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2007-07-30_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaire City of Saint John Common Council Meeting Monday, July 30, 2007 Supplemental Agenda 13.2 Committee of the Whole Report - Property Negotiations 15.1 Total Golf Management City of Saint John Seance du conseil communal Le lundi 30 juillet 2007 l'ordre du jour supplementaire 13.2, Rapport du comite plenier - negociations relatives aux biens-fonds 15.1, Total Golf Management, et Ie retrait du point 9.4, modification relative a I'arrete concernant les aires de conservation. \~.~ Common Clerk's Office Bureau du greffier communal P.O. Box/C.P. 1971 Saint John, NB/N.-B. Canada E2L 4L1 \\'\\'\1', sain rjohn, ca August 16, 2007 The City of Saint John Mr. Paul Wilson ReMax Professionals Saint John 199 Chesley Drive, Suite 207 Saint John, NB E2K 4S9 Dear Sir: At a meeting of the Common Council, held on July 30, 2007, the following resolution was adopted, namely:- "RESOLVED that: 1. The City of Saint John authorize Re/Max Professionals Saint John Inc. to act as Agent on behalf of the City of Saint John in the acquisition of 9-11 Tiffany Street under the terms and conditions in the submitted agreement; 2. The City of Saint John authorizes Investment Securities Limited to act as Nominee in the acquisition of 9-11 Tiffany Street under the terms and conditions in the submitted agreement. 3. That the City of Saint John ratify and affirm the entering into of the contract by Investment Securities Limited with Nancy D. McKay dated June 18, 2007 for the purchase of 9-11 Tiffany Street and accept an assignment of the contract, all the benefits and liabilities therein contained, from Investment Securities Limited; and 4. The Mayor and Common Clerk sign all documents required to give effect to these resolutions." Yours truly, \-'\ \ \il ( ~ '-----' J~atrick Woods Common Clerk JPW/slc ,~\'} Common Clerk's Office Bureau du greffier communal P.O. Box/C.P. 1971 Saint John, NB/N.-B. Canada E2L 4L1 \\'\\,\\'. saint john. ca August 16, 2007 The City of Saint John Mr. James D. Murphy Stewart McKelvey 44 Chipman Hill, Suite 1000 P.O. Box 7289, Station A Saint John, NB E2L 4S6 Dear Sir: At a meeting of the Common Council, held on July 30,2007, the following resolution was adopted, namely:- "RESOLVED that: 1. The City of Saint John authorize Re/Max Professionals Saint John Inc. to act as Agent on behalf of the City of Saint John in the acquisition of 9-11 Tiffany Street under the terms and conditions in the submitted agreement; 2, The City of Saint John authorizes Investment Securities Limited to act as Nominee in the acquisition of 9-11 Tiffany Street under the terms and conditions in the submitted agreement. 3. That the City of Saint John ratify and affirm the entering into of the contract by Investment Securities Limited with Nancy D. McKay dated June 18, 2007 for the purchase of 9-11 Tiffany Street and accept an assignment of the contract, all the benefits and liabilities therein contained, from Investment Securities Limited; and 4. The Mayor and Common Clerk sign all documents required to give effect to these resolutions." Yours truly, ~~ J~atrick Woods Common Clerk JPW/slc $~ REPORT TO COMMON COUNCIL M & C - 2007-203 July 26,2007 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Property Acquisition 9-11 Tiffany St. BACKGROUND: Following discussions in Committee of the Whole, the City Manager was directed to acquire the MacDonald Street parcel from Irving Oil Ltd. based on terms contained in correspondence from Irving in the matter, as well as acquire the two adjacent properties (9-11 Tiffany Street and 216 Loch Lomond Road). To ensure timely and anonymous acquisition of the two adjoining properties, staff secured the services of a Real Estate Agent to facilitate negotiations, and that of a legal firm to act as "Nominee" in the acquisition, ensuring the City's interest and identity was sheltered from the potential vendors. An agreement was secured with the owner of9-11 Tiffany St, Ms. Nancy D. McKay, subject to Executive Approval. The City Solicitor's Office has expressed concerns that the direction given to acquire the properties does not authorize staff to engage the services of the Real Estate Agent and the Nominee without specific authorization by Council. After discussions a solution was proposed so that this report may be presented to Council. City of Saint John Report to Common Council July 30,2007 Page 2 The purpose of this report is to secure Council's support to acquire the land and buildings located at 9-11 Tiffany Street, PID 319939. The property is a 929 square metres :t parcel, which is improved with three buildings; a garage and two residential rental buildings. It was revealed to the Realtor by the vendor that there had been an appraisal on this property in 2005 and the value was pegged at $190,000. A sale price of$215,000 was agreed upon with a five-month closing. This price is reasonable given the appraisal work and recent spike in real estate values in Saint John. The Agreement of Purchase and Sale is subject to approval of the Purchaser. Given the circumstances of reaching this agreement the following resolutions will appropriately authorize the purchase, but also the engagement of the Agent and Nominee. RECOMMENDATION: j / . . ~ / ommlSSlOner C2. and Developme Terrence Totten, F. c.A. City Manager Attachment 1. That The City of Saint John authorizes RelMax Professionals Saint John Inc.l to act as Agent on behalf of the City of Saint John in the acquisition of 9-11 Tiffany Street under the terms and conditions in the attached agreement; That The City of Saint John authorizes Investment Securities Limited to act as Nominee in the acquisition of 9-11 Tiffany Street under the terms and conditions in the attached agreement; That The City of Saint John ratify and affirm the entering into of the contract by Investment Securities Limited with Nancy D. McKay dated June 18, 2007 for the purchase of 9-11 Tiffany Street and accept an assignment of the contract, all the benefits and liabilities therein contained, from Investment Securities Limited; and That the Mayor and Common Clerk sign all documents required to give effect to these resolutions. 2. 3. 4. - Y~73~1 R. Baird, MCIP """""0'<;"'" py ,:; oj, ';~ NOMINEE AGREEMENT Nominee Agreement dated "City") and Investment Securiti , 2007 between The City of Saint John (the Limited (the "Nominee"). RECITALS: A. The City wishes to submit offers to purchase real property and to enter into options to purchase real property from time to time on an anonymous basis with the owners of real property (collectively, the "Agreements"). B. The Nominee has agreed to enter into such Agreements for and on behalf of the City as the City's nominee on the terms and subject to the conditions hereinafter set forth. In consideration of the foregoing and the mutual agreements contained herein (the receipt and adequacy of which are acknowledged), the parties agree as follows: 1. Nominee's Acknowledgments, Etc. The Nominee hereby acknowledges, declares, covenants and agrees that: (a) the Nominee will enter into Agreements as nominee for and on behalf of the City; (b) the Nominee will have no legal or beneficial interest in any real property which is the subJect of an Agreement (the "Property"); (c) all other attributes of the beneficial ownership of the Property shall be and remain in the .City; and (d) upon the written direction of the City, the Nominee shall execute and deliver to the City or in accordance with its direction such assignments, conveyances and transfers in registrable and/or other formes) of all right, title and interest of the Nominee in the Property as the City may direct. 2. Scope and Authority The Nominee covenants and agrees to enter into the Agreements for and on behalf of the City, to deal therewith only as specifically directed by the City in writing and that it will do no act relating to the Agreements without the express authorization and direction in writing of the City. 3. Execution of Instruments The Nominee shall execute and deliver all such instruments relating to the Agreements as shall be required from time to time by the City. 4. Delivery of Documents The Nominee shall promptly deliver to the City all Agreements and other instruments with respect to the Property, to the extent that it may come into possession of any thereof. 581204, v I -2- 5. Legal Actions The Nominee shall promptly transmit to the City copies of all notices, claims, demands and other communications which the Nominee may receive and which relate in any way to the Agreements or the Property. The Nominee shall, upon obtaining knowledge of default by any party to or beneficiary of any instrument relating to the Agreements or the Property, promptly notify the City thereof. The Nominee, upon the request of the City, shall be a nominal party to any action in response to, or as a consequence, of any such matter. Any such action, proceeding, negotiation or other response shall be conducted by the City, with counsel selected by it, and the Nominee shall not, nor shall it be obligated to, take any such action itself, its only obligation being that of a nominal party thereto on the conditions stated herein. 6. Expenses Except as otherwise expressly provided herein, all costs and expenses (including the fees and disbursements of legal counsel) incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the City. 7. Release The City hereby releases the Nominee from any and all liability that the Nominee may incur in respect of any action taken by the Nominee either pursuant to the authorization or direction of the City or pursuant to the terms of this Agreement. 8. No Partnership It is understood and agreed between the parties hereto that the relationship between the City and the Nominee shall be that of principal and bare nominee only, that there is no intention to create a relationship of partnership between the City and the Nominee, and that this Agreement should not be construed to create any trust, association or joint venture between the City and the Nominee. 9. Further Assurances Each of the parties hereto covenants that it will from time to time as may be deemed necessary and requisite do all such acts and effect such further and other assurances as may be reasonably necessary or desirable to effect and carry out the true intent and purpose of this Agreement. 10. Notice Any notice, direction or other instrument required or permitted to be given hereunder shall, except as otherwise permitted hereunder, be in writing and given by delivering it or sending it by facsimile or other similar form of communication addressed as follows: 581204,vl -3- (a) To the City: City Hall P.O. Box 1971 Saint John, NB E2L 4L1 Attention: Brian Irving Facsimile: 506-658-2837 (b) To the Nominee: Stewart McKelvey 44 Chipman Hill, Suite 1000 P.O. Box 7289, Station A Saint John, NB E2L 4S6 Attention: James D. Murphy Facsimile: 506-634-3573 Any such notice, direction or other instrument given as aforesaid shall be deemed to have been effectively given if sent by facsimile or other similar form of telecommunications on the next Business Day following such transmission or, if delivered, to have been received on the date of such delivery. Any party may change its address for service from time to time by notice given in accordance with the foregoing and any subsequent notice shall be sent to the Party at its changed address. 11. Headings, Etc. The division of this Agreement into sections, subsections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in the construction or interpretation of this Agreement. 12. Severability Any section, subsection or other subdivision of this Agreement or any other provision of this Agreement which is, or becomes, illegal, invalid or unenforceable shall be severed from this Agreement and be ineffective to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof. 13. Governing Law This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Province of New Brunswick and the laws of Canada applicable therein and shall be treated in all respects as a New Brunswick contract. 14. Amendments This Agreement may only be amended, modified or supplemented by a written agreement signed by all the parties hereto. 581204, y 1 -4- 15. Enurement This Agreement shall be binding on and shall enure to the benefit of the successors and assigns of each of the parties. IN WITNESS WHEREOF the parties have executed this Agreement. THE ~~OF ;AINye . N /~ By:'-, y~ L~ Name: /1 / I t--:; - r=;> Title: { . 'if (I / L./( /-1Jv It' 'f Ie I " By: Name: Title: By: Name: Title: By: .' Name: Title: 581204,vl IB ~-EAL70l? Date: Saint John Real Estate Board Exclusive Buyer's Agent Contract ':1" Ut0<L :l60 1 Buyer/~.lIY () ~ ~,l/( --SOUIU ~ (VIA- AN ''J:,.; ,.-re""~T" ,4.eRAlUbZ~AI'T) Address: J~ /i)A-RK~T SCQUI-H2.1:..- .gAtN, ;soMN.. I\J t3 Buyer's Agent: Rj/llA'I.. fkoFl..5f:1(j(jt4LS SPtl,JT}; Salesperson: ~A-U L W l L.SOt0 Address: ~ () rTL~'{ I q q t2- H-~ Lf \.{ D~. I SA-LlJT ':Thft-tJ N~ c ~:1.k-4S I, TERMS OF CONTRACT: a, The Buyer appoints the Buyer's Agent as the exclusive agent of the Buyer to tind a property within the area of 7--11 1i 1-t;4-t>-l{ S" ~A-S '\ 5AltVT :3lJ-U-A.i for the buyer to purchase and to assist the Buyer in negotiating the terms of purchase. b. Unless renewed in writing, this Agreement expires at 11 :59 p.m. on '3 0 :r J rV 'L 20Qf8 2. THE BUYERS AGENT AGREES: a, To make the buyer aware ofpropenies located in the area referred to in l.a, of this agreement, or other propenies that the Buyer's Agent may know about, which may meet the Buyer's needs. b. To advise prospective Sellers or Listing Agents who may have property available that the Buyer's Agent is the Agent of the Buyer. ~()-r c, If a property of interest to the Buyer is not listed with a real estate agent, the Buyer's Agent may~nter into an agreement for a fee with the Seller, ~ will not act as his agent without the wrinen pennissi on of the Buyer. 3, THE BUYER AGREES: 9\-""~ a. Not to use the services of any other agent within the area referred to in I,a, of this agreement during the term of this Agreement. b, To advise the Buyer's Agent of properties in which the Buyer is interested. , c, To provide the Buyer's Agent with enough infonnation to determine the Buyer's ability to purchase or obtain tinancing on a property, d, To negotiate in good faith, provided the property and the terms of purchase are satisfactory to the Buyer. ./ e, That the Buyer's Agent may,disclose the Buyer's identity unless otherwise instructed by the Buyer in writing, NO l f. That the Buyer's Agent is being retained as a real estate agent and not as a lawyer, tax advisor, lender, appraiser. surveyor, structural engineer, home inspector or other professional service advisor. g. That the Buyer's Agent may have only a limited knowledge of the physical condition ofa property that the Buyer may be interested in purchasing and the Buyer understands and agrees that the infonnation provided by a seller, landlord or listing agent in respect to a particular property is not warranted by the Buyer's Agent as being accurate and will be relied on at the Buyer's risk. The Buyer should make his own enquiries and investigations concerning the physical condition or a property. which may include an independent property inspection. 4, Bt.IYER'S AGENT RENlJMERATION: . . c, ( \ a, The Buyer will pay the Buyer's Agent a fee of 5 Z. V z..N Ie I". '7 ~O) (Fee), of the purchase price plus HST and any other taxes which may be applicable as it relates to the Fee if: 1. A legally enforceable Agreement of Purchase and Sale between the Buyer and a seller in respect of a property located in the Market Area is entered into during the period of the Agreement, or: 11. A legally enforceable Agreement of Purchase and Sale between the Buyer and a seller in respect of a property located in the Market Area, which is introduced to the Buyer by the Buyer's Agent or by any other person including the Buyer during the period of this Agreement is entered into: 1. within sixty (60) days after the expiration of the term of this Agreement; or 2, any time where the efforts of the Buyer's Agent were an effective cause 111. provided however, that no Fee is payable, if, after the expiration of the tenn of this Agreement, the Buyer has entered into a similar ",Titten Exclusive Buyer's Agent Agreement with a licensed agent in respect of the Market Area and the property is purchased during the term of that agreement. b. Prior to the Buyer making an offer to purchase a property, the Buyer's Agent will advise the Buyer of the total amount of remuneration offered by the seller and the listing agent to be paid to the Buyer's Agent for assisting in obtaining a buyer for that property, c. Monies under clause 4b, shall be deducted from the amount due and payable by the Buyer under clause 4a. and [he Buyer shall pay any shortfall owing to the Buyer's Agent. d. The remuneration earned by the Buyer's Agent shall be payable on the date the sale is completed e. The Buyer's Agent will advise the Buyer of any rernuneratlOn, other than described above to be received by the Buyer's Agent in respect of that property .; THE BLYER ACKNOWLEDGES A\'D AGREES THA T a It is IftloI a conflict or breach of duty to the Buyer for the Buyer's Agent 0 show. Introduce or wnte offers on property in which the Buver is interested to other bUyers. 10 have agency relationships wlth other buyers b It is not a conflict or breach of duty to the Buyer for the Buyer's Agent to have agency relatlOnshlps with se!lers c, The Buyer's Agent will not be required to disclose to the Buyer confidential information obtamed through any agency relationshIp 6. LIMITED DUAL AGENCY, a, If the Buyer's Agent is also the agent ofa seller in whose property the Buyer is Interested, the Buyer's Agent \\111 seek the wrinen consent of the Buyer and the seller to continue to act as their limited dual agent to facilitate a purchase and sale of the property, If the Buyer and the seller do not consent to the Buyer's Agent acting as theIr limited dual agent, the Buyer's Agent will, with respect to the property, cease acting as the agent of the Buyer but may continue to act as the agent of the seller. b Where the Buyer and Seller have consented to the Buyer's Agent acting as the lImited dual agent. the Buyer's Agent's duties will be modified by the limitations described in the brochure published by the New Brunswick Real Estate Association entitled "W orking with a Real Estate Agent", 7, CSE AND DISTRIBUTION OF INFORMA TION: I authorize the Agent to use, disclose and retain all information provided for purposes relating to the real estate services provided to me by the Agent including: locating, assessing and qualifying properties for me; advertising on my behalf providing information as needed to third parties retained by me to assist in a transaction (e.g, financial institutions, building inspectors, etc.): and such other use of my information as is consistent with the services provided by the Agent. I agree that any information and images regarding any property purchased or leased by me through the Agent may be retained and disclosed by the Agent and or the real estate board(s) (if the property purchased or leased is listed on an MLS system) for any purposes that the Agent or the real estate board(s) may deem appropriate, 8. MISCELLANEOUS PROVISIONS a, "Sale" includes and exchange and "purchase price" includes the value of property exchanged, b. "Period" or "date of expiration" of this Agreement includes the period or date of expiration of any wrinen extension. c. Interpretation of this Agreement and all maners concerning its enforcement by the parties shall be governed by the laws of the Province of New Brunswick, d, The Buyer and Buyer's Agent acknowledge that this Agreement fully sets out the terms of the agreement betv,:een them. e, This Agreement shall be binding upon and benefit no! only the Buyer and the Buyer's Agent but also their respective heirs. executors, administrators, SUccessors and assigns. f This Agreement shall automatically en if the Buyer's Agent ceases to be licensed under the New Brunswick Real Estate Agents Act. g, "Property" may include a leasehold interest, a business and the goodwill and assets of it, an interest, partnership or share in a business or in the goodwill and assets of it, or a manufactured home, plus any other real property designated by a seller. 9 AGREEMENT: a. The Buyer acknowledges having read and understood this Agreement, that it accurately describes the agreement with the Buyer's Agent and that the Buyer has received a copy of it b, Where the Buyer is comprised of more than one person, the obligations under this Agreement of each and every person comprising the Buyer shall be joint and several ./ S0'( t-.lO \ BY SIGNING THIS AGREEMENT THE BUYER ACKOWi.EDGES HAVING READ AND liNDERSTOOD THE BROCHURE PUBLISHED BY THE NEW BRUNSWICK REAL ESTATE ASSOCIATION ENTITLED WORKiNG WITH A REAL ESTATE AGEVT DAY OF-:rU rJ 7 20 (!) '1 . SIGNED, SEALED AND DELIVERED THIS ~\ C~_ n_ -----.-. (S( I pJ .J(J(~ R'i/itt4Y- ~rtss'(tlIJALS ~m/llT Sdf.1 1(.) BUYER'S AGENT Bl'Y"ER'S SIGNATURE \\lTNESS TO BGl'ER'S SIGNA TCRE (S) per: SALESPERSON \ 6 1\ Common Clerk's Office Bureau du greffier communal P.O. Box/C.P. 1971 Saint John, NB/N .-B. Canada E2L 4L1 \\"\\,\\" saintjo hn, Cel August 15, 2007 The City of Saint John Mr. Gerry Connolly President Total Golf Management Inc. P.O. Box 784 Saint John, NB E2L 4B3 Dear Sir: At a meeting of the Common Council, held on July 20, 2007, the following resolution was adopted, namely:- "RESOLVED that the letter from Gerry Connolly, President of Total Golf Management updating Council on the improvements and ongoing work to the Rockwood Park Golf Course and Aquatic Driving Range, be received for information." Yours truly, \'" C\ \\ \\' \~ i\~~~ \JPatrick Woods Common Clerk JPW/slc Roc~d Park Golf Course Saint John, New Brunswick A Division of Total Golf Management. fne. P.O. Box 784 Saint John, N.B. E2L 4B3 506-634-0090 506-633-0258 (Fax) 29 July 2007 City of Saint John 15 Market Square P.O. Box 1971 Saint John N.B. E2L 4Ll Attention: City Manager, Mr. Terry Totten Subject: Rockwood Park Golf Course and Aquatic Driving Range Reference A: Contract between the City of Saint John and Total Golf Management Inc. dated 05 March 1999. Dear Terry, As mentioned to you in a recent conversation, TGMI has proposed to mainly proceed with improvements to the teeing grounds in 2007. Given that you foresaw no problem with this initiative, the maintenance crew and sub-contractor is now proceeding with the tee project. It should be noted that we still intend to complete paving from the 12th green to the base of the hill at #13 tee in 2007. It is also anticipated that the long term cart path paving project will be completed not later than year end 2009. Following is the proposed scope of Capital work at Rockwood Park Golf Course and Aquatic Driving Range in 2007: 1) Final work on tees #7 and # 16 was recently completed. It had always been anticipated that those teeing surfaces would require major rework, once the large volume of fill had settled. Further, 2 additional forward tees were constructed on these holes. 2) Work on tees #4, #6, #9, #10, #13, #14, #15 and #18 will be completed in 2007, with the cooperation of the weather. The scope of the work on these tees includes enlarging the tee areas, revising some tee elevations, replacing the existing irrigation piping (which in most cases is about 20 years old and is in poor condition, wrong size, etc, given recent improvements to the global irrigation system), replacing some sprinkler heads and components, replacing 12 to 15 inches of the turf subbase with industry specified materials and, finally, sodding the required areas. Paving will be completed on the cart path between #12 green and #13 tee. It should be noted that another forward tee will be constructed at hole #4. It should also be noted that all tee work was evaluated and scrutinized by consulting with other extremely qualified golf course superintendents prior to the commencement of work. Kendall Costain, the superintendent at Mactaquac Golf Club (and a Turf Management Graduate at Penn State University) and Andrew Magee, the superintendent at Hampton Golf Club were the consulted individuals. 3) The existing fire suppression system in the clubhouse kitchen no longer met specified government standards. The system has been replaced with a new system which meets all standards and has been approved by the fire marshal. 4) The irrigation water supply line running from the submersible pump on Crescent Lake to the main pump in the pump house (all on the suction side of the main pump) was repaired on many occasions and was becoming a hindrance to the reliable provision of irrigation water to the golf course. A new supply line has been installed and has an expected life span of 20+ years. 5) TGMI currently has 18 non-breathable winter green covers and 10 breathable green covers. The breathable covers are used to accelerate an increase in ground temperature and protect greens from frost when the winter covers are removed. We propose to add 9 breathable covers to the current inventory if we are to expedite growth in the Rockwood greens, considering the ambient temperature (and resuItantly the ground temperature) lag behind the inland courses, including Riverside, Hampton and Sussex by several degrees, usually until the 2nd or 3rd week of June each season. Every green will be covered every night with a breathable cover, until the ground temperature supports growth; about 52-54 degrees Fahrenheit. It is anticipated that all teeing areas and all bunkers will be completely renovated, rebuilt and relocated, as determined through discussions with consultants and with City approval, by the end of2009. The long term cart path improvement project is expected to be completed in this time frame as well. While this work will exceed the contractual capital spending requirements on the part of TGMI, it is required to meet the increasingly high expectations of the golfing public. The renovated tees and bunkers will also lead to increased labour and upkeep costs, if their condition is to be maintained through an anticipated 20 year life cycle. (At which point renovation is recommended according to industry standards) TGMI will remit invoices for review and reimbursement, in accordance with subject, as work is completed. Yours truly, ~' , Gerry 0 oIly Preside , Total Golf Man