 Eric Teed Condition of Steps at City Plaza (Refer to City Manager) 5.7 Amendment to Lease - City Market (Recommendation) 5.8 Addendum to Licence Agreement - North Market Wharf Patio - Market Square (Recommendation) 5.9 2006 Communication Audit (Recommendation) 5.10 Sale of Portion of City Land (formerly Derby Street) Lager Head Investments (Recommendation) 5.11 Sale of Portion of City Land (formerly Derby Street) Scottish Enterprises (Recommendation) 5.12 Sale of Portion of City Land (formerly Derby Street) FIC Holdings (Recommendation) 5.13 Street Naming - Griffin Lane (Recommendation) 5.14 Public Hearing Date - 57 Broadview Avenue (Recommendation) 5.15 Contract 2006 -33: Lily Lake Wastewater Pumping Station and Force Main (Recommendation) 5.16 Red Head Secondary Access Road - Inspection Services (Recommendation) 5.17 Design and Construction Management: Somerset Street Water Pumping Station Upgrades (Recommendation) 5.18 Contract 2006 -29: Spruce Lake Tank - Flow Metering (Recommendation) 5.19 Contract 2006 -21: Crack Sealing - 2006 (Recommendation) 5.20 Enbridge Gas New Brunswick Inc. - Street Rehabilitations (Recommendation) 6. Members Comments 7. Proclamation 8. Delegations/ Presentations 8.17:00 p.m. Pesticides Conservation Council of NB 9. Public Hearings 10. Consideration of By -laws 11. Submissions by Council Members 11.1 Appointment to Standing Committee FCM (Councillor Tait) 11.2 Follow Up to Town Hall Meeting Torryburn (Councillor Tait) 11.3 Ownership of Saint John Energy (Councillor Tait) 11.4 Substandard Condition of Sports Fields for Competitive Play (Councillor Ferguson) 11.5 Report on Cultural Affairs, Cultural Diversity and Economic Growth (Councillor Farren) 12. Business Matters — Municipal Officers 12.1 Saint John Police Force Apr 2006 YTD Operating Budget 12.2 Traffic and Parking Meter By -law Amendments (a)Legal Department (b)Parking Commission 12.3 (a) City Manager and (b) Pension Board A Response to Councillor Ferguson's Presentation entitled "Report on the City of Saint John Pension Plan and Financial Reporting" 12.4 Contract 2006 -26: Latimer Lake and Spruce Lake Water Treatment Facilities: Electrical, Mechanical and Architectural Upgrades 12.5 Spruce Lake Water Treatment Facility - Electrical and Mechanical Upgrades 12.6 Cost Sharing - Ashburn Road 12.7 Land Exchange City of Saint John and Collings 12.8 Lot Levy - Maber & Somerville Joint Venture 1965 Sandy Point Road 12.9 Lease of Space Stall No. 4 - The City Market 12. 10 Lease of Space Stalls 9, 10 and 11 - The City Market 13. Committee Reports 13.1 Vision 2015 Committee Proposal for Communications Strategy Consultant 13.2 July 17/06 Committee of the Whole Report (a) Appointment of Treasurer (b) Legal Dept. Compensation 13.3 Vision 2015 Committee Composition 14. Consideration of Issues Separated from Consent Agenda 15. General Correspondence 15.1 Letter from CFMH Radio Requesting Letter of Support to CRTC 16. Adjournment City of Saint John Seance du conseil communal Le lundi 31 juillet 2006 Emplacement: Salle du conseil communal Comite plenier 1. Ouverture de la seance : 17 h 1.1 Negociations relatives a la propriete - alinea 10.2(4)d) (reunion du 17 juillet 2006) 1.2 Amenagement du secteur riverain de Saint John, alinea 10.2(4)d) 1.3 N6gociations relatives aux biens -fonds — alinea 10.2(4)d) 1.4 Comite des candidatures 10.2(4)b) Seance ordinaire 1. Ouverture de la reunion, suivie de la priere 19h 2. Approbation du proces- verbal 2.1(a) Proces- verbal de la seance tenue le 17 juillet 2006 2.1(b) Proces- verbal de la seance tenue le 18 juillet 2006 3. Adoption de l'ordre du jour 4. Divulgations de conflits d'interets 5. Adoption de l'ordre du jour relatif aux questions soumises a 1'approbation du conseil 5.1 Lettre de Janice Chase — suj et : Rej et de produits de lixiviation a Lorneville (transmettre au directeur general) 5.2 Demande du Seniors' Resource Centre visant la realisation d'une etude concernant la modification de la construction de routes (transmettre au directeur general) 5.3 Demande d'Estelle Middleton concernant 1'ajout d'un passage pour pietons a la rue Simms (transmettre au directeur general) 5.4 Lettre de la Commission de police relative a l'utilisation du champ de tir par le Service de police de Rothesay (accepter a titre informatif) 5.5 Demande de presentation de Family Plus — Comprendre la petite enfance (transmettre au greffier pour qu'une date de presentation soit fixee) 5.6 Eric Teed — Etat des marches de 1'h6tel de ville (transmettre au directeur general) 5.7 Modification de bail - marche municipal (recommandation) 5.8 Addenda au contrat de licence — North Market Wharf Patio — Place du marche (recommandations) 5.9 Verification des communications de 2006 (recommandations) 5.10 Vente d'une portion d'un bien -fonds municipal (anciennement la rue Derby) Lager Head Investments (recommandations) 5.11 Vente d'une portion d'un bien -fonds municipal (anciennement la rue Derby) Scottish Enterprises (recommandations) 5.12 Vente d'une portion d'un bien -fonds municipal (anciennement la rue Derby) FIC Holdings (recommandations) 5.13 Attribution de noms aux routes — allee Griffin (recommandations) 5.14 Date de la tenue d'une audience publique relativement au 57, avenue Broadview (recommandations) 5.15 Soumission pour le contrat 2006 -33 : Poste de pompage des eaux usees et conduite de refoulement du lac Lily (recommandations) 5.16 Voie d'acces secondaire Red Head — Services d'inspection (recommandation) 5.17 Gestion de la conception et de la construction : Ameliorations au poste de pompage de 1'eau de la rue Somerset (recommandations) 5.18 Soumission pour le contrat 2006 -29 : Reservoir du lac Spruce — Mesure de debit (recommandations) 5.19 Soumission pour le contrat 2006 -21 : Calfeutrage des fissures 2006 (recommandations) 5.20 Enbridge Gaz Nouveau - Brunswick — Refections de rues (recommandations) 6. Commentaires presentes par les membres 7. Proclamation 8. Delegations et presentations 8.1 19 It - Pesticides — Conseil de la conservation du N. -B. 9. Audiences publiques 10. Etude des arretes municipaux 11. Intervention des membres du conseil 11.1 Nomination au comite permanent - FCM (conseiller Tait) 11.2 Suivi a 1'assemblee publique locale sur Torryburn (conseiller Tait) 11.3 Possession de Saint John Energy (conseiller Tait) 11.4 Tres mauvais etat des terrains de jeu pour les competitions serieuses (conseiller Ferguson) 11.5 Rapport sur les affaires culturelles, la diversite culturelle et la croissance economique (conseiller Farren) 12. Affaires municipales evoquees par les fonctionnaires municipaux 12.1 Budget d'exploitation du corps de police de Saint John jusqu'en avril 2006 12.2 Modifications a 1'arrete relatif a la circulation et les parcometres (a) Service juridique (b) Commission sur le stationnement 12.3 (a) Directeur general et (b) commission des pensions — Reponse a la presentation du conseiller Ferguson intitulee « Report on the City of Saint John Pension Plan and Financial Reporting » (Rapport sur le regime de retraite et les etats financiers de The City of Saint John) 12.4 Soumission pour le contrat 2006 -26 : Usine de traitement des eaux usees du lac Spruce et du lac Latimer: Mises a niveau de 1'equipement electrique, mecanique et architectural 12.5 Usine de traitement des eaux usees du lac Spruce — mises a niveau de 1'equipement electrique et mecanique 12.6 Partage des couts - chemin Ashburn 12.7 Echange de biens -fonds entre The City of Saint John et Collings 12.8 Imp6t sur les lotissements — entreprise Maber & Somerville Joint Venture du 1965, chemin Sandy Point 12.9 Location de 1'etal ri « 4 » au marche municipal 12.10 Location des etals n" 9, 10 et 11 au marche municipal 13. Rapports de comites 13.1 Proposition par le Comite sur la Vision 2015 d'un candidat au poste de consultant en matiere de strategie de communications 13.2 Rapport du Comite plenier du 17 juillet 2006 (a) nomination d'un tresorier (b) remuneration du Service juri dique 13.3 Composition du Comite sur la Vision 2015 14. Etude des sujets ecartes des questions soumises a 1'approbation du conseil 15. Correspondance generale 15.1 Demande ecrite de la station ratio CFMH pour une lettre d'appui a l'intention du CRTC 16. C16ture de la reunion present Norman McFarlane, Mayor Deputy Mayor Hooton and Councillors Chang, Chase, Court, Farren, Ferguson, McGuire, Tait, Titus and White -and - P. Woods, Common Clerk and Deputy City Manager; J. Nugent, City Solicitor; A. Beckett, Deputy City Manager of Programs and Priorities and Acting Treasurer; P. Groody, Commissioner of Municipal Operations; J. Baird, Commissioner of Planning and Development; W. Edwards, Commissioner of Buildings and Inspection Services; R. Simonds, Fire Chief; A. Bodechon, Chief of Police; and Jackie Ferrar, Administrative Assistant REUNION DU CONSEIL COMMUNAL DE THE CITY OF SAINT JOHN TENUE A L'HOTEL DE VILLE, LE 17 JUILLET 2006 A 18 H 30 Sont presents : Norman McFarlane, maire la mairesse suppleante Hooton et les conseillers Chang, Chase, Court, Farren, Ferguson, McGuire, Tait, Titus et White et P. Woods, greffier communal et directeur general adjoint; J. Nugent, avocat municipal; A. Beckett, directeur general adjoint, programmes et priorites et tresorier par interim; P. Groody, commissaire aux operations municipales; J. Baird, commissaire a I'urbanisme et au developpement; W. Edwards, commissaire aux services d'inspection et des batiments; R. Simonds, chef du service d'incendie; A. Bodechon, chef de police; et Jackie Ferrar, adjointe administrative. 1. Call To Order — Prayer Mayor McFarlane called the meeting to order and Pastor Clayton Misner of Saint John Four Square Church offered the opening prayer. 1. Ouverture de la reunion, suivie de la priere La seance est ouverte par le maire McFarlane et le pasteur Clayton Misner, de I'eglise Four Square, a Saint John, off re la priere d'ouverture. 2 Approval of Minutes On motion of Councillor Titus Seconded by Deputy Mayor Hooton RESOLVED that the minutes of the meeting of Common Council held on July 4, 2006, be approved. Question being taken, the motion was carried. 2 Approbation du proces- verbal de la derniere reunion Proposition du conseiller Titus Appuyee par la mairesse suppleante Hooton RESOLU que le proces- verbal de la reunion du conseil communal tenue le 4 juillet 2006 soit approuve. approved. On motion of Councillor White Seconded by Deputy Mayor Hooton RESOLVED that the agenda of this meeting be Question being taken, the motion was carried. On motion of Councillor Court Seconded by Councillor White RESOLVED that items 14.1, 14.2, 15.1, 15.2, and 15.3, which were not considered by Council at the July 4t" meeting, be moved forward for consideration on the agenda, and Council adopt this procedure for all items that are carried forward from a previous meeting. Question being taken, the motion was carried. 3 Adoption de I'ordre du jour soit adopte. Proposition du conseiller White Appuyee par la mairesse suppleante Hooton RESOLU que I'ordre du jour de la presente reunion A ('issue du vote, la proposition est adoptee. Proposition du conseiller Court Appuyee par le conseiller White RESOLU que les points 14.1, 14.2, 15.1, 15.2 et 15.3, qui n'ont pas ete abordes par le conseil lors de la reunion du 4 juillet dernier, soient examines des maintenant, et que le conseil adopte cette procedure pour tous les points reportes d'une reunion precedente. A ('issue du vote, la proposition est adoptee. 4. Disclosures of Conflict of Interest 4. Divulgations de conflits d'interets 5. Adoption of Consent Agenda 5.1 Human Development Council - Official City Status for Saint John Youth Cabinet That the letter from the Human Development Council requesting that Council establish by resolution a Saint John Youth Cabinet, be referred to the City Manager. 5.2 Saint John Transit Commission - 2006 Operating Budget Status That the letter from the Saint John Transit Commission advising that it is currently operating on budget, be received for information. 5.3 Request from Anglo Society of NB for City to Fly its Flag September 18, 2006 That the request from the Anglo Society of NB for the City to fly its flag on Anglo Day, September 18, 2006, be referred to the City Manager. 5.4 NB Historical Society - Re- naming Of Streets That the letter from the NB Historical Society voicing concerns regarding the re- naming of City streets from a historical perspective, be referred to the City Manager. That the request from Milk for Mom's Inc. to present to Council, be referred to the Common Clerk to schedule a presentation. 5.6 Request to Present from Partnerships Saint John That the request of Partnerships Saint John to present to Council, be referred to the Common Clerk to schedule a presentation. 5.7 Eric Teed Regarding Cigarette Butt Receptacles That the letter from Eric Teed regarding the placement of cigarette butt receptacles in front of uptown businesses, be referred to the City Manager. 5.8 Request to Present to Council from Saint John Waterfront Development Partnership That the letter from Bill MacMackin requesting to present to Council with an update on the Water Street Precinct and Cruise Terminal, be referred to the Common Clerk to schedule a presentation on July 31, 2006. On motion of Deputy Mayor Hooton Seconded by Councillor White RESOLVED that the Consent Agenda be approved. Question being taken, the motion was carried. 5. Adoption de I'ordre du jour relatif aux questions soumises a I'approbation du conseil 5.1 Conseil de perfection nement social - Statut officiel de la ville en ce qui a trait au Youth Cabinet (cabinet des jeunes) de Saint John Que la lettre du Conseil de perfectionnement social demandant que le conseil etablisse par resolution un Youth Cabinet (cabinet des jeunes) de Saint John soit transmise au directeur general. 5.2 Etat du budget d'exploitation de 2006 de la Commission de transport de Saint John Que la lettre de la Commission de transport de Saint John indiquant qu'elle respecte son budget d'exploitation soit acceptee a titre informatif. 5.3 Demande de la Anglo Society of NB en vue de faire hisser son drapeau le 18 septembre 2006 Que la demande de la Anglo Society of NB pour que la ville hisse son drapeau a I'occasion du Anglo Day, le 18 septembre 2006, soit transmise au directeur general. 5.4 Societe historique du Nouveau - Brunswick - Changement de noms de rues Que la lettre de la Societe historique du Nouveau - Brunswick exprimant des inquietudes concernant le changement de nom de rues de la ville d'un point de vue historique soit transmise au directeur general. 5.5 Demande de presentation de la part de Milk for Mom's Inc. QUE la demande de Milk for Mom's Inc. visant a faire une presentation devant le conseil soit transmise au greffier communal pour qu'il fixe une date de presentation. 5.6 Demande de presentation de la part de Partenariats de Saint John Que la demande de Partnerships Saint John visant a faire une presentation rlavant la rnncaiI cnit trancmica ai i nraffiar rnmmi inal nni it ni i'iI fiva i ina rlata A= Que la lettre d'Eric Teed concernant la disposition de recipients de megots de cigarettes a I'avant des entreprises du quartier Uptown soit transmise au directeur general. 5.8 Demande de presentation devant le conseil de la part de Partenariat d'amenagement du secteur riverain de Saint John Que la Iettre de Bill MacMackin demandant de faire une presentation devant le conseil, accompagnee d'une mise a jour sur le poste de police et le terminal de croisiere de la rue Water, soit transmise au greffier communal pour qu'il fixe une presentation le 31 juillet 2006. Proposition de la mairesse suppleante Hooton Appuyee par le conseiller White RESOLU que l'ordre du jour relatif aux questions soumises a I'approbation du conseil soit adopte. A ('issue du vote, la proposition est adoptee. 6. Members Comments Council members commented on various community events. Mayor McFarlane advised that Mr. Totten is in Halifax this evening representing the City at a meeting with all levels of government regarding the Bay Ferry issue. He explained they have agreed through ACOA to hire a company to develop a needs assessment and economic development assessment study on the service. When this study is completed it will be submitted to the committee set up by the Hon. Peter MacKay . On motion of Councillor Titus Seconded by Councillor McGuire RESOLVED that item 11.2 - Response Regarding Pension Plan Deficit, be brought forward for consideration. Question being taken, the motion was carried. 6. Commentaires presentes par les membres Les membres du conseil s'expriment sur diverses activites communautaires Le maire McFarlane informe que M. Totten est a Halifax ce soir pour representer la ville a une reunion regroupant tous les paliers de gouvernement concernant la question de Bay Ferry. II explique que les intervenants ont accepte, par 1'entremise de I'APECA, d'engager une entreprise pour elaborer une etude d'evaluation des besoins et d'evaluation du developpement economique a 1'egard du service. Lorsque cette etude sera terminee, elle sera soumise au comite etabli par 1'Honorable Peter MacKay. Proposition du conseiller Titus Appuyee par le conseiller McGuire RESOLU que le point 11.2 intitule Reponse concernant le deficit du regime de retraite soit examine des maintenant. A ('issue du vote, la proposition est adoptee. 7. Proclamation 7. Proclamation 11.2 Response Regarding Pension Plan Deficit Referring to his submitted presentation, Councillor Ferguson provided Council with a detailed review advising that the information which he has been ordered to provide to (- ni inr,il is alraar Iv in thair nnccaccinn (-:ni inr,illnr Farni mnn aYnraccar I tha via\ni thic Pension Plan, what the impact is on the taxpayer, and what the cost is to the organization. He noted Council's obligations, the different stories and piecing together of information, and the financial statement irregularities. He concluded his presentation commenting with regard to conflict of interest and governance advising that he wants to make certain we are prudent and yet fair to our employees pointing out that he wants to stop the City of Saint John's taxes from increasing and proposed recommendations as outlined in his report. Mayor McFarlane questioned Councillor Ferguson if his report contains all the documentation and information that he has; to which he confirmed it is all that he has which relates to his comments at previous Council meetings. Mr. Nugent commented with regard to the characterization of his June 28, 2006 letter to Council as a political document, stating that there should be no misunderstanding that this document is a written legal opinion from the City Solicitor to Council, the purpose being to advise Council of their legal duty, in his view, to seek from Councillor Ferguson a full disclosure of any information that he had which would support his comments which implied improper and inappropriate or misleading behaviour that bore adversley upon the City's well being particularly with regard to the responsibility of the unfunded liability of the Pension Plan. Referring to the claim by Councillor Ferguson that access to legal advice was denied, Mr. Nugent referred to a meeting with Councillor Ferguson and the City Manager at which time there was no clear formulation of the issue or questions that would be put to outside legal counsel and as a result he was not prepared under these circumstances to retain outside counsel. He expressed the opinion that he would not be acting responsibly if he was to retain someone when the issue with which they were to deal with was not clearly set out. Mr. Nugent advised that he has repeatedly written to Council encouraging them to seek outside legal advice and explained that this advice was taken and extensive opinions were received from an expert in this area. Mr. Nugent stated that the suggestion by Councillor Ferguson that in light of Council's decision to accept his advice on matters relating to the pension, notwithstanding his declared conflict of interest, Council has somehow accepted responsibility for this advice is not accurate. He spoke concerning his two disclosures of interest that were filed with respect to pension matters, the first being based upon his membership in the Pension Plan and secondly his membership on the Board of Trustees for the Pension Plan. He further explained that his professional obligation to Council as City Solicitor is in no way diminished or eliminated because Council has determined that, notwithstanding his filed declarations of interest, they want him to provide them with advice; noting that it must be clear that the obligation he has is the same obligation that he has always had, which is to provide Council with advice to the best of his ability. Commenting with regard to Councillor Ferguson's presentation, Mr. Beckett expressed the view that there are numerous issues which require a response from staff and responded to the following remarks by Councillor Ferguson - (1) debt payment was not made in the amount of $600,000 - Mr. Beckett reminded Council that this was a budget error made during the preparation of the 2004 budget advising that all debt payments were made in accordance with the requirements of these debt issuances, all debt payments were properly recorded in the financial statements and at no time has there been any debt payments not included in the financial statements of the City; (2) costs associated with the early retirement /voluntary separation program that were included in the notes to the financial statements - Mr. Beckett explained in 2003 a cost of $3.4 million represented the amount that was actually paid into 2003 related to the early retirement /voluntary separation program. Some employees had requested that the payments be spread over a two year period, to ease tax implications, so there was a further $400,000 paid in 2004 related to the program bringing the total cost to $3.8 million. Mr. Beckett explained this matter was discussed with the Financial Committee at that time as well as Council and noted it is properly recorded in the financial statements. He advised that the total cost of the program in the amount of $3.8 million is consistent with the report that was originally given to Council at the time the packages were approved which indicated a total cost to the municipality of $3.7 million, the difference being due to the final calculations of the buyouts. Referencing the comment by Councillor Ferguson that applications for disability were approved inappropriately by the Pension Board and that this relates to a cultural problem in tha (.itv NAr Parkatt rlictrihi itarl a rnnv of a rannrt to (ni inril rlatarl lani iary 3n ?nnR decision is required from the Pension Board. He further advised that an independent medical opinion was required for every application which stated whether or not the employee met the Board's definition for disability; and stated that the notion that this was simply an agreement between a supervisor and an employee was incorrect. Commenting with regard to staffing numbers, Mr. Beckett confirmed Councillor Ferguson's remarks that at the time of the approval of the retirement programs there was the indication that the management /professional staff would be reduced from 83 to 68 positions. Referring to a report, which he distributed to Council entitled Management /Professional Staff, he explained that in 2003 the establishment went down to 69 positions and explained that since that time positions have been added pointing out the addition of staff is Council's authority. He continued with a review of this report which detailed the positions that were eliminated and those that have been added during the period 2003 to 2006. Mr. Beckett stressed in all cases positions were added only with the approval of Council during the annual budget process and the subsequent approval of the Establishment. Responding to a question raised by Councillor Court, Mr. Beckett advised there were no enhancements to any employee's pension as a result of the early retirement /voluntary separation program noting that there were the one -time buyouts. He further explained that during a discussion with the Plan's Actuary, it was suggested that Council review the actuarial valuation completed in December 2003 where the financial impact of individuals retiring earlier than assumed in the last valuation was $2.2 million. Discussion continued with Councillor Court expressing agreement with the issues raised in Councillor Ferguson presentation. Councillor Chase inquired if benefits to pensioners would be reduced if Council decided to make changes; to which Mr. Beckett advised their benefits are protected under the Pension Benefits Act. Referring to Councillor Ferguson's comment that "Saint John's disability pension approvals are four times the industry standard and represent 80% of an employee's gross salary, individuals on a disability pension receive 80 % ", he questioned what an employee would receive on a disability pension. Responding, Mr. Beckett explained that the maximum disability pension that a person can receive is 60% of their salary depending on their number of years of service and the years of service at the time of disability. He pointed out there is a cap in the Pension Plan which prohibits a disability pension from exceeding the years maximum pensionable earnings figure as prescribed in the Pension Plan. Referring to the City Solicitor's report which was considered at Council's meeting of July 4t ", Councillor McGuire inquired if Councillor Ferguson had responded to all of the questions contained in that report. Mr. Nugent responded that the report contained statements by Councillor Ferguson at recent Council meetings that gave rise, in his view, to a reasonable understanding that he was suggesting that something amiss had been taking place concerning the requirement to fund the liabilities of the Pension Plan. He explained his purpose in bringing this to Council's attention was to highlight the fact that there were comments made that had to be based upon information, information which had not been provided with his comments pointing out that this is a very important issue of the City - financial integrity. He noted that, in his view, it is important for Council to pursue from Councillor Ferguson the information upon which he based his comments. The intention being that the information lying behind these comments would then be available for Council to consider, discuss, pursue if necessary and then make an informed decision. Discussion continued with Councillor Chang raising concerns with regard to what information Council has on this matter and Councillor White expressing the opinion that he cannot make a decision on this matter until a response is received from staff and /or the Pension Board with regard to the discrepancies that have been raised this evening. Speaking in support of Councillor Ferguson's presentation, Councillor Farren raised the issue of conflict of interest concerning a Pension Board member and stressed the importance of having an independent review for the benefit of everyone. He advised that he will not support any changes in pension benefits or an increase in taxes until an independent review is carried out. Councillor Tait informed Council members that he requested a legal opinion, from the City Solicitor as to whether or not he was in a conflict of interest and requested Councillor Ferguson's response to the following questions: 1. Is your slide presentation of tonight representative of and consistent with the report submitted to the Mayor and Council in the Council Kit on July 14, 2006 - Councillor Ferguson responded yes. 2. Does the same report and presentation comply with the direction of Council and is it consistent with the resolution? - Councillor Ferguson responded the information has been completely provided and if it is not in this presentation, then it was provided before the presentation, in the media or in some other format - you have answers to every question. 3. Have you provided concrete examples of reliable and professional sources of factual information to substantiate the statements that you have made as referred to by the City Solicitor, John Nugent? Councillor Ferguson responded - these are the facts, they are serious and there needs to be an investigation - yes. Councillor Titus expressed agreement with Councillor White's suggestion to have this matter referred to staff and the Pension Board for a response. Continuing, he stressed his concerns with regard to comments made by Councillor Ferguson during his presentation, in particular relating to disability. On motion of Councillor Tait Seconded by Councillor McGuire RESOLVED that the City Solicitor, John Nugent, be given the task of evaluating provided information with a targeted scope of reviewing his own letter to Council which includes the resolution adopted by Council dated June 28, 2006, re duty to act in the best interest of the citizens along with Councillor Ferguson's response, report and presentation. This resolution is made with the following inherent provisions - during the review the City Solicitor with whatever assistance he deems necessary, specifically address the following key components: (1) a professional ruling on whether Councillor Ferguson has indeed complied with the resolution contained in the City Solicitor's report to Council to act in the best interest of the citizens; (2) evaluation or dismissal of any or all the information provided by Councillor Ferguson with the inclusion of rationale for validation or dismissal. The scope of the review is to cover the comments and information contained in Councillor Ferguson's report to Council and slide presentation which constitutes his response to the resolution of Council following the Solicitor's report to Council. Objective, factual information must be determined to have been provided by Councillor Ferguson free of perceptions and third party innuendos. Deputy Mayor Hooton inquired how long it would take the City Solicitor to respond to the above resolution. Mr. Nugent stated he did not fully understand the motion and expressed the view that Council has been having a problem with the lack of information that would support comments that have been made over time by Councillor Ferguson. He noted there were issues raised in the presentation dealing with the disability allowance administration of the Pension Plan, cost to the Pension Plan of the early retirement /voluntary separation program, and errors in the financial statements. Mr. Nugent stated that in order to resolve this matter Council has an obligation to look at the information that bears upon these issues and then come to a decision whether or not there is any merit in pursuing them further and suggested the following - the administration of disability be referred back to the Pension Board for a response; the cost of the early retirement/voluntary separation program be referred to the Commissioner of Finance and the City Manager along with the matter regarding errors in the financial statements. Upon receipt of these responses, Council will then be in a position to determine if they have a sensible, full explanation of each of these points and if satisfied with the responses, pass a resolution to that effect and there will be no need to pursue it further. If the responses are not satisfactory, then the matter can be pursued. approvals; the number of individuals receiving benefits; the level of those benefits and the possibility of an insurance claim in relation to some medical opinions that may or may not have been received - be referred to the Pension Board for a response; the financial impact on early retirement with regard to changes in the establishment and the financial position of the Pension Plan when the early retirement plan was instituted in 2002 - 2003 - be referred to the City Manager and Treasurer; the difference in financial statement notes $3.4 - $3.8 million - be referred to the City Manager for a response; recording of the debt payment - difference between budget amount and the actual amount recorded in the financial statements - $600,000 difference - be referred to the City Manager. Referencing a comment made during the presentation concerning the management group approving its own salaries and promotions, Mr. Woods explained they are not involved in establishing their own salaries and they do not make their own promotions. He advised Council that the City Manager brings a salary scale recommendation to Council for its consideration and suggested that the City Solicitor respond to the comments concerning conflict of interest and the question of access to professional advice. Mr. Woods informed Council members that everyone is willing and desirous to provide any information that is required. Mr. Woods commented briefly regarding the pension questions that have been submitted advising that they have been forwarded to the respective pension professionals for a response and a teach -in will be held for Council with the written responses being submitted prior to this session. On motion of Deputy Mayor Hooton Seconded by Councillor White RESOLVED that the appropriate responses be provided to Council from the Pension Board, City Manager, Treasurer and City Solicitor as outlined below: 1. Cost of disability claims with particular regard to; approvals; the number of individuals receiving benefits; the level of those benefits and the possibility of an insurance claim in relation to some medical opinions that may or may not have been received - be referred to the Pension Board for a response. 2. Financial impact of the early retirement with particular regard to changes in the establishment and the financial position of the Pension Plan when the early retirement plan was instituted in 2002 - 2003 - be referred to the City Manager and Treasurer. 3. The difference in the 2004 - 2006 financial statement notes regarding cost of early retirement- be referred to the City Manager. 4. Recording of the debt payment - difference between budget amount and the actual amount recorded in the financial statements - $600,000 difference - be referred to the City Manager 5. The comment concerning conflict of interest and the question of access to professional advice - be referred to the City Solicitor. Councillor Ferguson expressed the opinion that the questions raised have been asked for two years and stated the proposed recommendation does not cut it. He stated this is a serious issue and there needs to be a full independent investigation. Councillors Chang and Titus advised they could not support the motion stating it was a waste of time. Councillor Chang suggested that Councillor Ferguson be given time to submit further questions. Councillor Farren advised he did not support the motion because it will not bring Council any further ahead and asked that an independent review be conducted. Councillor Court stated that, in his opinion, Councillor Ferguson believes he has responded to Council's questions and based on this information he wants an independent review carried out. (The Mayor announced a five minute recess after which Council reconvened at 9:05 P.M.) 11.2 Reponse concernant le deficit du regime de retraite Se rapportant a la presentation qu'il a soumise, le conseiller Ferguson presente au conseil un examen detaille, indiquant que les renseignements qu'on lui a ordonnes de fournir au conseil se trouvent deja en sa possession. Le conseiller Ferguson est d'avis que ces renseignements ont ete enfouis dans un ensemble de reponses erronees et incompletes, notant qu'il s'agit de renseignements selectifs, organises et presentes au conseil par le personnel comme si c'etait un document homogene convaincant. Le conseiller Ferguson continue sa presentation en soulevant des questions concernant les faits allegues, les repercussions financieres sur le regime de retraite, les repercussions sur les contribuables et les couts pour ('organisation. II souligne les obligations du conseil, les differentes histoires et I'assemblage de renseignements, et les irregularites dans les etats financiers. 11 conclut sa presentation en abordant la question des conflits d'interet et de la gouvernance, indiquant qu'il veut s'assurer que nous fassions preuve de prudence sans toutefois titre injuste envers nos employes, soulignant qu'il veut que cesse la hausse de taxe de The City of Saint John et propose des recommandations, comme I'indique son rapport. Le maire McFarlane interroge le conseiller Ferguson, a savoir si son rapport renferme toute la documentation et ('information qu'il possede; it confirme que c'est tout ce qu'il possede concernant les commentaires qu'il a obtenus durant les reunions precedentes du conseil. M. Nugent discute de ('interpretation de sa lettre du 28 juin 2006 presentee au conseil a titre de document politique, indiquant qu'il faut bien comprendre que ce document constitue un avis juridique ecrit de I'avocat municipal au conseil visant, selon lui, a informer le conseil de son obligation juridique de tenter d'obtenir du conseiller Ferguson une divulgation complete de tout renseignement dont it dispose qui appuierait ses commentaires qui supposent un comportement deplace et inapproprie ou un comportement trompeur qui nuit au bien -titre de la ville, particulierement en ce qui a trait a la responsabilite du passif non capitalise du regime de retraite. Se rapportant a la demande faite par le conseiller Ferguson pour que I'acces a un avis juridique soit refuse, M. Nugent fait allusion a une reunion avec le conseiller Ferguson et le directeur general durant laquelle it n'y avait aucune formulation claire du probleme ou des questions qui seraient presentes a un avocat externe et, donc, it n'etait pas pret, dans ces circonstances, a retenir les services d'un avocat externe. II est d'avis qu'il n'agirait pas de maniere responsable s'il devait retenir les services d'un professionnel lorsque le probleme dont les membres allaient traiter n'etait pas clairement enonce. M. Nugent indique avoir ecrit a maintes reprises au conseil pour 1'encourager a obtenir un avis juridique et explique que ce conseil a ete suivi et que beaucoup d'opinions ont ete fournies par un expert dans ce domaine. M. Nugent declare que la suggestion du conseiller Ferguson selon laquelle, compte tenu de la decision du conseil visant a accepter son avis sur les questions relatives a la retraite, malgre son conflit d'interet avoue, le conseil a, en quelque sorte, accepte la responsabilite a 1'effet que cet avis n'etait pas exact. II parle de ses deux divulgations d'interet qui ont ete presentees a 1'egard des questions de retraite, la premiere fondee sur sa participation au regime de retraite et la deuxieme, sur sa participation au conseil d'administration du regime de retraite. De plus, it explique que son obligation professionnelle a 1'endroit du conseil a titre d'avocat municipal n'est reduite ou eliminee d'aucune fagon, car le conseil a decide que, malgre ses divulgations d'interet presentees, it voulait recevoir des conseils de sa part; indiquant qu'il doit titre clair que ('obligation qu'il a est identique a celle qu'il a toujours eue, soit d'offrir au conseil des avis au meilleur de ses competences. Discutant de la presentation du conseiller Ferguson, M. Beckett indique que, selon lui, on compte un grand nombre de problemes necessitant une reponse du personnel et repond aux remarques suivantes du conseiller Ferguson : 1) le montant de remboursement de la dette ne montait pas a 600 000 $ - M. Beckett rappelle au conseil qu'il s'agit d'une erreur budgetaire survenue durant la preparation du budget 2004, indiquant que tous les montants de remboursement de la dette ont ete verses conformement aux exigences relatives a 1'emission de ces titres de creance, tous les mnntnntc rla ramhni iminmant An la Antta atniant hian incrritc rinnc lac atatc finnnriarc ai montant qui, en realite, a ete paye en 2003 relativement au programme de retraite anticipee et de depart volontaire. Certains employes ont demande que les paiements soient repartis sur une periode de deux ans afin de reduire les repercussions fiscales, resultant en un autre montant de 400 000 $ verse en 2004 en rapport avec le programme, pour un cout total de 3,8 millions de dollars. M. Beckett explique que cette question a fait ('objet de discussions aupres du comite des finances et du conseil a ce moment et note que le montant est bien inscrit dans les etats financiers. II informe que le cout total du programme au montant de 3,8 millions de dollars est conforme au rapport presente a l'origine au conseil au moment ou les forfaits ont ete approuves, indiquant un cout total de 37 millions de dollars pour la municipalite, la difference decoulant des calculs finaux des indemnites pour depart volontaire. Se rapportant aux commentaires du conseiller Ferguson a 1'effet que les demandes d'invalidite ont ete approuvees de maniere inappropriee par la commission des pensions et qu'il s'agit d'un probleme culture) dans la ville, M. Beckett distribue une copie d'un rapport de la commission des pensions au conseil date du 30 janvier 2006 qui presente en detail les etapes suivies pour approuver les demandes d'invalidite et le nombre de personnes invalides a ce moment, qui sont passees de 103 a 99 en raison de quatre deces. 11 informe le conseil que parmi ces 99 personnes, 60 % regoivent des prestations du RPC, ce qui signifie qu'elles sont automatiquement approuvees aux fins d'invalidite en vertu du regime de la ville et que la commission des pensions n'a pas a rendre de decision. De plus, it avise que chaque demande exigeait une opinion medicale independante qui indiquait si 1'employe repondait a la definition de la commission en matiere d'invalidite; et declare que la notion selon Iaquelle it ne s'agissait que d'une entente entre un superviseur et un employe etait erronee. Discutant du nombre d'employes, M. Beckett confirme les remarques du conseiller Ferguson selon Iesquelles, au moment d'approuver les programmes de retraite, it etait justifie de croire que le nombre de gestionnaires et de professionnels allait diminuer, passant de 83 a 68. Se rapportant a un rapport qu'il a distribue au conseil intitule Management /Professional Staff, it explique qu'en 2003, 1'effectif a decline et qu'on comptait 69 postes. 11 affirme que depuis ce temps, des postes ont ete ajoutes, soulignant que I'ajout de personnel releve du conseil. 11 poursuit par un examen de ce rapport qui presente en detail les postes qui ont ete elimines et ceux qui ont ete ajoutes durant la periode 2003 a 2006. M. Beckett insiste sur le fait que dans tous les cas, des postes n'ont ete ajoutes que sur I'approbation du conseil durant le processus budgetaire annuel et I'approbation subsequente de 1'effectif. En reponse a une question soulevee par le conseiller Court, M. Beckett informe qu'aucune amelioration n'a ete apportee a la rente de retraite des employes en raison du programme de retraite anticipee et de depart volontaire, soulignant 1'existence des indemnites pour depart volontaire uniques. De plus, it explique qu'au cours d'une discussion avec I'actuaire du regime, on a suggere que le conseil passe en revue 1'evaluation actuarielle realisee en decembre 2003 ou les repercussions financieres d'employes prenant Ieur retraite plus tot que prevu dans la derniere evaluation s'etablissaient a 2,2 millions de dollars. La discussion se poursuit et le conseiller Court exprime son accord avec les points souleves dans la presentation du conseiller Ferguson. Le conseiller Chase demande si les avantages des retraites seront reduits si le conseil decide d'apporter des changements; sur ce, M. Beckett repond que Ieurs avantages sont proteges en vertu de la Loi sur les prestations de pension. Se rapportant au commentaire du conseiller Ferguson a 1'effet que « les approbations relatives aux rentes d'invalidite de Saint John sont quatre fois plus elevees que les normes de l'industrie et que ces rentes equivalent a 80 % du salaire brut d'un employe, les prestataires d'une rente d'invalidite regoivent 80 % de Ieur salaire », it demande quel serait le montant que recevrait un employe prestataire d'une rente d'invalidite. En reponse, M. Beckett explique que la rente d'invalidite maximale qu'une personne peut recevoir equivaut a 60 % de son salaire en fonction du nombre d'annees de service et des annees de service au moment de l'invalidite. 11 souligne que le regime de retraite fixe un plafond qui empeche une rente d'invalidite de depasser le montant correspondant au maximum des gains annuels ouvrant droit a pension, comme le prevoit le regime de retraite. permettent, selon lui, de bien comprendre qu'il suggerait que quelque chose n'allait pas concernant 1'exigence visant a financer le passif du regime de retraite. II explique qu'en portant cette situation a I'attention du conseil, it voulait souligner le fait qu'il y a eu des commentaires exprimes qui devaient reposer sur des renseignements, Iesquels n'avaient pas ete fournis avec ses commentaires, soulignant qu'il s'agit d'un enjeu tres important de la ville, soit I'integrite financiere. 11 a note que, selon Iui, it est important pour le conseil que le conseiller Ferguson approfondisse Ies renseignements sur Iesquels it appuie ses commentaires. L'intention vise a mettre Ies renseignements qui se cachent derriere ces commentaires a la disposition du conseil pour qu'il Ies examine, en discute et Ies approfondisse, au besoin, afin de prendre une decision eclairee. La discussion se poursuit et le conseiller Chang fait part de ses inquietudes concernant Ies renseignements dont dispose le conseil sur cette question et le conseiller White est d'avis qu'il ne peut prendre de decision sur cette question avant de recevoir une reponse du personnel ou de la commission des pensions en ce qui concerne Ies contradictions qui ont ete exprimees ce soir. Parlant en faveur de la presentation du conseiller Ferguson, le conseiller Farren souleve la question du conflit d'interet concernant un membre de la commission des pensions et insiste sur l'importance de mener un examen independant pour le bien de tous. 11 avise qu'il n'appuiera aucun changement apporte aux prestations de retraite ou une hausse de taxes jusqu'a ce qu'un examen independant soit realise. La mairesse suppleante Hooton mentionne brievement qu'elle ne voit aucune activite illegale et s'exprime au sujet des reponses fournies par divers professionnels en placement qu'elle a questionnes, a savoir si Ies indemnites pour depart volontaire ont des repercussions sur la rente de retraite a cet egard, indiquant que la reponse a toujours ete non. Le conseiller Tait informe Ies membres du conseil qu'il a demande un avis juridique a I'avocat municipal quant a savoir s'il etait en conflit d'interet et a exige que le conseiller Ferguson reponde aux questions suivantes : 1. Votre presentation de diapositives de ce soir est -elle representative du rapport presente au maire et au conseil dans la trousse de documents presentee au conseil le 14 juillet 2006 et conforme a ce rapport? — Le conseiller Ferguson a repondu oui. 2. Le rapport et la presentation susmentionnes respectent -its l'orientation du conseil et sont -its conformes a la resolution? - Le conseiller Ferguson repond que Ies renseignements ont ete entierement fournis et que s'ils ne figurent pas dans cette presentation, its ont alors ete fournis avant la presentation, dans Ies medias ou sous un autre format - vous avez Ies reponses a toutes Ies questions. 3. Avez -vous fourni des exemples concrets de sources profession nelles et fiables de renseignements concrets pour appuyer Ies declarations que vous avez faites, comme le mentionne I'avocat municipal, John Nugent? Le conseiller Ferguson repond que ce sont Ies faits, qu'ils sont graves et qu'il faut tenir une enquete - oui. Le conseiller Titus s'exprime en faveur de la suggestion du conseiller White pour que cette question soit transmise au personnel et a la commission des pensions afin d'obtenir une reponse. Ensuite, it insiste sur ses preoccupations relatives aux commentaires qu'a exprime le conseiller Ferguson au cours de sa presentation, particulierement en ce qui concerne la question de l'invalidite. Proposition du conseiller Tait Appuyee par le conseiller McGuire RESOLU que I'avocat municipal, John Nugent, soit charge d'evaluer Ies renseignements fournis en ayant pour objectif d'examiner sa propre Iettre presentee au conseil qui comprend la resolution adoptee par le conseil, datee du 28 juin 2006, concernant le devoir d'agir dans le meilleur interet des citoyens, accompagnee de la reponse, du rapport et de la presentation du conseiller Ferguson. Cette resolution est adoptee et comporte Ies dispositions inherentes suivantes — durant 1'examen, I'avocat municipal, qui dispose de toute I'aide qu'il juge necessaire, traitera nrPrlCPmant liPC P14imiznk rlac ci iivank • I1 I inP d4irkzinn rPnfil IP nS1r I In nrnfaccinnnal rejet. L'etendue de 1'examen vise a couvrir les commentaires et les renseignements contenus dans le rapport du conseiller Ferguson presente au conseil et la presentation de diapositives qui constitue sa reponse a la resolution du conseil a la suite de la presentation du rapport de I'avocat au conseil. 11 faut etablir que le conseiller Ferguson a fourni des renseignements objectifs et concrets denues de toute perception et insinuation par des tiers. La mairesse suppleante Hooton demande combien de temps it faudrait a I'avocat municipal pour repondre a la resolution susmentionnee. M. Nugent declare ne pas comprendre entierement la motion et affirme, selon Iui, que le conseil connait des difficultes avec le manque de renseignements qui appuieraient les commentaires qui ont ete exprimes par le conseiller Ferguson au fit du temps. 11 a indique que des questions ont ete soulevees dans la presentation concernant I'administration des allocations d'invalidite du regime de retraite, le coot du programme de retraite anticipe et de depart volontaire pour le regime de retraite et les erreurs dans les etats financiers. M. Nugent affirme que pour regler ce probleme, le conseil est tenu d'examiner les renseignements qui se rapportent a ces questions pour en prendre ensuite une decision, a savoir s'il vaut la peine ou non de les poursuivre, et fait la suggestion suivante : I'administration de l'invalidite soit retournee a la commission des pensions afin d'obtenir une reponse; le coot du programme de retraite anticipe et de depart volontaire soit transfers au commissaire aux finances et au directeur general, de meme que la question des erreurs dans les etats financiers. Sur reception de ces reponses, le conseil pourra alors determiner s'il dispose d'une explication complete et sensee pour chacun de ces points et s'il est satisfait des reponses, it passera une resolution a cet effet et it ne sera pas necessaire de poursuivre la question. Si les reponses ne sont pas satisfaisantes, it sera alors possible de poursuivre la question. Se rapportent aux commentaires de I'avocat municipal selon Iesquels it ne comprend pas la resolution proposee, le conseiller Tait informe qu'il ne veut pas causer davantage de confusion au conseil et retire sa proposition, avec le consentement de la personne qui I'a appuyee. M. Woods suggere qu'il serait bon d'obtenir une reponse du conseil relativement aux inquietudes soulevees et fait la proposition suivante : que le coot des indemnites pour invalidite en ce qui concerne les approbations; le nombre de personnes qui regoivent des prestations; le montant de ces prestations et la possibilite qu'une reclamation d'assurance en rapport avec certaines opinions medicales ait ete regue ou non soit transmis a la commission des pensions afin d'obtenir une reponse; que les repercussions financieres sur la retraite anticipee relativement aux modifications apportees a 1'effectif et a la situation financiere du regime de retraite au moment oo le regime de retraite anticipe a cree en 2002 - 2003 soient transmises au directeur general et au tresorier; que la difference figurant dans les notes afferentes aux etats financiers de l'ordre de 3,4 - 3,8 millions de dollars soit transmise au directeur afin d'obtenir une reponse; que l'inscription du montant de remboursement de la dette (difference entre le montant prevu au budget et le montant actuel figurant dans les etats financiers - une difference de 600 000 $) soit transmise au directeur general. Se rapportent a un commentaire exprime durant la presentation concernant le fait que le groupe de gestion approuve ses propres salaires et promotions, M. Woods explique que les membres du groupe ne procedent pas a 1'etablissement de Ieur propre salaire et its n'etablissent pas Ieur propre promotion. 11 informe le conseil que le directeur general recommande au conseil d'examiner la possibilite de recourir a une echelle salariale et suggere que I'avocat municipal reponde aux commentaires relatifs aux conflits d'interet et a la question de I'acces a des conseils d'experts. M. Woods informe les membres du conseil que tous sont prets et desireux d'offrir les renseignements exiges. M. Woods s'exprime brievement sur les questions de pension qui ont ete presentees, indiquant qu'elles ont ete transmises aux professionnels respectifs des questions de pension afin d'obtenir une reponse et un seminaire sera donne au conseil, accompagne des reponses ecrites qui ont ete presentees avant la presente seance. Proposition de la mairesse suppleante Hooton Anni ivaa nar la r,nncaillar \/\ /hita 1. Le cout des indemnites pour invalidite, particulierement en ce qui concerne les autorisations, le nombre de personnes qui repoivent des prestations, le montant de ces prestations et la possibilite qu'une reclamation d'assurance en rapport avec certaines opinions medicales ait ete repue ou non soit transmis a la commission des pensions afin d'obtenir une reponse. 2. Les repercussions financieres sur la retraite anticipee, particulierement en ce qui concerne les modifications apportees a 1'effectif et a la situation financiere du regime de retraite au moment ou le regime de retraite anticipe a ete cree en 2002 - 2003 soient transmises au directeur general et au tresorier. 3. La difference figurant dans les notes afferentes aux etats financiers 2004 - 2006 concernant le cout des retraites anticipees soit transmise au directeur general. 4. L'inscription du montant de remboursement de la dette (difference entre le montant prevu au budget et le montant actuel figurant dans les etats financiers - une difference de 600 000 $) soit transmise au directeur general. 5. Le commentaire relatif au conflit d'interet et a la question de I'acces a des conseils d'experts soit transmis a I'avocat municipal. Le conseiller Ferguson est d'avis que les questions soulevees sont posees depuis deux ans et declare que la recommandation proposee est insuffisante. 11 affirme qu'il s'agit d'une question serieuse et qu'il faut tenir une enquete approfondie et independante. Les conseillers Chang et Titus indiquent qu'ils ne peuvent appuyer la proposition, affirmant que c'est une perte de temps. Le conseiller Chang suggere qu'on donne plus de temps au conseiller Ferguson pour qu'il presente d'autres questions. Le conseiller Farren indique qu'il n'appuiera pas la proposition, car elle ne fera pas avancer le conseil et demande qu'on mene un examen independant. Le conseiller Court declare que, selon Iui, le conseiller Ferguson croit avoir repondu aux questions du conseil et, d'apres ces renseignements, it veut qu'un examen independant soit effectue. Le maire McFarlane remercie le conseiller Ferguson pour sa presentation, notant qu'il Iui a demande s'il s'agissait de son rapport complet, ce qu'il a confirme. A Tissue du vote, la proposition est adoptee, les conseillers Chang, Court, Farren, Ferguson et Titus ayant vote contre la proposition. (Le maire annonce une pause de cinq minutes, apres quoi la reunion du conseil reprend a 21 h 05). 14.1 Michael Haynes - Condition of Sidewalk - Manawagonish Road On motion of Councillor Court Seconded by Councillor Farren RESOLVED that the letter from Michael Haynes expressing concern with regard to the condition of the sidewalk at 1852 Manawagonish Road, be received for information. Question being taken, the motion was carried. 14.1 Michael Haynes — Etat du trottoir du chemin Manawagonish Proposition du conseiller Court Appuyee par le conseiller Farren RESOLU que la lettre de Michael Haynes exprimant ses inquietudes relatives a 1'etat du trottoir situe au 1852, chemin Manawagonish soit acceptee a titre informatif. A ('issue du vote, la proposition est adoptee. On motion of Councillor Court Seconded by Councillor Farren RESOLVED that the letter from Paul Russell regarding the condition of intersections on Loch Lomond Road, be received for information. Question being taken, the motion was carried. 14.2 Paul Russell - Etat des intersections du chemin Loch Lomond Proposition du conseiller Court Appuyee par le conseiller Farren RESOLU que la lettre de Paul Russell relative a 1'etat des intersections du chemin Loch Lomond soit acceptee a titre informatif. A I'issue du vote, la proposition est adoptee. 15. General Correspondence 15.1 Saint John West Business Association Inc. - Invitation to Parade On motion of Councillor Titus Seconded by Deputy Mayor Hooton RESOLVED that the letter from Saint John West Business Association Inc. inviting Council members to attend the N.B. Day Parade on August 7, 2006, be received for information. Question being taken, the motion was carried. 15. Correspondance generale 15.1 nvitation de la Saint John West Business Association Inc. a la parade Proposition du conseiller Titus Appuyee par la mairesse suppleante Hooton QUE la lettre de la Saint John West Business Association invitant les membres du conseil a assister au defile du jour du Nouveau - Brunswick le 7 aout 2006 soit acceptee a titre informatif. A I'issue du vote, la proposition est adoptee. 15.2 NB Conservation Council Request for Signage at Tucker Park Beach On motion of Councillor White Seconded by Deputy Mayor Hooton RESOLVED that the letter from the NB Conservation Council requesting that the signage at Tucker Park Beach be replaced on the road and beach, be referred to the City Manager. Question being taken, the motion was carried. 15.2 Demande du Conseil de conservation du Nouveau - Brunswick relative a la signalisation a la plage du parc Tucker Proposition du conseiller White Appuyee par la mairesse suppleante Hooton RESOLU que la lettre du Conseil de conservation du Nouveau - Brunswick demandant que la signalisation a la plage du parc Tucker soit remplacee sur la route et a la plage soit transmise au directeur general. A I'issue du vote, la proposition est adoptee. On motion of Councillor Titus Seconded by Deputy Mayor Hooton RESOLVED that Council send a letter of appreciation to the Federal Government for providing for the enhancement of one of Canada's National Historic Sites - Martello Tower. Question being taken, the motion was carried. On motion of Councillor Chase Seconded by Councillor Titus RESOLVED that item 12.0 - Lease negotiations for the City Hall Building be brought forward for consideration at this time. Question being taken, the motion was carried. 15.3 Societe historique du Nouveau - Brunswick - Agrandissement de la tour Martello Proposition du conseiller Titus Appuyee par la mairesse suppleante Hooton RESOLU que le conseil envoie une lettre de remerciements au gouvernement federal pour avoir permis I'agrandissement d'un des Iieux historiques nationaux du Canada - la tour Martello. A ('issue du vote, la proposition est adoptee. Proposition du conseiller Chase Appuyee par le conseiller Titus RESOLU que le point n° 12.0 - Negociations relatives au bail de 1'edifice de I'hotel de ville soit examine des maintenant. A ('issue du vote, la proposition est adoptee. 12. Business Matters - Municipal Officers 12.0 Lease Negotiations City Hall On motion of Councillor Chase Seconded by Councillor White RESOLVED that as recommended by the City Manager, the Mayor and Common Clerk be authorized to sign the submitted LOI with the Se -Fish Associates Limited and 058854 N.B. Ltd. with respect to the City of Saint John's tenancy in what is commonly referred to as "The City Hall Building ". A brief discussion followed with Paul Moore of CB Richard Ellis responding to questions concerning the lease negotiations. Question being taken, the motion was carried. On motion of Councillor Titus Seconded by Councillor McGuire RESOLVED that the City Manager be authorized to carry out required renovations to the Red Room on the 8t" Floor. Question being taken, the motion was carried. 12. Affaires municipales evoquees par les fonctionnaires municipaux 12.0 Negociations relatives au bail conclu avec I'hotel de ville Proposition du conseiller Chase Appuyee par le conseiller White RF .qni i i Une breve discussion s'ensuit et Paul Moore de CB Richard Ellis repond aux questions concernant les negociations relatives au bail. A ('issue du vote, la proposition est adoptee. Proposition du conseiller Titus Appuyee par le conseiller McGuire RESOLU que le directeur general soit autorise a effectuer les renovations necessaires a la salle rouge au 8e etage. A ('issue du vote, la proposition est adoptee. 8. Delegations /Presentations 8.1 Active Transportation Saint John Referring to his submitted presentation, James McMillin, of Active Transportation Saint John, explained they are a non - profit un- incorporated group which advocates the development of urban cycling routes and multi -use pathways within the City of Saint John. Referring to the proposed land route for the LNG pipeline, he commented on how this route offers the City an opportunity to develop trail infrastructure that will move the City ahead making it a Trail Destination. Mr. McMillin responded to questions regarding his presentation and during the discussion Councillor Chang proposed a motion that this matter be referred to the Recreation Advisory Committee. Following a suggestion by Mayor McFarlane that staff should review this issue, Councillor Chang withdrew his motion. On motion of Councillor Farren Seconded by Councillor Chang RESOLVED that the presentation by Active Transportation Saint John, be referred to the City Manager. Councillor Chase noted this is not an endorsement of the northern route above Rockwood Park, but rather if an opportunity permits as the pipeline is constructed the City can look for opportunities to include bicycle trails. Question being taken, the motion was carried. A motion was proposed that the meeting proceed past 10:00 p.m. to consider the following agenda items, 8.2, 12.4, 12.5, 12.6, 12.7, 12.8 and 12.12. After a brief discussion it was agreed to consider items 8.2 and 12.8 only this evening, past 10:00 p.m. and the remaining agenda items would be considered when Council reconvened on Tuesday evening, July 18th at 4:30 p.m. On motion of Councillor Court Seconded by Councillor Farren RESOLVED that the Council meeting proceed past 10:00 p.m. to consider item 8.2 - Presentation by Patricia Higgins regarding Proposed Brunswick Pipeline and 12.8 - Request to Build Cottage on Kelly Lake and Council reconvene on Tuesday, July 18, 2006 at 4:30 p.m. to consider the remaining agenda items. Question being taken, the motion was carried. 8. Delegations et presentations 8.1 Active Transportation Saint John Se rapportant a la presentation qu'il a soumise, James McMillin de Active Transportation Saint John explique qu'il represente un groupe a but non lucratif sans personnalite morale qui preconise I'amenagement de pistes cyclables urbaines et de voies d'acces a I ICAnPC mi iltinlac rlanc Tha (.itv of gaint Inhn qa rannnrtant ai i trara tarractra nrnnnca M. McMillin repond aux questions concernant sa presentation et durant la discussion, le conseiller Chang presente une proposition pour que cette question soit transmise au Comite consultatif des loisirs. A la suite d'une suggestion du maire McFarlane selon laquelle le personnel devrait examiner cette question, le conseiller Chang a retire sa proposition. Proposition du conseiller Farren Appuyee par le conseiller Chang RESOLU que la presentation de Active Transportation Saint John soit transmise au directeur general. Le conseiller Chase souligne qu'il ne s'agit pas d'un appui consenti a la route nord au -dela du parc Rockwood, mais plutot d'une reconnaissance que si les circonstances le permettent, la ville peut explorer les occasions d'inclure des pistes cyclables a mesure que sera amenage le pipeline. A ('issue du vote, la proposition est adoptee. Une proposition est presentee pour que la reunion se poursuive apres 22 h afin d'examiner les points 8.2, 12.4, 12.5, 12.6, 12.7, 12.8 et 12.12 a I'ordre du jour. Apres une breve discussion, les membres conviennent de n'examiner que les points 8.2 et 12.8 ce soir, apres 22 h et les points qui restent a I'ordre du jour seront examines lorsque la reunion du conseil reprendra mardi soir, le 18 juillet a 16 h 30. Proposition du conseiller Court Appuyee par le conseiller Farren RESOLU que la reunion du conseil se poursuive apres 22 h afin d'examiner les points 8.2 - Presentation de Patricia Higgins concernant le projet de gazoduc Brunswick et le point 12.8 - Demande de construction d'un chalet au lac Kelly et que la reunion du conseil reprenne le mardi 18 juillet 2006 a 16 h 30 pour examiner les points qui restent a I'ordre du jour. A ('issue du vote, la proposition est adoptee. 8.2 Patricia Higgins - Proposed (Emera) Brunswick Pipeline Referring to her submitted presentation, Ms. Higgins of 80 Daniel Avenue, reviewed her concerns with regard to the proposed Brunswick Pipeline. She concluded her presentation citing numerous reasons why City staff should become involved in this matter. (Mayor McFarlane withdrew from the meeting and Deputy Mayor Hooton assumed the Chair.) 8.2 Patricia Higgins sur le projet de gazoduc (Emera) Brunswick Se rapportant a la presentation qu'elle a soumise, Mn" Higgins, residant au 80, avenue Daniel, passe en revue ses inquietudes concernant le projet de gazoduc Brunswick. Elle conclut sa presentation en invoquant plusieurs raisons pour lesquelles les employes municipaux doivent s'engager sur cette question. (Le maire McFarlane quitte la reunion et la mairesse suppleante Hooton assume la presidence.) 12.8 Request to Build Cottage - Kelly Lake On motion of Councillor White Seconded by Councillor Tait RESOLVED that as recommended by the City Manager, the application of Mike McGraw to build a cottage on Kelly Lake not be approved. owns the site and requires emergency service. During discussion Councillors expressed support for a referral motion to explore any other options that may be available to protect the City and allow Mr. McGraw to build the cottage. On motion of Councillor Tait Seconded by Councillor Titus RESOLVED that the application of Mike McGraw to build a cottage on Kelly Lake be referred to the City Solicitor to determine if there is a way for the applicant to proceed, and to protect the City from any liability; and a policy be developed with regard to this type of property usage if in the event the City Solicitor finds an acceptable way to proceed. Question being taken, the motion was carried. (Mayor McFarlane re- entered the meeting and assumed the Chair, advising that he withdrew from the meeting expressing the opinion that he was in a conflict of interest with the above matter.) 12.8 Demande de construction d'un chalet au lac Kelly Proposition du conseiller White Appuyee par le conseiller Tait RESOLU que, comme le recommande le directeur general, la demande de Mike McGraw visant a construire un chalet au lac Kelly ne soit pas approuvee. M. Nugent explique que si cette demande etait approuvee par le conseil, M. McGraw a indique qu'il ne tiendrait pas la ville responsable si des vehicules d'urgence n'arrivaient pas a se rendre sur son terrain. II explique que le conseil doit realiser que M. McGraw ne sera peut -etre pas toujours proprietaire du terrain et parle de la responsabilite potentielle si une autre personne est proprietaire du site et necessite des services d'urgence. Durant la discussion, les conseillers expriment leur appui a une motion de renvoi pour explorer d'autres options qui pourraient s'offrir afin de proteger la ville et de permettre a M. McGraw de construire son chalet. Proposition du conseiller Tait Appuyee par le conseiller Titus RESOLU que la demande de Mike McGraw visant a construire un chalet au lac Kelly soit transmise a I'avocat municipal afin de determiner s'il existe une fagon pour le requerant d'aller de I'avant et de proteger la ville de toute responsabilite; et qu'une politique soit elaboree en ce qui a trait a ce type d'utilisation de la propriete, advenant que I'avocat municipal trouve une fagon acceptable de proceder. A ('issue du vote, la proposition est adoptee. (Le maire McFarlane se joint a nouveau a la reunion et en assume la presidence, indiquant qu'il a quitte la reunion parce que, selon lui, it etait en conflit d'interet avec la question susmentionnee.) 16. Adjournment The Mayor declared the meeting adjourned at 10:30 p.m. to reconvene at 4:30 p.m. Tuesday, July 18, 2006. 16. Cloture de la reunion Le maire declare que la seance est levee a 22 h 30 et qu'elle reprendra a 16 h 30 le mardi 18 juillet 2006. Mayor /maire Common Clerk /greffier communal present Norman McFarlane, Mayor Deputy Mayor Hooton and Councillors Chase, Court, Farren, Ferguson, McGuire, Tait, Titus and White -and - Terry Totten, City Manager; P. Woods, Common Clerk and Deputy City Manager; L. Farrell, Solicitor; P. Groody, Commissioner of Municipal Operations; W. Edwards, Commissioner of Buildings and Inspection Services; R. Simonds, Fire Chief; A. Bodechon, Chief of Police; and Jackie Ferrar, Administrative Assistant REUNION DU CONSEIL COMMUNAL DE THE CITY OF SAINT JOHN TENUE A L'H6TEL DE VILLE, LE 18 JUILLET 2006 A 16 H 30 Sont presents : Norman McFarlane, maire la mairesse suppleante Hooton et les conseillers Chase, Court, Farren, Ferguson, McGuire, Tait, Titus et White et Terry Totten, directeur general; P. Woods, greffier communal et directeur general adjoint; Mme L. Farrell, avocate; P. Groody, commissaire aux operations municipales; W. Edwards, commissaire aux services d'inspection et des batiments; R. Simonds, chef du service d'incendie; A. Bodechon, chef de police; et Jackie Ferrar, adjointe administrative. Mayor McFarlane called the meeting to order and noted that Council was to continue with the agenda items remaining from the July 17, 2006 Council agenda. La seance est ouverte par le maire McFarlane. II indique que le conseil s'apprete a poursuivre 1'examen des points qui restent a I'ordre du jour du conseil du 17 juillet 2006. 11. Submissions by Council Members 11.1 Risk Analysis of Proposed LNG Gas Line On motion of Councillor Tait Seconded by Councillor Titus RESOLVED that the Fire Chief be commissioned with the responsibility of conducting a risk analysis on the proposed L.N.G. pipeline, including but not limited to the criteria identified in the body of the submitted report; that the Fire Chief be granted permission to seek any external professional advice necessary to complete the in -depth risk analysis; that this risk analysis is completed forthwith in an effort to ensure that this community is well informed prior to the National Energy Hearings; and the Fire Chief provide a full report on the findings to Common Council. Question being taken, the motion was carried. 11. Intervention des membres du conseil 11.1 Analyse des risques du projet de pipeline de gaz naturel liquefie Proposition du conseiller Tait Appuyee par le conseiller Titus RE";OLI cette analyse de risque soit effectuee immediatement de maniere a ce que la communaute soit bien informee avant la tenue des audiences de ('Office national de 1'energie; et que le chef du service d'incendie presente un rapport complet des resultats au conseil communal. A I'issue du vote, la proposition est adoptee. 11.3 Funding for Public Transit On motion of Councillor Tait Seconded by Councillor McGuire RESOLVED that: WHEREAS public transit provides essential and universal mobility to residents within Canada's urban areas; AND WHEREAS public transit increases roadway capacity by offering people a transportation choice other than the automobile; AND WHEREAS public transit reduces greenhouse gas emissions and air pollution; AND WHEREAS transit infrastructure investment needs for Canadian transit systems in the period 2006 -2010 stand at $20.7 - billion, with over $5- billion of this amount not fundable under current programs; AND WHEREAS municipalities have inadequate revenue tools to finance the full cost of transit infrastructure; THEREFORE IT IS RESOLVED that Common Council calls on the Federal Government to: Make permanent the federal investment in public transit provided under the public transit capital trust announced in budget 2006; Ensure that this investment is distributed equitably to all transit systems across Canada; Ensure that this investment is over and above any existing federal or provincial funding already in place. During discussion it was suggested by Councillor Court that this resolution be forwarded to FCM, Cities of N.B. Association and the Province. Question being taken, the motion was carried. 11.3 Financement pour le service de transport en commun Proposition du conseiller Tait Appuyee par le conseiller McGuire RESOLU QUE : ATTENDU que le transport en commun off re une mobilite essentielle et universelle aux residents dans les milieux urbains du Canada; ET ATTENDU que le transport en commun augmente la capacite routiere en off rant aux gens un choix de transport different de I'automobile; ET ATTENDU que le transport en commun reduit les emissions de gaz a effet de serre et la pollution de I'air; ET ATTENDU que les besoins d'investissement en matiere d'infrastructure de transport pour les reseaux de transport canadiens durant la periode 2006 -2010 s'elevent a 207 milliards de dollars, dont plus de 5 milliards de dollars ne peuvent etre finances en vertu des programmes actuels; ET ATTENDU que les municipalites disposent d'outils de production de revenus inadequats pour financer le coot total de ('infrastructure de transport; PAR 0(01\1 .qF(11 IPKIT 11 P .qT RF .q(lI I I ni is la rnncail rnmmi road facca annal au i budget 2006; veiller a ce que cet investissement soit distribue de maniere equitable a tous les reseaux de transport en commun au Canada; veiller a ce que cet investissement s'ajoute au financement federal ou provincial deja existant. Au cours de la discussion, le conseiller Court a propose que cette resolution soit transmise a la Federation canadienne des municipalites (FCM), a I'Association des cites du Nouveau - Brunswick et a la province. A ('issue du vote, la proposition est adoptee. 11.4 Invitation to Honourable Madeline Dube - Minister of Family and Community Services to Visit the City On motion of Councillor McGuire Seconded by Councillor Titus RESOLVED that Mayor McFarlane formally invite the Honourable Madeline Dube, Minister of Family and Community Services to Saint John to view our housing success stories and dialogue with key participants regarding our vision for the future. Question being taken, the motion was carried. 11.4 Invitation lancee a I'honorable Madeleine Dube, ministre des Services familiaux et communautaires, en vue de visiter la ville Proposition du conseiller McGuire Appuyee par le conseiller Titus RESOLU que le maire McFarlane invite formellement I'honorable Madeline Dube, ministre des Services familiaux et communautaires, a Saint John pour constater Ies exemples de reussite en matiere de Iogement et discuter avec Ies principaux participants concernant notre vision de I'avenir. A ('issue du vote, la proposition est adoptee. 12. Business Matters - Municipal Officers 12.1 Horizon Management Development Agreement On motion of Councillor White Seconded by Councillor McGuire RESOLVED that as recommended by the City Manager, Common Council amend its resolution of April 10, 2006 with regard to the Horizon Management Limited Development Agreement as follows: That (a), (b), (c), (d), (e) and (f) be rescinded and replaced with; The City of Saint John shall make a total contribution of $3,500,000. This contribution shall be advanced to Horizon Management Limited based on the value of the work completed as generally laid out on the attached Schedule. For greater clarity, i. Horizon Management Limited shall invoice the City within 15 days of each month end beginning July 31 st; ii. The City shall advance its contribution (47.1 % of the value of the work completed less a 15% holdback) within 15 days receipt of the invoice provided; a) Horizon's invoice is accompanied by a certification that the work as described has been completed by a certain date; d) the City reserves the right to withhold any additional monies from the final payment, to cover any costs for work not completed by October 31 st; And finally, $650,000. of the $3,500,000. will be refunded by Horizon Management Limited to The City of Saint John, based on a rate of $2.03 per square foot, based on the planned build out of the additional 320,000 square feet of retail space. The Developer has further agreed that once the total "build out" has reached 400,000 square feet, the balance of the $650,000. will be refunded in total. Question being taken, the motion was carried. 12. Affaires municipales evoquees par les fonctionnaires municipaux 12.1 Entente d'amenagement conclue avec Horizon Management Proposition du conseiller White Appuyee par le conseiller McGuire Comme le recommande le directeur general, QUE le conseil communal modifie sa resolution du 10 avril 2006 concernant 1'entente d'amenagement conclue avec Horizon Management Limited comme suit: Que Ies points a), b), c), d), e) et f) soient annules et remplaces par : The City of Saint John doit verser une contribution totale de 3 500 000 $. Cette contribution doit etre avanc(§e a Horizon Management Limited en fonction de la valeur des travaux realises, comme le presente, de maniere generale, I'annexe ci- jointe. Pour plus de precision, i. Horizon Management Limited doit facturer la ville dans un delai de 15 jours apres la fin du mois a partir du 31 juillet; ii. La ville doit avancer sa contribution (47,1 % de la valeur des travaux realises, moins une retenue de 15 %) dans un delai de 15 jours suivant la reception de la facture fournie; a) la facture d'Horizon s'accompagne d'une attestation demontrant que Ies travaux tels que decrits ont ete realises avant une certaine date; b) cette attestation a ete redigee par un ingenieur qualifie; c) une attestation a 1'effet qu'Horizon a paye le montant total des travaux effectues jusqu'a la date de facturation (moins Ies retenues applicables) a son entrepreneur; d) la ville se reserve le droit de retenir des sommes additionnelles du paiement final pour couvrir le cout des travaux non termines avant le 31 octobre; Et, enfin, une somme de 650 000 $ provenant de la contribution de 3 500 000 $ sera remboursee par Horizon Management Limited a The City of Saint John au taux de 2,03 $ le pied carre, selon I'amenagement planifie d'un espace supplementaire de 320 000 pieds carres destine a la vente au detail. Le promoteur a egalement convenu qu'une fois que 1'« amenagement » total aura atteint 400 000 pieds carres, le reste des 650 000 $ sera rembourse en entier. A ('issue du vote, la proposition est adoptee. 12.2 Pension Plan Funding Requirements On motion of Councillor White Seconded by Councillor McGuire RESOLVED that as recommended by the City Manager, 1. Common Council seek the professional expertise of Morneau Sobeco in preparing a "matrix of options" illustrating the effect on both the Going Concern Deficit are necessary to have the City and Members of the Plan share equally in any special funding requirements, to share equally in any surpluses and to impose a minimum level of Plan Surplus that must be achieved and maintained before any Plan improvements can be made. 3. That this report be forwarded to the Board of Trustees and the various Civic Unions, the Management Group and the Retirees Association for comment. Discussion ensued regarding the options outlined in the City Manager's report with Councillor Court expressing concern regarding the possibility of eliminating indexing to benefits being paid to pensioners on a "go forward basis "; and a change from a joint and survivorship pension for members with a spouse, to single life with a five, ten or fifteen year guarantee. Mr. Totten suggested that Council explore all of the options outlined in his report. Councillor Farren commented regarding the solvency deficit, to which Mr. Totten responded that Council did request that the Province change the regulations concerning solvency, which they have, and expressed concerns on the outcome of a vote by the Plan membership on this issue. He further explained that it is his desire to get the costs on all the options and then present this information to Council for consideration. Discussion continued with Mr. Totten advising against getting into negotiations for a pension plan with the City employees. Councillor Ferguson questioned if the Plan was converted to a defined contribution plan would this result in stopping up and closing the present defined benefit plan; to which Mr. Totten responded that would be a decision to windup the Plan noting the cost involved in this process. (Councillor Court withdrew from the meeting during the above discussions.) Councillor Tait requested that the City Manager provide Council with the information on whether or not it is appropriate to proceed at this time with solvency exemption; and inquired what the tax impact would be if the total solvency had to be funded, and what would it be if the City receives exemption and is required to fund the going concern deficit only. Mr. Totten responded that if no action is taken with regard to solvency exemption the possibility exists that the tax rate would be required to increase .14 to .16 cents. Councillor Farren stressed the need for an independent review in order to determine where problems exist. Mayor McFarlane stressed that the City Manager's report contains steps to address the funding requirements of the Pension Plan, which will be costed, pointing out that no action is being taken at this time. Question being taken, the motion was carried with Councillors Ferguson and Farren voting "nay ". 12.2 Exigences relatives au financement du regime de retraite Proposition du conseiller White Appuyee par le conseiller McGuire RLSOLU que, comme le recommande le directeur general : 1. le conseil communal obtienne 1'expertise professionnelle de Morneau Sobeco pour preparer une « matrice des options » montrant 1'effet d'un deficit a long terme et d'un deficit de solvabilite si, apres un examen approfondi, le conseil communal choisit d'exiger une hausse des cotisations ou de mettre en place Ies reductions prevues a Tune ou I'autre des prestations definies dans la Loi sur le regime de retraite de The City of Saint John. 2. I'avocat municipal soit charge de rediger Ies modifications legislatives necessaires pour que la ville et Ies participants au regime partagent egalement Ies exigences speciales de financement, pour partager egalement Ies surplus et pour imposer un niveau minimal de surplus au regime qu'il faut atteindre et maintenir avant de pouvoir apporter des ameliorations au regime. une aiscussion s ensuit au suet aes options souiignees awns ie rapport au airecteur general. Le conseiller Court se dit inquiet de la possibilite d'eliminer ('indexation des prestations versees aux retraites periodiquement; et une modification permettant de passer d'une rente reversible au conjoint survivant pour les membres ayant un conjoint a une rente viagere avec garantie de 5, 10 ou 15 ans. M. Totten suggere que le conseil examine toutes les options presentees dans ce rapport. Le conseiller Farren se prononce au sujet du deficit de solvabilite, a quoi M. Totten repond que le conseil a demande a la province de modifier les reglements relatifs a la solvabilite, ce qu'elle a fait, et exprime ses inquietudes sur le resultat d'un vote des participants au regime sur cette question. De plus, it explique qu'il veut obtenir les coots de toutes les options pour ensuite presenter cette information au conseil pour qu'il 1'examine. La discussion se poursuit et M. Totten deconseille d'entamer des negociations avec les employes municipaux a 1'egard du regime de retraite. Le conseiller Ferguson s'interroge quant a savoir s'il faudrait mettre fin aux activites du regime a prestations determinees et le fermer s'il etait converti en regime a cotisations determinees; a quoi M. Totten repond qu'il faudrait decider de Iiquider le regime, precisant le coot de mise en oeuvre de ce processus. (Le conseiller Court quitte la reunion au cours des discussions susmentionnees.) Le conseiller Tait demande que le directeur general fournisse au conseil les renseignements a savoir s'il est opportun d'autoriser 1'exemption de solvabilite maintenant; et demande quelles seront les repercussions fiscales s'il fallait financer la solvabilite totale, et quelle serait la situation si la ville regoit 1'exemption et n'est tenue de financer que le deficit a long terme. M. Totten repond que si rien n'est fait concernant 1'exemption de solvabilite, it est possible qu'il faille augmenter le taux d'imposition de 0.14 a 0.16 $. Le conseiller Farren insiste sur la necessite de proceder a un examen independant de maniere a determiner oo se trouvent les problemes. Le maire McFarlane insiste sur le fait que le rapport du directeur general renferme des mesures pour satisfaire les exigences de financement du regime de retraite, dont le coot sera evalue, soulignant qu'aucune mesure n'est prise a I'heure actuelle. A Tissue du vote, la proposition est acceptee. Les conseillers Ferguson et Farren votent contre la proposition. 12.3 Discussion Role of Council On motion of Councillor White Seconded by Councillor McGuire RESOLVED that as recommended by the City Manager, an Open Committee of the Whole meeting be scheduled for Monday, July 24 at 5 p.m. in the 8t" Floor Boardroom with respect to the governance project. Question being taken, the motion was carried. 12.3 Discussion au sujet du role du conseil Proposition du conseiller White Appuyee par le conseiller McGuire RESOLU que, comme le recommande le directeur general, une reunion du comite plenier soit fixee pour le lundi 24 juillet a 17 h dans la salle de conference situee au 8e etage relativement au projet de gouvernance. A ('issue du vote, la proposition est adoptee. 12.4 2006 General Fund Capital Program Adjustments On motion of Councillor White Seconded by Councillor McGuire RESOLVED that as recommended by the City Manager, Common Council approve the revisions to the 2006 General Fund Capital Program, as outlined in the submitted report. pour 2006 Proposition du conseiller White Appuyee par le conseiller McGuire RESOLU que, comme le recommande le directeur general, le conseil communal approuve les ajustements au programme d'immobilisations du fonds d'administration 2006, tel que le souligne le rapport presente. A ('issue du vote, la proposition est adoptee. 12.5 Contract 2006 -10 - Grannan Street (Germain to Prince William Street) - Street Reconstruction On motion of Councillor White Seconded by Councillor McGuire RESOLVED that as recommended by the City Manager, Contract 2006 -10: Grannan Street (Germain to Prince William Street) - Street Reconstruction be awarded to Maguire Excavating Ltd., at its tendered price of $377,670. as calculated based on estimated quantities, and further that the Mayor and Common Clerk be authorized to execute the necessary contract documents. Question being taken, the motion was carried. 12.5 Contrat 2006 -10 : Travaux de refection de la rue Grannan (de la rue Germain a la rue Prince William) Proposition du conseiller White Appuyee par le conseiller McGuire RESOLU que, comme le recommande le directeur general, le contrat no 2006 -10 relatif aux travaux de refection de la rue Grannan (de la rue Germain a la rue Prince William) soit accorde a Maguire Excavating Ltd., au prix offert de 377 670 $, etabli a partir de quantites estimatives, et que le maire et le greffier communal soient autorises a signer les documents contractuels necessaires. A ('issue du vote, la proposition est adoptee. 12.6 Contract 2006 -19 - Loch Lomond Road /Ocean Westway - Asphalt Concrete Resurfacing On motion of Councillor White Seconded by Councillor McGuire RESOLVED that as recommended by the City Manager, Contract 2006 -19: Loch Lomond Road /Ocean Westway - Asphalt Concrete Resurfacing, Municipal Designated Highways Grant Program, be awarded to the low tenderer, Classic Construction Ltd., at its tendered price of $1,421,015., as calculated based upon estimated quantities, and further that the Mayor and Common Clerk be authorized to execute the necessary contract documents. Question being taken, the motion was carried. 12.6 Contrat 2006 -19 : Resurfagage du chemin Loch Lomond et de la voie Ocean Ouest au moyen de beton asphaltique Proposition du conseiller White Appuyee par le conseiller McGuire RESOLU que, comme le recommande le directeur general, le contrat 2006 -19 relatif au resurfapage du chemin Loch Lomond et de la voie Ocean Ouest au moyen de beton asphaltique, dans le cadre du programme de subventions pour la refection des routes municipales designees, soit accorde au soumissionnaire moins- disant, Classic Construction Ltd., au prix offert de 1 421 015 $, etabli a partir de quantites estimatives, et que le maire et le greffier communal soient autorises a signer les documents contractuels necessaires. On motion of Councillor Farren Seconded by Councillor White RESOLVED that as recommended by the City Manager, the proposal of Hydro -Com Technologies for engineering services (design and project management) for Saint John East Sanitary Sewer Inflow /Infiltration Reduction Program Phase IV and Manhole Rehabilitation Design and Inspection Services be accepted; and that the Mayor and Common Clerk be authorized to execute the appropriate documentation in that regard. Question being taken, the motion was carried. 12.7 Conception et gestion de projet - Egouts sanitaires dans Saint John Est Proposition du conseiller Farren Appuyee par le conseiller White RESOLU que, comme le recommande le directeur general, la proposition presentee par Hydro -Com Technologies Ltd., relativement aux services d'ingenierie (conception et gestion de projet) visant la phase IV du programme de reduction du captage et d'infiltration des egouts sanitaires dans Saint John Est et la conception de la remise en etat et services d'inspection des trous d'homme, soit acceptee et que le maire et le greffier communal soient autorises a signer les documents appropries a cet egard. A I'issue du vote, la proposition est adoptee. 12.9 Sale of Stopped Up and Closed Streets On motion of Councillor Farren Seconded by Councillor White RESOLVED that as recommended by the City Manager, The City of Saint John sell the fee simple interest in PID Number 55179352, subject to any necessary municipal or public utility services easements /easements for municipal or public utilities to Horizon Management Limited for $22,750. (plus HST, if applicable); plus the cost of advertising for the stopping -up and closure of the former City streets with the sale of this property to be concluded on or before October 31, 2006; and the Mayor and Common Clerk be authorized to sign any necessary documents required to finalize this transaction. Question being taken, the motion was carried. (Councillor Chase withdrew from the meeting.) 12.9 Vente de rues barrees et fermees a la circulation Proposition du conseiller Farren Appuyee par le conseiller White RESOLU que, comme le recommande le directeur general, The City of Saint John vende I'interet en fief simple portant le NID 55179352, sous reserve de servitudes a des fins de services municipaux et d'utilite publique requis, a Horizon Management Limited pour la somme de 22 750 $ (TVH en sus, s'il y a lieu); plus le cout de publication des annonces relatives a ('interruption de la circulation et de la fermeture des anciennes rues de la ville, dont la vente de cette propriete sera conclue au plus tard le 31 octobre 2006; et que le maire et le greffier communal soient autorises a signer toute documentation exigee afin de conclure ladite transaction. A I'issue du vote, la proposition est adoptee. (Le conseiller Chase quitte la reunion.) 12.10 Red Head Secondary Access Road - Portion of Crown Reserved Road On motion of Councillor Titus Seconded by Councillor White RESOLVED that as recommended by the City Question being taken, the motion was carried. 12.10 Voie d'acces secondaire Red Head - Tron(;on du chemin reserve de la Couronne Proposition du conseiller Titus Appuyee par le conseiller White RESOLU que, comme le recommande le directeur general, The City of Saint John acquiere l'interet en fief simple d'un trongon d'environ 2 718 metres carres d'un chemin reserve de la Couronne, identifie sur le plan presente comme la parcelle 06 -23 de Sa Majeste la Reine, representee par le ministre des Ressources naturelles, pour la somme de 250 $. A ('issue du vote, la proposition est adoptee. 12.11 Simpson Drive Wastewater Pumping Station - Mechanical and Electrical Failure On motion of Councillor Tait Seconded by Councillor White RESOLVED that as recommended by the City Manager, the submitted report containing information regarding the mechanical and electrical failure at the Simpson Drive Wastewater Pumping Station (WWPS), be received for information. Question being taken, the motion was carried. (Councillor Chase re- entered the meeting.) 12.11 Panne electrique et mecanique au poste de pompage des eaux usees de la promenade Simpson Proposition du conseiller Tait Appuyee par le conseiller White RESOLU que, comme le recommande le directeur general, le rapport presente renfermant les renseignements sur la panne mecanique et electrique au poste de pompage des eaux usees (SPEU) de la promenade Simpson soit accepte a titre informatif. A ('issue du vote, la proposition est adoptee. (Le conseiller Chase se joint a nouveau a la reunion.) 12.12 Tender - Interior Renovations Charles Gorman Arena On motion of Councillor Farren Seconded by Councillor White RESOLVED that as recommended by the City Manager, the tender submitted by Melrose Construction Ltd. in the amount of $142,000., plus tax, for the supply of all labour, materials, tools and equipment necessary to successfully complete the required interior renovations to the Charles Gorman Arena, be accepted. Question being taken, the motion was carried. 12.12 Soumission relative aux travaux de renovation interieure effectues a I'arena Charles Gorman Proposition du conseiller Farren Appuyee par le conseiller White RESOLU que, comme le recommande le directeur general, la soumission presentee par 1'entreprise Melrose Construction Ltd., au montant de 142 000 $, TVH en sus, relativement a l'approvisionnement de la totalite de la main - d'oeuvre, du materiel, des outils et de 1'equipement necessaires pour mener a bien Ies renovations interieures a apporter a I'arena Charles Gorman, soit acceptee. 13.1 Saint John Transit Commission Re New Facility On motion of Councillor Tait Seconded by Councillor McGuire RESOLVED that the letter from the Saint John Transit Commission advising Council regarding the possibility of building a new maintenance and head office facility and the timeline involved, be received for information. Question being taken, the motion was carried. 13. Rapports deposes par les comites 13.1 Commission de transport de Saint John - Nouvelle installation Proposition du conseiller Tait Appuyee par le conseiller McGuire RESOLU que la lettre de la Commission de transport de Saint John informant le conseil de la possibilite de construire un nouvel etablissement abritant 1'entretien et le bureau central, et le calendrier requis, soit acceptee a titre informatif. A ('issue du vote, la proposition est adoptee. 13.2 Saint John Transit Commission - Letter of Thanks On motion of Councillor Tait Seconded by Councillor Farren RESOLVED that the letter from the Saint John Transit Commission regarding the resignation of Councillor Christopher Titus and Dallas Moyer from the Commission and advising Council of the meaningful work these men have accomplished on behalf of Saint John Transit, be received for information, and a letter of appreciation be sent to Councillor Titus and Dallas Moyer. Councillors expressed their appreciation for the efforts and leadership of Councillor Titus during his tenure on the Saint John Transit Commission. Question being taken, the motion was carried. 13.2 Commission de transport de Saint John - Lettre de remerciements Proposition du conseiller Tait Appuyee par le conseiller Farren RESOLU que la lettre de la Commission de transport de Saint John au sujet de la demission du conseiller Christopher Titus et de Dallas Moyer de la Commission, informant le conseil du travail serieux que ces personnes ont accompli pour le compte de la Commission de transport de Saint John, soit regue a titre informatif et qu'une lettre de remerciements soit envoyee au conseiller Titus et a Dallas Moyer. Les conseillers expriment leur reconnaissance des efforts et du leadership du conseiller Titus durant son mandat avec la Commission de transport de Saint John. A ('issue du vote, la proposition est adoptee. 13.3 Saint John Parking Commission - Appointment of Michael Marshall as a By -law Enforcement Officer On motion of Councillor White Seconded by Councillor McGuire RESOLVED that pursuant to Section 14 of the Police Act of the Province of New Brunswick, the Common Council of the City of Saint Inhn rinac harahv annnint tha fn1irw / inn mamhar of tha (..anariian (:nrnc of appointee ceases to be a member of the Canadian Corps of Commissionaires or until the appointment is rescinded by Common Council, whichever comes first. Question being taken, the motion was carried. 13.3 Commission sur le stationnement de Saint John relativement a la nomination de Michael Marshall a titre d'agent d'execution des arretes municipaux Proposition du conseiller White Appuyee par le conseiller McGuire QU'en vertu de I'article 14 de la Loi sur la police de la province du Nouveau - Brunswick, le conseil communal de The City of Saint John, par Ies presentes, nomme le membre suivant du Corps canadien des commissaires, a titre d'agente chargee de 1'execution des arretes municipaux, investie de la responsabilite et de I'autorite d'appliquer Ies dispositions de I'arrete sur Ies parcometres et Ies dispositions des articles 5, 7, 8(1) et 15 de I'arrete sur la circulation, c'est -a -dire Michael Marshall et, de plus, que cette nomination soit en vigueur jusqu'a tel moment ou cette derniere cesse d'etre membre du Corps canadien des commissaires ou jusqu'a ce que telle nomination soit annulee par le conseil communal, selon la premiere eventualite. A I'issue du vote, la proposition est adoptee. 13.4 Saint John Transit Commission - Annual Report December 2005 On motion of Councillor Titus Seconded by Councillor White RESOLVED that the 2005 Annual Report for Saint John Transit, be received for information. Question being taken, the motion was carried. 13.4 Commission de transport de Saint John relativement au rapport annuel de decembre 2005 Proposition du conseiller Titus Appuyee par le conseiller White RLSOLU que le rapport annuel de 2005 de la Commission de transport de Saint John soit accepte a titre informatif. A I'issue du vote, la proposition est adoptee. 13.5 Saint John Industrial Parks - Ongoing Developments On motion of Councillor White Seconded by Councillor Farren RESOLVED that the letter from Saint John Industrial Parks Ltd. informing Council of the ongoing developments within the Industrial Parks, be received for information. Question being taken, the motion was carried. 13.5 Saint John Industrial Parks - Developpements en cours Proposition du conseiller White Appuyee par le conseiller Farren RLSOLU que la lettre de Saint John Industrial Parks Ltd. informant le conseil des developpements en cours dans Ies pares industriels soit acceptee a titre informatif. A I'issue du vote, la proposition est adoptee. On motion of Councillor Farren Seconded by Councillor White RESOLVED that as recommended by the Planning Advisory Committee, Common Council assent to one or more subdivision plans, in one or more phases, for the proposed East Point shopping centre development at 310 -336 Westmorland Road, with respect to the proposed Retail Drive public street and widening of the Westmorland Road public street right -of -way, as well as any required municipal services easements and public utility easements. Question being taken, the motion was carried. 13.6 Comite consultatif d'urbanisme recommandant que soit approuve le projet de lotissement au 310 -336, chemin Westmorland Proposition du conseiller Farren Appuyee par le conseiller White RESOLU que, comme le recommande le comite consultatif d'urbanisme, le conseil communal approuve un ou plusieurs plans de lotissement, en une ou plusieurs phases, dans le cadre du projet de construction d'un centre commercial a East Point situe au 310 -336, chemin Westmorland, relativement au projet de rue publique portant le nom de promenade Retail et d'elargissement de la voie de circulation generale du chemin Westmorland, ainsi que les servitudes de services municipaux et les servitudes d'utilite publique requises. A ('issue du vote, la proposition est adoptee. 15. General Correspondence 15.4 Request for Financial Assistance from Health and Wellness Expo On motion of Councillor Ferguson Seconded by Councillor McGuire RESOLVED that the letter from Health and Wellness Expo requesting financial assistance for a conference to be held at the Trade and Convention Centre on August 12, 2006, be referred to the City Manager. Question being taken, the motion was carried. 15. Correspondance generale 15.4 Demande d'aide financiere provenant de Health and Wellness Expo Proposition du conseiller Ferguson Appuyee par le conseiller McGuire RESOLU que la demande d'aide financiere de Health and Wellness Expo pour la tenue d'une conference au centre des congres le 12 aout 2006 soit transmise au directeur general. A ('issue du vote, la proposition est adoptee. 15.5 Letter from Gerry Hudson Regarding Charge for Parking at St. Joseph's Hospital On motion of Councillor White Seconded by Councillor Tait RESOLVED that the letter from Gerry Hudson expressing concern with regard to the decision to charge for parking at St. Joseph's Hospital and how it will effect seniors on a fixed income, be referred to the Saint John Parking Commission. Councillor Tait distributed a document providing details on the St. Joseph's Hospital parking project for Council's information and requested that this information also be forwarded to the Parking Commission. Proposition du conseiller White Appuyee par le conseiller Tait RESOLU que la lettre de Gerry Hudson exprimant ses inquietudes concernant la decision d'imposer des frais de stationnement a I'hopital St. Joseph's et Ies repercussions que cette decision aura sur Ies personnes agees a revenu fixe soit transmise a la Commission sur le stationnement de Saint John. Le conseiller Tait distribue un document presentant Ies details du projet de stationnement de I'hopital St. Joseph's a titre informatif pour le conseil et demande que ces renseignements soient egalement transmis a la Commission sur le stationnement. A ('issue du vote, la proposition est adoptee. 15.6 Canaport Community Environment Liaison Committee On motion of Councillor Titus Seconded by Councillor Tait RESOLVED that the letter from the Canaport Community Environmental Committee regarding heavy truck traffic and the damage it has caused to the existing Red Head Road, be received for information. Question being taken, the motion was carried. 15.6 Comite de liaison environnemental communautaire de Canaport Proposition du conseiller Titus Appuyee par le conseiller Tait RESOLU que la lettre du Comite environnemental communautaire de Canaport concernant la circulation de camions lourds et Ies dommages qu'elle a causes au chemin Red Head existant soit acceptee a titre informatif. A ('issue du vote, la proposition est adoptee. 15.7 Amalgamated Transit Union On motion of Councillor Titus Seconded by Councillor McGuire RESOLVED that the letter from Tony Freake, President of the Amalgamated Transit Union requesting to meet with Council and the Pension Board to discuss acceptance into the City Pension Plan, be referred to the City Solicitor. Question being taken, the motion was carried. 15.7 Syndicat uni du transport Proposition du conseiller Titus Appuyee par le conseiller McGuire RESOLU que la lettre de Tony Freake, president du Syndicat uni du transport, demandant la tenue d'une rencontre avec le conseil et la commission des pensions pour discuter de I'acceptation au regime de retraite de la ville soit transmise a I'avocat municipal. A ('issue du vote, la proposition est adoptee. 16. Adjournment The Mayor declared the meeting adjourned at 6:30 p.m. 1 R riAti ira rip la rai ininn Mayor /maire Common Clerk /greffier communal Tuesday, June 27, 2006 To your Honorable Worship Mayor Mc Farland, and to City Councilors, and City Staff, My name is Janice Chase. I am a resident of Lorneville. Several weeks ago I called the Mayor's office with a concern and was assured that someone would return my call with some answers, if not today but before tomorrow's end. My concern is, the trucking in, and the disposal of dump leachate from the Fundy Region Solid Waste Landfill at Crane Mountain to the residential area in Lorneville. This is not happening in the commercially zoned Spruce Lake Industrial Park, but on the road's edge in a residential area on the Lorneville Road just yards from homes. Several times a day a tanker type truck comes into our community and expels dump waste into an open type culvert, Recently I have also noticed septic removal trucks also dumping into this culvert. A few weeks ago the smell coming from this area was unbelievable. Windows in the vehicle had to be put up as the coughing and gagging reflex went to work. After making some inquires, I was surprise to find that some of the city councilors are not even aware that this is taking place or that there is a pipeline for this function being presently used. I would like the Mayor, council and city staff to look into this matter and respond to myself, and also the Lorneville Community Association. Please make us aware of "what and why" this is happening in our Community. Here are some of my questions: What is this pipeline they are dumping into? Is this possibly a line from the old landfill? (To my knowledge there was no leachate collection system put in place when the Spruce Lake Landfill was constructed.) So what is this line? Is it going to the West Side Treatment Lagoon, if so, what kind of system is carrying it there? Can it handle the volume of waste that is being discharged into it? How safe is this pipeline, What is the present state of it? *Most importantly, why is it necessary that this dump waste must come via Lorneville to the treatment lagoon? Why can't the waste be directly trucked to the West Side Treatment Plant? *Why do we have tanker type trucks in a residential community? * What happened a couple of weeks ago when the smell was so overwhelming and breathtaking? Was there a spill of some sort? In closing, our community has hosted and endured the negative effect on our land and real estate for many years. Our soils have suffered from the contamination and pollution as a result of a below standard landfill in our area for more then 40 years. Enough is enough! This dumping in our community must stop! Please provide us with answers. Yours truly, I C�� Janice Chase 1453 Lorneville Rd. Saint John, N.B. E2M 7H5 Phone (506) 674 0995 Email nwsoap @rogerscom Cc Lorneville Community Association SENIORS' INFORMATION AND RESOURCE CENTRE BRUNSWICK SQUARE, LEVEL 111 39 KING STREET, SAINT JOHN, NB E2L 4W3 Common Council City of Saint John. July 24, 2406 Your Worship & Councillors, The Seniors' Information and Resource Centre of Saint John is aware of the growing use by senior citizens, of walkers of various types. They enable seniors to proceed outdoors and enjoy shopping with a reasonable degree of comfort. The fact that such seniors are able to be active is a step toward fulfillment of the concept of "HEALTHY ACTIVE LIVING." However, it has been noticed that in some instances, City streets are not designed to accommodate those using walkers, in both the growing use of crosswalks, slopes and bumper bevels at sidewalk crossings and public stairs. We respectfully ask that Council initiate a study to determine what the needs are to change street construction, to recognize the necessary changes in the present format of construction in an effort to accommodate those using walkers and wheelchairs. Yours truly, Don Shaw President dslhw July 17, 2006 Mayer and Council, P.O. Box 1971 Saint John NB E21, 4L 1 Dear Mr Mayer & Councillors (City of Saint John), Recently I move to Ontario Street Saint John west, and have a problem I would like to prescent to you. Being blind I am dependent on people at time to take me shopping etc. There is a person who comes to my home one clay a week to help me with shopping, paper work or whatever. She is a real stickler when it comes to cross walks. It would be a lot more relaxing for both of us and other people who like to walk in this area, if a cross walk was painted from Simms Street to Simms Street crossing Bleury Street. Presently there is no crosswalk there. I hope to hear from you at your earliest convenience. SinF5ely'� Mrs Estelle Middleton 790 Ontario Street Saint John NB E2M 3J1 Telephone: 506 693 -1755 Ir! SAINT JOHN BOARD OF POLICE COMMISSIONERS PO Box 1971 Saint John, New Brunswick Canada E2L 4L1 Bureau des Commissaires du Service de Police de Saint John C.A. 1471 Saint John Nouveau - Brunswick Canada E2L 4L1 RAYMOND T. FRENCH, Q.C. Chair /President ANDREW BRITTON Vice Chair /Vice President WES COSMAN Secretary/Secretaire WAN COURT Commissioner/ Commissaire DAVID EMERSON CommissionerlCommissaire CHARLENE HAYES Commissioner/ Commissaire NORMAN McFARLANE CommissionerlCommissaire SARAH WILSON Executive Secretary/ Secretaire Administrative Telephone/Telephone: (506) 674 -4142 FavUlecopieur: (506) 648 -3304 E- mail/Courriel: sarah.wilsongsain john.ca SAINT FOHN Explore our pastl Explarez notre pass Discover your future! Decouvrez votre avenir July 18, 2006 His Worship Mayor Norman McFarlane And Members of Common Council Your Worship and Councilors: Re: Access to Police Range Rothesay Regional Police Farce A request has been received from Rothesay Regional Police Force that they be allowed access to our range facility located in Ben Lomond. This access has been provided to them in the past and they have complied with conditions set out to them. This request has prompted us to review our authorization to provide this access to other police agencies and a legal opinion was received from the City Solicitor on June 23, 2006. At a meeting of the Board of Police Commissioners on July 11, 2006 it was resolved that the Board supports the use of the police shooting range by other police agencies providing they comply with all conditions that may be set out by the City of Saint John and the Saint John Board of Police Commissioners. Respectfully submitted, Raymond T. French CHAIR C: Allen G. Bodechon, Chief of Police July 2006 His Worship Mayor Norm McFarlane and Council City of Saint John P.O. Box 1971 Saint John, NB E2L 4L1 Dear Mayor McFarlane and Councillors- I am writing to request the opportunity to provide a brief, 10- minute update to Common Council regarding the Understanding the Early Years project, currently underway in Greater Saint John. Understanding the Early Years, or UEY, is a 3 -year, $3$0,000 research project funded by Human Resources and Social Development Canada. The philosophy of UEY highlights the importance of both family and community in the overall development and well -being of our children. The benefits of the UEY project are truly wide- ranging. Outcomes from past UEY communities have served to strengthen community capacity building around children and families, as well as to inform policy and program development related to the early years. The results of phase I of UEY Greater Saint John have recently become available and give us, as a community, both an opportunity to celebrate our successes and to assess how we might better serve the interests of our youngest citizens. I believe you will find this information both intriguing and enlightening. I thank you for considering my request for an audience and I look forward to hearing from you in the near future. Sincerely, Ellen Snider Project Coordinator UEY - Greater Saint John Linden Place, 199 Chesley Drive, Suite 204, Scint John, NB E21K 4S9 Phone: (506) 634 -6295 ext.222 1 -800 -360 -3327 1 Fax: (506) 652 -1477 i Email: uey @famIIyplus.ca 1 www.familyplus.ca Funded by the Government of Canada under the Understanding the Early Years Initiative Eric L. Teed, O.C., C.D., Q.C. 127 Prince William Street, Saint John, New Brunswick, EM 2B4 Tel: (506) 634 -7324 Fax: (506) 634 -7423 Common Council City of Saint John July 26th, 2006 Your Worship and Councillors, I was pleased to read that the City has taken the position of maintaining its presence in the present building with a 10 year lease. I feel that it was a wise move. Construction of a new City Hall at this time has a practical problem in how it may adversely affect the revenue received by the city. A city owned building will affect the assessment which in turn, it is understood, affects the calculation leading to a grant from the Province. In effect, City owned lands are not considered income property, which are grounds for lowering the overall tax revenue from the province. Possibly the city staff could verify that Charitable and City owned land can have a adverse effect on the city revenue with respect to the Provincial Grant. However, there is one important fact which it is hoped Council will now consider namely the so tailed City Plaza. The steps are becoming disreputable in appearance and dangerous in condition. The stairs are broken and cracked and these leading closer to the bus area are dangerous. It is suggested that, instruction be given to have them fixed without delay. Also it is suggested Council on directing repairs recognize the growing use of wheelchairs and walkers and the fact that many seniors are finding it difficult to climb stairs. The City is making positive efforts concerning new style buses to accommodate persons with disabilities. It would be appropriate that when the stairs are repaired, they will contain a slope or angle ramp for at least part of the stairs from the bus level. While one can say that one could walk up to the corner, but one can also say that the City should recognize the needs of a growing number of people whose needs are different from the average citizen and should endeavor to accommodate them. It is again brought to Council's attention that persons in wheelchairs, with walkers or even persons with heart problems either cannot or find it difficult to, get up the stairs leading to the City Hall entrance, fronting on Market Square. I strongly suggest that every effort be made to encourage the owner to have the stairs on the eastern side to include a walkway or ramp to enable persons to come to the first level. There is also a growing number with a baby strollers or carriages who cannot use the present steps. The Bank of Montreal has revised its doorway to accommodate all persons going into their premises. However, the steps to the front entrance swing doors is unnecessary and could be replaced by a low grade ramp leading to the doors. These are matters which are becoming of increasing importance and it appears now is the time to initiate action to rectify the situation. I would be pleased to discuss this further and point out the need should Council feel further information or explanation is needed. Yours truly, M & C - 2006 -215 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Amendment to Lease - City Market BACKGROUND: On February 14, 2005 staff submitted a report for the assignment of the Lease from Lyn Van Tassel to Beckwith & Co. Limited; however, the report did not identify necessary amendments to the lease. Under the Lease with Ms. Van Tassel her business was carried on under the name "Oh My Cod ", Beckwith & Co. Limited carry on business as `Beckwith & Co. ". As well the product line of the original business included "Maritime Fine Crafts ", the assignee has expanded this to "Canadian Fine Crafts ". Finally the clause allowing renewal of the lease (Clause 2.04) should have added "In the event the Lessor and the Lessee do not agree on the then prevailing market rate, such rate may be determined by a single arbitrator appointed by agreement between the Lessor and the Lessee pursuant to the Arbitration Act. The purpose of this report is to remedy these outstanding items with respect to the lease as assigned to Beckwith & Co. Limited. RECOMMENDATION: That Common Council consent and agree that the Lease as assigned to Beckwith & Co. Limited be amended as follows: 1.) All references to "Oh My Cod" are to be deleted and "Beckwith & Co." be substituted therefor; Report to Common Council July 28, 2006 Page 2 2.) The reference in Clause 7.01 to "Maritime Fine Crafts" be deleted and "Canadian Fine Crafts" be substituted therefor; 3.) Add to Clause 2.04: "In the event the Lessor and the Lessee do not agree on the then prevailing market rate, such rate may be determined by a single arbitrator appointed by agreement between the Lessor and the Lessee pursuant to the Arbitration Act. "; 4.) The Lease as amended shall continue in full force and effect for the remainder of the term of it and further; The Mayor and Common Clerk are authorized to sign all necessary documentation. Respectfully submitted, Jim R. Baird, MCIP Terrence Totten, F.C.A. Commissioner City Manager Planning and Development M & C — 2006 - 223 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Addendum to Licence Agreement — North Market Wharf Patio — Market Square BACKGROUND: As Council is aware, the City and The Hardman Group Limited are parties to a Licence agreement for patio space (364 square metres) along Market Wharf, Market Square. The patio space is utilized by the various restaurants located in Market Square fronting on North Market Wharf for seasonal outdoor seating. The current License Agreement expired on December 31, 2005 creating the opportunity to review the expired agreement and snake several minor changes, bringing the License to an improved standard. Under the expired licence, rent was not charged. The extended five year term will now generate annual rents of $2,000.00 plus HST. The City has also secured improved insurance coverage from the tenant to update its risk management in the matter. The purpose of this report is to seek Council's support to agree to extend the North Market Wharf Patio Licence Agreement under the terms and conditions contained in the attached "Addendum to Licence Agreement ". Report to Common Council July 28, 2006 RECOMMENDATION: Page 2 That Common Council resolves to enter into the Addendum to Licence Agreement (as submitted) with The Hardman Group Limited (attached) and further that the Mayor and Common Clerk are authorized to execute the Addendum as attached. Respectfully submitted, Jim R. Baird, MCIP Commissioner Planning and Development Terrence Totten, C.A. City Manager BI:111 AJAIENDITIJ TO LICENSE A(iHIFF-MINT I)ALC.: JU!y 4: '2000 Rt![wftm: And,. cl-l'y ()F q;-kL.Nj..F()UN TT U., HAR DMA' GROT _P T.T.W I ED "Cie Ucen-:cv" ' rile UCm -un !' %';rHFTZF'AS ihr Lizcnsor 2nJ Lic�,Lueeare pdv ;s to an p- ig* u p, CiCUia ys ()f sct olit hr..;wx_ AND'%TPJ .E ',-S Cli� J.k,rm3or aild LTI� Jkclu X 11 L�-t ngrozd tt) arnrmf the tel i n L: of ibei r 1: fLprntMejjt, NOW THIS AORTI.-MENT 'MT SSSLS 1i m in cousidcar2dojn Of Ll'.t!iT ID167LIal Lowmmts, LIke purtles affee m fejj,)ws: i. EYJSjdm lAcense. Nirficular.k lheLice-& irJTI,cl �,J b� %kdna in f L tcL)i vv Lich ms the folLowing Oii!_� wd Date-. Dec�'-Iyjbrx 7. [9K.7- limn st5 i]cat-_.Lln-. North Ntmrk t Wh3T-P. Square, Sai:it Joh-2_ Drunmivick Pr miser i �64Nf Pricir Addc nda 11.). 1 cd: N'Ar 2. AmeuduienN !* )Pxisting J.jL-L!Fjse '1112 LicewyPLuj L;Lceatbz;w apTuC TO :)TtA=l 01- add err c],-tcjc icr:71N fCL%Ill ft_' jjM-j%r. 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NO, ThQ CJty of Sa_zl John mill he addexl 8jftd nm;nu.i as Additional Lht -- Iwmrer will give Tbo Cily of SQjul John thirty (717) clay's ratio prior ro d ick "hLion of the covtragc, coverage gpll - �.n•;"ei2C1 c- % liability � Lxwse, 2.4 TerItlimcion: This A Tre %iI -ixl tu* l:c teemhiwed by r- -'!bcr Orly with one I_wtdrril �qrttl twt�aty° fI O) writieo U,)liuc. 3, Coitfirny Linn The Liz ctm ur ami the l Jceueo confirm &-it Lh,w exiting a..i;tunw :at16 al prior Addcnda remain, m lirll L'uruc aM infect and al term,£ r&-It:run LEAs 7 e exc a; -here exnressly €r.'.t.ic:d by this LicgnE:._ Tlti, J ,lcel)Bc 4hall be read and cnivsqmM the L;asc �su(l all prior Addends: 25 if Icy collec*i ly forrrt,--d ow. docimient, iN )AITNFSS WHEREOF lace P,irtit% t=a'r'e proper9 -, cm- �.iirndl Vs L.cerASC as of - edatc ri"t rbove w rittett_ SIGNE"), s:r:ali.TD AND DELIVERED iL 1l0 D'eseriCd •'11' Witr cs -ca rt , to LLG 3:03atu-c ff- WAtU35 Wme & ,kddrm , itnegEed a5 L�j : to _ L.pa'-ur =: 4., Wjueus nunc & Adel ;:ss MIRCE LY.-d 8,i t7 i9'i£: 31g^arar4- 3t: Wuncs5 as tc Lhe viguium rf: Witrcgs ru-A,r, & /xddrc�g? THE MkDNIAN GRMTF J- IJ4Sr1'LD Pei' Per: D-We uav t auth4ldty t., biliti LhL: C:ampny IAV., have tiu-aor -L ' °u hint ncr C tl dptra3° rTUJ-h CITY IDF f i r1- 1017Tti ISM Prr- �Lic. nsor ;- I;Wt YUVe lta'.r,'t}° a hind rbe C:- _ptnr 1 +'.Ve hav4- .virttrypri'._r ri '::Lrd thn. t.CtnFany Oxy of Sou n,- John 14741,V P;: 1%) IM REPORT TO COMMON COUNCIL a� July 27, 2006 = `� The City of Saint John His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council: SUBJECT: 2006 CoIvBv umcAmNS AUDIT Staff is aware that on this evening's agenda, the Vision 2015 Committee will be coming forth with a recommendation to engage a Communications Firm to assist the Municipality with some of its immediate communications requirements, but also to put together a plan of action so as to how best address the City's longer term requirements in this area. Staff is fully supportive of Vision 2015's efforts in this regard. This initiative has been ongoing for quite some time. During this period, City staff as part of an Educational Program, were required to prepare a 2006 Communication Audit. Given that the completion of such an audit is part of the expectations of the Communication firm, it would be appropriate for staff to be authorized to make this Communication Audit available to the successful firm as background material. RECOMMENDATION: That Staff be authorized to make the attached 2006 Communication Audit available to the Communication Firm to be engage by Common Council as of this date. CITY MANAGER enc. City of Saint John 2406 Communications Audit City of Saint John 2006 Communications Audit Table of Contents Page Executive Summary 1 -2 Introduction 3 Objectives of Communication Audit 4 Environment and Impact of the Environment on the City of Saint John 5 -8 City of Saint John Stakeholders 8 -9 Perceptions Related to Current City Communications 9 -20 External: Province of New Brunswick 9 -10 Perceptions of Maritime and Saint John Citizens about the City 10 -12 The Operational Review Management Consultants 12 -13 Local and Regional Media 13 -14 Internal Common Council of City of Saint John 15 Vision 2415 "Operational Review Implementation" Committee 16 Observations of the City's Communication Officer 16 The Board of Trustees of the Pension Plan 17 Employee Attitudes: Labour Relations 17 Communicating to Employees 18 Emergency Measure Organization and Trends in Crisis Communications 19 -20 Citizen Safety vs. Proactive Municipal Reputation Management City of Saint John 2006 Communications Audit (cont'd) Page Recommendations Establishment of a Communication Unit/Dedicated Resources 21 -23 Expanding Employee Participation in crisis response efforts 23 -24 Development of a Proactive Media Relations Strategy 25 Other Recommendations 25 -26 Conclusion 26 -27 Appendices Attached: Review of Existing Communication Units in Atlantic Canada Appendix A Overview of Saint John Communication Companies Appendix B Tentative City Communication Unit Budget Appendix C City of Saint John Communication Unit Tentative Org Chart Appendix D e City of saint John 2006 Communications Audit Page 1 7/7/2006 Executive Summary The City of Saint John and its' agencies, boards and commissions deliver ninety public services with an inadequate operating budget of $120 million and a stagnant tax base. As efficient and safe service delivery is a key success factor in municipal reputation management, without sustainable funding, the city now risks not only total service delivery failure but also severe damage to its reputation. In 2005, the City undertook an internal operational audit from which eleven recommendations designed to improve public accountability and service were developed. Improved stakeholder consultation has begun, but the review process has only touched on a few of the many City issues having communication implications. This Communication Audit of the City of Saint John analyzes current stakeholder communication effectiveness. Interviews with city staff and a review of research and media coverage since 2001 have highlighted related stakeholder perceptions, and paved the way for specific, future, strategic action in the corporate communication field. City of Saint John stakeholders indicate that organizational communication is fragmented. Research also, however, suggests a new appreciation by decision makers for the importance of strategic communication in fulfilling organizational goals. Recent service improvements and a strong knowledge of core business services will provide a base for confident and accurate future communications, but they mean nothing without stakeholder support. This audit recommends that the City make stakeholder communication an immediate priority. To be sustainable and effective, a Communication Strategy, a consistent look and feel to communication pieces, and human and financial resources must be allocated. Finally, city leadership support must exist and be articulated from the top down if communications -based recommendations of this report are to be realized. e City of Saint John 2006 Communications Audit Page 2 717/2006 Introduction A communications audit is a snapshot of an organization's current communications policies, techniques, and tools. It involves a thorough assessment of the climate in which communication is taking place, the perceptions and beliefs held by key stakeholders, and how fully communications is integrated strategically into the day to day operations of the organization. The City of Saint John's mission is "to serve our City with pride, to provide our citizens with quality service, and to contribute to the overall economic and social well -being of Saint John ' The prime factor tightly bound with municipal reputation management is efficient, safe, ethical service delivery. Actual or perceived failure to meet expected standards of service delivery (including safety) can cause irreparable damage. Auditing the City's communication effectiveness and recommending ways to improve the its' reputation, therefore, is crucial to the city's continued success. Responsible action by a municipality creates an atmosphere of trust. When people trust you they are more inclined to listen to you, and when they listen, you gain credibility. A credible organization normally enjoys a good reputation. If stakeholders see you positively, and as efficient, open, and honest, you will achieve service - related goals, and therefore undertake and complete new projects for sustainability (which require stakeholder and citizen support) much more easily. ' h Jlintranet h/work lace mission.cftn 5 . ti. City of Saint John 2006 Communications Audit Page 3 7/7/2006 Objectives This Communication Audit of the City of Saint John will do the following: • Analyse the situation in which the city presently finds itself, particularly with respect to the wide variety of issues facing the city or which are imminent. • Review the effectiveness /comprehensiveness of current stakeholder relations practices, by - Identifying internal and external stakeholder perceptions related to the City of Saint John's communication capabilities and effectiveness. - Reviewing the effectiveness and comprehensiveness of City of Saint John media relations efforts since early 2004 (civic election), including highlights /themes running through major media coverage. - Reviewing the comprehensiveness of the City's present strategic crisis communication plan, and whether crisis management is effectively tied in to other key human resource related programs. • Review the city's image re: council - endorsed "True Growth" branding guidelines. • Review current communication resources available, and how functional the present situation is, providing a "best practice" analysis of regional corporate communication departments in Atlantic Canada. + Make specific relevant recommendations to the City of Saint John for future strategic action in the corporate communication field, based on the findings of this audit. s a c City of Saint John 2006 Communications Audit Page 4 7/7/2006 Environment and Impact of the Environment on the City of Saint John Unprecedented media coverage, council nominee platforms, business group lobbying and citizen survey results prior to the May, 2004 civic election revealed a need for many improvements. More effective council leadership, a formal vision, and an operational review of city services were among these, due primarily to increased frustration with the past council and excitement about the impending election. Change has indeed begun, with aggressive stakeholder consultation at the core of many initiatives. This is key at present to the City of Saint John. The City and twenty -seven agencies, boards and commissions (or "ABC's ") deliver ninety public services, ranging from potable water to protective services to tourism. Unfortunately, the city's operating budget of $120 million has not grown in the past decade. The cost of inflation, a stagnant tax base and provincial downloading of services has effectively put the city at risk of service delivery failure. Realizing they have a responsibility to stakeholders to ensure the organization's long term sustainabiiity, the City undertook an internal operational audit in February 2005, investing an initial $250,000 and inestimable staff time. Eleven recommendations were developed with input from two hundred plus primary stakeholders, designed to "improve public accountability ", through improved service delivery options. All of these have since been adopted by Common Council as binding resolutions. The perception held pre - review of management, City/ABC employees, councilors and leadership, before an outside consultant was brought in, was that we were doing more with less and on the brink of organizational burnout_ Despite this, the Province of NB continues to see the city as `fat', or not completely efficiently using our funds. According to City Manager Terry Totten, "Meetings between 2. Alan Mitchell, "Saint John Operational Review Final Report ", Chartwell Inc. (September 2005) p. 8 City of saint John 2006 Communications Audit Page 5 7/7/2006 respective city and provincial bureaucrats in the late 1980' and early `90's revolved around evolving buzzwords such as "cops per pop" (population) and "per capita cost for fire service ". In an interview, Totten says, "It has since become evident that the benchmarks established were superficial, and they ultimately fail to recognize the nature of our community ". Saint John is a vast city land mass -wise. One in four citizens, for example, live in poverty, and we are the second largest industrial city in the Maritimes. City staff and council have, however, made considerable progress in developing stakeholder relations processes and in determining citizen perceptions in the past two years, primarily because of proactive initiatives like the Operational Review of Services. Municipal politics by its very nature is an open process. Weekly Monday night Council meetings offer individuals and citizen groups opportunities to voice their concerns one on one with council and staff. Phone calls to council and senior staff, and letters to the editor also demonstrate what "the vocal minority" believe and have to say, especially because in Saint John, no ward system or councillcommittee form of government exists. A more balanced view of perceptions, therefore, has come recently from a "three- pronged communication and consultation campaign" consisting of not only the internal operational review conducted over seven months in early 2005, but also a series of ten 2005 town hall meetings, and city - contracted 2002 and 2005 citizen telephone surveys. These include a larger population segment and credible methadology. Despite these undertakings, primary research through surveys and town hall meetings (running simultaneously with the review), revealed that post- review, citizen priorities differed from those exhibited pre - election. Pre - election, nine of ten residents believed a city service review to be important. Forty -three percent of citizens surveyed stated the City should hold the property tax rate "no matter what it takes" 3 3. Corporate Research Associates Inc, "City of SJ Residential study Summary Report" (June 2002), p. 9 & 10 City of Saint John 2006 Communications Audit Page 6 7/7/2006 Citizens consulted in ten town hall meetings by neighbourhood post - election, however, have indicated they will evaluate the city's performance on how well they deliver "doorstep services ", despite the cost. In particular, increased police presence, more green space, sidewalks, better bus service, and noise and traffic bylaw enforcement are immediate priorities.4 In Saint John, where the poverty rate is 25.4% compared to the national average of 16.2 %5, and where in certain areas, sixty percent of citizens live in poverty, Maslow's "hierarchy of needs" is reflected in that people will not focus on long term, large scale issues until their basic safety and survival needs are met. Council is committed to "doing the right thing" long term, but their key challenge, being aware of the particulars in the expectation gap, will be to reassure citizens that it is being bridged. As will be discussed further on, Saint John has recognized that a city must first benchmark against itself, and understand and be fully confident in the efficiencies of its own processes before comparing itself to another like it. The implementation of the Operational Review of City and ABC Service recommendations will provide that confident "leg to stand on" in the future with the province and all stakeholders. The facts will speak for themselves, and the City wiii better be able to resist the urge to "tell it vs. sell it ". The above description sets the stage for the context in which city staff and leaders are operating. A City Manager report to Common Council warns that the challenge will be "to be responsive to the concerns of individuals while never losing sight of the much broader strategies that will move the community forward ". It only touches on the dizzying number of corporate and service— related issues the City of Saint John must confront which have public relations and communications implications. 4. Terry Totten. "Town Hall Meetings." Report to Saint John Common Council, (Oct. 6, 2005), p. 6 s. Khalid Malik, "Article on Poverty Activists," Telegraph Journal (Jan. 5, 2006) .y c City of saint John 2406 Communications Audit Page 7 7/7/2006 With respect to risk analysis, along with balancing the longterm sustainability needs of the city (as identified in the eleven operational review recommendations) with the short term expectations of citizens (as identified in surveys and town hall meetings), there arc a wealth of other key short term issues the city is facing. City Manager Terry Totten advised in an interview that these include the ongoing transition to bilingualism, an LNG natural gas /environmentalist clash crisis, a pension fund deficit crisis, emerging potential disaster plan requirements (ie: legislated pandemic flu response plan by the province and recognition of internal human error crisis possibilities), implementing a water and wastewater strategy with a new metering system, and leading the city in an economic growth initiative from an image and branding perspective. Longer term issues facing the city include the inevitable need for increased special care homes due to an aging population and internally, a workforce recruitment, retention and succession planning strategy to address an aging workforce. City of Saint John Stakeholders The City of Saint John interacts with a variety of stakeholders daily. The city is starting to manage stakeholder relations much more effectively through two -way symmetrical consultation and dialogue, and is building citizen trust by identifying issues and asking for feedback. Consulting is a start, but now, more than ever, it is important that sustained communication efforts and realistic plans to respond to stimulated stakeholder expectations be planned for as well. Major stakeholders are: Primary: Internal: • Staff in City Departments, Agencies, Boards & Commissions • Employees and Union Executive (Locals 18, 486, 771, and 61) • City Department & Agency, Board and Commission Leadership Team • City Manager • Common Council i c City of Saint John 2006 Communications Audit Page S 7/7/2006 External: • Citizens /Customers /Public • Province of New Brunswick (Premier, Minister of Environment & Local Government, Local MLA caucus /Southern Caucus) • Government of Canada- Local Member of Parliament * Regional Mayors and Councils Secondary: • Local Advocacy /Special Interest Groups (Board of Trade, • Media o Print (e.g. Telegraph - Journal and here Magazine) o Radio: CBC, CHSJ, K -100, The WAVE, o Television: ATVIASNV, CBC, Global Television o On-line —community lens.com. www.cbc.ca. • Associations (Federation of Cdn. Municipalities, Cities of New Brunswick) Perceptions Related to Current City Communications External: Province of New Brunswick The province, as cited earlier, is rarely inclined to give the city the benefit of the doubt, As a key funder, the relationship is constantly strained and full of friction, especially annually at budget time. Further implementation of operational review recommendations will make Saint John one of a few municipalities who have undergone such an intense process, and will provide for future key messages such as the "City does have its act together" and is efficient and streamlined. There is (and will be) a real need to cornmunic�te operational review recommendations and their implications to various provincial representatives as it is rolled out. .ti City of Saint John 2006 Communications Audit Page 9 7/7/2006 The greatest barrier the city faces with respect to sustained service delivery is continued provincial downloading coupled with slow tax base growth, as it leads to a constant struggle to bold the tax rate. Interestingly, in 2002, three- quarters of City residents surveyed felt that the Government of New Brunswick was not meeting its obligations with respect to investing enough in the development of the city.6 The recommendation was that the city continue to press the provincial government for increased funding, Economic Development "True Growth" Initiative: i rceptions of Maritime and Saint John Citizens about the City Although revitalized and renamed in 2005, the goal of the "True Growth" initiative remains assisting the community to improve its self image and pride through promotion of positive stories, growth and identification of values. A Saint John Metro Quarterly Survey conducted in May, 2001 and an Atlantic Omnibus telephone survey conducted the same month, provided valuable insight into local and regional citizen "city" attitudes. Greater Saint John area residents rate their city a "9 -10" as a place to raise a family (36 %), to become involved in the community (30 %) and as a place to live and work (28 %).7 In the Atlantic study, just under half (49 %) of the respondents from the Maritimes overall felt that Saint John is either a `good' or an `excellent' place to live as opposed to nearly three quarters of the residents of Saint John. Unfortunately, residents of the Maritimes overall gave Saint John the lowest rating of the three cities (Saint John, Moncton, and Halifax) in ALL aspects explored. One in four of the residents of Saint John (24 %) and one third (36 %) of the residents of the Maritimes mentioned cleaning up the city and / or the air quality as being key to improving the City's image.8 6. Corporate Research Associates Inc, "City of Si Residential Study Summary Report" (June 2002), p. 5 7. CRA Saint John Metro Quarterly Survey & Atlantic Omnibus Survey (May 2001), p.4 s. CRA Saint John Metro Quarterly Survey & Atlantic Omnibus Survey, (May 2001), p. 10 City of Saint John 2006 Communications Audit Page 10 717/2006 The True Growth initiative is, in part, a response to these survey results, specifically in relation to the fact that one -third of the residents of the Maritimes felt that the City needs to "clean up" to improve its image, and their suggestion that we increase the amount of advertising we do to dispel misperceptions. 9 A Communication Committee made up of senior communication professionals from city corporations, the Port, the University, Hospital, Tourism Saint John, and the City, is currently developing and implementation a communication strategy to promote "True Growth." In particular, a brand has been established for the community, with implications for new graphic standards and key messages affecting everything from corporate materials such as letterhead to signage to decals on garbage trucks. The City has much work to do to adhere to these new standards, although corporate letterhead, annual report templates, and other business materials have been adapted. Endorsed by the five mayors and financially supported by the City of Saint John and surrounding towns, there is an expectation that the City of Saint John will play a lead role in developing and implementing the "True Growth" Communication Strategy. City staff assignments are temporary. Permanent responsibility must ensue. Citizens of the City were also surveyed. between August 12th and 27th, 2005 regarding their "City Hall" communications preferences. The study revealed clearly that the community is not in the habit of seeking out municipal information, and that half those surveyed are not interested in receiving municipal information at all. Ninety -five percent have never attended a council meeting, written a letter to council, or attended public meetings -9 The exception was the local cable channel on council night. Half of those surveyed had watched a council meeting, and those who watched averaged a whopping 7.5 meetings. 9. Corporate Research Associates Inc., Saint John Urban Report, (August, 2005) Table 3a -e. City of Saint John 2006 Communications Audit Page 11 7/7/2006 The implications for this are grave, as council itself, as unofficial spokespeople, can use this forum detrimentally. Citizens do not get a true view of the varied nature of municipal issues or professionalism. Other key preferences with respect to communication vehicles cited include the corporate city website and www.cbc.ca. Older residents, which make up the majority of the city's population, tended to prefer the newspaper. 10, The Operational Review Management Consultants Chartwell Inc. identified seventy -four opportunities as part of the City's comprehensive review of services. "Creating a Communications Organizational Unit" was one of the top two identified opportunities to improve services. Chartwell indicated that nearly all interviewed acknowledge this "need ". Other external consultants undertaking work for the city in 2004/05 stressed the need for a sustained strategic communication role in each case to ensure investments made are valued and understood by citizens and stakeholders. Council, in 2005, approved a water and sewer utility communication strategy proposing an aggressive two year plan, but it fails to identify who should oversee the Strategy, or who will do the work ". Common Councii ias also approved in 2005 a strategy related to the collection and disposal of solid waste, which recommends a fully funded and integrated public information and education component for a waste management/Spring Clean Up program.'2 Finally, citizens in the 2002 Residential survey also recommended that "the city develop and communicate a strategy for the ongoing improvement of the maintenance of city roads and streets". 12 10. Corporate Research Associates Inc., Saint John Urban Report, (August, 2005) Fable C 1 a -e. 11' Terry Totten. "Water & Sewerage Utility Fund ". Proposed 2005 Budgets" Report to SJCC, Jan 31/05 12. Terry Totten. 2005 Operating and Capital Budgets: General Fund. Report to SJCC, Jan 10105 1s Corporate kesearch Associates Inc, "City of SJ Residential Study Summary Report" (June 2002), p. 5 City of Saint John 2006 Communications Audit Page 12 7/712006 Each report assumes that the city has allocated appropriate resources to do the work. It is often assumed a firm will be hired, however, communication is an ongoing process and sustainability is critical. The City will have to identify who is going to sustain an adequate level of communication with respect to these many initiatives, after the Boards or committees have hired firms to create the Communication Strategies. Local and Regional Media The local media, and the Telegraph Journal newspaper in particular, played a key role in the 2004 municipal election, as well as throughout the recent Operational Review process. A review of articles and editorials has shown that the local newspaper was key to educating the community and affecting the change that led to the replacement of seven of ten councilors and the implementation of the Review. Telegraph Journal editorials urged citizens to responsibly "make their vote count" by making informed choices. Voter turnout last time in Saint John did result in a record 51 %. Throughout the election campaign, the local paper profiled all fifty municipal candidates, ultimately endorsing seventeen candidates who they felt would provide "clear, concise leadership. "13 An editorial in January, 2005 reflected the positive position they were beginning to take. It speaks of "a new Saint John that's being reshaped day by day" with a council "gaining a reputation for being a can -do team." 14 The Telegraph Journal commended the city for "signing on for an independent review of services" and even urged the Board of Trade, a longstanding opponent, to "offer solutions ", chiding that with their resources, connections and know how "surely they had more to offer... "15' The paper appeared, for a time, to be third party endorsers of the city. 13' "Our View" Editorial. "It's All About (leadership." Telegraph Journal (May 8th 2004) D -6 14 "Our View" Editorial. "Council: beware of roaring lions." Telegraph Journal (Jan 6, 2005) D -6 is "Our View" Editorial. "Board of Trade: Don't Stop Now" Telegraph Journal (Feb 9, 2005) D -6 5 4 C City of Saint John 2046 Communications Audit Page 13 7/7/2006 In addition to these key issues a review of media coverage shows that the opinion editorial has been fairly balanced with respect to City interests. There is actually a section of the paper called "The City" which reflects the importance the paper places of covering local events, crises, and developments. An interview with City Manager Terry Totten revealed that a series of editorial boards and media "open door policies" with respect to information on key issues have helped to promote goodwill. The paper also instituted a series of "community leader" articles in 2004 -2005, profiling most senior city commissioners and staff. Recent "teach -in sessions" by senior staff to media have also resulted in some cases in more accurate reporting. Where the city has struggled recently with the press is where issues between councilors and protest groups have become oppositional crises. The Liquid Natural Gas terminal crisis, where the Mayor individually made a tax deal with Irving Oil and council agreed to it, being advised very late in the process, in particular sparked an unrelenting stream of critical articles pitting councilors and segments of the community against each other. In fact, this crisis made national headlines, with a scathing editorial in the National Post June 9, 2005 describing Saint John Common Council's "back room deal cutting and ugly political games" and the "scandalous secret deal led by the Mayor of Saint John, hard ball corporation and the Province of NB" as extremely bad public policy, and how to set a precedent that could set New Brunswick tax policy back decades. 16 Council is still reeling a year later from negative public opinion related to their handling of this crisis, and many new councilors set up by the local press to be shining examples of new hope for local politics in Saint John irreparably fell from grace seemingly overnight and are not likely to be re- elected. 16 Terrence Corcoran FP Continent: The Irving Oil Tax Act Scandal ". National Post, June 9, 2005 City of Saint John 2006 Communications Audit Page 14 7/7/2006 Internal Common Council of City of Saint John During the past two decades, the City of Saint John has experienced a version of the "Strong Mayor" Model common in the United States, although in Saint John, the Mayor does not have the additional authority enjoyed by US Mayors. The Mayor is seen here as the official spokesperson for Council, speaking to many issues covering a wide spectrum of importance. The position has come to be perceived as the critical point of contact, the person with the authority and the channel to get things accomplished. Council divisiveness and the tendency of councilors to speak frequently on issues has encouraged oppositional crisis development. This, coupled with the fact that Common Council meets in public session on a regular basis, has contributed to the Administration's hesitancy to take a more active role in the field of Public Relations. The Administration's position has really been that staff report directly to Council each Monday evening, and that it is the Mayor and Council's responsibility to influence public opinion and behaviour. . During consideration of the 2005 Operating Budget, some Councilors expressed disappointment that new monies were not included to effectively deal with communicating C'ouncil's message to the public. The budget narrative therefore included the following telling statement. "Finally we recognize that we need to discover how hest we can deliver our City `s message in not only crisis situations but also in a professional manner on a routine basis. 17 17 Terry Totten. 2005 Operating and Capital Budgets: General Fund. Report to SJCC, Jan 1005, p. 4 t c City of Saint John 2006 Communications Audit Page 15 7/7!2006 Vision 2015 "Operational Review Implementation" Committee This committee, considering the investment of funds to date and the council endorsement of the recommendations, stated in various meetings that it expects that the work that the Committee will be undertaking over the next three to four years will be effectively communicated in a well planned, professional and sustainable manner. The Chair of the Committee, Councilor Glen Tait, states in a Feb 2006 Report to Common Council that "given the specialized and expansive nature of the communication field, a full time communication specialist will be required to take on the project Management role for Vision 2015 as a priority. "1$ He includes in the scope of the work of this person or agency "developing a business case for Corporate Communications overall at the City ". The Observations of the City's Current Communication Officer Discussions have been held with the City's one and only Communication Officer, from which it is evident that similar experiences encountered previously even by those with titles of Director of Public Relations are recurring. The requirement that the present communications officer react to a wide variety of requests from the media, and other managers, and the omission of this position at the strategic management table, has resulted in the position becoming much more "task oriented" than had been envisaged. The position is overwhelmed with day to day inquiries, leaving insufficient time to address broader issues associated with a Communications Strategy, or time to provide communications advice. The Communication Officer holds the view that in order to receive "added value" to the position, support staff must be provided. 18 Councilor,Glen Tait. "Communications ". Report to Saint John Common Council, Feb. 13, 2006, p 1 6 i City of Saint John 2006 Communications Audit Page 16 7/7/2006 The Board of Trustees of the Pension Plan According to John McIntyre, Manager of Human Resources, Trustees for the City of Saint John Pension Plan have discussed the need for "increased communication" to plan participants on a number of occasions. As the Trustees have advanced through related Training modules, each has become more aware of their responsibility to provide regular updates to contributors and pensioners. Current standards and /or best practices require that this be done. The Board has recently adopted a motion to engage a Communications firm and/or Professional to undertake such a project. Employee Attitudes: Labour Relations Whereas in 1980's City Council might deal with over sixty employee grievances a year, that number now averages two to three. City Manager Terry Totten attributes this partly to the fact that the union movement of the 1980's lost significant strength in the 1990'x, but more to a change in city staff leadership and a new approach to labor relations. Positive stakeholder relations are demonstrated by management consistency in communicating objectives for an efficient workforce, respect for the difficult roles the four union presidents play at the City of Saint John, and an open door policy related to them. More and more, as the city faces recruitment and employee loyalty issues, they have focused on efforts to show an interest in employee wellbeing and job satisfaction. Mutual interest committee meetings and union leadership participation in new ma j or city initiatives have proved helpful, 4 City of Saint John 2006 Communications Audit Page 17 7/7/2006 Communicating to Employees The City has, over the last five years, surveyed employees several times. The most significant study was undertaken by Brock University in 2001.19 The independently - analyzed "Employee Satisfaction Survey" indicated that along with workload stress, lack of recognition/reward, and challenges related to strategic leadership, lack of adequate workplace "communications" was a significant factor contributing to employee dissatisfaction. A City Manager newsletter stated soon afterwards. "Without doubt, our goal as local government is to have satisfied customers ... we recognize the first step in achieving this goal is satisfied employees, and we want to work with you, the employees of the City of Saint John in accomplishing this "20 Staff meeting frequency increased, and a new employee intranet was developed as a result, but the reality is that efforts at internal employee communication remain "ad hoe" due to "day to day operational responsibilities" and lack of dedicated internal communication resources. Employees who do have "something to communicate" use email distribution lists and the intranet sporadically, but without a strategy and regular use, these investments are in danger of becoming outdated and irrelevant. The city has striven to create a values -based culture within the organization. The vision Statement for Human Resources is "to have a skilled and knowledgeable workforce who demonstrate commitment, integrity and responsibility in their service to the citizens of Saint John" .21 Despite this, a slow -to change, aging workforce is clashing with cultural expectation and values of newer and younger employees. 19 Brock University Wellness Institute &. National Quality Institute. "City of Saint John Employee Feedback Survey Report", 2001 24 Terry Totten. "City Employee Satisfaction Survey Result Are in!" City Manager's Newsletter Update. Oct 2001 2E http:// intranet /section_h/workplace _ mission.cfm v City of Saint John 2006 Communications Audit Page18 7/7/2006 Emergency Measure Organization and Trends in Crisis Communications Citizen Safety vs. Proactive Municipal Reputation Management The City's emergency management program is extremely well developed, as citizen safety is of paramount importance. The organization responsible for the entire response, Saint John EMO, is legislated provincially, the Emergency Response Plan (endorsed by council and management) is documented as a formal city bylaw, and a hazard summary outlining over forty possible disasters has been developed, rated by history, maximum threat vulnerability and probability, and is posted on the city intranet and internet sites. 22 When situations involving public safety or environmental damage are identified, the crisis management process is automatically engaged and by its nature it overrides the normal analysis- response process. 23 As a result, we have tended to focus externally on social responsibility of caring for stakeholders as a priority in crisis management, neglecting completely the protection of the organization's image. According to Watkins, however, "the nature of crisis may be changing from operational to human causes. Smouldering crises outnumber sudden, exposing a conflict between individuals in an organization and the organization itself 24 Outgoing information related to emergency procedures for the public in identified external crises is handled well by EMO Public Information Officers from Police, Fire and by the present Communications Officer and alternates; however, the scope of the crises identified so far by SJEMO is very limited, leaving out at least four additional types of possible crises, and the existing crisis communication plan fails completely to match appropriate crisis response strategies and messaging to various stakeholders likely to be affected. if relating to Grunig's model, the communication approach the city takes has been reactive, one way, press agentry. 22. htmJ/intranet/section departments /emergency aanagennent/hazards.cfm 23 Royal Roads University. Managing Risk, Issues and Crises; PR 650; Unit notes 3 -17 c ". Michael Watkins. "Assessing your organization's crisis response plans." Harvard Business School, reprint 9- 902 -064. 200 1. p.16 ti r c City of saint John 2006 Communications Audit Page 19 71712006 Both the HR Manager and the Safety Officer admit that in the absence of any communications or crisis response strategies for human resource -based issues, the media set the pace, and that "getting through it isn't good enough." The common practice is to refer the request to the City Manager for his comment. They express frustration, for example, that adoption of proactive legislation by the city, (ie: sexual harassment policy), leads not to the media's conclusion that the city is a leading edge employer, but instead that, because we have such a policy, there must be a lot of sexual harassment going on. Obviously, the leading edge thought message is one that would be adopted proactively to positively frame announcements and deter media from making false assumptions. A review of internal Human Resource policy shows that proactive business improvement processes and dialogue are creating a firm foundation for improved communications, if and when resources are allocated. Peter Morgan, the City's Safety officer, says, "the municipality continues to strengthen its commitment to health and safety in the workplace, through, for example, ongoing support for a Joint Health & Safety Committee (JH &SC), progressive procedures with respect to "Accident Investigation and Reporting, and a range of training and education programs for employees, supervisors, and safety representatives ". The City of Saint John's recent partnership with the Workplace Health and Safety Compensation Commission (WHSCC) to implement a more comprehensive safety management system known as the 5'22., will better enable the city to prevent incidents and injuries in the workplace. According to the Safety Officer, this initiative involves an internal 2006 communication strategy for which there no dedicated resources. Overall, where employees fall in stakeholder prioritization is key, and will inevitably cut across major external and corporate communications - related issues the City will face. They are presently not being consulted to proactively identify possible internal issues. In essence, employees can play a much larger role in assisting the city in creating and maintaining a positive image in the community City of Saint John 2006 Communications Audit Page 20 7/7/2006 Recommendations Although the City of Saint John is starting to manage stakeholder relations much more effectively through direct, proactive consultation and dialogue, the catalyst for interactions has been service delivery and system improvement challenges, not recognition of the value of communication. A host of issues, present and imminent, internal and external, with communication implications have been identified in this audit. The following immediate actions are recommended: Recommendation 1: Establishment of a Communication Unit /Dedicated Resources Considering the variety of crucially important communication -based initiatives underway at the city at this time, and the expectations among stakeholders, it is strongly recommended that options for a well- funded, strategic communication program be evaluated and significant resources be dedicated to it. There are a variety of options available to the city, depending on funding available and impressions with respect to phasing the approach, outlined below. The review has revealed that while the city has previously hired staff with communications and public relations - related titles and responsibilities, has had department staff involved in planning special events, and for marketing the community as a destination, the City has not attempted to create any sort of "unit" with the common purpose of working towards implementing a "City of Saint John Communication Strategy." The City has never focused on ensuring its communication efforts are delivered in a well planned professional and sustainable manner. "Dedicated" requires management support of a strategic approach to communications management, with a representative at the executive table. Extensive consultation with senior city staff has revealed that discussions regarding possible options have been taking place. Of the many ideas generated, and noted in interviews over the last several months, I believe the needs of the organization would best be served by instituting one of the following options. City of Saint John 2006 Communications Audit Page 21 7/7/2006 Option I: Outsource the City's entire internal/external communication requirement to one full scale public relations /communication firm. The City of Saint John regularly utilizes a number of local firms for aspects of specific projects. A "Call for Proposals" for all City communication services, would be answered with proposals outlining alliances between large and small firms, and subcontracting arrangements. Considering the numbers of initiatives anticipated, the successful firm should commit to placing at least one staff person in City Hall itself. Challenges to anticipate related to this approach are the administration of the contract so as to ensure "billable hours" area kept under close scrutiny. The scope of the work and number of departments and employees involved must be considered in reporting structures. Cost control and contraci i—nanagement will be of paramount importance. Positively, consideration of options by the organization has occurred. Much information was able to be obtained from the City Manager, including several appendices attached to this report. A "Survey of Corporate Communication Division in other Atlantic Cities" (Appendix A), was prepared by the Communications Officer_ It shows that this option is not a common one in this region, and that many of the city's counterparts have established dedicated units, this option is feasible. Appendix B lists communication firms in the city and Appendex C suggests a department startup budget. Option 2: Create an organizational communications department, with adequate staff and financial resources to engage outside expertise when required. Option 2 involves a review of existing city employee skill sets to determine whether a basis exists for augmenting those already available. Appendix D provides a sample organizational chart, obtained from the city manager in an interview. Terry Tottep, "Communications Unit Discussion Paper ". Memo to Vision 2015 Committee.(Feb 1, 2006). e c City of Saint John 2006 Communications Audit Page 22 7/7/2006 Under this scenario, the city would undertake some re- alignment of present staff responsibilities and hire junior communications officers to undertake tactical day to day work. The City, as opposed to having to start from scratch, would invest in existing staff, knowledgeable about the City. Augmented by new employees and professional expertise when required, this should allow for an easy transition. Whatever, the decision, it is recommended that: • The managerldirector of the dedicated communication "resources" be active and involved in all management meetings and decision making immediately. f Communication staff and senior management immediately determine the department's scope of responsibility and authority, through operational guidelines, to ensure a clear understanding of their role verses that of Common Council. Senior management and city communication staff will obviously need to develop clear corporate communications objectives. One a decision has been made regarding who will do the communications work, and how, a variety of recommendations related to strategy can be considered. Based on the findings of this audit, these are listed below in order of priority: Recommendation 2: Develop an internal communication strategy specific to present employees to ensure regular communication, encourage morale, and otherwise address key issues revealed in the 2001 Brock Employee Survey. Employees as a stakeholder group are not receiving adequate information relating to organizational initiatives that affect them or will effect them. They are the twenty percent who are ensuring eighty percent of the business is effectively done. Components of such a plan should include the following: R� k City of Saint John 2006 Communications Audit Page 23 7/7/2006 Expand and broaden employee participation in a proactive crisis response program and proactive communication efforts through already - established HR committees like Joint Health and Safety and EAP. The City is not prepared for smouldering crises related to human error. Just as it has been recognized that service delivery failure could detrimentally affect the long term sustainability of all stakeholders, it must be recognized that "trends in crisis handling today are based on the changing face of the standards of our society and the resultant attention of the media. "25 A failure to protect the organization's reputation from issues -based crisis types can also be detrimental. The city must learn to put on its own oxygen mask first in many cases proactively anticipating issues. A review has revealed that risk and issue identification occurs primarily at weekly city management meetings, by managers. Often however, management is the last to know. Kathleen Fearnes -Bank states that "employee committees function as lighthouse keepers watching for vessels at sea ".'6 It is recommended that within an internal communications strategy, existing employee -based committees review and expand their mandates and employees undergo media relations training to eventually function as "network -alert systems" and be contributors to business continuity teams in cases of long term oppositional crises'. It is also recommended, as a support to potentially- required business continuity, that the adoption of a customer service department/info line, which has been recommended in the operational review and termed `Access Saint John," be instituted_ it's implications for more effective, longterm crisis communications should be more thoroughly investigated and integrated into a comprehensive crisis communications strategy. 25. Kurt Stocker. "A strategic approach to crisis management ", The Handbook of Strategic Public Relations & Integrated Communications. Clark Caywood, ed. Lawrence Erlbaum Associates. Mahwah, N.J., p. 190.. 26. Kathleen Fearns - Banks. "Crisis Communications: A Casebook Approach ". Lawrence Erlbaum Associates. Mahwah, N.J., 1996, p 5. City of Saint John 2006 Communications Audit Page 24 7/7/2006 That the newly developed communication unit take responsibility for the current intranet tool and integrate e- newsletters and web technology into the employee communication strategy. As the technology exists, staff has been trained to use the tool within their own departments and information is still fairly up to date, all that is required to make this recommendation a reality is dedicated staff with communication skills and experience. It is also recommended that the 2001 Brock Employee Wellness study serve as a benchmark for a 2007 employee study, which is overdue. Recommendation 3: Development of a proactive media relations strategy Such a strategy should be developed, in consultation with senior management, to identify opportunities to initiate and store up goodwill with the media, introduce major new city initiatives to citizens and educate them on the impact they will have on them, now or in the long term. This strategy should incorporate valuable information gleaned from the August, 2005 citizen communication preferences. It is also reconuuended that: • More proactive, effective use of the section in the daily newspaper entitled "The City" be incorporated into the media relations plan, and that a series of stories highlighting "the faces behind the desks" (city employees) be incorporated into the media relations program, to dispel stereotypes of city hall, highlight city achievements and put a human face on the organization. + That as part of this media relations strategy, Common Council be persuaded to undertake media relations training to understand how the public perceive their disunity, and how they effectively lose power to the press by encouraging escalation of oppositional issues into crises. Whether related to potential crises or day to day "good news" stories, it is essential that the City go beyond reactive, media — focused public relations to developing a strategic and targeted approach to stakeholder communications. This will require a more formal segmentation of audiences, ,development of proactive, responsive, strategies and related key messages for each audience. ti City of Saint John 2006 Communications Audit Page 25 7!7!2006 Media Relations Saint John Crisis Communications Recommendations • That the current Saint John Emergency Measures Organization public information plan be fleshed out and broadened to include guidance related to levels of response, crisis response strategies and that key messages be tailored to possibly affected stakeholders in each scenario. • That 5JEMO and senior management, with the newly- formed communications unit and the human resource department taking the lead, develop additional crisis contingeancy plans and related communication strategies, messages and tactics to address all possible types of crises, especially those related to possible human error. • That a proactive SJEMO public information and education plan and annual calendar be developed, to keep preparation and mitigation strategies "top of mind" with citizens, and that a tool kit of standard press resources, (stock photography and footage, city and staff backgrounders)and an inventory of credible third party experts in crises - related fields be developed_ Conclusion City of Saint John stakeholders have determined that organizational communication is fragmented. Much work has been done in the past several years with respect to service delivery improvements. Part of effective communications is having a thorough knowledge of one's business and being able to confidently validate the systems used and results. Having the best systems in the world means nothing if stakeholders don't perceive it to be true. Perception is reality. What is known for certain is that to be effective the City's efforts to communicate to stakeholders must be professional and sustainable. It is not simply a matter of occasionally issuing a press release; it is certainly not having a public relations spokesperson and it is not a matter of sending out a newsletter. Especially with respect to the operational review, a ten year project is a living, breathing process, and the plan today will change as stakeholder expectations, the environment, trends, and community leaders change. Constant environmental scanning, consistent communication, and a sense of commitment, common purpose and urgency by all will be keys to its success 4 1 City of Saint John 2006 Communications Audit Page 26 7/7/2006 To be effective, there must be a Communication Strategy, a consistent common look and feel to whatever communication pieces are used, human resources to get the work done and finally the financial resources to obtain the various specialized resources that are needed from time to time. It cannot be stressed strongly enough that the support of the city manager and senior administration will be key to ensuring the recommendations of this report are realized. r k S, Bibliography Interviews Terry Totten, City Manager, City of Saint John John McIntyre, Manager of Human Resources, City of Saint John Susan Greer, Communications Officer City of Saint John Peter Morgan, Safety Officer, Human Resources, City of Saint John, NB Sources Brock University Wellness Institute &. National Quality Institute. "City of Saint John Employee Feedback Survey Report", 2001 _ Corporate Research Associates Inc_, Saint John Urban Report, (August, 2005) Table 3a -e. Corporate Research Associates Inc, "City of SJ Residential Study Summary Report" (June, 2002), p. 9 & 10 Corporate Research Associates Inc., (May, 2001) Fearns- Banks, Kathleen. 1996. Crisis Communications: A Casebook Approach. Lawrence Erlbaum Associates. Mahwah, N.J., pp. 4 -9, 18 -33. Greer, Sus ,qn. Survey of Corporate Communications Divisions in other Atlantic Cities. Aug. 2005. Irvine, Robert and Dan Millar. 1998. Crisis Management and Communication. International Association of Business Communicators. San Francisco, CA. Chapter 6 & Appendix A. p.85 -133. Malik, Khalid, "Article on Poverty Activists" Telegraph Journal, (Jan. 5, 2006) Mitchell, Alan. "Saint John Operational Review Final Report ", Chartwell Inc. (September 2005) p. 8 "Our View" Editorial. "Board or Trade: don't stop now!" Telegraph Journal, (Feb 9th, 2005). D -6 "Our View" Editorial. "Council: beware of roaring lions." Telegraph Journal, (Jan 6th, 2005). D -6 "Our View" Editorial. "It's all about Leadership." Telegraph Journal, (May 8th 2004). Sec D -6 Stocker, Kurt. "A strategic approach to crisis management", in The Handbook of Strategic Public Relations and Integrated Communications. Clark Caywood, ed. Lawrence Erlbaum Associates. Mahwah, N.J., pp. 189 -203. Tait, Councilor Glen. "Communications ". Report to Saint John Common Council (Feb. 13, 2006). P. 1 Totten, Terry. "Town Hall Meetings." Report to Saint John Common Council, (Oct. 6, 2005), p. 6 Totten, Terry. Communications Unit: A Discussion Paper. Memorandum to Members of Vision 2015 Committee.(Feb 1, 2006). Totten, Terry. "Water & Sewerage Utility Fund ". Proposed 2605 Budgets" Report to Saint John Common Council, Jan 31", 2005 Totten, Terry. 2005 Operating and Capital Budgets: general Fund. Report to Saint John Common Council, Jan 10th, 2005 Totten, Terry. City Employee Satisfaction Survey Result Are in! City Manager's Newsletter Update. Oct. 2001 M & C — 2006 -218 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors SUBJECT: Sale of Portion of City Land (formerly Derby Street) Lager Head Investments Ltd. In March of 2006, Common Council stopped -up and closed an undeveloped street right - of -way, known as Derby Street (see attached plan). This right -of -way was approximately 20 metres in width and 77 metres in length. Had the road been developed, it would have connected Lime Kiln Road to Technology Drive. The neighbourhood has matured in such a manner that this right -of -way was considered no longer necessary. As is standard, Real Estate Services has offered portions of the stopped -up and closed right -of -way to the three adjoining neighbours for a specified unit rate and an equal share of the advertising and survey costs, subject to Council's approval. Real Estate Services has negotiated with Lager Head Investments Ltd., adjoining owner of a property, located on the south side of the former Derby Street for approximately 217 square metres ± (2,336 square feet). The recommendation contained below has incorporated into the sale price the costs associated with the required survey work and advertising for the street closure. RECOMMENDATION That The City of Saint John sells its fee simple absolute interest in a portion of PID 55069967, identified on an attached tentative plan of subdivision as Parcel 06 -A, to Lager Head Investments Ltd. for $1,263.00 plus HST (if applicable) on or before October 31, 2006. That The City of Saint John prepare any subdivision plan required for conveyance purposes. That the Mayor and Common Clerk be authorized to sign any documents required to finalize the transfer. Respectfully submitted, Jim R. Baird, MCIP Terrence Totten, F.G.A. Commissioner City Manager Planning and Development } F <f �' s X k\ i SS - I`.�= ,� mss •��, :� } X k\ i SS - I`.�= ,� mss •��, :� axczl rtia _nn I a� s us &fF s�Fpcs � r a M & C — 2006 -217 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Sale of Portion of City Land (formerly Derby Street) Scottish Enterprises Ltd. In March of 2006, Common Council stopped -up and closed an undeveloped street right - of -way, known as Derby Street (see attached plan). This right -of -way was approximately 20 metres in width and 77 metres in length. Had the road been developed, it would have connected Lime Kiln Road to Technology Drive. The neighbourhood has matured in such a manner that this right -of -way was considered no longer necessary. As is standard, Real Estate Services has offered portions of the stopped -up and closed right -of -way to the three adjoining neighbours for a specified unit rate and an equal share of the advertising and survey costs, subject to Council's approval. Real Estate Services has negotiated with Scottish Enterprises Ltd., adjoining owner of a property, located on the south side of the former Derby Street for approximately 554 square metres ± (5,963 square feet). The recommendation contained below has incorporated into the sale price the costs associated with the required survey work and advertising for the street closure. RECOMMENDATION: That The City of Saint John sells its fee simple absolute interest in a portion of PID 55069967, identified on an attached tentative plan of subdivision as Parcel 06 -13, to Scottish Enterprises Ltd. for $1,937.00 plus HST (if applicable) on or before October 31, 2006. That The City of Saint John prepare any subdivision plan required for conveyance purposes. That the Mayor and Common Clerk be authorized to sign any documents required to finalize the transfer. Respectfully submitted, Jim R. Baird, MCIP Terrence Totten, F.G.A. Commissioner City Manager Planning and Development I I Fl —9 x TE nr,-z ot LIVE KILN 4CA.0 -- — OP 5 III ell I LIVE KILN 4CA.0 -- — OP 5 III M & C — 2006 -209 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Sale of Portion of City Land (formerly Derby Street) FIC Holdings Inc. In March of 2006, Common Council stopped -up and closed an undeveloped street right - of -way, known as Derby Street (see attached plan). This right -of -way was approximately 20 metres in width and 77 metres in length. Had the road been developed, it would have connected Lime Kiln Road to Technology Drive. The neighbourhood has matured in such a manner that this right -of -way was considered no longer necessary. As is standard, Real Estate Services has offered portions of the stopped -up and closed right -of -way to the three adjoining neighbours for a specified unit rate and an equal share of the advertising and survey costs, subject to Council's approval. Real Estate Services has negotiated with FIG Holdings Inc., adjoining owner of the property located on the north side of the former Derby Street for approximately 754 square metres ± (8,116 square feet). The recommendation contained below has incorporated into the sale price the costs associated with the required survey work and advertising for the street closure. RECOMMENDATION: That The City of Saint John sells its fee simple absolute interest in a portion of PID 55069967, identified on an attached tentative plan of subdivision as Parcel 06 -C, to FIC Holdings Inc. for $2,337.00 plus HST (if applicable) on or before October 31, 2006. That The City of Saint John prepare any subdivision plan required for conveyance purposes. That the Mayor and Common Clerk be authorized to sign any documents required to finalize the transfer. Respectfully submitted, Jim R. Baird, MCIP Terrence Totten, F.G.A. Commissioner City Manager Planning and Development YJ LIVIM N II)l JFIII I 113 13 LL N, X, ' p z I Li GO LU 7 -it LU F: YJ LIVIM N II)l JFIII I 113 13 LL N, X, ' p z I M & C — 2006 -210 July 21, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: STREET NAMING The rite, of sit Joan An individual has created one new residential lot fronting on a private access off of the Red Head Road (see map below). Because the new construction is located between civic address 865 and civic address 867 Red Head Road, there are no civic numbers available for the new house that will be built upon this lot. There are two possible options to resolve this situation; the first option is to renumber some of the residents along Red Head Road, in order to be able to give the new construction a Red Head Road civic address. The second option would be to name the private access and assign the new house a civic address on the newly named street. It has also been suggested that he will be creating additional residential lots in the near future. Therefore in order to accommodate this future development, and avoid having to change existing residents' civic address, it is staff s opinion that this street should be named immediately. The developer has suggested the name of allee Griffin Lane. In staff s opinion, allee Griffin Lane would be an acceptable name for this street. RECOMMENDATION: It is recommended that Common Council amend the list of Official Street Names and approve the following change: • Add the name all6e Griffin Lane. Respectfully submitted, Jim R. Baird, MCIP Terrence Totten, F.C.A Commissioner City Manager Planning and Development V- \O? f uk 4�� M & C — 2006 - 225 July 26, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Public Hearing Date 57 Broadview Avenue BACKGROUND: As provided in Common Council's resolution of August 3, 2004, this report indicates the Rezoning and Section 39 applications received and recommends an appropriate public hearing date. The full applications are available in the Common Clerk's office and will form part of the documentation presented at the Public Hearing. The following application has been received. Name of Location Existing Proposed Reason Applicant Zone Zone Comeau Mackenzie 57 Broadview `IL -1" "FM -IF" To construct a Architecture Avenue four -unit dwelling RECOMMENDATION: That Common Council schedule the Public Hearing for the rezoning application of Comeau Mackenzie Architecture (57 Broadview Avenue) for Monday, August 28, 2006 at 7:00 p.m. in the Council Chamber. Respectfully submitted, Jim R. Baird, MCIP Commissioner Planning and Development Terrence Totten, F.C.A. City Manager REPORT TO COMMON COUNCIL M & C 2006 - 226 July 26, 2006 His Worship Mayor Norm McFarlane & Members of Common Council Your Worship and Members of Council, SUBJECT: CONTRACT NO. 2006 -33: LILY LAKE WASTEWATER PUMPING STATION AND FORCE MAIN BACKGROUND The City of Saint Joan This Contract consists of a project that is approved in the 2006 Capital Program to construct a new sewage pumping station at the Lily Lake Pavilion, and a new 50 mm force main from the Lily Lake Pavilion, to the existing sanitary sewer at Rocky Terrace. TENDER RESULTS Tenders closed on July 25, 2006 with the following results: 1. Sussex Excavators Ltd. $ 114,400.00 Sussex N.B. 2. Galbraith Construction Ltd. $ 191,300.00 Saint John, NB The Engineer's estimate for the work was $131,000.00. M & C 2006 - 226 July 26, 2006 Page 2 ANALYSIS The tenders were reviewed by staff and both 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 recommends acceptance of its tender. FINANCIAL IMPLICATIONS The 2006 Capital Budget includes $200,000.00 for infrastructure work associated with the redevelopment of the Lily Lake Pavilion. The City's responsibilities are for provision of water and sewerage service and street access. There will be additional work required to provide barrier free access to the building from the street. The budget analysis for this concludes that a total amount of $200,000.00 was provided in the budget and that the projected completion cost of the portion of the Lily Lake Pavilion Restoration Project included in this contract is estimated to be $114,678.95, including the City's eligible H.S.T. rebate, leaving a remainder of $85,321.05 in the budget. RECOMMENDATION It is recommended that Contract 2006 -33: Lily Lake Wastewater Pumping Station and Force Main, be awarded to the low tenderer, Sussex Excavators Ltd., at their tender price of $114,400.00 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 REPORT TO COMMON COUNCIL M &C2006 -219 July 24, 2006 His Worship Mayor Norm McFarlane & Members of Common Council Your Worship and Members of Council, SUBJECT: Red Head Secondary Access Road — Inspection Services BACKGROUND The City of Saint Joan On November 7, 2005 Council approved a Design Build Agreement between the City and Irving Oil (M &C 2005 -328) to construct a new road from the Old Black River Road to the Proud Road with an inter - connector to the Red Head Road. This new road was named in the Agreement as the Red Head Secondary Access Road. Under Section 7.4 of the Design Build Agreement, reasonable out of pocket expenses incurred by the City in retaining a professional engineer duly licensed in the Province of New Brunswick to monitor and supervise the Developer's performance of the DB Work shall be payable by the Developer to the City on a monthly basis. PURPOSE OF THE REPORT The purpose of this report is to make a recommendation for engineering inspection services to monitor and supervise the Developer's performance of the DB Work for this project. ANALYSIS On July 6, 2006 with a comprehensive and detailed scope of work document developed by staff, a proposal for consulting engineering services was requested from Terrain Group Inc. In response to this request, Terrain Group Inc. submitted a proposal on July 20, 2006. Staff was previously authorized by Council to conduct negotiations with this consultant for engineering services for the project (M &C 2006 -185). M &C2006 -219 July 24, 2006 Page 2 The all inclusive hourly rate contained in the proposal was evaluated and the consultant's requested fee was appropriate for submission to Council for approval. The submission from Terrain Group Inc. met all of the requirements of the proposal call, in a manner acceptable to the committee, with a cost effective bid for the project. FINANCIAL IMPLICATIONS The proposed cost of the work from Terrain Group Inc. to provide construction inspection services over the estimated construction period of 22 weeks is approximately $114,493 including the City's eligible HST rebate. This cost is payable by the Developer to the City on a monthly basis. RECOMMENDATION It is recommended that the proposal of Terrain Group Inc. for engineering inspection services for the Red Head Secondary Access Road project be accepted and that the Mayor and Common Clerk be authorized to execute the appropriate documentation in that regard. Respectfully submitted, J. M. Paul Groody, P.Eng. Commissioner Municipal Operations & Engineering Terrence L. Totten, F.C.A. City Manager REPORT TO COMMON COUNCIL M & C 2006 - 222 July 25, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council, SUBJECT: Design and Construction Management: Somerset Street Water Pumping Station Upgrades BACKGROUND The City of Saint Joan On February 14, 2006 (M &C 2006 -13) Common Council provided early approval for the design and construction management of upgrades to the Somerset Street Water Pumping Station under the 2006 Water and Sewerage Utility Fund Capital Program. The project includes the funding necessary to engage engineering services to complete the following: • Upgrades to the SCADA and electrical systems; and • A new automated continuous chlorine monitoring and control system. The project includes the funding necessary to engage engineering services to complete the following: • site survey and preliminary investigation; • preliminary design and design report with cost estimates; • detailed design; and • construction management and inspection services. PURPOSE OF THE REPORT The purpose of this report is to make a recommendation for consulting engineering services for this project. M & C 2006 — 222 July 25, 2006 Page 2 ANALYSIS On April 24, 2006 with a comprehensive and detailed scope of work document developed by staff, a proposal for consulting engineering services was requested from Terrain Group Inc. Staff was previously authorized by Council to conduct negotiations with this consultant for engineering services for the project. In response to this request, Terrain Group Inc. submitted a proposal on July 14, 2006. A Review Committee consisting of the following staff completed an analysis of the submission: Peter Hanlon, P. Eng. Chief Water Quality Inspector Brett McLean, P. Eng. Municipal Engineer, Municipal Engineering Dean Price, P. Eng. Municipal Engineer, Municipal Engineering Dave Logan, CPPB Purchasing Agent/Manager, Materials and Fleet Management Each member completed a review of the submission. The upset price contained in the proposal was also evaluated by the committee and the committee agreed that the consultant's requested fee was appropriate for submission to Council for approval. The submission from Terrain Group Inc. met all of the requirements of the proposal call, in a manner acceptable to the committee, with a cost effective bid for the project. FINANCIAL IMPLICATIONS The proposed cost of the work from Terrain Group Inc. to provide design and construction management services is $47,427 including the City's eligible HST rebate. An amount of $60,000 was approved by Council on February 13, 2006 (M &C 2006 -31) under the 2006 Water and Sewerage Utility Fund Capital Program for design and construction management. Engineering fees to cover the cost of design and construction management generally do not exceed 12 -17% of the total overall project cost, depending on the nature of the project and the engineering services required. This upset fee is approximately 13.4 % of the total overall project cost, which is considered appropriate for this type of project. M & C 2006 — 222 July 25, 2006 Page 3 RECOMMENDATION It is recommended that the proposal of Terrain Group Inc. for engineering (design and construction management) services for the Somerset Street Water Pumping Station Upgrades be accepted and that the Mayor and Common Cleric be authorized to execute the appropriate documentation in that regard. Respectfully submitted, J. M. Paul Groody, P. Eng. Terrence L. Totten, F.C.A. Commissioner, City Manager Municipal Operations & Engineering REPORT TO COMMON COUNCIL M & C 2006 -212 July 24, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council, SUBJECT: Contract 2006 — 29: Spruce Lake Tank — Flow Metering BACKGROUND: The City of Saint Joan This Contract consists of projects that are approved in the 2005 and 2006 Water & Sewerage Capital Program as follows: ■ Installation of system meters for monitoring of flows and data collection on the water distribution system. ■ Installation of a new metering site on the 900 mm main that flows out of the Spruce Lake Tank, and the installation of several smaller watermain meters at zone boundaries. TENDER RESULTS: Tenders closed on July 18, 2006 with the following results: 1) Fairville Construction Ltd. $110,330.00 Saint John, NB The Engineer's estimate for the work was $117,727.60. M & C 2006 — 212 July 24, 2006 Page 2 ANALYSIS: The tender was reviewed by staff and found to be formal in all respects. Staff is of the opinion that the 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 different capital work projects. Assuming award of the Contract to the tenderer, an analysis has been completed which includes the estimated amount of work on this project that will be performed by City forces and others. The analysis concludes that a total amount of $130,000 was provided in the budgets and that the projected completion cost of the project included in the Contract is estimated to be $132,425.91, including the City's eligible HST rebate — a $2,425.91 difference in the Water & Sewerage Utility Fund Capital Program. This budget shortfall can be managed within the overall Water & Sewerage Fund Capital Program budget envelope for 2006. RECOMMENDATION: It is recommended that Contract 2006 -29: Spruce Lake Tank — Flow Metering, be awarded to the tenderer, Fairville Construction Ltd., at their tendered price of $110,330.00, as calculated based upon estimated quantities, and further 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 REPORT TO COMMON COUNCIL M & C 2006 -211 July 24, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council, SUBJECT: Contract 2006 — 21: Crack Sealing - 2006 BACKGROUND: The City of Saint Joan The 2006 General Fund Operating Budget included a provision for the crack sealing of asphalt pavements on various City streets, as per the attached list. The work consists generally of cleaning the asphalt pavement cracks by high velocity blowers and immediately filling the cracks with a hot rubberized joint sealing compound which adheres and seals the cracks in asphalt pavements. A sprinkle of cement or agricultural lime is then applied to prevent tracking of the sealant by vehicular traffic. The total length of asphalt cracks to be sealed is approximately 10,000 metres. TENDER RESULTS: Tenders closed on July 19, 2006 with the following results: 1) Crown Contracting Limited $31,570.00 Mount Pearl, Newfoundland The Engineer's estimate for the work was $25,000.00. M &C 2006 — 211 July 24, 2006 Page 2 ANALYSIS: The tender was reviewed by staff and found to be formal in all respects. Staff is of the opinion that the tenderer has the necessary resource and expertise to perform the work, and recommend acceptance of their tender. FINANCIAL IMPLICATIONS: There is $30,000.00 provided for crack sealing in the 2006 General Fund Operating Budget. The projected completion cost is estimated to be $28,642.52 including the City's eligible H.S.T. Rebate — a $1,357.48 positive difference in the General Fund Operating Budget. This Contract is prepared in such a way that the quantity of work can be increased or decreased without penalty. Staff will monitor the progress of the work and maintain the expenses to the budget allocation. RECOMMENDATION: It is recommended that Contract 2006 -21: Crack Sealing - 2006, be awarded to the tenderer, Crown Contracting Limited, at their tender price of $31,570.00, as calculated based upon estimated quantities, and further 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 2006 — 211 July 24, 2006 Page 3 Proposed Streets for Crack Sealing — 2006 r—_ _, T Bleury Street Simms Street to Molson Avenue Molson Avenue Bleury Street to End Sherbrooke Street Benji Lane to Sand Cove Road Wallace Court Sherbrooke Street to End Fairville Boulevard Catherwood to Emco Lane Grandview Avenue Heather Way to Civic #1557 Main Street North Bridge Street to Douglas Avenue Victoria Street Albert Street to Elgin Street Sunnybrook Terrace Heather Way to End Hickey Road Loch Lomond Road to Heather Way High Drive Eastwood Road to Shillington Drive Cresthill Street Shillington Road to High Drive Ocean Drive Red Head Road to Fay Street Aberdeen Avenue Fay Street to Lucas Street Eden Street Ocean Drive to End REPORT TO COMMON COUNCIL M & C 2006 - 227 The City of Saint Joan July 26, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council, SUBJECT: Enbridge Gas New Brunswick Inc. - Street Rehabilitations BACKGROUND Enbridge Gas New Brunswick Inc. entered into a Municipal Operating Agreement (MOA) with The City of Saint John on August 14, 2000. Under the terms of the agreement, Enbridge Gas has a non - exclusive licence irrevocable for a 20 year term commencing August 31, 1999 and any renewal thereof to enter upon all highways or at any time thereafter under the jurisdiction of the City to install, construct, maintain, replace, remove, operate and repair a gas distribution system for the distribution of gas in and through the Municipality. This work includes the excavation of streets, sidewalks and landscaped areas and their reinstatement. The MOA states that, "The Gas Company shall, to the satisfaction of the Engineer, restore or cause to be restored, at its cast, all highways or municipal infrastructure which it may excavate or interfere with in the course of installing, constructing, repairing or removing its gas distribution system located within highways, and shall, to the satisfaction of the Engineer, make good any settling or subsidence thereafter caused by such excavation or interference ". The agreement also provides that Enbridge "...warrants and agrees that all restorations or reinstatement of'highways will endure until the road foundation is reconstructed. " ANALYSIS The MOA is silent on the subject of when necessary restoration is to be completed but it is Enbridge's practice to complete the restoration as soon after completion of the pipe work as possible. M & C 2006 — July 26, 2006 Page 2 ANALYSIS (Cont'd) In late 2005 Enbridge installed a substantial length of natural gas main in various locations in the city and was unable to complete permanent restorations before winter conditions set in. In all cases, temporary repairs were made so that dangerous conditions did not exist. Permanent repairs were scheduled to be completed in the spring of 2006. Inspections by staff in June 2006 revealed that restoration was not proceeding in a timely manner and a large amount of restoration work had not been done — including restoration of work that had been completed in 2006. Staff met with Enbridge officials on July 6, 2006 and presented a list of existing deficiencies, a copy of which is attached. Staff advised Enbridge that no new construction permits would be issued until Enbridge demonstrated a commitment to timely restoration and completion of the outstanding work. Enbridge committed to expedite the restoration work as soon as possible. Enbridge Gas immediately had their contractor begin work on outstanding asphalt, sidewalk and landscaping reinstatements. As Council can see in the attached deficiency list, there were a number of outstanding deficiencies as of July 6. Over 80% of the deficiencies have been reinstated as of July 27. Enbridge provided a Reinstatement Timetable to the City on July 21 that has indicated all reinstatement work for the 2006 gas pipeline installation project from Fairville Boulevard to Spruce Lake Industrial Park will be completed by August 4, all remaining reinstatements for the 2005 work will be done by July 28 with the exception of 2 asphalt cuts needing to be milled which will be completed the week of July 31 and all remaining warranty reinstatement repairs for work completed in 2004 or before will be completed by August 11. Staff discussions with Enbridge Gas have resulted in an increased commitment to a more timely restoration of city streets after the gas lines have been installed. Daily staff inspections have proven a substantially improved commitment by Enbridge Gas toward eliminating the backlog of restoration work. Staff has started approving new permit applications for gas pipeline installations as a result of the restoration commitment by Enbridge. FINANCIAL IMPLICATIONS The cost associated with the reinstatement work is the responsibility of Enbridge Gas New Brunswick Inc. RECOMMENDATION It is recommended that this report be received and filed. Respectfully submitted, J. M. Paul Groody, P. Eng. Terrence L. Totten, F.C.A. Commissioner, City Manager Municipal Operations & Engineering 7/28/2006 ENBRIDGE GAS REINSTATEMENT DEFICIENCIES As of July 6/2006 Sod Deficiencies Street # Street Name Deficiency Completed as of July 27th opp 35 Boyd Street Yes Centennial /Manawagonish Centennial Drive Yes 53 -55 Coburg Street Yes 29 Coronation Court Yes 23 -25 Cranston Avenue No 4 Davenport Ave Yes 50 Dexter Drive Yes 288 Ellerdale Street Yes 9 First Street Yes 157 Germain Street Yes Length of Gilbert Street Yes Gooderich /Mount Pleasant Gooderich Street Yes 215 King Street East Yes 198 King Street East Yes 198 King Street East Yes 215 King Street East Yes 55 Lansdowne Avenue Yes 20 Leinster Street No 10 Lime Kiln Yes 27 MacLaren Blvd Yes 57 MacLaren Blvd Yes 62 MacLaren Blvd Yes 211 MacLaren Blvd Yes 15 -55 Magazine Street Yes 1347 Manawagonish Road Yes 37 Mecklenburg Street Yes 281 Old Black River Road Yes 95 Orange Street Yes 17 Pagen Place Yes 191 Queen St Yes 30 Queen St Yes 30 Queen St Yes 12 Smythe Street Yes MacLaren /Somerset Somerset Street Yes Length of Thornborough Street Yes 85 Thornborough Street Yes 32 Wildwood Street Yes 215 Wright Street Yes 223 Wright Street Yes 253 Wright Street Yes Length Wright Street Yes 7/28/2006 ENBRIDGE GAS REINSTATEMENT DEFICIENCIES As of July 6/2006 Overseed Deficiencies Street # Street Name Deficiency Completed as of July 27th Barker /Cranston Barker Street Yes 29 Barker Street Yes 39 Barker Street Yes 47 Barker Street Yes 8 Boyd Street Yes 80 Broad Street Yes Length of Centennial Drive Yes 46 Centennial Drive Yes 44 Centennial Drive Yes Length of Courtney Avenue Yes 35 -47 Cranston Avenue Yes 180 Crown Street Yes Westmorland /Depot Depot Court Yes Pagen /Germain Germain Street Yes 212 Germain Street Yes 55 Gooderich Street Yes 39 Gooderich Street Yes Length King St East Yes 160 King Street East Yes Across from Villa Loch Lomond Road Yes 67 Magazine Street Yes Magazine /Somerset Magazine Street Yes 254 Main Street Yes 1431 Manawagonish Road Yes 1431 Manawagonish Road Yes 1349 Manawagonish Road Yes 1325 Manawagonish Road Yes 1283 Manawagonish Road Yes 1261 Manawagonish Road Yes 1253 Manawagonish Road Yes 1177 Manawagonish Road Yes 1111 Manawagonish Road Yes 1157 Manawagonish Road Yes 1064 Manawagonish Road Yes 1065 Manawagonish Road Yes 2 Mount Pleasant Avenue Yes 2 Mount Pleasant Avenue Yes 100 Mount Pleasant Avenue Yes 55 Mount Pleasant Avenue Yes 55 Mount Pleasant Avenue Yes 108 -170 Mount Pleasant Avenue Yes 40 Ocean Court Yes Opp 49 Ocean Court Yes Opp 73 Ocean Court Yes 7/28/2006 Opp 73 Ocean Court Yes Opp 73 Ocean Court Yes Opp 48 Centennial Ocean Court Yes Opp 49 Ocean Court Yes Length of Orange Street Yes #549 Orange Street Yes 71 Orange Street Yes 63 -65 Parks Street Yes Length of Somerset Street Yes 557 Westmorland Road Yes Co -op Westmorland Road Yes 201 Wright Street Yes ENBRIDGE GAS REINSTATEMENT DEFICIENCIES As of July 6/2006 Asphalt Deficiencies Street # Street Name Deficiency Completed as of July 27th 8 Boyd Street Yes 80 Broad Street (driveway) 87 Broad Street (driveway) 34 Cranston Avenue (driveway) 24 Davenport Yes 204 Douglas Avenue Yes Median First Street Yes 157 Germain Street Yes 2A King Street Yes 215 King Street East No Lime Kiln No 7 MacLaren Blvd No 2 Mount Pleasant No 79 -81 Princess Street (driveway) 191 Queen St Yes 223 Rothesay Avenue Yes 201 Wright Street Yes opp 49 Davenport No ENBRIDGE GAS REINSTATEMENT DEFICIENCIES As of July 6/2006 Miscellaenous Landscaping Deficiencies Street # Street Name Deficiency Completed as of July 27th Metcalf /Magazine Magazine Street Yes U7 & U8 Market Square Yes Westmorland a 506 Ellerdale Street Yes ENBRIDGE GAS REINSTATEMENT DEFICIENCIES As of July 6/2006 Curb Deficiencies Street # Street Name Deficiency Completed as of July 27th 176 Anglin Drive Not Enbridge 170 Anglin Drive Not Enbridge 20 Anglin Drive Not Enbridge 80 Broad Street Not Enbridge 19 -21 Cranston Avenue Yes 24 Davenport Ave Yes 26 Davenport Ave Yes opp 49 Davenport Ave Yes 55 Lansdowne Avenue No 67 Magazine Street Yes 8 Barker Magazine Street Yes 65 Parks Street Yes Cranston / Thornborough Thornborough Street Yes 201 Wright Street Yes ENBRIDGE GAS REINSTATEMENT DEFICIENCIES As of July 6/2006 Sidewalk Deficiencies Street # Street Name Deficiency Completed as of July 27th 44 Centennial Drive Yes 53 -55 Coburg Street Yes 53 -55 Coburg Street Yes 180 Crown Street Yes 180 Crown Street Yes 212 Germain Street Yes 82 Germain Street Yes 157 Germain Street Yes 39 Gooderich St Yes 55 Gooderich Street Yes 2A King Street Yes 215 King Street East Yes 198 King Street East No 207 King Street East Yes 55 Lansdowne Avenue No 20 Leinster Street Yes 55 Magazine Street Yes 1 Magazine Street Not Enbridge 234 Millidge Avenue Yes 146 Mount Pleasant No 40 Ocean Court Yes 95 Orange Street Yes 165 Queen St Yes 30 Queen St No 12 Smythe Street Yes Thorn borough /Kiwanis Thornborough Street Yes Cranston / Thornborough Thornborough Street Yes 215 Union St Yes 215 Union St Yes 61 Union St Yes 36 Waterloo Street Yes 36 Waterloo Street Yes ENBRIDGE GAS REINSTATEMENT DEFICIENCIES As of July 6/2006 Deficiencies 2004 and Previous Street # Street Name Problem Deficiency Completed as of July 27th 203 Churchill Blvd Sidewalk Yes Visart /Churchill Churchill Blvd Sidewalk No Visart /Churchill Churchill Blvd Sod No 12 Germain Street Sidewalk No Main /Lansdowne Main Street Asphalt No LBR Main Street Asphalt No CBC Main Street Asphalt No Scotiaview /Manchester Manchester Avenue Sod No Mollins /Manchester Manchester Avenue Sod No Manchester Avenue Sod No Works /FHUBC McAllister Drive Sod No (subway) Millidge Avenue Sod No (subway) Millidge Avenue Sod No (subway) Millidge Avenue Concrete No 125 Rothesay Ave Asphalt No 223 Rothesay Avenue Asphalt Yes 132 Rothesay Ave Asphalt No 223 Rothesay Avenue Sod Yes Duke - -> Princess Sydney Street Sod No 36 Waterloo Street Asphalt (driveway) opp 256 Waterloo Street Asphalt No opp 168 Waterloo Street Asphalt No opp 66 Waterloo Street Asphalt No ENBRIDGE GAS REINSTATEMENT DEFICIENCIES As of July 6/2006 Public Complaint Deficiencies Street # Street Name Type Deficiency Completed as of July 27th Princess Street Asphalt Not Enbridge Length King Street Asphalt No Millidge Avenue Asphalt Not Enbridge Length Mount Pleasant Sod Yes 21 Tilley Avenue Sod Yes St. Peters /Union St. Peters Street Asphalt No Sydney Street Sidewalk Yes 85 Thornborough Street Sod Yes 1852 Manawagonish Road Sod Yes 1852 Manawagonish Road Asphalt No 1852 Manawagonish Road Sidewalk Yes 1825 Manawagonish Road Sod Yes 8 Boyd Street Asphalt Yes 44 Chipman Hill Sidewalk Yes TIE TRUTH ABOUT PESTICIDES The Quebec Poison Control Centre and the Quebec Ministry of Environment and Wildlife released statistics on pesticide poisoning in 1996. They reported a staggering 1,650 poisoning cases. 79.4% of the cases were in private homes, and 46.1% of the victims were children under age five. 31% of these cases were due to oral ingestion, and 34.9% followed a pesticide application(1). What are Pesticides? Pesticides (herbicides, vermicides, fungicides, and rodenticides) are poisons designed to kill insects, plants, fungi, moulds and rodents. Pesticides contain "active" ingredients (the chemicals intended to kill), and so- called "inert" ingredients. These are considered trade secrets, and although in many cases they can be even more toxic than "active" chemicals, most consumers are completely unaware they exist. Even when used as directed, pesticides have many negative side effects on human health and the environment. Does "Registered" Mean Safe? Although pesticides used and sold in Canada are registered, this does not mean they are safe. Even the federal government regulators do not claim that registration equals safety. Pesticides are not tested in combination, although their synergistic effects may be amplified as much as 1000 times. While pesticides produce acute and long -term health effects, toxicity experiments (done on healthy animals) measure and account for only the acute effects. The pesticides that are deemed acceptable for use as a result of these tests do not take into account the possible chronic effects (2). "Acceptable" tolerance levels are set for an average adult male, and do not take into account the different situations of women and children. Some Environmental Effects Some pesticides accumulate in the fatty tissues of mammals, amphibians, birds and fish, interfering with their growth, reproduction and behaviour. Pesticides poison the food chain, contaminate water supplies, and are implicated in the declining populations of certain species. What are the Health Effects? Acute Effects: The Canadian Centre for Occupational Health and Safety has identified acute health effects in humans including nausea, eye, skin, respiratory and throat irritation, muscle spasms, and even death (3). Chronic effects: Repeated exposure to pesticides has been linked to neurological problems, brain and lung cancer, immune suppression (which creates environmental hypersensitivity), leukaemia, Parkinson's disease, kidney damage, non - Hodgkin's lymphoma and reproductive disorders, including endocrine disruption, low sperm count, and stedity(4). Children are Vulnerable Pound for pound of body weight, children consume considerably more pesticides than adults, Kids are especially vulnerable to the toxic effects because their metabolic systems don't process or excrete toxins the way adults' systems do. Children typically play in grass and dirt, and put toys and hands in their mouths, activities that significantly increase their exposure to pesticides. Children from homes where pesticides are used have been found to have four times the risk of soft tissue sarcomas (cancerous growths (5)) and between six and seven times the rate of childhood leukaemia as other children (6). Sweden Has Not Allowed 2,4-D Since 1989 2,4 -D is the most commonly used herbicide in Canada. It was a major component of Agent Orange, and is still used in over 1,500 lawn -care products (including Killex and Weed 'n Feed). Cancer in dogs has been linked to their owners' use of 2,4 -D (7). " Insects ... are the most important component of the ecosystem, an integral part of the food chain... without insects the vast majority of flowering plants would not be able to reproduce. A miniscule fraction of this huge group of animals are pests to human beings.... spraying powerful poisons that kill all exposed insects is no more 'management' of pest than killing everyone in New York city would be managing urban.crime." David Suzuki " The folly of Chemical Pest Control" The Pesticide Treadmill Once you begin to apply pesticides, your lawn can become addicted to chemical treatment. Repeated applications can cause soil to become conditioned, which speeds up degradation of the pesticides. This results in the need to apply increasingly toxic chemicals at more frequent intervals to control the pest problem. Meanwhile, beneficial organisms are killed off, soil can become sterile, and pesticide - resistant insects breed to produce a species able to withstand the toxins and continue eating your grass! (1) Centre Anti - Poison du Quebec, Rapport annuel 1996: statistiques sur les ntoxicantions par ies pesticides, April 1997. (2) National Coalition Against the Misuse of Pesticides, Lawn pesticide facts and figures, NCAMP, San Francisco, US, 1992. (3) Canadian Centre for Occupational Health and Safety bulletin, Ottawa, 1990. (4) Environment Canada, Pesticides, the right amount. Ottawa, 1989. (50 American Journal of Public Health, "study suggests possible link of child cancer, home pesticides'. Ottawa Citizen, Feb.27, 1995. (6) Journal of the National Cancer Institute. (7) Hayes et al., Journal of the Nation Cancer Institute vo1.83, 1991. 2 �1� a C O C O 9 c MEN ■ r, I }1 c d CL m S, 7 ■Illw N 3 It o rod° •�•aZ,�s !» "'d a �n civ V" ;�� O� Vin' p o c:yD�i.'.I rD C Q pip ff d rt o y 'C b Q A Cr _O O ❑ '.�. C rr. p° C `� ■r K O ear O �; ""� R O y p b C p y• :� r� 7 0 a O �D C. � Z 'S w � � o ertD 0 � p�4 � � " n• V� ° I � n O b C7 a o po a � c�a � m �" '�"• � p OTC m O• � O C) � G- 07 +6`i n �. n• vwi p w rn yam.{ cr CID CID CO O rrn O a, 0. tn'c pd� R' P. n O w G' [no O rL G. CA fD Cl) CID N rnwrx� ° ter rrc��yrrar� in z t`: y��t n � tr 11 cr> m- 1��POc� -g -0 n@ y_rrrr `� .G-t Q n 7C' fn `� I � C (�• -- .yrwt- G� Q ". G. '� .` rt iY i' fD p.. 'p R' b (7 !6 [C fD s°i, .��•. Q+ N '� n to O. a C'l p' R N fS. 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CD P CD Q �• @ ti � w u�G 10 [�G 00 qQ cr to CL CL CL � y � O D O rp ° co y C n O c, � �• CD n o � ° � O � y ORIGINAL ARTICLE Pesticide assessment: Protecting public health on the home turf Meg Sears MEng PhD', C Robin Walker MB ChB FRCPC2, Richard HC van der Jagt MD FR03, Paul Ciaman MD4 M Sears, CR Walker, RHC van der )age, P Claman. Pesticide assessment: Protecting public health on the home turf. Paediatr Child Health 2006;11(4):229 -234. Pesticide regulation is examined in the context of Health Canada's Pest Management Regulatory Agency's assessment of the chlorophe- noxy herbicide 2,4dichlorophenoxyacetic acid (2,4 -D) for turf. 2,4 -D is the most common herbicide used to kill weeds in grass. The medical literature does nor uniformly indicate harms from herbicides. However, the balance of epidemiological research suggests that 2,4 -D can be persuasively linked to cancers, neurological impairment and reproduc- tive problems. These may arise from 2,4 -D itself, from breakdown prod- ucts or dioxin contamination, or from a combination of chemicals. Regulators rely largely on toxicology, but experiments may not repli- cate exposures from 2,4 -D application to lawns because environmen- ral breakdown products (eg, 2,4- dichlotophenol) may not accumulate and selected herbicides are possibly less contaminated. Dioxins are bioaccumulative chemicals that may cause cancer, harm neurological development, impair reproduction, disrupt the endocrine system and alter immune function. No dioxin analyses were submitted to the Pest Management Regulatory Agency, and the principal contaminants of 2,4 -D are not among the 17 congeners covered in pesticide regulation. Independent assessment of all dioxins is needed, in tissues and in the environment. The 2,4-D assessment does not approach standards for ethics, ftgour or transparency in medical research. Canada needs a stronger regula� tar for pesticides_ Potentially toxic chemicals should not be registered when more benign solutions exist, risks are not dearly quantifiable or potential risks 6ptweigh benefits. Until landscaping pesticides are curtailed nationally, local bylaws and Quebec's Pesticide Code are prudent measures to protect public health. Physicians have a role in public education regarding pesticides. Key Words: 2,4- dichlorophenoxyacetic acid; Dioxin; Herbicide; Legislation; Pesticide; Toxicity Pesticides (herbicides, insecticides, fungicides and other `- tides') are spread in the environment for their toxic effects, but does regulation of these high volume chemicals Protect human and ecosystem health? In the present paper, we examine Canada's pesticide regulation in the context of the chlorophenoxy herbicide 2,4- dichlorophenoxyacetic acid (2,4 -D), the most common herbicide used to kill weeds in grass. L'evaluation des produits antiparasitaires : La protection de la sante publique appliquee aux pelouses La t6glementation des produits antiparasitaires est examinee dens le cadre de 1'evaluation, par 1'Agence de r6glemetrtation de la lutte antiparasitaire de Sant@ Canada, des utilisation, sur les pelouses, de Pacide 24- dichloroph €noxyao6tique (2,4.1)), un herbicide chlorophenoxy. Le 2,4 -D est [herbicide le plus urilM pour suer les mauvaises berbes sur Its pelouses. Les publications medicates ne font pas uniform6ment Etat des dommages caus6s par les herbicides. Cependant, selon la majorit6 des recherches epid6miologiques, le 2,4 -D aurait une correlation 6tmite aver 1e5 cancers, les atteintes neurologiques et les troubles de la reproduction. Certe correlation peuc ecre attribuable au 2,4 -D meme, 3 des produits de degradation, 6 la conraminadon par dioxine ou A une association de produits chimiques. Les organismts de r6glementation se fient iargcment i la toxicologic, mail les experiences ne repliqueni pas n6cessairement Its expositions a ]'application de 2,4 -D sur Its pelouses, car les produits tie d6gradation environnementaux (p. ex., 2,4- dichlomphenol) ne s'accumulent peut -etre pas et que cettains herbicides soot peut -ecre mains contamines. Les dioxins soot des produits chimiques bioaccumulatifs qui peuvent etre tesponsables du cancer, porter prejudice au developpement neurologique, nuire 3 la reproduction, pernrrber le sysri`me endocrinien et alt6rer la function immunitaire. Aucune analyse de dioxin n'a ere soumise k l'Agence de r6glementation de la lurte antiparasitaire, et les principaux contaminants du 2,4 -D ne font pas partie des 17 cong6neres examines daps la r6glementation sur Its produits parasitaires. Une Evaluation ind6pendante de routes les dioxins s'impose, darts les tissus et dens Penvironnement. L'Evaluation du 2,4 -D ne s'approche pas des normes d'6thique, de rigueur et de transparence impos6es par la recherche mMicale. Le Canada a besoin dune r6glementation plus ferme it Ptgard des produits parasitaires. Les produits chimiques au potentiel toxitlue ne devraient pas etre recens6s lorsque des solutions plus inoffensives existent, que les usques ne peuvent @tre dairement quantifies ou que Its risques potentiels sent supdrieuts aux bienfaits. En attendant que [es produits parasitaires utilises pour 1'amertagcment paysager scienc restteb rs sur la scene nationale, la r6glementation locale ec le Cade de gescion des pesticides du Quebec constituent des mesures prudentes pour prot6ger la sante publique. Les m6decins ont une responsabilit6 daps ['education du public � 1'6gard des produirs andparasitaires. 2,4,D, often mixed with other chlorophenoxy herbicides, has been used to kill broadleaf weeds since the 1940s. In 2002 and 2003, commercial lawn care companies in Ottawa applied three metric tons annually of chlorophenoxy herbi- cide active ingredients (1). 2,4 -D is the most common chlorophenoxy herbicide. The United States Environmental Protection Agency (EPA) reports that 66% of 2,4 -D is used for agriculture, while 25% of 2,4 -D is used for landscaping IEcoseaTs; 2Deparwwnt of Paediatrics, Children's Hospital of Eastern Ontario and University of Ottawa, Ottawa; 3Department of Medicine, Ottawa Hospital-General Campos, Associate Professor of Medicine, University of Ottawa, Ottawa, and Canadian Leukemia Studies Group; 4Division of Reproductive Medicine, Department of Obstetrics and Gynecology, University of Ottawa Factdry of Medicine, Ottawa, Ontario Correspondence and reprints: Dr Meg Sears, RRI , Box 9012, Dunrobin, Ontario KOA 1 TO. Telephone and fax 613 -832 -2806, e -mail megsears@ncf.ca Paediatr Child Health Vol 11 No 4 April 2006 ®2006 Pulsus Group Inc. All rights reserved 229 Sears et al (7% by turf maintenance contractors, 6% by private citizens and 12% in combination products with fertilizers) (2). Canada's Pest Management Regulatory Agency (PMRA), within Health Canada, registers pesticides for import and sale I in Canada. Registration is based on an assessment of'tisks to human health and the environment, and of efficacy. Importantly, within the legal framework of the Pest Control Products Act (PCPA 131), benefit is not weighted against risk. The Proposed Acceptability for Continuing Registration (PACR) for 2,4 -D on turf was pub- lished by the PMRA in 2005 (4). HEALTH ASSESSMENT The PMRA assesses human health risk chiefly on the basis of animal toxicity studies and human exposure estimates. Many of these studies are proprietary or not peer - reviewed. Moreover, extrapolation from studies of rats may be inap- propriate because rats have genes that do not exist in peo- ple for the detoxification of chemicals (5), making the setting of 'safety factors' to account for inter- and intraspecies differences somewhat subjective. For instance, in the PACR, a 10 -fold safety factor for children's vulnera- bilities was frequently reduced to threefold in the modelling of various scenarios. Exposure estimates are also inexact, especially because 2,4 -D is mobile and pervasive. It is washed from lawns into Canadian waterways (6,7) and falls in the rain in the Canadian Prairies (8). It is tracked indoors and, in the absence of degradation by soil microbes and sunlight, it lingers (9). House dust can contribute up to 30% of chil- dren's total exposure before application to lawns and up to 76% of the exposure postapplication. The PACR indicates that elimination of 2,4-D from residential landscaping could substantially reduce children's exposure. In the context of the Declaration of Helsinki (10), epi- demiological studies are the chief ethical and publicly available evidence of effects of toxic chemicals on human health, Although many would believe that human trials of pesticide exposure should not be considered by regulators, availability of human test data allows applicants to avoid interspecies 'safety factors' and thereby increase allowable exposures (11). The EPA is proposing to consider inten- tional human dosing studies for pesticide assessments (12). The PACR cites a report of intentional human dosing with 2,4 -D in a slurry with milk (13). Epidemiology seldom provides absolute proof of harm and cannot discriminate among toxic components in a mixture (2,4 -D may be mixed with other herbicides and proprietary 'formulants' to increase tissue penetration and spray perform- ance) or among a variety of exposures (other pesticides, and other occupational or household chemicals). Odds ratios of the harm (eg, cancer) occurring may be decreased to insignificance by many factors,(.including the `healthy worker effect'), covari- ables (such as an active outdoor lifestyle) and reporting mot tality rather than incidence while treatments are improving. The PMRA does not consider many epidemiological studies because it is bound by the PCPA to consider one chemical at a time, and observed epidemiological effects cannot be linked unequivocally to a single chemical. Thus, two separate bodies of evidence are considered by the regu- lators (animal toxicity and exposure estimates) and the medical community (epidemiology). It may not be a sur- prise that they reach divergent conclusions regarding the advisability of using 2,4 -D on lawns where children play. With the foregoing caveats, evidence that chlorophe- noxy herbicides, including 2,4 -D, likely have multiple adverse effects on human health is summarized briefly. Cancer The PMRA determined that 2,4 -D was nor classifiable regarding carcinogenicity, although the International Agency for Research on Cancer classifies 2,4-D as "possibly carcinogenic to humane' (14). The PMRAs independent Science Advisory Panel advised that childhood cancer mer- ited further study, but this was not done because single -agent epidemiological studies are not available. Non - Hodgkin lym- phoma, leukemia and sarcoma are frequently noted in associ- ation with chlorophenoxy herbicides (15), and the 'incidence of the intractable childhood cancer neuroblastoma doubles when landscaping pesticides are used around the home (16). These malignancies are increasing in North America and are linked to pesticide exposure (17). The PACR did not refer- ence a 2004 report of a fourfold increase in canine bladder cancer with exposure to chlorophenoxy herbicides (18). The EPA has since revised its guidelines for carcinogenic risk assessment for children, recognizing that children are much more susceptible to carcinogens than adults (19), Reproductive effects 2,4 -D has been found in urine and semen (20), and chlorophenoxy herbicides have been linked to sperm abnormalities (21), increased miscarriage tares (22), diffi- culties conceiving and bearing children, and birth defects (23). An animal study (24) using an `off - the - shelf' chlorophenoxy herbicide mixture demonstrated failure of pregnancy. The PACR was published before a reproductive study (required by the PMRA) was received from the Industry Task Force II on 2,4 -D Research Data ('industry'). The State of California is now proposing to list 2,4 -D prod- ucts as developmental toxicants under California's Safe Drinking Water and Toxic Enforcement Act (25) based on studies not commonly available (26) and the EPA's recent Reregistration Eligibility Decision for 2,4-13 (27). Neurological impairment Lawn pesticides are implicated in neurological disorders, such as Alzheimer disease, Parkinson disease, amyotrophic lateral sclerosis, autism and attention deficit hyperactivity disorder (15). Mechanisms of neurological harm from pesti- cides were recently reviewed, including developmental neurotoxicity mechanisms and effects of 2,4 -D (28). Possible neurological impairment (dizziness, muscle weak- ness, loss of coordination and fatigue) is noted on the pesti- cide label for professional applicators but not for 230 Paediatr Child Health Vol 11 No 4 April 2006 homeowners. The PACR was published before a develop- mental neurotoxicity study had been received from indus- try, although myelin deficiencies were noted in exposed animals in other included studies. ASSESSMENT DEFICIENCIES In addition to the required reproductive and neurotoxicity studies noted above that were not in hand at the time of pub- lication of the PACK, contaminants (eg, dioxins), break- down products (eg, 2,4- dichlorophenol) and product ingredients were not assessed. The quality of evidence and scrutiny required for pesticide registration is much lower than that for a pharmaceutical product, and there is no ongoing surveillance of the extent or effects of cumulative exposures. Dioxins Polychlorodibenzodioxins (PCDDs) are formed during chlorophenoxy herbicide manufacturing, with higher - chlorinated congeners and furans being produced at increased temperatures. Normally, dioxins with two or three chlorine atoms are formed in the manufacture of 2,4 -D, although higher-chlorinated congeners have been meas- ured in Canadian products (26,29,30). Higher reactor tem- peratures also favour more rapid and complete conversion of reactants to'herbicide during manufacture, so there is a concern that in the absence of enforced regulatory limits, the economic incentive to improve efficiency may foster the production of contaminated herbicides. PCDDs, furans and polychlorinated biphenyls with four or more chlorine atoms bind with the aryl hydrocarbon receptor (AhR), and thereby trigger a number of toxic effects in mammals (31 -33). Outcomes include cancers; endocrine effects, such as diabetes (34); and reproductive problems, such as endometriosis (35), failure to conceive, changed sex ratio of offspring and birth defects. The strength of AhR binding is the basis of dioxin regulation, by which 17 of 76 dibenzo -p- dioxins are regulated (36). It is now recognized, however, that toxic effects of dioxins are also initiated by many other mechanisms (37 -41). This throws into question the AhR basis of regulation, particu- larly because aromatic conjugated ring structures are gener- ally known to possess biological activity and polynuclear aromatic hydrocarbons are known carcinogens (42). PCDDs with more than two chlorine atoms are 'Track 1 substances', and are targeted for virtual elimination under the Canadian Environmental Protection Act (CEPA) (43). Environment Canada reported that 2,4 -D is the second largest chemical source of lower-chlorinated dioxins in Canada (44). Not only was the PACR published before dioxin analyses had been supplied by the industry, the PMRA asked only for analyses of dioxins with four or more chlorine atoms. By focusing on higher - chlorinated con- geners, the PMKA is ignoring the bulk of dioxin contami- nation, as well as the CEPA targets. Prudence calls for independent measurement of all dioxin contaminants — in 'off - the - shelf' products, in areas of highly maintained turf and in biological samples. Pesticide assessment Breakdown product — 2,4- dichlorophenol `Environmental fate' data in the PACR describe the first step in chemical breakdown — disappearance of the parent compound — rather than complete breakdown into basic compounds, such as carbon dioxide and water. The spring- time stench in stores and communities without pesticide restrictions is largely the smell of chlorinated phenols. Half - lives reported in the PACR for esters refer to breakdown into the 2,4 -D acid, and half-lives for the 2,4 -D acid refer to breakdown into 2,4- dichlorophenol. Half -lives for individ- ual parent compounds and breakdown products range up to a month or longer, but exposures resulting from landscaping are considered to be short term (one week) rather than chronic. Toxicities of breakdown products were not addressed in the PACR. In animals, 2,4 -D is excreted largely unchanged; thus, 2,4- dichlorophenol exposures under controlled exper- imental conditions would be relatively low. However, the United States Centers for Disease Control and Prevention report that 2,4 -D degradation is a significant population - wide exposure source for 2,4- dichlorophenol (45). Monitoring indicates that the population is much more heavily contaminated with 2,4- dichlorophenol than with 2,4 -D, with urine levels more than one order of magnitude higher. 2,4- dichlorophenol is considered a possible human carcinogen by the International Agency for Research on Cancer (46). Real products not considered 2,4 -D is formulated as a mixture of salts and esters. The diethanolamine salt is particularly toxic and was explicitly excluded from the PACK. However, searches of label infor� mation (47), PMRA information requests and fertilizer information provided by the Canadian Food Inspection Agency confirm that `mixed amines', generally containing diethanolamine salt, are in most herbicide and 'weed and feed' -type products. 2,4 -D for lawn care is usually mixed with other pesticides and always with other ingredients. Toxicities of mixtures were not considered, although the aggregate toxicity of all chlorophenoxy herbicides in a mixture should be assessed under the new (2002) PCPA (48). As well, many products containing 24-1) also contain racemic mecoprop. This chlorophenoxy herbicide is being withdrawn from the market by the manufacturers, who have declined to submit up -to- date data, but it may be sold to homeowners until 2009 (49). Scientific process The method for obtaining the highest quality of medical evidence, the randomized controlled trial, is unethical for pesticide testing. However, serious inadequacies in evidence stem from study and review procedures. Pesticide assess- ment falls short of current best practices by relying on industry- supplied proprietary studies that are not open to independent review and on reviews by interested parties rather than independent systematic reviews of primary lit- erature. Paediatr Chiid Health Vol 11 No 4 April 2006 231 Sears et at The evidence supporting pesticide registrations is poor compared with that for pharmaceutical trials and federal drug approvals (50), and the drug approval system itself has been found to be lacking. The medical community, through medical journals, has been improving accountability and transparency in pharmaceutical studies by instituting trial registration (51) and standards for trial design, reporting (52) and systematic review (53). Ironically, the PMRA crit- icized the Ontario College of Family Physicians pesticides report (15) for their lack of inclusion of data (some of which was only available to the PMRA) and for using the well•accepted process of systematic literature review (53). In response to drug data falsification and withholding of unfavourable information on the part of corporations, the Journal of the American Medical Association ()AMA) recently took further steps, requiring independent scrutiny of raw data from trials, with independent researchers accepting scientific responsibility for studies (54). Despite protests (55,56), the JAMA editors insisted, "By virtue of these seri- ous scientific and ethical problems, and the associated lack of trust and lack of confidence they have engendered among physicians and the public, device and drug manufacturers have brought an unprecedented level of 'special scrutiny' on themselves and on the studies they sponsor" (57). There is considerable corporate overlap between drug and pesticide manufacturers, but no comparable measures of scrutiny are being implemented for pesticides. Furthermore, epidemiological studies are hampered because Canada does not track pesticide sales or use, does not gather information on biological levels of pesticides and other toxic contami- nants (58), and has no reporting system for adverse effects (although regulations for a system are under development). The PMRA was criticized in 2003 by the Office of the Auditor General for failing to re- evaluate older pesticides according to modern standards and for allowing registrations while lacking pertinent information (59). Problems persist with the 2,4 -D PACR released in 2005. The new Pest Control Products Act (2002) is not yet in effect but would not have prevented the shortcomings discussed here. Weighing risks and benefits The PMRA made an unprecedented declaration of 'safety' (60) on the release of the PACR and the initiation of the public comment period. It seems both inappropriate and possibly dangerous for a regulator to be prejudging the results of missing studies and to be announcing its conclu- sion before receiving the independent public comment being sought at the time. Historically, the PMRA has stated that a pesticide "does not pose an unacceptable risk" (61). While science may delineate some elements of risk, the degree of 'acceptability' is an individual choice. Canadians are realizing that the cumulative effects of myriad ubiquitous synthetic chemicals on humans (especially children), society and ecosystems can never be thoroughly understood. Invoking the precautionary principle, "Where an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically" (62), many residents are choosing safer, effec- tive strategies for pest control in landscaping. Lower -tier gov- emments are restricting pesticides, including 2,4 -D, to protect public health. The Supreme Court of Canada approved Hudson, Quebec's landmark pesticide bylaw in 2001 (Canada's first bylaw) and Toronto's pesticide bylaw in 2005. Bylaws in populous areas (63) and Quebec's Pesticide Management Code (64) have been enacted to protect a grow- ing number of Canadians from landscaping pesticides (over one -third of Canadians at the time of writing). Physicians are speaking out: Toronto Public Health took a lead (65), the Ontario College of Family Physicians systematically reviewed the epidemiology of pesticide harms (15), and the Canadian Medical Association advocated banning combination fertil- izer and herbicide (`weed and feed') products (66). CONCLUSIONS AND RECOMMENDATIONS Although the medical literature does not uniformly indicate that harms arise from phenoxy herbicide exposure, given the strengths and limitations of epidemiological, toxicological and ecological research, it appears that cancer, neurological impairment and reproductive problems are persuasively linked to phenoxy herbicide exposure. It is not possible to distinguish whether these effects arise from 2,4 -D itself, from breakdown products or dioxin contamination, or from a cam• bination of ingredients. However, toxicological experiments using selected (possibly less contaminated) herbicides, and during which Typical environmental breakdown products (eg, 24- dichlorophenol) would not accumulate, may not be representative of exposures from 2,4 -D application to lawns. Potentially toxic chemicals should not be approved for use when more benign solutions exist, when risks are not clearly quantifiable or when the potential risk outweighs the benefit. In light of what is known and knowable, the use of 2,4 -D merely to kill broadleaf weeds on turf is unjustified. Physicians should urge caution in the public debate regard- ing pesticides for landscaping and point to effective, safer alternative landscaping practices. Organic lawn care focuses on growing thick, healthy turf on rich, aerated soil. Natural products, such as compost, are used to feed the soil and enrich microbial populations that break down thatch, and are pathogens for pests, such as grubs. (This is in contrast to synthetic chemical strategies that eliminate important non - target organisms, much as antibiotics damage the flora of the gut.) Weeds may be controlled by hand pulling; by using products with ingredients such as corn gluten meal, beet extract or vinegar; and by cutting grass no shorter than 7 cm to shade seedlings. Many companies offer this service, and franchises are now available for entrepreneurs. Canadians are also moving away from monoculrure lawns that require a lot of water and energy to turf with a variety of grasses and other species, such as white Dutch clover, for nitrogen fixation and drought resistance, or thyme. Lawns may also be replaced with hardy alternative landscapes, such as native plants, 232 Paediatr Child Health Vol 11 No 4 April 2006 Until federal legislation curtails nonessential pesticide use nationally, 'cosmetic' pesticide bylaws and provincial legislation, such as Quebec's Pesticide Management Code, are wise, prudent measures to protect public health. Dioxins are persistent, bioaccumulative chemicals that may cause cancer, harm neurological development, impair reproduction, disrupt the endocrine system and alter immune function. Only 17 of 76 congeners were addressed in the pesticide regulations, and none were analyzed in 2,4 -D samples. Dioxins should be monitored comprehensively in people, food and the environment, and phenoxy herbicides should be screened independently for this contamination. REFERENCES 1. Report to Health, Recreation and Social Services Committee and Council of the City of Ottawa, April 27, 2005. <htrp: / /www,ottawa.cal calendar/ Ottawa/ cirycouncil/h rs scJ2005 /05- 051ACS2005- PGM -POL- 0029%20English.htm> (Version current at March 9, 2006). 2, United States Environmental Protection Agency, 2,4-D RED Facts. EPA - 738 -F- 05.002. <http: / /www. epa .gov /oppsrrdl/REDs /factsheersi 24d— fs.btm> (Version current at March 9, 2006). 3. Department of justice Canada. Pest Control Products Act ( R.S., 1985, c. P -9 ). Act and related documents available at: http : /Raws.iustice.gc.cajerVP -9/. (Version current at Match 16, 2006). 4, Pest Management Regulatory Agency. Proposed Acceptability for Continuing Registration. Re- evaluarion of the Lawn and Turf Uses of (2,4- Dichlorophenoxy) acetic Acid 12,4 -D1• <http://www.pmra- arla, gc. ca lenglishlpdf /p3cr /pacr2005 -01- e.pdf> (Version current at March 9, 2006). 5. Lindblad -Toh K. Genome sequencing: Three's company. 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CEPA Environmental Registry, Substances Lists, Toxic Substances List - Updated Schedule I as of November 30, 2005. < http: / /www.ec,gc.ca/CEPARegistry/subs -list/ Toxicupdate.cf n> (Version current at March 9, 2006). 44. Boddington MJ, Gilman AP, Newhook RC, Braune BM, Hay Dj, Shantora V. Canadian Environmental Assessment Act Priority Substances List Assessment Report No. 1; Polychlorinated Bibenzodioxins and Polychlorinated Dibeazofurans. Ottawa: Minister of Supply and Services Canada, 1990. <httpa /www.hc- se.gc,ca(ewh- semt/alt- formats /hecs- sesc/pdf /pubs /contaminants/ psll • lspl / dioxins- furans- dioxines_furaztnesfdioxins furam- e.pdf> (Version current at March 9, 2006). 45. Centers for Disease Control and Prevention. Third National Report on Human Exposure to Environmental Chemicals. National Center for Environmental Health Division of Laboratory Sciences, Atlanta, 2005. < www. cdc.gov /cxposuTerepat-U3rd /pdf/ thirdteport.pdf> (Version current at Match 9, 2006). 46. international Agency for Research on Cancer (IARC) - Summaries & Evaluations. Polychlotophenols and their sodium salts (Group 2B). <http: // www. inchem.oredocuments /iare(vol7I/ 028- polychloroph.html> (Version current at March 9, 2006). 47. Health Canada. Pest Management Regulatory Agency. EDDENet: ELSE Label Search. < hrrp: jfeddenet .pmra- arla.gc.ca/4.014.0.asp >. (Version current at March 9, 2006). Internet addresses are current at time of publication. 48. Department of Justice Canada. Pest Control Products Act (Nor in force] 2002, c. 28. http: lllaws.; ustice .gc.ca /en/P- 9.01/92455.html (Version current at March 15, 2006). 49. Pest Managetneni Regulatory Agency. Re- evaluation Decision Document RRD2004 -09. Mecoprop. <www.pmra- arla_gc.caf english /pdf]rrd /trd2004,09- e.pdf> (Version current at March 9, 2006), 50. Eggertson L. Drug approval system questioned in US and Canada. CMAJ 2005;172:317.8. 51. DeAngelis CD, Drazen jM, Frizelie FA, et al; International Committee of Medical journal Editors. Clinical trial registration: A statement from the International Committee of Medical Journal Editors, JAMA 2004;2921363.4. 52. Moher D, Schulz KF, Altman DG; CONSORT GROUP (Consolidated Standards of Reporting Trials). The CONSORT statement: Revised recommendations for improving the quality of reports of parallel -group randomized trials. Ann Intern Med 2001;134:657 -62. 53, Moher D, Cook DJ, Eastwood S, Olkin 1, Rennie D, Stroup DE Improving the quality of reports of meta - analyses of randomised controlled trials: The QUOROM statement. Quality of Reporting of Meta - analyses. Lancet 1999;354:1896.900. 54. Fontanarosa PB, Flanagin A, DeAngelis CD. Reporting conflicts of interest, financial aspects of research, and role of sponsors in funded studies. JAMA 2005;294:110- I. 55. Loew CJ. Conflicts of interest and independent data analysis in industry- funded studies. JAMA 2005;294:2575. (Lett) 56. Molenberghs G, Imrey P, Drake C. Conflicts of interest and independent data analysis in industry,sponsored studies. JAMA 2005;294:2575.6. (Lett) 57. Forttanarosa P, DeAngelis Cif. In reply. JAMA 2005;294:2576.7. (Lett) 58. Environmental Defence. Toxic Nation: A Report on Pollution in Canadians. <http:f/ www. environmentaldefence ,c4roxicnatiorVrepottI Rev Fxrghsh %20Web.pdf> (Version current at March 9, 2006). 59. Office of the Auditor General of Canada 2003 Report of the Commissioner of the Environment and Sustainable Development. Chapter 1: Managing the Safety and Accessibility of Pr5ricicics- <http://www,ang-bvg,ge.ca)domino/Teports.nsf/html/ c20031001ce.hrrnl> (Version current at March 9, 2006). 60. Health Canada, Pest Management Regulatory Agency. Information Note: 2,440 and Use on Lawns and Turf. <http:flwww.pmra- arla.gc.ca/english /highlights /in2005D221- e.html> (Version current at March 9, 2006). 61. Health Canada, Pest Management Regulatory Agency. Information Note: Roles of the Three Levels of Governments Regarding Pesticides in Canada. http://www.pmra- arla.gc.calenglish (highlights /in200501I I- e.html (Version current at March 15, 2006). 62, Global Development Research Center. Wingspread Statement on the Precautionary Principle <http: / /wwwgdre.oTju.gov /precaution- 3.html> ( Version current at March 9, 2006), 63. Christie M. Private Property Pesticide By -laws In Canada: Population Statistics by Municipality. <http: /fwww.flora.crg/ healthyorcawajBylawList.pdf> (Version current ar March 9, 2006), 64. Dvelopment durable, Environnement er Parts, Qu6bec. Pesticide Management Code. <htrp: /lwww.mddep.gouv.gc.ca /pectic €des/ permis -en /code- gesdon -enf> (Version current at March 9, 2006), 65. Toronto Public Health. Lawn and Garden Pesticides: A Review of Human Exposure & Health Effects Research. <http ;jjwww.tmonto.ca/ healthJpesricides/pdf /pesticides- lawnandgarden.pdf> (Version current at March 9, 2006). 66, Canadian Medical Association. Resolution 0004 -50 - Combined fertilizer /pesticides. < http : //policybase.cma.ca/dbtw -wpd /exec) dbtwpub.dll?AC =GET RECORD &XC= Jdbtw•wpd/execldbrw'pub. dil& BU= http% 3A% 2F% 2Fpo licybase.cmaca %2Fdbtw- wpd %2FCMA Policy%2FPublicB.htm&TN - PubPol &SN -AUTO 15679&SE =3096 &RN = 05LMR= 20&TR= O&TX= 1000&ES =O &CS= I &X P- &RF= Pub lic %3E+Tab1eDE&EF - &DF =Public %3E +DetailE &RL. =0&FL= 0& DL= 0& NP= 3&] D= &MF- wpengmsgcrnapolicypublicB. ini&MQ= 6tT1= O& DT= &SC= 0&1R= 680&NR= O&NB= O&SV =O&BO -O&FG = iJOOOOOStQS= Staff> (Version current at March 9, 2006). 234 Paediatr Child Health Vol 11 No 4 April 2006 CEO GOL1F o ° Y Y 7�1t P P HYSNG .Pesticides Literature Review Project Team Members: Margaret Sanborn, MD, CCFP, FCFP McMaster University Donald Cole, MD, FRCP(C) University of Toronto Kathleen Kerr, MD, Dip. Env. Health Environmental Health Clinic, Sunnybrook & Women's College Health Sciences Centre Cathy Vakil, MD, CCFP Queen's University Luz Helena Sanin, MD, MPH, ScD University of Toronto Autonomous University of Chihuahua, Mexico Kate Bassil, MSc, PhD(c) University of Toronto CONTACT: The Ontario College of Family Physicians 357 Bay Street, Mezzanine Toronto, Ontario M5H 27 Tel: (416) 867-9646 ■ Fax7 (416)867 -9990 Email: ocfp @cfpc.ca • Website: www.ocfp,on.ca ApHI23, 1004 Systematic Review of Pesticide Numan Neaith Effects Table of Contents Acknowledgements................................................................................................ ............................... Chapter1 Introduction ................................................................................................ ..............................2 References................................................................................................. ......................... . . . . .. 5 Chapter2 Methods .................................................................................................... ............................... 6 Chapter3 Solid Tumours ......................................................................................... .......... .... ...............12 References...................................................................................... ............................ . .. ........17 Tables...................................................................................................... ............................... 22 Chapter4 Non - Hodgkin's Lymphoma .................................................................... ............................... 36 References..... .......................................................................................... ............................... 39 Tables.. ................................ .......................................... ....................................................... 42 Chapter5 Leukemia ................................................................................................ ............................... 49 References.. ............................................................................................................................ 52 Tables...................................................................................................... ............................... 55 Chapter6 Genotoxicity ............................................................ ............................... ................... 61 lmmunotoxicity....................................................................................... ............. .......... ........ 63 Genetic Susceptiblity to Pesticide Health Effects Mediated by Genetic Polymorphisms .,... 64 References............................................................................................... ............................... 66 Figure 1: N- weighted frequency of chromosome aberrations in exposed and non - exposed subjects ......................................... ............................... 69 Tables...................................................................................................... ........................... . ... 70 Chapter 7 Dermatologic Health Effects of Pesticides ............................................. ............................... 79 References............................................................................................... ............................... 81 Tables...................................................................................................... ............................... 82 Chapter 8 Chronic Neurologic and Mental Health Effects ...................................... ............................... 86 References............................................................................................... ............................... 89 Tables...................................................................................................... ............................... 94 Chapter 9 Reproductive Outcomes CongenitalMalformations ........................................ ............................... ............................111 Fecundability or Time to Pregnancy ..................................................... ............................... 112 ... Fertility ................................................................... .............................. ............................113 AlteredGrowth ......................................................... ............................... ............................114 FetalDeath.. .................................................--.........................-----...... .....................---- - - - - -- -..114 MixedOutcomes ................................................................................... ............................... 116 References...................................................................................... ............................... .... 118 Tables.................. .......---------.............................................................. .......................'! :..... 126 Chapter 10 Pesticide Health Effects and Children .................................................. ............................... 167 References............................................................................................. ..... . . .. ......................169 Chapter I 1 Implications for Family Doctors ............................... ............................... ............................172 References............................................... .................. ............................... ............................176 Appendix 1: Assessment Form for Review Papers ................................................... ............................... 178 Appendix 2: Data Extraction Form ............................................... ............................... ............................181 Acknowledgements This project, which was initiated by the Environmental Health Committee of the Ontario College of Family Physicians, would not have been possible without funding provided by the Laidlaw Foundation, The Ontario College of Family Physicians contributed in -kind administrative assistance and support for completion of the project. Special thanks to the College's environmental health staff liaison, Helen Kwan, for many hours of cheerful organizational and administrative assistance to the project group. We would like to thank Kelly Martin, McGill University for her work during the proposal and other initial stages of the project; and Kathleen Cooper of CELA for providing data to assist with. scoping the project. For locating studies, we appreciated access to the reference libraries of Loren Vanderlinden, Toronto Public Health, Jason Garay, North Toronto Public Health and University of Toronto, and the Institute for Work and Health. Andrea Furlan of the Institute for Work and Health, Toronto, was very generous with her time over several meetings in providing expert guidance on steps for the systematic review, design of assessment tools, and structure and content of the summary tables. Gladys Faba Beaumont, Institute of Public Health, Mexico kindly assisted with access to the LILACS database and finding Spanish papers. Jeff Kwong and Yves Leger, University of Toronto, and Mandy Weselak, University of Ottawa assisted our project team with the assessment of primary studies. Mandy Weselak also assisted the project team with writing and release of the report. .r, Finally, we are deeply indebted to those who volunteered their time to provide reviews and editing of reference lists or chapters of the report. Our peer and expert reviewers and editors provided important comments and suggestions and new perspectives during writing of the report. Peer reviewers were Alan Abelsohn, Neil Arya and Kathleen Finlay. Expert reviewers were Tye Arbuckle from Health Canada, Patricia Harper from Sick Children' Hospital Toronto, Linn Holness from University of Toronto and Judith Kaur from the Mayo Clinic, Rochester. The Project Team., Margaret Sanborn, MD, CCFP, FCFP, McMaster University Donald Cole, MD, FRCP(C), University of Toronto Kathleen Kerr, MD, Dip. Env. Health, Environmental Health Clinic, Sunnybrook & Women's College Health Sciences Centre Cathy Vakil, MD, CCFP, Queen's University Luz Helena Sanin, MD, MPH, ScD, University of Toronto, and Autonomous University of Chihuahua, Mexico Kate Bassil, MSc, PhD(c), University of Toronto Chapter I -- Introduction History In recent years, few environmental issues have aroused the concern of the public as much as pesticides, especially in relation to the health of children. In spite of the many published studies on the subject of pesticides and human health, there remains deep controversy surrounding this issue. This report will try to elucidate the results of the many studies of pesticides and health, and draw conclusions as to the true health effects of pesticides. To understand this controversial issue it is helpful to look at the history of pesticide use.,Prior to World War II, the pesticides that we use now did not yet exist. Some pesticides currently in use were in fact developed during the World War II for use in warfare. The organophosphate insecticides were developed as nerve gases, and the phenoxy herbicides, including 2,4 -D (the most commonly used herbicide in Canada), were created to eradicate the Japanese rice crop, and later used as a component of Agent Orange to defoliate large areas in jungle warfare. After World War 11, these chemicals began to be used as pesticides in agricultural production, for environmental spraying of neighbourhoods for mosquito eradication, and for individual home and garden use. During the 1960s and 1970s, epidemiologists in the USA noted a rise in the incidence of non - Hodgkin's lymphoma (NHL). When plotted on a map of the USA these cases were clearly clustered in agricultural areas. This increase in NHL incidence paralleled the rise in pesticide use, prompting some epidemiologists to theorize that there was a causal link. Rachel Carson's revolutionary book, Silent Spring (1), first published in 1962, started the slow process of raising political and public awareness of the hazards posed to wildlife, humans, and the ecosystem by the use of pesticides. This process continued with Our Stolen Future (2), described by then Vice - President Al Gore as the sequel to Silent Spring, which documented the health effects of endocrine- disrupting chemicals. Since then there have been hundreds of scientific studies done on all continents to determine if there is a relationship between pesticide use and human health problems. Laws in Canada Since 1990, when the municipality of Hudson, Quebec passed a by -law restricting the use of cosmetic pesticides on public and private property, pesticides have received considerable media attention in Canada. In 1991, two lawn -care companies challenged the Hudson by -law on the grounds that pesticide use was not within municipal jurisdiction. The court affirmed that municipalities do indeed have the power to pass by -laws regarding pesticide use, so the lawn - care companies appealed the ruling. In 2001, the Supreme Court of Canada upheld the municipality's right to pass the by -law. Interestingly, although the health effects of pesticides were not argued during the Supreme Court challenge, the judgement implied that this had been an important factor in the Court's decision (3). Since then, many municipalities across Canada, including Toronto and Halifax, have passed by -laws restricting the cosmetic use of pesticides. Cosmetic use of pesticides remains a complicated issue involving arguments about the rights of lawn -care and pesticide companies, property owners' rights, and increasingly, the health effects of pesticides. Issues in Design of Pesticide Studies So why, with so many studies available, is there still such controversy surrounding the issue of the health effects of pesticides? For ethical reasons, randomized controlled trials, which are the most conclusive studies of cause and effect, are not done with potentially harmful chemicals, so we rely on other types of studies that have marked limitations. Most of the studies done examine farmers, pesticide applicators, gardeners, and other occupational groups with higher exposures to pesticides than those of the general population. The subjects are mostly adult males, subject to multiple exposures to various pesticides and other toxins and carcinogens such as diesel fumes, animal viruses, and cadmium. If evaluated at all, the exposure history is often indirect and may be determined by a surrogate measure such as type of crop grown, annual expenditure on pesticides, or job description, rather than by direct evaluation of the exposed persons. Confounding factors and covariates are often incompletely assessed, and information such as cause of death from death certificates may be inaccurate or incomplete. In addition, the harmful health effects of the so- called inert substances used in pesticide products to potentiate the active ingredients can be difficult to separate from those of the active pesticide ingredients. Some studies use case - control designs, which do provide good exposure histories, but are marred by the problems of recall bias, low participation rates, and loss to follow -up. The other main study type is ecological, which neither considers exposure at the individual level nor measures pesticide exposure directly. For example, an ecological study may use as an exposure measure the number of tons of pesticide applied annually in a particular county. Finally, because all humans have some degree of background environmental pesticide exposure (4), there is never a true control group for any study design. Routes of Exposure There are many sources of exposure to pesticides. The three routes of exposure for pesticides are oral ingestion, dermal absorption, and inhalation. Lawn and garden pesticides are used in homes and gardens, on golf courses, along highways and hydro rights -of -way, and in public parks, exposing people by all three routes. Pesticides can be tracked into homes, or brought home from work on clothing and in vehicles, exposing family members as well. Pesticides are used in pet flea collars, in treatments for scabies and lice, and for home infestations of wasps, cockroaches, and ants. Agricultural pesticides are used on farms, greenhouses, and orchards, and consumers eating produce and other food products ingest them. Pesticides used domestically or in agriculture run off into ground and surface water, exposing entire populations. r Prevalence of Use According to a 1997 inventory performed by the Quebec government described in Lawn and Garden Pesticides: A Review of Human Exposure and Health Effects Research (5), over 80% of pesticides sold in Quebec are for agricultural purposes, 8.5% are for domestic use (indoor and outdoor), and 3.0% for ornamental horticulture. Although herbicides are the most commonly used pesticide for lawn and garden care, homeowners purchase 3.7 times the amount of insecticides recorded for use in ornamental horticulture. According to a survey done by Toronto Public Health, "approximately 45% of Toronto homeowners with lawns had treated their yards with pesticides in the past two years. This figure reflects both homeowner application and those performed by a professional lawn care company" (5). Children are particularly vulnerable to the effects of pesticides. Children eat and drink more per kilogram of body weight than adults. Their skin is more permeable and their livers do not excrete as efficiently as adults'. Their hand -to -mouth behaviour increases the chance of ingestion and their dermal contact is increased because of a proportionally larger skin surface, and because they play on the ground outdoors and on the floor indoors. Parents track pesticides indoors on their shoes, inadvertently exposing their children (5). Some pesticides that degrade outdoors in sunlight are more persistent once they are present indoors. Rationale for Study Acute effects of pesticides are well documented in the literature, especially with respect to organophosphate poisoning. However, the chronic effects of pesticide exposure are much more difficult to assess. Hundreds of studies done in the past few decades have attempted to establish whether chronic exposure to pesticides has adverse effects. This systematic review of pesticide health effects was initiated in response to a complaint to the Ontario College of Family Physicians by a pesticide lobby group about the College's pesticide education brochure. This information pamphlet, produced in 1998, was designed to educate health professionals. The lobby group claimed that information describing harmful effects of pesticides was inaccurate. This complaint is typical of the confrontations between health advocates and pesticide lobby groups about the true health effects of pesticides, refleFJing the difficulties we have in interpreting the studies available, and the dearth of systematic, literature reviews on the subject. It may also reflect the fundamentally different interests and perspectives of the two groups. Description of Study This project is a systematic review of studies done since 1992, and was conducted with financial support from the Laidlaw Foundation, Chapter 2 details the methods used in the study, and Chapters 3 -9 describe the findings of the review regarding major health effects, including nine types of solid tumours, non- Hodgkins lymphoma, leukemia, genotoxic effects, skin diseases, neurological diseases, and reproductive effects. The report also discusses findings specific to children (Chapter 10), and concludes with a chapter on implications for practising family physicians. We hope the report will contribute to a better understanding of this controversial topic, inform those who produce professional and patient educational materials, and aid various levels of government to direct policy on this important health issue. Chapter 1 — Introduction References 1. Carson R. Silent Spring. 40'h anniversary ed. New York: Houghton Mifflin; 2002. .r, 2. Colbom T, Dumanoski D, and Myers JP. Our Stolen Future. Toronto: Dutton; 1996.` 3. Supreme Court of Canada. Decision regarding 114957 Canada Ltde (Spraytech, Socidtd d'arrosage) v. Hudson (Town). Montreal: University of Montreal, Faculty of Law; 2001 [cited 29 March 2004]. Available from: http://www.lextim.umontreal.ca/csc- scc /en/pub /2001 /volt /htinl /2001scr2 0241.html 4. Hill RH, Head SL, Baker S, Gregg M, Shealy DB, Bailey SL, et al. Pesticide residues in urine of adults living in the United States: reference range concentrations. Environ Res 1995;71(2):99 -108. 5. Lawn and Garden Pesticides. A review of human exposure and health effects research. Toronto: Toronto Public Health; April 2002. 6. Bradman MA Harnly ME Draper W Seidel S Teran S Wakeham D Neutra R. Pesticide exposures to children from California's Central Valley: results of a pilot study. JExp Anal Env Epi 1997;7(2):217 -34. cot��,c� Y Y H Summary of Remarks by Pesticide Research Team Queen's Park News Conference April 23, 2004 BACKGROUND ONLY — NOT TO BE USED AS ATTRIBUTED QUOTES 1, Our review has found evidence of serious harmful effects in several areas including cancer, reproductive effects and impacts on the nervous system. These effects are found in both occupational and home and garden exposures. 2. We intend to use the results of the review to update patient education materials and develop tools for family doctors that will help them to reduce the pesticide exposures of their patients. We believe family physicians need to use a precautionary approach in informing patients about pesticide- related risks to health. This approach calls for precautionary measures to be taken where there is evidence of harm, even if some cause and effect relationships are not fully understood. It also places responsibility on producers and marketers of pesticides to prove their safety, not on the consumer to prove harm. Post - marketing surveillance for health effects is a routine and expected part of drug marketing, and we would like to see r, pesticide producers taking a leading role in similar studies of pesticides. 3. Last November, non - Hodgkin's lymphoma researchers Hardell and Eriksson published a study to analyze whether the banning of 2,4 -D in Sweden 27 years ago had reduced the rate of non - Hodgkin's lymphoma there. Their analysis concluded that 3 to 7.7% of cases of that cancer are attributable to exposure to phenoxyacetic acids (such as 2,4 -D) and chlorophenols. This raises the hope that legislation such as the province -wide ban on cosmetic use of pesticides in Quebec could have a positive impact on our patients' health. We support efforts to reduce exposure to pesticides, such as the Toronto pesticide bylaw, and also support a comprehensive province -wide approach that could include education and legislation. 4. Our review suggests the need for 2 large longitudinal studies: i) We need to study the pesticide exposures of a group of women intending to become pregnant, follow them through pregnancies, 2 and continue with health studies of their children to learn more about critical times and levels of exposure; ii} We need to study a large cohort of children to determine their vulnerability to environmental problems including pesticide exposure, similar to the study already underway in the United States. 5. Finally, the leukemia study from Montreal showed that over 40% of children in the Montreal area had a specific genetic vulnerability to the effects of pesticides due to having a genetic makeup that caused them to metabolize pesticides slowly. Given that such a large proportion of society is vulnerable to harmful effects, action to reduce public exposure is justified, and needed. -30- Chapter fQ -- Pesticide Health Effects and Children Children are ubiquitously exposed to low levels of pesticides in their food and environment, yet there has been a paucity of studies on the long -term health effects of these exposures (10, 26, 32). Many pesticides persist in the environment, are often transferred long distances from their original area of application, are routinely detected in human tissue, and are transferred across the placenta and via breast milk (1, 19). Relative to adults, children eat more in proportion to their body weight, resulting in more concentrated exposures. Intakes by children of the four primary pesticides (chlorpyrifos, malathion, diazinon, and atrazine) appear to come primarily from the ingestion of solid food (2). Another common exposure source is indoor and outdoor home pesticide applications, where children may be exposed by playing on floors, treated lawns and play areas, or by handling treated pets (8). Agricultural uses of pesticides may expose children inadvertently from spray drift or farm work (31). Children present a number of unique characteristics with regard to risks from exposure to pesticides and other environmental pollutants. The most vulnerable time is during fetal development when the brain is known to be subject to environmental influences at all phases of development, with critical windows at different points (6). Since in the female, ova are formed in the fetal stage, and environmental contaminants have been found in follicular fluid, the next generation of children born may be affected by their grandmother's exposures (6). The newborn child has low levels of the enzyme paraoxanase -1, which detoxifies organophosphate pesticides (7). Environmental contaminants may pose a greater risk to children than adults for another reason: children have a longer life expectancy in which to develop diseases with long latency periods. For example, if a 70- year -old adult and a 5- year -old child are exposed to a carcinogen with a 40- year latency period, the child has a much higher lifetime risk of developing adverse health consequences (20). Studies in children have so far demonstrated subtle neurotoxic effects of low level, intrauterine, or early childhood exposures to a variety of environmental agents including lead, methyl mercury, and PCBs. While studies of pesticide health effects in children are still lacking, it is possible that a parallel model may emerge for low -level exposures to pesticides, some of which are by design neurotoxic (28, 32, 33). A range of developmental disabilities including teaming disabilities, attention deficit hyperactivity disorder, developmental delays, autism, and behavioural disorders are of great importance due to possibly increasing incidence, and personal and public health costs. (12, 17, 18, 33). These are disorders of unknown etiology'lwith a link between genetic susceptibility and environmental factors, perhaps including pesticides in some small proportion of cases (18, 27). Research is urgently needed to fill in the many gaps in this area. Summary of Findings Concerning Children The few studies we found which addressed children's health effects from exposures to pesticides have been discussed in detail in each relevant chapter and will be summarized here. Several studies found associations between pesticide exposures and solid tumours in children. An elevated rate of kidney cancer was associated with paternal pesticide exposure through agriculture (11). Four studies found associations with brain cancer: two found associations with indoor household use of pesticides (9, 30), one with parental farming occupation (16), and one with parental occupational exposure to pesticides (34). Several studies in this review implicate pesticides as a cause of hematologic tumours in children. One study found an association with childhood non - Hodgkin's lymphoma (5), and several studies found elevated childhood leukemia rates with pesticide exposure (16, 21, 23, 24). An excellent study by Ma (23) showed an association between maternal pesticide exposure and childhood leukemia. More detailed information on these studies is in Chapters 3 -5. In the genotoxicity or immunotoxicity area (Chapter 6) there were two studies relevant to children. In the first, children with poor metabolizer polypmorphisms, genotyped at birth and representing just over 40% of the Montreal study group, had overall increased risk of acute lymphocytic leukemia if exposed to pesticides in utero or during childhood, especially for exposure to repellents and sprays for outdoor insects during pregnancy, and exposure to mite and spider killers during pregnancy or between birth and leukemia diagnosis. Herbicide use (mainly 2,4 -D), both during pregnancy and in childhood, showed a consistent interaction with poor metabolizer genes and was associated with a 2 -fold increase in leukemia incidence (14). Phillips (29) found that children exposed to chlordane andlor heptachlor had more cytokine panel abnormalities than matched controls. Neurodevelopmental effects (Chapter 8) were found in pre - school children in pervasive pesticide exposure situations in Mexican valley agriculture, and likely resulted from maternal, in- utero, and early childhood exposures (13). The only other study of effects on children (15) found substantially higher proportions of residents — including adolescents — exposed to pesticides from aerial spraying drift to have mental and emotional symptoms compared to those not exposed by aerial spraying, consistent with other studies of broader nervous system function. In the reproductive review (Chapter 9), findings suggested that occupational exposure to agricultural chemicals including pesticides may cause intrauterine growth retardation, and may increase a woman's risk of giving birth to children with congenital anomalies, such as limb defects, nervous system and musculoskeletal defects, cryptorchidism and hypospadias, cardiovascular defects, oral clefts, and other multiple and specific defects. The adverse reproductive effects that are non -fatal produce future risks for the individual and for the next generation. Intrauterine growth retardation has been shown to increase susceptibility in later life to hypertension, type 2 diabetes, heart disease, and breast and prostate cancer (3, 4). Men with birth defects are twice as likely to produce children with birth defects (22), Future Studies There have been some plans to develop a parallel Canadian cohort study that would be complementary to the US National Children's Study, a study that will follow a cohort of 100,000 children from the prenatal period to adulthood to study environmental influences on health and development. Scientists from Health Canada were involved in the planning along with the US National Institute of Child Health and Human Development, the US Environmental Protection Agency, the Centers for Disease Control and Prevention, and the National Institute of Environmental Health Sciences. The Canadian involvement is dependent on federal funding which as of February 2004 is still uncommitted. Such a large and comprehensive prospective study is vital and would finally provide sufficient data to inform whatever policy decisions are necessary to protect our children and their futures. 159 Chapter 10 -- Children References 1. Anderson HA, Wolff MS. Environmental contaminants in human milk. JExpo Anal Environ Epidemiol 2000;10 Suppl 6:755 -760. 2. Andrew Clayton C, Pellizzari ED, Whitmore RW, Quackenboss JJ, Adgate J, Sefton K. Distributions, associations, and partial aggregate exposure to pesticides and polynuclear hydrocarbons in the Minnesota Children's Pesticide Exposure Study (MNCPES). JExpo Anal Environ Epidemiol 2003;13(2):100 -11 L 1 Barker DJP, Eriksson JF, Forsen T, Osmond C. Fetal origins of adult diseases. Int J Epidemiol 2002;31:235-239. 4. Barker DJP. The developmental origins of adult disease. Eur JEpidemio12003;18(8):733- 736. 5. Buckley JD, Meadows AT, Kadin ME, Le Beau MM, Siegel S, Robison LL. Pesticide exposures in children with non - Hodgkin lymphoma. Cancer 2000;89:2315 -2321. 6. Chance GW, Harmsen E. Children are Different: Environmental Contaminants and Children's Health. Can JPublic Health 1998;89 Suppl 1:S9 —S 19, 7. Chen J, Kumar M, Chan W, Berkowitz G, Wetmur JG. Increased Influence of Genetic Variation on PON1 Activity in Neonates. Environ Health Perspect 2003 Aug; 111(11): 1403 -1410. 8. Cooper K, Vanderlinden L, McClenaghan T, Keenan K, Khatter K, Muldoon P, Abelsohn A. Children's Health Project: Environmental Standard Setting and Children's Health [report on the Internet]. Toronto: Canadian Environmental Law Association, Ontario College of Family Physicians Environmental Health Committee; 2000 [cited 30 March 2004]. Available from http:// www .cela.ca/ch— health /titlepg.btm 9. Davis JR, Brownson RC, Garcia R, Bentz BJ, Turner A. Family pesticide use and childhood brain cancer [comment]. Arch Environ Contam Toxicol 1993;24:87 -92. 10. Eskenazi B, Bradman A, Castorina R. Exposures of children to organophosphate pesticides and their potential adverse health effects. Environ Health Perspect 1999;107 Suppl 3 :409- 419. 11. Fear NT, Roman E, Reeves G, Pannett B. Childhood cancer and paternal employment in agriculture: the role of pesticides. Br J Cancer 1998,77:825 -829. 12. Goldman LR, Koduru S. Chemicals in the environment and developmental toxicity to children: a public health and policy perspective. Environ Health Perspect 2000;108 Suppl 3:443 -448. 13. Guillette EA. An anthropological approach to the evaluation of preschool children exposed to pesticides in Mexico. Environ Health Perspect 1998;106(6):347 -353. 14. Infante- Rivard C, Labuda D, Krajinovic M, Sinnett D. Risk of childhood leukemia associated with exposure to pesticides and with gene polymorphisms. Epidemiology 1999;10(5):481 -487. 15. Keifer M, Rivas F, Moon JD, Checkoway H. Symptoms and cholinesterase activity among rural residents living near cotton fields in Nicaragua. Occup Environ Med 1996;53 :726 - 729. 160 16. Kristensen P, Andersen A, Irgens LM, Bye AS, Sundheim L. Cancer in offspring of parents engaged in agricultural activities in Norway. incidence and risk factors in the farm environment. Int J Cancer 1996;65:39 -50. 17. Landrigan P, Kimmel C, Correa A, Eskenazi B. Children's health and the environment: Public health issues and challenges to risk assessment. Environ Health Perspect 2004;112(2).257 -265. 18. Landrigan PJ, Schechter CB, Lipton JM, Fahs MC, Schwartz J. Environmental Pollutants and Disease in American Children: Estimates of Morbidity, Mortality, and Costs for Lead Poisoning, Asthma, Cancer and Developmental Disabilities. Environ Health Perspect 2002;110(7):721 -728. 19. Landrigan PJ, Sonawane B, Mattison D, McCally M, Garg A. Chemical Contaminants in Breast Milk and Their Impacts on Children's Health: An Overview. Environ Health Perspect 2002;110(6) :A313 -A315. 20. Landrigan, PJ, JE Carlson, CF Bearer, JS Cranmer, RD Bullard, RA Etzel, J Groopman, JA McLachlan, FP Perera, JR Reigard, L Robison, L Schell, WA Suk. Children's health and the environment: A new agenda for prevention research. Environ Health Perspec 1998;106 Suppl 3:787 -794. 21. Leiss JK, Savitz DA. Home pesticide use and childhood cancer: a case - control study [comment]. Am JPublic Health 1995;85(2):249 -252. 22. Lie RT, Wilcox AJ and Skjxrven R. Survival and reproduction among mules with birth defects and risk of recurrence in their children. JAMA 2001;285:755 -760. 23. Ma X, Buffler PA, Gunier RB, Dahl G, Smith MT, Reinier K, Reynolds P. Critical windows of exposure to household pesticides and risk of childhood leukemia. Environ Health Perspec 2002;110(9):955 -960. 24. Meinert R, Kaatsch P, Kaletsch U, Krummenauer F, Miesner A, Michaelis J. Childhood leukaemia and exposure to pesticides: results of a case - control study in northern Germany. Eur J Cancer 1996;32A:1943 -1948. 25. Meinert R, Schuz J, Kaletsch U, Kaatsch P, Michaelis J. Leukemia and non - Hodgkin's lymphoma in childhood and exposure to pesticides: results of a register -based case - control study in Germany. Am J Epidemiol 2000;151(7):639 -646. 26. National Research Council. Pesticides in the Diets oflnfants and Children. Washington DC: National Academy Press; 1993. 27. National Research Council. Scientific Frontiers in Developmental Toxicology and Risk Assessment. Washington DC: National Academy Press; 2000. 28. Needleman HL. Childhood lead poisoning: the promise and abandonment of primary prevention. Am JPublic Health 1998;88(12):1871 -1877. 29. Phillips TM. Assessing environmental exposure in children: immunotoxicology screening. JExpo Anal Environ Epidemiol 2000;10 Suppl 6:769 -775, 30. Pogoda JM, Preston -Martin S. Household pesticides and risk of pediatric brain tumors. Environ Health Perspec 1997;105(11):1211 -1220. 31. Pollack SH. Adolescent occupational esposures and pediatric - adolescent take -home exposures. Pediatr Clin North Am 2001;48(5):1267 -1289. 32. Rice DC. Issues in Developmental Neurotoxiclogy: Interpretations and Implications of the Data. Can J Public Health 1998;89 Suppl 1 :S3I -S39. 161 TOWN OF ST. ANDREWS DRAFT BY -LAW NO. 06 -03 A BY-LAW TO REPEAL layLAW 87-06 TO ENACT A BY -LAW CONCERNING THE APPLICATION OF PESTICIDES IN THE TOWN OF SAINT ANDREWS Whereas Municipalities Act, R•S.N.$,,C:m_22,S 190 (2), First Schedule, allows municipalities in New Brunswick to respond expeditiously to new challenges facing municipalities in protecting the general welfare of residents in their territory, and authorized by the Supreme Court pr Canada on June 28, 2001.in its decision on 11495 7 Canada LTEE (Spraytech, Societe D'Anosage) and services des espaces verts Itee/ Chemlawn, vs, the municipality of Hudson, Quebec, And Whereas: tllc purpose of this bylaw is to restrict and control the use of pesticides for treatment of trees, lawns, turf and gardens so as to protect the health of people and the environment in St. Andrews The Municipality of St. Andrews passes bylaw 06_03. Definitions; 1 • For the purposes of this by -law, the following words and phrases shall have the following meanings: "PESTICIDE" - *(a) a product, an organism; or a substance, including a product, an organism or a substance derived through biotechnology, that consists of its active ingredient, formulants and contaminants, and that is manufactured, represented, distributed or used as a means for directly or indirectly controlling, destroying, attracting or repelling a pest or for mitigating or preventing its injurious, noxious or troublesome effects; (G) all active ingredient that is used to manufacture anything described in paragraph (a); or (c) all substances listed in the Canadian pest Control Act. I.P.M. accredited groundskeeper — means a person who: (a) obtains and maintains accreditation in a: recognized integrated pest management program or equivalent, as determined by the Municipality; and (b) provides proof of I.P.M.A. accreditation to the Town Cleric on or before January 31st of each year. "MUNICIPALITY": means the Town of St. Andrews. . Prohibition 2. Effective October 1, 2006 spreading and use of pesticides in the Municipality will be prohibited throughout the territory of the Municipality. Exceptions I. ' Notwithstanding article 2, it i5 permitted to use a pesticide in the following cases. a, to treat water in a public or private swimming pool; b. to purify water intended for the use of human beings or animals; c, inside of building; d. to control or destroy animals which constitute a danger for human beings; c. to control or destroy plants which constitute a danger for human beings. 4. Notwithstanding Article 2, the use:of pesticides for a golf course, a commercial garden or horticultural operation is permitted only on a certified Audubon Signature Sanctuary as stipulated by the Audubon Signature Sanctuaries standards and applied under the direction of an accredited Integrated. Pest Management [I.P,M.] certified groundskeeper, and only after having considering all nontoxic alternatives where ever possible and feasible. This conditional requirement for the use of pesticides will be in effect as of March 31, 2007. The golf course or As defined lie the Pest Control Products Act (2002) horticultural operation certified groundskeeper will be required to submit to the Town of St. Andrews the 3I of March of each year, commencing March 31, 2007, a list of the pesticides and amountsiused for each of the preceding 5 years. 5. Notwithstanding Article 2,.tt is permitted to use a pesticide to control or destroy insects (or other pests) which constitute a human health 'or other emergency in the judgment of authorized representatives or officers of the municipality. [Pesticide use at any time under the bylaw can be approved only after all feasible non -toxic alternatives and culture methods have been competently employed and given the time to take effect.] a). If, according to Article 5, person is granted permission to use pesticides to deal with a human health hazard, that person must place signs adjacent to the area where the application is to be made, which are clearly visible from the street, road, path or public or private access on which such treated areas are fronting, before such application. b). The signs required by Section 5 (a) must be weatherproof rigid and uncurling, and display visual symbol for non - reader and shall remain in place at least forty -eight (48) hours after the application of pesticides and no person may move or remove said signs during, that period. c). The signs required by Section 5 (a) shall measure at least 20 centimeters (8 inches) by 20 centimeters (8 inches); contain the words `Application of/de Pesticides' and identify .the pesticides used in black fettering on a bright orange background; be erected not more than 24.5 metres (80 feet) apart; and be erected at a height of not less than 1 metre (3 feet). Enforcement 6. The municipality shall be responsible for the enforcement of this by -law and its agents and designated officers shall be authorized to issue statements of offense. Penalty 7. (a) A person who does anything prohibited by this by -law and anyone who engages another person to contravene any provisiun'of this by -law are guilty of an offence and is liable on summary conviction to a penalty of not less than one hundred ($100) and not more than one thousand dollars ($1,000.00) plus any necessary collection costs and in accordance with the provisions of the Summary Convictions Act.. (b) A person alleged to have violated this bylaw given notice of the alleged violation may pay a penalty for the first offence in the amount of one hundred ($100) to the Town of St. Andrews; provided that, said payment is made within a period of fourteen (14) days following the day on which the alleged violation was committed, and where the said notice so provides, the payment shall be in full satisfaction, releasing and discharging all penalties incurred by that person for the first said violation. (c) Where an offence is committed on more than one day or is, continued for more than one day, it shall be deemed to be a separate offence for each day on which the offence is committed or continued. (d) For a repeat infraction a fine of not less than three hundred dollars ($300) and not more than one thousand ($1,000) is imposed. (e) The town reserves the right to have an environmental assessment and remediation done and charge the full cost to the person committing an offence of this bylaw. . Read the first time: Read the second time; Read the third time: MAYOR CLERK SCHEDULE "A" DRAFT [Permitted Pesticides} The following substances are permitted pesticides and shall be excludcd from the provisions of this Bylaw: I. Insecticidal soaps 2. Herbicidal soaps 3. Bt (Bacillus lhuringiensis) 4. Nematodes 5. Other biological control organisms 6. Animal repellents 7. Rodenticides 8. Injected tree treatments 9. Sticky media 10. Borax 11. Dormant Oils 12. Horticultural tural Oils 13. Bordeaux mixture and other suplhur compounds 14. Lime Sulphur 15. Ferric phosphate 16, Pruning paint 17. Pheromone traps 18. Diatomaceous earth 19. Pyrethrum (or pyret. hrina) 20. Rotenone Other products permitter{ to spread or otherwise use materials and /or products for pest control are those listed as "Allowed" by the Canadian General Standards Board,(CGSB) littp://www.vwgs-c.gc.calcgsll/home/index-e�html for organic agriculture or by the Organic. Materials Review Institute (OMRI) litt]2://www.ornti.or . Please mote that some materials listed as allowable by 0MR1 may not be available in Canada. 3 DF�AFY` SCHEDULE "B'! APPLICATION FORM Pesticide permit application form PROPERTY INFORMATION: CIVIC ADDRESS: LEGAL DESCRIPTION: LOT BLOCK DL PLAN PIn OWNER INFORMATION: NAME OF OWNER: MAILING ADDRESS: DAYTIME TEI EPHONE: EVENING TELEPHONE: COMMERCIAL APPLICATION INFORMATION; (REQUIRED IF APPLICATOR 1S NOT THE PROPERTY OWNER) NAME OF COMMERCIAL APPLICATOR: MAILING ADDRESS: DAYTIME TELEPHONE: EVENING TELEPHONE: POTENTIAL RISKS ASSOCIATED WITH PESTICIDE USE AND ALTERNATIVE REMIDIES (l) Are you aware that there may be health risks associated with general pesticide use? ❑ YES ❑ NO (2) Have you taken measures to research alternative methods of pest extermination? ❑ Yes ❑ NO (If no, please check online sources or visit the library for more information on alternative remedies to pesticide use). DESCRIPTION OF INFESTATION; (PLEASE REFER TO BYLAW 06 2006 -XX, FOR FURTHER INFORMATION) (1) Is this application for an insect infestation? ❑ Yes ❑ NO (2) Briefly describe infestation: (3) Is the lant or insect a danger to human bein s? j ❑ Yes ❑ NO If yes, please specify the nature of the danger. 4 DRAFT (4) What is the name of the company or individual who did the info station assessment? (5) What is the name of the pesticide manufacturer? (G) What is the commercial brand name of the pesticide (7) What is the PCP registration number? (a) Please provide information from label instructions that indicates target pests, inert and active ingredients, ratio of application, formulation, etc. (If possible, attach a copy of the pesticide label). (9) Describe how.the pesticide is usedlapplicd: (10) Is this property within 50 meters of a public property, including but not limited to schools and parks? (11) Have there been previous requests for pesticide use on this property? What is the proposed date and time of day for this pesticide application ?. I HERE, BY MAKE APPLICATION TO APPLY PESTICIDE TO THE ABOVE NOTED PEOPERTY AND SWEAR THAT THE INFORMATION PROVIDED HEREIN IS TRUE AND ACCURATE TO THE BEST OF MY KNOWLEDGE. _ PROPERTY )YONff SIGNATURE DATE The personal information collected on this form is done so pursuant to Community Charter and /or the Local Goverttmot Apt and in accordance with the Freedom of Information and Protection of Privacy Act. The personal information collected wlhenin will be used only fur the purpose of processing this application or request and for no other purpose, unless its release is authorized by its owner, the information is part of a record series commonly available to the public, or is compiled by a Court or an agent duly authorized under another Act. Further information may be obtained by speaking with the Town Manager at (506) 529 -5120 or at 212 Water Street, St. Andrews, New Brunswick, Canada G5136 IB4 ,.'. s'`"�� 1 x sE ty� r a s i a' c sK 3 �K"r�r3fr 4k i1c �3!", 'e a. �ttrt`.t tVE!' f 9� L- k it Y a 'P01, 1 s App11s atlralt �Vof 5 City Hall lS Market Square July 20,2006 P.D. Sox 1971 500 658 -2800 Saint John New Brunswick Canada E2L 4L1 His Worship Mayor Norm McFarlane and Fellow Councillors Your Worship and Fellow Councillors: SUBJECT: APPOINTMENT TO STANDING COMMITTEE OF THE FEDERATION OF MUNICIPALITIES. T - .. . City of Saint John I wish to advise Council that I have been appointed to a F.C.M Standing Committee. The Committee that I have been appointed to is Municipal Infrastructure and Transportation Policy. I am very pleased that I have been chosen for this particular Standing Committee as it is consistent with one of my current Council responsibilities under the Infrastructure portfolio. RECOMMENDATION Receive and File Respectfully submitted, N Gle COUNCILLOR City Hail I5 Market Sgtktre July 24, 2006 His Worship and Fellow Councillors Your Worship and Fellow Councillors: P.O. Box 197I 506 658 -2800 Saint John New Brunswick Canada E2L 4LI SUBJECT: FOLLOW UP TO TOWN HALL MEETING TORRYBURN City of Saint John Last fall a town hall meeting was held in the community of Torryburn with a number of concerns being raised. This report is not meant to go into any great detail, however it is meant to address those concerns involving Public Safety. One gentleman attending the town hall meeting stated that he has lived in the area most of his life. He went on to say that the road is the same standard that it was in the 1930's without little change. The road was constructed to meet the needs of the traffic and pedestrians of the day. The traffic has and continues to increase at a rapid rate. There are no sidewalks until you reach the Irving Station. The shoulder of the road has deteriorated in some areas. When two trucks travelling in the opposite direction meet and pass one another it poses a very dangerous situation for those adults and children who have need to walk the road, there is very little room left on the shoulder to walk. The vehicle and truck traffic quite often exceeds the speed limits. This road has excessive use, it is used by many living in the surrounding communities to travel to and from work. RECOMMENDATION: That the City Manager have staff conduct a traffic analysis and identify all areas of improvement required to address the safety concerns raised by the citizens of Torryburn Res ctfult submitted, Glen Tait COUNCILLOR REPORT TO COMMON COUNCIL July 20, 2006 Your Worship and Fellow Councillors, Re: Ownership of Saint John Energy Background City of Saint John Saint John Common Council established the Power Commission of the City of Saint John N( on December 5, 1922, under the terms of a resolution which reads as follows: MI "That a Commission to be called the Power Commission of the C City of Saint John be appointed for the purpose of erecting, • constructing, and operating works for the transmission and distribution of electrical power and energy in the City of Saint 1►10"' John, and of controlling and managing same as provided for in Section 28 of the New Brunswick Electric Power Act, 1920." Saint John Energy (The Power Commission of the City of Saint John) is a non - generating, municipal electric utility serving more than 35,000 residential & commercial customers within a 323 square kilometer (201 sq. mi.) area of the City of Saint John. In operation since 1921, Saint John Energy delivers in excess of 900,000,000 kilowatt hours annually. As customers of Saint John Energy, the citizens of Saint John enjoy energy rates lower than most other bordering jurisdictions. Saint John Energy employs approximately 100 people in a variety of positions and trades. I While Common Council unquestionably established Saint John Energy, some eighty five years later there remain conflicting legal opinions about the actual ownership and control of the assets of the Utility. This lack of certainty has served to cloud both the responsibility and the decision making authority of the Commission and the Common Council. Course of Action Saint John Energy is a first rate municipal utility with a substantial investment in electrical distribution infrastructure. Indeed, the customers of the utility benefit from preferred rates for electricity. Yet, it is one of only three municipal utilities remaining in the Province of New Brunswick. 1 www.sjenergy.com The legal issues surrounding the ownership and control of Saint John Energy have been considered both by the Utility and the Council on different occasions over the years. However, no definitive determination has been made on legal ownership and ultimately control of the Utility. This uncertainty is a fundamental stumbling block to moving forward. With this in mind, I believe the following steps are in order; • First the legal ownership of the assets of Saint John Energy must be established for the benefit of all concerned. This is the only way to ensure there is a clear understanding of responsibility for operations, accountability for outcomes and who has the ultimate decision making authority. • Second, the real value of the utility must be known. There is no independent and objective assessment of the value of Saint John Energy currently available. A `baseline valuation' must therefore be established as a starting point. This can serve as a useful measure for any future decisions concerning the utility. • Finally, the City must ensure that value of this asset to the community is maximized. Once the ownership has been confirmed and the value of the utility established then Council must set its mind to the strategic alternatives available as to how to best deploy this asset. A decision on a particular course of action is not required nor proposed at this time however sound information is needed before any meaningful alternatives (annual dividend, sale, reorganization etc.) can even be considered. Why now? The City established Saint John Energy in 1922 and it has served our citizens well for many years. The question now is what role it should play in the future of the City of Saint John. The electric utility industry is changing rapidly and the City must be in a position to make informed decisions about our Utility for the long -term benefit of the citizens of this community. Consider that; ➢ The utility must now operate in an era of a rapidly changing regulatory environment (PUB), industry reorganization (NBPower) and dynamic market conditions (Open Market Competition). ➢ The Vision 2015 Program clearly anticipates not only operational changes but also structural changes. For example, the program contemplates Saint John Energy working towards a more integrated partnership with the City and in particular Saint John Water. Clarity on the above noted questions will establish whether the City is limited to encouraging the Utility to cooperate or directing the Utility to move forward. Likewise the financial evaluation will help to assess what if any economic advantage could be realized by such a partnership (pp. 101, 294). ➢ On a more practical note, the long -term supply contract for electricity with NBPower is coming up for renewal. It should be clear at the outset, to all concerned., what role and what authority the City and the Commission may /should each exercise in these negotiations. ➢ Stand alone municipal utilities are becoming less common. There is a trend towards private sector acquisition/operation of municipal utilities (e.g. Fortis) that should not be ignored. The question is could the City and ultimately the ratepayers and taxpayers derive any advantage from such an arrangement. Again, answers to the questions noted above would assist in making this type of evaluation. F The governance review now being carried out by Common Council has as one of its elements not only a re- alignment of the various agencies boards and commissions in a new Standing Committee system of government but also a new reporting relationship. Again, the nature of that relationship (ownership, control, accountability, responsibility) must be established. We have a responsibility as a Council to seek the best interests of the entire community. The ownership of Saint John Energy, its economic value and the question of just how this asset can best be deployed to the advantage of the taxpayers and ratepayers of this community is a matter that must be addressed. The information being requested is necessary to begin the process to determine the strategic position of Saint John Energy in the future of the City of Saint John. Recommendation I am therefore asking for Council's support for the following resolution; RESOLVED that the City Manager, Commissioner of Finance and City Solicitor be directed to take the necessary action to determine the ownership of the assets of the Power Commission of the City of Saint John (Saint John Energy) as well as the matter of identifying any possible financial advantage which might be available as a result of the City's ownership and control being confirmed. Respectfully submitted, Glen Tait Councillor July 26`", 2006 To: Your Worship Mayor Norm McFarlane and Members of Common Council. Subject: Sub-standard_ conditions for competitive play, at local sport fields Background This issue is related to the recently planned and sanctioned national soccer championship for the "under sixteen" age category event that was to be hosted in Saint John. I have received calls from citizens and have read media reports on the sub - standard conditions for competitive play at our municipal sport fields. This is a serious matter for participants who use our sport fields for recreation and sporting events. This reported condition of our fields does not reflect well on our community. Volunteer organizations work extremely hard to ensure youth have opportunities to experience recreational and sporting activities. Citizens expect our fields to be of a suitable standard so as to prevent injuries. In addition these standards provide a clear representation in respect to the field of play through proper lines; field dimensions and regulation play standards. I have been involved in sport and recreation for most of my life. I have been on event hosting committees and I have traveled to other cities to compete in and organize events. There is a common thread with people involved in sport and recreation, specifically when participants travel away from our community or visit our community. That common thread is related to their perception of the host facilities, the positive atmosphere of service and the positive reception from the people who reside in the host community. As a municipality we can foster and enhance community volunteerism and participation by ensuring our infrastructure (sport fields) is adequate and safe. Planning and hosting competition events has a benefit for those individuals who participate by being physically active and socially involved. These events provide significant economic benefits through spin -offs in sport and recreation tourism. Visitors from away stay in hotels, campgrounds, eat in restaurants, shop at our stores, participate in day adventures and site see, to name a few. Community pride is created by recognizing our achievements. Hosting events, no matter the competition outcome, is a fantastic way to create community pride. Our facilities, our playing standards and our friendliness reflect on the perception of those who visit our city. Often there is only one chance to make a good impression. I was disappointed to hear a Saint John event had to be relocated to the Town of Rothesay due to sub - standard field playing conditions. Thank goodness Rothesay was able to assist. The John Wallace report on recreational facilities has made comments in this area of facility usage and standards. The Wallace report talks about new development, but also about what we can do to improve existing fields. The Recreation Interim Committee and specifically one sub - committee are interested in the state of existing fields. I also can appreciate there maybe good reasons why our fields are in sub - standard conditions. l am aware of new staffing changes and re- alignments. However it does not change the fact we need to correct this matter. I recommend that the new staff appointments work with our sub - committees and with the Leisure Service Advisory Board to start creating solutions for our existing and future facility needs. Be it resolved, This matter, be referred to the City Manager for an explanation followed with a recommendation to rectify this facility standard deficiency for Common Council's consideration. July 23,2006 Mayor Norman MacFarlane and Members of Common Council, City of Saint John, Your Worship and Members of Common Council, Re: Report on Cultural Affairs, Cultural Diversity and Economic Growth Common Council of the City of Saint John has approved a 100% increase in funding for the Arts in 2006. In a recent public statement (Telegraph Journal, Saturday, July 15), Calvin Milbury, Vice - President of Business Development, New Brunswick Innovation Foundation, stated that anything we can do to increase cultural diversity in the Province will help retain innovative people in New Brunswick and attract innovative people from other places to move here. This, I might add, is a key to economic development and to attracting new jobs to New Brunswick and to Saint John. Mr. Milbury boosted this claim when he quoted Richard Florida, Hirst Professor of Public Policy at George Mason University, who states that high -tech people vote with their feet by moving to communities with lifestyle amenities. In view of these assertions and the fact Common Council has already boosted public spending in this important area, I move the recommendation that the City's Cultural Affairs Officer give a presentation in Open Session of Common Council to highlight: 1. changes that have taken place in the community through participation of the Arts. 2. growth in cultural diversity in Saint John and the positive impact of the Arts on economic advancement in the community through growth in cultural groups or through spending in the community. 3. any interesting information which illustrates talented new people and/or jobs that have been drawn to Saint John as a consequence of improvements in cultural diversity. 4. recommendations the Cultural Affairs Officer might make arising from his associations and feedback in the community that might give guidance in public and/or spending policies. This report is not meant to be lengthy in its preparation. Its presentation in Open Session will inform the public at large and Common Council on the important steps we as a community must take to improve cultural diversity and economic performance. Respectfully Submitted Bill Farren, Councillor, City of Saint John SAINT JOHN BOARD OF POLICE COMMISSIONERS PO Box 1971 Saint John, New Brunswick Canada E21, 4L! Bureau des Commissaires du Service de Police de Saint John C. P. 1971 .Saint John Nouveau- Brunswick Canada E2L 4L1 RAYMOND T. FRENCH, Q.C. Chair /President ANDREW BRITTON Vice Chair/Vice President WES COSMAN Secretary /Seeretaire IVAN COURT Commissioner / Cnmm issaire DAVID EMERSON Commissioner /Commissaire CHARLENE HAYES Commissioner/ Comm issaire NORMAN McFARLANE Commissioner /Commissaire SARAH WILSON Executive Secretary/ Seeretaire Administrative Telephone/Telephone: (506) 674 -4142 Fax/Telecopieur: (506) 648 -3304 E- mail /Courriel: sarah. wdson a,� sainfj'ohn. ca SAINT JOHN Explore our past/ Explorez notre passe Discover your future/ Deeouvrez votre avenir July 18, 2006 His Worship Mayor Norman McFarlane And Members of Common Council Your Worship and Councilors: Re: Saint John Police Force 2006 Operating Budget April Year to Date Financial Results The report of the Saint John Police Force 2006 Operating Budget for the period ended April 30, 2006 was approved at a meeting of the Saint John Board of Police Commissioners on July 11, 2006. In accordance with Section 7(3) of the New Brunswick Police Act, this report is attached for the information of Common Council. Respectfully submitted, Raymond 1 . French CHAIR attachment C: Marven Corseadden, Director of HR and Finance, Saint John Police Force Djoura Abbas, Assistant Comptroller, City of Saint John REPORT TO SAINT JOHN BOARD OF POLICE COMMISSIONERS PUBLIC SESSION July 11, 2006 Raymond French, Chairman and Members of the Board of Police Commission Chairman French and Members SUBJECT 2006 Operating Budget — April YID Financial Results BACKGROUND � � (''o The purpose of this report is to provide the Board with an April 30, 2006 update on the financial position of the Saint John Police Force's Operating Budget. FINANCIAL POSITIONIRESULTS For the period ended as at April 30, 2006 the Saint John Police Force was under budget by $466,882, which is equivalent to 2.6% of the total annual operating budget of $18,014,630. ➢ Explanation of the Under Budget Variance It is important to point out the results for the first four months is not a good indication of the force's financial performance as savings identified in the Goods and Services accounts relate more to the timing of purchases rather than the actual reduction in expenditures. There were five key items that contributed to the $466,882 positive variance for the first reporting period in 2006. 1. Salaries and Wages were under budget by $168,277. 2. Fringe Benefits were under by $52,968. 3. Good and Services were below budget by $334,249. 4. Overtime costs exceeded budget by $53,714. 5. Wage costs for Other Personnel and Court Time were over budget by $34,898. Raymond French, Chairman and Members of the Board of Police Commission July 11, 2006 Page 2 Subject. 2006 Operating Budget -- April YTD Financial Results AN'AL'YSIS The Variance Analysis Report explains any variance of +/- $5,000 from Budget to Actual results for a specific reporting period. In addition, there is a commentary section of the report that identifies and provides an explanation of significant variances from the budgeted amounts. Budget — Variance Analysis SALARIES AND WAGES Local 61 Salaries were under budget by $109,559 and this positive variance relates more to when the weekly payroll is actually posted in the accounting system and how the budget is allocated. monthly. This type of fluctuation will smooth out during the course of the fiscal year. OVERTIME Local 61 The overtime incurred for the first four months is over budget by $50,420 and this directly relates back to the Patrol Division. All accumulated overtime at the end of 2005 for members working the 12 -Hour Shift Plan in Patrol was paid out in January 2006. This one -time pay -out of approximately $55,000 has artificially inflated the overtime expense line for Patrol Services and there will be a subsequent year -end accounting entry made in December 2006 to adjust an accrued liability account (Compensatory/Scat Time) to offset this amount. GOODS & SERVICES The under budget amounts for the various Goods and Services is attributed to the timing of purchases and the allocation of the budget, over twelve months. For example, there is an under budget amount of $58,000 for vehicles purchases and the actual receipt of the seven new marked units will not occur until September /October based on the delivery capability by the manufacturer of police vehicles. Raymond French, Chairman and Members of the Board of Police Commission July 11, 2006 Page 3 Subject: 2006 Operating Budget —April YTD Financial Results INPUT FROM OTHER SOURCES The financial data used for this report was extracted from the financial information that was generated and provided from the HTE financial reporting system by City of Saint John finance staff. SUMMARY As indicated previously, the April reporting date continues to not be a strong baseline when attempting to project the yearend financial position for the Force. This is a time of the year when resource levels are usually higher (low overtime) and the purchase of high value Goods and Services is usually not completed until later in the budget year. RECOMMENDATION • It is recommended that the Board accept and approve this Financial Report for the period ended as at April 30, 2006 and forward a copy to Common Council as required under Section 7 (3) of the New Brunswick Police Act. Enclosed reports and documents: Budget' Variance Analysis — April 30, 2006 Consolidated Statement of Operations — Comparative Report 2006 vs. 2445 Detailed Statement of Operations Respectfully subnmitt , M en E. Corscadden, CGA DIRECTOR HR & FINANCE Brian C. Fillmore DEPUTY POLICE CHIEF Al en G. Bad on CHIEF OF POLICE Saint John Police Force Consolidated Statement of Operations For the Period Ended April 30, 2006 Salaries & Wages Overtime Other Personnel Costs Fringe Benefits Total Wages & Fringe Benefits General Services Insurance Professional Services Other Purchased Services Repairs & Maintenance Rentals Purchased Goods Government Services Internal Charges Asset Purchases Total Goods & Services 3,695,681 3,527,404 168,277 3,483,435 3,391,653 91,782 86,264 139,978 (53,714) 86,264 88,829 (2,565) 43,928 78,826 (34,898) 43,791 62,125 (18,334) 853,676 800,708 52,968 784,554 723,863 60,691 4,679,549 4,546,916 132,633 4,398,044 4,266,470 131,574 211,308 170,426 40,882 204,140 191,213 12,927 124,300 107,188 17,112 104,300 125,345 (21,045) 80,044 73,351 6,693 80,044 70,423 9,621 33,488 34,707 (1,219) 36,156 37,172 (1,016) 15,656 17,010 (1,354) 15,656 20,219 (4,563) 153,760 11,252 142,508 154,760 156,228 (1,468) 145,940 99,595 46,345 166,344 112,051 54,293 4,328 6,191 (1,863) 13,000 6,191 6,809 229,728 224,059 5,669 215,060 168,134 46,926 126,056 46,579 79,477 155,560 39,342 116,218 1,124,608 790,358 334,249 1,145,020 926,318 218,702 $ 5,804,137 $ 5,337,275 $ 466,882 $ 5,543,064 $ 5,192,788 $ 350,276 8.04% 6.32% SAINT JOHN POLICE FORCE BUDGET VARIANCE ANALYSIS For the Period Ended April. 30, 2006 Budget Expenses Variance Current Variance is: Timing I Actual 5,804,157 $ 5,337,275 1 $ 466,882 1 $ 449,770 1 $ 17.112 Details of Actual variance: (Comment on Actual variances over /under $5,000) Expense Category Variance Explanation of Variance Salaries & Wages $168,277 • Non -Union Salaries - $591k - This variance results from a coding error and it will be corrected in the next reporting period. • Salaries -486 is under budget by $14k and there is an.offset in Salaries -Temp for ($12k). • Local 61 Salaries are under budget by $11Ok and most of this variance relates to a timing difference between the posting of the weekly payroll and the monthly budget allocation for wage. • The increase in Salaries -Temp for ($12k) has a corresponding offset of $14k for Salaries -486. Overtime ($53,714) . Overtime- Patrol: Overtime was over budget by ($46k) for the first four months of 2006. Other Personnel Costs ($34,898) • Court-Time: Payment for overtime relating to court appearances for Patrol members was over budget by ($37k). Fringe Benefits $52,968 • Benefits are calculated at 21 %. This expense is directly proportional to actual wages and other earnings for the year. Saint John Police Force - April 2006 Budget Variance Analysis EXDense Cateaory Varlanr_Q 4FAI ......., General Services $40,882 Employer Training: This account is under budget by $12k and this is due largely to the delivery time of courses. • Other Training (E.I.C.D): This account for the Employee Initiated Career Development is under budget by $12k and this is relates to when employees take courses and the monthly allocation of the budget. Insurance $17,112 . Vehicle Insurance: The actual premium cost for insurance coverage in 2006 (fleet and facilities) was $17k less than anticipated. Professional Services $6,693 Other Services: Under by $12k and this is a timing issue between the budget allocation and when actual services are rendered. Other Purchased Services ($1,219) Other Purchases: Over by ($5k) and this is a timing issue between the budget allocation and when actual services are rendered. Repair & Maintenance ($1,354) No significant variance at the end of April. Rentals $142,508 Building Rentals — There was an adjustment by Corporate Services for $143k covering the rental charges to Police for City Hall (.tan —Apr) and this amount did not get posted until May due to an oversight by staff. Purchased Goods $46,345 • Office Supplies: ($6k) — Timing difference between when purchases occur and the monthly budget allocation. Saint .John Police Force -- April 2006 Budget Variance Analysis Expense Category Purchased Goods (cont.) Variance Explanation of Variance Other Goods: $16k — Timing difference between when purchases occur and the monthly budget allocation. • ETS Equipment and Supplies- $31 k — The ETS Team recovered approximately $28k in costs from providing Pt. Lepreau with refresher tactical training for their Emergency Response Team. This cost recovery will be used for on -going training, equipment purchases, and the acquisition of necessary ETS supplies. Government Services ($1,863) No significant variance at the end of' April. Internal Services $5,669 Fleet Maintenance: Fleet maintenance costs were under budget by $24k and this variance results from the timing of when repairs are completed and the monthly budget allocation. • Building Maintenance: The repairs and maintenance costs to the police facilities were over budget by $7k. • Evergreen Computer Replacement Program ($7k) � Timing between the monthly rental charge by the City's ISS Dept for of all computers assigned to the Police Force and the budget allocation. Asset Purchases $79,477. Vehicle Purchases: $58k — This variance is a timing difference between the receipt of new units and the budget allocation. The Force has an encumbrance of $318k in the purchasing system for (7) new marked units. • Office Furniture, Equipment, Computers & Other Assets: These under- budget amounts for $22k are related to the timing of purchases. Legal Department John L. Nugent P.O. Box 1971 Tel,: 506 658 -2860 City Solicitor Saint John Fax: 506 658 -2802 New Brunswick Canada E2L 4L1 July 31, 2006 Common Council of The City of Saint John Your Worship and Councillors: Re: Traffic and Parking Meter By -Law Amendments City of Saint John On June 19, 2006, Common Council received a letter from Mr. Richard Smith, General Manager of the Saint John Parking Commission, wherein the Commission requested that the Traffic By -Law be amended to include the Harbour Passage parking lot which is located near to the Brunswicker Building, and also requested that the Parking Meter Bx- Law be amended with respect to two parking lots in the St. Joseph's Hospital area. The City Solicitor was directed to prepare the appropriate amendments . Mr. Smith, in a new letter to Common Council, dated July 31, 2006, asks that the Pa_ _ rkin Meter By -Law be further amended to include the Southeast side of Coburg Street between Cliff Street and Bayard Drive and the Southeast side of Bayard Drive between Coburg Street and Castle Street. Attached and marked "X" are the appropriate amendments needed to add the Harbour Passage parking lot to the Traffic By-Law. Common Council may, if it so wishes, give first and second readings to them. Common Council has a choice with respect to amendments to the Parking Meter By -Law. The amendments that are attached and marked "Y" are appropriate if Common Council wishes to add only the two parking lots in the St. Joseph's Hospital area to the Parkin Meter By-La . Common Council may, if it so wishes, give first and second readings to them. The amendments that are attached and marked "Z" are, however, appropriate if Common Council wishes to add the two parking lots in the St. Joseph's Hospital area and also the relevant portions of Coburg Street and Bayard Drive to the Parking Meter By -Law. Common Council may, if it so wishes, give first and second readings to them. Respectfully submitted and Cullinan Solicitor A BY -LAW TO AMEND A BY -LAW RESPECTING TRAFFIC ON STREETS IN THE CITY OF SAINT JOHN MADE UNDER THE AUTHORITY OF THE MOTOR VEHICLE ACT, 1973, AND AMENDMENTS THERETO ARRETE MODIFIANT L'ARRETE RELATIF A LA CIRCULATION DANS LES RUES DE LA CITY OF SAINT JOHN EDICTS EN VERTU DE LA LOI SUR LES VEHICULES A MOTEUR (1973) ET MODIFICATIONS AFFERENTES Be it enacted by the Common Council of The Le Conseil communal de la City of Saint John City of Saint John as follows: 6dicte ce qui suit. A By -law of The City of Saint John entitled "A By -law Respecting Traffic On Streets In The City of Saint John Made Under The Authority of The Motor Vehicle Act, 1973, and Amendments Thereto ", enacted on the 6"' day of September, A.D. 1977 is hereby amended as follows: 1 The following Section 7(1.1) is added: 7(1.1) No person shall park a vehicle for a period of time longer than two hours on Monday to Friday, inclusive, between the hours of 08:00 and 17:00, in the Harbour Passage Parking Lot (PID #426130) which is described in Schedule "A -3" while it is being leased by the Saint John Parking Commission and is available for parking by the public. 2 Schedule "A -3" is added: Schedule "A -3" Harbour Passage Parking Lot (PID #426130) while it is being leased by the Saint John Parking Commission and is available for parking by the public. 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. 2006 signed by: L'arrete de la City of Saint John intitul6 « Arret6 relatif a la circulation dans les rues de la City of Saint John 6dicte en vertu de la Loi sur les vehicules a moteur (1973) et modifications affdrentes >>, promulgue le 6 septembre 1977, est par les pr6sentes modifi6 comme suit. I Le paragraphe 7(1.1) ci -apres est ajout6 : 7(1.1) Il est interdit de garer un vdhicule pendant une p6riode de plus de deux heures du lundi au vendredi, inclusivement, entre 8 h et 17 h, dans le terrain de stationnement du Passage du Port (NID 426130), decrit a 1'annexe a A -3 », pendant que la Commission de stationnement de Saint John le loue et le met A la disposition du public A des fins de stationnerent. 2 L'annexe o A -3 » ci -apres est ajoutde : Annexe « A -3 >> Terrain de stationnement du Passage du Port (NID 426130) pendant que la Commission de stationnement de Saint John le loue et le met a la disposition du public A des fins de stationnement. EN FOI DE QUOI, la City of Saint John a fait apposer son sceau communal sur le pr6sent arret6 le 2006, avec les signatures ci - apres : 1 % li Mayor / Maire Common Clerk / Greffier municipal First Reading - Premiere lecture Second Reading - Deuxieme lecture Third Reading - Troisieme lecture BY -LAW NUMBER A BY -LAW TO AMEND A BY -LAW WITH RESPECT TO PARKING ZONES AND THE USE OF PARKING METERS AND PAY AND DISPLAY MACHINES Be it enacted by the Common Council of The City of Saint John as follows: A By -Law of The City of Saint John entitled "A By -Law to Amend A By -Law With Respect to Parking Zones and The Use of Parking Meters and Pay and Display Machines" enacted on the 15th day of March, 2004 is hereby amended as follows: 1 Subsection 6(1) is repealed and the following is substituted: 6(1)(a) Subject to subsections (b), this section applies from 08:00 to 18:00 on Monday to Friday, inclusive, 6(1)(b) This section applies from 7:00 to 18:00 on Monday to Friday, inclusive, to the following locations: • The two St. Joseph's Hospital parking lots described in Schedule "C" while they are being leased by the Saint John Parking Commission and are available for parking by the public. 2 Schedule "C" is amended by adding to it the following: St. Joseph's Hospital Bayard Drive Parking Lot (PID #16147) while it is being leased by the Saint John Parking Commission and is available for parking by the public. ARRETE No ARRETE MODIFIANT L'ARRETE CONCERNANT LES ZONES DE STATIONNEMENT ET L'UTILISATION DES PARCOM[iTRES ET DES HORODATEURS Le Conseil communal de la City of Saint John 6dicte ce qui suit. L'arret6 de la City of Saint John intitul6 «Arret6 modifiant Parretti concernant les zones de stationnement et Putilisation des parcomdtres et des horodateurs », promulgu6 le 15 mars 2004, est par les prdsentes modifid comme suit. 1 Le paragraphe 6(1) est abrog6 et remplae6 par cc qui suit : 6(1)a) Le prdsent article s'applique de S h a 18 h du lundi au vendredi, inclusivement, sous r6serve de 1'alin6a b. 6(1)b) Le prdsent article s'applique de 7 h a 18 h du lundi au vendredi, inclusivement, dans les endroits ci- dessous : dans les deux terrains de stationnement de Ph6pital St. Joseph decrits a Pannexe « C >> pendant que la Commission de stationnement de Saint John les loue et les met a la disposition du public a des fins de stationnement. 2 L'annexe «C o est modifiee par ]'addition de ce qui suit : Terrain de stationnement de la promenade Bayard de Ph6pital St. Joseph (NID 16147) pendant que la Commission de stationnement de Saint John le loue et le met a la disposition du public a des fins de stationnement. St. Joseph's Hospital Golding Street Parking Terrain de stationnement de la rue Golding de Lot (PID #14423, #14431, #15982, #14506 and #14498) while it is being leased by the Saint John Parking Commission and is available for parking by the public. 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. 2006 and signed by: Mayor / Maire Common Clerk / Greffier municipal First Reading - Second Reading - Third Reading - 2 Vh6pital St. Joseph (NID 14423, 14431, 15982, 14506 et 14498) pendant que la Commission de stationnement de Saint John le loue et le met a la disposition du public a des fins de stationnement. EN FOI DE QUOI, la City of Saint John a fait apposer son sceau communal sur le present arrete le * * ** 2006, avec les signatures ci -apres : Premiere lecture - Deuxieme lecture - Troisieme lecture - BY -LAW NUMBER A BY -LAW TO AMEND A BY -LAW WITH RESPECT TO PARKING ZONES AND THE USE OF PARKING METERS AND PAY AND DISPLAY MACHINES Be it enacted by the Common Council of The City of Saint John as follows: A By -Law of The City of Saint John entitled "A By -Law to Amend A By -Law With Respect to Parking Zones and The Use of Parking Meters and Pay and Display Machines" enacted on the 15th day of March, 2004 is hereby amended as follows: 1 Subsection 6(1) is repealed and the following is substituted: 6(1)(a) Subject to subsections (b), this section applies from 08:00 to 18:00 on Monday to Friday, inclusive, 6(1)(b) This section applies from 7:00 to 18:00 on Monday to Friday, inclusive, to the following locations: • Southeast side of Coburg Street between Cliff Street and Bayard Drive; • Southeast side of Bayard Drive between Coburg Street and Castle Street; • The two St. Joseph's Hospital parking lots described in Schedule "C" while they are being leased by the Saint John Parking Commission and are available for parking by the public. 2 Schedule "C" is amended by adding to it the following: STREET LIMITS SIDE Coburg St Cliff St to Bayard Dr Southeast Bayard Dr Coburg St to Castle St Southeast ARRETE N° ARRETE MODIFIANT L'ARRETE CONCERNANT LES ZONES DE STATIONNEMENT ET L'UTILISATION DES PARCOMETRES ET DES HORODATEURS Le Conseil communal de la City of Saint John edicte cc qui suit. L'arret6 de la City of Saint John intitule << Arrete modifiant Parretti concernant les zones de stationnement et l'utilisation des parcometres et des horodateurs >>, promulgue le 15 mars 2004, est par les presentee modifie comme suit. 1 Le paragraphe 6(1) est abrogd et remplace par cc qui suit : 6(1)a) Le present article s'applique de 8 h a 18 h du lundi au vendredi, inclusivement, sous reserve de 1'alinea b. 6(1)b) Le present article s'applique de 7 h a 18 h du lundi au vendredi, inclusivement, dans les endroits ci- dessous : • du c6t6 sud -est de la rue Coburg entre la rue Cliff et la promenade Bayard; • du cote sud -est de la promenade Bayard entre la rue Coburg et la rue Castle; • dans les deux terrains de stationnement de Ph6pital St. Joseph decrits a 1'annexe << C » pendant que la Commission de stationnement de Saint John les loue et les met a la disposition du public a des fins de stationnement. 2 L'annexe << C >> est modifiee par 1'addition de ce qui suit : RUE LIMITES COTE Rue Coburg rue Cliff a ]a pr. Bayard sud -est Pr. Bayard rue Coburg a la rue Castle sud -est I 1 1 -7. Pj St. Joseph's Hospital Bayard Drive Parking Lot (PID #16147) while it is being leased by the Saint John Parking Commission and is available for parking by the public. St. Joseph's Hospital Golding Street Parking Lot (PID 414423, #14431, #15982, #14506 and 914498) while it is being leased by the Saint John Parking Commission and is available for parking by the public. 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. 2006 and signed by: Mayor / Maire Terrain de stationnement de la promenade Bayard de 1'h6pital St. Joseph (NID 16147) pendant que la Commission de stationnement de Saint John 1e loue et le met a la disposition du public a des fins de stationnement. Terrain de stationnement de la rue Golding de 1'h6pital St. Joseph (NID 14423, 14431, 15952, 14506 et 14498) pendant que la Commission de stationnement de Saint John le loue et le met a la disposition du public a des fins de stationnement. EN FOI DE QUOI, la City of Saint John a fait apposer son sceau communal sur le pr6sent arret6 le * * ** 2006, avec les signatures ci -apres : Common Clerk / Greffier municipal First Reading - Premi&re lecture - Second Reading - Deuxi6me lecture - Third Reading - Troisieme lecture - Saint John Parking Commission Commission sur le stationnement de Saint John July 31, 2006 Mayor Norman McFarlane and Members of Common Council City of Saint John 8'�` Floor, City Hall 15 Market Square Saint John, NB Your Worship and Councillors, RE: Traffic and Parking Meter By -Law Amendments Bayard Drive and Coburn Street 11th Floor, City Hall, 11i6me Efage, Hotel de Ville P.O. Box 1971 / G.P. 1971 Saint John, N.B. /N. -B. E21L 41-1 Tel / T61: (506) 658 -2897 Fax / T616copieur: (506) 649.7938 E -mail / Courriel: parking @saintjohn.ca On June 19, 2006, Common Council received a letter from me, as General Manager of the Parking Commission, wherein I requested that the Traffic By -Law be amended with respect to the Harbour Passage parking lot located near the Brunswicker Building, and I also requested that the Parking Meter By -Law be amended with respect to parking lots in the St. Joseph's Hospital area. It was subsequently noted, during a review of the Parking Meter By -Law with the Legal Department, that the changes were also needed to include a portion of Bayard Drive and a portion of Coburg Street. We hereby request that Section 6(1) and Schedule "C" of the Parking Meter By -Law be amended to include the southeast side of Coburg Street, between Cliff Street and Bayard Drive, and the southeast side of Bayard Drive between Coburg Street and Castle Street. Ricyard Smith Ge eral Manager Saint John Parking Commission www.saintjohn.ca t n� REPORT TO COMMON COUNCIL July 27, 2006 ® - His Worship Mayor Norm McFarlane The city of saint John and Members of Common Council Your Worship and Members of Council: SUBJECT: A Response to Councillor Ferguson's Presentation entitled "Report on the City of Saint John Pension Plan and Financial Reporting" BACKGROUND: On July P, 2006, Common Council adopted the following resolution; RESOLVED that Common Council hereby calls upon Councillor John Ferguson to submit to the Common Clerk no later that July 13, 2006, for distribution at the next regularly scheduled meeting, a full and accurate written description of the information upon which he has relied in making the comments identified in the City Solicitor's letter in this regard of .Lune 28, 2006, addressed to Common Council, as well as any other information which he believes reveals or reasonably suggests untoward behaviour which adversely affects the City's financial obligation to the Pension Fund The intent of this motion was to ensure Common Council could determine what, if any action be taken in light of the accusations and/or concerns repeatedly expressed by Councillor Ferguson. Council's actions were based on legal advice provided by the City Solicitor. The essence of this advice was that Common Council has a duty and an obligation to deal with Councillor Ferguson's earlier comments and accusations. Therefore the initial step to be taken was to adopt a resolution requiring that Councillor Ferguson present a full and accurate, written description of the information upon which he relied in making his comments as well as any other information which he believes reveals or reasonably suggests untoward behaviours which adversely affects the City's financial obligation to the Pension Fund. On Monday, July 17'', Councillor Ferguson made a presentation to Common Council, a copy of which is attached. At the end of the presentation, and after being asked by His City of Saint John Pension Plan and Financial Reporting Page 2 Worship, "Is this everything, is this all of the information you have?" Councillor Ferguson responded in the affirmative. Finally, Common Council adopted a resolution that would require a response to Councillor Ferguson's presentation from the City Manager, the Board of Trustees of the Pension Plan and from the City Solicitor. THE IMPORTANCE OF HAVING A RESPONSE: Given the seriousness of this issue and the implications it has for all Members of Common Council, it is critical a written response to Councillor Ferguson's presentation be submitted for the permanent records of the City of Saint John. it is however, an exceptionally rare situation when the City Manager and others are requested by Council to comment specifically on a presentation made by one elected official. It is a situation in which staff would prefer not to find themselves. U1 I: I0R161INKI-130 The legal advice provided to Council to ensure that Council met its legal obligation was to seek from Councilor Ferguson; • A full and accurate description of the information, or • Any other information which he believes reveals or reasonably suggests untoward behaviour. • And then, for Common Council to decide whether any further action is warranted. With this in mind, staff has reviewed Councillor Ferguson's presentation and would draw Council's attention to the information provided. Staff will not draw conclusions as to whether Councillor Ferguson's presentation met the test of a "full and accurate description." This conclusion must be the sole purview of Common Council. REFERENCE # 1: "The request of Council, please note, was initiated by John Nugent" The implication is that Mr. Nugent made a specific request of Council, something he should not have done. As the City Solicitor advised Council, he provided a legal opinion as to what actions Council should take in order to deal with Councillor Ferguson's comments and/or accusations. Mr. Nugent made no request of Common Council. Mr. Nugent clarified this matter verbally at the time of Councillor Ferguson's presentation. Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 3 REFERENCE #2 "Nugent's letter was not a legal interpretation of anything directly spoken by me or suggested by me. He offered no quotes from me, no witnesses to my statements, or documentation of his concerns. " The fact that Councillor Ferguson could read Mr. Nugent's advice to Common Council and then make this statement is perhaps the most telling of all The fact is that the City Solicitor's legal opinion did contain six quotes of Councillor Ferguson made on May 23, 06, June 5, 06, June 19, 06 and April 11, 2006. The statements were all made at Council meetings hence they were witnessed by Members of Common Council, staff, the media and the general public. REFERENCE #3 "Nor did he offer any shred of evidence that my questions to staff were groundless or malicious. " All Council members are aware of the responsibility of the City Solicitor. Simply put, it is to provide legal advice to Common Council. Councillor Ferguson's statement implies that the City Solicitor has some obligation to provide evidence to discount the Councillor's comments. As stated to Council by the City Solicitor, he has never discounted Councillor Ferguson's concerns. He has simply advised Common Council as to what action Council should take to fulfill its obligation to the public. REFERENCE # 4 `" This information, however, has been buried in erroneous and incomplete response packages. It is selective information, organized and presented to Council by staff as though it was a seamlessly persuasive document. This presentation will show vital omissions resulting in flawed reporting on the pension plan deficit. The 2002 decision to retire employees early was not based on sound information on the loss it would add to the pension deficit. This presentation will also show glaring irregularities in the staff recommendations for the Early Retirements and buy -outs. The rationale for many of the Early Retirement /Voluntary Separation Program buy -outs was based on reducing the number of permanent employees as a workforce economy and efficiency measure. But in too many cases there were no long term deletions or abolishment of the positions. Instead the position was simply renamed or refilled without significant savings by the buy -outs specific to the bought out position, i.e., fire chief. " As each item shall be addressed further in this report, Council will need to revisit this paragraph and decide if it is, as requested, "a full and/or accurate description." Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 4 REFERENCE # 5 "Be it resolved that the City Manager, the Commissioner of Finance, Councillor Ferguson, and Farren investigate the possibility of issuing pension obligation bonds to assist with the unfunded liability of the Pension Fund, and they be given the authority to seek outside professional assistance that they deem necessary to do so. " "Even though Council approved this authority, Councillors have been denied the opportunity to seek outside professional advice. " The facts, as related to this encounter are: • The City Manager did inform Councillor Ferguson that he would be prepared to seek professional advice. • Councillor Ferguson insisted that it had to be legal advice, at which time the City Manager arranged. for Councillor Ferguson to meet with the City Solicitor. The City Solicitor confirmed that the City Manager had no authority to seek outside legal counsel. The City Solicitor indicated that only he, as City Solicitor, had authority to engage legal counsel and he provided a full explanation as to why this was the situation and the inherent risks to the Municipality should this policy not be followed. • The City Solicitor did advise Councillor Ferguson he would consider engaging outside legal counsel if he could receive clarity as to what information was being sought. This clarity was not forthcoming. In the end, Common Council did agree to engage legal Counsel and all of Council's questions were answered very directly. The answers to Council's questions were provided in a written opinion by Mr. Rust d'Eye and Council members were also provided the opportunity to speak directly with Mr. Rust d' Eye by way of a speakered conference call during which all Council members were provided the opportunity to seek any required clarification. Common Council invested $35,600 to receive this advice. REFERENCE #6 "The principal problem that has come to my attention (and this comes from documentation and a number of individuals) is that a number of City employees have been put on disability pension and have been given the medical documents authorizing them as qualified for permanent disability pension. The real reason, it is alleged, for the disability was simply because they could not get along with their department supervisor. Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 5 It is stated this happened when there was no medical evidence to support the disability pension. The sole criterion, allegedly, in many cases for a disability award was that the supervisor and the employee cold not get along in the workplace. " This statement is erroneous. The fact is, and reported to Common Council in a report dated January 30, 2006, "Under the provisions of the Pension Plan, no disability pension shall be paid unless the Board of Trustees; a) has received an application for a disability pension signed in a form prescribed by the Board, b) has received a written certification from a medical doctor, who is licensed to practice under the laws of New Brunswick or in a place where the member resides, that the member is totally and permanently disabled and, c) is satisfied that the member is totally and permanently disabled within the meaning of this Act. " Undoubtedly, the Board of Trustees will be communicating directly with Council on this issue. However, as a Trustee, and as your City Manager, I am unaware of any application that was not supported by the medical certification as required. In fact, in considering the majority of many of the applications, Trustees were provided with medical information from two or three other physicians in support of the application. Finally, at no time, am I aware of any situation where the Board of Trustees approved disability applications based on information that the supervisor and the applicant could not get along in the workplace. Such discussions just did not occur; never happened. REFERENCE #7 (REFERRING TO THE NUMBER OF EMPLOYEES RECEIVING DISABILITY) "What is it; 103 or 226 on disability pensions? " This question simply raises unnecessary doubts in the minds of citizens. The fact is that in a Report to Council, dated January 30, 2006, Common Council was advised; "At present there are 99 individuals in receipt of a disability pension from the City." (As of this date, there are 100 employees in receipt of a disability pension) REFERENCE #8 "Saint John's disability pension approvals are four times the industry standard and represent 80% of an employee's gross salary. " The fact is that there has always been a concern with the fact that disability coverage is provided by the Pension Fund. Sometimes the concerns related to the numbers of Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 6 applications; sometimes the concerns related to some Trustees having access to employees' medical records and sometimes the concerns related to the tax treatment of disability pensions. This is not new information and this has been repeatedly discussed by the Board of Trustees. Indeed staff can provide documentation that verifies that the matter of "disability coverage" being included within the Pension Act has been hotly debated every couple of years for the last two decades. Additionally, the fact is that disability pensions do not represent 80% of an employee's gross salary. As told to Council by the Acting Treasurer at the last meeting, "The Pension Act caps a disability pension at no more than 60 %." There is also a further restriction with respect to a disability pension in that it cannot exceed the applicant's yearly Maximum Pensionable Earnings, as defined under the Canada Pension Plan in the year the members' disability pension commences to be paid. With 99 individuals in receipt of a disability pension, and of those, there is absolutely no question with respect to the unequivocal eligibility of 67 recipients. Occasionally individuals, including Trustees, are asked, hear comments or questioned with respect to the continued eligibility of some of the remaining 32, all of whom had met the initial eligibility requirements. Notwithstanding the fact that every approved application was supported by the independent medical certification, the Board has sought out professional expertise, both legal and otherwise as to the appropriate steps it should take to verify the continued eligibility of the recipients. In 2006 every individual in receipt of a disability pension from the Saint John Pension fund has been, or is in the process of, being re- evaluated by experts in this field. If in the event, someone's medical condition has improved to the point where they no longer meet the definition, they will be brought back into the workforce. REFERENCE # 9 If there are 226 persons on disability pension, than based on industry standards that translates to 169 additional employees at home making 80% salary. That number is $5,900,000 dollars a year extra in pension disability costs to the City of Saint John taxpayers and fellow employees. As was previously noted, Councillor's Ferguson's numbers are incorrect; therefore so are his conclusions. Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 7 REFERENCE # 10 "A Halifax based lawyer had also cautioned the Pension Board that the Pension Board was in a legally precarious position for having approved virtually every long -term disability application on the wrong definition of disability. The Halifax -based lawyer recommended the city seek a legal opinion on whether its medical expert breached their fiduciary duty. The Board didn't think that was worth pursuing said the former Commissioner of Finance — the now new Deputy City Manager of Programs and Services. They decided to walk away from money that was recoverable. " The implication of these statements was that the Board of Trustees took no action on this individual's observations. As for the correspondence from the Halifax lawyer dated December 8, 2003, it is a fact that the Trustees had already been alerted to a situation prior to having met with this individual. His correspondence states: "As a result of a recent review by your actuary, the Trustees have been alerted to a serious issue which has arisen. Essentially, over the past three to four years, there has been a rash of applications for disability pensions. " He then went on to make eight specific recommendations. The fact is that every one of these eight recommendations has already been implemented or is currently being negotiated between the employer and the appropriate bargaining unit. Once again, the Board of Trustees will undoubtedly be responding directly to Council. It would however, be appropriate to say, that as City Manager and one Trustee, I am aware of the fact that the Board of Trustees did, as recommended by the Halifax based lawyer, seek a legal opinion from their solicitor regarding a potential legal action. I am aware of the contents of that opinion. 1 am also aware that the Board has taken the appropriate steps based on the best legal and professional advice available. The fact is that the Board did not decide to walk away from any money that may or may not be recoverable. REFERENCE # 11 "They are confused. I am talking about insurance that covers bad decisions? It is called "trustee insurance" Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 8 The implication is that the Board does not have the appropriate insurance coverage. The fact is that the board has in place a "Fiduciary Liability Policy" for which the annual premium paid for by the Pension Fund is $9,550.00. The previous references were all primarily related to the matter of disability. At or near the end of this section of the presentation, Councillor Ferguson then posed a number of questions related to what is the impact on the taxpayers? What is the cost to the organization? What are the financial impacts on the Pension Plan? The question for Council to answer is not whether his questions are reasonable, but whether the information from which he formulated the questions in the first place was factual. The balance of Councillor Ferguson's presentation then turned to the Early Retirement Plan, its effect on the Pension Plan, and concluded by identifying what he sees as financial reporting errors. Here too it would be appropriate for Council to review his comments. REFERENCE # 12 "The recommendations only show the operational budget financials implications in 2002. The reports do not show the financial implications to the pension plan. The financial implications on the pension plan were reported much later. " The implication is that there was something withheld from Common Council. The fact is that Common Council adopted a resolution on September 23, 2002, instructing the City Manager to prepare a 2003 Budget with a Tax Rate of $1.725. The fact is that Council was advised that such action would equate to a decision to terminate as many at 100 to 120 employees. The fact is that staff developed an Organization Renewal Strategy and fully discussed the Strategy with Common Council on at least four separate occasions over an eight week period (the minutes are all available for review). The fact is that the Pension Fund's Actuary was contacted and asked "If the City were to approve an Early Retirement Program, would such a program have significant impact on the Pension Plan ?" The answer was that as long as employees were not provided any additional payments from the Pension Plan (and they were not) there would be no significant implications to the plan. The Actuary went on to advise that should the average age of those leaving the employment of the City drop significantly, it may have some effect on the surplus or deficit of the Plan at the date of the next actuarial review. It was however, impossible to calculate the amount until after the City was aware of how many might apply and their respective ages on the date of retirement.. Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 9 It was also a fact, that Common Council of the day were not at all convinced that the $24 million surplus in the Pension Fund was evaporating. Despite staff warnings, in staffs opinion, Common Council was holding to their position that such warnings were overstated and that by December 31, 2003 the Plan would still be in surplus position, things would turn around. Council's priority was to maintain the tax rate. With this as the background, it is fact that the financial implications of the Organizational Renewal Program (Phase I and II ) were fully disclosed to Common Council in 2002. It is also a fact that the Actuarial Valuation of the Plan as of December 31, 2003, not finalized until January 31, 2005 did disclose that the average age of retirement dropped from the assumed age of 58.6 years to 57.4. The Actuary's reconciliation of the Going Concern Financial Position for the period December 31, 2000 to December 31, 2003 contained the following caption. RETIREMENTS EARLIER THAN EXPECTED ($2,209,000) In other words, employees who chose to retire in that three year period between 2000 and 2003 had an average age of 57.4 slightly less than the Actuarial Assumption of 58.6. However, the Actuarial Report also revealed the total number of retirements in that three year period was 111. Given that only 40 of these retirements were attributable to the Early Retirement Plan, it is not factual to state that the entire $2.2 million would be attributable to this program. As to the significance of some portion of the $2.2 million, the fact is that the Actuarial Valuation identified "Investment Returns less than Assumed in the Amount of $64,727,700" as being the significant reason for the change from a Surplus to a Deficit. All other reconciling items were of a very typical nature. REFERENCE #13: Poor Decision Making: (Referencing the Early Retirement Program) "First why were employees offered normal by outs, and then enhanced buy outs. It was too expensive to retire people early, when the pension plan was in deficit and the operational budget was stressed. This recommendation to introduce this Early Retirement /Voluntary Separation Package made no sense at all. " The facts of the situation are as follows. The Program was called the Organizational Renewal Strategy. It was complete in every regard; It provided for an Early Retirement Program (which was voluntary) for those who were eligible. Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 10 It provided a Voluntary Separation Program for employees with less then ten years of services. • It provided Council with the option to abolish certain positions and the severing of incumbents if Council so choose. It provided and addressed the needs for selective recruitment if Council so chose. It provided for enhancements or buy outs that were based on sound analysis and legal advice with particular attention being paid to a comparison as to the amount employees would have received had the City simply terminated their employment. It was not made available to CUPE Local 18 because they would not agree to reduce their numbers. The Police Commission chose not to participate because they too did not want to reduce their numbers. IAFF, Local 771 took exception to the Plan for fear of having fewer firefighters. As a result, no member of Local 771 was eligible. In the end, this one program provided Common Council with the opportunity to invest $3.7 (ultimately amounted to $3.8) million immediately, to save $9.4 million for a net savings of $5.7 million. The fact is that it met the objectives of Common Council of the day. The 2003 tax rate was set at $1.725. REFERENCE # 14: "Need for New Policy" (Reference to the Organizational Renewal Program) "These decisions were made by the Common Council of the day. It appears they were based on erroneous and incomplete staff information " The facts of this situation are as follows; all of which can be found in the documentation given to this Council in March of 2006. Common Council dealt extensively with this item on; October 7, 2002 Committee of the Whole October 21, 2002 Regular Meeting October 21, 2002 Committee of the Whole October 28, 2002 Committee of the Whole November 14, 2002 Committee of the Whole November 18, 2002 Committee of the Whole Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 11 All of the reports and information provided to Common Council were full and complete. Council was also apprised of the legal advice given the City Manager by the City Solicitor dated September 27, 2002. Initially, Common Council received and approved a report which; • Set the context for the Renewal Program • Set the objectives of the Renewal program • Set the restrictions of the Program so as to ensure Council was in control • Established the timing of the approvals • Established the entitlements. Finally, Common Council received and approved a report which resulted in Council having ; Approved 41 applications under the Organizational Renewal Program, 40 under the Early Retirement Option and 1 under the Voluntary Separation Option • Denied eight applications for the Program • Approved the termination of five other Management/Non Union Employees • Immediately reduced the City Establishment by 39 positions. That same report, dated November 19, 2002; • Identified ten negative consequences to such decisions • Identified that there were two positions that were not being eliminated, although the incumbents were requesting they be entitled to the Program, Common Clerk, and Assistant Common Clerk. Identified that senior ranks of the Fire Department would be filled, and eventually the establishment of firefighters would be reduced by five. REFERENCE 15: "There was only one person who left voluntarily" The fact is that 41 people left voluntarily, solely at their choice. Five others were terminated. Report to Common Couneil 7128106 City of Saint John Pension Plan and Financial Reporting Page 12 REFERENCE 16: "The previous slide indicates the managerial and Non Union staffing numbers would be reduced to 68 after this transition. " The facts are that the staff report to Council indicated the complement would be the "vicinity of 68 ". As it turned out the actual establishment approved by Council for 2003 was 69. The documents provided to Council from the very outset (see Council minutes of October 7, 2002) indicated that the City, after this program would need to undertake some "selective recruitment ". The fact was, and still is today, that Common Council must retain the flexibility to deal with the priorities of the community as Council deems appropriate. We operate in a dynamic environment and Council must, and has, retained the ability to respond appropriately. In this regard, Common Council in the last four years has; Approved an additional Solicitor position to meet the work load requirements. Approved a Corporate Records Manager in the Clerks office to meet new statutory requirements. • Approved a Deputy City Manager position and a Program Manager position to move forward with Vision 2015, which flowed from Council's Operational Review initiative. Approved a Manager of Planning position (still vacant) and a Planner position to respond to developers' issues, neighborhood issues and succession planning. • Made three Contract Engineering positions permanent so as to lessen the likelihood of losing these resources and in recognition that our capital works programs have grown significantly. Instructed the City Manager to split the functions of Commissioner of Finance and Commissioner of Corporate Services (still vacant). • Approved two entry level management positions in Leisure Services, one of which was offset by the elimination of a senior Local 486 position. The purpose of this change was to increase the compliment of management staff in this large department from two to four. All of these changes were fully discussed by Council and approved by Council, both in Budget Documents and in Establishment Documents provided since 2003. Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 13 REFERENCE 17: "Why spend $3.7 million when you did not reduce the staffing numbers ?" The fact is that Common Council did eventually invest $3.8 million to save $9.4 million. This is certain. Having said this, Council has changed its focus and this Council's will should not be thwarted by something that happened four years ago. REFERENCE #18: "Senior staff has been quoted stating the pension plan unfunded liability is due to a down turn in the stock market We have been told our plan needs to make 8% to meet its obligation Or is this the price you pay when you have a Workplace Cultural Problem " The fact is that the Actuarial Valuation of the plan prepared by Morneau Sobeco identified that there had been a deterioration of the financial position of the Plan, from an Actuarial perspective in the amount of $67,860,100 between the years 2000 and 2003. Morneau Sobeco then went on to identify "Investment Returns less than assumed of $64,727,000" as being the major factor in the deterioration of the financial well being of the plan for purposes of calculating the Going Concern Deficit. It also should be noted that the Plan did not actually lose $64,727,000 over this three year period. The Actuary had assumed the Plan would have earned 8% which would have amounted to approximately $72,750,000. The actual results indicated that during that period the value of the assets increased by only $8,024,000. The difference between these two amounts represents the figure needed for Actuarial purposes. The fact is that the Plan slid not lose money during the three year period; it simply did not make as much as the Actuary had projected based on the Board's assumptions. Other less significant reconciling items were identified both positive and negative. However, there should be no doubt that some sort of unspecified "Workplace Cultural Problem" was not the problem. REFERENCE #19: "Council Ferguson's presentation also referenced the change in the notes to the financial statements for the year ended December 31, 2003 and 2005. The Acting Treasurer adequately explained this matter immediately following Councillor Ferguson's presentation. Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 14 For the record, the City's cost amounted to $3.4 by year ended December 31, 2003. In accordance with Generally Accepted Accounting Principles that was disclosed in the notes to the Financial Statement as of that date. Some payments to employees were deferred for tax purposes until December 31, 2004 and the Council also agreed to increase the severance payment to terminated employees in 2004. These payments, made in 2004, were once again appropriately recorded. There is nothing untoward on the treatment of these expenditures and everything was properly recorded disclosed and independently audited by Council's auditors. REFERENCE #20: "In addition to the $400, 000 dollar questions, the error not paying a $600, 000 payment debt was simply passed off as "oops I forgot. " The fact is that there is nothing further from the truth than this statement. A city employee never forgot to make a payment. Never said "oops I forgot." It just did not happen. The fact is that Common Council approved the 2004 budget in early December of 2003. Immediately after the budget was approved, the City was advised that the Province had decided to have a second Debenture Issue dated December 2003. Apparently, the Province felt that market conditions were favourable. With the Province's decision, staff immediately realized that the 2004 budget did not include the principle payment on the second debenture issue of 2003. In other words, as a result of decisions beyond the City's control, the City had under - budgeted its long term fiscal charges in that year. It should be noted that all debenture payments were made in accordance with the terms and conditions of the Debenture Issue and all required payments were properly recorded in the City's Financial Statement. All of this information was previously disclosed to Council and the public. Once again, nothing "untoward" occurred. REFERENCE 421: "Manager's who gave themselves big salary increases and promotions " Once again, this is simply not a factual statement. The City Manager does not have unlimited authority to provide himself or other managers salary increases and promotions. Recently, Council was provided with a recommendation from the City Manager with respect to those managers below the Commissioner level. The City Manager was then directed by Council to deal with the Commissioners as well. Council was presented with Report to Common Council 7128106 City of Saint John Pension Plan and Financial Reporting Page 15 a very thorough analysis, complete with comparisons to other Municipalities, and with unionized positions. Council deliberated over this issue for at least three meetings. Council eventually decided that it was appropriate to proceed in a direction and Common Council (not the managers themselves) gave some of its managerial and professional staff pay Increases. CONCLUSION: The Legal advice given to Council was that Councillor Ferguson's statements were of such a serious nature that Council had to pursue them further. As City Manager, I have been asked to review Councillor Ferguson's presentations and his remarks and report back to Council with my comments based on the knowledge of the facts that I have with respect to all of these issues. This report is intended to fulfill my obligations to Council in this regard. The next decision is entirely that of Common Councils and it would be inappropriate for me, under these circumstances, to provide Council with a recommendation. The question that Council must decide is Whether or not the information provided by Councillor Ferguson in his presentation of July 17, 2006, meets the test of being a full and factual description of the information upon which he has relied in making his comments identified in the City Solicitor's letter and hence the information demonstrates that there is sufficient reason for Council to conclude that something untoward has occurred with respect to the Pension Plan and /or Financial Reporting of the City. Therefore Council should invest whatever resources are required to conduct an investigation into the decisions made by the Board of Trustees, the financial advice provided by the Commissioner of Finance and finally the policy advice provided by the City Manager related to these issues. Or, Was Councillor Ferguson's presentation and remarks void of any material facts or new information not already known to the other members of Council? Are his comments, or those for whom he speaks, more akin to rumour and speculation? Information that is not based on fact, but rather stems from a lack of understanding, a lack of knowledge or a failure to ask questions to those who can help. if this is the conclusion, then Common Council should decide this to be the case and adopt the appropriate resolution indicating so. R sp tfull sub Terrence L. Totten, FCA CITY MANAGER Report to Common Council 7128106 l� v City Solicitor's Office P.O. Box/C.P. 1971 Bureau de l'avocat municipal Saint John, NB /N. -B. W Canada E2L 4L1 wwtiN%saintjohnxa Section 10.2L4)t The City of Saint John LEGAL SESSION June 28, 2006 Common Council of The City of Saint John Your Worship and Councillors: Re: Duty to act in the best interests of the Citizens This opinion letter has as its impetus remarks made by Councillor Ferguson at the three most recent meetings of Common Council held on May 23, June 5 and June 19, 2006. Its purpose is to advise of the duties arising as a result. The substance and tone of those remarks is captured I believe in the following excerpts: "There are errors and differences in the financial statements and there is no referenced explanation or _ footnote in the financial statements. (May 23/06) The early retirement program cost the City's Pension Plan far more than what was reported and those costs are being passed onto the taxpayer. .... Independent advice free from management, free from Common Council and free from the Pension Board has not been provided. Your Worship, 1 now, finally, have the documentation to show this. As a member of Common Council I am prepared to share this with my Council colleagues and the public at large and I will not accept these financial statements. Thank you. (May 23106) ... /2 Common Council June 29, 2006 Re: Duty to act in best interest of Citizens City Solicitor Page 2 With respect to this independent review [of Pension Plan] Your Worship, I hope the situation in Saint John is not as bad as what is happening in San Diego, however, we won't know until we have a full and complete independent examination, (June 5/06) I'll be very clear. 1LMorneau Sobeco is not independent with respect to being third party independent according to industry standards. That's it. It's that simple. 1 think the taxpayers deserve to have this third party independence. There's a lot of different stories. I want a third party independent explanation. (June 19106) I assure you Your Worship and with all due respect these attempts to sweep any solutions under the huge Pension Plan under the carpet will not last forever. Many employees and professional people are coming forward with solid information and revealing details, Your Worship. " (June 19106) The foregoing share a common feature in that they were and remain unaccompanied by meaningful supporting information: • No identification of exactly what the Councillor believes are the "errors and differences in the financial statements " has been provided to Council; • No basis for his asserting that the cost to the Pension Plan of the last Early Retirement Program was underreported, has been provided to Council; • No explanation of his reason for referring, while speaking of the administration of the City's Pension Plan, to the San Diego pension scandal where several officials have been charged with fraud, has been provided to Council; • No description of the "different stories" apparently relating to the City's Pension Plan has been provided to Council; and • None of the "solid information and revealing details " apparently brought to his attention by "many employees and professional people" has been presented to Council. ... / 3 Common Council City solicitor June 29,2M6 Page 3 Re: Duty to act in best interest of Citizens The final excerpt above is reminiscent of a comment made by Councillor Ferguson at the April 11, 2005 Common Council Meeting: "The Telegraph Journal and other media have been patient, they have been waiting to see what our next step is, there is definite talk on the street, I've had several professionals within our community contact me, advise me in confidence, simply because the issue is so severe. " To date I do not believe the Councillor has presented anything to Council describing the nature of that advice, its substance or the information upon which it was based. There is little doubt that the foregoing excerpts could reasonably be understood as imputing improper, inappropriate and misleading behaviour bearing adversely upon the City's financial well being, a matter of singular importance to the Municipality. The Councillor's failing to provide Council with the information he possesses substantiating these comments must be addressed. This letter will attempt to explain why that is so and will suggest a course of action for Council in the circumstances. A brief review of the roles and responsibilities of Council and members of Council is in order at the outset. Common Council, as you know, is the legal agent of the corporation of the City of Saint John, a corporation which is comprised of the municipality's citizens. Council has been conferred the power, amongst others, to direct the management of the assets of the Municipal Corporation. "Assets" in this sense is to be construed broadly, including human, physical and financial resources. That power must be exercised in the best interests of the community as determined by Common Council acting in good faith and within its jurisdiction. As we all recognize even at an intuitive level, with power comes responsibility and the greater the power the greater the responsibility. The decisions of a Council bearing upon the financial integrity of the municipality are final and unreviewable decisions, provided the Council is acting in good faith and within its jurisdiction. Consequently, the responsibility is great that Council's decisions are informed and prudent ones. It is also crucial to recognize that while the decision making power rests solely with Council as a body acting at a duly constituted meeting, each member when participating in that forum is responsible for the informed and prudent character of his own participation. .. /4 Common Council June 29, 2006 Re: Duty to act in best interest of Citizens City Solicitor Page 4 The common sense notion that power travels in lockstep with responsibility is reflected in the common law view expressed in judicial decisions that a council functions in a trustee like capacity in relation to the assets of the municipality and the municipality's citizens. Although at one time otherwise, the contemporary judicial view holds that members of a council are not trustees in strict legal terms but are to be considered trustees in the broad sense (see Seaton v. Vancouver (City o [1993], 14 M.P.L.R. (BSSC). See also the commentary of Dan J. Mandersheid in "The Alberta Municipality -- The New Person on the Block" in (1998) 36 Alberta Law Review, 692). The Legislature in 2003 enacted several amendments to the Municipalities Act including one addition which is of particular relevance in the current context. (S.N.B. 2003, Chapter 27, Section 22). That addition is identified in the Chapter Outline of the Act as "Duties of Councillor" and stipulates in part that: "36(2.1) A councillor of a municipality shall b) bring to the attention of council matters that may promote the welfare or interests of the municipality., .... " The duty imposed by that paragraph is entirely consistent with the common law obligation previously described in this correspondence. In order to discharge the common law or statutory duty he owes, each member must disclose to Council information which he honestly believes is germane to the protection and promotion of the City's best interests (See Savidant y. Day [1933], 4 D.L.R. 456 (PEICA)). Such a duty or responsibility is a positive one. It is in my view a dereliction of duty for a member of Council to effectively state: "I think there's a serious problem here " without clearly explaining himself Informed discussion and decision making by Council requires access to relevant, reliable information and each member who possesses such information is duty bound to submit it to Council. If for example, Councillor Ferguson's failing to disclose information to Council prevents or inhibits the Council's making informed and prudent decisions affecting the City's financial well being, then it could hardly be said he is acting in the best interests of the citizens. And one can only presume that he believes his information is sound. ... /5 Common Council June 29, 2006 Re: Duty to act in best interest of Citizens City solicitor Page 5 Councillor Ferguson's duty arising from the remarks in question is clear- he must disclose to Common Council the information upon which he has relied. In light of Councillor Ferguson's having failed to provide the information upon which he bases his remarks, it is my view that Council, has a duty to call upon him to do so. This information is apparently in the Councillor's possession and thus should be readily available to Council. The following is the text of an appropriate resolution: RESOLVED that Common Council hereby calls upon Councillor John Ferguson to submit to the Common Clerk not later than July 13, 2046, for distribution at the next regularly scheduled meeting, a full and accurate written description of the information upon which he has relied in making the comments identified in the City Solicitor's letter in this regard of June 28, 2006 addressed to Common Council, as well as any other information which he believes reveals or reasonably suggests untoward behaviour which adversely affects the City's financial obligation to the Pension Fund. Respectfully Submitted, John Nugent City olicitor January 30, 2006 Deputy Mayor Michelle Hooton and Members of Common Council Your Worship and Councillors: RE: Pension Plan Administration The Board of Trustees of the City of Saint John Employee Pension Plan has requested that this letter be sent in response to continued concerns being raised over the administration of the City's Pension Plan. As the body responsible for the administration of the Plan the Board is very concerned that, if unaddressed, the concerns could have a serious impact on the credibility of their work. While many of the concerns raised to date have been non - specific, the one area that has been noted on several occasions is the management of the long -term disability provisions of the Plan. It has been alleged that improper management of this portion of the Plan is costing millions of dollars on an annual basis. DISABILITY ADMINISTRATION The City's Pension Plan is some what unique in that it not only provides for a defined benefit pension but it also provides for the long -term disability coverage for City employees. In order to qualify for long -term disability an employee must be found to be "Totally and Permanently" Disabled which is'defined as follows: "Totally and permanently disabled" means in relation to a member suffering from a physical or mental impairment that prevents the member from engaging in any employment for which the member is reasonably suited by virtue of the member's education, training or experience and that can reasonably expected to last for the remainder of the member's lifetime. Under the provisions of the Pension Plan no disability pension shall be paid unless the Board of Trustees: a) has received an application for a disability pension signed by the i member in a form prescribed by the Board, b) has received a written certification from a medical doctor, who is licensed to practise under the laws of New Brunswick or of the place where the member resides, that the member is totally and permanently disabled, and C) is satisfied that the member is totally and permanently disabled within the meaning of this Act. The Plan also provides that if an employee qualifies for disability under the Canada Pension Plan they are automatically deemed to be totally and permanently disabled and thus qualify for the disability benefits under the Plan. The process utilized by the Board for approving applicants has always been to refer individuals to an independent medical practitioner (often referred to as the Pension Doctor) who provides the Board with a written opinion as to..whether of not the person meets the definition of disability under the Plan. in each and every case, the Board's acceptance of an application has been based on the Pension Doctor having provided the Board with a certification that the Applicant is totally and permanently disabled within the meaning of the Pension Act. As part of the work being performed by Morneau Sobeco in 2002 and 2003, the actuary made the observation that the number of persons receiving disability benefits was high in relation to other industry standards and employers. The Board immediately began to review this matter and sought advice from a number of sources including the Pension Doctor, the Board's Solicitor and the Board's Actuary. One of the items that clearly became apparent during this preliminary review was a number of interpretation issues with the current definition of long -term disability. Views of the Pension Doctor and the Board's solicitor made it clear that work was needed to clarify how the definition was interpreted.. In addition it was determined that simply relying on a medical opinion when approving applications was no longer sufficient. It was suggested that current best practices would have the Board receiving input from not only a medical practitioner but also the employer, occupational/functional assessment professionals and any other professionals as may be needed on a case by case basis. Similar observations and views were subsequently expressed to the Board by Mr. Ron Pink, a lawyer with whom many of the Trustees were familiar as a presenter at educational pension conferences attended by Board members. Since that time, and on an on -going basis, the Board has sought and received legal advice respecting issues associated with the past and future application of the disability provisions of the Plan. The Board decided to take immediate action and to engage expertise to provide advice on best practices, current trends and to oversee a process that would ultimately result in the Board of Trustees receiving independent adjudication support services. While this review was being undertaken the Board decided not to process any applications for Disability Benefits v�ith the exception of applications from individuals providing evidence that they 4' + 1 are in receipt of CPP disability benefits. Accordingly no new disability cases have been approved since October of 2003. To carry out the review the Board engaged the services of Bill Leudey of Leudey Consultants Inc. Mr. Leudey has considerable expertise in the area of benefit plan administration. Over the past two years he has led the Board through a series of discussions aimed at better understanding the scope of the Plan's definition of disability and the role the Board play's in administering this section of the Plan. This process has resulted in the Board agreeing to retain professional assistance in the area of adjudication support services for disability applications. A Call for Proposals was completed and the Board is in the final stages of entering into an agreement with Lifemark Inc., who have demonstrated expertise in providing this type of service. As part of their initial work Lifemark have already recommended a completely new application process and will be providing adjudication support involving both medical reviews and occupational/functional assessments of applicants. Lifemark will also be reviewing all existing approved disability cases. The Pension Plan allows for a review on an annual basis to ensure that individuals continue to qualify for disability benefits. At present there are 99 individuals in receipt of a disability pension from the City. Of these 20 individuals were approved under the City's old Pension Plan (per 1994). Under this previous plan individuals were deemed to be disabled if they could not carry out the duties of their own occupation. Of the remaining 79 the following table summarizes some pertinent data: NOTES: 1, Deemed Service — the Plan provides that in calculating the disability pension, if the individual's pensionable service is less than 30 years, pensionable service shall include the number of years from the date of disability to age 65 to a maximum of 30 years service in total. If there is no deemed service the Pension Plan incurs no additional cost as a result of an individual going out under the disability provisions verses normal retirement. 2. Of the 18 "other" approved applicants 3 are over the age of 60. As can be'-,seen from the table presented earlier the number of cases that need to be reviewed is.small (approximately 15 -20) as most applicants are also in receipt of Canada Its t; # of individuals Approved for Canada Pension DisabiMy 47 59.5 Approved with no "deemed" service 9 11.4 A roved with "deemed service" less than 1 year 5 6.3 Other a pproved applicants 18 22.8 Total disability recipients 79 NOTES: 1, Deemed Service — the Plan provides that in calculating the disability pension, if the individual's pensionable service is less than 30 years, pensionable service shall include the number of years from the date of disability to age 65 to a maximum of 30 years service in total. If there is no deemed service the Pension Plan incurs no additional cost as a result of an individual going out under the disability provisions verses normal retirement. 2. Of the 18 "other" approved applicants 3 are over the age of 60. As can be'-,seen from the table presented earlier the number of cases that need to be reviewed is.small (approximately 15 -20) as most applicants are also in receipt of Canada Its t; Pension Disability. The Board remains confident that an on -going review of these cases will show that most individuals were and continue to be disabled in accordance with the provisions of the Act. It should be pointed out however that the Pension Act clearly allows for an annual review of all disability claimants to ensure that they continue to qualify as disabled under the terms of the Pension Act. If at any time it is found that an individual no longer meets the disability definition their pension payments can be discontinued. The Board of Trustees has consistently applied the provisions of the Act based on the best professional advice available. When issues have been raised the Board has spared no effort in seeking out independent professional advice and is continuing in its efforts to apply best practices in the matter of disability adjudication procedures. The Board is of the opinion that the recent public comments with respect to disability management and pensions are being made without full knowledge of the activities of the Board and without full knowledge of all of the professional advice that has been provided to the Board. These types of uninformed and unfounded comments cast a very negative and distorted cloud over the activities of the Pension Board. In addition and most significantly it creates the impression that all individuals in receipt of a disability pension from the City are in some way cheating the system. This is unacceptable and unwarranted. In the meantime if any member of Council has specific information that would give rise to concerns over the administration of the Plan we would ask that it be brought forward so that appropriate action can be taken. Yours truly, Mayor Norman McFarlane Chair City of Saint John Employee Pension Plan c \\,;L--, July 13, 2405 To: Your Worship Mayor Norm McFarlane and Members of Common Council Subject: In response to Council's request I am presenting material on the City of Saint John's Pension Plan deficit. The request of council, please note, was initiated by John Nugent (City Solicitor and Pension Board member) who is not a voting member of the council. I must also note that his proposition to council was akin to a political initiative in response to hearsay or misinterpretations, some of it in the form of opinion commentary, offered by others on discussions in council. Who authorized Nugent to write that letter and present it to Council in Closed Session? Nugent's letter was not a legal interpretation of anything directly spoken or suggested by me. Aside from the propriety of his motion for a vote of council, he offered no quotes from me, no witnesses to my statements, or documentation of his concerns, nor did he offer any shred of evidence that my questions to staff were groundless or malicious. I am nonetheless providing this information, starting with a quote from the Municipalities Act describing the duties of a councillor. I wish to show that there is nothing in the Act giving a staff person a right to make a political motion requesting a vote of council to rebuke an elected councillor in the conduct of Council business. Section 36 (2_ I) A councillor of a municipality shall a) Consider the we fare and interest of the entire municipality when making decisions, b) Bring to the attention of Council matters that may promote the welfare or interests of the municipality, c) Participate in developing and evaluating the policies and programs of the municipality, d) Participate in meetings of council, council committees and any other body to which he or she is appointed by council, and e) Perform any other duties conferred upon him or her by this or any other Act or by Council. 7 Background The information that I have been ordered to provide to Council is already in your possession. This documentation has been given to you by Staff through various communication channels. This information, however, has been buried in erroneous and incomplete response packages. It is selective information, organized and presented to council by staff as though it was a seamlessly persuasive document. This presentation will show vital omissions resulting in flawed reporting on the pension plan deficit. The 2002 decision to retire employees early was not based in sound information on the loss it would add to the pension deficit. This presentation will also show glaring irregularities in the staff recommendations for the early Retirements and Buy -outs. The rationale for many of the Early Retirement/voluntary separation program Buy -outs was based on reducing the number of permanent employees as a workforce economy and efficiency measure. But in too many cases there were no long term deletions or abolishment of the positions. Instead the position was simply renamed or refilled without significant savings by the buy -outs specific to the bought out position, i.e., Fire Chief. I will be following the agenda attached in my formal presentation. I suggest that my fellow councillors carefully review the information that staff has provided to them over the past two years on the City Pension Plan issue. Again, the documentation you have asked me to provide is in your possession. At the July 4, 2006, Council meeting, council asked me to show my documentation revealing problems in the staff reporting on the pension problem. Since you have this documentation I will here point out my concerns for your consideration and action. 1 Agenda Presentation • Council's Obligations • What is alleged? • What are the financial impacts on the pension plan? • What's the impact on the taxpayer? • What is the cost to the organization? • Different stories and piecing together information • Financial Statement Irregularities • Conclusions • Recommendations To assist with the order from Common Council I would ask the appropriate audio visual equipment be provided for a power point presentation and a back up overhead projector. 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CL CO E t CO -4-0 C: O C: 00 o E C: -- .— O o Q � 4-j C� C v cd m� o a � V � � � p O c o � ° o � � a cam• a� 0 O a) � � Co cn CIO cn0 -a(D U �'-�� 4m a CL 0 to Cl) D 0 n •� •� C Q a) 0] O 0 -- °��" 0�E0 CD a -- o .� N Co U 0 cu L E U•> r- 4�t -0 +.a 4 O 0 c r O (3 00-0 m • cn c� :•� En 3 ) .0 aj R3 = a) • • 0 U U 4 � U O 0) En En �V En -- o o cr) UO 4) - cn cl� d 4) 0 0 = C o Ei ct a� ul o cn Cd U r--► 'L3 _ 0 cis ^ 0..� Cd Cis c� cd O 'd ° °vim LZ cd o� ..� U ° Q � rA � d U u ,� tai ^ +r rfl cd o o'o O 43 to 0 U rA O cd 0 O C/] CIO a$ a� • ,C •� o 0 •� o U •� U •� a r +� o o ct C • .00 c • 03 C3 v n� ai Ei U cri M .o o � o � a � .PEE( 0 r!� o •�+ O U o � � o � Ct L/ 03 � • U � U � 03 0 O C/] CIO a$ a� • ,C •� o 0 •� o U •� U •� a r +� o o ct C • .00 c • 03 C3 v n� ai Ei U cri M .o o � o � a � .PEE( 0 r!� o •�+ O c 0 c� c a� E 0 U — co c .� C U "O Co a3 L6 O O cu = Cn � v7 0- =3 X O cu0E �CL `� o � CU 2 �D � a) v a 0 —� ,c o 0 Q�� 4- O a as .o 0-- . co O V V a) O O (D CO CL -6 E =3 0 a) CM E -a C O as C: L O > U 0 ( O o CL X c CU 0cu� CU . w cu - .s� 0 .0a) CU L cm • a cn cn 0 O O O� O cm E 0 a3 X as 0 0 co 0 c� A", \� « {Ei � � z &� s \: , \ \�) � <\ \tea /. } January 30, 2006 Deputy Mayor Michelle Hooton and Members of Common Council Your Worship and Councillors: RE: Pension Plan Administration The Board of Trustees of the City of Saint John Employee Pension Plan has requested that this letter be sent in response to continued concerns being raised over the administration of the City's Pension Plan. As the body responsible for the administration of the Plan the Board is very concerned that, if unaddressed, the concerns could have a serious impact on the credibility of their work. While many of the concerns raised to date have been non - specific, the one area that has been noted on several occasions is the management of the long -terra disability provisions of the Plan. It has been alleged that improper management of this portion of the Plan is costing millions of dollars on an annual basis. DISABILITY ADMINISTRATION The City's Pension Plan is some what unique in that it not only provides for a defined benefit pension but it also provides for the long -term disability coverage for City employees. In order to qualify for long -term disability an employee must be found to be "Totally and Permanently" Disabled which is defined as follows: "Totally and permanently disabled" means in relation to a member suffering from a physical or mental impairment that prevents the member from engaging in any employment for which the member is reasonably suited by virtue of the member's education, training or experience and that can reasonably expected to last for the remainder of the member's lifetime. Under the provisions of the Pension Plan no disability pension shall be paid unless the Board of Trustees: a) has received an application for a disability pension signed by the member in a form prescribed by the Board, b) has received a written certification from a medical doctor, who is licensed to practise under the laws of New Brunswick or of the place where the member resides, that the member is totally and permanently disabled, and C) is satisfied that the member is totally and permanently disabled within the meaning of this Act. The Plan also provides that if an employee qualifies for disability under the Canada Pension Plan they are automatically deemed to be totally and permanently disabled and thus qualify for the disability benefits under the Plan. The process utilized by the Board for approving applicants has always been to refer individuals to an independent medical practitioner (often referred to as the Pension Doctor) who provides the Board with a written opinion as to whether of not the person meets the definition of disability under the Plan. In each and every case, the Board's acceptance of an application has been based on the Pension Doctor having provided the Board with a certification that the Applicant is totally and permanently disabled within the meaning of the Pension Act. As part of the work being performed by Morneau Sobeco in 2002 and 2003, the actuary made the observation that the number of persons receiving disability benefits was high in relation to other industry standards and employers. The Board immediately began to review this matter and sought advice from a number of sources including the Pension Doctor, the Board's Solicitor and the Board's Actuary. One of the items that clearly became apparent during this preliminary review was a number of interpretation issues with the current definition of long -term disability. Views of the Pension Doctor and the Board's solicitor made it clear that work was needed to clarify how the definition was interpreted. In addition it was determined that simply relying on a medical opinion when approving applications was no longer sufficient. It was suggested that current best practices would have the Board receiving input from not only a medical practitioner but also the employer, occupational/functional assessment professionals and any other professionals as may be needed on a case by case basis. Similar observations and views were subsequently expressed to the Board by Mr. Ron Pink, a lawyer with whom many of the Trustees were familiar as a presenter at educational pension conferences attended by Board members. Since that time, and on an on -going basis, the Board has sought and received legal advice respecting issues associated with the past and future application of the disability provisions of the Plan. The Board decided to take immediate action and to engage expertise to provide advice on best practices, current trends and to oversee a process that would ultimately result in the Board of Trustees receiving independent adjudication support services. While this review was being undertaken the Board decided not to process any applications for Disability Benefits vbith the exception of applications from individuals providing evidence that they are in receipt of CPP disability benefits. Accordingly no new disability cases have been approved since October of 2003. To carry out the review the Board engaged the services of Bill Leudey of Leudey Consultants Inc. Mr. Leudey has considerable expertise in the area of benefit plan administration. Over the past two years he has led the Board through a series of discussions aimed at better understanding the scope of the Plan's definition of disability and the role the Board play's in administering this section of the Plan. This process has resulted in the Board agreeing to retain professional assistance in the area of adjudication support services for disability applications. A Call for Proposals was completed and the Board is in the final stages of entering into an agreement with Lifemark Inc., who have demonstrated expertise in providing this type of service. As part of their initial work Lifemark have already recommended a completely new application process and will be providing adjudication support involving both medical reviews and occupational/functional assessments of applicants. Lifemark will also be reviewing all existing approved disability cases. The Pension Plan allows for a review on an annual basis to ensure that individuals continue to qualify for disability benefits. At present there are 99 individuals in receipt of a disability pension from the City. Of these 20 individuals were approved under the City's old Pension Plan (per1994). Under this previous plan individuals were deemed to be disabled if they could not carry out the duties of their own occupation. Of the remaining 79 the following table summarizes some pertinent data: NOTES: 1. Deemed service — the Plan provides that in calculating the disability pension, if the individual's pensionable service is less than 30 years, pensionable service shall include the number of years from the date of disability to age 65 to a maximum of 30 years service in total. If there is no deemed service the Pension Plan incurs no additional cost as a result of an individual going out under the disability provisions verses normal retirement. 2. Of the 18 "other" approved applicants 3 are over the age of 60. As can be'-seen from the table presented earlier the number of cases that need to be reviewed is.small (approximately 15 -20) as most applicants are also in receipt of Canada # of individuals % Approved for Canada Pension Disability 47 59.5 A roved with no "deemed" service 9 11.4 Approved with "deemed service" less than 1 year 5 6.3 Other a roved applicants 18 22.8 Total disability recipients 79 NOTES: 1. Deemed service — the Plan provides that in calculating the disability pension, if the individual's pensionable service is less than 30 years, pensionable service shall include the number of years from the date of disability to age 65 to a maximum of 30 years service in total. If there is no deemed service the Pension Plan incurs no additional cost as a result of an individual going out under the disability provisions verses normal retirement. 2. Of the 18 "other" approved applicants 3 are over the age of 60. As can be'-seen from the table presented earlier the number of cases that need to be reviewed is.small (approximately 15 -20) as most applicants are also in receipt of Canada Pension Disability. The Board remains confident that an on -going review of these cases will show that most individuals were and continue to be disabled in accordance with the provisions of the Act. It should be pointed out however that the Pension Act clearly allows for an annual review of all disability claimants to ensure that they continue to qualify as disabled under the terms of the Pension Act. If at any time it is found that an individual no longer meets the disability definition their pension payments can be discontinued. The Board of Trustees has consistently applied the provisions of the Act based on the best professional advice available. When issues have been raised the Board has spared no effort in seeking out independent professional advice and is continuing in its efforts to apply best practices in the matter of disability adjudication procedures. The Board is of the opinion that the recent public comments with respect to disability management and pensions are being made without full knowledge of the activities of the Board and without full knowledge of all of the professional advice that has been provided to the Board. These types of uninformed and unfounded continents cast a very negative and distorted cloud over the activities of the Pension Board. In addition and most significantly it creates the impression that all individuals in receipt of a disability pension from the City are in some way cheating the system. This is unacceptable and unwarranted. In the meantime if any member of Council has specific information that would give rise to concerns over the administration of the Plan we would ask that it be brought forward so that appropriate action can be taken. Yours truly, Mayor Norman McFarlane Chair City of Saint John Employee Pension Plan z City of Saint John Management/Professional Staff Establishment — 2002 83 Establishment — 2003 69 Establishment -- 2004 70 Establishment — 2005 77 Establishment — 2006 80 In approving applications under the 2002 Early Retirement/Voluntary Separation Program the following positions were eliminated by Council: Position Assistant Superintendent - Arenas Manager, Real Estate & Development Superintendent Intergovernment Affairs Officer Public Affairs Manager Superintendent Superintendent Administrator Fleet Services Financial Analyst Budget Control Officer Superintendent Superintendent Superintendent Superintendent Land Surveyor 1 Department Building & Inspection Services Building & Inspection Services Building & Inspection Services City Manager's Office Community Services Community Services Community Services Corporate Services Corporate Services Municipal Operations Municipal Operations Municipal Operations Municipal Operations Municipal Operations Planning & Development Since 2003 the following 12 management positions have been added to the Establishment: Position Deputy City Manager — Programs & Priorities Program Manager — Vision 2015 Administration Officer Manager of Planning Planner Municipal Engineer (3) Solicitor Corporate Records Manager Commissioner of Corporate Services Operations Manager — Leisure Services Programs Department City Manager's Office City Manager's Office Leisure Services Planning & Development Planning & Development Municipal Operations City Solicitor's Office Common Cleric's Office Corporate Services Leisure Services One position was eliminated during this time — Commissioner of Community Services for a net increase of 11 positions over the years 2003 to 2006 inclusive. In all cases positions were added only with the approval of Council during the annual budget process and the subsequent approval of the Establishment of Permanent Positions. i f P�l July 31, 2006 SAINT JOHN Mayor McFarlane and Councillors City of Saint John P.O. Box 1971 Saint John, New Brunswick E2L 4L1 Your Worship and Councillors: RE: Councillor Ferguson's presentation — July 17, 2006 P.O. Box /C.P. 1971 Saint john, NB /N. -B. Canada E21_41_1 www.saintjohn.ca The Board has received and reviewed a copy of the presentation made by Councillor Ferguson to Common Council on July 17, 2006. After reviewing the material the Board feels that certain points need to be highlighted with Council. The major focus of the presentation was related to administration of the long -term disability provisions of the Pension Plan. In a letter to Council dated January 30, 2006 the Board provided details related to actions being taken on this matter (copy attached). In specific to Councillor Ferguson's presentation we would note the following: 1. At no time has the Board approved applications for disability without independent medical advice and documentation supporting the application, 2. At no time have employees been given medical documents authorizing them as qualified for a permanent disability pension. 3. There are now 100 people receiving disability pensions from the Plan (one more than the number reported in the January 30, 2006 letter) the majority of which are also in receipt of a disability pension from the Canada Pension Plan.(automatic entitlement as noted in the attached letter) 4. The disability benefit provided for in the Pension Plan is not 80% of salary. The Plan provides for a disability pension equal to the actual pension earned or calculated amount that has a maximum of 60% of pensionable earnings. In addition the disability pension cannot exceed the annual YMPE established under the Canada Pension Plan, 5. The Board did seek advice from its solicitor with regards to possible legal action related to alleged misinterpretation of the disability definition and was advised that no action could be taken. 6. No claim has been made under the Board's Errors & Omissions Insurance coverage as to date there has been no basis for such a claim. Explore our past Explorez notre pass6 Discover your future D6couvrez votre avenir b Grand Bay - Westfield - Quisparnsis - Rothesay St. Martins - Saint doh The Board of Trustees has adopted a resolution to seek the services of a litigation lawyer to determine what recourse is available to the Board as a result of the unsubstantiated and unwarranted comments made to date with regards to its activities. The Board remains very committed to strong and effective governance of the City's Pension Plan. If further clarification is needed related to the activities associated in administration of the Plan we will be more than willing to respond. Respectfully submitted, 4 Norman McFarlane — Chair /c,, Counc1l18 I1S Titus Bill Buckley — Local 486 Fred Slipp — Local 77 Kevin Estabrooks — Retirees Assoc. s Counci r Glen Tait a d Gould A Lo al Andrew Belyea — Local 61 ew Beckett —Treasurer atrick oods — Se cr John Nugent — Management/Non -Union Terry Totten — City Manager January 30, 2006 Deputy Mayor Michelle Hooton and Members of Common Council Your Worship and Councillors: RE: Pension Plan Administration The Board of Trustees of the City of Saint John Employee Pension Plan has requested that this letter be sent in response to continued concerns being raised over the administration of the City's Pension Plan. As the body responsible for the administration of the Plan the Board is very concerned that, if unaddressed, the concerns could have a serious impact on the credibility of their work. While many of the concerns raised to date have been non - specific, the one area that has been noted on several occasions is the management of the long -term disability provisions of the Plan. It has been alleged that improper management of this portion of the Plan is costing millions of dollars on an annual basis. DISABILITY ADMINISTRATION The City's Pension Plan is some what unique in that it not only provides for a defined benefit pension but it also provides for the long -term disability coverage for City employees. In order to qualify for long -term disability an employee must be found to be "Totally and Permanently" Disabled which is defined as follows: "Totally and permanently disabled" means in relation to a member suffering from a physical or mental impairment that prevents the member from engaging in any employment for which the member is reasonably suited by virtue of the member's education, training or experience and that can reasonably expected to last for the remainder of the member's lifetime. Under the provisions of the Pension Plan no disability pension shall be paid unless the Board of Trustees: a) has received an application for a disability pension signed by the member in a form prescribed by the Board, b) has received a written certification from a medical doctor, who is licensed to practise under the laws of New Brunswick or of the place where the member resides, that the member is totally and permanently disabled, and C) is satisfied that the member is totally and permanently disabled within the meaning of this Act. The Plan also provides that if an employee qualifies for disability under the Canada Pension Plan they are automatically deemed to be totally and permanently disabled and thus qualify for the disability benefits under the Plan. The process utilized by the Board for approving applicants has always been to refer individuals to an independent medical practitioner (often referred to as the Pension Doctor) who provides the Board with a written opinion as to whether of not the person meets the definition of disability under the Plan. In each and every case, the Board's acceptance of an application has been based on the Pension Doctor having provided the Board with a certification that the Applicant is totally and permanently disabled within the meaning of the Pension Act. As part of the work being performed by Morneau Sobeco in 2002 and 2003, the actuary made the observation that the number of persons receiving disability benefits was high in relation to other industry standards and employers. The Board immediately began to review this matter and sought advice from a number of sources including the Pension Doctor, the Board's Solicitor and the Board's Actuary. One of the items that clearly became apparent during this preliminary review was a number of interpretation issues with the current definition of long -term disability. Views of the Pension Doctor and the Board's solicitor made it clear that work was needed to clarify how the definition was interpreted. In addition it was determined that simply relying on a medical opinion when approving applications was no longer sufficient. It was suggested that current best practices would have the Board receiving input from not only a medical practitioner but also the employer, occupational /functional assessment professionals and any other professionals as may be needed on a case by case basis. Similar observations and views were subsequently expressed to the Board by Mr. Ron Pink, a lawyer with whore many of the Trustees were familiar as a presenter at educational pension conferences attended by Board members. Since that time, and on an on -going basis, the Board has sought and received legal advice respecting issues associated with the past and future application of the disability provisions of the Plan. The Board decided to take immediate action and to engage expertise to provide advice on best practices, current trends and to oversee a process that would ultimately result in the Board of Trustees receiving independent adjudication support services. While this review was being undertaken the Board decided not to process any applications for Disability Benefits with the exception of applications from individuals providing evidence that they are in receipt of CPP disability benefits. Accordingly no new disability cases have been approved since October of 2003. To carry out the review the Board engaged the services of Bill Leudey of Leudey Consultants Inc. Mr. Leudey has considerable expertise in the area of benefit plan administration. Over the past two years he has led the Board through a series of discussions aimed at better understanding the scope of the Plan's definition of disability and the role the Board play's in administering this section of the Plan. This process has resulted in the Board agreeing to retain professional assistance in the area of adjudication support services for disability applications. A Call for Proposals was completed and the Board is in the final stages of entering into an agreement with Lifemark Inc., who have demonstrated expertise in providing this type of service. As part of their initial work Lifemark have already recommended a completely new application process and will be providing adjudication support involving both medical reviews and occupational /functional assessments of applicants. Lifemark will also be reviewing all existing approved disability cases. The Pension Plan allows for a review on an annual basis to ensure that individuals continue to qualify for disability benefits. At present there are 99 individuals in receipt of a disability pension from the City. Of these 20 individuals were approved under the City's old Pension Plan (pert 994). Under this previous plan individuals were deemed to be disabled if they could not carry out the duties of their own occupation. Of the remaining 79 the following table summarizes some pertinent data: NOTES: 1. Deemed Service — the Plan provides that in calculating the disability pension, if the individual's pensionable service is less than 30 years, pensionable service shall include the number of years from the date of disability to age 65 to a maximum of 30 years service in total. If there is no deemed service the Pension Plan incurs no additional cost as a result of an individual going out under the disability provisions verses normal retirement. 2. Of the 18 "other" approved applicants 3 are over the age of 60. As can be seen from the table presented earlier the number of cases that need to be reviewed is small (approximately 15 -20) as most applicants are also in receipt of Canada # of individuals % Approved for Canada Pension Disability 47 59.5 ApTroved with no "deemed" service 9 11.4 Approved with "deemed service" less than 1 year 5 6.3 Other approved applicants 18 22.8 Total disability 'recipients 79 NOTES: 1. Deemed Service — the Plan provides that in calculating the disability pension, if the individual's pensionable service is less than 30 years, pensionable service shall include the number of years from the date of disability to age 65 to a maximum of 30 years service in total. If there is no deemed service the Pension Plan incurs no additional cost as a result of an individual going out under the disability provisions verses normal retirement. 2. Of the 18 "other" approved applicants 3 are over the age of 60. As can be seen from the table presented earlier the number of cases that need to be reviewed is small (approximately 15 -20) as most applicants are also in receipt of Canada Pension Disability. The Board remains confident that an on -going review of these cases will show that most individuals were and continue to be disabled in accordance with the provisions of the Act. It should be pointed out however that the Pension Act clearly allows for an annual review of all disability claimants to ensure that they continue to qualify as disabled under the terms of the Pension Act. If at any time it is found that an individual no longer meets the disability definition their pension payments can be discontinued. The Board of Trustees has consistently applied the provisions of the Act based on the best professional advice available. When issues have been raised the Board has spared no effort in seeking out independent professional advice and is continuing in its efforts to apply best practices in the matter of disability adjudication procedures. The Board is of the opinion that the recent public comments with respect to disability management and pensions are being made without full knowledge of the activities of the Board and without full knowledge of all of the professional advice that has been provided to the Board. These types of uninformed and unfounded comments cast a very negative and distorted cloud over the activities of the Pension Board. In addition and most significantly it creates the impression that all individuals in receipt of a disability pension from the City are in some way cheating the system. This is unacceptable and unwarranted. In the meantime if any member of Council has specific information that would give rise to concerns over the administration of the Plan we would ask that it be brought forward so that appropriate action can be taken. Yours truly, Mayor Norman McFarlane Chair City of Saint John Employee Pension Plan REPORT TO COMMON COUNCIL M & C 2006 - 220 July 25, 2006 His Worship Mayor Norm McFarlane & Members of Common Council Your Worship and Members of Council, SUBJECT: Contract No. 2006 -26: Latimer Lake and Spruce Lake Water Treatment Facilities: Electrical, Mechanical and Architectural Upgrades BACKGROUND The City of Saint Joan The approved 2005 & 2006 Water and Sewerage Utility Fund Capital Program — Infrastructure Renewal, Water Category includes projects for the design and construction of infrastructure as follows: • Replacement of transfer switch at the Latimer Lake Water Treatment Facility; • Upgrade of electrical systems and chlorination system at the Latimer Lake Water Treatment Facility; • Replacement of the transformer at the Spruce Lake Water Treatment Facility; and • Refurbishment of the electrical and mechanical systems at the Spruce Lake Water Treatment Facility. TENDER RESULTS Tenders closed on June 27, 2006 with the following results: 1. Castle Rock Construction Services Inc. $2,022,839.00 Saint John, N.B. The Engineer's estimate for the work was $1,274,245.00. M & C 2006 - 220 July 25, 2006 Page 2 ANALYSIS The tender was reviewed by staff and it was found to be formal in all respects. Staff is of the opinion that the tenderer has the necessary resources and expertise to perform the work. The price difference between the tendered amount and the original Engineer's estimate is $748,594 ($2,022,839 - $1,274,245). Following the tender closing, staff compared the tendered unit prices to the Engineer's estimated lump sum prices. After comparing the prices and reviewing the Engineer's estimate in detail, staff are of the opinion that the Engineer's estimate was low and that an amount of $1,600,000 would more accurately reflect the true estimated cost of Contract 2006 -26. The prices utilized to complete the original Engineer's estimate were derived from sub - consultant's estimates plus reasonable percentages for labour and installation. Many of the work items specified in the contract for this project are labour intensive and very unique to this project; therefore reference to historical cost data was not possible. The original Engineer's estimate did not give due consideration to factors such as maintaining existing chemical feed systems, physical space constraints and the amount of temporary works necessary to avoid interruption of the continuous chlorination process at Latimer Lake. Given that there was only one bidder for the project, staff wanted to ensure that the City would receive good value for the funds being allocated to this project. With this in mind, staff requested a meeting with the tenderer to discuss the differences in the tendered amount versus the Engineer's estimate and to negotiate a better overall project price. Staff reviewed the Contract Schedule of Quantities and Unit Prices with the tenderer in an effort to identify areas where agreed upon clarifications could provide a cost saving to the City. The tenderer and staff were successful in clarifying the limits of the lump sum unit prices and identifying alternative construction methods that would result in a cost saving of $143,739 to the projects. The negotiated tender price is now $1,879, 100. 00. INPUT FROM OTHER SOURCES The City Solicitor and Purchasing Agent were consulted prior to staff contacting the tenderer for post -bid negotiation. Both agreed that post -bid negotiations between the tenderer and City to identify project scope changes that would result in an overall reduction in project cost would be considered an acceptable process. FINANCIAL IMPLICATIONS The Contract includes work that is charged against the 2005 & 2006 Water and Sewerage Utility Fund Capital Program — Infrastructure Renewal, Water Category. An analysis has been completed which includes the estimated amount of work that will be performed by City forces and others. The cost analysis concludes that a total amount of $1,450,000 was provided in the budgets. The projected completion cost of the projects included in this contract for the Latimer Lake Facility is approximately $1,450,000 including the City's eligible HST rebate. The projected completion cost of the projects included in this contract for the Spruce Lake Facility including engineering consulting fees as well as work to be done by City forces is estimated to be $500,000 including M & C 2006 - 220 July 25, 2006 Page 3 the City's eligible HST rebate. The total funding required to complete this project is $1,950,000 — a shortfall of $500,000 from the approved Capital Program Budgets. A separate report has been provided at this Council meeting for consideration recommending pre - approval of a 2007 Water & Sewerage Utility Fund Capital Program in the amount of $500,000 to fund the shortfall and complete the work at Spruce Lake under this contract. RECOMMENDATION It is recommended that Contract 2006 -26: Latimer Lake and Spruce Lake Water Treatment Facilities — Electrical, Mechanical and Architectural Upgrades project be awarded to the tenderer, Castle Rock Construction Services Inc., at a negotiated tender price of $1,879,100, to be financed over the 2005, 2006 and 2007 Capital Program Budgets, as calculated based on 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 REPORT TO COMMON COUNCIL M & C 2006 - 221 July 25, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council, SUBJECT: Spruce Lake Water Treatment Facility — Electrical and Mechanical Upgrades PURPOSE The City of Saint Joan The purpose of this report is to obtain Council's early approval for a project under the proposed 2007 Water & Sewerage Utility Fund Capital Program. BACKGROUND The Water Service Disruption & Boil Order Report of April 2004 contained a commitment from Saint John Water to complete a condition survey of the electrical systems and equipment at the City's water treatment facilities. The condition survey was completed by Ralph Smith Engineering Inc. in November 2004. The report outlined a number of upgrades which were necessary at the Spruce Lake Treatment Plant. ANALYSIS As reported in a previous Council Report at this meeting (M &C 2006 -220), work required at the Spruce Lake Treatment Facility and the Latimer Lake Treatment Facility was tendered as Contract 2006 -26 Latimer Lake and Spruce Lake Water Treatment Facilities — Electrical, Mechanical and Architectural Upgrades and bids closed on June 27, 2006. The total project cost for Contract 2006 -26 was $1,950,000 after the City's eligible HST rebate. The approved budgets provided for $1,450,000 leaving a shortfall of $500,000 for the contract. The work at the Latimer M & C 2006 — 221 July 25, 2006 Page 2 Lake Treatment Facility is approximately $1,450,000 and the work at the Spruce Lake Treatment Facility is approximately $500,000. There are cost savings to be realized by having the work completed at both locations under the same contract. It is therefore proposed that Common Council provide early approval for a project for the Spruce Lake Water Treatment Facility - Electrical and Mechanical Upgrades proposed under the 2007 Water & Sewerage Utility Fund Capital Program in the amount of $500,000 to fund the budget shortfall for Contract 2006 -26 such that work can be completed at both the Spruce Lake Treatment Facility and Latimer Lake Treatment Facility under Contract 2006 -26. RECOMMENDATION It is recommended that Common Council provide early approval of the Spruce Lake Water Treatment Facility — Electrical and Mechanical Upgrades as outlined in this report at a cost of $500,000. Respectfully submitted, J. M. Paul Groody, P. Eng. Terrence L. Totten, F.C.A. Commissioner, City Manager Municipal Operations & Engineering M & C — 2006 -228 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Cost Sharing - Ashburn Road BACKGROUND: In 2004 Mr. Roland Buckley, the owner of A.C. Fairweather & Sons Ltd. who owns two existing warehouse buildings on Ashburn Road, approached the City with respect to extending water and sewer services to his buildings. He also owns other vacant land in the area. Water and sewer services had recently been extended to the Drury Cove residential subdivision making the proposal technically possible. The total cost of the work was $95,680. It was indicated that cost sharing of this type of service extension was normally only provided for residential developments, although approvals had been given by Council for specific non residential developments. Mr. Buckley received Engineering approval for the work and completed it at his expense. He has now approached the City requesting cost sharing equal to the cost of the piping material utilized. The value of piping material used has been verified as $32,592.72 by City inspectors. ANALYSIS: This is an unusual situation. While there is a potentially new development which could occur the main benefit is that two warehouses with a total area of approximately 22,000 square feet will now have a modern water system available for potable water and fire protection as well as a modern sanitary sewage disposal. Previously the buildings were only served by on -site services. Report to Common Council Page 2 July 28, 2006 It is worthwhile to note that, as part of the agreement to extend services to the Drury Cove area, the developer agreed to contribute a $2,500 levy for each residential unit using the system. While there is a conversion factor for commercial development industrial warehousing typically produces relatively low loads. A contribution should however be made. In this case $2,500 per warehouse building would be appropriate. An approach that cost shares on the extension, but requiring a contribution is consistent with the approach in this area. The service upgrade can benefit other property in the area and development interest has been expressed recently. Future development would be required to contribute to the Drury Cove extension as well. If a $5,000 contribution to the Drury Cove extension (2 x $2,500 per unit levy) were subtracted from the $32,592.79 amount requested a $27,592.79 payment could be considered. RECOMMENDATION: That approval be given to cost share in the recently completed water and sanitary sewer extension on Ashburn Road by A. C. Fairweather & Sons Ltd. in the amount of $27,592.79 Respectfully submitted, Jim R. Baird, MCIP Commissioner Planning and Development Terrence Totten, F.C.A. City Manager JRB /mmf M & C — 2006 -216 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Land Exchange City of Saint John and Collings BACKGROUND: On October 31, 2005 Common Council resolved; "WHEREAS the building located at 73 Lake Cove Lane, Saint John, N.B. (Service New Brunswick PID #353821) was constructed too close to the First Loch Lomond Lake without a building permit having been obtained, contrary to the City's Building By -Law and Zoning By -Law; AND WHEREAS Mr. Peter E. Collings and Mrs. Coleen F. Collings, the owners of the property, have not complied with an Order from Mr. William Edwards, Building Inspector, that was served on Mr. Collings on September 19, 2005 and Mrs. Collings on September 21, 2005 and which required them to demolish the building and remove the debris within 30 days unless in the meantime they had obtained a building permit, a location variance from the City of Saint John, any required permits or approvals from the Province of New Brunswick, and had moved the Collings building from the Collings land to a location where the building is no longer within 150 metres of the shore of the lake and complies with all applicable requirements of the Saint John Zoning By -Law. AND WHEREAS Mr. Peter E. Collings and Mrs. Coleen F. Collings have not complied with the aforesaid Order that was issued by Mr. William Edwards: AND WHEREAS Mr. and Mrs. Collings have, through their solicitor, indicated their willingness to remove their building but have requested that Report to Common Council July 28, 2006 Page 2 they be allowed until July 31, 2006, to do so, and they have indicated their willingness to sign a Consent Court Order to that effect. RESOLVED that Mr. William Edwards is hereby designated and authorized to make an application on behalf of the City of Saint John to the Court of Queen's Bench of New Brunswick for an Order that will require Peter E. Collings and Coleen F. Collings to: (1) within 60 days, or within such other time as the Judge may allow, either demolish the building that is located on this property at 73 Lake Cove Lane, Saint John, N.B., and remove the debris, or obtain any municipal and /or New Brunswick permits and /or approvals that may be required and move the building to a location where it is no longer within 150 metres of the First Loch Lomond Lake and complies with all applicable requirements of the City of Saint John Zoning By -Law; and (2) in the event that Peter E. Collings and Coleen F. Collings do not comply with the Order from the Court of Queen's Bench, that the City is authorized to cause the demolition of the building, removal of the debris, and rehabilitation of the property, and (3) the Collings pay to the City of Saint John court costs in such an amount as the Judge may allow." It is further resolved that, having regard to the representations and request made by Mr. and Mrs. Collings through their solicitor and having regard to the approach of likely adverse weather and ground conditions during the corning Winter and Spring, the City Solicitor or his designate is hereby authorized to sign on behalf of the City a consent Court Order that will, among other things, allow Mr. and Mrs. Collings until July 31, 2006, to either remove their building from the property or demolish the building and remove the debris." With direction from Council and Senior Management, Real Estate Services embarked upon a process to identify City owned land which may be deemed available for an exchange with the Collings for their waterfront parcel located at 73 Lake Cove Lane. Utilizing the City's Geographic Information System, a thorough search for available lands within a reasonable proximity to the Colling's existing dwelling was conducted. After looking at a number of alternatives and using creative problem solving, the following solution was found. A 2 acre ± parcel can be created in City owned lands located off a private right - of -way owned by Ms. Barbara Rowe. The proposed lot could be subdivided from the larger parcel PID #55023451 ( 64 acres + / -), again a City owned parcel which fronts along Loch Lomond Road and is bordered by the aforementioned right of way, PID # 55018253.The City land was originally acquired to provide watershed protection for the City's water supply. The proposed 2 acre portion sits outside the City's watershed boundary and beyond the Province of New Brunswick's regulation of a 150 foot setback from the watercourses supplying potable drinking water. Municipal Operations and Engineering has approved the proposed Report to Common Council July 28, 2006 Page 3 subdivision and subsequent exchange in principal. Ms. Rowe has agreed to provide right -of -way to the Collings so they may access the proposed lot. The Planning Advisory Committee will need to approve the creation of any lot off the private road. The Collings also have a hydro servicing plan, tentative Provincial approvals for well and septic systems on site and have made arrangements to establish a new foundation so their home can be relocated. The Collings were granted until July 31, 2006 to relocate or remove their dwelling at Lake Cove Lane (see M &C 2005 -329 attached). Real Estate Services could not identify an appropriate site and secure staff support until mid -July. As such, the resolution providing direction to the Building Inspector to commence the process to demolish the building effective August 1, 2006 requires amending. This amendment will provide the Collings with adequate and necessary time to seek PAC's approval to create the proposed lot and to make the subsequent arrangements to relocate the dwelling. RECOMMENDATION: 1. That Common Council amend its resolution of October 31, 2005 (M &C 2005 -329) by extending the Collings' deadline to have their dwelling relocated or removed from 73 Lake Cove Lane, to October 31, 2006 from the original date of July 31, 2006 and further that Common Council give direction to the Building Inspector not to commence removal /demolition of the improvements upon 73 Lake Cove Lane until October 31, 2006, and further 2. That The City of Saint John exchange the fee simple interest in a to be created 2 acre ± portion of PID # 55023451 (as generally shown on the attached sketch) with Coleen and Peter Collings for the fee simple interest in PID 353821, 73 Lake Cove Lane on or before October 31, 2006 conditional upon the following: A. That the Planning Advisory Committee approves the subdivision of a 2 acre ± parcel fronting on a private right -of -way (PID # 55018253); and further B. that the Collings acquire any necessary rights -of -way, easements and approvals from the Province of New Brunswick's Department of Environment and Department of Health required to relocate their dwelling from 73 Lake Cove Road to the to be created parcel on or before October 31, 2006 and ; and further Report to Common Council July 28, 2006 Page 4 C. that the Mayor and Common Cleric be authorized to sign any document required to effect this transaction. Respectfully submitted, Jim R. Baird, MCIP Commissioner Planning and Development Terrence Totten, C.A. City Manager BI II REPORT TO COMMON COUNCIL OPEN SESSION M & C 2005 — 329 October 31, 2005 His Worship Norm McFarlane and Members of Common Council Your Worship and Councillors. SUBJECT 73 Lake Cove Lane, PID 00353821 Loch Lomond Watershed BACKGROUND Peter and Coleen Collings are the registered owners of a property located at 73 Lake Cove Lane on the southern shore of the First Loch Lomond Lake. This property, which is located within the City limits, was purchased by the Collings in 1988. At that time there was a small wood frame dwelling, (cottage) located on the property. That dwelling, based on Surveyors information, was located approximately 40 metres (130 feet) from the waters edge. After living in the cottage for a relatively short time the Collings constructed a new home in stages and demolished the original dwelling in the process. The new dwelling, a side split, is located approximately 37 metres (120 feet) from the waters edge. The current dwelling is approximately 126 square metres (1360 square feet) in area. This new building is located in contravention of the City of Saint John's Zoning By -law which requires a setback of 150 metres (500 feet) from the lake. This situation was brought to the attention of the City by a nearby property owner. A file search was conducted and revealed that no Building Permits had ever been applied for or obtained for the construction of the new Collings dwelling. The owners were advised of the section of the zoning By -Law which prohibits development within 150 metres (500 feet) of the shore of any body of water forming part of the water supply for the City. The Collings have indicated they were aware of this prohibition of development. M1 City of Saint John M & C 2005 — 329 -2- October 31, 2005 City staff have had a number of meetings with Mr. Collings regarding this situation. It has been staff's position that the dwelling must be removed. The size and configuration of the Collings property is such that the dwelling cannot be relocated on the property and be in compliance with the Zoning By -Law. In addition to constructing this new dwelling without proper authorization, the Collings also constructed a large garage in the immediate vicinity. This garage is located entirely upon City -owned property. Mr. Collings has acknowledged that he was aware that his garage was not on his property. Additionally, Mr. Collings has operated a septic tank service from this property for a number of years. The operation of this business from that property is also in contravention of the City's Zoning By -law. Mr. Collings readily agreed to discontinue the septic tank service operation from this property and also readily agreed to remove the garage from City -owned property. It is staff's understanding that the business no longer operates at 73 Lake Cove Lane and also that the garage has been substantially demolished, The issue of the new dwelling remains outstanding. In addition to staff having numerous conversations with Mr. Collings there have also been discussions with Mr. Collings' legal representation. Staff have been advised by Mr. Collings' lawyer that the Collings' will not contest the City's position with respect to removing his home from the property. It is anticipated that an appropriate time frame for the removal can be agreed upon between the Collings and the City. Nevertheless, it is staff's belief that the legal process requiring the building to be removed must be initiated. Mr. Collings has been advised that Council will be considering this report this evening. ANALYSIS 1. Strategic Plan Conformity/Existing City Policy The City of Saint John Zoning By -Law, section 820(8), has been in place since the By -Law was adopted in 1983, and previous to that in the 1973 By- Law. That section states: Distance to Public Water Supp1Y Notwithstanding any other provision of this By -law, no building or structure may be placed, erected or altered so that it is within 150 metres of the shore of any lake, river, stream or other body of water which is a source of public water supply for the City. (By -law C.P. .100 -141) M & C 2005 — 329 - 3 - October 31, 2005 2. Inuut from Other Sources The Legal Department has identified the owners of the property and has provided advice relating to the relevant law, preparation of the resolutions, and the procedures to be followed in dealing with this issue. A New Brunswick Land Surveyor was engaged to conduct a survey of the property. A survey plan has been received that gives accurate information as to the location of the building on the property and clearly showing the setback of the dwelling from the waters edge. 3. Procedure The appropriate procedure to follow in order to achieve the removal of the building is that set out in the Community Planning Act. Section 93(1) thereof provides that where a development is undertaken in contravention of the Act, or of a by -law enacted thereunder, a person duly authorized by the Council may issue an order requiring the cessation of the development, the alteration of the development so as to remove the contravention or the doing of anything required to restore the land to its previous condition. Section 94(1) of the Act further provides that in the event such an order is not complied with, a person designated by the Council may apply to the Court of Queen's Bench for an Order of the Court. A Queen's Bench judge has authority to issue an Order restraining the continuance of a contravention and also has authority to Order the removal or destruction of a building and to allow the municipality to cause the work to be done at the person's expense in the event that he does not comply with the Court's Order. Mr, Collings was served with an Order on September 19, 2005 which required him to demolish the building and remove the debris within 30 days unless in the meantime he had obtained a building permit, a location variance, and any required permits or approvals from the Province of New Brunswick, or had moved the Collings building from the Collings land to a location where the building is no longer within 150 metres of the shore of the lake. Mrs. Collings was served with the same Order on September 21, 2005. 4. Financial Implications The owner has been provided with an opportunity to remedy the situation by removing and/or demolishing the dwelling on the property. Discussions are ongoing with the owner regarding compliance with the Order to remove the dwelling. If the owner does not comply, the estimated cost of demolition to the City of Saint John, removal of debris, and rehabilitation of the site is approximately twenty thousand dollars ($20,000). M & C 2005 — 329 - 4 - October 31, 2005 The attached resolution authorizes the Building Inspector to make an application on behalf of the City of Saint John to the Court of Queen's Bench of New Brunswick for an Order requiring the owners to demolish the dwelling and remove the debris or relocate the building such that it is in compliance with the City of Saint John Zoning By -law. Further, in the event that the Collings do not comply with an Order from the Court of Queen's Bench, the City would be authorized to destroy the building, remove the debris, and rehabilitate the site. RECOMMENDATION Your City Manager recommends that Common Council adopt the attached resolution. Respectfully submitted, Wm. Edwards, P. Eng. Building Inspector Buildings and Inspection Services Terrence Totten, CA City Manager "RESOLVED that the following resolution be adopted, namely: WHEREAS the building located at 73 Lake Cove Lane, Saint John, N.B. (Service New Brunswick PID #353821) was constructed too close to the First Loch Lomond Lake without a building permit having been obtained, contrary to the City's Building By -Law and Zoning By -Law; AND WHEREAS Mr. Peter E. Collings and Mrs. Coleen F. Collings, the owners of the property, have not complied with an Order from Mr. William Edwards, Building inspector, that was served on Mr. Collings on September 19, 2005 and Mrs. Collings on September 21, 2005 and which required them to demolish the building and remove the debris within 30 days unless in the meantime they had obtained a building permit, a location variance from the City of Saint John, any required permits or approvals from the Province of New Brunswick, and had moved the Collings building from the Collings land to a location where the building is no longer within 150 metres of the shore of the lake and complies with all applicable requirements of the Saint John Zoning By -Law. AND WHEREAS Mr. Peter E. Collings and Mrs. Coleen F. Collings have not complied with the aforesaid Order that was issued by Mr. William Edwards: AND WHEREAS Mr, and Mrs. Collings have, through their solicitor, indicated their willingness to remove their building but have requested that they be allowed until July 31, 2006, to do so, and they have indicated their willingness to sign a Consent Court Order to that effect. RESOLVED that Mr. William Edwards is hereby designated and authorized to make an application on behalf of the City of Saint John to the Court of Queen's Bench of New Brunswick for an Order that will require Peter E. Collings and Coleen F. Collings to: (1) within 60 days, or within such other time as the Judge may allow, either demolish the building that is located on this property at 73 Lake Cove Lane, Saint John, N.B., and remove the debris, or obtain any municipal and /or New Brunswick permits and/or approvals that may be required and move the building to a Iocation where it is no longer within 150 metres of the First Loch Lomond Lake and complies with all applicable requirements of the City of Saint John Zoning By -Law; and (2) in the event that Peter E. Collings and Coleen F. Collings do not comply with the Order from the Court of Queen's Bench, that the City is authorized to cause the demolition of the building, removal of the debris, and rehabilitation of the property, and (3) the Collings pay to the City of Saint John court costs in such an amount as the Judge may allow." It is further resolved that, having regard to the representations and request made by Mr. and Mrs. Collings through their solicitor and having regard to the approach of likely adverse weather and ground conditions during the coming Winter and Spring, the City Solicitor or his designate is hereby authorized to sign on behalf of the City a consent Court Order that will, among other things, allow Mr. and Mrs. Collings until July 31, 2006, to either remove their building from the property or demolish the building and remove the debris. mription of Plan: Sketch indicates the location of the proposed lot to be ated and the right of way access. ►:N /A • N/A Address: Off Loch Lomond Rd. Date: July 25, 2006 ��OQ3522il ascription of Plan: Sketch indicates the location of the parcel to be ,changed with the City. D: 353821 Address: 73 Lake Cove Lane En: N/A I Date: July 25, 2006 M & C — 2006 -229 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Lot Levy - Maber & Somerville Joint Venture Ltd. 1965 Sandy Point Road BACKGROUND: In the late 1980's Maber & Somerville Joint Venture Ltd. was formed to develop a residential subdivision on Kennebecasis Drive opposite the ferry landing. This development now has 58 new homes. There were deficiencies in the sewage treatment system which were addressed with new pumping station in the late nineties. In 1997 the company first began negotiations concerning a parcel of land on Sandy Point Road across from the zoo. This land was owned by the City, but there were service deficiencies both in the water and sewer systems. Comprehensive studies were undertaken to consider options (2001) and a major infrastructure upgrading required. While part of the rationale was to solve problems for existing residents, there was an expectation that new development would also contribute by way of a lot levy. When the design was completed and costed a $5.5 million upgrade was undertaken stretching from Kennebecasis Drive at Sandy Point Road, along Sandy Point Road to University Avenue. This project was a major improvement for the area and had the potential of serving a large number of new homes (± 800 new units). If the majority of the costs were to be recovered the lot levy would have to be significant and as such it was set at $4,428 per unit. Report to Common Council July 28, 2006 Page 2 Maber & Somerville agreed to this levy and proceeded with the purchase of the 34 acres across from the zoo which was finally approved by Council on May 3, 2004. The payment of the $4,428 per unit levy at the time of final subdivision approval was incorporated into the terms and conditions of the land sale. Subdivision approval was given in August, 2004 and work proceeded through 2005. In March 2005 two lots were approved and April 6 an additional lot was approved. The established levy was paid. A formal request to revise the lot levy has been received citing the economics of developing in the area. ANALYSIS: Lot levies have been used in two other cases to address specific servicing deficiencies for the subdivisions. In both cases the value of the levies are less. In Cedar Point a $626 per lot charge relates to a small lift station within the development. In Drury Cove a $2,500 per unit charge relates to a larger sewage lift station and force main system. In the case of Maber and Somerville the improvements area is wide and the fair division between the City and future development is more of a concern. The request for revising the levy also highlights changes in the developer's cost, which were not anticipated. • When the RIA assistance was put in place for a maximum of $6,000 per lot piping material typically resulted in 50% - 60% of that amount with the remainder in most cases going toward rock removal. In their first phase 87% was piping material leaving $777 per lot for rock removal. • Quotes for blasting have been sought by the developers, and based on past experience in the development (conglomerate rock in all places) costs have gone up 50 % of work in the first phase. While they do recognize that other developers are also experiencing increased costs, they are the only ones in the Millidgeville area paying a $4,428 levy. The City does on the other hand have a reasonable expectation that it should recover some of the cost associated with the services improvements in the area. While our approach in 2004 resulted in a large levy, if our goal was to only recover a portion of the costs, the levy would be reduced. We did however anticipate a large number of units contributing, which kept the levy to a reasonable level. Report to Common Council July 28, 2006 Page 3 In conclusion, the levy was calculated using an appropriate policy base. The developer did agree to the amount. The development is still in its early stages. Costs are going up but so are lot prices. At this time change to the levy can not be recommended. RECOMMENDATION: That no change be made to the $4,428 levy provision. Respectfully submitted, Jim R. Baird, MCIP Commissioner Planning and Development Terrence Totten, F.C.A. City Manager JRB /mmf M & C — 2006 -213 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Lease of Space Stall No. 4 - The City Market BACKGROUND: Council at it's meeting of June 19, 2006 resolved to release Annette and Norbert Prybbiski (Nougatine &Chocolat) from their lease of Stall. No. 4 at the City Market effective June 31, 2006. In that Report to Council staff intimated that an alternate use and corresponding leasing opportunity would be forthcoming in the near term. This report will provide the details of the anticipated opportunity and ultimately seek Council's support to enter into a lease with the prospective tenant. Mr. Drummond, acting in his capacity as Deputy Market Clerk had been courting Olivier Soapery (Olivier). Olivier is Canada's Official Soap Economuseum, a soap boutique which retails traditionally crafted soap products. These soaps and creams are said to be the world's most natural skin care products. As an Economuseum, Olivier offers more than simply products for retail sale; they provide an experience through education, interpretation and light entertainment. Their parent store in St.- Anne -de -Kent, NB is the most visited bus tour stop in the Province and has won a National award for Tourism Excellence. At the time of Nougatine and Chocolat's release it was envisioned Olivier would perhaps license space in the Market bench program until the right stall space came available. Report to Common Council Page 2 July 28, 2006 The proposed Lease (attached) is highlighted by a term of five years with rents which range from $24.50 psf in year one to $47.00 psf in the fifth year. The tenant has been granted a 2 month rent free period to offset store fit up and equipment costs. The landlord will incur some construction costs to prepare the space for tenant's work; however these costs will be largely offset by the sale of fixtures remaining in the space from prior terminated tenancies. Council's attention should also be drawn to Clause 7.02 f(1) of the Lease; this clause addresses the issue of allergen impact experienced occasionally by customers when shopping in the vicinity of fragranced products such as those offered by Olivier. Human sensitivities to the natural ingredients such as wildflowers exist. Olivier is aware of this issue and has a policy on the presentation and merchandising of these products if adverse reactions occur. Ultimately the tenant is prepared to remove any product line which creates significant issues. The tenant is world class and in keeping with its high standards proactively manages their retail environments. The Lessor has ultimate surety with the special clause that any such occurance will be addressed by the Lessee. The Olivier store will be its fourth in New Brunswick, this operation will be partially owned and operated by one of Olivier's employees, ensuring the retailer's expertise and customer accessible owner /operator tradition of the Market is upheld. The purpose of this report is to seek Council's concurrence to enter into a lease with "A Little Faith Inc." doing business as "Olivier Soapery" for space in the City Market. RECOMMENDATION: That The City of Saint John lease Stall "4" in the City Market to "A Little Faith Inc." upon the terms and conditions set out in the Lease submitted with M &C #2006 -213; and further 2. that the Mayor and Common Clerk execute the Lease. Respectfully submitted, Jim R. Baird, MCIP Terrence Totten, F.C.A Commissioner, Planning and Development City Manager Report to Common Council July 28, 2006 BI /mmf Attachment Page 3 Standard Forms of Conveyances Act, S.N.B. 1980, c. S -12, s.2 The parties to this lease are: The City of Saint John, having its City Hall at 15 Market Square, Saint John, New Brunswick, a body corporate by Royal Charter, confirmed and amended by Acts of the Legislative Assembly of the Province of New Brunswick, the "Lessor" - and — A Little Faith Inc., having its registered office at 26 Forest Road, Rothesay, New Brunswick, E2H 1 B5, a duly incorporated company, the "Lessee" The "Rules and Regulations" attached hereto as Schedule "D ", and the form attached hereto as Schedule "D -1" form part of this Lease. The Lessor leases to the Lessee the premises described in Schedule "A" attached hereto on the following conditions: Duration: Date of Commencement: Date of Termination: Payment Dates: Place of Payment: five (5) years August 1, 2006 July 31, 2011 First day of each and every month during the term hereof Cashier's Office City Hall Saint John, NB This lease contains the covenants and conditions which are attached and set out in Schedule "C" attached hereto. DATED August , 2006. SIGNED, SEALED & DELIVERED ) THE CITY OF SAINT JOHN In the presence of: ) N.M. McFarlane, Mayor J. Patrick Woods, Common Clerk Common Council Resolution: July 31, 2006. A LITTLE FAITH INC. Per.—-- Shawn 1c ett GROUND FLOOR (LEASEABLE AREA 35 �.f•) SCALE: 1/4"=V-0" LEASE -PLAN for (COPIES: 8 1/2" x 14" ARE NOT TO SCALE) LEASE FOR STALL SPACE CITY MARKET A LITTLE FAITH INC. SCHEDULE "C" ARTICLE I DEFINITIONS 1.01 Definitions In this lease: a) "Additional Rent" means all and any monies required to be paid by the Lessee to the Lessor under or pursuant to the terms of this Lease, save only for Gross Rent; b) "Architect" shall mean the architect from time to time named by the Lessor or at the option of the Lessor, the Lessor's general contractor. Any certificate provided by the Architect and called for by the terms of this Lease shall be final and binding on the parties hereto; c) "Commencement Date" means a date determined in accordance with the provisions of Section 2.03; d) "Common Areas" means those areas, facilities, utilities, improvements, equipment and installations in the City Market which from time to time are not designated or intended by the Lessor to be leased to tenants of the City Market, and those areas, facilities, utilities, improvements, equipment and installations which serve or are for the benefit of the City Market whether or not located in, adjacent to or near the City Market and which are designated from time to time by the Lessor as part of the Common Areas. Without limiting the generality of the foregoing, Common Areas includes all parking areas, all entrances and exits thereto and all structural elements thereof, access roads, truck courts, driveways, truckways, delivery passages, the roof, exterior weather walls, exterior and interior structural elements and bearing walls in the building and improvements comprising the City Market, package pick -up stations, loading and related areas, pedestrian stairways, ramps, electrical, telephone, meter, valve, mechanical, mail storage service and janitor rooms and galleries, fire prevention, security and communication systems, columns, pipes, electrical, plumbing, drainage, any central system for the provision of heating, ventilating or air conditioning to leaseable premises or any enclosed Common Areas and all other installations, equipment or services located therein or related thereto as well as the structures housing installations, including but not limited to all open and enclosed malls, courts and arcades, public seating and service areas, corridors, furniture, first aid and/or information stations, auditoria, conference rooms, nurseries, childcare play areas and related kitchen and storage facilities, escalators, elevators, public washrooms, music systems and any atrium seating/food court; . e) "C.P.I." means the Consumer Price Index (All Items) for Canada (or any index published in substitution for the Consumer Price Index or any other replacement index reasonably designated by the Lessor, if it is no longer published) published by Statistics Canada (or by any successor thereof or any other governmental agency, including a provincial agency); f) "Atrium Seating/Food Court" means those portions of the Common Areas designated by the Lessor from time to time for use in support of the operations of any group of premises providing quick food service to customers of the City Market and includes, without limiting the generality of the foregoing, public table and seating areas, waste collection facilities and other areas, facilities and equipment intended for such use; g) "Gross Receipts" means the total of all gross sales and receipts from all business conducted upon or from the Leased Premises, whether or not by the Lessee, and whether for cash, cheques, credit, charge account, exchange or otherwise, and shall include, but not be limited to, amounts received or receivable from the sale of goods or services and the amount of all orders taken or received at the Leased Premises regardless of where they are filled, whether such sales be made at a sales desk or counter, over the telephone or by any vending device. Interest, instalment, finance charges and deposits will be included, and bank or collection agency charges and uncollectible amount or bad debts t— A.A-. *Ari a rreriit nr instalment sale will be considered as a sale for the full i. sales for which the customer has received a refund, provided tnat the ongtnat sale was included in Gross Receipts; ii. sales of merchandise in exchange for returned merchandise, but only to the extent the original sale of the returned merchandise was included in Gross Receipts; iii. HST and any other sales, use, excise or gross receipts tax directly on sales and collected from customers at the point of sale, provided that the amount thereof is added to the selling price and shown and/or collected as a separate item, and paid by the Lessee to such governmental authority; iv, delivery charges; v. transfers of merchandise between stores of the Lessee or returned to suppliers of the Lessee, but only if such transfer or return is not for the purpose of reducing Gross Receipts. h) "HST" means harmonized sales taxes, value -added taxes, multi -stage taxes, business transfer taxes or other similar taxes however they are characterized and any taxes in lieu thereof; i) "Hazardous Substances" means any contaminant, pollutant, dangerous substance, potentially dangerous substance, noxious substance, toxic substance, hazardous waste, flammable, explosive or radioactive material, urea formaldehyde foam insulation, asbestos, PCB's or any other substances or materials that are declared or defined to be hazardous, toxic, contaminants or pollutants in or pursuant to any applicable federal, provincial or municipal statute, by -law or regulation; j) "Lessor" includes the Lessor and its successors and assigns; k) "Lease" means this indenture of lease and includes any riders and schedules hereto and shall also include any agreements entered into which have the effect of amending this indenture from time to time; 1) "Leased Premises" means the premises leased to the Lessee as referred to and described in Section 2.01 hereof. Save as mentioned below, the boundaries of the Leased Premises shall extend from the top surface of the structural subfloor to the bottom surface of the structural ceiling. if the Leased Premises have no ceiling abutting the demising walls, but rather are open to the ceiling of the City Market building, the boundaries of the Leased. Premises extend from the top surface of the structural subfloor to the height of the demising walls; m) "Lease Year" shall mean a period of time, the first Lease Year commencing on the Commencement Date and ending on the 313t day of December in the calendar year of the Commencement Date. Thereafter Lease Years shall consist of consecutive periods of twelve calendar months ending in each case on December 31", save for the last Lease Year of the Term which shall terminate upon the expiration or earlier termination of this Lease, as the case may be; n) "Gross Rent" means the annual Gross Rent payable by the Lessee pursuant to Section 3.01; o) "Operating Costs" means the total cost and expense incurred in owning, operating, maintaining, managing and administering the City Market and the Common Areas, specifically including without limiting the generality of the foregoing, any capital or place of ownership taxes levied against the Lessor or any owners of the City Market on account of their interest in the City Market, in an amount equitably allocated to the City Market by the Lessor; gardening and landscaping charges; the cost and expenses of taking out the insurance described in Section 9.03; cleaning, snow removal, garbage and waste collection and disposal; lighting, electricity, public utilities, loud speakers, public address and musical broadcasting systems and any telephone answering service used in or serving the City Market, and the cost of electricity and maintenance for any signs designated by the Lessor as part of the Common Areas; policing, security, supervision and traffic control; salaries and benefits of all supervisory and other personnel employed in connection with the City Market and management office rent imputed to the City Market by the Lessor, acting reasonably; Management Fee, the cost of providing additional parking or other Common Areas for the benefit of the City Market, whether such costs be Taxes or other type of costs; the costs and expenses of environmental site rrviPws And investigations. removal and/or clean -up of Hazardous Substances from the Areas; accounting and audit fees incurred in the preparation of the statements required to be prepared and supplied by the Lessor under the terms of this Lease; heating, ventilating and air conditioning of the Common Areas; all repairs and replacements to and maintenance and operation of the City Market and the Common Areas; depreciation or amortization of the costs, including repair and replacement, of all maintenance and cleaning equipment, master utility meters, and all other fixtures, equipment, and facilities serving or comprising the City Market or the Common Areas; which are not charged fully in the Lease Year in which they are incurred, from the earlier of the date when the cost was incurred or the Commencement Date, at rates on the various items determined from time to time by the Lessor in accordance with sound accounting principles; p) "Proportionate Share" means a fraction, the numerator of which is the Rentable Area of the Leased Premises and the denominator of which is the Rentable Area of the City Market; q) "Rent" means all Gross Rent and Additional Rent payable pursuant to the terms of this Lease; r) "Rentable Area of the Leased Premises" means the area expressed in square feet of all floors of the Leased Premises measured from: i. the exterior face of all exterior walls, doors and windows; ii. the exterior face of all interior walls, doors and windows separating the Leased Premises from Common Areas; if any; and iii, the centre line of all interior walls separating the Leased Premises from adjoining leasable premises. The Rentable Area of the Leased Premises includes all interior space whether or not occupied by projections, structures or columns, structural or non - structural, and if the store front is recessed from the lease line, the area of such recess for all purposes lies within the Rentable Area of the Leased Premises. s) "Rentable Area of the City Market" means the area in square feet of all rentable premises in the City Market set aside for leasing by the Lessor from time to time, except for any occupancy as designated by the Lessor for which there is no Gross Rent payable. Provided however that the Lessor shall credit to Operating Costs any contributions received in respect of such Operating Costs from the occupants of any of the areas excluded from the Rentable Area of the City Market in accordance with this definition. Provided further that in determining the fraction that is the Lessee's Proportionate Share, if the Leased Premises consists of any of the foregoing excluded categories, the Rentable Area of that category will be included in the Rentable Area of the City Market; t) "Rules and Regulations" means the rules and regulations adopted and promulgated by the Lessor from time to time acting reasonably, including those listed on Schedule "D "; u) "City Market" means the lands and premises known by the civic address 47 Charlotte Street, Saint John, New Brunswick, as such lands and premises may be altered, expanded or reduced from time to time and the buildings, improvements, equipment and facilities erected thereon or situate from time to time therein; v) "Taxes" means all duties, real property taxes, charges, assessments and payments, from time to time levied, assessed or imposed upon the City Market or any part thereof or upon the Lessor by reason of its ownership of the City Market, by any taxing authority. Taxes shall also include any penalties, late payment or interest charges imposed by any municipality or other taxing authority as a result of the Lessee's late payments of any taxes or instalments thereof. For greater certainty "Taxes" shall exclude any penalties or interest incurred by the Lessor as a result of its failure to pay Taxes in a timely manner, except Taxes shall include any interest in respect of a deferral of payment in accordance with sound accounting practices if permitted by statute or pursuant to an agreement with the taxing authority; and (ii) income, profit or excess profits taxes of the Lessor; w) "Lessee" means the party named as Lessee in this Lease; and x) "Term" means the period referred to in Section 2.03. ARTICLE II GRANT, TERM AND INTENT 2.01 Leased Premises In consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the Lessee to be paid, observed and performed, the Lessor demises and leases to the Lessee and the Lessee leases from the Lessor, the Leased Premises. The Leased Premises are presently designated as Stall No. 4, are shown on Schedule "A" attached hereto and contain a Rentable Area of approximately Three Hundred Fifty Square Feet (350 R2). In the event the Leased Premises is re- measured the Lessee shall pay all rents based on a maximum square footage of Three Hundred Fifty Square Feet (350 ft2). 2.02 Use of Common Areas The use and occupation by the Lessee of the Leased Premises shall entitle the Lessee to the use in common with all others entitled thereto of the Common Areas, subject however, to the terms and conditions of this Lease and to reasonable rules and regulations for the use thereof as prescribed from time to time by the Landlord. 2.03 Term of Lease TO HAVE AND TO HOLD the Leased Premises for and during the term of Rive (5) years to be computed from August 1, 2006 and fully to be completed and ended on July 31, 2011 save as hereinafter provided for earlier termination. PROVIDED THAT if there is any Lessor's Work or Lessee's Work to be performed prior to the Lessee opening for business in the Leased Premises or the Leased Premises are occupied by a third party as of the date of this Lease, the Commencement Date shall be the earlier of a) forty -five (45) days after the Lessor has delivered vacant possession of the Leased Premises to the Lessee notwithstanding that the Lessor may still, during such forty -rive (45) day period, be completing its work; or b) the opening by the Lessee to the public of its business in the Leased Premises. Notwithstanding any change in the Commencement Date calculated in accordance with the preceding provisions hereof, the Terms shall expire on the date set for such expiry in the first paragraph of this Section 2.03, subject always to earlier termination as provided for in this Lease. PROVIDED THAT upon the Lessor or its Architect giving notice to the Lessee that the Leased Premises are available for the commencement of the Lessee's Work, the Lessee shall immediately take possession of the Leased Premises and shall occupy same for the purpose of fixturing and installing its inventory, at its own risk, for a period of ** ( * *) days after receipt of such notice or until the Lessee opens for business to the public in the Leased Premises, free of the payment of Gross Rent, and Additional Rent save for the obligation of the Lessee to pay for all utility charges used by the Lessee or consumed in the Leased Premises during the period of such fixturing, and shall during the period from the giving of such notice until the Commencement Date be a tenant in the Leased Premises subject to the same covenants and agreements as are contained in this Lease, mutatis mutandis. FURTHER PROVIDED THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY, if the Lessor is unable to deliver vacant possession of the Leased Premises to the Lessee for any reason, including but not limited to the holding over or retention of possession of any other Iessee or occupant, or the lack of completion of any repairs, improvements or alterations required to be completed before the Lessee's occupancy of the Leased Premises, then the time for commencement of the Term shall be extended to correspond with the period of delay and the Lessee shall not be entitled to any abatement or diminution of Rent (except that Rent shall not commence to be payable until possession of the Leased Premises is given by the Lessor to the Lessee) nor shall the validity of this Lease or the parties' respective obligations hereunder be affected. However, if the Lessor does not give vacant possession of the Leased Premises to the Lessee within six (6) months of the date of this Lease, then the Lessor may, at is option, terminate this Lease by written notice to the Lessee and in such event this Lease shall be null and void and of no effect whatsoever. Any deposit paid by the Lessee to the Lessor shall be returned without interest or deduction, and neither party shall have any further liability to the other. Forthwith, upon the Commencement Date being determined in accordance with the foregoing, the Lessee shall execute an acknowledgement of same on Lessor's usual form. The Lessee shall pay all Gross Rent and Additional Rent calculated on a per diem basis, tram the end of the rent -free period to the last day of the month in which the Commencement Date occurs and thereafter all payments of Rent shall be made on the first day of each month throughout the Term unless otherwise specified herein. 2.04 Option to Renew The Lessee shall have the option to renew this Lease for a further one (1) term of five (5) years at the then prevailing market rate by providing written notice of its intention to renew to the Lessor no later than six (6) months prior to the expiration of the Initial Term. In the event that the Lessor and the Lessee do not agree on the then prevailing market rate, such rate may be determined by a single arbitrator appointed by the agreement between the Lessor and the Lessee or pursuant to the Arbitration 4ci. ARTICLE III RENT AND DEPOSIT 3.01 Gross Rent The Lessee shall pay annual Gross Rent to the average amount of Thirty Five Dollars ($35.00) per square foot of Leased Premises. The Gross Rent shall be paid in equal monthly instalments, monthly in advance. According to the following schedule: Year 1 - $714.58 monthly ($24.50 per square foot) Year 2 - $933.33 monthly ($32.00 per square foot) Year 3 - $933.33 monthly ($32.00 per square foot) Year 4 - $1,252.08 monthly ($39.50 per square foot) Year 5 - $1,370.83 monthly ($47.00 per square foot) 3.02 Reports by Lessee a) The Lessee shall submit to the Lessor on or before the 10`h day following the end of each calendar month during the Term and including the 10`h day of the month following the end of the Term, at the place then fixed for the payment of Rent, a written statement signed by the Lessee showing the amount of Gross Receipts for the preceding month (and fractional month, if any) and the amount of Gross Receipts for all preceding months of such Lease Year; b) On or before the 60 day following the end of each Lease Year (including the last Lease Year of the Term) the Lessee shall submit to the Lessor a statement in such form, style and scope as the Lessor reasonably determines, showing the amount of Gross Receipts during the preceding Lease Year, which statement shall be duly certified to be correct by the Lessee. The Lessee will not change its procedure relating to any aspect of its reporting of Gross Receipts without the prior written consent of the Lessor, which consent shall not be unreasonably withheld. c) In addition to any other reports required by this Section 3.02, the Lessee shall also supply to the Lessor a statement of the approximate amount of Gross Receipts during any particular week in respect of which such a statement is requested by the Lessor, it being acknowledged that such weekly statement will be requested during weeks when promotions or other special activities are being carried on in the City Market. 3.03 Audit (Mandatory when rent calculation based on Lessee's sales) At its option, the Lessor may cause, at any reasonable time upon five (5) days' prior written notice to the Lessee, a complete audit to be made of the Lessee's entire business affairs and records relating to the Leased Premises for the period covered by any statement issued by the Lessee pursuant to Section 3.02. Any information obtained by the Lessor as a result of such audit shall be held in strict confidence by the Lessor. 3.04 Rent Past Due If the Lessee fails to pay, when the same is due and payable, any Gross Rent, Additional Rent or other amount payable by the Lessee under this Lease, such unpaid amounts shall bear interest from the due date thereof to the date of payment, compounded monthly at the rate equal to four (4) percentage points in excess of the Prime Rate. 3.05 Deposit The Lessor acknowledges receipt of Zero Dollars ($00.00) which it will apply towards the payment of Gross Rent for the first and last months of the Term except that the Lessor may apply all or part of the amount retained for application towards the last month's Gross Rent as compensation for any loss or damage arising from the breach by the Lessee of any provisions of this Lease. This right will not be construed to limit the Lessor's other rights under this Lease or at law or to limit the amount recoverable by the Lessor for damages in respect of breaches by the Lessee of this Lease. If the Lessor uses all or part of the deposit for the last month's Gross Rent as provided above, the Lessee will, upon notification by the Lessor, pay to the Lessor the amount required to reimburse it for the amounts so applied. The Lessor will not be required to pay interest to the Lessee on any of the amounts paid to the Lessor or retained by it under this section. The Lessor may deliver the aforesaid deposit to any purchaser of the Lessor's interest in the City Market or any part thereof, whereupon the Lessor will immediately be discharged from any further liability with respect to the deposit. The Lessee will not assign or encumber its interest in the deposit except in connection with a permitted Transfer, in which case the Lessee's interest in the deposit will be deemed to have been assigned to the permitted Transferee as of the date of the Transfer. 3.06 Pre - Authorized Payments /Postdated Cheques The Lessee may participate in a pre - authorized payment plan whereby the Lessor will be authorized to debit the Lessee's bank account each month from time to time during each Lease Year in an amount equal to the Gross Rent and Additional Rent payable on a monthly basis, and, if applicable, generally any amount payable provisionally pursuant to the provisions of this Lease on an estimated basis. In the event the Lessee opts to participate in the pre - authorized payment plan, the Lessee shall sign a form of application which is the same or similar to Schedule "D -I ", to give full force and effect to the foregoing within five (5) days of presentation. In lieu of the pre - authorized payment plan referred to above, the Lessor shall be entitled to require the Lessee to present at the beginning of each Lease Year a series of monthly postdated cheques for each such Lease Year for the aggregate of the monthly payments of Gross Rent payable on a monthly basis, and, if applicable, any amount payable provisionally pursuant to the provisions of this Lease on an estimated basis. ARTICLE IV TAXES 4.01 Taxes Payable by the Lessor The Lessor shall pay all Taxes which are levied, rated, charged or assessed against the City Market or any part thereof subject always to the provisions of this Lease regarding payment of Taxes by the Lessee. However, the Lessor may defer payment of any such Taxes or defer compliance with any statute, law, by -law, regulation or ordinance in connection with the levying of any such Taxes in each case to the fullest extent permitted by law, so long as it diligently prosecutes any contest or appeal of any such Taxes. 4.02 Taxes Payable by Lessee a) The Lessee shall during the Term pay, without any deduction, abatement or set -off whatsoever, all Taxes levied, laid or assessed on or against the Leased Premises; b) In the case of assessments for local improvements or betterments which are assessed or imposed during the term and which may by law be payable in instalments, the Lessee shall only be obligated to pay such instalments as same fall due during the Term, together with interest on deferred payments; c) In any suit or proceeding of any kind or nature arising or growing out of the failure of the Lessee to keep any covenant contained in this Article, the certificate or receipt of the department, officer or bureau charged with collection of the Taxes, showing that the tax, assessment or other charge affecting the Leased Premises is due and payable or has been paid, shall be prima facia evidence that such tax, assessment or other charge was due and payable as a lien or charge against the Leased Premises or that it has been paid as such by the Lessor; d) The Lessee, if allowed by the taxing authority, shall have the right to contest or review by legal proceedings or in such manner as the Lessee in its opinion shall deem advisable (which proceedings or other steps taken by the Lessee shall be conducted diligently at its own expense and free of expense to the Lessor) any and all Taxes levied, assessed or imposed upon or against the Leased Premises or Taxes in lieu thereof required to be paid by the Lessee hereunder. No such contest shall defer or suspend the Lessee's obligations to pay the Taxes as herein provided pending the contest, but if by law it is necessary that such navment be suspended to preserve or perfect the Lessee's contest, then the contest held by the Lessor as an indemnity to pay such Taxes upon conclusion of the contest and all costs thereof that may be imposed upon the Lessor or the Leased Premises. Any costs associated with an appeal undertaken by the Lessor, the Lessee shall pay their proportionate share of such costs; e) The Lessee upon request of the Lessor will promptly exhibit to the Lessor all paid bills for Taxes which bills after inspection by the Lessor shall be returned to the Lessee. 4.03 HST Payable by Lessee The Lessee shall pay to the Lessor all HST on Rent and any other HST imposed by the applicable legislation on the Lessor or Lessee with respect to this Lease, in the manner and at the times required by the applicable legislation. Such amounts are not consideration for the rental of space or the provision by the Lessor of any service under this Lease, but shall be deemed to be Rent and the Lessor shall have all of the same remedies for and rights of recovery of such amounts as it has for recovery of Rent under this Lease. If a deposit is forfeited to the Lessor, or an amount becomes payable to the Lessor due to a default or as consideration for a modification of this Lease, and the applicable legislation deems a part of the deposit or amount to include HST, the deposit or amount will be increased and the increase paid by the Lessee so that the Lessor will receive the full amount of the forfeited deposit or other amount payable without encroachment by any deemed HST portion. 4.04 Business Taxes and Other Taxes of Lessee The Lessee shall pay to the lawful taxing authorities, when the same becomes due and payable: a) all taxes, rates, duties, assessments and other charges that are levied, rated, charged or assessed against or in respect of all improvements, equipment and facilities of the Lessee on or in the Leased Premises; and b) every tax and license fee which is levied, rated, charged or assessed against or in respect of any business carried on in the Leased Premises or in respect of the use or occupancy thereof whether in any case any such taxes, rates, duties, assessments or license fees are rated, charged or assessed by any federal, provincial, municipal or other body. ARTICLE V UTILITIES 5.01 Utilities The Lessee shall pay all utilities directly to the utility company, on a metered basis. In the event that a Lessee leases cooler space with the Leased Premises, the Lessee shall pay to the Lessor the Lessee's proportionate share of any utility consumed. ARTICLE VI MERCHANTS' ASSOCIATION 6.01 Merchants' Association If and when an association or corporation of merchants or lessees (the "Association ") is formed comprising tenants of the City Market, the Lessee shall forthwith become a member of such Association or if such an Association has already been formed, the Lessee shall forthwith become a member thereof and the Lessee shall retain its membership in such Association during the entire Term and shall abide by all rules, regulations, by -laws, decisions, directions, dues and assessments of the Association. Such Association shall in no way affect the rights of the Lessor and any by -laws, rules and regulations of such Association shall at all times be subject to the prior approval of the Lessor. 6.02 Promotion Fund The Lessee shall pay to the Lessor an amount equal to 6% of annual Gross Rent to be paid in twelve (12) monthly instalments each instalment payable on the 151 day of each month during the Term. ARTICLE VII CONDUCT OF BUSINESS BY TENANT 7.01 Use of Leased Premises a) The Leased Premises shall be used continuously, actively and diligently for the sole purpose of selling all products associated with handmade soap and body products, including soaps, lotions, creams, spa items, bath related products, candles, local art, souvenir items and artistic items, raw materials, Olive oil, Cocoa butter, Beeswax, Almond oil, etc. The Lessee will not use or permit or suffer the use of the Leased Premises or any part thereof for any other business or purpose. In connection with the business to be conducted by the Lessee on the Leased Premises, the Lessee shall only use the advertised name "Olivier Soapery" and will not change the advertised name of the business to be operated in the Leased Premises without the prior written consent of the Lessor. The Lessee shall not introduce new product lines, or offer new services to its customers without first obtaining the written consent of the Lessor. The Lessee acknowledges that it would be reasonable for the Lessor to withhold its consent if the introduction by the Lessee of such product line or service would compete with the business of other tenants in the City Market or infringe on exclusive covenants granted by the Lessor. Unless otherwise specifically set out in this Lease to the contrary, nothing contained in this Lease shall: (i) confer upon the Lessee the exclusive right to sell or provide in the City Market any of the products or services permitted to be sold or provided from the Leased Premises pursuant to this Section 7.01; nor (ii) prevent. the Lessor from leasing any other premises in the City Market to any other tenant(s) carrying on a business which is similar in whole or in part to the business permitted to be carved on from the Leased Premises pursuant to this Section 7.01. b) The Lessee acknowledges that its continued occupancy of the Leased Premises and the regular conduct of business therein arc of utmost importance to neighbouring tenants and to the Lessor in the renting of space in the City Market, the renewal of other leases therein, the efficient and economic supply of services and utilities, and in the character and quality of other tenants in the City Market. The Lessee therefore covenants and agrees that throughout the Term it will occupy the entire Leased Premises, comply strictly with the provisions of Section 7.01 and not vacate or abandon the Leased Premises at any time during the Term. The Lessee acknowledges that the Lessor is executing this Lease in reliance thereupon and that the same is a material element inducing the Lessor to execute this Lease. The Lessee further agrees that if it vacates or abandons the Leased Premises or fails to so conduct its business therein, or uses or permits or suffers the use of the Leased Premises for any purpose not specifically herein authorized and allowed, the Lessee will be in breach of the Lessee's obligations under the Lease, and then, without constituting a waiver of the Lessee's obligations or limiting the Lessor's remedies under this Lease, all Rent reserved in this Lease will immediately become due and payable to the Lessor unless guaranteed to the satisfaction of the Lessor. The Lessor will have the right, without prejudice to any other rights which it may have under this Lease or at law, to obtain an injunction requiring the Lessee to comply with the provisions of this Section 7.01(b). 7.02 Conduct and Operation of Business The Lessee shall occupy the Leased Premises from and after the Commencement Date and thereafter shall conduct continuously and actively the business set out in Section 7.01, in the whole of the Leased Premises. In the conduct of the Lessee's business pursuant to this Lease the Lessee shall: a) operate its business with due diligence and efficiency and maintain an adequate staff to properly serve all customers; own, install and keep in good order and condition free from liens or rights of third parties, fixtures and equipment of first class quality; and carry at all times such stock of goods and merchandise of such size, character and quality as will produce the maximum volume of sales from the Leased Premises consistent with good business practices; b) conduct its business in the Leased Premises during such hours and on such days as the Lessor from time to time requires or permits and at no other time. However the Lessee is not required or permitted to carry on its business during any period prohibited by any law regulating the hours of business. If the Lessee fails to open on the Commencement Date Lessor upon demand as liquidated damages and not as a penalty, an amount equal to two hundred fifty dollars ($250.00) per day for each and every day that the Lessee is in default. When not open for business the security of the Leased Premises is the sole responsibility of the Lessee; c) keep displays of merchandise in the display windows (if any) of the Leased Premises, and keep the display windows and signs (if any) in the Leased Premises well -lit during the hours the Lessor designates from time to time, acting reasonably; d) stock in the Leased Premises only merchandise the Lessee intends to offer for retail sale from the Leased Premises, and not use any portion of the Leased Premises for office, clerical or other non - selling purposes except minor parts reasonably required for the Lessee's business in the Leased Premises; e) abide by all rules and regulations and general policies formulated by the Lessor, acting reasonably, from time to time relating to the delivery of goods to the Leased Premises; f) not allow or cause to be committed any waste upon or damage to the Leased Premises or any nuisance or other act or thing which disturbs the quiet enjoyment of any other Iessee in the City Market or which unreasonably disturbs or interferes with or annoys any third party, or which may damage the City Market; fl) at all times contain within the Leased Premises any and all odours, scents, aromas, smells, fragrances, perfumes and allergens emanating from its product lines, goods, merchandise and stock -in- trade; g) not allow or cause to be done any act in or about the Common Areas or the City Market which in the Lessor's opinion, acting reasonably, hinders or interrupts the City Market's flow of traffic in any way, obstructs the free movement or parties doing business in the City Market; h) not allow or cause business to be solicited in any part of the City Market other than the Leased Premises, nor display any merchandise outside the Leased Premises at any time without the prior written consent of the Lessor; i) use the name designated for the City Market by the Lessor from time to time and all insignia or other identifying names and marks designated by the Lessor in connection with the advertising of the business conducted in the Leased Premises. Notwithstanding the foregoing the Lessee will not acquire any rights in such names, marks or insignia and upon the Lessor's request the Lessee will abandon or assign to the Lessor any such rights which the Lessee may acquire by operation of law and will promptly execute any documents required by the Lessor to give effect to this subparagraph (i); j) not install or allow in the Leased Premises any transmitter device nor erect any aerial on the roof of any building forming part of the City Market or on any exterior walls of the Leased Premises or in any of the Common Areas. Any such installation shall be subject to removal by the Lessor without notice at any time and such removal shall be done and all damage as a result thereof shall be made good, in each case, at the cost of the Lessee, payable as Additional Rent on demand; k) not use any travelling or flashing lights or signs or any loudspeakers, television, phonograph, radio or other audiovisual or mechanical devices in a manner so that they can be heard or seen outside of the Leased Premises without the prior written consent of the Lessor. If the Lessee uses any such equipment without receiving the prior written consent of the Lessor, the Lessor shall be entitled to remove such equipment without notice at any time and such removal shall be done and all damage as a result thereof shall be made good, in each case, at the cost of the Lessee, payable as Additional Rent on demand; 1) not install or allow in the Leased Premises any equipment which will exceed or overload the capacity of any utility, electrical or mechanical facilities in the Leased Premises or of which the Lessor has not approved. If the Lessee requires additional utility, electrical or mechanical facilities, the Lessor may in its sole discretion if they are available elect to install them at the Lessee's expense and in accordance with plans and specifications to be approved in advance in writing by the Lessor; m) not bring upon the Leased Premises any machinery, equipment, article or thing that by reason of its weight, size or use, might in the opinion of the Lessor, acting reasonably, damage the Leased Premises or overload the floors of the Leased. Premises. Any such shall be made good, in each case, at the cost of the Lessee, payable as Additional Rent on demand; n) . observe and comply with all federal, provincial or municipal laws pertaining to or affecting the Leased Premises, the Lessee's use of the Leased Premises or the conduct of any business in the Leased Premises, or the making of any repairs, replacements, alterations, additions, changes, substitutions or improvements of or to the Leased Premises, and the regulations of any insurance underwriters in respect of the insurance maintained by the Lessor in respect of the City Market, and carry out all modifications to the Leased Premises and the Lessee's conduct of business or in use of the Leased Premises which may be required by any such authorities. 7.03 Prohibited Activities a) The Lessee acknowledges that it is only one of many tenants in the City Market and that therefore the Lessee shall conduct its business in the Leased Premises in a manner consistent with the best interests of the City Market as a whole; b) The Lessor shall have the right to cause the Lessee to discontinue and the Lessee shall thereupon forthwith discontinue the sale of any item, merchandise, commodity or the supply of any service or the carrying on of any business, any of which is either prohibited by this Section 7.03 or which the Lessor, acting reasonably, determines is not directly related to the business set out in Section 7.01. The Lessee will not allow or cause the use of any part of the Leased Premises for any of the following businesses or activities: i. the sale of secondhand goods or surplus articles, insurance salvage stock, fire sale stock or bankruptcy stock; ii. the sale of goods, except as may be specifically permitted by the provisions of Section 7.01; iii, an auction, bulk sale (other than a bulk sale made to an assignee or sublessee pursuant to a permitted assignment or subletting hereunder), liquidation sale, "going out of business" or bankruptcy sale, or warehouse sale; iv. any advertising or selling procedures which would, or any sale or business conduct or practice which would, because of the merchandising methods or quality of operation likely to be used, in either case in the Lessor's opinion, tend to lower the character of the City Market or harm or tend to harm the business or reputation of the Lessor or reflect unfavourably on the City Market, the Lessor or other tenants in the City Market or tend to confuse, deceive, mislead or be fraudulent to the public; or v. a mail order business or a department store, junior department store or variety store. 7.04 Hazardous Substances The Tenant covenants and agrees to utilize the Leased Premises and operate its business in a manner so that no part of the Leased Premises or surrounding lands are used to generate, manufacture, refine, treat, transport, store, handle, dispose of, transfer, produce or process any Hazardous Substance, except in strict compliance with all applicable federal, provincial and municipal statutes, by -laws and regulations, including, without limitation, environmental, land use and occupational and health and safety laws, regulations, requirements, permits, statutes, by -laws and regulations. Further the Lessee hereby covenants and agrees to indemnify and save harmless the Lessor and those for whom the Lessor is in law responsible from any and all loses, costs, claims, damages, liabilities, expenses or injuries caused or contributed to by any Hazardous Substances which are at any time located, stored or incorporated in any part of the Leased Premises. The Lessee hereby agrees that the Lessor or its authorized representatives shall have the right at the Lessee's expense, payable as Additional Rent within fifteen (15) days of receipt of an invoice therefor, to conduct such environmental site reviews and investigations as it may deem necessary for the purpose of ensuring compliance with this Section 7.04. The Lessee's obligations pursuant to this Section 7.04 shall survive the expiration or earlier termination of the Term. ARTICLE VIII FIXTURES, ALTERATIONS AND REPAIRS AND LESSOR'S CONTROL OF CITY MARKET 8.01 Installations by the Lessee All equipment, fixtures and improvements installed by the Lessee in the Leased Premises shall be new or completely reconditioned. The Lessee shall not make any alterations, additions or improvements or install or cause to be installed any trade fixtures, exterior signs, floor covering, interior or exterior lighting, plumbing fixtures, shades or awnings or make any changes to the store front without first obtaining the Lessor's written approval and consent. The Lessee shall present to the Lessor plans and specifications in form, content and such detail as the Lessor may reasonably require for such work at the time approval is sought. The Lessee covenants that any work that may be done in respect of the Leased Premises by or on behalf of the Lessee shall be done in such a manner as not to conflict or interfere with any work being done or about to be done by the Lessor in or about the City Market, whether such conflict or interference shall arise in relation to labour unions or otherwise and the Lessee shall obtain all requisite permits, licenses and inspections in respect of any such work done by or on the Lessee's behalf. Notwithstanding anything herein contained, the Lessee shall make no alterations, additions or improvements that are of a structural nature or that would lessen the value or Rentable Area of the Leased Premises or the City Market, or would interfere with the usage of the Common Areas. All alterations, decorations, additions and improvements made by the Lessee or made by the Lessor on the Lessee's behalf by agreement under this Lease shall immediately upon installation or affixation become the property of the Lessor without compensation therefor to the Lessee, but the Lessor shall be under no obligation to repair, maintain or insure the alterations, decorations, additions or improvements. Such alterations, decorations, additions and improvements shall not be removed from the Leased Premises without prior consent in writing from the Lessor. Upon expiration of this Lease, the Lessee shall, at the option of the Lessor, remove all trade fixtures and personal property and shall remove all such alterations, decorations, additions and improvements and restore the Leased Premises as required by the Lessor. 8.01(a) The Lessee may install in the Leased Premises a gas oven, microwave and convection ovens. The Lessee may, in accordance with the prior written consent of the Lessor which will not be unreasonably withheld, re- surface the floors and walls of the Demised Premises. 8.02 Maintenance and Repair by the Lessee The Lessee will at all times keep the Leased Premises (including exterior entrances and all glass and show windows) and all partitions, doors, fixtures, equipment and appurtenances thereof (including lighting, heating and plumbing fixtures, and the electrical and mechanical systems) in good order, condition and repair (including periodic painting or redecorating and preventative maintenance as determined by the Lessor and including such repairs or replacements as are required to keep the Leased Premises in good repair and condition). All aforesaid maintenance, repairs, restorations and replacements shall be in quality and class equal to the original work or installations. 8.03 Signs, Awnings, Canopies The Lessee will not place or suffer to be placed or maintained on any exterior door, wall or window of the Leased Premises any sign, awning or canopy or advertising matter or other thing of any kind, and will not place or maintain any decoration, lettering or advertising matter on the glass of any window or door of the Leased Premises without first obtaining the Lessor's written approval and consent. The Lessee further agrees to maintain such sign, awning, canopy, decoration, lettering, advertising matter or other thing as may be approved in good condition and repair at all times, and in addition to the foregoing, the Lessee shall maintain any signs or displays of its goods or wares which may be seen from the exterior of the Leased Premises in a manner which is in keeping with the character of the City Market of which the Leased Premises form a part and which is designed to enhance the business of the Lessee. 8.04 Surrender of Leased Premises Subject to Article 10.01, the Lessee will leave the Leased Premises in good repair, reasonable wear and tear only excepted. Without limiting the generality of the foregoing, at the expiration or earlier termination of the Term the Lessee shall surrender the Leased Premises in the same condition as the Leased Premises were in upon delivery of possession thereto under this Lease, reasonable wear and tear only excepted, and shall surrender all keys for the Leased Premises to the Landlord at the place then fixed for +t— —,.,,a.,t of Rrnt mid shall inform the Lessor of all combinations on locks, safes and vaults, if any, in otherwise disposed of by the Lessor without notice or obligation to compensate the Lessee or to account therefor. The Lessee's obligations to observe or perform this covenant shall survive the expiration or earlier termination of the Term of this Lease. 8.05 Lessee to Discharge all Liens The Lessee will ensure that no construction or other lien or charge, or notice thereof, is registered or filed against: a) the City Market or any part of it; or b) the Lessee's interest in the Leased Premises or any of the leasehold improvements in the Leased Premises. by any person claiming by, through, under or against the Lessee or its contractors or subcontractors. If such a lien or charge or notice thereof is registered or filed and the Lessee fails to discharge it within five (5) days after written notice from the Lessor, the Lessor may discharge it by paying the amount claimed to be due into court or directly to the claimant and the Lessee will pay to the Lessor as Additional Rent on demand all costs (including legal fees) incurred by the Lessor in connection therewith, together with an administrative overhead charge of fifteen percent (15 %) thereon. 8.06 Rules and Regulations The Lessee will comply with the Rules and Regulations. The Lessor reserves the right from time to time to amend or supplement the Rules and Regulations. Notice of such amendments and supplements, if any, shall be given to the Lessee, and the Lessee agrees thereupon to comply with and observe all such amendments and supplements, provided that no Rule or Regulation shall contradict any provision of this Lease. The Lessor shall not be responsible to the Lessee for non - observance or violation of any of the provisions of such Rules and Regulations by any other tenant of the City Market or of the terms of any other lease of premises in the City Market and the Lessor shall be under no obligation to enforce any such provisions. All Rules and Regulations shall be enforced against the Lessee in a non - discriminatory manner. 8.07 Maintenance and Repair by the Lessor The Lessor shall, subject to the other provisions of this Lease, maintain and repair or cause to be maintained and repaired, the structure of the City Market, including without limitation, the foundations, exterior weather walls, subfloor, roof, bearing walls and structural columns and beams of the City Market. If, however, the Lessor is required to maintain or repair any structural portions or any other portion of the Leased Premises or the City Market by reason of the negligent acts or omissions of the Lessee, its employees, agents, invitees, suppliers, agents and servants of suppliers, licensees, concessionaires or subtenants, the Lessee shall pay on demand as Additional Rent, the Lessor's costs for making such maintenance or repairs, together with an administrative fee of fifteen percent (15 %) of such costs. 8.07(a) The Lessor will at the request of the Lessee remove the two (2) refrigerators and the freezer currently in the Demised Premises. The Lessor will repair the exterior window on the northern wall of Stall No. 4 and the northern wall between the top of the exterior window and the floor of the mezzanine space located above Stall No. 4. 8,08 Control of City Market by Lessor The City Market and the Common Areas are at all times subject to the exclusive control and management of the Lessor. Without limiting the generality of the foregoing, the Lessor has the right in its control, management and operation of the City Market and by the establishment of rules and regulations and general policies with respect to the operation of the City Market or any part thereof at all times throughout the Term to construct, maintain and operate lighting facilities and heating, ventilating and air conditioning systems; provide supervision and policing services for the City Market; close all or any portion of the City Market to such extent as may in the opinion of the Lessor's counsel be legally sufficient to prevent a dedication thereof or the accrual of any rights to any third party or the public; grant, modify and terminate easements or other agreements pertaining to the use and maintenance of all or any part of the City Market; obstruct or close off all or any part of the City Market for the purpose of maintenance, repair or construction, employ all personnel, including supervisory personnel and managers necessary for the operation, maintenance and control of the City Market; use any part of the Common Areas from time to time for merchandising, display, decorations, entertainment and structures designed for retail selling or special features or promotional activities; designate the areas and entrances and the times in, through and at which loading and unloading of goods shall be carried out; control, supervise and generally regulate the delivery or shipping of merchandise, supplies and fixtures to and from the Leased Premises, and other portions of the City Market; designate and specify the kind of container to be used for garbage and refuse in the manner and the times and places at which same is to be placed for collection (if the Lessor for the more efficient and Drover operation of the City Market provides or designates a commercial service for the location, arrangement or use of the City Market. or any part thereof, construct other buttaings or improvements in the City Market and make changes to any part thereof; construct other buildings or improvements in the City Market and make changes to any part of the City Market; and do and perform such other acts in and to the City Market as in the use of good business judgment the Lessor determines to be advisable for the more efficient and proper operation of the City Market. Notwithstanding anything to the contrary, if as a result of the exercise by the Lessor of any of its rights as set out in this Section 8.08, the Common Areas are diminished or altered in any manner whatsoever, the Lessor is not subject to any liability nor is the Lessee entitled to any compensation or diminution or abatement of Rent nor is any alteration or diminution of the Common Areas deemed constructive or actual eviction, or a breach of any covenant for quiet enjoyment contained in this Lease. 8.09 Lessor's Right to Enter Leased Premises a) It is not a re -entry or a breach of quiet enjoyment if the Lessor or its authorized representatives enter the Leased Premises at reasonable times to: i. examine them; ii. make permitted or required repairs, alterations, improvements or additions to the Leased Premises (including the pipes, conduits, wiring, ducts, columns and other installations in the Leased Premises) or the City Market or adjacent property; or iii. excavate land adjacent or subjacent to the Leased Premises; in each case (to the extent reasonably possible in the circumstances) without unreasonably interfering with the Lessee's business operations in the Leased Premises, and the Lessor may take material into and on the Leased Premises for those purposes. Rent will not abate or be reduced while the repairs, alterations, improvements or additions are being made. The Lessor will take reasonable steps to minimize any interruption of business resulting from any entry. b) At any time during the Term, the Lessor may exhibit the Leased Premises to prospective purchasers and during the six (G) months prior to the expiration of the term of this Lease, the Lessor may exhibit the Leased Premises to prospective tenants and place upon the Leased Premises the usual notice "To Let" which notice the Lessee shall permit to remain where placed without molestation; c) If the Lessee shall not be personally present to open and permit an entry into the Leased Premises, at any time, when for any reason an entry therein shall be necessary or permissible, the Lessor or the Lessor's agents may enter the same by a master key, or may forcibly enter the same, without rendering the Lessor or such agents liable therefor, and without in any manner affecting the obligations and covenants of this Lease; d) Nothing in this Section contained, however, shall be deemed or construed to impose upon the Lessor any obligation, responsibility or liability whatsoever for the care, maintenance or repair of the City Market or any part thereof, except as otherwise in this Lease specifically provided. ARTICLE IX INSURANCE AND INDEMNITY 9.01 Lessee's Insurance a) The Lessee shall throughout the Term, at its own cost and expense, take out and keep in full force and effect the following insurance: All -risk insurance upon property owned by the Lessee or for which the Lessee is legally liable (including, signs and plate glass) and which is located within the City Market in an amount of not less than the full replacement cost thereof; ii. Comprehensive General Liability with minimum limits of at least Two Million Dollars ($2,000,000.00) or such higher limits as the Lessor may reasonably require from time to time. This policy shall include: a) The City added as an Additional Insured; b) Inclusive limits for bodily injury and property damage; d) Tenant's Legal Liability; e) Contractual Liability with respect to this Lease; f) Premises, Property and Operations; g) Completed Operations; h) A Cross Liability Clause; i) A Thirty (30) days written notice of Cancellation shall be given to the City of Saint John. iii. The Lessee shall also provide any other form of insurance as the Lessee or the Lessor may reasonably require from time to time in form, in amounts and for insurance risks against which a prudent tenant would insure. b) All policies shall be taken out with reputable and recognized insurers acceptable to the Lessor and shall be in a form satisfactory from time to time to the Lessor. The Lessee agrees that certificates of insurance of each such insurance policy will be delivered to the Lessor as soon as practicable after the placing of the required insurance. All policies shall contain an undertaking by the insurers to notify the Lessor in writing not less than thirty (30) days prior to any material change, cancellation or termination thereof; c) The Lessee agrees that if the Lessee fails to take out or keep in force any such insurance referred to in this Section 9.01, or should any such insurance not be approved by the Lessor and should the Lessee not rectify the situation immediately after written notice by the Lessor to the Lessee, the Lessor has the right without assuming any obligation in connection therewith to effect such insurance at the sole cost of the Lessee and all outlays by the Lessor shall be immediately paid by the Lessee to the Lessor as Additional Rent without prejudice to any other rights and remedies of the Lessor under this Lease. 9.02 Increase in Insurance Premium The Lessee will not allow or cause anything to occur in the Leased Premises which shall cause any increase of premium for any insurance on the Leased Premises or the City Market or any part thereof above the rate for the least hazardous type of occupancy legally permitted in the Leased Premises. If the Lessee is in default under this Section 9.02 the Lessee shall pay any resulting additional premium on any insurance policies taken out or maintained by the Lessor, or if any insurance policy upon the Leased Premises or the City Market or any part thereof shall be cancelled or refused to be renewed by an insurer by reason of the use or occupation of the Leased Premises or any part thereof or the acts or omissions of the Lessee, the Lessee shall forthwith remedy or rectify such use or occupation upon request to do so in writing by the Lessor, and if the Lessee shall fail to do so within twenty -four (24) hours of such written request, the Lessor shall have the right to enter the Leased Premises and rectify the situation, without liability to the Lessee for any loss or damage occasioned by such entry and rectification, or shall be entitled to hold the Lessee liable for any damage or loss resulting from such cancellation or refusal, or the Lessor may at its option determine this Lease forthwith by leaving upon the Leased Premises notice in writing of its intention to do so, and thereupon Rent and any other payments for which the Lessee is liable under this Lease shall be apportioned and paid in full to the date of such determination of the Lease, and together with an amount equal to the Gross Rent payable for a period of one (1) year as liquidated damages, and the Lessee shall immediately deliver up possession of the Leased Premises, a schedule issued by the organization making the insurance rate on the Leased Premises, showing the various components of such rate, shall be conclusive evidence of the several items and charges which make the fire insurance rate of the Leased Premises. Bills for such additional premiums shall be rendered by the Lessor to the Lessee at such times as the Lessor may elect and shall be due from and payable by the Lessee when rendered, and the amount thereof shall be deemed to be and be paid as Additional Rent. 9.03 Loss or Damage The Lessor shall not be liable for any death or injury arising from or out of any occurrence in, upon, at or relating to the City Market, or damage to property of the Lessee or of others located on the Leased Premises, nor shall it be responsible for any loss of or damage to any property of the Lessee or others from any cause whatsoever, except any such death, injury, loss or damage results from the negligence of the Lessor, its agents, servants or employees or other persons for whom the Lessor is in law responsible. Without limiting the generality of the foregoing, the Lessor shall not be liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain, flood, snow or leaks from any part of the Leased Premises or from the pipes, appliances, plumbing works, roof or subsurface of any floor or ceiling or from the street or any other place or other tenants or persons in the City Market or by occupants of adjacent property thereto, or the public, or caused the Lessor and save it harmless from any claims arising out of any damages to the same, including, without limitation, any subrogation claims by the Lessor's insurers. In no event shall the Lessor be liable for any injury to the Lessee, its servants, agents, employees, customers and invitees or for any injury or damage to the Leased Premises or to any property of the Lessee, or to any property of any other person, firm or corporation on or about the Leased Premises caused by an interruption, suspension or failure in the supply of any utilities to the Leased Premises. 9.04 Indemnification of the Lessor The Lessee will indemnify the Lessor, and save harmless from and against any and all claims, actions, damages, liability and expense in connection with loss of life, personal injury and/or damage to property arising from or out of any occurrence in, upon or at the Leased premises, the occupancy or use by the Lessee of the Leased premises or any part thereof, or occasioned wholly or in part by any act or omission of the Lessee, its agents, contractors, employees, servants, licensees, or concessionaires or invitees. In case the Lessor shall, without fault on its part, be made a party to any litigation commenced by or against the Lessee, then the Lessee shall protect and hold it harmless and shall pay all costs, expenses and solicitors' and counsel fees on a solicitor and client basis incurred or paid by them in connection with such litigation. ARTICLE X DAMAGE, DESTRUCTION AND EXPROPRIATION 10.01 Total or Partial Destruction of Leased Premises If, during the Term, the Leased Premises are expropriated or totally or partially destroyed or damaged by any cause in respect of which the Lessor is insured, the following provisions shall have effect: a) If the Leased Premises are rendered partially unfit for occupancy by the Lessee, Gross Rent only shall abate in part only, in the proportion that the part of the Leased Premises rendered unfit for occupancy by the Lessee bears to the whole of the Leased Premises or if the Leased Premises are rendered wholly unfit for occupancy by the Lessee the Rent hereby reserved shall be suspended in either event until the day following a reasonable period (taking into account the extent of the Lessee's restoration) following completion of the Lessor's restoration; b) Notwithstanding the provisions of subparagraph (a), if the Leased Premises in the opinion of the Architect shall be incapable of being rebuilt and/or repaired or restored with reasonable diligence within 180 days of the happening of such destruction or damage, then the Lessor may at its option terminate this Lease by notice in writing to the Lessee given within thirty (30) days of the date of such destruction or damage and in the event of such notice being so given this Lease shall cease and become null and void from the date of such destruction or damage and the Lessee shall immediately surrender the Leased Premises and all interest therein to the Lessor and the Rent shall be apportioned and shall be payable by the Lessee only to the date of such destruction or damage and the Lessor may re -enter and repossess the Leased Premises discharged of this Lease; If the Leased Premises are capable of being rebuilt and/or repaired or restored within 180 days of the happening of such damage or destruction or if within the period of thirty (30) days referred to in Section 10.01(b) the Lessor shall not give notice terminating this Lease, the Lessor shall with reasonable promptitude proceed to rebuild and/or repair or restore the Leased Premises to the extent of the Lessor's repair obligations under the Lease and the Lessee shall immediately upon substantial completion of the Lessor's work and, within a reasonable period determined by the Lessor (given the extent of the Lessee's restoration) complete the restoration of the Leased Premises. The certificate of the Architect shall bind the parties as to the (i) extent to which the Leased Premises are unfit for occupancy; (ii) time required to rebuild and/or repair or restore the Leased Premises; and (iii) due completion of repairs. 10.02 Total or Partial Destruction of City Market In the event that a substantial portion of the City Market shall be expropriated or damaged or destroyed by fire or other cause, or in the event the costs as estimated by the Lessor of repairing, restoring or rebuilding will exceed by $250,000 or more the proceeds of insurance available to the Lessor, notwithstanding that the Leased Premises may be unaffected, or in the event the Lessor shall have the right, to be exercised by notice in writing delivered to the Lessee within sixty (60) days from and after said occurrence, to elect to cancel and terminate this Lease. Upon the giving of such notice to the Lessee, the Term of this Lease shall expire upon the third (3r) day after such notice is given, and the Lessee shall vacate the Leased Premises and surrender the same to the Lessor. 10.03 Abatement of Rent Notwithstanding anything herein before contained, all abatements of Rent set out in this Article X shall be limited to an amount equal to the amount which the Lessor collects under any rental income insurance. 10.04 Expropriation Awards The Lessor and the Lessee will co- operate with each other if there is an expropriation of all or part of the Leased Premises or the City Market, so that each may receive the maximum award that it is entitled to at law. To the extent, however, that a part of the City Market, other than the Leased Premises, is expropriated, the full proceeds that are paid or awarded as a result, will belong solely to the Lessor, and the Lessee will assign to the Lessor any rights that it may have or acquire in respect of the proceedings or awards and will execute the documents that the Lessor reasonably requires in order to give effect to this intention. ARTICLE XI STATUS STATEMENT, SUBORDINATION AND ATTORNMENT 11.01 Status Statement Within fifteen (15) days after request, the Lessee will sign and deliver to the Lessor a status statement or certificate, stating that this Lease is in full force and effect, any modifications to this Lease, the commencement and expiry dates of this Lease, the date to which Rent has been paid, the amount of any prepaid Rent or deposits held by the Lessor, whether there is any existing default and the particulars, and any other information required by the party requesting it. 11.02 Power of Attorney The Lessee hereby irrevocably appoints the Lessor as the attorney for the Lessee with full power and authority to execute and deliver in the name of the Lessee any instruments or certificates required to carry out the intent of Section 11.01 which the Lessee shall have failed to sign and deliver within fifteen (15) days after the date of a written request by the Lessor to execute such instruments. ARTICLE XII TRANSFERS BY LESSEE 12.01 Transfer Defined "Transfer" means, (i) an assignment, sale, conveyance, sublease, or other disposition of this Lease or the Leased Premises, or any part of them or any interest in this Lease (whether by operation of law or otherwise), or in a partnership that is a Lessee under this Lease, (ii) a mortgage, charge or debenture (floating or otherwise) or other encumbrance of this Lease or the Leased Premises or any part of them, or of any interest in this Lease or of a partnership, or partnership interest, where the partnership is a Lessee under this Lease, (iii) a parting with or sharing of possession of all or part of the Leased Premises, and (iv) a transfer or issue by sale, assignment, bequest, inheritance, operation of law or other disposition, or by subscription of all or part of the corporate shares of the Lessee or an "affiliate" (as that term is defined on the date of this Lease under the Canada Business Corporations Act) of the Lessee which results in a change in the effective voting control of the Lessee. "Transferor" and "Transferee" have meanings corresponding to the definition of "Transfer" set out above, (it being understood that for a Transfer described in clause (iv) the Transferor is the person that has effective voting control before the Transfer and the Transferee is the person that has effective voting control after the Transfer). 12.02 Consent Required The Lessee will not allow or cause a Transfer, without the prior written consent of the Lessor in each instance which consent may not be unreasonably withheld. Notwithstanding any statutory provisions to the contrary, Lessor's consent shall not be deemed to have been unreasonably withheld where Lessor refuses consent to a Transfer within twenty -four (24) months of either the Commencement Date or a previous Transfer. Without limiting the generality of the foregoing, no Transfer shall be effective and no consent shall be given unless the following provisions have been complied with: There is no default of the obligations of the Lessee under this Lease; The. s .evwe shall have eiven at least thirty (30) days' prior written notice of the proposed iii. A duplicate original of the documents affecting the Transfer shall be given to the Lessor within thirty (30) days after the execution and delivery thereof; iv. The Transferee, except in the case of a Transfer described in Section 12.01(iv), shall have assumed in writing with the Lessor the due and punctual performance and observance of all the agreements, provisions, covenants and conditions hereof on the Lessee's part to be performed or observed from and after the effective date of the Transfer. The Lessee acknowledges that the factors governing the granting of the Lessor's consent to any Transfer may include, without limitation, the restrictive clauses entered into with other tenants by the Lessor, the financial background, business history and the capability of the proposed Transferee in the Lessee's line of business, and the nature of the business practices of the proposed Transferee. The consent by the Lessor to any Transfer shall not constitute a waiver of the necessity for such consent to any subsequent Transfer. If a Transfer takes place, the Lessor may collect rent from the Transferee, and apply the net amount collected to the Rent herein reserved, but no such action shall be deemed a waiver of the requirement to obtain consent or the acceptance of the Transferee as lessee, or a release of the Lessee or any Indemnifier from the further performance by the Lessee of covenants on the part of the Lessee herein contained. Notwithstanding any Transfer, the Lessee shall remain fully liable under this Lease and shall not be released from performing any of the obligations of the Lessee under this Lease. Any Transfer, if consented to by the Lessor, may at the Lessor's option be documented by the Lessor or its solicitors, and any and all legal costs and the Lessor's then- standard fee with respect thereto or to any documents reflecting the Lessor's consent to the Transfer shall be payable by the Lessee on demand as Additional Rent. 12.03 No Advertising of Leased Premises The Lessee shall not print, publish, post, display or broadcast any notice or advertisement to the effect that the Leased Premises are for lease or for sale or otherwise advertise the proposed sale or lease of the whole or any part of the Leased Premises and shall not permit any broker or other party to do any of the foregoing, unless the complete text and format of any such notice, advertisement or offer is first approved in writing by the Lessor. Without in any way restricting or limiting the Lessor's right to refuse any text or format on other grounds, any text or format proposed by the Lessee shall not contain any reference to the rental rate of the Leased Premises. ARTICLE XIII DEFAULT OF LESSEE 13.01 Right to Re -Enter When a) the Lessee shall be in default in the payment of any Rent whether lawfully demanded or not and such default shall continue for a period of five (5) consecutive days; or b) the Lessee shall be in default of any of its covenants, obligations or agreements under this Lease or of any term or condition of this Lease (other than its covenant to pay Rent) and such default shall continue for a period of fifteen (15) consecutive days or such longer or shorter period as the Lessor, acting reasonably, determines after five (5) days written notice by the Lessor to the Lessee specifying with reasonable particularity the nature of such default and requiring the same to be remedied; then and in any of such cases the then current month's Rent, together with the Rent for the three (3) months next ensuing shall immediately become due and payable, and at the option of the Lessor, the Terms shall become forfeited and void, and the Lessor may without notice or any form of legal process whatsoever forthwith re -enter upon the Leased Premises or any part thereof in the name of the whole and repossess and enjoy the same as of its former estate, anything contained in any statute or law to the contrary notwithstanding, provided however, that such forfeiture shall be wholly without prejudice to the right of the Lessor to recover arrears of rent or damages for any antecedent default by the Lessee of its covenants, obligations or agreements under this Lease or any term or condition of this Lease and provided further that notwithstanding any such forfeiture the Lessor may subsequently recover from the Lessee damages for loss of Rent suffered by reason of this Lease having been prematurely determined. In addition, the Lessor shall have the right to remove.and sell the Lessee's goods and chattels and trade fixtures and apply the proceeds thereof to Rent due under the Lease. 13.02 Right to Re -Let Should the Lessor elect to re- enter, as herein provided, or should it take possession pursuant to order to re -let the Leased Premises, and re -let the Leased Premises or any part thereof as agent for the Lessee for such term or terms (which may be for a term extending beyond the Term of this Lease) and at such rental or rentals and upon such other terms and conditions as the Lessor in its sole discretion may deem advisable; upon each re- letting all rentals received by the Lessor from such re- letting shall be applied; first, to the payment of any indebtedness other than rent due hereunder from the Lessee to the Lessor; second, to the repayment of any reasonable costs and expenses of such re- letting, including brokerage fees and solicitors' fees and of costs of such alterations and repairs; third, to the payment of Rent due as the same may become due and payable hereunder. If such Rent received from such re- letting during any month be less than that to be paid during that month by the Lessee hereunder, the Lessee shall pay any such deficiency to the Lessor. Such deficiency shall be calculated and paid monthly. No such re -entry or taking possession of the Leased Premises by the Lessor shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to the lessee or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such re- letting without termination, the Lessor may at any time thereafter elect to terminate this Lease for such previous breach. Should the Lessor at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from the Lessee all damages it may incur by reason of such breach, including the cost of recovering the Leased Premises, and including the worth at the time of such termination of the excess, if any, of the amount of Rent and charges equivalent to Rent reserved in this Lease for the remainder of the Term hereof over the then reasonable rental value of the Leased Premises for the remainder of the Term hereof, all of which amounts shall be immediately due and payable from the Lessee to the Lessor. In determining the Rent which would be payable by the Lessee hereunder, subsequent to default, the annual Rent for each year of the unexpired Term shall be equal to the greater of. (a) the average annual Gross Rent and Percentage Rent payable by the Lessee from the Commencement Date to the time of default or during the preceding three (3) full calendar years, whichever period is shorter; and (b) Gross Rent payable hereunder, together with all Additional Rent which would have been payable during the calendar year in which this Lease was terminated, prorated over a full calendar year, if required. 13.03 Legal Expenses In case suit shall be brought for recovery of possession of the Leased Premises, for the recovery of Rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of the Lessee to be kept or performed and a breach shall be established, the Lessee shall pay to the Lessor all expenses incurred therefor, including reasonable solicitors' and counsel fees on a solicitor and his client basis. 13.04 Bankruptcy The Lessee covenants and agrees that if the Term or any of the goods and chattels of the Lessee on the Leased Premises shall be at any time during the Term seized or taken in execution or attachment by any creditor of the Lessee or if a receiver, interim receiver or receiver and manager is appointed for the assets or business of the Lessee or if the Lessee shall make any assignment for the benefit of creditors or any bulk sale or, becoming bankrupt or insolvent, shall take the benefit of any Act now or hereafter in force for bankrupt or insolvent debtors or if any order shall be ;made for the winding up of the Lessee, or if the Leased Premises shall without the written consent of the Lessor become and remain vacant for a period of fifteen (15) days, or be used by any other persons than such as are entitled to use them under the terms of this Lease, or if the Lessee shall without the written consent of the Lessor abandon or attempt to abandon the Leased Premises or to sell or dispose of goods or chattels of the Lessee or to remove them or any of them from the Leased Premises so that there would not in the event of such abandonment, sale or disposal be sufficient goods on the Leased Premises subject to distress to satisfy the Rent above due or accruing due, then and in every such case the then current month's Rent and the next ensuring three (3) months' Rent shall immediately become due and be paid and the Lessor may re -enter and take possession of the Leased premises as though the Lessee or the servants of the Lessee or any other occupant of the Leased Premises were holding over after the expiration of the Term and the Term shall, at the option of the Lessor, immediately without any notice or opportunity for cure provided to the Lessee, become forfeited and determined, and in every one of the cases above such accelerated Rent shall be recoverable by the Lessor in the same manner as the Rent hereby reserved and if Rent were in arrears and the said option shall be deemed to have been exercised if the Lessor or its agents given notice to the Lessee as provided for herein. 13.05 Lessor May Perform Lessee's Covenants If the Lessee shall fail to perform any of its covenants or obligations under or in respect of this Lease, the Lessor may from time to time at its discretion, perform or cause to be performed any such covenants or obligations, or any part thereof, and for such purpose may do such things upon or in respect of the Leased Premises or any part thereof as the Lessor may consider requisite or necessary. All expenses incurred and expenditures made by or on behalf of the Lessor under this Section, together with an administrative fee equal to fifteen (15 110) percent thereon, shall be forthwith paid by the Lessee to the Lessor on demand as Additional Rent. 13.06 Waiver of Exemptions from Distress Despite any applicable Act, legislation or any legal or equitable rule of law. (a) none of the inventory, furniture, equipment or other property at any time owned by the Lessee is exempt from distress; and (b) no lack of compliance with any requirement concerning the day of the week, time of day or night, method of entry, giving of notice, appraising of goods, or anything else, will render any distress unlawful where the Lessee owes arrears of Rent at the time of the distress. 13.07 Remedies Cumulative No reference to nor exercise of any specific right or remedy by the Lessor will prejudice or preclude the Lessor from exercising or invoking any other remedy in respect thereof, whether allowed at law or expressly provided for in this Lease. No such remedy will be exclusive or dependent upon any other such remedy, but the Lessor may from time to time exercise any one or more of such remedies independently or in combination. ARTICLE XIV MISCELLANEOUS 14.01 Overholding If the Lessee remains in possession of the Leased Premises after the end of the Term and without the execution and delivery of a new lease, there shall be no tacit renewal of this Lease and the Term hereby granted, and the Lessee shall be deemed to be occupying the Leased Premises as a Lessee from month to month at monthly rent payable in advance on the first day of each month equal to the sum of. one and one half (1 ' /2) times the Gross Rent payable during the last month of the Term; and ii. one - twelfth of the Additional Rent payable by the Lessee for the Lease Year immediately preceding the last Lease Year of the Term; and otherwise upon the same terms and conditions as are set forth in this Lease, except as to duration of Term, and any right of renewal mutatis mutandis. 14.02 Successors This Lease applies to the successors and assigns of the Lessor and, if Article X11 is complied with, the heirs, executors, administrators and permitted successors and permitted assigns of the Lessee. if there is more than one party named as Lessee, they are jointly and severally liable under this Lease. 14.03 Waiver Failure by the Lessor to require performance of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or of any subsequent breach of the same or of any other term, covenant or condition herein contained. The subsequent acceptance of Rent hereunder by the Lessor shall not be deemed to be a waiver of any preceding breach of the Lessee of any term, covenant or condition of this Lease, other than the failure of the Lessee to pay the particular rent so accepted, regardless of the Lessor's knowledge of such preceding breach at the time of acceptance of such Rent. No covenant, term or condition of this Lease shall be deemed to have been waived by the Lessor, unless such waiver be in writing by the Lessor. 14.04 Accord and Satisfaction No payment by the Lessee or receipt by the Lessor of a lesser amount than the monthly Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement or any cheque or any letter accompanying any cheque or payment as Rent be deemed an accord and satisfaction, and the Lessor may accept such cheque or payment without prejudice to the Lessor's right to recover the balance of such Rent or pursue any other remedy in this Lease provided. 14.05 Entire Agreement This Lease sets forth all the covenants, promises, agreements, conditions and understandings between the Lessor and the Lessee concerning the Leased Premises and there are no covenants, promises, agreements, conditions or representations, either oral or written, between them other than are herein and in the said schedules and rider, if any, set forth. Except as herein otherwise provided, no subsequent , _t______ __ _a.l:o:,.., a„ at.:� 7. 0 �t_fl ha 1%;nr1 ;na nnnn thA T.e..Rmr or the Lessee 14.06 No Partnership The Lessor does not, in any way or for any purpose, become a partner of the Lessee in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with the Lessee. 14.07 Force Majeure In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock -outs, labour troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Notwithstanding anything herein contained, the provisions of this Section 14.07 shall not operate to excuse the Lessee from the prompt payment of Gross Rent, Additional Rent or any other payments required by the terms of this Lease, nor entitle the Lessee to compensation for any inconvenience, nuisance or discomfort thereby occasioned. 14.08 Notices Any notice herein provided or permitted to be given by the Lessee to the Lessor shall be sufficiently given if delivered personally to the Common Clerk, or if transmitted by telecopier or if mailed in Canada, registered and postage prepaid, addressed to the Lessor at: CIO The Common Clerk, The City of Saint John, P. O. Box 1971, 15 Market Square, Saint John, New Brunswick, E21, 4LI, with a copy to Real Estate Services, The City of Saint John, P. O. Box 1971, 15 Market Square, Saint John, New Brunswick, E2L 4L1, and any notice herein provided or permitted to be given by the Lessor to the Lessee shall be sufficiently given if delivered personally to the party being given such notice or to a responsible employee of the party being given such notice, or if transmitted by telecopier or if mailed in Canada, registered and postage prepaid, addressed to the Lessee at the Leased Premises or at 26 Forest Road Rothesay, New Brunswick E211 1B5. Any such notice given as aforesaid shall be conclusively deemed to have been given on the day on which such notice is delivered or transmitted or on the third day that there is postal delivery following the day on which such notice is mailed, as the case may be. Either party may at any time give notice in writing to the other of any change of address of the party given such notice and from and after the giving of such notice the address therein specified shall be deemed to include any request, statement or other writing in this Lease provided or permitted to be given by the Lessor to the Lessee or by the Lessee to the Lessor. If there is more than one party named as Lessee, notice to one shall be deemed sufficient as notice to all. 14.09 Place for Payment of Rent The Lessee shall pay the Rent. Including all Additional Rent, at the office of the Lessor specified in Section 14.08 or as such place or places as the Lessor may designate from time to time by notice in writing: currently to the Cashier's Office, City Hall, P. O. Box 1971, 15 Market Square, Saint John, New Brunswick, E2L 4L1. 14.10 Approval in Writing Wherever the Lessor's consent is required to be given hereunder or wherever the Lessor must approve any act or performance by the Lessee, such consent or approval, as the case may be, shall be given in writing by the Lessor before same and shall be deemed to be effective. 14.11 Governing Law The Lease is to be governed by and construed according to the laws of the Province of New Brunswick. 14.12 Captions and Section Numbers The captions, section numbers and article numbers appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections or articles or of this Lease, nor in any way affect this Lease. 14.13 Partial Invalidity If any term, covenant or condition of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease and/or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Lease shall be separately valid and enforceable to the fullest extent permitted by law. 14.14 No Option The submission of this Lease for examination does not constitute a reservation of or option for the Leased Premises and this Lease becomes effective as a Lease only upon execution and delivery thereof by the Lessor and the Lessee. 14.15 Time To Be of the Essence Time shall be of the essence of this Lease 14.16 Quiet Enjoyment The Lessor covenants with the Lessee for quiet enjoyment. 14.17 Riders and Schedules Schedules attached hereto form part of this Lease. 14.18 Rent Free Period The Lessor and the Lessee agree so long as the Lessee is not in default under the Lease, the Lessee will not be responsible for Gross Rent for the period from and including August 1, 2006 to and including September 30, 2006. Utilities, Promotion Funds/Merchants' Association dues are payable during the Rent Free Period. SCHEDULE "D" RULES AND REGULATIONS All loading and unloading of goods shall be done only at such times, in the areas, and through the entrances, designated for such purposes by the Landlord. 2. The delivery or shipping of merchandise, supplies and fixtures to and from the Leased Premises shall be subject to such controls as in the judgment of the Landlord are necessary for the proper operation of the Leased Premises and/or the City Market. All garbage and refuse shall be kept in the kind of containers specified by the Landlord and shall not be burned in or about the Leased Premises. 4. No radio, television, telegraphic or telephone or similar device and no water pipe, gas pipe or electric wire shall be installed or connected without obtaining in each instance the written consent of the Landlord. All such connections shall be installed in accordance with the Landlord's direction and without such direction no boring or cutting for wires or pipes shall be permitted. 5. The Tenant will be required to remain open for business as follows: Stalls shall be open for business at all times while the market is open to the public. b. Year round stands shall be open for business at all times while the market is open to the public. {. The plumbing facilities shall not be used for any other purpose than that for which they are intended, and no foreign substance of any kind shall be thrown therein, and the expense of any breakage, stoppage or damage resulting from a violation of this provision shall be borne by the Tenant. 7. The Tenant shall use at the cost of the Tenant a national recognized pest extermination contractor. 8. The Tenant, its employees or agents, shall not mark, paint, drill or in any way deface any walls, ceilings, partitions, floors, wood, stone or iron without the written consent of the Landlord. 9. Except as permitted in the lease to which these rules and regulations are annexed, the Tenant shall not permit any cooking in the Leased Premises without the written consent of the Landlord. 14. No aisle, sidewalk, entry, passageway, elevator or staircase shall be obstructed or used by the Tenant, its officers, agents, servants, employees, contractors, customers, invitees or licensees for any purpose other than ingress to and egress from the Leased Premises. 11. The Tenant, its officers, agents, servants, employees, contractors, customers, invitees or licensees shall not bring in or take out, position, construct, install or move any safe or other heavy equipment or furniture without first obtaining the consent in writing of the Landlord. In giving such consent, the Landlord shall have the right in its sole discretion, to prescribe the weight permitted and the position thereof, and the use and design of planks, skids or platforms to distribute the weight thereof. All damage done to the City Market by moving or using any such safe, heavy equipment or furniture shall be repaired at the expense of the Tenant. The moving of all equipment and the furniture shall occur only during those hours when the City Market shall not be open for business or any other time consented to by the landlord. 12. All persons entering and leaving the building in which the Leased Premises are situated must do so during hours the City Market is staffed by City Market employees. The Landlord at its sole discretion may determine the hours the City Market is staffed. Tenants shall register in books if so required by the Landlord when accessing the Market "after Market hours ". The Landlord is under no responsibility for failure to enforce this rule. 13. The Tenant shall not place or cause to be placed any additional locks upon any doors of the Leased Premises without the approval of the Landlord and subject to any conditions imposed by the Landlord. 14. No one shall use the Leased Premises for sleeping apartments or residential purposes, or for the storage of personal effects or articles other than those required for the purposes permitted by the lease to which these rules and regulations are annexed. 15. Subject to the Landlord's providing such service, the Tenant shall permit window cleaners to clean the windows of the Leased Premises from time to time and at reasonable times. 16. Any hand trucks, carryalls or similar appliances used in any building in the Shopping Centre shall be equipped with rubber tires, side guards and such other safeguards as the Landlord shall require. 17. No animals or birds shall be brought into the Leased Premises except as permitted by the Iease to which these rules and regulations are annexed. 18. Except as permitted in the lease to which these rules and regulations are annexed, the Tenant shall not permit the delivery of any food or beverage to the Leased Premises without the approval of the Landlord. 19. The Tenant shall not solicit business in the common areas or distribute any handbills or other advertising matter in the common areas or in automobiles parked in the parking areas. 20. The Tenant may only sell merchandise that is approved by the Landlord through their lease or otherwise. 21. The Tenant shall not keep or display any merchandise on or otherwise obstruct the common areas adjacent to the Leased Premises. 22, The Tenant shall not use or permit any of the Leased Premises to be used in such a manner as to cause annoying noises or vibrations or offensive odours. 23. The Tenant is responsible to remove garbage from their premises and deliver to the compactor designated by the Landlord and to place the garbage in the compactor. 24. A set of plans must be presented and the approval must be given by the landlord for any improvements or painting, etc. to the stands (including signs). 25. Merchandise, displays, shelves, etc., are not to exceed the height of the bottom meat hook bars on each stand. 26. No solid dividers are to be placed between the top and bottom meat hook bars. 27. Displays underneath the stands must be set up 6" off the floor on legs or wheels so the floor can be swept and washed down properly. 28. Covers are not to be placed over merchandise on stands without the prior approval of the Landlord. 24. Signage is to be in keeping with the historic character of the City Market and must meet the following criteria: Materials: Wood and metal are considered to be appropriate materials. Plastic may be used provided that it looks like one of the acceptable materials. Internally - illuminated plastic faced box signs will not be acceptable; Number of Signs: Each tenancy will be permitted one bench -top sign on each bench (7'- 0" length), or one projecting sign on each aisle -side that identifies the business by name and type; Bench -top Signs: These signs are the preferred primary form of signage. They must be located Ito 2 inches above the top rail of the bench, and should display the business name. They will consist of a 8" high by 6' -0" long narrow band of material with the lettering printed, painted, composed of individual raised letters, or lettering cut into the material and painted a contrasting colour. The rear may not be used for signage over another tenancy; Projecting Signs: Projecting signs may be used and shall be constructed as two -sided signs. They may only be located at a bench post, and must be rigidly fastened in place. They shall be vertical in proportion. The maximum size for projecting signs shall be 18" high x 12" wide. Only one per tenancy per aisle side shall be permitted as Business identifications; Lighted Signs: Not permitted; Temporary Signs: Any number of signs advertising goods for sale, specials, etc. shall be permitted. They may not exceed 8.5" x 1 I" in size, and must not excessively obscure the view through the bench between the first and last rail above the bench. SCHEDULE "D1" APPLICATION FOR AGREEMENT HEAD OFFICE OR PROPRIETOR'S NAME [�(,e r5c-, " � V -,., 11 n c, ACCOUNT RECEIVABLE NUMBER STORE NAME AND NUMBER DATE OF LEASE MONTHLY CHARGES STORE ADDRESS HEAD OFFICE ADDRESS TRANSIT NUMBER DATE OF LAST PAYMENT BANK ACCOUNT NUMBER BANK AND BRANCH NAME IN WHICH ACCOUNT STANDS IN BANK RECORDS SIGNING OFFICER SIGNATURE REQUEST FOR PRE - AUTHORIZED PAYMENTS I authorize (hereinafter referred to as the "Company ") And/or to debit the account of the undersigned maintained with the financial institution indicated above, monthly, in accordance with the PAYMENT AUTHORIZATION below, for the purpose of paying monthly rentals as noted above. 'PLEASE ENCLOSEAN UNSIGNED SAMPLE CHEQUE FROM YOUR BANK OR TRUST COMPANY" AUTHORIZATION TO HONOUR PAYMENTS NAME OF BANK ADDRESS You are hereby requested and authorized to pay and debit my/our account at your office or at another branch of your institution if it is transferred there; all cheques drawn on you on my behalf and made payable to the Company or drawn on you by ; and all amounts specified on any magnetic or computer produced paper tapes requesting you to pay the Company or In consideration of your acting as aforesaid, it is agreed that your treatment of each cheque and/or tape and your rights with respect to it shall be the same as if it were signed by the undersigned personally, authorizing and requesting you to pay and credit such amount to the —4 f�ih,rn to nnv chnii niVP nn Hahility nn vniir nary. If the financial institution indicated above is not a bank in which THE BANK ACT OF CANADA applies, "cheque" as unused in this authorization shall include an "Order" that would be a cheque within he meaning of section 155 in THE BILLS OF EXCHANGE ACT (CANADA). Any delivery of this authorization to you will constitute delivery by the undersigned. (The signature appearing below must be the same as the signature appearing in the signature file of the financial institution identified above.) DATE: AUTHORIZED SIGNATURES) M & C — 2006 -214 July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Lease of Space Stalls # 9, 10 and 11 - The City Market BACKGROUND: Pete's Frootique has been operating at the City Market since 1982. Geoff Landers has owned and operated the store since 1987. Mr. Landers has a great tradition of providing Market visitors with fresh fruit and vegetables, a wide selection of bulk foods, imported food stuffs and much more. His operation is regionally renowned, having served thousands of customers over the years. Pete's Frootique is synonymous with the City Market. In the course of negotiating with Mr. Landers over the past several months much was learned about the retailer's history and plans for the future. A mutual desire to secure a long term arrangement became evident. The Lease, as negotiated will allow Mr. Landers the opportunity to continue to invest in his operations at the Market and help solidify the merchant as an anchor type tenant, contributing to the growing customer base that experiences the Market's offerings. The attached Lease is highlighted by a term of 6 years which will provide the tenant ample term to continue to justify investing in the operation. The tenant is purchasing a new low cooler system which will enable the sight lines to be lowered on the Pete's Frootique benches as well as improving the refrigeration of his produce in an energy efficient unit. The rent structure calls for rents to increase consistently over the course of the Lease, commencing at $21 psf and ranging up to $26 psf in the final year. The tenant has also agreed to a performance clause which pays the Landlord an additional 4% of gross sales as rent if the tenant's annual sales surpass $1.25 million. A three month rent free Report to Common Council July 28, 2006 Page 2 period is granted from September — November in each of 2006 and 2007 timed uniquely to again, offset planned expenditures by the tenant. The purpose of this report is to seek Council's concurrence to enter into a lease with 514807 N.B. Inc operating as Pete's Frootique, for Stalls # 9, 10 and 11 in the City Market. RECOMMENDATION: That The City of Saint John enter into a Lease of Space for Stalls # 9, 10 and 11 in The City Market with 514807 N.B. Inc. upon the terms and conditions as set out in the Lease attached hereto (M & C 2006 -214); and 2. that Common Council give 1st and 2nd reading to the attached "City Market By -Law" whereby Section 5(2) is amended to add following Section 5(2) (i), Section (5)(2) 0) Stalls 9, 10 and 11; and further that the Mayor and Common Clerk be authorized to sign the Lease or any other document required to finalize this transaction. Respectfully submitted, Jim R. Baird, MCIP Commissioner Planning and Development Terrence Totten, F.C.A. City Manager BI /mmf Attachment LEAbh Standard Forms of Conveyances Act, S.N.B. 1980, c. S -12, s.2 The parties to this lease are: The City of Saint John, having its City Hall at 15 Market Square, Saint John, New Brunswick, a body corporate by Royal Charter, confirmed and amended by Acts of the Legislative Assembly of the Province of New Brunswick, the "Lessor" - and — 514807 N.B. Inc., 159 Lawrence Long Road, Saint John, NB, E2M 5Z7, the "Lessee" The "Rules and Regulations" attached hereto as Schedule "D" and the Form attached hereto as Schedule "D -l" form part of this Lease. The Lessor leases to the Lessee the premises described in Schedule "A" attached hereto on the following conditions: Duration: Date of Commencement: Date of Termination: Payment Dates: Place of Payment: 6 years September 1, 2006 August 31, 2012 First day of each and every month during the term hereof Cashier's Office City Hall Saint John, NB This lease contains the covenants and conditions which are attached and set out in Schedule "C ". DATED -� �� , 2006. SIGNED, SEALED & DELIVERED In the presence of: THE CITY OF SAINT JOHN N.M. McFarlane, Mayor J. Patrick Woods, Common Clerk Common Council Resolution: 2006. 514807 N.B. INC. Per: And: . �_ ti` Il �,i 0 0 `E o t Lgu 4- I-R ®r; RUN E-i 7-- 51 Ll C" 0 o UP 1 � a COUNTER C.l. COLUMN 23'—'7" STALL WINDOW 11 CLASS �4z t l a STALL o 10 1 a [� yi 1 6�_3„ •, j �i STALL 9 6' 4,. 3p, r GROUND FLOOR (LEASEADLE AREAS s -0 SCALE: 1/4"=1'7-0" (see mezzanine Plan for stand location and layouts) r•' d. i• I }-�3' 7" r �1 I i 1 3 i f i I 1 I I` I li I I - ! c 1 4' I s: I . In Iz I I �n o � z ,-- i, o fTl n. o E' a `= (A C/') .. m OD 110 j � D X frri � � a "i fU m m Q o ; ay M o w n � m Ll J .Q i• I }-�3' 7" r �1 I i 1 3 i f i I 1 I I` I li I I - ! c 1 4' I s: I . In Iz I I �n o � z ,-- i, E' a `= F BENCHES DO NOT CORRESPOND TO BUILDING GRID FOR PURPOSES OF GRAPHIC LAYOUT. MEZZAMNE FLOOR - {LEASEABLE ARE 3A� 5 -$-O SCALE: 1/4 " =V -0" CE LI P C.I. STORAGE AREA'.' (LEASEABLE AREA--224- -$ -f -) SCALE: 1 -0 LEASE LEASE PLAN for 514807 N.B. INC','. (COPIES; 8 1/2" x 14" ARE NOT TO SCALE) +r LEASE FOR STALL SPACE CITY N RrKET 514507 N.B. INC.Idba Pete's Frootique SCHEDULE "C" ARTICLE I DEFINITIONS 1.01 Definitions In this lease: a) "Additional Rent" means all and any monies required to be paid by the Lessee to the Lessor under or pursuant to the terms of this Lease, save only for Gross Rent; b) "Architect" shall mean the architect from time to time named by the Lessor or at the option of the Lessor, the Lessor's general contractor. Any certificate provided by the Architect and called for by the terms of this Lease shall be final and binding on the parties hereto; c) "Commencement Date" means a date determined in accordance with the provisions of Section 2.03; d) "Common Areas" means those areas, facilities, utilities, improvements, equipment and installations in the City Market which from time to time are not designated or intended by the Lessor to be leased to tenants of the City Market, and those areas, facilities, utilities, improvements, equipment and installations which serve or are for the benefit of the City Market whether or not located in, adjacent to or near the City Market and which are designated from time to time by the Lessor as part of the Common Areas. Without limiting the generality of the foregoing, Common Areas includes all parking areas, all entrances and exits thereto and all structural elements thereof, access roads, truck courts, driveways, truckways, delivery passages, the roof, exterior weather walls, exterior and interior structural elements and bearing walls in the building and improvements comprising the City Market, package pick -up stations, loading and related areas, pedestrian stairways, ramps, electrical, telephone, meter, valve, mechanical, mail storage service and janitor rooms and galleries, fire prevention, security and communication systems, columns, pipes, electrical, plumbing, drainage, any central system for the provision of heating, ventilating or air conditioning to leaseable premises or any enclosed Common Areas and all other installations, equipment or services located therein or related thereto as well as the structures housing installations, including but not limited to all open and enclosed malls, courts and arcades, public seating and service areas, corridors, furniture, first aid and/or information stations, auditoria, conference rooms, nurseries, childcare play areas and related kitchen and storage facilities, escalators, elevators, public washrooms, music systems and any atrium seating/food court; e) "C.P.I." means the Consumer Price Index (All Items) for Canada (or any index published in substitution for the Consumer Price Index or any other replacement index reasonably designated by the Lessor, if it is no longer published) published by Statistics Canada (or by any successor thereof or any other governmental agency, including a provincial agency); f) "Atrium Seating/Food Court" means those portions of the Common Areas designated by the Lessor from time to time for use in support of the operations of any group of premises providing quick food service to customers of the City Market and includes, without limiting the generality of the foregoing, public table and seating areas, waste collection facilities and other areas, facilities and equipment intended for such use; g) "Gross Receipts" means the total of all gross sales and receipts from all business conducted upon or from the Leased Premises, whether or not by the Lessee, and whether for cash, cheques, credit, charge account, exchange or otherwise, and shall include, but not be limited to, amounts received or receivable from the sale of goods or services and the amount of all orders taken or received at the Leased Premises regardless of where they are filled, whether such sales be made at a sales desk or counter, over the telephone -- 1— .._... _... «A.— .i....:,.,. 7 «+—ems+ ....,+.,lw,a,.+ '-- i.or..c+o —A Aa-4. -411 h. will not be deducted. A credit or instalment sale will be considered as a sale for the full price in the month in which it takes place: Gross Receipts shall not include: i. sales for which the customer has received a refund, provided that the original sale was included in Gross Receipts; ii. sales of merchandise in exchange for returned merchandise, but only to the extent the original sale of the returned merchandise was included in Gross Receipts; iii. HST and any other sales, use, excise or gross receipts tax directly on sales and collected from customers at the point of sale, provided that the amount thereof is added to the selling price and shown and/or collected as a separate item, and paid by the Lessee to such governmental authority; iv. delivery charges; v. transfers of merchandise between stores of the Lessee or returned to suppliers of the Lessee, but only if such transfer or return is not for the purpose of reducing Gross Receipts. h) "HST" means harmonized sales taxes, value -added taxes, multi -stage taxes, business transfer taxes or other similar taxes however they are characterized and any taxes in lieu thereof; i) "Hazardous Substances" means any contaminant, pollutant, dangerous substance, potentially dangerous substance, noxious substance, toxic substance, hazardous waste, flammable, explosive or radioactive material, urea formaldehyde foam insulation, asbestos, PCB's or any other substances or materials that are declared or defined to be hazardous, toxic, contaminants or pollutants in or pursuant to any applicable federal, provincial or municipal statute, by -law or regulation; j) . "Lessor" includes the Lessor and its successors and assigns; k) "Lease" means this indenture of lease and includes any riders and schedules hereto and shall also include any agreements entered into which have the effect of amending this indenture from time to time; 1) "Leased Premises" means the premises leased to the Lessee as referred to and described in Section 2.01 hereof Save as mentioned below, the boundaries of the Leased Premises shall extend from the top surface of the structural subfloor to the bottom surface of the structural ceiling. If the Leased Premises have no ceiling abutting the demising walls, but rather are open to the ceiling of the City Market building, the boundaries of the Leased Premises extend from the top surface of the structural subfloor to the height of the demising walls; m) - "Lease Year" shall mean a period of time, the fast Lease Year commencing on the Commencement Date and ending on the 31St day of December in the calendar year of the - Commencement Date. Thereafter Lease Years shall consist of consecutive periods of twelve calendar months ending in each case on December 31St, save for the last Lease Year of the Term which shall terminate upon the expiration or earlier termination of this Lease, as the case may be; n) "Gross Rent" means the annual Gross Rent payable by the Lessee pursuant to Section 3.01; o) "Operating Costs" means the total cost and expense incurred in owning, operating, maintaining, managing and administering the City Market and the Common Areas, specifically including without limiting the generality of the foregoing, any capital or place of ownership taxes levied against the Lessor or any owners of the City Market on account of their interest in the City Market, in an amount equitably allocated to the City Market by the Lessor; gardening and landscaping charges; the cost and expenses of taking out the insurance described in Section 9.03; cleaning, snow removal, garbage and waste collection and disposal; lighting, electricity, public utilities, loud speakers, public address and musical broadcasting systems and any telephone answering service used in or serving the City Market, and the cost of electricity and maintenance for any signs designated by the Lessor as part of the Common Areas; policing, security, supervision and traffic control; salaries and benefits of all supervisory and other personnel employed in connection with the City Market and management office rent imputed to the City reviews -and investigations, removal and/or clean -up of Hazardous Substances from the Common Areas; the cost of the rental of any equipment and signs and the costs of supplies used in the maintenance and operation of the City Market and the Common Areas; accounting and audit fees incurred in the preparation of the statements required to be prepared and supplied by the Lessor under the terms of this Lease; heating, ventilating and air conditioning of the Common Areas; all repairs and replacements to and maintenance and operation of the City Market and the Common Areas; depreciation or amortization of the costs, including repair and replacement, of all maintenance and cleaning equipment, master utility meters, and all other fixtures, equipment, and facilities serving or "comprising the City Market or the Common Areas; which are not charged fully in the Lease Year in which they are incurred, from the earlier of the date when the cost was incurred or the Commencement Date, at rates on the various items determined from time to time by the Lessor in accordance with sound accounting principles; p) "Proportionate Share" means a fraction, the numerator of which is the Rentable Area of the Leased Premises and the denominator of which is the Rentable Area of the City Market; q) "Rent" means all Gross Rent and Additional Rent payable pursuant to the terms of this Lease; r) "Rentable Area of the Leased Premises" means the area expressed in square feet of all floors of the Leased Premises measured from: i, the exterior face of all exterior walls, doors and windows; ii. the exterior face of all interior walls, doors and windows separating the Leased Premises from Common Areas; if any; and iii. the centre line of all interior walls separating the Leased Premises from adjoining leasable premises. The Rentable Area of the Leased Premises includes all interior space whether or not occupied by projections, structures or columns, structural or non - structural, and if the store front is recessed from the lease line, the area of such recess for all purposes lies within the Rentable Area of the Leased Premises. s) "Rentable Area of the City Market" means the area in square feet of all rentable premises in the City Market set aside for leasing by the Lessor from time to time, except for any occupancy as designated by the Lessor for which there is no Gross Rent payable. Provided however that the Lessor shall credit to Operating Costs any contributions received in respect of such Operating Costs from the occupants of any of the areas excluded from the Rentable Area of the City Market in accordance with this definition. Provided further that in determining the fraction that is the Lessee's Proportionate Share, if the Leased Premises consists of any of the foregoing excluded categories, the Rentable Area of that category will be included in the Rentable Area of the City Market; . t) "Rules and Regulations" means the rules and regulations adopted and promulgated by the Lessor from time to time acting reasonably, including those listed on Schedule "D"; u) "City Market" means the lands and premises known by the civic address 47 Charlotte Street, Saint John, New Brunswick, as such Iands and premises may be altered, expanded or reduced from time to time and the buildings, improvements, equipment and facilities erected thereon or situate from time to time therein; v) "Taxes" means all duties, real property taxes, charges, assessments and payments, from time to time levied, assessed or imposed upon the City Market or any part thereof or upon the Lessor. by reason of its ownership of the City Market, by any taxing authority. Taxes shall also include any penalties, late payment or interest charges imposed by any municipality or other taxing authority as a result of the Lessee's late payments of any taxes or instalments thereof. For greater certainty "Taxes" shall exclude any penalties or interest incurred by the Lessor as a result of its failure to pay Taxes in a timely manner, except Taxes shall include any interest in respect of a deferral of payment in accordance with sound accounting practices if permitted by statute or pursuant to an agreement with the taxing authority; and (ii) income, profit or excess profits taxes of the Lessor; w) "Lessee" means the party named as Lessee in this Lease; and x) "Term" means the period referred to in Section 2.03. ARTICLE H GRANT, TERM AND INTENT 2.01 Leased Premises In consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the Lessee to be paid, observed and performed, the Lessor demises and leases to the Lessee and the Lessee leases from the Lessor, the Leased Premises. The Leased Premises are presently designated as Stalls No. 10 and 11; approximately 48 ft 2 within the northwestern corner of Stall 12, the north and south sides of the bench in front of Stalls 11, 10 and 9 together with the east and west end -caps, the south side of the bench in front of Stalls 6, 5 and 4 together with the southern half of both of the east and west end caps and the west end -cap of the bench in front of Stall 3. provided however, that vertical merchandizine of the said benches is limited to the manner promulgated from time to time in Schedule "D" attached hereto as shown on Schedule "A" attached hereto and contain a Rentable Area of approximately Fourteen Hundred Square Feet 1 400ft2 . In the event the Leased Premises is re- measured the Lessee shall pay all rents based on a maximum square footage of Fourteen Hundred Square Feet (1,400 ft). 2.02 Use of Common. Areas The use and occupation by the Lessee of the Leased Premises shall entitle the Lessee to the use in common with all others entitled thereto of the Common Areas, subject however, to the terms and conditions of this Lease and to reasonable rules and regulations for the use thereof as prescribed from time to time by the Landlord. 2.03 Term of Lease TO HAVE AND TO HOLD the Leased Premises for and during the term of six (6) years to be computed from September 1, 2006 and fully to be completed and ended on August 31, 2012 save as hereinafter provided for earlier termination. PROVIDED THAT if there is any Lessor's Work or Lessee's Work to be performed prior to the Lessee opening for business in the Leased Premises or the Leased Premises are occupied by a third party as of the date of this Lease, the Commencement Date shall be the earlier of. a) forty -five (45) days after the Lessor has delivered vacant possession of the Leased Premises to the Lessee notwithstanding that the Lessor may still, during such forty -five (45) day period, be completing its work; or b) the opening by the Lessee to the public of its business in the Leased Premises. Notwithstanding any change in the Commencement Date calculated in accordance with the preceding provisions hereof, the Terms shall expire on the date set for such expiry in the fast paragraph of this Section 2.03, subject always to earlier termination as provided for in this Lease. PROVIDED THAT upon the Lessor or its Architect giving notice to the Lessee that the Leased Premises are available for the commencement of the Lessee's Work, the Lessee shall immediately take possession of the Leased Premises and shall occupy same for the purpose of fixturing and installing its inventory, at its own risk, for a period of ** ( * *) days after receipt of such notice or until the Lessee opens for business to the public in the Leased Premises, free of the payment of Gross Rent, and Additional Rent save for the obligation of the Lessee to pay for all utility charges used by the Lessee or consumed in the Leased Premises during the period of such fixturing, and shall during the period from the giving of such notice until the Commencement Date be a tenant in the Leased Premises subject to the same covenants and agreements as are contained in this Lease, mutatis mutandis. FURTHER PROVIDED THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY, if the Lessor is unable to deliver vacant possession of the Leased Premises to the Lessee for any reason, including but not limited to the holding over or retention of possession of any other lessee or occupant, or the lack of completion of any repairs, improvements or alterations required to be completed before the Lessee's occupancy of the Leased Premises, then the time for commencement of the Term shall be extended to correspond with the period of delay and the Lessee shall not be entitled to any abatement or diminution of Rent (except that Rent shall not commence to be payable until possession of the Leased Premises is given by the Lessor to the Lessee) nor shall the validity of this Lease or the parties' respective obligations hereunder be affected. However, if the Lessor does not give vacant possession of the Leased Premises to the Lessee within six (6) months of the date of this Lease, then the Lessor may, at is option, to«.,,;nora th;e r page. by written notice to the Lessee and in such event this Lease shall be null and void and Forthwith, upon the Commencement Date being determined in accordance with the foregoing, the Lessee shall execute an acknowledgement of same on Lessor's usual form. The Lessee shall pay all Gross Rent and Additional Rent calculated on a per diem basis, from the end of the rent -free period to the last day of the month in which the Commencement Date occurs and thereafter all payments of Rent shall be made on the first day of each month throughout the Term unless otherwise specified herein: 2.04 Option to Renew The Lessee shall have the option to renew this Lease for a further one (1) term of five (5) years at the then prevailing market rate upon the same terms and conditions as are contained herein except this provision for renewal and the amount of rent, by providing written notice of its intention to renew to the Lessor no later than six (6) months prior to the expiration of the Initial Term. ARTICLE III RENT AND DEPOSIT 3.01 Gross Rent The Lessee shall pay annual Gross Rent to the average amount of Twenty Three Dollars and Fifty Cents ($23.50) per square foot of Leased Premises. The Gross Rent shall be paid in equal monthly instalments, monthly in advance. According to the following schedule: Year 1 - $2,450.00 monthly ($21.00 per square foot) Year 2 .- $2,567.00 monthly ($22.00 per square foot) Year 3 - $2,683.00 monthly ($23.00 per square foot) Year 4 - $2,800.00 monthly ($24.00 per square foot) Year 5 - $2,917.00 monthly ($25.00 per square foot) Year 5 - $3,033.00 monthly ($26.00 per square foot) 3.01.1 The Lessee shall pay to the Lessor Additional Rent in the form of Percentage Rent equal to pour (4 %) Percent of the amount by which the Lessee's Annual Gross Receipts exceed One Million Two Hundred Fifty Thousand ($1,250,000.00) Dollars. In the event such Percentage Rent is payable for the Lease year, the Lessee shall provide such full payment by April 30`h in each calendar year. 3.02 Reports by Lessee a) The Lessee shall submit to the Lessor on or before the 1& day following the end of each calendar month during the Term and including the 10th day of the month following the end of the Term, at the place then fixed for the payment of Rent, a written statement signed by the Lessee showing the amount of Gross Receipts for the preceding month (and fractional month, if any) and the amount of Gross Receipts for all preceding months of such Lease Year; b) On or before the 60th day following the end of each Lease Year (including the last Lease Year of the Term) the Lessee shall submit to the Lessor a statement in such form, style and scope as the Lessor reasonably determines, showing the amount of Gross Receipts during the preceding Lease Year, which statement shall be duly certified to be correct by the Lessee. The Lessee will not change its procedure relating to any aspect of its reporting of Gross Receipts without the prior written consent of the Lessor, which consent shall not be unreasonably withheld. c) In addition to any other reports required by this Section 3.02, the Lessee shall also supply to the Lessor a statement of the approximate amount of Gross Receipts during any particular week in respect of which such a statement is requested by the Lessor, it being acknowledged that such weekly statement will be requested during weeks when promotions or other special activities are being carried on in the City Market. 3.03 Audit At its option, the Lessor may cause, at any reasonable time upon five (5) days' prior written notice to the Lessee, a complete audit to be made of the Lessee's entire business affairs and records relating to the T PACP/i PTPmivrQ fnr thr. nprinri nnvernd by anv statement issued by the Lessee nuronant to 5ention 3.02_ 3.04 Rent Past Due If the Lessee fails to pay, when the same is due and payable, any Gross Rent, Additional Rent or other amount payable by the Lessee under this Lease, such unpaid amounts shall bear interest from the due date thereof to the date of payment, compounded monthly at the rate equal to four (4) percentage points in excess of the Prime Rate. 3.05 Deposit The Lessor acknowledges receipt of Zero Dollars ($00.00) which it will apply towards the payment of Gross Rent for the first and last months of the Term except that the Lessor may apply all or part of the amount retained for application towards the last month's Gross Rent as compensation for any loss or damage arising from the breach by the Lessee of any provisions of this Lease. This right will not be construed to limit the Lessor's other rights under this Lease or at law or to limit the amount recoverable by the Lessor for damages in respect of breaches by the Lessee of this Lease. If the Lessor uses all or part of the deposit for the last month's Gross Rent as provided above, the Lessee will, upon notification by the Lessor, pay to the Lessor the amount required to reimburse it for the amounts so applied. The Lessor will not be required to pay interest to the Lessee on any of the amounts paid to the Lessor or retained by it under this section. The Lessor may deliver the aforesaid deposit to any purchaser of the Lessor's interest in the City Market or any part thereof, whereupon the Lessor will immediately be discharged from any further liability with respect to the deposit. The Lessee will not assign or encumber its interest in the deposit except in connection with a permitted Transfer, in which case the Lessee's interest in the deposit will be deemed to have been assigned to the permitted Transferee as of the date of the Transfer. 3.06 Pre - Authorized Payments/Postdated Cheques The Lessee may participate in a pre - authorized payment plan whereby the Lessor will be authorized to debit the Lessee's bank account each month from time to time during each Lease Year in an amount equal to the Gross Rent and Additional Rent payable on a monthly basis, and, if applicable, generally any amount payable provisionally pursuant to the provisions of this Lease on an estimated basis. In the event the Lessee opts to participate in the pre - authorized payment plan, the Lessee shall sign a form of application which is the same or similar to Schedule "D -1 ", to give full force and effect to the foregoing within five (5) days of presentation. In lieu of the pre - authorized payment plan referred to above, the Lessor shall be entitled to require the Lessee to present at the beginning of each Lease Year a series of monthly postdated cheques for each such Lease Year for the aggregate of the monthly payments of Gross Rent payable on a monthly basis, and, if applicable, any amount payable provisionally pursuant to the provisions of this Lease on an estimated basis. ARTICLE IV TAXES 4.01 Taxes Payable by the Lessor The Lessor shall pay all Taxes which are levied, rated, charged or assessed against the City Market or any part thereof subject always to the provisions of this Lease regarding payment of Taxes by the Lessee. However, the Lessor may defer payment of any such Taxes or defer compliance with any statute, law, by -law, regulation or ordinance in connection with the levying of any such Taxes in each case to the fullest extent permitted by law, so long as it diligently prosecutes any contest or appeal of any such Taxes. 4.02 Taxes Payable by Lessee a) The Lessee shall during the Term pay, without any deduction, abatement or set -off whatsoever, all Taxes levied, laid or assessed on or against the Leased Premises; b) In the case of assessments for local improvements or betterments which are assessed or imposed during the term and which may by law be payable in instalments, the Lessee shall only be obligated to pay such instalments as same fall due during the Term, together with interest on deferred payments; c) In any suit or proceeding of any kind or nature arising or growing out of the failure of the Lessee to keep any covenant contained in this Article, the certificate or receipt of the department, officer or bureau charged with collection of the Taxes, showing that the tax, assessment or other charge affecting the Leased Premises is due and payable or has been paid, shall be prima facia evidence that such tax, assessment or other charge was due and payable as a lien or charge against the Leased Premises or that it has been paid as such by d) The Lessee, if allowed by the taxing authority, shall have the right to contest or review by legal proceedings or in such manner as the Lessee in its opinion shall deem advisable (which proceedings or other steps taken by the Lessee shall be conducted diligently at its own expense and free of expense to the Lessor) any and all Taxes levied, assessed or imposed upon or against the Leased Premises or Taxes in lieu thereof required to be paid by the Lessee hereunder. No such contest shall defer or suspend the Lessee's obligations to pay the Taxes as herein provided pending the contest, but if by law it is necessary that such payment be suspended to preserve or perfect the Lessee's contest, then the contest shall not be undertaken without there being first deposited with the Lessor a sum of money equal to twice the amount of the Taxes that are the subject of the contest, to be held by the Lessor as an indemnity to pay such Taxes upon conclusion of the contest and all costs thereof that may be imposed upon the Lessor or the Leased Premises. Any costs associated with an appeal undertaken by the Lessor, the Lessee shall pay their proportionate share of such costs; e) The Lessee upon request of the Lessor will promptly exhibit to the Lessor all paid bills for Taxes which bills after inspection by the Lessor shall be returned to the Lessee. 4.03 HST Payable by Lessee The Lessee shall pay to the Lessor all HST on Rent and any other HST imposed by the applicable legislation on the Lessor or Lessee with respect to this Lease, in the manner and at the times required by the applicable legislation. Such amounts are not consideration for the rental of space or the provision by the Lessor of any service under this Lease, but shall be deemed to be Rent and the Lessor shall have all of the same remedies for and rights of recovery of such amounts as it has for recovery of Rent under this Lease. If a deposit is forfeited to the Lessor, or an amount becomes payable to the Lessor due to a default or as consideration for a modification of this Lease, and the applicable legislation deems a part of the deposit or amount to include HST, the deposit or amount will be increased and the increase paid by the Lessee so that the Lessor will receive the full amount of the forfeited deposit or other amount payable without encroachment by any deemed HST portion. 4.04 Business Taxes and Other Taxes of Lessee The Lessee shall pay to the lawful taxing authorities, when the same becomes due and payable: a) all taxes, rates, duties, assessments and other charges that are levied, rated, charged or assessed against or in respect of all improvements, equipment and facilities of the Lessee on or in the Leased Premises; and b) every tax and license fee which is levied, rated, charged or assessed against or in respect of any business carried on in the Leased Premises or in respect of the use or occupancy thereof whether in any case any such taxes, rates, duties, assessments or license fees are rated, charged or assessed by any federal, provincial, municipal or other body. ARTICLE V UTILITIES 5.01 Utilities The Lessee shall pay all utilities directly to the utility company, on a metered basis. In the event that a Lessee leases cooler space with the Leased Premises, the Lessee shall pay to the Lessor the Lessee's proportionate share of any utility consumed. ARTICLE VI MERCHANTS' ASSOCIATION 6.01 Merchants' Association If and when an association or corporation of merchants or lessees (the "Association ") is formed comprising tenants of the City Market, the Lessee shall forthwith become a member of such Association or if such an Association has already been formed, the Lessee shall forthwith become a member thereof and the Lessee shall retain its membership in such Association during the entire Term and shall abide by all 6.02 Promotion Fund The Lessee shall pay to the Lessor an amount equal to 6% of annual Gross Rent to be paid in twelve (12) monthly instalments each instalment payable on the 0 day of each month during the Term. ARTICLE VII CONDUCT OF BUSINESS BY TENANT 7.01 Use of Leased Premises a) The Leased Premises shall be used continuously, actively and diligently for the sole purpose of a general produce merchant, selling fresh fruits and vegetables, gourmet food items, dried food sundries, nuts, dried herbs, fruit juices, salad dressings and salad related products, produce books, fruit and gift baskets and accompanying line of wicker, dulse, fresh and dried Christmas wreaths. The Lessee will not use or permit or suffer the use of the Leased Premises or any part thereof for any other business or purpose. In connection with the business to be conducted by the Lessee on the Leased Premises, the Lessee shall only use the advertised name "Pete's Frootique" and will not change the advertised name of the business to be operated in the Leased Premises without the prior written consent of the Lessor. The Lessee shall not introduce new product lines, or offer new services to its customers without first obtaining the written consent of the Lessor. The Lessee acknowledges that it would be reasonable for the Lessor to withhold its consent if the introduction by the Lessee of such product line or service would compete with the business of other tenants in the City Market or infringe on exclusive covenants granted by the Lessor. Unless otherwise specifically set out in this Lease to the contrary, nothing contained in this Lease shall: (i) confer upon the Lessee the exclusive right to sell or provide in the City Market any of the products or services permitted to be sold or provided from the Leased Premises pursuant to this Section 7.01; nor (ii) prevent the Lessor from leasing any other premises in the City Market to any other tenant(s) carrying on a business which is similar in whole or in part to the business permitted to be carried on from the Leased Premises pursuant to this Section 7.01. b) The Lessee acknowledges that its continued occupancy of the Leased Premises and the regular conduct of business therein are of utmost importance to neighbouring tenants and to the Lessor in the renting of space in the City Market, the renewal of other leases therein, the efficient and economic supply of services and utilities, and in the character and quality of other tenants in the City Market. The Lessee therefore covenants and agrees that throughout the Term it will occupy the entire Leased Premises, comply strictly with the provisions of Section 7.01 and not vacate or abandon the Leased Premises at any time during the Term. The Lessee acknowledges that the Lessor is executing this Lease in reliance thereupon and that the same is a material element inducing the Lessor to execute this Lease. The Lessee further agrees that if it vacates or abandons the Leased Premises or fails to so conduct its business therein, or uses or permits or suffers the use of the Leased Premises for any purpose not specifically herein authorized and allowed, the Lessee will be in breach of the Lessee's obligations under the Lease, and then; without constituting a waiver of the Lessee's obligations or limiting the Lessor's remedies under this Lease, all Rent reserved in this Lease will immediately become due and payable to the Lessor unless guaranteed to the satisfaction of the Lessor. The Lessor will have the right, without prejudice to any other rights which it may have under this Lease or at law, to obtain an injunction requiring the Lessee to comply with the provisions of this Section 7.01(b). 7.02 Conduct and Operation of Business The Lessee small occupy the Leased Premises from and after the Commencement Date and thereafter shall conduct continuously and actively the business set out in Section 7.01, in the whole of the Leased Premises. In the conduct of the Lessee's business pursuant to this Lease the Lessee shall: a) operate its business with due diligence and efficiency and maintain an adequate staff to properly serve all customers; own, install and keep in good order and condition free from liens or rights of third parties, fixtures and equipment of first class quality; and carry at b) conduct its business in the Leased Premises during such hours and on such days as the Lessor from time to time requires or permits and at no other tune. However the Lessee is not required or permitted to carry on its business during any period prohibited by any law regulating the hours of business. If the Lessee fails to open on the Commencement Date or during the days and/or hours required by the Lessor, then in addition to all other amounts of Rent payable under this Lease the Lessee shall pay as Additional Rent to the Lessor upon demand as. liquidated damages and not as a penalty, an amount equal to two hundred fifty dollars ($250.00) per day for each and every day that the Lessee is in default. When not open for business the security of the Leased Premises is the sole responsibility of the Lessee; c) keep displays of merchandise in the display windows (if any) of the Leased Premises, and keep the display windows and signs (if any) in the Leased Premises well -lit during the hours the Lessor designates from time to time, acting reasonably; d) stock in the Leased Premises only merchandise the Lessee intends to offer for retail sale from the Leased Premises, and not use any portion of the Leased Premises for office, clerical or other non - selling purposes except minor parts reasonably required for the Lessee's business in the Leased Premises; e) abide by all rules and regulations and general policies formulated by the Lessor, acting reasonably, from time to time relating to the delivery of goods to the Leased Premises; f) not allow or cause to be committed any waste upon or damage to the Leased Premises or any nuisance or other act or thing which disturbs the quiet enjoyment of any other lessee in the City Market or which unreasonably disturbs or interferes with or annoys any third party, or which may damage the City Market; g) not allow or cause to be done any act in or about the Common Areas or the City Market which in the Lessor's opinion, acting reasonably, hinders or interrupts the City Market's flow of traffic in any way, obstructs the free movement or parties doing business in the City Market; h) not allow or cause business to be solicited in any part of the City Market other than the Leased Premises, nor display any merchandise outside the Leased Premises at any time without the prior written consent of the Lessor; i) use the name designated for the City Market by the Lessor from time to time and all insignia or other identifying names and marks designated by the Lessor in connection with the advertising of the business conducted in the Leased Premises. Notwithstanding the foregoing the Lessee will not acquire any rights in such names, marks or insignia and upon the Lessor's request the Lessee will abandon or assign to the Lessor any such rights which the Lessee may acquire by operation of law and will promptly execute any documents required by the Lessor to give effect to this subparagraph (i); j) -not install or allow in the Leased Premises any transmitter device nor erect any aerial on the roof of any building forming part of the City Market or on any exterior walls of the Leased Premises or in any of the Common Areas. Any such installation shall be subject to removal by the Lessor without notice at any time and such removal shall be done and all damage as a result thereof shall be made good, in each case, at the cost of the Lessee, payable as Additional Rent on demand; k) not use any travelling or flashing lights or signs or any loudspeakers, television, phonograph, radio or other audiovisual or mechanical devices in a manner so that they can be heard or seen outside of the Leased Premises without the prior written consent of the Lessor. If the Lessee uses any such equipment without receiving the prior written consent of the Lessor, the Lessor shall be entitled to remove such equipment without notice at any time and such removal shall be done and all damage as a result thereof shall be made good, in each case, at the cost of the Lessee, payable as Additional Rent on demand; 1) not install or allow in the Leased Premises any equipment which will exceed or overload the capacity of any utility, electrical or mechanical facilities in the Leased Premises or of which the Lessor has not approved. If the Lessee requires additional utility, electrical or mechanical facilities, the Lessor may in its sole discretion if they are available elect to install them at the Lessee's expense and in accordance with plans and specifications to be approved in advance in writing by the Lessor; machinery, equipment, article or thing shall be subject to removal by the Lessor without notice at any time and such removal shall be done and all damages as a result thereof shall be made good, in each case, at the cost of the Lessee, payable as Additional Rent on demand; n) observe and comply with all federal, provincial or municipal Iaws pertaining to or affecting the Leased Premises, the Lessee's use of the Leased Premises or the conduct of any business in the Leased Premises, or the making of any repairs, replacements, alterations, additions, changes, substitutions or improvements of or to the Leased Premises, and the regulations of any insurance underwriters in respect of the insurance maintained by the Lessor in respect of the City Market, and carry out all modifications to the Leased Premises and the Lessee's conduct of business or in use of the Leased Premises which may be required by any such authorities. 7.03 Prohibited Activities a) The Lessee acknowledges that it is only one of many tenants in the City Market and that therefore the Lessee shall conduct its business in the Leased Premises in a manner consistent with the best interests of the City Market as a whole; b) The Lessor shall have the right to cause the Lessee to discontinue and the Lessee shall thereupon forthwith discontinue the sale of any item, merchandise, commodity or the supply of any service or the carrying on of any business, any of which is either prohibited by this Section 7.03 or which the Lessor, acting reasonably, determines is not directly related to the business set out in Section 7.01. The Lessee will not allow or cause the use of any part of the Leased Premises for any of the following businesses or activities: i. the sale of secondhand goods or surplus articles, insurance salvage stock, fire sale stock or bankruptcy stock; ii. the sale of goods, except as may be specifically permitted by the provisions of Section 7.01; iii. an auction, bulk sale (other than a bulk sale made to an assignee or sublessee pursuant to a permitted assignment or subletting hereunder), liquidation sale, "going out of business" or bankruptcy sale, or warehouse sale; iv. any advertising or selling procedures which would, or any sale or business conduct or practice which would, because of the merchandising methods 'or quality of operation likely to be used, in either case in the Lessor's opinion, tend to lower the character of the City Market or harm or tend to harm the business or reputation of the Lessor or reflect unfavourably on the City Market, the Lessor or other tenants in the City Market or tend to confuse, deceive, mislead or be fraudulent to the public; or v. a mail order business or a department store, junior department store or variety store. 7.04 Hazardous Substances The Tenant covenants and agrees to utilize the Leased Premises and operate its business in a manner so that no part of the Leased Premises or surrounding lands are used to generate, manufacture, refine, treat, transport, store, handle, dispose of, transfer, produce or process any Hazardous Substance, except in strict compliance with all applicable federal, provincial and municipal statutes, by -laws and regulations, including, without limitation, environmental, land use and occupational and health and safety laws, regulations, requirements, permits, statutes, by -laws and regulations. Further the Lessee hereby covenants and agrees to indemnify and save harmless the Lessor and those for whom the Lessor is in law responsible from any and all loses, costs, claims, damages, liabilities, expenses or injuries caused or contributed to by any Hazardous Substances which are at any time located, stored or incorporated in any part of the Leased Premises. The Lessee hereby agrees that the Lessor or its authorized representatives shall have the right at the Lessee's expense, payable as Additional Rent within fifteen (15) days of receipt of an invoice therefor, to conduct such environmental site reviews and investigations as it may deem necessary for the purpose of ensuring compliance with this Section 7.04. The Lessee's obligations pursuant to this Section 7.04 shall survive the expiration or earlier termination of the Term. ARTICLE VIII FIXTURES, ALTERATIONS AND REPAIRS AND LESSOR'S CONTROL OF CITY MARKET 8.01 Installations by the Lessee All equipment, fixtures and improvements installed by the Lessee in the Leased Premises shall be new or completely reconditioned. The Lessee shall not make any alterations, additions or improvements or install or cause to be installed any trade fixtures, exterior signs, floor covering, interior or exterior lighting, plumbing fixtures, shades or awnings or make any changes to the store front without first obtaining the Lessor's written approval and consent. The Lessee shall present to the Lessor plans and specifications in form, content and such detail as the Lessor may reasonably require for such work at the time approval is sought. The Lessee covenants that any work that may be done in respect of the Leased Premises by or on behalf of the Lessee shall be done in such a manner as not to conflict or interfere with any work being done or about to be done by the Lessor in or about the City Market, whether such conflict or interference shall arise in relation to labour unions or otherwise and the Lessee shall obtain all requisite permits, licenses and inspections in respect of any such work done by or on the Lessee's behalf Notwithstanding anything herein contained, the Lessee shall make no alterations, additions or improvements that are of a structural nature or that would lessen the value or Rentable Area of the Leased Premises or the City Market, or would interfere with the usage of the Common Areas. All alterations, decorations, additions and improvements made by the Lessee or made by the Lessor on the Lessee's behalf by agreement under this Lease shall immediately upon installation or affixation become the property of the Lessor without compensation therefor to the Lessee, but the Lessor shall be under no obligation to repair, maintain or insure the alterations, - decorations, additions or improvements. Such alterations, decorations, additions and improvements shall not be removed from the Leased Premises without prior consent in writing from the Lessor. Upon expiration of this Lease, the Lessee shall, at the option of the Lessor, remove all trade fixtures and personal property and shall remove all such alterations, decorations, additions and improvements and restore the Leased Premises as required by the Lessor. 8.02 Maintenance and Repair by the Lessee The Lessee will at all times keep the Leased Premises (including exterior entrances and all glass and show windows) and all partitions, doors, fixtures, equipment and appurtenances thereof (including lighting, heating and plumbing fixtures, and the electrical and mechanical systems) in good order, condition and repair (including periodic painting or redecorating and preventative maintenance as determined by the Lessor and including such repairs or replacements as are required to keep the Leased Premises in good repair and condition). All aforesaid maintenance, repairs, restorations and replacements shall be in quality and class equal to the original work or installations. 8.03 Signs, Awnings, Canopies The Lessee will not place or suffer to be placed or maintained on any exterior door, wall or window of the Leased Premises any sign, awning or canopy or advertising matter or other thing of any kind, and will not place or maintain any decoration, lettering or advertising matter on the glass of any window or door of the Leased Premises without first obtaining the Lessor's written approval and consent. The Lessee further agrees to maintain such sign, awning, canopy, decoration, lettering, advertising matter or other thing as may be approved in good condition and repair at all times, and in addition to the foregoing, the Lessee shall maintain any signs or displays of its goods or wares which may be seen from the exterior of the Leased Premises in a manner which is in keeping with the character of the City Market of which the Leased Premises form a part and which is designed to enhance the business of the Lessee. 8.04 Surrender of Leased Premises Subject to Article 10.01, the Lessee will leave the Leased Premises in good repair, reasonable wear and tear only excepted. Without limiting the generality of the foregoing, at the expiration or earlier termination of the Term the Lessee shall surrender the Leased Premises in the same condition as the Leased Premises were in upon delivery of possession thereto under this Lease, reasonable wear and tear only excepted, and shall surrender all keys for the Leased Premises to the Landlord at the place then fixed for the payment of Rent and shall inform the Lessor of all combinations on locks, safes and vaults, if any, in the Leased Premises. Should the Lessee fail to remove its fixtures and personal property, such fixtures and personal property shall be deemed to be abandoned by the Lessee and may be appropriated, sold or otherwise disposed of by the Lessor without notice or obligation to compensate the Lessee or to account 8.05 Lessee to Discharge all Liens The Lessee will ensure that no construction or other lien or charge, or notice thereof, is registered or filed against: a) the City Market or any part of it; or b) the Lessee's interest in the Leased Premises or any of the leasehold improvements in the Leased Premises. by any person claiming by, through, under or against the Lessee or its contractors or subcontractors. If such a lien or charge or notice thereof is registered or filed and the Lessee fails to discharge it within five (5) days after written notice from the Lessor, the Lessor may discharge it by paying the amount claimed to be due into court or directly to the claimant and the Lessee will pay to the Lessor as Additional Rent on demand all costs (including legal fees) incurred by the Lessor in connection therewith, together with an administrative overhead charge of fifteen percent (15 %) thereon. 8.06 Rules and Regulations The Lessee will comply with the Rules and Regulations. The Lessor reserves the right from time to time to amend or supplement the Rules and Regulations. Notice of such amendments and supplements, if any, shall be given to the Lessee, and the Lessee agrees thereupon to comply with and observe all such amendments and supplements, provided that no Rule or Regulation shall contradict any provision of this Lease. The Lessor shall not be responsible to the Lessee for non - observance or violation of any of the provisions of such Rules and Regulations by any other tenant of the City Market or of the terms of any other lease of premises in the City Market and the Lessor shall be under no obligation to enforce any such provisions. All Rules and Regulations shall be enforced against the Lessee in a non - discriminatory manner. 8.07 Maintenance and Repair by the Lessor The Lessor shall, subject to the other provisions of this Lease, maintain and repair or cause to be maintained and repaired, the structure of the City Market, including without limitation, the foundations, exterior weather walls, subfloor, roof, bearing walls and structural columns and beams of the City Market. If, however, the Lessor is required to maintain or repair any structural portions or any other portion of the Leased Premises or the City Market by reason of the negligent acts or omissions of the Lessee, its employees, agents, invitees, suppliers, agents and servants of suppliers, licensees, concessionaires or subtenants, the Lessee shall pay on demand as Additional Rent, the Lessor's costs for making such maintenance or repairs, together with an administrative fee of fifteen percent (15 %) of such costs. 8.08 Control of City Market by Lessor The City Market and the Common Areas are at all times subject to the exclusive control and management of the Lessor. Without limiting the generality of the foregoing, the Lessor has the right in its control, management and operation of the City Market and by the establishment of rules and regulations and general policies with respect to the operation of the City Market or any part thereof at all times throughout the Term to construct, maintain and operate lighting facilities and heating, ventilating and air conditioning systems; provide supervision and policing services for the City Market; close all or any portion of the City Market to such extent as may in the opinion of the Lessor's counsel be legally sufficient to prevent a dedication thereof or the accrual of any rights to any third party or the public; grant, modify and terminate easements or other agreements pertaining to the use and maintenance of all or any part of the City Market; obstruct or close off all or any part of the City Market for the purpose of maintenance, repair or construction, employ all personnel, including supervisory personnel and managers necessary for the operation, maintenance and control of the City Market; use any part of the Common Areas from time to time for merchandising, display, decorations, entertainment and structures designed for retail selling or special features or promotional activities; designate the areas and entrances and the times in, through and at which loading and unloading of goods shall be carried out; control, supervise and generally regulate the delivery or shipping of merchandise, supplies and fixtures to and from the Leased Premises, and other portions of the City Market; designate and specify the kind of container to be used for garbage and refuse in the manner and the rimes and places at which same is to be placed for collection (if the Lessor for the more efficient and proper operation of the City Market provides or designates a commercial service for the pickup and disposal of refuse and garbage instead of or in addition to the service provided by the municipality, the Lessee shall use same at the Lessee's cost); from time to time change the area, level, location, arrangement or use of the City Market or any part thereof; construct other buildings or improvements in the City Market and make changes to any part thereof; construct other buildings or improvements in the City Market and make changes to any part of the City Market; and do and perform such other acts in and to the City Market as in the use of good business judgment the Lessor determines to Notwithstanding anything to the contrary, if as a result of the exercise by the Lessor of any of its rights as set out in this Section 8.08, the Common Areas are diminished or altered in any manner whatsoever, the Lessor is not subject to any liability nor is the Lessee entitled to any compensation or diminution or abatement of Rent nor is any alteration or diminution of the Common Areas deemed constructive or actual eviction, or a breach of any covenant for quiet enjoyment contained in this Lease. 8.09 Lessor's Right to Enter Leased Premises a) It is not a re -entry or a breach of quiet enjoyment if the Lessor or its authorized representatives enter the Leased Premises at reasonable times to: i. examine them; ii. make permitted or required repairs, alterations, improvements or additions to the Leased Premises (including the pipes, conduits, wiring, ducts, columns and other installations in the Leased Premises) or the City Market or adjacent property; or iii. excavate land adjacent or subjacent to the Leased Premises; in each case (to the extent reasonably possible in the circumstances) without unreasonably interfering with the Lessee's business operations in the Leased Premises, and the Lessor may take material into and on the Leased Premises for those. purposes. Rent will not abate or be reduced while the repairs, alterations, improvements or additions are being made.. The Lessor will take reasonable steps to minimize any interruption of business resulting from any entry. b) At any time during the Term, the Lessor may exhibit the Leased Premises to prospective purchasers and during the six (6) months prior to the expiration of the term of this Lease, the Lessor may exhibit the Leased Premises to prospective tenants and place upon the Leased Premises the usual notice "To Let" which notice the Lessee shall permit to remain where placed without molestation; c) If the Lessee shall not be personally present to open and permit an entry into the Leased Premises, at any time, when for any reason an entry therein shall be necessary or permissible, the Lessor or the Lessor's agents may enter the same by a master key, or may forcibly enter the same, without rendering the Lessor or such agents liable therefor, and without in any manner affecting the obligations and covenants of this Lease; d) Nothing in this Section contained, however, shall be deemed or construed to impose upon the Lessor any obligation, responsibility or liability whatsoever for the care, maintenance or repair of the City Market or any part thereof, except as otherwise in this Lease specifically provided. ARTICLE IX INSURANCE AND INDEMNITY 9.01 Lessee's Insurance a) . The Lessee shall throughout the Term, at its own cost and expense, take out and keep in full force and effect the following insurance: All -risk insurance upon property owned by the Lessee or for which the Lessee is legally liable (including, signs and plate glass) and which is located within the City Market in an amount of not less than the full replacement cost thereof; ii. Comprehensive General Liability with minimum limits of at least Two Million Dollars ($2,000,000.00) or such higher limits as the Lessor may reasonably require from time to time. This policy shall include: a) The City added as an Additional Insured; b) Inclusive limits for bodily injury and property damage; c) Personal injury liability; d) Tenant's Legal Liability; el Contractual Liabilitv with respect to this Lease. g) Completed Operations; h) A Cross Liability Clause; i) A Thirty (30) days written notice of Cancellation shall be given to the City of Saint John. iii, The Lessee shall also provide any other form of insurance as the Lessee or the Lessor may reasonably require from time to time in form, in amounts and for insurance risks against which a prudent tenant would insure. b) All policies shall be taken out with reputable and recognized insurers acceptable to the Lessor and shall be in a form satisfactory from time to time to the Lessor. The Lessee agrees that certificates of insurance of each such insurance policy will be delivered to the Lessor as soon as practicable after the placing of the required insurance. All policies shall contain an undertaking by the insurers to notify the Lessor in writing not less than thirty (30) days prior to any material change, cancellation or termination thereof; c) The Lessee agrees that if the Lessee fails to take out or keep in force any such insurance referred to in this Section 9.01, or should any such insurance not be approved by the Lessor and should the Lessee not rectify the situation immediately after written notice by the Lessor to the Lessee, the Lessor has the right without assuming any obligation in connection therewith to effect such insurance at the sole cost of the Lessee and all outlays by the Lessor shall be immediately paid by the Lessee to the Lessor as Additional Rent without prejudice to any other rights and remedies of the Lessor under this Lease. 9.02 Increase in Insurance Premium The Lessee will not allow or cause anything to occur in the Leased Premises which shall cause any increase of premium for any insurance on the Leased Premises or. the City Market or any part thereof above the rate for the least hazardous type of occupancy legally permitted in the Leased Premises. If the Lessee is in default under this Section 9.02 the Lessee shall pay any resulting additional premium on any insurance policies taken out or maintained by the Lessor, or if any insurance policy upon the Leased Premises or the City Market or any part thereof shall be cancelled or refused to be renewed by an insurer by reason of the use or occupation of the Leased Premises or any part thereof or the acts or omissions of the Lessee, the Lessee shall forthwith remedy or rectify such use or occupation upon request to do so in writing by the Lessor, and if the Lessee shall fail to do so within twenty -four (24) hours of such written request, the Lessor shall have the right to enter the Leased Premises and rectify the situation, without liability to the Lessee for any loss or damage occasioned by such entry and rectification, or shall be entitled to hold the Lessee liable for any damage or loss resulting from such cancellation or refusal, or the Lessor may at its option determine this Lease forthwith by leaving upon the Leased Premises notice in writing of its intention to do so, and thereupon Rent and any other payments for which the Lessee is liable under this Lease shall be apportioned and paid in full to the date of such determination of the Lease, and together with an amount equal to the Gross Rent payable for a period of one (1) year as liquidated damages, and the Lessee shall immediately deliver up possession of the Leased Premises, a schedule issued by the organization malting the insurance rate on the Leased Premises, showing the various components of such rate, shall be conclusive evidence of the several items and charges which make the fire insurance rate of the Leased Premises. Bills for such additional premiums shall be rendered by the Lessor to the Lessee at such times as the Lessor may elect and shall be due from and payable by the Lessee when rendered, and the amount thereof shall be deemed to be and be paid as Additional Rent. 9.03 Loss or Damage The Lessor shall not be liable for any death or injury arising from or out of any occurrence in, upon, at or relating to the City Market, or damage to property of the Lessee or of others located on the Leased Premises, nor shall it be responsible for any loss of or damage to any property of the Lessee or others from any cause whatsoever, except any such death, injury, loss or damage results from the negligence of the Lessor, its agents, servants or employees or other persons for whom the Lessor is in law responsible. Without limiting the generality of the foregoing, the Lessor shall not be liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain, flood, snow or leaks from any part of the Leased Premises or from the pipes, appliances, . plumbing works, roof or subsurface of any floor or ceiling or from the street or any other place or other tenants or persons in the City Market or by occupants of adjacent property thereto, or the public, or caused by construction or by any private, public or quasi - public work. All property of the Lessee kept or stored on the Leased Premises shall be so kept or stored at the risk of the Lessee only and the Lessee shall indemnify the Lessor and save it harmless from any claims arising out of any damages to the same, including, without limitation, any subrogation claims by the Lessor's insurers. In no event shall the Lessor be liable for any injury to the Lessee, its servants, agents, employees, customers and invitees or for any injury or damage to ..ir +L.a T ueoaa nr to anv nrnnatty of anv nfbP.T T1P.rCiltl_ firrn Or 9.04 Indemnification of the Lessor The Lessee will indemnify the Lessor, and save harmless from and against any and all claims, actions, damages, liability and expense in connection with loss of life, personal injury and/or damage to property arising from or out of any occurrence in, upon or at the Leased premises, the occupancy or use by the Lessee of the Leased premises or any part thereof, or occasioned wholly or in part by any act or omission of the Lessee, its agents, contractors, employees, servants, licensees, or concessionaires or invitees. In case the Lessor shall, without fault on its part, be made a party to any litigation commenced by or against the Lessee, then the Lessee shall protect and hold it harmless and shall pay all costs, expenses and solicitors' and counsel fees on a solicitor and client basis incurred or paid by them in connection with such litigation. ARTICLE X DAMAGE, DESTRUCTION AND EXPROPRIATION 10.01 Total or Partial Destruction of Leased Premises If, during the Term, the Leased Premises are expropriated or totally or partially destroyed or damaged by any cause in respect of which the Lessor is insured, the following provisions shall have effect: a) If the Leased Premises are rendered partially unfit for occupancy by the Lessee, Gross Rent only shall abate in part only, in the proportion that the part of the Leased Premises rendered unfit for occupancy by the Lessee bears to the whole of the Leased Premises or if the Leased Premises are rendered wholly unfit for occupancy by the Lessee the Rent hereby reserved shall be suspended in either event until the day following a reasonable period (taking into account the extent of the Lessee's restoration) following completion of the Lessor's restoration; b) Notwithstanding the provisions of subparagraph (a), if the Leased Premises in the opinion of the Architect shall be incapable of being rebuilt and/or repaired or restored with reasonable diligence within 180 days of the happening of such destruction or damage, then the Lessor may at its option terminate this Lease by notice in writing to the Lessee given within thirty (30) days of the date of such destruction or damage and in the event of such notice being so given this Lease shall cease and become null and void from the date of such destruction or damage and the Lessee shall immediately surrender. the Leased Premises and all interest therein to the Lessor and the Rent shall be apportioned and shall be payable by the Lessee only to the date of such destruction or damage and the Lessor may re -enter and repossess the Leased Premises discharged of this Lease; If the Leased Premises are capable of being rebuilt and/or repaired or restored within 180 days of the happening of such damage or destruction or if within the period of thirty (30) days referred to in Section 10.01(b) the Lessor shall not give notice terminating this Lease, the Lessor shall with reasonable promptitude proceed to rebuild and/or repair or restore the Leased Premises to the extent of the Lessor's repair obligations under the Lease and the Lessee shall immediately upon substantial completion of the Lessor's work and, within a reasonable period determined by the Lessor (given the extent of the Lessee's restoration) complete the restoration of the Leased Premises. The certificate of the Architect shall bind the parties as to the (i) extent to which the Leased Premises are unfit for occupancy; (ii) time required to rebuild and/or repair or restore the Leased Premises; and (iii) due completion of repairs. 10.02 Total or Partial Destruction of City Market In the event that a substantial portion of the City Market shall be expropriated or damaged or destroyed by fire or other cause, or in the event the costs as estimated by the Lessor of repairing, restoring or rebuilding will exceed by $250,000 or more the proceeds of insurance available to the Lessor, notwithstanding that the Leased Premises may be unaffected, or in the event the Lessor shall have the right, to be exercised by notice in writing delivered to the Lessee within sixty (60) days from and after said occurrence, to elect to cancel and terminate this Lease. Upon the giving of such notice to the Lessee, the Term of this Lease shall expire upon the third (3'd) day after such notice is given, and the Lessee shall vacate the Leased Premises and surrender the same to the Lessor. 10.03 Abatement of Rent Notwithstanding anything herein before contained, all abatements of Rent set out in this Article X shall be limited to an amount equal to the amount which the Lessor collects under any rental income insurance. 10.04 Expropriation Awards The Lessor and the Lessee will co- operate with each other if there is an expropriation of all or part of the Leased Premises or the City Market, so that each may receive the maximum award that it is entitled to at law. To the extent, however, that a part of the City Market, other than the Leased Premises, is expropriated, the fall proceeds that are paid or awarded as a result, will belong solely to the Lessor, and the Lessee will assign to the Lessor any rights that it may have or acquire in respect of the proceedings or awards and will execute the documents that the Lessor reasonably requires in order to give effect to this intention. ARTICLE XI STATUS STATEMENT, SUBORDINATION AND ATTORNMENT 11.01 Status Statement Within fifteen (15) days after request, the Lessee will sign and deliver to the Lessor a status statement or certificate, stating that this Lease is in f t1l.force and effect, any modifications to this Lease, the commencement and expiry dates of this Lease, the date to which Rent has been paid, the amount of any prepaid Rent or deposits held by the Lessor, whether there is any existing default and the particulars, and any other information required by the party requesting it. 11.02 Power of Attorney The Lessee hereby irrevocably appoints the Lessor as the attorney for the Lessee with full power and authority to execute and deliver in the name of the Lessee any instruments or certificates required to carry out the intent of Section 11.01 which the Lessee shall have failed to sign and deliver within fifteen (15) days after the date of a written request by the Lessor to execute such instruments. ARTICLE X11 TRANSFERS BY LESSEE 12.01 Transfer Defined "Transfer" means, (i) an assignment, sale, conveyance, sublease, or other disposition of this Lease or the Leased Premises, or any part of them or any interest in this Lease (whether by operation of law or otherwise), or in a partnership that is a Lessee under this Lease, (ii) a mortgage, charge or debenture (floating or otherwise) or other encumbrance of this Lease or the Leased Premises or any part of them, or of any interest in this Lease or of a partnership, or partnership interest, where the partnership is a Lessee under this Lease, (iii) a parting with or sharing of possession of all or part of the-Leased Premises, and (iv) a transfer or issue by sale, assignment, bequest, inheritance, operation of law or other disposition, or by subscription of all or part of the corporate shares of the Lessee or an "affiliate" (as that term is defined on the date of this Lease under the Canada Business Corporations tact) of the Lessee which results in a change in the effective voting control of the Lessee. "Transferor" and "Transferee" have meanings corresponding to the definition of "Transfer" set out above, (it being understood that for a Transfer described in clause (iv) the Transferor is the person that has effective voting control before the Transfer and the Transferee is the person that has effective voting control after the Transfer). 12.02 Consent Required The Lessee will not allow or cause a Transfer, without the prior written consent of the Lessor in each instance which consent may not be unreasonably withheld. Notwithstanding any statutory provisions to the contrary, Lessor's consent shall not be deemed to have been unreasonably withheld where Lessor refuses consent to a Transfer within twenty-four (24) months of either the Commencement Date or a previous Transfer. Without limiting the generality of the foregoing, no Transfer shall be effective and no consent shall be given unless the following provisions have been complied with: There is no default of the obligations of the Lessee under this Lease; ii. The Lessee shall have given at least thirty (30) days' prior written notice of the proposed Transfer and the effective date thereof to the Lessor; iii. A duplicate original of the documents affecting the Transfer shall be given to the Lessor iv. The Transferee, except in the case of a Transfer described in Section 12.01 (iv), shall have assumed in writing with the Lessor the due and punctual performance and observance of all the agreements, provisions, covenants and conditions hereof on the Lessee's part to be performed or observed from and after the effective date of the Transfer. The Lessee acknowledges that the factors governing the granting of the Lessor's consent to any Transfer may include, without limitation, the restrictive clauses entered into with other tenants by the Lessor, the financial background, business history and the capability of the proposed Transferee in the Lessee's line of business, and the nature of the business practices of the proposed Transferee. The consent by the Lessor to any Transfer shall not constitute a waiver of the necessity for such consent to any subsequent Transfer. If a Transfer takes place, the Lessor may collect rent from the Transferee, and apply the net amount collected to the Rent herein reserved, but no such action shall be deemed a waiver of the requirement to obtain consent or the acceptance of the Transferee as lessee, or a release of the Lessee or any Indemnifier from the further performance by the Lessee of covenants on the part of the Lessee herein contained. Notwithstanding any Transfer, the Lessee shall remain fully liable under this Lease and shall not be released from performing any of the obligations of the Lessee under this Lease. Any Transfer, if consented to by the Lessor, may at the Lessor's option be documented by the Lessor or its solicitors, and any and all legal costs and the Lessor's then- standard fee with respect thereto or to any documents reflecting the Lessor's consent to the Transfer shall be payable by the Lessee on demand as Additional Rent. 12.03 No Advertising of Leased Premises The Lessee shall not print, publish, post, display or broadcast any notice or advertisement to the effect that the Leased Premises are for lease or for sale or otherwise advertise the proposed sale or lease of the whole or any part of the Leased Premises and shall not permit any broker or other party to do any of the foregoing, unless the complete text and format of any such notice, advertisement or offer is first approved in writing by the Lessor. Without in any way restricting or limiting the Lessor's right to refuse any text or format on other grounds, any text or format proposed by the Lessee shall not contain any reference to the rental rate of the Leased Premises. ARTICLE XIH DEFAULT OF LESSEE 13.01 Right to Re -Enter When a) the Lessee shall be in default in the payment of any Rent whether lawfully demanded or not and such default shall continue for a period of five (5) consecutive days; or b) the Lessee shall be in default of any of its covenants, obligations or agreements under this Lease or of any term or condition of this Lease (other than its covenant to pay Rent) and such default shall continue for a period of fifteen (15) consecutive days or such longer or shorter period as the Lessor, acting reasonably, determines after five (5) days written notice by the Lessor to the Lessee specifying with reasonable particularity the nature of such default and requiring the same to be remedied; then and in any of such cases the then current month's Rent, together with the Rent for the three (3) months next ensuing shall immediately become due and payable, and at the option of the Lessor, the Terms shall become forfeited and void, and the Lessor may without notice or any form of legal process whatsoever forthwith re -enter upon the Leased Premises or any part thereof in the name of the whole and repossess and enjoy the same as of its former estate, anything contained in any statute or law to the contrary notwithstanding, provided however, that such forfeiture shall be wholly without prejudice to the right of the Lessor to recover arrears of rent or damages for any antecedent default by the Lessee of its covenants, obligations or agreements under this Lease or any term or condition of this Lease and provided further that notwithstanding any such forfeiture the Lessor may subsequently recover from the Lessee damages for loss of Rent suffered by reason of this Lease having been prematurely determined. In addition, the Lessor shall have the right to remove and sell the Lessee's goods and chattels and trade fixtures and apply the proceeds thereof to Rent due under the Lease. 13.02 Right to Re -Let Should the Lessor elect to re- enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time without terminating this Lease, make such alterations and repairs as may be necessary in deem advisable; upon each re- letting all rentals received by the Lessor from such re- letting shall be applied; fast, to the payment of any indebtedness other than rent due hereunder from the Lessee to the Lessor; second, to the repayment of any reasonable costs and expenses of such re- letting, including brokerage fees and solicitors' fees and of costs of such alterations and repairs; third, to the payment of Rent due as the same may become due and payable hereunder. If such Rent received from such re- letting during any month be less than that to be paid during that month by the Lessee hereunder, the Lessee shall pay any such deficiency to the Lessor. Such deficiency shall be calculated and paid monthly. No such re -entry or taking possession of the Leased Premises by the Lessor shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to the lessee or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such re- letting without termination, the Lessor may at any time thereafter elect to terminate this Lease for such previous breach. Should the Lessor at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from the Lessee all damages it may incur by reason of such breach, including the cost of recovering the Leased Premises, and including the worth at the time of such termination of the excess, if any, of the amount of Rent and charges equivalent to Rent reserved in this Lease for the remainder of the Term hereof over the then reasonable rental value of the Leased Premises for the remainder of the Term hereof, all of which amounts shall be immediately due and payable from the Lessee to the Lessor. In determining the Rent which would be payable by,the Lessee hereunder, subsequent to default, the annual Rent for each year of the.unexpired Term shall be equal to the greater of. (a) the average annual Gross Rent and Percentage Rent payable by the Lessee from the Commencement Date to the time of default or during the preceding three (3) full calendar years, whichever period is shorter; and (b) Gross Rent payable hereunder, together with all Additional Rent which would have been payable during the calendar year in which this Lease was terminated, prorated over a fall calendar year, if required. 13.03 Legal Expenses In case suit shall be brought for recovery of possession of the Leased Premises, for the recovery of Rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of the Lessee to be kept or performed and a breach shall be established, the Lessee shall pay to the Lessor all expenses incurred therefor, including reasonable solicitors' and counsel fees on a solicitor and his client basis. 13.04 Bankruptcy The Lessee covenants and agrees that if the Term or any of the goods and chattels of the Lessee on the Leased Premises shall be at any time during the Term-seized or taken in execution or attachment by any creditor of the Lessee or if a receiver, interim receiver or receiver and manager is appointed for the assets or business of the Lessee or if the Lessee shall make any assignment for the benefit of creditors or any bulk sale or, becoming bankrupt or insolvent, shall take the benefit of any Act now or hereafter in force for bankrupt or insolvent debtors or if any order shall be made for the winding up of the Lessee, or if the Leased Premises shall without the written consent of the Lessor become and remain vacant for a period of fifteen (15) days, or be used by any other persons than such as are entitled to use them under the terms of this Lease, or if the Lessee shall without the written consent of the Lessor abandon or attempt to abandon the Leased Premises or to sell or dispose of goods or chattels of the Lessee or to remove them or any of them from the Leased Premises so that there would not in the event of such abandonment, sale or disposal be sufficient goods on the Leased Premises subject to distress to satisfy the Rent above due or accruing due, then and in every such case the then current month's Rent and the next ensuring three (3) months' Rent shall immediately become due and be paid and the Lessor may re -enter and take possession of the Leased premises as though the Lessee or the servants of the Lessee or any other occupant. of the Leased Premises were holding over after the expiration of. the Term and the Term shall, at the option of the Lessor, immediately without any notice or opportunity for cure provided to the Lessee, become forfeited and determined, and in every one of the cases above such accelerated Rent shall be recoverable by the Lessor in the same manner as the Rent hereby reserved and if Rent were in arrears and the said option shall be deemed to have been exercised if the Lessor or its agents given notice to the Lessee as provided for herein. 13.05 Lessor May Perform Lessee's Covenants If the Lessee shall fail to perform any of its covenants or obligations under or in respect of this Lease, the Lessor may: from time to time at its discretion, perform or cause to be performed any such covenants or obligations, or any part thereof, and for such purpose may do such things upon or in respect of the Leased Premises or any part thereof as the Lessor may consider requisite or necessary. All expenses incurred and expenditures made by or on behalf of the Lessor under this Section, together with an administrative fee equal to fifteen (15 %) percent thereon, shall be forthwith paid by the Lessee to the Lessor on demand as Additional Rent. 13.06 Waiver of Exemptions from Distress Despite any applicable Act, legislation or any legal or equitable rule of law: (a) none of the inventory, furniture, equipment or other property at any time owned by the Lessee is exempt from distress; and (b) no lack of compliance with any requirement concerning the day of the week, time of day or night, method of entry, giving of notice, appraising of goods, or anything else, will render any distress unlawful where the Lessee owes arrears of Rent at the time of the distress. 13.07 Remedies Cumulative No reference to nor exercise of any specific right or remedy by the Lessor will prejudice or preclude the Lessor from exercising or invoking any other remedy in respect thereof, whether allowed at law or expressly provided for in this Lease. No such remedy will be exclusive or dependent upon any other such remedy, but the Lessor may from time to time exercise any one or more of such remedies independently or in combination. ARTICLE XIV MISCELLANEOUS 14.01 Overholding If the Lessee remains in possession of the Leased Premises after the end of the Term and without the execution and delivery of a new lease, there shall be no tacit renewal of this Lease and the Term hereby granted, and the Lessee shall be deemed to be occupying the Leased Premises as a Lessee from month to month at monthly rent payable in advance on the first day of each month equal to the sum, of- i. one and one half (1 '/2) times the Gross Rent payable during the last month of the Tenn; and ii. one - twelfth of the Additional Rent payable by the Lessee for the Lease Year immediately preceding the last Lease Year of the Term; and otherwise upon the same terms and conditions as are set forth in this Lease, except as to duration of Term, and any right of renewal mutatis mutandis. 14.02 Successors This Lease applies to the successors and assigns of the Lessor and, if Article XII is complied with, the heirs, executors, administrators and permitted successors and permitted assigns of the Lessee. If there is more than one party named as Lessee, they are jointly and severally liable under this Lease. 14.03 Waiver Failure by the Lessor to require performance of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or of any subsequent breach of the same or of any other term, covenant or condition herein contained. The subsequent acceptance of Rent hereunder by the Lessor shall not be deemed to be a waiver of any preceding breach of the Lessee of any term, covenant or condition of this Lease, other than the failure of the Lessee to pay the particular rent so accepted, regardless of the Lessor's knowledge of such preceding breach at the time of acceptance of such Rent, No covenant, term or condition of this Lease shall be deemed to have been waived by the Lessor, unless such waiver be in writing by the Lessor. 14.04 Accord and Satisfaction No payment by the Lessee or receipt by the Lessor of a lesser amount than the monthly Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement or any cheque or any letter accompanying any cheque or payment as Rent be deemed an accord and satisfaction, and the Lessor may accept such cheque or payment without prejudice to the Lessor's right to recover the balance of such Rent or pursue any other remedy in this Lease provided. 14.05 Entire Agreement This Lease sets forth all the covenants, promises, agreements, conditions and understandings between the Lessor and the Lessee concerning the Leased Premises and there are no covenants, promises, agreements, conditions or representations, either oral or written, between them other than are herein and in the said schedules and rider, if any, set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon the Lessor or the Lessee unless reduced to writing and signed by them. 14.06 No Partnership The Lessor does not, in any way or for any purpose, become a partner of the Lessee in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with the Lessee. 14.07 Force Majeure In the event that either parry hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock -outs, labour troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Notwithstanding anything herein contained, the provisions of this Section 14.07 shall not operate to excuse the Lessee from the prompt payment of Gross Rent, Additional Rent or any other payments required by the terms of this Lease, nor entitle the Lessee to compensation for any inconvenience, nuisance or discomfort thereby occasioned. 14.08 Notices Any notice herein provided or permitted to be given by the Lessee to the Lessor shall be sufficiently given if delivered personally to the Common Clerk, or if transmitted by telecopier or if mailed in Canada, registered and postage prepaid, addressed to the Lessor at: CIO The Common Clerk, The City of Saint John, P. O. Box 1971, 15 Market Square, Saint John, New Brunswick, E21, 4L1, with a copy to Real Estate Services, The City of Saint John, P. O. Box 1971; 15 Market Square, Saint John, New Brunswick, 1121, 4L1, and any notice herein provided or permitted to be given by the Lessor to the Lessee shall be sufficiently given if delivered personally to the party being given such notice or to a responsible employee of the party being given such notice, or if transmitted by telecopier or if mailed in Canada, registered and postage prepaid, addressed to the Lessee at the Leased Premises or at its head office at 159 Lawrence Long Road, Saint John, New Brunswick, E2M 5Z7. Any such notice given as aforesaid shall be conclusively deemed to have been given on the day on which such notice is delivered or transmitted or on the third day that there is postal delivery following the day on which such notice is mailed, as the case may be. Either party may at any time give notice in writing to the other of any change of address of the party given such notice and from and after the giving of such notice the address therein specified shall be deemed to include any request, statement or other writing in this Lease provided or permitted to be given by the Lessor to the Lessee or by the Lessee to the Lessor. If there is more than one party named as Lessee, notice to one shall be deemed sufficient as notice to all. 14.09 Place for Payment of Rent The Lessee shall pay the Rent. Including all Additional Rent, at the office of the Lessor specified in Section 14.08 or as such place or places as the Lessor may designate from time to time by notice in writing: currently to the Cashier's Office, City Hall, P. O. Box 1971, 15 Market Square, Saint John, New Brunswick, E2L 4LL 14.10 Approval in Writing Wherever the Lessor's consent is required to be given hereunder or wherever the Lessor must approve any act or performance by the Lessee, such consent or approval, as the case may be, shall be given in writing by the Lessor before same and shall be deemed to be effective. 14.11 Governing Law The Lease is to be governed by and construed according to the laws of the Province of New Brunswick. 14.12 Captions and Section Numbers The captions, section numbers and article numbers appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections or articles or of this Lease, nor in any way affect this Lease. 14.13 Partial Invalidity If any term, covenant or condition of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease and/or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this 14.14 No Option The submission of this Lease for examination does not constitute a reservation of or option for the Leased Premises and this Lease becomes effective as a Lease only upon execution and delivery thereof by the Lessor and the Lessee. 14.15 Time To Be of the Essence Time shall be of the essence of this Lease 14.16 Quiet Enjoyment The Lessor covenants with the Lessee for quiet enjoyment. 14.17 Riders and Schedules Schedules attached hereto form part of this Lease. 14.18 Basement Storage Space Where the Leased Premises includes any area of basement storage space, notwithstanding any provision herein contained, the Lessee acknowledges and agrees that water and sewer lines are located within the basement area of the Leased Premises and that there is a possibility that water and/or sewage may escape from the lines as a result of breakage, blockage, overflow or other cause, and may cause damage to anything stored in the basement area of the Leased Premises. The Lessee acknowledges and agrees that if it chooses to store anything, whether belonging to it or to others, in the basement area of the Leased Premises, it does so at its own risk and the Lessee hereby agrees to release and indemnify and save harmless the Lessor from and against any and all manner of actions, suits, damages, loss, costs, claims and demands of any nature whatsoever relating to or arising out of breakage, blockage, overflow or other problem of the water or sewage lines. 14.19 Rent Free Period The Lessor and the Lessee agree so long as the Lessee is not in default under the Lease, the Lessee will not be responsible for Gross Rent for the period from and including September 1. 2006 to and including November 30, 2006 and for the period from and including September 1. 2007 to and including October 31, 2007. Utilities, Promotion Funds/Merchants' Association dues are payable during the Rent Free Period. 14.20 Lessor's Work The Lessor shall repair the floor in Stall #11. SCHEDULE "D" RULES AND REGULATIONS 1. All loading and unloading of goods shall be done only at such times, in the areas, and through the entrances, designated for such purposes by the Landlord. 2. The delivery or shipping of merchandise, supplies and fixtures to and from the Leased Premises shall be subject to such controls as in the judgment of the Landlord are necessary for the proper. operation of the Leased Premises and/or the City Market. 3. All garbage and refuse shall be kept in the kind of containers specified by the Landlord and shall not be burned in or about the Leased Premises. 4. No radio, television, telegraphic or telephone or similar device and no water pipe, gas pipe or electric wire shall be installed or connected without obtaining in each instance the written consent of the Landlord. All ' such connections shall be installed in accordance with the Landlord's direction and without such direction no boring or cutting for wires or pipes shall be permitted. 5. The Tenant will be required to remain open for business as follows: a. Stalls shall be open for business at all times while the market is open to the public. b. Year round stands shall be open for business at all times while the market is open to the public. b. The plumbing facilities shall not be used for any other purpose than that for which they are intended, and no foreign substance of any kind shall be thrown therein, and the expense of any breakage, stoppage or damage resulting from a violation of this provision shall be borne by the Tenant. 7. The Tenant shall use at the cost of the Tenant a national recognized pest extermination contractor. 8. The Tenant, its employees or agents, shall not mark, paint, drill or in any way deface any walls, ceilings, partitions, floors, wood, stone or iron without the written consent of the Landlord. 9. Except as permitted in the lease to which these rules and regulations are annexed, the Tenant shall not permit any cooking in the Leased Premises without the written consent of the Landlord. 10. No aisle, sidewalk, .entry, passageway, elevator or staircase shall be obstructed or used by the Tenant, its officers, agents, servants, employees, contractors, customers, invitees or licensees for any purpose other than ingress to and egress from the Leased Premises. 11. The Tenant, its officers, agents, servants, employees, contractors, customers, invitees or licensees shall not bring in or take out, position, construct, install or move any safe or other heavy equipment or furniture without first obtaining the consent in writing of the Landlord. In giving such consent, the Landlord shall have the right in its sole discretion, to prescribe the weight permitted and the position thereof; and the use and design of planks, skids or platforms to distribute the weight thereof All damage done to the City Market by moving or using any such safe, heavy equipment or f irniturc shall be repaired at the expense of the Tenant. The moving of all equipment and the furniture shall occur only during those hours when the City Market shall not be open for business or any other time consented to by the landlord. 12. All persons entering and leaving the building in which the Leased Premises are situated must do so during hours the City Market is staffed by City Market employees. The Landlord at its sole discretion may determine the hours the City Market is staffed. Tenants shall register in books if so required by the Landlord when accessing the Market "after Market hours ". The Landlord is under no responsibility for failure to enforce this rule. 13. The Tenant shall not place or cause to be placed any additional locks upon any doors of the Leased Premises without the approval of the Landlord and subject to any conditions imposed by the Landlord. 14. No one shall use the Leased Premises for sleeping apartments or residential purposes, or for the storage of personal effects or articles other than those required for the purposes permitted by the 15. Subject to the Landlord's providing such service, the Tenant shall-permit window cleaners to clean the windows of the Leased Premises from time to time and at reasonable times. 16. Any hand tracks, carryalls or similar appliances used in any building in the Shopping Centre shall be equipped with rubber tires, side guards and such other safeguards as the Landlord shall require. 17. No animals or birds shall be brought into the Leased Premises except as permitted by the lease to which these rules and regulations are annexed. 18. Except as permitted in the lease to which these rules and regulations are annexed, the Tenant shall not permit the delivery of any food or beverage to the Leased Premises without the approval of the Landlord. 19. The Tenant shall not solicit business in the common areas or distribute any handbills or other advertising matter in the common areas or in automobiles parked in the parking areas. 20. The Tenant may only sell merchandise that is approved by the Landlord through their lease or otherwise. 21. The Tenant shall not keep or display any merchandise on or otherwise obstruct the common areas adjacent to the Leased Premises. 22. The Tenant shall not use or permit any of the Leased Premises to be used in such a manner as to cause annoying noises or vibrations or offensive odours. 23. The Tenant is responsible to remove garbage from their premises and deliver to the compactor designated by the Landlord and to place the garbage in the compactor. 24. A set of plans must be presented and the approval must be given by the landlord for any improvements or painting, etc. to the stands (including signs). 25. Merchandise, displays, shelves, etc., are not to exceed the height of the bottom meat hook bars on each stand. 26. No solid dividers are to be placed between the top and bottom meat hook bars. 27. Displays underneath the stands must be set up 6" off the floor on legs or wheels so the floor can be swept and washed down properly. 28. Covers are not to be placed over merchandise on stands without the prior approval of the Landlord. 29. Signage is to be in keeping with the historic character of the City Market and must meet the following criteria: Materials: Wood and metal are considered to be appropriate materials. Plastic may be used provided that it looks like one of the acceptable materials. Internally- illuminated plastic faced box signs will not be acceptable; Number of Signs: Each tenancy will be permitted one bench -top sign on each bench (7'- 0" length), or one projecting sign on each aisle -side that identifies the business by name and type; Bench -top Signs: These signs are the preferred primary form of signage. They must be located Ito 2 inches above the top rail of the bench, and should display the business name. They will consist of a 8" high by 6' -0" long narrow band of material with the lettering printed, painted, composed of individual raised letters, or lettering cut into the material and painted a contrasting colour. The rear may not be used for signage over another tenancy; Projecting Signs: Projecting signs may be used and shall be constructed as two -sided signs. They may only be located at a bench post, and must be rigidly fastened in place. They shall be vertical in proportion. The maximum size for projecting signs shall be 18" high x 12" wide. Only one per tenancy per aisle side shall be permitted as Business identifications; Lighted Signs: Not permitted; Temporary Signs: Any number of signs advertising goods for sale, specials, etc. shall be permitted. They may not exceed 8.5" x 11" in size, and must not excessively obscure the view through the bench between the first and last rail above the bench. SCHEDULE "D1" APPLICATION FOR AGREEMENT DEAD OFFICE OR PROPRIETOR'S NAME ACCOUNT RECEIVABLE NUMBER STORE NAME AND NUMBER DATE OF LEASE MONTHLY CHARGES STORE ADDRESS DATE OF LAST PAYMENT HEAD OFFICE ADDRESS BANK ACCOUNT NUMBER TRANSIT NUMBER BANK AND BRANCH NAME IN WHICH ACCOUNT STANDS IN BANK RECORDS SIGNING OFFICER SIGNATURE REQUEST FOR PRE - AUTHORIZED PAYMENTS I authorize (hereinafter referred to as the "Company"} And /or to debit the account of the undersigned maintained with the financial institution indicated above, monthly, in accordance with the PAYMENT AUTHORIZATION below, for the purpose of paying monthly rentals as noted above. "PLEASE ENCLOSE AN UNSIGNED SAMPLE CHEQUE FROM YOUR BANK OR TRUST COMPANY" AUTHORIZATION TO HONOUR PAYMENTS NAME OF BANK ADDRESS You are hereby requested and authorized to pay and debit my/our account at your office or at another branch of your institution if it is transferred there; all cheques drawn on you on my behalf and made payable to the Company or drawn on you by ; and all amounts specified on any magnetic or computer produced paper tapes requesting you to pay the Company or In consideration of your acting as aforesaid, it is agreed that your treatment of each cheque and /or tape and your rights with respect to it shall be the same as if it were signed by the undersigned personally, authorizing and requesting you to pay and credit such amount to the -i If the financial institution indicated above is not a bank in which THE BANK ACT OF CANADA applies, "cheque" as unused in this authorization shall include an "Order" that would be a cheque within he meaning of section 165 in THE BILLS OF EXCHANGE ACT (CANADA). Any delivery of this authorization to you will constitute delivery by the undersigned. (The signature appearing below must be the same as the signature appearing in the signature file of the financial institution identified above.) DATE: AUTHORIZED SIGNATURE(S) BY -LAW NUMBER A BY -LAW RELATING TO THE MARKET IN THE CITY OF SAINT JOHN ARRETE NUMERO ARRETE CONCERNANT LE MARCHE DE THE CITY OF SAINT JOHN Be it enacted by the Common Council of the Le conseil communal de The City of Saint John City of Saint John as follows: edicte : A By -law of The City of Saint John entitled "A By -law Relating to the Market In The City of Saint John ", enacted on the 18th day of May, A.D. 2005 is hereby amended as follows: 1 Amending Section 5(2) by adding the following immediately after subsection 5(2)(i): 0) Stalls 9, 10 & 11 IN WITNESS WHEREOF the City of Saint John has caused the Common Corporate Seal of the said City to be affixed to this by -law the day of , A.D. 2006 and signed by: Mayor /Maire L'arret6 concernant le marche de The City of Saint John decretd le 18 mai 2005, est modifid comme suit : 1 La modification du paragraphe 5(2) par Padjonction de cc qui suit immddiatement apr6s I'alinea 5(2)(i): 0) Kiosques 9, 10 & 1 i EN FOI DE QUOI The City of Saint John a fait apposer son sceau communal sur le present arret6 le 2006, aver, les signatures suivantes : Common Clerk/Secretaire communal First Reading - July 31, 2006 Premiere lecture - 31 juillet, 2006 Second Reading - July 31, 2006 Deuxieme lecture - 31 juillet, 2006 Third Reading - Troisieme lecture - REPORT TO COMMON COUNCIL M & C — 2006 -190 Tbe City of saint >Ohn July 27, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Common Council: SUBJECT: Proposal 2006- 083602P Consultant — Communications Strategy PURPOSE The purpose of this report is to recommend a proposal from MT&L Public Relations Limited for Consultant - Communications Strategy for the City of Saint John. BACKGROUND On February 13, 2006, Common Council adopted the following resolution: "RESOLVED that Common Council approve the addition of a project under the Vision 2015 Program to deal with the development of Corporate Communications; and that an Individual or Communications Firm be engaged to oversee this Project on a term basis with the initial term being for two years with an option to renew for an extended period if the project warrants. " Proposal 2006- 083602P Consultant — Communications Strategy was subsequently issued. The proposal sought an individual or a firm, with demonstrated communication expertise to plan, develop, and execute a sustainable strategy for corporate communication. The work on the communication strategy was organized into two phases. In Phase 1, the successful vendor was requested to determine the immediate communication needs of the City of Saint John. Phase I1 was focused on the development of a business plan to address the on -going communication requirements of the organization. The respondents were asked to address the communication objectives of the City of Saint John and to identify the process, methodology, and deliverables for each project phase. The City of Saint John reserved the right to short list the proposals and to request a presentation or an interview from each short - listed proponent. A copy of the proposal and background report are attached for your information. An evaluation team of City of Saint John staff was formed to review and rate each submission. The team was comprised of Andrew Beckett, Deputy City Manager Programs and Priorities; Greg Yeomans, Comptroller; and Kim Graham, Program Manager Vision 2015. ANALYSIS Five responses to the proposal were received. Two submissions were from individuals and three were from communications companies. Each proposal was evaluated using consistent criteria. It was determined that the top three submissions were from the communications firms. The firms were invited to make a presentation to the evaluation committee to highlight the value they could add to the communications project and to respond to questions. Proposals from MT & L Public Relations Limited and strategie Revolution strategy were ranked first and second respectively. MT&L Public Relations Limited had a superior submission demonstrating the experience of the company in creating communication strategies and the value they could add in addressing the City's communication needs. strategie Revolution strategy gave an excellent presentation that demonstrated their understanding of the City of Saint John and the strength of their company. As adopted in the Council resolution, Corporate Communication was added as a project to the Vision 2015 Program of Excellence. Accordingly, at the Vision 2015 Committee meeting of June 7, 2006, committee members were updated with a status report on the call for proposal. The committee was advised that the selection process had narrowed the responses to MW Public Relations Limited and strategie Revolution strategy. MT &L received the highest overall rating. The Vision 2015 Committee discussed the merits of each firm and advised staff to prepare a recommendation based on the company with the greatest technical expertise. Consequently, the Vision 2015 Committee has proceeded with a recommendation to award the contract to MW Public Relations Limited. MT&L Public Relations Limited is an Atlantic Canada firm that is partnered with NATIONAL Public Relations which is the largest Canadian communications firm. Located in Halifax, Nova Scotia, MT &L has been in operation for over twenty years and has received national and international recognition for their work. In their proposal, MT &L stated they were expanding their operations to open an office in Saint Sohn. The company described their excitement at the collaborative focus on growth and noted they are locating in this City to be part of our dynamic community. The scope of the work for Phase I and Phase Ii of the project is as follows. Phase I • Briefing meeting • Communications audit • Research and develop themes • Strategic Planning Session • Business plan for Corporate Communications • Present plan with priorities and resources • Final client approval • Implementation of first steps Phase H • Planning and evaluation session on lesson learned from Phase I • Development of longer term communications opportunities and tools • Development of promotional materials • One media event per month • Special event • Issues management system FINANCIAL IMPLICATIONS The estimated cost of Phase I of the project is $73,000- $80,000. The 2006 General Fund Operating Budget includes a $100,000 allocation for communications. The estimated cost of Phase II of the project is $72,000 - $83,000. Funds will be required in the 2007 General Fund Operating Budget for this initiative. All billings will be based upon actual hours worked and costs incurred. RECOMMENDATION It is recommended that Proposal 2006- 083602P Consultant — Communications Strategy be awarded to MT&L Public Relations Limited to provide professional communications services for the City of Saint John and that the Mayor and Common Clerk be authorized to execute the necessary contract documents. Respectfully submitted, Councillor Glen Tait Chair Vision 2015 Committee February 13, 2006 His Worship Mayor Norman McFarlane And Members of Common Council Your Worship and Councillors: RE: Communications Over the past two years there have been numerous occasions where Common Council and City staff have emphasized the importance of a coordinated, well planned and sustained approach to communications. More recently as part of the Operational Review report that was received from Chartwell Inc. there were several references made to the importance of improving communications. The report also noted that establishment of a communications plan was a key step in the initiation of the Vision 2015 implementation process. There are many approaches that could be taken with regards to dealing with communications ranging from hiring of an external firm on some form of retainer basis to the establishment of a communications unit within the City's administrative structure. As an approach to moving forward with this matter, the development of corporate communications could be added as a project under the Vision 20I5 program. Following the approach that is being taken with other projects in this Program a Project Manager would be assigned and a project team would be put together to consider all relevant points and make recommendations for how to proceed. Communications is a very broad area including media relations, public relations as well as internal and external communication pieces. Given the specialized and expansive nature of the communications field a full time communications specialist will be required to take on the Project Management role. It will be critical to engage an external resource that has the relevant expertise in this field to guide us through the process of refining our needs. The individual or firm engaged for this work would essentially do two things: (1) Development and implementation of action plans to deal with immediate communication needs of the City and; (2) Prepare a recommended business case for consideration by the Vision 2015 Committee and Common Council to address the long -term communication needs of the organization. A sample Scope of Work is attached to serve as a starting point for the tasks to be completed. Once this work has been done Council will be in a better position to assess what the on -going resource requirements will be to support the communications function. Funds were set aside in the 2006 Operating Budget specifically for communications that would be sufficient to cover the costs associated with engaging of the individual or firm as suggested. This approach has been discussed with both the City Manager and the Deputy City Manager — Programs & Priorities and they are in agreement with this approach. RECOMMENDATION That Common Council approve the addition of a project under the Vision 2015 Program to deal with the development of Corporate Communications and That an Individual or Communications Firm be engaged to oversee this Project on a term basis with the initial term being for two years with an option to renew for an extended period if the project warrants. Respectfully submitted, Councillor Glen Tait CITY OF SAINT JOHN CORPORATE COMMUNICATIONS PROJECT SCOPE OF WORK Short -term: Working with the designated Project Team: (1) identify the immediate communication issues /requirements of the City of Saint John (2) prepare an action plan and identify the required resources needed to address these needs (3) implement the action plan on a priority basis Long -term: Develop a Business Case for Corporate Communications giving consideration but not limited to the following: - the Brown & Caldwell Communications Plan for the Water & Sewerage Utility - the anticipated on -going role for the City of Saint John with regards to the True Growth Strategy. - various reports to Common Council which have identified communication requirements - Discussion Paper on creating a Communications Unit prepared by the City Manager input from Agencies /Boards /Commissions as to various options that might be available for coordination of communications approach City of Saint John PROPOSAL 2006- 083602P CONSULTANT — COMMUNICATIONS STRATEGY Sealed proposals addressed to David Logan, Purchasing Agent, 2nd Floor, Municipal Operations Complex, P.O. Box 1971, Saint John, N.B., E2L 4L1, and marked on the envelope: "PROPOSAL 2006- 083602P- CONSULTANT — COMMUNICATIONS STRATEGY" will be received until 4:00 p.m., Thursday, April 13, 2006 to engage the services of an individual or firm to plan, develop and execute a communication strategy as per specifications, terms and conditions . Proposals will be opened publicly in the office of the Purchasing Agent, 2nd Floor, Municipal Operations Complex, 175 Rothesay Avenue, immediately following the proposal closing time. The lowest or any proposal not necessarily accepted. Cindy Calvin, CPPB Assistant Purchasing Agent (506) 658 -2930 PROPOSAL 2006- 083602P CONSULTANT — COMMUNICATIONS STRATEGY Purpose The City of Saint is seeking proposals from individuals and /or firms with demonstrated communications expertise to plan, develop and execute a sustainable strategy for immediate and long- term communication for the City of Saint John. The communication project will be in two phases: Phase I will determine the immediate communication needs of the City of Saint John. Phase II of the project will focus on the development of a business plan to address ongoing communication requirements of the organization. it is expected that these two phases of the project will not exceed two years in duration. If further objectives are incorporated, the City reserves the right to negotiate a further agreement with the successful vendor. Communication Objectives The City of Saint John has recognized the need to work toward a number of communication goals. Specifically, the City has identified the following objectives: • A Communications strategy applicable to all aspects of the organization, • Planned, professional, and coordinated communication efforts, Public relations guidelines and policies to enhance the ability of the city administration in support of the Mayor and Council, Media relations to improve coverage of city events and initiatives, • Improved internal communications, and • A plan to measure the effectiveness of communications methods. Project,Req„uirements The Communications project is under the direction of the Deputy City Manager -- Programs and Priorities. The successful individual or firm will be required to manage the project and will work with a project team which may include external and internal resources. As previously noted, the Communications Project is in two phases. Phase 1 of the project will focus on the immediate communications needs of the City of Saint John. 2006- 083602P Consultant — Communications Strategy Page 2 The successful bidder will be required to, • Identify and prioritize the immediate communication requirements and issues of the City of Saint John, • Prepare a prioritized communications action plan, including required resources. to address the needs, and • Implement the action plan. It is the expectation of the City of Saint John that the work outlined in the communications action plan will be carried out by the successful firm or individual. Phase II of the project will examine the ongoing communications requirements of the City of Saint John. The work carried out in this part of the project will build on information gathered during Phase I. In addition, there are a number of communication plans developed for specific areas of the organization that must be considered. The successful bidder will be required to, + Develop a business plan for Corporate Communications for the City of Saint John to address the City's communications objectives and provide recommendations on the business structure and resources required for implementation. Pro asal Submission. The submitted proposal must address the communication objectives and the project requirements. The individual or firm will propose the process, methodology, and deliverables for each phase of the project in enough detail to allow for evaluation of the submission. The proposal shall include, as a minimum, • An indication that the submitter understands the purpose and the objectives of the project, • A detailed explanation of the process and methodology that will be used during the proj ect, • A work outline describing the project deliverables including the estimated time required for each activity in both phases. • The resumes of personnel that will to assigned to the project including qualifications and related experience, and • Firms submitting an EOI must include a summary of company experience. • The estimated cost of the project shall include the following cost breakdowns. • Phase I by deliverables • Phase II by deliverables • Project costs subtotaled by Year One and Year Two • Project expenses including materials, travel and accommodations 2006- 083602P Consultant — Communications Evaluation Criteria The proposal will be evaluated on the following criteria. . "G7({LM(fLfyli - :�JTN * -:7I- • Ni :faet %! r`... Quality and Completeness 5 points Methodology 25 points Cost 20 points Experience and capacity 25 points Project management capacity 15 points Value added 10 points Page 3 ♦ QUALITY AND COMPLETENESS — Has the proposal addressed all of the needs raised? Is the proposal presented in an organized and professional manner? ♦ METHODOLGY -- Does the approach to the project outlined in the proposal address, in a realistic sense, attainable goals and is it in keeping with the City's expectations for the project? ♦ COST— Cost will be a factor, however not the only factor to be considered. ♦ EXPERIENCE AND CAPACITY— Has the proposal demonstrated a level of expertise in keeping with the requirements of this project? (Include references for projects of a similar nature.) ♦ PROJECT MANAGEMENT CAPACITY — Has the proposal demonstrated a level of expertise in the project management capacity. ♦ VALUE ADDED — Does the EOl address issues or concerns not covered in the proposal call but if included in the project would add to the quality of communication for the City of Saint John Consultants are advised that proposals will be evaluated solely on the basis of information submitted in accordance with the request for proposals. The City reserves the right, if deemed necessary, to short-list the proposals and to request an additional verbal presentation and /or interview from each short- listed proponent. The Consultant may supplement their presentation with a summary in written format to clarify points raised during the process. Terms and Conditions Proponents may address any questi Proposal Submission Inquiries Cindy Calvin, CPPB Materials and Fleet Management 506- 632 -6198 Email: cindy.calvin @saintjohn.ca ons regarding the proposal to: Technical Inquiries Kim Graham City Manager's Office 506 -658 -2919 Email: kim.graham @saintjohn.ca 2006- 083602P Consultant — Communications Strategy Page 4 The City reserves the right to reject proposals from parties who fail to satisfy the City that they have sufficient knowledge and experience to carry out the service required, The City of Saint John does not bind itself to accepting the lowest or any proposal received, but reserves the right to award the contract to its best advantage The City of Saint John will be the sole judge with respect to the proposals. As such any proposal deemed incomplete, unsatisfactory or failing to conform to the requirements or format of the Request for Proposal may be rejected by The City of Saint John. The City of Saint John reserves the right to engage in discussions with any Proponent to clarify a response within the proposal or presentation, or discuss certain elements Information to Bidders Bidders are to submit three (3) copies (one (1) original complete with signature and two (2) photocopies) of each proposal to allow for distribution to the Proposal Review Committee. Submissions are to be mailed or hand delivered (not faxed) in a sealed envelope and marked on the outside — to: "PROPOSAL 2006- 083602P CONSULTANT — COMMUNICATIONS STRATEGY" Dave Logan, Purchasing Agent Materials and Fleet Management City of Saint John 2nd Floor, Municipal Operations Complex 175 Rothesay Avenue Saint John, NB E2J 264 Proposals are to be received in the Materials and Fleet Management Section prior to 4:00 p.m., Thursday, April 13, 2006. Late proposals or proposals delivered to the wrong location will be rejected and returned unopened, to the sender. Immediately following the closing time for receipt of bids, proposals will be opened publicly in the office of the Purchasing Agent. At that time, the names of companies or individuals will be read into the public record. No other information contained in the proposal submissions will be made public at this time. Proposals will be distributed to the members of the Evaluation Committee who will review each bid and make recommendations. The committee at its discretion may decide if it is necessary to short-list the proposals and interview each bidder on the shortened list. July 31, 2006 Re: Committee of the Whole Report Deputy Mayor and Councillors: The Committee of the Whole having met on July 17, 2006 make the following recommendation to be considered at this evening's open meeting of Council. Recommended: RESOLVED that Common Council appoint Mr. Greg Yeomans, CGA, MBA, to the position of Commissioner of Finance /Treasurer pursuant to Section 74(2) of the Municipalities Act, and that the compensation be set at the midpoint of Step A and B, Group 9 of the 2006 Management Professional Pay Scale, and that the position be entitled to five weeks vacation and a monthly car allowance of $250. Yours truly, Norm McFarlane Mayor July 31, 2006 Re: Committee of the Whole Report Deputy Mayor and Councillors: The Committee of the Whole having met on July 17, 2006 make the following recommendation to be considered at this evening's open meeting of Council. Recommended: RESOLVED that Common Council approve the following salary adjustments as provided in the 2006 Management Professional Pay Scale: Solicitor 2, Group I, Step 6, Solicitor 1, Group 5, Step D; and the City Solicitor's position remain in the top grouping and be placed at the step consistent with others having similar tenure in the position with the City Solicitor, that being Group 9, Step B. Yours truly, Norm McFarlane Mayor REPORT TO COMMON COUNCIL July 28, 2006 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: RE: Vision 2015 Committee composition Under the Terms of Reference adopted by Common Council for the Vision 2015 Committee voting membership is defined as the Mayor, Deputy Mayor and four councillors. During Mr. Wood's presentation to Common Council on Monday, July 10, 2006 dealing with governance a number of principles were outlined as the basis for considering various governance structures /options. One of the principles discussed under the Standing Committee structure was the importance of always maintaining and respecting the primacy of Common Council in making the final, formal decision on any matter. In order to clearly adhere to this principle it was noted that no Committee should have a membership with any greater than five (5) members of Council. If there was a majority of council on a committee the principle of Council's primacy role could be compromised. As a result of this discussion and in the interest of having the Vision 2015 Committee model the broader governance directions that Council will be considering, the Committee recommends that the Terms of Reference be amended as follows: 1. reduce the number of councillor appointments from four to three. If approved the voting membership of the committee would be comprised of the Mayor, Deputy Mayor and three councillors. 2. Quorum shall consist of three elected officials in attendance. (previously 4) Respectfully submitted, Co cillor Glen Tait Chair — Vision 2015 Committee t CFMH 92.5 FM campus & community radio saint john P.O. Box 5050, UNB Saint John Saint John, N.B., E2L 4L5 (506) 648 -5667 Mayor and Common Council c/o Pat Woods City Of Saint John 8'' floor, City Hall Saint John, New Brunswick E2L 4L7 To the Mayor and Common Council, CFMH 92.5 FM is Saint John's Campus and Community based, non - profit, multi- cultural and multi - lingual radio station. Operating out of the Thomas J. Condon Student Centre at UNBSJ, we provide programming for the students of UNBSJ and the residents of Saint John, promoting the city's arts, culture & entertainment communities. CFMH provides a voice for local community and youth organizations, multi - cultural and social service groups and all aspects of student life. Our programming is diverse and provides a valuable alternative to commercial radio programming in Saint John. Musically, CFMH covers a broad spectrum, from classical and jazz, to reggae and world music, to punk and hip hop. Our spoken word programming features theatre, poetry, social commentary, essays and fiction. CFMH is currently embarking on a project to improve our service to the Saint John area and are looking for your support in this endeavour. This project has been brought about because of an increased level of interference that CFMH -FM has been receiving from a newly licenced station in the Fredericton area. This station operates on an adjacent to channel to ours and the interference it creates has deteriorated our coverage area in many parts of Saint John. As our current Class of Operation is that of a low power FM station, our frequency is classified as a "secondary assignment" and as such is not provided any protection from interference from stations with a "primary assignment", as is the case with the Fredericton station. Therefore, we are applying to the CRTC and Industry Canada to allow us to make some changes to try and correct these pr6�lcros. Industry Canada requires a "Municipal Consultation" process to be undertaken by all applicants when changes are made to a station. Therefore we are writing to you to explain what are planning to do. We are applying to amend our Class of Operation, raise our transmit power and change our frequency. By changing our Class of Operation to one that gives our frequency "primary status ", we are protected from interference by other stations in the future. However, to make the change requires us to shift to a new transmit frequency and to raise our power level to that required of the new Class. Some good news out of all of this is that the required increase in power level from the present 49 watts to the required 250 watts will allow us to provide a stronger signal to our current listeners. We have wanted to improve our signal coverage in Saint John and surrounding areas for quite a while and these changes should do that. There will be no changes to any of the external physical infrastructure i.e. the antenna and supporting mast, only the transmitter power will change. We would welcome your support of our application to the CRTC to improve our coverage to better serve the residents of Saint John. Thank you for your time and if we can provide any further information please contact us at your convenience. Yours sincerely, Linda Pelletier Station Manager Cc Industry Canada MCE Associates