February 2/04 Report
9:30 am

Committee members in Attendance:
Dave Mitchell - Chair (Collins absent due to illness)
Dave Braden
Phil Bruckler
Murray Ferguson
Tom Jackson - Arrived at 11:48
Margaret McCarthy
Sam Merulla - not present after lunch.
Mayor DiIanni - In during In Camera; Out 11:45? Not there in the afternoon.

Non-Committee Councillors in Attendance:
Brian McHattie - in 11:00
Maria Pearson

Public Works Staff:
Peter Crockett, General Manager, Public Works
Joe Rinaldo, General Manager, Finance and Corporate Services
Domenic Lunardo (presented 8.1)
Others

The meeting started late in room 110 due to confusion about whether the meeting was to be in the council chamber or room 110. A quorum (4) was not available until 9:35. Probably started about 9:40 am.

Minutes of January 19 meeting approved
4.1 - Delegation Requests approved
6. - Consent Items
Public Hearings/Delegations: 7.1 removed;

7.2 - Hamilton Action for Social Change - Aboriginal Treaty Rights-Mr. Randy Kay
I was the presenter and my transcript follows: I read some points of introduction before reading the letter. (Randy's letter, dated December 17 was printed out in the agenda and I didn't give any handouts) In these I explained what a treaty was - two parties like a marriage contract with both parties receiving benefits and having responsibilities; the treaties were contracts between "nations" - eg. Six Nations (Five Nations) and England and then Canada; treaties cannot be dismissed - entrenched in Canada's Constitution of 1982 (amendment to the BNA Act) Article 35; treaty disputes are to be decided between the federal govt. and the First Nation, not a municipality; municipalities/"settlers" have stolen much of aboriginal land by a variety of means - many underhanded and illegal - eg. I noted that the Oneida Nation of New York lost 6 million acres in 65 years through a variety of illegal means; I emphasized that I was there to represent the "settler" side of the 1701 treaty and was not speaking for any First Nation; and to ignore first Nations claims is to dishonour our agreed to obligation. I also mentioned that we gave the Mayor a large copy of the Nanfan Treaty as part of the New Years Greeting Card from HASC at the Mayor's New Year Levee. I then read Randy's letter and said I was prepared to answer questions. There were none for me.

Transcript of Murray Lumley's presentation. "I'm speaking on behalf of Hamilton Action for Social Change". Want to make some points on treaties. Has some personal experience with Oneida. "A treaty is a contract with two parties, not unlike a marriage contract. Both the parties to the treaty receive benefits and bear responsibilities. Most of us here are descended from settlers and we've received tremendous benefits. I'm not here to speak for aboriginal people. They can tell you what they've received. The treaties were contracted between nations… and there are many other of these treaties in Canada between First Nations and Canada. Treaties cannot be dismissed. They've been entrenched in Canada's constitution and the statement of this entrenchment is in article 35 of Canada's Constitution of 1982. A decision on a treaty dispute - since the treaties are with the federal government - should be made by the federal government, rather than the municipality. I would also say that municipalities all over North America have one way or another stolen the aboriginal land. I know the history of the Oneida territory in New York State. Even though it was supposed to be protected by their federal government, their six million acres was virtually gone in 65 years. There's actually a 32 acre settlement near Oneida, New York that is left. I, or we, represent the settlers' side of the treaty that's mentioned in the letter of the 1701 treaty of Nanfan or the Albany Treaty, and I said it already, I'm not speaking for six nations or any other aboriginal nation. I'm speaking from the side of the treaty, the settler side, if you will. And to ignore First Nations' claims is to dishonour our agreed obligations. Comparisons have been made… we have a treaty in the United States called the Jay Treaty, a very old treaty that helped determine the borders between Canada and the United States. We do not dishonour that treaty. We would do so at our peril. But I think we have some problems with treaties when they're with people who have no power. Or we have power and they don't. The mayor was presented with a copy of the Nanfan Treaty on the day of his levee. Hamilton Action for Social Change presented him with a large greeting card, a New Year's Card, which has a copy of the treaty. And on that day we asked him to sign that he would honour the treaty. So the letter - was actually written by Andy Kay but with the rest of our approval - was actually first written and presented on December 17th, so it's more than a month old. It's just that we're getting - there's been so much business with this Committee, that you're just getting to it now." Murray proceeds to read the letter aloud to the Committee (copy in the agenda).

Questions

McCarthy: "The treaty rights of 1706 are protected both inside and outside the Constitution, am I right?" City Manager Bob Robertson responded: "I would say they are but these are complicated questions, but my sense is that they are".
McCarthy: "Based on that then are we violating this if we proceed?" Barkwell: "Mr Chairman, in terms of the specifics of the legal aspects of that case, we've obviously… I don't think we've been served at this point, but we've had some preliminary discussion… but the point is we've engaged legal counsel to advise us on those types of questions. And at this point we are … to proceed because we feel that we're not … treaty rights… We are monitoring the situation. Mr. Murray could give you a more up-to-date response with respect to where that legal advice…
Chris Murray: "Really there isn't much more to add to that. It's true the statement of claim was issued in December (sic). It's not been be served to us. I believe there's a six month timeframe. Peter Barkwell can speak to that. So from the individual that's claiming, we've not been served but we do know that the governments that represents Six Nations - both the Confederacy and the collective council -- have not chosen to support the individual action. We've been working with these governments for over 18 months now and the agreements will be taken forward to this Council this month."
McCarthy: "Regardless of the situation with the protestors, it's my understand that the treaty of 1706 is protected both inside and outside of the amended BNA Act, and based on that, there would be a strong legal argument against us. That's my understand, that's my knowledge of history and the treaty rights. Can I hear from Peter Barkwell, please?"
Barkwell (lawyer): "Through you Mr. Chairman, I should point out that at this point in time that while we have not been served. There is a notice of action, as I understand it. A statement of claim has been issued in Superior Court. My advice is that we should tread very carefully on public commentary with respect to this issue. And I'm concerned that we are very close to hearing …
McCarthy: "Well, I'd be happy to go in camera to deal with this issue. It's come up and it's been addressed in the document so I think it should be… SO if it requires discussion in camera, that's fine.

Committee decides to go in camera at approximately 9:50 am. The committee reconvened in open session at 11:10 am. During this time (in-camera) Deputy Chief Leendertse was seen entering the meeting room and then leaving.

Staff Presentations:
8.1 - City Hall Accommodations Project Evaluation Status Report - 11:10 am.
Presentation made on 8.1 by Domenic Lunardo, Director of Facilities and Fleet made a slide presentation regarding three options for City Hall Accommodations - City Hall is falling apart and only accommodates 400 staff while about 900 staff are housed elsewhere in the downtown.

• number of leases coming due in the next three years and "we anticipate some of those increases will be as high as 35%" "Many of these leases are coming due in the next year or so"
• "our operating costs are also spiralling", heating oil
• experiencing a number of emergencies here at City Hall. Operational issues: Five water breaks in the past 10 days primarily due to cold weather, but also infrastructure that needs to be replaced.
• Risks: "This building does have asbestos insulation". "Many of the elevators are down on a frequent basis" Mechinical issues. "In some cases, elevator parts are becoming very very difficult to obtain" Don't meet current fire standards.
• "We're at a point where we have to make some decisions."
• Received four proposals on October 23 for design, build, operate and finance. All used existing City Hall site. Two proposals include renovation of existing building plus construction of additional tower. Two other proposals include demolition of this site and construction of new building. Proposals don't require moving staff out to renovate. Evaluation not complete at this time.
• Preliminary evaluations is that none of the proposals meet technical and financial objectives. Some met financial targets "but were quite poor" in technical aspects. Others met technical but the cost was "prohibitive".
• Short term financial pressures. Three options
  • Option 1: consolidate decision deferred, establish contingency plan for emergency repairs. Delay capital expenditures as long as possible. "there would be tremendous risks in doing that" Expects failures will occur and very difficult to plan for other space for employees. Mentions convention centre and Copps Coliseum. Very difficult to anticipate costs of this option.
  • Option 2: Renovation plan - similar to original recommendation of the staff. Keep this building, but could expand in future, but precludes replacing and building new one. Will have to finalize accommodation plan, try to optimize current leases, will come back with a detailed plan. Will have to relocate staff while this take place.
  • Option 3: Proceed and finalize RFPs. "In a perfect world, this is probably the least expensive over a 25 year period". But can't afford it now. The benefits are quite obvious. Least impact on staff. Lowest cost for the long term.
• Summary: We do need to take action but there are "competing cost factors" . Option 1 carries considerable risks. Option 1 also putting money into something that will likely be abandoned in future. Recommendation to proceed with Option 2. Commitment to this building. Consolidation of staff put off to the future. Included in 2005 budget process.

Rinaldo: Best over 25 years is Option 3 but "given our current financial position, we are not recommending this"
Braden: We can borrow money now at pretty good rates. Is it true that Option 3 is the cheapest? Rinaldo: "Absolutely. The report says that." Initial costs will go up from $6 million to $10 million.
Braden: "We borrow all kinds of money for other projects." Why not straight borrow it". Rinaldo: Right now our facilities don't have any debt associated with them, so as soon as you add debt, it's going to add $7 million of debt charges that we will have to start paying for. Plus we have to pick up the long term operating costs. Right now City Hall doesn't have any debt.
Braden: "In terms of every other project we're saying don't worry about the money, go ahead. Here it is we're talking about City Hall you say we can't go ahead because the debt costs are too high. Something is wrong, not with the argument, but with the ideas." Crockett responds essentially 'don't blame staff, we're just following directions of council'. "It is cheaper, but the direction that we've got right now, which is don't increase our borrowing…we can't recommend that.".

Rinaldo clarifies in debate that Option 2 spending would be spread over a period of time to reduce the financial impacts. No plan detailed out yet.
Ferguson liked option 3 because not building is "like waiting for children 'till you can afford them."
DiIanni: City hall is victim of deferred maintenance. Wants to pursue any option that allows us to find new financing from whereever. Staff response: Don't know what's possible here.
Bruckler - "so far I've heard the good, the bad and the ugly; I'm still looking for the good" - prefers #3.
McCarthy: Can't afford anything else than option 1. "Stay here and do the quick fixes". Wants to hire someone in-house to do this. Staff says not possible or practical. Expertise in consulting company on asbestos, structural, mechanical, architectural, environmental, electrical, etc. Don't know what system may fail, so we can't hire staff to deal with this.
Merulla asks for clarification on how we can't afford to build a new City Hall but that is the cheapest option. Rinaldo: "I think what the City's facing is significant financial pressures on a number of major issues going at this particular team. Once we get through and pay off some of those projects and debt charges fall off, then were in a position to assume additional projects." If you don't want to increase taxes "then you don't want to all the projects at the same time". Residents in the future would be better off with option 3, but our residents in the present would pay more taxes in the short run to benefit future residents. Clarifies that residents in 10-15 years would be the ones who would be better off with option 3.
Merulla asks: So this is unaffordable? Rinaldo: "In my view all of our challenges are unaffordable at this time". Assuming that we'd borrow the $90 million over 25 years at 6.5%.
Recommendation moved and carried. Opposed by Ferguson and Bruckler but when Mitchell (chair) asked, they indicated they didn't want to be recorded as opposed.
Discussion Items: 9.1 approved;

9.2 - Proposal to Operate Concession, dundas Driving Park Tobi's Frys- Mr. And Mrs. Bob Grisdale, Ward 13 - discussion - Merulla - what about the optics of giving an unsolicited and untendered contract? Jackson - what experience with Tobi's; Braden supported - Tobi's has worked with staff; Grisdale spoke - are residents of Dundas; exposure in Dundas. Jackson - what about objections that might come from another concession operator? - imagined dilemma in future. Lunardo assured no net cost to city. Jackson ok with "one-off" provided stadd givesd guarantees of no future difficulties;
Crockett - staff is working on a policy for future unsolicited proposals.
Bruckler - is there any intention for staff to seek to operate concession? Lunardo - No; Bruckler - what is the value of a municipal asset such as this concession? No answer
Recommendation carried - moved by Ferguson, seconded by Braden.
Merulla and Bruckler recorded as opposed.

9.3 - Four-Way Stop at Huxley and Central. Deferred on request by Merulla. No discussion

9.4 - Waste Diversion Facility Site Selection - 1579 Burlington St. E. Be selected as the preferred municipal site for City of Hamilton's two new Waste Diversion Facilities required for impl. of the approved SWMMP - report by staff Beth Goodger. Recommendation carried

13.1 - Braden asked that in future a statement be made to introduce an issue and then decide whether it is appropriate to go "in-camera".

Crockett - there is a need to set up a sub-committee - steering committee? To do the RFP work for the private water contract . Collins, Mitchell and McCarthy were selected.

Chair recommended break for lunch at 12:30 pm with resumption of committee at 1:30 pm to hear budget presentations interrupted on January 30. Went into camera for 13.1.