Present: Kelly, Braden (left at 11:24), Ferguson, Mitchell, Merulla, Pearson, Whitehead (30 minutes late)

Media: Chinta Puxley (Spectator), Ken Mann (CHML), Kevin Werner (Brabant), Maggie Hughes (CFMU)

NOTE: Council chambers sound system was malfunctioning so that direct taping from the microphones was not possible. This situation has prevailed since early June.

Changes to the Agenda:

Item 5.11 Expropriation of One Foot Reserve, Parcel "A", RP1033 Louise Drive (PD04211) (Ward 12) was added as consent item 5.12 (incorrectly labelled as 5.11). There were also four delegation requests. Three of these asked to speak to the Tivioli theatre item on the meeting agenda. This was agreed to by the committee. The fourth was a request by Jerry Polmanter to speak at a future meeting about the Keith Neighbourhood Renewal Project.

4. DELEGATION REQUESTS

4.1 Mr Brad Jacobs respecting the decision to allow a dog kennel at 1561 Kirkwall Road, Kirkwall. Request accepted for a future meeting.

5. CONSENT ITEMS

5.1 Ottawa Street Business Improvement Area (B.I.A.) Revised Board of Management (PD04206) (Wards 3 & 4)

5.2 Enterprise Zone Municipal Realty Tax Incentive Grant Program - Application EZ03/004, 66 Bay Street South (PD04033(a)) (Ward 2)

5.3 Appointment of Municipal Law Enforcement Officers under By-law No. 01-084 (PD04187) (City Wide)

5.4 Demolition Permit - 42 Mayfair Crescent (PD04193) (Ward 1)

5.5 Demolition Permit - 20 Alma Street (Dundas) (PD04194) (Ward 13)

5.6 Lease - 191 King Street West and 22 Bay Street South (Municipal Car Park #80) - Leggat Investments Limited and Oakland "6" Limited, (PD04196) (Ward 2)

5.7 Recommendation to Designate 957 Governor's Road, Dundas, under Part IV of the Ontario Heritage Act (PD04199) (Ward 13) 5.8 Demolition Permit - 763 Dunn Avenue (PD04200) (Ward 4)

5.9 Creation of a City of Hamilton / Canadian Pacific Railway (CPR) Liaison Committee (PD04201) (City Wide)

5.10 Removal of Holding Symbol for lands located at 1743 to 1765 Upper Wentworth Street and 1771 Upper Wentworth Street - Benemar Construction Inc. (PD04209) (Ward 7)

5.11 Tivoli Theatre - 108 James Street North - Cost of Remedial Work (PD04213) (Ward 2)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/2004/Aug03/PD04213.Tivoli%20late.pdf

Braden had a question about 5.6 to clarify that the revenue amount was net. Without further discussion, all consent items were adopted, including 5.12 which had been added to the agenda.

6.1 Application for a Change in Zoning for Lands Located at 1171 Dunsmure Road (Hamilton) (PD04190) (Ward 4)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/2004/Aug03/PD04190.pdf
This is a change from residential to commercial for a property 30 metre by 18 metre property near Parkdale Avenue, to facilitate a used car dealership.

Heather Boles presented the staff report. She described the lands as being on the northwest corner of Parkdale and Dunsmure although the map indicates the lands are entirely on Dunsmure. No written responses to circulation of application to residences within 120 metres. No questions of staff.

Public delegation: Mr. Robert Toth , 1178 Dunsmure Road, 40 year resident of Hamilton. Feels that his property "would be more difficult to sell". Increase of auto traffic and more noise, and exhaust fumes. Many people in neighbourhood are retired and "not in the best of health" and some on pensions. If application is passed he feels it would "have a dire effect on our safety, on our health and on our welfare as a community". He asked that the area remain residential.

[Presentor spoke for about 2 minutes. He was not asked for written submissions and chair Kelly did not invite questions from the committee. All councillors were present for the full presentation.]

James Webb representing the proponent. Kelly asks if he agrees with the staff recommendation or would like to address the committee. Merulla asks how many vehicles on the site per day. Webb says "two thirds of the land is already zoned and permits the use as of right. What we're adding is about a third." Property has been vacant for the last seven years and "is derelict".

Merulla: "That piece of land has been neglected for a number of years. There was an application came forward a number of years back. It was denied. You and I both know the importance obviously of the need for commerce particularly in the east end, and try to expand upon the present conditions and making it not only residentially friendly but also for the commerce itself. I understand from the concerns that were presented by the resident, I'm convinced, however, that this type of operations won't impede on quality of life of the present environment there. . I support it quite strongly."

No other questions of Webb. Moved by Mitchell, seconded by Pearson. Carried. (6 minutes on this item)

6.2 City Initiative for a Modification in Zoning for Lands Located at 87/89 King Street East (Hamilton) (PD04202) (Ward 2)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/2004/Aug03/PD04202.pdf
Near John Street. #89 is City-owned property currently occupied by a vacant one-storey building obtained through a tax sale. #87 is behind #89 and has three owners. Application is by city to rezone to permit construction of a four-storey mixed use building. City plans to sell its property with covenant requiring demolition of existing building and construction of a 2-4 storey building with zero setbacks front and back.

David Samis made the staff report and showed photos of the existing situation and drawings of proposed building.

Kathy Drewitt of the Downtown Hamilton BIA spoke in favour of the staff recommendation. "This piece of property has been a problematic area for our downtown for quite some time. . we've had vandalism and problems with the back alley areas." "We certainly recommend no more than a four storey building to go into that property, probably three would be more in keeping. encourage that retail be restricted to the bottom floor. We hope that could be part of the planning process, that it be open to the street, nice windows that could be allowed to utilize the floor space, and allow for some residential."

Ferguson: "Is this the kind of property the Hamilton Capital Corporation would be interested in?" Ron Marini: "It probably could be a property that we're interested in but I do know that we have other possible solutions for incorporating this property with abutting property for a comprehensive redevelopment. I don't want to say too much more other than there are other plans in the works right now. . but yes this is an example of a property where the Hamilton Capital Corporation could take action."

Motion moved by Ferguson, seconded by Pearson. Carried. (7 minutes on this item)

6.3 Applications to Amend the City of Hamilton Official Plan and the City of Hamilton Zoning By-law for Lands Located at 225 Pritchard Road (Hamilton) (PD04191) (Ward 5)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/2004/Aug03/PD04191.pdf
Applicant is NES International Limited. Location is intersection with Stone Church. Intended use is medical offices in existing three-storey building. Previous use was research and laboratory purposes. The area is within the East Mountain Industrial Business Park. The only agency commenting was the HSR which recommended sidewalks on both Pritchard and Stone Church.

Heather Boles presented the staff report. Final bylaw not finalized until applicant has submitted requiste securities. Applicant represented by Brian Morrison who supported the staff recommendation. No public presentors. No discussion. Moved by Pearson, seconded by Mitchell. Carried. (3 minutes on this item)

6.4 Application an Official Plan Amendment and a City Initiative for a Modification in Zoning for Lands Located at 74 Hughson/1 Hunter Street (Hamilton) (PD04203) (Ward 2).
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-Development/
2004/Aug03/PD04203.pdf
This city-owned former health department building was declared surplus in April 2000 and has been vacant for over five years. The amendment is to allow development of a four-storey mixed use building. It is expected that the building will be demolished by a new owner and replaced.

David Samis presented the staff report. "Building has deteriorated due to not being used." City will retain some landscaped area at James and Hunter for a parkette. No public presentors. No discussion. Moved by Ferguson, seconded by Merulla. Carried. (4 minutes on this item)

6.5 Application to Amend the Stoney Creek Zoning By-law No. 3692-92 for a Portion of Lands Located at 568 Highway No. 8, Former City of Stoney Creek (PD04197) (Ward 10)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-Development/
2004/Aug03/PD04197.pdf
Lands are at rear of property. Owner is Tony and Juliana Spadafora. Rezoning to permit creation of two additional residential lots fronting on Vision Place. The severance had previously been approved at Committee of Adjustment on March 24, 2004 where three residents raised concerns and grading and tree preservation. Agent there was P. Ashenhurst.

Kristen West presented the staff report. Presented photos. Barn will be demolished. Tree preservation study to determine if the willow tree can be preserved. Supported by staff "and is an appropriate form of infill development". Whitehead asked the depth of the lots. No other questions.

Peter Ashenhurst representing the applicant came forward as first 'public' speaker to offer to answer any questions.

Public presentor: Theresa Sorgini, 9 Vision Place, came to find out what had been decided about the grading and elevation of the new lots. "These lots are adjacent to my house. There's a six foot easement drop and these lots are going to be six feet lower than the street itself, and I want to know how that's going to work out."

Kelly: "Does staff wanna [brief pause, I'll tell you what, have you signed in. We will call on the proponent, Mr. Ashenhurst, in just a couple of minutes. I'll make sure he addresses those points." Asks for further public presentors, but there are none. "Seeing none, Mr. Ashenhurst if you could come forward. I believe one of the members of the committee has a question and perhaps at some point you could address the neighbour's concerns as well."

Ferguson: "Bulb [of Vision Place cul-de-sac] exists now . will this be extended into the new property?". Ashenhurst: yes. Ferguson: "So the orientation of the house will be the same as the existing?" Ashenhurst confirms this. Ferguson also asks about elevation issue. Ashenhurst: ".currently staff have copies of the proposed grading and servicing plans, and we're essentially filling the lands where required to get the normal grade as what is at the end of the road now."

Kelly asks Ashenhurst to "address the concerns of the previous speaker about elevation". Ashenhurst: "As I said to Mr. Ferguson, we are in fact filling the land as required so that the finished grade around the houses is nominally at the grade that the road is now."

Mitchell: "I heard that we had to do a tree preservation plan for that willow tree. Well I'd suggest Mr; Chairman that that willow tree is not needed there. They are a wild weed and they plug our city's sewers up. Not a wise tree to have in that location. So why are we insisting on a tree preservation plan and driving the costs up when it's not the appropriate tree to be there in the first place?" Kristen West: "The tree preservation plan was a request due to concerns of the neighbourhood . because the tree has been acting as a visual terminus to the end of Vision Place. . as the neighbourhood residents were very concerned about the loss of the tree, we requested and asked the applicant ahead of time if a tree preservation plan would be acceptable and he agreed." Mitchell: ".well maybe insisting on some kind of new tree being planted, but it would be very wise to take the willow tree out of there before the new homeowners have grief with it."

Whitehead: "Well just on a comment. I want to be careful just to my respected colleague, that tree was there long before development started. And in fact it wasn't a plan to plant the tree. It's probably been there for years as part of a farm, and we have to be careful. We still have to continue our due diligence with respect to doing the type of analysis on trees and where they are. I agree with you on new development that a willow tree probably wouldn't be appropriate, but let's not be too quick and too hasty to get rid of all trees."

Pearson: "With regards to the grading concerns that Theresa Sorgini presented, I have been made aware that Steve Ryan of our department is reviewing these plans right now and I've asked him to review them so that I can go back to the neighbourhood and address the concerns that the residents have." Explains that there is a drainage swale - "actually a six foot drop" and that's the concern the residents have. "I'm confident that staff will be able to address that." Moves the recommendation, seconded by Whitehead. Carried. (11 minutes on this item)

6.6 Application for a Zone Change for Land Located at 205 Dewitt Road, Former City of Stoney Creek (PD04198) (Ward 10)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/
Planning-Economic-
Development/2004/Aug03/PD04198.pdf
Applicant is Cretaro Homes Ltd. Intent is to divide existing lot into two lots in order to add a second house on the existing lot. Frontage is 68 feet. Staff report cites density objectives in Provincial Policy Statement. Area is designated in official plans as low-density residential. Location is across the street from Orchard Park secondary school.

Staff report by Peter De Iulio. "No significant issues raised" by departments or public. Notes two other examples on the street where same lot division has taken place.

Ferguson: "What's minimum width required here?" De Iulio: "In the existing zoning it's 60 foot lots but we do have some properties which have gone down to forty and ones to the rear of it are 10 metre."

Whitehead: "I've very supportive of infill projects, but I do not support infill at any cost. I know that I have this in my own neighbourhood with severed land, and I know that we're making narrow lots. certainly didn't fit the character of that neighbourhood" Asks staff if they feel these narrow lots "conform to the character of that neighbourhood"? De Iulio: "Yes. Just further north we have an example of 40 foot lots. I really don't think there'll be much difference. The house is still going to be possibly 25 feet wide, which is a fairly significant width. . so the character. has changed quite a bit. You have two storey and one storey. If we go back there's a house that's a lot wider with probably a 60 foot lot. So there's a variety of one-storey 1-1/2 storey, 2-storey, new and old on a variety of lots from 40 feet to 60 feet wide, if not wider. At the rear of the property you already have lots that are 33 feet wide. So I think the character of the area is varied so this continues with that varied character."

No public presentors. John Ahriens represents the developer and supports the staff recommendation. Pearson: "I just want to move the recommendation. I've had no complaints or concerns brought to my attention in the neighbourhood. It will fill in the neighbourhood nicely and a lot of this is going on in my ward, with large lots being severed to create infilling." Whitehead seconds. Carried. (6 minutes on this item)

6.7 Applications for an Amendment to the Stoney Creek Zoning By-law No. 3692-92 and Draft Plan of Subdivision, Known as "Deerfield Estates Addition", Located on Part of Lots 25 and 26, Concession 8, Candlewood Drive, Former City of Stoney Creek (PD04195) (Ward 9)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/
2004/Aug03/PD04195.pdf
Applicants are Rob-Geoff Properties Ltd. (Bruce Robinson); 991107 Ontario Ltd. (Mr. R. Thai) and Supener Investments Inc. (Mr. R. Chen); for subdivsion of 35 single-family homes on 2.1 hectares in upper Stoney Creek, north of and near Rymal Road. This backs onto the Fortino's superstore area. The area is the headwaters of Twenty Mile Creek and the lands have an archaeological potential so an archaeological assessment is required. Area is currently designaed low-density residential in Stoney Creek Official Plan.

Kristen West presented the staff report. Notes change to appendix D conditions of approval at request of applicants - deletion of Development Engineering Condition 33.

Whitehead : Asks about change in Appendix D. West: Condition 33 requires applicants to prepare a groundwater study. "As it turns out there was an existing special condition . #8 . so condition 33 and condition 8 were addressing the same concern." Whitehead: "This property is adjacent to a supermarket. To me that area would be appropriate for a higher density. . why wouldn't we go at least for medium density.?" West: "Neighbourhood plan and official plan and approved secondary plan all have approved plans for low density residential. We have gone to a higher density in terms of the 12 metre lots for this area." Notes other lots retained larger "to merge into" adjacent developed area. Whitehead: "That's fine.".

No public presentors. Steve Fraser of A.J. Clarke and Associates represents the applicants. Agrees with the staff recommendation. Pearson moves, seconded by Whitehead. Carried. (5 minutes on this item)

6.8 Application for a Change in Zoning for Lands Located at 126 and 128 Emerald Street South (Hamilton) (PD04188) (Ward 3)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/
2004/Aug03/PD04188.pdf
Proposal to convert an emergency shelter for 28 people to a Childen's Residence for 14 at the site of the former Inasmuch House. Applicant is the Children's Aid Society.

Merulla raises concerns about this item, noting he has just consulted with Morelli. Location is in ward 2 but borders ward 3. "I have a concern and he has a concern in that, as you know, there's an over-intensification of institutionalized housing downtown. Secondly, ward 2, officially does not have a representative presently and I believe an elected official is needed to try and consult with those residents and present it here at council. And also we need to look at this from a global perspective . trying to prevent more institutionalized housing downtown and I think this flies in the face of what we're trying to do." Moves to defer item seconded by Mitchell "until an elected official can actually be representative on this particular issue.".

Kelly notes that public meeting has already been advertised, "should we not go through the public meeting . let's go through the staff presentation so at least we can do the public meeting aspect and then I'll bring it back to committee for you to make a determination." Merulla : "Just a point of clarification, though, once it's referred back are we going to be hearing the presentation again, because I think we should be." Kelly: "That's certainly up to the members of committee. If you'd like to hear the presentation again at a future point, certainly we will." Merulla: "Will there be a public meeting again? There will be. Okay, thank you." Kelly: "So we should go through with the public meeting. Sam, obviously I'll come back to you and we'll make a determination . but Paul does have a presentation and let's go through with that." Whitehead: Supports Merulla's suggestion of tabling this to a further date. Kelly interrupts that we're not debating tabling. Whitehead "I'm not debating it, but the point is that we're going through a presentation which I think will be done all over again. It's the intent of my colleagues to have this thing tabled, so I don't know if we want to waste any time." Kelly: "Let me get a point of clarification just so we know what's going on here. First of all, if we table this without a public meeting, we have to re-advertise the public meeting and that will take how long?" Staff: "We can re-advertise within a couple of weeks, once we know when the date of the public meeting will be held. We just have to give 17 days clear notice." Kelly: "Just to re-advertise and do this all over again.". Merulla: "Absolutely. It would have to be after someone's elected, obviously, so we're talking sometime after October." Kelly agrees to allow Merulla to make motion to defer item to October 19 meeting. Braden asks if there is a time sensitivity to the issue. Applicant says no. Motion carried. Citizen in gallery calls out "Shame, shame, shame, shame . [rest inaudible as citizen leaves chambers]. Kelly: "Thank you sir, thank you for your input." (7 minutes on this item)

6.9 Mrs. Margaret Murphy, 36 Lakeside Drive, Stoney Creek , respecting her request to purchase City-owned land adjacent to her property (Request to appear was approved by Committee on July 6, 04)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/
2004/Aug03/Item%206.9.pdf
Her septic system was located on an adjacent property over 30 years ago by Saltfleet Township. She is concerned that the lands are now going to be developed with no guarantees of what will happen to her septic system.

Kelly reminds her of five-minute maximum. Presentation made by Mrs. McCarthy and her son Todd McCarthy, beginning with the latter. ".in this day and age when storms are becoming more violent . we have a city considering a development along the lake with very little regard to the present homeowners. . the city has heard about the issue of upkeep which has been ignored by all levels of government for the past 30 years. The city has been told about her septic system located on a part of this land by a past municipal government. In the recent past she has been informed that an archaeological assessment would have to be completed. I would like to see the assessment done on the lands surrounding Lakeside Drive before the development that is currently being built . after a recent conversation with a resident . we found that the city is considering putting drainage on this land. I have several reservations . why are we discussing drainage issues when the developer plans to build the development with storm sewers? That should mean that all water would be drained along Lakeside Drive by the storm sewers . and then to the lake. . this could severely affect the beach and surrounding properties if the city goes ahead with plans to drain water in this area. Do you have any idea what a north-east storm can do? If you change the beach even slightly it will have the effect of pulling your thumb out of the dyke. Once you allow the water to cut a path .,.. you expose everyone west of there to erosion. . with global warming becoming a bigger threat, it is realistic to assume water levels are going to rise. Need to protect what is already established. I want the city to realize what may happen should they go ahead with any plans to develop 36 Lakeside as drainage or public access to the beach. I would expect that every "I" is dotted and "t" crossed before you do anything on that land. The City must fulfill every last detail until that point. . If the city continues with these plans, I want the city to issue my mother a letter stating they will assume full responsibilty for whatever may happen in the future. Isn't a taxpayers' future just as important as a developer who wants to build new homes?" Mrs. McCarthy: lived there for 35 years, afraid she will be forced from her home, explains her poor finances. "My septic system has worked perfectly since it was installed by the municipality under disaster fund relief." Property where septic system is about 24 feet wide. "all grass cutting and weed control have been done by me, but now I'm paying someone to do these services." City doesn't provide any of this but acknowledges property whenever she asks about her septic system. "A planning department employee said that I would have to prove that I didn't put the septic system where it is. How do you prove that you did not do something?" . "I need to know that the land containing my septic system is my property" otherwise can't sell home in the future.

Mitchell: thanks Murphys for speaking. "Councillor Pearson somewhat familiar with the area as well, and I advised that they come to this committee, because I felt that it had to be a political decision. And Mrs. Murphy needs to have protection for her septic system absolutely and our staff, I guess, couldn't find a way. ."

Merulla: will second Mitchell. Mitchell asks for staff comment. Gavin Norman: "Number of issues. .in changes to the land that would be tied to the development, and the other would be the ownership of the septic system. . Any changes to those lands with regards to drainage purposes tied to development will undergo a full review as part of the city's review of development application. . anything draining into the lake has significant issues related to it as noted by Todd. Not only the city, the department of Fisheries, the MNR and the Conservation Authority all have a say in how drainage is done to the lake. that would also tie into the location of the septic system. We need to ensure that we know where that septic system is. It is either relocated, protected or whatever the case maybe. . [re] the city selling or handing over ownership of the lands, I don't believe there's a real need to do that. A septic system is a private system just like a private drain to a sewer is, where the resident is fully responsible for it in terms of its maintenance. .. Stated need to keep those lands in the city's retention. it might be more appropriate just to note on title of that property that there is a septic system so that in the event there's any significant changes to those lands and it failed, we cover off the septic system location and any requirements for its protection or relocation." Mitchell offers to move to ensure that the family's interests are protected. Kelly: "So obviously you want to refer this to staff for a report." Seconded by Merulla. Carried. (11 minutes on this item.)

6.10 (added item) Ken Coit presentation: ".request. The Hamilton Society of Architects and the Art Gallery of Hamilton are endeavouring to do a design charrette looking at the future of the city of Hamilton, as part of the current Future Cities project now ongoing at the gallery, and we're before you to ask that we can involve some City staff in this process in terms of just making sure that what we do coalesces and works well with the Strong Foundation report that I know the city's undertaking presently."

Merulla asks for staff report. Seconded by Pearson. Braden asks when the charrette is scheduled. Coit says early October - late September. Kelly directs that staff report be presented at first September meeting on September 7. Carried. (2 minutes on this item)

7. PRESENTATIONS

7.1 Downtown Hamilton Capital Corporation (PD03106(a)/FCS04076) (Ward 2) (Private and Confidential Schedules B and F are not attached)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/
2004/Aug03/PD03106(a)%20FCS04076.pdf

Kelly: ".members of committee this is a very exciting endeavour and something that though variations on this theme exist in other communities, this is unique to Hamilton and something that we talked about in principle, and it's kind of nice to see details finally come forward."

Ron Marini introduces a group of presentors and provides overview. "We come to you today after a year of working on the business plan and seeking private sector investment . from the community trust panel $2 million was allocated for a downtown Hamilton capital corporation. . Gord Moodie has been working diligently trying to get the business plan put together." Gord Moodie : ". we looked at basically three different corporations that were similar to what Hamilton's needs are - one in Winnipeg, one in New York and one in Lowertown St. Paul, Minnesota. . each have different funding mechanisms." Winnipeg funded by city and part by province. Downtown there "is probably 16 times the size of downtown Hamilton". Empire state in New York to fund revitalization of theatre district. Lowertown private corporation, funded by foundation, been in existence since 1979 "and we've visited Lowertown and they've done just a fantastic job of revitalizing that whole core". "We've prepared a business plan and the business plan . to promote private sector investment in downtown Hamilton. It also satisfies the requirements of the Mayor's Community Trust Panel". Recommendation is for a for-profit corporation. Will "supplement existing programs and to provide customized services to those properties requiring assistance." "In downtown Hamilton we have residential loan programs, we have tax savings programs, there are elements of this corporation that can help buildings that really don't make financial sense. For example, historic elements. There's a wide variety of things. We can sign guaranteed leases, we can help them in many different ways. The point being that we're outside of the box, it would be a private corporation whose mandate would be to fulfill the secondary plan of downtown. The next step, really, in downtown revitalization ." Shows chart where Hamilton Corporation "scores the highest with 36 points and is a much needed entity in downtown Hamilton at this point. . one time capital contribution of $2 million as well as a one-time $250,000 operating capital in the first year of operations. There's presently two separate investment groups that are willing and interested to participate in this venture. Within the report confidentially there's two letters that were signed by two individuals that have the wherewithall to complete this funding. The groups agreed not only to match the investment of the city but to double it. They make a $4 million cash investment into the corporation. Feasibility study within the business plan projects that by the time the money is spent, within the parameters of the company, there'd be an excess of $2 million in assessed values and taxes. Be an opportunity for the city to recapture the $2 million investment. The downtown Hamilton capital corporation is a plan which offers a considerable low-risk and win-win scenario for the city. The corporation itself.would be a for-profit private corporation with a private board. The city would enter into an agreement with the capital corporation to manage it and administer the corporation, so that anything presented to the Board would be through downtown renewal and city staff. The investors, basically any investor that invests in something, they're looking for an escape clause, or a payday, or a way to exit that particular company. That was kind of a unique situation for us because it was tough to let them know when they could, with fulfilling our needs. What we've done is we've come up with a $10 million hard capital expenditure that the company has to make before they can exit the company. So basically . that if they do spend $10 million, it won't be finance capital. It will be hard capital which basically gives you roughly $50 million in hard capital construction. There'll be a 5% annual cost to the investor for his costs . and the city's contribution, basically we're offering up to the investor, the plan takes over 7.5 years, and we're offering when the investor doubles his money, at that point in time and profit would be shared with the city to recoup the $2 million other than the tax revenue. The next step for this corporation would be to come to some sort of shareholders' agreement and that's what we're wanting to do right now. This would be the legal mandate mechanism for both the city and private sector to fulfill its needs. It would be law within the corporation. These objectives are to really implement the downtown secondary plan, restore historic buildings and restore vacant and underutilized derelict buildings with the downtown Hamilton community improvement project. Financial objectives of the corporation. There are basically four of them. They would lend money. They would purchase real estate. They would develop real estate. And they would grant funding as well. Next step, and we're here today to ask that council endorse the Downtown Hamilton Capital Corporation at which time staff will report back to committee once the unanimous shareholders' agreement is ready for committee's consideration. At that time, recommendations will also be made concerning the release of the $2 million. As well we'd like council to recommend the contract for services with the Downtown Hamilton Capital Corporation and the Downtown Renewal Division acting as the administrative management of the corporation."

Whitehead: ".I am very supportive of this approach. However, in this particular presentation . it doesn't really underscore why we are taking this approach. I'm wondering if someone from staff could give me some of the key bullets in why that this is the current approach . the current means of accessing capital isn't working in the downtown and why we're going this route." Ron Marini: "I think that the chart that Gord pointed out is illustrative of that issue. The issue is that the city's programs are reactionary. We are reacting to development applications. This, as Gord pointed out, is outside the box. It's a corporation . in a proactive mode. It has the ability to do things that the city cannot do. In my view this is the next iteration or the next generation of downtown regeneration. This is the way to move forward while still there is a known objective which is the city's downtown secondary plan. So as Gord says, it is outside the box. This chart shows you how much more significant, how much more valued, such a corporation can provide in terms of downtown regeneration." Whitehead: "I don't think you still clearly stated what the challenges are. I see the chart but maybe you can just sort of summarize what this organization, this new organization that's being proposed, will be able to do and the flexibility it will have over and above the current programs and access to capital that exist today." Question referred to author of the report (name inaudible): "The key problem is how to take private investment into a public context, right? We can fence about this all day long, but private investors want to see a return on their investment and they, if properly controlled, enable us to lever a plan for the benefit of the city as a whole. It is of course possible to forgive taxes and deal with traditional financial tools that municipalities have. The aim of the Capital Corporation is to jumpstart investment into downtown Hamilton and hence receive the benefits associated with the higher municipal tax base. So this plan is crafted to hopefully receive the support of yourself and those who represent the public interest, but at the same time the private interest. So when you ask yourself the question 'why would we invest in this fashion?', the answer is in order to attract the capital investment from the private sector. And I just think we have to be open about that. Sometimes it seems to be kind of a dirty connection. But look, the aim is let's rejuvenate the downtown Hamilton. Let's do it in a way that maximizes its tax base that in the long run gives the city everything it's hoping for, but at the same time entices private investors to come to the table." Whitehead: "The only other question I have is you did mention some of the other models you looked at and this is a made-in-Hamilton solution, so obviously this is a bit of a hydrid and one that is tailored to the needs of our community . Winnipeg and Minnesota - how long have they been in operation . have they reviewed their program to determine its successes or failures?" Moodie: "Winnipeg has actually been in existence roughly three years. they're working with $10 million. the jury is out whether it will be a successful venture or whether it won't. New York - the theatre district is rejuvenated and up and running very sufficently. And Lowertown, which really impressed me . it's basically an industrial drop off spot on the Mississippi River and the picture prior to the redevelopment corporation, it was bad. Today it's just a beautiful community. It started in 1979 and it was again, it was private investment that was outside of the box. And I think to answer your question earlier, this corporation could take certain properties in the downtown that don't make financial sense. They might be able to grant some funds to feed a new storefront, that would create a tenant for that, that can make financial sense. You might have an opportunity where the residential loan program won't apply to office buildings with commercial. There would be some tax rebates to that individual. However that might not be enough. Now add a heritage element to that, where there's a million dollars to restore the façade of it, and it just doesn't work financially. And I think those are key properties downtown that I think the message will get out to other investors, you know, that Hamilton's moving. And when these troubled properties turn around, that's when they'll come in a big way, I believe."

Ferguson: "The city will be a one-third shareholder?" Moodie: "No actually, the city won't be a shareholder. We've gone through a lot of legalities with this. What there'll be is there'll be a stakeholder, not a particular shareholder. We'll manage the company for the board, but after a certain profit level is reached, there'll be a payback to the city. So we'll be paid back, but we won't be a shareholder within the company." Ferguson: "So it's not a shareholder structure?" Moodie: "No." Author: "I think the conceptual framework is that the city's control that you would normally enjoy with share ownerships and the rights that follow share ownerships and the corporate model, would be tied down contractually with the corporation. And I noticed in the presentation there was a reference to a unanimous shareholders agreement. My preferred language is a stakeholders' agreement whereby the city can contractually control the corporation and ensure that the proper people are in place to implement municipal policy." Ferguson: "That's unfamiliar. I thought a stakeholder was a shareholder. I'm not sure what a stakeholder agreement is versus a shareholder agreement." Author: "I mean we use the term stakeholder in a general sense. The city has a stake in the development, therefore they would have an agreement in place as an entity injecting capital into the corporation with the corporation and the other investors much like you would have in a shareholders' agreement. The difference being due I believe to restrictions in the Municipal Act, the corporation cannot own shares in Ontario Business Act corporation. So the type of protection that you get through the legislation under the Ontario Business Corporations Act, which admittedly is not that strong, is replaced by contractual rights. And that's why quite often corporations will have a shareholders' agreement because of the lack of governance and restrictions that you find in the business corporations legislation. So you have all those elements that you would find in an unanimous shareholders agreement put in place, the only difference being the city is not a shareholder. It has a stake in the development."

Ferguson: "What are we offering the investors . for security . the city?" Moodie: "Well the bottom line is the corporation starts off with $6 million that has to be spent in the downtown area in accordance with the secondary plan and all those rules. So basically the private investor will spend his $4 million and we'll spend the city's $2 million. At that point in time, if all fails, the investor walks. I mean it would be over. But the city would have $6 million in hard assets and development. Really that's the security. That the money goes into downtown as hard assets." Ferguson: "So there's no recourse to the city for the $6 million if it goes south?" Moodie : "No."

Ferguson to Marini: "How would this initiative - I think it's a great thing, I think councillor Whitehead said why are we doing this. Well I think it has to be perceived, not perceived but actually that the municipality's taking an active role in downtown planning . are financial institutions, are they a little more, do they have their ears up when the city comes up with these initiatives? Are they a little more sympathetic towards downtown in loans? And insurance companies? Where are they on this?" Marini: "We're still dealing with the insurance companies. I have to tell you the mayor taken a leadership role in meeting with the regional underwriters back in July, following through on that. But let me talk to you about the financing, because I think that having a downtown renewal division, and having the programs that have been identified so far outside of the urban development corporation, have made a difference in downtown. Whereas you know that three and a half to four years ago, nobody was lending downtown. And once we've re-invented the downtown loans program, it brought CIBC and the Laurentian Bank in a report to you saying that we will lend downtown. And since that time I think everybody is lending downtown including Blue Jay lenders. I think the second thing that's happened downtown, and Kathy Drewitt whose in the audience can verify this, is that value has increased downtown. And what that means is when five years ago somebody put a building up for sale in the downtown core, it sat for sale for a year with no bids. And what's happening now, and Cathy identified it herself, is we're getting two and three bids on buildings. So value has started to turn in the downtown. Take a look at what Gowlings is doing with the old heritage bank. There's another example. So in my view regeneration has to have a fundamental economic underpinning, and without that we can't be spending public dollars, throwing great wads of public dollars at a failing venture. What we're trying to do here is to change the fundamental economic underpinning, and we're doing it in a very different way. Now we've got all our incentive programs but now will try to marry the incentive programs with this. . But I'm sure that this will get the real estate interest, it'll get the banks and the lending and financial institutions interests all lined up because of what Hamilton is doing in its downtown."

Ferguson: "There's some issues on the table today, 8.2, 171 Main Street East, 87-89 King East, and the Tivoli. Are those the kind of initiatives that would fall into the scope of this program?" Marini: "My preference, and I can't speak for the corporation obviously, but my preference is that as value is increased in the downtown, we will see private sector investment in the downtown. And I can tell you with respect to 87-89 there already is a player intersted in purchasing that from the city because he owns an adjacent building, and he's interested in doing something there. As far as the old health building, yeah, sure, the corporation could buy it, but they're going to have to bid like everybody else. They're not looking for a handout in terms of. If you recall the first submission to you from the Hamilton Downtown Partnership, they had asked for all city properties as part of the deal and council said 'no, we have to make money on our properties'. So what the development corporation would be would be competing, obviously, with other economic interests and bidding in the free market. They're there and would have to be contended with." Ferguson to Moodie: "In the other examples that you've visited, did this program spin off cleanliness and safety?" Moodie : ". visited the people at Winnipeg and some of the initiatives they had there were really really unique . when I was there they had much like an ambassador program that we just started here. We did pick up a few good ideas with safety, and health issues and all those things. Absolutely."

Ferguson: "Can somebody help me out. If one of the advantages is increased taxes but it's in the enterprise zone, aren't taxes froze?" Marini: "No, all we're doing, all we're foregoing is potential taxes from new properties for a limited period of time. It's like a loss-leader. Like we're basically saying we're not giving up any taxes, cause he won't overall give up any existing taxes, but he's willing to forestall receiving tax revenue if the result is there'll be a tax-paying entity as a result of the incentives. What the enterprize model, the enterprise zone does is take a property at its pre-development tax rate and redevelops the property so you have a higher per unit increase in the taxes resulting from the development. They compare the pre-development taxes to the post-development taxes and then the city, over a sliding scale of from five to ten years, gives a portion of the municipal increase arising from the development."

Ferguson: "The only other concern I have is the environmental cleanup costs of these specific properties. That's an unknown too ." Marini: "That would be the responsibilty of due diligence of any property owner including the urban development corporation, but I might add that when we put our bids together as to what we want to see in provincial monies spent for this recent initiatves from the province, I mean that's the top of my list. We want some money to assist downtown cleanup properties, direct cash." Ferguson: "250 [thousand dollars] that's out of the rate budget.? Is it 250 for one year or two years and is it out of the rate budget?" Marini : "Well the 250's been committed and I think it came out of the mayor's trust. That was already there." Ferguson : "It's not 2.25?". Marini: "It's there. Trust me. But Rossini [former budget chief Rob Rossini] committed, since he can't defend himself, committed to a second year of 250, and Gord can swear to that, but everybody's got amnesia now, so right now it's one year we're asking for. But Leigh-Ann [Coveyduck] advised that's already committed and approved at 250. So that's why the report doesn't ask for it. It's always been approved.."

Ferguson: "Mr Chairman, I think it's a great initiative. My only regret is that it's about a year and a half late. It's taking $2 million that came from the hydro fund and it's leveraging at least three times if not five or six times, and it sends a good message to the downtown businesses, as well as to the outside commercial world that we are going make this thing work."

Kelly: "And it does, as Ron suggested, fit in with the provincial parameters. I talked to Minister Caplan last week about the initiative that they announced and basically his words to me were 'we're not going to come in here and start writing cheques for you, what we're going to do I try and do is encourage partnerships to attract private sector investment.' And clearly this program is going to do that so it's very much in line. And I think it will not only perk up the ears of potential investors, it will the provincial and federal governments too. When we go and ask for assistance on any of these programs, the first thing they ask you is what are you doing to try to help yourself. Well, we're doing something very innovative that hopefully is going to be very successful too. And they love to latch on to creative and successful programs, so I think that's why we need to get moving on this as quickly as possible. One of these other projects that we can show them when we sit down with the province about how their greater golden horseshoe plan can fit into what we're doing in downtown. We can say look at the successes we're starting to enjoy already." [Note Kelly did not step down from the Chair to give this speech].

Braden : ".I fully agree with the principles of all the comments that have just been made, so I think it looks pretty exciting. I want to ask the questions to see what might be wrong with this, because I want to make sure I see the flip side so we can get the balance. It as simple as thinking that the private investor will be like banks or will they be like local investors who may want to get some preferential treatment for their properties or their areas. I need to know how you would categorize the private investment of $4 million - the source of that?" Moodie : "The two principles that are involved - we went out to law firms to sophisticated investors - currently the two groups that are involved do not own any property in Hamilton."

Braden : "Can you help me project with this kind of money, based on other experience, is there a tendency to generally go towards the big project, and we need to know that, if that's what it is, as long as that's the right thing to do. But I want to see what we can probably expect given the range of types of investors who are wanting to get into this market." Moodie : "Me and Ron's analogy is baseball, where we're not hitting the home run. We'll keep hitting singles and we'll score. And it's the same analogy here. Believe it or not, downtown Hamilton is getting popular. There are investors. There are things selling. Record number of condos selling in projects. And our belief is that the real estate is getting tighter and tighter and the big home runs really aren't there. I think the capital corporation can assist bigger developments, but I think the bigger developments need the bank and need to make financial sense."

Braden : "If you sense the approval you're getting around this table, I think that's not a foregone conclusion, but that's where we want to go. What would be the warnings you would give us, just so we don't think this is going to be the best thing since sliced bread - but I hope it is - but what's the flipside where you want to say 'be careful about'? What is that?" Marini : "I guess the fundamental thing is that monitoring programs need to be put in play, because you want to see how things are progressing, and we would report back to you. I think the second thing you need to understand the report was up front with this - as a municipal politician, the Municipal Act prohibts you from representing the municipal council in any private sector venture. So that means you cannot sit on the board of directors. That's why you have to have this, as Bert identified, unanimous shareholders' agreement. The risk is the unanimous shareholders agreement must pick up all of the elements that the board can and cannot do. That's what really important. And so that's the big piece. That's why we point out to you there are other options to go here, but we're going to lose those investors, and we'd be going backwards if we had to go with the other options."

Merulla : "With respect to that an elected official can't sit on the board, Hamilton Hydro is a private entity. We do have representation on that board. Is that correct? Through the mayor's office?" Kelly : "The mayor sits on that board, I believe." Merulla : "Why would we not follow that same model with this initiative." Mr Bridget (report author?) : "The remedy to any situation where there is a potential conflict of interest is a complete and ultra light disclosure. What you're suggesting where somebody might be really qualified to sit on a board, but there's a potential conflict of interest, for that person to give their credentials both to the council and to the . Under the Municipal Corporations Act, it's possible to incorporate corporations whereby the sole shareholder are actually public entitites of some sort. Where that's the case, they're not entitled to receive any grants [missing section of tape] what I'm trying to address here is whether or not actual wholly municipal corporations can be involved in the Downtown Hamilton Capital Corporation - I don't believe so." Merulla : Are you talking as a result of the actual grant provided, that we can't have representation on the board and that differentiates the Hamilton Hydro board from this particular board?" Marini : "As I understand it Mr. Chairman, the requirement that drives the creation of this model is the city's requirement that it's not only city money, whereas the hydro, as I understand it is a totally owned city asset. The requirement that we bring in private sector investment makes us go to this model. That's the difference." Bridget : ".there is nothing, I mean this is a corporation that will have a unanimous, it is legally called a shareholders' agreement and perhaps publicly called a stakeholders agreement. And this agreement means that whoever is appointed to the board and named and nominated through the provisions of the agreement .contract that is filed with the governments of Ontario, Canada, and is followed the courts of both of those jurisdictions. . So there isn't a reason why someone can't be on the board except that the agreement is contrary wise." Merulla : "So if we were to pursue the appointment of Mayor DiIanni, just as the mayor of the city of Hamilton, just on this particular board, what would the downside be?" Kelly : "I think what Mr. Marini says is that according to the Municipal Act we can't do that because there's private money involved." Merulla : "We can't do it all?" Kelly: "Mayor DiIanni's on the hydro board because that's Hamilton's money. ." Merulla: "Can he do it as long as there's disclosure?" Marini (?): "Maybe I can answer that. It's quite simple. The power of the board will be constrained . in compliance with the obligations of the stakeholders agreement. That is the constitutional document for this organization, and they can't exercise powers beyond those granted. I think that's how council will maintain their control into the future dealings of this corporation."

Merulla : "And just with respect to the private money, and I apologize if I missed this, who's involved and what kind of money are we talking about here?" . "It's a confidential item? Okay. And when will be making that public?" Kelly: "Ron, you're coming back with a report when?" Marini: "It would be our hope that we have it done, hopefully by November planning committee. . even earlier." Merulla : "And just a rationale for keeping the private money confidential?" Marini : "Right now the unanimous shareholders agreement is really the deal here, and I think to go ahead and negotiate that with somebody and then name them at a later date I think that would be appropriate, rather than to right up front to say somebody that might not be interested in point three, you know to make them public. I think we should go through this negotiation with them and then let you know when the deal's struck."

Whitehead: "I want to move the motion." Pearson seconds. Carried. Kelly: "Thank you gentlemen and I know there's a lot of others involved with this. And continued good luck with this. This is exciting news." (40 minutes on this item)

8. DISCUSSION ITEMS

8.1 Report on the parking issues in Downtown Hamilton by Mr. Carmen Misale, Hamilton Farmers' Market Stallholders' Association (Referred to Planning and Economic Development Committee by Public Health and Community Services Committee on June 29, 04) Mr. Misale's 27 page report is available on the city website at
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-Development/
2004/Aug03/Item%208.1.pdf.

Carmen Misale : Kelly reminds Mr. Misale of the 'five-minute rule'. Misale says he was only notified about the presentation last Friday. Report started 18 months ago instigated by a report on successful revitalization of American cities. "Most have spent an average of 2-3 years doing the very things that we're doing today - trying to encourage investors to come into the downtown, more housing, cleaning up the city, making it more safe. And all these things work well. They've done these things for 2-3 years, and then they found out they had spent vast amounts of money, and they were expecting better results. The improvements were slow. They then called in marketing consultants and they found this little magic thing that's required to revitalize downtown - and that was you will require 10% of any city's population to come into the downtown on a weekly basis. . Hamilton would need 50,000 . besides people who live and work in the downtown." Advocates removing parking meters. This will increase number of spaces by 25% or 50% with slant parking. Says that new housing will be occupied faster near schools or other locations other than downtown. Describes wrong methods of revitalization as "in-house". Kelly notes 5 minutes is up and Misale ends his presentation and asks for questions.

Kelly : "Couple of things Carmen. . valuable to have that report distributed . leave a copy with the clerk." Misale points out that the report is already included in the agenda package. Notes city parking authority is not making a profit. Gives example of addition of parking meters on Kenilworth where businesses asked for them, but now believe this was a mistake and want one-hour free parking. Opposes choice between unrestricted and meters, arguing instead for limited time free parking.

Ferguson asks for information on 2001 expenses that has not been included in the photocopying of a graph in Misale's report. Misale says it's same income as expenses. He asked staff "how is that possible?" and says they told him "when we take a loss, we take monies from our reserves and we put them towards the income and balance the budget. I thought this was very, you know talk about Enron, this is highly irregular." Kelly interrupts: "All right Carmen, . rather that you didn't comment on what staff told you. I'll ask staff about that, okay?" Asks Ferguson if he has another question.

Ferguson : "Under enforcement for 2001 you've got 3.244. What are the expenses?" Misale notes that council recently wrote off $10 million in uncollected fines. Answer is 1.994.961. Fe r guson: Asks about example used in report on Rock Island, Illinois parking zones, and how these were determined. Misale : Notes most policing now done by store owners who call police.

Whitehead moves to refer presentation to staff for a report. Seconded by Merulla. Ferguson has a question for staff: "How do we do our accounting. Do we have meters income/expense, . enforcement income/expense, can that be split out? . like to hear from the downtown group, Mr. Marini opinion on downtown meters." Marini says it's premature for him to give any comment. Motion carried. (16 minutes for this item).

8.2 Request For Proposal for the Sale and Development of Municipal Property Identified as 171 Main Street East (PD03085(a)) (Ward 2) http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/2004/Aug03/PD03085(a).pdf

Staff report by Ron Marini . Council agreed to sell this property to T. Valeri Construction in June 2003. Unable to negotiate a successful deal. Asking council to return deposit, and city will continue to utilize the land as a city parking lot.

Whitehead : "I find it a bit confusing that when we put out this competition, due diligence wasn't assessed with respect to the environmental liabilities and concerns . how do find ourselves in a position that we go into a competition and after awarding to the highest tender, why we're in a position that it breaks down because of the environmental concerns?" Marini : .real estate should be answering this question, but as I understand it, it was 'as is' is what you're buying. There was no special consideration. There was nothing in this bid that said I will offer you this subject to environmental record. That was part of his bidding. He put a bid in and said this is what I want to do. Here's my bid. And as I understand it from real estate, and they can correct me if I'm wrong, but I've been in the meetings where they said the property was sold 'as is' and so you take your chances." Whitehead : ".the question becomes what do we do . to me there's some bad faith in this process, if in fact he went in there knowing that he was bidding on a property 'as is' and then significantly changed his position once being awarded. I guess my question is what do we do from a purchasing policy with individuals that, after being awarded a contract, walk away from it?" Marini : "I guess that question would have to be handled by the purchasing folks, but we haven't awarded anything. Basically what we said was basically what has been submitted to us meets the terms of the bid proposal, and let's go with it and negoiate and prepare the relevant agreement." Kelly notes presence of representative of legal department and asks her for her opinion. Helen Vastis : "Mr Marini has stated the situation correctly. There was no contract that was awarded. The individual merely submitted a proposal. Council directed staff that they go out and negotiate further and the negotiations have failed. That's why we're here today. If the individual comes forward at a future time, we'll certainly deal with him again. There is no bad faith that was exhibited at this time." Whitehead : "Well that's not what the report is telling me. The report is telling me. I'm hearing from staff that this went out 'as is'. Now I'm hearing that the reasons why the negotiations broke down was significantly around the environmental concerns with respect to that land. Well if I buy a car 'as is', I buy it 'as is' regardless of the issues. This individual buys the land 'as is' so how does these types of issues come into play where discussions break down. I guess that's what I'm asking. I'm confused." Vastis : "The individual hasn't bought anything yet. The individual was awarded a contract based on further negotiations, and the negotiations have fallen through, and that's where we are today. So there was nothing awarded, and there was nothing sold, and we haven't entered into any agreements yet. We are merely at the negotiation stage. And the negotiations have fallen through."

Whitehead : "Okay, I guess what I'm trying to drive at. We put out this property for bid 'as is', and it's clear in this report that this individual wasn't going to accept this land 'as is' without a number of due diligences. Which is fair to him, it's not a criticism of him. But if I buy a car 'as is' then that's how I'm buying the car and that's not what took place here. The question is were there other people who bid on this as well, 'as is', and what happens to them?" Vastis : "That's one of the reasons why we have terminated the negotiations. All of the individuals were subject to the same rules. Everybody submitted their purchase price on an 'as is' where is basis. Nobody had the opportunity to conduct environmental testing prior to submitting their bids, and that's why we're here today."

Whitehead : "So then maybe the city has learnt a lesson in this process that when we put out 'as is' we should at least allow access or put a proviso within that they can have access to the property. Like it doesn't make sense that we put it out 'as is' without allowing potential bidders to have access to the property and do their own due diligence prior to submitting their proposals." Vastis : "All of the individuals had the opportunity to enter the property and do their own due diligence testing. The difference in this situation, and the reason why the negotiations have fallen through, is because once you do you due diligence testing, then you've assumed the risk. This individual wanted to reduce the purchase price based on the amount of cleanup that he had to do. And that's where the negotiations had fallen through."

Whitehead : "Fair enough. Back to Ron. Have we not subtracted the price of cleanup on a property in the past with respect to the environmental cleanup on purchase? Do we not have a precedent for doing that?" Marini : "I've never dealt with any. I've personally haven't dealt with that so I can answer that question." Whitehead : "The land on Napier Street. I believe LIUNA purchased that property and there were environmental liabilities, and I believe it was 1.6 if I can remember the numbers. Do we not bring down the costs of those lands, relative to the cleanup, or do you know anything about that file."

Kelly : "Ms. Vastis was on that file. Why don't you let her answer that. Helen?" Vastis : "Every contractual real estate negotiation that we do differs in many ways. There are many situations where we do deduct the cleanup costs from the purchase price. So we had one situation on 80 Queen where the purchase price was reduced by the amount of cleanup. This situation, however, was different. And the difference in this situation was that all of the individuals had an opportunity to bid, and put in a proposal on an 'as is' basis. So for us to now turnaround and deduct the cleanup costs, although that may not be unusual in other situations, it is unusual in this situation because that was not one of the terms in the RFP. And for that reason, we cannot take that into consideration at this time, because that would be unfair to the other proponents who also had submitted a bid. So although on another situation we might reduce the purchase price by the amount of contamination, because this deal had started out on an RFP, it's not wise to now turn around and change the terms of the proposal to allow the deduction of the cleanup costs from the purchase price." Whitehead: ".so where do we go from here once we return the dollars to this particular proponent?" Marini : "My recommendation is that we hold onto it. Marty's still got it as an operating parking lot. We're in the middle of a parking study leading to downtown parking standards for a new zoning bylaw, as well as parking standards across the city. ." Whitehead : so staff have concluded that other applicants would have the same challenges on the RFP. Marini : "As far as I know, we went through a process, somebody was successful, we went through a process where council said 'yes, deal with this person'. We failed to do so. My view, I guess it's a legal question, but really, we've gone through a process and this is the end of it."

Braden : "Just to be a little tougher. If we decide that the negotiations are off, but by and large we didn't let the parties down - there's just two parties involved - why would you return the deposit? Why give that back? They're not following through. It seems to me we've got a case. I don't think they do." Vastis : "Well to be fair in the situation, the terms of the agreement were never that we would keep the deposit if the negotiations have fallen through. We've been negotiating with this individual in good faith, so because we can't meet, and come up to good terms, I think we should just return his deposit.". Braden : "If you return the thing in good faith, do you get him to sign off that they're not going to sue?" Vastis : "Absolutely. We would be returning his deposit and we would be requesting that he sign a release in return."

Mover of motion not verbally identified. Seconded by Whitehead. Motion carried.

8.3 Declaration of Surplus Property: Former Tweedside Church (Stoney Creek) (PD04143(a)) (Ward 11) - Referred from Planning and Economic Development Committee - June 8, 2004
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/2004/Aug03/PD04143(a).pdf

[Minutes say:" Chair Kelly noted that as agreed by Committee at the start of the meeting, the item would be considered at a later meeting." However, this item was simply skipped over at this point in the meeting.

8.4 Notice of Intention to Designate the auditorium portion of the Tivoli Theatre (111-113 Hughson Street North) pursuant to Part IV of the Ontario Heritage Act (PD04210) (Ward 2)
http://www.city.hamilton.on.ca/Clerk/
agendas-minutes-reports/Planning-Economic-
Development/2004/Aug03/PD04210.pdf

David Cuming presented the staff report preceded by a photographic presentation of the Tivoli history by another staff member. "Notice that there are three lots that make up the Tivoli complex. 114 . is the Sam the Record Man store; 108 is the Tivoli Theatre which has frontage on James Street North and comprises the old carriage factory lobby. 114 Hughson Street is the rear lot that contains the auditorium which is the subject of this report."

Cuming : "The motion .arises from the collapse and partial demolition of the Tivoli Theatre complex. and the subsequent submission of three demolition permit applications . It was generally believed up until about a month ago that the former City of Hamilton had designated the entire Tivoli Theatre complex in 1990. So that includes the carriage factory lobby on James Street North and the auditorium on Hughson Street North. The property owner's legal counsel has taken the view that the reasons for designating the auditorium were not appropriately registered on the Hughson Street lot that contains the auditorium, and it's the legal counsel's view of the property owner that the auditorium is not appropriately designated under the Ontario Heritage Act, that no heritage permit for demolition is required under that Act, and in addition, Heritage staff have been denied access to the auditorium to make a site visit for the purpose of inspection. Heritage staff and the Hamilton LACAC Municipal Heritage Committee are now seeking to rectify this discrepancy, and it is only a discrepancy, by recommending designation of the auditorium being properly identified and located on Hughson Street North. Staffs' view and Municipal Heritage Committee's view is that this properly satisfies the municipal intent in 1990 as well as the property owner's request at that time for designation of the entire complex. The auditorium still retains heritage value, primarly vested in its interior features, and it has become readily apparent that the auditorium has functional value as an entertainment venue and a place where people can congregate. The notice of intention to designate, therefore, is really clearing up a discrepancy. Once the notice of intention is served on the owner, the Ontario Heritage Foundation and published in the newspaper, it's as though the property once again becomes designated under the Ontario Heritage Act and we will then be able to entertain heritage permit applications appropriately for the demolition of the property. The Ontario Heritage Act did anticipate a period of time by which, in this case, the owner, the tenant and interested community groups - which is us and heritage groups - could during a period of time come together and try and sort out some options and alternatives for either a new ownership and new tenancy agreements, or new partnerships and sponsorships. ."

Ferguson : Difference in timing of demolition permit between designated and non-designated? Cuming : .building code act . where a property is not designated, it simply means that the chief building official is obliged to issue a demolition permit on the understanding that all services are cut off to that property. Where a property is designated, a demolition permit may be considered by council during a period of 90 days and if council determines to deny the permit . another 180 days can run by which time it is anticipated that the parties could get together to come up with alternative remedies. Recent changes to the Ontario Heritage Act in 2002 also obliged the property owners to not only have a demolition permit in hand but also a building permit as well for a replacement structure. So in essence it would be 270 days total running time plus an approved building permit for a replacement structure. Ferguson : "If it wasn't can council just refuse the demolition permit?" Cuming : "If it's not designated, my understanding is that if it's safe to demolish the property then the municipality through the chief building official would issue a demolition permit." (tape break plus problems with tape at beginning of next side).

Ken Coit , Architectural Conservancy of Ontario, Hamilton Branch: Been working with Arts Hamilton and Creative Arts to come up with a long term solution "for the last vaudeville theatre left in the city. At one point we had more theatre seats here than they did in downtown Toronto. This is the last vestiture of that. . could be an active theatre . viable contribution to James Street North."

Mike Townsend , Creative Arts Hamilton, spoke in support of the recommendation to designate. He also read a letter of support from Tom Dertinger.

Bill Manson , Arts Hamilton, spoke to Committee and supported the designation of the building. "For some time now, our council has envisioned the creation of a Hamilton community arts centre and I can assure you that the desire and need for a facility of this nature is strong shared by the arts community. Arts Hamilton believes that the Tivoli, given its heritage and its location, would make an excellent venue for such an arts focus in our community. We see the auditorium being used as a performing arts stage for community music, dance and theatre groups, while we see the rest of the site adapted as . exhibition space for local visual media and other artists. . working to facilitate the creation of a community arts centre at the Tivoli. Recent events . only reinforced our belief that this invaluable piece of Hamilton's art heritage would make an ideal community venue for the arts. For this vision to be even possible, of course the Tivoli must be preserved. ."

Mary Flynn-Guglietti , McMillan Binch, lawyer for Sniderman Family that owns the Tivoli: "three demolition permits were submitted on July 16 . (ongoing tape slippage problems obscures parts of dialogue)" responsibility for preservation of heritage buildings cannot be the sole responsibility of private interests . "if it is the purpose to designate this building so that the city of Hamilton can preserve part of its history ." then city needs to make financial contribution. Notes that earlier speakers indicated "trying to buy more time in order to raise more funds. But I think that it is very difficult to raise those funds". "Any arts group that is looking to trying to deal with this building, unfortunately there are a lot of costs associated with it and had we had the permit with respect to 108 and 112, that would take away the obligation to put on a new roof . but with respect to the $500,000 that's been attached for trying to preseve the building while it was being secured, that too adds to the cost to the building, and so really in terms of long term safety and long term economics of this building, it is extremely difficult. Unless there is a way to waive the $500,000 attributed to my client, it's going to be very very difficult to . this property. . it is something that fairly should not just be borne by my client alone."

Whitehead asks how long the property has been in the Sniderman's hands. Flynn-Guglietti : "I'm actually not certain, sir." Whitehead : "The reason why I'm asking the question is that there have been long long protracted discussions with the Sniderman family in regards to what their interest was in the building. So I guess the next question is that since they've owned it, and since they've closed down the record shop, so let's say the last ten years, how much capital have they put into that property just to maintain it?" Flynn-Guglietti : "I don't have the answer to that question, sir, but I do have." Whitehead : ".it's my understanding that no dollars have been passed by the Sniderman family for the maintenance of that building over the last number of years . that any dollars . came through different types of grants through different government agencies, which I know because I was part of those discussions and we wouldn't have done that, but it was a band-aid solution for a significant issue in regards to the maintenance of that building. so I guess what I am saying is that I can respect the fact that there's are costs to be borne out as a result of where we are at today, but we wouldn't be at where we are at today if in fact the property dollars had been put forward to maintain the building to a standard that wouldn't have created the situation we're in." Flynn-Guglietti : "I know that it did meet the building code." Interrupted by Whitehead : "Well that's fine and dandy, but we have a collapsed roof so ." Kelly interrupts: Councillor in fairness we're here to ask questions, not to have a debate the issue." Whitehead : ".the reason I'm passionate about this is because we were in discussions and the Sinderman family were asking for well in excess of $2 million in a tax receipt for a building that was assessed at $500,000. And it's just unfortunate, because potentially two years ago a non-profit organization could have been holding that property and raising funds and making applications for grants, and we wouldn't be in the situation we're in today. So if we want the history of this building, I'm very passionate about this building, and it's unfortunate that in two years we didn't get anywhere with the Sniderman family in regards to transferring the ownership and now we find ourselves in this dilemma."

Ferguson : "For purposes of accuracy, if my memory serves me correctly, it was the city that . that $25,000 for the roof." Flynn - Guglietti : "It's actually in the other report, sir, that we applied for a grant." Ferguson interjects. Flynn - Guglietti : "I said 25,000 was applied for and provided to my client ."

Motion adopted to go into camera at 12:25 pm "for the purposes of receiving legal advice". Came out of "in camera" at 12:50 pm. No further discussion at that time.

Whitehead moved the recommendation, seconded by Ferguson. Carried.

Other business

Whitehead moved to approve staff report PD04136, tabled on June 8, removal of trees on West 5th Street and the future Rosehill Avenue. No discussion. Carried.

Whitehead had previously raised concerns about pigeons causing a nuisance for one of his constituents. Randy Charlton of staff provided an update regarding regulations on the keeping of pigeons. Pet control bylaws not yet standardized across the new city. So recourse necessary to Municipal Act rules on control of public nuisances. Could also use a licencing of pigeon fanciers. Whitehead : ". we restict the number of cats you can have. We restrict the number of dogs you can have. We have no absolutely no restriction on how many pigeons you can have, and you know when you have a flock of pigeons flying over your barbeque it's not very pleasant." Receiving complaints over breeding and racing of pigeons in his ward. Wants numbers restricted. Staff explains imposing numbers restrictions would have to be supported on basis of public nuisance, safety, etc. Legislation in past allowed numbers to be imposed, but that no longer exists. As of Jan 2003 the legislation to restrict pigeons or other classes of animals like pot-bellied pigs no longer exists in the Municipal Act. Now have to look at sections of Act related to public nuisances "To do that we also have to prove that what we're passing a bylaw on is indeed a public nuisance." Whitehead : ".a flock of 60-70 pigeons flying over your home, I would say is a public nuisance. what are next steps?.." Staff say they can research a bylaw on this but need to prove that the pigeons are a public nuisance. Moved by Whitehead, seconded by Pearson to ask staff to prepare a report. Ferguson asks if you have to tag these pigeons. Braden: "I got into the pigeon business in 1956" and got out in 1957. "You can learn a lot from them." Motion carried.

Councillor Mitchell gave a brief update (off microphone) Staff: ".there was 60,000 cubic feet of material that was dumped on the property at 777 Green Mountain Road by the operator and his associated business partners. We are pursuing the enforcement of the bylaw about keeping that kind of material. the dumping has stopped. However we have started a claim against the owner for an injunction for the removal of those materials - an unusual step but given the magnitude of the amount and the costs associated to the municipality - we have to clean it up - we thought that would be a prudent way to go."

Adjournment.