2011-07-25_Agenda Packet--Dossier de l'ordre du jourCity of Saint John
Common Council Meeting
Monday, July 25, 2011 @ 5:00p.m.
Location: 8`h Floor Boardroom
Committee of the Whole Open Session Agenda
1.0 Little River Reservoir Park
1.1 Mispec Park Agreement
Committee of the Whole Closed Session Agenda
1.2 Land Matter — 10.2(4)(c)
The City of Saint John
COMMITTEE OF THE WHOLE
July 25, 2011
Committee of the Whole
of Common Council of
The City of Saint John
Mayor Court and Committee Members:
Re: Little River Reservoir Park
City Solicitors Office
Bureau de Pavocat municipal
We understand that the Committee could be asked at this evening's meeting to consider
the topic noted above. With respect to this topic we are informed that Irving Oil seeks to
begin preliminary work on the Little River Reservoir Park before the formal Maintenance
Agreement is finalized. To accommodate the Company's desire to enter upon the site at
once, we have prepared an Early Access Agreement allowing Irving Oil to carry out
preliminary trail grooming work until August 2, 2011, the date of Council's next meeting,
when staff will have said formal agreement on the agenda for Council's consideration.
Respectfully Submitted,
John L. Nugent
City Solicitor
Enclosure
lr _
SAINT JOHN
P.O. Box 1971 Saint John, NB Canada E2L 4L1 I www.saintjohn.ca I C.P. 1971 Saint John, N. -B. Canada E2L 4L1
EARLY ACCESS AGREEMENT
THIS AGREEMENT made this day of , 2011.
BY AND BETWEEN:
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, hereinafter the "City"
OF THE FIRST PART
- and —
IRVING OIL REFINING G.P., having offices at 10
Sydney Street, Saint John, New Brunswick, a partnership
formed pursuant to the Partnerships and Business Names
Registration Act, R.S.N.B. 1973, c. P -5, acting by its
general partner, Irving Oil Operations Ltd., hereinafter
called the "Company"
OF THE SECOND PART
WHEREAS the City is the owner of certain lands and premises located in the City of
Saint John, in the County of Saint John and Province of New Brunswick, more particularly
described as PID Nos. 331330 and 55209852, and being part of the area known as the Little
River Watershed (the "Lands and Premises ");
AND WHEREAS a community group known as the Little River Reservoir Association
(the "LRRA ") is desirous of redeveloping and improving a community park located on a portion
of the Lands and Premises and to be known as the Little River Reservoir Community Park (the
"Park"
AND WHEREAS the Company has agreed to assist the LRRA with the redevelopment of
the Park, which will include improvements to the existing parking area and the construction of
certain bridges, pathways, trails, benches, picnic shelters, playground equipment and other
related improvements within a defined area of the Lands and Premises;
AND WHEREAS Common Council for the City has, by resolution dated May 24, 2011,
(the "Resolution ") resolved to approve the redevelopment plans for the Park as presented at the
May 29, 2011 meeting of Common Council;
AND WHEREAS in accordance with the said Resolution, the City and the Company are
entering into a Maintenance Agreement in order to set out their respective obligations with
respect to the construction of the Park and its future maintenance;
AND WHEREAS the Company seeks access to the Lands and Premises to carry out
preliminary trail grooming work before the Maintenance Agreement is finalized;
AND WHEREAS by Resolution adopted at a meeting of the Common Council of the
City of Saint John held , 2011, the City gives the Company access to the Lands and
Premises to carry out preliminary trail grooming work upon such terms and conditions as are
hereinafter set out;
1. The Company, by its authorized representatives, with such equipment as may be
necessary has a right of access to, in and upon the Lands and Premises at any time
provided such right is exercised with as little disturbance as possible to the City and
does not unduly interfere with the City's use of the Lands and Premises for its
proposed water treatment facility at such times and for such purposes hereinafter set
out:
a. The right of access is to allow the Company to carry out preliminary trail
grooming work before the Maintenance Agreement is finalized;
b. The right of access does not permit any construction or structural work
whatsoever to be carried out;
c. The right of access to, in and upon the lands shall terminate at 11:59 p.m. local
time on August 2, 2011;
d. Any entry to, in and upon the lands shall require 24 hours prior notice to the City
Manager;
e. Any entry by or on behalf of the Company shall be at its risk and their risk, cost
and expense and the Company shall make good any and all damage caused to the
Lands and Premises;
f. The Company shall not exercise any access to, in and upon the Lands and
Premises until the Company shall deliver to the City a Certificate of Insurance
naming the City as an additional insured, evidencing a Policy of Commercial
General Liability Coverage on an "current" basis and containing a cross - liability
clause, which policy must have an inclusive limit of not less than Five Million
Dollars ($5,000,000). The aforesaid certificate must provide that the coverage
shall stay in force and not be amended, cancelled or allowed to lapse without
thirty days (30) prior written notice given to the City Manager. The aforesaid
insurance coverage must remain in full force and effect during the entire term of
this Agreement;
g. The Company for itself and its authorized representatives hereby indemnifies and
saves harmless the City from and against all matters arising by reason of the
exercise by the Company or by its authorized representatives of the rights given
them by this Agreement.
IN WITNESS WHEREOF the parties hereto have caused these presents to be duly
executed by the properly authorized officers and their respective corporate seals to be affixed
hereto the day and year first above written.
SIGNED, SEALED & DELIVERED)
In the presence of: )
}
THE CITY OF SAINT JOHN
Ivan Court, Mayor
Elizabeth Gormley, Common Clerk
Common Council Resolution:
IRVING OIL REFINING G.P.
Per:
L a-
cr_ ,
Lynda D. Farrell
Direct Line: 506.658.4096
Fax No.: 506.649.7939
Email: lynda.farrel l @saintjohn.ca
July 25, 2011
Patrick Woods
City Manager
City of Saint John
15 Market Square
Saint John, N13
Dear Mr. Woods:
Re: Mispee Park Agreement
Attached is a copy of the Agreement for the set of stairs at Mispec Park.
I prepared the Agreement upon instructions from and in consultation with
Trevor Gamblin. The solicitor for the company has reviewed the Agreement
and is satisfied with its content.
If you wish to place this matter before Common Council the following
recommendation is appropriate:
That the Mayor and Common Clerk are authorized to execute the
Agreement between the City of Saint John and Repsol Canada Ltd., in
its capacity as the managing general partner of Canadport LNG Limited
Partnership placed before Common Council meeting this date.
Yours truly,
Lynda D. Farrell
Solicitor
LDF /ws
Enclosures
SAINT JOHN
—L.
P.O. Box 1971 Saint John, NB Canada E21- 41-1 I www.saintjohn.ca I C.P. 1971 Saint John, N. -B. Canada E21- 41-1
MISPEC PARK AGREEMENT
THIS AGREEMENT made this day of July, 2011
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, hereinafter called the "City ",
OF THE FIRST PART
-and-
REPSOL CANADA LTD., in its capacity as the managing
general partner of CANAPORT LNG LIMITED
PARTNERSHIP, having offices at 2530 Red Head Road,
P.O. Box 2029, Saint John, New Brunswick E2L 3T5,
hereinafter called the "Company ",
OF THE SECOND PART
WHEREAS the City is the owner in fee simple of certain lands and premises located at
Mispec in the Parish of Simonds, County of Saint John and Province of New Brunswick, more
particularly known as " Mispec Park ";
AND WHEREAS the Company has agreed to perform certain hereinafter described work
at Mispec Park;
NOW THEREFORE in consideration of the sum of TWO DOLLARS ($2.00) paid by
each of the parties to the other, the receipt and sufficiency of which is hereby acknowledged, and
subject to the mutual terms, conditions and covenants herein contained, the City and the
Company agree as follows:
Consent
1. The City gives to the Company, for itself and its authorized representatives, with such
equipment as may be necessary permission to enter upon Mispec Park to carry out the
-2-
hereinafter described work at its sole cost and expense subject to the terms and conditions
set forth in this Agreement.
Conditions
2. The Company agrees as follows:
(a) It shall, prior to December 31, 2011 and at its sole cost, construct one (1) removable set
of stairs to the beach at Mispec Park; the set of stairs shall be built to the standards set
forth in the National Building Code of Canada 2010;
(b) It shall, prior to December 31, 2012 and at its sole cost, construct a gravelled walkway
from the canteen to the beach at Mispec Park;
Collectively hereinafter "the Work".
Vesting of Title to the Work
3. Upon completion of the Work, the removable set of stairs becomes the property of the City.
The City shall ensure that the removable set of stairs is removed from Mispec Park at the
close of the summer season and kept in storage during the fall, winter and early spring.
4. The City shall be responsible for all normal maintenance but shall have no obligation or
responsibility to reconstruct a set of stairs in the event the set of stairs built by the Company
is damaged or destroyed by wear or otherwise.
Representations and Warranties
5. The Company represents and warrants to and covenants and agrees with the City:
(a) that the Company shall not suffer or permit any lien to be filed or registered against the
Lands and Premises in relation to the Work;
(b) in the event a lien is filed, the Company shall immediately cause the lien to be vacated;
and
(c) that the Company shall, at its own expense, procure and carry, or cause to be procured,
carried and paid for, full workers' compensation coverage for itself and persons engaged
or employed by the Company in carrying out the Work.
Liability During Continuance of Agreement
6. The Company shall indemnify and save harmless the City from and against all actions,
causes of action, proceedings, claims and demands brought against the City, and from and
against all losses, costs, damages or expenses suffered or incurred by the City, by reason of
Mispec Park Agreement
-3-
any damage to property, including property of the City, or injury, including injury resulting
in death, to persons, including the employees, servants, agents, licensees and invitees of the
City, caused by, resulting from or attributable to the negligent act or omission of the
Company or any of its employees, servants, or agents in the performance of this Agreement.
7. The City shall indemnify and save harmless the Company from and against all actions,
causes of action, proceedings, claims and demands brought against the Company, and from
and against all losses, costs, damages or expenses suffered or incurred by the Company, by
reason of any damage to property, including property of the Company, or injury, including
injury resulting in death, to persons, including the employees, servants, agents, licensees and
invitees of the Company, caused by, resulting from or attributable to the negligent act or
omission of the City or any of its employees, servants or agents in the performance of this
Agreement.
8. Notwithstanding anything contained in this Agreement, the City and the Company shall not
be liable to each other in any way for indirect or consequential losses or damages, or
damages for pure economic loss, howsoever caused or contributed to, in connection with this
Agreement.
Insurance
9. During construction of the Work, the Company shall, at its sole cost, obtain and keep in force
commercial general liability insurance for claims for damages from personal injury including
death, and for claims from property damage which may arise under this Agreement, which
coverage shall have an inclusive limit of not less than five million dollars ($5,000,000.00) for
each occurrence, and which insurance shall also include the following: (i) the City as an
"additional insured ", and (ii) a cross liability clause. The Company shall provide a certificate
of insurance to the City evidencing such insurance coverage prior to commencing the Work.
General Provisions
10. This Agreement shall be binding upon and shall enure to the benefit of the parties hereto and
their respective successors and assigns.
11. This Agreement is the entire Agreement between the City and the Company regarding the
subject matter of this Agreement and may be amended or supplemented only by a document
executed by the parties hereto.
12. If any provision of this Agreement is found to be invalid, illegal or unenforceable by a court
of competent jurisdiction, such provision shall be considered severed from this Agreement
and the remainder of this Agreement shall remain in full force and effect.
13. In this Agreement, unless the context otherwise requires, the singular includes the plural and
the masculine gender includes feminine.
14. Time is of the essence in the performance of this Agreement.
Mispec Park Agreement
-4-
15. This Agreement shall be governed by, and construed and enforced in accordance with the
laws of the Province of New Brunswick and the laws of Canada.
IN WITNESS WHEREOF the parties hereto have executed this Agreement in duplicate as of the
date first aforementioned.
THE CITY OF SAINT JOHN
Mayor
Clerk
Common Council Resolution:
REPSOL CANADA LTD. in its capacity
as the managing general partner of
CANAPORT LNG LIMITED
PARTNERSHIP
Per:
Title:
Mispec Park Agreement