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2005-12-05_Agenda Packet--Dossier de l'ordre du jourF_ITVCJ_9�19 I �' , p �.Nzl %Mims 1. 5:00 P.m, — Call to Order 2. Staffing 10.2(4)0) 3. Teach-In — Water Rate Structure 4. Disclosure of Confidential Information 10.2(4)(c) 1.1 7:00 p.m. - Call to Order— Prayer REGULAR ffEETING 1.2 Approval of Minutes (November 21 & 23, 2005) 1,3 Approval of Agenda 1.4 Proclamation 1.5 Members Comments 1.6 Suggested Live Telecast of Council Meetings (Councillor Ferguson) PRESENTATIONS 2.1 Saint John Waterfront Development Partnership PUBLIC HEARINGS 4.0 Proposed Section 39 Amendment - 53-75 Leinster Street (tabled Nov. 21, 2005) Motion Required 4.1 7:00,p.m. Proposed New City of Saint John Zoning By-law in Bilingual Form Including Some Minor Amendments and Report from Planning Advisory Committee Recommending the Proposed By-law be Adopted 4.2 7:00 p.m. Proposed New Subdivision By-law in Bilingual Form Including Some Minor Amendments and Report from Planning Advisory Committee Recommending the Proposed By-law be Adopted 4.3 7.00 p.m. Proposed Street Closing By-law Amendment - Millidge Avenue COUNCIL MEMBERS 5.1 Nominating Committee — Interview Process (Councillor Farren) 5.2 Proposed NB Power Rate Increase to Homeowners (Councillor Farren) 5.3 Blasting at Bald Hill (Councillor Court) 5.4 Fundy Region Solid Waste Commission 2006 Budget (Councillor Tait) 5.5 By-law Enforcement Update - Property Standards (Councillor McGuire) CITY MANAGER 6.1 Section 39 Conditions and Enforcement 6.2 Saint John Water - Special Agreement Negotiations 6.3 Saint John Water - Rate Structure for ICI Customers 6.4 Tender for Sand and Gravel I, ME StANCE DU COMITt KtNIER 1. 17 h — Ouverture de la reunion 2. Personnel - 10.2(4)j) 3. S6ance de formation relative 6 la grille tarifaire de la taxe d'eau 4. Divulgation de renseignements confidentiels 10.2(4)c) REUNION ORDINAIRE 1.1 19 h - Ouverture de la reunion, suivie de la pri6re 1.2 Approbation du proc6s-verbal (21 et 23 novembre 2005) 1,3 Adoption de l'ordre du jour 1.4 Proclamation 1.5 Commentaires pr6sent6s par les membres 1.6 Proposition relative 6 la diffusion en direct des seances du conseil (conseiller Ferguson) PRESENT►TIONS 2.1 Partenariat d'am6nagement du secteur riverain de Saint John AUDIENCES PUBLIQUES 4.0 Modification propos6e en vertu de Varticle 39 relativement au 53-75, rue Leinster (pr6sent6 le 21 novembre 2005) proposition exig6e 4.1 19 h Nouvelle version bilingue du projet d`arr6-t6 sur le zonage de The City of Saint John, quelques modifications mineures et rapport pr6sent6 par le. Comit6 consultatif d'urbanisme recommandant I'adoption du projet d'arrdtI6 4.2 19 h Nouvelle version bilingue du projet d'an-C-tI6 concernant le lotissement, quelques modifications mineures et rapport pr6sent6 par le Comit6 consultatif d'urbanisme recommandant I'adoption du projet d'arr&6 4.3 19h Modification de 1'arr6t6 concernant [a fermeture de routes relativement 6 I'avenue Millidge MEMBRES DU CONSEIL 5.1 Comit6 des candidatures relativement au processus d'interview (conseiller Farren) 5.2 Augmentation propos6e des tarifs r6sidentiels par tnergie NB (conseiller Farren) 5.3 Travaux de minage 6 Bald Hill (conseiller Court) 5.4 Commission de gestion des mati6res usdes solider de la region de Fundy (conseiller Tait) 5.5 Mise 6 jour relative 6 1'ex6cution des arr6t6s municipaux visant les normes minimales r6gissant les residences (conseiller McGuire) I ; , ; , JI I A� 6.1 Conditions impos6es par I'article 39 et execution P.O. Box/C.P. 1971 Saint John, NB/N.-B. Canada EA 4H www.saintjohn.ca WHEREAS: The Saint John Police Force and the committee for safe driving week, in the City of Saint John, county of Saint John, Province of New Brunswick is concerned about the safety and health of its citizens; and WHEREAS: motor vehicle crashes are the leading cause of workplace - relates fatalities; and WHEREAS: the committee for safe driving week is dedicated to reducing traffic related deaths and injuries in the city of Saint John and to inform citizens about the human and economic costs of traffic crashes and to promote safe driving practices; and WHEREAS: this year's campaign focuses on the positive actions that each driver can take to ensure their safety and the safety of others sharing the road and that they are fully prepared when they get behind the wheel; and 4 NOW THEREFORE: 1, Mayor Norm McFarlane, cembe of the City of Saint John do hereby proclaim the week of D cember 2-8, 2005 as National Safe Driving Week and call upon all citizens to join in this lifesaving observance and encourage their friends and employees to do their part this week and every week thereafter. In witness whereof I have set my hand and affixed the official seal of the Mayor of the City of Saint John. Explore our past / Explorez noire pass6 Discover your future / Ncouvre2 votre avenir Grand Bay-Westfield • QUisparnsi5 , Rothesay . St. Martins - Saint John November 16105 Your Worship Mayor Nonn McFarlane and members of Common Council, Subject: Rogers Television coverage of Common Council meetings. Channel ten television coverage of Common Council meetings has been a familiar service in Saint John for many years. The service has been excellent and the staff of Rogers Cable Television should be commended for their dedication and long hours of service. Many citizens tune in and watch the civic proceedings each week to stay informed of municipal matters. Over the past several months I have had many calls suggesting the Common Council meetings be aired "five". The present scheduled format on channel 10 airs at 9:30pm. This delayed air time schedule often means citizens must stay up into the early morning hours to view the Common Council meeting. I understand that television scheduling is complex and the regular programming is important. However, as a result of so many requests and comments I suggest we discuss this opportunity with Rogers Television. Be it resolved: That this matter of Common Council televised meetings be referred to the Common Clerk or City Manager and they negotiate, if possible, a live air broadcasting schedule for Common Council meetings and to report back in 4 weeks. 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E21- 1 E5 Dear Sir: Re: 53-75 Leinster St, Pursuant to the provisions of the Community Planning Act, the Section 39 amending resolution regarding the above property was recorded in the Registry Office on December 21, 2005 and became effective on that date. Yours truly, -J. atrick Woods Common Clerk/Greffier communal J PW/j af Monsieur, Objet : 53-75, rue Leinster Conform6ment aux dispositions de Fatcle 39 de la Loi sur Furbanisme, la resolution de modification visant la propribb§ ci-dessus a 6t6 enregistr6e au bureau d'enregistrement le 21 d6cembre 2005 et elle est entree en vigueur la m6me date. Veuillez agr6er, Monsieur, 1'expression de nos sentiments distingu6s. cc / c.c.: Jim Baird, Commissioner / Commissaire Planning and Development / Urbanisme et d6veloppement William Edwards, Commissioner/ Commissaire Buildings and Inspection Services / Services d'inspection et des b6timents Billing Address / Adresse de facturation : City of Saint John - Solicitor's Office 15 Market Square P. O. Box 1971 AM Catherine E. Daigle Saint John NB E2L 4L1 Invoice Number / Numero de facture: Invoice Date (mm /dd'yy)!Date de facturation (mm/jj,aa) Due Date / Date limite de paiement Account/ Compte Page: Remit To/ Remettre a Service NB /Services N -B PO Box 1998, CP 1998 82 rue Westmorland Street Suite 200, bureau 200 Fredericton NB E3B 5G4 Customer Address 1 Adresse du client 15 Market Square P. O. Box 1971 Att: Catherine E, Daigle Saint John NE E2L 4L I 90158 12.121/05 Due Upon Receipt, Payable sur reception 7925 1 Item Description Remark QTY Price Amount Article Remarque Qte Prix Montant SN0231 Land Titles Assurance Fee Droits d assurance - titres fanciers 20190011811 [LEGAL 2 5.00 10.00 SN0028 Land Titles Docurnent / Titres foncier document 201900118111215047671 LEGAL 2 60.00 120.00 Total Amount Invoiced 1 Total de la facture Tax Amount / Montant de la tare Balance Due f Solde du 130.00 130.00 kser,v PID: 0.0009431 Status: Active Land Related Land Description: Area: 1843 Date Last Updated: 2005-12-21 14:43:24 Land Titles Status: Land' Titles Date of Last CRO: 2005-12-21 14:44:17 Land Gazette No Information: Description of Tenure: County: Saint John Active Date/Time: Management Unit: NB1106 Area Unit: Square Metres Harmonization Harmonized Status: Land Titles 2005-03-29 15:03:21 Date/Time: Manner of Tenure: Not Applicable Public Comments: CARTE 06N98SW Romig 5, i 1 1:1 so= WMW Name Qualifier Interest Type Saint John Non Profit Housing Owner Incorporated PAN PAN Type Taxing Authority Code Taxing Authority .04.C14.1.44.8 550 City of/Cit6 de Saint John Civic Number Street Name Street Type Street Direction Place Name 53 Leinster Street Saint John 110"j; 55059992 Lot Information Lot 88-2 Non-Registered Instruments No Records returned Documents Number Registration Book Page Code Description Date 21504767 2005-12-21 7300 Agreement Re: Use of Land 20098R29, 2005-04-11 1100 Deed/Transfer 20034816 .... .. .. .. .. ....... 2005-03-29 3800 Land Titles First Notice 20034808 2005-03-29 3720 Land Titles First Order Land Titles 20034113 2005-03-29 3900 First Application 380539 1992-01-01 1595 651 114 Agreement 295062 1981-04-02 935 748 101 Deed 298291 1981-01-01 953 503 102 Lease —1 110"j; 55059992 Lot Information Lot 88-2 Non-Registered Instruments No Records returned a ;r � E {r�F,.�lf, * "'1E: �' + :�t' i�:;:? "I S� p�c'JI "�'. 7 RID: 55059992 County: Saint John Status: Active Active Date/Time: 1988-11-15 00:00:00 Land Related Land Management Unit: NB1106 Description: Area: 927 Area Unit: Square Metres Date Last Updated: 2005-04-01 16:08:06 Harmonization Harmonized Status: Land Titles Status: Land Titles Land Titles 2005-03-31 16:03:08 Date/Time: Date of Last CRO: 2005-04-01 16:08:35 Manner of Tenure: Not Applicable Land Gazette No Information: Description of enure: Public Comments: CARTE 06N98SW Name Qualifier Interest Type Saint John Non Profit Housing Owner Incorporated 'PAN PAN Type Taxing Authority Code Taxing Authority 014.04.1.4.164 550 City of/Cit6 de Saint John Parcel Locations Civic Number Street Name Street Type Street Direction Place Name 74 Leinster Street Saint John Non-Registered Instruments No Records returned Documents Number Registration Book Page Code Description Date 20060431 2005-04-01 1100 Deed/Transfer 20052107 2005-03-31 3800 Land Titles Fi rst Notice 2.06.52.09.19 2005-03-31 3720 Land Titles First Order Land Titles 20051901 2005-03-31 3900 First Application 355416 1989-07-12 1358 371 101 Deed 295062 1981-04-02 935 748 101 Deed Non-Registered Instruments No Records returned Map Actions + Center (k Zoom In Zoom Out Zoom Box Point Select Box Select Center Selection Clear Selection ri n rn e Query �4onie Help Problen Report This map is a graphical representation of property boundaries which approximates the size, configurati survey and is not intended to be used for legal descriptions or to calculate exact dimensions or area, Lat.: 45-16-27.49N Long.: 66-03-18.08W Scale. 1320 X: 2534918,558 1 Property fOUnd opfiorm PID 5505999.2 PAN 4041464 Owner Saint John Non Profit Housing Incorporated Zoom 2 Factor PID: 00009431 Status: Active Land Related Land Description: 2005-03-29 15:03:21 Area: 1843 Date Last Updated: 2005-04-12 08:19:51 Land Titles Status: Land Titles Date of Last CRC): 2005-04-12 08:20:47 Land Gazette No Information: Description of Tenure: Public Comments: MAP/ CARTE 06N98SW County: Saint John Active Date/Time: Management Unit: NB1106 Area Unit: Square Metres Harmonization Harmonized Status: Land Titles 2005-03-29 15:03:21 Date/Time-, Manner of Tenure: Not Applicable Name Qualifier Interest Type Saint John Non Profit Housing Owner Incorporated PAN PAN Type Taxing Authority Code Taxing Authority .0.40.4.14.418, 550 City of/Cit6 de Saint John � W Civic Number Street Name Street Type Street Direction Place Name 53 Leinster Street Saint John County Plarish County Parish Saint John City of/Ville de Saint John Non-Registered Instruments No Records returned k i, Documents Number Registration Book Page Code Description Date 20098829 2005-04-11 1100 Deed/Transfer 20034816 2005-03-29 3800 Land Titles First Notice 2003418,08 2005-03-29 3720 Land Titles First Order Land Titles 20034113 2005-03-29 3900 First Application 380539 1992-01-01 1595 651 114 Agreement 295062 1981-04-02 935 748 101 Deed 298291 1981-01-01 953 503 102 Lease Non-Registered Instruments No Records returned k i, Map Actions + Center Zoom In Zoom Out Zoom Box fir Point Select Box Select Center Selection Y Clear Selection Map Layers Hon,je Quevy Hoinne Help Probleni Re pot t This map is a graphical representation of property boundaries which approximates the size, configurati survey and is not intended to be used for legal descriptions or to calculate exact dimensions or area. Lat•: 45-16-27.45N Long— 66-03-18.6W Scale- 1366 X- 2534907.368 1 Property Jnd Options PID 00009431 PAN 4041448 Owner Saint John Non Profit Housing Incorporated Zoom 2 Factor a T1711 -7.1 W )IST/ J- TO: Common Council FROM: John Nugent, City Solicitor DATE: November 22, 2005 RE: Public Hearing — 53-75 Leinster Street As a result of Council's decision last evening to table the application for amendment to the Section 39 resolution dealing with property at 53-75 Leinster Street, it is possible that you will be contacted by proponents of or opponents to the application. The opportunity of those persons to make submission to you concluded with the conclusion of the Public Hearing last evening. You should not entertain representations from them subsequent to the hearing, and to do so could give rise to a challenge to the eventual decision of Council. It is my view that you are entitled to receive the PAC Report dealing with this item which was mistakenly omitted from the material provided for last evening's meeting. Subsequent to the hearing, the Common Clerk has received correspondence from interested citizens regarding the proposed amendments. These letters are being kept on file in the Clerk's office. Existing Resolution / isolution actuelle Date of Resolution to be Amended / Date de la resolution A modifier M arci-) Location / Emplacement 5 50 sq 9 9 Civic No. / No de voirie Street / Rue PID / NIP Applicant's Interest in Property / Int6f8l de dernandeurs, dan la propridtd 0 vQ n(,-.r What is your Proposal? / En quoi consiste votre, proposition? Note.- Provide a fully dimensional drawing or plan which illustrates your proposal. (Describe proposal in detail) Nota: Fournier un plan ou un dessin enurement cote illustrant votre proposition. (D&rire la proposition en Mail) A fee of $300.00 is enclosed in the form Ci-joint des frais de 300 $ sous forme de Signature. of Applicant / Signature du dernandeur, .hC#uc or Money Order made payable to the City of Saint JoluL ue ou de mandat-poste libelld A l'ordre de The City of Saint John. -48, Ako,usl 2.00�; — Signature of the owner must be included. / Lasignature due propri6taire doit We incluse. Signature of Owner (if applicable) / signature du propri6taire (s'il y a lieu) Date ICE: 53 -75 LEINSTJER STREET Public Notice is hereby given that the Common Council of The City of Saint John intends to consider a proposal at its regular meeting to be held on Monday, November 21, 2005 at 7 :00 p.m., by: Amending the Section 39 conditions imposed on the March 28, 1988 rezoning of the subject property located at 53 -75 Leinster Street, also identified as PID Numbers 9431 and 55059992, as illustrated below, to permit a revised proposal. REASON FDIC CHANGE: To permit a four - storey apartment building with an underground parking garage. The proposed amendment may be inspected by any interested person at the office of the Common Clerk, or in the office of Planning and Development, City Hall, 15 Market Square, Saint John, N.B. between the hours of 830 a.m. and 4:30 p.m., Monday through Friday, inclusive, holidays excepted. Written objections to the amendment maybe sent to the undersigned at City Hall. OBJET: 53 -75, RUE LEINSTER Par les presentes, un avis public est donne par lequel le consel communal de The City of Saint John indique son intention d'examiner une proposition lors de la reunion ordinaire qui se tiendra le lundi 21 novembre 2005 a 19 h en apportant les modifications suivantes : Modification des conditions de Particle 39 imposees relativement au rezonage du 28 mars 1988 du terrain en question situe au 53 -75, rue Leinster, et portant les N11D 9431 et 55059992, comme le montre la carte ci- dessous, pour permettre la preparation d'une proposition revisee. (TNSERER LA CARTE) RAISON DE LA MODIFICATION: Pennettre un edifice a logements de quatre etages avant un stationnement sous - terrain. Toute personne interestee peut examiner le projet de modification au bureau du greffier communal ou au bureau de l'urbanisme et du developpement a I'hntel de ville au 15, Market Square, Saint John, N. -B., entre 8 h 30 et 16 h 30 du lundi au vendredi, sauf les jours feries. Veuillez faire part de vos objections au projet de modification par ecrit a I'attention du soussigne a I'h®tel de ville. c lite City of Saint John INTERNAL INSERTION ORMU Newspaper Insertion Dates (Check as applicable) (SJTJ= Saint John Telegraph Journal) - SJTJ City Information Ad - SJTJ Independent Placement " SJTJ Classifieds Date(s): Tuesday, October 25, 2005 Tuesday, November 15, 2005 Date(s): Date(s): Information for Ad (Boldface anything you want Bold in Ad, Centre, Tab, etc.) Section Headline: General Notice E] Tender F-1 Proposal Public Notice om on oil OR 00 em�, T;�4� ua -4r I332115 N3HiNVVYNV3 c7mw 27 o yac Hsi M 1 8 41k NRW �16 g T;�4� ua -4r I u P4 f w F-1 0 L) I332115 N3HiNVVYNV3 c7mw 27 o yac Hsi M 1 8 I u P4 f w F-1 0 L) IV X11 ----------------------------- Ed Yllli mn ------------- ------------------- tim Li ----------------------------------------------------------- IL- 11 1 'V K Wf11wos - - -- - -_ _-.,.......� .... ....... .. ....j ; _ I d U I = i4 n — (� _i e I I � x u ry I —.o ---t 1 _ I i — — — - -_— x w I �x z r , f t I x i - x S s r i n 5 I a�" DEES= a= -------------------------------- ce i =€ ©d 3 J N ...e....... .................. ............. ......... .....a WfllilYldS [✓� ri- � - P� 0 -V -T G� Planning Advisory Committee November 3, 2005 Your Worship and Councillors: P.O. Box 1971 506 658-2800 Saint John New Brunswick Canada E2L 41.1 SUBJECT: Proposed Section 39 Amendment Leinster Court 53-75 Leinster Street City of Saint John On August 15, 2005 Common Council referred the above matter to the Planning Advisory Committee for a report and recommendation. After some delays the Committee finally considered the attached reports at its November 1, 2,005 meeting. The applicant, Mr. Narinder Singh of Saint John Non-Profit Housing Inc., appeared before the Committee in support of the project and staff recommendation. There were also a number of presentations made by area residents, especially those from neighbouring properties along King Street East. A number of concerns were raised. The most significant concern seemed to be the height of the proposed apartment complex, and the negative impact it would have on direct sunlight exposure to their buildings. Residents also submitted letters regarding these concerns. It should also be noted that there was one presentation in support of the project, and another resident who also spoke in favour of the application at the original PAC meeting of September 7, 2005, The Committee undertook a lengthy discussion of the project with the applicant, a member of the Saint John Non-Profit Housing Inc. board (Clifford Lawrence), and their consultant (Blair Roma). After considering all the presentations and the staff reports, the Committee resolved to adopt the staff recommendation, including the granting of the requested height variance necessary for the underground parking entrance area. 1 .1 VIM That Common Council amend the Section 39 conditions imposed on the March 28, 1988 rezoning of the subject property located at 53-75 Leinster Street, also identified as PID Numbers 00009431 & 55059992, in order to also include a development involving a multiple dwelling with an underground commercial parking garage on the following conditions: Planning Advisory Committee November 3, 2005 Page 2 (a) That the site must be developed in accordance with a detailed site plan approved by the Development Officer, and being in accordance with other conditions, illustrating all necessary landscaping and amenity space. (b) The exterior fagade of the proposed building must be in accordance with architectural plans approved by the Development Officer to ensure compatibility with the surrounding buildings along the adjacent portion of Leinster Street. respectfully submitted, '4 -�'hilip Hovey Chairman MRO/m Attachments Project No, 05-254 Planning and Development P.O. Box/C.F. 1971 Urbanisme et d6veloppcment Saint John, NB/N.-B. Canada E2L 4L1 ww v.saintjohn.ca DATE: OCTOBER 28, 2005 TO PLANNING ADVISORYYCOMMITTEE FROM: PLANNING AND DEVELOPMENT FOR- MEETING OF NOVEMBER 1, 2005 Planning Officer SUBJECT: Proposed Section 39 Amendment & Variance Application Leinster Court - 53-75 Leinster Street On September 7, 2005 the Planning Advisory Committee considered an application by Saint John Non-Profit Housing Inc. concerning the construction of a new apartment building at the above-mentioned address. "..V At the request of the proponent, the matter was tabled in order to provide an opportunity for the applicant to discuss the project with interested neighbours, and submit a revised plan that hopefully addressed their concerns. It was anticipated that the Planning Advisory Committee would have considered the revised proposal at its October 18, 2005 meeting. However, staff became aware that the letters that were being sent to the neighbourhood had been delayed due to an internal mailing problem. As a result, the new Public Hearing had to be further rescheduled until November 21, 2005. Revised Proposal The proponent has revised the original development plans as a result of consultation with the neighbourhood (see attached revisedplans). The revised site plan illustrates the proposed building closer to Leinster Street, providing a varying setback between 7.5 metres (25 feet) to 15 metres (48 feet) from the property line. The building itself has been changed to provide amenity space adjacent to Leinster Street and now behind the.-building. According to the consultant, the Leinster Court Page 2 October 28, 2005 ground floor area of the building (revised) is approximately 1400 square metres (15,070 square feet), resulting in a lot occupy of about 51 %, The "B -2" zone permits an occupancy of 60 %, and the "RM -IF" provisions may allow for an even higher occupancy depending on the density of the surrounding area. The underground parking garage has also being reduced and relocated accordingly, avoiding the area of fencing and retaining walls. The rear of the building facing the properties along King Street East has also been changed to include more windows, as well as the former long rear facade has been replaced with central court area. The pitch of the roof has been lowered in order to achieve a building height of 14 metres (46 feet) along most of the building's perimeter. It should be noted that the height is determined by the vertical distance from the average grade to the highest point of a building. The revised site plan can satisfy the requirements of the "B -2" General Business zone, except for the allowable building height that is limited to a maximum of either 3 stories or 14 metres (46 feet). While the majority of the building has a height of 14 metres (46 feet) as mentioned, a small portion of the structure along Carmarthen Street must be exposed in order to provide the entrance into the underground parking garage. Therefore, the total building height for this specific area is approximately 17 metres (56.5 feet). It should be noted that the original submission involved the construction of a 17.7 -metre (58 -foot) high building (exclusive of the mentioned entrance into the underground parking garage which was even higher). Neighbourhood Compatibility As discussed in the original report, the surrounding area where the subject site is situated in designated Medium Density Residential, which was the same designation as the subject property prior to it being redesignated to District Centre Commercial in 1987 in order to permit a parking lot for the anticipated justice facility project. Although the parking facility could be supported, it was hoped that an alternative location would be considered and the subject property be developed residentially. The issue discussed in the original staff report-was, &n of neighbourhood compatibility. Specifically, has the project been "designed in a manner which is compatible with the character, scale, density, and quality of the existing residential development." According to the proponent, and their architectural consultant, the project has been carefully designed in such a manner, and the revisions in the design are an attempt to address the concerns raised by the neighbourhood. The submitted revised site and building plans illustrate a building with brick fagades and attractive landscaping /amenity spaces along with underground parking. It is the opinion of City staff that the proposed project would be compatible to the general area. Notwithstanding, one of the main concerns that has been raised by residents is the height of the proposed building. The proponent has attempted to address this issue by reducing the height of from 17.7 metres (58 feet) to 14 metres (46 feet) as permitted by the "B -2" General. Business Leinster Court October 28, 2005 Em t` 3 °:c 6"- zone. Technically speaking, however, the proposed building height must also include the measurement where the underground garage entrance is located as being 17 metres (56.5 feet), though the rest of the building is 14 metres (46 feet) as mentioned. The original recommendation would have restricted the construction of any new building to a maximum height of 120% of the average height of the existing main buildings in the area (see original report for specific wording). This is the standard used for the surrounding "Elul -IF" Multiple Residential Infill zone, and is also used when considering new development in the City's Heritage Preservation Areas. This condition was originally recommended and could still be imposed by Common Council. It should be noted, however, that such a calculation would involve the tall church buildings along Leinster Street, and would not take into consideration the elevation difference between the building site and lower adjacent properties along King Street East, In any event, the applicant has not provided any information regarding this calculation, but instead is endeavouring to comply with the existing "B-2" standard of 14 metres (46 feet). They can meet the numerical standard with the exception of the parking garage entrance area. The consultant has, however, provided a photographic, rendition of the proposed building from the Carmarthen streetscape (see attachments), The'd'r'awing illustrates the propose building being approximately one floor higher than the immediately adjacent building. In comparing this relationship with other buildings in the area, it is not uncommon for buildings to differ in height by such an amount, while still not adversely affecting neighbourhood compatibility. And while not also uncommon for other properties in the Peninsula area, the height and length of the proposed apartment building will interfere at certain times of the day/year with direct sunlight onto those proper-ties behind the proposed building along King Street East, The revised plan has increased the separation distance between these buildings and the proposed apartment complex, which will enhance the air space and provision for indirect sunlight. The requested Section 39 Amendment can still be recommended. Given the changes illustrated on the revised plans, the previously recommended conditions relating to board-on-board fencing C� and retaining walls are no longer necessary. The condition that the building be at least 7.5 metres (25 feet) back from the properties along King Street East has been satisfied and in fact is now between 7.5 metres (25 feet) and 15 metres (48 feet), which is greater than many of the rear yard setbacks in the neighbourhood. Given the reduction of the building height and the,�n(creased in the yard area from adjoining residential properties, staff can support the height-variance necessary at the parking garage entrance area. As mentioned, the remainder of the building would satisfy the "B-2" zone height standard, and is considered compatible to the area. It is believed that some residents are still opposed to the height and size of the building as illustrated on the revised plans. The proponent has indicated that the building cannot be lowered any further and still be economically viable. Leinster Court Page 4 October 28, 2005 That Common Council amend the Section 39 conditions imposed on the March 28, 1988 rezoning of the subject property located at 53-75 Leinster Street, also identified as PID Numbers 00009431 & 55059992, in order to also include a development involving a multiple dwelling with an underground commercial parking garage on the following conditions: (a) That the site must be developed in accordance with a detailed site plan approved by the Development Officer, and being in accordance with other conditions, illustrating all necessary landscaping and amenity space. (b) The exterior fagade of the proposed building must be in accordance with architectural plans approved by the Development Officer to ensure compatibility with the surrounding buildings along the adjacent portion of Leinster Street. 2, That the Planning Advisory Committee grant a variance from the requirements of the Zoning By-law for the proposed apartment development at 53-75 Leinster Street that would increase the permitted building height from 14 metres (46 feet) to approximately 17 metres (56.5 feet) at the entrance area of the underground parking garage, provided the remainder of the building satisfy the zone standard. MRO/m Project No, 05-254 LAO I I �1 1, H f " ,g� r tej MAN w 1 1 Ix,_ d£ XxIyYih 4^fSkV'4'vkN 4� :ply+b'f.�p.. tkl I rr �-rL s3g fir# t S ',-*i`_ •� w N i�' � �t � 'i g �� 3 LFk. i � 4 � 4 1 � 't� LAO TO: PLANNING ADVISORY COMMITTEE FOR: MEETING OF SEPTEMBER 7,2005 Mark O'Hearn Planning Officer Name of Applicant: Saint John Non-Profit Housing Inc. Name of Owner- Saint John Non-Profit Housing Inc. Location: 5375 Leinster Street PID: 00009431 & 55059992 Municipal Plan: District Centre Commercial Zoning: "B-2" General Business Proposal: To construct a four-storey apartment building with an underground parking garage. Type of Application: Section 39 Amendment to permit a revised proposal, and Variances that would: (a) Increase the permitted building height from 3 storeys to 4 storeys; (b) Reduce the minimum side yard requirement of 3 metres to approximately 2.7 metres; and Leinster Court Page 2 53-75 Leinster Street September 2, 2005 (c) Reduce the minimum parking aisle width of 7.5 metres to approximately 7.3 metres. JURISDICTION OF COMMITTEE: Common Council has requested the views of the Planning Advisory Committee concerning the proposed amendment to the Section 39 conditions. Common Council will consider the Committee's recommendation at a Public Hearing on Monday, September 12, 2005, The Community Planning Act authorizes the Committee to grant reasonable variances from the requirements of the Zoning By-law. Conditions can be imposed by the Committee. That Common Council amend the Section 39 conditions imposed on the March 28, 1988 rezoning of the subject property located at 53-75 Leinster Street, also identified as PID Numbers 00009431 & 55059992, in order to also include a development involving a multiple dwelling with an underground commercial parking garage on the following conditions: (a) That the site must be developed inaccordance with a detailed site plan approved by the Development Officer, and being in accordance with other conditions, illustrating all necessary landscaping and amenity space. (b) The exterior facade of the proposed building must be in accordance with architectural plans approved by the Development Officer to ensure compatibility with the surrounding buildings along the adjacent portion of Leinster Street. (c) The maximum height of the proposed building must not exceed 120% of the average height of the existing main buildings of the adjacent properties surrounding the subject site, including the existing buildings located on the proper-ties directly across from the building block on the other side of Leinster Street. (d) A minimum yard of 7.5 metres must be provided between the proposed building and the lot boundary of the abutting, properties along King Street East. Leinster Court Page 3 53-75 Leinster Street September 2, 2005 (e) A new 2-metre high board-on-board fence must be constructed along the entire nor-them property boundary abutting the residential properties along King Street East. (f) Any existing retaining walls situated on or near the subject property must not be adversely affected by the proposed development, and any necessary repairs or reconstruction (should such walls be situated on the subject property and relocation be necessary) must be undertaken to the satisfaction of the Chief City Engineer. 2. That the Planning Advisory Committee grant the following variances from the requirements of the Zoning By-law for the proposed development at 53-75 Leinster Street that would: ... (a) Increase the permitted building height from 3 storeys to 4 storeys, provided that the maximum height of the proposed building does not exceed 120% of the average height of the existing main buildings of the adjacent properties surrounding the subject site, including the existing buildings located on the properties directly across from the building block on the other side of Leinster Street; (b) Reduce the minimum side yard requirement of 3 metres to approximately 2.7 metres for the closest point along the eastern side of the proposed building adjacent to the funeral home property at 91 Leinster Street, and as illustrated on the submitted site plan; and (c) Reduce the minimum parking aisle width of 7.5 metres to approximately 7.3 metres for the proposed underground parking garage. On October 20, 1987 the Planning Advisory Committee considered an application by the fisher Steen Partnership for the Province of New Brunswick seeking to develop a surface parking lot for a proposed justice facility development in the area. This parking lot was to be developed for approximately 87 vehicles. The surface parking lot proposal required a Municipal Development Plan Amendment and rezoning. Specifically, the proponent sought to redesignate the subject property from Medium Density Residential to District Centre Commercial, and concurrently rezone the same from "RM-1 " Three Storey Multiple Residential to "B-2" General Business. Leinster Court Page 4 53 -75 Leinster Street September 2, 2005 The Committee resolved to recommend in favour of the proposal with the following Section 39 conditions, which would: W Limit the use of the site to a surface parking lot related to the justice facility; and Require the submitting of detailed plans for the landscaping and a fence to be approved by the Director of Planning. The Committee also granted the necessary approval to allow for the nature of the parking arrangement (i.e., off - premise parking), and a variance to reduce the required landscaping along the north property line, on the condition that landscaping along Leinster Street be increased and a board - onboard fence be constructed along the northern property boundary. On October 26, 1987 Common Council gave first and second reading to the requested amendments. However, on November 2, 1987 Council tabled third reading to consider the preservation of a historic water reservoir that occupied a portion of the site. Third reading was eventually given by Council on March 28, 1988 with the following additional 'Section 39 condition: ® Permit the water reservoir to be retained. on the site as a heritage structure. The justice facility proposal did not proceed as anticipated, and the water reservoir was eventually demolished by the City. however, a paved parking lot for 65 vehicles was established and has been operated by the Saint John Parking Commission since that time. Municipal Operations and Engineering has no objection to this proposed residential development. Building and Technical Services has indicated that any building code issues related to the proposal will be dealt with when detailed plans are submitted for approval. Saint John Transit has been advised of this matter. Saint Jahn Energy has advised that overhead facilities are available along Leinster Street to service the proposed apartment building. Any extension of service would be at the Developer's expense. Aliant Telecom has no concerns with regards to this residential proposal. Leinster Court Page 5 53-75 Leinster Street September 2, 2005 Rogers has been advised of this application. Maritimes & Northeast Pipeline has no concerns with regards to this development. Fire Department has no objection to the application, provided the design and construction is in accordance with the National Building and Fire Codes as well as the Fire Prevention Act. Saint John Parking Commission has been advised of this proposal. School Board has been advised of this residential project. or-makwj- Subject Site and-Neighbourhood The subject site is situated at the intersection of Leinster Street and Carmarthen Street to the southeast of the Loyalist Burial Grounds (see attached location map). The site has an area of 2770 square metres (29,817 square feet), with a 73-metre (240-foot) frontage along Leinster Street and a 38-metre (t25-foot) frontage along Carmarthen Street. Most of the site has been developed as a paved surface parking lot for 65 vehicles. The eastern portion of the site is also used for parking but has not been properly developed. The parking lot is operated by the Saint John Parking Commission. While a parking lot was approved by the City in 11987 (see Background section of this report), the existing Section 39 conditions imposed limits a parking lot specifically to a justice facility project that did not occur. This condition should have been amended to permit a commercial parking lot. In addition, the eastern portion of the lot has not be developed to acceptable standards (i.e., gravel with no landscaping). Should the proposed residential project not proceed, it will be necessary for these matters to be addressed. The immediate neighbourhood is comprised by a number of different building types. Directly across the street is the large Central United Baptist Church at 42 Leinster Street, and across from the other adjacent street is a fire station at 47 Carmarthen Street. A funeral home (Hillsley Funeral Home) is immediately to the east at 91 Leinster Street. There are three smaller buildings to the east of the Central United Baptist Church. Two of these properties are residential, but a business is operated from 70 Leinster Street. There is also another former church building at the other end of the adjoining Leinster Street block at 95 Leinster Street. The properties to the north, east and south are mostly multiple residential buildings. Many of these properties contain well maintained historic buildings. Of particular note is the nearby streetscape along King Street East to the north of the subject property, The Loyalist Burial Leinster Court 53-75 Leinster Street Page 6 September 2, 2005 Ground is to the northwest, and St. Malachy's Memorial High School is to the west at 20 Leinster Street. Development Proposal and Reguested Variances The applicant, Saint John Non-Profit Housing Inc., is seeking permission to construct a 4-storey apartment building (see attachments). The building would contain a total of 51 apartment units with underground parking for up to 89 vehicles (only 46 spaces are required by the Zoning By-law). The brick exterior design contains solariums with large windows. The site plan illustrates landscaped grounds surrounding the building, with a central garden area and water fountain. Please also refer to the submitted Architect's Brief attached to this report. The proposal can satisfy all the applicable Zoning By-law requirements, except for the following: (a) A maximum building height of 3 storeys is imposed, but the proposal would increase this standard an additional storey; (b) A minimum side yard requirement of 3 metres (9.8 feet) is required, but the closest point along the eastern side of the proposed building (adjacent to the funeral home property with an adjoining parking lot) is approximately 2.7 metres (9 feet). The remainder of the building is about 4.9 metres (16 feet) away; and (c) A minimum parking aisle width of 7.5 metres (25 feet) is required, but the underground parking aisle is about 7.3 metres (24 feet). With regards to the side yard and parking aisle width variances, these are numerically minor in nature and can be supported for approval, The building height variance can also be supported, but only if the height of the proposed apartment building is no greater than 120% of the average height of the surrounding buildings in the neighbourhood. This matter is discussedfurther in this report. Municipal Plan and Proposed Section 39 Amendment As mentioned in the Background section of this report, the subject site was redesignated from Medium Density Residential to District Centre Commercial, and concurrently rezoned from "RM-1 " Three Storey Multiple Residential to "B-2" General Business in March 1988. There were also Section 39 conditions imposed by the City, including restricting the use of the site to a surface parking lot related to the justice facility. Saint John Non-Profit Housing Inc. purchased of the property, and commissioned the architectural plans, based upon the existing "B-2" zoning that permits a multiple dwelling and a Leinster Court Page 7 53-75 Leinster Street September 2, 2005 commercial parking facility, which the proponent intends to operate with the surplus of parking spaces in the underground garage. Notwithstanding, the landowner is also aware that an amendment to the existing Section 39 conditions is necessary in order to proceed with this project. Neighbourhood CompatibifiLy and Recommended Conditions The surrounding area is designated by the Municipal Development Plan as Medium Density Residential. While the Plan indicates "it is desirable to have a relatively high intensity residential concentration situated as close as passible to the uptown, such afocus should recognize and preserve the unique heritage character of the older central part of the city composed as it is of well-built, structurally sound, well-maintained buildings. In keeping with that consideration, redevelopment far residential uses in the Central Peninsula will be limited in extent and confined to those locations where it can be designed in a manner which is compatible with the character, scale, densitv, and quality of the existing residential development." While the subject property has been redesignated to District Centre Commercial, and this portion of Leinster Street contains non-residential land ii6es;.,the compatibility of the proposed project should be considered in the context of the surroLib ing neighbourhood. Indeed, when the City considered the redesignation of the subject site from Medium Density Residential back in 1987, it was recognized that should alternative parking facilities be found for the justice facility project, then the subject property ought to be "aggressively pursued" for residential development. Therefore, it is prudent that any new development for the subject property be carefully considered in the context of the surrounding neighbourhood. To this end, the proposal for a high-quality multiple residential building is supported by the Municipal Plan in general. The manner of the proposed landscaping, amenity space and parking facility is also acceptable. The re-commendation requires that detailed plans be submitted for the approval of the Development Officer. This will ensure that the appearance of the building and property is compatible to the area. With regards to further compatibility, however, there remains concern with the proposed building height and proximity to the adjoining buildings along King Street East. Most of the residential buildings in the surrounding area are 2 storeys in height. There are some buildings that are 2% and a few even 3 storeys, Then there are also other much higher buildings such as the mentioned church proper-ties along Leinster Street. A: The proposed building would be 4 storeys abovegr6und with an approximate height of 17.7 metres (58 feet). The B-2 " General Business zoning normally restricts the height of buildings to 3 storeys or 14 metres (46 feet), In order to be more compatible, it has been recommended that the height of the proposed building be restricted to a maximum of 120% of the average Leinster Court 53-75 Leinster Street Page 8 September 2, 2005 building height in the area. This standard has been adopted in the "RM-IF" Multiple Residential Infill zone applicable to residential properties in the Central Peninsula. It is also the standard used in the Heritage Preservation Areas. It is also recommended that a minimum yard of 7.5 metres (25 feet) be required between the proposed building and the rear lot boundary of the adjoining properties along King Street East, Again, this would be the normal residential standard, and can be accommodated by moving the building towards Leinster Street. Related to this,-St.&a'of the site, it is further recommended that a new board-on-board fencing be constructed to replace the existing fencing, and constructed along the common property boundary for the entire length of the site. Retaining walls in the area will need to be protected from development, or reconstructed if encroaching onto the subject property (and needed to be relocated). This matter is also included in the recommendation. While these recommended conditions will address these mentioned concerns, it may also be desirable for Common Council to not proceed with the requested Section 39 amendment until the Planning Advisory Committee can make a further recommendation based upon a revised proposal incorporating these changes, which would also include detailed information with respect to actual building heights in the area. A meeting with area residents and the proponent would also be prudent in light of the concerns raised surrounding property owners. The proponent is proposing an attractive multiple residential building with ample parking facilities. Such a residential project would be generally consistent with the surrounding neighbourhood, and can be supported provided the project is undertaken in an appropriate manner as discussed in this report. Of particulai'd6n'cern is the building height and proximity of the new apartment building to the adjoining properties along King Street East. Approval of the proposed project can only be supported with the recommended conditions, MRO/m Project No. 05-254 O PID(s)/NIP(s): Subject Site. ME= site en question: 1 00009431 Scale/echelle: 1:3000 No F � K09 MV, ti an r') u CPO O LU D O 04 04 g _jz! ti an r') u CPO O m 133a15 N3HAVMaVO ry o k" r s ¢, 911 �a� a r —` d ti — Y f!71T 7 i a a i e 3 ( a v _ i I i �'� v f i 1 e e ' 1 4 m a i � 9 � 1 _ m -- .. - - --------- . —___ .— _____. -.�. a a ' � e 1-------------------------- _ 1 _ e n , r a e e.� i i N I , e e e , r z � G Ik-T'1! i � � z 0 W z i k" • i o. oa. r r v Mu" -T- w n I C i a a �I P� 1 , Ir i � b 3 � , , 1 , a v 1 , , ¢ i v u , r _ r - e Ll ,e ry ,r 4 I J� , U O 111�� iii • Z �% - ,,..cam �C,L.Jcc2 c�r'L /J ��r� -�e �� GG�-G 0, I write this Letter in relation to the requested amendment of the Section 39 conditions pertaining to the above identified property. The land owner, Saint John Non-Profit Housing Inc., has proposed to build a housing development on this property. Asa component of this development, the [and owner has requested the removal mfthe condition that this land be used only for a surface parking (0t related to the justice facility that was proposed for King Street East at one time. That restriction was placed on the land in 1988 when Common Council of the day, in allowing a rezoning of the land, accepted both staff and the Planning Advisory Committee's recommendation that such rezoning be conditional upon this restriction. it is my position, and request, that the purpose of this restriction be considered when deciding the current request toamend the Section 39conditions. History In the 1980's there was discussion in the city about building our much needed justice complex. At the time, the site most commonly recognized as the location of the future justice complex was the plot 8fLand on King Street East, behind the Sydney Street 'Courthouse. |nan effort to ensure adequate parking facilities existed in the event the justice complex was built, the Province of New Brunswick, as part of a Larger land swap with the City of Saint John' took title to the land which is now the focus of this discussion. The Land R66'y, Three Storey /Mu/tip/eResidential, osis the nnajo,ityofthe �� di the order build the desired par�in�lot i�ndsurrnun surrounding es it | e. no ' the Province applied to have the Municipal Development Plan revised and to have the [and rezoned as B-2 General Business. In reviewing the request, and making the recommendations to the Planning Advisory Committee (the "PAC"), Development officer Jim Baird, recognizing the residential nature of the neighborhood, noted "if parking options are identified in the future which would result in this bu7d being available for residential uses they should be aggressively pursued" Mr. Baird then made the recommendation that the rezoning of the land to B'2onk/be g[anted in conjunction vvith a5ecLion 39 resolution that "limited the use of the site toa surface parking Lot related to the justice building;". The Planning Advisory Committee and Common Council accepted staff's recommendation and the rezoning was granted subject to the Section 3g resolution conditions. Present Request Not a tot has changed to the neighborhoods of Leinster Street and King Street East in the past 18 years. The justice complex was not built however the land referenced in this letter is, at present time, still being used as a parking lot. |, as a resident of King Street East, and a holder ofadditional properties in the surrounding neighborhood, support the land owner's plans tobuild additional housing units inthe uptown core. | recognize the need for such units and the value they bring to the city. Mv opposition to this specific plan is Limited only to the size and scope 0f their current proposal. The building they have proposed, which isa 4b feet tall (at a minimum, depending uo the grade of the Land where you measure), 275 feet tong, 4stmrey. 51 unit building is simply too big for this neighborhood. The majority of surrounding Lots, including those tots on King Street East which this building will shadow, are 2 to 3sto[ey, residential buildings, fitting with the RM'1 zone of the area. This proposed building should fit within this neighborhood. By way ofthe Section 39 resolution placing conditions on the property, City Staff, PA[ and Council were in agreement in 1988 that the, B'2. lone applied 10 this land was not meant to convey that this Land was tobe used for a\[�6ipbses eligible under aD'2zone. Specific reference is mode to the impact of the rezoning on the surrounding property, Leading to the restrictions that were placed on the site. |conLend that similar reference, and focus, on those surrounding properties need to be placed at this time, if such Section 39 conditions are to be amended. | wholly support Mr. Daird's original assessment, in [ate 1987' that the land be used for residential purposes. As such, | vvuubd ask that staff, PAC and Council ensure that any proposed use of the Land respect the surrounding residential neighborhood and protect the character that exists inthis truly unique area. |f staff and PAC should recommend that the requested amendments be made, I ask that those recommendations be made contingent upon a rezoning of the [and to it's original RM'1 zone, tn ensure what ia built iscompatible with the surrounding neighborhood. In UeU0fsuch recommendation, and at a minimum, | ask that staff and PAC recommend, as they did in their previous recommendations, that any building 0m this site be Limited in height to 3 Stories ora maximum of 120% of the average height of the surrounding buildings, including those on King Street East which back against the proposed development site. | am not in opposition 1O this development, and \ have appreciated the information which the property owner has shared with the residents of the neighborhood. | don't believe my requests are unreasonable, nor are they outside of the raa\rn of what the City makes regular efforts to do, and that is protecting- Ufi CikyStneetscapes. In addition, as this lettervviil be delivered to all bodies, | ask that Council consider my requests, and make their determination, as their predecessors did in 1988, that the character ofthis neighborhood should be protected, in tight uf new development, to ensure that such development fit within the makeup of the neighborhood. i will be in attendance at the PAC and Council meetings, and can answer questions that you may have, or I can be reached at any time in the interim. Yours sincerely, Shane Goguen b58-7b32 cc: PAC members Common Council ''� �Nl o. 6 ` 6'a I i�f n A `— ZAt /4 L re CP 14 ea— Al F3. nt , 4 g ell T -�a L. ✓- �s°�°r 8 .'..�'' °4�, . _...,d..i• �.a%� 4�`'� i."'� �' l City of Saint John 15 Market Square P.O. Box 1971 Saint John, N.B. E2L 4L1 Attention: Mayor and Council Re: Leinster Court Project November 30, 2005 My family and I have been residents of the South End for the past 13 years, My children attend St. John the Baptist -King Edward School and I work in the uptown area, I have been involved for many years in coaching rugby at St. Malachy's and also became involved this year with the South End Little League coaching three pitch for the young kids, I have watched the proposal with regard to the Leinster Court project with great interest. As a resident of the South End, I would like to add my support to this project. I would emphasize that this is a badly needed development in this area. It will provide assistance to many who currently live in substandard housing and equally as important, it will add to the city's tax base. I do not agree with those who say it is too big or would not fit with the area. It will feature a brick exterior- and will respect the current built heritage of the other major surrounding structures, i.e. fire station, church and school. It is not located within a designated heritage area and therefore does not have to conform to heritage by -laws. It, however, will certainly be more aesthetically pleasing than the vinyl sided building which is located on the corner of King Street East and Cannarthen Street, directly behind this proposed project. It has also been suggested that it would be better built on the parking lot behind the fire station, a suggestion similar to that made when St. Malachy's wanted to expand. One thing however not mentioned about this suggestion is the of this particular parking lot is not owned by the Proviric - would necessitate attempting to purchase from private inte )wned, something which may or may not be possible, hror similar property on both sites would not be such a bad idea. )using and we definitely need the increase to the tax base. The suggestions it will affect property values and will > rood, etc. are short sighted, when considering this develops wing when St. Malachy's tried to expand. I walk by the new addition to St. Malachy's, which extends along a portion of Princess Street, everyday on my way to and from work in the morning, evening and at noon hour and it is not St. Malachy's that detracts from the streetscape and hinders property value. I would urge you to support this development and send a message to the community that Saint John cares about the conditions some of our citizens live -in and also send a message to other developers that this is a good place to do business and come build here. As a final note, you can build a building life this in my immediate area or even in back of my property anytime} because I feel the pros far outweigh the cons of this type of project. Respectfully submitted, w.a w% Greg Horgan Mecklenburg Street a A 4ul a 4 ,.,� ,mf � w4 �h,�(f�rme. �"�?rr�YS�TM��a�7k�� €-.� ��#� ��t�!• �� Mayor and Council, City of Saint John. Nov 30, 2005 We are writing in support of the application of Saint John Non Profit Housing Inc. for heir proposed Leinster Street development. Business Community Anti Poverty Initiative ( CAPI) and Vibrant Communities Saint John are committed to significantly reducing the higher than acceptable level of poverty in our community. The Housing Working Groups mandate is to work with all stakeholders to assure safe affordable housing for all residents. Such .housing is a fundamental building block in achieving the goal of greatly reduced poverty. Mixed income housing is a vital component of creating a strong healthy community where all citizens have the opportunity to share in its prosperity. Saint John Non Profit Housing proposal is an excellent example of a project that can significantly help by providing 26 new units of affordable housing for non elderly singles and in the process build on the successful mixed income housing example of Harbourside.. In addition it will act as a catalyst for uptown development by taking an underutilized piece of real estate and turning it from a parking lot into a community of people who will add life and vitality to the City core, elements that are crucial to the growth strategy that you are championing, Council has demonstrated an understanding of the need for hundreds of new affordable housing units for our community by your support of the Federal Provincial program. We ask you to vote unanimously in favour of the project as a clear sign that this is a community that embraces positive change. `ours trrI'y, t Gregor Hope-, Chair, IAA sing Working Group, BCAPI and Vibrant Communities Cc Telegraph. Journal Business Community anti- Poverty Initiative 300 Union Street, RO, Box 5777, Saint ,John, New Brunswick E2L 4N7 MNN HOtMal-[ Aew message Page I of I Seailrf�: Go L., L :'—J Send I -, Save Draft I Attach f J Tools Cancel I-0: melansol@nb.sympatico.ca -4, Favorite Cop CC: Azengyuefem, Azroal Bcc confidencetra continentaldr. Subject: TO LEINSTER COURT PROPOSAL 0ystal Dana Denver -&�160 king Street East Apt, 11`1f!P Rflif", dh305 Fff ffi g A- A, X -19 5 r4 ff V Pt, M r. Arthur Melanson7k fL* *0 R TNJ iJ ik duajiao, wam, easylifeclub k% rN A &XL*J t 4AKing Street East �P Uptown tA),J,*5fJ Emily Ii P., Rif, firstccf -RT-riA. OT )1'41 �W- tj -A x hok k,",-UptownVir-S., f-9 A* Peipej Zeng Huang, Richa 160 King St. East Shaw All Saint John (506)696-1130 Copy Message to Sent Folder T-PV q htEp://byl06fd.bayID6.hotmail.msn.com/cgi-birl/cOmPose?&curmbox=0000000... 2005-12-4 Page I of 1 The Melansons From: "Z PeiPei" <peipeizeng@hotmail.com> To: <norm.mcfarlane @saintjohn.ca >; <michelle.hooton @siantjohn.ca >; <john.fergusonsaintjohn.ca >; <peter.mcguire @saintjohn.ca >; <glen.taitsaintjohn.ca >; <step hen. chase @saintjohn.ca >; <ivan.court @saintjohn.ca >; <bill.farren @saintjohn.ca >; <jay.chang @saintjohn.ca >. <carl.whote @saintjohn.ca >; <metansol @n b.sympatico.ca> Sent: Friday, December 02, 2005 4:33 PM Subject: TO LEINSTER COURT PROPOSAL A6 °A: 10H� 160 kin& Street East: Apt.1 Xu'6Di52dAVI «d0 i£ <Mi£ -Mr. Arthur MelansonA'i0' /,0 °IIOEI0' 60- d' /abEAif I)3 ®µAAaAATe „° AµAI, µ «EQax6'6A0 °IzAEiCiAiix +»VAAi4i£ ® A=Y µA' / "QiI /«»aEAIC3µA�«�}¢IeE« if IOE("061al2>>TKing Street East °i Uptown ZA'0'6N, %2 %Zi °'yA °µA£ ¶�r+fl£ It3»1'6EaU0aA0AEU3Aei£ iflIyEv£ -AaAC0 "4t6t3I`�iIOiAi ' iOV2C)Xoia'6A ¥p k[tor�,i£- To(of,,k( i 2 2 » »aO° YiTIV4EI °TEEi£l)5 }6'< <60'!2o'o,oUptown-± »aleµ« i6I£iuAaA(AG0A- A.iQ »,oµoAIA' %2 " ()aX6'6A ¥I£ Peipei .Zeng 160 King St, East Saint Jahn (506)696 =1130 r, ou U" �j k' 0 12/3/2005 Q e� Common Clerk's office Bureau du greffier communal w ww, sain ijohn, ca December 23, 2005 Mr. Narinder Singh General Manager Saint John Non Profit Housing Inc. Rotary Admiral Beatty Complex 14 King Square South Saint John, NB E21- 1E5 Dear Sir: P.O. Box1C.P. 1971 Saint John, NB,'N.-B. Canada E2L 41✓ I At a meeting of the Common Council, held on December 5, 2005, the following resolution was adopted, namely:- " RESOLVED that Common Council amend the Section 39 conditions imposed on the March 28, 1988 re-zoning of the subject property located at 53-75 Leinster Street, also identified as PID Numbers 00009431 and 55059992, in order to also include a development involving a multiple dwelling with an underground commercial parking garage on the following conditions: (a) That the site must be developed in accordance with a detailed site plan approved by the Development Officer, and being in accordance with other conditions, illustrating all necessary landscaping and amenity space. (b) The exterior fagade of the proposed building must be constructed of brick and must be in accordance with architectural plans approved by the Development Officer to ensure compatibility with the surrounding buildings along the adjacent portion of Leinster Street." Should the property be used contrary to the provisions of the above resolution, Council may adopt a motion whereby the property would revert to the original zoning. Yours Elizabeth G,Orml;7 Assistant Common Clerk EG:slc f' cv� I SAINT JOHN ?November 28, 2005 Your Worship and Councillors, Re: Nominating Committee R.a. Box /C.R 1971 Saint John, NB /N. -B. Canada E2L 4L1 www.saintjohn.ca As you are aware, members of Council have agreed to take turns sitting on the Nominating Committee which selects citizens to sit on the mane boards and commissions throughout our City. As determined at the May 18, 2005 regular meeting of Council, each Council member will be serving his /her term on the committee for a twelve month period as follows: May 9/05 — May 9/06 — Mayor and Councillors Tait, Titus and Farren May 10/06 — May 10/07 — Mayor and Councillors Chase, Ferguson and Chang Mav 11/07 — Until new Council takes effect — Mayor, Deputy Mayor 1-looton and Councillors White, Court and McGuire At the same time we agreed to the above list for the Nominating Committee, Council members also discussed the need to identify and interview persons who are interested and willing to sit on one or more of these boards and commissions, The importance of many of these boards and commissions to the further development and well being of our City was noted. It was also pointed out that these potential committee members are representatives of the taxpayers of our City and need to report back to them periodically. It is with the above noted intention that I am forwarding this letter to formalize Council's discussion on this matter, therefore; I move that the interview process with guidelines for selecting potential members of boards and commissions, as submitted and attached by the Deputy City Manager, be the standard used for interview=s by the Nominating Committee. Respectfully, �-' A/ � Bill Farren Councillor Explore our past / Explorez notre passe Discover your future / Ncouvrez votre avenir Grand Bay - Westfield • Quisparnsis • Rothesay e St. Martins • Saint John I Nominating Process Request for appointments submitted to Council and referred tt, Nominating Committee * Common Clerk inquires re any special needs etc for ABC List of pending appointments/terms prepared by Common Cle List ■ applicants for each ABC prepared by Common Clerk i * Common Clerk sets time/date for Nominating Committee —1111111111111 iriiji�1111 !III 11�� IIII 111� IIIIII Common Clerk sets interviews with nominating committee (as reqd) Committee Members question echap i w ased on role/need of ABC (Member(s) of nominating excluded if apparent conflict) Committe*m* mber score each applicant separately at interview as decision guide o Committee selects preferred candidate by (vote/consensus', Summary outcome reported to Committee of the Whole frorr, Nominating Committee vallability for meetings Is candidate available for scheduled meetings? Interest in Activities Why is candidate interested in this committee? Professional/Skills Does candidate have requisite, professional or other skills required by the committee? Knowledge of Purpose of the Committee Does candidate demonstrate an understanding of the role and of the Committee's purpose and the City's interest in the affairs of the committee? Potential Contribution What value added can the candidate bring to the committee? Communicating Skills Can candidate articulate ideas, opinions, points of view effectively? Team Player Does candidate demonstrate an ability/willingness to work with others? Sac kground/Experience Is background and experience relevant to committee's objectives/purposes? Overall Suitability General impression of candidate suitability to participate effectively and contribute to overall functioning of the committee? General Comments c November 30, 2005 Mayor Norm McFarlane & Members of Common Council Re: Lower residential power rates for homeowners Your Worship and fellow Councillors, As many are aware, NB Power is proposing the biggest power rate increase, I believe, that they have ever done in the past, NB Power is asking the Public Utilities Board to grant them a power rate increase anywhere from 8 to 10 percent for heavy industry and 14 to 16 percent for homeowners, NB Power is asking for this increase because they are projecting a $126 million shortfall in their operations through the rising oil prices that is being seen and felt around the world, I understand the dilemma that NB Power is in, but for them to ask for homeowners to pay 1.4 to 16 percent more for the power they use to heat and light their homes, while asking large industries to only pay 8 to 10 percent increase, just does not seem to be fair. Everyone is feeling the pinch with higher oil prices, power rates, insurance, drug costs and the list goes on, The rising oil cost is not only being felt in New Brunswick, it is being felt throughout all of North America. But in New Brunswick's case, not everyone is being asked to carry an equal share of the cost. New Brunswick's public intervenor, Mr. Peter Hyslop, has made a presentation to the Public Utilities Board on behalf of homeowners in New Brunswick, stating that heavy industry should pick up the lions share of this increase. Mr. Hyslop went on to say that in his opinion, resident's rates should be as much as 5 percent lower then what is being proposed by NB Power. Thank heavens for our own utility, Saint John Energy, who have in the past helped soften the blow of these power rate increases on our residents. I am not sure what Saint John Energy will be able to do to soften these proposed rate increases, but I am sure they are working very hard on this pending increase and maybe the two Councillors that sit on that Board can give us some insight. But non the less, we as a City should be very concerned about this increase in power rates and can lend our voice to a better distribution of the rate increase. Therefore, I will make the following resolution; Whereas; NB Power is citing rising fuel costs for a projected shortfall of $126 million, and rising fuel cost are being felt around the world and therefore higher energy cost are not unique to our Province and should not be used as a reason for the unbalance of the rate increase, and Whereas; with NB Power proposing the biggest power rate increase in decades, and Whereas; Saint John Energy is our utility that plays an important role in buffering these rate increase whenever they possibly can for the residents and business owners in Saint John, and Whereas; New Brunswick's public intervenor has suggested that the increase to homeowners should be 5 percent lower than which is being proposed, which is in the best interest of the residents of Saint John as well as the residents of New Brunswick, Therefore be it resolved; that the City of Saint John write a letter to the Public Utilities Board in support of Mr. Peter Hyslop in his efforts to reduce the size of the proposed NB Powers rate increase to homeowners, and to send a copy of the letter to the Premier and Cabinet of New Brunswick. Therefore be it further resolved; that the City of Saint John formally support the efforts of Saint John Energy in providing the lowest possible energy cost to the residents and businesses of the City of Saint John, Respectfully, Bill Varren Councillor The City of Saint John 4)" SAINT OHN December 1, 2005 Mayor McFarlane and Councillors Your Worship and Councillors: At a recent meeting with residents concerned about blasting at Bald Hill a number of concerns were presented that require our attention and action. R0. Box/C.P. 1971 Saint John, NB/N,-B, Canada E2L 41-1 www.saintjohn.ca Many of these concerns are common to all areas of the City where blasting takes place in or near residential properties. These concerns include monitoring, enforcement and liability. Dust, noise, timing of blasting, conditions placed on the permit to operate, responsibility of the company blasting, rights of the citizens, the need for a pre-blast inspection of all properties, responsibility of both the Province and City, damage to property, and who should pay, were common themes expressed by all citizens. The need to make amendments to the Pits and Quarrys By-law, I believe, must be addressed to meet the needs of both the operators and residents. This is a quality of life issue that is not going to go away. We must take action as soon as possible, Therefore, I move the following motion, that Council direct staff to prepare a written report for our next meeting to address these concerns and to suggest steps that can be taken to improve these operations. Respectfully submitted, Ivan Court COUNCILLOR 51- Explore our past lorez notre passe Discover your future /Die'cPouvrez votre avenir Grand Bay-Westfield Quispamsis - Rothesay • St, Martins - Saint John SAINT OHN December 1, 2005 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Fellow Councillors, P.O. Box/C.P. 1971 Saint John, NB/N.-B. Canada E2L4L1 www.saintjohn.ca Re: Fundy Region Solid Waste Commission — Budget 2006 Later on this evening's agenda is a request from the Fundy Region Solid Waste Commission to make a presentation to Common Council about their 2006 budget. The Commission will be asked to vote on this budget this Thursday, December 81h The cost of solid waste disposal is a substantial element in our annual budget. 1 move that Council receive a brief presentation on the proposed budget at the meeting of December 5 Respectfully submitted, LAI� Glen Tait Councillor Explore our past i Explores notre passe Discover your future DOcouvrez votre avenir Grand Bay-Westfield - Quisparnsis • Rothesay • St, Martins - Saint John December 1, 2005 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Fellow Councillors, Re. Bylaw Enforcement Update — Property Standards P.O. PF 71- SAINT JOHN Box /C.E. 1971 Saint John, NB /N_B. Canada E2L 4L1 www.saintjohn.ca I would like to advise Council that a planning session was held with senior staff this past week to discuss the upcoming session with the Province of New Brunswick to review opportunities for legislative improvements. In addition we have received additional research material prepared by 1CCUR on best practices in several other municipalities across the country. The meeting with Provincial officials is now scheduled for December 7th in Fredericton. I will keep Council apprised of the progress on this initiative. Explore our past Explorez notre pass6 [discover your Future Decouvrez votre avenir Grand Bay - Westfield Quisparnsis . €iothesay . St. Martins • Saint John His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Section 39 Conditions and Enforcement On October 24, 2005 Council expressed concerns with Section 39 enforcement procedures. Staff were requested to research all Section 39 conditions and to provide a report including a list of property owners who have not complied with Section 39 conditions. Staff from the Legal Department, Common Clerk's Department, Planning and Development, and Building Inspection have collaborated and provide the following. Although Council requested that all Section 39 conditions on all properties be investigated, this proved to be a daunting task. In the alternative, staff have investigated all Section 39 conditions dating back to January 1, 2000. In this five year period there have been a total of 77 Section 39 conditions. The properties and the conditions attached to those properties are appended to this report in chronological order. In the left margin of the appendices is the status of the conditions. Essentially, there are four categories: 1. In compliance 2. Not in compliance 3. Development did not occur 4. Partially in compliance and not enforceable. The City Solicitor has prepared a separate report from a legal prospective. The purpose of this report is to report on the nature of these Section 39 conditions; why they are created; their role in the development process, and enforcement issues. Report to Common Council Page 2 December 1, 2005 The Context of Section 39 Conditions Saint John is a diverse City. There are older historic areas, mature suburban areas, newer large lot suburban developments and rural areas. Within these areas there are a wide range of uses which are grouped into different zones. The result is a Zoning By-law with 58 different zones. While this appears to be a large number, most of our zones still permit a large number of uses. The most frequent use of Section 39 conditions is to limit the use permitted in the zone of a specific property. The issue of use is rarely an enforcement issue. Having said this, when a use is restricted by a Section 39 condition, it is often interpreted to include ancillary or related uses once established. For example, restricting the use of a property to an auto body shop is fairly clear in intent. However, from time to time that body shop may carry out mechanical repairs or vehicle washing or even offer vehicles for sale. In these instances it becomes a matter of discretion as to whether or not the property owner is in compliance. Using Section 39 conditions results in numerous hearings when property owners wish to change the restrictive conditions. Some of these hearings are straight forward (Vince Caton Golden Grove Road), others are the subject of significant public debate (Leinster Street). The number of Section 39 conditions limiting use could be reduced by developing even more zone categories. However this would have the affect of requiring property owners to apply for a rezoning and the resulting public hearing, as opposed to a Section 39 amendment public hearing. The second most important use of Section 39 conditions is to set out site improvements. Site improvement conditions is an area where enforcement is often a challenge. Of the 77 Section 39 agreements appended to this report, virtually all that are in non-compliance relate to site improvement and site development issues. Note: There are numerous site development deficiencies on properties within the City existing today; however, most of these are not Section 39 related issues. As noted in the Solicitor's report, Section 39 conditions are only applicable when a site is rezoned with a specific proposal. Why use Section 39 for site improvements? There are two approaches to this question. The first is rooted in the nature of the zoning itself. Zone standards are those baseline standards applicable to all developments no matter what the development context of the area. Section 39 conditions are the extras expected given the nature of the specific development and the context of the site. Fencing and specific landscaping and driveway Deport to Common Council December 1, 2005 Page 3 locations are examples where Section 39 conditions can impose a particular standard specific to the property in question.. However, a case could be made to increase the base standards. Examples such as requiring poured in place concrete curbing, pavement with on site catch basins and underground electrical service entrances for all developments as a zone standard could be considered. The complexity of Section 39 conditions would be reduced but enforcement issues would not be reduced; in fact they may be increased. In addition there would be an increase in requests for variances, at least in the short term as the development community adjusted to the higher standard. The second reason Section 39 conditions are used so frequently for site issues is the out of date Provincial Community Planning Act. Many provinces now permit what is generally referred to as "site plan agreements" in some form. These agreements are initiated by a new development, not a rezoning. All development of a certain type is treated equally, with each agreement tailored to the specific site. This is clearly a more onerous process for the development community, but would promote an increase in the "pre- zoning" of lands, especially commercial lands, as specific site improvements could still be required when specific development occurred. Detailed Conditions vs. Flexibility: Section 39 conditions are by their nature written at the rezoning stage of a development. The developer has not yet received his approval, and in fact approval may be denied. There is a reluctance to develop detailed building plans or landscaping plans. In most cases a site plan is provided which does provide some detail, but they are preliminary. Setting out the proposed use is straight forward. With respect to site issues, it has become standard practice to describe the elements required in the final development. Such as "poured in place concrete curbs," "landscaping extending to the curb" "underground utilities" or "board on board fence adjacent to..." the details of exactly where these curbs are placed, or how the landscaping materials used are to be illustrated on more detailed landscaping or drainage plans approved by the Development Officer or Chief City Engineer. Every attempt is made to specifically set out those items in the resolution to facilitate enforcement. In the alternative, detailed plans could be returned to Council for its approval; however, this issue has not impeded enforcement efforts to date. The Challenges and Opportunities The City Solicitor has set out in his report the mechanism available to the municipality where Section 39 conditions have not been met. These mechanisms are only available when the conditions themselves are legal, unambiguous and within the purview of the municipality. Very often Section 39 conditions are Report to Common Council Page 4 December 1, 2005 agreed to by the developer as a sign of good faith to the municipality. While this is all well and good, lack of clarity translates to lack of enforcement. The following are some examples of conditions which are problematic from an enforcement perspective. 1382 Hickey Road — "The use of this site for the operation of a car wash is subject to the following additional conditions: .... (1) the use of the site for the operation of a car wash is subject to the following additional conditions: (1) the proponent shall only use cleaning agents which are biodegradable and approved by the N.B. Department of Environment and Local Government, and no petroleum solvents shall be used or permitted on the site, (2) no washing of engines or other articles which are, or are likely to be, contaminated with oil or grease shall take place at the site, (3) the proponent shall install and maintain a wastewater treatment system within each wash bay, consisting of: (i) an asphalt or concrete surface graded to a catch basin located within this surface, followed by, (ii) a sand and grit interceptor, followed by, (iii) an oil /water separator, (iv) and which discharges to the municipal sanitary sewer system; (4) all wash water shall be disposed of through the wastewater treatment system., (5) the proponent shall periodically clean accumulated sand and grit from the wastewater treatment system; and (6) the maximum allowable wastewater discharge concentration is BOD 25 mg/l, suspended solids 25 mg/l, surfactants 5 mg/l, oil and grease 15 mg/l. Standards are specific but City is not staffed to monitor. Specific expertise required and standards may be beyond City capacity. 371 Manchester Avenue - (a) development shall be in accordance with the tentatively approved Nest Side Estates Subdivision proposal consisting of approximately 71 serviced residential lots. Vague wording, although voluntary compliance will be achieved through the subdivision approval process. 540 Westmorland Road - (h) the developer must construct a landscaped buffer with a minimum width of 5 metres (16.5 feet) consisting of a landscaped berm and privacy fence, similar to that shown in the submitted plans, between the proposed parking lot and the 10-metre (33 -foot) drainage casement mentioned in condition." This work has been voluntarily completed, but the vague wording would be problematic in a court. 356 Eldersley Avenue — "with a rural residential subdivision be subject to the condition that each lot in the development must satisfy the requirements of the Report to Conimon Council Page 5 December 1, 2005 N.B,. Department of Environment with respect to water quality, which may include the drilling, testing and treatment of individual wells to meet relevant guidelines prior to the Development Officer's approval of any final subdivision plan, and further that upon the re-zoning the area, the land and any building or =1 structure thereon must be developed and used in conformity with the proposal and condition identified herein" This condition attempts to use the provincial standard, or approval, as a substitute for a specific standard. While not enforceable in a court, developers voluntarily comply. Lakewood Avenue West (portion of land located along the west side of) — "(e) in lieu of curbing and related street improvements along Lakewood Avenue West, the property owner of the subject site (proposed Lot 01-1) pay the sum of thirty thousand dollars ($30,000) to the City of Saint John when street work is undertaken along the frontage of the subject site." This is a future obligation. At this time development is in compliance, in the future it may not be. Properties also change ownership. Conditions are registered with the property and are still legally enforceable. Staff continue work with new owners to attempt to resolve any outstanding site issues. As with all enforcement procedures staff attempts to gain voluntary compliance on issues. Security Requirement Questions were also raised at Council around the whole issue of requiring a security deposit from a developer to ensure that the work set out in the Section 39 agreement is satisfactorily completed. This can be a compelling tool provided the conditions as set out above (i.e., legality, clarity, etc) are met. The security would normally be in an amount as set by Common Council. The amount would be sufficient to undertake the required work. This method has been used when significant work is required to extend municipal infrastructure. There are practical difficulties associated with requiring security. The first and perhaps most obvious, is that at the rezoning stage a detailed cost estimate is not available given that detailed design has not been undertaken. Secondly, the financial burden placed on the developer when a security deposit is required. For example, if a developer is required to install cast in place concrete curbing at a cost of $50,000, then that developer would pay to the City an amount of $50,000 at the time the rezoning was approved. This has the practical effect of requiring the developer to come up with $ 100,000 to do a $50,000 job. In addition there is the practical difficulty in requiring security is that there would be an expectation that the City would cause the outstanding work to be done, In Report to Common Council Page 6 December 1, 2005 many cases the City would not have the expertise, the equipment or even the human resources required to undertake this work. A contractor would have to be engaged to do work on a developer's property. For this to happen it may be necessary for the City to make an application to the court allowing the City's contractor to enter upon the lands. The process is cumbersome. Notwithstanding the foregoing, requiring developers to provide security for the less significant items in a Section 39 condition is probably worth considering. It could ensure that the incidental work gets completed; and it is often this incidental work which can have the most visual impact. As noted in the City Solicitor's report, security will necessitate the preparation of an agreement utilizing our legal resources. Resources As Council is aware there are finite financial and human resources available to the City for by-law enforcement purposes. As with all Council business, decisions need to be made where it can best allocate these limited resources. More stringent enforcement of Section 39 conditions, and indeed other by-law related problems, require additional funding and manpower. Council should be aware that on a daily basis staff make informed decisions regarding which by-law infractions the City will pursue, These decisions are made based on the perceived impact to the community and citizens and also consideration is given as to the likely success of actions. In the resolution of Council of October 24, 2005, staff were instructed to "include a list of property owners". In the pages appended to this report the proper-ties are listed complete with a description of the Section 39 conditions. Names were not included in these appendices, This was deliberate. There are two reasons why the property owners were not listed with the properties. 1) The name of the owner in many cases would not be an indication of who actually owns the property. For example, the property at 100 Main Street may be owned by NB12345 Ltd. In other cases it may be a corporate name. 2) It has been the policy of the Building Inspector's office that all discussions with property owners regarding issues of non compliance are confidential until such time as an application is made to either Provincial Court or the Court of Queen's Bench, As noted earlier in this report, it is always staff's intent to obtain where possible voluntary compliance, and therefore, publicizing or making public the names of property owners would likely have a negative affect on these efforts. 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M+< Pew c l6bron s la source 111 M & C 2005 —349 November 21 ", 2005 His Worship Mayor Norm McFarlane & Members of Common Council Your Worship and Councillors SUBJECT: Saint Jahn Water — Sgeeial Agreement Negotiatians BACKGROUND City of SailAt, john The purpose of this report is to review the status of rate renewal negotiations with Irving Oil Limited (IOL) concerning the 1958 Agreement for water services (up to 3,000,000 gallons per day at the refinery's original service connection) and to seek authorization to proceed towards arbitration to resolve those rates, as per the provisions of that agreement. Talks have been going on for some time. IOL is one of only two customers of the water and sewerage utility that are not charged fully for services at rates set by Common Council through its Water & Sewerage By -Law. The City has long sought to have all industrial consumers covered by that structure of charges. Although there has been progress in that direction over the years, there remains substantial consumption at IOL billed below By -Law rates. As Council appreciates, water and wastewater services in New Brunswick are financed on a utility or user -pay basis; service customers (ratepayers) cover the costs associated with providing those services. Through the rates established under the By -Law, the City strives to fairly and equitably distribute or allocate costs among system users as a whole. All other industrial water users, small and large, pay for services fully at By -Law rates. As is the case with all customers, the City has sought to understand the particular needs and concerns of industrial water users. Water services are critical to those enterprises and, accordingly, their views should be duly considered in contemplating system changes and formulating business policy recommendations for Saint John Water. Industrial sector issues in recent years have ranged from water quality to raw water access, to system reliability, to increasing cost of services. M &C 2005 - 349 November 2 Pt, 2005 5aintjohn Water - .special Agreement Negotiations ANALYSIS The Irving Oil refinery has two major water service connections. The first, which dates back to the late 1950s, requires the City to provide up to 3,000,000 gallons of water per day. This connection is covered by a special agreement which is the subject of these negotiations. IOL pays special lower rates for water through this connection. The other major service connection (made in year 2000 in conjunction with the Refinery Upgrade Project) calls for up to 6,500,000 gallons of water per day in addition to the above supply. IOL pays fully at By -Law rates for the water it draws at the "RUP connection ". Special agreement rates (for the initial 3,000,000 gallon water service connection only) expired over five years ago on July IS`, 2000. The agreement, first entered into on February 18, 1958, includes the following provisions. "On application by the Company, the City will supply water at the City's pipeline at a point selected by the City during the period ending July l'; 1990, up to 3, 000, 000 gallons per day to the Company from the City's Loch Lomond watershed at the rate of one cent (0) per 1, 000 gallons." [First paragraph, 1 I (b)] "Aft er July I "' 1990 the Company will pay for water supplied by the City such fair and reasonable rate as the parties mutually agree upon, every ten years, and failing such agreement the said rate shall be determined by arbitration. " [ 11(c)] Rates were last renewed in 1995 for a 10 -year period from July 2", 1990 to July 1", 2004, The City's position in these talks has been consistent from the outset: "That all water consumption be paidfor fully at 1�y -Law rates ". The central concern expressed by IOL has been future costs - relative to what the refinery pays today. The company has argued that the long -term financial direction set out for the utility is unfair to them and fails to appreciate the margins involved in their industry; and, further, that it does not reflect the actual cost of supplying water to their unique class of customer. Although IOL has verbally acknowledged the appropriateness of By -Law rates for the refinery, the company has argued that the existing 4 -block system and the very low 4'h block rate should remain. City representatives have held that the system of By -Law rates, developed for the utility's body of customers as a whole, is essential to system equity and that only Saint John Common Council can determine what that structure and its associated rates should be. That position is founded on the principles of system equity, fairness and true user -pay for the entire body of approximately 17,000 utility customers. The need to go in this direction was highlighted through the Water & Sewerage Business Plan Review undertaken in 2002. The under - pricing of municipal water is a flawed, short - sighted practice that undervalues the service and leads to wasteful consumption; in the end, adversely affecting system users generally. think well of water -2- !'eau: celebrons la source AMC 2005 - 349 November2151, 2005 ' Saint)ohn Water -Special Agreement Negotiations Financial 1'Vlla_na2ement Model The financial management model developed for Saint John Water provides a fiscal context for meeting its essential obligations. It was been designed to address service reliability, water quality and environmental protection needs over time, and to move the utility towards adequate Levels of investment in infrastructure renewal. The model also strives to establish fair and equitable recovery of utility costs from its various classes of customers. Council's sustained commitment to its strategic direction for water and wastewater services, Water and Environmental Outcomes Essential far SaintJohn, and the financial plan outlined therein will define the future for this utility. A central theme of that strategy is fair and equitable sharing of system costs among utility customers generally. The resolution of all water rate issues needs to be considered in the context of finding the right long -term balance of charges for customers as a whole. RECOMMENDATIONS It is recommended that Common Council authorize staff to bring closure to rate renewal talks with Irving Oil Limited at an appropriate time and to initiate the arbitration process specified in section 11(c) of the special 1958 Agreement between Irving Oil Limited and the City of Saint John, Commrs,�yioner, & Engineering Terrence L. Totten, F.C.A. City :Manager think well of water A&rew ke tt, CA Commissioner, Finance & Corporate Services -3- Peau: celeMrons la source Review / Advise, / Discuss Water rates struc-ture- for industrial., ial..., rooirnmercia,i- n- stitutional cast-: €mers ca Comprehensive r view of water rtes arid rat �trrrt_ture in 2006 ca- Other ird ohn Water questions N- -emhrr 26, 706 3 iss � Primary References I Water and Environmental Outcomes Fss&aial for S3 (Strategic Direction) 2 if4 iC'a'r & `rew< ra8r Business Nan Reviev,. (R.V. Andersen led team/ 2002) 4 rP" (f1WWA MI ManUal) 4. Draft t itet and Sevv&r Raie FtiH Co,t Recovery (infraGuide Best Practice) AtonemUcr ka, 1tIR5 ,i E Strategic Direction c�R- Updated by Councit iri January 20,05 cw Financial management model cza Guides ct �"e(.6 d'�k1 t` }rl s' "cm"cier9T Mier S5SU e=s cA Regular verification of business plan ra.' —*� 28, 2000 4 Bus-ness Plan Review Two Critical Rate Issues czia Required Revenues/ Proper Pricing cDa Rate Equity (Fairness and Ctser tray) fa;riy afire( it coc, to "c c) � ,users" Noonho 28. 2005 Municipalities Act Wz.tef,.. and Sanitary Sewerage P i liter (AIR ... operate on a user-charge basis Zero-Sum Formula "expenditures out' covered by "reV nUes in" .4a 6em 28, 2D4 6. 4 Cost Recovery Services provHed on cost-recovery basis. hallen : to equitably distribute casts across 1 7,000 diverse customers; to allocate charges proportionate to cost burden of servicing each glass of customer. �eet*m6er 28, lt?ti5 r j Equitable Cost Allocation Critical to equitable allocation: Solid set of princip s upon which base ffik system of charges defe,nded in any pllbhC try :TUrtr Various cost allocation methods available NnvybY1YYY IU, :7dl6b g eY t eater Systems '6.ba Designed to rriee t peak d rb1�ainds ca Demands vary among different classes of customer also �ru. -�s n w. _�r��;� different users rQ Bottom fine. must recover costs Nnvcmbrn 2R, InaS 1 7, f Volumetric Rate Structure rQ IG rates: multiple rate levels that decrease in steps as usage increases rQ Variatfons relative tcs mee,ting dernands r�._) g va�° ous classes of cus'U rwter Reflects manner in which expenses are incurred by utility (user requirements) cQ Users lacy all' at_)p h aNe bl(. -)ck t. tt arg( -, n+��,b+ratr,x�us is Declining k Structure typically employed whe. n Single structure is used for all customer Class. (,s c (;osts decline with increasing usage ... '°c_rar €fir -6e} Ot sci la ce Economic circumstances dictate inn of u'vt .,s for large,-. 4-',`ier5 €o €`ernain Veree+nYrzr �8. BUUS � t er } [)echning Block, Structure cDa Rernains ire use m many areas rq Move away from this rate design cQ Among the reason iris° this trend- 0 i ) perceptions of inequity iii cast justification #car its use ( "3) conservation considerations Pl.—t" ae, lous Q 51 Business elan Review f�L Recommended fundameMal shift: "A, 5 -black rate system is not required for cast allocation purposes, " uV IcC�>l� 1opfsed -) block s,, st'un s water, w th selaarate rate fo .aw water. jo lb(. t is 4-block in 2003; 3 in 2004. H-- 4,r 10, 2005 13 u'f jN Business Plan Review ., 2{3G2 (FiXJBflll�) ��q� { AtlY xi4`Jf�Y 2GG4 (t, OIfCa[tliall 7(�J' €f GRbS15tEieASi} ]Bock Usn,Oa m ° Rai, tt4sy �au:'c� 8reage ar3 Rate tf a0a aa`r' btu Eimaut +rj'. ice, +'J r5ud,�srs.te,� r:d,rix'f irmonttery' f�:a'1 3z� �r .akta: ,rd'z,:�'i '' 8" 0 to 58 0.51428 0 €o kU�U U.a;`75R, #i €0 800 G.JS8U7fi U e 96;0 1.4b4itCt tad 92 to 0.41841 101 •e iAM$ 101 to 1 0.59648 101 r c,.6,, ,gm 2.273 fd9 a} wd64,� `79.5 °.0 250,W 66.h o, 7.5000"_=: 63.4% 9"t 2,174 to 0.x857& 50,am 8v 0.,591"; Ova 0;0690 Ow G^.SWfwS 45,454 d% ,`; t9,GRkdS 'U.'v "�� 150;GG6 '1. P,. daiE, €B00 B.Et " /n, 4+b 46,49S tn 013934 t3v r Smi No, AtY NIMbtc 'x s `” 272,764 4t 3 c 250 „itktkt6 6.21 G fit' 5' 871,764 3 6 �„ Xi}£ A9xt1 %' &M, Not ti8zpileahls NA A!nS"6 {udr §a Rate, Recommendations frig U Custonners Nn6' —h,F i0, RU0tr 14 Sa k1 V Rate Implementation t;rr:auncd' E =rtt.i$'erncrrted crfnsutsa_nt's 2003 rate- Proposa is over two yea.rs, -- 2003 and 2004 This year, Council resolved to maintain 4 -black structure until fully treaied eater on line (2012 �?�) Ratf" tr,fr...t ,ra �,,rjtjlrl &wrl?v r° to s Wock Systern, tt 3'11 and 0' blrx,,-ks c-onirnw, to ether over rIM-11,11 :�uv�'3,,ben za, 2oas rs 0 n Financial Model Rates 2004 2005 ..0.78.257 2006 2:: €.2' U.69152.... 0.84664 1.46688 o to 100 100% 140% 100% 1O 2atl 10]to50,(1(f@ 4.49895 0.55986 0.60562 1.04§.x.3'.. 71.53% 71.531 71.53 ° / 71,.5'1 °�7. 0136915 036915 0.36915 1),333 '17 3" 50.001 to 250,000 52.121 47,y 7°, a 43.S411fs 22.751 0.04291 0.07300 0.09550 033377 4'h Over250,000 6.1�% 9.1331/1 11,28% z2,7s% [,fru k I 17 1 4'' r I 7r 1 ,�c.��1 _. Nowe b. 28, M5 S6 z' Sustainable Water Pricing Sustainakifility, ,,. rneeflng the needs of the present Mthout compromising the biIitry ref future generations to meet theTT own need's usta n @ fe rr, q _prilyi .,, fundamental to recognizing the true value of water resources and realizing the full potential of public investments in infrastructure Nu All 2h, 70€75 9 Sustainable Water erica ca R.E.-,f I ect true costs . induce e3*ici'en. use Promote optimization ... achievement of least -cost solutions . to enhance affordability ca Enhance long-term viability of utility Nnrem6cr 271 4005 %8 A ' Further Review cif Rates BuFsh7e 95 P /an Review indicated reed for further detailed Gxamination of rates More fundamental ? ?? is "rate structure" Is pi,i ing �y t''rrr tippr€.priaite M Best approach for sl afe. gi direction } N—mbE 26, 2005 14 Factors: Rale Struc"ture I. Water of ide €"icy (waste is costly) 2n Equity (fairness and user pay) � ** i Afforda[Adity (for basic; luring) 4 Revs lnue adequacy (full recovery) 5 Econornic g 1rP', t (capac °ity/ ro\,\,th) Nuvmr:.her la, 2017K 2U Factors: Rafe Structure 6. "LINr acceptance (why; ow; what) % yk1,c,1 njca't and aadrn` inistrati`�.• " "_'� easibility (practical to implement) security of-sup-,,'Ay p -,,Ay° (to tweet demand) 9 M niniazas finan dal risk (revenues) tvovc"nsj€ax �N, l.DU4 1a 0 Y � Demand Management heaRjr' S that improve effidenr.;,= by reducing or altering patterns of wate, use More efficient and effective water usage, eliminating waste and lost water, and controlling expenses and capital costs s h+t+vercnher X0, 20D5 22 Y Recommendations 'I. Comprehensive review of water, rite strUCAUre and rateSl ire nark, 2006 reef ? 'P...V, � nderror -,, T .' di Staff prepare detailed terms of reference Negotiate a suit ale price for study c Return tc, Council with recommendation v Ouesti, n hmY.emix 28, 2005 an R R'E'PORT TO COMMON COUNCIL -IMMMAM1�1 Peau: c6libron5 la source M & C 2005 —311 November 21 ", 2005 iOi of Saint 1oh His Worship Mayor Norm McFarlane & Members of Common Council Your Worship and Councillors SUBJECT: Saint J John Water— Date Structure Lor ICI Customers PURPOSE The purpose of this report is to review the water rates structure for industrial-commercial- institutional (ICI) customers and to advise Common Council on a comprehensive review of the water rates structure and water rates to be undertaken in 2006, including an evaluation of rate structure options for Saint John Water. The financial management course to be set by Council will provide the basis for a sustainable system of cost recovery for the utility and assure the equitable allocation of utility costs among its customers. The advice received will guide pricing policies and assist in the resolution of outstanding rate issues. PRIMARY REFERENCES I. Water and Environmental Outcomes Essential for Saint John, November 2004, Strategic Direction for Water and Wastewater Services, City of Saint John 2. Water & Sewerage Business Plan Review, Final Deport, November 25, 2002, prepared on behalf of the City of Saint John, Touchie Engineering (a division of R.V. Anderson Associates Limited) and R.M. Louden Limited 3. Principles q f Water Rates, Fees, and Charges, M 1 Manual of Water Supply Practices, 5th Edition, 2000, American 'Water Works Association (AWWA) 4. Water and Sewer Rates: Full Cost Recovery, Draft #4, August 29, 2005, A Best Practice by the National Guide to Sustainable Municipal Infrastructure (InfraGuide), Federation of Canadian Municipalities a-MMEM M &C2005 - 377 Novemher27r, 2005 Saintjohn Water - Rate Structure for ICI Customers BACKGROUND In January 2005, Council adopted a series of recommendations to update its strategic direction for water and wastewater services: Water and Environmental Outcomes Essential for Saint, Jahn. Beyond adequate funding for utility operations, maintenance and administration, the strategy identified needed capital investments of $270 million over 10 years (2005 2014), including $106.79 million from others. Waterways contaminated by huge amounts of raw sewage, uncertain drinking water quality, threatened service reliability and aging infrastructure are crucial issues facing Saint John. An essential part of the strategic direction is its financial management model; a plan of revenues and expenses designed to guide policy, planning, service improvements and utility business decisions into the future. Required revenues are quantified by category for the 10 years, incorporating charges for both water and sewerage services. Based on the number and profile of customers, and anticipated usage patterns, the pricing structure behind those revenues seeks to equitably recover costs from utility customers, On the expense side, the model tracks operating costs, debt charges and investments in infrastructure renewal by year. The level of capital expenditure will determine borrowing levels and the cost of servicing that debt. The strategic direction recognized the value of regular outside verification of the utility business plan. Rate adequacy would be studied, along with progress on upgrades, investment levels towards sustainable infrastructure and the currency of the rate structure. ANALYSIS Two Critical Rate Issues The 2002 Water & Sewerage Business .Flan Review I User Charqes ._ need to provided essential guidance in developing the financial adequately cover utility management model for Saint John Water. acts and fairly allocate The consultants' highlighted two critical rate issues. The to "cost Bauer " . .Required RevenueslProper Pricing User rates needed to rise to better reflect the value of water and to generate sufficient revenues to support service delivery. Under- pricing of municipal water or `cheap water" is a flawed practice; it undervalues service, encourages over consumption and results in waste. Inefficiencies lead to higher costs to system users (that are avoidable) and increase pressure on infrastructure. Rate Equity (Fairness and User Pay) The system of charges or rates needed to change to better reflect principles of fairness and user pay; with the overall cost of services more fairly allocated across the various classes of utility customers. Fair cost - sharing means equity among the diverse customer groups; it enhances the overall affordability. Otherwise, some customers are charged costs that rightfully belong with others, think well of water -2- % eau, celehrons la source V hf &C ad105 - 377 November27sr, 2005 Saint John Water -/fate Structure for 10 Customers Zero Sum Finances: Exericlitures Equal Revenues In New Brunswick, the principles of user -pay and balanced budgets are at the heart of water utility finances; a zero -sum formula where "expenditures out" must be covered by "revenues in ". The Municipalities Act states: 189(1) Where under this Act a municipality provides (a) water, or (b) a sanitary sewerage system, the municipality shall construct, operate and maintain such service or utility on a user- charge basis, which may be established on an amortized or any other basis as to the municipality shall .seem fat, and may establish a separate or joint rate therefor. 189(4) When operating a service or utility under this section, a municipality or commission shall make such charges to the user of the service or utility as to produce (a) an annually balanced budget, or (b) a triennially balanced budget. Cost Recovery, and Equitable Cost Allocation Saint John Water services are provided on a cost - recovery basis. User - charges cover operating expenses, including debt charges associated with capital construction. Total Annual Cost of Services = Annual Revenue of the Utility Special government grants received. from time to time to assist in upgrading utility infrastructure do not fundamentally alter responsibility for service financing. Users must pay for the cost of services delivered by the utility. These users, however, are not all the same; they range from households that use small amounts of water to very large industrial enterprises that consume huge quantities. The challenge for the City is how to equitably distribute costs across approximately 1.7,000 diverse customers served by the utility; to allocate customer charges in a manner proportionate to the cost burden associated with servicing that class of customer. In other words, how do we charge those who utilize water and sewerage services their fair share of overall service costs? Critical to achieving cost allocation that is equitable are: 1. A solid set of principles upon which to base the system of charges; and 2. A logical approach that can be defended in any public forum. There are a variety of industry- recognized cost allocation methods available; however, none should be viewed as the definitive solution when it comes to calculating water rates. Mink well of water -3- reau: celebrons la source M &C 2005 - 317 Novemher 21St, 2005 i .. SaintJohn Water - Rate Structure for 10 Customers `mater systems are designed to meet the peak demands of customers. Typically, these peak demands vary among the different types or classes of customer and, as such, the cost of providing a unit (in') of water also varies between classes of customer. The City has used in the past an industry - recognized method of allocating costs based on engineering design parameters, separating costs into primary components — base (average use conditions), extra capacity (providing for peak demands), customer (billing, collecting, metering and customer service) and direct fire- protection (capacity on standby to fight fires) costs. Rates for ICI customers are set out in a volumetric rate structure with multiple rate levels that decrease in steps as a customer's usage increases. The declining block rate structure is intended to reflect variations relative to meeting demands among the various classes of customer. In theory, pricing reflects the manner in which expenses are incurred by the utility, assessed in accordance with usage patterns and demand requirements of users,. A declining block approach is typically employed when a single rate structure is used for all customer classes of service, when system costs decline with increasing water usage (economies of scale), or when economic circumstances dictate that price incentives be provided to encourage large- volume customers to remain on the system. The initial block endeavours to recover the costs associated with water volumes used and the demand requirements of residential and small commercial customers. Subsequent blocks are set to encompass the water use and associated demand characteristics of larger consumers. A characteristic particular to Saint John's declining block rate structure is a very low per unit rate for the highest level (block) of consumption, there is a wide range between the first block rate and the highest. Although the declining block rate structure remains in use in many areas, utilities have begun to move away from this rate design. Among the reasons for this trend are customer perceptions of inequity, cost justification for its use, and conservation considerations.' Business Plan Review — Block.. Rate Proposals The Business Plan Review recommended a fundamental shift away from the 5 -block rate structure that existed at the time. The consultant's report stated: "A 5 -block rate system is not required for cost allocation purposes. "a They proposed that the structure move over time to a 2 -block system for potable water, with a separate third rate for raw untreated water. To begin the transformation, the consultants proposed implementing a 4 -block structure in 2003, then a further change to a 3 -block systern in 2004. I Principles of Water Rates, Fees, and Charges, Fifth Edition, American Water Works Association, p97 2 Water chi Sewerage business Plan Review, Final Report, November 25, 2002, Touchie Engineering (a division of R.V. Anderson Associates Limited) and R.M. Louden Limited, p 132 think well of water -4- Peau: c %6rons la source M &C2L"�5 - 37 J November2ls, 2005 Saint john Water - Rate Structure for ICI Customers Table l summarizes the consultant's block rate recommendations for 2003 to 2005. `fable 1: Business Plan 1"teview— Consultant's Rate Recommendations3 2002 (Existing) 2003 (Consultant) 2004 (Consultant) 200 s (Consultant) .Block Usage m3 Rate Usage m3 Rate Usage rn3 Rate Usage m3 Rate bimonthly ($lm3) bimonthly ($lm3) bimonthly ($lm3) bimonthly ($ /m3) 1St 0 to 91 0.51428 0 to 100 ®.69752 0 to 100 0.88076 0 to 100 1.06400 2nd 92 to 0.41143 101 to 0.49€395 101 to 0.58648 101 to 0.67400 2,273 (80.0 %) 50,000 (71.5 %) 250,000 (66.6 %) 250,000 (63-4%) 3rd 2,274 to 0.28978 50,001 to 036915 Over 0.06846 Over K(8.8%) 45,454 (56.4 %) 250,000 (52.9 %) 250,000 (7.8 %) 250,00 45,455 to 0.23934 Over 0.04291 4`'' 272,764 a (46.5%) 250,000 o (6.2 /o) Not Applicable Not Applicable Over 0.01737 Not Applicable Not Applicable Not Applicable L5th ® 272,764 (3.4/0) L Note: percentage shown represents that rate in terms of percentage of the 1" Block rate in that year. Business Plan ---- lmplementatun After a thorough analysis of Business Plan review advice, staff followed -up with a comprehensive set of recommendations for follow-up action.4 Council adopted those recommendations, including one to implement the consultant's 2003 rate proposals over two years Q 2003 and 2004. Further, earlier this year, Council accepted the proposal that the 4 -block rate structure be maintained until higher quality filtered water (fully treated water) comes on line; hopefully by 2012. By then the rate structure would evolve to a 3 -block system., the 3`d and 4" blocks gradually coming together over time. This would be achieved by freezing the 3`d block and raising the 4" block rate to that level by 2012. The financial management model for Saint John Water reflects this gradual convergence. 3 Water° & Sewerage .Business Plan .Review, Final Report, November 25, 2002, Touchie Engineering (a division of R.V. Anderson Associates Limited) and R.M. Louden Limited, p132 4 Finding the Essential Balance, Water & Sewerage Business Plan Review, Report to Common Council, M &C 2003 -43, February 12, 2003 t h i n k w e l l of water - 5 - Peau: cel6brons la source M &C 200.E - 371 November 2is , 2005 SaintJohn Hater - Rate Structure for ICI Customers Table 2. ICI Block Rate Projections (2004 to 2006, and 2012) ('With Percent of I" Black. Rate Shown in Parenthesis) Rate ($ per cubic metre) Usage ,block (cubic metres/bimonthly) 2004 2005 2006 2012 S` 0 to 100 0.69752 0.78267 0.84664 1.46688 (100 %) (100 %) (100 %) (100 %) 2nd 101 to 50,000 0.49895 0.55986 0.60562 1.04931 (71.53 %) (71.53 %) (71.53 %) (71.53 %) 3`d 50,001 to 250,000 0.36915 0.36915 0.36915 0.33377 (52.92 %) (47,17 %) (43.60 %) (22.75 %) 4`h Over 250,000 0.04291 0.07300 0.09550 033377 (6.15 %) (9.33 %) (11.28 %) (22.75 %) Note: Appendix "A" provides a full summary of recommended rate projections for 2004 to 2014 A separate rate for untreated water would also be established under the Water & Sewerage By -Law at a level sufficient to capture all costs, associated with raw water production. Raw, untreated water would be available only from the West/Spruce Lake system. Sustainabiity: Rates and Rate Structures Sustainability means "meeting the needs of the present without compromising the ability of future generations to meet their own needs" s A sustainable system of water pricing is fundamental to recognizing the true value of water resources and realizing the fill potential of investments the public makes in water and wastewater infrastructure. "A sustainable water price is a price that will (1) reflect true costs and thereby induce efficient water production and consumption, (2) promote optimization or the achievement of least -cost solutions to providing water service, (3) achieve equity in terms of incorporating cost - sharing practices as needed to enhance affordability, and (4) enhance the long -term viability of the water utility. '6 The Business Flan Review indicated a need for further detailed examination of rates. Beyond rates, however, is the more fundamental question of `rate structure ". Does it reflect an appropriate pricing system for Saint John Water and its customers? Is it best approach for attainment of Council's strategic direction for water and wastewater? 5 Our Common Fixture (1987), World Council on Environment and ]development 6 Sustainable Water Pricing, Janice A. Beecher and Peter E. Shanaghan . think well of water 6 /eau.- celdbrons la source 41r" M &C° 2005 - 311 No vernber 21 , 2005 SaaintJohn Water - Rate Structure for /C/ Customers Factors that would be considered in assessing rate structure options include: Water efficiency: balancing the level of water use with available resources and the cost- effective delivery of services; inefficiencies are wasteful and very costly to users. Equity (fairness and user pay): charges that reasonably reflect the actual cost of providing services to each customer in proportion to the cost of servicing that class of customer; the most critical principle, both justifiable and defendable. Affardability: ability to pay for an essential life service, despite upward pressures on rates; affordability of water for basic living regardless of economic circumstances. Revenue adequacy: full recovery of all water and wastewater system costs from rates and other user charges is a requirement, utilities must produce balanced budgets. -q? Economic impact: support economic growth compatible with the long -term capacity of resources to service that growth; within the limits of fairness to all customers. Public acceptance: general public acceptance of pricing policy; with customers understanding why, how and what they are being charged for water. --Z- Technical and administrative feasibility. a rate structure must be practical to implement, without an inordinate administrative burden. Security ofsupply: improve capacity to meet water demands under all conditions. -z- Minimize financial risk: avoid or reduce financial risk associated with revenue variability and revenue loss. Demand Management Demand .Management involves measures that improve efficiency by reducing or altering patterns of water use. Some of these measures can be implemented by consumers on their own, while others flow from utility- sponsored programs. Effective demand management means realizing more efficient and effective water usage, eliminating waste and lost water, and controlling operating expenses and infrastructure capital costs. Examples of initiatives include conservation - oriented pricing, water fixture plumbing standards and retrofitting, water - efficient landscaping, changes in water use practices, and public education.' Effective demand management will advance the notions of overall service sustainability and "best possible" pricing for customers of the utility. Review of Rate Structure Options and Water Rates The strategic direction called for the regular review of operations and business systems. 7 The Drinking Water Dictionary, James M. Symons, Lee C. Bradley, Jr. and Theodore C. Cleveland t h i n k well of w a t e r - 7 - 1 eau: ce%brons la source }¢ M &C 2005 - 311 Nosvember, 2I S , 2005 f Saintjohn [Hater - Mate 5tructure for IC( Customers A wide - ranging study in the coming months would be very timely and help guide the utility's financial framework going forward. It would include analysis of such matters as rate adequacy, investment levels and rate structure alternatives. At this point in the evolution. of Saint John Water's business plan, it would be very beneficial to clearly redefine the basis for its ,pricing policies and assure the public that equity and fairness are reflected in its rates for water and wastewater services. The process to select consultants to undertake a water and sewerage business plan review in 2001 -02 was a very lengthy and time- consuming one. The City went through two calls for proposal before a suitable one could be identified. Only two submissions were received in 2001. Four companies responded to a second call in 2002 — two were American and two Canadian. The submission of Touchic Engineering (a division of R.V. Anderson Associates Limited), with R.M. Louden Limited and McInnes Cooper, met all requirements of the proposal call at a reasonable cost. The other proposals were either too expensive or lacking in quality and completeness. Given the City's earlier experience and our satisfaction with the work carried out in 2002, staff would suggest the re- engagement of the "R.V. Anderson team" for the 2006 review. These consultants are familiar with the City's operations and the needs of its customers, and we believe that they have the expertise to deliver a cost - effective and timely study. Based on a detailed terms of reference for the study, staff would negotiate a suitable price with the consultant and return to Council with a recommendation for re- engagement. RECOMMENDATION It is recommended that Council authorize: 1. That a comprehensive review of the water rate structure and water rates be undertaken in early 2006, including evaluation of rate structure options, and that such review be funded in the 2006 Water & Sewerage Fund operating budget; and 2. That staff prepare detailed terms of reference for the review, negotiate a suitable price with an RN. Anderson Associates Limited led team for a review proposal, and return to Council with a recommendation for engagement. Respectfully s mitted, J.M. Paul Groody, P. Er g., Engineering Terrence L. Totten, F.C.A. City Manager A ew Beckett, C.A Commissioner, Finance & Corporate Services think well l74 CD 0 ro N N N N N N N N N N N ' KOR :7 rrr �'aKairp- ' �✓T A 41 Q 00 ON `-- z 01� w N CD td o ® o oa q 00 w prY O � CD CZ) J W 00 Q lJr LA . i. tyg J �L3 lU W 00 J O � W � � 00 w W ., �-c -P W J N Q1 C> N. � � R o uq w a o cn c3l� CN kA o d td � � o a ° O :O 0 O C7 O O O O a � cn W 00 .J Ch W H C K t N N W W �..1 a O �!` h 9 w Ch v? 00 `CS Gip N JLLLI Q ......... i W r� z c� flU N N N tV N N N N �laylc �1j3 Ic 00 O d Q R O x�'a`4 n J r—+ cn 4 IH 1 -1 P. � 41 -h IJ dw 'J Q �O 00 �l Ci1 b3 Q 0� DO w w N w _ 00 00 `O Cal "E- O � O Q o �71 CJ 8) Q Q Q C7 4 O C) O O d Q O O CP iq O O Q O 00 00 ^-7 CT 4li �. 6<3 1 00 `] W J� ON b A O t-h CD CJi L+r ilr Ln Ln Vl w w i�w Y ~i LO C) rn rn w w w W w w w w W b3 w w ON 00 _ w J 41i V7 Ln t11 to G1 th t,la Q c P�" w N N N N w w w w 41 O\ t!i lsy O � ti6 t✓i J O � N W d d W C7l N W N LA W w „wvl 00 � BNl r Q C CD LA N N N Q Oa - 1 v, w �-- Q c7 CD R w LA N REPORT TO COMMON COUNCIL M & C-2005 l� City of Saint john November 28, 2005 His Worship Norman McFarlane and Members of Common Council Your Worship and Councillors:. SUBJECT: Tender for Sand & Gravel Each year the City calls a tender for the establishment of a supply agreement for the provision of sand, gravel and aggregate. The purpose of this agreement is to provide the City with a constant supply of materials, which meets its specifications, at a fixed cost. Five companies submitted bids in response to this year's tender call.. ANALYSIS; Staff from Municipal Operations and Materials Management has reviewed each of the tenders and have found them to be complete in every regard. While reviewing the bids submitted, staff noted a considerable increase for delivered '/4f5 and 3/4" minus and l ''ii" and 2" clear gravel to East and Central locations. These items are number 4B, 4C, 5B, 5C, 6J, 6K, 6N and 60 on the enclosed summary of bids. Staff recommend not awarding these items and have City trucks pickup these items using the "Loaded on Trucks" bid price for each of the stated gravel types. While there were also slight increases in the cost to deliver West, staff feel it would be cost effective to award the West area delivery. As a condition of award, bidders are to provide the location of the pits to be employed to supply the products bid. A copy of these addresses is submitted to the Building and Technical Services Department for review and compliance with any City Bylaws pertaining to Pits and Quarries. PACE TWO Staff has been advised that all of the pits submitted by the bidders are in compliance with the bylaw, A summary of the bids is enclosed for Council's consideration. FINANCIAL CONSIDERATIONS: It is impossible to predict with any degree of accuracy, how much the City will spend annually to purchase the materials covered by this agreement. It is estimated however, based on past experience, that between the parks, Works Operations and Water & Sewerage General Operating and Capital Budgets that the City will spend between $250,000.00 and $300,000.00 to purchase sand, gravel, sod, top soil and aggregate materials. This is a planned expenditure and as such funds are traditionally included in the affected budgets. L 0 12 17-I it It is recommended that the tender for the establishment of a supply agreement for the provision of sand, gravel and aggregate be awarded with the exception of items 4B, 4C, SB, SC, 6J, 6K, 6N, and 60 to the lowest bidder for each of the remaining items tendered, as indicated on the enclosed summary. Respectfully subrnitte., David Logan,`CP Purchasing Agent �ckett, CA ner Finance Tr L. 'Totten, FCA City Manager • dD 0 w 0 0 it 0 0 0 LL LO 0 C=) CN • • F- eTr 0 LO 0 0 0 0') C) C) LO LO C) N LO 00 1 (D U) C\j � CL C� 60- 4 69- cli 6q Y 6q 6q L6 6".* cl� 69- 0 ri E "a CD LO LO C) CD LO C) LO CD C? 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W. •. i I ,. These Contracts consist of the supply of labour, construction services, construction materials, plant and landscape material, lighting fixtures and associated electrical systems, interpretive structures and signage, bridge construction, asphalt multi- purpose recreation path, and equipment required to extend Harbour Massage along Chesley Drive and Bentley Street and the construction of a lookout structure, pathways and landscaping at Reversing Fails bridge. One of the key components of the Chesley Drive Bentley Street project is the construction of a barrier free ramp to the existing pavilion at the foot of Bentley Street. The continuation of Harbour Passage will provide greater public access to the City of Saint John's Inner Harbour, a priority of the 1999 Waterfront Strategic Plan. The Harbour Massage Project will also serve to provide a direct connection to the Bentley Crossing development. In this report, Council is requested to award Contract 2005 -- 21, Chesley Drive 1 Bentley Street, and not to award Contract 2005 -31, Reversing Falls Lookout. Tenders closed on November 30, 2005, with the following results: Contract 2.005 -21, Chesley Drive f Bentley Street: 1. Galbraith Construction Ltd., Saint John, NB $ 989,000 2. Maricon Construction Management Ltd., Saint John, NB $1,115,000 N & C 2005 - Contracts 2005 -21 and 2005 -31 Harbour Passage Phase III December 5, 2005 3. M R Martin Construction Inc., Riverview, NB $1,619,221 The estimate for the work was $ 815,475 Contract 2005 -31_ Reversing Falls Lookout Maricon Construction Management Ltd., Saint John, NB $ 961,791 2. M R Martin Construction Inc., Riverview, NB $1,388,798 The estimate for the work was 434,844 ANALYSIS: CONTRACT 2005 -21, CHESLE Y DRIVE / BENTLEY STREET: Staff reviewed the tenders and all tenders were found to be formal in all respects. Staff is of the opinion that the low Tenderer has the necessary resources, experience and expertise to perform the work, and recommend acceptance of their tender. The total stipulated lump sum tender price of $989,000 includes HST and a combined contingency and cash allowance of $80,000. The contingency allowance is not a guaranteed payment to the Contractor, but will be utilized only for adjustments to the Contract or to resolve any unforeseen matter that may arise during construction. The difference between the tender estimate and the tender bid is $177,000. Estimates for this project and for past Harbour Passage projects have been based upon similar work in similar projects. There are many items that can vary the value of a contract including costs of labour, fuel, lumber, rock, sand and gravel, asphalt, concrete, landscape materials, etc. It is believed that the difference between the tender estimate and tender bid is due to increases in the components. In addition to the amount to be paid to the Contractor there is requirement to have a separate Contract for daily site inspection, construction management, and contract administration services. The cost of these services is budgeted at a maximum of $55,730 including HST, and includes all necessary inspection and project administration for the work as detailed in the Chesley Drive /Bentley Street tender documents. A recommendation on the engagement of Daniel K. Glenn Ltd., to provide the site inspection, project management, and contract administration services follows in a separate section of this report. Cost of construction of Cesley Drive /Bentley Street Total Contract amount (Galbraith Construction Ltd.) $ 989,000 M & C 2005 - Contracts 2005 -21 and 2005 -31 Harbour Passage Please III December 5, 2005 Inspection and Administration $ 55,730 Total $1,044,730 Less recoverable portion of HST: _67,280 Net Construction Cost — $ 977,450 The monies necessary to finance the net construction cost are available in funds previously committed by the City of Saint John, the Saint John Waterfront Development Partnership, and the Province of New Brunswick. Other Financial Considerations The tender documents stipulate that the City has 60 days following close of tenders to award a contract, (January 29, 2006) if the City at its sole discretion, decides to do so. The recommendation herein is to award the contract subject to all land and environmental issues being satisfactorily resolved prior to this date. LAND ACCESS AND ENVIRONMENTAL ISSUES: Land Access Negotiations have been ongoing with all affected property owners for lands necessary for the project improvements. With the exception of one landowner on Bentley Street verbal agreement has been reached and legal agreements and plans are being prepared with anticipation of presenting the agreements for Council consideration in the near future. There is one land owner on Bentley Street with which agreement has not been reached. It is possible to construct Harbour Passage within the existing street right -of -way, although slightly narrower. The Harbour Passage Working Group and staff will continue to attempt to resolve this land matter, however, does not see this issue as a constraint to proceeding with the project, Environmental & Heritage Permits All necessary Federal and Provincial Environmental Permits J Approvals 1 Exemptions relating to the construction of Harbour Passage - Phase III have been applied far. These include: 1. Federal Canadian Environmental Assessment Act (CEAA) Screening. 2. Exemption from the HARD Habitat Management Authorization process by the Federal Dept. of Fisheries & Oceans (DFO). 3. A Watercourse Alteration Pen-nit (have been advised that this permit is not necessary). As with Phase I and Phase II of Harbour Passage the Harbour Passage Working Group is anticipating receipt of Exemption from the Navigable Waters Protection Act (NWPA) by M & C 2005 - Contracts 2005-21 and 2005-31 Harbour Passage Phase III December 5, 2005 the Federal Dept. of Fisheries & Oceans (DFO) and that CEAA screening is not necessary. CONSTRUCTION and ADMINISTRATION SERVICES: Daniel K. Glenn Ltd., Landscape Architects and Park Planners, under a separate contact completed the Final Design work for Harbour Passage Phase 111. The design services of Daniel K. Glenn Ltd. were complete upon presentation to the City of Saint John of the contract drawings and specifications. Provision of construction inspection, project management, and administration services are required as part of Harbour Passage Phase 111. Daniel K. Glenn Ltd. provided these services for Phase I and Phase 11, The firn-i has advised that in the same manner as in past projects it would undertake to provide this work at a cost of $55,770 (including HST). This amount equals 4.9% of the total contract amount of $989,000 and is a typical and fair expenditure for such work. This work includes: site and committee meetings and inspections, product review, samples and testing; shop drawing review; progress billings; electrical engineering and structural engineering; on site inspector; administration and correspondence; the provision of contract administration services such as negotiations with the Contractor, reviewing all payment claims, preparing change orders, etc.; provision of site inspection during construction; attendance at regular site meetings and undertaking of spot inspections by senior designers; provision of final inspections for substantial completion and following the one year warranty period; provision of inspection by sub-consultant engineers of structural and electrical works and provision of as-built drawings upon project completion to the City in digital format for record keeping. Any change in the scope of the services that requires additional design, inspection and administration services would be billed at 10% of the value of the additional work. A recommendation is included with this report to engage Daniel K. Glenn Ltd. to provide contract inspection and administration service for the percentage amounts outlined. There were two tenders received for the above project. Both tenders were formal in all respects. More than 10 tender packages were taken out by potential bidders, some by general contractors and some by sub-contractors. The estimate for this project was $484,844 including HST. The two tenders received exceed the estimate by $476,947 and $953,954. These bids are approximately 220% and 319% greater than the estimated value of the work, and far exceed the monies budgeted, 4 M &C20`05- Contracts 2005 -21 and 2005 -31 harbour Passage Phase III December 5, 2005 It is not clear why the bids are so high, however, one of the factors might be the perceived difficulty of working at the site. Staff and the Waterfront Development Partnership jointly share the opinion that Contract 2005 — 31 Reversing Falls Lookout not be awarded. The Harbour Passage Working group will undertake to review the project, try to determine the reason for the bids exceeding the estimate, and consider a change in scope of the project and possibility re- tender at a later date. 9 11 a U is 0119 The recommendations contained in this report have been reviewed by and have the support of: the Commissioner of Planning and Development and the Saint John Waterfront Development Partnership It is recommended that Common Council: (a) Award Contract 2005 - 21: Harbour Passage Phase III Chesley Drive /Bentley Street to Galbraith Construction Ltd. at the Total Stipulated Lump Sum Price of $989,000 inclusive of HST, subiect to satisfactory resolution of all land and environmental issues prior to January 29, 2006, such determination to be made jointly by the Director of Leisure Services and the Commissioner of Planning and Development. (The contract shall be presented to Galbraith Construction Ltd. for execution only if the land and environmental matters are resolved.) 2. Subject to the award of the above contract, approve the engagement of Daniel K. Glenn Ltd., to (l) provide contract inspection and administration services for Harbour Passage Phase III Chesley Drive /Bentley Street for the works specified and detailed in the tender documents in an amount equal to 4.9% of the Total Stipulated Lump Sum Price of the awarded sections, including HST, and (2) should the scope of the services change such that additional design, inspection and administration services are required, such additional work be paid at 10% of the value of the additional work. Not award Contract 2005 — 31: Reversing Falls Lookout and that the Tenderers be so advised. Respectfully submitted, Bernie ' The City of Saint john M&C # 2005-365 His Worship Mayor Norm McFarlane And Members of Common Council Your Worship and Members of Council. SUBJECT: IMPLEMENTING CHARTWELL's RECOMMENDATIONS When Council approved the 2005 Operating Budget considerable discussion occurred with respect to staffing levels in both Development Services and Leisure Services. After discussing the issues, Council agreed to provide funding for three positions, two of which were in Development Services and one in Leisure Services. A couple of weeks later, when staff were about to start the process of recruiting for these positions, the Establishment which flowed directly from the budget discussions was presented to Council. It was at that time that Council directed staff not to proceed in filling the positions until Chartwell completed the Operational Review. 1 On September 26'', Chartwell presented its findings. On page 132, Chartwell wrote the following: " Recreation Manager Position, Leisure Services Department — a management position which was approved in the fiscal 2005 budget was put on hold pending the outcome of the Operational Review. This position is still on hold at the time of writing. Note that the Leisure Services Department does not have a Commissioner as do other departments. This position is currently filled as a Director position. It is recommended that the City Manager decide whether or not the Department should be treated as all other Departments with a Commissioner position appointed, and this position be a full- time member of the Senior Management Team. Once this decision is made, then the position of Manager of Recreation be filled, and this position will report to the Commissioner of Leisure Services. The role of Recreation Manager cannot be addressed in the current state due to the split duties of the Director who manages the Department and oversees the Recreation Division. The Recreation Division is taking on more importance in serving the needs of the Leisure, Arts and Culture Program, particularly in the area of youth programming — a priority of Common Council. Report to Common Council Subject: Implementing Chartwell's Recommendations Page 2 Development Manager Position, Planning and Development Department — a management position which was approved in the fiscal 2005 budget was put on hold pending the outcome of the Operational Review, This position is still on hold at the time of writing. It is recommended that the position of Development Manager be filled immediately. The Commissioner of Planning and Development is expecting to retire in the next 2-3 years, and it would only make sense that such a managerial position would form the basis for his replacement. One other important note that arose from the Operation Review is the strong suggestion by stakeholders affiliated with the development industry that an advocate of development be retained by the City of Saint John. Chartwell recommends that in filling the position of Development Manager, that consideration be given to seeking out a manager who can represent the development industry as an advocate — one that will work with developers to move their development applications through the approval process in an expeditious manner, while not compromising the City's Property Development Program Goals and Service objectives. A very brief discussion of this issue was held during the first meeting of the Vision 2015 Committee. The Committee Chair expressed the view that he thought that staff would now just proceed to fill these positions. In this regard, the position in Leisure Services has been posted, tests conducted and interviews held. However, no appointment has been made. As for the positions in Development Services, Mr. Baird has been asked to work with Human Resources to prepare the necessary advertisements for a relatively broad search for qualified candidates. Given Chartwell's comments that "it would only make sense that such a managerial position would form the basis of his replacement," this search may take considerable time and a significant investment in terms of dollars. As such, staff needs to be assured that we are moving in a direction that is consistent with Chartwell's recommendations and the will of Common Council. The recommendations in this report are also intended to deal with Chartwell's statement; "It is recommended that the City Manager decide whether or not the Department should be treated as all other departments with a Commissioner position appointed, and this position be a full member of the senior Management team. FINANCIAL IMPLICATION: All of the necessary funding to deal with these recommendations were previously approved as part of the 2005 Operating Budget. As for the Commission of Leisure Services, it is proposed that this can simply occur by changing the title of the incumbent from Director of Leisure Services to Commissioner of Leisure Services, Report to Common Council Page 3 Subject: Implementing Chartwell's Recommendations RECOMMENDATION: (1) That the City Manager be directed to proceed with filling the three positions, one in Leisure Services and two in Development Services for which the funding was previously approved by Common Council. (2) The title, Director of Leisure Services be changed to Commissioner of Leisure Services so as to reflect the significant importance of Leisure Services to this community, 1-7 Lbmitted, Terrence L. Totten, FCA CITY MANAGER I REPORT COMMON M & C 2005 -356 November 8, 2005 His Worship Norm McFarlane And Members of Common Council SUBJECT: Community Cruise Planning Your Worship and Councilors: COUNCIL wot�, I / z0a-C-1 r v City of Sawn[ John Further to a letter submitted by Councilor Stephen Chase at Monday, November 7 'h's Council meeting, this is to confirm that the following partners meet regularly throughout the year to discuss cruise market planning and co- ordination in Saint John: Port Administration & Sales Staff Tourism Officials (Tourism Saint John, Hospitality Saint John, NB Tourism & Parks) Tour Operators (Aquila, Freedom "fours) Transportation Providers (SNIT, SJ Taxi Association, etc.) Shipping Agents Retailers & Retail Organizations Those lasted above are paying members of a formal organization called Cruise Saint John, a community -based organization consisting of individuals and businesses wishing to develop the cruise industry in the Saint John region. The Committee provides support to the Saint John Port Authority (its major funding contributor) by promoting a positive experience for cruise passengers visiting the Region. One of its primary functions is to foster and support the successful "Meet and Greet" Program. Cruise Saint John also plays an advocacy role on issues related to the physical safety of passengers in their travels in Uptown Saint John and works to improve first impressions. They conducts research in relation to "best practices" in regions similar to Saint John for continued evolution of our product, and they provide educational opportunities (to enhance the guest experience) to the taxi industry, retail sector, and to volunteers. Bay of Fundy Group Strategic Action Plan for Cruise Market Group Members: Aquila Tours Port of Saint John Tourism Saint John Tourism New Brunswick Objective of group To work together to undertake strategic marketing activities and to achieve a minimum of 100,000 passengers annually arriving in the Port of Saint John. Tarzet Market Priorities 1. ]'forth American Cruise Lines calling on Atlantic Canada 2. European / Other Cruise Lines calling on Atlantic Canada 3. Small Vessels and adventure cruises Bay of Fundy Strategy Budget Estimate 17, 2005 Budget for Marketing Co -op strategy for Bay of Fundy: Based on discussions in Miami, there are opportunities to target more cruise growth by partnering with cruise Iines in their marketing efforts — as well as providing these lines with a business case for "why Saint John ?" Carnival needs to be presented with itineraries that include the Bay of Fundy for their Saguenay itinerary. The following are what we see as required amounts to do an effective co -op marketing campaign and really make a difference in this market for the Bay of Fundy. Carnival Negotiate Marketing dollars on including Saint John on an itinerary to position another ship in our region for 2007 — include itineraries and business case Estimated marketing dollars $ 20,000. RM Negotiate Marketing dollars on including Saint John on an itinerary in our region for 2007 — include business case Estimated marketing dollars MSC guises $ 10,000. Negotiate Marketing dollars on including Saint John on an itinerary to position a ship in our region for 2007 — include business case Estimated marketing dollars $ 7,500. Negotiate Marketing dollars on including Saint John on more calls in our Port — include business case Estimated marketing dollars $ 10,000.. Princess Negotiate Marketing dollars on including Saint John on an itinerary in our region — include business case Estimated marketing dollars Holland America $ 10,000. Negotiate Marketing dollars on including Saint John on an itinerary to position another ship in our region — include itineraries and business case Estimated marketing dollars $ 10,000. Required amount for effective co -op marketing Bay of Fundy Strategy Budget Estimate November 17, 2005 REPORT TO COMMON COUNCIL • ' • Z�l -M December 5, 2005 His Worship Mayor Norm McFarlane And Members of Common Council Your Worship and Councillors: — 0 1 - *'- I 111:z =1 City of Saint john On November 21, 2005, the New Brunswick Municipal Finance Corporation negotiated the sale of a bond issue in the amount of $75,023,000, of which $11,200,000 related to the City of Saint John 200412005 Capital Program. The terms of the issue as they relate to Saint John are as follows: Term: Coupon Rate: Price: 10 year, serial form Year 1 3.750 Year 2 3.750 Year 3 3.875 Year 4 4.000 Year 5 4.000 Settlement Date: December 7, 2005 Year 6 — 4.125 Year 7 — 4.125 Year 8 — 4.250 Year 9 — 4.250 Year 10 — 4.375 M & C 2005 - 361 December 5, 2005 Page 2 Note: With respect to the General Fund debt is now being amortized over a fifteen year period and for the Water & Sewerage Utility debt is being amortized over a 20 year period. As a result a portion of the current debenture issue will have to be refinanced after the initial 10 year term. For the General Fund $2,370,000 will be refinanced in 2015 for a period not to exceed five years, for the Transit issue $200,000 will be refinanced in 2015 for a period not to exceed five years, and for the Water & Sewerage Utility, $1,750,000 will be refinanced in 2015 for a period not to exceed ten years. It is recommended that the Mayor and Common Clerk be authorized to sign the debentures between the City and the New Brunswick Municipal Finance Corporation for $11,200,000 at the terms listed above. REPORT TO COMMON COUNCIL M &C2005 -358 December 1, 2005 "is Worship Mayor Norman McFarlane And Members of Common Council Your Worship and Councilors, SUBJECT: Street Closure (Permanent) McLean Street C .n 1 � City of saint john On September 2£, 2005 Common Council authorized the temporary closure of a portion of McLean Street for a period of 120 days. This action was taken, along with a number of others, to lessen safety concerns about the blind knoll on Northumberland Avenue immediately above the intersection with Highmount Court. A serious car accident had occurred at this location and staff was concerned about the potential for more. The purpose for the temporary closure was to assess the impacts of the change and then recommend to Council either to close the street permanently or open it to traffic flow again. This report will deal with the permanent closure of McLean Street. ANALYSIS The closure of McLean Street has reduced traffic on Northumberland Street as expected. Traffic traveling east from Rothesay Avenue to Westmorland Road was eliminated immediately. Traffic traveling west from Westmorland Road to Rothesay Avenue initially continued down Northumberland Avenue and onto McLaughlin Crescent until barricades A,-ere encountered at the intersection with McLean. Signage indicating no through traffic at the Northumberland /McLaughlin intersection was often ignored (or not seen), and the vehicles that turned around would either use Northumberland Avenue or McLaughlin Crescent to return to Westmorland Road. This traffic has dwindled as motorists recognize this is no longer a through route. WAMMEW M & C 2005 358 December 1, 2005 Rage 2 ANALSYSlS (Cont'd) Staff has received expressions of support for a permanent closure and also complaints about the inconvenience of not having this through option. While monitoring the traffic flow past the Highmount/Northumberland intersection, staff was approached by a resident of Highmount Court expressing their appreciation for the closure and the hope it would become permanent. A resident of Barbara Crescent called to register their dissatisfaction with the arrangement, and cited increased traffic flow on McLaughlin Crescent from traffic turning around at the barricades, and increased difficulty getting out onto Westmorland Road. A business owner also called to complain about the increased travel distance and inconvenience associated with delivering parts to businesses at McAllister Mall and south of his business on Spencer Street, and also with less drive by traffic. Staff has monitored the concerns about increased traffic on McLaughlin Crescent, and the difficulty with entering from Northumberland and McLaughlin onto Westmorland Road. Any increase in traffic on McLaughlin Crescent as a result of traffic turning at the barricades is a minor issue based on observations made at peak times and "A-ill disappear with time as motorists become aware this is no longer a through route. Entry onto Westmorland Road from Northumberland Avenue, especially a left turn movement, can be difficult. This is due to the large amount of traffic on Westmorland Road. Reducing the amount of traffic on Northumberland by closure of McLean actually improves the service at the North umberlandi'W estmorland intersection, however, closure of McLean also means that Westmorland Road is the only link to the rest of the City. CONCLUSION The closure of McLean Street has had positive impacts, by reducing the total amount of traffic on Northumberland Avenue — through traffic is essentially eliminated from this residential area. Safety at the intersection with Highmount Court is improved as a result, although the physical characteristics have not changed. There are other benefits of lower traffic volumes to the residents on this street, and the lower section of McLaughlin Crescent as well as Highmount and Eastmount Courts — improved pedestrian safety and a quieter neighbourhood. There are no similar or corresponding benefits to other nearby residents of Westmorland Heights or the businesses immediately below the Heights towards Rothesay Avenue, only the elimination of a convenient access option. After monitoring the situation and weighing the factors involved, staff is of the view that the closure of McLean Street should be :made permanent — issues at the intersections on Westmorland Road should be evaluated as necessary and appropriate traffic control measures taken if warranted. M&C2005 -358 December 1, 2005 Page 3 The permanent closure of McLean Street is proposed. It is requested that Council publish notification of intent to consider a By -lave amendment to stop up and close a portion of McLean Street, This process has been used by Council on many occasions to close public streets and will allow for a full public hearing on the pros and cons. Staff will ensure notification is made to all area residents and businesses and will follow up directly with those who have made their dews known. A sketch showing the intended limits of closure on McLean Street is attached. The legal department has advised that this process is appropriate to achieve the desired action. Planning staff has also been consulted and concur, RECOMMENDATION That Common Council direct the Common Clerk to publish notice of it's intention to consider a By -law to stop up and close, a 583 square meter section of McLean Street as generally shown on the attached sketch and described as follows: All that portion of McLean Street, so called, intending to be the entire width of the said street for a length more particularly described as follows: Beginning at the intersection of the northern sideline of Spencer Street (formerly known as Northumberland Avenue) with the western sideline of McLean Street, going thence in a northerly direction along the western sideline of McLean Street a distance of 29.00 metres; thence in an easterly direction and at right angles to the western sideline of McLean Street a distance of 20.12 metres or to the eastern sideline of McLean Street: thence in a southerly direction along the eastern sideline of McLean Street a distance of 29.00 metres; thence in a westerly direction and at right angles more or less to the eastern sideline of Mclean Street to the place of beginning. Respectfully submitted Terrence L. Totten, F.C.A, City Manager "ent 'ly,: CITY SAINT JOHN; 6582837; Jul-28-05 11,59AM; Page 4/4 REPORT TO COMMON COUNCIL M & C — 2005 -357 December 1, 2005 His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors: SUBJECT: Sale of 14 Castle Street In the early 1990's St. Joseph's Hospital attempted to purchase 14 Castle Street from the City for the purpose of expanding its parking facilities. Engineering indicated it was reluctant to sell this parcel as they anticipated a potential future need for a cul -de -sac in this area. St. Joseph's eventually rescinded its offer. The neighbourhood was subsequently developed in such a manner that a cul -de -sac was not required. Engineering has no concerns regarding the proposed sale. ORD City of Saint John In July 2005, staff met with Atlantic Health Sciences Corp. (AHSC) representatives regarding a request to purchase 14 Castle Street for the purpose of expanding their parking lot. Discussions ensued. On November 21, 2005 the AHSC offered to purchase PID 18506 (14 Castle Street) for $7,500 (+ HST if applicable) conditional on rezoning. The subject parcel is a 424 sq. in +/- rock out crop located off Castle St. It is zoned RM- I and is located on the boundary of an area deemed as residential in the Municipal Plan. The lot is not a reasonable location for a dwelling. The offer of $7500.00 is equivalent to $18.00 per square meter. That The City of Saint John sell the fee simple absolute interest in PID 14506 to the Atlantic Health Sciences Corporation (AHSC) on or before April 30, 2006 for $7,500 (+ HST if applicable) subject to the AHSC obtaining the necessary Municipal Plan amendment and required rezoning, and further that the AHSC be permitted to apply for the Municipal Plan amendment and rezoning; and further that the Mayor and Common Clerk be authorized to execute any document necessary to finalize this transaction. Res tfully subitted, Jim R. Baird, MCIP Terrence Totten, F.C.A. Commissioner City Manager Planning and Development REPORT TO COMMON COUNCIL SUBJECT: PURCHASE OF A DIGITAL DICTATION SYSTEM SAINT JOHN POLICE FORCE City of Saint John, The accurate recording of information is a vital part of police work. Police reports are a method of passing on information and creating a permanent record of incidents dealt with by the Police. The Saint John Police Force has two methods of entering reports into its Crimes Reporting Application. The first method is officer entry, the second and preferred method is dictating the report into the digital dictation system. Transcription personnel will then transcribe the report into the Crimes Reporting Application. The digital dictation system is quicker and takes only twelve to fifteen minutes to dictate a report compared to an hour of officer entry. Officers are encouraged to use the digital recording system for this reason. The current digital dictation system used by the Force was purchased in 1998 and has reached the end of its useful life. The purpose of this report is to receive approval to acquire a dictation system. A request for proposals for a replacement system recently closed with two responses: 1. Lanier Healthcare Canada (LHCC) — London, Ontario 2. FJ Communications — Montreal, Quebec Report to Common Council M & C 2005-369 December 05, 2005 The proposals were reviewed by a committee of SJPF staff familiar with the use and operation of the equipment. They concluded that the proposal from Lanier Healthcare best meets the needs of the Force, provides a seamless transition from the current system, allows for system growth and expansion based upon the Force's requirements and has a considerably lower cost than the second proposal. M-N-1 Wil 0101 The cost associated with the Lanier proposal is $65,066.25. Funds were allocated in the 2005 Capital Budget for this system. It is recommended that Common Council approved the acquisition of a Digital Dictation System from Lanier Healthcare Canada at a cost of $65,066.25 plus HST Respectfully submitted, W. D. Tod- ' 1-1� Andrew Beckett Commissioner of Finance & on Systems a 'Support. Corporate Services i errence i oaten, City Manager PORT M COMMON MMON C CU M & C 2005 - 367 December 1, 2005 City of Saint Ywhn His Worship Mayor Norris McFarlane and. Members of Common Council Your Worship and Members of Council, Contract 2005 -22. Howes Lake Landfill Closure — Phase 11 Included in the 2005 General Fund. Environment Capital Budget is a project for the second phase of the closure of the former municipal landfill at "owes Lake. As part of the 2002 Howes Lake Landfill Assessment and Classification Study performed by GEMTEC .Limited, several recommendations were made regarding what steps should be taken to properly close the former landfill. Generally, the recommendations were that site be regraded to promote runoff, sections of the site should have a low permeability cover installed, the leachate should be collected and treated, and a long -term groundwater and surface water monitoring program be developed. Contract 2005 -22 represents the second phase of the closure process and involves extension of the access road and beginning the installation of the leachate perimeter piping and the sanitary sewer main from the landfill site to the sanitary sewer on University Avenue, for treatment of the leachate at the Millidgeville Wastewater Treatment Plant. The work consists generally of the supply of all necessary labour, materials and equipment for the importing and placing of approximately 8,000 m3 of pit run gravel subbase, 5,500 tonnes of R -5 riprap, 19,200 m2 of filter fabric, 65 metres of 100 mm 0 DR35 perforated PVC pipe, 640 metres of 200 mm 0 DR35 perforated PVC pipe, 360 metres of 200 mrn 0 DR35 PVC pipe, twenty precast concrete sanitary sewer manholes, and other related work. M & C 2005 -367 December 1., 2005 Page 2 Tenders closed on November 30, 2005 with the following results: 1) Gulf Operators Ltd. $618,157.00 Saint John, N.B. 2) Spectrum Enterprises Ltd $678,743.35 Saint John, N.B. 3) Galbraith Construction. Ltd. $736,56100 Saint John, N.B. 4) Debly Enterprises Ltd. $810,110.00 Saint John, N.B. The Engineer's estimate for the work was $565,51.0.00 ANALYSIS- The tenders were reviewed by staff and found to be formal in all respects. Staff are of the opinion that the lour tenderer has the necessary expertise and resources to perform the work. FINANCIAL IMPLICATIONS: This contract involves work that will be charged against the 2005 General Fund Capital Environment Budget. In addition to the contract work, $74,000 has been allocated for engineering services, to be provided by GEMTEC Limited, for 2005. These services include field inspection and project management services for Contract 2005 -22, as well as continued environmental monitoring of the site. Assuming award of the Contract to the lour tenderer, an analysis has been completed . which includes the work to be completed by the Contractor and the Engineering Consultant. The analysis concludes that a total amount of $600,000 was provided in the budgets and that the projected completion cost of the project is estimated to be $622,512.75 including the City's eligible HST rebate - -- a $22,512.75 negative difference in the General Fund Capital Program. M & C 2005 -367 December 1, 2005 Page 3 FINANCIAL IMPLICATIONS (Co t'd) This phase of the closure project is to be cost shared 50% with the Province of New Brunswick. Based on this cost sharing arrangement, the City and the Province would each share 50% of the projected shortfall. An analysis that was undertaken by staff concluded. that there is sufficient funding in the 2005 General Fund Capital envelope to cover the City's share of the shortfall. The Department of Environment and Local Government was contacted and it was indicated to staff that the Province would provide the additional funding required to cover their share of the shortfall. Written confirmation of the additional funding will be sent by the Department of the Environment and focal Government. It is recommended that Contract 2005 -22 Howes lake Landfill Closure — Phase H be awarded to the low tenderer, Gulf Operators Ltd., at their tendered price of $618,157.00, as calculated based upon estimated quantities, and further the Mayor and Common Clerk be authorized to execute the necessary contract documents. Respectfully submitted, J. . aul Groody, P.Eng. Commissioner, & Enghicering Terrence L. Totten, F.C.A.. City Manager REPORT T COMMON ;i M & C 2005 - 368 December 1, 2005 City of Saint John His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council, r s Upgrade Traffic Signals on Rothesay Avenue at Broadway Avenue Can November 21, 2005 Common Council referred a letter from Ritchie's Discount Warehouse (copy attached) to the City Manager for a recommendation regarding a request to cost share the cost of a new traffic signal at the proposed new driveway. Ritchie's Discount Warehouse is presently engaged in expanding its business premises. Some site work has been done and construction of a new building is planned for the spring of 2006. fart of the redevelopment of the site includes relocating their entrance to line up with Broadway Avenue. There is an existing set of pedestrian crossing signals at this location. Ritchie's letter requested "...the city contribute a reasonable share of the costs..." of upgrading of these signals, which are estimated to cost $45,000.00, to control access and egress from its site. ANALYSIS Rothesay Avenue is a very busy street and left turns onto and off of the street are sometimes difficult and dangerous at this location. Pedestrian actuated signals have existed at Broadway Avenue for many years but are seldom used. M & C 2005 -368 December 1, 2005 Page 2 ANALYSIS (Cont'd) Staff supports the installation of traffic signals at the entrance to large businesses generating high traffic volumes entering major streets. Ritchie's meets these criteria as does Rothesay Avenue. In most other developments, the developer has been responsible for the cost of the materials and the installation of concrete pole bases and underground conduit for new traffic lights. The City's contribution has been the labour and equipment to install the poles and hardware as well as the ongoing costs of operation. This installation is different in that the city has already determined traffic control signals would be beneficial. A set of pedestrian crossing lights already exists at this location. Staff feels it is appropriate to extend additional cost sharing for this set of traffic signals. Staff recommends that the work be done by Ritchie's under the supervision of city traffic technicians whose time will be recorded and counted as part of the City's contribution. Staff has discussed the cost sharing proposed in this report with Ritchie's. It is now their position verbally that the City must bear the entire cost of the installation, citing enhancement to safety on a City street. Staff would, not concur with this level of expenditure. . FINANCIAL IMPLICATIONS The estimated cost of the city's share is $22,500 which could be accommodated in the General Fund Operating Budget. It is recommended that Common Council authorize the cost sharing of the installation of traffic signals at the intersection of Rothesay Avenue and Broadway Avenue on a 50150 basis with Ritchie's Discount Warehouse Ltd. to a maximum of $22,500 only. /2 —Res c illy ubmitted, J. aul Cio6 'ayl P. En Commissioner, Municipal Operations & Engineering City Manager Mayor and Council City of Saint John Your Worship and Councillors, 715 ROTHESAY AVE, SAINT JOHN, N,B, E2H 2G9 Ritchie's Carpet Warehouse Ltd. located at 715 Rothesay Avenue, Saint John submit this letter for your consideration and assistance in the installation of traffic signals at the intersection of Rothesay Ave., Broadway Ave and the new entrance to our proposed development and expansion. (PID, # 55074355 & PID # 298232 ( lands adjacent 715 R--othesay Avenue ) . Ritchie's Carpet Warehouse has operated out of the current location for some 40 years. Increased volume and consistent growth has placed Ritchie's in the position to expand and renew its operations. In addition to the construction of a new 34,000 square foot retail warehouse facility scheduled for the spring of 2006 a renewed opportunity for the adjacent property is presented. This proposed development will create new significant employment opportunities for the City of Saint John. With the increased growth of the retail sector in East Saint John, Rothesay Avenue has seen an identified substancial increase in traffic volume. While the traffic counts have increased speed coming down off the highway has not been reduced. In recent discussions with Jim Baird MCIP (Commissioner of Planning ) and Burt Steeves P. En g. ( Manager of Urban and Traffic Services ) both are in agreement that traffic signals at the intersection of Rothesay Avenue and Broadway Avenue and the relocation of our entrance would be a positive response to the current situation and help to address all of our concerns for safety. In an effort to increase the safety of employees and customers Ritchie's have gone to considerable expense with this initiative through a site analysis and the relocation of our entrance directly across from Broadway Avenue. Mr. Baird and Mr. Steeves concur with our analysis and agree that the installation of traffic signals will achieve desirable results for vehicles entering and exiting, Glen Falls, the Ritchie development and indirectly St Ann's Church. Traffic signals in this location complement the neighbourhood and are consistent with good planning practice. To date Ritchie's have engaged the services of a traffic engineer (+/- $5000.00) (ADI Limited) upon the advice of city staff to design the intersection and specify equipment to City of Saint John standards. The entrance has been relocated to a location further west of the existing entrance and directly across from Broadway Avenue, a main thoroughfare to Glen Falls. Subsequent to the preparation of the design documents the equipment has been tendered and we are now in receipt of the tender submissions. (Total supply and installation costs including the underground are in the order of $45,000). We have been advised but have not yet confirmed the particulars of other agreements with the city supplying and installing similar equipment to assist other developments particularly on Rothesay Avenue and Westmorland Road . Considering these precedence Mr. Baird and Mr. Steeves have both suggested that we make application to council for consideration. Our purpose then in writing is threefold; To bring to your attention our concern for safety Our position that while we have shown our good will in preparing and paying for the design and tendering of equipment of the traffic signals, we are not prepared to finance completely what we see as a city responsibility. We respectfully request the city contribute a reasonable share of the costs, which we are prepared to discuss. Precedence has been set by the city paying for and installing traffic signals on initiatives of new business's (who have not contributed to our tax base for the last 40 years) competing in similar markets in areas where safety is less at risk. In closing we are available to meet with city staff to discuss this further. We would appreciate a timely response as we anticipate the relocation of our entrance completion this fall in preparation for an early spring start construction. Thank-you in advance for your consideration. Respectfully submitted, Daryl Ritchie President Ritchie's Carpet Warehouse REPORT TO COMMON C q a ? M & C 2005 -359 November 30, 2005 City of Saint lob. His 'Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Members of Council, Traffic Pattern Changes on Prince William Street The traffic pattern in the Market Square area has been dramatically changed with the conversion of Water Street to two -way traffic. Traffic signals which were located at the end of Prince William Street are now located at the intersection of Water Street, St. Patrick Street and Market Square. Part of the traffic changes to the area was elimination of the left torn from Prince William Street onto Market Square. Although not permitted, traffic continues to turn left and continue straight onto Chipman Mill. Most traffic has shifted to Water Street :from Prince William Street as motorists learn that this is the most convenient route to the north and west from the south peninsula. A sizeable volume of traffic still uses Prince William Street to King Street instead of diverting down Duke Street or Princess Street to access Water Street. The volume of that traffic is larger than we would expect to be generated by the buildings on Prince William Street between Princess Street and King Street. That traffic is still coming from Prince William Street south of Princess Street, including parents who drop off students at Saint John High School in the morning.. k M & C 2005 -359 November 30, 2005 Page 2 Alternative options should be considered to improve the existing situation and, perhaps, even to help create a better environment along this important heritage street. These include: Leave the historical traffic pattern unchanged. This is not the best solution since it does not clearly address the concern with vehicles attempting to turn left or moving onto Chipman Hill. 2. Reverse the flow of traffic on Prince William Street, to southbound only between Ding Street and Duke Street. The street would remain one -way northbound from Broad Street to Duke Street. This traffic pattern change would eliminate the potential for traffic to turn left onto Market Square or carry straight through to Chipman Hill thus reducing congestion at this busy intersection. It could also be seen as improving access to Prince William Street. Traffic would approach Duke Street from both directions and have the option of turning east or west. Reverse the flow of traffic on prince William Street to southbound only between Ding Street and Princess Street. This option, although similar to 2, has the disadvantage of not providing motorists with any options or access to the South Peninsula. Since Princess Street is one way west bound, motorists would have no option but to go to Water Street. Consideration could also be given to creating a pedestrian mall for part of some days during certain months of the year, including the cruise ship season. The details of such an idea would require involvement of stakeholders in the area. Traffic in the area has been periodically monitored by police. A significant number of violations have been observed. Staff proposes to initiate dialogue with Uptown Saint John and property/business owners in the area to evaluate the feasibility of changes to traffic movernents and other related ideas. Should there be a consensus that changes would be beneficial, staff would return to Council with appropriate recommendations. It is recommended that this report be received Respectf y ubmitted, J.Groody, P. Eng. Commissioner, Municipal Operations & Engineering City Manager 11he City of Salt Joist His Worship Mayor Norm McFarlane and Members of Common Council Your Worship and Councillors, Re: Location of Blue Bins in South End U. cu-.= There is currently one location for the blue bins in the South End of the City adjacent to the former Lantic Sugar refinery site. Council has received a number of letters and complaints about this location citing lack of accessibility, security and cleanliness as concerns. In additions, the recylcling volumes at this location are well below the anticipated tonnage. It costs the City $1.10/tonne to dispose of solid waste and there is no charge to dispose of recycled materials. The Fundy Region Solid Waste Commission (FRSWC) is responsible to find suitable sites for the location of recycling blue bins. There is no formal policy in this regard. The Commission has been unable to secure an acceptable site and consequently requested the assistance of the City of Saint John. Staff of the City, Saint John Parking Commission and FR.SWC have been working to try to identify potential locations that would serve the needs of the community. The purpose of this report is recommend a course of action in this regard. Analysis Properly sited blue bins will encourage community recycling efforts and help reduce the cost of solid waste disposal for the City. A suitable location will allow easy access for residents, result in minimal disruption to the neighbourhood, provide for safe access and egress for the FRSWC recycling tracks and allow for cleaning and maintenance on a regular basis. More than one location should be provided in order to allow for ready access to seniors, apartment dwellers and residents of the peninsula who may not have vehicles. It is also evident that regular clean-up and a reasonable separation from existing residences is preferred in order to minimize any potential negative impact. The FRSWC has confirmed that they have engaged a full time attendant to go to each site, each day, to clean up around the bins. The Commission will also install fencing or hedges as needed. The bins situated at the current location will be relocated by the FRSWC as required. Staff have identified a number of potential alternatives and they are listed in the order of preference. Location Advantages Issues Carmarthen Street Owned by Parking Requires support of the (opposite old Save Easy) Commission. Used primarily Parking Commission, Loss for snow bail parking. Central of +/-10 parking spots location with easy year round during 8-10 snow storms. access. Adjacent to other Adjacent to residential area commercial/institutional uses. and newly developed pocket Lost parking can be offset in park. Gravel surface. adjacent lot. Requires PAC approval. Waterloo St, Parking Owned by Matrix Properties, Requires pen-nission of (old General Hospital) Portions leased by Province of Matrix Properties and/or NB. Large asphalted parking Province of NB. Timely area. Easy year round access, cleaning essential. Serves area north of Union St. No residences in immediate area. Minimal cost. Sydney Street. (Parking City owned. Paved. Limited Trucks cannot turn on lot. area adjacent to Tennis use at present. Area can be Requires purchase of Courts.) fenced. Easy access for adjacent lot to create new residents in lower peninsula. driveway access to allow Minimal impact on nearby trucks to enter and exit neighbourhood. Does not safely ($). Timely cleaning affect Rainbow Park or essential, Requires PAC facilities. approval. Private lots on Brittain Central locations. Sites can be Privately owned. Most Street and Wentworth developed to meet operational costly to develop (Land Street. and neighbourhood needs. purchase and development) (fencing, driveways, elevations All sites adjacent to etc.) residential areas. Requires PAC approval. Longest time line to resolve. There is no perfect location for a recycling depot. Irrespective of the chosen location(s) it is inevitable that some concerns will be raised about the site, the impact on the neighbourhood or cleanliness. Likewise, use of any site for recycling will inevitably result in the loss of use of a residential lot, a parking lot or a commercial lot. This has to be weighed against the overall benefit to the community of an effective recycling program. A timely resolution to the location of the blue bins is in order. Establishing more than one location should provide ease of access and increase the volumes of recycled materials diverted from the landfill site. Purchasing and redeveloping private property is the most costly option and will take some time to finalize. The property under the control the Parking Commission (Carmarthen St.) can and should be established as blue bin location immediately. The property under the control of the City (Sydney St.) should be used if the adjacent lot(s) can be acquired to allow for safe access by the recycling trucks.. Use of these sites offers the advantages of easy access, timely development, low cost and minimal neighbourhood impact. This will however result in a limited reduction in available parking during snow bans, The cooperation of the Province of N-B and/or Matrix Properties should be sought for permission to use the Waterloo St. parking lot site. This will provide all residents of the peninsula with ready access to blue bins at three locations in relatively short order. The effectiveness of the daily clean -up efforts should be monitored to ensure that they are meeting community expectations. Likewise, the tonnage collected at these installations should be tracked to determine the benefits of diversion to the community. Should anyone of the identified sites not prove to be effective, then the option of purchasing one or more properties in a more advantageous location should be considered. Land Use Requirements Blue bin recycling depots are permitted in existing Business zones however, an application to the Planning Advisory Committee is required in Residential or Park zones. Recommendation That Common Council request the authorization of the Saint John Parking Commission to use the Carmarthen Street Parking lot (snow ban lot) to install a Blue Bin Recycling Depot, and That Common Council request the authorization of the Province of New Brunswick and/or Matrix Properties to use the Waterloo Street parking lot to install a Blue Bin Recycling Depot and, That Common Council authorize the use of the City owned parking area on Sydney Street, north of the tennis courts for a Blue Bin Recycling Depot if the required turnaround areas can be acquired ectfully submitted, atrick Woods CGA Deputy City Man/ager,., Torrence L. Totten FCA City Manager -A �\ City Solicitor's Office Bureau de i'avocat municipal www.saintjohn.ca December 2, 2005 Common Council of The City of Saint John Your Worship and Councillors: P.O. Box/C.P. 1971 Saint john, NB /N. -B. Canada B2L 4L1 Re: Governance — Common Council and The City of Saint Jahn Pension Act Council meeting in Committee of the Whole on November 25, 2005 resolved: "That at the next open meeting of Council the City Solicitor do a complete presentation on the response from Rust D'Eye, the lawyer that Council engaged to explain the responsibilities of the City versus the Pension hoard, with regard to the City's Pension Fund, including the report containing the questions to be asked of the lawyer. " In order to make a full presentation, it is necessary to provide a meaningful description of the circumstances which gave rise to the retaining of outside counsel in this matter. A convenient package of material in that regard which also includes the opinion letters received from Mr. Rust -D'Eye was presented to Council in Legal Session at its meeting of August 29, 2005 and I have attached that material with a new face page to this correspondence. A great deal of time and effort has been spent this year by senior officers of the City and by members of Council in an attempt to grapple with the topic of the role and responsibility of Council vis a vis the administration of the City of Saint John Pension Act. After many meetings with Council in Open and Legal Session and of the Committee of the Whole at which the topic was discussed, I submitted correspondence dated May 20, 2005 which was headed: "Outside Counsel" to the Committee of the Whole. In that correspondence I refer to the following taken from my correspondence dated April 8, 2005 to the Committee: ... / 2 Common Council Cite Solicitor December 2, 2005 Page 2 Re: Governance —Common Council and The City of Saint John Pension Act "It has been unclear to me what exactly is sought in the way of expert advice regarding the unfunded Pension Liability issue generally. However, it might be that advice which identifies a process to be followed by Council in this regard and which is confirmed to be respectful of all legal obligations the City has as sponsor of the plan would be helpful. If there were so, then with respect to legal advice of that nature I suggest that Council direct that the City Solicitor retain an expert for that purpose. " The May 20th correspondence continued: "It is apparent that Council is still experiencing significant di fficulty in determining how best to approach the unfunded actuarial liability of ' the Pension Fund .... I continued to believe that Council might well find it valuable to have a written opinion from outside legal counsel with pertinent expertise, as to whether in the current circumstances, Council should retain its own auditors, actuaries, lawyers, investment consultants or other advisers in dealing with the administration of the City of Saint John Pension Act Stated in more descriptive terms than I used in my April 8, 2005 letter, I would suggestfor your consideration the engaging of a lawyer with pertinent expertise to provide you with a written opinion identifying: i. whether council has any obligation with respect to the administration of the City of Saint .John Pension Act, and if so, the nature and extent of such obligation; ii. the standard to which Council would be held in meeting such obligation; iii, the means or process by which Council could assure fulfillment of any such obligation, recognizing the current circumstances of the Pension Fund, as well as providing whatever additional advice outside counsel believes would assist Council's understanding of any role it might have with respect to the administration of the City of Saint John Pension Act. " ... I3 Common Council City solicitor December 2, 2005 Page 3 Re: Governance —Common Council and The City of Saint John Pension Act The May 20, 2005 correspondence concluded: "I trust you appreciate that I am making this suggestion in a sincere attempt to assist Council's receiving the legal advice it needs in order to make an informed decision as to how best proceed in the current circumstances. " That letter was considered at the May 25, 2005 Council meeting at which time it was unanimously resolved to instruct the City Solicitor to engage outside counsel to address the subject canvassed by the questions set out in my May 20th correspondence. As a result of the latter resolution I retained Mr. George bust -D'Eye of the firm WeirFoulds LLP to provide the opinion sought. As I previously indicated, the package accompanying this correspondence provides the contextual backdrop to the opinions, including my letter of June 20, 2005 engaging Mr. Rust- D'Eye; his CV taken by the firm's website; correspondence of July 25, 2005 from myself to him seeking an expansion upon his opinion in two areas; his initial response of August 8, 2005 and his two opinions of August 11, 2005. The engagement letter of .tune 20, 2005 described at page 6 -7 the intended scope of the May 25, 2005 resolution in the following language: "The scope of the opinion we are seeking was deliberately cast in rather broad language in my letter of May 20, 2005 and addressed to Common Council: a written opinion identifying.- whether Council has any obligation with respect to the administration of the City nfSaint John Pension Act, and if so, the nature and extent of such obligation; ii, the standard to which Council would be held in meeting such obligation; ... /4 Common Council City Solicitor December 2, 2005 Page 4 Re: Governance —Common Council and The City of Saint John Pension Act iii. the means or process by which Council could assure fulfillment of any such obligation, recognizing the current circumstances of' the Pension Fund, as well as providing whatever additional advice outside counsel believes would assist Council's understanding of any role it might have with respect to the administration of the City of. Saint John Pension Act. " The phrase "_ with respect to the administration of the City of Saint John Pension Act" is used advisedly. The Act clearly rewires that the Pension Board administer that legislation, however, it also requires the Board to submit an annual report to Common Council. The question is therefore, whether or to what extent the Council must scrutinize the administration of the Act, using accountants, actuaries, lawyers and other advisors that it might retain directly. As well, it would be useful if you were to also identify what if any obligation Council has to pensioners and employees within the context of its considering possible plan design changes that would reduce the unfunded liabilities, which the City must satisfy — e.g. plan changes that would reduce benefits, increase contributions or some combination of those two. " My correspondence on July 25, 2005 to Mr. Rust -D'Eye asked for his expansion upon two areas dealt with by his opinion. They were described as: "A. (i) a treatment of whether Council's fiduciary duties extend to an examination of whether the Pension Board is meeting its fiduciary duties with respect to the administration of the City of Saint John Pension Act; (ii) and if so, how does it satisfy that duty? B. this item was an issue that was raised in my June 20, 2005 correspondence in the following language: ... 1 5 Common Council City Solicitor December 2, 2005 Page 5 Ile: Governance —Common Council and The City of5'aintJohn Pension Act "As well, it would be useful if you were to also identify what if any obligation Council has to pensioners and employees within the context of its considering possible plan design changes that would reduce the unfunded liabilities, which the City must satisfy — e.g. plan changes that would reduce benefits, increase contributions or some combination of those two. " On at least three occasions, the Council meeting of April 11, 2005, the Committee of the Whole Session of April 25, 2005 and the Council meeting of May 25, 2005, either Councillor Farren or Councillor Ferguson made reference to their having sought and obtained legal advice with respect to Council's role in relation to the actuarial unfunded liability situation. At the April 11tt' meeting, a transcript of a portion thereof contains the following; "Councillor Ferguson: Thank you your Worship. The Canadian Corporate Legal Counsel advice that we got told us simply (interruption — Who is this?) Canadian Corporate Legal Counsel, doesn't matter who it is, I don't have to disclose that information, all legal, actuary and audit must be third party okay clearly, with respect to this document, this document that is being presented on behalf of'the Pension Board, it hasn't gone to the audit committee, Council can be an audit committee I guess, but we have not had any independent discussions with the auditors that clearly states that in section 5.7.5.1 of the handbook of the CICA, the Canadian Institute for Chartered Accountants, that we should be discussing this independently, we've never done that, this Council, make no mistake about it, has a fiduciary responsibility, hands down, and because of that there's new standards and regulations that we must follow and before I say anything further, I strongly recommend that this Council go into closed, that item that is on the agenda for access for independent, disinterested and expert advice, 10.2.4(f) be presented for our debate upstairs and I would be gladly bring in some more information that is extremely important to this Council. If you don't want to go into closed then I suggest that that document be presented here and we'll do it right here, I have no problem doing that (interruption). " ... /6 Common Council City solicitor December 2, 2005 Page 6 Re: Governance —Common Council and The City of Saint John Pension Act It mystifies me why a member of Council would withhold from Council information he believed to be critically relevant to an understanding of Council's role. In any event, the terms of the opinion sought from Mr. Rust - D'Eye were sufficiently broad to fully capture the Council's role with respect to the administration of the Pension Act seeking: " whatever additional advice outside counsel believes would assist Council's understanding elf any role it might have with respect to the administration of'the City of Saint John Pension Act. " It is important to recognize that the Pension Act expressly provides that it is to be "administered" by the Pension Board and which administration extends to "establishing a pension fund and receiving payments into it; the payment clf, pensions authorized by the Act; the investment of money of the pension fund and interest thereon in accordance with the Pension Benefits Act; the employment of accountants, actuaries, lawyers, investment managers, investment consultants or any ether person providing advice or assistance to the Pension Board " And consequently, the language of the engagement letter sought advice with respect to Council's role relating to any activity just identified. Approximately ten weeks passed between Council's instructing my obtaining outside counsel's opinion in the terms set out in the May 25, 2005 resolution and receipt of that opinion. At no time during that period was there any suggestion brought to my attention by any member of Council of second thoughts respecting the unanimous decision to seek an opinion on the terms described. The opinions received from Mr. Rust -D'Eye as you appreciate, are of some length totaling approximately 60 pages and my paraphrasing them would be a disservice. However, I will highlight the most direct and succinct treatment of the questions posed, recalling that in the engagement letter of June 20, 2005 1 wrote: "The question is therefore, whether or to what extent the Council must scrutinize the administration of the Act, using accountants, actuaries, lawyers and other advisors that it might retain directly. " ... 17 Common Council City Solicitor December 2, 2005 'age 7 Re: Governance —Common Council and The City of Saint John Pension Act I will begin with the first issue identified in my letter to Mr. Rust -D'Eye of July 25`x' and upon which I sought expansion: (i) a treatment of whether Council's fiduciary duties extend to an examination of whether the Pension Board is meeting its fiduciary duties with respect to the administration of the City of Saint John Pension Act; (ii) and if so, how does it satisfy that duty? " He responded on August 8, 2005 as follows: "(1) with respect to whether or not the Council had a duty to examine whether or not the Pension .Board is meeting its fiduciary duties with respect to the administration of the City of Saint John Pension Act, I did believe that I had concluded that it did not, in view of my conclusions that: a) `the Council is not in a position of'administering the City of Saint John Pension Act, or the Pension Fund or Plan created thereunder, nor can the Council interfere with or exercise any of the roles of the Board of Trustees, which is given that statutory responsibility. ' (p. 19, para. 5) b) `The principal business of the Council with respect to the Pension Plan would involve mainly consideration as to how it may comply with requirements to fund any deficiencies, whether to borrow for the purpose, or whether to seek legislation to allow, for instance, the collection of higher contributions from employees. " (p. 20, para. 1) c) `In any event, it is not the responsibility or the jurisdiction of' the Common Council to direct or supervise the affairs of the Board of Trustees or the administration of the Pension Fund, but merely to ensure that the required contributions are collected from employees and to comply with requirements imposed upon the City under section 7 of the City of Saint John Pension Act. ' (p. 23, para. 1) d) `The sole and exclusive legal responsibility for the administration of the City gfSaint Jahn Pension Act is conferred upon the Pension Board by subsection 3(1) of the City of Saint John Pension Act.' (p. 30, penultimate paragraph) Common Council December 2, 2005 Re. Governance Common Council and The City of Saint John Pension Act City Solicitor Page 8 e) ` ... neither the City of Saint John or its Common Council has any direct obligation with respect to the administration of the City of Saint John Pension Act. ' (p. 31, para. 1) " In this regard he opined in greater detail in his August 11, 2005 correspondence headed. "Responsibilities of' the City Council in the Administration of the City of Saint John Pension Act "It is noted that section 17 of the Pension Benefits Act unposed upon the `administrator' of a pension plan obligations normally referred to as fiduciary duties. In this case, it is clear that it is the Pension Board of the City of Saint John Pension Plan, not the Common Council of the City of Saint John, which constitutes the `administrator' for the purposes of the Pension Benefits Act. Consequently, in view of the very limited powers and duties conferred and imposed upon the Common Council of the City relating to the Pension Fund, I have concluded that none of the City Corporation, the Common Council or members of the Common Council as individuals have imposed upon them, as such, fiduciary duties pertaining to the administration of the Pension Plan and Fund itself, whatever may be their duties otherwise as discussed below. While obviously the Mayor and the two designated members of Council who sit on the Pension Board are in the position of participating in decision - making normally referred to as the exercise of ' the powers of trustees, and involving fiduciary duties, otherwise, the relationship of the City administration to that of the City of Saint John Pension Act involves simply a contingent liability of the Corporation, similar to legal financial obligations relating to other facets of the City's operation, In other words, while the City has the power and duty to collect contributions from its employees, snake its own contributions, and forward such amounts to the Pension Board (involving, temporarily, the duty of a trustee with respect to its holding of funds to which the Board is entitled), and the legal duty to make up any shortfall in unfunded liability or experience deficiency or solvency deficiency, experienced by the Pension Fund, this does not, in itself, otherwise Common Council December 2, 2005 Re: Governance -- Common Council and The City of Saint John Pension Act City Solicitor Page 9 impose fiduciary duties upon the City Corporation or its Common Council. Similarly, while the Common Council may consider and debate whether or not to request the Province of New Brunswick to amend the legislation, or consider how the City itself' is to raise funds to cover an unfunded liability or deficiency, neither of these subjects of decision - making involves in itself the imposition of a fiduciary duty upon the members of the Council. " While the opinion expresses the view that Council has no fiduciary responsibilities with respect to the administration of the Pension Act, it does treat of the fact that " ... the courts have held that members of a municipal council may be subject to fiduciary duties, whether by reason of being characterized as `trustees' or `agents', or simply by reason of their position of trust vis a vis the inhabitants of the municipality and the public interest which they represent. " (page 12) and "to summarize my conclusion arising out of my review of'the case law — the members of a municipal council have a legal duty to act in the best interests of the inhabitants. " [p.6] He refers to the components of the foregoing principle as having been articulated by the courts in a variety of ways: "The so- called duty to act impartially ... is no more than the ordinary duty which the law imposes on a person who is entrusted with the exercise of a discretionary power: that he exercise that power for the purpose for which it is given giving proper consideration to matters which are relevant and excluding from consideration matters which are irrelevant. This settled rule [principle of equity] is, that he who is entrusted with the business of others cannot be allowed to make such business an object of interest to himself. " [p.13] He continues writing: "My review of case law dealing with the duties of members of municipal councils, including the decisions referred to above, results in my conclusion that the above principles (in additional to specific statutory responsibilities) impose upon every member of a municipal council by law the duty to: ... /10 Common Council December 2, 2005 Re: Governance —Common Council and The City of Saint John Pension Act City Solicitor 'age 10 + act honestly, in utmost good faith and in the interests of the inhabitants; $ exercise the care, diligence and .skill that a person of ordinary prudence would exercise when dealing with the property of another person; act reasonably for the purposes for which the municipality and the position of councillor were created; not act on the basis of private interest, bias, malice, bad faith, fraud, oppression or other improper motive; ® not place him or herself in a situation where the member's duty and personal interest may conflict; and avoid a situation creating a reasonable apprehension of bias, personal interest or improper influence, in voting upon a measure. " I understand his opinion in this regard to be that while Council has no fiduciary responsibility to retain lawyers, accountants, actuaries or other advisers directly to scrutinize the activity of the Board of Trustees, it must always be duly attentive to its disposition of public funds, In the latter case it would be Council's obligation to seep the advice necessary to permit it to identify and decide upon the appropriate course of action. The conclusions expressed by Mr. Rust -D'Eye with respect to the questions set out in the May 25, 2005 resolution and found in his August 11, 2005 correspondence headed: Administration of the City of Saint John Pension Act are set out below for ease of reference. .. /11 Common Council City Solicitor December 2, 2005 Page 11 Re: Governance —Common Council and The City of Saint John Pension Act "CONCLUSION It is my opinion that it is the Board of Trustees upon which is conferred by statute sole and exclusive responsibility for the administration of the City of Saint John Pension Act, including the Pension Plan and ,Pension Fund administered under that Act. It is my opinion that each of the City Solicitor, Commissioner of Finance, Common Clerk and City Manager of the City have complied with the requirements of section 910.5 of the Municipalities Act of New Brunswick through the filing, on each occasion referred to above, with the Common Clerk the Disclosure of Interest form, and accordingly, it is lawful, and specifically authorized by section 90.5 of the Act, for each of those officers and employees, acting within the scope of their employment, to provide to the Council advice on all matters relating to the City of Saint John Pension Plan and Pension Fund, to the same extent, as authorized by law, which they could have provided had the conflict of interest referred to in the Disclosure of Interest form not existed, provided that the Council, having knowledge of the conflict, requests such advice. It is further my opinion, for the reasons set out above, that the Council, by reason of the disclosure and compliance by the officers in question, has knowledge of such conflict, and is therefore in a legal position to make such request for such advice, if it decides to do so. It has, of course, at all times, the legal discretion to decide to seek advice from third parties having no connection with the Plan whatsoever. " Respectfully Submitted, John L. Nugent � City Solicitor City Solicitor's Office Bureau de I'avocat municipal P.O.Bom/C]P. 1971 Saint John, NB/N.-B. Canada E2L 4L1 / / `\ ' HIOMI, �11 w 0 Letter to Council from John Nugent Aug 23/05 .......... I 0 Curriculum Vitae — George H. Rust D'Eye 2 * Correspondence from John Nugent (1) Text of engagement letter June 20/05 ..................... 3 (2) Clarification letter July 25/05 ................................ 4 0 Correspondence from George Rust D'Eye (1) Letter of August 8105 .......................................... 5 Responding to July 25105 (2) Letter of August 11/05 ......................................... 6 Re administration of the City of Saint John Pension Act (3) Letter of August 11/05 ......................................... 7 Re responsibilities of the City Council and the administration of the City of Saint John Pension Act City Solicitor's Office Bureau de I'avocat municipal wwwsaintjohn.ca Section 10.2(4)(f) August 23, 2005 Common Council of The City of Saint John Your Worship and Councillors: P.O. Box/C.P. 1971 Saint John, NB/N.-B. Canada E2L 4LI Re: Governance — Common Council and the administration of The City Pension Plan Common Council at its meeting of May 25, 2005 authorized my retaining outside counsel to address the issue in question. After extensive effort spent identifying practitioners who might have the expertise required and following telephone interviews with several, it was my assessment that George Rust- D'Eye of WeirFoulds would be most suitable. The search was ' confined to those lawyers practicing in the Atlantic Provinces, Quebec or Ontario. Mr. Rust-D'Eye is well known in the profession as a specialist in the law relating to municipalities and a copy of his curriculum vitae taken from the firm's website is attached. The principle considerations in the selection process were extent of knowledge and experience in municipal and pension law, as well as cost. No one person was identified who possessed significant expertise in both areas. Mr. Rust- D'Eye's area of expertise is municipal law and in that context is appreciative of pension issues. He advised me that he had access to and would consult as needed, a colleague who specialized in pension matters. My engagement letter of June 20, 2005 to Mr. Rust-D'Eye, a copy of which is attached, set out the scope and focus of the opinion being sought, in the following language: ... /2 - '-V Common Council August 23, 2005 City Solicitor Page 2 Re: Governance — Common Council and the administration of the City Pension Plan "The scope of the opinion we are seeking was deliberately cast in rather broad language in my letter of May 24 2005 and addressed to Common Council: ... a written opinion identifying: i, whether Council has any obligation with respect to the administration of the City of Saint John Pension Act, and if so the nature and extent of such obligation; ii, the standard to which Council would be held in meeting . such obligation; HL the means or process by which Council could assure fulfillment of any such obligation, recognizing the current circumstances of the Pension Fund, as well as providing whatever additional advice outside counsel believes would assist Council's understanding of any role it might have with respect to the administration of the City of Saint John Pension Act.' The phrase "... with respect to the administration of the City of Saint John Pension Act" is used advisedly. The Act clearly requires that the Pension Board administer that legislation, however, it also requires the Board to submit an annual report to Common Council. The question is therefore, whether or to what extent the Council must scrutinize the administration of the Act, using accountants, actuaries, lawyers and other advisors that it might retain directly. As well, it would be useful if you were to also identify what if any obligation Council has to pensioners and employees within the context of its considering possible plan design changes that would reduce the unfunded liabilities, which the City must satisfy — e.g. plan changes that would reduce benefits, increase contributions or some combination of those two. .../3 - --t Common Council August 23, 2005 City Solicitor Page 3 Re: Governance — Common Council and the administration of the City Pension Plan There are two packages of correspondence accompanying this letter. .One comprises two items of correspondence from myself to Mr. Rust D'Eye and the second comprises three items of correspondence fr9in Mr. Rust D'Eye. They are briefly identified as foll?ws: 0 Correspondence from Nugent: (1) Engagement letter dated June 20, 2005; and (2) Letter dated July 25, 2005 seeking: A. (i) a treatment of whether Council's fiduciary duties extend to an examination of whether the Pension Board is meeting its fiduciary duties with respect to the administration of the City of Saint John Pension Act; (ii) and if so, how does it satisfy that duty? And: "... it would be useful if you were to also identify what if any obligation Council has to pensioners and employees within the context of its considering possible plan design changes that would reduce the unfunded liabilities, which the City must satisfy - e.g. plan.changes that would reduce benefits, increase contributions or some combination of those two. " a Correspondence from Rust D'Eye: (1) Letter dated August 8, 2005 responding to mine of July 25, 2005; (2) Letter dated August 11, 2005 headed: "Re: Administration of the City of Saint John Pension .Act "; and (3) Letter dated August 11, 2005 expanding upon the August 8, 2005 letter aforesaid and headed: "Re: Responsibilities of the City Council and the Administration of the City of Saint John Pension Act -/4 Common Council August 23, 2005 City Solicitor Page 4 Re: Governance — Common Council and the administration of the City Pension Plan The Opinions The responses to the three specific questions posed in the June 20, 2005 engagement letter are encapsulated at pages 31-33 of the August 11", correspondence headed: "Re: Administration of the City of.Saint John Pension Act ". The treatment of the two issues I raised in my July 25th correspondence is first dealt with in the August 8'11 letter and I would refer you to the first full paragraph on page 2 in particular. The August 11, 2005 correspondence headed: "Re: Responsibilities of the City Council -in the administration of the City of Saint John Pension Act" is a more expansive treatment of the topics dealt with in the August 8, 2.005 letter and a "conclusion" is found at page 24. Members of Council would be well advised to read the entirety of the accompanying opinions. A teleconference call with Mr. Rust D'Eye has been scheduled for 5:00 p.m. on Monday, August 29, 2005 in this regard. If any member of Council has questions or issues he wishes Mr. Rust D'Eye to address relating to the issue at hand, it would assist if you could provide me with them in order that I might forward them in advance. Respectfully Submitted, John(/-. Nugent City Solicitor Attachments 7 - 7 -Foulds. George H. Rust-DEye Palmer Tel'. 416-947-5080 Fax: 416-365-1876 Email: qrustdeye@weirfoulds.com Called to the Ba,,;: Ontario, 1971 B.A., University of Toronto, Toronto, Ontario (1964) LL.B. (Hons.), Osgoode Hall Law School, Toronto, Ontario (1969) LL.M., Osgoode Hall Law School, Toronto, Ontario (1983) Litigation Municipal Law Administrative Law Public Law Professional Activities and Affiliations Ontario Bar Association (former Chairman and Current Member of the Executive, Municipal Law Section) Canadian Bar Association (former Chair, Municipal Law Section) International Municipal Lawyers' Association (Member and Local Government Fellow) Practice Highlights George provides legal assistance to municipalities and other governmental irTstitutions, as well as private sector clients. His areas of expertise include municipal procedure, drafting by-laws, validity of by-laws, public-private partnerships, licensing, policing, freedom of information, employment law, elections, and adult entertainment. George is also a litigator who has argued many cases in all levels of courts and administrative tribunals. George has written many papers and articles in the areas of municipal law, including a significant body of material relating to licensing and regulation, heritage law and practice, conflict of interest, municipal contract and employment law, municipal liability issues, regional planning, and freedom of information. George is former Metropolitan Solicitor for Metropolitan Toronto; former Counsel to the Metropolitan Licensing Commission and the Metropolitan Board of Commissioners of Police; - 'I and former Chairman of the Toronto Historical Board. W. M F. TITO I LU 8 • • Designated as a Local Government Fellow (2002-2007) by the International Municipal Lawyers Association (IMLA) in recognition of demonstrated excellence in the field of Local Government Law, presented at IMLA's 67th Annual Conference held in Denver, Colorado, October 2002. Runnymede Development Corporation Limited v. 1201262 Ontario Inc. et of (2000), 47 O.R. (3d) 374 (S.C.J.). George H. Rust-D'Eye acted for an applicant for a building permit, in common interest with the Town/City of Pickering in an appeal from the granting of a building permit by the Town, and persuaded the Court that the proposed use did not contravene the applicable zoning by-law and the appeal was dismissed. At the end of the endorsement with respect to costs, in which our client received the highest level of costs sought, the judge commented as follows. "The issues were not straightforward and the time for the argument of the appeal was substantial. Both the written facturn and the oral argument of Mr. Rust-D'Eye were carefully and skilfully prepared, and both were of enormous assistance to the Court. The result achieved on the appeal reflects that effort." a Friends of Eden Mills Inc. v. Eramosa (Township) (1998), 47 M.P.L.R. (2d') 75 (Gen. Div.). George H. Rust-D'Eye acted for the Friends of Eden Mills Inc., a local group of residents who were trying to preserve a distinguished heritage landmark, namely, a bow-string bridge, which the Township was seeking to demolish. The case involved significant issues of planning law, heritage conservation legislation, municipal and provincial policies, and municipal powers generally. ® Moscoe v. Toronto (City), [1999] O.J. No. 3012 (Div. Ct.). George H. Rust-D'Eye acted on behalf of a member of the Council of the City of Toronto in a judicial review of a decision by the City Council to appoint two members to the Toronto Transit Commission, a local board of the City, for the purpose of bringing about a vote to remove Councillor Moscoe from his position as Chair of the Commission. The case raised significant issues of the relationship between two statutes, and also with issues_ involving the use of a confirmatory by- law to confirm the proceedings of a council meeting. - Toronto Taxi Alliance Inc. et al v. City of Toronto (2000), 49 O.R. (3d) 33 (Div. CQ. George H. Rust-D'Eye acted on behalf of the Toronto Taxicab Alliance in persuading a court to strike down a provision in the City of Toronto Taxicab Licensing By-law requiring individual owners of taxicabs to attend with their cabs at all annual inspections. The Court held that the provision violated the Canadian Charter of Rights and Freedoms with respect to equality of rights for the aged and handicapped. Treesann Management Inc. et al v. Corporation of the Town of Richmond Hill (1998), 41 O.R. (3d) 625 (Gen. Div.); (2000), 47 O.R. (3d) 221 (C. A.). George H. Rust-D'Eye acted for the Town of Richmond Hill in seeking to uphold the validity of its by-law for the licensing, regulating and government of adult entertainment parlours, and prosecuting the Town's own action to enforce its by- law. Although, in result, the appeal by the adult entertainment parlour owner was allowed, on the basis that the business was prohibited by the inter-reaction of the licensing and zoning by-laws, the case otherwise supported the position of the Town, and the issue with respect to zoning was remedied successfully a very short time after the case was issued. - Re Mel Lastman and the Queen in Right of Ontario, (S.C.J.). George H. Rust-D'Eye acted for the Mayor of Toronto in successfully obtaining an order declaring that he did not have a conflict of interest under the Municipal Conflict of Interest Act in respect of litigation involving the City and the Toronto Police Association, which had retained a law firm of which the Mayor's son is managing partner to act for it in the matter. - Jatine v. Mottson (1999), 43 O.R. (3d) 81 (Gen. Div.). George H. Rust-DEye acted for the Mayor of an Ontario municipality against whom an application had been brought under the Ontario Municipal Conflict of Interest Act. The Mayor, although he had committed a technical breach of the Act, was excused from any penalty on the basis that the contravention had been committed through error of judgment. 913719 Ontario Limited v. Mississauga (City) (1997),29 O.R. (3d) 655 (Gen. Div.); upheld by the Ontario Court of Appeal (1998), 47 M.P.L.R. (2d) 42; leave to appeal dismissed by the Supreme Court of Canada [1998] S.C.C.A. 494, February 11, 1999. George H. Rust-D'Eye acted for the City of-Mississauga in supporting its-adult videotape parlour by-law, which Mr. Rust-D'Eye had drafted for the City. The lower court upheld the by-law in its entirety, with the single exception of the amount of the licence fee. The Court of Appeal did not have to deal with that issue, but upheld the by-law in its entirety, an order from which the Supreme Court of Canada refused to give leave to appeal. Consortium Developments (Clearwater) Limited v. Sarnia (City) (1995), 23 O.R. (3d) 498 (Div. Ct.); (1996), 34 M.P.L.R. (2d) 291 (C.A.); [1998] 3 S.C.R. 3 (S.C.C.). George H. Rust-D'Eye acted on behalf of the City of Sarnia establishing a judicial inquiry into certain transactions involving a predecessor municipality to the City which has since become amalgamated. This was the second round of litigation between the same parties over the same issue, with the Divisional Court and the Court of Appeal having previously dealt with parallel issues. The City was successful throughout the more recent litigation, and the appeal by the developer was dismissed by the Supreme Court of Canada, with costs. The case raised many significant municipal law issues, including the nature of an amalgamated municipality, constitutional issues involving public inquiries, the relevance of statements made by members of municipal councils, and the form of a resolution establishing an inquiry under section 100 of the Ontario Municipal Act, among others. Erin Dancer Holdings Joint Venture (Trustee oo v. Richmond Hill (17own) (1998), 38 O.R. (3d) 452 (C.A-); application for leave to appeal to the Supreme Court of Canada dismissed with costs, January 7, 1999, [1998] S.C.C.A. 379. George H. Rust-DEye acted for the Town of Richmond Hill in its appeal of a decision by the Divisional Court providing for partial refund of building permit fees originally based on the anticipated cost of development, where an economic recession resulted in the actual cost of development being significantly lower. The Town's appeal was successful, and the Supreme Court of Canada refused the large number of developer applicants leave to appeal. Barrick Gold Corporation v. Ontario (Minister of Municipal Affairs and Housing), [2000] O.J. No. 4426 (C.A.). George H. Rust-D'Eye acted for the Township of Black River-Matheson in its appeal of a lower court decision holding invalid municipal by-laws and resolutions which had formed the basis for provincial restructuring of certain municipalities in northeastern Ontario. The case raised important issues of statutory interpretation and the test which municipalities must meet to have their legislation declared valid. Wingharn (Town) and County of Huron, et al, Ontario Court of Appeal Docket Nos. 034469, 034470, 034471, February 8, 2001, George Rust-D'Eye acted for the County of Huron in successfully responding to an appeal on behalf of some of the County's area municipalities seeking to enforce against the County a restructuring by-law through which the County would have assumed jurisdiction for the provision of police services throughout the County. In view of the fact that the by-law had not received the unconditional consent of a majority of the local municipalities representing a majority-of the populati-on, the by- law never came into effect and was therefore properly repealed by the County Council. -, Cole et al v. Corporation of the City of Hamilton (11999), 45 O.R. (3d) 235 (Gen. Div.). George H. Rust-D'Eye acted for the City of Hamilton in seeking an order that the City was not required to deliver its affidavit of documents pending its motion for summary judgment. a The Ontario Municipal Act: A User's Manual 2004, a book co-authored with Ophir Bar- Moshe, with assistance from editor Andrew James and published by Thomson Carswell, January, 2004 (634 pp.). "One Year Later: Ontario's New Municipal Act", an article prepared for publication in the April 2004 edition of Municipal World (Vol. 114, No. 4). "The Danger of Compromise of Interest in P3 Deals", an article prepared for publication in the January 2004 edition of Municipal World (Vol. 114, No. 1). "Bad Faith by the Administration - A New Municipal Tort?", an article prepared for publication in the January 2004 issue of Municipal Liabi* Risk Management (Vol. 5, No. 2). "A Good Sign for Municipalities", an article prepared for publication in the January 2004 issue of The Digest of Municipal & Planning Law. "Supreme Court of Canada Unanimously Upholds Municipal Powers over Billboards", an article prepared for the December 2003 WeirFoulds LLP Client Newsletter. • "Don't Get Done In Making A Deal"', an article prepared for publication in the October. 2002 edition of Municipal World (Vol, 112, No. 10). • "The Fight for Responsible Municipal Government - Stick That In Your Facturn!", an article prepared for publication in the May 2002 edition of Municipal World (Vol. 112, No. • Case Comment: Supreme Court of Canada Ruling in 114957 Canada Lt6e (Spraytech, Soci6i:6 d'arrosage) v. Hudson (Town), prepared for publication in Regulatory Boards and Administrative Law Litigation, a journal devoted to legal and procedural issues of administrative law, Volume IV, No. 2, 2001 (October). • "Brief Summary of the Proposed New Municipal Act", an article prepared for publication in the October 24, 2001 edition of the GTA Municipal News (Vol. 4, No. 42). • "The Walkerton Tragedy - A Canadian Municipal Nightmare", an article prepared for the July/August 2000 edition of Municipal Lawyer, a publication of the International Municipal Lawyers Association (IMLA). • "Cleaning Up Yonge Street - Municipal Regulation of Sexual Morality in Metropolitan Toronto, 1971-1983", a major paper for Master of Laws Course, Osgoode Hall Law School, York University, 1983 (unpublished). "Heritage Act: Working With The Act And How Proposed Amendments Could Affect Municipal Heritage Planning and Decision-Making", a paper prepared f& and presented at the 2004 AMO (Association of Municipalities of Ontario) Annual Conference, held in Ottawa, August 22-25, 2004. Presentation made at the workshop entitled Capitalizing on Cultural Spaces and Historic Places on August 24, 2004. Ontario Case Law Comment, prepared for presentation and distribution at the Municipal Law Section meeting at the 2004 Annual Conference of the Canadian Bar Association held in VVinnipeg, Manitoba, on August 16,-2004. Organized and co-chaired Municipal Law program of the Ontario Bar Association, Nasty Neighbours I]/: Return of the Feuding, held in Toronto, June 10, 2004. Also prepared and delivered a paper at this program entitled "New Nuances of Nasty Neighbours' Noises and Nuisances". This was the third program in the now continuing series of the original Nasty Neighbours I and // programs. "What Should - or Shouldn't - A Municipality Do When It Comes Across An Aboriginal Burial Ground?", a paper prepared for and presented at the 51 st Annual Conference of the Organization of Small Urban Municipalities (OSUM), held in Owen Sound, May 6, 2004. • "Our Built Heritage Is Becoming History - A 30-Year Retrospective: The Ontario Heritage Act, 1974", a paper prepared for and presented as part of the Municipal Program of the OBA 2004 institute of Continuing Litigation, held in Toronto, January 30, 2004, • Panel Moderator, "The Exercise of Municipal Powers", Ontario Bar Association program, Much Ado or Much to Do? The Impact of the Municipal Act, 2041, held in Toronto, December 12, 2003. • Speaker, "Municipal Act, 2001 - Innovative Approaches", Annual Southwestern Municipal Conference (hosted by the Southwestern Municipal Services Office of the Ministry of Municipal Affairs and the Association of Municipalities for Ontario (AMO), held in London, Ontario, December 5, 2003. • Speaker, "Future of Municipal Government and Legislative Impact on CAO and Council Relationships", 2003 Ontario Municipal Administrators' Association (OMAA) Fall Conference, held in Oakville, October 16, 2003. • Prepared Case Law Comment for presentation and distribution at the Canadian Department Meeting of the 68th Annual Conference of the International Municipal Lawyers Association (IMLA) held in Minneapolis, Minnesota, October 14, 2003. • Co-Chair, Canadian Institute Program: Creating Enforceable Municipal By-laws. Also gave presentation entitled "Winning Strategies for Justifying New Business Licensing By- laws", Toronto, October 2-3, 2003. • Conducted Walking Tour of Old Town Historic King-Jarvis area for lawyers employed by the Ministry of the Attorney General at the request of Heritage Toronto, October 1, 2003. • Panellist in ""Governance/Public Interest: Values and Ethics in Light of Changing Relationships" Session at IPAC (Institute of Public Administration of Canada) Toronto 2003 Conference, August 26, 2003. • "Enforcement of Municipal Adult Entertainment Parlour Legislation", a paper prepared for and presented at the Butterworth Seminar Series Municipal Enforcement Strategies, held in Toronto, May 20, 2003. • "Keeping Councillors on the Straight and Narrow - Statutory Provisions Governing the Conduct - and Protection - of Members of Municipal Councils under the Regime of the New Ontario Municipal Act", a paper prepared for and presented as part of the Municipal Program of the OBA Institute 2003, held in Toronto, March 20, 2003. • "Actions Against Municipalities and Municipal Liability Under the New Municipal Act", a paper prepared for and presented at the Canadian Institute's Provincia IlMunicipal Government Liability Conference, held in Toronto, February 20-21, 2003. • "The Dawn Breaks - Municipal Natural. Person Powers - What Happens-Now?", a paper prepared for a continuing legal education program of Insight Information Co., Ontario's New Municipal Laws and Regulations, held, in Toronto, January 27-28, 2003. In addition to presenting this paper at this Insight program, George Rust-D'Eye was also the Program Chair. • Speaker, "New Service Delivery Models - How the New Municipal Act May Provide Municipalities with Greater Latitude in Service Delivery", AMO Conference 2002, Toronto, August 20, 2002. • ... How Natural is it for Municipalities to Act Naturally?' - Issues Arising under Section 8 of Ontario's New Municipal Act", a paper prepared for the Annual Meeting of the Municipal Law Section of the Canadian Bar Association, held in London, Ontario, August 12, 2002. • "The Changing Status of Canadian Municipalities - To What Extent Do Legislatures Trust Them to Exercise Properly their "Natural Person Powers'?", a paper prepared for the - .1 Local Government Fellows Examination of the International Municipal Lawyers Association, June 26, 2002. "Update of Developments in Municipal Law in Ontario", a presentation to the Area Solicitors' Meeting, held in Sudbury, June 21, 2002. Also prepared and distributed A Rough and Ready Index to the New Municipal Act at the meeting. ...May We Have Some More?'- Powers Given to Municipalities by the New Municipal Act", a paper prepared for and presented at Canadian Institute Conference, Ontario's New Municipal Act, held in Toronto, June 10-11, 2002. George Rust-D'Eye also chaired this conference. "Freedom of Information and Your Law Practice: Getting Information from Municipal Institutions", a paper prepared for and presented at a probram of the Ontario Bar Association, Open Government.- Freedom of Information Law in Ontario, held in Toronto, May 10, 2002. George Rust-D'Eye' also co-chaired this conference. • Participant in the Minister's Forum (Panel Discussion) on the New Municipal Act, at the 2002 OSUM Conference, held in Port Elgin, May 3, 2002. • "Section 8 of Ontario's New Municipal Act - Entering the Magical World of Natural Persons", Insight Conference, Ontario's New Municipal Act, Toronto, Ontario, April 11- 12,2002. • "A Guide to the New Municipal Act", presented to the Municipal Solicitors of York Region, Richmond Hill, January 11, 2002, • "Ten Cases that Shook the (Municipal) World", Local and Area Solicitor's Meeting, Richmond Hill, November 9, 2001. • "Properties of Water", a paper delivered at OBA programme, Real Estate and the Waterfront, Toronto, October 1, 2001. • "An Update on Canadian Jurisprudence with Respect to the Municipal Licensing and Regulation of Adult Entertainment" ', a paper prepared and delivered at the 66th Annual Conference of the International Municipal Lawyers Association (IMLA), held in New Orleans, Louisiana, September 9-12, 2001. • "Heads Up - The Potential for Personal Liability of Municipal Councillors", a paper prepared and delivered at the 2001 AMO Annual Conference, held in Toronto, August 19-22, 2001. • "Defining the Canadian Municipality: Eight Cases that Shook the (Municipal) World", a paper prepared and delivered as a Continuing Legal Education Program of the National Municipal Section of the Canadian Bar Association, held in Saskatoon, Saskatchewan, August 12, 2001. • "Re, Pacific National Investments Limited v. Victoria (City)", a paper prepared and delivered at CBAO Continuing Legal Education Conference: At the Heart of Contract Law, held in Toronto, May 15, 2001, • "Saving the Best for Last: The Municipal Role in Protecting Its Heritage", a speech delivered at the Annual Conference of the Ontario Small Urban Municipalities (OSUM), held at Stratford, Ontario, May 4, 2001. • "Riding the Needle of the Moral Compass - The Role of the Municipal Corporate Lawyer in Advising as to Matters of Ethics", a paper prepared for and delivered at the 2001 Spring Conference of The Canadian Corporate Counsel Association, held at Ocean Pointe Resort, Victoria, British Columbia, April 24, 2001. • Organized and co-chaired CBA-O programme, Nasty Neighbours 11, and also prepared and delivered a paper entitled "Nuances of Nasty Neighbours' Noises and Nuisances", Toronto, May 5, 2000. • "The Greater Toronto Services Board - A Framework for the Future: The Creation of the Greater Toronto Services Board", a paper prepared for a Special Forum on the Greater Toronto Services Board and presented by Weir & Foulds' Municipal & Planning Law Practice Group, Black Creek Pioneer Village, February 2, 2000. "Same-Sex Families in the Municipal Context: Urban Politics meet Urbane Morality", a paper prepared by George H. Rust-DEye and Terry D. Hancock and delivered by George H. Rust-D'Eye at a seminar of the Canadian Bar Association, Workplace Human Rights Issues, August 25, 1998, at the Canadian Bar Association Annual Conference, St. John's, Newfoundland. "Toronto - The Traumatic Birth of a MegaCity - Post-Partum Depression", a paper prepared by George H. Rust-D'Eye for a seminar presented by the Canadian Bar Association, National Municipal Section, at its Annual Business Meeting, St. John's, Newfoundland, August, 1998. • "Municipal Liability for Negligent Inspection of Construction The Canadian Experience", a paper prepared for the Annual Conference of the International Municipal Lawyers' Association, Phoenix, Arizona, November 16-19, 1997. • "Recent Developments in Municipal Employment Law", a paper prepared for Legislative Update Seminar put on by the members of the Weir & Foulds' Municipal, Environmental and Public Law Practice Group, October 30, 1996. • "Come the Revolution - Municipal Restructuring in Ontario 1995-96", prepared for the National Municipal Law Section of the Canadian Bar Association - Annual Meeting, Vancouver, Monday, August 26, 1996. • "'When Municipal Zoning Powers are Brought to Bare, The Power of Ontario Municipalities to deal with "Adult Entertainment" as a Use of Land", written for the September/October, 1996, edition of Municipal Lawyer on behalf of the Land Development, Planning and Zoning Section, International Municipal Lawyers Association. • "What the Omnibus Bill Means to You", a paper prepared for Restructuring Municipal Service Delivery, Strategies to Manage in the New Environment, a programme of INFONEX Conferences, March 26-28, 1996. • "Licentiousness and Municipal Licensing - How Far Will it Go?", a paper prepared for the Canadian Bar Association, Annual Institute Programme: City Smarts: Current Issues in Municipal Law, Toronto, January 25, 1996. • Organized and Chaired Panel-, "The Role of Municipalities in the GTA - Present and Future", composed of Chairman Allan Tonks, Mayor Barbara Hall and Gardner Church, a programme of the Canadian Bar Association - Ontario, Municipal Law Section, June 7, 1995. • Speech to the Law Clerks of the Ontario Court of Appeal on October 13, 1994, on the subject of "What it is like to be a Municipal Solicitor". • "Councillor, Counsellor, and Getting Things-Done, Legal Consideration Affecting the Role of the Municipal Councillor and Municipal Procedures", a paper prepared for Counsel to Candidate: Getting - and Staying - on a Municipal Council or School Board, a programme of the Canadian Bar Association - Ontario, Continuing Legal Education, May 6, 1994. • "Municipal Conflict Law in Transition - The Ontario Experience", a paper prepared for the National Institute of Municipal Law Officers {NIMLO), 58th Annual Conference, Nashville, Tennessee, U.S.A., September 19-22, 1993. • "So You Want to be a Municipal Solicitor?, Professional, Ethical and Other Issues and Problems Facing the Municipal Legal Advisor", a paper prepared for the National Institute of Municipal Law Officers (NIMLO), 58th Annual Conference, Nashville, Tennessee, U.S.A., September 19-22, 1993. • "When the Municipal Council is Seized (Municipal Bodies as Tribunals)", a paper prepared for the Canadian Bar Association - Ontario 1993 Institute Programme: Civic Savvy: Every Lawyer's Guide to Getting What You Want From Municipalities, January 29, 1993. • "The OMB - The Handy All-Purpose Board, The Status, Function and Future of the Ontario Municipal Board", prepared for a programme of the Canadian Institute: Winning at the Ontario Municipal Board - New Directions in Advocacy and Procedure, June 9, 1992. • "Procedures for Meetings of Municipal Councils", a paper prepared for a programme of The Canadian Institute: Municipal Law in the 90's, The Essential Update, May 8, 1992. • "New Planning - New Interests - The Sewell Commission Approach to Implementing Provincial Intent", a paper prepared for., Provincial lntere�ts and Land-Use Planning, a programme of Insight Educational Pervices, April 7, 1992. • "Municipal Powers and Responsibilities for Protecting the Environment", prepared for a programme of the Canadian Institute entitled The Greening of Land Use Planning, February 18-19, 1992. • "Municipalities as Parties to Legal Proceedings", a paper prepared for the Canadian Bar Association, 1992 Institute of Continuing Legal Education: Problems and Pitfalls with Parties, January 31, 1992, • "Nasty Neighbours' Noise and Nuisances", prepared for Nasty Neighbours, a programme of the Canadian Bar Association - Ontario, 1992 Institute Programme, January 31, 1992. • "Where to Next...? - Recourse from Decisions of Administrative Tribunals", a paper prepared for a Seminar of the Canadian Bar Association - Ontario, Continuing Legal Education: Administrative Law for the Non-Specialist: Taking a Walking Along the Boardwalk, October 7, 1991, by George H. Rust-D'Eye and Gary Yaffe. • "To Serve and Protect - The Duty of Police Officers to Protect Citizens from Acts of Third Parties", a paper prepared for the Canadian Institute for the Administration of Justice Conference, The Police, The Community and the Administration of Justice, Calgary, Alberta, August 22-23, 1991, • "Planning for Sustainability - Towards Integrating Environmental Protection into Land- Use Planning", a discussion paper prepared for the Royal Commission on the Future of the Toronto Waterfront with Ronald L. Doering, Donald M. Biback, Paul Muldoon and Nigel H. Richardson, June 1991. "Hanging Out to Dry - Personal Liability of Municipal Members of Council, Officers and Employees", prepared for a conference of The Canadian Institute: Municipal Law in the 90's - The Essential Update, June 10-11, 1991. • "Water Power - A Summary of Legal Principles Relating to Constitutional Division of Powers, Proprietary Rights and Municipal Jurisdiction Over Land Covered by Water or Ice", prepared for a seminar of the Canadian Bar Association, Ontario.- Real Estate on the Waterfront, February 22, 1991. • "Who's in Charge? An Update on Inter-Regional Planning in the Greater Toronto Area", prepared for the Canadian Institute Seminar on Planning Law - A Critical Update, February 4, 1991. • "Policy Implications: The Education Development Charge - How to Determine Education Development Charges", prepared for the seminar of the Canadian Institute: Development Charges - Implementing, Challenging and Defending Development Charges and Front End Agreements, presented on October 19, 1990 (with Marilyn L. Sparrow). • "Drafting Municipal Legislation - A Weird Science", Programme on Legal Drafting Sponsored by the Canadian Institute for the Administration of Justice, Ottawa, November 17, 1989. • "Access to Municipal Government - Freedom of Information, Protection of Privacy and the Right to Attend Meetings", Canadian Bar Association Continuing Legal Education Programme: Recent Developments in Municipal Law - Creatures of the Province: What Are They Up To Now?, October 2, 1989. • "The Shift Toward Inter - regional Planning: Now VVill it Affect the Development Industry?" 4th Annual Canadian Institute Conference on Land Development, September 25, 1989. • Tiers Are Not Enough, "The Exercise of Upper-Tier Planning Responsibilities in the Greater Toronto Area", Insight Programme, March 30, 1989, • "An Unpleasurable Experience - The Power to Dismiss a Municipal Officer", Canadian Bar Association Continuing Legal Education Programme: Working City Hall: Current Issues in Municipal Employment, March 11, 1988. • "Saving the Best to Last - The Legislative Framework for Preserving Man-made Heritage", Insight Programme, December 3, 1987. - --t City Solicitor's office Bureau de Vavocat municipal -,vw,,v.saintjohn.ca June 20, 2005 WeirFoulds Barristers and Solicitors Suite 1600 130 King Street West Toronto, Ontario M5X IJ5 P.O. Box/C.P. 1971 Saint John, NB/N.-B. Canada E2L 4L1 John L. Nugent Direct Line: 506.658.4098 Fax No.: 506.649.7939 Attention: George H. Rust-D'Eye Dear Sir: Re- Opinion to The City of Saint John This is written further to our telephone conversations and for the purpose of identifying and outlining generally the factual and statutory background against which your opinion is sought and also providing a brief articulation of the most prominent issues required to be addressed by your opinion. In the course of your research you may identify additional and pertinent facts or legislation. It will also confirm the time line for delivery. Common Law and Statutory Context The City of Saint John is a common law corporation which was created by Royal Charter and subsequently confirmed by Provincial statute. The Municipalities Act, Chapter M-22, R.S.N.B. 1973, is the main Provincial legislation goveming municipal government-in this Province. That legislation 0 provides amongst other things that in the event of an inconsistency or conflict between that Act and a charter or private act, the former prevails (Section 13). That is not an issue in the present context, I believe. The City of Saint John Pension Act is private legislation enacted in 1994, Chapter 112 S.N.B. 1994 (an office consolidation of that legislation is enclosed). The Pension Act establishes a Board of Trustees (s. 2(1)). The Board is comprised of twelve members-, the Mayor and 2 Council Members , —/2 - '-t George Rust-D'Eye June 20, 2005 Page 2 Re: opinion to The City of Saint John (Mayor McFarlane, Councillors Tait and Titus); the persons holdinj 'the positions of City Manager, Commissioner of Finance and Common Clerk; one person selected from each of the four civic unions; one selected by the non- union management group of employees; and one chosen by the Retirees Association. Subsection 3(1) states-, "This Act shall be administered by the Pension Board .... ", and goes on to identify their powers and duties as including the establishment of a Pension Fund and the receiving of contributions to it, the paying of pensions, the investment of money in the funds, etc. Section 6 and 7 of the Act deal with contributions and require that they be made by both the employer and by employees. Section 7(1) stipulates that in the event of" _ any unfunded liability or experience4 deficiency .... " or " ... any solvency deficiency ... " the City shall contribute additional amounts as are required to amortize those shortfalls over an identified length of time. The most recent actuarial evaluation of the Fund was as of December 31, 2003 and completed as of January 31, 2005. It revealed unfunded actuarial liabilities of approximately S43 million on a going concern basis, and approximately $93 ) million on a solvency basis. The Pension Benefits Act (R.S.N.B. 1973, c. P-5.1) is the primary legislation dealing with pensions in this Province. Factual BackZround At my request the Common Clerk's Office has provided a copy of each pension related item considered by either Common Council or the Committee of the Whole of Council during 2005, as well as the supporting excerpt from meeting minutes. When, therefore, reference is made in this synopsis to an item, a copy accompanies this material. Municipal elections were held in May of 2004 in New Brunswick. The briefing of the new Council included information with respect to the pension funding issue. While the official actuarial valuation was not completed until earlier this year, it was well recognized by mid 2002 that this would likely be a problem. .. / 31 George Rust-D'Eye June 20, 2005 Page 3 C� Re: Opinion to The City of Saint John In October of 2004 and in recognition of my membership in the pension.plan and the possibility that the City might seek changes to the Pension Plan design in order to address the funding issue, I filed a Declaration/of Interest pursuant to the terms of the Municipalities Act. At my suggestion the other "senior appointed officers" who sit on the Pension Board did the same. The Council resolved to acknowledge our Declarations of Interest and to seek our advice in pension matters, notwithstanding the declared conflict. That arrangement is expressly provided for in s. 90.8(1.1) of the Municipalities Act. In my correspondence of October 29, 2004, advising Council of my declaration, I suggested that Council discuss with any senior officer the matter of seekinc, his advice in the face of a declared conflict. In my discussions with Council in this regard, I have referred to the possibility that such an officer might find a topic "cuts too close to the bone" to provide advice, notwithstanding Council's request that he do so. During 2005 there have been a number of times when the issue of the unfunded liability has arisen, either at Council or at a meeting of the Committee of the Whole of Council. The following is a synopsis: Councillor Ferguson, by correspondence that is dated in handwriting January 12, 2005, posed a number of questions for the Pension Board. That item was considered at the Council Meeting of January 17, 2005. 1 1 am also enclosing a copy of material titled "20 Questions" prepared by the CICA, which Councillor Ferguson had provided to me as a result of earlier discussions. 0 The last mentioned pension correspondence resulted in a report dated January 31, 2005 signed by the Commissioner of Finance and the-eity a and addressed to Council. It was considered at the January 31, 2005 Council Meeting. The latter in turn elicited correspondence dated February 24, 2005 to Common Council from Councillor Ferguson and which was considered F at the February 28, 2005 Council Meeting. George Rust-D'Eye June 20, 2005 Page 4 .1 Re: Opinion to The City of Saint John At the Council Meetings of March 14 and March 29, 2005, Counq'illor Farren placed one pension related item on the agenda for the earlier meetinc, and two such items on the agenda for the March 29h meeting. The Committee of the Whole Meeting held on March 29, 2005 received a report dated March 24 from myself dealing with the Municipality's authority to issue Pension Obligation Bonds in connection with satisfying the unfunded liability. At the Common Council Meeting held on March 29, 2005, there was before the Council a report from the City Manager titled "Options to Fund the Pension Deficit". The latter included background material consisting of an actuarial valuation as of December 31, 2003 prepared as of January 31, 2005; an exchange of correspondence dated November 12, 2004 and January 24, 2005 between the City Manager and Morneau Sobeco who also provide actuarial services to the Pension Board, respecting, the elimination of the Pension Plan deficit; a document prepared by the Canadian General Accountants Association titled "Addressing the Pension Dilemma in Canada"; and previous reports to Council concerning the issue dating from mid 2002 until December 20, 2004. 0 The Pension Board under covering letter of April 11, 2005 submitted its 2004 Annual Report to Common Council which was considered at the meeting of the same day. Also on that date, the Council considered correspondence dated April 8, 2005 from myself entitled "Access to Independent Disinterested and Expert Advice". The latter correspondence arose in response to remarks made by some Council Members at the March 29, 2005 Meeting. Enclosed is a transcript prepared by the Common Clerk's office of a portion of the April 11, 2005 meeting, as well as an item from the CICA handbook and a copy of a local newspaper article, referred-to in the transcript. 0 The City Manager's Report "'Option to Fund Pension Deficit" dated 7' March 18, 2005" and which had been tabled at the Council Meeting of March 29, 2005, was lifted from the table and tabled once again at the April 25, 2005 Common Council Meeting. ..15 George Rust -D' ye June 20, 2005 Page 5 Re: Opinion to The City of Saint John Correspondence dated April 20, 2005 from Councillor Ferguson. was placed upon the agenda for the Council Meeting of April 25, 2005. It C� recommended: " ... seeking outside, independeni, third party legal advice as it relates to the bty of Saint John Employees Pension Plan, specifically to the significant unfunded liability ... .. A Legal Session of Common Council was held as well on April 25, 2005 at which time my correspondence dated April 22, 2005 and addressed to Council was considered. The latter stated that it had become clear to me as a result of the comments made at the April 11, 2005 Meeting of Common Council, that Councillor Ferguson was concerned with alleged misconduct by the Pension Board and by Senior Appointed Officers of the Municipality, including myself, who serve as Board Members. My letter outlined the significance of those accusations. Council Meeting on May 18, 2005 received correspondence dated May 5, 2005 from Councillor Ferguson reading: "Subject: Update Related to Pension Matters. Sincerely Councillor Ferguson ". A point of order was raised based on the requirements set out in the Procedural By-Law that a Member must submit background information in order for a matter to be considered by the group. Consequently, the Mayor asked Councillor Ferguson to provide background information and to place the matter on the subsequent agenda of Council. 0 Committee of the Whole Meeting on May 24, 2005 considered my correspondence dated May 20, 2005 in which I reviewed my having filed earlier in the month a Declaration of Interest based upon my serving as a Pension Trustee (as opposed to my earlier Declaration based upon my plan membership) and suggested Council's retaining outside legal counsel to provide advice — writing: "I continue to believe that Council might well find it valuable to have a written opinion from outside legal counsel with pertinent expertise, as to whether in the current circumstances, Council should retain its own auditors, actuaries, lawyers, investment consultants or other advisors in dealing with the administration of the City of Saint John Pension Act. " Common Council Meeting the next day, May 25, 2005 directed that I retain outside counsel in this regard. George Rust-D'Eye June 20, 2005 Page 6 Re: Opinion to The City of Saint John Also at the May 25, 2005 Meeting of Common Council, correspondence was received from Councillor Tait recommending that Council acknowledge the Declaration of Interests filed earlier in the month by myself, the City Manager, the Commissioner of Finance and the Common Clerk and request " ... such advice as each might provide with respect to the administration of the City of Saint John Pension Act. " That motion was adopted. Additional correspondence from Councillor Tait dated May 24, 2005 and dealt with at the May 25, 2005 Meeting of Council, sought to have the City Solicitor examine the matter of possible conflict on the part of himself, the Mayor and Councillor Titus, each of whom serves on the Board of Trustees, respecting the City's discussing and determining how to address the unfunded liability of the Pension Plan. By correspondence of May 24, 2005, Councillor Ferguson wrote'. "We have been told quite forcefully by legal expertise, that we as Common Council must have independent advice in order to substantially meet our responsibilities to the taxpayers of the City of Saint John and to the members of the City of Saint John Pension Plan. These questions require review and oversight from independent specialists. " The motion arising from this correspondence was lost. 4= Most recently, the Committee meeting on June 7, 2005, received two items of correspondence; one from Councillor Titus suggesting that the City Manager investigate the possibility of tendering a Letter of Credit in satisfaction of the requirement to eliminate the unfunded liability; and a letter from the Common Clerk as Secretary of the Pension Board advising Council that the City's contributions to the Fund are in arrears (respecting unfunded liabilities) and that arrangements must be made to attend to this default. Advice Requested The scope of the opinion we are seeking was deliberately cast, in rather broad language in my letter of May 20, 2005 and addressed to Common Council: ... /7 George Rust-D'Eye June 20, 2005 a 7 Re: Opinion to The City of Saint John " ... a written opinion identifying: i. whether Council has any obligation 4ith respect to the adm in istrationlof the City of Saint John Pension Act, and if so, the nature and extent of such obligation; ii. the standard to which Council would be held in meeting such obligation; iii. the means or process by which Council could assure fiilfllment of any such obligation, recognizing the current circumstances of the Pension Fund, as well as providing whatever additional advice outside counsel believes would assist Council's understanding of any role it might have with respect to the administration of the City of Saint John Pension Act. The phrase "... with respect to the administration of the City of Saint John Pension Act" is used advisedly. The Act clearly requires that the Pension Board administer that legislation, however, it also requires the Board to submit an annual report to Common Council. The question is therefore, whether or to what extent the Council must scrutinize the administration of the Act, using accountants, actuaries, lawyers and other advisors that it might retain directly. As well, it would be useful if you were to also identify what if any obligation Council has to pensioners and employees within the context of its considering possible plan design changes that would reduce the unfunded liabilities, which the City must satisfy — e.g. plan changes that would reduce benefits, increase contributions or some combination of those two. As we discussed, it would be anticipated that this opinion would be delivered within three weeks. It can be also anticipated that a conference call with Council will be held in connection with your opinion. ... /8 George Rust-D'Eye June 20, 2005 Pave 8 Re. Opinion to The City of Saint John When you have had an opportunity to assimilate this correspondence and the accompanying material, would you please contact me to confirm whether there are any questions you might have with respect to the terms of this engagement. As I mentioned, I expect to be on vacation commencing Thursda June 23rI for three weeks, and if necessary you may reach me at Yours truly, L John . Nugent City Solicitor Enclosures City Solicitor's Office Bureau de Pavocat municipal mvw.sainqohn.ca SENT BY FAX TO: 416-365-1876 July 25, 2005 WeirFoulds Barristers and Solicitors Suite 1600 130 Kino, Street West Toronto, Ontario M5X 1 J P.O. Box/C.F. 1971 Saint John, NBIN.-B. Canada E2L 4LI John L. Nugent Direct Line: 506,658.4099 Far No.: 306.649.7939 Attention: George H. Rust-D'Eye Dear Sir: Re: Opinion to The City of Saint John As noted in our telephone conversation this morning, we have received your 0 opinion letter in this matter and upon my return from vacation I have an opportunity to read it. Thank you for its timely delivery. As we discussed this morning, there are two areas upon which expansion would be valuable for Council, I believe. Those areas are- A. (i) a treatment of whether 'Council's fiduciary duties extend to an examination of whether the Pension Board is meeting its fiduciary duties with respect to the administration of the City of Saint John Pension Act; (ii) -and if so, how does it satisfy that duty? George Rust-D'Eye June 20, 2005 Page 2 Re: Opinion to The City of Saint John B. this item was an issue that was raised in my June 20, 2005 correspondence in the following language: "As well, it would be yeful if You were to also identify what if any obligation Council has io pensioners and employees within the context of its considering possible plan design changes that would reduce the unfunded liabilities, which the City must satisfy — e.g. plan changes that would reduce benefits, increase contributions or some combination of those two. " Additionally, there are the following items which I would bring to your attention: (page references are to your opinion letter) 1. Page - 18 — lines 2 and 3 of the last paragraph refer to and a senior. employee You may wish to review Section 2(2) of the City's Pension Act in this respect; 2. Page 24 — speaking of the City you write "It has most, but not all, of the powers of a corporate 'natural person' .... " I did not describe the City's status fully in my June 20, 2005 correspondence to you, but the Courts in New Brunswick have confirmed that as a common law corporation the City in fact has all the rights, privileges and powers of a natural person except those which the corporation's intangibility precludes; . 3 I Page 29 — paragraph ) states that there are no "rational grounds" precluding the Council from determining that it would not accept advice from its senior officers in the current situation. Paragraph 4 on that page seems to state that even if, in the currant circumstances, its senior officers in fact had a conflict of interest it would not be rat—ional to conclude that such officers would be incapable of providing "expert and objective advice to the City An elaboration of those two positions would be helpful. ... r3 - -I George Rust-D' ' Eye June 20, 2.005 Page 3 Re: Opinion to The City of Saint John As we had discussed today and previously, one of the aims of an opinion in this matter is to treat the City's obligations respecting the administration'of the Pension Plan (using that notion in the large sense) in a manner that will provide practical guidance to the Council. Accordingly, if there are any questions in that regard please contact me. You had indicated that you would proceed presently with this work and I would ask if you could confirm that it would be available in the latter part of the week of August 7ffi so that it can be presented to Council at its meeting scheduled for August 15"'. C; Yours truly, i qnn L. Nugent CIty Solicitor WeirFoulds LLP George H. Rust -D Eye E-mail grundeye@weirfoulds.— Direct Line 415.947,5080 File 11400.00001 VIA FACSEMLE 8/8/2005 3:08 PAGE 002/004 Fax Server Weir FOUldSLLI BARRI67ER8 A 0041CITOR8 August 8, 2005 City of Saint John 15 Market Square P.O. Box 1971, Stn, Main Saint John, NB E2L 4L1 Attention: John L. Nugent City Solicitor Dear Mr. Nugent: Re: Administration of the City of Saint John Pension Act In response to your letter of July 25, 2005, and our telephone conversation on the same date, this is to confirm that I will be pleased to provide a new opinion letter expanding on the issues referred to in your latter communication. With particular reference to the points raised in your letter, I would point out the following: (1) with respect to whether or not the Council had a duty to examine whether or not the Pension Board is meeting its fiduciary duties with respect to the administration of the City of Saint John Pension Act, I did believe that I had concluded that it did not in view of my conclusions that: (a) "the Council is not in a position of administering the City of Saint John Pension Act, or the Pension Fund or Plan created thereunder, nor can the Council interfere with or exercise any of the roles of the Board of Trustees, which is given that statutory responsibility. "" (p. 19, para. 5) (b) "The principal business of the Council with respect to the Pension Plan would involve mainly consideration as to how it may comply with requirements to fund any deficiencies, whether to borrow for the purpose, or whether to seek legislation to Cow, for instance, the collection of higher contributions from employees." (p. 20, para. 1) The E=bange Tower, Suite 1600 Telephone 416-365,1110 P.O. Box 480, 130 King Street West Facsitaile 416-365-1876 Toronto, Ontario, Canada NUX IJ5 Website www.weirfoulds.00m - --t WeirFould5 LLP 8/812005 3:08 PAGE 003/004 Fax Server Weir FouldsLLP RARMSTERS a SOLICITORS (c) "In any event, it is not the responsibility or the jurisdiction of the Common Council to direct or supervise the affairs of the Board of Trustees or the administration of the Pension Fund, but merely to ensure that the required contributions are collicted from employees and to comply with requirements imposed upon the City under section 7 of the 06 of Saint John Pension Act." (p. 23, para. 1) (d) "The sole and exclusive legal responsibility for the administration of the City of Saint John Pension Act is conferred upon the Pension Board by subsection 3(l) of the City of Saint John Pension Act," (p. 30, penultimate paragraph) (e) "... neither the City of Saint John nor its Common Council has any direct obligation with respect to the administration of the City of Saint John Pension Act." (p. 31, para. 1) On the basis of the foregoing, I conclude, as will be dealt with in finther detail in my following opinion letter, that the Council of the City of Saint John is not under a fiduciary duty with respect to the administration of the City of Saint John Pension Act or the Pension Plan or Fund created under that Act, and specifically, has no duty, fiduciary or otherwise, to ascertain whether the Pension Board is meeting its fiduciary duties with respect to the administration of that Act, nor does the City Council have any legal obligation to pensioners and employees within the context of its considering possible plan design changes that would reduce the unfunded liabilities which the City must satisfy. While it is certainly open to the Common Council to consider and request amendments to the City of Saint John Pension Act, this does not, in itself, by reason simply of there being a relationship to the Pension Fund, create a fiduciary duty upon the Council. Since the Council is not in a position to effect or implement any change to the Pension Plan itself, and any request which it might make to the Legislature would be subject to due consideration by the Legislature itself and possibly result in such action as the Legislature should see fit to make, the fact that the subject-matter of the discussion relates-to the Pension Plan does not in itself impose any fiduciary duty upon the Council in deciding to make the request. As mentioned above, my response to your letter will be incorporated and expanded in my opinion letter which you will receive in the near future. With respect to the issue as to whether or not the City of Saint John has all of the powers of a "natural person", while I am aware of that general principle, I have some doubts, even in view of the history of the City of Saint John, as to whether or not the City would have the legal power, for instance, to enter into a commercial partnership by which it allows third parties - A 2 WeirFoulds LLP 8/8/2005 3:08 PAGE 004/004 Fax Server WeirFoulds.L. BARRISTERS & SOLICITORS to incur debt on its behalf or pledge its credit; incorporate a business corporation for the purpose of carrying on a private enterprise for the purpose of raising funds in order to decrease property taxes; or be considered subject to the indoor management rule in a manner which could fetter the discretion of the Council with respect to future decision-making by, in effect, delegation of its powers to individual officials such as the Mayor or the Chief Administrative Officer. Offhand, T would think that each of the three above characteristics, which would apply to a corporate natural person, would violate the fundamental principles of municipal law if applied to a municipal corporation, including the City of Saint John. This is an issue which I would be happy to discuss with you further if you feel it worthy of incorporation into my next opinion letter. With respect to the "rational grounds" referred to on page 29, 1 will include an expansion of that discussion, together with corrections elsewhere referred to in your letter, in a new "original" copy of my first opinion letter which I will provide to you with the subsequent one, meaning that the copy previously forwarded to you may be destroyed at that time. I trust that the foregoing will be of assistance to you, and will be pleased to discuss this matter further with you at any time. GHR/jnb 839636.1 3 WeirFoulds LLP George H. Ruat.Dlyc E-mail grwtdeye@wcidoulds.com Direct Line 416,947,5080 File 11400-00001 8/11/2005 1:38 PAGE 002/034 Fax Server City of Saint John 15 Market Square P.O. Box 1971, Stn. Main Saint John, NB E2L 4LI Attention: Mr. John L. Nugent City Solicitor Dear Mr. Nugent: WeirFouldsl.L, BARRISTERS & SOLICITORS August 11, 2005 Re: Administration of the City of Saint John Pension Act This is in response to your letter dated June 20, 2005 requesting: 11 ... a written opinion identifying: L whether Council has any obligation with respect to the administration of the City of Saint John Pension Act, and if so, the nature and extent of such obligation,- iL the standard to which Council would be held in meeting such obligation; iii. the means or process by which Council could assure fuollment of any such obligation, recognizing the current circumstances of the Pension Fund; as well as providing additional advice outside counsel believes would assist Council's understanding of any role it might have with respect to the administration of the City of Saint John Pension Act. HM11"Off "T611R.1 I - ., The most recent financial evaluation of the City of Saint John Pension Plan revealed actuarial liabilities of approximately $43 million on a."%--'1g concern". basis, and approximately $93 million on a "solvency" basis. This evaluation, completed as of January 31, 2005, dealt with the value of the Fund as of December 31, 2003. The Exchange Tower, Suite 1600 Telephone 416,365-1110 P.O. Box 480, 130 King Street West Facsimile 416-365-1876 Toronto, Ontario, Canada WX 45 Website www.weirfoulds-"M WeirFoulds LLP 8/11/2005 1:38 PAGE 003/034 Fax Server WeirFoulds.L. BARRISTPRS & SOLICITORS Prior to this receiving this evaluation, the Committee of the Whole of Council, on November 1, 2004, was advised that each of the City Manager, Common Clerk, Commissioner of Finance and City Solicitor had filed with the Clerk a Disclosure of Interest form respecting the City of Saint John Pension Plan, each disclosing, respectively,/ in the form prescribed by regulation, his interest in "the benefits provided by and the funding required for The City of Saint John Pension Plan " ". The Committee of the Whole of Council, at its meeting held on November 1, 2004, adopted a resolution that "Comrnon Council acknowledge the Disclosures of Interest of the City Solicitor, the City Manager, the Commissioner of Finance and the Deputy City Manager/Common Clerk as it relates to the City of Saint John Pension Plan, and further requests their advise (sic) in this regard." By letter dated November 19, 2004 to the Common Council, the City Solicitor, noting that "each of us having filed a notice of disclosure in this matter, is also a member of the Board of Trustees of the Pension Plan", advised that: "It should be clearly understood that we continue as members of the Board of Trustees in our respective capacities and that the disclosures have no effect whatsoever -upon our participation in the proceedings of the Board of Trustees." At its meeting held on November 22, 2004, the Common Council adopted the following resolution: "RESOLVED that Common Council acknowledges the disclosure of interest filed by each of the City Manager, the Commissioner of Finance, the Deputy City Manager /Common Clerk and the City Solicitor relating to the City of Saint John Pension Plan and further requests such advice as each might provide with respect to that Plan." At its meeting held on January 17, 2005, the Common Council received a written request from Councillor Ferguson to forward a number of questions to the Board of Trustees of the City's Pension Plan relating to the operation off f that Plan, what organizational or structural changes had taken place relating to the management of the Fund, investment decisions relating to it, and inquiries relating to any "due diligence report or reports" relating to the Fund and its administration. In a report dated January 31, 2005, signed by Trustees Beckett and Totten (the City's Commissioner of Finance and City Manager, respectively), the Common Council was advised, in response to the questions raised by Councillor Ferguson, that there not had been any - A 2 WeirFoulds LLP 8/11/2005 1:33 PAGE 004/034 Fax Server WeirFould&L. BARRISTPRS & .SOLICITORS organizational or structural changes, "as the Board is satisfied with the comprehensive governance structure that exists". The report went on to outline the Board's detailed . investment policy as required by the Pension Benefits Act and reviewed regularly by the Board, concluding that: "The structure and processes being employed by the City's Pension Board relevant to the investment of its funds [in excess of $276 million total as of December 31, 20041 meets all regulatory and industry standards." Attached to the report were a performance measurement report and a compliance review, prepared by API Asset Performance Inc. in accordance with its duties to provide quarterly performance and compliance reports to the Board of Trustees, as well as providing assistance with regards to assets manager selection and investment policy reviews." At its meeting held on January 31, 2005, the Common Council received the above report and resolved that the City Manager, the Commissioner of Finance and Councillor Ferguson investigate the possibility of issuing bonds to assist with the unfunded liability of the Pension Fund, and that "they be authorized to seek any outside professional assistance that they deem necessary to do so". In a 14-page report dated March 18, 2005 to the Common Council, the City Manager and Commissioner of Finance provided "information related to various options available to the City, as sponsor of the Pension Plan, to deal with its legislative responsibility and obligations to fund the deficit that currently exists within the Plan!'. The report described the actuarial shortfall, advised that City staff had engaged pension experts to provide an updated estimate of the Planes financial situation, and included the results of that examination, together with a discussion of courses of action that the sponsor, the City of Saint John, could pursue in order to address the substantial actuarial liability. The actuarial opinion included in the report indicated that: "(a) The Plan had not been fully funded on a going - concern basis. The actuarial liabilities exceeded the actuarial value of assets on a going- .concem basis by $43,547,200. The minimum special payments required to amortize the unfunded liability as a level percentage of payroll over a 15 year period are 8.6% of payroll. Based on the 2004 payroll used in this valuation, the initial annual special payment would be $3,707,700. 3 WeirFoulds LLP 8/11/2005 1:38 PAGE 005/034 Fax Server WeirFould&L, BARRISTERS A SOLICITORS (b) The value of Plan assets was less than the actuarial liability by $88,852,300 at December 31, 2003, on a solvency valuation basis. The minimum special pahnents required to�ortizc the solvency deficiency as a level, percentage of payroll over a 15 year period are 15.3% of payroll. Based on the 2004 payroll used in this valuation, the initial annual special payment would be $6,583,100." It was noted that the Common Council had recently agreed to partner with the civic unions to lobby the Provincial Government for changes which would exempt municipalities from at least the rules related to solvency deficiency. This action also acknowledged that the City, in its position as sponsor of the Pension Plan, was not in a position to make its own decisions unilaterally in this regard. Any increase in contributions required or decrease of benefits would require Provincial legislation to effect the required amendments. It is not within the current powers of the Common Council to increase employee contributions or to decrease City contributions or employee benefits. Alternatives provided in the report included ways by which the City might raise the required funds, whether directly from taxpayers or by issuing pension obligation bonds. The report addressed "the role of the Board of Trustees", as follows: "Staff is aware that after some hesitation the Board of Trustees is going to be giving consideration to the various options and scenario's contained in this report. The hesitation was as a result of the Board concluding that it has the responsibility to administer the Legislation as it exists today. However, upon reflection, the Board recognized that it has a fiduciary responsibility to participants of the plan, and as such should be in a position to provide comment to the sponsor as to any changes that might affect the benefits accruing to the participants." - .1 4 WeirFoulds LLP 8/11/2005 1:38 PAGE 006/034 Fax Server WeirFould&,P BARRISTERS & SOLICITORS With respect to potential conflicts of interest, the report continued as follows: "While every reasonable effort has been made by the City Manager and Commissioner of Finance to provide all of the relevant information and background material, both recognize that any recommendation from staff has the potential of raising the issue of conflicts of interest Both the City Manager and the Comrnissioner of Finance are Officers of the Corporation, Pension Trustees and Plan Members. Any recommendation that these two officers might make could raise concerns with elected officials, Union leaders, individual employees and perhaps even from taxpayers. This is an unfortunate situation but one that perhaps was never anticipated when the Pension Act was created." At its closed meeting held on March 29, 2005, the Committee of the Whole had before it a report dated March 24, 2005 from the City Solicitor containing background analysis on the issue of borrowing to meet financial obligations to the Pension Fund. In that report, the City Solicitor concluded that borrowing through the issuance of pension obligations bonds lies beyond the scope of the City's current authority, and that "if Council wishes to issue securities in support of borrowing to meet its financial obligations to the pension fund, that a petition [should] be submitted to the Provincial Legislature seeking express authorization for such an arrangement". The following are excerpts from the Extract of the Minutes of the closed meeting of the Committee of the Whole on March 24, 2005: [The following motion was moved by Councillor Ferguson, seconded by Councillor Court] "RESOLVED that Council seek outside advice as it relates to pension obligation bonds or any other financial matter relating to the pension plan, - .,* 5 WeirFoulds LLP 8/11/2005 1:38 PAGE 0071034 Fax Server WeirFould&L, BARRISTFAS & GOLIC9TORI The City Manager advised that he questioned his authority to seek outside legal advice, noting that it is Council that must make that decision. The City Solicitor�dvised that Council can direct the City Solicitor 0 seek outside legal advice, but that seeking outside legal advice by the group working on exploring the issuing of bonds, and bringing that advice to Common Council, is improper. He further advised that the advice should be sought through the City Solicitor and that direction could be given by the Committee of the Whole tonight, if the Committee wishes. Referring to the Municipalities Act, the City Solicitor reviewed the conflict issue. He provided information on how outside advice would be appropriately sought if not through the City Solicitor, as follows- The Council itself would seek outside advice, noting that the reason for doing so is the conflict of interest of staff and of the City Solicitor. If this were the case, and Council does not want to take advice on pension issues from the City Solicitor, Council would have to rescind the motion previously adopted which acknowledged the declaration of conflicts of interest of staff and the City Solicitor, and notwithstanding this declaration, agreed to seek their advice on matters relatinc, to the pension fund." Ultimately, the motion moved by Councillor Ferguson was not put. In a report dated April 8, 2004 to the Committee of the Whole, the City Solicitor addressed the following issues raised at the meeting of March 29, 2005- "(1) independent advice t6 Council on legal and financial matters associated with the unfunded actuarial liability of the plan; and - --t 6 WeirFoulds LLP 8/11/2005 1:38 PAGE 008/034 Fax Server WeIrFoulds[,L, BARRISTERS & SOLICITORS (2) the potential liability of individual councillors as well as that of senior staff members who had filed declarations of interest with regard to the pension plan." In his letter, the City Solicitor drew the attention of the Council to subsection 74(5) of the Municipalities Act, which provides that all full-time officers employed by the municipality are entitled to hold office until retirement, death, resignation or dismissal for cause by the affirmative vote of at least two-thirds of the whole Council, and pointed out that this provision was enacted for the benefit of the citizens of the City, by guaranteeing them independent advice, reducing the potential for City liability and that of members of Council individually, and reducing the likelihood of Council's engaging in a course of action which is suspect from a policy, legal or financial perspective. The City Solicitor concluded his letter by setting out two alternative sets of resolutions, one of which could be adopted by the Council dependent upon its decision as to whether or not it could seek legal advice from officers of the City who had filed the Declaration of Interest. The two alternate draft resolutions read as follows: "RESOLVED that the Council resolution on November 22, 2004 acknowledging the Disclosure of Interest filed by each of the City Manager, the Commissioner of Finance and the City Solicitor respecting the City of Saint John Pension Plan, and requesting their advice in connection with that plan notwithstanding the Declaration of Interest, be rescinded; and FURTIHER BE IT RESOLVED that the Common Council seek disinterested, expert advice with respect to all aspects of addressing the actuarial unfunded liability of the City's Pension Plan, as well as any changes to it that might be considered." DON "RESOLVED that the City Solicitor be directed to obtain an expert opinion as to the appropriate process to be followed by Council in addressing the actuarial unfunded liability of the City of Saint John Pension Plan and in dealing with any plan changes that might be considered." - '-* 7 WeirFoulds LLP 8/11/2005 1:38 PAGE 009/034 Fax Server WeirFould&.P BARRISTERS is SOLICITORS In a report dated April 11, 2005 to the members of Common Council, Mayor McFarlane, as Chair of the Board of Trustees of the City of Saint John Pension Plan, reported with respect to the activities of the Board during the 2004 calendar year. The report contained the foPowing: "It should be noted that the Pension Plan has established a receivable from the City for funding due related to the Plan's solvency deficiency. The Pension Benefits Act requires that a solvency deficiency be funded over a period of five years unless an exemption is granted to fund over a period of not more than 15 years." At its meeting held on April 11, 2005, the Common Council received the Annual Report. At that meeting, the Minutes record that Councillor Ferguson made reference to the resolution by the Common Council of November 22, 2004 acknowledging the disclosure of interest filed by the City Manager, the Commissioner of Finance, the Deputy City/Manager, Common Clerk and the City Solicitor referred to above, and: "stated that he and Councillor Farren have received Canadian Corporate Legal Counsel advising that this action means that they have admitted they are not experts and have increased their liability with respect to the Pension Plan; and pointed out it also means that Common Council's liability has increased in addition to Councillor's individual liability." A further extract from the same Council meeting refers to Councillor Ferguson suggesting that the action of senior officers in filing Declarations of Interest with the Council and still being in a position to provide advice to the Council with respect to its role in the pension issue, "has substantially increased the legal liability of Council and its individual members". In Isis view, the Council was required to obtain third party advice from individuals who were not connected with the Pension Plan. Later in the meeting, Councillor Ferguson was quoted as Stating as follows: Council clearly admitted that they are not experts. No one around this table is an expert on - `* 8 WeirFoulds LLP 8/11/2005 1:38 PAGE 010/034 Fax Server WeirFouldsLLP BARRISTRMS & SOLIC;TORS Pensions and that's been clearly stated. It was clearly presented on November 22, in the fall, for senior staff to declare a conflict of interest. Those two actions combined, and Councillor Farren and myself went out and received Canadian Corporate Legal Counsel that advised us that this action means that we've admitted that we're not experts and we've increased our liability with respect to the Pension Plan. It also means that this is [sic] absolutely increased Common Council's liability and liability as individuals which means that we can be sued as individuals." It is unclear what Councillor Ferguson meant by his reference to his having received "Canadian Corporate Legal Counsel". No relevant documentation has been made available to me, nor apparently was it made available to the Common Council at that time. In the absence of any opportunity to review the document, if there is one, and in the absence of any explanation of the meaning of "Canadian Corporate Legal Counsel", or the precise source and nature of the advice, and whether it was provided by a lawyer qualified to do so, the phraseology referring to the Councillors' having received it, is meaningless to me. It appeared to be the conclusion of Councillor Ferguson that the Council had compromised itself in receiving professional and expert advice from its staff members who had filed Declarations of Interest, and that in so doing, had created a liability issue for the City, and possibly for the members of Council themselves. In a letter dated April 22, 2005 to the Common Council, the City Solicitor referred to "serious accusations ... made by Councillor Ferguson at the open session meeting of Common Council held on April 1 Ith last", at which "he accused the Board of Trustees of the Pension Plan of dereliction of duty in their administration of the Plan". The City Solicitor concluded by strongly recommending that professional advice, including legal advice, be retained directly by Council with respect to issues involving the Pension Plan. At its meeting held on May 12, 2005, the Board of Trustees of the City of Saint John Pension Plan adopted a resolution: "that the City of Saint John Pension Board notify the City of Saint John that as Plan sponsor, their contributions are in arrears and that arrangements 9 WeirFoulds LLP 8/11/2005 1:38 PAGE 011/034 Fax Server WeirFould&L, BARRISTERS A SOLICITORS must be made to increase their contributions to meet the funding requirements as outlined in the City of Saint John Pension Act." Arising out of the forego' g, the Common Council, at its meeting held on May 25, 2005, decided to retain outside counsel to provide Council with the written opinion sought by the Council and referred to in your letter. Pursuant to this decision, the City has retained WeirFoulds LLP to provide the opinion in question, which follows hereunder. It is noted that, while 1V1r. John Nugent, the City Solicitor made the original contact with this office and provided me with relevant documentation, he has not participated in any fashion in the formulation of the following advice and opinion, which I hereby provide to the Common Council. The following outline of legislation affecting the City of Saint John with respect to its role in dealing with the administration of the City of Saint John Pension Act is provided in the context of the two principal factors underlying and providing the fundamental basis for my response to the City's request for legal advice, namely: (2) the subject - matter of the request involves a statutory context. Both the City of Saint John, in its current form, and the Board of Trustees, are creations of Provincial statute and operate within the context of Provincial legislation, including the City of Saint John Pension Act, the Municipalities Act and the Pension Beneflis Act. It is this Provincial legislation, as well as any other 10 WeirFoulds LLP 8/11/2005 1:38 PAGE 0121034 Fax Server WeirFouldsLLP BARRISTERS a SOLICITORS It is my opinion in this respect that the New Brunswick Legislature intended, through the enactment of the Provincial legislation in question (both statutory and by regulation), to establish a pension plan for employees of the City of Saint John, funded by employee and City contributions, and administered by a board of trustees representing the City executive and administration, as well as representatives of various groups of employees intended to benefit from the plan. It is further my opinion that it has been the intention of the Common Council of the City of Saint John in its decision-making to date, to comply with its obligations in this regard in implementation of the Province's legislative intent. As will be confirmed below in further detail, my conclusion, based upon the reading of the relevant legislation in this case, is that the New Brunswick Legislature has enacted comprehensive legislation dealing with the City of Saint John Pension Plan, has directed its attention to potential issues of conflict of interest, and has created a relevant and appropriate scheme of'legislative provisions, directing its attention, and providing a rational and reasonable response, to the issues raised in the City's request for my legal opinion. 129,011 Q (1) City ofSaint John Pension Act, S.N.B. 1194, c. 112', as amended Section 2 of the Act (referred to herein as the "Pension Act") establishes a board of trustees (referred to herein as the "Pension Board") composed of: (a) the Mayor of the City; (b) two trustees appointed by and being members of the Council; (e) the Commissioner of Finance of the City; (d) the Common Clerk of the City; Il WeirFoulds LLP 8/11/2005 1:38 PAGE 013/034 Fax Server WeirFould&L, BARRIOTERS & SOLMTORS (e) the City Manager or such other employee appointed by the Council; one trustee appointed by and being a mem tr of the Saint John Fire Fighters' Association, Local Union No. 771; (g) one trustee appointed by and being a member of the Saint John Policemen's Protective Association, Local No. 61; (h) one trustee appointed by and being a member of the Canadian Union of Public Employees, Local 18; one trustee appointed by and being a member of the Canadian Union of Public Employees, Saint John City Hall Employees', Local No. 486; one trustee appointed by and being a member of the non-union employees of the City; (k) one trustee appointed by and being a member of the City of Saint John Retired Members Association, provided that the Association represents at least 51 percent of former members. Under subsection 2(3) of the Act, every trustee of the Pension Board mentioned in paragraphs (c) to 0) inclusive, above, must be at all times an employee of the City in order to maintain eligibility for membership in the Pension. Board. Under subsection 2(8), the officers of the Pension Board are specified to be: (a) a Chairman, who shall be the Mayor of the City; (b) a Treasurer, who shall be the Commissioner of Finance of the City; and (c) a Secretary, who shall be the Common Clerk of the City. Under subsection 3(1) of the Act, the Pension Act shall be administered by the Pension Board, whose powers and duties include the following: (a) to establish a pension fund and receive payments into the pension fund; 12 WeirFoulds LLP 8/1112005 1:38 PAGE 014/034 Fax Server WeirFould&L. BARRISTERS A SOLICITORS (b) to pay pensions and any other payments authorized by this Act or the previous Act; (c) to invest the money of the pension fund and the interest thereon in accordance with the Pension Benefits Act-, and (d) to retain a sufficient amount of cash on hand to meet current pension payments from the pension fund. Although the Pension Board is not specified to be a corporation or body corporate, clearly it is created as a legal entity to the extent that it has the power to, for instance, establish a fund, pay money out of a fund, invest money, employ agents and enter into contracts. Under section 4, the Pension Board also has legislative powers to make by-laws relating to the performance of its duties. Under subsection 6(1), every member (contributing City employee) is required to contribute to the Pension Fund 8 V2% of his or her annual salary, subject to other provisions of the Act, and the City is authorized to deduct such payment from the member's salary. Under section 7 of the Act, the City, described as the "funding agent" is required to contribute to the Pension Fund an amount equal to the excess of the total current service cost of the Pension Plan for the year over the aggregate contributions made by members for that year, and such additional amounts as are required to amortize any unfunded liability or experienced deficiency in equal annual instalments over a period of not more than 15 years, and to amortize any solvency deficiency in equal monthly instalments over a period of not more than 5 years, in accordance with the terms of the Act. The aggregate of the annual contributions by the City must be at least 7% of the aggregate of salaries of the members for that year. It is clear that the legislation does not anticipate regular or substantial involvement by the City in ongoing administration of the Pension Plan once it has been established. In fact, in the normal course of events, in the absence of a shortfall, the City Council and administration would in most cases play no ongoing role in the administration and operation of the Pension Fund at all. Under section 10, every member who reaches his or her nor-Mal retirement date is required to retire and is entitled to a normal retirement pension equal to 2% of average salary in respect of each year of pensionable service, payable for life in equal monthly instalments. 13 WeirFoulds LLP 8/11/2005 1:38 PAGE 015/034 Fax Server WeirFould&L. BARRISTERS & SOLICITORS Other provisions of the Act provide for the normal types of subject-matters dealt with in pension legislation, including early retirement pensions, reduced and adjusted pensions, disability pensions, survivor benefits and maximum limits on annual benefits. Section 34 of the Act provides, on the wind-up of the Plan, for the distribution of surplus in cash among members and an 'other persons entitled to payment under the Plan, based on a prescribed formula. While the provisions of the Act were enacted for the benefit of employees of the City, who are required to be members and to contribute to the Pension Fund, and the City is required to make annual contributions to the Fund and replenish the Fund in the case of deficiencies in accordance with the Act, otherwise, aside from the power of the Council to appoint two trustees, and the right to receive annual reports of proceedings of the Pension Board, the City is not involved in the administration of the Act, the Pension Fund or the Pension Plan, nor does it have the right to negotiate the financial terms of the Fund or Plan on a case-by-case basis or at all. It is significant that it is a condition precedent that eight members of the Pension Board be employees of the City, and upon any of them ceasing to be an employee, the office of that member on the Board would become vacant. Similarly, in the case of the Mayor and two councillors appointed to the Pension Board, their offices too would be vacated upon ceasing to hold the office of Mayor and councillor, respectively. In other words, every member of the Pension Board achieves and holds such membership by being a part of, and presumably representing, a particular constituency which, together in some cases with the holding of specific offices, constitutes the qualification necessary to enable him or her to serve as a member of the Board. This fact also constitutes formal and actual acknowledgement of the fact that all members of the Board have a direct or indirect financial interest in the Pension Fund, either and/or both, personally and as a member of a body which has, or whose membem have, an interest in the Fund. In other words, to the extent that the employees in question have a financial interest in pension funds administered by the Board of Trustees, such would arise as a natural and intended effect of the Provincial legislation. In effect, every staff member is allowed to serve on the Board only so long as he or she has a potential direct pecuniary interest in the funds administered by the Board. (2) Municipalities Act, R.S.N.B.1 3, c. M-22 Under subsection 3(1) of the Act, the inhabitants of the City of Saint John continue as a body corporate subject to the provisions of the Act. 14 WeirFoulds LLP 8/11/2005 1:38 PAGE 0161034 Fax Server WeirFould&L, OARR14TERS A SOLICITORS Under section 10.2 of the Act, decisions of the City Council are made in regular or special meetings of the Council and adopted by by-law or resolution. Under section 33 of the Act, a person elected to 0 office on the City Council accepts that office by taking and subscribing to the oath of office in the form prescribed by the Minister. that: Under N.B. Reg. 2001 40, the Mayor or councillor swear or solemnly affirms "I am, to the best of my knowledge and belief, qualified for the office of and that I do hereby accept the office of ' and will diligently, faithfully and impartially discharge to the best of my ability, the duties of the office as may be H Once administered, an oath is required to be filed by the Clerk and recorded in the Minutes of Council. Under section 36 of the Act, the Mayor of the municipality is required to provide leadership to Council, to fulfil other specified responsibilities, and to "perform any other duties conferred upon him or her by this or any other Act or by Council". Under subsection 36(1.1) of the Act, the Mayor of the City is subject to the direction and control of Council and is required to abide by the decisions of Council. Under subsection 36(2.1), every councillor of the City is required to fulfil. a number of designated responsibilities and to "perform any other duties conferred upon him or her by this or any other Act or by Council". These provisions, when read in conjunction with the City of Saint John Pension Act, not only authorize, but require, the Mayor and the members of the Council appointed by the Council as trustees, to serve as members of the Pension Board and exercise the full powers of a trustee, despite the fact that they are, respectively, the chief executive officer and two members of its directing body, respectively, in a situation in which the City itself has a financial interest in the operation of the Pension Plan, as do all of its employees. 15 WeirFoulds LLP 8/11/2005 1:38 PAGE 017/034 Fax Server WeirFould&L, BARRISTERS & SOLICITORS I Under section 74 of the Act, the City Council is required to appoint a clerk (the "Common Clerk!) and a treasurer (the "Commissioner of Finance"), and is authorized to appoint a chief administrative officer (the "City Manager") and a solicitor, among other officers. Subsection 74(5) of the Act provides that, "with the exception of auditors, all officers employed solely by the municipality on a full-time basis and appointed under this section, are entitled [subject to exceptions not here relevant] to hold office until retirement, death, resignation or dismissal for cause by the affirmative vote of at least two-thirds of the whole council." Section 90.1 of the Act deals with conflict of interest issues, not only in respect of members of the Council, but also including senior appointed officers, defined to include, among others, the chief administrative officer or city manager, the treasurer, the clerk and the municipal solicitor. Under section 90.2 of the Act, a member or a senior appointed officer has a conflict of interest if "he (or a family associate) has any interest in a contract in which the council has an interest or 'has an interest in any other matter in which such council ... is concerned that would be a financial benefit to him or the family associate"'. Determination of whether or not there exists a conflict of interest in any particular case depends on the issue to be voted upon and the facts relevant to the particular situation. In view of the fact that members of Council are not covered by the Pension Plan, and that the Pension Act itself provides a formula for determining the contributions by members, the calculation of pensions and levels of City funding, there would be very few matters which could be dealt with by the Council which in themselves would determine a financial benefit, actually or potentially, to any particular member of Council, senior officer or family associate of either. Ordinarily, under the Pension Act, there would be few issues relating to the operation of the Pension Fund which would be debated at Council. Examples might include the means of raising the City's contributions to the Pension Fund under subsection 7(lXb) of the Pension Act, or consideration of a possible request to the Provincial Legislature for amendments to the Act. It is, in fact, not clear, as a matter of law, that the City officers, in question even have .a conflict of interest. Under section 90.3 of the Act, a member of Council or a senior, appointed officer does not have a conflict of interest by reason only that he or she or a family associate is: 16 WeirFoulds LLP 8/1112005 1:38 PAGE 018/034 Fax Server WeIrFouldsLLP BARRISTERS L SOLICITORS "(b) entitled to receive on terms common to other persons any service or commodity or any subsidy, loan, or other such benefit offered by the municipality or local board; (e) eligible for election or appointment to fill a vacancy, office or position in the council or local board when the council or local board is empowered or required by any general or special Act to fill such vacancy, office or position; (g) a director or senior officer of a company incorporated for the purpose of carrying on business for and on behalf of a municipality or local board, or being a member of a board, commission or other body as an appointee of the council or local board of which he is a member; (k) a person having an interest which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member' a member or officer of a service club or charitable organization that is receipt of a benefit from the municipality or local board." "Local board" is defined in section 90.1 to mean, among other things: — "(a) a body whose entire membership is appointed under the authority of a council Mile the definition does not define the phrase "appointed under the authority of a council", it would be difficult to characterize a board of trustees under the City of Saint John Pension Act as coming within that definition, since it is the Act itself which creates and defines the membership of the Pension Board, six of whom are neither members of the Council nor directly or indirectly appointed under the authority of the Council. _1 17 WeirFoulds LLP 8/11/2005 1:38 PAGE 019/034 Fax Server WeirFoulds[.L, BARRISTERS & SOLICITORS At the same time, for purposes of the law relating to conflict of interest, where not specifically provided to the contrary, the Pension Board is a body created by legislation, having public, as well as private, characteristics, with many of the characteristics of a local board. It would also appear that the potential financial benefit of a pension available to all employees of the City, and having contribution and payout amounts fixed pursuant to a formula equally applicable to all employees, could well bring members of the Pension Board within the description of being entitled to receive on terms common to other persons any service or commodity or other such benefit offered by the municipality or local board. While, depending on an analysis of all relevant facts, not all of the exclusions contained in section 90.3 of the Act necessarily apply to the status of City employees who are members of the Pension Fund; nevertheless, exclusions referred to, considered collectively as well as individually, would support a conclusion that the Act was not intended to deter such employees from fulfilling their normal responsibilities to the City pertaining' to the administration of the City's own responsibilities related to the operations of the Pension Fund. Many of the exclusions contained in section 90.3 represent principles which by analogy could result in a conclusion that at law a member of the Board of Trustees would not, by reason of the fact alone of holding a position which creates their eligibility to serve as a member of the Pension Board, have a conflict of interest under the Act. A court might well, for instance, conclude that City employees entitled to receive pensions, on terms common in kind to those available to other employees, might be exempt from being deemed to have a conflict of interest under that section, assuming that the Pension Board might be held to be a local board of the City. In any event, by reason of the structure of the Pension Fund and its statutory relationship to the City Corporation, it would appear that there would be very few instances, if any, in respect of which the City Council would be engaged in decision-making which, in itself, would have any impact on the financial position of members of Council or staff,_ I-specially where the Province has retained to itself power to approve the City's operating budget. In any event, subsection 2(2) of the City of Saint John Pension Act anticipates and requires the City's Mayor, Commissioner of Finance, Common Clerk, City Manager and a retired employee, as well as two members of the Council, all be members of the Pension Board, despite the fact that, at least in the case of the employees, and indirectly in the case of the Mayor and two members- of Council, each such member would have an actual or deemed direct or indirect financial interest in the affairs of the Board. In such circumstances, it can hardly be concluded that the Provincial Legislature intended that the incumbents of those positions be foreclosed from participating in decision-making or the provision of advice at the Common Council level, by 18 WeirFoulds LLP 8/11/2005 1:38 PAGE 020/034 Fax Server WeirFouldsl.L, BARRISTERS & SOLICITORS reason only of their membership in the Pension Board, at least in situations in respect of which full disclosure of such membership has been duly provided. With respect to the senior appointed officers of the coyporation who may be called upon to provide advice to the City, the legislature has anticipated such an issue arising, and i provided for it by requiring each senior' officer, upon assuming, office or from time to time whenever a conflict of interest arises, to file with the Clerk a statement disclosing any conflict of interest of which he or she has knowledge or should reasonably have knowledge. Section 90.8 then provides that the requirements relating to a conflict of interest by an appointed officer do not apply where the officer, within the scope of his or her employment, provides to the Council advice on a matter with respect to which he or she has a conflict of interest, at the request of the Council, to which has been provided disclosure of the conflict. This provision recognizes one of the principles of the laws of trusts and conflicts of interest, that fiffl disclosure, together with a legal duty, may be acknowledged as mitigating or totally abrogating any potential damage to the public interest which might result from an individual with a private :financial interest in a matter being called upon to provide advice in a context in which that financial interest might be affected by the action taken by the Council. In the circumstances which led to this opinion being requested, it is noted that each of the senior officers in question has twice filed the required notice under section 90.5, and consequently, to the extent that advice to the Council with respect to its deliberation on any issue affecting the Pension Plan or Pension Fund for its employees, could be said to affect the financial interests of such employees, section 90.8 would provide a complete answer, and authorize the senior officers in question to give such advice as the Council might request. It also acknowledges that the staff role is of a purely advisory, not executive, nature. None of the four employees in question is in a position to vote with respect to any matter involving his own pension. Here, of course, there are a very limited number of issues in respect of which the Common Council might require professional advice from staff, in view of the fact that the Council is not in a position of administering the City of Saint John Pension Act, or the Pension Fund or Plan created thereunder, nor can the Council interfere with or exercise any of the roles of the Board of Trustees, which is given that statutory responsibility. Similarly, the Council has no jurisdiction in respect of the amount of contributions which it is required to collect from its staff, nor the amount of the pensions to which employees may become entitled. 19 WeirFoulds LLP 8/11/2005 1:38 PAGE 021/034 Fax Server WeirFouldsLLP BARRISTERS & SOLICITORS The principal business of the Council with respect to the Pension Plan would involve mainly consideration as to how it may comply with the requirements tQ fimd any deficiencies, whether to borrow for the purpose, or whether to seek legislation to allow, for instance, the collection of higher contributions from employees. By reason of the declarations filed by the senior officers who are members of the Board of Trustees, they are all free to provide advice to the Common Council as the Council might request, since any conflict of interest that they might have has been fully disclosed in a manner authorized by statute. - It is noted, pursuant to section 90.91 of the Municipalities Act, that the provisions of that Act with respect to conflicts of interest in municipal governments are deemed to supersede all other legislation with respect to such matters, whether or not any conflict may exist between the provisions of the Municipalities Act and such other provisions. (3) Pension Benefits Act, S.N.B. 1987, c. P-5.1 This Act applies to every pension plan provided for persons employed in the Province of New Brunswick. In subsection 1(1), "administrator" is defined to mean the person or persons who administer a pension plan, which would include the Board of Trustees of the City of Saint John Pension Plan. The City of Saint John would, of course, be the "employer", sometimes referred to as the "sponsor", in relation to the Pension Plan, being required to make contributions under the Pension Plan for the benefit of its employees. With respect to the duties of the collective administrator, namely, the members of the Board of Trustees, acting as a group in the administration of the City of Saint John Pension Act, the Pension Benefits Act provides as follows: 1117.(1) The administrator of a pension plan shall exercise the care, diligence and skill in the administration and investment of the pension fund that a person of ordinary prudence would exercise in dealing with the property of another person. (2) The administrator or, if the administrator is a committee or a board of trustees, a member of the committee or board that is the administrator of a 20 WeirFoulds LLP 8/11/2005 1:38 PAGE 022/034 Fax Server WeirFoulds... BARRISTERS & SOLICITORS pension plan shall use in the administration of the pension plan, and in the `stration and investment of the pension fund, all relevant knowledge and skill that the administrator or member possesses/ or, by reason of that person's profession, business or calling, ought to possess. (3) An administrator or, if the administrator is a pension committee or a board of trustees, a member of the committee or board that is the administrator of a pension plan shall not knowingly permit that person's interest to conflict with the person!s duties and powers in respect of the pension fund." It is noted that subsection 17(3) prohibits a member of a board of trustees.from knowingly permitting that person's interest to conflict with a person's exercise of duties and powers in respect of the Pension Fund. This provision would appear to acknowledge that such members may well have personal financial interests which may be affected by decisions of the board of trustees, but that in itself does not prevent members of that board from complying with employment responsibilities on behalf of the employer. Subsection 44(3) of General Regulation N.B. Reg. 91-195 to the Pension Benefits Act requires the administrator of a pension plan to establish a written set of policies for the administration of the plan, including a policy to be followed where there is an actual or perceived conflict of interest on the part of a member of the board of trustees. However, that provision deals with the participation of members of the board of trustees in decision-making at that end of the process, not to the conduct of such individuals in their employment setting. �A�1 MNI Obviously, the fact that employees of the City have a -right to receive payments in the form of a pension after retirement, and that certain of the employees are given the statutory right and/or duty to participate in decision-making which, at least in theory, could impact on the size of that pension, requires that consideration be given to the p ossibility of such employees being in a position of a conflict of interest as between their public duties and their personal benefit. In this case, however, the Provincial Legislature, in its criteria adopted for the establislunent of the composition of the Board of Trustees, as necessarily including eight current employees of the City government, including three who are necessarily members, ex officio, by reason of holding senior designated position in the City Corporation, and five others through 21 WeirFoulds LLP 8/11/2005 1:38 PAGE 023/034 Fax Server WeirFoulds.L. BARK13TERS & SOLICITORS appointment by their particular employee groups, leads to the obvious conclusion that, as a matter of law, the Provincial Legislature directed its mind, and made a deliberate decision, with respect to a policy decision that eight of the ten members of the Board of Trustees be employees who will benefit from the pensions ultimately to be paid by the City Corporation, despite any potential for conflict of interest, however theoretical, which might otherwise arise. At the same time, the Province has also, in establishing the program of employee pensions, in including on the Board the Mayor (chief executive officer) and two other members of Council, in establishing through the legislation, the f6m-ii9a for determining the amount of pensions, the percentage of employee contribution, and mandatory requirements imposed upon the City to contribute its share and make up any shortfall, taken all steps reasonably necessary to ensure the proper relationship between the Board of Trustees, on one hand, and the City Corporation on the other, and also to ensure the protection of the public interest, as well as that of the employees, in ensuring quality staff for the City, and requiring them to participate in making provision for support in their old age following the termination of employment, The provisions of the City of Saint John Pension Act, together with the other legislative provisions referred to herein, designed to prevent inappropriate participation in decision-making by an individual who may have a conflict of interest, would appear to provide a complete answer to the issues which the City has raised in its request for a legal opinion. It would also follow, in the circumstances of this particular case, that the four employees in question, having duly signed and filed Disclosure of Interest forms, have complied with all legal requirements which would put them in a position of being authorized to provide to the Common Council the advice and expertise which the City has a right to require of them in the performance of their specific duties central to the positions to which they have been appointed. In view of these circumstances, it would appear to be counterproductive, and contrary to the intentions of the Legislature in this regard, for the Council not to seek or accept their expert input by reason only of the fact that they are employees who one day will be entitled to receive City pensions. In effect, it is only employees who are compelled to contribute to the Pension Fund, and ultimately to be a recipient of a City pension, who are eligible and, in three cases, required, to participate as members of the Board of Trustees and, at the same time, fulfil the duties of employment, and provide expertise and assistance of the highest order in their employment classifications, to the Common Council. Consequently, in view of the statutory context governing both the proceedings of the Council of the City of Saint John and also the administration of the City of Saint John Pension Act, it would appear that the issues raised above which gave rise to the request for this 22 WeirFoulds LLP 8/11/2005 1:38 PAGE 024/034 Fax Server WeirFould&L, BARRISTERS A SOLIMONS opinion, are dealt with through the operation of the legislation referred to, which would generally mitigate any need to resort to the common law relating to trusts and conflicts of intereg. In any event, it is the not the responsibility or jurisdiction of the Common Council to direct or supervise the affairs of the 1�bard of Trustees or the administration of the Pension Fund, but merely to ensure that the required contributions are collected from employees, and to comply with requirements imposed upon the City under section 7 of, the City of Saint John Pension Act. Compliance with this latter responsibility may involve the City in decision- making with respect to how to comply with its obligations to fund deficiencies, and possible considerations as to legislative amendments which might be sought to raise funds for such purpose. Obviously its own senior officers, who are also members of the Board of Trustees of the Pension Fund, are in a strategic position to provide advice to the Common Council with respect to the fulfillment of its obligations in this regard, and by reason of the filing of declarations of interest under section 90.5 of the Municipalities Act, are available to provide lawful advice to the Council, if the Council should make a request for same, having knowledge of the position and interest of each of the senior officers in the Pension Fund, a matter of public record in any event, and the obvious result and intent of the legislation itself. (In this regard, I do not express any opinion with respect to the personal position of Councillor Tate, to the extent that, as a beneficiary from the Pension Fund, he has an additional financial interest not shared with the other two members of Council who are members of the Board of Trustees. In any event, this issue was left to be dealt with by the City Solicitor (see March 25, 2005 minute).) As suggested above, the issues raised in the City's request for a legal opinion do not involve the law of trusts or the legal duties of trustees administering a statutory pension plan, but instead involve the duties of senior municipal officials with respect to issues of municipal corporate liability and potential conflict of interest in a statutory environment. Every municipal corporation is the custodian of public Rinds, raised and to be expended in the public interest in accordance with municipal responsibilities and jurisdiction imposed by statute. This imposes upon the City Corporation as a corporate entity, and upon its Council, legal requirements to act within that jurisdiction and to manage, safeguard and spend public funds for public purposes in accordance with statutory requirements and authorization, with the legal conclusion, among others, that the municipality as a corporate body owes fiduciary duties to its inhabitants whose funds it holds. 23 WeirFoulds LLP 8/11/2005 1:38 PAGE 0251034 Fax Server WeirFouldl S LLP BARRISTERS A SOUCITORS This does not, however, in itself necessarily involve the imposition of fall fiduciary duties individually upon members of its Council who attend meetings of the Council and committees, and may also act as ex officio members of various agencies, boards and commissions, including the Board of Trustees of the City's Pension Fund, itself a statutory creation. The issues in this matter to be dealt with by the Council involve contingent municipal corporate debt and potential liability to cover certain deficiencies incurred by the Pension Fund. The City of Saint John is a body corporate, originally a common law municipal corporation, continued by statute, which is generally considered to have the powers of a corporate "natural person", including perpetual succession, and the power to contract, hold, dispose of and convey real and personal property for any purposes within its powers, and to sue and be sued in its corporate name. (Municipalities Act, s. 4) It is not, however, subject to application of the Corporations Act. (Municipalities Act, s. 6) The powers of the City are vested in and shall be exercised by its Common Council. (Municipalities Act, s. 9(1)) Decisions of the Council are made collectively, at regular or special meetings, implemented by by-law or resolution of the Council. (Municipalities Act, ss. 10.2(2)) To be eligible to be elected to Council, a person must be 18 years of age and ordinarily resident in the Province for a period of at least six months prior to the election. He or she must also be a Canadian citizen entitled to vote in an election. Provisions with respect to the qualification of candidates, including specific exceptions, excluding, for instance, officers or full-time employees of the municipality, are contained in sections 13 and 18 the Municipal Elections Act, S.N.B. 1979, c. M- 21.01. It is noted that there are no professional, vocational or educational qualifications imposed as a legal prerequisite to becoming a member of a municipal council. Members of councils serve in a representative capacity as members of the community, duly elected by their peers ' to participate in collective decision-making as members of the collective body constituting the directing mind of the municipal corporation, in accordance with law. Section 90.1 of the Municipalities Act provides statutory procedures to require and enable both members of Council and senior appointed officers to avoid defined conflicts of interest, in the case of members, by requiring disclosure and immediate withdrawal from the 24 WeirFoulds LLP 8/1112005 1:38 PAGE 026/034 Fax Server WeirFouldsl.,P BARRISTERS & SOLICITORS meeting room, and, in the case of senior officers, by requiring written disclosure, and leaving it -up to the Council to decide whether, despite the fact of the employee's conflict ofinterest, to request advice from that senior appointed officer, having knowledge of the conflict. This is a significant provis4 on (Municipalities Act, ss. 90.8(l.1)), recognizing that, while members of Council who would otherwise have the right and duty to participate in Council decision-making as members, may be precluded from doing so where a conflict of interest exists, members of staff who do not have such a right to participate, provide advice only when called upon by the Council to do so. Consequently, the statutory solution for the situation, a very rational one, is to leave it -up to the Council to decide, having full disclosure and knowledge of the existence and nature of the conflict of interest affecting the staff member, and having generally full knowledge of relevant facts, to request such staff member to provide advice notwithstanding the conflict. Here, such a course of conduct is particularly appropriate where the conflict of interest by the staff members in question is by reason of their statutorily-required membership in the Pension Plan, their ultimate right to receive pensions, and their position, either ex officio or as an appointee representing the employee group of which they are a member, as an appointed member of the Board of Trustees, a jointly-trusteed pension administrator established by statute. It would be absurd to suggest that, by reason of their position and responsibilities recognized and supported by statute, involving perfectly normal and socially desirable participation in a municipal pension plan, they should be precluded from providing professional assistance to the City Corporation and Council, in accordance with the requirements of their position, by reason of some supposed theoretical potential for bias or breach of fiduciary duty attributed to them by reason of the fact that they are potential pensioners. In any event, the advice which the Common Clerk, Commissioner of Finance, City Manager and City Solicitor would provide to the City Corporation would be with respect to its own duties and potential liabilities under section 7 of the City of Saint John Pension Act, in respect of which the City fulfils the function of "employer" or "sponsor", and not -in any way with respect to the administration of the Pension Fund itself, which is the sole responsibility of the Board of Trustees. It is significant, in this regard, that each of the four officers in question reports directly to the Common Council, a fact which underlies and supports the importance and reliability of their advice. In this case, it appears that each of the City Solicitor, the Common Clerk, the Commissioner of Finance and the City Manager, in October of 2004, filed with the Office of the Common Clerk statutory Disclosures of Interest under the Act, disclosing an interest in the City 25 WeirFoulds LLP 8/11/2005 1;38 PAGE 027/034 Fax Server WeirFoulds].L, BARRISTERS & SOLICITORS of Saint John Pension Plan, relating to the following matter: "the benefits provided by and the fund required for the City of Saint John Pension Plan, and any other similar matters which come before the Council or local board in the future in which the above-name person ... is contracting or likely to be financially benefited by a decision of the Council or local board .... " More recently, in April 2005, the four officers again filed statutory Disclosure of Interest forms, in which each discloses: "a conflict of interest in that I have an interest in the following namely, the Pension Board of the City of Saint John Pension Plan. This disclosure relates to the following matter, the powers and duties of the Pension Board and its functioning in relation to those powers and duties, and any other similar matters which come before the Council or local board in the future, in which the above -named person ... is contracting or likely to be financially benefited by a decision of the Council or local board, until my conflict of interest ceases to exist." In my opinion, each of the Disclosures of Interest filed by each of the four officers in question complies in full with the requirements of the Municipalities Act. Accordingly, the acts of the officers/employees in question in complying with the requirements of the Municipalities Act, both in intent and fact, constitute compliance with section 90.5 of the Municipalities Act, and provide a complete answer to any potential issues which may arise in the minds of members of Council raised by the fact that the officers/employees in question are contributors to, and potential beneficiaries of, the City's Pension Fund established by statute. Accordingly, it is fully open to the Council, if it decides to do so, to request advice from any of them with respect to the position and duties of the City Corporation relating to the requirements imposed upon it by law in relation to the City of Saint John Pension Fund and Pension Plan. It is also fully within the discretion of the Council to decide to seek outside professional advice with respect to such matters, and it is not within its legal jurisdiction to preclude itself from doing so. 26 WeirFoulds LLP 8/11/2005 1:38 PAGE 028/034 Fax Server WeirFould&L. BAKFUSTERS & SOLIC$TORS Similarly, the statutory Disclosures of Interest would also cover off any potential conflict of interest which might exist by reason of membership by the four City officers in the Board of Trustees of the Pension Plan, although, as discussed above, I do not believe that such a conflict would be found to exist at law, by reason of the representative capacity in which each of the staff members serve as members of th�l Board. It is also noted that the four employees in question attend meetings of the Board of Trustees not for the purpose, or in the course, of providing legal, financial or administrative advice to the Board, analogous to the roles which they would fulfil to the Common Council, but as senior employees occupying highly specialized and respected positions of trust, and fully familiar with the operations of the City, as well as possessing their particular respective forms of expertise, considered by the Legislature to be in the best position to both represent the interests of employees and also assist, through participation and voting at meetings of the Board of Trustees, to guide the Board and assist it in the fuLfillment of its responsibilities for the benefit of the Pension Fund. In conclusion, I find that compliance with the disclosure requirements as set out above provides a complete response to any issues raised concerning their actual or alleged conflict of interest by the members of the City staff dealing with the issues in questions. FIDUCL4,RY DUTIES OF COUNCIL AND SENIOR OFFICERS As mentioned above, the City Council, as a collective decision-making body, directing the affairs of the Corporation of the City of Saint John, has among its responsibilities, decision-making powers with respect to the safeguarding and expenditure of a significant amount of public fields on behalf of the City, representing the inhabitants as a whole. In this respect, it may be said that the Council as a collective body holds the municipality's funds and property in a fiduciary capacity, for the benefit of the inhabitants of the municipality, and as such, the Council must ensure that these funds and property are used in the manner required or permitted by the enabling legislation, 1 Members of self-governing professions, such as lawyers, chartered accountants and actuaries, and senior officers of a corporation, are also subject to laws relating to fiduciary duties, of which the clearest is that all advice provided by such individuals to their principal, be provided honestly, in good faith, and in the interests of those to whom the fiduciary duty is owed, 'Don T. Manderscheid: Pecuniary Interest and Municipal Government in Alberta: A Matter of Trust, 49 MY.LR (Articles) (3d) 242 (2004) 27 WeirFoulds LLP 8/11/2005 1:38 PAGE 029/034 Fax Server WeirFould&,, BARRISTERS & 30LICITOR& including the exercise of care, diligence and skill that a person of ordinary prudence would exercise when dealing with the property of another person. Obviously, where a corporate body or an individual who owes a fiduciary duty to third parties is in a decision-making or advisory position which may impact on the rights or interests of those to whom they owe the duty, potential for breach of the fiduciary duty exists where that body or person has their own pecuniary interest in the subject-matter to which the decision-making or advice relates. It is this issue which is addressed by section 90.1 of the New Brunswick Municipalities Act. Wl M.W102-011 I Dl O I Ell I W16191 a 1%9110#141411_111110�_,) I's _Vl L "Senior appointed officer" is defined in section 90.1 of the Municipalities Act to include the City's chief administrative officer, the treasurer, the clerk and the municipal solicitor. Subsection 90.8(1.1), although referring to a non-existent subsection (1), has the obvious intention and effect of authorizing a senior appointed officer who has provided disclosure of his or her conflict of interest- to the council, to respond to the council's request for advice on a matter with respect to which his conflict of interest relates. In view of this fact and in view of the fact that the Act contains no provision prohibiting the giving of this advice, it is my conclusion that, at least in the case of a senior officer who has complied with the requirement to file the Disclosure of Interest form under subsection 90.5(1), it is legally open for the senior appointed officer to provide advice on the matter in response to Council's request. It has frequently been recognized and accepted in law that where a conflict of interest exists, which otherwise could preclude the individual in question from a decision-making role affecting the interested third parties or the public interest, such prohibition may be relieved against through disclosure to the decision-maker of the existence and nature of the interest, leaving it to the party in question to decide whether-or not to receive and act upon the advice or other input from the person who has the conflict. For instance, the Rules of Professional Conduct of The Law Society of New Brunswick provide, in section C-2, that at the time of the retainer, the lawyer's duty is to disclose to the client every circumstance or relation, past or present, which the lawyer might have with the client's case which might affect the lawyer's judgment or fidelity. This is for the purpose of allowing, the client, fully informed as to such matters, to decide whether or not to retain the services of the lawyer. There is no general legal preclusion of a person who has a conflict of interest from providing advice in a fiduciary role to a third party, and the fact of full disclosure 28 WeirFoulds LLP 8/11/2005 1:38 PAGE 030/034 FaX Server WeirFould&L. aARRISTPAS a SOLICITORS may be considered by the person to whom the duty is owed to ameliorate any problem which the conflict otherwise might cause. For instance, a lawyer may act for both. the vendor/and purchaser in an arm's- length real estate transaction where both�parties concur in writing and the solicitor undertakes complete disclosure to both of them. Similarly, the Rules of Professional Conduct of the New Brunswick Institute of Chartered Accountants, provides as follows: "It is important for members to recognize that not all fiduciary relationships give rise to all fiduciary duties. The terms of the engagement, including explicit provisions for the disclosure of potential conflicts and/or the use of institutional mechanisms to maintain confidentiality are fundamentally important to the nature of the relationship and the duties that a court will find to apply in a particular case." In the circumstances under discussion, there would appear to be no legal or rational grounds which would preclude a municipal council from concluding that it could not accept advice from its senior officers in dealing with the City's relationship with the Board of Trustees of an employee pension plan, in a fact situation such as that under discussion. Even assuming that each of the four staff members in question does have a legal conflict of interest, it is not one of a kind, nature or substantial effect which would lead to a rational conclusion that the employee would be incapable of providing expert and objective advice to the City in the normal performance of his or her duties to do so. In assessing whether the Council should request such advice despite any conflict of interest, factors to be taken into account could include: the intent of the legislation; the objectives of the Council in the context of the public interest-, the likelihood that the advice would be sound and well-based; the likelihood of a breach of the public interest where the employee provides professional advice to the Council; 29 WeirFoulds LLP 8/11/2005 1:38 PAGE 031/034 Fax Server WeirFouldsLLP BARRISTER& A, SOLICITORS a, the size, nature and quality of the respective interests involved; whether or not the conflict of interest is a technical, theoretical or attributed one of minimal nature unlikely to impact on the performance of the employee's duties, as opposed to a substantial potential for financial benefit which might influence the nature of the advice given; the cost to the mw icipality of deciding to retain outside professional advice by reason only of a perceived or non-substantial conflict of interest on the part of its staff, the interests ofthe City's employees/beneficiaries of the Fund, as anticipated by the Provincial legislation; whether there is any reason to doubt the honesty, integrity and impartiality of the employees' motives; the appearance to the public of the rightness of the process in the eyes of a reasonable observer; whether the Council's decision is ultimately practical and supportable in terms of all of the circumstances of the case. In assessing the above issues, it is undesirable that the City Council adopt a rigid or arbitrary approach, as opposed to exercising common sense in seeking to ascertain and fulfil the intentions of the Legislature as to how the City Council might best perform its duties in the public interest. A rational analysis of these issues, taking into account the foregoing criteria, would inevitably lead the Council to conclude that, it is not only reasonable and practical to conclude that the four officers in question are by no means precluded from providing advice to the Council but in fact it is the intention of the Provi ficial Legislature that they be in a7pbsition to do so, despite the fact that each of them is a member of the Pension Fund and a potential beneficiary of Pension Fund payments after retirement, Each is a public officer obliged by the legal public duties which pertain to the officd, and at least in the case of two of the officers in question, by professional duties and standards as well, to act professionally and ethically in providing sound advice to the Council, as well as owing duties of loyalty, good faith and other fiduciary duties to the City Corporation, 30 WeirFoulds LLP 8/11/2005 1:38 PAGE 032/034 Fax Server WeirFouldsl.LP BARRISTERS 4 SOLICITORS In any event, with respect to the actual issues before the Council, it is not in a position of administering the Pension Fund, deciding or participating in its investment policies, let alone making decisions with respect to the amount of employee contributions or the size of the pensions to be paid. In all of the circumstances it would be an absurd conclusion to suggest that by reason solely of the fact that the foremost senior public officer employees of the City Corporation are also in their personal capacity members of the Pension Fund, this should preclude them from providing their knowledge and expertise to the benefit of the City Corporation generally, in dealing with issues arising from the establishment by statute of the Pension Fund and the membership of its Board of Trustees, whose statutory scheme anticipates that very situation. Furthermore, there is no basis for any perception by any reasonable member of the public that an actual conflict of interest on behalf of any of the employees in question would, or could be expected to, arise in these circumstances. (i) Whether Council has any obligation with respect to the administration of the City of Saint Tohn Pension Act, and if so, the nature and extent of such obligation. The sole and exclusive legal responsibility for the administration of the City of Saint John Pension Act is conferred upon the Pension Board by subsection 3(1) of the City of Saint John Pension Act. The sole responsibilities of the City under that Act are as follows: to furnish the Pension Board (through the Commissioner of Fina=e) with a complete list of members of the Pension Plan (ss. 3(3)); to deduct contributions from salaries paid to members and pay such into the Pension Fund (ss. 6(6)); and to contribute to the Pension Fund certain amounts to fund pensions, and to address deficiencies (s. 7). 31 WeirFoulds LLP 8/11/2005 1:38 PAGE 033/034 Fax Server WeirFouldSELF BARRISTERS & SOLICITORS (ii) The standard to which Council would be held in meeting such obligation. My Response: To repeat, neither the City of Saint John nor its Common Council has any direct obligation with respect to the administration of the City of Saint John Pension Act. The Board of Trustees is an independent body created by statute and entrusted entirely with such duties, which are of a fiduciary nature. The composition of the Board of Trustees appears to be based primarily on issues of representation. Whereas four of the senior staff members of the City are members of the Board of Trustees, they are there in their personal capacities, ex officio, in the case of three of them, and in the case of the City Solicitor, by reason of being appointed by the non-union employees of the City from among their members. It is the duty of the Board of Trustees to obtain whatever professional, legal, financial or actuarial advice the Board may require. Despite their professional qualifications, none of the four senior City officers are in a position to provide professional advice to the Board of Trustees. (iii) The means or process by which Council could assure fulfillment of any such obligation, recognizing the current circumstances of the Pension Fund. I&JO The City of Saint John Pension Plan has substantial unfunded actuarial liabilities, some or all of which may become the legal responsibility of the City to pay, in accordance with the obligations imposed upon it by section 7 of the City of Saint John Pension Act. The City Manager and Commissioner of Finance have provided to the Common Council a report dated March 18, 2005 addressing options to fund the pension deficit. Since both contributions and pensions are fixed by a formula contained in the Act, legislative change would be required in order to either require increased contributions by members or to decrease the benefits to be paid to them out of the Pension Fund. It is, of course, open to the Common Council to ascertain means by which funds riiay be raised to —address the deficiency. Options for this purpose are considered in the report referred to above. In that report, reference is made to a proposal to approach the Province with a view to having municipalities exempted from the solvency deficiency rules and to search for creative solutions through the assistance of financial and actuarial advice with respect to steps Council might take to ensure that its actions are consistent with the legislative requirements, minimize the effects of the deficit on the taxpayers, propose any necessary changes to legislation, and propose changes to the Plan that will reduce or possibly eliminate the risks of future such deficiencies being borne by City taxpayers. 32 Weir Foulds LLP 8/11/2005 1:38 PAGE 034/034 Fax Server WeirFould&L, RARRISTERS t SOLICITORS These are all subject-matters, within the scope of proper consideration by the Common Council, but do not involve the administration of the Pension Plan or Pension Fund. It is my opinion that it is the Board of Trustees upon which is conferred by statute sole and exclusive responsibility for the administration of the City of Saint John Pensi ©n Act, including the Pension Plan and Pension Fund administered under that Act. It is further any opinion, for the reasons set out above, that the Council, by reason of the disclosure and compliance by the officers in question, has knowledge of such conflict, and is therefore in a legal position to make such request for such advice, if it decides to do so. It has, of course, at all times, the legal discretion to decide to seek advice from third parties having no connection with the Plan whatsoever. I trust that the foregoing will be of assistance to you, and will be pleased to discuss this matter further with you or the Common Council of the City of Saint John, at any time. Eye 33 WeirFOUIds LLP George H. RuxtDTTe F,mail grLutdeye@weidOu1Ck-COM direct Line 416. 947.5080 File 11400.00041 8/11/2005 10:52 PAGE 002/025 Fax Server City of Saint John 15 Market Square P.O. Box 1971, Stn. Main Saint John, NB E2L4L1 Attention: Mr. John L. Nugent City Solicitor Dear Mr. Nugent: WeirFoulds LP BARRISTERS a SOLICITORS August 11, 2005 Re: Responsibilities of the City Council in the Administration of the City of Saint John Pension Act This is in response to your letter of July 25, 2005 requesting our opinion as to legal duties of members of the Common Council relating to meeting the financial obligations of the City, with particular reference to the issue of whether the councillors' responsibilities include ensuring that the Pension Board is meeting its fiduciary duties with respect to the administration of the City of Saint John Pension Act, and whether personal liability in negligence may accrue to them where it is alleged that they have breached their duty in that regard. , For reasons which will be demonstrated below, the subject-matter breaks down into two general issues of importance to municipalities generally, in respect of which, despite a significant amount of research, I have been unable to find a thorough and conclusive analysis, either in textbooks or court decisions. The two issues are as follows: (1) What are the financial/fiduciary duties, if any, of the elected members of a municipal council with respect to the financial affairs of the municipality, and including, specifically, in this case, with respect to the administration of the City of Saint John Pension Act and the Plan and Fund created by the City of Saint John Pension Act? , The'Excliange Tower, Suite 1600 Telephone 416-365-1110 P.O. Box 480, 130 King Street West Facsimile 416-365-1876 Tm-onro, Ontario, Cana& LVjL5X 1J5 Website www.weirfoulds.com LL -Ap WeirFoulds LLP 8/11/2005 10:52 PAGE 003/025 Fax Server WeirFould&L, BARRtSTIERS I SOLICITORS (2) at potential liability could members of Council incur with respect to an alleged breach of any such duty or duties? Analysis of these issues must take into account the following key factors: this discussion is in general terms, not referable to any Particular fact situation involving any alleged breach of duty. A legal opinion with respect to a particular fact situation would involve specific analysis of the facts relevant to the particular issues in that case and consideration of the legislation and law applicable to the particular area ofjurisdiction; municipalities are created and given their powers by provincial statute. Any discussion of the responsibilities of a municipality, or its council, must take into account this legislative context. The inquiry must include ascertaining and giving effect to the intention of the Legislature in enacting the statutory provisions in question. This does not preclude, of course, a discussion of the extent to which existing non-statutory legal principles, such as those relating to fiduciary duties or the law of negligence, may pertain to municipal corporations and members of their councils; it is essential to recognize the distinction between the legal duties and potential for liability imposed upon the municipal corporation, on one hand, and those affecting individual members of its council or, for that matter, members of its staff, on the other; in addressing the legal duties and obligations of a city corporation and the members of its directing body, it is necessary to take into account not only the statutory basis for municipal duties, but the nature of the particular function being exercised in any specific case. Different laws and principles govern municipal operational decision-making from those relating to the conduct of individual councillors in matters outside the normal course of their duties in attending meetings of the council and debating and voting upon inunicipal decisions; any person may commence legal proceedings against the City, or any member of its Council, involving any number of purported legal duties. This cannot be precluded or forestalled; presumably, however, in such circumstances, where the Council is satisfied that the member of Council or staff was acting in the course of their-duties, the City would provide, directly or through insurance, a defence to the proceedings on behalf of the individuals involved. It might well ' be the first recommendation of defence counsel that a motion be brought at the outset to dismiss the action as against the individual defendants; - .1 2 WeirFoulds LLP 8/11/2005 10:52 PAGE 004/025 Fax Server WeirFould&L, 10ARRISTPR8 & SOLICITORS a legal duty is -specific to the capacity and legal context within which the functionary is exercising powers or discretion. The fact that the Legislature has established a Pension Fund for employees of the City of Saint John, and provided for designated members of its Council to sit on the Bpard of Trustees, does not, in the absence of other I islative provisions, inv6lve the City itself in the administration of the FZd, or impose fiduciary duties either upon the City Corporation or the members of its Council in making decisions which relate to the financing of the Fund; the proper legal investigation of these issues involves not so much the search for a conclusion as to whether or not the City, its Council or any member or members of its Council constitutes a "trustee" or an "agent" on behalf of the beneficiaries of the Pension Fund, but the need to delineate what duties the law imposes upon each of the players in question, what may constitute a breach of that duty, and what, if any, legal ramifications flow from a finding that such a breach has occurred; the law must be presumed not to intend absurd results or impose legal duties dependent upon hypothetical or minimal factors; even where it is held that a fiduciary or other legal responsibility exists, a number of factors may be recognized in law as mitigating an alleged breach of that duty, or removing the legal impact of it altogether. (1) WHAT ARE THE FINANCIAL/FIDUCIARY DUTIES,'IF. ANY, OF THE ELECTED MEMBERS OF A MUNICIPAL COUNCIL WITH RESPECT TO TBIE FINANCIAL AFFAIRS OF THE MUNICIPALITY, AND INCLUDING, SPECIFICALLY, IN THIS CASE, WITH RESPECT TO THE ADMINISTRATION OF THE CITY OP A17VT JOHNPENSIONACT AND THE PLAN AND FUND CREATED BY THE CITY OF SAL?VT JORN PENS10NACP The principal legislation relevant to these issues includes the Municipalities Act, R.S.N.B. 1973, c. M-22, the Pension Benefits Act, S.N.B. 1987, c. P-5.1 and the City of Saint John Pension Act, S.N.B. 1994, c. 112, as amended (you have provided me with a copy of an office consolidation of this Act, upon which I have relied for the purposes of the discussion herein). - .1 3 WeirFoulds LLP 8/11/2005 10:52 PAGE 005/025 Fax Server WeirFould&L. BARRISTZRS & SOUCITOR3 I have also reviewed what appears to be a principal incorporating statute continuing the City of Saint John as a body corporate and politic in fact, with perpetual succession (an Act to unite the City of Portland with the City of Saint John and the City and County of Saint John, and to amend the Charter of the City of Saint John and the law relating to civic government, 52d Victorie 1889, c. 27). That latter statute, one of a number constituting the City and conferring powers upon the Common Council, continued the City Corporation of Saint John under the name "The City of Saint John!' as a body corporate and politic in fact, with perpetual succession, and provided that: 11. The whole civic government of the City of Saint John and the administration of the fiscal, prudential and municipal affairs of the City shall continue to be and shall be vested in the Common Council of the City of Saint John, composed of the Mayor of the City of Saint John, and two aldermen elected for each ward of the said City as hereinafter provided. The current Common Council of the City of Saint John is comprised of the Mayor and ten councillors. My general review of the provisions of this Act have not disclosed any specific provisions relevant to the issues under discussion in this opinion letter. In the absence of reference to any such provision by the City Solicitor, I will proceed on the basis that, in issues of principle involving the duties and potential liabilities of the City and the members of its Common Council, the other statutes referred to above provide the relevant authorities, This statute establishes the composition of the Board of Trustees, known as the Pension Board, composed of 12 members, with powers and duties to administer the Act, and having a number of specified powers and duties set out therein. Of primary significance to the issues under discussion is the fact that under subsection 2(2) of the Act, eight of the members must be current employees (and, therefore, future pensioners) of the City. In fact, under subsection 2(6)(b),, should any of those eight members cease to be employees of the City, their office as a trustee is vacated. 4 WeirFoulds LLP 8/11/2005 10:52 PAGE 006/025 Fax Server WeirFould&L, BARMSTRRS & SOLICITORS A ninth member, representing retired employees, would be a pensioner now receiving benefits from the Pension Fund. The Act therefore creates what might be called intended and sanctioned conflict of interest, with the full kno '' ' ' I d d presumed intent c, the Legislature, in that nine of the 12 members of a body administer!ng a Zbstaritial fund on behalf of a large number of contributors and beneficiaries are required to hold a position which otherwise could be considered at law to produce a conflict of interest. In effect it is this capacity of each of those members which would cause that presumed "conflict" which also gives the individual in question the right to participate, thereby removing what otherwise could in law involve an incapacitating situation of financial conflict for each of the nine individuals in question. Otherwise, the nine members of the Pension Board would presumably have to declare a conflict of interest and not participate in almost all of the decisions that the Pension Board would have to make. Such would be an absurd result and inconsistent with the clear intent of the legislation. The Province in its legislation adopted the policy that the Pension Fund should be administered by its members. It would similarly follow that this anticipatory relief from what otherwise would be a conflict of interest, would also authorize an employee or ex-employee to provide information and advice to the Council with respect to pension matters, even if such a presumed conflict would otherwise be held to exist. In any event, as discussed in my opinion letter, it is not at all clear that the employees in question would be held to have a "conflict of interest" in respect of matters involving the Pension Plan. A number of legal factors would mitigate, or remove entirely, any potential conflict. With respect to the four senior members of staff, namely, the Commissioner of Finance, Common Clerk, City Manager and City Solicitor, to the extent that one of those senior- appointed officers could be said to have a "conflict of interest", the Municipalities Act provides, in section 90.8, that requirements of the Act relating to a conflict of interest by an-appointed officer do not apply where the officer, acting within the scope of his or her employment, provides to the Council advice on a matter with respect to which he or she has a conflict of interest, at the request of the Council, to which has been provided disclosure of the conflict. To the extent that the Act could be held to confer any powers or duties upon the Common Council with respect to the Pension Fund, this mechanism would protect the municipal corporation and members of its Council and staff in respect of any potential liability which could conceivably be incurred by reason of Council decision-making, including a decision to request - __* 5 WeirFoulds LLP 8/11/2005 10:52 PAGE 007/025 Fax Server WeirFoulds,LP BARMSTERS & SOLOCITOR3 and receive advice from members of its staff who are also members of the Pension Board, where, as here, the provisions of section 90.8 of the Municipalities Act have been duly complied with. It is noted that section 17 of the Pension Benefits Act 'imposes upon the "administrator" of a pension plan obligations normally referred to as fiduciary dutie& in this case, it is clear that it is the Pension Board of the City of Saint John Pension Plan, not the Common Council of the City of Saint John, which constitutes the "administrator" for the purposes of the Pension Benefits Act. Consequently, in view of the very limited powers and duties conferred and imposed upon the Common Council of the City relating to the Pension Fund, I have concluded that none of the City Corporation, the Common Council or members of the Common Council as individuals have imposed upon them, as such, fiduciary duties pertaining to the administration of the Pension Plan and Fund itself, whatever may be their duties otherwise as discussed below. While obviously the Mayor and the two designated members of Council who sit on the Pension Board are in the position of participating in decision-making normally referred to as the exercise of the powers of trustees, and involving fiduciary duties, otherwise, the relationship of the City administration to that of the City of Saint John Pension Act involves simply a contingent liability of the Corporation, similar to legal financial obligations relating to other facets of the City's operations. In other words, while the City has the power and duty to collect contributions from its employees, make its own contributions, and forward such amounts to the Pension Board (involving, temporarily, the duty of a trustee with respect to its holding of funds to which the Board is entitled), and the legal duty to make up any shortfall in unfunded liability or experience deficiency or solvency deficiency, experienced by the Pension Fund, this does not in itself, otherwise impose fiduciary duties upon the City Corporation or its Common Council. Similarly, while the Common Council may consider and debate whether or not to request the Province of New Brunswick to amend the legislation, or consider how the City itself is to raise funds to cover an unfunded liability or deficiency, neither of these subjects of decision-making involves in itself the imposition of a fiduciary duty upon the members of the Council. In dealing with a potential request for legislation, this result would flow from the fact that the Council itself is not making any decision of a financial nature, but simply requesting the Provincial Legislature to make its own decision to amend its legislation. In the latter case, the City is dealing with its own financing, which may involve its own financial or investment policies, with the potential for either debenturing or raising property taxes for the purpose of complying with its obligations. However, once again, the fact of this subject-matter alone as - --t 6 WeirFoulds LLP 8111/2005 10:52 PAGE 008/025 Fax Server WeirFould&!-, BARRISTERS & SOLICITORS relating to the Pension Fund, does not in any way impose upon the Common Council or its members any fiduciary duties where none would otherwise exist. THE MUNICIPALITIES ACT )While I have concluded that, although the legal issues which the City has referred to me arise out of the context of the City of Saint John Pension Act and Plan, nevertheless, decision-making by the Common Council relating to that Act would not, for that reason alone, constitute the fulfillment of a fiduciary function, the question remains as to whether or not the Common Council fulfills the Tole of a trustee or agent or otherwise acts as a fiduciary, in the exercise of its powers, particularly involving financial matters, and if so, the extent to which, if any, potential liability may be incurred, whether by the City Corporation, the Common Council, or members of that Council as individuals, in so doing. Once again, the first step in any analysis of these issues involves reference to the legislation establishing the City Corporation and conferring powers upon its Common Council. Under subsection 9(l), the powers of a municipality are vested in and shall be exercised by its council. Accordingly, a municipal council is somewhat analogous to the board of directors of a business corporation, but the powers of the council are governed by the Act and the law applicable to municipal corporations. Under section 6 of the Act, the Corporations Act does not apply to a municipality, The Municipahties Act imposes few specified duties upon individual members of a council. Section 10 of the Act requires that the council hold meetings, but does not impose a particular obligation on any individual member of council to attend any of those meetings. Under section 10. 1, however, where any member, including the Mayor, is present at a meeting, and is not disqualified from voting, he or she is required to vote. Under section 36 of the Act, the Mayor is required to preside at all meetings of the Council except where otherwise provided by certain legislation, and to "provide leadership to Council, communicate information and recommend actions to Council for the improvement of the municipality's finances, administration and government, speak on issues of concern to the municipality on behalf of Council, and perform any other duties conferred upon him or her by this or any other Act or by Council." Under subsection 36(l.1), despite the- above provisions, the Mayor is subject to the direction and control of Council, and is required to abide by the decisions of the Council. - --t 7 WeirFoulds LLP 8/11/2005 10:52 PAGE 009/025 Fax Server WeirFould&L, BARRISTERS & SOLMITORS Subsection 36(2.1) imposes upon each councillor (defined to mean a member of council other than the Mayor) a number of specific duties, including to consider the welfare and interests of the entire municipality when making decisions; bring to the attention- of council matters that may promote the welfare or interests of the municipality; participate in developing and evaluating policies and programs of the municipality; participate in meetings of council, its committees "and any other body to which he or she is appointed by council" (the latter of which would apply to the two members appointed by the Council to the Board of Trustees of the City of Saint John Pension Act); and perform any other duties conferred by legislation or by the council. Sections 74 to 82 provide for the appointment by the council of its senior public officers, including the chief administrative officer, clerk, treasurer, auditor and city solicitor. The council is required to appoint each of a clerk, treasurer and auditor, and the Act sets out specific duties imposed upon the clerk and treasurer. . It is noted that, under subsection 77(l)(g), the treasurer has the duty to ensure that the municipality is protected by insurance against risks that may involve pecuniary loss or liability on the part of the municipality. Under section 85.1 of the Act, a municipality is authorized to indemnify each member of council, officer and employee, among others, against costs and expenses incurred by reason of any civil, criminal or administrative action or proceeding brought against such person by reason of being or having been such a member, officer or employee, if he or she: (a) acted honestly and in good faith with a view to the best interests of the municipality, and (b) in the case of a criminal or administrative action or proceeding enforced by a monetary penalty, had reasonable grounds for believing the conduct was lawful. Under subsection 85,1(2), such an individual is entitled to indemnity in relation to all costs and expenses incurred in connection with such a proceeding, where the person seeking indemnity: (a) was substantially successful on the merits in defence of the action or proceeding, and (b) _ fulfills the two conditions set out in the paragraph quoted above. - --It 8 WeirFoulds LLP 8/11/2005 10:52 PAGE 010/025 FaX Server Weir FouldsLLP DARRISTER8 & 30LICfTORO Under subsection 85.1(3), the municipality cannot insure a member of council, officer or employee with respect to liability which relates to that person's failure to act honestly and in good faith with a view to the best interests of the municipality. Obligations to insure and indemnify would also not apply where liability did not arise by reason of the person!s members ip in employment by the municipality, such as where the person was acting in his or her personal capacity or was not acting in the capacity as a member of council or staff, including acting in the performance of a statutory duty. Section 90.2 of the Act defines "conflict of interest" as a situation where a member or senior-appointed officer of the corporation, or a family associate, directly or indirectly, has or proposes to have an interest in a contract in which the municipality has an interest, or has an interest in any other matter in which the municipality is concerned that would be of financial benefit to that person or the family associate. . Under section 90.2, the interest of a family associate is not attributed to the member or officer unless the latter knew or ought reasonably to have known of the family associate's interest. Section 90.2 provides that a member of a trade union that has an agreement or is involved in collective bargaining with the municipality, pality, has a conflict of interest with respect to any matter relating to the administration or negotiation of the collective agreement. That provision is of interest in possibly creating the inference that such would otherwise not involve a conflict, in the absence of that provision. Section 90.3 defines situations in which a member or senior officer does not have a conflict of interest, such as where he or she is: "(a) a qualified voter, owner-occupier of residential property, or user of a public utility of the municipality; (b) entitled to receive on terms common to other persons any service or commodity or other benefit offered by the municipality; 0) a person having an interest which is an interest in common with voters generally; W a person having an interest which is so -remote or insignificant in its nature that it cannot 9 WeirFoulds LLP 8/11/2005 10:52 PAGE 011/025 Fax Server WeirFould&L, BARRIOTERS & 90LICtTOR3 reasonably be regarded as likely to influence the member; or 0) a member or officer of a service club or charitable organization that is in receipt of a benefit from the municipality." These provisions, individually and collectively, would appear to acknowledge that some what might be called "technical conflicts" are not treated as conflicts of interest where they arise out of the normal operations of the municipality, and involve minor, expected or normal business, social or civic activities by members of council or employees. This characterization could also, by analogy, describe the situation of a potential or actual pensioner of the City pursuant to a statutory pension plan. In the case of both a member and a senior officer, each is required to disclose at the earliest possible time every conflict of interest, whether upon assuming office or when the conflict arises. In the case of a member, where a matter in which the member has an interest is under consideration by the council, the member is required to disclose the conflict of interest and forthwith withdraw from the meeting room while the matter is under consideration or vote. In the case of a senior officer, he or she could give advice to the council in respect of the matter in which the conflict of interest exists, provided that the council requests the advice having full knowledge of the existence of the conflict. (s. 90.8(1.1)) Section 90.8 prohibits the acceptance of gifts and benefits that could reasonably be seen to influence a decision, and further prohibits the use of insider information for personal or family gain. Breach of the above prohibitions constitutes an offence punishable under the Provincial Of Procedure Act, in respect of which the Court may also make an order requiring a person to resign from his or her office or position, prohibiting the person from holding that office during some period of time, and, where contravention has resulted in financial gain, requiring its return in accordance with terms and conditions imposed by the Court. On the other hand, the Court may give an absolute discharge where the violation has not resulted in any personal gain to the person accused, and the violation was, in the opinion of the Court, one of mere inadvertence. 10 WeirFoulds LLP 8/11/2005 10:52 PAGE 012/025 Fax Server Weiffould&L, BARRISTERS & SOLICITORS Section 90.91 provides that the provisions of the Act with respect to conflicts of interest are deemed to supersede all other legislative provisions with respect to such matters, whether or not a conflict exists between the provisions of this Act and the other provisions. Although I have not been/ able to find any jurisprudence dealing with the issue, looking at the legislaiion as a whole, I would conclude that a member of council or senior appointed officer whose only financial interest in a matter under consideration by the council relates to the City of Saint John Pension Plan, despite the fact that the member or officer is a member of that Plan and has a potential interest in receiving a financial benefit from the Plan through a pension, this could well be considered a benefit which the person is entitled to receive on terms common to other persons, or an interest which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the person. This conclusion would be reinforced by the fact that the City and its Common Council are not in a position to make any decision to effect change to the amount of employee contributions or benefits, or the City's contributions to the Pension Fund. This fact might well, in fact, lead to the conclusion that at no time would the Council have such an issue "under consideration", meaning that no such conflict of interest would arise in the first place. Looking at some of the exceptions, it would, for instance, appear to be anomalous and possibly absurd to conclude that while the Act intends that a director or senior officer appointed by a municipality to a company incorporated for the purpose of carrying on a business on its behalf could vote or provide advice with respect to matters relating to, his or her own salary, and a member or officer of a service club or charitable organization could vote upon or provide advice in respect of a discretionary benefit to be conferred upon that body by the municipality, whereas a member 6f a statutorily-required pension plan of which the member or senior officer is required to be a member, would be precluded from participating as a member of council, or as a senior officer prohibited from giving advice to the council, by reason of that membership alone. Although there are very few cases dealing with issues -of conflict of interest in the context of legislative intent as part of a statutory scheme, in two Ontario conflict of interest cases, the Courts appear to have recognized that members of councils may be found not to have conflicts of interest by reason only of their membership in other public bodies. I In any event, with respect to senior officers, the Act provides an absolute defence where the senior officer has made full disclosure of his or her conflict of interest, and the 1 See BlYM v. Northumberland (County) (1990),75 OR (2d) 576 (Ont. Ct. Gen. Div.) and Bowers v. Delegarde (2005),5 M.PJ-.R. (0) 157 (O.S.C.L) - -1 11 WeirFoulds LLP 8/1112005 10:52 PAGE 013/025 Fax Server WeirF Yom' uldsLLP BARRISTERS a SOLICITORS council, having knowledge of that conflict, requests the senior officer to provide advice in any event. This is the situation in respect of all four of the senior officers of the City of Saint John referred to above. Every issue dealt with by a council potentially involving conflict of interests by one or more of its members or senior-appointed officers, involves factors and issues peculiar to the particular fact situation involved, and the precise nature of the decision which the council is being asked to make. ,A t .. the same time, on the basis of the legislation referred to above, I would conclude that it would be highly unlikely that a court would hold that a member of the Common Council, or one of the four senior-appointed officers, in the circumstances of this case, to have breached the provisions of the Act with respect to conflict of interest by participating in Council consideration of the matter on behalf of the members, or providing advice to the Council at its request in the case of the senior-appointed officers. FIDUCIARY DUTIEES While, as I have concluded, the duties of the Common Council with respect to the City of Saint John Pension Fund are those specifically imposed upon it by statute, and do not involve additional duties of a fiduciary nature, pertaining to the administration of the Pension Fund itself, the Courts have held that members of a municipal council may be subject to fiduciary duties, whether by reason of being characterized as "trustces" or "agents", or simply by reason of their position of trust vis -a -vis the inhabitants of the municipality and the public interest which they represent. At the outset, of course, it must be stated that the powers and obligations of the members of Council are primarily statutory, to which attach certain common law principles,. such as the prohibition against a council's unlawfully fettering its discretion or delegating its responsibilities, and that its powers must be exercised in the public interest in the context of the applicable legislation. Superimposed on these duties, however, are a series of principles developed by the courts of equity, which, although not specific in their terms, involve significant, binding and enforceable responsibilities imposed upon each elected member of a council. I To summarize my conclusion arising out of my review of the case law - the members of a municipal council have a legal duty to- act in the best interests of the inhabitants. of ways: The components of this principle have been articulated by the courts in a variety 12 WeirFoulds LLP 8111/2005 10:52 PAGE 014/025 Fax Server WeIrFoulds... BARRISTERS 4 30LICITORS "... The so-called duty to act impartially ... is no more than the ordinary duty which the law imposes on a person who is entrusted with the exercise of a discretionary power: that he exercise that poNyer for the purpose for which it is given, giving proper consideration to rnatters which are relevant and excluding from consideration matters which are irrelevant."' "The settled rule [principle of equity] is, that he who is entrusted with the business of others cannot be allowed to make such business an object of interest to himself. Or, as Lord Eldon expressed it ... 'a trustee, who is entrusted to sell and manage ... for others undertakes in the same moment in which he becomes a trustee not to manage for the benefit and advantage of himself. This is not a rule of positive law. It does not depend on reasoning technical in its character or local in its application. It is founded upon the principles of reason, of morality and of public policy. It has its foundation in the very constitution of our nature, for it has been authoritatively declared that a man cannot serve two masters, and is recognized and enforced wherever a well regulated system of jurisprudence prevails." s "The large estates belonging to the City of Toronto, and the income which they produce; the ample public revenue derived from taxation; all their complicated transactions, pecuniary and otherwise, are under the management of the Common Council. Now it is impossible to deny that these important rights have their corresponding duties. This is in substance and effect a trust. There is no magic in a name. The Common Council is in fact entrusted with the management of the affairs of the City of 2 Edge [and othm] v. Pensions Ombudsman and anolher, [ 1999] All E.R- 546 (C.A.) 3 City of Toronto v. Bowes, [1954] O.J. No. 210,4 Gr. 489 (Upper Canada Court of Chancery), para. 40; upheld 11 Moo. P.C. 463,14 E.R. 720 (Privy Council), This decision has been followed by courts across Canada. 13 WeirFoulds LLP 8/11/2005 10:52 PAGE 015/025 Fax Server WeirFould&L, BARRWERI I SOLICITOR& Toronto, and 1 am at a loss to discover why the rule applicable to every other case of trust should not be applied to this. If the rule be one of pressing necessity in cases of ordinary trust, why is it to be abrogated where the trusts are of such vast magnitude and importance? Why is the principle to be held inapplicable when the probabilities of an abuse of trust are so greatly multiplied? Such a determination in a country, the local concerns of which are managed to so large an extent by corporations of this sort, possessed of such extensive powers, will be productive in my opinion., of the worse consequences to the moral and material interests of the community. ,4 "The member of a council stands as trustee for the local community, and he is not so to vote or deal as to gain or appear to gain private advantage out of matters over which he, as one of the council, has supervision for the benefit of the public. The councillor should not be able to invoke the political or legislative character of his act to secure immunity from control if the taint of personal interest sufficiently appears therein."5 "... I can come to no other conclusion than that a member of such a body as the Common Council of the City of Toronto is an agent and trustee, and accountable as such to the municipality whose affairs it administers, and I do not see that a Mayor, warden or other presiding officer is either more or less an agent and trustee — and as such accountable — than any other member of the body. 116 "No one disputes that for certain purposes the members of the Council are in a sense "tees for 4 Ibid., para. 47 ' Re LSObi and Corporation of Blind River (1904),7 O.L.R. 230 (0.1-I.C.3. — Div. Ct.), para. 16 6 City of Toronto v. Bowes supra, para. 66 14 WeirFoulds LLP 8/11/2005 10:52 PAGE 016/025 Fax Server WeirFouldsl..P BARRISTERS A SOLICITORS the ratepayers, nor do I dispute that the corporation may be enjoined from carrying into effect an illegal act of the Council, but there are differences in trustees. The term trustee is a very broad oni. One might have very/ broad discretionary powers, another may have "none. What .. might be a breach of trust in one may be quite within the powers of the other. It depends upon the character of the trust. It cannot be questioned that in many, perhaps in by far the most, of their duties the members of a Council are entirely beyond the powers of the courts or the will of the ratepayers. They may in their discretion pass by-laws which have the effect of greatly reducing the income, or greatly increasing the outlay of the corporation, as well as exercise other powers to the grievous burdening of the ratepayers who are without any remedy except that which the annual election of the members of the Council affords them."' 1',.. 'Fiduciary obligations' must be reserved for situations that are truly in need of the special protection that equity affords."8 My review of case law dealing with the duties of members of municipal councils, including the decisions referred to above, results in my conclusion that the above principles (in addition to specific statutory responsibilities) impose upon every member of a municipal council bylaw the duty to: act honestly, in utmost good faith and in the interests of the inhabitants; exercise the care, diligence and skill that a person of ordinary prudence would exercise when dealing with the property of another person-, act reasonably for the purposes for which the municipality and the position of councillor were created; 'Phillips v. Bellville (City) (1905), 9 0.L.K 732 (per Meredith J., dissenting) 1 LACMinerals Lid v. International Corona Resources Ltd, [1989] 2 S.C.R. 574 at 596 15 WeirFoulds LLP 8/1112005 10:52 PAGE 017/025 Fax Server WeirFouldsLLP BARRISTERS A SOLICITORS not act on the basis of private interest, bias, malice, bad faith, fraud, oppression or other improper motive; not place him or herself in a situation where the members duty and personal interest may conflict; and , avoid a situation creating a reasonable apprehension of bias, personal interest or improper influence, in voting upon a measure. The foregoing general principles are reflected in the large body of jurisprudence dealing with the duties of trustees and fiduciaries generally, and the relatively small body of jurisprudence dealing with the duties of municipal councillors. Arising out of those principles are a number of general statements involving the content of duties and means by which potential breach of duty may be mitigated: a member must maintain the confidentiality of municipal information and must not make use of insider information for his or her own personal gain; a member cannot make a secret profit or appropriate corporation assets for his or her own use; it may not be a breach of duty in circumstances in which: there has been complete disclosure of the interest of the member; participation by the member is authorized and supported by applicable legislation; the interest of the member is not substantial; or the member's interest is held ix common with affected persons generally. Statutory provisions dealing with municipal conflict of interest are primarily based on the foregoing characteristics of fiduciary duties developed by the courts of equity. In accordance with such duties, it is generally considered that the mere appearance of a conflict of interest may. in some circumstances constitute a breach. A member found guilty of a conflict may be required to account to the municipality for any benefits gained. Each issue of potential conflict is specific to its facts. It is the act of voting by a person having a financial interest that constitutes the breach, whether or not the vote in fact affects the member's interest, no matter whether the amount involved is great or small, whether or not the member votes for or against his or her interest, or the degree of financial interest affected. At the same time, where the 16 WeirFoulds LLP 8/11/2005 10:52 PAGE 018/025 Fax Server WeirFould&L. BARRISTERS & SOLICITORS A municipal corporation, which, for many purposes, may be considered a ItpeTson" in the course of acting in an operational capacity, is subject to the decision-making control of its directing mind, the city council. Accordingly, decisions of the council, as well as the actions and conduct of officials and employees for whom the municipal corporation may become vicariously liable, may give rise to civil litigation in respect of common law wrongs, or "torts", including non-intentional torts such as negligence, and intentional torts, such as inference with economic relations, misfeasance in public office, conspiracy and abuse of public office. Actions for damages are brought from time to time against municipalities based on the above causes of action, as well as for such things as breach of contract, occupier liability, nuisance, environmental claims, injurious affection, wrongful or constructive dismissal, breach of statutory authority, conspiracy and other grounds involving alleged municipal wrongs. Members of councils are, from time to time, named as defendants in such proceedings, although such claims are relatively rare. In even rarer cases, actions may be brought directly against members of municipal councils alleging that they have committed personal wrongs against the plaintiff by reason of direct actions by them outside of participation in decision-making on behalf of the municipality, in circumstances in which one or more such members have become involved in operational activities, managerial decision-making or other actions as individuals said to have caused damage to the plaintiff. At the outset, I wish to re-assure the members of the Council of the City of Saint John that, at least in recent times, virtually none, if any, of any of the above-mentioned types of action have succeeded in establishing liability on behalf of an individual councillor. One source of liability which could occur would involve an action against a councillor for defamation, for statements made outside of the council setting, or other allegations where the councillor may be found to have used or abused his or her office, in acting other than in good faith in the course of his or her duties as a councillor. 17 WeirFoUlds LLP 8/11/2005 10:52 PAGE 019/025 Fax Server Weir FouldsLLP RARRISTtRZ & SOLICITORS A member of a council is a legislative officer whose duties normally do not involve personal conduct creating a cause of action upon which personal liability may.flow. With reference to the subject-matter which gave rise to the request for this legal opinion, namely, the administration of the City of Saint John Pension Act and the Pension Plan and Fund established thereby, members of the Common Council might participate at Council in decision-making with respect to such issues as: 0 the appointment of the two members of Council to the Board of Trustees; decisions with respect to procedures for the collection and remittance of contributions by employees to the Pension Fund; decision-making with respect to means of compliance by the City with its statutory duty to make contributions to the Pension Fund whether in the normal course or to compensate the Fund in respect of unfunded liability or deficiency pursuant to section 7 of the City of Saint John Pension Act; financing decisions with respect to raising funds to finance the City's share of unfunded liability-, the hiring or termination of employment of employees to administer the collecting and remittance of the City's contributions to the Pension Fund; decisions to request the Provincial Legislature to make changes to the legislation; decisions to make requests or provide advice to the Board of Trustees with respect to the fulfilment of their statutory powers, or to request information pertaining to the administration of the Pension Fund, taking into account the fact that it is entirely the jurisdiction of the Board of Trustees to administer the Pension Act and the Plan and Fund created thereby, and the Council plays no role in the fulfilment of such duties and functions. As concluded above, it must be taken into account that the duties of the municipality to make contributions to the Pension Fund with respect to unfunded liabilities or experience or solvency deficiencies, while creating a contingent liability of the municipal corp6ration,'does not, in itself, in any way constitute the City, its Common Council or members of its Council, as trustees in respect of the Pension Fund itself. Decision-making by the City as to its own investment policies, means of raising the funds required, or requests to the Province to amend the Pension Act are all part of the normal decision-making of the Council involving its 18 WeirFoulds LLP 8/11/2005 10:52 PAGE 020/025 Fax Server WeirFould&.. BARRISTERS & SOLICITORS own financial position, in accordance with the duties imposed upon councillors pursuant to section 36 and other provisions of the Municipalities Act referred to above. Once again, it must be taken into account that each , ouncillor is an independent elected legislative officer of the municipality, participating in collective decision-making by the Council, which acts by by-law and resolution, not as an independent decision-maker or operational participant, and not an employee or agent of the municipal corporation. Accordingly, at least in most circumstances, a member of Council is not legally responsible for the actions of the Council or the corporation, nor is the City or its Council as a whole legally liable for the actions of members of Council acting in their individual capacity. Municipal councillors, where they act maliciously, in bad faith or for entirely personal motives, or violate statutory requirements such as those relating to conflict of interest, may be successfully sued or prosecuted, including under certain provisions of the Criminal - Code relating to public officers .9 However, in the context of the circumstances which led to the request for my legal opinion, I proceed on the basis that the principal concerns of the Common Council relate to whether or not individual members of the Council may be sued for negligence with respect to their participation in good faith in Council decision-making or possibly for breach of fiduciary duty with respect to financing arrangements by the City directed at compliance with its responsibilities under section 7 of the City ofSaint John Pension Act. While it is my understanding that one of the members of Council, is a member of the Pension Plan, the decision by that individual as to whether or not to participate in decision making relating to the Pension Plan is a matter of individual judgment for that councillor to make. It has been established by the Supreme Court of Canada in a case involving an allegation of negligence against a municipal councillor, that such a person is not liable in his individual capacity for a tort committed in his corporate capacity. "I conceive it to be settled law that no action lies against the individual members of a corporation for a corporate act done by the corporation in its corporate capacity, unless the act be maliciously done by the individuals, charges, and the corporate 9 'See X -v, Gentile, [ 1994] 01 No. 4445 and 4446. 't 19 WeirFoulds LLP 8/11/2005 10:52 PAGE 021/025 Fax Server Weiffoulds!.L. BARRIBTERB & SOLICITORS name be used as a mere colour for the malicious act or unless the act is ultra vires [beyond the jurisdiction of the council] and is not, and cannot be in contemplation of law, a corporate act at all."10 To succeed in an action based on the tort of negligence, a plaintiff must establish: (1) that the defendant owed the plaintiff a duty to take reasonable care to avoid, or not to cause, injury to the plaintiff; (2) that the hann complained of is a reasonably foreseeable consequence of the alleged breach of duty of care; (3) that there is sufficient proximity between the parties that it would not be unjust or unfair to impose a duty of care on the defendant; and (4) there exist no policy reasons to negative or otherwise restrict that duty." While specific statutory legislative, executive and administrative powers of decision-making are conferred and duties imposed upon the Common Council, whether exercised by by-law or resolution, and the Council has the power to direct and control the City's Mayor, the Chief Administrative Officer, other public officers, employees of the Corporation who report to the Council, and through them, in the administration of the City, it would be extremely rare and unlikely that its actions in this regard could involve a breach of duty of care subjecting it to liability in negligence to third parties, or to the inhabitants of the City in general. The generalized duties imposed by the Municipalities Act upon the Mayor and upon councillors pertain to the administration of the City at large, within the context of the provisions of that Act. Individual members of Council are elected legislative officers participating by debate and votes at meetings of the Council duly called. Consequently, while the municipal corporation as a legal entity is subject to the laws of negligence, there would be no general duty imposed by law upon members of Council individually to vote in any particular way on matters under consideration by the Council. It follows that there would be no basis in law for the imposition upon each of them as an individual, potential for liability in circumstances in which they act in good faith and without malice in participating in debate and voting upon matters within the Jurisdiction of the Council. 10 Kelliner (Village) v. Smith, [1931] S.C.R. 672. 11 OdhaijiEstate v. Woodhouse, [2003] 3 S.C.R. 263 at 265 20 WeirFould5 LLP 8111/2005 10:52 PAGE 022/025 Fax Server Weir FouldsLLP BARRISTERS a SOLICITORS I have not been able to find any reported court decision in which a municipal councillor was successfully sued in negligence, arising out of the performance of.duties as a member of the council. With particular reference Ito the City of Saint John Pension Act, I do not believe that it is within the power of the Common Council to direct and control the Mayor with respect to his participation as a member of the Board of Trustees of the Pension Plan. While section 36 of the Municipalities Act provides that the Mayor of a municipality is subject to the direction and control of Council and shall abide by the decisions of Council, it is my opinion that those powers of the Common Council pertain to the acts of the Mayor in relation to the performance of his or her duties relating to the administration of the City itself In this regard, as mentioned above, the sole duties imposed upon the City of Saint John with respect to the Pension Plan involve the collection and remittance of contributions by employees, and the payment of the City's contributions pursuant to section 7 of the City of Saint John Pension Act. Any other jurisdiction of the City involves matters of its own finances, and financial and investment policies which are a matter of its own discretion. Should the City not have sufficient funds to provide for compliance with its financial obligations to contribute to the Pension Fund, it has the legal power to raise funds, such as by increasing property taxes, debenturing or utilizing whatever other financial, tools are normally available to it relating to the financial administration of the City's affairs. The responsibilities of the Board of Trustees of the City of Saint John Pension Plan involve the proper administration of the City of Saint John Pension Act and the Plan and Fund established by it, and members of its Board of Trustees have a legal duty to act in the best interests of the Pension Plan and its members. The Common Council does not have imposed upon it such responsibilities, and cannot direct and control either the Mayor or the members of Council which it appoints to the Board of Trustees, with respect to the performance of their duties in the administration of the Pension Fund. 12 This result also flows from the legal and fiduciary duties of the members of the Board of Trustees imposed upon them by the City of Saint John Pension Act and by the equitable principles set out above under "Fiduciary Duties". Further, with respect to the issue of potential liability of the members of the Common Council in negligence, I refer to the only reported court decision involving an action for negligence in the management and investment of municipal funds, the decision of the Alberta 12 See Walker et al v. Corporation of the City of Toronto (1993),14 OR (3d) 91 (Ont Ct Gen. Div.) and Markle et al v. The City of Toronto (2003), 63 OR (3d) 321 (Ont. C.A.) at para. 44 21 WeirFoulds LLP 8/11/2005 10:52 PAGE 023/025 Fax Server WeirF caul d&.P 6ARRWER3 G SOLIC$TORS Court of Appeal in Remmers v. Lipinski (2001), 21 M.P.L.R. (3d) 165, leave to appeal dismissed [200 1] S.C.C.A, No. 502, June 13, 2002. In that cue, three inhabitants and ratepayers of the Municipal District of Big Horn No. 8, in the Province of Alberta, brought action against the chief administrative officer (known as the Municipal Manager), alleging that he had been grossly negligent in failing to supervise the municipality's Treasurer, who had invested substantial sums of the municipality's money in ways that were not authorized by legislation. The investments had failed and were not recoverable causing serious financial loss to the municipality. The lower court in that case held that: "Where those individuals who have control over municipal funds have acted improperly and caused a loss to the municipality, there is no good reason to immunize those 'individuals for their actions." 13 The Court held that under the applicable legislation, the Treasurer was subject to the supervision of, and was accountable to, the chief administrative officer in the performance of his duties. Here, it was held that the C.A.C. had "acted with conscious indifference to the rights of [the municipality's] inhabitants ... Had [the C.A.C11 undertaken even a bare minimum of independent supervision, the investments could have been stopped and the loss avoided." While the Court held that the C.A.O. had been grossly negligent, and awarded judgment against him, and that judgment was upheld by the Court of Appeal with leave to appeal dismissed by the Supreme Court of Canada, I conclude, based on a careful review of the judgments at both levels, that that decision must be considered in light of the particular and -unusual factual circumstances, and the particular legislation, applicable to that case. In any event, that action involved claims against the C.A.O., who was directly responsible for the supervision of the Treasurer, not individual members of the municipality's Council. I do not belicvc that thcrc is authority in law for the proposition that i-m-ember of a municipal council acting in good faith in the performance of his or her duties as a councillor involving matters within the jurisdiction of the Council, would be held liable in negligence in debating or voting upon matters within Council jurisdiction. . It has also been held by the Supreme Court of Canada that where a municipality is exercising legislative or quasi-judicial powers involving discretionary statutory authority, it does 13 Remmers v. Lipinski, [2000] A.I. No. 362 at pate. 29 22 WeirFoulds LLP 8/11/2005 10:52 PAGE 024/025 Fax Server WeirFould&L. BARRISTERS & SOLICITORS not owe a duty of care giving rise to liability and damages for its breach. in other words, the fact that a municipal council acting in such capacity adopts a by-law or resolution, later held to be invalid, does not result in liability being imposed upon the municipal corporation. Once again, this would als� lead me to conclude thaithe good faith actions of an individual municipal councillor acting in the performance of his or her duties as a member, would not result in personal liability for that councillor, especially where the municipal corporation itself could not be held liable. Even were it held that a municipal by-law were held to be invalid as having been enacted in bad faith, or on grounds which could only be characterized as irrational, this would not, in itself, involve liability on behalf of a member of council who had voted in good faith for the by-law in the normal exercise of his or her duties as a councillor. 14 Further, with respect to any potential liability that might be held against a municipal councillor, it should be noted that a court might well refuse to grant standing to inhabitants of a municipality seeking a declaration of invalidity, or claiming damages against a member of council by reason of an alleged breach of duty. The courts have denied such standing to inhabitants in respect of situations where members of a council voted upon a matter within the jurisdiction of the council, the council's decision resulted in no unlawful disposition of property or financial loss to the ratepayer, and the ratepayer had no special interest in seeking a declaration that the duty had been breached. 15 The New Brunswick Court of Appeal has held that ratepayers of a municipality had no right of action against the municipality merely for violation of some general law, unless such violation had resulted in actual payment of municipal money or the creation of a present liability to pay municipal money which payment would or might result in an increase of municipal rates. Such an alleged violation of law, affecting all inhabitants equally, would be, if anything, an interference with public rights and interests, in respect of which proceedings could be brought by the Attorney General. It is noted that, with respect to the pension Plan of the City of Saint John, the Common Council is not in a position to make decisions directly impacting on the financial interests of members of that Plan, or the amount of the City's contribution on behalf of its inhabitants to the Pension Fund. 14 Enterprises Sibeca Inc. v. Frelighshurg (Municipality) (2004), 243 DIR (4th) 513 "S.M.T. (Eastern) Ltd elalv, Saint John, [1947] 1 D.L.R. 842 (NJ3.C.A.) 23 WeirFoulds LLP 8/11/2005 10:52 PAGE 025/025 Fax Server WeirF caul d&L. BARRISTERS A, SOLICITOR$ To summarize the foregoing, it is my opinion that: neither the City of Saint John Pension Act nor the MunicipaWks Act impose upon members of the Common Council of the City of Saint John duties of a fiduciary nature with respect to decisions of the Council relating to the administration of the City's Employee Pension Fund; a member of a municipal council, in the absence of malice or bad faith, will not be held liable in negligence to third parties in respect of the member's participation in decision-ma ldng by the Common Council, subject to compliance with the provisions of the Municipalities Act governing conflict of interest. I trust that the foregoing will be of assistance to you, and will be pleased to discuss this matter further with you at any time. GHWinb 839733.1 24 City Solicitor's Office Bureau de Pavocat municipal ww v.saint]chn.ca December 2, 2005 Common Council of The City of Saint John Your Worship and Councillors: P.O. Box/C.P. 1971 Saint John, NB /N. -B, Canada E2L 4L1 Ike: Section 39 of the Community .Planning Act — The scheme, its application and enforcement On October 24, 2005 Council adopted the following resolution in Open Session: "RESOLVED that the letter from the Councillor Tait proposing that the enforcement of'Section 39 conditions be reviewed to provide for more effective enforcement, be referred to the City Manager to explore corrective action with a report including a list of property owners who have not complied with Section 39 conditions, back to Council in one month's time with a proposed course of action and recommendation. This correspondence has been prepared as a result of that resolution. The Scheme The Community Planning Act (the Act) confers upon municipalities in New Brunswick the power to control the use of land, buildings and structure:; within their boundaries by means of a zoning by -law. The Act requires that a zoning by -law divide the municipality into zones and identify the uses permitted in each. This is known as an exclusory by -law, i.e, one whose fundamental design is to prohibit activities not expressly permitted. ... /2 Common Council December 2, 2005 Re: section 39 — Community Planning Aci The Application City Solicitor gage 3 If an application for rezoning comes within the ambit of Section 39's reach, then Council may impose terms and conditions upon that rezoning. In the words of Section 39: " .., the council may (ii) impose reasonable terms and conditions concerning (A) uses of the land, buildings and structures, (B) site layout and design, including parking areas„ landscaping, and entry and exit ways, (C) external design, appearance and spacing of buildings and structures, and (D) other matters that it considers relevant to the situation„ (iii) prescribe time limits within which any part of the proposal mentioned in subparagraph (i) or terms and conditions imposed under subparagraph (ii) shall be carried out, and (iv) provide that on the re- zoning thereof the land therein and any building or structure thereon shall not be developed or used except in accordance with the proposal set out, terms and conditions imposed and time limits prescribed pursuant to this paragraph, " The terms and conditions may be imposed in one of two ways: by resolution of Council or by agreement between the municipality and the applicant. If an agreement is entered the municipality may require the applicant to provide the municipality with security designed to assure compliance with the terms and conditions imposed. Security may be in the form of a Performance Bond, a negotiable instrument or other security acceptable to the Council. (Section 39(7)). Historically the City has used agreements when very significant and comparatively complex developments were proposed in the context of a rezoning — in practice the agreements operated to flesh out the terms and conditions outlined. ... /4 Common Council December 2, 2005 Re: Section 39 — Community Planning Act City Solicitor Pale 5 The third mechanism permits a municipality to adopt a resolution canceling the agreement or the resolution imposing terms and conditions [Section 39(5 )j. There that cancellation tapes place the land to which the resolution or agreement pertained reverts to the zoning classification that existed prior to the rezoning in question [Section 39(6 )]. That in turn would almost inevitably create the use being made of the property at the time as an unlawful one, which in turn would support enforcement initiatives whether in Provincial Court or the Court of Queen's Bench. As you can see, this third mechanism of enforcement provides the Council with a remarkably powerful tool to bring about compliance. However, as I stated at the Council Meeting of October 24th last, there are practical difficulties. If the terms and conditions are not drawn so as to illicit an unequivocal answer to the following question: "Have the terms and conditions imposed been complied with? " then enforcement efforts would be seriously prejudiced. I understand that the report from the City Manager will provide examples of some difficulties that are encountered. There have been few Section 39 prosecutions or applications to Queen's Bench and no cancellation of resolutions or agreements that I can recall. If it is Council's wish to pursue in a concerted fashion the enforcement of those instances where, based upon the Building Inspector's preliminary investigation, default has occurred in complying with Section 39 terms, conditions and provisions, then from this Department's perspective the issue of priority /resources will need be addressed. The Minimum Standards Enforcement Initiative was approached from that perspective and the results have been very satisfactory. That approach is also a fundamental tenet of Chartwell's Organizational Review Deport, Respectfully Submitted, a John L. Nugent City Solicitor Fundy Region Solid Waste Commission Commission, de des dkhets so Fundy November 1G.2O05 ` CITY OF SAINT JOHN � 8th Floor, City Hall P.O. Box 1Q71 SaintJohn NB E2L4L1 PO Box /CP 3033, Grand Bay-Westfield NB ESK 4V3 T.506738-1212 ° F506 738'1207 hnt|ine@fundyrecyc|eo.com Subject: Submission of Proposed Operating Budget for the Year 2006 Dear Mayor and Council: The Fundy Region Solid Waste Commission has recently reviewed and given approval to submit to each of the municipalities in our region our Proposed Budget for the Fiscal Year 2006 Notice is hereby given pursuant to section 157 (1) of the Clean Environment Amt that the Commission will vote on the proposed budget on or after Thursday, December 8, 2005. The Commission wishes to present this budget to Council on KHonday. December 5, 2005. Highlights from 2006 Budget -Fundy Region Solid Waste Commission: New Union Contract currently being negotiated, Debt costs are down 235K for 2QOO, Equipment Reserve Funds are sufficient for replacement of all equipment on site. ~ Cell construction reserve of$1.500.00U Household Hazardous Waste site to be opened April 22, 2006 with a budget of $135,000. Munfcipa| Solid VVamb* tipping fee proposed to decrease from $1101tonne to $108/bonne beginning July 1.208G. ~ Compost tipping fee proposed to decrease from $50/tonne to $45/tonne on July 1, 200& During the presentation to Council last year we believed that by 2007 we would be pnspon*d to either increase services or decrease tipping fees, We one pleased to propose that both should occur in2OO8, Gen r� Manager Attached� Operating Projections for the Period of 2005-2014 m 1-" A — 8 w Co 4�. N) C:� :-j --A Zn o C', - - m P , p , - . 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Cat N -4 C7• m C7) (=> C0 C� CO -4 _-C N co N ---I C> 00 Cat C3) 03 00 W _CS1 CD m __.. W _j N C3 � C5 _— CJt co N -Nj 00 0) co _ co N Q - -�- N cn .P cn -4 00 O cn C0 m (M ®0 O N O O PO -4 m N W O W O CD O co C0 eP O cn 00 W -* m W �F N C7 - -Po fW -P C) C� Co CD -°d co -� _W N m W N W O _-� M O _m -4 W -.... 4F -� C n M Cat CO — -+, 00 m CJ C59 C:) C? _. N V m CD 4�- ° 4 N m --d m — Oo -P 00 -* -P. :-1 m C n N Co CD --j V Ca -_.,. Cat Cat N CO W W -W% O C-n -el °J O CJt W 1V W C.7p -P C-0 'V Chi 4: N W GO rn CSC C3ti °d CJl m co W m -> cD C� C0 N CJl N C7 iv N co (n CTt y C-t U'9 Cf? N cD CJt --! O W -s cst � 00 C3� cn -n _ O C:i N cD cm � N -- co RS .a � Co N O •A. U) � (n 2 � � C: � � � C � :: ^ : . \ C \ \ C:) CD (n .. Cr C o 0 (C) CD � ^ . . ~ \ � \ CD � \ Q � \ \° ? 2 C) \. yam: ) Q CD « /i Q \ cn O D CD CD C) 0 - : \ CD =3 :3 � � (D \n � w W U) } \ :3 (C) \�\ \�\ SAINT JOHN December 5, 2005 Deputy Mayor Hooton Et Councillors Re: Committee of the Whole Report Deputy Mayor F± Councillors: The Committee of the Whole having met on November 21, 2005 made the following recommendation to be considered at an open meeting of Council. Recommended RESOLVED that the City Solicitor, John Nugent, receive a step increase, retroactive to January 1, 2005. Explore our past Explorez noire passe Discover your future I DOcouvre2 votre avenir Grand Bay-Westfield - Quisparrisis • Rothesay - St. Mal-tills = Saint John P.O. Box /C.P. 1971 Saint John, NB/N.-B, Canada E2L 41-1 www.saintjohn.ca 456 Ragged Point Rd., Saint John, N.B. E2K 5C7 November 8, 2005 Mayor Norman MacFarlane and Council City of Saint John, N.B. Dear Mayor and Council, I'm writing to-day to express my concern regarding the proposed natural gas pipeline through our beautiful Rockwood Park, I am absolutely opposed to any such plan, at ANY time — present or future. This park is part of our heritage, and has been since 1894 It amazes me that this route would even be considered. Rockwood Park is unique, giving our citizens & our visitors the opportunity to connect with nature in a wonderful natural greenspaec, which is becoming all too rare in many metropolitan areas, Rockwood Park must be protected for the benefit of present and future generations. We must not be shortsighted. As our representatives, Mayor MacFarlane and council members, I am asking that you ensure that another route for this pipeline be found — preferably underwater, not under our city. We are counting on you to protect our Park and our city. This is an important part of your mandate. Thank you for your attention to and consideration of this letter. Yours very truly, Lorna Secord I ,� �.� �, q v f �:�_ ., Untitled Nov.24,2005 Rodnev McGrath 32 Midwood Ave. Saint John,NB E2P 1K6 (506) 696-8505 Attention Mayor,Common Council: Iam writting to you to reverse your decision since I would like to do my format presentation, never judge since I have capability skills and gifted that schools does not taught me what I need to know. The Mayor,,""ommon Council and the Public "Welcome to The New School" it is design to teach the government,organiza-Li-on,students and the public too get out of the old system that's has pass of years.. years.. of time.The new system will correct the problems of the city and also with positive.. positive. My theme park"Enchanted Kingdom Recycle Projects" that there is work for twenty tradesmen which I cannot afford to pay there. The drawing on the old sugar refinery nine acre property is already done by me with careful planning by me. "Earthship and Cobs Homes" that the people and students never heard of this. Thank you for the time and concern 0 -d--r4, Rodney McGrath Page 1 T Very large earthship ovemew hqWearfi .conVi rag egalfery/index,plip?gailei)� ,, 'Custom%2JEa- EARTHSHIP IMAGE GALLERY You are here: e( n�hship imcig galls ery > Cusiom Earthsh,€ps > Very large earthship overview VERY LARGE EARTHSHIP 0 V E R V I E W NOURINAR revic.',,us I Thumbnofls All rights reserved. Images may not be reproduced in any form without the express written permission of the copyright holder, Powered by ec-,aW sNp blo'ecture \r,0,9, I of 1 it Untitled "Old Sugar Refinery Drawings" Untitled "Enchanted Kingdom Recycled Project,91, "Enchanted Kingdom Recycled Projects" Rodney's drawings Untitled "Enchanted Kingdom Recycled Projects" Rodney's drawings IVO Ll If N T IvIa-yor INormari IMICFarlane and ")Uillf JUIRI C-1-ty Councillors.- We, tile -inidersigned, represent paints of' Westrnorel and HeIgfilis, includil-19 Carl Court, Barbara Crescent, Northumberland Avenue and McLaughlin k-re'Scent, as '"ve.11 as manx, b. n and abota Rothesa.-,v Axrennic. We, J usiness s on are writul-Ig with regard to the sudden closure of McLean Street, which we were N 0'I' personally notified of. This unexpected 90 day trial closure has greatly all b-aSH-le-s-sess and custom ers who use this road 24 hours a day ill d-o-WItion to the residents ofth is neighborhood. A f- ar grt a 'S feater Co- IICCM I Me danger this road clLr osu e poses in case o-147'ari, T'-.I, S emergency. By seahri g off West Morellaind F1 e 1PIL in this -W- day, Me Offly route an ambulance, the police., or fire department now -has to this neighborbood is,,,,'- Wes-trnoreland Road- T 9 -1 0, cyfrl., %..osuren.ov.,ba, tr"-, � T7 I — consisteredy backeu up- horn Loch Lori a Rodad we past L Fe—InIIIIIII Cemetary and should an emergency present itself, this situation becomes far more than the major inconvience- it already is. n I P I eas e advise Vie un ders i gn ed as to -W-11-i en we i-n i ggll-tt in e et in order to resolve this most unto ate and potentially dangerous situation, Robert LI. Neal Arthur 1. 'Ac t"'Tuire- juc 5 7 -2) _3 to-) 1 6 5 2_ 3) 5 6- L Se, F unexpected October closure of McLean Street has caused serIOUS; I mconvenience to residents, and businesses in the, area. We the undersigned, obiect to thL-- closing and strongly urge it to be reopened to through traffic. m 'The unexnected October re of McLean Street has caused serious inconvenTence to residents and businesses in the area. We the undersigned, object to this closing and strongly urge it to be reopened to through traffic. i The unexpected October closure of Mc em Street has cw_ised serious inconvenience to residents and businesses in threa We the undersigned, object to this closing and strongly tit-go it to be reopened ■ WE THE UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE ADJACENT TO THE CORNER OF SPENCER & MACLEAN STREETS 35 PS. PRINT NAME m ADJACENT TO THE CORNER OF SPENCER & MACLEAN STREETS / v / I I I - I tf C, .r 32 33 34 3, El 23 27' 21 2! 3( 3' 3, 3: 31 3' ADJACENT TO THE CORNER OF SPENCER & MACLEAN STREETS w WE THE UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE ADJACENT TO THE CORNER OF SPENCER & MACLEAN STREETS . ...... . .. PS. RINT NAME L I'VE THE UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE ADJACENT TO THE CORNER OF SPENCER & MACLEAN STREETS 16 L 4(j M's, W:11� m WE THE UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE ADJACENT TO THE CORNER OF SPENCER & MACLEAN STREETS -z,-1 lo L ■ WE THE UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE ADJACENT TO THE CORNER OF SPENCER & ACLEAN STREETS 17 PS. PRINT NAME _gyp ZA � Y-CA) VVETHE. UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE ADJACENT TO THE CORNER OF SPENCER & MACLEAN "T T -� L� I :1/@4/21 5 13: 49 6 a 4 1 ES Cl IF A I `A��'E 4 T HE Fl- T IRE ill, , I TIOMptuff" III ii11;1i1!11ill 111M ill I ill :ra i? PAGE 0 z ADJACENT TO THE'CORNER OF SPENCER & MACLEAN STREETS 7774, P44" v. A, L�L, co I f A �0) VVE THE UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE JER OF SPENCER & MACLEAN STREETS 0 WE THE UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE ADJACENT TO THE CORNER OF SPENCER & MACLEAN STREETS F-11 �*� I E PEI >12 V/E THE UNDERSIGNED, PROTEST THE CLOSURE OF NORTHUMBERLAND AVENUE ADJACENT TO THE CORNER OF SPENCER & MACLEAN STREETS -1/04/2005 13:49 6341650 PA HER_TIHE PAGE 85 cr,p) a PS. PRINT NAME Date-, Mayor Norman McFarlane and Council, City of Saint John, NB Mrs. Muriel Baxter fiood Name: j()q Candlewood Lane Address' 4 E- a-)b 0 i> Saint john, NB E2K 1Z5 PS: To view our delightful park, please go to www.sab*ohn.ca Dec. 2, 2005 To Mayor and Council, Please find enclosed: 1. A letter from Roger Cyr, Vice President Irving Equipment Division to Mr. Leo Richard, in response to comments made following a meeting with Mayor and several councillors on November 201h in West Saint John, 2. Jacques Whitford and Associates letter re. Investigation of Damage Claim — Richard Residence, 431 Greenhead Road. 3. Points of Interest on Blast Vibrations, Regulatory Limits and the Use of Seismographs to Monitor Vibrations, submitted by Ross Whitcomb P Eng, Conquest Engineering Limited. 4. 11 copies of The Importance of Aggregate DVD to be distributed to the Mayor and Council. Thank you 4 Geoff ritt Communication Officer J.D. Irving, Limited. Nov 29, 2005 Leo Richard 431 Green Head Road Saint John, N.B. E2M 4M7 Delivered vice courier Bear Mr. Richard: 633 BAYSIDE DRIVE PO BOX 3247 SAINT JOHN, NB E2M 4X8 TEL: (506) 633 -0116 DISPATCH: (506) 632 -7575 FAX: 506) 632 -7805 We are writing as a follow -up to your recent meeting with Mayor McFarlane and City Councillors relating to the operation of Gulf Operators Limited (Gulf Operators) aggregate processing plant and quarry located at Bald hill. in particular, we wish to respond to your statement which appeared in the CBC ?news story on November 21, 2005, suggesting that blasting operations at the quarry are the cause of damage to your house foundation. Gulf Operators has always retained the services of an independent engineering consulting company to monitor blasting activities at the quarry. As part of this monitoring program, a network of seismographs is placed in the community to evaluate the potential impact of blasting activities on local residential properties. The locations of the seismographs were pre- determined based on input from the New Brunswick Department of Environment and Local Government (NBDELG) and third party engineering consultants. In addition, Gulf Operators commonly has additional seismographs installed to address specific concerns raised by adjacent property owners. The results of this monitoring program are reviewed on an ongoing basis by both consulting engineers and representatives of the NBDELG. The data from all of our seismographs over the history of our operations at Bald Mountain show that the vibration levels resulting from blasting are well below the regulated limits and thresholds for structural damage to the surrounding residential properties.. Although the monitoring data to date shows that the blasting vibrations should not be damaging residential properties, Gulf Operators has chosen to follow up damage claims to further ensure that the blasting procedures at the quarry are protective of the local community. As you are aware, we retained the services of independent engineering consultants to conduct a number of pre -blast inspections of homes in your neighbourhood before commencing any blasting at Bald Mountain in 2001. The purpose of this inspection was to document the condition of adjacent residential properties prior to commencement of activities at the quarry and serves as our baseline for evaluating blast damage claims received from property owners. A pre -blast survey of your property was conducted on July 3, 2001. In response to your damage claim, Gulf Operators had previously requested that Jacques Whitford and Associates (Jacques Whitford) conduct a follow -up inspection of your property. Jacques Whitford is a reputable engineering consulting company with over 30 years experience in foundation design and blasting. investigations. A senior engineer with over 20 years experience, Mr. Ross Whitcomb P Eng, reviewed your damage claim in person with you on September 27, 20,02. The findings of Mr. Whitcomb's investigation were reviewed with you that day and it was concluded that blasting did not cause the damage to your foundation wall. These findings were detailed in the attached letter from Jacques Whitford to Gulf Operators dated October 22, 2002. Gulf Operators recognizes that there are several common misconceptions surrounding blasting and its impact on adjacent structures. .Accordingly, Gulf Operators will be initiating a regular newsletter providing an update on the status of our work at Bald Hill. Hopefully through the newsletter we can address several of the common misconceptions regarding blasting, foster a positive relationship with our neighbours, and emphasize the importance of the aggregate being produced at our quarry to community growth. We look forward to responding to any questions or concerns. In the future we would encourage you to direct your concerns regarding the operation of the Bald Hill quarry to Gulf Operators. You can reach us through our switchboard at 635- 5555. We remain committed to the local community and take concerns from our neighbours regarding our operations very seriously. It is in everyone's best interest to maintain an open line of communication to avoid these misunderstandings. cc: .Abel Leblanc, MIA Mayor Norman McFarlane and Councillors, City of Saint John Connell Smith, CBC Radio Saint John Andrea Cyr, 88.9 News Rogers OCT-22�� 16-00 .14K-QUES [,jH1T'PCFD SJ S06 634 8104 P. 02 Jacques, WI&4. W4 20 Bv-adOm Avr-7-,.vT and Amociates Limited ;C- nVI 150663421,a5 =fix 5C43.1t34-8104 Con suiting Engineers �rfbnrrtafon Ccnsuftanls "M 1271 F. Saird John, N. B. E2M 4X8 sin MEEM � 11 WeM Wide Web- www.jaazjuesy4hjtfo?daom zmzl�� At yo e. request we visited with Mr. Richard on Sept 27,2002 to exmuine the specific atea of d=ap allegOly caused by vibrafions fmm bUsting activi des at the Bald Mountain quarry site. Mr. Richard id=Wfied 2 cracks; I in the west foundation wall, approxhnately 75 to I 00mm outh at the rear itnt=ce to the honle m-d the 1-02"d -r=k in the west basmmt wall, and underneatli the suar landmg at the r= &or Mr. 1�ichard claimed that: both cracks were not present at the time of the prebla-st survey. Upon,-tvit��k of the prebtast survey dam it was very clear that both i=cks were n3ted and photographed at t1w fme We nva that this letter is. sufficient for your needs at this time. If you have any questions or wish to discuss this please feel Lee to cantnt us, A �A 1 Q I HL t- Points of Interest on Blast Vibrations, Regulatory Limits and the Use of Seismographs to Monitor Vibrations Increasing concern for the environment over the past 15 years has led to more strict regulations and controls for the rock blasting industry. These regulatory changes have placed greater demands on the blasting specialists and practitioners to design rock blasting procedures which minimize their effect on the surrounding environment. Ground vibration and air blast are the environmental effects most often associated with rock blasting operations. The intensity of vibrations and air blast is measured by seismographs which are placed at strategic receptor points around a blasting operation to establish compliance with the regulations. Since the vibration intensity diminishes with distance from the blast site the nearest receptor points are typically chosen as monitoring sites. Ground vibrations are measured in units of "peak particle velocity ", which is defined as the speed at which particles in the ground are excited from vibratory motion. Air blast is a pressure wave traveling through the air and is measured in decibels. Current regulations in New Brunswick have established that vibrations from blasting activities shall not exceed 12.5mm per second and concussion, or air blast, shall not exceed 128 decibels. In the 1930's and 1940's extensive research was carried out by the U. S. Bureau of Mines on the effects of vibration and air blast on nearby homes to quarrying operations. That extensive research established the following vibration levels for the rock blasting industry which were, and still are, considered "safe" based on a 95% probability of no damage. • For "modern" homes with drywall interiors: 19 mm /sec for vibration frequencies (Hz) less than 40 Hz. • For "modern" homes with drywall interiors: 50 mm/sec for vibration frequencies (Hz) greater than 40 Hz. • For older homes with plaster on wood lath interior wall: 12.5 mm /sec for vibration frequencies (Hz) less than 40 Hz. • For older homes with plaster on wood lath interior wall: 50 mm /sec for vibration frequencies (Hz) greater than 40 Hz. Human beings are very sensitive to vibrations and those as low as 0.2 min/sec are noticeable. It is also important to note that daily household activities can cause vibrations that are in excess of those established in the current regulations. For instance: Pounding nails 22 mm/sec Slamming a door 12.7 mm /see Furthermore seasonal changes in temperature and humidity in a home cause significant stress to the drywall and plaster components. From studies undertaken, stresses equal to those from vibration intensities of 76 mm /sec have been measured. This helps explain why most homes have cracks in the drywall or plaster. November 30, ?005 HAND DELIVERED Common Clerk's Office 8th Floor, City Hall Saint John, N.B. Attention: His Worship, Norm McFarland and Members of Common Council Re: 'rimothy Everett Gass and Sandra Anne Gass 45 Wilton Street East Saint John, N.B. E2J IH4 Phone- 696-6083 Please accept this as an official request from the above-named to enter into a proposed lease or purchase agreement between themselves and the City of Saint John for PID #00475885, located adjacent to 45 Wilton Street East, Saint John, N.B. u- "v Timothy E. Gass Sandra A. Gass Ile / \ »> « \»im «?,2\# % §4 d « <2 4 « d`, w. < „ must 2 :/ f *< * 2 \ «2a Find ©d X about »b »: -w »- , ® M■ m « � LO WIN, r `fit If the City is serious about recycling, we must have recycling bins in the out End and uptown area. The old sugar refinery parking lot site Is notOsA I ble and not an appropriata location. Many people have stopped recycling; not comfortable going to t present location as you have to cross a busy highway, Broad Street, and proceed a quarter of a mile to reach the recycling bins. I The boundary of uptown and the South End is from Broad-view Ave. to City Road and from Crown St. to Water St. The peninsula is very large, bins shoul,d be accessible to all areas. Take recycling "Vserlously" or -forget about us recycling. ��gi iqpg�iqi� 1� ipgij; 111 1 1 Eeis 7 ell 94� CZ, C ASUM Eli -,AM Ifthc city i's serious bout recycling we must have rccycrmg bi= in thz'South Ead a 591 +�#,. eon veee, gay MEN f �41 r • =rr ws ns OP xr- / • / f r� {o" 1116 r / Mayor and Council City of Saint John, N.B. c/o Common Clerk If the City is serious about recycling, we must have rec yeling hins in the South End and uptown area. The old sugar refinery parking lot site is not visible and not an appropria'A location, Many people have stopped recycling; not comfortable going to t, present location as you. have to cross a busy highway, Broad Street, and proceed a quarter of a mile to reach the recycling bins. The boundarT, of uptown and the South End is, from Broadview Ave. to City Road and from Crown St. to Water St. The peninsula Is very large, bins should be accessible to all areas. Take recycling "seriously" or forget about us recycling. I !I F I I N I I 11111 1 iI 11 1 11, OF !I I III I I III, I -A �q - . .. . . . . .. . 14 --r Z" Xt pt Mayor and Council City of Saint John. N.13. C/o Common Clerk 'south End =,d If the city is sezioiLs abiout rc,_�,cjjng we must have r:c� bins in thz Lr�� \:.° «: 2�« \ � »� � yt: \, «« / t OMP » <#< « { -. #! Kz must have =cycling \ : : «tj= \,ut \4# \ *2 : serious about Le a « » . .M--ayor and Cou=il Mv if S aim Jok-mi- N t I�d CLA- I IV Mayor and Council City of Saint John. N.B. C/o Common Claik ,U-the ity is serious, about recyc'm9'wc MuSE =M cl uptown arm linmr.M.TTM14- Rawc q cj6vjkh�- �2� Q A I Mayor and Council GAf i.' S j Afews STRO ro-INTOTOO f -70 Nof w. Mayor and Council City of Saint John. N. Iw , fews metem, 6=0 sime" Vit' go - i4L. acv n r . .. r r serious If the city is r s ut recycling we must have r=ycling , r mi thz South End all r•' a In several other locations in Saint irolm th= = im or mare mcycrmg sitm They are in End = the walking public, • bins r E be km;te # +iii n . for r taxpayers who walk daily. Reqcrmg saves the ck money� �l Mayor and Co=il Clt� of Saint John. N. Mayor and Couacil City of Smnt John. f., If the city is scrious bout m7ycling we rust have n=ycling bins in t% South ad and uptown ar= % I w, dt all i T 7b, Sol' r\ Ac 1) r 30 Colpitts Avenue Saint John, NB E2M 5G7 December 1, 2005 His 'Worship Mayor Norman McFarlane & Members of Common Council Dear Mayor McFarlane & Members of Common Council: Rename Harbour Bridge in Memory of the Veterans The idea to rename a street is fine but I feel a better tribute to recognize the veterans would be to rename the Harbour Bridge. I believe something larger than a street would be suitable. The bridge is very visible and would serve a large monument. I would also like the loan eventually forgiven. The loan should be forgiven in the memory of all veterans. This would make all veterans and their families proud and it would certainly be respectful of all veterans who lost their lives and those who are still alive and those who have since passed on. There was an arrangement made this year to allow the city to borrow $200,000 from the money that is used to pay for the bridge. I knew it would cause problems if we ever want to see this loan forgiven. We are the only ones in New Brunswick that pay a toll. The City of Moncton will soon have a new bridge for a mere $28 million with no toll. Since we have been paying for over thirty years at what point will you think we could see an end to the tolls. Poly concern is eventually the toll will increase. The views of the taxpayers of Saint John who pay everyday were not considered when this deal was made. Why can't the veterans have a say as to what they would like, about thirty days left in the year? somewhat late to give a true tribute, Water Street should not change. Sincerely yours, Patricia Dashwood His Worship Mayor Norman McFarlane & Members of Common Council 30 Colpitts Avenue Saint John, NB E2M 5G7 December 1, 2005 Dear Mayor McFarlane & Members of Common Council: Re: Committees Taxpayers of Saint John are beginning to question who is running the city, We have so many Committees and Boards that are branching out with responsibilities and changes for the city. They are not always representative of the interests of the taxpayers and citizens of Saint John. Concerns have been coming forward when we have changes that are not inclusive of all people. This year if you want to put a float in you had to pay a fee; even people who are volunteering to collect Santa's letters. Something is wrong when the people of Saint John want to get involved and take their money, time and hard work to put a float together. We also had a Santa that could have been marketed all through Christmas; nothing against other Santas'; but we had a very realistic one who never was told that he wasn't needed this year. It is another way of doing business by Uptown Saint John. This year they did not want certain organizations that volunteered for decades to collect food for the Food Bank; no one should be turned away for such good deeds. They appear before Council and they want another $ 10,000 so they can help you with Festival and Events; guess what it will cost you for their services. Concerns are there because we as taxpayers will have to keep funding our tax dollars each year when they go before Council,. There are so many times that we can collect tax dollars from the weathy but instead our Council can only ask the cash strapped taxpayers to fund projects for the wealthy; Heritage Buildings — hopefully there will be Heritage rentals. Please let people know where they can apply. It was made clear last winter we can't pay any more taxes. We have so much money corning in and we can't mare ends meet without some extra funds too. The Billionaires asked and they received so please respect the people of Saint John as well. Do you really think we can pay for -- Pension Debt, Harbour Cleanup, Water and Sewerage, Water Meters, :Nigher Property Taxes and so many more things like power rates and fuel and food. Bottom line no matter how many millions politicians bring into the city we have to pay for all of these gifts, Merry Christmas to all and wishing for a Money Tree. Sincerely yours, Patricia Dashwood Attention: Mayor Norm McFarlane and the city council Of Saint John I am writing this letter on behalf of myself, Milian Little, resident of 57-2 Oakland Street and the landlord and owner of this home, Bill Cook. We each submitted letters just over one month ago in regards to our sewer issues on this street, particularly during heavy rainfalls. if you will recall our initial letters, we relayed that we lose the ability to properly use our toilets at these times and this is beyond a minor inconvenience. The problem persists today and last night during the rainfall, I was once again without my toilet. The city has heard our pleas and petitions for help and I will say that during heavy rainfall periods, the workers have been out here much faster than in the past to aid in rectifying the situation as soon as possible. However, we have still not gotten to the root of the problem and the issue is still a concern. I know that it has been discussed and both myself and Bill Cook have received letters and phone calls in response from the city but nothing concrete has been done as of yet. Mr. Mayor and city councilors, we need a permanent solution to this problem. Phone calls and letters have let us know that you are listening but we need to see some action behind these words in order to make our living situation more bearable. I realize that during storms people experience various difficulties in their homes but this seems to be a unique circumstance and requires a specific solution and an immediate one at that. Perhaps an engineer or contracting company needs to be involved in assessing the area to see what might work here. One thing is for certain; some action definitely needs to take place. Thank you once again for your time and attention in this matter. We look forward to finding a solution here on Oakland Street. Sincerely, ("I'J &_,,a r"�- Jillian Little Resident of 57-2 Oakland St. Saint John, N.B. Bill Cook Resident of 57-1 Oakland St. Saint John, N.B.