The URL can be used to link to this page

2011/01/17COUNCIL MEETING Monday, January 17, 2011 Order of Business and Agenda Package Niagara 1 alts CAti.At),t PRAYER: Councillor Gates ADOPTION OF MINUTES: Council Minutes of December 13, 2010 * * * ** DISCLOSURES OF PECUNIARY INTEREST Disclosures of pecuniary interest and a brief explanation thereof will be made for the current Council Meeting at this time. Public Meeting SBA - 2010 -003, Sign By -law Amendment Application 3690 Portage Road Owner: McCullough Dental Group Permit an Electronic Video Sign that Exceeds the Regulations in the By -law Background Material: Recommendation Report: PD- 2011 -03 COUNCIL MEETING January 17, 2011 PLANNING MATTERS Public Meeting AM- 2010 -020 - Zoning By -law Amendment Application 4067 River Road and 4327 Ferguson Street Applicant: Baljinder Singh Conversion of Existing Hotel into a Retirement Home Background Material: Recommendation Report: PD- 2011 -07 -AND- -AND- Correspondence from Brian Sinclair -AND-- Correspondence from Jean Grandoni - 2 - Correspondence from the Niagara Parks Commission Correspondence from the Region's Planning Dept. Miscellaneous Planning Matters 1 Chief Administrative Officer PD- 2011 -08 - Appeal of the Committee of Adjustment Decisions, 8006 Biggar Road. Minor Variance. Applicant: Donato Pietrangelo (Agent: Brian Sinclair) 2. Chief Administrative Officer PD- 2011 -06 - 26T -11- 2009 -01 & 2009- 030, Fernwood Phase 3 Draft Plan of Subdivision, Zoning By -law Amendment Application. Lundy's Lane ( North Side), West of garner Road. Owner: 800460 Ontario Limited (Fred Costabile) MAYOR'S REPORTS, ANNOUNCEMENTS COMMUNICATIONS AND COMMENTS OF THE CITY CLERK 1 Winter Festival of Lights - requesting approval for additional fireworks displays. RECOMMENDATION: For the Approval of Council. Additional Items for Council Consideration: The City Clerk will advise of any further items for Council consideration. Finance Matters Legal Matters 2. Chief Administrative Officer 3 REPORTS 1. Chief Administrative Officer F- 2011 -04 - Potential Senior Property Tax Credit 1. Chief Administrative Officer L- 2011 -01 - Niagara Falls Humane Society, Postponement of Charge 3. Chief Administrative Officer L- 2010 -17 - Niagara Convention and Civic Centre Inc. Lease and Operating Agreement Annual Shareholder Resolutions, Niagara Falls holding Corporation. RATIFICATION OF COMMITTEE OF THE WHOLE COMMITTEE ACTIONS RATIFICATION OF "IN CAMERA" RECOMMENDATIONS CONSENT AGENDA THE CONSENT AGENDA IS A SET OF REPORTS THAT COULD BE APPROVED IN ONE MOTION OF COUNCIL. THE APPROVAL ENDORSES ALL OF THE RECOMMENDATIONS CONTAINED IN EACH OF THE REPORTS WITHIN THE SET. THE SINGLE MOTION WILL SAVE TIME. PRIOR TO THE MOTION BEING TAKEN, A COUNCILLOR MAY REQUEST THAT ONE OR MORE OF THE REPORTS BE MOVED OUT OF THE CONSENT AGENDA TO BE CONSIDERED SEPARATELY. CD- 2011 -01 - Municipal Election Accessibility Report F- 2011 -01 - Municipal Accounts F- 2011 -02 - 2011 Interim Tax Levy F- 2011 -03 - Major Receivables Monthly (November) L- 2011 -02 - Boys & Girls Club of Niagara Postponement of Charge 2011 -01 4 PD- 2011 -02 - Application to Regional Niagara for Funding under their Public Domain Incentives Program PD- 2011 -04 - Partnering with Regional Niagara on a Residential Loan for Renaissance Retirement Suites Complex at 5698 Main Street, Dr. Nick Vaccaro PD- 2011 -05 - Review of Rates for Sidewalk Cafes TS- 2011 -02 - Oakwood Drive - Parking Review TS- 2011 -05 - Finlay Avenue at Symmes Street - Intersection Control Review TS- 2011 -07 - RFP for On- Street Recycle Receptacle Bins and Pedestrian Barriers RESOLUTIONS 1. THEREFORE BE IT RESOLVED that the Council of the Corporation of the City of Niagara Falls hereby determines in accordance with Section 34(17) of the Planning Act, R.S.O., that the changes to the Draft Plan of Subdivision are minor in nature and do not require any further notice. 2. THEREFORE BE IT RESOLVED that the City of Niagara Falls attests that it will continue to contribute its share of the required funding for the Infrastructure Stimulus Fund (ISF) and the Recreational Infrastructure Fund (Rlnc). 3. THEREFORE BE IT RESOLVED that the Council of Corporation of the City of Niagara Falls supports an application to Regional Municipality of Niagara for funding under the Public Domain Incentives Program forthe Public Realm Improvements forthe Downtown C.I.P. area. 4. THEREFORE BE IT RESOLVED that the Council of Corporation of the City of Niagara Falls supports an application to Regional Municipality of Niagara for the various Combined Sewer Overflow projects BY -LAWS The City Clerk will advise of any additional by -laws or amendments to the by -laws listed for Council consideration. A by -law to amend By -law No. 2008 -224, being a by -law to prohibit or regulate the placing or erecting of signs, notices, and advertising devices on public and private property within the City of Niagara Falls. (SBA- 2010 -003) 5 2011 -02 A by -law to provide for the adoption of Amendment No. 98 to the City of Niagara Falls Official Plan. (OPA No. 98) 2011 -03 A by -law to amend By -law No. 79 -200, to permit a residential condominium development within an existing golf course and to repeal By -law No. 2007 -236. (AM- 2010 -018) 2011 -04 A by -law to amend By -law No. 79 -200, to guide the development of the Fernwood Phase 3 plan of subdivision on the Lands. (AM- 2009 -030) 2011 -05 A by -law to amend By -law No. 395,1966, to permit a single family dwelling on the Lands to be used as a tourist home and to repeal By -law No. 2009 -63. (AM -2010- 019) 2011 -06 A by -law to amend By -law No. 79 -200, to permit an apartment building. (AM- 2010 -021) 2011 -07 A by -law to amend By -law No. 2002 -081, being a by -law to appoint City employees, agents and third parties for the enforcement of provincial or municipal by -laws. 2011 -08 A by -law to provide an interim levy of realty taxes. 2011 -09 A by -law to amend By -law No. 89 -2000, being a by -law to regulate parking and traffic on City Roads. (Speed Limits on Highways - Part 3 (70 km /h) 2011 -10 A by -law to authorize the payment of $25,017,460.83 for General Purposes. 2011 -11 A by -law to authorize the execution of a Lease and Operating Agreement with Niagara Convention and Civic Centre Inc., respecting the lease and operation of the Niagara Convention and Civic Centre.* 2011 -12 A by -law to adopt, ratify and confirm the actions of City Council at its meeting held on the 17 day of January, 2011. *NOTE: Attached is the agreement provided to Council on December 13 There may be some minor modifications to the agreement that will be sent out later. See the City Solicitor's explanatory note. NEW BUSINESS Niagarapalls January 17, 2011 CANADA REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development PD- 2011 -03 SUBJECT: PD- 2011 -03 SBA - 2010 -003, Sign By -taw Amendment Application 3690 Portage Road Owner: McCullough Dental Group Permit an Electronic Video Sign that Exceeds the Regulations in the By -law RECOMMENDATION That Council approve the Sign By -law amendment application to permit a fascia sign composed entirely of an electronic video screen on a dental office on the east side of Portage Road, south of Keith Street, to have a maximum sign area of 5.02 sq. m (54.04 sq. ft.), with the condition that the sign not be used for third party advertising. EXECUTIVE SUMMARY The amendment is requested to permit a fascia sign composed entirely of an electronic video screen which exceeds the size permitted in the Sign By -law. The site specific amendment to the by -law would permit a sign with an area of 5.02 sq. m (54.04 sq. ft.). The Sign By -law amendment can be approved for the following reasons: the proposed sign meets the intent of the Official Plan; the sign is located on a side of the existing building set back from Portage Road and faces a parking lot, and the proposed sign replaces a wall sign that previously existed on that elevation. BACKGROUND A Sign By -law amendment is requested to permit the owners of the McCullough Dental Group to have an electronic video sign that will have a sign area of 5.02 sq. m (54.04 sq. ft.), whereas the by -law permits a maximum sign area of 1.8 sq. m (19.37 sq. ft.). The purpose of the sign is to advertise the services offered by the dental office. Previously, there was a wall sign on this elevation that advertised the dental office, but it was a backlit sign where the message did not change. January 17, 2011 - 2 - PD- 2011 -03 Staff determined that, given the size of the electronic video sign and the magnitude of the difference between the proposed sign area and the maximum permitted by the by -law, an amendment to the By -law is necessary. The By -law requires that amendments to be considered by Council and that notice of the public meeting be given to all property owners within 120 metres of the subject property. Notice for this application was circulated on December 10, 2010. Circulation Comments • Transportation Services Sign By -law No objections when circulated for minor variance application. ANALYSIS Official Plan The property is located in an area designated Major Commercial in the Official Plan. The amenity and design policies of the Official Plan promote an attractive environment and improved physical appearance throughout the City. Signs should not have a negative impact on the amenity of the area or create a distraction for vehicular traffic. While this sign is larger that what is contemplated by the Sign By -law for a building of this size, it is located toward the back of the building and away from Portage Road, thereby, lessening potential distractions for pedestrians and motorists. The intent and purpose of the Sign By -law are to regulate signage within the City for purposes of public safety and aesthetics. The intent of the by -law also is to allow electronic video signs of a limited size given their potential to be obtrusive and visually distracting. The proposed sign is located within a Commercial district of the Sign By -law and an electronic video sign would be permitted, but it is the size of the proposed sign at almost three times larger than what is permitted by the by -law which necessitates the amendment application. The proposed sign is to advertise only those services conducted on the property. As it is a wall sign, no third party advertising is permitted. Third party advertising is allowed, only on billboard signs and presently, the City has the maximum number of billboard signs permitted by the Sign By -law. The maximum sign area permitted for an electronic video sign would be 1.8 sq. m (19.37 sq. ft.), whereas the proposed sign has an area of 5.02 sq. m (54.04 sq. ft.). In reviewing the sign amendment it was found that: • it replaces a wall sign and is positioned further away from Portage Road than the previous sign; January 17, 2011 - 3 - PD- 2011 -03 • it faces onto an adjacent parking lot, and not onto Portage Road, although it is visible from Portage Road; and • it is an update to sign technology that will become more prevalent in the future. LIST OF ATTACHMENTS ► Schedule 1 - Location Map • Schedule 2 - Photograph of South Elevation • Schedule 3 - Site Plan Recommended by: Alex Herlovitch, Director of Planning, Building & Development Respectfully submitted: LI-44 K Todd, Chief Administrative Officer P.Boyle:gd Attach. V:\2011 COUNCIL\2011 01 17 \PD- 2011 -03, SBA - 2010 -003, McCullough Dental, 3690 Portage Rd.wpd January 17, 2011 - 4 - SCHEDULE 1 PD 2011 - 03 SBA -2010 -003 3690 Portage Road McCullough Dental Sign By -law Amendment Location Map 3546 _ ra INC -ST December 2010 January 17, 2011 - 5 - SCHEDULE 2 PD- 2011 -03 January 17, 2011 1- cn W SCHEDULE 3 OVO J 30VIHOd PD- 2011 -03 cyi 1 LL O 0 w J Niagararalls January 17, 2011 REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development SUBJECT: PD- 2011 -07 AM- 2010 -020, Zoning By -law Amendment Application 4067 River Road and 4327 Ferguson Street Applicant: Baljinder Singh Conversion of Existing Hotel into a Retirement Home RECOMMENDATION PD- 2011 -07 1. That Council approve the application to rezone 4067 River Road (Parcel 1) from site specific Tourist Commercial (TC -240) to site specific Institutional (I) to permit the conversion of the hotel on Parcel 1 to a retirement home, with a portion of the required parking on Parcel 2, and to add site specific provisions to the Parking (P- 240) zoning of 4327 Ferguson Street (Parcel 2). 2. That Council pass a two "deeming by- laws ", one by -law to deem Lots 24 and 25 and Part of Lots 21, 22 and 23, Plan 996 (Parcel 1) to no longer be within the registered plan of subdivision and one by -law to deem Lots 10, 11, 25 and 26, Plan 306 (Parcel 2) to no longer be within the registered plan of subdivision. EXECUTIVE SUMMARY The applicant has requested a zoning amendment to convert an existing hotel on Parcel 1 to a retirement home and to permit a portion of the required parking on Parcel 2. This request can be supported because: • The proposal conforms to the Official Plan with respect to locating residential type uses on Commercially designated lands. • The proposed retirement home will be compatible with surrounding residential lands and should have no negative impacts on surrounding tourist commercial uses. • Parking for the hotel is already permitted off -site on Parcel 2. Continuation of this off - site parking to serve the retirement home is not expected to have increased impacts. BACKGROUND Proposal The amendment is requested for 2 parcels of land; a 0.27 hectare (0.67 acre) parcel known as 4067 River Road (Parcel 1) and a 0.17 hectare (0.43 acre) parcel known as 4327 Ferguson Street (Parcel 2), illustrated on Schedule 1. The applicant is proposing to convert the existing hotel on Parcel 1 into a retirement home and to permit a portion of the required parking to be provided on Parcel 2. Schedules 2 and 3 show details of the development. January 17, 2011 Parcel 1 is zoned Tourist Commercial (TC -240) with site specific provisions permitting a portion of the required parking for a hotel to be provided on Parcel 2 and additional lands fronting onto Ferguson Street. Parcel 2 is zoned Parking (P -240). The applicant is requesting Parcel 1 be zoned Institutional (I) with site specific provisions recognizing the existing building and proposed gazebo, reducing the length of a loading space to 6 metres and permitting a portion of the required parking to be provided on Parcel 2. The applicant is requesting Parcel 2 be zoned Parking (P) with site specific provisions reducing landscaping along street frontages to 0 metres. Site Conditions and Surrounding Land Uses Parcel 1 is occupied with a 4 storey hotel and limited parking. Parcel 2 is used as a parking lot that forms part of the required off-site parking for the hotel on Parcel 1. The parcels are bounded by tourist commercial uses (accommodations and retail stores) to the north and south and by the Niagara River to the east. Lands to the west are largely used for single detached residences. A small portion of the parking lot associated with the hotel extends beyond Parcel 2 along Ferguson Street. Circulation Comments Information regarding the proposed Zoning By -law Amendment was circulated to City divisions, the Region and the public for comment. The following summarizes the comments received to date: Regional Municipality of Niagara - No objections from a Provincial or Regional perspective. The proposed amendment will provide for the reuse of existing building stock and will provide additional housing choices for seniors. Transportation Services • Building Services • Landscape Design No objections. - 2 - PD 2011 - 07 No objections. The waste disposal bins should be relocated so that they are accessed from a driveway and the waste disposal vehicle can exit in a forward direction. No objections. A Change In Use Building Permit, to convert the building to a retirement home, is required. No objections. A site plan application should be accompanied by a landscape drawing stamped by a landscape architect. Niagara Parks Commission, Niagara Peninsula Conservation Authority, Legal Services, Municipal Works, Parks and Recreation, Fire Services January 17, 2011 Neighbourhood Open House A neighbourhood open house was held on December 7, 2010 which was attended by six neighbouring residents and the applicant's agent. None of the residents objected and were generally of the opinion the retirement home would have less of an impact than a tourist commercial use. The residents sought confirmation that sufficient parking and garbage facilities existed, to which the agent noted that only 50% of the residents are expected to drive and generally one occupant per room was expected, which would not create further demand for garbage facilities. Residents also noted concerns about the parking lot lighting (needed to be improved but should not shine on adjacent properties) to which the agent stated he would look at lighting improvements. Some concerns were expressed about the backup of drainage on the off -site parking lot, to which the agent stated he could look into whether the catchbasins need to be cleaned out. Finally the agent noted that as the hotel would be changing to a retirement home the utilization of large tourist buses would not continue. ANALYSIS 1. Official Plan • - 3 - PD- 2011 -07 The Lands are designated Tourist Commercial by the Official Plan and are within the Whirlpool Satellite tourist District. Lands within this Subdistrict are intended to be developed with accommodations and other tourist uses at a scale compatible with surrounding residential areas. The use of Tourist Commercial lands for residential development can be considered if lands are in excess of demand. Development of such lands for residential purposes is subject to a set of criteria to ensure the development does not adversely impact surrounding lands. The proposed retirement home complies with the Official Plan as follows: Conversion of these lands from tourist commercial to residential use does not impact on the inventory of lands available for current and future tourist commercial uses. There are sufficient undeveloped and underutilized parcels that are designated and zoned for tourist commercial purposes and available for tourist oriented uses. The hotel has existed for a number of years. The height and massing of the hotel were originally designed to be compatible with the largely single detached residential neighbourhood. This relationship will not be changed by converting the hotel to a retirement residence. A retirement home is a residential type use which is compatible with surrounding residences. Conflicts between residential traffic and tourist type traffic, such as tourist buses, would be eliminated. Viability of this area for tourist uses is provided by its proximity to tourist attractions such as the Aero Car, White Water Walk, Buddhist Temple and retail shops. The removal of the subject lands from the tourist commercial inventory is not expected to negatively impact the tourist commercial activities. 2. Zoning By -law The requested site specific Institutional (I) zoning for Parcel 1 would permit the proposed retirement home containing 96 living units. A retirement home is defined as "a residence providing accommodation primarily for persons or couples with January 17, 2011 • Minimum front yard depth - 0 metres • Minimum rear yard depth - 4 metres • Minimum interior side yard width - 3.5 metres • Minimum exterior side yard width - 1 metre • Maximum lot coverage - 54% • Maximum height of a building - 11.5 metres - 4 - PD 2011 - 07 limited physical disabilities brought on by age or other infirmity for which some degree of physical assistance is required and where each private living unit has a separate private bathroom and separate entrance from a common hall, but where common facilities for the preparation and consumption of food are provided, and common lounges, recreation rooms and medical care facilities may also be provided." As the development standards for the I zone are different from the Tourist Commercial (TC) zone under which the current building was developed, the applicant has requested a number of site specific provisions to recognize the existing building and permit a small garden terrace and gazebo, as follows: Minimum interior side yard width, accessory structure (for the proposed gazebo) - 0.8 metres. This accessory structure should be limited to the interior side yard, and should be restricted to the same height permitted for accessory structures in a residential zone (4.5 metres). Reduction in the length of a required loading space from 9 metres to 6 metres. Although the hotel has functioned without a designated loading area for many years the reduced loading space should be provided to serve the vans the owner has noted he intends to use to provide supplies. In addition a parking requirement of 0.6 parking spaces per living unit in a retirement residence is requested. This parking ratio has been used for other retirement residences in the City, and recognizes that some residents would not drive. Sufficient parking exists on both Parcels to serve the 96 living units in the proposed retirement home. Currently a portion of the required parking for the hotel is provided on Parcel 2 and an adjoining parcel of land fronting onto Ferguson Street. Both of these parcels are zoned Parking (P) and are permitted to be used as required parking for the hotel on Parcel 1. As a retirement home requires less parking than a hotel, the applicant has requested that only the parking lot on Parcel 2 be tied in to providing required parking for the retirement home. As this recognizes a long standing parking arrangement, this request is acceptable. The remaining parking lot on Ferguson Street (under a separate by -law) can still be used as a stand alone parking lot. The P zone requires a 2 metre wide landscaped open space strip along street frontages; the applicant has requested this requirement be eliminated. An existing 1.5 metre wide landscape strip is shown on the drawing attached as Schedule 3. This strip should be the minimum buffer from the surrounding streets together with the existing decorative wall. In addition the existing 2.5 metre wide landscape strip at the January 17, 2011 rear of the property (adjoining 4053 Glenview Avenue) and existing fencing along residential properties should be recognized in the amending by -law. 3. Deeming By -law Although Parcels 1 and 2 each function as a lot, each Parcel consists of several lots and part lots in a plan of subdivision. This creates zoning issues, as the hotel and parking spaces straddle lot lines. This is contrary to the Zoning By -law. If each of the Parcels is deemed to be no longer within the registered subdivision they will be able to merge and be treated as two large parcels for zoning purposes. The applicant has requested the City to pass two "deeming by- laws ", one for Lots 24 and 25 and Part of Lots 21, 22 and 23, Plan 996 (Parcel 1) and one for Lots 10, 11, 25 and 26, Plan 306 (Parcel 2). A deeming by -law removes the special status granted to whole lots within registered plans of subdivision for the purpose of subdivision control under the Planning Act. The applicant's registration of the requested by -laws would merge the subject properties in the same ownership and allow the two Parcels to each be one lot. FINANCIAL IMPLICATIONS The conversion of the property from a hotel to retirement home will result in a change in the property assessment but at this time the impact cannot be determined. CITY'S STRATEGIC COMMITMENT The proposed development complies with the City's Official Plan in terms of residential uses in Commercially designated lands. LIST OF ATTACHMENTS ► Schedule 1 - Location Map ► Schedule 2 - Site Plan - 4067 River Road ► Schedule 3 - Site Plan - 4327 Ferguson Street Recommended By: f Respectfully Submitted: A.Bryce:mb Attach. S: \PDR\2011 \PD- 2011 -07, AM- 2010 -020, 4067 River Rd -4327 Ferguson St.wpd - 5 - PD- 2011 -07 Alex Herlovitch, Director of Planning, Building & Development K n Todd, Chief Administrative Officer Additional lands owned by Applicant which are not part of this Application January 17, 2011 LEADER LANE SON Sr -G' SCHEDULE 1 LOCATION MAP \v,N�\ \ \) \ \ �� , � � � � � � � `` ` \ ` ` \ \ \ '^ / � / \ �/ / \ \ \ ' - - ' ' / / � � — / ` '/ //' ,/ � \` \ ` \-, - /t ^ . / / )`\ \ ��/�\ ` / /\� � .� e' /\ \ `` / ' ' `` ` ' ~ '` \ � / /' \ \ \ �' w~ ,��` �\ ^ ` \ \ ' | ` / \� � `� t� .,/ | ) . \ \ \ >// � ` r . /4\ \ � ,m ` / \\ . � \ \ \ r � � � `/ ' / \ � \ \' ./\ \ ,/' // \\ \ ,^/^'' `� ` \�/ / ' \ \ �a sT � y� \\\ ' �/� `\ , �\ - ' ' .`` ` ` ' Amending the Zoning By-law No. 79-200 November 2010 Location: 4067 River Road and 4327 Ferguson Street Applicant: 8ahinder5ingh \ N; January 17, 2011 - 7 - SCHEDULE 2 PD- 2011 -07 January 17, 2011 - 8 - SCHEDULE 3 PD- 2011 -07 An agency of the Government of Ontario since 1885 December 7, 2010 Mr Andrew Bryce Planner 2 City of Niagara Falls 4310 Queen Street Niagara Falls, ON L2E 6X5 Dear Sir, Re: 4067 River Road, Niagara Falls Zoning By Law Amendment AM 2010 -020 Conversion of Existing Quality Inn Hotel to a Condominium Thank you Bryce, for sending us a copy of the application and plans for the above noted project. As the applicant has no plans to change the access, site works or exterior of the building, Niagara Parks staff have no objections to the proposal. Yours truly, Fay Booker Chair Niagar a Far sk i�i David GiIIiS, CIP, RPP Manager, Planning and Properties DG /nh THE NIAGARA PARKS COMMISSION P.O. Box 150, Niagara Falls, Ontario, Canada L2E 6T2 p, Planning .t. { i ! ,,, rile: Dave Gillis Planning & Properties Phone: 905 -356 -2241, ext. 260 Fax: 905 -356 -7262 E -Mail: dgillis @niagaraparks.com fC EWE D a & DEVELOPMENT DEC 1 4 2010 PLANNING Nia Par 1 +1 An agency of the Government of Ontario since 1885 November 26, 2010 Mr Alex Herlovitch Director of Planning and Development City of Niagara Falls 4310 Queen Street Niagara Falls, Ontario L2E 6X5 Dear Sir: Re: 4067 River Road Zoning By -law Amendment Application AM- 2010 -020 Thank you for notification of the above noted application to convert the existing Quality Inn into a retirement home. The information provided indicates that there is no change to access onto River Road and no exterior alterations. The Niagara Parks Commission has no objections to this proposal. We would appreciate a copy of the Committee's decision. Yours truly, Dave MCIP, RPP Manager - Planning & Properties DG /nh Dave Gillis Planning & Properties Phone: 905 -356 -2241, ext. 260 Fax: 905 - 356 -7262 E -Mail: dgillis @niagaraparks.com Fay Booker THE NIAGARA PARKS COMMISSION John Kernahan Chair P.O. Box 150, Niagara Falls, Ontario, Canada L2E 6T2 General Manager www.niagaraoarks.com Niagara Region Building Community. Building Lives. December 20, 2010 Files: D.18.04.ZA -04660 Mr. Andrew Bryce Planner 2 City of Niagara Falls 4310 Queen St., 2n Floor Niagara Falls, ON L2E 6X5 Dear Mr. Bryce: Re: AM- 2010 -020, Zoning By -law Amendment Application Conversion of Existing Hotel to a Retirement Home 4067 River Road, Lots 10, 11, 25, 26 (Ferguson Street) City of Niagara Falls PUBLIC WORKS DEPARTMENT Development Services Division 2201 St. David's Road, P.O. Box 1042 Thorold, ON L2V 4T7 Tel: 905 - 685 -4225 Tol I- free:1- 800 -263 -7215 Fax: 905 -687 -8056 www.niagararegion.ca R iE DEC 2 9 2010 Regional Development Services staff has reviewed the information circulated for the above noted Zoning By -law Amendment application. The proposed zoning amendment application is to rezone the subject property from Tourist Commercial (TC -240) to Institutional (I) with site - specific provisions limiting the use to a retirement home, recognizing the size and configuration of the existing building and allowing part of the required parking to be provided on the associated P -240 zoned lands on Ferguson Street. Other than the addition of a landscaped area behind the hotel, no site works are proposed. Regional staff offers the following Provincial and Regional comments to assist the City in considering the application. The subject properties are within the Built -up Area of the Urban Area Boundary for the City of Niagara Falls according to the Regional Policy Plan. The Urban Area policies provide for a range of industrial, commercial, and residential uses. The Regional Policy Plan, Provincial Policy Statement (PPS), and Places to Grow Growth Plan all contain polices that support intensification and redevelopment in the urban area where appropriate levels of services and infrastructure exist. In addition, municipalities are encouraged to develop a diverse mix and range of housing types and densities, including affordable housing to meet projected requirements of current and future residents. The Places to Grow Growth Plan speaks to providing for an appropriate range of infrastructure to meet the needs resulting from population changes which includes lands, buildings and structures that support the quality of life for people by providing public services for health, education, recreation, socio - cultural activities, security and safety, and affordable housing. The proposed rezoning will facilitate the redevelopment of an existing 96 room hotel in the City's established urban area where existing infrastructure is available for senior's housing. The proposed retirement home, as an altemative type of housing, should further enhance housing choice for residents at a variety of income groups and housing needs. NT The applicant is advised that the proposed use is institutional and therefore private waste collection must be provided at the owner's expense. In conclusion, the proposal represents an opportunity for redevelopment that makes efficient use of land and infrastructure as supported by Provincial and Regional policies. The proposed rezoning application will provide for the reuse of existing building stock and will provide additional housing choice for seniors. Therefore, Regional staff has no objection to the proposed zoning by -law amendment from a Provincial or Regional perspective, subject to the satisfaction of any local requirements. If you have any questions or wish to discuss these comments, please contact Teresa Gray, Planner, or Marilyn Radman, Manager of Development Services Division. Please send notice of the City's decision with regard to this application. Yours truly, 2 7 eresa Gray, Planner P, RPP - 2- L: \Gray- Teresa \NIAGARA FALLS\ZONING AMENDMENTS\4067 River Road \4067 River Road comments.docx REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development RECOMMENDATION EXECUTIVE SUMMARY BACKGROUND PD- 2011 -08 NiagaraJalls January 17, 2011 SUBJECT: PD- 2011 -08 Appeal of the Committee of Adjustment Decisions Consent Application B- 2010 -016; Minor Variance A- 2010 -036 8006 Biggar Road Applicant: Donato Pietrangelo (Agent - Brian Sinclair) That Council authorize staff to continue with the appeal to the Ontario Municipal Board regarding the Committee of Adjustment's decision to grant Consent Application B -2010- 016 and Minor Variance Application A- 2010 -036. On December 14, 2010, the City's Committee of Adjustment approved Consent Application B- 2010 -016 and related Minor Variance Application A- 2010 -036 for minimum lot area which do not comply with the City's Official Plan, the Regional Niagara Policy Plan and Provincial Policy Statement and Growth Plan. Staff is seeking Council's authorization to proceed with the appeal to the Ontario Municipal Board. The applicant owns 1.62 hectares (4.0 acres)of land located on the south side of Biggar Road, between Montrose Road and Crowland Avenue (see the attached Schedule 1- Surveyor's Sketch). An application for severance was submitted to the City's Committee of Adjustment to convey 0.81 hectares (2.0 acres)of land (Part 1) for a proposed single detached dwelling and to retain 0.81 hectares (2.0 acres)of land for continued residential use and contains an existing dwelling (8006 Biggar Road). An accompanying Minor Variance application was submitted for lot area because neither the retained nor severed lots comply with the minimum lot area requirement. The Committee of Adjustment granted approval of the application at the Public Hearing on December 14, 2010 contrary to staffs report. Staff recommended the application not be approved for several reasons. The lands are located outside of the Urban Area Boundary. The application does not comply with the Provincial Policy Statement (PPS) which requires prime agricultural lands be preserved. Moreover, the PPS prohibits the creation of new residential lots in prime agricultural areas except for the purpose of serving a surplus farm dwelling. January 17, 2011 The approval of Consent Application (B- 2010 -016) is contrary to the Regional Policy Plan and City's Official Plan. The Regional Policy Plan designates the subject land Good General Agricultural, in part, and Environmental Conservation Area, in part. The City's Official Plan designates the lands as Good General Agriculture. Both the documents do not permit creation of new lot for non agricultural use. The proposed lot does not comply with the City's Zoning By -law No. 1538's requirement for lot area. As per the Zoning By -law the lot must have a minimum area of 1.2 ha (3.0 acres), whereas the proposed lot would have a lot area of 0.81 ha (2.0 acres). A concurrent Minor Variance Application (A- 2010 -036) was approved by the Committee of Adjustment at the same meeting to satisfy a condition of provisional consent. The reasons stated for their decision was that the creation of the parcel is appropriate and consistent with the immediate area and the creation of the parcel would have minimal negative impact on agricultural uses. Staff appealed the Committee's decision to the OMB to meet the January 5, 2010 deadline on the basis that the applications: . are contrary to the City's Official Plan; do not comply with the Regional Policy Plan; do not comply with the Provincial Policy Statement; and approval could set an inappropriate precedent. - 2 - PD- 2011 -08 There was no opportunity for staff to consult with Council before the final appeal date on January 5, 2010. Staff is seeking Council's concurrence and authorization to proceed with the appeal. Regional Planning staff has submitted a concurrent appeal to the Committee's decisions. A copy of this report has been provided to the applicant's agent who has been advised that Council will be considering the matter tonight. CITY'S STRATEGIC COMMITMENT The severance conflicts with the City's policy of protecting prime agricultural areas and directing urban growth to urban areas. LIST OF ATTACHMENTS ► Schedule 1 - Surveyor's Sketch Recommended by: Respectfully submitted: S.Scerbo Attach. S_ \PDR\2011 \PD- 2011 -08, B- 2010 -016 & A- 2010 -036, Appeal to OMB.wpd Alex Herlovitch, Director of Planning, Building & Development K n Todd, Chief Administrative Officer January 17, 2011 - 3 - SCHEDULE 1 0 a 0 z 2 0 Y O 4P 1 004 UJwam J cp 0 Q 0 L. P Q 0 ce Z On. I-- } Id U Y r aW ! 001 sVA NGI tWt36 In ZrataSTIT PD- 2011 -08 1 3 January 11, 2011 DELIVERED Mr. Dean lorfida City Clerk City of Niagara Falls P.O. Box 1023, 4310 Queen Street NIAGARA FALLS, Ontario L2E 6X5 Dear Sir: Re: Severance Application B- 2020 -016 & Minor Variance Application A- 2010 -035 Donato Pietrangelo, 8006 Biggar Road In connection with the above matter, enclosed please find letter and enclosures which I would request you deliver to all members of Council. I would like to be at the Council meeting to speak to the matter. Yours faithfully BRIAN SINCLAIR PROFESSIONAL CORPORATION Enclosures N BRIAN SINCLAIR PROFE Si ll e OR_ORATION BRIAN N. SINCLAIR, Q.C. Barrister & Solicitor 6617 Drummond Road Niagara Falls, Ontario L2G 4N4 TEL: (905) 356 -7755 FAX: (905) 356 -7772 January 11, 2011 DELIVERED BRIAN SINCLAIR PROFESSIONAL CORPORATION BRIAN N. SINCLAIR, Q.C. Barrister & Solicitor 6617 Drummond Road Niagara Falls, Ontario L2G 4N4 TO MEMBERS OF COUNCIL TEL: (905) 356 -7755 FAX: (905) 356 -7772 Re: Severance Application B- 2010 -016 & Minor Variance Application A- 2010 -035 Donato Pietrangelo, 8006 Biggar Road In connection with the above matter, enclosed please find copy of the Land Division survey of Parts 1 and 2. Part 2 is presently owned by Mr. Pietrangelo and has been for over thirty years. He owned same with his wife until she passed away last year. His intent is to sever Part 1 and build a smaller home for himself and convey Part 2 to his son and family because he is now, of course, a single person. The property is located on Biggar Road between Biggar Road and Carl Road and there is an unopened road allowance on Misener Road and Montrose Road is at the top. I am enclosing a sketch of same, which shows Mr. Pietrangelo's property outlined in red and marked number 30. Except for the club, which is at the corner of Montrose Road and Biggar Road, the area above described is a settlement or hamlet which is totally controlled by the Pietrangelo family. There is no farming whatsoever in this block. This is a settlement area and this severance is permitted under Provincial Policy Statement. The Committee of Adjustment accepted this fact. I am enclosing a copy of the definition of settlement area. We also obtained the enclosed Declaration from Manford Locher, a farmer, and I interviewed him personally, in which he indicated that no one would ever farm two acres as it is to small an area. It would be too difficult to turn the equipment around. His Declaration is self - explanatory and certainly indicates that this severance has no affect on agriculture. This is an infilling situation and complies with the zoning by -law save and except the area which is two acres as opposed to the by -law which requires three acres. In the OMB hearing involving Official Plan No. 66, which went on for three and one -half weeks and involved an appeal to the Superior Court, the City's position was small subdivision areas should be allowed. The position of the City and Region as set out by the Chairman was as follows: and I quote, "a comprehensive development would create fewer impacts than would result from individual severances permitted by the Growth Plan ". As you may be aware, the City lost this case and, therefore, the statement in which the City wanted individual subdivisions in this area was rejected. In summary, this is an infilling situation. This particular area is completely developed with lots and houses and being a settlement and severances are permitted. The decision of the Land Division Committee was unanimous in favour of granting the severance and the variance. Victor Pietrangelo, of course, who was on the Committee abstained from voting. Yours faithfully BRIAN SINCLAIR PROFESSIONAL CORPORATION CANADA PROVINCE OF ONTARIO Regional Municipality of Niagara I, Manford Locher, of the Town of Stevensville, in the Regional Municipality of Niagara SOLEMNLY DECLARE, that To Wit: IN THE MATTER OF an Application by Danny Pietrangelo to sever part of, property municipally known as 8006 Biggar Road, being Part of Lot 2, Concession 1, designated as Part 3, Plan 59R -2628 and being shown as Part 1 on attached sketch. 1. I am familiar with the property being Part of Lot 2, Concession 1 designated as Part 3, Plan 59R -2628 shown on the attached sketch and have known the applicant for severance and minor variance, Danny Pietrangelo, for many years. 2. I am 56 years old and have farmed all my life in the Niagara Region and am completely familiar with the soil and the farming of same in the Region of Niagara. 3. I own 109 acres and farm another approximately 300 acres and have farmed in most parts of the Niagara Region. 4. The land in this area is not good farm land and is in fact considered by farmers to be very marginal at best. It is considered to be poor to fair. '' 5. The farms of others that I cultivate for crops generally do not receive any mon- for the use of the land. The most I have ever paid is $20 00 per acre. The going rate in Ontario for good farm lan• s $200.00 to 300.00 er acre. 6. The two acre parcel of land being severed is too small to be farmed and, in fact, if an owner wanted it to be farmed he would have to pay a very high price to have it done. 7. The small farmers are going out of business and there are now hugh farms of thousands of acres being taken over to make it feasible. 8. The lands in this area have only 4 to 5 inches of top soil and clay under that creates great difficulty with drainage. 9. In conclusion, I would state that the severance of 2 acres, especially in this area, which is residential, has absolutely no affect on agriculture as it would never ever be farmed. AND I make this solemn Declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath. DECLARED before me at the City ) of Niagara Falls ) ) /244 -/ in the Regional Municipality ) Manford Locher of Niagara ) ) this 'Y fV day of November, 2010. ) A Commissioner, etc. settlement - definition of settlement by the Free Online Dictionary, Thesaurus and Encycl... Page 1 of 4 ,TheFreeDictionary :_ Google :_ Bing settlement 2,534.116 ,401 s to: s served r • Word / Article Dictionary!; Medical Legal Financial thesaurus ' dictionary dictionary dictionary : Injured? Call Now We Can Help - (416) 961 -2882 Book Your Free Consultation www.singerkwinter.com settlement Funding Find more sources /options for settlement Funding www. webcrawler.com settlement Loans Canada Need Cash Before Your settlement Apply For A settlement Loan Today www.settlementlenders.com How to Buy Gold Physical Gold Shipped to Your Door Free Investor Kit. Since 1960. Goldline.com/Buy-Gold Viatica) settlement Sell your life insurance Policy Inquire about a Life settlement www.xcllc.com set•tle•ment (s.t I - marlt) 1. The act or process of settling. 2. a. Establishment, as of a person in a business or of people in a new region. b. A newly colonized region. 3. A small community. adjustment, or other understanding reached, as in financial or business proceedings: a divorce settlement. 5. Law a. Transfer of property to provide for the future needs of a person. b. Property thus transferred. 6. A center providing community services in an underprivileged area. Also called settlement house. settlement I'setalment] n Settlement a community settled in a locality, 1697. Dictionary of Collective Nouns and Group Terms. Copyright 2008 The Gale Group, Inc. All rights reserved. Thesaurus Legend: 'Synonyms Related Words Antonyms 1 Search l Starts with Ends with . _ Text Acronyms ! Idioms Encyclopedia Wikipedia encyclopedia settlement4PM Also found in: Medical, Legal, Financial, Idioms, Encyclopedia, Wikipedia, Hutchinson Page tools Printer friendly Cite / link Email Ads by Google The American Heritage® Dictionary of the English Language, Fourth Edition copyright 02000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved. 1. the act or state of settling or being settled 2. the establishment of a new region; colonization 3. (Social Science / Human Geography) a place newly settled; colony 4. (Social Science / Human Geography) a collection of dwellings forming a community, esp on al frontier 5. a community formed by members of a group, esp of a religious sect 6. (Social Welfare) a public building used to provide educational and general welfare facilities for persons living in deprived areas 7. (Miscellaneous Technologies / Building) a subsidence of all or part of a structure 8. (Economics, Accounting & Finance / Banking & Finance) a. the payment of an outstanding account, invoice, charge, etc. b. (as modifier) settlement day 9. (Economics, Accounting & Finance / Banking & Finance) an adjustment or agreement reached in matters of finance, business, etc. 10. (Law) Law a. a conveyance, usually to trustees, of property to be enjoyed by several persons in succession b. the deed or other instrument conveying such property c. the determination of a dispute, etc., by mutual agreement without resorting to legal proceedings Collins English Dictionary — Complete and Unabridged ® HarperCollins Publishers 1991, 1994, 1998, 2000, 2003 Charity TEXT Related Ads • Class Action • • settlement Money • Injury settlement • 401K Lawsuit • Erisa settlement My Word List Add current page to the list New: Language forums Like 117K Feedback Add definition 0.01 sec. THE SPORT - INJECTED Advertisement (Bad banner? Please let us know) • Securities Claim • ESOP Lawsuit • ESOP Litigation • Sec Lawsuit • Buy settlement Over 8e°% of our students work while they stifdy.Take online courses with ALL Athabasca tiniversity l Advertisement (Bad banner? Please let us know) Feed a hungry child - donate to school feeding program Usage samples from TheFreeLibrary.com BUT before relating the adventures of the chairs I :. found it necessary to speak of circumstances that caused the first settlement of New England. Grandfather's Chair by Hawthorne. Nathaniel View in context 1'1 n1 i '1111n settlement - definition of settlement by the Free Online Dictionary, Thesaurus and Encycl... Page 2 of 4 Noun 1. settlement - a body of people who settle far from home but maintain ties with their homeland; inhabitants remain nationals of their home state but are not literally under the home state's system of govemment; "the American colony in Paris" body - a group of persons associated by some common tie or occupation and regarded as an entity; the whole body filed out of the auditorium"; the student body"; "administrative body" frontier settlement, outpost - a settlement on the frontier of civilization Plantation - a newly established colony (especially in the colonization of North America); "the practice of sending convicted criminals to serve on the Plantations was common in the 17th century" proprietary colony - a colony given to a proprietor to govern (in 17th century) colonial - a resident of a colony ii settlement - a community of people smaller than a t small town villaq �. A' ICOMMUnit/ - a rou of o le flvin in a articula 1 are ; "the team is drawn eom�"�' or�i c JI .�.r.. rjr: *wta�r'� moshav - a cooperative Israeli village or settlement comprised of small farms 3. settlement - a conclusive resolution of a matter and disposition of it agreement understanding - the statement (oral or written) of an exchange of promises; they had an agreement that they would not interfere in each other's business "; "there was an understanding between management and the workers" accommodation - a settlement of differences; they reached an accommodation with Japan" conclusion - a final settlement; the conclusion of a business dear; the conclusion of the peace treaty" out -of -court settlement - resolution of a dispute prior to the rendering of a final decision by the trial court ' property settlement - (matrimonial law) the division of property owned or acquired by marriage partners during their marriage accord and satisfaction - the settlement of a debt by paying less than the amount demanded in exchange for extinguishing the debt 4. settlement - the act of colonizing; the establishment of colonies; "the British colonization of America" Icolonisation colonization establishment, constitution, formation, organisation, organization - the act of forming or establishing something; the constitution of a PTA group last year"; "it was the establishment of his reputation "; "he still remembers the organization of the club" population - the act of populating (causing to live in a place); "he deplored the population of colonies with convicted criminals" 5. settlement - something settled or resolved; the outcome of decision making; "they finally reached a settlement with the union "; "they never did achieve a final resolution of their differences "; "he needed to grieve before he could achieve a sense of closure" !closure, resolution I deciding, decision making - the cognitive process of reaching a decision; "a good executive must be good at decision making" 6. settlement - an area where a rou of families live to ther geoq o Ica , eographical region - a demarcated area of the Earth !village, hamlet - a settlement smaller than a town settlem - to on y using its assets to discharge its liabilities t liquidation ending, termination, conclusion - the act of ending something; "the termination of the agreement" viaticus settlement, viatica) settlement - sale of an insurance policy by a terminally ill policy holder Based on WordNet 3.0, Farlex clipart collection. © 2003 -2008 Princeton University, Farlex Inc. settlement noun 1.1 aareement, arrangement, resolution, working out conclusion, establishment adiustment confirmation, completion, disposition, termination Our objective must be to secure a peace settlement. 2. ruling finding, decision, conclusion, judgment, adjudication a libel settlement 3. payment, clearing, discharge, clearance defrayal ways to delay the settlement of debts 4. colony, community outpost, peopling, hamlet, encampment, colonization a Muslim settlement 51 colonization settling, peopling, populating the settlement of America Collins Thesaurus of the English Language — Complete and Unabridged 2nd Edition. 2002 © HarperCollins Publishers 1995, 2002 At the commencement of the following year the settlement began; and from that time to this the country has continued to flourish. The Pioneers by Cooper. James Fenimore View in context They rushed clamorously into the presence of the Lioness and demanded of her the settlement of the dispute. Fables by Aesop View in context More results 11 /1 /1(11 11 2 1t PART 5 201.168 II -, 86.85 > N 7 A 201.168 201.168 AfISENER ROAD PART 2 PART 1 2 rp 4.83 5. 8.51 8.50 UNE BETWEEN TOIM/SNIP LOTS 1 AND 2 -0 r m z —I 0 Z D r 0 0 60.94 60.99 61.05 F z 6 3 N 0 D n w m Z O o D 0 0 0 0 g 8 A x n� 60 8 g c i u o Z_ D c) D .Z1 D z 0 Q ro 0 0 if 0 0 0 L L 1 T 1657 5 Tap. 4- D. P40-q4nteiE • , t ut 6 A , • . t4, sew% 5B3 6.0 ___ T T" ' Q cso,,,SLPt.h)p PD- 2011 -06 Niagara& s January 17, 2011 CA NADA REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development SUBJECT: PD- 2011 -06 26T -11- 2009 -01 & AM- 2009 -030 Fernwood Phase 3 Draft Plan of Subdivision Zoning By -law Amendment Application Lundy's Lane (North Side), West of Garner Road Owner: 800460 Ontario Limited (Fred Costabile) RECOMMENDATION 1. That Council not approve the Fernwood Phase 3 Draft Plan of Subdivision or the related Zoning By -law Amendment application. 2. That should Council pass the subject applications, approval be based on the following recommendations: - That the Fernwood Phase 3 Plan of Subdivision be draft approved subject to the conditions in the attached Appendix. That the Mayor or designate be authorized to sign the draft plan as "approved" 20 days after notice of Council's decision has been given as required by the Planning Act, provided no appeals of the decision have been lodged. - That draft approval be given for three years, after which approval will lapse unless an extension is requested by the developer and granted by Council. - That the implementing zoning by -law amendment on tonight's agenda be passed to provide the necessary land use regulations to guide the development of the subdivision and protect the woodlots to the north and east of the subdivision. - That the Mayor and City Clerk be authorized to execute the Subdivision Agreement and any required documents to allow for the future registration of the subdivision when all matters are addressed to the satisfaction of the City Solicitor. 3. That Council determine by resolution that the adjustments to the depth and width of certain lots to protect the woodlot is a minor change and does not require further public notice to be given. January 17, 2011 EXECUTIVE SUMMARY - 2 - PD- 2011 -06 Council held a Public Meeting on December 3, 2010. Council deferred the applications so that staff could prepare conditions of draft plan approval and an implementing zoning by- law prior to any decision being made. The applicant has requested approval of a draft plan of subdivision and a zoning amendment to permit the development of a subdivision with 96 single detached Tots and 2 blocks for townhouses (44 units in total) (see Schedule 1 and Schedule 2). Although the requested amendments are in keeping with the Official Plan and are generally supported by external agencies, staff cannot recommend the request until such time as the Ontario Ministry of Transportation (MTO) has withdrawn the Ministerial Order protecting the Highway 420 extension through the property. Should Council decide to approve the application, conditions of draft plan approval are attached to this report and a draft by -law is included on tonight's agenda to implement Council's decision. BACKGROUND Proposal The applicant proposes to subdivide the 9.35 hectare (23.11 acre) parcel of land on the north side of Eagle Ridge Drive, west of Garner Road (see Schedule 1), into 96 lots for single- detached dwellings, and two blocks of land for condominium townhouses (44 units). Schedule 2 illustrates the design of the subdivision. Minor revisions have been made to this plan, since it was presented to Council at the December 13, 2010 meeting, to address the public's concern about protection of the woodiot to the north. The applicant has increased the depth of the lots and blocks abutting the north property line. This has been done to allow for sufficient setback from the drip line of the trees associated with the woodiot to the north, while providing an adequate building envelope on each lot. A zoning by -law amendment application is being processed concurrently with the subdivision application. The subject land is currently zoned Development Holding (DH) under Zoning By -law No. 79 -200. The land is requested to be rezoned to Residential Single Family 1E Density (R1 E) for the 96 single detached lots and to a site specific Residential Low Density, Grouped Multiple Dwellings (R4) zone for the condominium townhouse blocks, with a special setback of 5 metres from the lands zoned Environmental Protection Area (EPA) to the east of the subdivision. The requested amendments were deferred by Council at its December 13, 2010 meeting in order to allow consideration of conditions of draft plan approval and a draft by -law. Conditions of approval are attached to this report and a draft by -law for Council's consideration has been included on tonight's agenda. This report focuses on these conditions and the draft by -law. The findings in this report should be considered in conjunction with previous report PD- 2010 -94 (see Appendix 2). January 17, 2011 - 3 - PD -2011 -06 ANALYSIS 1. Protection of Woodlot to the North of the Subdivision A large woodlot is located in the City's Good General Agricultural Area to the north of the proposed subdivision. The edge of this woodlot encroaches onto the subject subdivision as shown on Schedule 3. To assist in protection of the woodlot, the following measures have been undertaken or are proposed: - The applicant has revised the plan to increase the depths of the lots and block on which the woodlot lies by 3 metres. This will assist by allowing for a building setback from the drip line of the trees and will allow sufficient building envelope for the dwellings. In order to accommodate this change, the depths and widths of some internal Tots have been reduced slightly, which has a negligible effect on the subdivision as a whole (the number of lots and blocks and their orientation remains the same) and does not impact on the recommended zoning or conditions. - The woodlot area within the subdivision is recommended to be zoned Environmental Protection Area (EPA -933). Provisions in the by -law are meant to preserve this portion of the woodlot and will prohibit the cutting of trees, removal of vegetation or topsoil and the dumping of refuse, and will require existing grades be maintained. A building and structure setback of 5 metres from the EPA -933 zone should be implemented, similar to the protection zone provided for the woodlot in Fernwood Phase 1. This setback is intended to ensure enough active back yard amenity space is provided for the dwellings outside of the wooded area. At -grade decks and patios and fences are not affected by this setback. To ensure residents are aware of this zone, a condition is recommended which requires the purchase agreements for affected lots contain a warning clause advising of this special setback and the existence of the EPA zone on the rear part of these properties. - Conditions are recommended to require the erection of limit of work/silt fencing along the dripline and grading restrictions to ensure the roots of the trees are not adversely impacted. - Fencing along the woodlot should be erected to prevent trespassing onto the woodlot. A 1.2 metre high chain link fence is suggested. As the north lot line of the subdivision represents the lot line between future residential properties and the owner so the land to the north, the fence would need to be located along the lot line. Care needs to be taken with the erection of this fence to minimize impacts on vegetation. As a number of trees appear to be on the property line, the fence may need to be routed around these trees to ensure their protection. January 17, 2011 - 4 - PD- 2011 -06 Fencing (chain Zink) along the north and west boundary is required to keep residents from trespassing onto adjacent farm land. A condition is required to include a warning clause in all offers of purchase and sale. These recommendations have been incorporated as conditions in the attached Appendix 1 or as provision in the implementing zoning by -law. 2. Subdivision Design and Conditions of Approval The majority of development parameters and general design issues for the overall Fernwood site were determined by the OMB approval of the Official Plan amendment, Zoning By -law amendment and the draft plan conditions for Phase 1. The design of the subject plan of subdivision is largely established by the previous phases. The subdivision is accessed by Eagle Ridge Drive and extensions to Ironwood Street and Osprey Avenue. As the north and west boundaries of the subdivision form the urban boundary, there are no future extensions of the road network north or west. Conditions of approval are also included in the attached Appendix. As the overall design and infrastructure requirements were established in the first two phases of this development, the conditions are simplified. In addition to the woodlot protection measures listed above, the conditions will deal with the provision of infrastructure and utilities, grading and drainage, street trees and protection of surrounding agricultural land. 3. Zoning By -law Amendment As discussed above, it is recommended the edge of the woodlot up to and including the drip line of the trees be zoned Environmental Protection Area (EPA -933). The EPA -933 zone would contain provisions prohibiting the removal of trees, vegetation and soil and regrading of the land. The Residential Single Family 1 E Density (R1 E) Zone has been requested for the 96 of the single detached lots and contains provisions to guide the development of the single detached dwellings. Site specific provisions have been added to provide a 5 metre buffer from the EPA -933 zone, as discussed above. Typically a 7.5 metre rear amenity yard is provided for single detached dwellings; the dwellings that back onto the woodlot would have rear yard depths of 10 to 20 metres including EPA -933 zoned lands. A site specific Residential Low Density, Grouped Multiple Dwellings (R4) zone is requested for the 2 townhouse dwelling blocks (Blocks 97 and 98) and contains provisions to guide development of the townhouses. As discussed above, site specific provisions have been added to require a 5 metre buffer from EPA -933 zoned lands that are located on Block 97. In addition, in keeping with the Official Plan policies protecting the woodlot to the east, the site specific R4 zone is requested to contain provisions requiring a 5 metre structure setback from the east lot line of Block 98. Typically an amenity yard of 7.5 metres is required behind any townhouse unit. January 17, 2011 - 5 - PD- 2011 -06 FINANCIAL IMPLICATIONS The subdivision will generate development charge contributions for the City. CITY'S STRATEGIC COMMITMENT The subdivision complies with the City's Official Plan and Special Policy Area No. 53. LIST OF ATTACHMENTS ► Schedule 1 - Location Map ► Schedule 2 - Subdivision Plan ► Schedule 3 - Approximate location of dripline for north woodlot to be protected ► Appendix 1 - Conditions of Draft Plan Approval ► Appendix 2 - Staff Report PD- 2010 -94 Recommended by: Respectfully submitted: ij etti_, ( „L n e Alex Herlovitch, Director of Planning, Building & Development Kdn Todd, Chief Administrative Officer A.Bryce:mb Attach. S: \PDR\2011 \PD- 2011 -06, 26T -11- 2009 -01 and AM- 2009 -030, Femwood Phase 3.wpd January 17, 2011 - 6 - PD- 2011 -06 Proposed Plan of Subdivision Fernwood Phase 3 26T -11- 2009 -01 Subject Land i,/ KAGIS_ Requests‘2010 \Schedule{1Subdivisian\Femrwod Phase Amappirg.map SCHEDULE 1 Location Map N s Scale 1:NTS October 2010 January 17, 2011 - 7 - SCHEDULE 2 PD -2011 -06 PHASE 3 0, z x z O 1a x O w F 00 0 000 000 000 .00 • 000 000 0 00.• 0 0 00 . 0000 00 • 0000 O0 0 00 0 . 00 00 • 000 000 000 000 •000.00. .....0 0...- •. •••• 000• o� -�oo• t:°- �Aao• 1.0.0 .00. opa o O. 0Q,� 000. 0 .0 0• 000. 0 O OO 0.. .O••O • OOO�� r r p ' . O OON 0 0 • • 0. 00°0 0 . 00•• 1 o °0 00.0..... • 0 • O0 Otl 0'• 00 • • O 000 e0 c 0 0.0'•000. 000••0 •• 1 00.Op•Ob •0•_00.0 0. Oi • 0•°0• OOO O G 00 .0 0 00.0••00.0 60.00- ooOO oo "00 . 00 "'•o UO• °'0000.00 • •. 0••= a. 0• 0 0 0 0 0 - O ! A . 0 0 e o •O• •..0. • 000°0 • -- 00. •••• •O•. 0 0000 • •.•00. '• 0 a O • 0 0 0 . 0 '.• 0.pq TWO 00°0 0 b•00••0 .. O. 0 ••IXO. �� •oO 0001 p oe•o °•GOO WO 00C o •'OO. Q• 0 0 0... 0'. 00 4 oo Oc 00 000 0 • ' 00.0 6�Ooo o• c 0 .o 0•oG 0.0..00 • •. • 0 . 0 . •• $0. 410 o •o OC n...o. 0000. 00. 00 E PH AS "oo ° 2 p9� 00 .O • . • O. O . 2 00 0 ., 0 •00. •0.. O•• 0000...0 O •0 OO ...• •0°000. OK ) d o . •00. a :. °aao0aa.. .O o .. &0•• 00000000••009 000 O ' ° 0000000 00000 0 00 Da0 aaa 00 :- 000 0000 0000000 0020! ..____ _C19HgR1p000 0c 00* • A0Lad.MPA1 tr ;)42-- ) 00C 000 00001 00 .00• • 000Q000 000000001 0 000000000 000 0000 000000000000( 00 • 00000000000000 000 0 000°0000000°0 Doc 10 tl. 000 00000p000000000000o0ooc 00 000OO.0.o • OOOOOO00000o 0o0 00 00000,00.0000000000.0 o0a Doc 0000 0000,0000000d0oa000 000 000090 000000040000000( 000 do00000000 000 000 00 00000000000 000 OOc • 000000 0000000000 00000°° • 000 000000000000 0000000 0000 . 00 00000000000,o000 0000000000 000000000010001 C 000• 0 . 000 0000000000000 O. 00 0000000000000001 - 00000 0 0000000000 -000 000000 000 X 00 .0 0 00.00000.0 00 oo oo •000 o 0000.0 • 00 0.0000.00000. • 00 00 .000 • -'. 000. 0001 00000 .0000'••0000. 000 00000 . 0 00••0000.0001 1 t ` \ I HIGHWAY RIGHT -OF -WAY I I\ •1 Oc January 17, 2011 - 8 - PD- 2011 -06 Woodlot Dripline p : E-+ January 17, 2011 -9 APPENDIX 1 Conditions for Draft Plan Approval PD -2011 -06 1. Approval applies to the Fernwood Phase 3 Draft Plan of Subdivision prepared by Matthews, Cameron, Heywood - Kerry T. Howe Surveying Ltd., dated December 15, 2010, showing 96 lots for single- detached dwellings and 2 blocks (Blocks 97 and 98) for townhouses. 2. The developer enter into a registered Subdivision Agreement with the City to satisfy all requirements, financial and otherwise, related to the development of the land. Note: Should any other body wish to have its conditions included in the Subdivision Agreement, they may be required to become party to the Subdivision Agreement for the purpose of enforcing such conditions. 3. The developer submit a Solicitor's Certificate of Ownership for the subdivision land to the City Solicitor prior to the preparation of the Subdivision Agreement. 4. The subdivision be designed and constructed in accordance with City standards (including the Engineering Design Manual, January 2010, as amended) which, in part, includes the following: (a) roadways to municipal requirements; (b) dedication of 5 metre by 5 metre daylighting triangles at all intersections; (c) dedication of the road allowances to the City as public highway and the streets named to the City's satisfaction; (d) provision of water distribution, sanitary sewer and storm sewer systems; (e) weeping tile flow to be directed to the storm sewer by use of sump pumps; (f) provision of an overland stormwater flow route; and (g) lot grading and drainage to the City's satisfaction. 5. The developer submit a Geotechnical report prepared by a Soils Consultant to the City for review and approval. 6. The developer incorporate parking restrictions into the roadway design to the satisfaction of the Fire Services and Transportation Services. 7. The developer construct a southbound right turn taper 60 metres in length at the intersection of Garner Road and Hendershot Boulevard. 8. The City dedicate the 0.3 metre reserve along the north side of Eagle Ridge Drive (Block 123, Plan 59M -379) in Fernwood Phase 2 as a public highway. 9. The developer construct sidewalks to City standards on one side of all streets. 10. The developer submit servicing plans showing road widths /curb radii and the design details for the emergency access to Fire Services for review and approval. 11. The developer pay the Development Charges in force at the time of execution of the subdivision agreement. January 17, 2011 -10 - PD- 2011 -06 12. The developer grant the City and Public Utilities any easements required to service the subdivision. 13. The developer is hereby advised that prior to commencing any work within the Plan, the developer must confirm that sufficient wire -line communication/ telecommunication infrastructure is currently available within the proposed development to provide communication /telecommunication service to the proposed development. In the event that such infrastructure is not available, the developer is hereby advised that the developer may be required to pay for the connection to and /or extension of the existing communication /telecommunication infrastructure. If the developer elects not to pay for such connection to and /or extension of the existing communication /telecommunication infrastructure, the developer shall be required to demonstrate to the municipality that sufficient alternative communication /telecommunication facilities are available within the proposed development to enable, at a minimum , the effective delivery of communication /telecommunication services for emergency management services (ie. 911 Emergency Services). 14. The developer include in all offers of purchase and sale, a statement that advises the prospective purchaser that the home /business mail delivery will be from a designated Centralized Mail Box (CMB) and that the developer will be responsible for officially notifying the purchasers of the exact CMB locations prior to the closing of any home sales. 15. The developer satisfy all requirements of Canada Post regarding temporary Centralized Mail Box locations, provision of satisfactory concrete pads, identification on engineering servicing drawings, installation and providing mail service information to property owners. 16. The developer provide Enbridge Gas Distribution Inc. with a composite utility plan approved by all utilities that allows for safe installation of all utilities, including required separation between utilities, and streets be constructed in accordance with the composite utility plans. 17. The developer grade all streets to final elevation prior to installation of the gas lines and provide Enbridge Gas Distribution Inc. with the necessary field survey information required for installation of gas lines. 18. The developer provide Enbridge Gas Distribution Inc. with the necessary easements if any gas lines need to be installed outside of the proposed road allowances. 19. The developer contribute funds to provide boulevard trees in accordance with City policy. 20. The developer receive final approval from the City to the zoning by -law amendment to provide land use regulations to guide the development of the subdivision. 21. The developer provide three calculated plans and a letter prepared by an Ontario Land Surveyor to Planning & Development confirming that all lots comply with the Zoning By -law. January 17, 2011 -11 - PD- 2011 -06 22. The developer provide five copies of the pre- registration plan to Planning & Development and a letter stating how all the conditions imposed have been or are to be fulfilled. 23. The subdivision agreement between the developer and the City of Niagara Falls and all offers and agreements of purchase and sale contain the following warning clause: "The lands to the north and west of the plan of subdivision include lands under agricultural production. Trespass onto these lands may be hazardous due to agricultural operations including the use of farm machinery." 24. The subdivision agreement between the developer and the City of Niagara Falls and the offers and agreements of purchase and sale for Lots 20 to 27 inclusive and Block 97 contain the following warning clause: "The northerly portion of Lots 20 to 27 inclusive and Block 97 are zoned Environmental Protection Area (EPA -933). The City of Niagara Falls Planning, Building and Development Department should be contacted to determine the exact boundaries of the EPA - 933 -zone. No person shall use Parcel EPA -933 for any purpose, or permit any building or structure to be erected on the land or permit any soil, sand, gravel, rubbish or other similar material to be placed or dumped, or remove any trees or soil or regrade any of the land." 25. Within 60 days of draft plan approval, the developer acknowledge that draft approval of this subdivision does not include a commitment of servicing allocation by the Region as this servicing allocation will be assigned at the time of final approval of the subdivision for registration purposes. 26. Within 60 days of draft plan approval, the developer provide the Regional Development Services Department with a written undertaking that all offers and agreements of purchase and sale, which may be negotiated prior to registration of this subdivision, shall contain a clause clearly indicating that a servicing allocation for this subdivision will not be assigned until the plan is granted final approval for registration, and a similar clause be inserted in the subdivision agreement between the developer and the City. 27. The design drawings for the water, sanitary sewer and stormwater drainage systems required to service this plan be submitted by the developer to the Regional Public Works Department for review and approval. (Note: Any stormwater management scheme that may be proposed for this development will require the direct approval of the Ministry of Environment, Approvals Branch, Toronto). 28. Prior to final approval of the plan of subdivision for registration, Ministry of the Environment Certificates of Approval for the necessary servicing, (watermains, sanitary sewers and storm sewers) for the development shall be obtained to the satisfaction of the Regional Development Services Department. 29. The developer complies with any applicable Regional policies relating to the collection of waste to the satisfaction of the Regional Development Services Department and the developer shall ensure that all streets and development blocks can provide through access. January 17, 2011 -12 - PD- 2011 -06 30. That if the Highway 420 protected corridor remains, the owners submit, to the Region for review and approval, a detailed noise impact study prepared by a qualified acoustic consultant assessing the impact of noise sources on the subdivision and recommending appropriate measures to reduce noise levels within the development in accordance with the Ministry of the Environment's noise criteria. 31. If necessary, the Subdivision Agreement between the owners and the City of Niagara Falls contain provisions whereby the owners agree to implement the approved noise control measures required in accordance with Condition 30 above. 32. The subdivision agreement between the developer and the City of Niagara Falls and all offers and agreements of purchase and sale contain the following warning clause: "The lands in the plan of subdivision may be exposed to noise, odour and dust from nearby agricultural operations that may occasionally interfere with some activities of the owners who may occupy these lands ". 33. The developer prepare detailed sedimentation and erosion control plans for review and approval of the Niagara Peninsula Conservation Authority (NPCA). All sediment and erosion control measures shall be maintained in good condition for the duration of construction until all disturbed surfaces have been stabilized. Muddy water shall not be allowed to leave the site or enter the adjacent tributary. 34. The developer submit detailed lot grading, servicing and drainage plans, noting both existing and proposed grades and the means whereby overland flows will be accommodated across the site, to the NPCA for review and approval. 35. Prior to approval of the final plan, the developer submit to the NPCA a detailed stormwater management plan for the development completed by a qualified engineer and prepared in accordance with the MOEE Stormwater Management Practices, Planning and Design Manual, June 1994. 36. Prior to any construction or grading of the land, a limit of work and silt fencing shall be installed along the driplines of the woodlots to the north and east of the subdivision and shall remain in place until completion of any development work, including construction of dwelling units, grading, equipment storage movement and dumping of fill and disturbance of vegetation. 37. That the rear lot grading adjacent to the woodlots to the north and east maintain existing surface runoff direction in order to maintain existing vegetation and existing grades beneath any dripline areas on site be maintained post development. 38. The developer provide fencing to the City's and NPCA's satisfaction along the west, north and east boundaries of the subdivision. Note: when locating the fence along the north boundary, the fence should be positioned to minimize disturbance of trees. 39. That the Ministerial Order in Council, protecting the Controlled Access Highway corridor across the subject lands be lifted to the satisfaction of the Province. January 17, 2011 -13 - PD -2011 -06 Clearance of Conditions Prior to granting approval to the final plan, Planning & Development requires written notice from applicable City Divisions and the following agencies indicating that their respective conditions have been satisfied: Bell Canada for Condition 12 - Canada Post for Conditions 13 and 14 Enbridge Consumers Gas for Conditions 15 to 17 inclusive - Regional Niagara Development Services Department for Conditions 25 to 32 inclusive - Niagara Peninsula Conservation Authority for Conditions 33 to 38 inclusive Ontario Ministry of Transportation for Condition 39 • APPENDIX 2 NiagaraJalls REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development SUBJECT: PD- 2010 -94 26T -11- 2009 -01 & AM- 2009 -030 Fernwood Phase 3 Draft Plan of Subdivision Zoning By -law Amendment Application Lundy's Lane (North Side), West of Garner Road Owner: 800460 Ontario Limited (Fred Costabile) RECOMMENDATION EXECUTIVE SUMMARY BACKGROUND Proposal PD- 2010 -94 December 13, 2010 l 9� That Council not approve the Fernwood Phase 3 Draft Plan of Subdivision or the related Zoning By -law Amendment application. 2. That Council pass the resolution listed on tonight's agenda indicating that the proposed extension of Highway 420 is not needed or desired in the municipality. The applicant has requested approval of a draft plan of subdivision and a zoning amendment to permit the development of a subdivision with 96 single detached lots and 2 blocks for townhouses (44 units in total). The request is in keeping with the Official Plan and is generally supported by external agencies. This completes the Fernwood development approved at the OMB and represents good planning. However, the request cannot be recommended until such time as the Ontario Ministry of Transportation (MTO) has withdrawn the Ministerial Order protecting the Highway 420 extension through the property. The applicant proposes to subdivide the 9.35 hectare (23.11 acre) parcel of land on the north side of Eagle Ridge Drive, west of Garner Road (see Schedule 1), into 96 Tots for single - detached dwellings, and two blocks of land for condominium townhouses (44 units). Schedule 2 illustrates the design of the subdivision. A zoning by -law amendment application is being processed concurrently with the subdivision application. The subject land is currently zoned Development Holding (DH) under Zoning By- law No. 79 -200. The land is requested to be rezoned to Residential Single Family 1 E Density (R1 E) for the 96 single detached lots and to a site specific Residential Low Density, Grouped Multiple Dwellings (R4) zone for the condominium townhouse blocks, with a special setback of 5 metres from the lands zoned Environmental Protection Area (EPA) to the east of the subdivision. December 13, 2010 Surrounding Land Uses The Fernwood Phases 1 and 2 Plans of Subdivision, which are now registered and being developed, are located to the south. A significant woodiot, which was protected as part of Fernwood Phase 1, is located to the east. Agricultural lands and a woodiot are located to the north. Agricultural lands, rural residences and a golf driving range are located to the west. Neighbourhood Open House A neighbourhood open house was held on November 15, 2010 and was attended by 5 members of the public. One resident asked if the road network could be expanded westward into the Good General Agricultural area. The developer's agents explained that the north and west boundaries of the subdivision formed the urban boundary, and roads could not be expanded beyond the urban boundary. Two residents expressed concern about the proposed townhouse blocks and the impacts they may have on adjacent single detached dwellings, including the location of waste disposal facilities. The developer's agents stated that the blocks were anticipated to be developed with condominium bungalow or loft townhouses at a relatively low density. Waste disposal is anticipated to be curbside pickup by a private contractor. A number of questions were raised about protection of natural areas (the designated woodiot to the east in Fernwood Phase 1 as well as a woodiot to the north of the proposed subdivision), and if the northerly woodiot encroached onto the subject land. The developer's agents noted that the woodiot to the east is intended to be protected by a 5 metre setback. The woodiot to the north was studied by the developer's environmental consultant who recommended several measures to mitigate impact on the woodiot, including protective fencing. The developer's surveyor is to survey the property line to determine if the woodiot encroaches onto the subject land. ANALYSIS - 2 - PD 2010 - 94 1. Provincial Matters - Highway No. 420 Alignment The land is subject to a Provincial Order in Council, dated February 16, 1978, designating a Controlled Access Highway (future Highway 420 extension) across the land. Council held a public meeting regarding this subdivision on February 22, 2010 to obtain comments from the public. At this meeting Council directed staff to engage the Minister of Transportation and the Minister of Municipal Affairs in discussions to investigate the possible relocation of the future alignment of Highway 420 outside the municipal urban boundary. Staff met with MTO representatives in June, and stated that the land is needed to meet residential targets in the City and advised that the alignment goes through a significant woodiot. The representative indicated that the City should participate in the Environmental Assessment (EA) process for the Niagara to GTA corridor, and if an alternative route is determined through the EA, the City request the Minister's Order be lifted. The EA is expected to be completed in December. Until future alignment of the Highway 420 is determined and the Order in Council lifted on the land, further processing of this application is not recommended. The Planning Act requires that decisions of City Council are to have regard to Provincial interests such as this matter. December 13, 2010 - 3 - PD- 2010 -94 2. Provincial Policy Statement and Growth Plan Provincial policies require greenfield areas, such as the Fernwood development, to be developed in a compact urban form. To this end, the Region has directed that greenfield areas in the City are to be developed to achieve a density of 53 persons and jobs per hectare. The policies also call for the protection of significant natural features. Although Fernwood development achieves a lower density (15 units per hectare versus 20 units per hectare directed by Regional growth plan policies) the densities are in keeping with the Ontario Municipal Board order for this development. The Region has not expressed concerns with these densities. The lands are part of the supply of urban lands necessary for future growth under the Provincial Growth Plan. This phase of development represents an efficient use of urban lands, helps the City meet its residential growth targets and takes advantage of existing infrastructure. 3. Official Plan The Official Plan designates the land Residential and Special Policy Area 44. The special policies that apply require a mix of housing types at a density of 6 units per acre (15 units per hectare) to be developed on the land. In previously approved phases, a mix of single detached dwellings, townhouses and apartments are being developed. Additional single detached and townhouse dwellings are proposed in this phase. To protect the significant woodlot in Phase 1, the policies direct that all buildings and structures be set back 5 metres from the woodlot perimeter, and any master grading plan prepared for residential lands is to be sensitive to the protection of the woodlot. 4. Subdivision Design The majority of development parameters and general design issues for the overall site were determined by the OMB approval of the Official Plan amendment, Zoning By -law amendment and the draft plan conditions for Phase 1. The design of the subject plan of subdivision is largely established by the previous phases. The subdivision is accessed by Eagle Ridge Drive and extensions to Ironwood Street and Osprey Avenue. As the north and west boundaries of the subdivision form the urban boundary, there are no future extensions of the road network north or west. All parkland requirements of the developer for the combined Fernwood area were addressed in Phase 1 through the development of a trail system south of Hendershot Boulevard. Playground equipment will be installed adjacent to the trail which is the main recreational / open space feature for this area. Therefore, no parkland is required in the Phase 3 subdivision. The condominium townhouse blocks (Blocks 97 and 98) will be subject to site plan or vacant land condominium applications. 5. Zoning By -law Amendment The standard Residential Single Family 1E Density (R1 E) Zone has been requested for the 96 of the single detached lots. This zone has the appropriate provisions to guide the development of these Tots. December 13, 2010 - 4 - PD- 2010 -94 A site specific Residential Low Density, Grouped Multiple Dwellings (R4) zone is requested for the 2 townhouse dwelling blocks (Blocks 97 and 98). The proposed R4 zone contains all the provisions of the standard R4 zone to guide the development of the blocks. In keeping with the Official Plan policies protecting the woodlot to the east, the site specific R4 zone is requested to contain provisions requiring a 5 metre structure setback from the east lot line of Block 98. Typically an amenity yard of 7.5 metres is required behind any townhouse unit. 6. Environmental Protection - Woodlots The site abuts a woodlot to the east and another to the north. The significant woodlot to the east is owned by the City. The east boundary of Block 98 is based on the surveyed dripline of trees within this woodlot. This woodlot is to be further protected by the recommended 5 metre structure setback in the proposed by -law and by measures (which will need to be implemented through conditions of approval) to ensure grading of the residential lands will be sensitive to the protection of the woodlot. The applicant has submitted an environmental study (a Woodiot Mitigation Brief) to address the woodlot to the north of the subdivision. To ensure this woodlot is not impacted by development of the subdivision, the consultant recommends that limit of construction fencing be erected along the southern dripline of the woodlot, that grading maintain the existing southward surface runoff and chain link fencing be erected along the lot lines of the abutting lots and blocks to prevent intrusion into the woodlot. In addition, the applicant's agent stated the southerly boundary of the woodlot would be surveyed to determine if any trees encroach on the subject land. Any necessary protection will need to be secured through conditions of approval. LIST OF ATTACHMENTS ► Schedule 1 - Location Map ► Schedule 2 - Subdivision Plan Recommended by: Respectfully submitted: A.Bryce:sa Attach. A ex Herlovitch, Director of Planning, Building & Development K Todd, Chief Administrative Officer S- \PDR\2010 \PD- 2010 -94, 26T -11- 2009 -01, AM- 2009 -030, Fernwood Phase 3, 800460 Ontario Ltd (Fred Costabile).wpd December 13, 2010 -5- PD- 2010 -94 Proposed Plan of Subdivision Fernwood Phase 3 26T -11- 2009 -01 Subject Land K: \GIS_Requests\ 2010 \Schedule \Subdivision \Fernwood Phase 3 \mapping. map SCHEDULE 1 Location Map N r, S Scale 1:NTS October 2010 December 13, 2010 \I1 PHASE 3 J I\ - 6 - SCHEDULE 2 / T Cf r " PHASE 1 ' ∎O n \ o \ t om\ \ • \ -- ~, 1 HIGHWAY RIGHT -OF -WAY PD-2010-94 November 15, 2010 Alex Herlovitch Director of Planning and Development City of Niagara Falls Dear Mr. A. Herlovitch, Marianna & Joe McMaster 9301 Beaverdams Road Niagara Falls, ON L2E 6S4 I Fit a // Please accept the following comments via fax on November 16 2010. We were unable to attend the Open House on November 15, 2010, this evening at the last minute. We are responding to the information we received from the Planning and Development office, specifically to the report from LCA Environmental Consultants dated September 21, 2009, from the Niagara Region dated February 4, 2010 and from the Niagara Peninsula Conservation. Authority dated February 4, 2010. We would firstly like to address how this phase 3 will be built when the houses lie on the future Highway 420 protected corridor. How will future residents cross over to their houses when there is no way for them to get there in the present subdivision plan? Presently, we are not aware of . this protected corridor no longer existing. This builder has a reputation of moving forward without the appropriate procedures being followed. Are they allowed to move forward again without meeting the conditions for application? Secondly, we would like to address the recommendations/comments made by all three parties that the Northern Woodlot in phase 3 should be protected from construction and later on by encroachment from the residents of the subdivision. There are recommendations to prevent erosion, to promote storm water management away from the forest and lastly to build a fence outside of the drip line of the largest trees to allow border vegetation to flourish. We would like to see this fence go up earlier than later. Phase one is well under way and nothing has been done to protect this woodlot from construction or encroachment. Presently, lumber sits well into the forest for what looks like is intended for a future deck for that home. Sod has been laid down that is well under the drip Line of the largest trees. Tbis is because no fence has been placed in the phase one section of the subdivision. We ask, who will put these fences up and when? Lastly, the subdivision developers were to include a park for the neighbourhood. This subdivision is so far away from all services that the city can provide that it must provide more than green space in phase 1. The recommendation for another park if phase 3 will RECEIVED NOV 1 6 2010 PLANNING & DEVELOPMENT be included, should be followed up by the city, which is strongly being recommended by the region. We would like to be notified that this written notice was received as we were unable to make the meeting last night at the last minute. We hope that we can also be included in the notice for the upcoming public meeting. We have been involved in the stewardship of the forests of Fernwood subdivision since the very beginning and our interest continues. Sincerely, Marianna and Joe McMaster screaminjoe @sympatico.ca Re re f1 4104 • Phase Three Regarding Phase Three of the l! n ids subdivision, I am in support of the basic concept of fencing the forest impacted by lots 19 to 27 and keeping development away from the drip line. This concept is correctly put forward in the comments by Lisa Campbell and the various public agencies that have commented on the report. I am concerned however, that the forest may int de into all or parts of lots 19 to 27. In this case, the fence should be set within the ler ' 7t 4- subdivision boundary and part of the proposed lots of the plan of subdivision modified. I believe the best way to ensure that the forest does not extend into the ' e1M∎b 3d Phase Three would to be to invite those of the public to walk the property with agency representatives, an agent of the developer and a land surveyor well before the scheduled December 13` Public Meeting under the Planning Act. If this cannot be done in time for the Public Meeting -it should be postponed- unless however, a similar field visit can verify that the forest does not extend into any of the proposed future Lots. Sincerely, Dr. John Bacher (PhD) November 15, 2010 134 Church Street St. Catharines. 26T-11 2oo3 /ern- 2wq-030 Planning s c FiIQ I ropo /O RECEIVED NOV 1 6 2010 PLANNING & DEVELOPMENT (11/24/2010) Andrew Bryce - Fernwood Phase 3, 26T- 11- 2009 -01 From: <nick.coleman @cn.ca> To: <aherlovitch@niagarafalls.ca> Date: 11/24/2010 10:28 AM Subject: Fernwood Phase 3, 26T -11- 2009 -01 Alex, as CN has an agreement in place with the developer, Phase 3 appears to be setback at or beyond 300 metres from CN's right -of -way and previous Phases 1 and 2 are intervening, it is not likely that noise and vibration from railway operations will be an issue for this Phase. As such, CN has no objections or conditions that it would like imposed on Phase 3. Regards, Nick Nick Coleman B.Sc. Manager, Community Planning & Development CN Business Development & Real Estate 905 - 760 -5007 w Fax: 905- 760 -5010 w NICK.COLEMAN@cn.ca 1 Administration Road, Concord, ON L4K 1B9 r --- :. ' ED NMI 4 2010 & DE\ , PMENT Page 1 ; Planninsi nieC /146)071 Ministry of Transportation Central Region Corridor Management Section 1201 Wilson Ave. 7 Floor, Bldg. D Downsview, ON M3M 1J8 Tel.: 416- 235 -4572 Fax.: 416 -235 -4267 Email: hugh.fyffe @ontario.ca December 06, 2010 Dear Mr. Herlovitch: Minister° des Transports Mr. Alex Herlovitch Director of Planning & Development 4310 Queen Street P.O. Box 1023 Niagara Falls, ON, L2E 6X5 Region du Centre section de gestion des couloirs routiers 1201 avenue Wilson 7e etage, edifice D Downsview, ON M3M 118 Tel: 416 235 -4572 Telec:416 235 -4267 Email: hugh.fyffe @ontario.ca Re: Notice of Application and Public Meeting Draft Plan of Subdivision — File # 26T -11- 2009 -01 Fernwood Phase 3 West of Garner Road, North of Lundy's Lane Owner: 800460 Ontario Limited (Fred Costabile) City of Niagara Falls � r� r" Ontario CLERK'S DEC 0 8 2010 Further to faxes on October 09, 2008, November 13, 2008 and January 13, 2010 from MTO to yourself regarding the referenced subdivision, the ministry has completed its review of the above application. Our review is in accordance with the requirements of our controlled access highway policies and criteria and the Public Transportation and H ighway Improvement Act and we offer the following comments for your information. Please be advised that the MTO, under the authority of the Public Transportation and Highway Improvement Act, will not allow Lot 53 to Lot 96 inclusive, Lots 1 to 7 inclusive, as well as any roadway, feature, structure or amenity associated with or belonging to the proposed subdivision to be located within the corridor labelled `Controlled Access Highway' shown on the Draft Plan of Subdivision. Further, the Public Transportation and Highway Improvement Act provides the MTO with the authority and control to maintain a 14m setback from the `right -of -way' of all `designated' controlled access highway corridors. The 14m setback applies to all structures above and below ground, as well as any proposed feature or amenity deemed essential to the operation of the site. These features include but are not limited to parking spaces required by municipal by -law, fire RECEIVED DEC 0 8 2010 P1 ANNING 2 routes, loading dock, municipally assumed/private roads and /or servicing etc. Please note that the Future Highway 420 corridor shown on the Draft Plan of Subdivision (October 20, 2009) as `Controlled Access Highway...' was designated by an Order in Council on February I6, 1978. When a highway or corridor is designated as a `Controlled Access Highway' under the Public Transportation and Highway Improvement Act, the Act necessitates that all structures be setback a minimum distance of 14m from the it's `right of way' to provide flexibility for future highway needs. Yours sincerely, ...ft.,— by b4+ i Hugh Fyffe Hugh Fyffe Project Manager • Niagarapalls REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development December 13, 2010 The recommendation(s) contained in this report were adopted by City Council SUBJECT: PD- 2010 -95 26CD- 11- 2006 -05 & AM -2010 -018 Modifications to Draft Approved Plan of Vacant Land Condominium - Thundering Waters Village Official Plan and Zoning By -law Amendment Application Drummond Road (East Side), South of McLeod Road Owner: Mountainview Homes (Niagara) Ltd. RECOMMENDATION PD- 2010 -95 1. That the draft approved plan for the Thundering Waters Village Vacant Land Condominium be modified subject to the conditions in the attached Appendix. 2. That the Mayor or designate be authorized to sign the modified draft plan as "approved" 20 days after notice of Council's decision has been given as required by the Planning Act, provided no appeals of the decision have been lodged. 3. That draft approval be given for three years, after which approval will lapse unless an extension is requested by the developer and granted by Council. 4. That the application to amend the Official Plan and the Zoning By -law be approved as detailed in this report to increase the number of dwelling units from 270 to 321 and to provide the necessary land use regulations to guide the development of the condominium. 5. That the Mayor and City Clerk be authorized to execute the condominium Subdivision Agreement and any required documents to allow for the future registration of the condominium when all matters are addressed to the satisfaction of the City Solicitor. EXECUTIVE SUMMARY The applicant has requested a modification to the draft approved plan of vacant land condominium for the Thundering Waters Village to permit the development of 39 additional single detached units (124 in total) and 12 additional townhouse dwelling units (47 in total). Related Official Plan and Zoning By -law amendments have been requested to accommodate the increase in dwelling units and the smaller lot sizes. These requests can be supported because: the proposal complies with Provincial and Regional policies with respect to providing compact development and is consistent with densities for low to medium density developments directed by the Official Plan; December 13, 2010 - 2 - PD- 2010 -95 • there will be no additional impacts on protected environmental lands; • transportation and servicing infrastructure are sufficient to service the additional units; and • the requested zoning standards will provide for compact development and a unique community design. The conditions of approval are listed in the Appendix. BACKGROUND Proposal The modification and amendments are requested for an 11 hectare (27.1 acre) parcel of land on the east side of Drummond Road, south of McLeod Road (see Schedule 1). A plan of Vacant Land Condominium to subdivide the site into vacant land units (i.e. lots) for the construction of 85 single detached dwellings, 35 on- street townhouse units and one block for a 150 unit apartment dwelling was draft approved by Council in 2008. The applicant is requesting this plan be modified to subdivide the site into vacant land units for the construction of 124 single detached dwellings and 47 on- street townhouse units. No changes are proposed to the apartment block. An Official Plan and Zoning By -law amendment application is being processed concurrently with the application to modify the Draft Approved Plan of Vacant Land Condominium. The land is currently designated Residential, in part, and Environmental Protection Area, in part, and Special Policy Area No. 53 by the Official Plan, which permits the development of up to 270 residential dwelling units. The applicant is requesting the Official Plan be amended to permit the development of up to 321 residential units. The and is currently zoned a site specific Residential Single Family 1D Density zone (R1 D- 804), in part, a site specific Residential Mixed zone (R3 -805), in part, a site specific Residential Apartment 5F Density zone (R5F -806), in part, and a site specific Environmental Protection Area zone (EPA -807), in part. The applicant is requesting reduced lot frontages and side yard widths and increased setbacks from the EPA -807 zone for the lands zoned R1 D -804 and reduced lot frontages and landscaped open space and increased driveway widths for the lands zoned R3 -805. The applicant is requesting two areas of smaller single detached lots near Drummond Road and at the east end of the property be placed under a Residential Single Family 1E Density (R1 E) zone with site specific provisions permitting reduced lot frontages, lot areas, front, rear and side yard setbacks and increased lot coverage and driveway widths as well as the same setbacks to the EPA zone and accessory building and structure regulations that are requested for the lands zoned R1 D -804. The requested regulations are intended to facilitate smaller lot sizes. No changes are proposed to the R5F -806 and EPA -807 zones. Surrounding Land Uses The Thundering Waters golf course is located to the south, while a hydro corridor is located to the north. A mix of residential dwellings, industrial uses and vacant land lie to the west. The Conrail Drain is located to the southeast of the property, with industrial uses further to the southeast. December 13, 2010 - 3 - PD- 2010 -95 Neighbourhood Open House A neighbourhood open house held on November 2, 2010 was attended by 4 residents. The residents were concerned that changes were proposed to the Environmental Protection Area zone, but none are contemplated. Concerns were also expressed about the impact on existing sewer services; the developer responded that final clearance would need to come from the Region that there is sufficient capacity in the sanitary sewer system prior to registration of the condominiums. The residents received confirmation that fencing will be provided along Drummond Road and that the proposed Tots are not being shifted closer to the existing residential properties north of the hydro corridor. ANALYSIS 1. Provincial Policy Statement and Growth Plan Provincial policies promote increased densities and compact development within built up areas including the subject lands. The modifications to the condominium modestly increase the density of the development and represent an efficient use of residential land and urban services that will assist the City in meeting its density targets. The Region is satisfied the plan is consistent with Regional and Provincial policies and has no objections to its approval. 2. Official Plan The Official Plan designates the land Residential, in part, and Environmental Protection Area, in part and Special Policy Area No. 53. The Official Plan permits a maximum of 270 dwelling units (in the form of single detached dwellings, townhouse units and one apartment building). The applicant is requesting the maximum number of units in the Official Plan be increased to 321 units to reflect the increase in single detached and townhouse dwelling units. No other changes are proposed to the special policies that apply to the site. The proposed development and requested change in the number of units satisfies the intent of the Official Plan as follows: • The modest increase in the density of the single detached dwellings and townhouses is consistent with Official Plan policies governing the density and location of these dwellings. The development will remain compatible with the subdivision to the north in terms of density, building mass and appearance. Extensive setbacks to surrounding residences will be maintained. There will be no impacts on the environmental lands in the development. The conservation areas are not being changed and policies intended to protect these areas will remain in effect. • Transportation and servicing infrastructure can support the modest increase in the number of dwelling units. December 13, 2010 - 4 - PD- 2010 -95 3. Zoning By -law Amendment Site specific Residential Single Family 1D Density (R1 D -804), Residential Mixed (R3 -805) and Residential Apartment 5F Density (R5F -806) zones were implemented for the residential blocks on the land in 2007, while conservation areas were zoned Environmental Protection Area (EPA -807). Only the R1 D -804 and R3 -805 zones are proposed to be amended. A new site specific Residential Single Family 1E Density (R1E) zone is proposed for the smallest of lots for single detached dwellings (Lots 1 to 19, 63 -72 and 84 to 107). This R1E zone will contain the same site specific standards that will apply to the R1 D -804 zone other than the standards summarized below. The new site specific provisions promote compact development, have no off-site impacts and allow for flexibility in siting the dwellings to develop a unique community. The following is a summary of the changes: • Minimum lot area, R1E zone - 370 to 450 square metres required /269 square metres requested. • Minimum lot frontage, R1E zone - 12 to 15 metres required /9.7 metres requested. • Minimum lot frontage, R1 D zone - 15 to 18 metres required /12 metres requested. • Minimum side yard setback for a 2 storey dwelling in the R1 D and R1E zones - 1.8 metres required /1.2 metres requested. The R1E zone is requested to permit a side yard setback of 0.6 metres if the adjacent dwelling has a side yard setback of 1.8 metres. • Minimum rear yard setback to the EPA -807 zone in the R1 D and R1E zones - 3.75 metres required /6 metres requested. This increase is in lieu of these dwellings providing large amenity areas in the side yards. Minimum exterior side yard setback to the EPA -807 zone in the R1 D and R1E zones - 3.75 metres required /0.9 metres requested. This impacts only on the two lots that flank onto Drummond Road. Minimum lot frontage, R3 zone - 10 metres required /8.5 metres requested. Minimum landscaped open space coverage, R3 zone - 30% permitted /0% requested. Maximum driveway widths, all zones - 50% of the lot frontage permitted /50 %- 71 % of the lot frontage requested (to permit 6 metre wide driveways throughout the development). 4. Plan of Condominium Essentially the only changes to the draft approved Plan of Vacant Land Condominium are the lot sizes for the singled detached and townhouse units. The road pattern remains the same, as does the size and location of the apartment building block. Environmental lands will continue to be protected under previously approved conservation easements and common element areas. December 13, 2010 - 5 - PD- 2010 -95 The applicant had met conditions of draft plan approval but had not progressed to final approval. Due to the relotting, revisions to servicing, grading and landscaping plans are required, as are sign offs from utility companies. The conditions listed in the Appendix cover these matters and will direct that necessary clauses get put into the condominium agreement. FINANCIAL IMPLICATIONS The condominium will generate development charge contributions for the City. CITY'S STRATEGIC COMMITMENT The revised plan of condominium will comply with the City's Official Plan and Special Policy Area No. 53. LIST OF ATTACHMENTS ► Appendix ► Schedule 1 - Location Map ► Schedule 2 - Condominium Plan Recommended by: /&&J-v') Alex Herlovitch, Director of Planning, Building & D opment Respectfully submitted: en Todd, Chief Administrative Officer A.Bryce:mb Attach. S1'01212010\ PD-2010-95, 26CD -11- 2006 -05, AM- 2010 -018, Thundering Waters Village, Mountainview Homes.wpd December 13, 2010 - 6 - PD- 2010 -95 APPENDIX Conditions of Draft Plan of Vacant Land Condominium Approval 1. Approval applies to the Draft Plan of Vacant Land Condominium prepared by Matthews, Cameron, Heywood - Kerry T. Howe Surveying Ltd., revised August 18, 2010, showing vacant land units for 124 single- detached dwellings, 47 townhouse dwelling units and an apartment building (150 units) as well as common element areas for private roadways and landscaping /open space. 2. The developer enter into a registered Condominium Subdivision Agreement with the City to satisfy all requirements, financial and otherwise, related to the development of the land. 3. The developer submit a Solicitor's Certificate of Ownership for the property to the City Solicitor prior to the preparation of the Condominium Subdivision Agreement. 4. The developer submit all revised servicing plans including water, sanitary, stormwater, private driveway, proposed bridge crossing, lighting, lot grading and drainage to the Municipal Works Division for review and approval. 5. The developer construct a sidewalk along the Drummond Road frontage of the site to the City's satisfaction. 6. The developer submit revised servicing plans indicating private roadway dimensions and the location of fire hydrants to the satisfaction of Fire Services. 7. The developer establish conservation easements to the City's satisfaction as indicated on the plan at the rear of Units 20 to 62 (inclusive) and along the west boundary of the development abutting Drummond Road. 8. The developer pay the City cash -in -lieu of 5% parkland dedication. 9. The developer submit revised landscaping and fencing plans for the review and approval of the City including the streetscape treatment along Drummond Road. 10. The developer provide boulevard trees along the private roadways for the single - detached and townhouse units in accordance with City policy. 11. The developer provide five copies of the pre- registration plan to Planning & Development and a letter stating how all conditions imposed have been or are to be fulfilled. 12. The developer is hereby advised that prior to commencing any work within the Plan, the developer must confirm that sufficient wire -line communication/ telecommunication infrastructure is currently available within the proposed development to provide communication /telecommunication service to the proposed development. In the event that such infrastructure is not available, the developer is hereby advised that the developer may be required to pay for the connection to and /or extension of the existing communication /telecommunication infrastructure. December 13, 2010 - 7 - PD- 2010 -95 If the developer elects not to pay for such connection to and /or extension of the existing communication /telecommunication infrastructure, the developer shall be required to demonstrate to the municipality that sufficient alternative communication /telecommunication facilities are available within the proposed development to enable, at a minimum, the effective delivery of communication/ telecommunication services for emergency management services (ie. 911 Emergency Services). 13. The developer shall agree, in words satisfactory to Bell Canada, to grant to Bell Canada any easements that may be required for telecommunication services. Easements may be required subject to final servicing decisions. In the event of any conflict with existing Bell Canada facilities or easements, the developer shall be responsible for the relocation of such facilities or easements. 14. The developer provide a blanket easement to Bell Canada, if required, for the townhouse complex. 15. The developer include in all offers of purchase and sale, a statement that advises the prospective purchaser that the home /business mail delivery will be from a designated Centralized Mail Box (CMB) and that the developer will be responsible for officially notifying the purchasers of the exact CMB locations prior to the closing of any home sales. Note: Canada Post's multi -unit policy, which requires the owner to provide the centralized mail facility at their own expense, will be in affect for buildings /complexes with a common lobby, common indoor or sheltered space. 16. The developer satisfy all requirements of Canada Post regarding temporary Centralized Mail Box locations, engineering servicing drawings, installation and providing mail service information to property owners. 17. The developer provide Enbridge Gas Distribution Inc. with a composite utility plan approved by all utilities that allows for safe installation of all utilities, including required separation between utilities, and streets be constructed in accordance with the composite utility plans. 18. The developer grade all streets to final elevation prior to installation of the gas lines and provide Enbridge Gas Distribution Inc. with the necessary field survey information required for installation of gas lines. 19. The developer provide Enbridge Gas Distribution Inc. with the necessary easements if any gas lines need to be installed outside of the proposed road allowances. 20. The developer promptly acknowledge that draft approval of this condominium does not include a commitment of servicing allocation by the Regional Municipality of Niagara as this servicing allocation will be assigned at the time of final approval of the condominium for registration purposes. 21. Immediately following notice of draft plan modification, the developer shall provide the Regional Development Services Division with a written undertaking that all offers and agreements of purchase and sale, which may be negotiated prior to registration of this condominium, shall contain a clause clearly indicating that a servicing allocation for this condominium will not be assigned until the plan is granted final approval for registration, and a similar clause be inserted in the condominium agreement between the developer and the City of Niagara Falls. December 13, 2010 - 8 - PD- 2010 -95 22. The developer provide any necessary further assessment of industrial operations in the vicinity and a noise and vibration analysis with appropriate mitigation measures determined and implemented to the satisfaction of the Region and the City through the necessary condominium agreement and /or site plan agreement. 23. The draft plan of condominium be revised to provide a temporary turning circle or "T" turnaround area within the future apartment block (Unit 172) to comply with the Regional Municipality of Niagara's "Collection of Waste by Way of Entry on Private Property" Policy (PW 2.W07) and the developer enter into an Indemnity Agreement with the Region to the satisfaction of the Regional Niagara Public Works Department. 24. Revised servicing and lot grading plans, including the location of Regional services and easements on the property, be submitted for review to the satisfaction of the Regional Public Works Department. 25. The Tree Saving Plan be revised as necessary, including areas to be replanted, in accordance with the Regional Tree and Forest Conservation By -law No. 47 -2006 and implemented through the condominium agreement and /or site plan agreement. 26. Prior to approval of the final plan or any on -site grading, the developer submit to the Regional Development Services Department for review and approval two copies of a detailed stormwater management plan for the condominium and the following plans designed and sealed by a suitably qualified professional engineer in accordance with the Ministry of the Environment documents entitled Stormwater Management Planning and Design Manual, March 2003 and Stormwater Quality Guidelines for New Development, May 1991: a) Detailed lot grading, servicing and drainage plans, noting both existing and proposed grades and the means whereby overland flows will be accommodated across the site; and b) Detailed erosion and sedimentation control plans. Note: The Region will request that the Niagara Peninsula Conservation Authority review the stormwater management and other related plans on the Region's behalf and submit comments to the Regional Development Services Division regarding the approval of these plans and the subsequent clearance of related conditions by Regional staff. 27. The condominium agreement between the developer and the City of Niagara Falls contain provisions whereby the developer agrees to implement the approved stormwater management plan required in accordance with Condition 26. 28. The developer submit a copy of the revised lot grading and drainage plan, showing existing and final grades, to Hydro One for review and approval. Drainage must be controlled and directed away from the hydro transmission corridor. 29. The developer install temporary fencing prior to the start of construction and permanent fencing of a type specified by Hydro One after construction is completed, both at the developer's expense, along the boundary of the Hydro One transmission corridor. December 13, 2010 - 9 - PD- 2010 -95 30. Immediately following notice of draft plan modification, the developer submit a letter to Hydro One acknowledging: I) that the abutting transmission corridor is not to be used without express written permission of Hydro One; ii) that during construction, there will be no storage of materials or mounding of earth or other debris on the transmission corridor; and iii) the developer will be responsible for restoration of any damage to the transmission corridor or facilities thereon resulting from construction of the development. Furthermore, the costs of any relocations or revisions to Hydro One facilities which are necessary to accommodate this condominium subdivision will be borne by the developer. Note: The transmission lines abutting this subdivision operate at 500,000, 230,000 or 115,000 volts. Section 186 — Proximity — of the Regulations for Construction Projects in the Occupational Health and Safety Act, require that no object be brought closer than 6 metres (20 feet) to an energized 500 kV conductor. The distance for 230 kV conductors is 4.5 metres (15 feet), and for 115 kV conductors it is 3 metres (10 feet). It is the proponent's responsibility to be aware, and to make all personnel on site aware, that all equipment and personnel must come no closer than the distance specified in the Act. They should also be aware that the conductors can raise and lower without warning, depending on the electrical demand placed on the line. Clearance of Conditions Prior to granting approval to the final plan, Planning & Development requires written notice from applicable City Divisions and the following agencies indicating that their respective conditions have been satisfied: - Bell Canada for Conditions 12 to 14 (inclusive) - Canada Post for Conditions 15 & 16 - Enbridge for Conditions 17 to 19 (inclusive) - Regional Municipality of Niagara for Conditions 20 to 27 (inclusive) - Hydro One Networks Inc. for Conditions 28 to 30 (inclusive) December 13, 2010 - 10 - PD- 2010 -95 Subject Land Schedule 1 LOCATION MAP X11111 \i& -• "OII111111111111111� X11111111111111 ►�� i 1muuummuumi1l1un��uuiu ►uui�i�i►►�� Amending the Official Plan and Zoning By -law No. 79 -200, and Plan of Vacant Land Condominium Location: Drummond Road Applicant: Mountainview Homes (Niagara) Ltd. (1/12/2011) Teresa Fabbro - Fernwood Subdivision Phase Three - Request to speak at Council Jan. 17,2011 Page 1 From: "Jean Grandoni" <resourcesfirst jeangrandoni @niagara.com> To: <diorfida @niagarafalls.ca> Date: 1/12/2011 12:47 PM Subject: Fernwood Subdivision Phase Three -- Request to speak at Council Jan. 17,2011 Dear Mr. lorfida: Please be advised that I request to speak to the City Council on the above matter on Mon. Jan 17, 2011 . Yours truly, Jean Grandoni RR #1 Garner Rd. Niagara Falls, Ont. L2E 6S4 905 - 356 -2962 Jean Grandoni RR. #1 Garner Rd. Niagara Falls, Ont. L2E 6S4 Niagara Falls City Council 4310 Queen Street Niagara Falls, Ontario L2E 6X5 Members: Jan. 5, 2011 for Council Meeting of Jan. 17, 2011 Re: Fernwood Phase Three Draft Plan of Subdivision Zoning By -Law Amendment Application , Lundy's Lane (North Side) West of Garner Rd. File 226T -11- 2009 -01 & AM -2009 -030 AND Request to Speak to Council 1) I stand opposed to selling off the southern edge of the Phase Three forest by the developer to future individual homeowners and condominium owners, as revealed in the surveyors map provided at the public meeting of Dec. 13, 2010. This sets a bad precedent and could probably be proven to be illegal under forest protection policy and legislation, even though the developer claims he is willing to zone the disputed area as Environmental Protection. 2) The Forest has not been evaluated, making it an even greater irregular procedure. 3) This situation can easily be corrected by a)either totally eliminating the single family residential lots (Lot #'s 20 to 27), or B) by changing the configuration of the single family lots from north -south to east - west. The east-west design of the lot layout would totally avoid selling off the forest edge. The condominium numbers can be reduced or reanranged. The market is presently saturated as admitted by the proponents. 4) The developer states that he was offered as high as $150,000.00 for a regular sized lot adjacent to the Phase One forest. With increased lot values such as this, any reduction in the number of lots resulting from an east - west lot design, would be more than compensated for. Four east -west lots at 150 thousand is 600 thousand. Eight regular lots at 70 thousand is 560 thousand. The developer now says that he will be adding ten feet to the length of lots 20 to 27 . This makes returning the forested road allowance back to the City, even easier to do with either of the lot option arrangements discussed above. 5)The road allowance was taken back by the city in Fernwood Phase One Forest, so why not here? It appears from the map that the City still owns the northern portion of the road allowance and could take back the forested portion that initially should never have been sold to this developer in the first place. The fact that the road allowance is closed makes it easier to preserve the forest. 6) Minor variances from the zoning by -law could be obtained if needed to apply the east -west lots and to accommodate the condos where forest loss is even worse . 7) Council must BE AWARE that there are two fences proposed: A) a temporary construction fence at the Southern forest edge (dripline area }. B) a permanent fence inside the forest at north end of lot boundary lines and condominium area ( the heavy black line on your map). HOW MANY TREES WILL BE CUT TO ACCOMMODATE THE PERMANENT FENCE INSIDE THE FOREST" Council must be aware that the homeowner can get permission to cut the trees sold to them in order to plant gardens or simply to make money on the wood. If the forest is left intact as one unit and not sold off, certain large trees will have to be left standing as seed trees under any logging permits. Such forestry maintenance will be harder to accomplish when the forest is severed up as is proms here. RECEIVED JAN Q 7 2011 CU nwiwuur. The PERMANENT FENCE should be erected at the forest edge so that all the forest functions as one unit including the five metre buffer. This will also provide for badly needed wildlife habitat and food. 8) What you read in the newspapers about coyote attacks is just the tip of the iceberg. Coyotes attacked a farmer in Vineland as reported in a Ietter to the Region. My neighbour told me about a a coyote attack on a child in the Kalar Rd. area where she was rescued by a witness. This should sound an alarm for greater buffering rather than none as is the case here. Your concept of a buffer is political and profit motivated in my opinion. 9) Expert foresters call for a fifty foot NATURAL BUFFER under public ownership and NOT owned by individual homeowners as you are wrongfully proposing with this subdivision. 10)Too many Councillors continue to show a disregard for the impact of any 420 Highway By -Pass on the farming community by encouraging housing in the right -of -way. If it cannot be stopped , the present proposal can miss both forests and be routed between them through the developers lands within the urban boundary. Will the Council fight as hard to stop any future new route for the 420 by -pass through prime farmlands that could result from housing development within the present Highway Right -of -Way ? I wish to speak at the January 17, 2011 Council Meeting and would like to be notified of City Council's decision. Yours truly, Jean Grandoni CC Planning Dept. (1/12/2011) Dean Iorfida - City Council - Fireworks Special Request 01 10 11.doc Page 1 January 10, 2011 Mr. Dean Iorfida, City Clerk The City of Niagara Falls City Hall, P.O. Box 1023 4310 Queen Street Niagara Falls, ON L2E 6X5 RE: Winter Festival of Lights — Fireworks Special Request Dear Dean: First, my apologies for the short notice. It was just decided to hold fireworks displays over the Falls for the next three (3) Fridays (namely: Jan. 14, 21 and 28, 2011) and we are requesting City Council approval for such. We are utilizing the services of David Whysall International Fireworks, the same firm used by The Niagara Parks Commission for the summer fireworks displays. The Festival is properly insured for this and will add all concerned parties as additional named insured. Should you have questions please contact me at 905 374 -1616 x. 46. Sincerely, CAA WINTER FESTIVAL OF LIGHTS Dino Fazio General Manager REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Finance Department SUBJECT: F- 2011 -04 Potential Senior Property Tax Credit RECOMMENDATION EXECUTIVE SUMMARY BACKGROUND F- 2011 -04 Niagara� a lls January 17, 2011 Hno� Staff recommend that a possible Senior's Property Tax Credit be referred to 2011 Budget deliberations. At Council's request, Finance staff have reviewed the possibility of providing seniors with a property tax freeze. As Council is aware, property taxes are paid based on the assessed value of the property. Assessment values are determined by MPAC and are based on the Assessment Act of Ontario. Property Tax rates for each class of property are determined by the legislation within the Municipal Act of Ontario. For the City of Niagara Falls, tax policy is determined in the upper tier, the Region of Niagara. Property Taxes are not based on income nor the ability of the property owner to pay, rather it is based on the assessed value of the property. A program to freeze taxes for a group of property owners based on income level would not be possible under the legislation that exists at present. However a property tax grant similar to the program discontinued in 2009 could be considered in the development of the 2011 General Purposes Budget. Based on the annual applications for the low Income Seniors Water Rebate, the approximate annual cost to the General Purposes Budget is $65,000 Council have raised concerns with the level of taxation on property owners who are seniors and have requested that staff investigate the potential to provide a property tax freeze for seniors. Previous Councils have attempted to assist low income seniors with two programs. Firstly, there currently exists a Low Income Water Rebate for seniors that has been in existence since 2004. A property tax rebate for Low Income Seniors was available from prior to 2009, however the program was discontinued when the Provincial Government instituted a similar income tax rebate which provided all seniors a proportionate reduction of their annual income taxes. This provincial rebate still exists and has been enhanced. January 17, 2011 - 2 - F- 2011 -04 The Ontario Senior Homeowners' Property Tax Grant is an annual amount provided to help offset property taxes for seniors with low to middle incomes who own their own homes. In 2009, the maximum grant was $250. In 2010 and subsequent years, the maximum grant is $500. The Canada Revenue Agency administers the grant on behalf of the Province of Ontario. ANALYSIS /RATIONALE The property taxes paid by a property owner is a combination of the taxable assessed value of the property and the applicable tax rates charged. Tax bills received by residents of Niagara Falls include charges for three levels of government: the City, the Region of Niagara and the local school boards. As indicated, there is no ability for Council to freeze taxes based on a property owner's income level under current legislation, however there does exist an opportunity to provide a rebate to qualified applicants. A program similar to the Low Income Water Rebate or the previous Property Tax Rebate for Low income seniors could be implemented. In considering any rebate program there must be qualifications for applicants. Specifically, the existing water rebate program ensures that applicants are seniors who have a water account and who receive the Guaranteed Income Supplement (GIS) from the Federal government. The distinction of the GIS as the income qualifier is important as it identifies which seniors meet a predetermined annual income. FINANCIAL IMPLICATIONS A rebate program similar to the existing seniors water rebate which uses the GIS as the income qualification for applicants would result in minimal administration changes. If the qualified income level differs from the GIS amount, a significant increase in administration would be required to determine whether applicants qualify for any proposed rebate. A different qualification process would need to be established. The number of water rebate recipients for 2010 has not been finalized yet, but there have been 662 applicants. The approved applicants receiving grants in 2008 and 2009 was 628 and 632 respectively. The water rebate is a fixed amount of $100. The costs of this program of providing this rebate to applicants results in a line amount in the annual Water Utility Budget. In the event that a similar rebate is approved by Council for taxation, the grant amount would be a line expense in the General Purposes Budget. If the grant is to be instituted, staff would need to review the appropriateness of a fixed amount versus a flexible grant amount. Staff will continue to review a possible grant process for budget deliberations, however the following example highlights the issue of the appropriate form any grant should take. To look at the appropriateness of any proposed property tax grant, staff would need to look at the historical increases in municipal tax increases for residential property owners. As indicated previously, the tax increase of an individual property owner is dependent upon the assessed value and the property tax rate. Each property owner's situation would be unique, which provides staff with difficulty in establishing an appropriate grant amount. For reference purposes we will provide an example. January 17, 2011 - 3 - F- 2011 -04 In this example, the property owner is a senior, who qualifies for the GIS and who has the average residential property. Thus in 2010, the assessed value of the property moved the average of 4.60% from $182,660 in 2009 to $191,061 in 2010. As a result, the applicants City property taxes increased $36.92 based on the approved 2010 tax levy. The difficulty in this example is the differing impact on other seniors with different valued homes and different assessment increases. Thus a fixed dollar amount would create inequities, thus any rebate program should consider these differences. Again, any type of flexible program will provide additional administrative challenges. Staff believe that the total cost of the program, if the numbers are consistent with the water rebates, irrespective of how it is administered, will be approximately $65,000 annually. Recommended by: Respectfully submitted: Todd Harrison, Direc Ken Tode. r of Finance , Chief Administrative Officer (1/11/2011) Dean Iorfida - Reports L- 2011 -01 and L- 2011 -02 From: Ken Beaman To: Dean Iorfida Date: 1/10/2011 2:50 PM Subject: Reports L- 2011 -01 and L- 2011 -02 Dean, The memo re: the postponement reports: In each of these Reports, Council is asked to postpone an charge upon land to the interest of the banker of the owner of the land. The determination as to whether or not to proceed with a postponement, is a matter of assessment of business risk. In my role as a lawyer, it is not my function to assess business risks. Accordingly I will, if asked, always recommend that the City assume the least possible risk in any transaction. That said, in both of these matters there are practical considerations that Council should be aware of in determining whether or not to postpone. In the case of the Humane Society, it should be noted that the amount of the City's loan, together with the bank's interest ($429,032.18), is less than the assessed value of the property in question ($470,000.00). This, coupled with the fact that the City's interest declines at a rate of 20 percent a year, would appear to indicate that the City's position is fairly secure. On the other hand it must be borne in mind that the property is highly specialized and unlikely to sell for its full assessed value. In the case of The Boys' and Girls' Club, published reports indicate that the Club intends to spend $12 million on constructing a building on this property. The value of this improvement would appear to exceed the combined value of the bank's advance and the sum advanced by the City ($2,681,000.00). However, it is likely that the building will be encumbered by interests created by the provincial and federal authorities who have provided funding to the Club and that, given the limited market for the building, the entire $12 million in construction costs would be recovered in a sale. Council must weigh these factors, together with such matters as Council's desire that the good works of the entities seeking the postponements be continued, in making its determination in whether to grant the postponements or not. Ken. REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Legal Services SUBJECT: L- 2011 -01 Niagara Falls Humane Society Postponement of Charge Our File No. 1999 -93 RECOMMENDATION EXECUTIVE SUMMARY BACKGROUND L- 2011 -01 NiagaraJ January 17, 2011 That the City decline to postpone its charge to the interest of the Niagara Falls Humane Society's bankers. The Niagara Falls Humane Society has requested that the City postpone its charge over the lands upon which the Humane Society animal shelter is located at 6025 Chippawa Parkway, (the "animal shelter lands "). Postponing the charge will reduce the chances of the City recovering the funds that it has advanced to the Niagara Falls Humane Society. Having made the recommendation above, Staff acknowledges that banks are very inflexible in these matters and that postponement of the City's interest will be a practical necessity for the operations of the Niagara Falls Humane Society. The City has advanced $179,032.18 to the Niagara Falls Humane Society by way of a forgivable loan, to assist that organization with undertaking improvements to its animal shelter. The loan is secured by a charge on the animal shelter lands. The charge is interest free. The amount owing is reduced by 20% every year. The charge will thus expire in 2015. The amount of the charge is not owing unless the Niagara Falls Humane Society sells the animal shelter lands or ceases to use the animal shelter lands as an animal shelter. The Niagara Falls Humane society is now negotiating a line of credit with its bankers. The Niagara Falls Humane Society's bankers have requested a first mortgage over the animal shelter lands. In order for the Niagara Falls Humane Society to grant a first mortgage to the bank, the City has to postpone its interest to that of the bank. Postponing the charge will reduce the chances of the City recovering the funds that it has advanced to the Niagara Falls Humane Society. January 17, 2011 - 2 - L- 2011 -01 ANALYSIS /RATIONALE The bank's mortgage will secure a floating charge of up to $250,000.00. The 2008 assessed value of the animal shelter lands is $470,000.00. FINANCIAL/LEGAL IMPLICATIONS Postponing the City's charge will reduce the chances of the City recovering the funds that it has advanced to the Niagara Falls Humane Society. Recommended by: Respectfully submitted: KB Ken Beaman, City Solicitor Ke Todd, Chief Administrative Officer NiagaraJalls January 17, 2011 ( {hi A.\ REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Legal Services SUBJECT: L- 2011 -02 Boys' & Girls' Club of Niagara Postponement of Charge Our File No. 2007 -251 RECOMMENDATION That the City decline to postpone its charge to the interest of The Boys' and Girls' Club of Niagara's bankers. EXECUTIVE SUMMARY The Boys' and Girls' Club of Niagara (the "Club "), is requesting that the City postpone its charge upon the clubhouse site to the interest of its bankers, who are advancing funds to the Club. Having made the recommendation above, Staff acknowledges that banks are very inflexible in these matters and that postponement of the City's interest will be a practical necessity for the operations of the Club. BACKGROUND The City intends to provide the Club with a total grant of $2,181,000.00. The sum was to be secured by a charge on the clubhouse lands. The charge is to be interest free and is to decline in equal increments over a 20 year period. The charge does not require the outstanding balance to be repaid to the City unless the Club sells the clubhouse site or ceases to operate the clubhouse site as a provider of recreational services for young people. The charge was intended to be a first charge on the lands in question. To date, $1,725,976.00 has been advanced to the Club with a further $455,024.00 to be advanced once the City's charge is in place. The Club has now requested that the City postpone its interest in the lands, to an interest being sought by the Club's bankers. The bankers are intending to advance the Club the funds up to $500,000.00. ANALYSIS /RATIONALE L- 2011 -02 Should the City proceed with the proposed postponement, the City's leverage over the subject property will be reduced. In the event of a sale of the property, the City would not have a meaningful bargaining position unless the value of the clubhouse site exceeds the January 17, 2011 - 2 - L- 2011 -02 value of the bank's mortgage. The value of the bank's security is likely to absorb much, if not all, of the value of the clubhouse property. Historically, banks are not prepared to advance funds to construction projects unless they are able to secure those funds with a first mortgage. It is not anticipated that the bank involved in this transaction will agreed to advance funds, unless the City agrees to postpone its charge to the interest of the bank. FINANCIAL /LEGAL IMPLICATIONS The City's chances of recovery will be reduced in the event that the property is sold or ceases to be used as a recreation centre for young people. The 2008 assessed value of the clubhouse site is $136,000.00. A building is under construction on the clubhouse lands that will increase their value. Published reports indicate that the Club intends to spend $12 million constructing the new building. Recommended by: Respectfully submitted: KB Ken Beaman, City Solicitor Ken odd, Chief Administrative Officer NiagaraJalls December 13, 2010 REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Legal Services SUBJECT: L- 2010 -17 Niagara Convention and Civic Centre Inc. Lease and Operating Agreement Our File No. 2006 -259 RECOMMENDATION EXECUTIVE SUMMARY BACKGROUND A Lease and Operating Agreement has been prepared to achieve this goal. L- 2010 -17 1. That Council approve the Lease and Operating Agreement attached to the execution by -law found in the by -laws section of this agenda; 2. That the Mayor and Clerk be authorized to execute the Lease and Operating Agreement; and 3. That Staff take whatever steps required to implement the approval and direction given in paragraphs 1 and 2 above. The new convention centre is nearing completion. The operation of the convention centre requires the operator to obtain a liquor licence. The operator cannot obtain a liquor licence unless it has a written form of lease confirming its right to occupy and operate the convention centre. The Lease and Operating Agreement is for nominal consideration. At its meeting of September 22, 2008, Council determined that the new convention centre would be operated as a municipal capital facility. A convention centre that is operated as a municipal capital facility is owned by the municipality, but is managed by an independent operator. In the case of the Niagara Convention and Civic Centre the operator will be an Ontario corporation called Niagara Convention and Civic Centre Inc. ( "NCCC "). The sole shareholder of this corporation is the Board of Management of the Fallsview Business Improvement Area. In keeping with the business plan approved by Council, NCCC will operate the convention centre as a business. However, the operator will not pay dividends or record profits. Any operating surplus will be reinvested in the convention centre. December 13, 2010 ANALYSIS /RATIONALE - 2 - L- 2010 -17 In general, the Lease and Operating Agreement establishes an arm's length relationship between the City and NCCC. This is in keeping with the business model which was presented to the Council by representatives of NCCC on March 19, 2007. The controls the City does have over the operation of the convention centre pursuant to the terms of this Lease and Operating Agreement are: 1. The Chief Administrative Officer of the City must approve of repairs to the building. 2. The City has a right to inspect the building at all times. 3. The City will have a representative on the Board of NCCC. 4. Any sublease of the building or a part thereof (for a period of 3 months or more) must be approved by the City. 5. The City will be entitled to protect its interest in any mortgage of NCCC's chattels and improvements. 6. The City has the right to re -enter upon default. 7 The Lease and Operating Agreement can be terminated in the event that NCCC: (a) amalgamates, consolidates, reorganizes or merges with another entity; (b) creates a new class of shares in itself; (c) enters in any agreement to issue any shares of any class, or any securities convertible into any shares of any class, of itself or grants any option or other right to purchase any shares or securities convertible into such shares; (d) amends the rights, restrictions or privileges of any shares or class of shares of itself; (e) disposes of or encumbers all or substantially all of its assets; (f) adopts changes to the corporate structure of itself regarding proportional representation of the members of its Board of Directors or in any way restricts the members of that Board of Directors from overseeing the operations of itself; (g) changes the number and composition of the Board of Directors of itself; (h) invests any revenue derived from the operation or existence of the convention centre or received by NCCC for the funding or the operation or design and construction of the convention centre in any venture, enterprise, business, transaction or endeavour other than the design, construction, management, maintenance or operation of the convention centre; KB December 13, 2010 (i - 3 - L- 2010 -17 enters into any partnership, joint venture or other business venture that would involve the expenditure or investment of funds by NCCC outside the normal course of business; (j) makes loans, enters contracts or provides financial support to any person not at arm's length to any officer, director or employee of itself and any person who is a member of any Business Improvement Area that contributes to the operation and maintenance of the convention centre on terms more favourable than those available to the general public; (k) makes any one time expenditure greater than two million dollars ($2,000,000.00) (the method of calculation and estimation of the expenditure to be at the discretion of Council acting reasonably); in the absence of the express written consent of Council. 8. The rules of procedure for the board of NCCC must be approved by Council acting reasonably. FINANCIAUSTAFFING /LEGAL IMPLICATIONS As the convention centre will be operated by NCCC, the Lease and Operating Agreement will not require any increase in the complement of City Staff. The Lease and Operating Agreement enables NCCC to manage the day to day operations of the convention centre like a business, while reserving to the City certain rights to protect its interest in the convention centre. CITY'S STRATEGIC COMMITMENT One of Council's Business Development commitments is to strengthen and promote economic development in the City. Towards this end, a key goal for the City has been to establish a year round tourism destination. The convention centre will provide one such destination and, once fully established, is projected to generate approximately ninety three million dollars ($93,000,000.00) in new expenditures annually. Recommended by: Respectfully submitted: Ken Beaman, City Sol�,citor Ke Todd, Chief Administrative Officer REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls SUBMITTED BY: Clerks Department SUBJECT: CD- 2011 -01, Municipal Election Accessibility Report BACKGROUND ANALYSIS /RATIONALE Voting Places CD-2011-01 Niagaraf-lalls January 17, 2011 RECOMMENDATION That Council receive the Post Election Accessibility report for information purposes. EXECUTIVE SUMMARY During the preparations for the 2010 Municipal Elections, efforts were made to have all aspects of the election accessible to all candidates and eligible voters. When conducting an accessible election, attention was focused on providing barrier -free voting places, improvements to the ballots, accessible tools for marking the ballot, additional resources and staffing at the voting places, enhanced training initiatives and increased communications to the electorate and candidates. Section 12.1 of the Municipal Elections Act, states that "a clerk who is responsible for conducting an election shall have regard to the needs of electors and candidates with disabilities. Within 90 days after voting day in a regular election, the clerk shall submit a report to council about the identification, removal and prevention of barriers that affect electors and candidates with disabilities ". This report outlines the measures taken by City Elections staff to ensure greater accessibility for the 2010 election. For the 2010 Municipal Election, the following initiatives were undertaken to assist candidates and electors with disabilities: A review and assessment of all facilities were conducted prior to designating them as polling places. As has been the practice since 2000, a consultation took place with the City's Disability Advisory Committee prior to the determination of voting places. An accessibility checklist was developed and used by election officials in conducting site visits. Among other things, each facility was checked for: barrier -free parking, barrier -free path of travel from the parking lot/sidewalk, door operators or accessible doors, and adequate lighting. Photographs and measurements were taken as part of site inspections. January 17, 2011 - 2 - CD- 2011 -01 Places that were not accessible were either rejected, as locations, or modifications were made to the facility or procedures associated with the location. If it was not feasible to make modifications, voting places were relocated or merged with other voting places in the vicinity. Voting places that accessible, which were not used in the past, were identified and used. On Election Day, election workers were instructed to verify the accessibility of the voting place using a checklist for accessible customer service. Specific initiatives included: • Additional portable disabled parking signs were erected at polling places, for example the Optimist Club, where it was felt that disabled parking was inadequate or disabled parking stalls could be located closer to an accessible entrance. • Identifying and signing disabled washrooms where none were marked, as well as providing directional signage to the washrooms. • School boards, principals, facility managers, etc. were advised of deficiencies for voting day and asked to remedy them. • Deputy Returning Officers were given lists of potential deficiencies at their polls and asked to address them prior to the opening of the polls. • Additional seating was provided in the voting place for elderly and disabled electors in order to make them comfortable as they completed paperwork and /or to allow them to rest. • Sandwich boards equipped with signage were placed on the boulevard and driveway entrances to polling places to make the voting place locations more easily identifiable. • Additional signage was used to ensure that electors with accessibility needs were directed to the accessible voting entrance. • The City's Building Inspectors and By -law Officers visited all of the voting places throughout the day providing additional signs and supplies as required. • Election officials circulated throughout the day to ensure the accessibility of sites, and remedy concerns. • A post - election meeting with the City's Disability Advisory Committee was held to solicit feedback on any election day issues. The Committee members had no concerns and were generally pleased with the election process. An unexpected, but welcomed, by- product of the protracted renovations at City Hall, was greater accessibility accommodation. Ramping was completed on Erie Avenue and disabled parking spots were closer to the building entrance and easier to find. January 17, 2011 - 3 - CD- 2011 -01 Ballots The ballots for all races were changed to include red ovals for marking. The ovals were drawn with thicker, darker lines to allow them to be more visible by the voter. The colour red was safely chosen as to not jeopardize the marking process, since the optical ballot readers don't scan the colour red, thus allowing only the voters intended mark to be counted. Overall, this made the ballots easier to read. In addition, the printed font on all ballots was made as large as possible given page and space parameters. The font, Arial 12, is a recommended font for communication to people with visual difficulties. All election communications were consistent with the Arial font. Voter Notification Cards, which unfortunately required a smaller font, for space reasons, included the wheelchair symbol encouraging those with mobility issues to vote at various advanced poll locations, which may have greater barrier -free accessibility. Tools & Equipment The AutoMark, a ballot marking device for electors with disabilities, was available at the advance polls, as well as at City Hall on Election Day. The equipment enabled electors with disabilities to vote independently. It included a large touch screen, a keypad option including Braille, audio services, a rocker panel, and a Sip -N -Puff device. This new feature was successfully used on Election Day and during all but one of the advance poll days. Due to concerns regarding the delivery of the AutoMark, staff was unable to do extensive advertising on its availability. If the machine is used for the 2014 election, staff will highlight the tool As has been the case for the last three elections, various sized magnifying sheets were available at all voting places to assist electors with visibility issues. Pens and note pads were also available at the polls to assist in communication with electors who were deaf, deafened, or hard of hearing. Voting instructions, with illustrations, were affixed inside each of the voting screens to assist voters in understanding how to mark their ballots. The ballots also have visual depictions helping explain how to vote. Election day staff was instructed that in cases where an elector with a disability was unable to attend a voting place, he or she may have appointed another person to act on their behalf. Proxy forms were available up to, and including, Election Day. Additional Resources and Staff In concurrence with the City's Customer Accessibility policy, support persons and service animals were welcome in all voting places. A support person assisting an elector was required to take an oath, stating his /her commitment to confidentiality, and confirming that he or she would mark the ballot as directed by the elector. The City of Niagara Falls, in conjunction with Niagara Falls Transit, offered free bussing to the polls on Election Day and at the Advance Polls. Most routes were accessible. The initiative was not overwhelmingly used but was appreciated nonetheless by some. One January 17, 2011 - 4 - CD- 2011 -01 elector stated that had this service not been available, she would not have ventured out to vote. Election personnel were also available at the polls to assist a voter in casting his /her ballot. The election worker, in consultation, with the person with the disability, determined the level of assistance required by the elector, and the best way to provide that assistance. Additional election day workers were hired this year to facilitate locations where further assistance may have been required, i.e., to operate an elevator, assist with heavy doors or to simply offer their assistance. In total, 327 workers were used across the City at various locations for the 2010 elections, an increase of 23 workers from 2006. Training • Election staff was trained on accessibility requirements, serving individuals with disabilities, and on special services available to assist electors. Specific procedures and the City of Niagara Falls Accessible Customer Service brochure were provided to each election worker as reference materials. • Election Day Workers were sought out in designated voting places with a view to having personnel on hand who knew the voting places intimately, and who knew how to respond in the event of an emergency, or where there were accessibility challenges. • Procedural changes were made to permit Deputy Returning Officers to take ballots to electors who were unable to leave their vehicles or to take ballots to another location within the voting place. • Provided voting opportunities on the premises of an institution in which 20 or more beds are occupied by persons who are disabled, chronically ill or infirmed and any retirement homes in which 50 or more beds are occupied. At these Roving Polls, Deputy Returning Officers were encouraged to attend electors at bedside, upon request. • Additional election assistants were hired at fifteen polling places to assist electors with accessing elevators, manipulating heavy doors or awkward handles and to navigate corridors or to access washrooms. • Election workers with disabilities were recruited for the polls and, where appropriate, support personnel were hired to assist them. Communications An array of communications was used in the 2010 municipal elections as highlighted below. • The City's website was expanded to include: A list of voting place locations and addresses. Interior and exterior photographs of each of the polling locations to help electors identify their polls and create a comfort and understanding of the facility. January 17, 2011 - 5 - CD- 2011 -01 A process for notice of service disruption and unforeseen circumstances that affected accessibility was planned. Although not needed, notices would have provided in real time. Ongoing updates of pertinent information and developments. A dedicated contact to deal with accessibility issues, questions or concerns, which served as an additional mechanism for providing feedback, in addition to the accessibility section of the City's websites. Election staff fielded a handful of inquiries on voting places and accessibility issues. An opportunity for electors to confirm whether or not they were on the Voters' List and determine their voting place. In addition, the City's website included an audio option for electors who have difficulties with vision, language, literacy, or learning disabilities. • To raise awareness, advertisements were included in The Review highlighting advance voting, Election Day voting, voting by proxy, nominations, candidate and race information, accessibility, ID requirements, free bussing, and availability and revision of the Voters' List. • Public awareness initiatives were also executed through TVCogeco Niagara by way of three separate filmings and Public Service Announcements (PSAs) on the Community Events page. Further, PSAs were used on The Review web page, and joint endeavours were launched with local reporters for print editions. • Coming Soon posters and posters promoting Election Day were circulated to encourage electors with disabilities to attend the advance polls. • Coming Soon posters and posters promoting Election Day were posted at the roving polls to allow electors the opportunity to arrange for the assistance of staff and family in casting their ballots, should they have wished to do so. • Provided a link to the Province's accessible elections website. Candidate information sessions, done in conjunction with the Ministry of Municipal Affairs & Housing, outlined to candidates changes to the Municipal Elections Act regarding accessibility. FINANCIAL/STAFFING /LEGAL IMPLICATIONS Municipalities are obligated to report within 90 days of voting day on the identification, removal and prevention of barriers that affect electors and candidates with disabilities. This report fulfills the obligation and will be sent to the Ministry of Municipal Affairs & Housing. January 17, 2011 - 6 - CD- 2011 -01 LIST OF ATTACHMENTS • Various accessibility checklists use during the 2010 Municipal Election. Recommended by: f �/L /L (Z De o rfida, Cit Jerk Respectfully submitted: BM /DI Ken Todd, Chief Administrative Officer Polling Location Information: Building Name: Contact: Phone #: Address: Fax #: City: Niagara Falls Postal Code: Payment Information: Landlord Name: Preferred Language: Address: City: Province: Postal Code: Contact Person: Phone #: GST #: Fax#: Email Address: DRO Access Line#: Dedicated Fax Line for Accuvote Tabulator: Need to dial 9 or other to make extemal calls? Building Type: This site is to be used as a: Power Cord Required : Y Ordinary Poll N Church Hall Community Centre Educational Municipal Hall Other (specify) Advance Poll Alternate Site (no poll assigned) (List of polling station numbers) 23 Potential Conflicting Events Scheduled for the Same Day If so, what: Dimension of the polling room: Estimated maximum number of polling stations which could be established at this site: Evaluation Date: Reviewed by: Done on site? Y N Form EL (TBA) ACC ESSIBIL [TY CHECKLIST M unicipal Elections Act, 1996 CITY OF NIAGARA FALLS 2010 MUNICIPAL ELECTION Accessibility Checklist Niagara_f ails 7. Is the approach to the voting facility easy to travel and in good condition? If NO, please specify: Broken paving slabs? Gravel? Parked cars on streets nearby? Potholes? Other Barriers? Building Name: 8. Proximity to public transit? Phone #: Address: 9.Crosswaik nearby? Audible and /or visual signal? Chairs ( #) 10. Paved pathway? 8. Pathway at least 110 cm (3'6" wide)? 9. Pathway free of objects that cannot be detected by a person who is blind or visually impaired? 10. Lighting sufficient at night? 11. Do any obstacles impede electors? (if yes, please describe in Comments section) Polling Location Information: there sufficient signage to easily locate the level access entry? Building Name: 13. Contact: Phone #: Address: Postal Code Fumiture Required Tables ( #) Chairs ( #) 12.1s there sufficient signage to easily locate the level access entry? 13. Level access ramp provided? 14.If yes, does this ramp provide: A handrail? A non -slip surface? A slope of nor more than 1" per 12 "? 15. The door threshold meets standards of no more than 1.25 cm (1/2 ")? PARKING: Yes No 1. 2. 3. 4. 5. 6. Parking available? Spaces identified for persons with a physical disability? No.: Paved area? Sloping sidewalk (curb cut ?) Number of parking spaces: Do any obstacles impede electors? (if yes, please describe in Comments section) OUTSIDE THE BUILDING ENTERING THE BUILDING 16.The door hardware is usable with one hand without tight grasping, pinching or twisting of the wrist? 17.The door provides clear passage (32 inches) when the door is open 90 degrees? 18. Do any obstacles impede electors? i.e. Heavy, awkward doors; all glass entry, etc. (if yes, please describe in Comments section) INSIDE THE BUILDING 19.Doors and passages have a minimum clearance of 81 cm (2 ")? 20.There is a clear and accessible route to the voting location? 21.Voting location on the same floor as entry? 22.1s heating adequate? 23.1s the washroom wheelchair accessible? 24.Area is free of objects that cannot be detected by a person who is blind or visually impaired? 25.1s the floor non slip with no tripping hazards i.e. Heavy pile /loose or raised mats, uneven flooring, no glare from floor? 26.1s the voting facility well lit? 27.Do any obstacles impede electors? i.e. Loose floor mats, winding corridors, poor acoustics, etc. (if yes, please describe in Comments section) OVERALL EVALUATION AND NECESSARY MODIFICATIONS 28. Does this site provide level access? 29.If not, is it possible to modify the site by adding a ramp? 30.Are there other obstacles to overcome? (see Comments below) Comments: CITY OF NIAGARA FALLS MUNICIPAL ELECTIONS 2010 Accessible Customer Service - Setting up a Polling Place QUESTIONS TO ASK YOURSELF AS YOU ORGANIZE YOUR SITE ❑ Have accessible parking places been identified and are signs visible from the road? ❑ Have signs been posted to identify accessible entrances and routes to the voting location? ❑ Is the approach from the parking lot to the accessible entrance clear and easy to travel? ❑ Are doors easy to open? If not, can they be propped open, or can someone attend the door to allow ease of entry? (If you do prop them open, make sure that the open door does not obstruct the entrance or nearby floor space. DO NOT PROP OPEN FIRE DOORS.) ❑ Are door mats level with the floor to prevent potential tripping hazards? ❑ Is the voting facility well lit? ❑ Are seats available for people to rest if needed? ❑ Are there any obstructions in hallways that could cause difficulty for visually impaired people or people with limited mobility? ❑ Is there enough space inside the voting area for a wheelchair or scooter to move about easily? ❑ Is the voting booth low and wide enough for a wheelchair or scooter user to vote independently and with secrecy? ❑ Is the ballot box placed low enough that a wheelchair or scooter user can reach it without difficulty? ❑ Can the ballot box opening be easily identified by a visually impaired person? (One suggestion is to put a stripe around the slot in a contrasting colour. This can be done with a coloured marker or a piece of coloured paper or tape.) ❑ Is the large print notice of the ballot paper posted outside each poll booth should an elector wish to refer to it? ❑ Is there a magnifying sheet available for each polling station to help a person with low vision read the ballot paper? ❑ Is the voting procedure available in print for each polling location to help a person who has a hearing impairment? Are paper and pencils available for each polling location should an election official need to communicate with an elector through writing? THE CITY OF NIAGARA FALLS IS COMMITTED TO CREATING A BARRIER FREE ELECTION EXPERIENCE October 2010 V� Dear Deputy Returning Officer, T Niagara,Fa RE: Poll 4 - Christ Church I am writing to make you aware of specific issues with respect to the polling place where you will be working. Consistent with our on -site accessibility review under the Municipal Elections Act, we identified the following items that need to be addressed in order to ready your voting place for electors: Exterior signs are required to be posted to direct electors to the voting place entrance (Zimmerman entrance), and away from the main entrance. The secondary entrance door to the elevators should be propped open and left open during polling hours as they may be difficult for physically or mobility impaired electors to open. An additional Election Assistant has been added to your staff complement to assist handicapped electors use the elevator. Please ensure that this individual is aware of his /her responsibilities. The 3 portable Handicapped Parking signs stored in the Church basement should be placed on Zimmerman Street near the voting place entrance. Narcotics Anonymous will also be meeting at the Church on October 25. A request has been relayed to the Church to ask members to park away from the polling location entrance. Your assistance would be appreciated in dealing with the above. Staff at the Church are aware of this and will work with you on Election Day to ensure a seamless voting experience for electors. Please remember to locate a phone, make note of the number, and call the Election's Office at 905 - 356 -7521, extension 4272 once all staff assigned to your polling place has arrived. Or, call if staff has not arrived by 9:30 a.m. Please provide staff at City Hall with the number where you may be reached. Should you need to speak with me o r someone in the Election's Office about any election issue, please call the above number. Thank you for your participation in this important civic event. Yours sincerely, Bill Matson Manger of Clerk's Services Assistant Returning Officer Aran sit 4 the way to go! There is Such a Thing as a Free Ride! The City of Niagara Falls, in conjunction with Niagara Falls Transit, is pleased to offer electors the opportunity to ride FREE of charge to the polls on Election Day, and during the Advance Polls. Advance Polls will be held on: Wednesday, October 13, 2010 at MacBain Community Centre Thursday, October 14, 2010 at Gale Centre Arena Friday, October 15, 2010 at Chippawa Arena Saturday, October 16, 2010 at Niagara Square Optimist Club and at the 10:00 a.m. - 8:00 p.m. 7150 Montrose Road 10:00 a.m. - 8:00 p.m. 4171 Fourth Avenue 10:00 a.m. - 8:00 p.m. 9000 Sodom Road 9:00 a.m. - 5:00 p.m. 7555 Montrose Road 4751 Dorchester Road T Niag ara,alls Ercpt %n Any qualified elector may vote at any one of the Advance Polls. You don't have to wait until Election Day to cast your vote. You must, however, provide valid identification and be a Canadian Citizen to vote. Physically or mobility impaired electors are encouraged to vote at an Advance Poll. How to Get Your Free Ride Simply show your Voter Notification Card to the bus driver on the way to the polls. After you've cast your ballot, exchange your Voter Notification Card for a FREE bus pass home. Getting to the polls has never been easier! For further information about Niagara Falls Transit, visit www.niagarafalls.ca /transit For additional information about the 2010 Municipal Election, check www.niagarafalls.ca /elections or Call 905 - 356 -7521, extension 4272. October 25 is Election Day. It's Your City. It's Your Vote. Make it Count! F- 2011 -01 NiagaraJalls January 17, 2011 REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Finance Department SUBJECT: F- 2011 -01 Municipal Accounts RECOMMENDATION That Council approve the municipal accounts totalling $25,017,460.83 for the period November 25, 2010 to December 29, 2010. EXECUTIVE SUMMARY The accounts have been reviewed by the Director of Finance and the by -law authorizing payment is listed on tonight's Council agenda. Recommended by: Respectfully submitted: Todd Ha ison, Di ector of Finance Ken T dd, Chief Administrative Officer Niagarapalls January 17, 2011 CANADA REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Finance SUBJECT: F- 2011 -02 2011 Interim Tax Levy RECOMMENDATION EXECUTIVE SUMMARY BACKGROUND ANALYSIS /RATIONALE F- 2011 -02 That Council approve the 2011 Interim Tax Levy calculation and by -law providing for the 2011 Interim Tax Levy. The Corporation of the City of Niagara Falls requires an 2011 interim tax levy so as to provide the City with operating cash flow and to meet its statutory obligations for collecting taxes on behalf of the Region of Niagara and the local school boards. The statutory requirement of the City is to provide quarterly payments to both the Region of Niagara and the local school boards. The interim levy is calculated so that property owners will be billed amounts not exceeding one half of the previous years annual taxes. The installment dates for the Interim Levy are February 28 and April 29th. The Municipal Act 2001 provides the City of Niagara Falls with the authority to issue an interim tax levy. Traditionally the interim levy has been made in February with two installment dates. The City of Niagara Falls requires an 2011 interim tax levy so as to provide the City with operating cash flow and to meet its statutory obligations for collecting taxes on behalf of the Region of Niagara and the local school boards. The statutory requirement of the City is to provide quarterly payments to both the Region of Niagara and the local school boards. The authority to collect this interim tax levy is prescribed in section 317 of the Municipal Act. The interim tax levy is subject to the following rules: 1. The amount levied on a property shall not exceed the prescribed percentage, or 50 percent if no percentage is prescribed, of the total amount of taxes for municipal and school purposes levied on the property for the previous year. 2. The percentage used in the levy may be different for different classes but must be the same for all properties in a property class. January 17, 2011 - 2 - F- 2011 -02 3. Allows the municipality to use an entire years taxes for a property in the calculation of the interim tax levy in the situation that a full year was not charged in the previous year. Staff has developed the interim tax levy based on these rules and has determined that the amount due for the interim levy for each property will not exceed 50% of the annualized assessment used in determining the 2010 tax levy. The due dates for this interim tax levy are in accordance with the new Municipal Act. The interim bill will be due on two dates. As per the regulations outlined in the new Municipal Act, property owners must be provided 21 days notice before payment. The due dates are consistent with the regulation and will be February 28, 2011 and April 29, 2011. In 2010, these dates were February 26, 2010 and April 30, 2010. An interim levying by -law is required to establish the amount of the interim levy. This has been prepared and appears on this evening's Council Agenda for passage. FINANCIAL IMPLICATIONS The internal need for cashflow and the external statutory obligation necessitate the interim tax levy. Failure to provide an interim tax levy could lead to increased short term borrowing by the Corporation and could result in unplanned interest expenses. An interim tax levy is required to ensure the provision of the required funds to minimize borrowing costs. Recommended by: Respectfully submitted: A. Felicetti Todd Harrison, Director ••f Finance Ken Toad, Chief Administrative Officer Niagarapalls January 17, 2011 REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Finance Department SUBJECT: F- 2011 -03 Monthly Tax Receivables Report RECOMMENDATION That Council receive the Monthly Tax Receivables report for information purposes. EXECUTIVE SUMMARY F- 2011 -03 This report is prepared monthly to provide Council with an update on the City's property tax receivables. Outstanding taxes as of November 30, 2010 were $25.3 million compared to $26.9 million in 2009. During November, tax receivables as a percentage of taxes billed have decreased from 15.8% in 2009 to 14.3% in 2010. The City's finance staff has had continued success in resolving 90% of properties that are subject to registration for 2010. There are currently thirty -seven properties scheduled for tax sale in the next two years. BACKGROUND This report is being provided as part of the monthly financial reporting to Council by staff. It is also submitted to our banking institution for compliance with our banking agreement. ANALYSIS /RATIONALE Tax collection for 2010 improved during the month of November. Table 1 shows that taxes outstanding at November 30, 2010 are $25.3 million. This represents a decrease from $26.9 million in arrears for the same period in 2009. Finance staff continues to actively pursue property owners in arrears. Table 2 provides the breakdown of outstanding taxes by assessment class. The majority of outstanding taxes are for residential and commercial properties. The chart shows that the taxes owing from the commercial property class has decreased from a year ago. Finance staff takes specific collection actions for properties that are subject to registration. These action steps have been outlined in previous reports. At January 1, 2010, 405 properties were subject to registration. Table 3 summarizes the progress of these actions after eleven months of activity. This table shows 90.4% of the tax accounts or 366 properties have been paid in full orthe owners have made suitable payment arrangements. During November, six accounts were paid in full. In addition, the number of accounts with suitable arrangements including full payments increased from 88.4% (October) to 90.4% (November). January 17, 2011 Finance staff continues to make every effort to have accounts paid in order to avoid the registration process and the associated costs related to that process. Table 4 identifies the properties and associated tax arrears scheduled for tax sales in the future. During the month of November, there was no change to the status of registered properties. The outstanding taxes for registered properties represent 9.1% of the total outstanding taxes at month end. FINANCIAL /STAFFING /LEGAL IMPLICATIONS Tax arrears as a percentage of taxes billed in a year is a performance measure that stakeholders utilize to analyse an organization's financial strengths. Niagara Falls, due to its high reliance on commercial assessment, is traditionally higher compared to municipalities of similar size. The percentage of taxes outstanding to taxes billed as at November 30, 2010 is 14.3% which is a decrease from 2009's value of 15.8 %. The municipality has a record of full collection and earns significant penalty revenues to offset the higher measure. LIST OF ATTACHMENTS Table 1 Table 2 Table 3 Table 4 Recommended by: Respectfully submitted: A. Felicetti - 2 - F- 2011 -03 Taxes Receivable at November 30, 2010 Taxes Receivable by Property Class at November 30, 2010 Number of Properties Subject to Registration Scheduled Tax Sales Dates for Registered Properties Todd Harrison Director . Finance Ken Todd, Chief Administrative Officer TABLE 1 Outstanding Taxes @ October 31, 2010 Supplemental Due November 26, 2010 Penalty charged in November Taxes Collected during November Outstanding Taxes @ November 30, 2010 $ 30,262,738 $ 2,030,313 $ 241,247 $ 8,774,746 $ 23,759,552 $ 30,671,165 $ 334,478 $ 241,388 $ 5,837,665 $ 25,409,366 Supplemental Due December 15, 2010 Total Taxes to be Collected $ 1,496,404 $ 25,255,956 $ 1,500,129 $ 26,909,495 TABLE 2 Residential Multi- Residential Commercial Industrial Farmlands Total Receivables 2010 Taxes Owing $ 10,786,317 $ 473,362 $ 12,870,704 $ 1,111,982 $ 13,592 $ 25,255,956 % of Class 42.71 % 1.87% 50.96% 4.40% 0.05% 100.00% 2009 Taxes Owing $ 10,901,605 $ 280,612 $ 14,592,066 $ 1,117,858 $ 17,354 $ 26,909,495 % of Class 40.51% 1.04% 54.23% 4.15% 0.06% 100.00% TABLE 3 TABLE 4 Initial Amount Paid in Full Payment Arrangements Ongoing Collection Action Registered 405 405 103 109 255 257 22 14 25 25 405 405 26.9% 63.5% 3.5% 6.2% 100.0% November 2011 13 $ 1,314,138 May 2012 14 $ 571,294 Totals 37 $ 2,309,834 • NiagaraJialls January 17, 2011 C \N:t D.t REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development SUBJECT: PD- 2011 -02 Application to Regional Niagara for Funding under their Public Domain Incentives Program RECOMMENDATION PD- 2011 -02 That Council approve the associated resolution, listed under the resolution section of the agenda, requesting funding assistance from the Regional Municipality of Niagara of $100,000 under their Public Domain Incentives Program to assist in carrying out streetscape improvements for Downtown in 2011. EXECUTIVE SUMMARY The Regional Municipality of Niagara provides area municipalities with an opportunity to apply for funds for public realm improvements within Community Improvement Plan Areas. Staff is requesting Council to support an application to request $100,000 which, if approved, will be applied toward the proposed decorative streetscape improvements along Queen Street in 2011. BACKGROUND The City previously received approval of $100,000 for Downtown streetscape enhancements. The Region has assured staff that the money has been set aside in reserve for the City. The current funding request would be to secure a further $100,000 to be applied toward the Queen Street improvements. ANALYSIS The Regional Program contains certain eligibility guidelines including the following: the project must be a public realm improvement included within a community improvement plan area; priority will be given for streetscape improvement projects; the project design must be in compliance with urban design guidelines; and preference will be given to projects which include heritage and /or public art components and for partnership projects. The City is well positioned as all of the eligibility guidelines can be satisfied. As part of the submission requirements, the City is required to provide a resolution of support from Council by January 31, 2011. January 17, 2011 FINANCIAL IMPLICATIONS The streetscape work planned for Downtown includes expanded sidewalks for outdoor cafes, additional sidewalk improvements, raised flowerbeds, enhanced tree planting, benches, litter receptacles and public art. Staff is currently finalizing the design concepts with input from the Downtown BIA and local businesses. If the Region approves the additional funding, the City will be able to carry out additional streetscape improvements. A condition of Regional approval will be the placement of a plaque recognizing the partners and their respective contributions. CITY'S STRATEGIC COMMITMENT With a successful application to the Region, the City could realize an additional $100,000 toward streetscape improvements in the Downtown this year. It is important that there be support for public realm improvements as the Downtown BIA continues to encourage new businesses to establish, enhance the attractiveness of Downtown and encourage the economic revitalization for the area. Support by Council of a resolution to apply for Regional funding is appreciated. LIST OF ATTACHMENTS ► No attachments. Recommended by: Respectfully submitted: B.Bolibruck - 2 - PD- 2011 -02 &-tv 1,0-0-3 Alex Herlovitch, Director of Planning, Building & Development (%)//14 Ken Todd, Chief Administrative Officer S: \PDR\2011 \PD- 2011 -02, Funding Application to the Region under their Public Domain Incentives Program.wpd Niagaraaalls REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development SUBJECT: PD- 2011 -04 Partnering with Regional Niagara on a Residential Loan for Renaissance Retirement Suites Complex at 5698 Main Street - Dr. Nick Vaccaro RECOMMENDATION That City Council request the Region of Niagara to partner in providing a $500,000 Residential Loan for a 102 Retirement Home Complex located within the Historic Drummondville CIP Area. EXECUTIVE SUMMARY In August of 2009, City Council approved a Residential Loan and Revitalization Grant for Dr. Nick Vaccaro for a 102 Retirement Residence known as the Renaissance Retirement Suites Complex at 5698 Main Street. Rather than providing the entire $500,000 loan for the project, the City has an opportunity to partner with the Region, and both parties would share equally in the carrying costs of the 0% loan. The Region has requested a motion from Niagara Falls City Council of their desire to partner with the Region in providing the loan. BACKGROUND City Council approved a Residential Loan for $500,000 for the development of a 102 Retirement Home Complex at 5698 Main Street. The owner has been working for a few years on this project by consolidating lands and marketing the project. In the winter of 2009 -2010, the site was serviced with underground infrastructure. The Site Plan has been approved and building construction is planned to start in the spring of 2011. ANALYSIS /RATIONAL PD- 2011 -04 January 17, 2011 The Niagara Region has financial incentive programs similarto those of area municipalities that have Community Improvement Plans. As for Residential Loans, the Region has a program which provides an interest free loan of $20 per square foot of floor space to a maximum of $20,000 per unit. This program is the same as the City's program. Staff investigated a partnership with the Region on this application in order to share in the outlay of funds and the carrying costs of the approved $500,000 loan which is the maximum allowed under the Historic Drummondville CIP. The Region's Finance staff is prepared to take a report to Regional Council supporting a partnership, subject to receiving a motion of support from Niagara Falls Council. January 17, 2011 - 2 - PD- 2011 -04 FINANCIAL IMPLICATIONS The proposed partnership with the Region will result in both the Region and the City foregoing any interest revenue on the loan to be provided to the property owner. This forgiveness of interest charges is the benefit of the incentive program. It is estimated that based on assumed construction schedules and current interest rates, the borrowing charges foregone will be approximately $51,000. Based on the Regional Incentive Program, the estimated interest expense will be shared equally by the City and the Region. Once the project is completed and monies advanced, City staff will provide Regional staff with the annual interest charges. The City's proportionate share of the interest charge will be funded from the Historic Drummondville CIP Reserve. The reserve is sufficient at this time to fund the estimated future interest amount. CITY'S STRATEGIC COMMITMENT The implementation of the financial incentives programs for this project will help stimulate development within the medical precinct section of the Historic Drummondville area. The retirement residence is in close proximity of the Greater Niagara General Hospital Site and will be a welcomed project in the area. LIST OF ATTACHMENTS ► Schedule 1 - Location Map of the Renaissance Retirement Suites Complex - 5698 Main Street. Recommended by: Respectfully submitted: B.Bolibruck Attach. Alex Herlovitch, Director of Planning, Building & Development n Todd, Chief Administrative Officer S: \PDR\2011 \PD- 2011 -04, Partner with Regional Niagara on a Residential Loan for 5698 Main Street.wpd January 17, 2011 - 3 - SCHEDULE 1 PD- 2011 -04 LO Y Slue �1= 11118,% 111111111 m 111111 1111111 11 lI all • Nia a IIs Subject Lands ll111111i11111 i Legend E Subject Lands Main & Ferty QP Property Parcels L Hydro ,11 11� aar En • a ®'y Nor :rr - IOW alr ' 1 6 1-# NiagaraJalls January 17, 2010 REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development SUBJECT: PD- 2011 -05 Review of Rates for Sidewalk Cafes RECOMMENDATION EXECUTIVE SUMMARY BACKGROUND PD- 2011 -05 1. That based upon the ongoing road and streetscape construction within the Downtown and Historic Drummondville CIP areas that the lease rate for outdoor cafes be waived in 2011. 2. That a new lease rate for sidewalk cafes be applied within the Downtown and Historic Drummondville CIP areas of $10.00 per square metre in 2012. City staff carried out a survey of pedestrian traffic within the Downtown and Historic Drummondville CIP areas, and the Centre Street and Victoria Avenue tourist area in order to consider different lease rates for sidewalk cafes in these areas. The pedestrian counts were considerably higher within the tourist area and due to this fact, staff is recommending that there be a different lease rate for the tourist areas versus the City's two CIP areas. However, due to ongoing construction within the CIP areas this year, it is recommended that the lease rate be waived in the two CIP areas in 2011. The new reduced lease rate will be applied in 2012. On May 10, 2010, City Council approved Staff report PD- 2010 -38 which resulted in the following: that staff investigate an appropriate rate per square metre to be charged for sidewalk cafes and report back to Council prior to 2011; that there be a one time application fee of $500 for sidewalk cafe applications; that due to the disruption of infrastructure and road work along Queen Street this year, the annual charge for sidewalk cafes be waived for 2010; and a permit system be implemented that delegates authority to issue permits by staff. City staff has implemented all of the above noted recommendations with the exception of the first recommendation dealing with reporting back to Council on an appropriate lease rate for sidewalk cafes. It is for this reason that staff is reporting to Council at this time. January 17, 2010 - 2 - PD- 2011 -05 During the summer of 2010, a student employee carried out a pedestrian count survey of three locations. One was in the Downtown area; the second was in the Historic Drummondville area and a third at the tourist area of Centre Street and Victoria Avenue. ANALYSIS There is a total of 24 sidewalk cafes that involve the leasing of City land. The sidewalk cafes are listed in Appendix 1 with the size of the licensed area and the current licence fee. The sidewalk cafes are mapped and shown in Appendix 2. A total of nine (9) cafes are in the Downtown area. All but one of these sidewalk cafes have opened within the last three years. There are no sidewalk cafes in the Historic Drummondville area. There are 14 sidewalk cafes in the Centre Street and Victoria Avenue tourist area and one (1) along Victoria Avenue near McRae Street. Currently, all sidewalk cafe owners pay the same lease rate. Staff was asked to investigate a lease of City land which would be more fair on a per square metre basis. The purpose of conducting the foot traffic survey was to collect data on the number of people walking within the subject areas where sidewalk cafes occur or can occur. As one would expect, there was quite a difference in the amount of pedestrian traffic found when the tourist area was compared to the CIP areas. In the Centre Street and Victoria Avenue tourist area, the average number of people per hour was 761. The tourist area had more than ten times the number of people experienced in the Downtown area where the average number of people per hour was 65 and considerably more than the number experienced in the Historic Drummondville area where the average number of people per hour was 45. Most of the counts were taken during the day, with one count within each area taken during the early evening. The pedestrian counts with dates and time of day are summarized in Appendix 3. Due to the difference in foot traffic between the surveyed areas, there is some rationale for treating the CIP areas differently than the tourist area when considering a revised lease rate for sidewalk cafes. The current rate charged by the City for sidewalk cafes is $25.00 per square metre. This rate should continue for the tourist core. While it is recommended that the lease rate be waived within the CIP areas in 2011, it is recommended that the lease rate for these areas be $10.00 per square metre in 2012 to reflect the lower percentage of pedestrians in CIP areas. FINANCIAL IMPLICATIONS By waiving the lease rate in 2011 and lowering the lease rate in 2012 in the CIP areas, there will be an impact on the projected revenue for sidewalk cafes. However, losses may be offset by creating an incentive for additional sidewalk cafes in the Downtown and Historic Drummondville areas. It is desirable to create a more pedestrian friendly environment within the CIP areas and the initiative of lowering the lease rates should provide a more desirable impact. It is hoped that once the streetscape improvements are completed in Historic Drummondville there will be interest in establishing sidewalk cafes. CITY'S STRATEGIC COMMITMENT The consideration of lower lease rates for sidewalk cafes within the City's CIP areas should have a positive impact in satisfying Council's strategic priorities by strengthening and promoting economic development in the CIP areas. January 17, 2010 LIST OF ATTACHMENTS ► Appendix 1 - Summary of Existing Sidewalk Cafes ► Appendix 2 - Map Showing Sidewalk Cafes ► Appendix 3 - Survey of Foot Traffic Recommended by: Respectfully submitted: B.Bolibruck Attach. Au4 IJ,,, Ri; Alex Herlovitch, Director of Planning, Building & Development S: \PDR\2011 \PD- 2011 -05, Review of Rates for Sidewalk Cafes.wpd - 3 - PD- 2011 -05 Ke Todd, Chief Administrative Officer January 17, 2010 APPENDIX 1 PD- 2011 -05 'Revised Fee 1 $213.001 1 $184.001 100'£176$ 100'68£$ I °L'L££$ IO£'ZZZ$ I0L'Ob8$ $248.601 10S'68L$ 00'SSS$ SZ'LSE'Z$ 1SZ'9 6$ $792.501 10S'96L' 6$ 100'099$ 100'689$ ISL'SOS$ $676.25 1 $668.251 $344.251 109'£61.$ 10S'S 6S$ $286.501 1I09'86L'176$ !Licence Fee 1 $532.50 SL'0817$ 00'0917$ 0S'LS£$ L_ $952.50 $844.25 SL'SSS$ SL' I. 0 6' Z$ OS' 6Z9$ OS'68L$ 00'SSS$ SZ'LSE'Z$ SZ'9617'6$ 09'Z6L$ OS'96L' 6$ 00' 00'689$ SL'SOS$ SZ'9L9$ $668.251 I (09'£6 6$ 0S'S 6S$ $286.501 10S'Z176'86$ (w bs) eaay EZ'66 17 '86 £ '176 6'8£ LL'££ EZ'ZZ L0'178 98'172 8S' 6E Z 6'176 S9'9S L' 6£ 98'6L I Z 99'£Z £Z'OZ SO'LZ £L'9Z ILL I17L L Z9'0Z 1917' 6 1. g in the City as of Ju Community Location Downtown Downtown Downtown Downtown - Downtown Downtown UMO;UMOQ Downtown UMO ;UMOQ Victoria Avenue Area Tourist Area Tourist Area Tourist Area Tourist Area Tourist Area Tourist Area ,Tourist Area Tourist Area Tourist Area Tourist Area Tourist Area Tourist Area Tourist Area Tourist Area illl 'TOTAL 'Address 14388 Ontario Street 1 4613 Queen Street 14337 Queen Street 14317 Queen Street 14572 Queen Street 4410 Queen Street 4437 Queen Street 4573 Queen Street 4618 Erie Avenue 5259 Victoria Avneue 5785 Victoria Avenue 4960 Clifton Hill 5657 Victoria Avenue 5845 Victoria Avneue ;aa4s uietAl 9ZS9 5077 Centre Street 5677 Victoria Avenue ,5759 Victoria Avenue 5657 Victoria Avenue 5645 Victoria Avenue 5234 Ferry Street 5809 Victoria Avenue 5633 Victoria Avenue 4967 Clifton Hill 1 Name of the Cafe MollN11 'Paris Bistro 1Mide Bistro 1Queen's Restaurant That's Amore Pizzeria Cocoa Bean keun8 Daily Planet/Grand Central 1 Edwins Sports Beat Bar & Grill Antica Pizzeria s,Aesl ei seegalddv The Love Boat Steak & Seafood Country Chalet Restaurant Golden Steer Steak House Cheroz 1 Montana's Cookhouse Remington's of Montana Monticello Grille & Wine Bar Pilgrim Motor Inn 1 Tarboosh Mediterranean Grill The Wild Mushroom 1 1 ;aueld emoouas 'oN N M V IA <O h 00 OA OL 6� _Z6 I tit. 17 5� 9L LI. 81 66 OZ �Z L J £Z I 'r 2 January 17, 2010 APPENDIX 1 PD- 2011 -05 January 17, 2010 - 5 - APPENDIX 2 PD-2011-05 Daily Planet / Grand Central I it Paris Bistro 11 1. I DODEIV i7 iLII1_ IIiiiLU kinninuon Monticello Grille & Wine Bar Pilgrim Motor Inn Queen's Restaurant That's Amore Pizzeria ; r Balzacs u II I I / Cocoa Bean / 11 11 11 )1/ Golden Steer Steak House The Love Boat Steak & Seafood • '11 II:111 Niagarap0 Sidewalk Cafes Sidewalk Cafe Property Parcel River Road - International Border - U.S.A. in Sidewalk Cafe Areas - Summer 2010 6:00 pm to I 6:30 pm 68 1 Victoria Avenue & Cei 1:30 pm to 2:30 pm 1 600 6 6001 19L 10:OO am to 111:00 am 1 Z09 6ZZ6 w gp:g o; wd gb:g I£6 4 Historic Drummou wd OE :Z o ;wdOE: 2 LS 911 W 10:00 am to 11:00 am LE 6E 0L umo ;uMoa wd 00:g o; wd 0£3, 6Z 0 6£ OE:Z wdgs: 9L 891 we 0016 o; we 00:01 in LO 0 h LZ1 31VaI (August 4 (August 6 !August 9 1 (August 11 'August 18 !August 20 (August 25 I !September 1 1e;ol Average per Hour January 17, 2010 6- APPENDIX 3 PD -2011 -05 NiagaraFa11s REPORT TO: SUBMITTED BY: SUBJECT: RECOMMENDATIONS 1. That a stopping prohibition be established on both sides of Oakwood Drive between a point 120 metres north of McLeod Road to a point 120 metres south of McLeod Road. 2. A standing prohibition be established on the east and west sides of Oakwood Drive between a point 120 metres south of McLeod Road to a point 145 metres south of McLeod Road for a Niagara Falls Transit bus stop. 3. That a stopping prohibition be established on both sides of Oakwood Drive between a point 145 metres south of McLeod Road to a point 900 metres south of McLeod Road. 4. That the bike lanes on both sides of Oakwood Drive be designated by municipal bylaw. EXECUTIVE SUMMARY BACKGROUND ANALYSIS /RATIONALE Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario Transportation Services Department TS- 2011 -02 Oakwood Drive - Parking Review TS- 2011 -02 January 17, 2011 To ensure that the bike lanes and the adjacent vehicular traffic lane are kept free of parked or stopped vehicles, a stopping prohibition is required within the limits of the road improvements. The bike lanes will be signed and marked in accordance with current practice. Two new on- street transit stops will be established to the commercial node. Oakwood Drive has been reconstructed to meet the projected traffic demands of the new SmartCentres development, anchored by a WaI -Mart superstore. Bike lanes have been included in the improvement plans as Oakwood Drive is designated as a bicycle route in the City's Trails and Bikeways Master Plan. Improvements to Oakwood Drive consisted of urbanizing the road with curb and gutter on both sides, and a grass boulevard and a continuous concrete sidewalk along the west side with regularly- spaced street light poles. Oakwood Drive now consists of four basic lanes (two in each direction) and a bike lane on both sides. Two sets of traffic signals will be installed on Oakwood Drive at the two main accesses to the WaI -Mart site. January 17, 2011 Given the projected traffic demands estimated for Oakwood Drive, all four lanes will be required for traffic progression. Transit will also be providing service to this new commercial district and Smart Centres has included a transit terminal on their property to accommodate transit riders. Transit Services Staff has also expressed a desire to establish transit stops on both sides of Oakwood Drive next to the Petro Canada. These stops are intended to provide a convenient stop for employees of McDonald's and Petro Canada. Once a new eastbound right turn lane on McLeod Road at Oakwood Drive is constructed, the bus stop will be removed from that location. Furthermore, bicycle lanes on both sides of the road have been included in the Oakwood Drive reconstruction plans. Further improvements in the area will be undertaken by the Niagara Region to the McLeod Road and Oakwood Drive intersection. Given the extent of the improvements, vehicles parked or stopped on either side of Oakwood Drive will impede traffic progression within the entire bike lane and a portion of the travel lane. The northern end of the proposed stopping prohibition will be north of McLeod Road to the extent of the future left turn taper. The southern end of the stopping zone will extend to the southern periphery of the SmartCentres land. Each development abutting Oakwood Drive has provided sufficient on -site parking to meet their respective zoning. Each development has also make allowances for deliveries to be unloaded on their own lands, so that any street loading is not required. The property along the entire extent of the east side of Oakwood Drive is owned by the Hydro commission. FINANCIAL /STAFFING /LEGAL IMPLICATIONS The application of the painted bike lane symbols has been included in the construction contract. The installation of the stopping prohibition and bike lane signs is to be carried out by Transportation Services staff. The labour and material costs are accounted for in the 2011 General Purposes Budget. The cost estimate for the aforementioned work is $4,200. LIST OF ATTACHMENTS Study Area drawing. Recommended by: Respectfully submitted: -2- TS- 2011 -02 Karl Dren, Director of Transportation Services Ke Todd, Chief Administrative Officer ;; NiiagaraJ?q Is Parking Review •• - IN . Proposed "No Stopping" Zone Proposed "No Standing" Zone Existing Traffic Signal Future Traffic Signal Niagaraaa11s REPORT TO: SUBMITTED BY: SUBJECT: RECOMMENDATION That a stop sign is installed facing northbound motorists on Finlay Avenue at Symmes Street. EXECUTIVE SUMMARY A stop sign is warranted facing northbound traffic on Finlay Avenue at Symmes Street. Drivers will be required to complete a full legal stop before entering the intersection. BACKGROUND ANALYSIS /RATIONALE Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario Transportation Services Department TS- 2011 -05 Finlay Avenue at Symmes Street Intersection Control Review TS- 2011 -05 January 17, 2011 City Staff has been requested to investigate the feasibility of installing a stop sign at the intersection of Finlay Avenue at Symmes Street. At present time the study intersection is controlled by the basic right -of -way rule. The intersection of Finlay Avenue and Symmes Street is in a "tee" configuration consisting of south and east/west approaches. Finlay Avenue is a local residential roadway extending one block in a north /south direction between Symmes Street and Murray Street. The roadway is 9 metres in width consisting of a grass boulevard and a concrete sidewalk on each side. Symmes Street is a minor collector roadway extending in an east/west direction between Drummond Road and Main Street. At the west approach of the study intersection the roadway is 8 metres in width consisting of a grass boulevard and a concrete sidewalk on each side. On the east approach, Symmes Street widens to 9 metres consisting of a curb face concrete sidewalk on each side. Study results indicate that a stop control is warranted at the intersection of Finlay Avenue and Symmes Street facing northbound traffic. Symmes Street extends only 55 metres to the east of the study intersection terminating at Main Street. Therefore it is imperative for northbound motorists on Finlay Avenue to complete a full legal stop and ensure that no conflicting traffic is approaching on the short roadway segment of Symmes Street between Main Street and Finlay Avenue. The recommended stop sign will reduce the collision potential by clearly assigning the right -of -way at the study location. A review of the collision files reveals that there were no collisions reported in the previous three years. January 17, 2011 2 TS- 2011 -05 FINANCIAL/STAFFING /LEGAL IMPLICATIONS The installation of the stop sign is carried out by Transportation Services staff. The labour and material cost is accounted for in the 2011 General Purposes Budget. Cost studies estimate that the cost to install the sign is approximately $150. LIST OF ATTACHMENTS Study Area drawing. Recommended by: Respectfully submitted: f ' Karl Dren, Director of Transportation Services Ken Todd, Chief Administrative Officer NiagaraaalIs TS- 2011 -05 Finlay Avenue at Symmes Street Intersection Control Review Proposed Stop Sign NORTH NU I0ILAIE Niagarafalls REPORT TO: SUBMITTED BY: SUBJECT: RECOMMENDATION 1. That Council award the contract for all on- street recycling receptacle bins and pedestrian barriers to Creative Outdoor Advertising for a period of five (5) years; 2. That the Mayor and Clerk be authorized to execute the necessary agreements. EXECUTIVE SUMMARY Requesting Council approve the tender contract to Creative Outdoor Advertising for the duration of five (5) years for the installation, maintenance and advertising space on recycling receptacles and pedestrian barriers on designated roadways within the City of Niagara Falls. BACKGROUND Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario Transportation Services Department TS- 2011 -07 RFP For On- street Recycling Receptacle Bins and Pedestrian Barriers TS- 2011 -07 January 17, 2011 In 2001 O.M.G Media Limited approached the City of Niagara Falls to provide services for on- street recycling receptacles and pedestrian traffic barriers with advertising surfaces. Not having any other company interested in providing this service O.M.G Media Ltd. was awarded the contract and a portion of revenue generated from placement of bins and handrails was given back to The City of Niagara Falls on a biannual basis. O.M.G media later sold off part of its regional allocation to the newly formed O.M.G. Niagara Ltd. which continued to maintain the City of Niagara Falls contract. The average revenue per receptacle and handrail was $14.95 per month with approximately ten bins and ten handrails in use as of 2009. The vendor is responsible for maintaining the street hardware in clean and proper working order with collection of any recycling materials being done by the Niagara Region. With the conclusion of the current contract, a Request for Proposal was issued with three responses: O.M.G Niagara Ltd. Creative Outdoor Advertising (COA) Eco -Media Direct Incorporated Proposals were reviewed and evaluated by a committee independently on factors such as revenue, maintenance strategy, relevant experience and added value to the Municipality. The vendor rating the highest on these evaluations was Creative Outdoor Advertising. January 17, 2011 2 TS- 2011 -07 ANALYSIS /RATIONALE The product provides an eco- friendly alternative for waste disposal for the public with recycling options as well as safety barriers to be installed in areas where City staff has deemed it necessary to provide a physical separation between the public and motorists. All products provide potential revenue to the City of Niagara Falls for the use of advertising on the products surface space. Creative Outdoor Advertising provided the best maintenance programs with high response times for cleaning and support as well as a higher financial return to the Municipality for each unit. Creative Outdoor Advertising also provided a number of added value options such as variations of receptacle types to meet the diverse street architecture of the City's BIA's. In addition, Creative Outdoor Advertising employs local people for their maintenance program. Standard Unit Added Value Unit Company Bid Quote per unit Yearly Revenue projection based on current 7 bins and 5 handrails OMG Niagara Ltd $15.00 per month per unit for 18 months and $20.00 per unit revenue thereafter $2160.00 for the 1s year $2520.00 for 2' year $2880.00 for 3r to 5,h year Eco -media Direct $3.00 per unit per month or 10% of revenue from advertising (whichever is greater) $432.00 per year based on base revenue of $3.00 (advertising revenue unknown) Creative Outdoor Advertising $25.00 per unit per month or 25% of revenue from advertising (whichever is greater) $3600.00 per year based on base revenue of $25.00 (advertising revenue unknown) January 17, 2011 FINANCIAL IMPLICATIONS Revenue Comparison Guaranteed revenue to the City is approximately $300 per year per receptacle bin, however, higher revenue may be achieved based on advertising revenue generated by the vendor. With the current 12 existing locations of bins and handrails, the City can expect approximately $3,600.00 in revenue in 2011, not including revenue from advertising and potential for greater value once more bins have been approved for installation, based on areas needs and BIA approvals. Recommended by: Respectfully submitted: 2 Karl Dren, Director of Transportation Services Ken Todd, Chief Administrative Officer Paul Brown V:\2011 COUNCIL\2011 01 17 \TS- 2011 -07 RFP for Onstreet Receptacles Bins and Barriers.wpd TS- 2011 -07 Community Services Department Municipal Works Inter - Department Memorandum TO: Mayor James M. Diodati and Members of Council FROM: Geoff Holman, C.E.T. Director of Municipal Works Ext. 4219 RE: Infrastructure Stimulus Fund (ISF) Program - Request for Extension Niagarapalls ca�ana DATE: January 17, 2011 The Federal and Provincial governments have agreed to extend the deadline for the completion of stimulus projects funded under this program from March 31st, 2011 to October 31st, 2011. A written request for an extension is required prior to January 17 2011 which must include; a) A list of all approved projects that require the extension; b) A revised financial forecast up to March 31 2011 and October 31 2011; c) A detailed construction schedule; and d) A Council resolution committing to finish the project and accepting responsibility for any costs incurred beyond the deadline. Staff have submitted items a to c and a draft copy of the resolution (item d) which will be included in tonight's agenda. Attached for your reference is a copy of the status report for each project approved under the funding program. If you need additional information or clarification please contact this office. GH /st Attachment Geoff Holman, C. .T. Working Together to Serve Our Community Municipal Works • Fire Services • Parks, Recreation & Culture • Business Development • Buildinq & By -Law Services 0 O . E 76' 0 • 0 0 V c - a o E 0 0. 0 0 u 0 rc O _ c 4., or o 8 2 0 0) u_ 0) 0 CO 0 o CV 0 co c T13 O > 0 ct : c , 7 ▪ cll '7 2 0 4 -0 ; c of 2 E: 3 o O CO /4' CD OD ' c0 CV CV Community Services Department Municipal Works Inter - Department Memorandum TO: Mayor James M. Diodati and Members of Council FROM: Geoff Holman, C.E.T. Director of Municipal Works Ext. 4219 RE: Recreational Infrastructure Canada (RinC) Ontario Recreation Program - Request for Extension Niagaraaalls can.aoA DATE: January 17, 2011 The Federal and Provincial governments have agreed to extend the deadline for the completion of stimulus projects funded under this program from March 31 2011 to October 31 2011. A written request for an extension is required prior to January 17 2011 which must include; a) A list of all approved projects that require the extension; b) A revised financial forecast up to March 31 2011 and October 31 2011; c) A detailed construction schedule; and d) A Council resolution committing to finish the project and accepting responsibility for any costs incurred beyond the deadline. Staff have submitted items a to c and a draft copy of the resolution (item d) which will be included in tonight's agenda. Attached for your reference is a copy of the status report for each project approved under the funding program. If you need additional information or clarification please contact this office. GH /st Attachment Geoff Holman, C.E.T. Working Together to Serve Our Community Municipal Works • Fire Services • Parks, Recreation & Culture • Business Development • Building & By -Law Services Community Services Department Municipal Works Inter- Department Memorandum TO: Mayor James M. Diodati DATE: January 4, 2011 and Members of Council FROM: Geoff Holman, C.E.T. Director of Municipal Works Ext. 4219 RE: Combined Sewer Overflow/Municipal Assistance Program Region of Niagara Funding Application 6. Second Avenue - Bridge Street to Hamilton Street $140,000 Sewer Separation Total Eligible Cost Estimate $2,034,000 Total Amount of Application (50 %) $1,017,000 If you require additional information or clarification please contact this office. GH/st Geoff olman, C.E.T. Niagaraaalls C{ N A D A The Region of Niagara has established a funding program to assist local area municipalities address wet weather flow problems that result in basement flooding or discharges into the natural environment. Regional Council has historically set aside up to $6 million dollars for this funding program which provides subsidy of up to 50% of the eligible project costs. The deadline for application is January 21", 2011 which must include a Council resolution confirming its commitment to the proposed project (if approved). The resolution is included in the January 17 2011 Council Agenda. The City of Niagara Falls is committed to its sewer separation and combined sewer overflow (CSO) removal efforts identified in various studies and Master Plans. Staff are proposing that the City make applications under the CSO/MAP program for the following projects: Project Name Eligible Cost Estimate 1. Chippawa Sewer Flooding Relief $450,000 Storage Tank/Piping (Engineering Only) 2. Drummond Road - Lundy's Lane to Ker St. $130,000 Sewer Separation 3. Spring Street - Stanley Avenue to West Limit $420,000 Sewer Separation 4. Bridge Street - Victoria Avenue to Erie Avenue $604,000 Sewer Separation 5. McRae Street - Victoria Avenue to Fourth Avenue $290,000 Working Together to Serve Our Community Municipal Works • Fire Services • Parks. Recreation & Culture • Business Development • Buildina & By -Law Services The City of Niagara Falls, Ontario Resolution No. Moved by Councillor Seconded by Councillor WHEREAS Draft Plan of Subdivision and Zoning By -Law Amendment Application 26T-11-2009-01/ AM- 30/2009 (Fernwood Phase III), proposes the creation of ninety -six (96) single detached lots, two (2) townhouse blocks and the implementation of appropriate zone categories; and WHEREAS the applicant has revised the depth of lots and blocks along the north lot line and adjusted the width and depth of certain lots elsewhere in the project; and WHEREAS there is no change in the number of lots or blocks to be created or any change in the zone requirements of the amending by -law; and WHEREAS the December 13, 2010 meeting complied with the requirements of the Planning Act to hold one statutory public meeting and associated notice provisions; and THEREFORE BE IT RESOLVED THAT the Council of the Corporation of the City of Niagara Falls hereby determines in accordance with Section 34(17) of the Planning Act, R.S.O., that the changes to the Draft Plan of Subdivision are minor in nature and do not require any further notice. AND The Seal of the Corporation be hereto affixed. DEAN IORFIDA JAMES M. DIODATI CITY CLERK MAYOR Program Project number Project Title Total eligible cost ISF 2085 rummond Road Reconstruction $6,300,000 ISF 2864 owntown Infrastructure Revitalization $2,667,100 RinC 2441 pgrades to Oakes Park $215,000 RinC 2442 atrick Cummings Memorial Sports Park $1,963,500 RinC 2443 alar Park Accessible Washroom $330,000 RinC 2444 .11. Leslie Splash Pad & Swimming Pool $270,000 RinC 2529 xpansion of Millennium Trail $370,000 RinC 2530 .E. Mitchelson Wading Pool $250,000 The City of Niagara Falls, Ontario Resolution No. Moved by Councillor Seconded by Councillor WHEREAS the federal and provincial governments are providing a one -time extension of the deadline for funding of projects under the Infrastructure Stimulus Fund, Building Canada Fund — Communities Top -Up, the Recreational Infrastructure Canada/Ontario Recreation Program, and the Knowledge Infrastructure Program from March 31, 2011 to October 31, 2011; and WHEREAS all funding from the Government of Canada and Ontario will cease after October 31, 2011; and WHEREAS the City of Niagara Falls has asks the provincial government for an extension to federal and provincial funding to October 31, 2011 for the following projects: THEREFORE BE IT RESOLVED THAT the City of Niagara Falls attests that it will continue to contribute its share of the required funding for the aforementioned projects; and FURTHER BE IT RESOLVED THAT actual claims for all eligible costs incurred by March 31, 2011, for the aforementioned projects must be and will be submitted no later than April 30, 2011; and FURTHER BE IT RESOLVED THAT the City of Niagara Falls will ensure that the project will be completed. AND The Seal of the Corporation be hereto affixed. DEAN IORFIDA JAMES M. DIODATI CITY CLERK MAYOR The City of Niagara Falls, Ontario Resolution No. Moved by Seconded by WHEREAS the Regional Municipality of Niagara (the Region) has had a Public Domain Incentives Program (the "Program ") in place since 2008; and WHEREAS municipalities that have a Community Improvement Plan (CIP) in place for an area can apply for funding to a maximum amount of $100,000; and WHEREAS the City has received past approval under the Program, for Downtown streetscape enhancements; and WHEREAS the City is well positioned to satisfy the eligibility requirements, which emphasizes public realm and streetscape improvements; and WHEREAS the proposed improvements for the Downtown include expanded sidewalks for outdoor cafes, additional sidewalk improvements, raised flowerbeds, enhanced tree planting, benches, litter receptacles and public art. THEREFORE BE IT RESOLVED that the Council of Corporation of the City ofNiagara Falls supports an application to Regional Municipality of Niagara for funding under the Public Domain Incentives Program for the Public Realm Improvements for the Downtown C.I.P. area. AND The Seal of the Corporation be hereto affixed. DEAN IORFIDA JAMES M. DIODATI CITY CLERK MAYOR The City of Niagara Falls, Ontario Resolution No. Moved by Councillor Seconded by Councillor WHEREAS the stormwater and wastewater infrastructure that serves the city ofNiagara Falls has been under increasing stress in recent years; and WHEREAS the older infrastructure results in basement flooding or discharges into the natural environment during heavy rain or snow melt; and WHEREAS a combined sewer abatement (CSO) strategy was adopted by Niagara Falls City Council in 2008; and WHEREAS the Regional Municipality of Niagara has a municipal assistance program for CSO's, in which it funds 50% of eligible project costs. THEREFORE BE IT RESOLVED that the Council of Corporation of the City of Niagara Falls supports an application to Regional Municipality of Niagara for the following projects: Project Name 1. Chippawa Sewer Flooding Relief Storage Tank/Piping (Engineering Only) 2. Drummond Road - Lundy's Lane to Ker St. Sewer Separation 3. Spring Street - Stanley Avenue to West Limit Sewer Separation 4. Bridge Street - Victoria Avenue to Erie Avenue Sewer Separation 5. McRae Street - Victoria Avenue to Fourth Avenue Sewer Separation 6. Second Avenue - Bridge Street to Hamilton Street Sewer Separation AND FURTHER BE IT RESOLVED that upon funding under the CSO municipal assistance program, the aforementioned projects will be identified in the City's Capital Budget. AND The Seal of the Corporation be hereto affixed. DEAN IORFMA JAMES M. DIODATI CITY CLERK MAYOR A by -law to amend By -law No. 2008 -224, being a by -law to prohibit or regulate the placing or erecting of signs, notices, and advertising devices on public and private property within the City of Niagara Falls. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. By -law No. 2008 -224 is amended by adding the following subsection: "19.10 Site Specific Provisions Passed this seventeenth day of January 2011. First Reading: Second Reading: Third Reading: SIGNS 2010 BYL,4 Nr -kr SBA-2011)-003 11p 19.10.2 Notwithstanding any provisions contained in section 7.1 hereof to the contrary, one fascia sign composed entirely of an electronic video screen having a maximum sign area of 5.02 square metres, shall be permitted on the south elevation of the building located on the lands on the east side of Portage Road, south of Keith Street and being PIN 64278- 0062(LT), that are associated with the dentist office located at 3690 Portage Road. The sign shall not be used for third party advertising." DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR January 17, 2011 January 17, 2011 January 17, 2011 CITY OF NIAGARA FALLS By -law No. 2011- A by -law to provide for the adoption of Amendment No. 98 to the City of Niagara Falls Official Plan. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS, IN ACCORDANCE WITH THE PLANNING ACT, 1990, AND THE REGIONAL MUNICIPALITY OF NIAGARA ACT, HEREBY ENACT AS FOLLOWS: 1. The attached text constituting Amendment No. 98 to the City of Niagara Falls Official Plan is hereby adopted. Passed this seventeenth day of January, 2011. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: January 17, 2011 January 17, 2011 January 17, 2011 CITY OF NIAGARA FALLS By -law No. 2011 - S: \OFFICIALPLN\AMEND \#98 - Mountainview Homes (Niagara) Ltd \By- law_98.wpd PART 2 - BODY OF THE AMENDMENT All of this part of the document entitled PART 2 - BODY OF THE AMENDMENT, consisting of the following text, constitute Amendment No. 98 to the Official Plan of the City of Niagara Falls. DETAILS OF THE AMENDMENT The Official Plan of the City of Niagara Falls is hereby amended as follows: 1. TEXT CHANGE PART 2, SECTION 14 - SPECIAL POLICY AREAS is hereby amended by deleting Subsection 53 in its entirety and replacing it with the following: 14.53 SPECIAL POLICY AREA "53" Special Policy Area "53" applies to approximately 11 hectares of land located north -east of the Drummond Road and Oldfield Road intersection. The lands are designated Residential and Environmental Protection Area. 14.53.1 The Residential policies of the Plan will apply to the area designated Residential with a Special Policy Area designation that permits the development of the land subject to the following policies: a) A maximum of 321 dwelling units may be developed on the land consisting of a mix of townhouse units, single- detached dwellings and one apartment building with a maximum height of 10 storeys. b) Development will be subject to Plan(s) of Condominium which shall implement site controls including grading and storm water management. Also through Plan(s) of Condominium and /Site Plan agreements, a tree preservation plan shall be completed to determine the extent of treed areas outside of Environmental Protection Areas that are to be protected and the measures to implement protection to the satisfaction of the City and the Regional Municipality of Niagara. c) The residential units shall be developed in an attractive landscaped setting and shall be designed in a manner to ensure land use compatibility. 14.53.2 -2- S: \OFFICIAL.PLN\AMEND \ #98 - Mountainview Homes (Niagara) Ltd \BODY_98.wpd No development or site alteration shall be permitted within the areas designated Environmental Protection Area. An area of natural regeneration along the southerly limit of the hydro corridor shall be delineated through the Plan(s) of Condominium. Conservation easements within the back yards of the lots abutting the natural regeneration area and along Drummond Road will protect those trees and shall be required through Plan(s) of Condominium. CITY OF NIAGARA FALLS By-law No. 2011 - A by -law to amend By -law No. 79 -200, to permit a residential condominium development on the Lands and to repeal By -law No. 2007 -236. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. The Lands that are the subject of and affected by the provisions of this by -law are described in Schedule 1 of this by -law and shall be referred to in this by -law as the "Lands ". Schedule 1 is a part of this by -law. 2. The Lands shall be identified as five parcels, known as Parcels R1 D-925, R1 E -926, R3 -927, R5F -928 and EPA -929. 3. The purpose of this by -law is to amend the provisions of By -law No. 79 -200, to permit the use of the Lands in a manner that would otherwise be prohibited by that by -law. In the case of any conflict between a specific provision of this by -law and any existing provision of By -law No. 79 -200, the provisions of this by -law are to prevail. 4. Notwithstanding any provision of By -law No. 79 -200 to the contrary, the following uses and regulations shall be the permitted uses and regulations governing the permitted uses on and of the Lands. 5. The permitted uses shall be: (a) For Parcel RID -925, the uses permitted in a R1D zone (b) For Parcel R 1 E -926, the uses permitted in a R1 E zone (c) For Parcel R3 -927, the uses permitted in a R3 zone (d) For Parcel R5F -928, the uses permitted in a R5F zone (e) For Parcel EPA -929, conservation use 6. The regulations governing the permitted uses on Parcel R1 D -925 shall be: (a) Minimum lot frontage (b) Minimum front yard depth (c) Minimum rear yard depth 12 metres 1.5 metres (i) where no portion of a lot is 7.5 metres zoned EPA -929 (ii) where a portion of a lot is zoned EPA -929 (d) Minimum interior side yard width, subject to the provisions of clause (a) of section 5.1 of By -law No. 79 -200 (e) Minimum exterior side yard width (i) where no portion of a lot is zoned EPA -929 (I) for a dwelling -2- (II) for the garage portion of a dwelling with driveway access to the exterior side yard (ii) where a portion of a lot is zoned EPA -929 (f) Accessory buildings and accessory structures 7.5 metres to the EPA -929 zone boundary, save and except for lots located between points A and B on Schedule 1 attached to this by -law where the minimum rear yard depth shall be 6 metres to the EPA -929 zone boundary 1.2 metres 1 metre 4 metres 7.5 metres to the EPA -929 zone boundary, save and except for lots located between points C and D on Schedule 1 attached to this by -law where the minimum exterior side yard width shall be 0.9 metres to the EPA -929 zone boundary (i) no accessory building or accessory structure shall be erected on a corner lot closer than 1 metre to the side lot line, and closer than 3.75 metres to an EPA - 929 zone boundary (ii) where no portion of a lot is zoned EPA -929, an accessory building or accessory structure may be erected in a rear yard of a lot provided that it shall not be less than 1.8 metres to a main wall of any dwelling on such lot and shall comply with subclauses (i) and (ii) of clause (d) of section 4.13 of By -law No. 79 -200 (iii) where a portion of a lot is zoned EPA -929, an accessory building or accessory structure may be erected in a rear yard of a lot provided that it shall not be less than 1.8 metres to a main wall of any dwelling on such lot and located no closer than 3.75 metres to the EPA -929 zone boundary (v) -3- (iv) where no portion of a lot is zoned EPA -929, a one storey porch, with or without a roof, may project into a required rear yard a distance of not more than 2.5 metres provided that there is no enclosure of such porch and in no event shall any part of such porch be closer than 1.5 metres to any street line where a portion of a lot is zoned EPA -929, a one storey porch, with or without a roof, may project into a required rear yard a distance of not more than 2.5 metres provided that there is no enclosure of such porch and in no event shall any part of such porch be closer than 1.5 metres to any street line and be closer than 3.75 metres to the EPA -929 zone boundary (g) The balance of regulations specified for an RID use 7. The regulations governing the permitted uses on Parcel RI E -926 shall be: (a) Minimum lot area 269 square metres (b) Minimum lot frontage 9.7 square metres (c) Minimum front yard depth 1.5 metres (d) Minimum rear yard depth (i) where no portion of a lot is 7.5 metres zoned EPA -929 (ii) where a portion of a lot is 7.5 metres to the EPA -929 zone zoned EPA -929 boundary (e) Minimum interior side yard width, subject to the provisions of clause (a) of section 5.1 of By -law No. 79 -200 (i) for a building on a lot wider 1.2 metres than 9.8 metres (ii) for a building on a lot 0.6 metres only if 1.8 metres is provided narrower than 9.8 metres to the next adjacent dwelling (f) Minimum exterior side yard width (i) where no portion of a lot is zoned EPA -929 (I) for a dwelling 1 metre (g) -4- (II) for the garage portion of a dwelling with driveway access from the exterior side yard (ii) where a portion of a lot is zoned EPA -929 Maximum lot coverage (h) Maximum driveway width (i) Accessory buildings and accessory structures 4 metres 7.5 metres to the EPA -929 zone boundary, save and except for lots located between points C and D on Schedule 1 attached to this by -law where the minimum exterior side yard width shall be 0.90 metres to the EPA -929 zone boundary 45% 6 metres (i) no accessory building or accessory structure shall be erected on a corner lot closer than 1 metre to the side lot line, and closer than 3.75 metres to an EPA - 929 zone boundary (ii) where no portion of a lot is zoned EPA -929, an accessory building or accessory structure may be erected in a rear yard of a lot provided that it shall not be less than 1.8 metres to a main wall of any dwelling on such lot and shall comply with subclauses (i) and (ii) of clause (d) of section 4.13 of By -law No. 79 -200 (iii) where a portion of a lot is zoned EPA -929, an accessory building or accessory structure may be erected in a rear yard of a lot provided that it shall not be less than 1.8 metres to a main wall of any dwelling on such lot and located no closer than 3.75 metres to the EPA -929 zone boundary (iv) where no portion of a lot is zoned EPA -929, a one storey porch, with or without a roof, may project into a required rear yard a distance of not more than 2.5 metres provided that there is no enclosure of such porch and in no event shall any part of such porch be closer than 1.5 metres to any street line (v) where a portion of a lot is zoned EPA -929, a one storey porch, with or without a roof, may project into a required rear yard a distance of not more than 2.5 metres provided that there is no enclosure of such porch and in no event shall any part of such porch be closer than 1.5 metres to any street line and be closer than 3.75 metres to the EPA -929 zone boundary (j) The balance of regulations for an R1 E use -5- 8. The regulations governing the permitted uses on Parcel R3 -927 shall be: (a) Minimum lot frontage 8.5 metres (b) Minimum front yard depth (i) for an on- street townhouse 0 metres dwelling unit (ii) for the garage portion of an 3 metres on- street townhouse dwelling unit (c) Minimum rear yard depth 0 metres (d) Minimum interior side yard width 1.8 metres (e) Minimum exterior side yard width 1 metre (f) Maximum lot coverage 75% (g) Minimum landscaped open space 0% coverage (h) Maximum driveway width in front 6 metres yard (i) The balance of regulations for an R3 use 9. The regulations governing the permitted uses on Parcel R5F -928 shall be: (a) Minimum lot area the whole of Parcel R5F -928 (b) Maximum number of dwelling units 150 (c) Minimum lot frontage 13 metres (d) Minimum front yard depth 40 metres (e) Minimum rear yard depth 32 metres (f) Minimum interior side yard width (i) for an apartment dwelling 6 metres (ii) for an underground parking 0 metres garage -6- (g) Maximum height of building or 34 metres subject to section 4.7 of By- structure law No. 79 -200 (h) The balance of regulations for an R5F use 10. No person shall permit any building or structure to be erected on the Parcel EPA -929 or permit any soil, sand, gravel, rubbish or other similar material to be placed or dumped. or remove any soil or trees or regrade any of Parcel EPA -929. 11. All other applicable regulations set out in By -law No. 79 -200 shall continue to apply to govern the permitted uses on the Lands, with all necessary changes in detail. 12. No person shall use the Lands for a use that is not a permitted use. 13. No person shall use the Lands in a manner that is contrary to the regulations. 14. The provisions of this By -law shall be shown on Sheet C6 of Schedule ``A" of By -law No. 79- 200 by redesignating the Lands from RID and numbered 804 to R1 D and numbered 925 and R 1 E and numbered 926; from R3 and numbered 805 to R3 and numbered 927; from R5F and numbered 806 to R5F and numbered 928; and from EPA and numbered 807 to EPA and numbered 929. 15. Section 19 of By -law No. 79 -200 is amended by deleting sections 19.1.804, 19.1.805, 19.1.806 and 19.1.807. 16. Section 19 of By -law No. 79 -200 is amended by adding thereto: 19.1.925 Refer to By -law No. 2011- 19.1.926 Refer to By -law No. 2011- 19.1.927 Refer to By -law No. 2011- 19.1.928 Refer to By -law No. 2011- 19.1.929 Refer to By -law No. 2011- 17. By -law No. 2007 -236 is repealed. Passed this seventeenth day of January, 2011. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: January 17, 2011 January 17, 2011 January 17, 2011 S. AZONING\AMS\2010 \fay- laws \Byam I 8.wpd Subject Land SCHEDULE 1 TO BY -LAW No. 2011- 11111 Applicant: Mountainview Homes (Niagara) Ltd. Assessment #: 272511000112710 K: \GIS_Requests\ 2010\ Schedule \zoningAM\AM -18 \mapping.map %% 134.78m 3.08m Ai 11 11U AA =36:6m 11 OMS 161 0 ce 28.2m 32:2m' 1.5m 8m 8m 1.5m 33.6m ,'A =58.8m. a. 68.9m A= 30.2561/ A =17, 2m7 /, 1.5m 34.1m OLDFIELD RD 5m 17:6m 41.6m 22.6 LA KEN000 � _ ,. ROO `` , a '1' HEM IIIIIll "t1"' ,'VIII LOCK ST 'I''1111 CRIMSON D 11111111111 \ �� 21.69m 2.02m 20.13m 110 59m 659.1 - - -- or„1'1�liuIr A =37.3rin " ' A =23 4m 3 F A =53.59 m 127.8m 10058m 8 t ',2:04m �3.08m , A =15m ` ,13.31m rn \ A= 22.89m A= 20.93m A= 37.20m 28.20m 13.59m 20.09m A= 42.33m A N E CO A =8.99m I f 18.4m 3 . 5 m `,< 31.9m • 112.86m A =6m 36.62m d A 39m': NC/ 7.67m 9r27m 118.34m 37.56m v� A =22.81m cc 1:N N s S Amending Zoning By -law No. 79 -200 Description: Pt Lt 195 Stamford; Pt Blks A & F Stamford PI 8 Being Pts 1 to 14 Incl., 16, 17, 18, 23, 24, 27 to 32 Incl., & 35 on 59R13630; S/T Easement In Gross Over Pts 23, 24, 29, 31, 32 & 35 On 59R13630 As In R0182503; S/T Easement In Gross Over Pts 2, 5, 9 12 & 18 On 59R13630 As In SN102091; T/W Easement Over Pts 11, 12, 14 to 17 Incl., 30 to 52 Incl., 56, 61 - 69 On 59R12577 As In SN102090; T/W Easement Over Pt 2 On 59R12707 As In SN102836; T/W Easement Over Pts 2 & 3 On 59R12707 As In SN102387, S/T Easement Over Pts 11, 12, 17, 18 28, 29 & 35 On 59R13630 For The Benefit Of Pts 15, 19, 20 21, 22, 25, 26, 33, 34 36, 42, 43 & 44 On 59R13630 As In SN199154, T/W Easement Over Pts 42, 43 &44 On 59R13630 As In SN200650; T/W Easement Over Pt 2 On 59R13487 As In SN199153; Niagara Falls AM- 2010 -018 January 2011 CITY OF NIAGARA FALLS By -law No. 2011 - A by -law to amend By -law No. 79 -200, to guide the development of the Fernwood Phase 3 plan of subdivision on the Lands. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. The Lands that are the subject of and affected by the provisions of this by -law are described in Schedule 1 of this by -law and shall be referred to in this by -law as the "Lands ". Schedule 1 is a part of this by -law. 2. The Lands shall be identified as three parcels, known as Parcels R 1 E -931, R4 -932 and EPA - 933. 3. The purpose of this by -law is to amend the provisions of By -law No. 79 -200, to permit the use of the Lands in a manner that would otherwise be prohibited by that by -law. In the case of any conflict between a specific provision of this by -law and any existing provision of By- law No. 79 -200, the provisions of this by -law are to prevail. 4. Notwithstanding any provision of By -law No. 79 -200 to the contrary, the following uses and regulations shall be the permitted uses and regulations governing the permitted uses on and of the Lands. 5. The permitted uses shall be: (a) For Parcel R 1 E -93 1 , the uses permitted in a R1 E zone (b) For Parcel R4 -932, the uses permitted in a R4 zone (c) For Parcel EPA -933, conservation use 6. The regulations governing the permitted uses on Parcel RIE -931 shall be: (a) Minimum setback from the EPA -933 zone for any building or structure, save and except for a fence (b) The balance of regulations specified for an Rl E use 7 The regulations governing the permitted uses on Parcel R4 -932 shall be: (a) Minimum setback from the EPA -676 and the EPA -933 zones for any building or structure, save and except for a fence 5 metres 5 metres (b) The balance of regulations specified for an R4 use 8. No person shall permit any building or structure, other than a fence, to be erected on the Parcel EPA -933 or permit any soil, sand, gravel, rubbish or other similar material to be placed or dumped, or remove any soil or trees or regrade any of Parcel EPA -933. 9. All other applicable regulations set out in By -law No. 79 -200 shall continue to apply to govern the permitted uses on the Lands, with all necessary changes in detail. 10. No person shall use the Lands for a use that is not a permitted use. 11. No person shall use the Lands in a manner that is contrary to the regulations. 12. The provisions of this By -law shall be shown on Sheet A4 of Schedule "A" of By -law No. 79 -200 by redesignating the Lands from DH to RIE and numbered 931, in part, R4 and numbered 932, in part, and EPA and numbered 933, in part. 13. Section 19 of By -law No. 79 -200 is amended by adding thereto: 19.1.931 Refer to By -law No. 2011- 19.1.932 Refer to By -law No. 2011- 19.1.933 Refer to By -law No. 2011 - Passed this seventeenth day of January, 2011. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: January 17, 2011 January 17, 2011 January 17, 2011 S-AZONING\AMS \200913Y- LAWS \Byam030.wpd -2- SCHEDULE 1 TO BY -LAW No. 2011- Subject Land I Description: Pt Rdal Btn Twp Lt 121 & 135 Stamford; Pt Twp Lt 135 Stamford; Pt Twp Lt 138 Stamford All As In R0350920; Niagara Falls Applicant: 800460 Ontario Limited Assessment #: 272510000505300 K: \GIS_Requests \2009 \Schedu les \ZoningAM\AM- 30 \mappi ng. map M Amending Zoning By -law No. 79 -200 N s 1: NTS AM- 2009 -030 December 2010 CITY OF NIAGARA FALLS By -law No. 2011 - A by -law to amend By -law No. 395,1966, to permit a single family dwelling on the Lands to be used as a tourist home and to repeal By -law No. 2009 -63. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. The Lands that are the subject of and affected by the provisions of this by -law are described in Schedule 1 of this by -law and shall be referred to in this by -law as the "Lands ". Schedule 1 is a part of this by -law. 2. The purpose of this by -law is to amend the provisions of By -law No. 395, 1966, to permit the use of the Lands in a manner that would otherwise be prohibited by that by -law. In the case of any conflict between a specific provision of this by -law and any existing provision of By -law No. 395, 1966, the provisions of this by -law are to prevail. 3. Notwithstanding any provision of By -law No. 395, 1966 to the contrary, the following uses and regulations shall be the permitted uses and regulations governing the permitted uses on and of the Lands. 4. The permitted uses shall be: (a) The uses permitted in a Rural zone (b) " hourist home 5. The regulations governing the permitted uses shall be: (a) Maximum number of bedrooms 4 to be rented to travellers (b) Minimum parking 1 space per bedroom (c) The balance of regulations specified for a Rural use 6. For the purpose of this by -law "tourist home" means a single family dwelling in which bedrooms and breakfast are made available by the residents at the said dwelling for the temporary accommodation of travellers. 7 All other applicable regulations set out in By -law No. 395, 1966 shall continue to apply to govern the permitted uses on the Lands, with all necessary changes in detail. 8. No person shall use the Lands for a use that is not a permitted use. -2- 9. No person shall use the Lands in a manner that is contrary to the regulations. 10. The provisions of this By -law shall be shown on Schedule "A" of By -law No. 395, 1966 by labelling the Lands as being subject to By -law No. 2011- . 11. By -law No. 2009 -63 is repealed. Passed this seventeenth day of January, 2011. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: January 17, 2011 January 17, 2011 January 17, 2011 S:VONING \AMS \2010 \By - laws \Byam019.wpd Subject Land SCHEDULE 1 TO BY -LAW No. 2011- NM Assessment #: 272513000215600 December 2010 K: \GIS_Requests\ 2010 \Schedule \zoningAM\AM -19 \mapping. map Amending Zoning By -law No. 395, 1966 Description: Pt Lt 17, Con 2, Willoughby, as in 6673141; Niagara Falls Applicant: Gary Joseph Landry Dianne Cartmell 19.7 m 8.2 m 35 6 m N S 1:NTS AM- 2010 -019 CITY OF NIAGARA FALLS By -law No. 2011 - A by -law to amend By -law No. 79 -200, to permit an apartment building. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. The Lands that are the subject of and affected by the provisions of this by -law are described in Schedule 1 of this by -law and shall be referred to in this by -law as the '`Lands ". Schedule 1 is a part of this by -law. 2. The purpose of this by -law is to amend the provisions of By -law No. 79 -200, to permit the use of the Lands in a manner that would otherwise be prohibited by that by -law. In the case of any conflict between a specific provision of this by -law and any existing provision of By- law No. 79 -200, the provisions of this by -law are to prevail. 3. Notwithstanding any provision of By -law No. 79 -200 to the contrary, the following uses and regulations shall be the permitted uses and regulations governing the permitted uses on and of the Lands. 4. The permitted uses shall be the uses permitted in an R4 zone. 5. The regulations governing the permitted uses shall be: (a) Minimum lot frontage 19 metres (b) Minimum front yard depth 0 metres (c) Minimum interior side yard width 2 metres on the south side (d) The balance of regulations specified for an R4 use 6. All other applicable regulations set out in By -law No. 79 -200 shall continue to apply to govern the permitted uses on the Lands, with all necessary changes in detail. 7. No person shall use the Lands for a use that is not a permitted use. 8. No person shall use the Lands in a manner that is contrary to the regulations. 9. The provisions of this By -law shall be shown on Sheet C4 of Schedule "A" of By -law No. 79 -200 by redesignating the Lands from GC and GC and numbered 74 to R4 and numbered 930. -2- 10. Section 19 of By -law No. 79 -200 is amended by adding thereto: 19.1.930 Refer to By -law No. 2011- Passed this seventeenth day of January, 2011. DEAN IORFIDA. CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: January 17, 2011 January 17, 2011 January 17, 2011 SV".ONING \AMS \2010 \By - laws \13yam021 -wpd Subject Land Description: Applicant: SCHEDULE 1 TO BY -LAW No. 2011- M Donald and Nancy Searle Assessment #: 272506000512900 December 2010 K: \GIS_Requests \2010 \Schedu le \ZoningAM\AM -21 \mapping.map Amending Zoning By -law No. 79 -200 Pt Lt 3, W/S Portage Rd, N of Lundy's Lane, PI 653, Abstracted as Blk 2, Village of Niagara Falls, as in R0756886; Niagara Falls N S 1: NTS AM- 2010 -021 CITY OF NIAGARA FALLS By -law No. 2011 - A by -law to amend By -law No. 2002 -081, being a by -law to appoint City employees, agents and third parties for the enforcement of provincial or municipal by -laws. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. By -law No. 2002 -081 is amended by deleting Schedule "DI" and that Schedule "D 1" attached hereto shall be inserted in lieu thereof. 2. That By -law 2010- 145 be hereby repealed. Passed this seventeenth day of January, 2011. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: January 17, 2011. January 17, 2011. January 17, 2011. SCHEDULE "D1" FACTORY ONE OUTLET MALL 1. Parking By -law Enforcement Officers on private property: Enrico Cupiraggi Nick Galotta Eli Hoffmann Terry Loiselle Steven Lott Jose Montoya Jeffery Charles Petrullo CITY OF NIAGARA FALLS By -law No. 2011 - A by -law to provide an interim levy of realty taxes. WHEREAS subsection 317(1) of the Municipal Act, 2001 (the "Act ") provides that the council of a local municipality, before the adoption of the estimates for the year, pass a by -law levying amounts on the assessment in each property class in the local municipality, rateable for local municipal purposes. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. (1) An interim tax levy at the following rates is hereby imposed and levied on the whole of the assessment for property in the following classes: Passed this 17th day of January, 2011. First Reading: Second Reading: Third Reading: Property Class Rate Residential 0.6908% Farmlands 0.1727% Managed Forests 0.1727% Pipeline 1.6857% Multi - Residential 1.2953% New Multi - Residential 0.6908% Commercial 1.7179% Vacant Commercial 1.2025% Industrial 2.6889% Vacant Industrial 1.7478% Industrial (New Construction) 2.2149% Vacant Industrial (New Construction)1.4397% (2) The interim tax levy shall not exceed 50% of the total amount of taxes for municipal and school purposes levied on the property for the previous year. 2. All monies levied and collected under the authority of this by -law shall be paid to the Treasurer of the City of Niagara Falls and applied by him as directed or required by the Act. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR January 17, 2011 January 17, 2011 January 17, 2011 THE CORPORATION OF THE CITY OF NIAGARA FALLS BY -LAW Number 2011 - A by -law to amend By -law No. 89 -2000, being a by -law to regulate parking and traffic on City Roads. (Speed Limits on Highways - Part 3 (70 km /h)) The Council of the Corporation of the City of Niagara Falls hereby ENACTS as follows: 1. By -law No. 89 -2000, as amended, is hereby further amended by adding to the specified columns of Schedule W thereto the following items: SPEED LIMITS ON HIGHWAYS (PART 3 - 70KM /HR) COLUMN 1 COLUMN 2 COLUMN 3 HIGHWAY BETWEEN MAXIMUM SPEED (KM /H) Marshall Road Niagara Parkway and Ort Road (South Intersection) 70 Marshall Road Ort Road (North Intersection) and a point 140 metres west of Beck Road 70 Miller Road Sodom Road and Niagara Parkway 70 Ort Road Marshall Road (South Intersection) and a point 245 metres north of Willick Road 70 Reixinger Road Lyons Creek Road and a point 550 metres west of Dell Road 70 Reixinger Road Ort Road and a point 260 metres west of Stanley Avenue (West Intersection) 70 Sherk Road Sodom Road and Niagara Parkway 70 Stanley Avenue Reixinger Road and Marshall Road 70 Weaver Road Ort Road and Niagara Parkway 70 This By -law shall come into force when the appropriate signs are installed. Passed this seventeenth day of January , 2011. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: January 17, 2011 Second Reading: January 17, 2011 Third Reading: January 17, 2011 -2- CITY OF NIAGARA FALLS By -law No. 2011 - A by -law to authorize the payment of $25,017,460.83 for General Purposes. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: That the City Treasurer is hereby authorized and directed to pay the attached list of disbursements for the period beginning November 25, 2010 to December 29, 2010. Passed this seventeenth day of January 2011. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: January 17, 2011 January 17, 2011 January 17, 2011 (1/12/2011) Dean lorfida - NCCC Lease and Operating Agreement Report Page 1 From: Ken Beaman To: Dean Iorfida Date: 1/4/2011 9:32 AM Subject: NCCC Lease and Operating Agreement Report Dean, The Report on this matter that is on the V Drive for January 17 is the Report that was deferred on December 13, 2010. Accordingly, the Report has not been changed. However, since December 13, I had some further discussions with Serge and Ed Lustig and we thought some very minor adjustments to the Agreement would make for smoother interaction with the Federal funding people. Accordingly, the Agreement that is to be attached to the by -law is going to be slightly different than the one that was presented on December 13. I am proposing to send an explanatory e -mail to Council outlining the changes. How do you feel about this approach? Ken. A by -law to authorize the execution of a Lease and Operating Agreement with Niagara Convention and Civic Centre Inc., respecting the lease and operation of the Niagara Convention and Civic Centre. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. A Lease and Operating Agreement made between The Corporation of the City of Niagara Falls as Landlord and Niagara Convention and Civic Centre Inc. as Tenant, respecting the lease and operation of the Niagara Convention and Civic Centre, as attached hereto, is hereby approved and authorized. 2. The Mayor and Clerk are hereby authorized to execute the said Lease and Operating Agreement. 3. The Clerk is hereby authorized to affix the corporate seal thereto and to deliver the said Lease and Operating Agreement. Passed this thirteenth day of December, 2010. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: December 13, 2010. December 13, 2010. December 13, 2010. CITY OF NIAGARA FALLS By-law No. 2010 - LEASE AND OPERATING AGREEMENT BETWEEN THE CORPORATION OF THE CITY OF NIAGARA FALLS -AND- NIAGARA CONVENTION AND CIVIC CENTRE INC. INDEX ARTICLE 1 DEFINITIONS AND INTERPRETATION 2 1.1 Definitions 2 1.2 Schedules 9 1.3 Meaning of Including 10 ARTICLE 2 DEMISE AND TERM 10 2.1 Demise 10 2.2 Term 10 2.3 Right to Renew 10 2.4 Quiet Enjoyment 11 2.5 Overholding 11 2.6 Landlord's Representations and Warranties 11 ARTICLE 3 RENT 11 3.1 Covenant to Pay, Net Lease 11 3.2 Realty and Rental Taxes 12 3.3 Payment Method 12 3.4 Partial Periods 12 ARTICLE 4 GROUND RENT 12 4.1 Ground Rent 12 ARTICLE 5 ADDITIONAL RENT 13 5.1 Additional Rent 13 5.2 Business and Other Taxes 13 5.3 Utilities and Services 13 ARTICLE 6 CONSTRUCTION OF CONVENTION CENTRE 14 6.1 Construction Period 14 6.2 Landlord to Construct Convention Centre 14 6.3 Copies of Construction Contracts 14 6.4 Duties of Landlord in Construction 14 ARTICLE 7 OWNERSHIP, MAINTENANCE AND REPAIR 15 7.1 Ownership of Improvements and Fixtures 15 7.2 Maintenance and Repair of the Project 16 7.3 Inspection by Landlord 16 7.4 Repairs or Replacements 16 7.5 Waste, Nuisance 17 7.6 Lien Claims 17 -i- ARTICLE 8 USE, COMPLIANCE WITH LAWS 17 8.1 Use 17 8.2 Compliance with Laws 17 ARTICLE 9 INDEMNITY 18 9.1 Indemnification 18 ARTICLE 10 INSURANCE 19 10.1 Tenant's Insurance 19 10.2 Landlord's Insurance 20 10.3 Insurance Proceeds 20 10.4 Insurers 20 10.5 Landlord's Right to Insure 20 10.6 Evidence of Insurance 20 ARTICLE 11 STRUCTURE OF THE TENANT 21 11.1 No Change in Control 21 11.2 Composition of Board of Tenant 21 11.3 Rules of Procedure for Board Meetings 21 ARTICLE 12 ASSIGNMENT AND SUBLETTING 22 12.1 No Assignment 22 12.2 Sublet with Authorization 22 ARTICLE 13 LENDER'S RIGHTS AND REMEDIES 22 13.1 Secured Lender Security 22 13.2 Rights and Obligations of Secured Lenders 24 ARTICLE 14 DAMAGE AND DESTRUCTION 24 14.1 Damage or Destruction of Improvements 24 14.2 Restoration of Improvements 24 14.3 Landlord's Right to Decline to Restore 24 ARTICLE 15 DEFAULT 25 15.1 Default and Right to Re -enter 25 15.2 Remedies of Landlord 27 15.3 Distress 28 ARTICLE 16 SETTLEMENT OF DISPUTES 29 16.1 Arbitration 29 16.2 Arbitration Act 29 ARTICLE 17 17.1 17.2 17.3 17.4 17.5 17.6 17.7 17.8 17.9 17.10 17.11 17.12 17.13 17.14 17.15 17.16 17.17 SCHEDULE' SCHEDULE" SCHEDULE" SCHEDULE " SCHEDULE" GENERAL 29 Procedure for Approvals and Consents 29 Entry 30 Force Majeure 30 Effect of Waiver or Forbearance 31 Notices 31 Survival of Provisions 32 Further Acts 32 Interest 32 Costs 33 Continuing Obligations 33 Registration 33 Number, Gender, Effect of Headings 33 Severability, Subdivision Control 34 Entire Agreement 34 Successors and Assigns 34 Counterparts 34 Facsimile Execution 34 'A" SKETCH OF LANDS 36 B" LEGAL DESCRIPTION 37 C" DELIVERY PLAN 38 D" DISPUTE RESOLUTION PROCEDURE 39 E" SITE PLAN 44 LEASE AND OPERATING AGREEMENT THIS LEASE AND OPERATING AGREEMENT is made on the 13 day of December, 2010, BETWEEN: THE CORPORATION OF THE CITY OF NIAGARA FALLS, Hereinafter called the "Landlord ", - and - NIAGARA CONVENTION AND CIVIC CENTRE INC., a corporation incorporated under the laws of the Province of Ontario, Hereinafter called the "Tenant ", of the FIRST PART; of the SECOND PART; For consideration, the receipt and sufficiency of which are acknowledged by each of them, the parties covenant and agree as follows: It is the mutual intent that the parties to this Agreement desire that this Lease and Operating Agreement be interpreted in accordance with the following principles: 1) The function of Niagara Convention and Civic Centre Inc. is to operate a convention centre on the Schedule "A" lands in accordance with sound business practices. 2) The Niagara Convention and Civic Centre has been funded primarily through public funds and is intended to be a benefit to the general public of the City of Niagara Falls and the entire Region of Niagara. 3) Due to the public service nature of the Niagara Convention and Civic Centre, it is, and shall be recognized as, a Municipal Capital Facility as that term is defined in the Municipal Act, 2001, as amended and any successor legislation thereto, and, as such, is not subject to Realty Taxes, building permit fees, development charges and planning application fees. 4) The role of the City of Niagara Falls in the Niagara Convention and Civic Centre is: a) to construct the Niagara Convention and Civic Centre on the Schedule "A" lands through a public tendering process in accordance with best practices; and b) subsequent to the completion of the construction of the Niagara Convention and Civic Centre, to ensure that the operation of the Niagara Convention and Civic Centre, while adhering to the principles and practices of private enterprise, must be, and is, operated in accordance with the rules, regulations and laws respecting Municipal Capital Facilities including the requirement that the facility is for the purposes of the municipality and for public use. 5) The Business Improvement Areas participating in the funding of the Niagara Convention and Civic Centre are the Victoria Centre and Fallsview Business Improvement Areas of the City of Niagara Falls. 6) No party that is not at arm's length from Niagara Convention and Civic Centre Inc. shall be permitted to enter into an Agreement with Niagara Convention and Civic Centre Inc. at terms more advantageous than those available to the regular customers of Niagara Convention and Civic Centre Inc. 7) The Niagara Convention and Civic Centre shall be operated in accordance with acceptable business standards and practices for operating a commercial convention and civic centre. 8) All revenues generated by the operation and use of the Niagara Convention and Civic Centre Inc., and the assets of Niagara Convention and Civic Centre Inc., shall be used for the maintenance, operation, promotion and capital improvement of the Niagara Falls Convention and Civic Centre ( "NCCC ") and for no other purpose. In particular, without limiting the generality of the foregoing, any operational surplus must be invested in the NCCC facility and operation or placed in a reserve for use in the NCCC facility and operation. 1.1 Definitions In this Lease, unless there is something in the subject matter or context inconsistent therewith, the following terms have the following respective meanings: (a) "Additional Rent" means all sums of money or charges required to be paid by the Tenant under this Lease (except Ground Rent and Rental Taxes) either to the Landlord or otherwise, whether or not the same are designated as "Additional Rent ". "Business Day" means a day other than a Saturday, Sunday or other day which is a statutory holiday in the Province of Ontario. (b) -2- ARTICLE 1 DEFINITIONS AND INTERPRETATION -3- (c) "Claim" means a claim or cause of action in contract, in tort, under any laws and regulations or otherwise. (d) "Changes" has the meaning set out in Section 7.4.1. (e) "Commencement Date" means the first day after the expiry of the Construction Period. (g) (h) (i) (f) "Construction Period" means the period commencing on May I, 2009 and ending on the day that the Project is fit for occupancy by the Tenant. "Control" means, with respect to a Person, having ownership, whether beneficial or otherwise, of, or direct or indirect power to vote a majority of the votes attaching to the shares or units of ownership of that Person. "Delivery Plan" means the program of work set out in Schedule "C ". "Encumbrance" means a mortgage, lien, judgment, execution, pledge, charge, security interest, restriction, claim, trust, deemed trust, licence, lease, option, deposit or other encumbrance of any nature whatsoever, whether arising by operation of law or statute or otherwise created. (j) "End Date" means the date on which the Term expires or this Lease is terminated. (k) "Environmental Laws" means: (i) all requirements and provisions under or prescribed by the common law and any and all applicable federal, provincial, regional, local or municipal laws, statutes or by -laws; (ii) all applicable rules, regulations, protocols, guidelines, procedures, judgments, concessions, grants, franchises, licenses, agreements and any other governmental requirements, promulgated under or pursuant to any law referred to in clause (i); (iii) all applicable orders, decisions and exemptions rendered by any Governmental Authority; and (iv) any other applicable laws, rules, regulations, orders and decisions relating to environmental matters that pertain to the Project. (1) "Expiry Date" means the date on which the Term expires, or would expire assuming that no early termination of this Lease occurs in accordance with this Lease. (m) -4- "Force Majeure" means the occurrence of an act or circumstance beyond the reasonable control of a party to this Lease affected by such act or circumstance (the "Affected Party "), including an Act of God or public enemy, war, invasion, armed conflict, act of foreign enemy, blockade, revolution, act of terror, sabotage, civil commotions, interference by civil or military authorities, governmental expropriation or confiscation of property or equipment by any Governmental Authority, nuclear or other explosion, radioactive or chemical contamination or ionizing radiation, fire, tidal wave, earthquake, epidemic, quarantine restriction, stop -work order or injunction issued by a court or public authority having jurisdiction, governmental embargo, flood, ice storm, blizzard or other disaster, strike, walk -out, communication line or power failure, that results in or would result in delay or interruption in the performance of any obligation under this Lease, provided that such delay or the cause thereof is not specifically dealt with in this Lease or does not arise by reason of: (i) the negligence or wilful misconduct of the Affected Party or those for whom it is in law responsible; and (ii) any act or omission by the Affected Party (or those for whom it is in law responsible) in breach of the provisions of this Lease. (n) "Governmental Authorization" means any approval, certificate of approval, authorization, consent, waiver, variance, exemption, declaratory order, license, filing, registration, permit, notarization, special lease or other requirement of any Governmental Authority or any utility or service supplier, whether existing or to be obtained, which is necessary in connection with the Substantial Completion of the convention centre or any part thereof. (o) "Governmental Authority" means a federal, provincial, territorial, regional or municipal governmental, quasi - governmental, judicial, public or statutory authority, board, commission, tribunal, agency, department, ministry, body or other organization or entity. (p) "Improvements" means all buildings, fixed improvements, structures and other installations to be constructed by the Landlord in accordance with the Delivery Plan and any buildings, fixed improvements, structures and other installations constructed in accordance with any subsequently approved plans and located on, in or under any portion of the Lands at any time throughout the Construction Period and the Term, including chattels, equipment and machinery owned by the Tenant and any additions, substitutions, alterations or replacements thereto or thereof. (q) "Interest Rate" means the interest at a variable nominal rate per annum equal on each day to the Prime Rate then in effect plus three percent (3 %). -5- (r) "Lands" means the lands illustrated and described in Schedule "A ". (s) "Laws and Regulations" means: (i) applicable federal, provincial, regional, local or municipal laws, orders -in- council, by -laws, codes, rules, policies, regulations or statues; (ii) applicable order, decisions, judgments, injunctions, decrees, exemptions, awards or writs of any court, tribunal, arbitrator, Governmental Authority or other Person having jurisdiction; and (iii) any requirements under or prescribed by applicable common law. "Lease" means this Lease and Operating Agreement, including the schedules referred to herein, as amended from time to time. "Losses" means losses, compensation, damages, expenditures, costs (including administrative costs), expenses, liabilities, judgments, awards, Taxes, fines, penalties, charges and amounts paid in settlement (net of insurance proceeds actually received), including: (i) reasonable legal fees on a solicitor and his own client basis so as to provide full indemnity (and not only substantial indemnity) and reasonable fees or other charges of accountants and other advisors; and (ii) interest on money paid by a Person in respect of any of the foregoing at the Interest Rate computed from the date such payment is made by such Person until the date of demand for reimbursement, less, to the extent applicable in the circumstances, costs and expenses that the party claiming the Losses would otherwise incur in order to comply with the Project Agreements. (v) "Permitted Encumbrance" means: (i) a security interest taken by a Person who gives value for the purpose of enabling the Tenant to acquire rights in or to personal property for use in the Project to the extent that the value is applied to acquire such rights; (ii) an inchoate or statutory lien for Taxes or utility rates or charges not at the time overdue; (iii) an inchoate or statutory lien for overdue Taxes or utility rates or charges the validity or amount of which the Tenant is contesting in good faith, but only (w) (y) (iv) a statutory lien incurred or deposit made in the ordinary course of the operation of the Project in connection with worker's compensation, employment insurance and similar legislation; (v) a lien arising out of any judgment with respect to which the Tenant intends to prosecute or is prosecuting an appeal or a proceeding for review, but only for so long as there is a stay of execution pending the determination of such appeal or proceeding for review; (vi -6- for so long as such contestation effectively postpones enforcement of any such liens; security given by the Tenant to a public or private utility or common carrier or any Governmental Authority when required by such utility, carrier or Governmental Authority in the ordinary course of operating the Project; (vii) a construction, repair or storage lien arising in the ordinary course of the Tenant's business for sums that are not overdue or the validity or amount of which is being contested in good faith, but only for so long as such contestation effectively postpones enforcement of any such lien; (viii) a good faith deposit made in the ordinary course of business to secure the performance of bids, tenders, contracts (other than for the payment of borrowed money), leases, surety, customs or performance bonds and other similar obligation; (ix) a right reserved to or vested in any Governmental Authority by any statutory provision; (x) an Encumbrance permitted under this Lease, including any Secured Lender's Security Agreement; or (xi) an amendment, extension, renewal or replacement of any of the foregoing. "Person" means an individual, corporation, partnership, joint venture, association, trust, pension fund, union, or Governmental Authority, and the heirs, beneficiaries, executors, legal representatives or administrators of an individual. (x) "Premises" means the Lands and the Improvements. "Prime Rate" mean the rate of interest per annum which The Royal Bank of Canada has established at its head office in Toronto, Ontario as a reference rate of interest that will be charged on that day for loans, in Canadian dollars to Canadian customers and that it refers to as its "Prime Rate ". (z) "Project" means: (i) the Lands; (ii) the Improvements; -7- (iii) all other facilities, fixtures, appurtenances and tangible and intangible personal property, including inventories of any nature whatsoever contained on or attaching to the Lands from time to time or used in connection with the Lands; (iv) all mechanical, electrical and other systems installed or used in connection with any of the foregoing; and (v) the Tenant's leasehold interest in the Lands. (aa) "Project Agreements" means all or any of the agreements relating to the Project from time to time to which both the Landlord and the Tenant are parties, including this Lease. (ab) "Realty Taxes" means all real property taxes, rates, duties and assessments (including local improvement rates), impost charges or levies, whether general or special, that are levied, charged or assessed from time to time by any lawful authority, whether federal, provincial, municipal, school or otherwise, and any taxes payable by the Landlord which are imposed in lieu of, or in addition to, any such real property taxes, whether of the foregoing character or not, and whether or not in existence at the date thereof, and any such real property taxes levied or assessed against the Landlord on account of its ownership of the Lands or its interest therein, but specifically excluding any taxes assessed upon the income of the Landlord, and includes taxes for municipal and school purposes as described in section 110 (6)of the Municipal Act, 2001 S.O. 2001 c. 25. (ac) "Rent" means all Ground Rent and Additional Rent. (ad) "Replacement Cost" means the entire costs, from time to time, of repairing, replacing or reinstating any item of property with materials of like kind and quality on the same site without deduction for physical, accounting or any other depreciation. (ae) "Reversion Date" means the day immediately following the End Date. (af) -8- (ag) "Secured Lender Reimbursement Amount" means the amount required under the teens of all bona fide debt to repay such debt to the extent such bona fide debt relates to the Project. (ah) (ai) "Secured Lender" means a lender under a Secured Lender's Security Agreement. "Secured Lender's Security Agreement" means an agreement or instrument, including a deed of trust or similar instrument securing bonds or debentures, containing a charge, mortgage, pledge, security interest, assignment or sublease with respect to all or any part of the Tenant's Chattels granted by the Tenant that is security for any indebtedness, liability or obligation of the Tenant, together with any amendment, change, supplement, restatement, extension, renewal or modification thereof. "Substantially Completed" means that the work referred to which is to be carried out by the Tenant has been substantially performed as defined in the Construction Lien Act (Ontario) and the Tenant's Architect has certified to the Landlord that in respect of such work: (i) all work of a structural nature has been substantially performed; (ii) all work on all building equipment and services, including elevators, heating and air - conditioning systems and utilities, have been substantially performed, such equipment and services are operating properly and available for use by Tenants and all lobbies, stairwells and any work on other areas intended for the common use of Tenants has been substantially performed except for work of a decorative or superficial nature, which is both minor in character and of a type which, owing to the likelihood of damage, is reasonably to be deferred until the Improvements are partially or substantially occupied by the Tenant; (iii) all building by -laws and other regulations have been complied with and all necessary permits for occupancy have been obtained; (iv) any rentable space has been completed for occupancy by the Tenant, except for work of a superficial nature which is dependent upon individual sublessee's requirements as yet unascertained (such as painting and the installation of lighting fixtures, dividing partitions and sublessee's fixtures) and work which is reasonably and customarily allocated to sublessees to complete; (v) all areas are clean and all surplus building material and rubbish is removed; -9- (vii) the Improvements have been completed in all material respects in a good and workmanlike manner in accordance with the Delivery Plan, except for any requirements of the Delivery Plan which have been waived or varied by the Landlord in writing and except for faults and defects which, in the opinion of the Tenant's Architect, are minor and the correction of which is adequately assured. (ak) (vi) the Improvements are generally in a condition in which they can be leased to and occupied by sublessees and any work that is still unfinished is work that can be completed promptly and is work the incompletion of which a reasonable Tenant would not object to; and (aj) "Taxes" means Taxes and related governmental charges (including assessments, duties, rates, fees, imposts, levies and interest, penalties or additions associated therewith), including Canadian federal, provincial, or foreign income, franchise, capital, land transfer, real property, personal property, tangible, withholding, payroll (including Canada Pension Plan), employment insurance and employer health contributions, transfer, sales, use, consumption, excise, duties and value added Taxes, and all other Taxes of any kind, but does not include Realty Taxes. "Tenant's Chattels" means the chattels of the Tenant used in connection with and related to the operation and creation of the Project. (al) "Tenant Default" has the meaning in Section 15.1. (am) "Tenant's Interest" means the right, title and interest of the Tenant in the Tenant's Chattels. (an) "Tenant's Obligation" means the Tenant's obligations under the Project Agreements. (ao) "Term" means the term set out in Section 2.2 and, where the context requires, any renewal, extension or overholding thereof. (ap) "Termination Date" means the date this Agreement is terminated for any reason other than the expiry of the Term. (aq) "Zoning By - law" means By -law No. 79 -200 as amended by The City of Niagara Falls. 1.2 Schedules The following schedules for part of the Lease: -10- Schedule "A ", Sketch of Lands; Schedule "B ", Legal Description; Schedule "C ", Delivery Plan; Schedule "D ", Dispute Resolution Procedure; and Schedule "E ", Site Plan. 1.3 Meaning of Including In this Lease the words "include ", "includes" or "including" mean "include without limitation ", "includes without limitation" and "including without limitation ", respectively, and the words following "include ", "includes" or "including" shall not be considered to set forth an exhaustive list. 2.1 Demise 2.2 Term 2.3 Right to Renew 2.4 Quiet Enjoyment ARTICLE 2 DEMISE AND TERM The Landlord demises and leases the Lands to the Tenant and the Tenant leases the Lands from the Landlord, as of and with effect on the Commencement Date and in accordance with the provisions of this Lease, to have and to hold for the Tenn. The Term of this Lease shall commence on the Commencement Date and shall expire on the day preceding the twenty-fifth anniversary of the Commencement Date, unless terminated earlier pursuant to the provisions of this Lease. The Tenant shall have the right to extend the Term of this Lease for one (1) further Term of twenty-five (25) years commencing on the twenty-fifth anniversary of the Commencement Date under the same terms and conditions as contained herein. The Tenant shall have the right to exercise such right only if it gives the Landlord notice of its intention to do so not later than two (2) years before the expiration of the initial twenty-five (25) -year Term referred to in Section 2.2, failing which this right to renew shall be null and void. Subject to the provisions of this Lease, the Tenant shall have and may peaceably enjoy and possess the Lands during the Term, without any interruption or disturbance whatsoever from the Landlord or any Person lawfully claiming from or under the Landlord. The Landlord shall defend its title to the Lands against any Person claiming any interest adverse to the Landlord in the Lands during the Term, save and except where such adverse interest arises as a result of the act, omission, negligence or wilful misconduct of the Tenant or those for whom the Tenant is in law responsible. 2.5 Overholding If, at the expiration of the initial Term or any subsequent extension thereof, the Tenant shall continue to occupy the Lands without further written agreement, there shall be no tacit renewal of this Lease, and the tenancy of the Tenant thereafter shall be from month to month only, and may be terminated by either party on one (1) month's notice. Rent shall be payable in advance on the first day of each month equal to the sum of one hundred and fifty percent (150 %) of the monthly installment of Rent payable during the last year of the Term and one - twelfth (1/12) of all Additional Rent provided for herein, determined in the same manner as if this Lease had been renewed, and all terms and conditions of this Lease shall, so far as applicable, apply to such monthly tenancy. 2.6 Landlord's Representations and Warranties The Landlord makes the following representations and warranties with respect to itself to the Tenant, and acknowledges that the Tenant is relying upon such representations and warranties in entering into this Lease: (a) the Landlord has the power and authority to enter into this Lease and to do all acts and things and execute and deliver all other agreements, instruments, undertakings or documents as are required under this Lease to be done or executed and delivered by it; (b) 3.1 Covenant to Pay, Net Lease the Landlord has taken all necessary action to authorize the execution, delivery and performance of this Lease; (c) it has sufficient title in to the Lands to allow the Project to operate as a convention centre including a lease hold interest in the Parking Lands and an Easement allowing vehicles to traverse the Hydro Lands. ARTICLE 3 RENT The Tenant covenants to pay Rent as provided in this Lease. It is the intention of the parties that, this is a net and carefree lease and that the Rent provided to be paid shall be net to the Landlord and clear of all Taxes, costs and charges arising from or relating to the Lands, and that the Tenant shall pay as Additional Rent all charges, impositions and expenses of every nature and kind relating 3.2 Realty and Rental Taxes 33 Payment Method 3.4 Partial Periods 4.1 Ground Rent -12- to the Lands as if it were an owner thereof in the manner hereinafter provided, and the Tenant hereby covenants with the Landlord accordingly. It is the express intent of the Landlord and Tenant that the premises shall be exempt from Realty Taxes pursuant to the provisions of section 110 (6) of the Municipal Act, 2001 S.O. 2001 c. 25. 1. The Rent is payable to the Landlord in advance, as more particularly set out in Article 4. 2. In the event of any change in the estimates of Additional Rent, the Landlord may require a new series of monthly post -dated cheques or new documentation (as applicable). 3. All estimates made by the Landlord that are sent to the Tenant by the Landlord shall be accompanied by sufficient detail to enable the Tenant, acting reasonably, to understand the basis for the estimates. If the Construction Period and/or the Term commences on any day other than the first day of the month, or ends on any day other than the last day of the month, Rent for the fraction of a month at the commencement or end of such period shall be calculated on a pro rata basis and shall be payable on the first day of the partial month. ARTICLE 4 GROUND RENT The Tenant covenants and agrees to pay, from and after the Construction Period, to the Landlord at the office of the Landlord or to such other Person or at such other location as the Landlord shall direct by notice in writing, in lawful money of Canada, without any prior demand therefor and without any deduction, abatement or set -off whatsoever, as annual Ground Rent, the sum of one dollar ($1.00), annually, in advance, on the first day of the Construction Period and upon each anniversary of the Commencement Date. 5.1 Additional Rent - 5.2 Business and Other Taxes ARTICLE 5 ADDITIONAL RENT 1. In addition to the Ground Rent reserved in favour of the Landlord, the Tenant shall, throughout the Construction Period and the Term, pay to the Landlord or as otherwise provided in this Lease, in lawful money of Canada, without any deduction, abatement or set -off whatsoever, as Additional Rent, the following costs incurred and attributable to the Lands and Improvements: all other sums, amounts, costs, cost escalations and charges that are, to be or have been imposed upon or charged to the Landlord, the Tenant or the Project by reason of the existence or operation of the Project. 2. All of the payments set out in this Lease shall constitute Ground Rent or Additional Rent, as applicable, and shall be deemed to be and shall be paid as Rent, whether or not any payment is payable to the Landlord or otherwise, and whether or not as compensation to the Landlord for expenses to which it has been put. The Landlord has all the rights against the Tenant for default in payment of Additional Rent that it has against the Tenant for default in payment of Ground Rent. In each and every year during the Construction Period and the Term, the Tenant shall pay as Additional Rent, discharge within thirty (30) days after they become due, and indemnify the Landlord from and against payment of, and any interest or penalty in respect of, the following: (a) every Tax, licence fee, rate, duty and assessment of every kind with respect to any business carried on by the Tenant on the Lands or by any subtenant, licensee, concessionaire or franchisee or anyone else, or in respect of the use or occupancy of the Lands by the Tenant, its subtenants, licensees, concessionaires or franchisees, or anyone else (other than such Taxes as income, profits or similar Taxes assessed upon the income and/or profits of the Landlord); and (b) all Rental or other Taxes in respect of the Tenant's fixtures, Improvements, equipment or facilities on or about the Lands, and any Rental Taxes occurring as a result of any reason peculiar to the Tenant. 5.3 Utilities and Services The Tenant shall be solely responsible for and shall promptly pay to the appropriate utility suppliers, as Additional Rent, all charges for water, gas, electricity, telephone and other utilities and services used or consumed in, and any other charges levied or assessed on or in respect of or services supplied to, the Lands and Improvements. In no event is the Landlord liable for, nor has the Landlord any obligation with respect to, an interruption or cessation of or a failure in the supply of any utilities, services or systems in, to or serving the Lands or Improvements. 6.1 Construction Period - ARTICLE 6 CONSTRUCTION OF CONVENTION CENTRE The Landlord shall carry out the construction of the convention centre during the Construction Period in accordance with the provisions of this Article 6. 6.2 Landlord to Construct Convention Centre It is the intention of the parties hereto that the Landlord is to erect the convention centre on the Lands at a total cost of not less than seventy-three million dollars ($73,000,000.00). The Landlord and Tenant agree that the Lands shall support a complete project and shall not be part of or connected with a Larger project or development on lands not forming part of the Lands. The Landlord shall construct and complete the Project expeditiously and in a good and workmanlike manner and in accordance with the Delivery Plan and provisions of this Article 6, and in particular: (a) shall make all reasonable efforts to cause the Project to be Substantially Completed not later than November 30, 2010; (b) shall cause such Project to be fully completed with reasonable diligence thereafter. 6.3 Copies of Construction Contracts The Landlord shall submit to the Tenant for collaborative purposes construction contracts which the Landlord proposes to enter into for the convention centre. 6.4 Duties of Landlord in Construction 1. The Landlord shall be responsible for all costs and liabilities associated with the design and construction of the convention centre save and except those expenses bome by the Tenant prior to the approval of the Project by the Council of the Landlord and those expenses associated in any way whatsoever with the Tenant's Chattels and the anticipated and ongoing operation of the Project. 2. The Landlord through the project supervisor and the contractor shall perform and comply with the following covenants and requirements in the construction of the convention centre: -15- (a) the convention centre shall be constructed in all respects in accordance with the site plan, subject to such changes as may be required by any Governmental Authority or otherwise as approved in writing by the Landlord; (b) all necessary building permits shall be obtained and all municipal by -laws and legal requirements pertaining to the conduct of the work shall be complied with; (c) the construction work shall be conducted expeditiously in a good and workmanlike manner and otherwise in accordance with the provisions of this Lease; (d) the Landlord, through the construction supervisor, shall properly supervise the work; (e) any contractor engaged on the work shall be required to observe all provisions of its contract, and to furnish and maintain all security, indemnity, insurance and performance bonds required by the contract. ARTICLE 7 OWNERSHIP, MAINTENANCE AND REPAIR 7.1 Ownership of Improvements and Fixtures 1. The Landlord shall be the owner of the Project. 2. The provisions of Section 7.1.1 shall not be construed to prevent the Tenant of the right of property in, or the right to remove, fixtures or Improvements which are of the nature of usual Tenants' fixtures and normally removable by lessees in the normal course of business, and which are not part of the structure or any essential part of the Improvements or any building services. The Tenant shall make good, or shall cause the lessees to make good, all damage to the Improvements or building services caused by any removal of the Tenant's fixtures. 3. So long as the Tenant is not in default, the Tenant may from time to time remove such Tenant's fixtures in the ordinary course of its business or in the event of any Changes made pursuant to this Lease, provided that the Tenant shall cause the Tenant's fixtures to be replaced with fixtures having a value and utility at least equal to that of the fixtures so removed, considering the need to replace obsolete or defective fixtures and to substitute improved fixtures, and the consequences of any reconstruction, changes and alterations to the Improvements. -16- 4. So long as the Tenant is not in default, the Tenant may from time to time remove its chattels in the ordinary course of business provided that the Tenant's Chattels shall, at the sole discretion of the Landlord, become the property of the Landlord upon the expiration of the Term, upon default or upon termination of the Lease. 7.2 Maintenance and Repair of the Project The Tenant shall, at its own cost and expense, during the entire Term, keep in good order and condition the Project, and the appurtenances and equipment thereof, both inside and outside, including fixtures, landscaping, pavement, curbs, walls, foundations, roofs, vaults, elevators and similar devices, heating and air- conditioning equipment, sidewalks on the property, yards and area ways, water and sewer mains and connections, water, gas and electric pipes and conduits, and all other fixtures in and appurtenances to the Lands and Improvements and machinery and equipment used or required in the operation thereof, whether or not enumerated herein, and shall make any and all necessary repairs, replacements, substitutions, improvements and additions, ordinary or extraordinary, foreseen or unforeseen, structural or otherwise, subject to reasonable wear and tear and Force Majeure. Such repairs shall be completed in a good and workmanlike manner and in all respects consistent in quality and workmanship appropriate for a similar project in the vicinity, and shall meet the requirements of municipal or governmental regulations and the fire insurance underwriters. 7.3 Inspection by Landlord The Landlord, its servants, agents and contractors shall be entitled to a constant right of inspection, that is, to enter upon the Project at any time, for the purpose of inspecting the Project. The Tenant shall not be entitled to compensation for any inconvenience, nuisance or discomfort occasioned thereby. The Landlord shall take reasonable precautions and attempt to schedule such inspections so as not to unreasonably interfere with the operation of any aspect of the business of the Project and to minimize interference with the Tenant's use and enjoyment of the Project. 7.4 Repairs or Replacements 1. The Tenant shall not make any repairs, additions, alterations, replacements or improvements (the "Changes ") to or of any part of the Project unless: (a) the Changes comply with all applicable by -laws, zoning regulations, site plan, other governmental requirements, Government Authorizations, Environmental Laws and the requirements of the Tenant's and Landlord's fire insurance underwriters; (b) the Changes do not weaken or endanger the structure of the Improvements; and 7.5 Waste, Nuisance 7.6 Lien Claims 8.1 Use 8.2 Compliance with Laws -17- (c) it has received the express written consent of the Landlord, which consent is not to be unreasonably withheld. 2. The Chief Administrative Officer of the City or his delegate shall have the authority to approve changes on behalf of the Landlord. 3. The Changes shall be constructed by the Tenant, without cost to the Landlord, in a good and workmanlike manner, using first -class materials. The Tenant shall not commit or suffer any waste or injury to the Project or any part thereof save and except any demolition and alteration respecting the Project as herein permitted, and shall not use or occupy or permit to be used or occupied the Project or any part thereof so as to constitute a nuisance or for any illegal or unlawful purpose, nor in any manner which may contravene any lawful restrictions of the use thereof by any Govemmental Authority. The Tenant shall at all times, at its own expense, keep the sidewalks, curbs and passageways adjacent to the Project clean from rubbish, ice and snow and shall not restrict or obstruct the same or allow the same to be restrict or obstructed in any manner. The Tenant shall not injure or disfigure the Project or permit the same to be injured or disfigured in any way. Except for Permitted Encumbrances, the Tenant shall not permit any lien to be registered against the Project for any labour or materials furnished to, or with the consent of, the Tenant, its agents or contractors, in connection with any work performed or claimed to have been performed on the Project by or at the direction or sufferance of the Tenant and shall take immediate steps to remove any such lien filed against the title to the Project forthwith upon receiving notice of the existence of the lien. ARTICLE 8 USE, COMPLIANCE WITH LAWS The Tenant covenants that the Improvements shall be used for the Niagara Convention and Civic Centre. The Tenant covenants that at all times the use made of the Improvements shall be in conformity with all of the requirements of the Zoning By -law, all applicable Environmental Laws and any other municipal or governmental statues, laws and regulations which may affect the Lands. -18- The Tenant shall comply with all police, fire and sanitary regulations imposed by any municipal or provincial or federal authorities or recommendations or requirements made by fire insurance underwriters, and observe and obey all municipal and governmental regulations and the terms of any Government Authorizations governing the conduct of any businesses carried out on the Lands and Improvements or with respect to the use of the Lands and Improvements. 9.1 Indemnification 1. The Tenant shall: ARTICLE 9 INDEMNITY (a) indemnify and save harmless the Landlord against and from all Claims by whomsoever made, brought or prosecuted; and (b) pay to the Landlord on demand, the amount of any Losses incurred by the Landlord; in either case in any manner based upon, arising out of, related to, occasioned by or attributable to: (i) any failure by the Tenant to perform any of the Tenant's Obligations under this Lease; (ii) any intentional wrongdoing or negligent act or omission in relation to the Premises by the Tenant or any Person for whom the Tenant is in law responsible; or (iii) any damage to property, either real or personal and whether owned by the Landlord or others (including any member of the public), howsoever occasioned by or as a result of the performance of the Tenant's Obligations under this Lease, or any personal or bodily injury to or death of any individual (including any member of the public), howsoever occasioned by or as a result of the performance of such obligations; provided that a Claim is made by the Landlord within a period of two (2) years from the Termination Date or the Expiry Date, as applicable, or within such shorter period as is set out in this Lease or as may be prescribed by any limitation statute applicable in the Province of Ontario and binding on the Landlord. 2. For the avoidance of doubt, the obligation of the Tenant to indemnify, save harmless and pay the Landlord under this Section 9.1 shall, despite any other provision of this Lease, survive the Termination Date or the Expiry Date, as applicable. 10.1 Tenant's Insurance - ARTICLE 10 INSURANCE 1. The Tenant shall, at its sole cost and expense, take out and maintain in full force and effect, at all times throughout the Term, the following insurance: (a) fire and extended perils, including flood, earthquake, collapse and sewer back -up, under a standard extended form of fire insurance policy, in such amounts and on such terms and conditions as would be carried by a prudent owner of a similar project, having regard to the size, age and location of the Project on the Lands, and such insurance shall add the Landlord as an additional insured, with coverage to the full insurable value thereof at all times (to be computed upon a Replacement Cost basis with deduction only of the cost of excavation and foundations); (b) general liability and property damage insurance, including personal liability, contractual liability, tenants' legal liability, non -owned automobile liability and owners' and contractors' protective insurance coverage with respect to the Lands, written on a comprehensive basis with inclusive limits of at least ten million dollars ($10,000,000) for each occurrence, or such higher limit as the Landlord, acting reasonably, or ariy mortgagee requires from time to time; (c) broad form comprehensive boiler and machinery insurance on a blanket repair and replacement basis, with limits for each accident in an amount not less than the full Replacement Costs of the property and Improvements, with respect to any boilers and machinery upon the Lands or relating to or serving the Lands, and such insurance shall add the Landlord as an additional insured; and (d) any other form of insurance with whatever limits the Tenant, the Landlord, acting as a prudent owner reasonably requires from time to time, in such form and amounts and for risks against which a prudent Tenant under similar circumstances would insure. 2. All public liability insurance shall contain a provision for cross liability or severability of interest as between the Landlord and the Tenant. All the foregoing property policies shall contain a waiver of any right of subrogation or recourse by the 10.2 Landlord's Insurance -20- The Landlord may, at its sole discretion, maintain a contractual liability rider with respect to the Premises, whereby this additional insurance coverage would act as secondary insurance in the event that the Tenant's insurance is insufficient or the Tenant's coverage is denied due to a violation of the Tenant's policy. 10.3 Insurance Proceeds Tenant's insurers against the Landlord or its contractors, agents and employees, whether or not any loss is caused by the act, omission or negligence of the Landlord, its contractors, agents or employees or those for whom the Landlord is in law responsible. The Tenant shall obtain, from the insurers under the building coverage, undertakings to notify the Landlord in writing at least thirty (30) days prior to any cancellation thereof. The Tenant shall furnish to the Landlord, upon written request, certificates of all such policies. Where a partial or complete destruction of the Project occurs the proceeds of any all policies of insurance respecting the Project shall be paid to the Landlord to be administered and applied by the Landlord as directed by the Council of the Landlord. 10.4 Insurers All contracts of insurance required to be maintained under the provisions of this Lease shall be with a company or companies licensed to do business within the Province of Ontario engaged, inter alia, in the business of insuring against the risks herein described. 10.5 Landlord's Right to Insure If the Tenant fails to obtain any or all of the policies of insurance required hereunder, the Landlord may itself, after not less than twenty -four (24) hours' notice to the Tenant, obtain such policies and shall give the Tenant a notice setting out the amount and dates of payment of all costs and expenses incurred by the Landlord in connection therewith to the date of such notice; the Tenant shall, with the next installment of Rent which becomes due, pay the same to the Landlord with interest at the Interest Rate, calculated on the various amounts from the respective dates of payment thereof by the Landlord. Any sum so expended by the Landlord, together with such interest, shall constitute Rent hereunder and be collectible as Rent payable on demand. 10.6 Evidence of Insurance The Tenant shall furnish the Landlord with certificates or other acceptable evidence of all required insurance promptly upon request. Such insurance shall show the Landlord as a named insured and shall provide for a waiver of subrogation among insureds, and liability insurance shall -21- provide for severability of interests and cross liability among insureds. All proceeds of any insurance shall first be used by the Tenant for the costs of repairing, reconstructing or replacing, as the case may be, the damaged or destroyed portions of the Improvements to the standard set out herein, except as otherwise provided for in this Lease. 11.1 No Change in Control 11.2 Composition of Board of Tenant (g) ARTICLE 11 STRUCTURE OF THE TENANT The Tenant shall not permit or allow a change in the Control of the Tenant, except with the prior consent of the Landlord which consent shall not be unreasonably withheld. The Board of Directors of the Tenant shall consist of up to 13 members each of whom shall have one vote in any matter put to the Board and shall be made up as follows: (a) 1 representative designated by the Council of the City of Niagara Falls; (b) 1 representative designated by the Niagara Parks Commission; (c) 1 representative designated by Falls Management Corporation; (d) 1 representative designated by the Regional Municipality of Niagara; (e) 1 representative designated by the tourism industry ofNiagara Falls nominated by the Board of Management of the Victoria Centre Business Improvement Area; (f) 6 representatives designated by the tourism industry of Niagara Falls nominated by the Board of Management of the Fallsview Business Improvement Area; 1 representative designated by Niagara Falls Tourism; (h) A thirteenth member to be appointed as soon as practicable. 11.3 Rules of Procedure for Board Meetings Throughout the Tenn of this Agreement, the Tenant shall provide the Landlord with a written copy of its current rules of procedure for its Board meetings, as are promulgated by the Tenant's Board from time to time. 12.1 No Assignment - 12.2 Sublet with Authorization ARTICLE 12 ASSIGNMENT AND SUBLETTING The Landlord and the Tenant acknowledge and agree that the benefits and burdens of this Lease cannot be assigned, sublet, or otherwise conveyed to any third party. The Tenant shall be permitted to sublet portions of the building which forms a part of the Project subject to the written authorization of the Landlord, which authorization shall not be unreasonably withheld. The Application of this clause is restricted to transactions and agreements that grant or have the effect of granting a right to occupy part or all of the Project for a period of more than 3 (three) consecutive months. 13.1 Secured Lender Security ARTICLE 13 LENDER'S RIGHTS AND REMEDIES From time to time during the Term the Tenant shall have the right, at its cost, to enter into a Secured Lender's Security Agreement. A Secured Lender' s Security Agreement shall be upon and subject to the following conditions: (a) A Secured Lender's Security Agreement may be made for any amounts and upon any terms (including terms of the loans, interest rates, payment terms and prepayment privileges or restrictions) as desired by the Tenant, except as otherwise provided in this Agreement. (b) No Secured Lender's Security Agreement shall affect or encumber in any manner the Landlord's freehold title to the Lands. (c) The Landlord shall have no liability whatsoever for payment of the principal sum secured by any Secured Lender's Security Agreement, or any interest accrued thereon or any other sum secured thereby or accruing thereunder; and the Secured Lender shall not be entitled to seek any damages against the Landlord for any or all of the same. (d) No Secured Lender's Security Agreement shall be binding upon the Landlord in the enforcement of the Landlord's rights and remedies provided in this Lease or by Laws and Regulations, unless and until a copy of the original thereof and the registration details, if applicable, together with written notice of the address of the Secured -23- Lender to which notices may be sent have been delivered to the Landlord by the Tenant or the Secured Lender; and in the event of an assignment of such Secured Lender's Security Agreement, such assignment shall not be binding upon the Landlord unless and until a copy thereof and the registration details, if applicable, together with written notice of the address of the assignee thereof to which notices may be sent, have been delivered to the Landlord by the Tenant or the Secured Lender. (e) A Secured Lender's Security Agreement must provide that if the Tenant is in default under a Secured Lender's Security Agreement and the Secured Lender gives notice of such default to the Tenant then the Secured Lender shall give notice of such default to the Landlord and no such notice to the Tenant shall be valid for any purpose as against the Tenant until such notice has also been given to the Landlord. (f) Any Secured Lender's Security Agreement permitted hereunder may secure two (2) or more separate debts, liabilities or obligations in favour of two (2) or more separate Secured Lenders, provided that such Secured Lender's Security Agreement complies with the provisions of this Article 13. (g) ( i) (k) Any number of permitted Secured Lender's Security Agreements maybe outstanding at any one time, provided that each such Secured Lender's Security Agreement complies with the provisions of this Article 13. (h) Despite any enforcement of any Secured Lender's Security Agreement, the Tenant shall remain liable to the Landlord for the payment of all sums owing to the Landlord under this Lease and for the performance of all of the obligations of the Tenant under this Lease. The Secured Lender must agree with the Landlord to discharge its Secured Lender's Security Agreement for no consideration upon the occurrence of the Termination Date or the Expiry date, as applicable. (j) The Secured Lender shall not, by virtue of its Secured Lender's Security Agreement, acquire any greater rights or interest in the Premises and the Project than the Tenant has at the material time under this Lease, provided that the foregoing shall in no way be construed as restricting the right of the Secured Lender from being named as a loss payee and named insured together with the Landlord and other Persons contemplated in Section 10.1 or Article 10 under any policy of insurance required pursuant to Article 10. The Secured Lender must agree with the Landlord that if the Secured Lender makes demand of the Secured Lender Reimbursement Amount with a view to exercising its rights and remedies under the Secured Lender's Security Agreement, the Secured -24- Lender shall contemporaneously with the making of such demand on the Tenant deliver a copy of such demand to the Landlord. Upon receipt of such copy of the demand, the Landlord shall have the right, but not the obligation, to pay the Secured Lender Reimbursement Amount to the Secured Lender and, by doing so, have all right, title and interest of the Secured Lender in and to the Secured Lender's Security Agreement and all indebtedness, liabilities and other amounts owing to the Secured Lender that are secured by the Secured Lender's Security Agreement assigned to the Landlord free and clear of Encumbrances so that the Landlord shall be entitled to stand in the place and stead of the Secured Lender with respect to the Secured Lender Reimbursement Amount and the Secured Lender's Security Agreement. 13.2 Rights and Obligations of Secured Lenders At any time that the Landlord has received proper notice of a Secured Lender's Security Agreement, the Landlord shall notify the Secured Lender of the service of any notice of default pursuant to section 15.2 and 17.5. ARTICLE 14 DAMAGE AND DESTRUCTION 14.1 Damage or Destruction of Improvements The complete or partial destruction or damage, by fire or other casualty, of the Improvements shall not, except as provided herein, terminate this Lease or entitle the Tenant to surrender possession of the Lands or to have or to demand any abatement or reduction of the Rent or other charges payable under this Lease. 14.2 Restoration of Improvements The Landlord covenants and agrees that, following the damage or destruction of any of the Improvements, it shall subject to Section 14.3, repair, reconstruct or replace such damaged or destroyed Improvements. All insurance moneys shall be made available to the Landlord to pay for the cost of such restoration, reconstruction and repair and, should the insurance moneys be insufficient to pay the entire cost, the Tenant agrees to pay the deficiency. 14.3 Landlord's Right to Decline to Restore Notwithstanding Section 14.2, in the event of damage to or destruction of the Project to the extent that the Landlord, acting reasonably determines that the cost to repair the Project would exceed more than fifty percent (50 %) of the cost of the initial cost of the construction of the Project, the Landlord may elect to terminate this Lease by written notice to the Tenant within one hundred and twenty (120) days following the damage or destruction, and the Landlord shall restore the Lands to the condition they were in immediately prior to construction of the Project, and this Lease shall be deemed to have been terminated as of the date of such damage or destruction. 15.1 Default and Right to Re - enter - ARTICLE 15 DEFAULT The occurrence of any one or more of the following events shall constitute a "Tenant Default" under this Lease: (a) If the Tenant fails to make payment of any Rent owing to the Landlord under this Lease when due. (b) If the Tenant fails to provide any or all of the insurance required by this Lease. (c) If there is a pattern over a rolling period of twenty -four (24) consecutive full calendar months of the Tenant Defaults referred to in this Section 15.1 repeatedly occurring and the Landlord has given thirty (30) days' notice of such pattern to the Tenant. (d) If the Tenant fails or neglects to comply with the requirements or directives of a final award, order or decision in a matter arbitrated in accordance with Article 16 within the period of time for compliance stated in such award, order or decision or, if no such period of time is stated in the award, order or decision for 15 days after the date of the decision. (e) (t) (g) If any resolution is passed for the dissolution, liquidation or winding -up of the Tenant or for the suspension of operations of the Tenant. If a decree, judgment or order of a court having jurisdiction is issued or entered adjudging the Tenant bankrupt or insolvent, ordering the winding -up or liquidation of the Tenant or approving any reorganization, arrangement, compromise, composition, compounding, extension of time, moratorium or adjustment of some or all of the liabilities of the Tenant under the Companies' Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada) or the Winding - up and Restructuring Act (Canada) or any other bankruptcy, insolvency, moratorium, reorganization or analogous law of any applicable jurisdiction and such decree, judgment or order continues unstayed and in effect and is not withdrawn, dismissed, overturned or set aside within the period of ninety (90) days following its issuance or entry. If execution or any analogous process is issued or filed against the Tenant or against all or a substantial part of its property or assets and such execution or other process (h) ( i) -26- continues unstayed and in effect and is not withdrawn, dismissed, overturned or set aside within the period of sixty (60) Business Days following its issuance or filing and the same has a material and adverse effect on the performance of the obligations of the Tenant under this Lease. If a trustee, receiver, receiver and manager, interim receiver, custodian, liquidator, provisional liquidator, agent for a secured creditor or other Person with similar powers is appointed in any manner (judicially or extra judicially) in respect of the Tenant or in respect of all or a substantial portion of the property or assets of the Tenant and such appointment continues unstayed and in effect and is not withdrawn, overturned, set aside or revoked within the period of ninety (90) days following the appointment. If the Tenant becomes insolvent, admits its inability to pay or fails to pay its debts generally as they become due, acknowledges its insolvency, makes an assignment in bankruptcy or any other assignment for the benefit of creditors generally, or files any proposal, notice of intention or petition or otherwise commences or consents to or acquiesces in the commencement of any proceeding seeking any reorganization, arrangement, compromise, composition, compounding, extension of time, moratorium or adjustment of some or all of the liabilities of the Tenant under the Companies' Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), or the Winding - up and Restructuring Act (Canada) or any other bankruptcy, insolvency, moratorium, reorganization or analogous law of any applicable jurisdiction, or applies for, consents to or acquiesces in the appointment in any manner (judicially or extra judicially) of a trustee, receiver, receiver and manager, interim receiver, custodian, liquidator, provisional liquidator, agent for a secured creditor or other Person with similar powers in respect of the Tenant or in respect of all or a substantial portion of the property or assets of the Tenant. (j) .A Change in Control of the Tenant. (k) A request by the Tenant for any kind of funding or assistance in kind from the Landlord. (1) If the Tenant: (i) amalgamates, consolidates, reorganizes or merges with another entity; (ii) creates a new class of shares in itself; (iii) enters in any agreement to issue any shares of any class, or any securities convertible into any shares of any class, of itself or grants any option or other right to purchase any shares or securities convertible into such shares; 15.2 Remedies of Landlord -27- (iv) amends the rights restrictions or privileges of any shares or class of shares of itself; (v) disposes of or encumbers all or substantially all of its assets; (vi) if the Tenant adopts changes to the corporate structure of itself regarding proportional representation of the members of its Board of Directors or in any way restricts the members of that Board of Directors from overseeing the operations of itself; (vii) changes the number and composition of the Board of Directors of itself; (viii) invests any revenue derived from the operation or existence of the convention centre or received by the Tenant for the funding or the operation or design and construction of the convention centre in any venture, enterprise, business, transaction or endeavour other than the design, construction, management, maintenance or operation of the convention centre; (ix) enters into any partnership, joint venture or other business venture that would involve the expenditure or investment of funds by Niagara Convention and Civic Centre Inc. outside the normal course of business; (x) makes loans, enters contracts or provides financial support to any Person not at arm's length to any officer, director or employee of itself and any Person who is a member of any Business Improvement Area that contributes to the operation and maintenance of the Niagara Convention and Civic Centre on terms more favourable than those available to the general public; (xi) makes any one time expenditure greater than two million dollars ($2,000,000.00) (the method of calculation and estimation of the expenditure to be at the discretion of the Landlord acting reasonably); in the absence of the express written consent of the Landlord, which shall not be unreasonably withheld. Upon the occurrence of a Tenant Default, the Landlord may by notice to the Tenant, (a) The Landlord may terminate this Lease by giving thirty (30) days' notice to the Tenant. 15.3 Distress -28- (b) If the Tenant is in default under this Lease by reason of the failure to pay any amount due to a Person other than the Landlord, the Landlord may (without obligation to do so) make payment on behalf of the Tenant of such amount. Any amount so paid by the Landlord shall be payable by the Tenant to the Landlord on demand. (c) The Landlord may cure or attempt to cure the Tenant Default (but this shall not obligate the Landlord to cure or attempt to cure a Tenant Default or, after having commenced to cure or attempted to cure a Tenant Default, to continue to do so) and all costs incurred by the Landlord in curing or attempting to cure the Tenant Default shall be payable by the Tenant to the Landlord on demand. No such action by the Landlord shall be deemed to be a termination of this Lease. The Landlord shall not incur any liability to the Tenant for any act or omission of Landlord or any other Person in the course of curing or attempting to cure any Tenant Default. (d) The Landlord may seek specific performance, injunction or other equitable remedies. (e) The Landlord may seek to recover its Losses and any amounts due and payable under this Lease and, in connection therewith, exercise any recourse available to any Person who is owed damages or a debt. (f) With respect to those Tenant Defaults which entitle the Landlord to terminate this Lease, the Landlord may re -enter the Lands in the name of the whole and have again, repossess and enjoy the Lands as of the Landlord's former estate. No re -entry by the Landlord shall be construed as an election on its part to terminate this Lease unless a notice of such intention is given to the Tenant. Despite a reletting without termination, the Landlord may at any time thereafter elect to terminate this Lease for the previous breach. Any re -entry or termination of this Lease made in accordance with this Lease as against the Tenant shall be valid and effectual against the Tenant. (g) (h) The Landlord may exercise any of its other rights and remedies provided for in this Lease. In any case involving a Tenant Default listed in sub - section 15.1 (1) the Landlord shall have the right to terminate this agreement forthwith and to enter and take possession of the Project. Notwithstanding any provision of this Lease or any provision of any applicable legislation, none of the goods and chattels of the Tenant on the Lands at any time shall be exempt from levy by distress for Rent in arrears, and the Tenant waives any such exemption. If the Landlord makes any Claim against the goods and chattels of the Tenant by way of distress, this provision may be pleaded as an estoppel against the Tenant in any action brought to test the right of the Landlord to levy such distress. 16.1 Arbitration Unless otherwise provided in this Lease, any dispute between the Lease the parties hereto concerning any matter arising under this Lease, except for issues related to payment of a liquidated sum of money, shall be submitted to a private and confidential arbitration dispute resolution procedure in accordance with the provisions of this Article 16, and the rules and procedures described in Schedule "D ". 16.2 Arbitration Act The provisions of the Arbitration Act, 1991 (Ontario) shall apply to the extent that they are not inconsistent with this Article 16 or Schedule "D ". 17.1 Procedure for Approvals and Consents Wherever the provisions of this Lease require, provide for or permit an approval or consent by the Landlord of or to any action, Person, document, budget, list, plan or other matter or thing contemplated by this Lease, the following provisions shall apply (except to the extent that this Lease otherwise provides): (a) such request for approval or consent must be in writing and: (i) -29- ARTICLE 16 SETTLEMENT OF DISPUTES ARTICLE 17 GENERAL contain or be accompanied by any documentation or information required for such approval or consent in reasonably sufficient detail, as determined by the Landlord; (ii) clearly set forth the matter in respect of which such approval or consent is being sought; (iii) form the sole subject matter of the correspondence containing such request for approval or consent; and (iv) state clearly that such approval or consent is being sought; (0 -30- (b) such approval or consent must be in writing; (c) such approval or consent shall not be unreasonably withheld or delayed; (d) the Landlord shall, promptly after the date of receipt by the Landlord of a request by the Tenant for an approval or consent, advise the Tenant by notice either that it consents or approves or that it withholds its consent or approval, in which latter case it shall set forth, in reasonable detail, its reasons for withholding its consent or approval, which reasons may include the insufficiency, as determined by the Landlord acting reasonably, of the information or documentation provided; (e) if the responding notice mentioned in Section 17.1(d) indicates that the Landlord does not approve or consent, the Tenant may take whatever steps may be necessary to satisfy the objections of the Landlord set forth in the responding notice and, thereupon, may resubmit such request for approval or consent from time to time and the provisions of this Section 17.1 shall again apply, if the disapproval or withholding of consent mentioned in Section 17.1(d) is subsequently overruled, such approval or consent shall be deemed to have been given on the date of the final determination of such overruling; if the disapproval or withholding of consent mentioned in Section 17.1(d) is not subsequently overruled, the disapproval withholding of consent of the Landlord shall be deemed to be final; and (g) 17.2 Entry (h) any dispute as to whether a consent or approval has been unreasonably withheld or delayed shall be resolved in accordance with Article 16. The Landlord may enter the Lands at any time during the Construction Period and the Term, upon reasonable notice, for the purpose of inspecting the Project. 17.3 Force Majeure Notwithstanding any other provision contained herein, in the event that either the Landlord or the Tenant should be delayed, hindered or prevented from the performance of any act required hereunder by reason of any unavoidable delay, including strikes, lockouts, unavailability of materials, inclement weather, acts of God, govemmental restrictions or any other cause beyond its reasonable care and control, but not including insolvency or lack of funds, then performance of such act shall be postponed for a period of time equivalent to the time lost by reason of such delay. The provisions of this Section 17.3 shall not, under any circumstances, operate to excuse the Tenant from prompt payment of Rent and/or any other charges payable under this Lease. 17.4 Effect of Waiver or Forbearance No waiver by any party hereto of any breach by any other party of any of its covenants, agreements or obligations contained in this Lease shall be or be deemed to be a waiver of any subsequent breach thereof or the breach of any other covenants, agreements or obligations, nor shall any forbearance by any party hereto to seek a remedy for any breach by any other party be a waiver by the party so forbearing of its rights and remedies with respect to such breach or any subsequent breach. The subsequent acceptance of Rent by the Landlord shall not be deemed a waiver of any preceding breach by the Tenant of any term, covenant or condition regardless of the Landlord's knowledge of such preceding breach at the time of the acceptance of such Rent. All Rent and other charges payable by the Tenant to the Landlord hereunder shall be paid without any deduction, set -off or abatement whatsoever, and the Tenant hereby waives the benefit of any statutory or other right in respect of abatement or set off in its favour at the time hereof or at any future time. 17.5 Notices (a) Unless otherwise provided in this Lease, all notices, requests, Claims, reports, certificates, other communications, consents and approvals required or permitted by this Lease shall be in writing and shall be given by personal delivery, or sent by electronic facsimile, or mailed by prepaid registered mail, or delivered by courier service. Notices shall be addressed to a party at its address as follows (or at such other address as that party specifies by written notice in accordance with this Section 17.5): To Landlord: The Corporation of the City of Niagara Falls City Hall 4310 Queen Street P.O. Box 1023 Niagara Falls, ON L2E 6X5 Attention: Chief Administrative Officer Telephone No.: (905) 356 -7521 Telecopier No.: (905) 374 -3557 -31- (b) 17.6 Survival of Provisions 17.7 Further Acts 17.8 Interest To the Tenant: -32- Niagara Convention and Civic Centre Inc. 6380 Fallsview Boulevard, Suite 202 Niagara Falls, ON L2G 7Y6 Telephone No.: (905) 357 -6222 Telecopier No.: (905) 357 -6212 A notice, request, Claim, report, certificate, other communication, consent or approval shall be deemed to have been received: (i) on the day it is delivered or on the day on which transmission is confirmed by the sender's telecopier records, if telecopied, or if such day is not a Business Day or if the notice, request, Claim, other communication, consent or approval is received after ordinary office hours (time of place of receipt), the notice, request, Claim, report, certificate, other communication, consent or approval shall be deemed to have been received on the next Business Day; or (ii) on the fifth Business Day after the date of mailing, if sent by prepaid registered mail. All obligations under this Lease which expressly or by their nature survive the Termination Date or the Expiry Date, as applicable, shall continue in force until they are satisfied or by their nature expire. The parties shall do or cause to be done all such further acts and things as may be reasonably necessary or desirable to give full effect to this Lease. Without limiting the foregoing, each party shall at any time and from time to time execute and deliver or cause to be executed and delivered such further instruments and take such further actions as may be reasonably requested by the other party or parties in order to cure any defect in the execution and/or delivery of this Lease. Any amount not paid when due under this Lease shall bear interest at a variable nominal rate per annum equal on each day to the Interest Rate then in effect, from the date such payment is due until payment and both before and after judgment. 17.9 Costs -33- Except as otherwise provided in this Lease, each party shall be responsible for its own costs incurred in connection with performing its obligations under this Lease. 17.10 Continuing Obligations Except as otherwise provided in this Lease: (a) termination of the Lease or the expiration of the Term shall be without prejudice to any accrued rights and obligations under this Lease as at the Termination Date or the Expiry Date, as applicable; and (b) termination of the Lease or the expiration of the Term shall not affect the continuing rights of the Landlord under this Agreement or under any other provision of this Lease that is required to give effect to such termination or expiry or the consequences of such termination or expiry. 17.11 Registration 1. Neither the Tenant nor anyone on the Tenant's behalf or claiming under the Tenant (including any Transferee) shall register in full this Lease or any Transfer against the Lands. The Tenant may register a notice or caveat of this Lease provided that: (a) a copy of the Lease is not attached; and (b) the Landlord gives its prior written approval of the notice or caveat, which shall not be unreasonably withheld. 2. Upon the expiration or earlier termination of the Term, the Tenant shall immediately discharge or otherwise vacate any such notice or caveat. 17.12 Number, Gender, Effect of Headings Words importing the singular number only shall include the plural and vice versa, words importing the masculine gender shall include the feminine and neuter genders, and words importing Persons shall include firms and corporations and vice versa. The division of this Lease into Articles and Sections and the insertion of headings are for convenience of reference only, and shall not affect the construction or interpretation of this Lease. 17.13 Severability, Subdivision Control Should any Article or Section or part or parts of an Article or Section in this Lease be illegal or unenforceable, it or they shall be considered separate and severable from the Lease and the remaining provisions of this Lease shall remain in full force and effect and shall be binding upon the Landlord and the Tenant as though such Article or Section or part or parts thereof had never been included in this Lease. It is an express condition of this Lease that the subdivision control provisions of the applicable provincial Legislation be complied with, if necessary. If such compliance is necessary, the Tenant covenants and agrees to diligently proceed, at its own expense, to obtain the required consent. 17.14 Entire Agreement Landlord and Tenant warrant that the terms and conditions of this Lease were fully read and understood and this Lease, including the Schedules and any other documents referred to herein, constitutes the entire Agreement and understanding among the parties with respect to the subject matter hereof, and shall supersede all prior oral and written agreements or understandings of the parties relating hereto. There are no covenants, representations, warranties, agreements or other conditions expressed or implied, collateral or otherwise, forming part of or in any way affecting or relating to this Lease, save as expressly set out or incorporated by reference herein, and this Lease constitutes the entire Agreement duly executed by the parties hereto, and no amendment, variation or change to this Lease shall be binding unless the same shall be in writing and signed by the parties hereto. 17.15 Successors and Assigns The rights and liabilities of the parties shall enure to the benefit of their permitted successors and assigns, subject to any requirement for consent by the Landlord hereunder. 17.16 Counterparts This Lease may be executed in any number of counterparts that, taken together, shall constitute one and the same agreement. This Lease shall be effective when it has been executed by each of the parties and delivered to all parties. 17.17 Facsimile Execution -34- To evidence the fact that it has executed this Lease, a party may send a copy of its executed counterpart to all parties by facsimile transmission. Such party shall be deemed to have executed and delivered this Lease on the date it sent such facsimile transmission. In such event, such party shall forthwith deliver to the other parties an original counterpart of this Lease executed by such part'. -35- IN WITNESS WHEREOF the parties hereto have duly executed this Lease. THE CORPORATION OF THE CITY OF NIAGARA FALLS Per: Per: James M. Diodati, Mayor Dean Iorfida, City Clerk NIAGARA CONVENTION AND CIVIC CEN INC. Name: Tit Name: s TEL — Title: S e- 0_6 TeKti -36- SCHEDULE "A" SKETCH OF LANDS Convention Centre lands: Part of Ontario House Lot and Part of Range 1, Plan 1, Stamford, Part of Township Lot 160, Stamford, described as Parts 1, 2, 3, 4, 5, 6, 7, 8 and 9 on Reference Plan 59R- 13628; subject to an easement in gross over Part 3 on Reference Plan 59R - 13628, as in Instrument Number ST22511; subject to an easement in gross over Parts 3, 6 and 7 on Reference Plan 59R- 13628, as in Instrument Number LT30773; subject to an easement in gross over Part 4 on Reference Plan 59R - 13628, as in Instrument Numbers ST25642 and LT30774; subject to an easement in gross over Parts 8 and 9 on Reference Plan 59R - 13628, as in Instrument Number LT30774; subject to an easement in gross over Part 1 on Reference Plan 59R - 12211, as in Instrument Number SN28103; subject to Instrument Number ST50637, City of Niagara Falls, Regional Municipality of Niagara (PIN 64376 - 0183). Stanley Avenue Easement lands: Part of Ranges 1 and 2, Registered Plan 1, described as Part 1 on Reference Plan 59R- 14023, City of Niagara Falls, Regional Municipality of Niagara (Part of PIN 64376- 0180). Parking Lot lands: Part of Block 39, Plan 1, and Parts of Lots 160 and 173, Stamford, described as Parts 1 and 2 on Reference Plan 59R -11609 and Parts 1, 2, 3, 4 and 5 on Reference Plan 59R -4726, City of Niagara Falls, Regional Municipality of Niagara (PIN 64376 - 0023). Hydro Easement lands: -37- SCHEDULE "B" LEGAL DESCRIPTION Part of Range 1, Registered Plan 1, and Part of Stamford Township Lot 160, described as Parts 10, 14, 15, 16 and 18 on Reference Plan 59R- 13628, City of Niagara Falls, Regional Municipality of Niagara (Part of PIN 64376 - 0175). Hydro Licence lands: Part of Lots 14 and 15, Registered Plan 41, Part of Ranges 1 through 6, Registered Plan 1, and Part of Stamford Township Lots 160 and 173, described as Parts 11, 12, 13 and 17 on Reference Plan 59R - 13628, City of Niagara Falls, Regional Municipality of Niagara (Part of PIN 64376- 0175). -38- SCHEDULE "C" DELIVERY PLAN The construction of a convention centre in accordance with the contract between The Corporation of the City of Niagara Falls and Bondfield Construction Company Limited dated December 15, 2008, to be completed on or before November 30, 2010, following which Niagara Convention and Civic Centre Inc. will operate the convention centre in accordance with the requirements of this Agreement. The milestones for completion of the Project will be as follows: 1. Construction begins May 1, 2009. 2. Substantial Completion on or before November 30, 2010. 3. Occupancy on or before February 15, 2011. 1. Amicable Negotiations 2. Mediation - SCHEDULE "D" DISPUTE RESOLUTION PROCEDURE (a) Unless otherwise provided in this Lease, in the event of any dispute arising between the Landlord and the Tenant under or relating in any way to this Agreement, its negotiation, the performance of obligations thereunder or to any relationships or legal obligations created thereby, such dispute shall be referred, in the first instance, by notice from the Landlord or the Tenant requiring the dispute to be resolved by negotiation. (b) If the dispute is not resolved to the mutual satisfaction of the Landlord and the Tenant within fifteen (15) Business Days (or such longer period as the Landlord and the Tenant may agree) following such notice, the Landlord or the Tenant may by notice to the other require that the dispute be resolved by mediation as set out below, unless both the Landlord and the Tenant waive such requirement in writing. If both the Landlord and the Tenant waive the mediation requirement, either of them may by notice to the other require the dispute to be resolved by arbitration as set out below. The mediation shall be held within thirty (30) Business Days following the end of the fifteen (15) - Business Day period. Within seven (7) Business Days following the end of such fifteen (15) - Business Day period, the Landlord and the Tenant jointly shall select and appoint a skilled and experienced commercial mediator to assist them to reach an agreement through mediation. The mediation shall be conducted under such mediation rules as the mediator recommends and the cost of the mediation shall be shared as to one-half by the Landlord and as to one -half by the Tenant. Any settlement reached by mediation shall be reduced to writing, shall be signed by the Landlord and the Tenant and shall be final and binding on the Landlord and the Tenant. If the Landlord and the Tenant fail to agree on a mediator within seven (7) Business Days or the dispute is not resolved to their mutual satisfaction within thirty (30) Business Days following the date of receipt of the notice of mediation, either may by notice to the other require the dispute to be resolved by arbitration as set out below. 3. Initiation of Arbitration Proceedings (a) If the procedures described above do not result in the resolution of the dispute, mandatory arbitration proceedings may be commenced by the Landlord or the Tenant (the "Initiating Party") giving notice (the "Initiation Notice ") to the otherparty (the "Responding Party"). The Initiation Notice must state the nature of the dispute, the amount involved, if any, and the remedy sought and request such arbitration. (b) (c) (f) 4. Basic Procedure (b) -40- The place of arbitration shall be Niagara Falls, Ontario. The Single Arbitrator or panel of arbitrators appointed to act hereunder (the "Arbitrator ") shall have appropriate qualifications by profession or occupation to decide the matter in dispute. (d) Within fifteen (15) Business Days following receipt of the Initiation Notice by the Responding Party, the Initiating Party and the Responding Party shall designate one arbitrator (the "Single Arbitrator ") acceptable to both of them. If the Initiating Party and the Responding Party fail to appoint a Single Arbitrator within such period of time, the Initiating Party shall, by notice to the Responding Party, appoint an arbitrator. The Responding Party shall, within fifteen (15) Business Days following receipt of such notice, appoint an arbitrator by notice to the Initiating Party and the two arbitrators so appointed shall select a third arbitrator acceptable to both arbitrators. (e) If the Responding Party fails to appoint an arbitrator within such period of time (or such additional period of time as the Initiating Party and the Responding Party may agree) the Initiating Party may appoint an arbitrator on behalf of the Responding Party and is hereby appointed the agent of the Responding Party for such purpose. If the two arbitrators so appointed are unable to agree upon the third arbitrator (the "Presiding Arbitrator ") within fifteen (15) Business Days following the appointment of the arbitrator by the Responding Party, either of such parties shall be entitled to make application under the Arbitration Act, 1991 (Ontario) for the appointment of the third arbitrator. The fact that a person was proposed by a party as a potential Single Arbitrator shall not by that fact disqualify the person from being appointed by a party or the Court as an arbitrator. (a) Within fifteen (15) Business Days following the appointment of the Arbitrator, the Initiating Party shall send to the Responding Party and the Arbitrator a statement of claim (the "Statement of Claim ") stating in sufficient detail the facts and any contentions of law on which the Initiating Party relies and the relief that it Claims. Within thirty (30) Business Days following the receipt of the Statement of Claim, the Responding Party shall send to the Initiating Party and the Arbitrator. a statement of defence and, if applicable, counterclaim, (collectively, the "Statement of Defence ") stating in sufficient detail which of the facts and contentions of law in the Statement of Claim the Responding Party admits or denies, on what grounds, and any other facts and contentions of law on which it relies. -41- (c) Within fifteen (15) Business Days following receipt of the Statement of Defence, the Initiating Party may send to the Responding Party and the Arbitrator a statement of reply and, if applicable, defence to counterclaim (collectively, the "Statement of Reply "). (d) Within fifteen (15) Business Days following receipt of the Statement of Reply, the Responding Party may send to the Initiating Party a statement of reply to counterclaim (the "Statement of Reply to Counterclaim "). (e) Every Statement of Claim, Statement of Defence, Statement of Reply and Statement of Reply to Counterclaim shall be accompanied by copies (or, if they are especially voluminous, lists) of all essential documents and other materials on which the party concerned relies. Documents so listed shall be produced for inspection and copying within twenty (20) days of a request for production. The costs of reproduction shall be borne initially by the party listing the documents. (f) After submission of the Statement of Claim, the Statement of Defence, the Statement of Reply and the Statement of Reply to Counterclaim, if any, the Arbitrator shall forthwith meet with and give directions to the parties to the arbitration for the further conduct of the arbitration. (g) There shall be no oral discovery. 5. Meetings and Hearings (a) Although the place of arbitration shall be Niagara Falls, Ontario, meetings and hearings of the Arbitrator may take place in such other place or by such mode as the parties to the arbitration agree. Meetings and hearings shall be conducted in the English language unless otherwise agreed by the parties to the arbitration and the Arbitrator. Subject to the foregoing, the Arbitrator may at any time fix the date, time and place of meetings and hearings in the arbitration, and shall give the parties to the arbitration adequate notice thereof. Subject to any adjournments that the Arbitrator allows, the arbitration hearing shall be continued on successive Business Days until it is concluded. (b) Subject to the duties of the Landlord and Boards of Management of the Business Improvements Areas as public bodies, all meetings and hearings and all materials related to the meetings and hearings shall be in private unless the parties to the arbitration otherwise agree. (c) Each party to the arbitration may be represented at any meetings or hearings by legal counsel. (d) Each party to the arbitration may examine and re- examine its witnesses and cross - examine those of the other parties at the arbitration, but nothing herein shall prevent the parties from agreeing to have the arbitration proceed on the basis of documents only, in whole or in part by telephone, video or electronically or to presenting the evidence in -chief of witnesses in written form. 6. The Decision -42- (a) The Arbitrator shall send a decision in writing (the "award ") to the parties to the arbitration within thirty (30) Business Days following the conclusion of all hearings referred to in Section 5 unless such period of time is extended for a fixed period by agreement of the parties to the arbitration in writing or by the Arbitrator on written notice to the parties to the arbitration because of illness or other cause beyond the Arbitrator's control. (b) The Arbitrator shall state the reasons for the award. (c) If the Arbitrator is a panel, the decision of the majority of the panel shall be deemed to be the decision of the Arbitrator. If there is no majority, the decision of the Presiding Arbitrator shall be the decision of the Arbitrator. (e) If the decision is alleged to have been based upon an error in law, a party may appeal the award in that regard pursuant to section 45(2) of the Arbitration Act, 1991 (Ontario). 7. General (a) The object of an arbitration hereunder shall be to ensure the just, expeditious, economical and final determination of any dispute. (b) 8. Provisional Remedies No party hereto shall be precluded from and shall not waive its right to arbitrate by reason of initiating a proceeding in a court of competent jurisdiction for the purpose of obtaining any emergency or provisional remedy to protect its rights, including temporary and preliminary injunctive relief and restraining orders. 9. Costs of Arbitration The Arbitrator shall include as part of any award, the payment of interest at the rate set out in this Lease from an appropriate date as determined by the Arbitrator. Pending determination by the Arbitrator, the parties shall equally and be responsible for their respective shares of all costs relating to the Arbitrator. The Arbitrator shall be entitled to award costs in accordance with the provisions of the Arbitration Act, 1991 (Ontario). 10. Continuing Performance -43- (a) Notwithstanding the existence of a dispute, the Landlord and the Tenant shall continue to perform their respective obligations in accordance with the provisions of this Lease without prejudice to the right to contest, dispute and challenge the relevant matter in accordance with the provisions of this Lease. (b) Subject to the express provisions of this Lease, where there is any dispute as to the amount of monies owing by a party to another party, the portion of the amount owing that is not contested, disputed or challenged, if any, shall be paid when due hereunder, but without prejudice to the rights of the parties to contest, dispute or challenge the disposition of the remaining portion of the monies claimed. L r ; � SCHEDULE "E" SITE PLAN a! I E, �. I .u:, 4 tl., : , i! ifIli win J tURNINIMMiliatt y 1 1 UG lEhl; 1!i i21 Ilk. i IL � :illi i� ih ELI iI #1111! IIi I .[D) L • r 0 RU 1 r I ; 1 ti I 11 !I it 1. el I• ; J1 1 1 uu LEASE AND OPERATING AGREEMENT BETWEEN THE CORPORATION OF THE CITY OF NIAGARA FALLS - AND- NIAGARA CONVENTION AND CIVIC CENTRE INC. CITY OF NIAGARA FALLS By -law No. 2011 - A by -law to adopt, ratify and confirm the actions of City Council at its meeting held on the 17` day of January, 2011. 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 17` day of January, 2011 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 of Niagara 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 of Niagara Falls and to affix thereto the corporate seal of the Corporation of the City of Niagara Falls. Passed this seventeenth day of January 2011. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: Second Reading: Third Reading: January 17, 2011 January 17, 2011 January 17, 2011