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2007/01/08SPECIAL COUNCIL MEETING Monday, January 8, 2007 Order of Business and Agenda Package N aga apalls PRAYER: Alderman loannoni Disclosures of pecuniary interest and a brief explanation thereof will be made for the current Council Meeting at this time. Capital Sports SPECIAL COUNCIL MEETING January 8, 2007 DISCLOSURES OF PECUNIARY INTEREST DEPUTATIONS /PRESENTATIONS Mr. Roy Mlakar, President CEO of Capital Sports, Mr. Cyril Leeder, C.O.O. of Capital Sports and Mr. David Branch, Commissioner of the Canadian Hockey League will make a presentation to Council. MAYOR'S REPORTS, ANNOUNCEMENT COMMUNICATIONS AND COMMENTS OF THE CITY CLERK Additional Items for Council Consideration: The City Clerk will advise of any further items for Council consideration. 2 BY -LAWS The City Clerk will advise of any additional by -laws or amendments to the by -laws listed for Council consideration. 2007 -01 2007 -02 2007 -03 A by -law to amend By -law No. 79 -200 to permit the construction of a 56 storey hotel, including a convention centre and a parking structure, to permit a portion of the required parking to be provided off site and to repeal By -law No. 98 -157. A by -law to amend By -law Nos. 79 -200 and 2007 -01, to provide temporarily relief from provisions which require all of the required parking to be provided on the same land as the use and to provide standards for a temporary parking lot. A by -law to authorize the execution of a Section 37 Agreement with Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited pursuant to Section 37 of the Planning Act respecting the provision of certain facilities and services and matters by Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited in return for an amendment to By -law No. 79 -200 for an increase in height to allow the development of a hotel to a maximum building height of 172 metres and 56 storeys including a convention centre and a parking structure on lands owned by Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited and located on 6361 Fallsview Avenue and 6408 Stanley Avenue, in the City of Niagara Falls. 2007 -04 A by -law to adopt, ratify and confirm the actions of City Council at its meeting held on the 8 day of January, 2007. NEW BUSINESS 12/20/2006 13:04 FAX 613 5999282 OTTAWA SENATORS tj 002/002 OTTAWA SENATORS by A. Mlakar President CEO Ahemeh Gower OflAWA SENATORS HOCKEY CLUB NATIONAL HOCKEY LEAGUE 1000 Palladium Drive, Kaoete, Oniuto Canada KZY IA5 61.: (613) 5490250 NIX: (613) 594.9282 December 19, 2006 Mr. John MacDonald Chief Administrative Officer City Hall 4310 Queen St., PO Box 1023 Niagara Falls, Ontario L2E 6X5 Dear Mr. MacDonald: i, AG, FALLS CLERK S a t.) Please allow me to introduce myself. My name is Roy Mlakar and I am the President and CEO of Capital Sports who are the owners of the Mississauga Ice Dogs. We would like to discuss with you a current potential opportunity that we have for Niagara Falls for consideration. We understand you have a board meeting on January 8 and at that time, Mr. David Branch, Commissioner of the Canadian Hockey League, along with myself and other members of our organization, would like the chance to discuss with your Council details of this opportunity, We look forward to receiving confirmation from your office of this date along with timing so that we may proceed in making plans to attend this meeting. Thank you again for your consideration of this request. ly Ro A. Mlakar President and CEO RAM:cb t'iµt A CC. From: Andrew Bryce To: Iorfida, Dean Date: 1/2/2007 10:34:29 AM Subject: Possible Council Meeting, January 8 Passage of Proposed Hilton By -law Dean, as you are probably aware, it was indicated to Ed Lustig and the DiCosimos the City would attempt to set up a special Council meeting on January 8 to consider (among other matters) draft zoning by -laws to permit the Hilton expansion, provided the applicant executed the related site plan and section 37 agreements. We have been informed by the applicant that these agreements have been executed and that the City will be receiving the executed copies of these agreements today. Once received and checked for completeness Legal and Planning can advise that conditions for passage of the by -laws have been met. There are two zoning by -laws, one to permit the expansion of the hotel and one to temporarily permit off site parking. The applicant has approved these by -laws. I have provided Anna with an original of these by- laws. By copy of this memo to Terry Chambers, I am requesting the draft by -laws be posted onto the U: drive. Please advise if there is anything further needed from Planning and Development for passage of these by- laws. AB CC: Anamika Dilwaria; Anna Morocco; Darbyson, Doug; Herlovitch, Alex; Ken Beaman; MacDonald, John; Mech, Ken; Terry Chambers 02-Jan -200T 09:4Tam From Broderick Partners BARRISTERS SOI.,ICi'r )RS 4626 ONTARIO AVENUE POST OFFICE BOX 897 NIAGARA FALLS, ONTARIO CANADA LZE 6V6 TEL (905) 956-2621 FAX (905) 356'6904 I.J. BRODERICK, 4C.. L.S.M. W.A. AUDIO J.B. ROPKINS C.A. KHLKHAM I.M. OILBERTI •r R. B. BURNS M. DIGUtOLAMO COUNSEL: E. P. LUSTIG D.F. MARINELLI (1945.1997) January 2, 2007 CITY OF NIAGARA FALLS 4310 Queen Street Niagara Falls, Ontario L2E 6X5 Attention: Ken Beaman, Assistant City Solicitor 905 356 6904 7-968 P.002/003 F -582 HAND DELIVERED Dear Ken: Re: Site Plan Agreement and the Section 37 Agreement Hilton Hotel Expansion Your File No. 2005406 Further my Agreements exe th r tom letter of December 28, 2006, please find enclosed he c with four copies of each of the Site Plan and Section 37 is President of all of the on behalf of the "Owners" by Vincent DiCosimas n You will note that Mr. "Owner" companies and has the authority to closed copies of t Section DiCosimo has incorrectly signed one of Agreement where the City signing Officers should sign, however, I am sure you can add a new signing page for the City for this copy. Once again, I assume that these Agreements and the amending zoning b laws are all going to be submitted to City Council at its meeting on January 8, 2007. Yours very truly, BRODERICK PARTNERS P p l EDWARD P. LUSTIG EPL /db NV 1 4, Iri Y A S T A .S1.1.I,I,t1.1ST IN t. ovIi. I. ygt;A1If C:I:II'rir•11.0 11S' 1: L n 1' VI, IIF:N'1• IN I1 {'1'1'11 1 I. .\N1, I`Ii!%.N1:11 I.ANI:Vkr. -2006 D1:32pm From Broderick Partners BRODERIC K ARTNERS BARRISTEERS SDLiaToais 4625 ONTARIO AVENUE POST OFFICE BOX 897 NIAGARA FALLS. ONTARIO CANADA L2E 6V6 TEL (905) 360621 FAX (905) 356.8004 J.J. BRODERICK. Q.C., L.B.M. W.A. AMADID J.B. HOPKINS G.A. KIRKHAM I.M. GILBERT! t R. B. BURNS M. DIGIROLAMO COUNSEL: E. P. LI STIW D.F. MARINELLI (1945 1097) December 28, 2006 Sent By Facsimile (905) 371 -2892 CITY OF NIAGARA FALLS 4310 Queen Street Niagara Fells, Ontario L2E 6X5 Attention: Ken Beaman, Assistant City Solicitor Dear Ken: 905 356 6904 T -932 P.002/003 F -543 Re: Site Plan Agreement and the Section 37 Agreement Hilton Hotel Expansion Your File No. 2005 -406 This letter is in response to your letters of December 22, 2006 enclosing the Site Plan Agreement and the Section 37 Agreement for execution by the Hilton. Please be advised that I met with Vincent DiCosimo Sr. yesterday and have obtained his signature on behalf of the "Owner" companies as described in the two Agreements. I will deliver to you all four copies of each Agreement executed by him as aforesaid on Tuesday, January 2, 2007 when we all retum to work after the holidays. As you are aware, on December 22, 2006, I corresponded with the City (Ken Mech) to advise that the draft amending zoning by -laws he had forwarded to me a day earlier were acceptable. As such, 1 believe that all of the documentation is now in place to allow the City to proceed with the enactment of the amending zoning by laws and Agreements at the special Council meeting on January 8, 2007. In that connection, you will recall that at our meeting on December 18, 2006, it was agreed that we would aim for a special Council meeting on January 8, 2007 and, at Mr. MacDonald's request, t wrote a letter dated December 18, 2006 officially requesting the enliT;P;Et► ftr •t'riu L.►W SlICIS Y Al; A tit'•i:E:IALIN'r In CIVI1. t.ti'IC. %riu$- t Burn ITALIAN ANSI I'i r ,:it LAnr.tiAr.u;. 28- Dec'2006 01:33pm From Broderick Partners special Council meeting. I therefore assume that all things are now in order to proceed at that meeting with the documentation (amending zoning by -laws and Site Plan and Section 37 Agreements) subject to my delivery to you of the executed Agreements on January 2, 2007 as referred to above and the insertion by the City of the Schedules to the Site Plan Agreement. With respect to the aforesaid Schedules I understand that the Plans have been settled as between Stan Downey's office and the Planning Department and need only be copied etc. for insertion. Please contact me if there is anything further that is required for the January 8, 2007 Council meeting. Yours very truly, BRODERICK PARTNERS Per: EDWARD P. LUSTIG EPL/db cc: John MacDonald Doug Darbyson Ken Mech Ed Dujlovic Alex Herlovtich Anamika Dilwaria Joe DiCosimo Frank DiCosimo Chris Hawksvuell Stan Downey Gordon Smith 905 356 6904 T -933 P.003/003 F -542 27 ec -2006 01 :41pm From Broderick Partners BARRISTERS SOLICITORS 4625 ONTARIO AVENUE POST OFFICE BOX 897 NIAGARA FALLS, ONTARIO CANADA 12E 6V6 TEL (905) 356 -2621 FAX (905) 3566004 J.J. BRODERICK, Q.C., L.S.M. w.A. AMADIO J.B. BODKINS B.A. KIRKHAM I.M. GILBERTI t R. B. BURNS M. DIOIROLAMO COUNSEL: E. P. LUSTIG D.F. MARINELLI (1045.1997) December 22, 2006 Sent By Facsimile (905) 356 -2354 City of Niagara Falls 4310 Queen Street P.O. Box 1023 Niagara Falls, Ontario L2E 6X5 Attention: Ken Mech Dear Sir: Re: Hilton Hotel Expansion The draft amending zoning by -laws that you forwarded to me yesterday have been reviewed with Joe DiCosimo and appear to be satisfactory. Please forward them to the appropriate person for the proposed special Council meeting Of January 5, 2007. Thank you very much for your help and co- operation in this and other matters during the year. Yours very truly, BRODERICK PARTNERS EDWARD P. LUSTIG EPL:db cc: John MacDonald Doug Darbyson Ken Beaman Joe DiCosimo Frank DiCosimo Chris Hawkswell Stan Downey C:Itilt'I'IR11!11 Ii' '1' 111: LAW SOCIP:1'Y AS $,'I;<. :I.hl.tti'1' IN CIVIL. LITIGATION. t F1.00N'r IN tl4+'rli ITALIAN ANIt LANI :LIAI :kn. 905 356 6904 T -668 P.002 /002 F -494 Clerk's Department Inter Departmental Memorandum To: Mayor Ted Salci Members of Council From: Dean Iorfida City Clerk Ext. 4271 Subject: By -laws By -laws 2006 -229 to 2006 -231 originally listed on the agenda have been pulled. These by -laws are related to the Hilton Hotel expansion. Staff and the Hilton's representatives are continuing to review and work on the applicable by -laws and related agreements. Staff would recommend that if resolution of the above matters occur next week that a brief special meeting be held on Monday, December 18 at 4:00 p.m. to deal with these matters Two addition by -laws have been added (see updated Order of By- laws). Allowing these by -laws to proceed on Monday will avoid the respective developers having to wait until January 22n for their approvals. Working Together to serve Our Community The City of Niagara Fa lis Canad� ,,,11■11111 4/11111 1 Date: December 8, 2006 CITY OF NIAGARA FALLS By -law No. 2007- A by -law to amend By -law No. 79 -200 to permit the construction of a 56 storey hotel, including a convention centre and a parking structure, to permit a portion of the required parking to be provided off site and to repeal By -law No. 98 -157. WHEREAS the City's Official Plan contains policies to ensure the creation of a high- quality built form and urban environment in the City's tourist districts and to provide the opportunity to approve zoning by -law amendments which permit increases in building heights in return for improvements to the public realm as authorized by Section 37 of the Planning Act; AND WHEREAS, pursuant to Section 37 of the Planning Act, the Council of a local municipality may, in a by -law passed under Section 34 of the Planning Act, authorize increases in the height or density of development otherwise permitted by the existing by -law that will be permitted in return for the provision of such facilities, services or matters as are set out in the amending by -law; AND WHEREAS, Subsection 37(3) of the Planning Act provides that, where an owner of land elects to provide facilities, services or matters in return for an increase in the height or density of development, the municipality may require the owner to enter into one or more agreements with the municipality dealing with the facilities, services or matters; AND WHEREAS the owner of the lands hereinafter referred to has elected to provide the facilities, services and matters as are hereinafter set forth; AND WHEREAS the increase in the height of development permitted hereunder, beyond that otherwise permitted on the aforesaid lands by By -law No. 79 -200, is to be permitted in return for the provision of facilities, services and matters set out in this by -law and to be secured by one or more agreements between the owner of such lands and the Corporation of the City of Niagara Falls (hereinafter referred to as the "City"); AND WHEREAS the City has required the owner of the aforesaid lands to enter into one or more agreements dealing with certain facilities, services and matters in return for the increase in height in connection with the aforesaid lands as permitted; AND WHEREAS Subsection 34(5) of the Planning Act provides that the Council of a local municipality may prohibit the use of land or the erection of buildings or structures until such municipal services as may be set out in a by -law passed under Section 34 of the Planning Act are available to service the land, building and structures; AND WHEREAS the facilities, services and matters secured under the aforesaid agreements are a municipal service; AND WHEREAS City Council has held a Public Meeting to consider these matters, including an increase in height; AND WHEREAS City Council has adopted Official Plan Amendment No. 56, which permits the development of a hotel to a maximum height of 172 metres and a convention centre subject to a satisfactory architectural design and the provision of facilities, services or matters under an agreement executed pursuant to Subsection 37(3) of the Planning Act. (a) Regulations (b) Minimum lot area 2 THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. Sheet D5 of Schedule "A" to By -law No. 79 -200 is amended by renumbering from 455 to 752, the land on the south side of Murray Street between Fallsview Boulevard and Stanley Avenue, being the land described in Appendix "A" and shown hatched and designated TC and numbered 752 on the plan Schedule 1, attached to and forming part of this by -law. 2. Sheet D5 of Schedule "A" to By- lawNo. 79 -200 is amended by numbering 753, the land on the south side of Murray Street between Stanley Avenue and Main Street, being the land described in Appendix "B" and shown hatched and designated TC and numbered 753 on the plan Schedule 1, attached to and forming part of this by -law. 3. Notwithstanding the provisions of sections 2.26, 2.31, 2.54, clauses (a), (c), (d) and (f) of section 4.19.1, section 4.20.1 and section 8.6.2 of By -law 79 -200, no person shall use the land described in section 1 of this by -law and shown hatched and designated TC and numbered 752 on the plan Schedule 1 attached hereto, or erect or use any building or structure thereon for the purpose of a hotel, including a convention centre and a parking structure, having a height greater than 12 metres, except in compliance with the following regulations: (c) Location of the various components of the building or structure on the land, their maximum height and maximum number of storeys and minimum yards prior to any dedication for the purpose of road widenings (d) Maximum height of building or structure and maximum number of storeys inclusive of storeys containing mechanical equipment for the purpose of determining compliance with clauses (b) through to and including (s) of this section of this by -law and all other provisions of Zoning By- lawNo. 79- 200, all the land described in section 1 of this by -law and shown hatched and designated TC and numbered 752 on the plan Schedule 1 attached hereto, shall be considered one lot the whole of the land shown hatched and designated TC and numbered 752 on the plan Schedule 1 attached hereto, save and except for any part which may be required to be dedicated for the purpose of road widenings refer to plan Schedules 2 and 3, attached to and forming part of this by -law and clause (d) of this section (g) (i) 3 Building A as shown on the plan Schedule 3 attached hereto (ii) Building B as shown on the plan Schedule 3 attached hereto (iii) Building C as shown on the plan Schedule 3 attached hereto (e) Roof feature (i) Building A as shown on the plan Schedule 3 attached hereto (ii) Building B as shown on the plan Schedule 3 attached hereto (iii)Building C as shown on the plan Schedule 3 attached hereto (f) Maximum lot coverage Maximum gross floor area 172 metres, as measured from the Geodetic Survey of Canada elevation 194.47 metres, and a maximum of 56 storeys of which 52 storeys may contain a place of occupancy and which shall include the roof feature as required by clause (e) of this section and is subject to section 5 of this by -law 104 metres, as measured from the Geodetic Survey of Canada elevation 194.47 metres, and a maximum of 32 storeys which shall include the roof feature as required by clause (e) of this section and is subject to section 5 of this by -law 48 metres, as measured from the Geodetic Survey of Canada elevation 194.47 metres, and a maximum of 15 storeys which shall include the roof feature as required by clause (e) of this section and is subject to section 5 of this by -law shall have a roof feature which has a minimum height of 14 metres above the top storey and may have a maximum of four storeys. The roof feature shall be a distinct architectural element of the building and shall not contain a place of occupancy shall have a roof feature which has a minimum height of 14 metres above the top storey and may have a maximum of four storeys, of which two storeys may contain a place of occupancy. The roof feature shall be a distinct architectural element of the building shall have a roof feature which has a minimum height of 5 metres above the top storey and may have a maximum of two storeys. The roof feature shall be a distinct architectural element of the building and shall not contain a place of occupancy 100% 153,100 square metres (h) Minimum number of parking spaces (m) (p) Minimum perpendicular length of a parking space Minimum width of a parking space Minimum perpendicular width of a manoeuvring aisle Convention centre Parking structure (n) Parking stacker spaces (o) Minimum vertical dimension of a parking level designed to accommodate parking stacker spaces Location of parking 4 1 parking space for every 1.25 hotel units 7.9 parking spaces for every 100 square metres of floor area of a convention centre, plus 59 parking spaces 5.9 metres 2.6 metres 6.0 metres the hotel shall include a convention centre having a minimum floor area of 2,400 square metres and a maximum floor area of 2,600 square metres, exclusive of floor areas for restaurants and retail stores the hotel shall include a parking structure providing a minimum of 85% of the parking spaces required by clause (h) of this section, on the land described in section 1 of this by -law and shown hatched and designated TC and numbered 752 on the plan Schedule 1 attached hereto parking spaces required by clause (h) of this section may be provided by means of parking stackers within the required parking structure, each parking stacker module accommodating no more than two parking spaces that are accessed by a manoeuvring aisle that conforms to the minimum dimensions specified in clauses (h), (i) and (j) of this section 3.4 metres a maximum of 104 required parking spaces that cannot be provided on the land described in section 1 of this by -law and designated TC and numbered 752 on the plan Schedule 1 attached hereto, shall be provided within a parking area on the land described in section 2 of this by -law and designated TC and numbered 753 on the plan Schedule 1 attached hereto 5 (q) Minimum number ofloading spaces Maximum floor area for all retail stores Maximum floor area for each retail store Maximum combined number of seats in all restaurants and licensed establishments 4. Notwithstanding the provisions of clauses (c), (d) and (e) of section 4.19.1 of By- lawNo. 79- 200, no person shall use the land described in section 2 of this by -law and shown hatched and designated TC and numbered 753 on the plan Schedule 1 attached hereto, for the purpose of a parking area in accordance with section 3 of this by -law, except in compliance with the following regulations: (a) Minimum perpendicular length of a 5.9 metres parking space (b) (c) (d) Maximum number of parking spaces Minimum width of a parking space 2.6 metres Minimum perpendicular width of a 6.0 metres manoeuvring aisle (e) Minimum landscaped open space 4, in accordance with the dimensions contained in section 4.20.1 of By-law No. 79 -200 1,000 square metres 400 square metres 2,150 104, which may be provided in tandem a 3 metre wide strip along and between any surface parking area and the Stanley Avenue, Murray Street and Main Street road allowances, save and except for a maximum of 2 driveway entrances 5. For the purpose of this by -law, "roof feature" means a distinct architectural element erected above the top storey of the hotel tower component and shall not contain a place of occupancy or be used for commercial purposes, unless otherwise permitted by this by -law, but shall be provided for the purposes of enhancing the design of the hotel and may enclose any roof mounted mechanical equipment, mechanical penthouses, or other similar elements. Notwithstanding section 4.7 of By -law No. 79 -200, and except for any flagpoles, or other similar decorative roof features, decorative cupolas not exceeding 4.5 metres in width and 6 metres in height, and radio, telephone, television or telecommunications towers or antennae, no water tank, elevator or other mechanical penthouse shall have a height greater than the roof feature. 6. The owner of the lands described in section 1 of this by -law is required, pursuant to subsection 37 (3) of the Planning Act, to enter into one or more agreements with the City in order to secure the facilities, services and matters referred to in section 7 of this by -law and such agreements are to be registered on title. 6 7. The height of the building or structure permitted by section 3 of this by -law shall only be permitted subject to compliance with the conditions set out therein and in return for the provision, by the owner of the lands described in section 1 of this by -law, providing the following facilities, services and matters to the City namely: (a) a contribution of $1,200,000 in cash to the City, to be used for a new arena project that is beyond what would otherwise be provided under the provisions of the Planning Act or the Development Charges Act, in accordance with an agreement entered into pursuant to section 6 of this by -law; (b) streetscape improvements to the street frontages along Stanley Avenue, Fallsview Boulevard, Main Street and Murray Avenue adjoining the subject lands described in sections 1 and 2 of this by -law, inclusive but not necessarily limited to sidewalks, street trees, street furniture, street lighting and landscaping, not covered by development charges and 2 parkland dedication, as detailed in the City's Tourist Area Streetscape Master Plan and the City's Urban Design Guidelines; and (c) the provision of an architectural design for the hotel, convention centre and parking structure including, but not limited to, surface articulation, exterior materials, roof structure, pedestrian-scale uses, and design of the public realm satisfactory to the Architectural Peer Review Panel and the Director of Planning and Development, in accordance with an agreement entered into pursuant to section 6 of this by -law. 8. No building or structure shall be erected until such time as the facilities, services and matters required by an agreement entered into pursuant to section 6 of this by -law are provided. 9. For the purposes of this by -law: "convention centre" means a part of a hotel designed to accommodate large gatherings for specific events such as conferences, trade shows, meetings, rallies and may include meeting rooms, assembly halls, theatres, restaurants and retail stores. "parking stacker" means a mechanical motor vehicle parking device in which two parking spaces are provided with one positioned above the other and accessed by a manoeuvring aisle as provided for in clause (m) of section 3 of this by -law. "storey" means a storey and a half storey as defined in sections 2.54 and 2.55 of By -law No. 79 -200. "top storey" means the uppermost storey of a building save and except for any storeys provided within the roof feature. "retail store" shall mean any store involving retail sales. 10. Section 19 of By -law No. 79 -200 is further amended by adding thereto the following: 19.1.752 Notwithstanding the provisions of sections 2.26, 2.31, 2.54, clauses (a), (c), (d) and (f) of section 4.19.1, section 4.20.1 and section 8.6.2 of By -law No. 79 -200, no person shall use the land on the south side of Murray Street between Fallsview Boulevard and Stanley Avenue, 19.1.753 designated TC and numbered 752 on Sheet D5 of Schedule "A or erect or use any building or structure thereon for the purpose of a hotel, including a convention centre and a parking structure, having a height greater than 12 metres except in compliance with By- lawNo. 2007 -02. 10. By -law No. 98 -157 is repealed and section 19.1.455 is deleted. Passed this eighth day of January, 2007. Notwithstanding the provisions of clauses (c), (d) and (e) of section 4.19.1 of By- lawNo. 79 -200, no person shall use the land on the south side of Murray Street between Stanley Avenue and Main Street, designated TC and numbered 753 on Sheet D5, for the purpose of a parking lot, except in compliance with By -law No. 2007 -02. DEAN IORFIDA, CITY CLERK R. T. (TED) SALCI, MAYOR First Reading: Second Reading: Third Reading: January 8, 2007 January 8, 2007 January 8, 2007 -7- FIRSTLY APPENDIX "A" Part of Range 16, West of Buchanan Avenue and Part of Buchanan Avenue (closed by By -law 2207, registered as Instrument No. 97685), Plan 1, designated as Part 1 on Plan 59R -5041, Save Except Part 1 on Plan 59R -7271, City of Niagara Falls SECONDLY Part of Range 14 and Part of Range 15, West of Buchanan Avenue Part of Buchanan Avenue, (closed by By -law 2207, registered as Instrument No. 97685), Plan 1, City of Niagara Falls, more particularly described as follows: COMMENCING at a point in the original westerly limit of Buchanan Avenue created by Plan 1, distant therein North 3 degrees, 14 minutes west, 322.75 feet from its intersection with the northerly limit of Dixon Street created by Plan 1, according to Plan 1; THENCE South 74 degrees, 11 minutes west, 191.64 feet to an iron stake THENCE North 2 degrees, 15 minutes west, 171.59 feet to a concrete monument planted in the northerly limit of Range 15; THENCE North 86 degrees 43 minutes east along the northerly limit of said Range No. 15 and its easterly production, 191.18 feet to an iron stake planted in the present westerly limit of Buchanan Avenue, established by By -law No. 2207; THENCE South 3 degrees 14 minutes east along the said westerly limit of Buchanan Avenue, 128.43 feet to an iron stake planted at the intersection of the said westerly limit with a line drawn through the Point of commencement on a course of North 74 degrees 11 minutes east; THENCE South 74 degrees 1 minutes west, 7.15 feet more or less to the point of commencement. Previously described Secondly in #585864 SAVE AND EXCEPT Part 1 on Plan 59R -7271 THIRDLY Part of Range 16, between Stanley Avenue and Buchanan Avenue, Plan 1, City of Niagara Falls, more particularly described as follows: COMMENCING at the northwest corner of said Part of Range 16 on Stanley Avenue; THENCE running easterly along the said School House Lot, 40 feet to a post; THENCE westerly parallel to the north line of Range 16, 170 feet to Stanley Avenue; THENCE northerly along Stanley Avenue, 40 feet to the point of commencement; CONTAINING 6,800 square feet. Previously described in 754194 FOURTHLY All that Part of Range 17, lying between Stanley Avenue and Buchanan Avenue, Plan 1, Niagara Falls; SAVING AND EXCEPTING thereout and therefrom all the sub -soil and sub surface of the lands described, below an elevation of 460 feet above the datum line as established by the Canadian Geodetic Survey, and as previously described in Instrument No. 773864 (firstly). SAVE AND EXCEPT Parts 2, 3, 4 5, Plan 59R -12018 FIFTHLY Part of Ranges 14, 15 and 16, Plan 1, designated as Part 1 on Plan 59R -6575, City of Niagara Falls SIXTHLY Part of Range 14, lying between Stanley Avenue and Buchanan Avenue, Plan 1, designated as Part 1 on Plan 59R -7329, Niagara Falls; SAVING AND EXCEPTING thereout and therefrom all the sub -soil and sub surface of the lands described, below an elevation of 460 feet above the datum line as established by the Canadian Geodetic Survey APPENDIX "B" Part of Stanley Avenue, Plan 1, Stamford as closed by By -law BL8; Part of Range 17, Plan 1, Stamford, as in ST11632 ST11633 (Firstly) Except RO178426 BB69923, Niagara Falls, Being all of PIN 64351-0113 SCHEDULE 1 TO BY -LAW No. 2007- Subject Land Description: Applicant: See Appendices "A" and "B" Assessment #s: 272503000806000 272504000106000 272503000817500 272503000817900 272507000312300 K: \GIS_Requests\ 2003 \Schedules \ZoningAM\AM -35 \mapping. map Amending Zoning By -law No. 79 -200 Hospitality Resorts Inc., 1140464 Ontario Inc. and 1229142 Ontario Inc. 1:NTS AM- 35/2003 December 2006 SCHEDULE 2 TO BY -LAW No. 2007- Legend Maximum Building Height Tower Building Components Above Geodetic Survey of Canada Elevation 194.47 m Max. of Storeys Maximum Height 2 15m 5 19m 8 29m 8 42m K: \GIS_Requests \2003 \Sched ules \Zon ingAM\AM -35 \ma ppi ng. map Amending Zoning By -law No. 79 -200 N Description: See Appendix A Applicant: 876891 Ontario Limited, 1140464 Ontario Inc. and 1229142 Ontario Inc. S 1:NTS AM- 35/2003 December 2006 SCHEDULE 3 TO BY -LAW No. 2007- Subject Land Legend Maximum Building Height Tower Building Components Above Geodetic Survey of Canada Elevation 194.47 m VA Max. of Storeys Maximum Height 15 48m 32 1O4m 56 172m K: \GIS_Requests\ 2003\ Schedules \ZoningAM\AM -35 \mapping. map Amending Zoning By -law No. 79 -200 Description: See Appendix A Applicant: 876891 Ontario Limited, 1140464 Ontario Inc. and 1229142 Ontario Inc. N 1:NTS AM- 35/2003 December 2006 CITY OF NIAGARA FALLS By -law No. 2007 A by -law to amend By -law Nos. 79 -200 and 2007- to provide temporarily relief from provisions which require all of the required parking to be provided on the same land as the use and to provide standards for a temporary parking lot. WHEREAS pursuant to Section 39 of the Planning Act, the council of a local municipality may, in a by -law passed under Section 34 of the Planning Act, authorize the temporary use of land for any purpose set out therein that is otherwise prohibited by the by -law; AND WHEREAS the Council of the Corporation of the City of Niagara Falls deems it desirable to pass such a by -law. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. Sheet D5 of Schedule "A" to By -law No. 79 -200 is amended by numbering 754, the land on the west side of Fallsview Boulevard, through to Stanley Avenue and on the south side of Murray Street, as described in Appendix "A" attached to and forming part of this by -law, and shown hatched and designated TC and numbered 754 on the plan Schedule 1, attached to and forming part of this by- law. 2. Sheets C4, C5, D4 and D5 of Schedule "A" to By -law No. 79 -200 are amended by numbering 754, the land on the west side of Allendale Avenue, south of Robinson Street, as described in Appendix `B" attached to and forming part of this by -law, and shown hatched and designated I and numbered 754 in part, and designated TC and numbered 754 in part, on the plan Schedule 1, attached to and forming part of this by -law. 3. None of the provisions of clause (a) of section 4.19.1 of By -law No. 79 -200 or any provisions of By -law No. 2007- shall apply to require all of the required parking spaces for all of the permitted uses on the land described in section 1 of this by -law and designated TC and numbered 754 and shown hatched on the plan Schedule 1 attached hereto, to be provided on the same land or to require the installation of parking stackers within a parking structure on the same land, for a period of up to three years, except in compliance with the following regulations: (a) Maximum number of parking spaces that can be 346 provided and maintained on the land on the west side of Allendale Avenue, south of Robinson Street, described in section 2 of this by -law and shown hatched and designated I and numbered 754 in part, and designated TC and numbered 754 in part, on the plan Schedule 1 attached hereto, which cannot be provided on the land on the west side of Fallsview Boulevard, through to Stanley Avenue and on the south side of Murray Street, described in section 1 of this by -law and shown hatched and designated TC and numbered 754 on the plan Schedule 1 attached hereto 4. Notwithstanding the provisions of clauses (c), (d) and (e) of section 4.19.1 of By -law No. 79- 200, no person shall use the land described in section 2 of this by -law and shown hatched and designated I and numbered 754 in part, and designated TC and numbered 754 in part, on the plan Schedule 1 attached hereto, for the purpose of a parking area in accordance with section 3 of this by- law, except in compliance with the following regulations: Passed this eighth day of January, 2007. (e) Minimum landscaped open space 19.1.754 First Reading: Second Reading: Third Reading: January 8, 2007 January 8, 2007 January 8, 2007 2 (a) Minimum perpendicular length of a parking space (b) Minimum width of a parking space (c) Minimum perpendicular width of a manoeuvring aisle (d) Maximum number of parking spaces 5.9 metres 2.6 metres 6.0 metres 388, which may be provided in tandem a 6 metre wide strip along and between any surface parking area and the Robinson Street, Allendale Avenue and Main Street road allowances, save and except for a maximum of 3 driveway entrances 5. Section 19 of By -law No. 79 -200 is amended by adding thereto the following: (a) None of the provisions of clause (a) of section 4.19.1 of By- lawNo. 79- 200 or any provisions of By -law No. 2007 -01 shall apply to require all of the required parking spaces for all of the permitted uses on the land, on the west side of Fallsview Boulevard, through to Stanley Avenue and on the south side of Murray Street, designated TC and numbered 754 on Sheet D5 of Schedule "A to be provided on the same land or to require the installation of parking stackers within a parking structure on the same land, for a period of up to three years, except in compliance with By -law No. 2007 -01. (b) Notwithstanding the provisions of clauses (c), (d) and (e) of section 4.19.1 of By -law No. 79 -200, no person shall use the land on the west side of Allendale Avenue, south of Robinson Street, designated I and numbered 754 in part, and designated TC and numbered 754 in part, on Sheets C4, C5, D4 and D5 of Schedule "A for the purpose of a parking lot, for a period of up to three years, except in compliance with By -law No. 2007 -01. 6. This by -law expires at midnight on January 7, 2010 and is of no legal force and effect as of that time. DEAN IORFIDA, CITY CLERK R. T. (TED) SALCI, MAYOR FIRSTLY APPENDIX "A" Part of Range 16, West of Buchanan Avenue and Part of Buchanan Avenue (closed by By -law 2207, registered as Instrument No. 97685), Plan 1, designated as Part 1 on Plan 59R -5041, Save Except Part 1 on Plan 59R -7271, City of Niagara Falls SECONDLY Part of Range 14 and Part of Range 15, West of Buchanan Avenue Part of Buchanan Avenue, (closed by By -law 2207, registered as Instrument No. 97685), Plan 1, City of Niagara Falls, more particularly described as follows: COMMENCING at a point in the original westerly limit of Buchanan Avenue created by Plan 1, distant therein North 3 degrees, 14 minutes west, 322.75 feet from its intersection with the northerly limit of Dixon Street created by Plan 1, according to Plan 1; THENCE South 74 degrees, 11 minutes west, 191.64 feet to an iron stake THENCE North 2 degrees, 15 minutes west, 171.59 feet to a concrete monument planted in the northerly limit of Range 15; THENCE North 86 degrees 43 minutes east along the northerly limit of said Range No. 15 and its easterly production, 191.18 feet to an iron stake planted in the present westerly limit of Buchanan Avenue, established by By -law No. 2207; THENCE South 3 degrees 14 minutes east along the said westerly limit of Buchanan Avenue, 128.43 feet to an iron stake planted at the intersection of the said westerly limit with a line drawn through the Point of commencement on a course of North 74 degrees 11 minutes east; THENCE South 74 degrees 1 minutes west, 7.15 feet more or less to the point of commencement. Previously described Secondly in #585864 SAVE AND EXCEPT Part 1 on Plan 59R -7271 THIRDLY Part of Range 16, between Stanley Avenue and Buchanan Avenue, Plan 1, City of Niagara Falls, more particularly described as follows: COMMENCING at the northwest corner of said Part of Range 16 on Stanley Avenue; THENCE running easterly along the said School House Lot, 40 feet to a post; THENCE westerly parallel to the north line of Range 16, 170 feet to Stanley Avenue; THENCE northerly along Stanley Avenue, 40 feet to the point of commencement; CONTAINING 6,800 square feet. Previously described in 754194 FOURTHLY All that Part of Range 17, lying between Stanley Avenue and Buchanan Avenue, Plan 1, Niagara Falls; SAVING AND EXCEPTING thereout and therefrom all the sub -soil and sub surface of the lands described, below an elevation of 460 feet above the datum line as established by the Canadian Geodetic Survey, and as previously described in Instrument No. 773864 (firstly). SAVE AND EXCEPT Parts 2, 3, 4 5, Plan 59R -12018 FIFTHLY Part of Ranges 14, 15 and 16, Plan 1, designated as Part 1 on Plan 59R -6575, City of Niagara Falls SIXTHLY Part of Range 14, lying between Stanley Avenue and Buchanan Avenue, Plan 1, designated as Part 1 on Plan 59R -7329, Niagara Falls; SAVING AND EXCEPTING thereout and therefrom all the sub- soil and sub surface of the lands described, below an elevation of 460 feet above the datum line as established by the Canadian Geodetic Survey APPENDIX "B" Part of Lot 3, s/s of Robinson Street, Plan 653; Part of Range 20, Plan 1, Stamford; Part of Range 21, Plan 1 Stamford, as in NF 1399, Except NF55274; S/T easement as in NF55274; Part of Lot 25, Range 19, west of Allen Street, Plan 653 as in NF 17084, except RO739877; Part of Lot L, e/s Portage Road, Plan 653; Part of Lot 24, e/s of Portage Road, south of Ferry Street, Plan 653 as in NF46544; Except Parts 2, 15, 16 on Expropriation Plan SN104737, Niagara Falls, being all of PIN 64350 -0220 SCHEDULE 1 TO BY -LAW No. 2007- Subject Land Description: Applicant: See Appendices "A" and "B" Assessment #s: 272503000806000 272504000106000 272503000817500 272503000817900 272507000312300 K: \GIS_Requests\ 2003\ Schedules \ZoningAM\AM -35 \mapping. map Amending Zoning By -law No. 79 -200 Hospitality Resorts Inc., 1140464 Ontario Inc. and 1229142 Ontario Inc. 1:NTS AM-35/2003 December 2006 CITY OF NIAGARA FALLS By -law No. 2007 A by -law to authorize the execution of a Section 37 Agreement with Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited pursuant to Section 37 of the Planning Act respecting the provision of certain facilities and services and matters by Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited in return for an amendment to By -law No. 79 -200 for an increase in height to allow the development of a hotel to a maximum building height of 172 metres and 56 storeys including a convention centre and a parking structure on lands owned by Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited and located on 6361 Fallsview Avenue and 6408 Stanley Avenue, in the City of Niagara Falls. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. A Section 37 Agreement dated the 8th day of January, 2007 and made between Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited as Owner and The Corporation of the City of Niagara Falls as Municipality, respecting the provision of certain facilities and services and matters by Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited in return for an amendment to By -law No. 79 -200 for an increase in height to allow the development of a hotel to a maximum building height of 172 metres and 56 storeys including a convention centre and a parking structure on lands owned by Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited and located on 6361 Fallsview Avenue and 6408 Stanley Avenue, in the City of Niagara Falls as attached hereto, is hereby approved and authorized. 2. The Mayor and Clerk are hereby authorized to execute the said Section 37 Agreement. 3. The Clerk is hereby authorized to affix the corporate seal thereto and to deliver the said Section 37 Agreement. Passed this eighth day of January, 2007. DEAN IORFIDA, CITY CLERK R. T. (TED) SALCI, MAYOR First Reading: Second Reading: Third Reading: January 8, 2007 January 8, 2007 January 8, 2007 SECTION 37 AGREEMENT THIS AGREEMENT made this 8th day of January, 2007. BETWEEN: HOSPITALITY RESORTS INC., 1140464 ONTARIO INC., 1229142 ONTARIO INC. and 876891 ONTARIO LIMITED (hereinafter called the "Owner and THE CORPORATION OF THE CITY OF NIAGARA FALLS (hereinafter called the "Municipality WHEREAS the Owner is the registered owner of lands in the City of Niagara Falls which are more particularly described in the attached Schedule "A" (the "Site AND WHEREAS the Owner has a leasehold interest in the lands which are more particularly described in the attached Schedule `B" (the "Off -site Parking Lands AND WHEREAS the Owner has applied to the Municipality to amend By -law No. 79 -200 seeking permission to increase height otherwise permitted to allow the development of a hotel to a maximum building height of 172 metres and 56 storeys as measured from Geodetic Survey of Canada elevation 194.47 metres including a convention centre and a parking structure; AND WHEREAS section 37 of the Planning Act, R.S.O. 1990, c.P.13 as amended (the "Planning Act permits the Council of the Municipality to pass a zoning by -law to authorize increases in the height and density of development otherwise permitted by the by -law in return for the provision of such facilities, services or matters as are set out in the by -law; AND WHEREAS a by -law under subsection 37(1) of the Planning Act may not be enacted unless there is an official plan in effect in the Municipality that contains provisions relating to the authorization of increases in height and density of development; AND WHEREAS the Official Plan for the Municipality contains provisions relating to the authorization of an increase in the height of development above 4 storeys, for buildings greater than 10 storeys and for buildings in excess of 30 storeys; AND WHEREAS subsection 37(3) of the Planning Act provides that where an owner of land elects to provide facilities, services or matters in return for an increase in the height or density of development, the Municipality may require the owner to enter into an agreement with the Municipality dealing with the facilities, services and matters; AND WHEREAS the development is above 4 storeys, a building greater than 10 storeys and in excess of 30 storeys; 1 AND WHEREAS the Owner has elected to provide certain facilities, services and matters in return for an increase in height as set forth in the proposed zoning by -law amendment attached hereto as Schedules "D" and "E" and to enter into an agreement dealing with said facilities, services and matters. NOW THEREFORE in consideration of the sum of TWO DOLLARS ($2.00) paid by each party to the other, the receipt and sufficiency of which is hereby acknowledged, and for other valuable consideration, the Owner and the Municipality agree to and with each other as follows: 1. DEFINITIONS AND RECITALS 1.1 For the purposes of this Agreement, the term: (1) "Amending By -law" means the zoning by -law amendment substantially in the form attached hereto as Schedule "C (2) "Architectural Design" means all aspects of the configuration, appearance and performance of the development, including, without limiting the generality of the foregoing, surface articulation, podium design, exterior materials, roof structure, pedestrian -scale uses, design of the public realm, and pedestrian circulation; (3) "Architectural Peer Review Panel" means the Architectural Peer Review Panel established by the Municipality; (4) "Building Permit" means a permit, issued pursuant to section 8 of the Building Code Act, 1992, S.O. 1992, c.23, as amended or re- enacted from time to time, to construct the Development or a portion thereof; (5) (9) "Capital Facilities Contribution" means a payment made by the developer to the Municipality in consideration of receiving approval to construct a development in excess of 30 storeys in height which are described in Schedule "E (6) "Chief Building Official" means the Chief Building Official for the Municipality and shall include his or her delegates; (7) "Council" means the Council of the Municipality; (8) "Date of Final Approval of the Amending By -law" means the first day upon which all of the provisions of the Amending By -law has come into force in accordance with section 8.2 of this Agreement; "Development" means the construction of and improvements to and on the site that is the subject of the Amending By -law, consisting of a hotel including a convention centre and parking structure and off -site parking lots; 2 (10) "Director of Finance" means the Director of Finance of the Municipality and shall include his or her delegates; (11) "Director of Municipal Works" means the Director of Municipal Works of the Municipality and shall include his or her delegates; (12) "Director of Planning and Development" means the Director of Planning and Development of the Municipality and shall include his or her delegates; (13) "Final Confirmation Date" has the meaning ascribed to it in section 8.1 of this Agreement; (14) "Letter of Credit" means an irrevocable Letter of Credit drawn on a Canadian Chartered Bank in a form acceptable to the City Solicitor; (15) "Off -Site Parking Lands" means the lands described in Schedule "B" hereto; (16) "Parties" means the Owner and the Municipality; (17) "Party" means any one of the Owner or the Municipality; (18) "Public Benefit" means those things listed in Schedule "D "and "E (19) "Site" means the lands described in Schedule "A" hereto; (20) "Site Plan" means any plan approved by Council or its delegate pursuant to the Planning Act R.S.O. 1990 C. P.13 in connection with the development; (21) "Streetscape Improvements" means those improvements to the streetscape along those boundaries of the Owner's property which are described in Schedule "D" hereto; (22) "Streetscape Improvements Contribution" means a payment in Canadian dollars of the Streetscape Improvements calculated in accordance with section 2.1 of this Agreement; (23) Unwinding Date" has the meaning ascribed to it in section 8.5 of this Agreement. 1.2 The Parties confirm and agree that the recitals are true, accurate and form a part of this agreement. 3 2. STREETSCAPE IMPROVEMENTS CONTRIBUTION 2.1 The Owner agrees to pay the Streetscape Improvements Contribution calculated in accordance with section 2.2 of this agreement and the Municipality agrees to apply the Streetscape Improvements Contribution exclusively to the construction and design of the Streetscape Improvements. 2.2 The Streetscape Improvements Contribution shall be calculated in accordance with the following formula: S ($945.90 x L) where S is the Streetscape Improvements Contribution; and L is the lineal frontage of the site on any public street expressed in metres; In the event that a building permit authorizing the development has not been issued on or before the 1st day of June 2007, the Streetscape Improvement Contribution shall be adjusted annually in accordance with the Statistics Canada Quarterly Infrastructure construction Price Index Catalogue until such time as a Building Permit is issued for the Development. 2.3 The Owner shall pay the Streetscape Improvement Contribution to the City prior to the first Building Permit relating to any aspect of the Development being approved by Council. 2.4 Any payment tendered by the Owner pursuant to this Agreement shall be in cash, bank draft or certified cheque and shall be delivered to the Director of Finance. 2.5 The Partes acknowledge and agree that the Streetscape Improvement Contribution is a public benefit. 2.6 In the event the Streetscape Improvements Contribution is paid prior to June 1st, 2007, the Streetscape Improvements Contribution shall be $285,000.00. 3. STREETSCAPE IMPROVEMENTS 3.1 The Owner shall construct the streetscape improvements along Murray Street abutting the Off -Site Parking Lands in accordance with plans to be approved by and to the satisfaction the Director of Public Works. 3.2 The performance of the Owner's obligation as set out in paragraph 3.1 shall be secured by a Letter of Credit. 3.3 The amount of the Letter of Credit described in paragraph 3.2 shall be $79,400.00. 4 3.4 The Parties acknowledge and agree that the Streetscape Improvements are a public benefit. 4.0 CAPITAL FACILITIES CONTRIBUTION 4.1 The Owner acknowledges and agrees that the development will exceed 30 storeys in height and that, therefore, Council is entitled to require that a capital facilities contribution be paid. 4.2 The Owner acknowledges and agrees that the capital facilities contribution will be 1.2 million Canadian dollars. 4.3 The Municipality agrees to apply the Capital Facilities Contribution exclusively to the capital facilities listed in Schedule "E" of this agreement. 4.4 The Owner may pay the Capital Facilities Contribution in three instalments: (a) one prior to issuance of the Building Permit for footings and foundation for the Development in the amount of $200,000.00; (b) one prior to issuance of the Building Permit for the architectural /structural shell of the Development in the amount of $500,000.00; and (c) one prior to issuance of the Building Permit for the remainder of construction of the Development in the amount of $500,000.00. The Capital Facilities Contribution shall be secured by the Owner prior the first Building Permit relating to any aspect of the Development being issued. 4.5 The Capital Facilities Contribution shall be paid in cash, bank draft or certified cheque. 4.6 The Capital Facilities contribution shall be secured by means of a Letter of Credit the amount of $500,000.00. 4.7 The City shall retain the Letter of Credit described in paragraph 4.6 until the final installment of the Capital Facilities Contribution is paid. 4.8 When the final installment of the Capital Facilities Contribution is paid, the Letter of Credit described in Paragraph 4.6 shall be returned to the Owner. 4.9 The parties acknowledge and agree that the Capital Facilities described in Schedule "E" are a public benefit associated with the authorization of an increase in height greater than 10 storeys and in excess of 30 storeys. 5 4.10 Notwithstanding Paragraphs 4.7 and 4.8 of this agreement, the Owner agrees that the Municipality may cash the Letter of Credit tendered to secure the Capital Facilities contribution upon the occurrence of any of the following events: 5. PARKING (a) The issuing of one or any of the Building Permits described in paragraph 4.4 of this agreement in the absence of the payment prescribed for that particular Building Permit; (b) The appointment of a receiver to manage the affairs of the Owner; (c) The bankruptcy of the Owner; or (d) The transfer of control of the lands by the owner whether by way of a lease or deed of conveyance or any form of trust. 5.1 The Owner agrees to construct the parking structure of the Development to accommodate parking stackers. 5.2 In the event that the patrons of the Owner are unable to legally park upon the Allendale or Jungleland Parking Lot, the Owner shall immediately take steps to install sufficient functioning parking stackers to ensure that the Development retains sufficient parking spaces to comply with any applicable zoning by -laws of the Municipality. 5.3 The performance of the obligation to construct the parking structure of the Development shall be secured by a Letter of Credit. 5.4 The Letter of Credit described in paragraph 5.3 shall be in the amount of $582,500.00. 5.5 The Letter of Credit described in paragraph 5.3 shall be provided prior to the issuing of a Building Permit authorizing the construction of the Parking Garage. 6. ARCHITECTURAL DESIGN 6.1 All aspects of the Architectural Design shall be generally in accordance with the Architectural Design of the Development approved by Council on the 30` day of October, 2006 and shall be to the satisfaction of the Director of Planning and Development acting reasonably. The Architectural Design shall be submitted before finalization and execution of the site plan agreement applicable to the Development. 6.2 The Parties acknowledge and agree that the Architectural Design is a Public Benefit associated with the authorization of an increase in height of the Development greater than 10 storeys and in excess of 30 storeys. 6 7. CONSENT TO AMENDING BY -LAW 7.1 The Owner consents to the enactment of the Amending By -law. 7.2 The Owner consents to the repeal of the Amending By -law by Council in the event that the Owner is in default of its obligations under this Agreement and the Owner has failed or refused to correct such default within ninety (90) days of notice of such default being given by the Municipality, and the Owner further covenants and agrees not to appeal, object or otherwise challenge the repealing of the Amending By -law. 7.3 The Municipality agrees that it shall not repeal the Amending By -law pursuant to Section 7.2 if the alleged default is the subject of an arbitration that has been commenced by notice properly given under Section 12 of this Agreement. If, following the final disposition of the arbitration mentioned in Section 7.2, the Owner is in default, Section 7.2 thereafter applies. 8. COMPLETION AND UNWINDING 8.1 The "Final Confirmation Date" shall be the second day (not including Saturdays, Sundays or holidays) following the later of: (a) the Date of Final Approval of the Amending By -law as defined in section 8.2; and (b) such other date as may be agreed to by the Parties, provided that the occurrence of the Final Confirmation Date shall be expressly conditional upon the Amending By -law being approved and in force on the Final Confirmation Date. 8.2 The "Date of Final Approval of the Amending By -law" shall be the first day upon which all provisions of the Amending By -law have come into force, and: (a) all applicable appeal periods have expired and no appeals have been made to the Ontario Municipal Board and no Applications to Court have been commenced; or (b) any and all appeals to the Ontario Municipal Board and any and all Applications to Court have been finally disposed of in favour of the Amending By -law, such that a Building Permit(s) could be issued by the Municipality's Chief Building Official to permit the Development contemplated by the Amending By -law provided that there were no other reasons to warrant a refusal to issue the Building Permit(s). 8.3 On the Final Confirmation Date, the Municipality and /or the Owner shall give written notice to the other Party that the Final Confirmation Date has occurred. 8.4 For the purposes of this Agreement, the term: 7 (1) "Application to Court" means an application for leave to appeal, an appeal, an application for judicial review, an application to quash pursuant to the Municipal Act, 2001, and an appeal from a Decision or Order in respect of any of these applications that is made to a Court. (2) "Final Disposition" means any of the following events: (a) the entry of an Order of the Ontario Municipal Board that finally disposes of the Amending By -law by rejecting the Amending By- law or results in certain amendments to the Amending By -law; (b) the entry of an Order of the Ontario Municipal Board, that rejects the Amending By -law or results in certain amendments to the Amending By -law; or (c) the entry of an Order of the Court that finally disposes of an Application to Court by rejecting the Amending By -law or results in certain amendments to the Amending By -law. 8.5 (1) The date of the unwinding of this Agreement (the "Unwinding Date should it occur, will be the earlier of: (2) If a Final Disposition of the Amending By -law results in the Amending By -law coming into force with modifications or amendments, then within 'thirty (30) days of the Final Disposition, either Party may give to the other Party sixty (60) days written notice terminating this Agreement (the "Notice of Termination Unless the Parties agree otherwise, the Unwinding Date shall occur on the expiry of the sixty (60) day period specified in the Notice of Termination. If a Notice of Termination is not given in accordance with this subsection, the modifications or amendment(s) to the Amending By -law shall be deemed to be a "Permitted Amendment(s)" for the purposes of this Agreement. (3) (a) the date of the Final Disposition of the Amending By -law if the Final Disposition rejects the Amending By -law; and (b) the date of the expiry of a sixty (60) day period specified in a Notice of Termination which is given pursuant to subsections 8.5(2), 8.5(3) or 8.5(4) of this Agreement. If, as a result of being required to do so by the Final Disposition of the Amending By -law, Council passes or adopts a modification(s) or amendment(s) to the Amending By -law which is not one of the Permitted Amendments, then, within thirty (30) days from the date of passage of said modification(s) or amendment(s) the Municipality shall give notice to the Owner of the passing or adoption of such modification(s) or amendment(s). Within sixty (60) days' written Notice of Termination may be given by either Party to the other Party. After Council passes or adopts said modifications or amendments, the Municipality shall give notice 8 (5) 9. INTENTION OF PARTIES thereof to the Owner forthwith. Unless the Parties agree otherwise, the Unwinding Date shall occur on the expiry of the sixty (60) day period specified in the Notice of Termination. If a Notice of Termination is not given in accordance with this subsection, the modification(s) or amendment(s) shall be deemed to be a Permitted Amendment for the purposes of this Agreement. (4) If the Final Confirmation Date has not occurred on or before two years from the date of that Council passes a by -law in the form set our in Schedule `B then written Notice of Termination may be given by either Party to the other Party. Unless on or prior to the expiry of sixty (60) days after the date on which the Notice of Termination was given, either the Date of Final Approval of the Amending By -law occurs, or the Parties hereto agree otherwise in writing, the Unwinding Date shall occur on the expiry of the sixty (60) day period. The Owner acknowledges and agrees that, without fettering Council in the exercise of its discretionary powers, Council may, on or after the Unwinding Date, repeal the Amending By -law with the object of restoring the zoning by -law provisions applicable to the Site to the state they were in on the day immediately prior to the date of the passing of the Amending By -law. The Owner further agrees that it will not challenge or object to the passing, approval or coming into force of any such rescinding by- law(s). (6) On the Unwinding Date, the Director of Finance shall return to the Owner any cash payment or Letter of Credit deposited by the Owner with the Municipality in accordance with this Agreement without interest. 9.1 The provisions of this Agreement are intended to operate, nor shall have the effect of operating, to in any way fetter the Council that authorized the execution of this Agreement or any of its successors in the exercise of any of Council's discretionary powers. Without limiting the generality of the foregoing, such discretionary powers include the power to pass, amend or repeal by -laws; to adopt, amend or rescind official plan amendments; and to approve or withhold approval to permit any demolition, relocation, construction or alteration of any building. 10. JURISDICTION AND SEVERABILITY 10.1 The Parties acknowledge that this Agreement is entered into pursuant to subsection 37(3) of the Planning Act. If a Court of competent jurisdiction, on an application by a party other then the parties hereto, determines that this Agreement is illegal, or beyond the power and jurisdiction of the Municipality and if the Owner has not, acting in good faith, commenced the construction of the Development, the Owner agrees that the Amending By -law may be repealed by 9 10.2 If a Court of competent jurisdiction determines that any individual provision of this Agreement is illegal or beyond the jurisdiction, power or capacity of any Party bound by this Agreement, the provision shall be severed from this Agreement if both Parties agree, and the remainder of the Agreement shall continue in full force and effect, mutatis mutandis. In such case, the Parties agree to negotiate in good faith to make any amendments to this Agreement that are, as a result, necessary to implement the intentions of this Agreement. If the Parties cannot agree that such provision or provisions shall be severed, or if negotiations to amend the Agreement are not successful, the Parties hereto agree that the same shall be settled by Arbitration in accordance with the provisions of Article 17 hereof. 10.3 The Parties acknowledge and agree that each is satisfied as to the jurisdiction of the Municipality to pass the Amending By -law. Furthermore, each Party is satisfied as to the jurisdiction, power and capacity of the other to enter into this Agreement. The Parties therefore agree that they shall not challenge the jurisdiction, power and capacity of the other Party to enter into this Agreement, nor shall either Party challenge the legality of any provision in this Agreement. The Parties hereto, their successors, assigns, lessees and sub lessees are and shall be estopped from contending otherwise in any proceeding before a Court of competent jurisdiction. 11. ENUREMENT 11.1 The Parties agree that this Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. 11.2 Notwithstanding anything in this Agreement to the contrary, if the Municipality acquires by any means any part of the Site for any municipal purpose, including road widenings, the Municipality shall not thereby become an owner as contemplated herein, nor shall the Municipality be bound by this Agreement as an owner of the Site. 11.3 The Owner agrees that the rights, restrictions, duties, provisos, conditions and obligations herein contained as they apply to the Owner shall run with the Site until they have been fully performed and thereafter shall cease to apply to the site. When the Owner has fully performed all of its obligations hereunder the Municipality shall provide, a full release of this Agreement in registrable form. The Parties agree that neither of them can assign or transfer their interest in this Agreement to any other third party without the prior written consent of the other Party, which consent shall not be unreasonably withheld. 12. NOTICES the Municipality and the Owner further agrees not to oppose, or cause to be opposed, the repeal thereof. 12.1 Any notices to be given under this Agreement shall be in writing and shall be delivered personally or by facsimile transmission only as follows: 10 To the Owner: 13. FURTHER ASSURANCES 14. FORCE MAJEURE Hospitality Resorts Inc., 1140464 Ontario Inc., 1229142 Ontario Inc. and 876891 Ontario Limited 6361 Fallsview Boulevard Niagara Falls ON L2G 3V9 Attention: Mr. Vincent DiCosimo, President Telephone: 905 357 -7377 Facsimile: 905- 374 -6707 To the Municipality: City of Niagara Falls, P.O. Box 1023, 4310 Queen Street Niagara Falls, Ontario L2E 6X5 To the Attention of: The Director of Planning Development Telephone: 905- 356 -7521 Facsimile: 905- 356 -2354 The Parties shall immediately notify each other, in writing, of any changes of address or facsimile number from those set out above. 12.2 Notice shall be deemed to have been received by a Party on the date of personal delivery or confirmed facsimile transmission. 13.1 The Parties hereto agree that, at all times and from time to time hereafter upon every reasonable written request to do so, they shall make, execute, deliver and cause to be made, executed and delivered all such further acts, deeds, assurances and things as may be required for more effectively implementing and carrying out the true intent and meaning of this Agreement. 14.1 If either Party is bona fide delayed in or prevented from performing any obligation under. this Agreement by reason of a labour disruption, civil disturbance, act of God, government laws or directives, or similar impediment, and not caused by its own default and not avoidable by exercise of reasonable effort or foresight, then performance of such obligation is excused for as long as such cause exists. Furthermore, the Party so delayed shall be and is entitled, without being in breach of this Agreement, to carry out such obligation within the appropriate time period after the cessation of such cause. 11 15. REGISTRATION OF AGREEMENT AND POSTPONEMENTS 15.1 The Owner consents to the registration of this Agreement, or a notice of it, against the title to the Site at the Owner's expense. 15.2 The Owner agrees to provide to the Municipality, prior to the registration of this Agreement and at no cost to the Municipality, any postponements that are necessary to ensure that this Agreement, when registered, will have priority over all other interests in the Site, other than the fee simple interest and any permitted encumbrances as listed in Schedule "D" hereto (the "Permitted Encumbrances 15.3 The Owner agrees that it will provide to the Municipality, prior to registration of this Agreement, a solicitor's title opinion, satisfactory to the Municipality's solicitor, confirming that this Agreement, when registered, will have priority over all other interests in the Site other than the fee simple interest and the Permitted Encumbrances. 16. TAXES 14.2 Nothing in section 14.1 shall operate to excuse the Owner from the prompt payment of cash or the delivery of a letter of credit to the Municipality in accordance with the terms of this Agreement. 16.1 The Owner agrees to pay, and fully indemnify the Municipality in respect of, any taxes, including taxes under the Excise Tax Act (Goods and Services Tax), Land Transfer Tax, and /or registration fees, associated with the benefit to the Municipality of any facility, service, matter or thing referenced in this Agreement and provided to the Municipality for the benefit of the Municipality by the Owner, including any facility, service, matter or thing required under Section 41 of the Planning Act, provided: 17. ARBITRATION (a) such indemnity shall be net of any rebate available to the Municipality; and (b) the Owner may defend against the imposition of such taxes in the name of the Municipality provided that the Owner may, in such event, elect to pay and satisfy any such claim for taxes and in such event the Municipality shall inform the Owner fully of such claim for taxes and shall offer the Owner every co- operation in the defence of said claim for taxes. 17.1 If any claim or dispute shall arise with respect to any of the provisions herein, including but not limited to application of the formulae set out herein, or the performance or non performance by either Party of the provisions hereof, either Party may, by service of a notice in writing to the other Party, require that such claim or dispute be submitted to and settled by a single arbitrator pursuant to the 12 provisions of the Arbitrations Act, 1991, S.O. 1991, c.17, as amended, whose decision shall be conclusive and binding upon the Parties, and judgment shall be rendered thereon, provided however, that the Parties shall continue their performance of the terms and conditions of this Agreement before and during any such arbitration proceeding to the extent possible. The cost of any such arbitration shall be borne equally by the Owner and the Municipality; the Parties shall bear their own legal and consultant costs. 18. COMMENCEMENT 18.1 This Agreement commences on the date shown on the first page hereof. 19. SCHEDULES 19.1 The following Schedules attached to this Agreement are to be read as and shall form part of this Agreement: 20. INTERPRETATION Schedule "A" Legal description of the Site Schedule "B" Legal description of the Off -site Parking Lands Schedule "C" Zoning By -law Amendment Schedule "D" Streetscape Improvements Schedule "E" Capital Facilities Contribution 20.1 The headings in the body of this Agreement have been inserted for convenience of reference only and do not form part of the Agreement. 20.2 This Agreement shall be construed and enforced in accordance with, and rights of the Parties shall be governed by, the laws of the Province of Ontario and of Canada applicable therein, and shall be treated in all respects as an Ontario contract, and the Parties submit to the jurisdiction of the courts of the Province of Ontario. 20.3 This Agreement shall be construed with all changes in number and gender as may be required by the context. 20.4 Reference to an official of the Municipality in this Agreement is deemed to include a reference to the official of the Municipality who performs the duties of such referenced official from time to time. 20.5 Time is of the essence in this Agreement. 20.6 The failure of the Municipality to require performance by the Owner of any obligation under this Agreement shall not constitute a waiver of performance of said obligation or any other obligation and shall not affect the Municipality's right to enforce such obligation at a later time. 13 20.7 This Agreement shall constitute the entire agreement between the Parties in respect of the subject matter herein contained, and it is agreed that there is no representation, warranty, collateral agreement or conditions affecting this Agreement other than as expressed herein. 20.8 This Agreement may only be amended, modified or supplemented by a written agreement signed by all of the Parties hereto. 20.9 The parties acknowledge and agree that the recitals to this agreement are true and that those recitals form a part of this agreement. IN WITNESS WHEREOF the Parties have executed this Agreement by affixing their corporate seals, attested to by the signatures of their duly authorized signing officers. HOSPIT IT ESORTS INC. Per: Name! Vincent DiCosimo Titl-/ President I ha e authority to bind the corporation 1140464 T 0 INC. Per: Namr Vin ent DiCosimo Title: President I have authority to bind the corporation 1229142 ONT Per: Name: ince► DiCosimo Title: Pres dent I have authority to bind the corporation 14 876891 ON ARIO L TED Per: Name: Di Cosimo Title: President I hav: authority to bind the corporation THE CORPORATION OF THE CITY OF NIAGARA FALLS Name: R.T. (Ted) Salci Title: Mayor Name: Dean Iorfida Title: City Clerk 15 FIRSTLY SCHEDULE "A" LEGAL DESCRIPTION OF THE SITE Part of Range 16, West of Buchanan Avenue and Part of Buchanan Avenue (closed by By -law 2207, registered as Instrument No. 97685), Plan 1, designated as Part 1 on Plan 59R -5041, Save Except Part 1 on Plan 59R -7271, City of Niagara Falls SECONDLY Part of Range 14 and Part of Range 15, West of Buchanan Avenue Part of Buchanan Avenue, (closed by By -law 2207, registered as Instrument No. 97685), Plan 1, City of Niagara Falls, more particularly described as follows: COMMENCING at a point in the original westerly limit of Buchanan Avenue created by Plan 1, distant therein North 3 degrees, 14 minutes west, 322.75 feet from its intersection with the northerly limit of Dixon Street created by Plan 1, according to Plan 1; THENCE South 74 degrees, 11 minutes west, 191.64 feet to an iron stake THENCE North 2 degrees, 15 minutes west, 171.59 feet to a concrete monument planted in the northerly limit of Range 15; THENCE North 86 degrees 43 minutes east along the northerly limit of said Range No. 15 and its easterly production, 191.18 feet to an iron stake planted in the present westerly limit of Buchanan Avenue, established by By -law No. 2207; THENCE South 3 degrees 14 minutes east along the said westerly limit of Buchanan Avenue, 128.43 feet to an iron stake planted at the intersection of the said westerly limit with a line drawn through the Point of commencement on a course of North 74 degrees 11 minutes east; THENCE South 74 degrees 1 minutes west, 7.15 feet more or less to the point of commencement. Previously described Secondly in #585864 SAVE AND EXCEPT Part 1 on Plan 59R -7271 THIRDLY Part of Range 16, between Stanley Avenue and Buchanan Avenue, Plan 1, City of Niagara Falls, more particularly described as follows: COMMENCING at the northwest corner of said Part of Range 16 on Stanley Avenue; THENCE running easterly along the said School House Lot, 40 feet to a post; THENCE westerly parallel to the north line of Range 16, 170 feet to Stanley Avenue; THENCE northerly along Stanley Avenue, 40 feet to the point of commencement; CONTAINING 6,800 square feet. Previously described in 754194 FOURTHLY All that Part of Range 17, lying between Stanley Avenue and Buchanan Avenue, Plan 1, Niagara Falls; SAVING AND EXCEPTING thereout and therefrom all the sub -soil and sub- surface of the lands described, below an elevation of 460 feet above the datum line as established by the Canadian Geodetic Survey, and as previously described in Instrument No. 773 864 (firstly). SAVE AND EXCEPT Parts 2, 3, 4 5, Plan 59R -12018 FIFTHLY Part of Ranges 14, 15 and 16, Plan 1, designated as Part 1 on Plan 59R -6575, City of Niagara Falls SIXTHLY Part of Range 14, lying between Stanley Avenue and Buchanan Avenue, Plan 1, designated as Part 1 on Plan 59R -7329, Niagara Falls; SAVING AND EXCEPTING thereout and therefrom all the sub -soil and sub surface of the lands described, below an elevation of 460 feet above the datum line as established by the Canadian Geodetic Survey SCHEDULE "B" LEGAL DESCRIPTION OF THE OFF -SITE PARKING LANDS Part of Stanley Avenue, Plan 1, Stamford as closed by By -law BL8; Part of Range 17, Plan 1, Stamford, as in ST11632 ST11633 (Firstly) Except R0178426 BB69923, Niagara Falls, Being all of PIN 64351 -0113 SCHEDULE "C" ZONING BY -LAW AMENDMENT CITY OF NIAGARA FALLS By -law No. 2007- A by -law to amend By -law No. 79 -200 to permit the construction of a 56 storey hotel, including a convention centre and a parking structure, to permit a portion of the required parking to be provided off site and to repeal By -law No. 98 -157. WHEREAS the City's Official Plan contains policies to ensure the creation of a high- quality built form and urban environment in the City's tourist districts and to provide the opportunity to approve zoning by -law amendments which permit increases in building heights in return for improvements to the public realm as authorized by Section 37 of the Planning Act; AND WHEREAS, pursuant to Section 37 of the Planning Act, the Council of a local municipality may, in a by -law passed under Section 34 of the Planning Act, authorize increases in the height or density of development otherwise permitted by the existing by -law that will be permitted in return for the provision of such facilities, services or matters as are set out in the amending by -law; AND WHEREAS, Subsection 37(3) of the Planning Act provides that, where an owner of land elects to provide facilities, services or matters in return for an increase in the height or density of development, the municipality may require the owner to enter into one or more agreements with the municipality dealing with the facilities, services or matters; AND WHEREAS the owner of the lands hereinafter referred to has elected to provide the facilities, services and matters as are hereinafter set forth; AND WHEREAS the increase in the height of development permitted hereunder, beyond that otherwise permitted on the aforesaid lands by By -law No. 79 -200, is to be permitted in return for the provision of facilities, services and matters set out in this by -law and to be secured by one or more agreements between the owner of such lands and the Corporation of the City of Niagara Falls (hereinafter referred to as the "City AND WHEREAS the City has required the owner of the aforesaid lands to enter into one or more agreements dealing with certain facilities, services and matters in return for the increase in height in connection with the aforesaid lands as permitted; AND WHEREAS Subsection 34(5) of the Planning Act provides that the Council of a local municipality may prohibit the use of land or the erection of buildings or structures until such municipal services as may be set out in a by -law passed under Section 34 of the Planning Act are available to service the land, building and structures; AND WHEREAS the facilities, services and matters secured under the aforesaid agreements are a municipal service; AND WHEREAS City Council has held a Public Meeting to consider these matters, including an increase in height; AND WHEREAS City Council has adopted Official Plan Amendment No. 56, which permits the development of a hotel to a maximum height of 172 metres and a convention centre subject to a satisfactory architectural design and the provision of facilities, services or matters under an agreement executed pursuant to Subsection 37(3) of the Planning Act. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. Sheet D5 of Schedule "A" to By -law No. 79 -200 is amended by renumbering from 455 to 752, the land on the south side of Murray Street between Fallsview Boulevard and Stanley Avenue, being the land described in Appendix "A" and shown hatched and designated TC and numbered 752 on the plan Schedule 1, attached to and forming part of this by -law. 2. Sheet D5 of Schedule "A" to By -law No. 79 -200 is amended by numbering 753, the land on the south side of Murray Street between Stanley Avenue and Main Street, being the land described in Appendix "B" and shown hatched and designated TC and numbered 753 on the plan Schedule 1, attached to and forming part of this by -law. 3. Notwithstanding the provisions of sections 2.26, 2.31, 2.54, clauses (a), (c), (d) and (f) of section 4.19.1, section 4.20.1 and section 8.6.2 of By -law 79 -200, no person shall use the land described in section 1 of this by -law and shown hatched and designated TC and numbered 752 on the plan Schedule 1 attached hereto, or erect or use any building or structure thereon for the purpose of a hotel, including a convention centre and a parking structure, having a height greater than 12 metres, except in compliance with the following regulations: (a) Regulations (b) Minimum lot area 2 (c) Location ofthe various components of the building or structure on the land, their maximum height and maximum number of storeys and minimum yards prior to any dedication for the purpose of road widenings (d) Maximum height of building or structure and maximum number of storeys inclusive of storeys containing mechanical equipment for the purpose of determining compliance with clauses (b) through to and including (s) of this section of this by -law and all other provisions of Zoning By -law No. 79- 200, all the land described in section 1 of this by -law and shown hatched and designated TC and numbered 752 on the plan Schedule 1 attached hereto, shall be considered one lot the whole of the land shown hatched and designated TC and numbered 752 on the plan Schedule 1 attached hereto, save and except for any part which may be required to be dedicated for the purpose of road widenings refer to plan Schedules 2 and 3, attached to and forming part of this by -law and clause (d) of this section (e) Roof feature (0 Maximum lot coverage 3 (i) Building A as shown on the 172 metres, as measured from the plan Schedule 3 attached Geodetic Survey of Canada elevation hereto 194.47 metres, and a maximum of 56 storeys of which 52 storeys may contain a place of occupancy and which shall include the roof feature as required by clause (e) of this section and is subject to section 5 of this by -law (ii) Building B as shown on the 104 metres, as measured from the plan Schedule 3 attached Geodetic Survey of Canada elevation hereto 194.47 metres, and a maximum of 32 storeys which shall include the roof feature as required by clause (e) of this section and is subject to section 5 of this by -law (iii) Building C as shown on the 48 metres, as measured from the Geodetic plan Schedule 3 attached Survey of Canada elevation 194.47 metres, hereto and a maximum of 15 storeys which shall include the roof feature as required by clause (e) of this section and is subject to section 5 of this by -law (i) Building A as shown on the shall have a roof feature which has a plan Schedule 3 attached minimum height of 14 metres above the hereto top storey and may have a maximum of four storeys. The roof feature shall be a distinct architectural element of the building and shall not contain a place of occupancy (ii) Building B as shown on the shall have a roof feature which has a plan Schedule 3 attached minimum height of 14 metres above the hereto top storey and may have a maximum of four storeys, of which two storeys may contain a place of occupancy. The roof feature shall be a distinct architectural element of the building (iii) Building C as shown on the shall have a roof feature which has a plan Schedule 3 attached minimum height of 5 metres above the top hereto storey and may have a maximum of two storeys. The roof feature shall be a distinct architectural element of the building and shall not contain a place of occupancy 100% (g) Maximum gross floor area 153,100 square metres (h) Minimum number of parking 1 parking space for every 1.25 hotel units spaces (n) Minimum perpendicular length of a parking space Minimum width of a parking space Minimum perpendicular width of a manoeuvring aisle Convention centre (m) Parking structure Parking stacker spaces (o) Minimum vertical dimension of a parking level designed to accommodate parking stacker spaces (p) Location of parking 4 7.9 parking spaces for every 100 square metres of floor area of a convention centre, plus 59 parking spaces 5.9 metres 2.6 metres 6.0 metres the hotel shall include a convention centre having a minimum floor area of 2,400 square metres and a maximum floor area of 2,600 square metres, exclusive of floor areas for restaurants and retail stores the hotel shall include a parking structure providing a minimum of 85% of the parking spaces required by clause (h) of this section, on the land described in section 1 of this by -law and shown hatched and designated TC and numbered 752 on the plan Schedule 1 attached hereto parking spaces required by clause (h) of this section may be provided by means of parking stackers within the required parking structure, each parking stacker module accommodating no more than two parking spaces that are accessed by a manoeuvring aisle that conforms to the minimum dimensions specified in clauses (h), (i) and (j) of this section 3.4 metres a maximum of 104 required parking spaces that cannot be provided on the land described in section 1 of this by -law and designated TC and numbered 752 on the plan Schedule 1 attached hereto, shall be provided within a parking area on the land described in section 2 of this by -law and designated TC and numbered 753 on the plan Schedule 1 attached hereto (q) Minimum number of loading spaces (e) Maximum floor area for all retail stores Maximum floor area for each retail store Maximum combined number of seats in all restaurants and licensed establishments 4. Notwithstanding the provisions of clauses (c), (d) and (e) of section 4.19.1 of By -law No. 79- 200, no person shall use the land described in section 2 of this by -law and shown hatched and designated TC and numbered 753 on the plan Schedule 1 attached hereto, for the purpose of a parking area in accordance with section 3 of this by -law, except in compliance with the following regulations: (a) Minimum perpendicular length of a 5.9 metres parking space (b) (c) (d) Maximum number of parking spaces Minimum width of a parking space 2.6 metres Minimum perpendicular width of a manoeuvring aisle Minimum landscaped open space 5 4, in accordance with the dimensions contained in section 4.20.1 of By -law No. 79 -200 1,000 square metres 400 square metres 2,150 6.0 metres 104, which may be provided in tandem a 3 metre wide strip along and between any surface parking area and the Stanley Avenue, Murray Street and Main Street road allowances, save and except for a maximum of 2 driveway entrances 5. For the purpose of this by -law, "roof feature" means a distinct architectural element erected above the top storey of the hotel tower component and shall not contain a place of occupancy or be used for commercial purposes, unless otherwise permitted by this by -law, but shall be provided for the purposes of enhancing the design of the hotel and may enclose any roof mounted mechanical equipment, mechanical penthouses, or other similar elements. Notwithstanding section 4.7 of By -law No. 79 -200, and except for any flagpoles, or other similar decorative roof features, decorative cupolas not exceeding 4.5 metres in width and 6 metres in height, and radio, telephone, television or telecommunications towers or antennae, no water tank, elevator or other mechanical penthouse shall have a height greater than the roof feature. 6. The owner of the lands described in section 1 of this by -law is required, pursuant to subsection 37 (3) of the Planning Act, to enter into one or more agreements with the City in order to secure the facilities, services and matters referred to in section 7 of this by -law and such agreements are to be registered on title. 6 7. The height of the building or structure permitted by section 3 of this by -law shall only be permitted subject to compliance with the conditions set out therein and in return for the provision, by the owner of the lands described in section 1 of this by -law, providing the following facilities, services and matters to the City namely: (a) a contribution of $1,200,000 in cash to the City, to be used for a new arena project that is beyond what would otherwise be provided under the provisions of the Planning Act or the Development Charges Act, in accordance with an agreement entered into pursuant to section 6 of this by -law; (b) streetscape improvements to the street frontages along Stanley Avenue, Fallsview Boulevard, Main Street and Murray Avenue adjoining the subject lands described in sections 1 and 2 of this by -law, inclusive but not necessarily limited to sidewalks, street trees, street furniture, street lighting and landscaping, not covered by development charges and 2 parkland dedication, as detailed in the City's Tourist Area Streetscape Master Plan and the City's Urban Design Guidelines; and (c) the provision of an architectural design for the hotel, convention centre and parking structure including, but not limited to, surface articulation, exterior materials, roof structure, pedestrian -scale uses, and design of the public realm satisfactory to the Architectural Peer Review Panel and the Director of Planning and Development, in accordance with an agreement entered into pursuant to section 6 of this by -law. 8. No building or structure shall be erected until such time as the facilities, services and matters required by an agreement entered into pursuant to section 6 of this by -law are provided. 9. For the purposes of this by -law: "convention centre" means a part of a hotel designed to accommodate large gatherings for specific events such as conferences, trade shows, meetings, rallies and may include meeting rooms, assembly halls, theatres, restaurants and retail stores. "parking stacker" means a mechanical motor vehicle parking device in which two parking spaces are provided with one positioned above the other and accessed by a manoeuvring aisle as provided for in clause (m) of section 3 of this by -law. "storey" means a storey and a half storey as defined in sections 2.54 and 2.55 of By -law No. 79 -200. "top storey" means the uppermost storey of a building save and except for any storeys provided within the roof feature. "retail store" shall mean any store involving retail sales. 10. Section 19 of By -law No. 79 -200 is further amended by adding thereto the following: 19.1.752 Notwithstanding the provisions of sections 2.26, 2.31, 2.54, clauses (a), (c), (d) and (f) of section 4.19.1, section 4.20.1 and section 8.6.2 of By -law No. 79 -200, no person shall use the land on the south side of Murray Street between Fallsview Boulevard and Stanley Avenue, 19.1.753 10. By -law No. 98 -157 is repealed and section 19.1.455 is deleted. Passed this eighth day of January, 2007. DEAN IORFIDA, CITY CLERK R. T. (TED) SALCI, MAYOR First Reading: Second Reading: Third Reading: designated TC and numbered 752 on Sheet D5 of Schedule "A or erect or use any building or structure thereon for the purpose of a hotel, including a convention centre and a parking structure, having a height greater than 12 metres except in compliance with By -law No. 2007- January 8, 2007 January 8, 2007 January 8, 2007 7 Notwithstanding the provisions of clauses (c), (d) and (e) of section 4.19.1 of By -law No. 79 -200, no person shall use the land on the south side of Murray Street between Stanley Avenue and Main Street, designated TC and numbered 753 on Sheet D5, for the purpose of a parking lot, except in compliance with By -law No. 2007- FIRSTLY SECONDLY APPENDIX "A" Part of Range 16, West of Buchanan Avenue and Part of Buchanan Avenue (closed by By -law 2207, registered as Instrument No. 97685), Plan 1, designated as Part 1 on Plan 59R -5041, Save Except Part 1 on Plan 59R -7271, City of Niagara Falls Part of Range 14 and Part of Range 15, West of Buchanan Avenue Part of Buchanan Avenue, (closed by By -law 2207, registered as Instrument No. 97685), Plan 1, City of Niagara Falls, more particularly described as follows: COMMENCING at a point in the original westerly limit of Buchanan Avenue created by Plan 1, distant therein North 3 degrees, 14 minutes west, 322.75 feet from its intersection with the northerly limit of Dixon Street created by Plan 1, according to Plan 1; THENCE South 74 degrees, 11 minutes west, 191.64 feet to an iron stake THENCE North 2 degrees, 15 minutes west, 171.59 feet to a concrete monument planted in the northerly limit of Range 15; THENCE North 86 degrees 43 minutes east along the northerly limit of said Range No. 15 and its easterly production, 191.18 feet to an iron stake planted in the present westerly limit of Buchanan Avenue, established by By -law No. 2207; THENCE South 3 degrees 14 minutes east along the said westerly limit of Buchanan Avenue, 128.43 feet to an iron stake planted at the intersection of the said westerly limit with a line drawn through the Point of commencement on a course of North 74 degrees 11 minutes east; THENCE South 74 degrees 1 minutes west, 7.15 feet more or less to the point of commencement. Previously described Secondly in #585864 SAVE AND EXCEPT Part 1 on Plan 59R -7271 THIRDLY Part of Range 16, between Stanley Avenue and Buchanan Avenue, Plan 1, City of Niagara Falls, more particularly described as follows: COMMENCING at the northwest corner of said Part of Range 16 on Stanley Avenue; THENCE running easterly along the said School House Lot, 40 feet to a post; THENCE westerly parallel to the north line of Range 16, 170 feet to Stanley Avenue; THENCE northerly along Stanley Avenue, 40 feet to the point of commencement; CONTAINING 6,800 square feet. Previously described in 754194 FOURTHLY All that Part of Range 17, lying between Stanley Avenue and Buchanan Avenue, Plan 1, Niagara Falls; SAVING AND EXCEPTING thereout and therefrom all the sub -soil and sub surface of the lands described, below an elevation of 460 feet above the datum line as established by the Canadian Geodetic Survey, and as previously described in Instrument No. 773 864 (firstly). SAVE AND EXCEPT Parts 2, 3, 4 5, Plan 59R -12018 FIFTHLY Part of Ranges 14, 15 and 16, Plan 1, designated as Part 1 on Plan 59R -6575, City of Niagara Falls SIXTHLY Part of Range 14, lying between Stanley Avenue and Buchanan Avenue, Plan 1, designated as Part 1 on Plan 59R -7329, Niagara Falls; SAVING AND EXCEPTING thereout and therefrom all the sub -soil and sub surface of the lands described, below an elevation of 460 feet above the datum line as established by the Canadian Geodetic Survey APPENDIX "B" Part of Stanley Avenue, Plan 1, Stamford as closed by By -law BL8; Part of Range 17, Plan 1, Stamford, as in ST11632 ST11633 (Firstly) Except R0178426 BB69923, Niagara Falls, Being all of PIN 64351 -0113 SCHEDULE 1 TO BY -LAW No. 2007- Subject Land Amending Zoning By -law No. 79 -200 Description: See Appendices "A" and "B" Applicant: Hospitality Resorts Inc., 1140464 Ontario Inc. and 1229142 Ontario Inc. Assessment #s: 272503000806000 272504000106000 272503000817500 272503000817900 272507000312300 K: \GIS_Requests \2003 \Schedules \Zon ingAM\AM- 35 \mapping,map 1:NTS AM- 35/2003 December 2006 SCHEDULE 2 TO BY -LAW No. 2007- Legend Maximum Building Height Tower Building Components Above Geodetic Survey of Canada Elevation 194.47 m Max. of Storeys Maximum Height ir 7r 2 15m 5 19m 8 29m 8 42m K: \GIS_Requests\ 2003 \Schedules \ZoningAM\AM -35 \mapping. map Amending Zoning By -law No. 79 -200 N Description: See Appendix A Applicant: 876891 Ontario Limited, 1140464 Ontario Inc. and 1229142 Ontario Inc. S 1:NTS AM- 35/2003 December 2006 SCHEDULE 3 TO BY -LAW No. 2007- Subject Land Legend Maximum Building Height Tower Building Components Above Geodetic Survey of Canada Elevation 194.47 m .N1 i Max. of Storeys 15 32 56 Maximum Height 48m 104m 172m K:\GIS_Requests\2003\SchedulesVoningAM\AM-35\nnapping.map Amending Zoning By -law No. 79 -200 Description: See Appendix A Applicant: 876891 Ontario Limited, 1140464 Ontario Inc. and 1229142 Ontario Inc. 1:NTS AM -3 5/2003 December 2006 Hotel Lands (see Schedule "A 1 (a) The Streetscape Improvements provided along Stanley Avenue shall be comprised of the following: construction of 163 linear metres of a 2.0 metre wide concrete sidewalk; SCHEDULE "D" STREETSCAPE IMPROVEMENTS installation of vehicular and pedestrian light standards, with associated banners /hanging planters, of a number and in locations to be determined by the Municipality; and installation of waste receptacles and benches, of a number and in locations to be determined by the Municipality. (b) The Streetscape Improvements provided along Murray Street shall be comprised of the following: construction of 94 linear metres of 2.2 metre wide concrete sidewalk; construction of 94 linear metres of 1.5 metre wide precast unit paver strip; construction of 10 tree pits and installation of 10 deciduous trees, with a minimum caliper of 50 mm, and associated tree pit covers where specified; installation of vehicular and pedestrian light standards, with associated banners /hanging planters, of a number and in locations to be determined by the Municipality; and installation of waste receptacles and benches, of a number and in locations to be determined by the Municipality. (c) The Streetscape Improvements provided along Fallsview Boulevard shall be comprised of the following: construction of 45 linear metres of a 2.6 metre wide concrete sidewalk; construction of 45 linear metres of a 1.5 metre wide precast unit paver strip; construction of 5 tree pits and installation of 5 deciduous trees, with a minimum caliper of 50 mm, and associated tree pit covers; installation of vehicular and pedestrian light standards, with associated banners/hanging planters, of a number and in locations to be determined by the Municipality; and installation of waste receptacles and benches, of a number and in locations to be determined by the Municipality. All as detailed in the "City of Niagara Falls Streetscape Master Plan and Urban Design Guidelines MBTW group, October 2001, as may be amended by the Municipality and as further specified in City of Niagara Falls Contract No. 2003 128 -03 and Regional Municipality of Niagara Contract No. RN 0426. The Owner shall make a Streetscape Improvements Calculation calculated as follows: S =$900 $945.90 x (163 metres 94 metres 45 metres) $285,000 2. The Municipality retains the sole right to modify any of the above noted improvements and shall renegotiate with the Owner upon request by the Owner if such modifications result in a cost less than $945.90 per linear metre. Infrastructure Construction Price Index, Capital Expenditure Price Statistics, Third Quarter 2005, Statistics Canada, Catalogue 72 -007. Off -site Parking Lands (see Schedule "B 3 The Streetscape Improvements provided along Murray Street shall be comprised of the following: construction of 84 linear metres of a 3.0 metre wide concrete sidewalk; construction of 84 linear metres of a 2.0 metre wide precast unit paver strip; provision of a 2.0 metre wide landscape strip abutting the site with the installation of 9 deciduous trees, with a minimum caliper of 50 mm; construction of 9 tree pits and installation of 9 deciduous trees, with a minimum caliper of 50 mm and associated tree pit covers where specified; installation of vehicular and pedestrian light standards, with associated banners /hanging planters, of a number and in locations to be determined by the Municipality; and installation of waste receptacles and benches, of a number and in locations to be determined by the Municipality. All as detailed in the "City of Niagara Falls Streetscape. Master Plan and Urban Design Guidelines MBTW group, October 2001, as may be amended by the Municipality. The Owner shall submit a Letter of Credit equivalent to the Streetscape Improvements listed above, calculated as follows: S =$900 $945.90 x 84 metres $79,400 4. The Municipality retains the sole right to modify any of the above noted improvements and shall renegotiate with the Owner upon request by the Owner if such modifications result in a cost less than $945.90 per linear metre. Infrastructure Construction Price Index, Capital Expenditure Price Statistics, third Quarter 2005, Statistics Canada, Catalogue 72 -007. SCHEDULE "E" CAPITAL FACILITIES CONTRIBUTION 1. It is acknowledged and agreed that the City will apply the Facilities Contribution to the Approved Municipal Twin Pad Arena. Passed this eighth day of January, 2007. First Reading: Second Reading: Third Reading: January 8, 2007. January 8, 2007. January 8, 2007. CITY OF NIAGARA FALLS By -law No. 2007 A by -law to adopt, ratify and confirm the actions of City Council at its meeting held on the Stn day of January 8, 2007. WHEREAS it is deemed desirable and expedient that the actions and proceedings of Council as herein set forth be adopted, ratified and confirmed by by -law. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. The actions of the Council at its meeting held on the 8th day of January, 2007 including all motions, resolutions and other actions taken by the Council at its said meeting, are hereby adopted, ratified and confirmed as if they were expressly embodied in this by -law, except where the prior approval of the Ontario Municipal Board or other authority is by law required or any action required by law to be taken by resolution. 2. Where no individual by -law has been or is passed with respect to the taking of any action authorized in or with respect to the exercise of any powers by the Council, then this by -law shall be deemed for all purposes to be the by -law required for approving, authorizing and taking of any action authorized therein or thereby, or required for the exercise of any powers thereon by the Council. 3. The Mayor and the proper officers of the Corporation of the City ofNiagara Falls are hereby authorized and directed to do all things necessary to give effect to the said actions of the Council or to obtain approvals where required, and, except where otherwise provided, the Mayor and the Clerk are hereby authorized and directed to execute all documents arising therefrom and necessary on behalf of the Corporation of the City ofNiagara Falls and to affix thereto the corporate seal of the Corporation of the City of Niagara Falls. DEAN IORFIDA, CITY CLERK R. T. (TED) SALCI, MAYOR