2011-12-19_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaireCity of Saint John
Common Council Meeting
Monday, December 19, 2011
Location: Common Council Chamber
Supplemental to Agenda
5.14 Amendment to an Agreement between the City of Saint John and Atlantic
Wallboard Limited Partnership (Recommendation in Report)
13.4 Committee of the Whole: Recommended Appointments to Committees
13.5 Committee of the Whole: City Owned Lands Located at 150 -160 Thorne Avenue
bearing PID # 55174106
13.6 Committee of the Whole: Appointment of Arbitration Board in the Matter of
Collective Bargaining between the City of Saint John and the Saint John Fire
Fighters' Association, I.A.F.F., Local 771
City of Saint John
Seance du conseil communal
le lundi 19 decembre 2011
Lieu: Salle du conseil communal
Ordre du jour supplementaire
5.14 Modification d'un accord entre City of Saint John et Atlantic Wallboard Limited
Partnership (recommendation figurant au rapport)
13.4 Comite plenier: nominations recommandees aux comites
13.5 Comit6 plenier: terres appurtenant a la ville situe au 150 -160, avenue Thorne, PID
# 55174106
13.6 Comite plenier: nominations au conseil d'arbitrage dans 1'affairc de la n6gociation
collective entre les City of Saint John et Saint John Fire Fighters' Association,
I.A.F.F., Local 771
REPORT r -r D .,-y rti ,,? -
M &C -2011 -332
December 19, 2011
His Worship Mayor Ivan Court and
Members of Common Council
Your Worship and Councillors:
SUBJECT: Amendment to an Agreement between the City of Saint John
and Atlantic Wallboard Limited Partnership
INTRODUCTION
City of Saint John
Atlantic Wallboard Limited Partnership (AWLP) is seeking an amendment to an
Agreement with the City of Saint John dated June 26, 2007 that permits a railway
crossing over Bayside Drive.
DISCUSSION
The Agreement permits railway tracks to cross Bayside Drive in the vicinity of
the Wallboard Plant. A spur line is in place in this location to move goods to and
from the Plant. The Agreement permits the tracks to cross the City's public right
of way but the total amount of rail traffic permitted to cross the public street is no
more than five (5) return rail crossings daily with a maximum of ten (10) rail cars
per crossing. In addition, these crossings are not permitted between the hours of
7:00 am and 9:00 am and 4:00 pm and 6:00 pm.
AWLP is seeking an amendment to the Agreement to permit a maximum of
twenty -five (25) rail cars per crossing. All other elements of the Agreement are
proposed to remain the same. The major issue with respect to this request is the
potential impact on vehicular traffic that utilizes Bayside Drive. AWLP has
indicated that the crossing time for the trains will increase from an average of 40
seconds per crossing to an average of 90 seconds per crossing. This will
inconvenience those who travel on Bayside Drive but it also represents a
significant challenge to emergency responders. Emergency response time was
addressed the City in the original Agreement through the provision of an
emergency response route through private property to avoid the rail crossing. The
M & C — 2011 — 332 - 2 - December 19, 2011
City's Real Estate Services Division and the Saint John Fire Department have
confirmed that the emergency response route is in place and that employees of the
company are well familiarized with its existence. As a result, the Saint John Fire
Department has indicated that it has no objection to the requested amendment to
the Agreement.
RECOMMENDATION:
It is recommended that Common Council amend clause 9 of the License
Agreement made June 26, 2007 between the City of Saint John and Atlantic
Wallboard Limited Partnership in the following manner:
Delete in the first sentence of clause 9 "a maximum of ten (10) rail cars per
crossing" and substitute "a maximum of twenty -five (25) rail cars per
crossing.
In all other respects, the said License Agreement remains unchanged.
Respectfully submitted,
Ken Forrest, MCIP RPP
Commissioner of Planning and Development
J. Patrick Woods, C.G.A.
City Manager
THIS LICENCE AGREEMENT (the "License ") made in duplicate this a
day of June, 2007.
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 called the "City"
OF THE FIRST PART
- and —
ATLANTIC WALLBOARD LEMTED
PARTNERSHIP, a body corporate, duly incorporated
under the laws of the Province of New Brunswick,
having its registered office at 300 Union Street, Saint
John, New Brunswick, hereinafter called the "Company"
OF THE SECOND PART
WHEREAS Bayside Drive (the "Street ") is a public street in the City of Saint
John; and
WHEREAS the City is the fawner of the' fee simple in the said public street; and
WHEREAS the Company is desirous of installing railway track in the said public
street and upon completion of such installation using such railway track for rail
vehicle/car crossings and the transW4ation of materials; and
WHEREAS the City by resolution of its Common Council meeting on October
10, 2006 authorized "a License Agreement generally in accordance with the terms set out
in the submitted report [M & C 2006 -250] subject to the approval of the City Solicitor ";
NOW THIS AGREEMENT WTTNESSETH that the City in consideration of the
sum of One ($1.00) Dollar and other good and valuable consideration paid by the
Company, the receipt whereof is hereby acknowledged, grants license and permission to
the Company by its servants, agents and employees to enter in and upon the Street with
men, material and equipment for the purpose of laying, constructing and installing
railway track (the "Work "), and upon completion of the Work to use, operate, maintain,
repair, replace, renew and remove the Work, commencing upon the date this Licence is
executed by the City, save as hereinafter provided otherwise and upon the following
terms and conditions:
1. The Work shall be located within the limits of the said Street as .shown on the
Plan of Survey attached hereto as Schedule "A ", or as may otherwise be mutually agreed
to in writing between the parties.
2. Except as otherwise provided, the rights and obligations of the City and the
Company shall terminate upon the termination of this Licence, save and except the
Final June 20107 0
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obligation of the Company to remove the Work and restore the site of the Work to the
reasonable satisfaction of the Chief City Engineer of the City of Saint John (the "Chief
City Engineer ") which obligation shall survive the termination of this Licence.
3. i) The Company has created and hereby designates an emergency response
route, as approximately shown on the Plan of Survey attached hereto as Schedule
"B" (the "Emergency Response Route "), which route is acceptable to the Chief
City Engineer and the Fire Chief of the City of Saint John. The Emergency
Response Route is designated for use by emergency response vehicles of any
government agency (federal, provincial and municipal) and must be maintained
at the Company's expense to the reasonable satisfaction of the Fire Chief of the
City of Saint John. The Emergency Response Route shall be available at all
times during the Work, and upon completion of the Work, when the use,
operation, maintenance, repair, replacement, renewal of rail beds or associated
equipment or areas, impairs or makes the street unavailable for the normal
passage of emergency response vehicles;
ii) During the term hereof the City and the Company shall endeavour to establish
and implement a Communications Response Procedure satisfactory to the Fire
Chief of the City of Saint John, designed to ensure that the rail service provider
and all emergency responders are notified in a timely manner when operating
emergency response vehicles ( "Conunuvications Response Procedure"). Such
Communications Response Procedure, if and when acceptable to the Fire Chief
of the City of Saint John, shall issue As an Operating Bulletin of the rail service
provider used by the Company in accordance with the Canadian Railway
Operating Rules as adminisu'red by Transport Canada. Once the Fire Chief of
the City of Saint John has accepted, in writing, the Communications Response
Procedure in accordance 'with tlm Clause, the Company is relieved of its
obligation for the Emergency Response Route referred to in Clause 3(i). The
Communications Response Procedure may, from time to time, be reviewed and
altered by the mutual agteit of the City and the Company and the Operating
Bulletin shall then re- issue;
iii) Notwithstanding Clause 3(ii) either the Company or the City may propose and
develop a technologically based Emergency Response Procedure in the event
such technology is available and is acceptable to both the City and the Company.
4. The Work shall be performed by the Company at its expense and in accordance
with all applicable rules and regulations. All street reinstatement and any relocation or
repair of any municipal service damaged during the Work or during any maintenance,
repair, replacement, renewal or removal of the Work will be as reasonably directed by the
Chief City Engineer at the expense of the Company, unless such damage to municipal
services occurred as a result of negligence on the part of the City or its employees, agents
or contractors.
5. In the event that the municipal services under or within ten (10) metres of the
Work rupture or malfunction within ninety (90) days of the completion of the Work and
such rupture or imalfunctiori is due to ' an -act - or omission of' the 'Compariy, ilien the
Company will perform and pay for all reasonable repairs to the reasonable satisfaction of
the Chief City Engineer. Cd
Final June 20107
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6. The Company will pay for all regular maintenance associated with the levelling
or adjusting of the grade of the crossing relative to the street grade, so as not to cause any
hazard to the travelling public and such work must be completed to the reasonable
satisfaction of the Chief City Engineer within twenty (20) days of receipt of written
notice from the City. For greater certainty this clause shall not apply should the City
undertake a material change or redesign of the street. In such case any alteration in the
location of the Work at the request of the City shall be carried out by the Company at the
City's expense and in accordance with the regulations, laws and guidelines governing rail
crossings.
7. In the event that the Work contemplated in the above paragraph is not performed,
or a hazardous condition remains (any condition which in the opinion of the Chief City
Engineer, acting reasonably, presents a danger to the safe use of the street by vehicular or
pedestrian traffic) beyond the twentieth (20`h) day of receipt of written notice from the
City, the City may undertake any and all work in its reasonable opinion that is required to
remedy the hazard and the cost of such work shall be bome by the Company. The
Company shall pay the City within thirty (30) days of the date of receipt of any invoice
along with supporting documentation for such work.
8. The Company will post and maintain rail crossing signs /signals as required by
any applicable law.
9. The movement of rail cars across the street must be performed in accordance
with the regulations, laws, by -laws and guidelines governing the movement of rail cars,
notwithstanding such regulations, laws, by -laws and guidelines, return rail crossings may
be made up to a maximum of five (S) tiiiMs daily to a maximum of ten (10) rail cars per
crossing. There shall be no crossings permitted between 7:00 a.m. and 9:00 a.m. local
time or between 4:00 p.m. and 6:00 p,tn. local time.
10. That subject to a minimum of thirty (30) days prior written notice, except in an
emergency situation for which no prior notice shall be required, the City reserves the
right to remove any portion of the Work or to repair, replace or install new municipal
services under or near the Work, provided such removal, repair, replacement or
installation shall be at a mutually convenient time and without business disruption
compensation. The reinstatement of the Work will be to a condition equal to that existing
at the time of its removal, at the expense of the City. In the event the Company wishes to
improve or replace portions of the Work at the time of the City's reinstatement, the
Company may do so at its own expense provided any additional expenses incurred by the
City shall be borne by the Company. In such instances, and if the City so consents (such
consent will not be unreasonably withheld or delayed), the Company may undertake the
task of reinstating the crossing for which the City will provide a cash amount equivalent
to the City's cost of reinstating the crossing, as existing prior to its .removal. All such
work undertaken by either party, shall be carried out in a proper, diligent and expeditious
manner.
11. The Company shall forthwith pay to the City the sum of One Thousand
($1,000.00) Dollars plus HST, and thereafter, on each anniversary for the initial twenty
(20) years; the "sum -of Five Hundred ($50ifODY Dollars plus HST. - The aiinwu —fee wilt Tie
adjusted every twenty years as mutually agreed upon by the Company and the City, and
failing such agreement, as determined by arbitration pursuant to the Arbitration Act. a
Final June 20107
12. The Work shall not commence until the Company has provided the Chief City
Engineer with a complete set of construction/engineering drawings for the said Work; the
drawings and the proposed design contained therein shall have been approved by the
Chief City Engineer, which approval shall not be unreasonably withheld or delayed; and
the Company has obtained all permits required by law.
13. Within ninety (90) days of the completion of the Work the Company shall
provide the Chief City Engineer with a set of "as built" drawings of the Work in both
paper and electronic format.
14. Upon termination of this Licence, other than due to the default of the City, the
Company shall remove the Work and reinstate the Street to the then City standard all at
the expense of the Company.
15. Either the City or the Company shall have the right to terminate the Licence if
the other party (the "Defaulting Party ") fails to perform any of its material obligations set
forth in the Licence and such default continues for a period of thirty (30) clays after
written notice thereof has been given to the Defaulting Party; provided, however, that if
the nature of such failure. is such that it cannot be cured by a payment of money and
cannot be cured within a period of thirty (30) days exercising commercially reasonable
diligence, the Defaulting Party shall have such reasonable additional time as may be
necessary as long as the curing of such defaWiit is 'begun promptly and is carried out with
due diligence to completion.
16. This Licence or any privilege hweunder is not assignable by the Company
without the City's prior written approval, which approval shall not be unreasonably
withheld. This clause shall not apply to any mortgaged transaction, or an assignment to
an associate or subsidiary company. For the purpose of this clause an aforesaid
subsidiary or associate company shall mean a company with a board of directors whose
membership is composed of the same or substantially the same members as the
Company.
17. The Company shall keep in force for the full term of this Licence a
comprehensive general liability insurance policy with respect to the existence of the
Work and all the related activities as hereinbefore expressed. The liability policy shall
include: (a) a limit of not less than Five Million ($5,000,000.00) Dollars; (b) the City as
an additional insured with respect to the Company's activities; (c) a cross - liability clause;
(d) contractual liability with respect to this License; and (e) a thirty (30) day written
notice of the cancellation of the policy shall be given to the City.
18. The Company shall indemnify and save harmless the City from all loss, damage,
or injury of every nature, kind or description whatsoever and in respect of property
owned by others and in respect of damage sustained by others, whether caused by the
presence of the Work or the use, operation, maintenance, repair, replacement, renewal
and removal of the Work by the Company or by the negligence of the Company, its
employees, workmen or agents and from all damages, claims, demands, actions, suits or
other proceedings by whomsoever made, brought or prosecuted in any manner based
upon or arising out of or connected with this icence, unless such loss, damage, injury - -
such claims, demands, actions, suits or other proceedings are due to the negligence of the
City or its employees, agents, or contractors.
Final June 20107
WE
19. The Company's obligation to provide any indemnity under this License is
contingent upon (i) prompt written notice by the City to the Company of any claim,
demand or proceeding of any type against the City or the occurrence of any situation,
which may become the subject matter of a claim for indemnity; (ii) the City permitting
the Company to join or otherwise assist the City in the investigation and defence of such
claim, action or situation; (iii) the delivery to the Company by the City of a copy of every
demand, notice, summons or other process or significant document received by it relating
to such matter; (iv) the City not voluntarily making any payment, assuming any
obligation or incurring any expense with respect to such claim, demand, proceeding or
situation without the prior written consent of the Company; and (v) the City assigning to
the Company its rights to recovery against any person, and the City shall execute all
papers required and shall do everything necessary to secure and enforce such rights.
20. It is agreed between the City and the Company that neither the City nor the
Company shall be held responsible for damages caused by delay or failure to perform an
undertaking under the terms of this Licence where the delay or failure is due to fires,
strikes, floods, acts of God, lawful acts of public authorities other than the City, or delays
or defaults caused by common carriers, which cannot be reasonably foreseen or provided
against.
21. This License shall commence on the date of execution and shall continue for a
period of twenty (20) years. Thereafter, ,tW-. License shall automatically renew for
subsequent periods of twenty (20) years =4 unless the Company provides the City with
written notice of termination sixty (60) days pmr to the end of the then current period.
22. All notices to be given under fts Licari, ce must be given under this Licence must
be given in writing as follows:
To the Company: F ot
Atlantic Wallboard Limited Partnership
300 Union Street
Saint John, New Brunswick E2L 4M3
Attention: Vice President
Copy to: 300 Union Street, P.O. Box 5888
Saint John, New Brunswick E2L 414
Attention: Secretary
And to the City:
The City of Saint John
15 Market Square, P. O. Box 1971
Saint John, New Brunswick E2L 4L1
Attention: The Common Clerk
Copy to: The City of Saint John
P. O. Box 1971
Saint John, N6 w Brunswick BBL 4L1
Attention: Chief City Engineer
Notice shall be sufficiently given if delivered by courier or if mailed by prepaid
registered mail to the above address or to such other place as may be specified from time Cr
Final June 20107
I am
to time in writing by either the City or the Company. Any notice or other document, if
delivered by courier, shall be deemed to have been given or made on the date delivered,
or the date that a confirmation of receipt was recorded by the centre, and if mailed, on the
third business day following the date on which it was mailed. in the event of an actual or
imminent disruption of postal service in Canada, the notice shall be delivered by courier.
23. No change or modification of this Licence shall be valid unless it be in writing
and signed by the City and the Company.
24. This Licence shall be governed by and construed in accordance with the laws of
the Province of New Brunswick.
25. This Licence is not intended to create any right in the nature of an easement or
right -of -way and will be constructed only as a licence and does not prevent the City from
imposing, charging, claiming, or levying any rate, tax, lien, assessment, or levy of any
description whatsoever against the Company, its successors and assigns, by reason of the
construction or presence of the Work previously granted hereunder.
26. This Agreement shall enure to the benefit of and be binding upon the City and
the Company, their respective successors and assigns.
[remainder of page Awntionally left blank] ,rf
Final June 20107
IN WITNESS WHEREOF the parties hereto have caused these presents to be
executed by their duly authorized representatives the day and year first herein written.
SIGNED, SEALED & DELIVERED
q p?p
THE CITY OF SAINT JOHN
N.M. McFarlane, Mayor
J. �a; ick Woods, Common Clerk t � 1%1 E;� i
Common Council Resolution:
October 10, 2006.
ATLANTIC WALLBOARD LIMITED,
As general partner for:
ATLANTIC WALLBOARD
LIMITED PARTNERSHIP
Per:
Final June 20107
PROVINCE OF NEW BRUNSWICK
COUNTY OF SAINT JOHN
I, J. PATRICK WOODS, of the City of Saint John, in the County of Saint John and
Province of New Brunswick, MAKE OATH AND SAY : -
1. THAT I am the Common Clerk of the City of Saint John and have custody of the
Common Seal hereof.
2. THAT the Seal to the aforegoing instrument affixed is the Common Seal of the City of
Saint John and that it was so affixed by Order of the Common Council of the said City.
3. THAT the signature "N.M. McFarlane" to the said instrument is the signature of Norm
McFarlane, Mayor of the said City, and the signature "J. Patrick Woods" thereto is my own
signature.
-�t
4. THAT we are the proper officers to sign the aforegoing instrument on behalf of the City
of Saint John.
SWORN TO BEFORE ME at
}
the City of Saint John, in the
}
County of Saint John and
)
Province of New Brunswick
}
this 27th day of June, 2007.
)
' Lyn a . Farre
)
Co er of Oaths
)
Being a 'Solicifor-
J. P 'ck Woods
AFFIDAVIT
I, Bruce A. Drost, of the Town of Rothesay, in the County of Kings and Province
of New Brunswick make oath and say:
1. That I am the Assistant Secretary of Atlantic Wallboard Limited (in its capacity as
general partner of Atlantic Wallboard Limited Partnership), a body corporate under
the laws of the Province of New Brunswick having its registered office in Saint
John, New Brunswick.
2. That the President, Vice President, and Assistant Secretary of Atlantic Wallboard
Limited are authorized to execute documents in the name and on behalf of the said
corporation.
3. That the seal affixed to the foregoing instrument is the corporate seal of the said
Atlantic Wallboard Limited and was so affixed by the authority of the directors
thereof.
4. That the signature of "J. D. Irving" to the foregoing instrument is the signature of
James D. Irving, the President of the said company, and the signature of "Wayne
Power" is the signature of Wayne Power, Vice President of the said company, and
the signature of "Bruce A. Drost" is in the proper handwriting of me, the deponent.
5. That the said signatures were subscribed to the said instrument and the corporate
seal affixed thereto for the purpose of execution on behalf of the corporation.
6. That, at the date of the exectoon of the within instrument, the ownership of a share
or shares, or an interest in a share of shares, of Atlantic Wallboard Limited did not
entitle the owner thereof to the occupation of a marital home within the meaning of
the Marital Property Act, S.N.D., 1980, c. M -1.1, as amended (the "Act "), namely a
"family residence" on the lands and premises conveyed in the within instrument
within the meaning of the Act.
Sworn to at the City of Saint
John, in the County of Saint
John, and Province of New
Brunswick, this 26 day of
June 2007
before me
Commissioner of Oaths
Being a Solicitor
- - - Bruce A. Drost - - - -
-7. %7'
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Revised Recommendation for M & C — 2011 - 332
Amendment to an Agreement between the City of Saint John and Atlantic Wallboard Limited
Partnership
It is recommended that Common Council amend clause 9 of the License Agreement made June
26, 2007 between the City of Saint John and Atlantic Wallboard Limited Partnership in the
following manner:
Delete in the first sentence of clause 9 "a maximum of ten (10) rail cars per crossing" and
substitute "a maximum of twenty-five (25) rail cars per crossing.
In all other respects, the said License Agreement remains unchanged.
It is further recommended that Common Council amend clause 8 of the License Agreement made
November 4, 2011 between the City of Saint John and Atlantic Wallboard Limited Partnership in
the following manner:
Delete in the first sentence of clause 8 "a maximum of ten (10) rail cars per crossing" and
substitute "a maximum of twenty -five (25) rail cars per crossing.
In all other respects, the said License Agreement remains unchanged.
THIS LICENCE AGREEMENT (the "License ") made in duplicate this
day of November, 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 called the "City"
OF THE FIRST PART
- and --
ATLANTIC WALLBOARD LIMITED, in its
capacity as the General Partner of and on behalf of
Atlantic Wallboard Limited Partnership, having an
office at 300 Union Street, Saint John, New Brunswick,
hereinafter called the "Company"
OF THE SECONDTA.RT
WHEREAS Old Bayside Drive to the immediate west of the relocated Bayside
Drive (the "Street ") is a public street in the City of Saint John; and
WHEREAS the City is the owner of the fee simple in the said public street; and
WHEREAS the Company is desirous of installing railway track in the said public
street and upon completion of such installation using such railway track for rail
vehicle/car crossings and the transportation of materials; and
WHEREAS the City by resolution of its Common Council meeting on November
2011 authorized a License Agreement in accordance with the terms set out
hereinafter;
NOW THIS AGREEMENT WT NESSETH that the City in consideration of the
sum of One ($1.00) Dollar and other good and valuable consideration paid by the
Company, the receipt whereof is hereby acknowledged, grants license and permission to
the Company by its servants, agents and employees to enter in and upon the Street with
men, material and equipment for the purpose of laying, constructing and installing
railway track (the "Work "), and upon completion of the Work to use, operate, maintain,
repair, replace, renew and remove the Work, commencing upon the date this Licence is
executed by the City, save as hereinafter provided otherwise and upon the following
terms and conditions:
1. The Work shall be located within the limits of the said Street as shown on the
Plan of Survey attached hereto as Schedule "A ", or as may otherwise be mutually agreed
to in writing between the parties.
Final November 4111
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2. Except as otherwise provided, the rights and obligations of the City and the
Company shall terminate upon the termination of this Licence, save and except the
obligation of the Company to remove the Work and restore the site of the Work to the
reasonable satisfaction of the Chief City Engineer of the City of Saint John (the "Chief
City Engineer") which obligation shall survive the termination of this Licence.
3. The Work shall be performed by the Company at its expense and in accordance
with all applicable rules and regulations. All street reinstatement and any relocation or
repair of any municipal service damaged during the Work or during any maintenance,
repair, replacement, renewal or removal of the Work will be as reasonably directed by the
Chief City Engineer at the expense of the Company, unless such damage to municipal
services occurred as a result of negligence on the part of the City or its employees, agents
or contractors.
4. In the event that the municipal services under or within ten (10) metres of the
Work rupture or malfunction within ninety (90) days of the completion of the Work and
such rupture or malfunction is due to an act or omission of the Company, then the
Company will perform and pay for all reasonable repairs to the reasonable satisfaction of
the Chief City Engineer.
5. The Company will pay for all regular maintenance associated with the levelling
or adjusting of the grade of the crossing relative to the street grade, so as not to cause any
hazard to the travelling public and such work must be completed to the reasonable
satisfaction of the Chief City Engineer within twenty (20) days of receipt of written
notice from the City, For greater certainty this clause shall not apply should the City
undertake a material change or redesign of the street. In such case any alteration in the
location of the Work at the request of the City shall be carried out by the Company at the
City's expense and in accordance with the regulations, laws and guidelines governing rail
crossings.
6. In the event that the Work contemplated in the above paragraph is not performed,
or a hazardous condition remains (any condition which in the opinion of the Chief City
Engineer, acting reasonably, presents a danger to the safe use of the street by vehicular or
pedestrian traffic) beyond the twentieth (20') day of receipt of written notice from the
City, the City may undertake any and all work in its reasonable opinion that is required to
remedy the hazard and the cost of such work shall be borne by the Company. The
Company shall pay the City within thirty (30) days of the date of receipt of any invoice
along with supporting documentation for such work.
7. The Company will post and maintain rail crossing signs /signals as required by
any applicable law.
8. The movement of rail cars across the street must be performed in accordance
with the regulations, Iaws, by -laws and guidelines governing the movement of rail cars,
notwithstanding such regulations, laws, by -laws and guidelines; return rail crossings may
be made up to a maximum of five (5) times daily to a maximum of ten (10) rail cars per
crossing. There shall be no crossings permitted between 7:00 a.m. and 9:00 a.m. local
time or between 4:00 p.m. and 6 :00 p,m. local time.
Final November 4/71 p�
-3 -
9. That subject to a minimum of thirty (30) days prior written notice, except in an
emergency situation for which no prior notice shall be required, the City reserves the
right to remove any portion of the Work or to repair, replace or install new municipal
services under or near the Work, provided such removal, repair, replacement or
installation shall be at a mutually convenient time and without business disruption
compensation. The reinstatement of the Work will be to a condition equal to that existing
at the time of its removal, at the expense of the City. In the event the Company wishes to
improve or replace portions of the Work at the time of the City's reinstatement, the
Company may do so at its own expense provided any additional expenses incurred by the
City shall be borne by the Company. In such instances, and if the City so consents (such
consent will not be unreasonably withheld or delayed), the Company may undertake the
task of reinstating the crossing for 'which the City will provide a cash amount equivalent
to the City's cost of reinstating the crossing, as existing prior to its removal. All such
work undertaken by either party, shall be carried out in a proper, diligent and expeditious
manner,
10. The Company shall forthwith pay to the City the sum of One Hundred ($100.00)
Dollars plus HST, and thereafter, on each anniversary for the initial twenty (20) years, the
sum of One ($1.00) Dollar plus HST. The annual fee will be adjusted every twenty
years as mutually agreed upon by the Company and the City, and failing such agreement,
as determined by arbitration pursuant to the Arbitration Act.
11. Upon termination of this Licence, other than due to the default of the City, the
Company shall remove the Work and reinstate the Street to a standard acceptable to the
City, all at the expense of the Company.
12. Either the City or the Company shall have the right to terminate the Licence if
the other party (the "Defaulting Party'D fails to perform any of its material obligations set
forth in the Licence and such default continues for a period of thirty (30) days after
written notice thereof has been given to the Defaulting Party; provided, however, that if
the nature of such failure is such that it cannot be cured by a payment of money and
cannot be cured within a period of thirty (30) days exercising commercially reasonable
diligence, the Defaulting Party shall have such reasonable additional time as may be
necessary as long as the curing of such default is begun promptly and is carried out with
due diligence to completion.
13. This Licence or any privilege hereunder is not assignable by the Company
without the City's prior written approval, which approval shall not be unreasonably
withheld. This clause shall not apply to any mortgaged transaction, or an assignment to
an associate or subsidiary company. For the purpose of this clause an aforesaid
subsidiary or associate company shall mean a company with a board of directors whose
membership is composed of the same or substantially the same members as the
Company.
14. The Company shall keep in force for the full term of this Licence a
comprehensive general liability insurance policy with respect to the existence of the
Work and all the related activities as hereinbefore expressed. The liability policy shall
include, (a) a limit of not less than Five Million ($5,000,000.00) Dollars; (b) the City as
an additional insured with respect to the Company's activities; (c) a cross - liability clause;
(d) contractual liability with respect to, this License; and (e) a thirty (30) day written
notice of the cancellation of the policy shall be given to the City.
Final November ,�ff
-4-
15. The Company shall indemnify and save harmless the City from all loss, damage,
o5 injury of every nature, kind or description whatsoever and in respect of property
owned by others and in respect of damage sustained by others, whether caused by the
presence of the Work or the use, operation, maintenance, repair, replacement, renewal
and removal of the Work by the Company or by the negligence of the Company, its
employees, workmen or agents and from all damages, claims, demands, actions, suits or
other proceedings by whomsoever made, brought or prosecuted in any manner based
upon or arising out of or connected with this Licence, unless such loss, damage, injury or
such claims, demands, actions, suits or other proceedings are due to the negligence of the
City or its employees, agents, or contractors.
16. The Company's obligation to provide any indemnity under this License is
contingent upon (i) prompt written notice by the City to the Company of any claim,
demand or proceeding of any type against the City or the occurrence of any situation,
which may become the subject matter of a claim for indemnity; (ii) the City permitting
the Company to join or otherwise assist the City in the investigation and defence of such
claim, action or situation; (iii) the delivery to the Company by the City of a copy of every
demand, notice, summons or other process or significant document received by it relating
to such matter; (iv) the City not voluntarily making any payment, assuming any
obligation or incurring any expense with respect to such claim, demand, proceeding or
situation without the prior written consent of the Company; and (v) the City assigning to
the Company its rights to recovery against any person, and the City shall execute all
papers required and shall do everything necessary to secure and enforce such rights.
17. It is agreed between the City and the Company that neither the City nor the
Company shall be held responsible for damages caused by delay or failure to perform an
undertaking under the terms of this Licence where the delay or failure is due to fires,
strikes, floods, acts of God, lawful acts of public authorities other than the City, or delays
or defaults caused by common carriers, which cannot be reasonably foreseen or provided
against.
is. This License shall commence on the date of execution and shall continue for a
period of twenty (20) years. Thereafter, this License shall automatically renew for
subsequent periods of twenty (20) years each, unless the Company provides the City with
written notice of termination sixty (60) days prior to the end of the then current period;
should the public street through which the work is located be stopped -up and closed and
the resulting parcel of land be sold by the City, this Licence shall automatically terminate
including the obligations of the Licensee expressly stated in paragraphs 2 and 11,
19. All notices to be given under this Licence must be given under this Licence must
be given in writing as follows:
To the Company:
Atlantic Wallboard Limited Partnership
300 Union Street
Saint John, New Brunswick 82L 4M3
Attention: Vice President
Final November 4/11 p
-5-
Copy to: 300 Union Street, P.O. Box 5888
Saint John, New Brunswick EM 4L4
Attention: Secretary
And to the City:
The City of Saint John
15 Market Square, P. 0. Box 1971
Saint John, Naw Brunswick EM 4L1
Attention: The Common Clerk
Copy to: The City of Saint John
P. O. Box 1971
Saint John, New Brunswick E2L 4L1
Attention: Chief City Engineer
Notice shall be sufficiently given if delivered by courier or if mailed by prepaid
registered mail to the above address or to such other place as may be specified from time
to time in writing by either the City or the Company. Any notice or other document, if
delivered by courier, shall be deemed to have been given or made on the date delivered,
or the date that a confirmation of receipt was recorded by the centre, and if mailed, on the
third business day following the date on which it was mailed. In the event of an actual or
imminent disruption of postal service in Canada, the notice shall be delivered by courier,
20. No change or modification of this Licence shall be valid unless it be in writing
and signed by the City and the Company.
21, This Licence shall be governed by and construed in accordance with the laws of
the Province of New Brunswick.
22. This Licence is not intended to create any right in the nature of an easement or
right -of -way and will be constructed only as a licence and does not prevent the City from
imposing, charging, claiming, or levying any rate, tax, lien, assessment, or levy of any
description whatsoever against the Company, its successors and assigns, by reason of the
construction or presence of the Work previously granted hereunder.
23. This Agreement shall enure to the benefit of and be binding upon the City and
the Company, their respective successors and assigns.
Final November 4%11 p
-6-
IN WITNESS WHEREOF the parties hereto have caused these presents to be
executed by their duly authorized representatives the day and year first herein written.
SIGNED, SEALED & DELIVERED
}
}
)
}
}
}
}
)
THE CITY OF SAINT JOHN
G. Ivan Court, Mayor
Elizabeth A. Gormley, Common Clerk
Common Council Resolution:
November P 2911
ATLANTIC WALLBOARD LUMTED,
in its capacity as the General Partner
of and on behalf of Atlantic
Wallboard Limited
Per:
And:
Final November 417.1
City Hall
' 7 15 Market Square
December 19, 2011
P.O. Box 1971
Saint John
New Brunswick
Canada E2L 4L1
Your Worship, Deputy Mayor and Councillors:
<<=
City of Saint John
Subject: Committee of the Whole — Recommended Appointments to Committees
The Committee of the Whole, having met on December 19, 2011, adopted the following
resolution:
"RESOLVED that as recommended by the Nominating Committee, having met on December 7,
2011, the Committee of the Whole recommends the following appointments to committees:
Rockwood Park Advisory Board: to re- appoint Margaret Urquhart and Henry Briggs each for
a 1 year term from December 19, 2011 to December 19, 2012; to appoint Councillor Snook until
the end of his current term on Council.
Saint John Substandard Properties Appeal Committee: to re- appoint Stephen Horgan for a
three year term from December 21, 2011 to December 21, 2014.
Saint John Free Public Library: to appoint Andrew Beckett for a three year term from
December 31, 2011 to December 31, 2014.
Saint John Industrial Parks: to re- appoint William Leahy for a one year term from December
22, 2011 to December 22, 2012; to re- appoint Claude MacKinnon for a three year term from
December 22, 2011 to December 22, 2014; to re- appoint Andy Lodge for a three year term from
December 31, 2011 to December 31, 2014; to re- appoint Kathy Craig and Andy Simpson each
for a two year term from December 31, 2011 to December 31, 2013.
Jeux Canada Games Foundation: to re- appoint William Thompson for a three year term from
December 19, 2011 to December 19, 2014 and to appoint Andrew Gaunce for a three year term
from December 19, 2011 to December 19, 2014.
Aquatic Centre Commission: to appoint Brian Woods for a three year term from December
19, 2011 to December 19, 2014.
City of Saint John Non - Profit Housing Committee: to re- appoint Carl White for a three year
term from December 19, 2011 to December 19, 2014.
City of Saint John Environment Committee: to appoint Derek Mitchell for a three year term
from December 19, 2011 to December 19, 2014.
Carleton Community Centre Advisory Board: to appoint Mary Ann O'Hara, Barry Roberts,
Chuck Edison, David O'Toole, Lary Gautreau, Mark Nicholson and Cheryl Graham each for a
two year term from December 19, 2011 to December 19, 2013.
Destination Marketing Organization: to re- appoint Terry Hutchison for a two year term from
December 19, 2011 to December 19, 2013; to re- appoint Carolyn Vanderveen for a one year
term from December 19, 2011 to December 19, 2012; to appoint David Drinnan for a two year
term from December 19, 2011 to December 19, 2013."
Respectfully Submitted,
Jonathan Taylor
Assistant Common Clerk
2
City Hall P.O. Box 1971
15 Market Square Saint John
t New Brunswick
Canada E2L 4Li
December 19, 2011
Your Worship, Deputy Mayor and Councillors:
City of Saint John
Subject: City Owned Lands Located at 150 -160 Thorne Avenue bearing PID #55174105
The Committee of the Whole, having met on December 19, 2011, adopted the following
resolution:
RESOLVED that the Committee of the Whole, having met on December 19, 2011 recommends
the following:
1. That the City of Saint John terminate the tenancy of 641472 N.B. Ltd. for the premises
located at 150 -160 Thome Ave. and bearing PID## 55174106; and
2. That the Mayor and Common Clerk be authorized to execute the necessary documents to
effect the said termination.
Respectfully Submitted,
Jonathan Taylor
Assistant Common Clerk
City Hall P.O. Box 1971
15 Market Square Saint John
New Brunswick
Canada E2L 4Li
December 19, 2011
Your Worship, Deputy Mayor and Councillors:
City of Saint John
Subject: Committee of the Whole — Appointment of Arbitration Board in the Matter of
Collective Bargaining between the City of Saint John and the Saint John Fire Fighters'
Association, I.A.F.F., Local 771
The Committee of the Whole, having met on December 19, 2011, adopted the following
resolution:
"RESOLVED that the Committee of the Whole, having met on December 19, 2011,
recommends that Mr. Pierre J. Bertrand be named as the City's nominee on the Arbitration
Board in the matter ofthe collective bargaining dispute between the City of Saint John and the
Saint John Fire Fighters' Association, Local 771, LA.F.F."
Respectfully Submitted,
A --;�<
Jonathan Taylor
Assistant Common Clerk