Professional Documents
Culture Documents
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TABLE OF CONTENTS
1. COVER PAGE
2. TABLE OF CONTENTS
3. VARIOUS FRAUDS ALLEGED AGAINST UPPER CITY MANAGEMENT
4. INFOGRAPHIC
5. SUMMARY
6. SUMMARY
7. KEY CITY STATEMENTS AND EMAIL ACKNOWLEDGING MAYOR AND CITY
MANAGER IN CHARGE
8. INTERNAL CoV EMAILS
9. INTERNAL CoV EMAILS
10. DERIVATIVE OPTION CALCULATIONS,VALUATION MODELS & CONCLUSION
11. DERIVATIVE OPTION DESCRIPTIONS
12. DERIVATIVE OPTION CALCULATION
13. DERIVATIVE OPTION CALCULATION (lowest possible value)
14. SAMUELSON McKean FORMULA FOR "REAL OPTION" PRICING
5 East 8th Avenue - in additional bound sections alleged fraud package also
contains:
Compiled / created by Glen Chernen For the VPD - Financial Crime Unit - April 2014 - 778 877- 6360,
gchemen@gmail.com
CoV Owned - 5 EAST 8th
$1,155,000-3,000,000 Undisclosed
p
"Purchase Option Derivative"
Sold for $1
Value & Details Appear Intentionally Hidden by Upper City
Management for Almost 2 Years Until April 2014 Discovery
It appears to of been or had:
Breach of trust - High vulnerability of residents due to zero oversight
Large magnitude of fraud
High degree of sophistication
Long duration of dishonesty - ongoing
Large number of victims - "The City of Vancouver" and all its residents.
High efforts to conceal event/loss
Personal benefit to those granting
Many involved
Non Voluntarily Discovered by Extensive investigation
Embezzlement / defalcations
It appears the mayor and administration deliberately deceived in order to secure an (unlawful ?) gain for
advertising executive, Ryan Holmes, a strong poltical supporter of the Mayor.
It appears to be an illegal grant. (Vancouver Charter # 206)
done to increase the personal wealth and power of officials at the expense of the city
Money Laundering
Proceeds of a criminal act turned into legitimate funds by
1. Placement of asset into the financial system by the granting of the 3 year 8 month purchase option
derivative for $1.
2. Complex financial transaction
3. Acquiring the wealth for Ryan Holmes - via - leveraging fraudulently obtained derivative to obtain more
loans and investments, $700,000 renovation gift, and 7 months free rent.
Misleading representation
Fake "for sale" tender. Never truly for sale by the City of Vancouver
Hiding the value of the option & significance from minority voting councillors of opposition.
Collusion
Working with purchaser against the city, keeping it secret and preventing its discovery.
Ryan Holmes / Robertson Conflict
Mayor Gregor Robertson did not disclose his relationship with Ryan Holmes
prior to or during the council meeting of June 27th, 2012.
ayor
Gregor Robertson
Details of contract
^IH_. HIDDEN until FORCED
by BC Privacy
Two days before the last election: A 3 year 8 month purchase option Commissioner
II V Hootsuite is a social
Media and advertising
company which offers
political specialties in
analytics and real time
polling
V
ROBERTSON CONFLICT - 5 EAST 8th AVENUE - ALLEGED FRAUD
The Undisclosed $2,000,000+/- Financial Derivative Sold for $1 to CEO, RYAN HOLMES
Mayor Gregor Robertson was given free event hosting and promotion by Ryan Holmes and
Hootsuite in the last election as well as post election. Two days before the last election, they
hosted and assisted Mayor Robertson at their head office with an election campaign event that
they called a "town hall".
Ryan Holmes assisted/endorsed Robertson and provided the use of his Hootsuite/lnvoke offices
with its attractive and trendy location for election marketing. Robertson also received staff
support and promotional tweets from many Hootsuite employees to their many thousands of
followers and Vancouver residents.
Ryan Holmes leads an advertising & social Media Company, real estate management company,
and food delivery service. His advertising company create websites that offer political specialties
in analytics and real time polling. The event was an undisclosed campaign contribution worth
thousands of dollars. It appears to have broken campaign disclosure laws by ignoring Van
Charter # 62 (7) Duty to file disclosure statement.
The market value according to the City of Vancouver was between $9.6 - $9.9 million dollars.
The true current market value of the Hootsuite offer at the time of acceptance was only about
$7,200,000 or less, after all the discounts are applied. According to City of Vancouver Real
Estate Associate Director, John Breckner in his affidavit, that is too low to accept. Breckner
states the city must only accept offers that match or beat current market value according to city
policy. Selling the derivative for $1 appears to have broken Vancouver Charter # 206, giving a
grant tO a "fo:" profit institution". Compiled / created by Glen Chernen For the VPD - Financial Crime Unit - April
2014 - 778 877- 6360, gchernen@gmail.com *
Mr. Robertson did not disclose his relationship with HootSuite and Ryan Holmes prior to, or
during the Council Meeting of June 27, 2012 in which the city voted to approve the lease with
"option to purchase" for the city owned property at 5 East 8th Avenue to HootSuite Media Inc, nor
did he file a campaign disclosure for their 2011 election assistance. Van Charter #145.3
November 17 2011, Mayor Robertson was hosted at Hootsuite offices for his pre election event
that was endorsed by Ryan Holmes & hootsuite. Robertson must maintain that it had "no value"
because it appears to be an undisclosed campaign contribution.
False or incomplete campaign disclosure reports are further grounds for dismissal under
Vancouver Charter 64.3
"The city will offer two opportunities to view the property in advance of the deadline for offers ".
"Notify Melinda Chan, City of Vancouver, Real Estate Sennces, in writing by 4:30pm, 3 days in
advance of their selected viewing date ". "The available viewing date and times are Wedjviarch
7,2012 @ 10AM or Thursday, March 29, 2012 @ 10 AM".
EXCLUSIVE FRAMEWORK CREATED FOR CAMPAIGN SUPPORTER, RYAN
HOLMES
On May 15, 2012 at 10:51 AM Only one (1) day had passed since the "for sale" public tender
period ended, and the last offer to purchase became irrevocable, and an untendered bid "for
lease with option to purchase" was received from Ryan Holmes/Hootsuite.
The City went into exclusive negotiations with Ryan Holmes and neglected to make the
negotiations public. Only through questioning from the public and reporters has any of this come
to light after 20 months.
The city has admitted through the affidavit of Associate Director of Real Estate Services, John
Breckner's, that they did not re tender the property "for lease" under an open public tender
process. "the Real Estate Department did not initiate any formal procurement process for
leasing the Subject Property." John Breckner
The details and value of the "purchase option" derivative for the property have been
intentionally concealed. Additionally the city made no effort to market either the "lease option"
or "purchase option" derivative for the property using conventional means such as a realtor and
advertisements in local newspapers, or any other means for that matter.
PENNY BALLEM MEDIA STATEMENT: (To CBC reporter, Kirk Williams, Feb 2014 )
"lean absolutely assure you there is...there is no involvement of council of any member of
council in any negotiations around our real estate transactions" and in this case as well ?
"absolutely in this case, yes" Penny Ballem.
On May 15, 2012 -10:51 AM Michael Flanigan, the Director of Real Estate Services at the City,
sent an email to four staff members regarding an offer from what looks like HootSuite. Most of
the email is redacted. It was sent to:
1) John Brecker, Associate Director of Real Estate Services for the City, 2) Glen Williamson,
Property Negotiator for Real Estate Services, 3) (cc)Melinda Chan, Property Negotiator, 4)
(cc)Holly Fales, Real Estate Services Administrator. The heading says:
"you do not need to do anything on (his at this time as 1 will elevate this proposal to the Mayor
and City manager".
"we would really like to move this proposal forward and hope to get a favourable
interpretation from you regarding this potential user".
On May 15, 2012 -11:41 AM Kevin McNaney, Assistant Director of Planning sent this email to:
1) Melinda Chan, 2) (cc) Michael Flanigan. It stated:
"Can you please let me know 1) are they using existing building 2)what type of uses? "
"I can run it by my staff to see if we can fit them into current zoning "
"I have conferred with my staff and the assistant Director of Development Services (John Greer)
and we agree that Hootsuite would be permitted in this building as the office use has been
"grandfathered".
"I hope that this is helpful". "Please don't hesitate to ask if you have any further questions ".
On May 29, 2012 nineteen pages of 100% redacted emails regarding 5 East 8th Ave were
exchanged on this one day between:
1) Sadhu Afochs Johnston, Deputy City Manager,
2) Penny Ballem, City Manager,
3) Michael Magee, Chief Strategist of Mayor Robertson ,
4) Michael Flanigan, Director of Real Estate Services
On June 27, 2012 Less than seven months after the November campaign event hosted by Ryan
Holmes / Hootsuite, and Two weeks after signing the Lease Proposal an "in camera" Vancouver
City council meeting was held June 27, 2012 in which Mr. Robertson discussed and voted on,
inter alia, "a lease" with an "option to purchase" for the City-owned property at 5 East 8th Avenue
to HootSuite Media Inc. The Decision granted a lease to HootSuite of the former police station at
5 East 8th Avenue, Vancouver for a 5 year term with an "option to purchase" and an option to
extend the lease.
Mr. Robertson did not disclose his relationship with HootSuite and Ryan Holmes prior to. or
during the Council Meeting nor did he appear to file a campaign disclosure for their 2011 election
assistance.
The administrative report to Council, the report of the decision from Council, and the HootSuite
Lease were withheld by the City and not released to the public or the Petitioners for 20 months. It
also took numerous "freedom Of Information" requests and a successful appeal to the Provincial
Privacy and Information Commissioner and an inquiry being scheduled.
On July 3, 2012 Hootsuite CEO, Ryan Holmes contacted Mr Robertson's Chief of Staff, Mike
Magee at Mike Maoee's private consulting company's email account. maoee(5)converoecom.ca
to ask a favour of him. Ryan Holmes stated,
"Was just, talking with an architect who suggested we might want lo see if we can get the building
added to the TIPS program ". "Please advise"
On July 4,2012, Michael Flanigan, Director of Real Estate Services responded to Mr. Holmes
with the following message:
"Ryan Mike Magee passed your request along to me about utilizing the TIPS program for
your Tenant Improvements for 5 East 8th. 1 spoke with the Assistant Director of
Development Services this morning, Doug Robinson, and has requested that your architect
coordinate directly with his office and he will liaise with his processing staff (Sandy
Esworthy) to see whether or not 5 East 8th is an eligible properly. If not, we can always
look at doing expedited field review. Please have your architect contact. Doug at his email
address noted above. " "Please cc me on your email correspondence so 1 can keep my
finger on the pulse of this matter. " "Many thanks, Michael"
"While the VEC and the City of Vancouver both have the corporate goal of maintaining quality
employers in Vancouver, the City of Vancouver has a policy of only selling or leasing property at
(or if possible above) its fair market value, unless it is to a non-profit organization, which would
not include HootSuite." John Breckner - affidavit
"The agreement negotiated by the Real Estate Department with HootSuite satisfied (he Real Estate
Department's mandate of realizing at or above fair market value for City- owned properly.'"
John Breckner - affidavit
VALUING THE HOOTSUITE OPTION: This is easily determined as all the variables are now
known. The tough part has been to view the details of the deal!
REAL OPTION PRICING or BLACK SCHOLES OPTION VALUE PRICING - "loss to City"
* 11.1% volatility,
* 3.00% interest rate,
* 9.6 stock price = ( $9.6 million present value at agreement date)
* 9.6 exercise price = ($9.3 million purchase price at later date )
* fi * 3 yr 8 months = TIME 3.66 years
* 1.47% net yield %$
= $1,155,400 = the full option value (IV + TV), at a given time t (Real Option pricing/
Samuelson Mckean Formula )
= $1,184,202 ( using Black Scholes formula)
\t^l 9\D0\K ^
CONCLUSION ON HOOTSUITE OPTION:
Nobody has addressed the value of the purchase option that was given away for $1 to Ryan
Holmes and Hootsuite worth at minimum $1,155,400 according to the absolute value using
Normal Options pricing. Standard investor expectations for a well priced property with good
prospects and an extremely long time period such as 3 years would be about 2-3 times as
much. The $1 Derivative contract that the city signed with Ryan Holmes was intentionally hidden
and none of the offers have ever been made public.
The intrinsic value (IV) of an option is the value of exercising it now. If the price of the
underlying stock is above a call option strike price, the option has a positive monetary value, and
is referred to as being in-the-money. If the underlying stock is priced cheaper than the call
option's strike price, the call option is referred to as being out-of-the-money.
Hootsuite obtained an "option to purchase" (IV - Intrinsic value) presently worth $891,000 which
is is the difference between between the present assessment of $10,191,000 and option to
purchase price of $9,300,000.
OptionsCalc
Call Put
Model Black-Scholes Theoretical Value 1184202.26C .417398.211^
Stock Price 9600000.00 Delta 10.6617 -0.2856
Exercise Price 9300000.00 Delta 100's 66.1684 -28.5627
Value Date 06/27/2012 Lambda (%) !5.3641 -6.5693
Disclaimer: Option and derivative calculations are provided by Montgomery Investment Technology, Inc. All rights
reserved. Calculations are provided for informational purposes only, and are not intended for trading and
valuation analysis purposes. Montgomery Investment Technology, Inc. shall not be liable for any errors in the
content, or for any actions taken in reliance thereon.
1
1
leal Option Price Calculator http://www.ncbase .com/opc/real .php
Volatility s 11.lj%
Price It!
To price another option, edit the data above and click Price Itl again.
Exit:
:
V
Criminal Code http://laws-lois.justice.gc.ca/cng/acts/c-46/page-I83.htm/#docCont
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nat da \ _f y d l n nt vn lrCl nX
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Fraud
Fraud
380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a
false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained
or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen
years, where the subject-matter of the offence is a testamentary instrument or the value of the
subject-matter of the offence exceeds five thousand dollars; or
{b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
where the value of the subject-matter of the offence does not exceed five thousand dollars.
Minimum punishment
(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to
in subsection (1), the court that imposes the sentence shall impose a minimum punishment of
imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds
one million dollars.
(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false
pretence within the meaning of this Act, with intent to defraud, affects the public market price of
stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 380; R.S., 1985, c. 27 (1st Supp.), s. 54; 1994, c. 44, s. 25; 1997, c. 18, s. 26; 2004, c. 3, s. 2;
2011, c. 6, s. 2.
Previous Version
(a) the magnitude, complexity, duration or degree of planning of the fraud committed was
significant;
(b) the offence adversely affected, or had the potential to adversely affect, the stability of the
Canadian economy or financial system or any financial market in Canada or investor confidence in
such a financial market;
(c.1) the offence had a significant impact on the victims given their personal circumstances
including their age, health and financial situation;
(d) in committing the offence, the offender took advantage of the high regard in which the offender
was held in the community;
(e) the offender did not comply with a licensing requirement, or professional standard, that is
normally applicable to the activity or conduct that forms the subject-matter of the offence; and
(0 the offender concealed or destroyed records related to the fraud or to the disbursement of the
proceeds of the fraud.
lof2 2014-04-20,9:53 PM
Criminal Code http://laws-Iois.justice.gcxa/eng/acts/c-46/pagc-183.htmI#docCont
(l.l) Without limiting the generality of section 718.2, when a court imposes a sentence for an
offence referred to in section 382, 382.1 or 400, it shall also consider as an aggravating circumstance
the fact that the value of the fraud committed exceeded one million dollars.
Non-mitigating factors
(2) When a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400,
it shall not consider as mitigating circumstances the offender's employment, employment skills or
status or reputation in the community if those circumstances were relevant to, contributed to, or were
used in the commission of the offence.
Record of proceedings
(3) The court shall cause to be stated in the record the aggravating and mitigating circumstances it
took into account when determining the sentence.
2004, c. 3, s. 3; 2011, c. 6, s. 3.
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2 of 2 2014-04-20,9:53 PM
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The Vancouver Police Department's Financial Crime Unit is responsible for the investigation Unit
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is only one of several pieces of legislation that can be used to deal with fraud. Complainants (>nancialcrimeC"'vPdca
may be advised to seek redress in the civil courts as an alternative or be referred to another ,p, . .,
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data) Avoidable Scams for 2011.
defalcations (embezzling)_J
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5 EAST 8th AVENUE - ALLEGED FRAUD
TABLE OF CONTENTS
Compiled / created by Glen Chernen For the VPD - Financial Crime Unit - April 2014 - 778 877- 6360,
gchernen@gmail.com
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1.1.14 "Transfer" means the Form A transfer of estate in fee simple conveying the
Property from the Seller to the Buyer.
1.2.4 time will be of the essence, and if the Buyer or Seller expressly or impliedly
waives that requirement, the Buyer or Seller may re-instate it by delivering
% notice to the other;
r.z.5~ this Contract represents the entire agreement between the Buyer and Seller -t:^^t.l^v>4.
regarding the matters set out in it, and supersedes all prior agreements,
understandings, letters of intent, negotiations, or discussion about those
matters, and no amendment is to have any force or effect unless the Buyer and
Seller have signed it;
1.2.6 references to statutes and bylaws are to them as they exist on the Effective
* - Date, and to later amendments or replacements of them; and
1.2.7 if there is more than one Buyer, the Buyer's representations and agreements
will be joint and several.
SECTION 2
- ' SALE AND PURCHASE
2 1 Option. The Seller hereby grants to the Buyer the sole and exclusive option (the
Option ), irrevocable within the time for exercise by the Buyer herein limited, to purchase
the Property, free from all liens, charges, or encumbrances except for Permitted Charges for
the Purchase Price and on the terms and conditions set forth herein.
2.2 Purchase price. The Buyer will pay the Purchase Price to the Seller for the Propertv
S U D i e Cto
subject t adjustments
tO a n i lin
l Saccordance
lrnPnK iwith
n a r m r r l 2.5.
section anra v. i i f k r^- T c r "
-
* 2.3 Exercise of Option. The Option may only be exercised by the Purchaser during the
first thirty-sixr(36) months of the term offthe Lease, being the period commencing on January
: ^* ^ - y^
- s r ? a0
1, 2013 and expiring on December 31, 2015^ (the "Option Period") by the Buyer giving to the
Seller written notice of the exercise ofthe" Option and provided the Buyer is not in material
default of the Lease following the time period for rectification under the Lease.
fr
2.4 Non-exercise of Option. If the Option is not exercised within the time and in the
manner herein set forth, the Option and this Contract and everything contained herein will be
null and void and no longer binding upon the parties hereto and the Option Payment will be
absolutely forfeited to the Seller, and the Buyer will execute and deliver to the Seller a
registrable release of this Option.
2.5 Closing. If the Option is exercised in the manner herein provided, this Contract will
become a binding contract for the sale and purchase of the Property which will be completed
upon the terms herein contained on the Closing Date.
SECTION 3
REPRESENTATIONS
3.1 Seller's representations. Regardless of any independent investigations the Buyer may
make, the Seller represents to the Buyer, as representations that are true and correct on the
date hereof and will be true and correct on the Closing Date, that:
fr 3.1.1 in response to the Buyer's inquiry under section 116 of the Income Tax Act
(Canada) and under Part IX of the Excise Tax Act (Canada), the Seller is a
resident of Canada within the meaning of those Acts, and, in the case of the
Excise Tax Act, the Seller is resident in Canada by reason other than subsection
32(2) which deems a non-resident to be resident in Canada if that non-resident
has a permanent establishment in Canada;
3.1.2 the Seller is the registered and beneficial owner of the Property, has, and will
have on the Closing Date, good, safeholding, and marketable title to the
Property, free from all liens, charges, or encumbrances, except for Permitted
^ C h a r g e s , a n d h a s s u f fi c i e n t , p o w e r , a u t h o r i t y, a n d c a p a c i t y t o e x e c u t e a n d
deliver this Contract to the Buyer and to carry out the transactions
contemplated herein;
ft
3.1.3 by completing the sale of the Property to the Buyer, the Seller will not be in
breach of any statute or bylaw or of any agreement by which the Seller is
w bound;
3.1.4 on the Closing Date, except for Permitted Charges, the Seller will not owe
money to any Person which will constitute a lien, charge, encumbrance, or
claim against the Property;
-.
3.1.5 the Seller has no knowledge that any government body intends to expropriate
^ all or part of the Property, or that any government body has issued or intends
to issue any order or notice regarding the Property;
fa 3.2.1 the Property and its surrounding Environment complies or does not comply with
Environmental Laws;
fa 3.2.2 the Property and its surrounding Environment is or is not free from
Contaminants;
fa 3.2.3 any Contaminants have or have not been released, spilled, leaked, pumped,
^ n o t e s c a p e d , l e a chpoured,
e d , o remitted,
mi g raemptied, discharged,
m th e dumped or disposed of, or
te d , fro Pro p e rty a n d i ts suhave
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n dhave
ing
fa Environment to, on, or under adjacent lands or their surrounding Environment;
3.2.4 the Property will or will not be environmentally or otherwise suitable for any
fa purpose including occupancy, development, or derivation of revenue; or
3.2.5 the improvements comprising the Property are or are not in good repair or
w condition.
3.3 Buyer's representations. Regardless of any independent investigations the Seller may
W make, the Buyer represents to the Seller, as representations that are true and correct on the
fa date hereof and will be true and correct on the Closing Date, that:
^ 3.3.1 if the Buyer is a corporation, it is in good standing under the laws of British
fa Columbia, and it has sufficient power, authority, and capacity to deliver this
Contract to the Seller and to buy the Property from the Seller;
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w 3.3.2 the Buyer has no knowledge that any person associated with the Seller has any
direct or indirect interest in this sale and purchase; and
W 3.3.3 the Buyer has had or will have prior to the Closing Date, full opportunity to
make all appropriate inquiries into the previous ownership and uses of the
Property, and to undertake all other investigations consistent with good
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commercial or customary practice, in order to determine the condition, state
w o f c o m p l i a n c e w i t h E n v i r o n m e n t a l L a w s , a n d fi t n e s s f o r p u r p o s e o f t h e
v_v P r o p e r t y.
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fa SECTION 4
COVENANTS
fa 4.1 Seller's Covenants. The Seller covenants and agrees that it will:
w (a) deliver to the Buyer forthwith after executing this Contract, or upon the same
f a b e c o m i n g a v a i l a b l e t o t h e S e l l e r, c o p i e s o f a l l s t u d i e s , t e s t s , s u r v e y s ,
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investigations and other information concerning the Property reasonably
required by the Buyer which are in the possession or control of the Seller;
fat _
fa (M maintain in force insurance covering loss or damage to the Property and
covering public liability, in both cases against such risks and to such limits as
W are in accordance with prudent business practice and suitable to the
fa Property;and
w (c) from and after the date that the Option is exercised by the Buyer, not permit
fa any liens to be created in respect of the Seller's specific use of the Property, if
,-.___ anv and if any such lien is created the Seller will forthwith take all such steps
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fa
SECTION 5
AGREEMENTS
fa 5.1 Transfer of title. The Seller will transfer good, safeholding, and marketable title to
w the Property to the Buyer on the Closing Date according to the requirements of this Contract.
5.2 Property Condition Disclosure Statement. The Seller have no obligation to deliver to
w the Buyer a Property Condition Disclosure Statement.
fa
5.3 Investigation. The Buyer, and its employees, agents, and contractors, may enter the
^ Property at any time before the Closing Date to carry out, at its cost, such inspections,
fa investigations, tests, and surveys as it considers necessary or desirable. The Buyer will
^ restore the surface of the Property, and repair any damage it causes in doing so.
fa 5.4 Condition of Property and environmental responsibility. The Buyer will:
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5.4.1 buy the Property from the Seller "as is, where is";
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w 5.4.2 not rely on any environmental reports or investigations from or supplied by the
Seller, and will conduct its own investigations and satisfy itself, at its cost
W regarding the matters set out in subsections 5.5.1 to 5.5.4; '
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5.4.3 waive any requirement for the Seller to provide to the Buyer a site profile for
the Property under the Environmental Management Act of British Columbia or
any regulation pursuant to that Act; and
5.1.4 assume full responsibility for the matters set out in subsections 5.5.1 to 5.5.4
and for any remediation of the Property required under any Environmental
Laws.
5.5 Indemnity. The Buyer, from and after the Closing Date, will release the Seller, and
will also indemnify the Seller and save it harmless from all liabilities, suits, actions,
obligations, statutory or other proceedings, judgements, investigations, demands, claims,
losses, damages, consequential damages, remediation cost recovery claims, remediation
costs, fines, penalties, expenses, and legal costs on a solicitor-client basis, which the Seller
may suffer or incur, arising out of or in connection with anything concerning Contaminants or
Environmental Laws including:
5.5.1 the non-compliance of the Property or its surrounding Environment with any
Environmental Laws;
5.5.4 the leaching, escaping, or migrating of Contaminants from the Property 6T itS"
surrounding Environment to other Properties or their surrounding Environment;
whether or not any such event, happening, or condition arose or arises before
or after the Effective Date or Closing Date^ and whether or not caused in whole
or in part or. directly or indirectly by the Seller or its officers, employees,
agents, or contractors.
5.6 Risk. The Property will be at the risk of the Seller until the date and time of
submission of the Transfer for registration in the LTO, and, after that, will be at the risk of
the Buyer. In the event of loss or damage to the Property following the exercise of the Option
by the Buyer but prior to the Closing Date by reason of fire, tempest, lightning, earthquake,
flood or other act of God, explosion, riot, civil commotion, insurrection, war or otherwise
howsoever, the Buyer may, at its option, to be exercised within ten (10) days of such loss or
damage from the Vendor:
(a) require the Seller to apply the amount of any insurance proceeds paid to the
Seller in respect of such loss or damage in reduction of the Purchase Price and
complete the purchase of the Property; or
(b) complete the purchase of the Property without a reduction in the Purchase
Price in which event all proceeds of insurance shall be payable to the Buyer
and all right and claim of the Seller to any such amounts not paid by the
Closing Date shall be assigned to the Buyer.
If the Buyer fails to notify the Seller of its election within the time specified, the Buyer will
be deemed to have elected to proceed with the purchase and to take an assignment of the
insurance proceeds pursuant to section 5.6(b).
5.7 Possession. The Buyer will have the right to vacant possession of the Property, free
from all liens, claims, charges and encumbrances other than Permitted Charges, on the
Closing Date after payment of the Purchase Price, and other than any liens, claims, charges
and encumbrances created by the Buyer or by the Buyer's use of the Property .
5.8 Status of Property and Permitted Charges. Between the date hereof and the Closing
Date, the Seller will not enter into any contracts or do anything that will affect the Property
or its title, use, or value and will not amend any Permitted Charges, unless the Seller obtains
the Buyer's prior written consent.
5.9 Utilities and services. If, before the Closing Date, the Seller learns of the existence
of any pipes, wires, or other utilities or services below, on, or above the Property surface
that are then in use or that the Seller or any other public authority or utility wishes to use,
the Buyer, promptly on request by the Seller, will execute and deliver to the Seller, in form
acceptable for registration in the LTO, a statutory right of way satisfactory to the Seller and
such instruments of priority for that statutory right of way over other registered charges as
the Seller may require.
5.10 Adjustments. The Seller and Buyer will adjust all items customarily the subject of
-wm***^**^-;^ adjustment in the sale and purchase of prof^eft^ ^jnl(_lL^6LlteJ?!]?BSr!% 3t.fi28J9^!PSlJfe!^
The Buyer will benefit from any income and irresponsible for any "expenses frorn and"
including the Closing Date. If the adjustments are inaccurate or incomplete, the Seller and
Buyer will make further adjustments after the Closing Date. If the Seller and Buyer dispute
any adjustments, either of them may refer the dispute to a single arbitrator under the
Commercial Arbitration Act (British Columbia). The arbitrator may decide that the Seller or
Buyer must deposit money in trust pending the arbitrator's decision on the dispute. The
arbitrator's decision will be conclusive and binding on the Seller and Buyer, and they will bear
equally the arbitrator's fees and expenses.
5.11 Costs, fees, and taxes. The Seller will pay the costs of clearing title except for
Permitted Charges. The Buyer will pay any land title transfer fees and LTO application and
registration fees. If the Buyer is a HST registrant and delivers to the Seller, prior to the
Closing Date, Its HST registration number and such certificate as the Seller may require, the
Buyer will remit directly to the Receiver General of Canada any HST payable by the Buyer on
the purchase of the Property, promptly after the Closing Date, and will confirm to the Seller
that it has done so. If the Buyer is not a HST registrant, the Buyer will pay to the Seller, on
the Closing Date, along with the adjusted Purchase Price, any HST payable by the Buyer on
the purchase of the Property. The Buyer and Seller will each pay their own legal costs. The
Buyer and Seller will pay such costs, fees, and taxes when due.
5.12 Commissions. There Will be no commission payable with the sale of the Property.
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^ 6.2.6 the Seller and Buyer will instruct the City's Legal Director and Buyer's
Representatives respectively to otherwise conduct the closing according to the
*""! customary practices of reputable lawyers having experience in such matters,
v| except that the Buyer's Representatives will not require the City's Legal
rj Director to provide any undertaking; and
V
fa\ 6-2-7 K a condition of this Contract that all requirements of this section 6.2 are
( J | d e e m e d t o b e c o n c u r r e n t r e q u i r e m e n t s a n d i t i s s p e c i fi c a l l y a g r e e d t h a t
| nothing will be completed on the Closing Date until everything required to be
^ done on the Closing Date has been paid, executed and delivered and until the
l J B u y e r ' s R e p r e s e n t a t i v e s h a v e s a t i s fi e d t h e m s e l v e s a s t o t h e B u y e r ' s t i t l e
J pursuant to section 6.2.3.
wl f-3 . Jender- The Buyer may tender documents or money upon the Seller or the City's
k !;es Director, and the Seller may tender documents on the Buyer or the Buver's
m Representatives. 3
6.4 Payments. The Buyer will, or will cause the Buyer's Representatives to, pay all money
owing to the Seller under this Contract by bank draft or certified solicitor's trust cheque or
Wi wire transfer drawn on a Canadian chartered bank or on a trust company or credit union
acceptable to the Seller.
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SECTION 7
GENERAL PROVISIONS
7.1 Survival. All representations, agreements, and indemnities in this Contract will
survive closing, registration of the Transfer, and payment of the adjusted Purchase Price.
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7.2 Assignment. The Buyer may assign its rights and obligations under this Contract to Mr.
Ryan Holmes or any other entity or organization in which Mr. Ryan Holmes holds an interest
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provided that the Buyer will not assign all or any of its rights or obligations under this
fa Contract to any other party unless the Seller gives its prior written consent.
^ 7*3 . N_tice. Any notice, approval, consent, request, confirmation, or demand required or
m permitted under this Contract must be in writing, and the sender must deliver it by prepaid
J^ registered
addressed mail from Seller
any post office in British Columbia, by fax or by personal service
to the as follows:
City of Vancouver
453 West 12th Avenue
\_^j Vancouver, British Columbia
V5Y 1V4
Fax:(604)871-6119
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Attention: Director of Real Estate Services
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with a copy to:
City of Vancouver
453 West 12th Avenue
Vancouver, British Columbia
V5Y 1V4
Fax:(604)873-7445
Attention: Director of Legal Services
or to such other address or fax number in the Province of British Columbia of which either
party may notify the other according to the requirements of this section 7.2. Service will be
deemed complete, if made by registered mail 72 hours after the date and hour of mailing; if .
made by faxed transmission on the first business day after the date of transmission; and if
made by personal service upon the effecting of such service.
7.4 Effect of Contract. This Contract will enure to the benefit of and bind the Seller and
Buyer and their respective heirs, executors, administrators, successors, and permitted
assigns.
7.5 Time. Time will be of the essence of this Contract and will remain of the essence
notwithstanding the extension of any of the dates hereunder.
7.6 Further Assurances. Each of the parties hereto will at all times and from time to time
and upon reasonable request do, execute and deliver all further assurances, acts and
documents for the purpose of evidencing and giving full force and effect to the covenants
agreements and provisions in this Contract. '
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract by executing the
attached Form C.
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SALE PACKAGE
_ f CITY
c OF
VANCOUVER
BUSINESS PLANNING & SERVICES
Real Estate Services
SECTION 1.0
INVITATION TO OFFER
The City of Vancouver is offering for sale the lands and improvements (the
"Property") located at 5 East 8th Avenue in the Mount Pleasant neighbourhood of
Vancouver. The salient information for the Property is summarized in this sale package
(the "Sale Package").
The City invites offers to purchase the Property ("Offers") from prospective
purchasers ("Offerors") in accordance with the terms and conditions provided in this
Sale Package, subject always to the condition that the City assumes no legal duty or
obligation in doing so unless and until the City accepts a valid offer by resolution of
Vancouver City Council.
The Property consists of lands improved with a two-storey office building. The
Property is a good quality, Class C office building with two levels of underground
parking located at the corner of Ontario Street and 8th Avenue, two blocks west of
Main Street.
The building has a gross floor area totalling 65,359 square feet with an office area of
33,282 square feet. The building floor area is comprised of:
The building was purpose built in 1986 as a public authority building and features:
TABLE OF CONTENTS
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SCHEDULES
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SALE PACKAGE
Please see Schedule A for the building floor plans. The building information
provided should be confirmed by the Offeror and the City makes no
representations or warranties concerning the completeness or accuracy of the
data.
There are many public amenities close-by including Kingsgate Mall, a neighbourhood
shopping centre, the Mount Pleasant Community Centre, the Mount Pleasant Public
Library, numerous retail shops and office buildings. This area is home to many service
oriented businesses, wholesaling and light manufacturing operations.
(Bing Map)
Public transit is conveniently located along Broadway and Main Street. The Property is
centrally located and offers excellent access to Downtown Vancouver and all major
transportation arterial routes to Greater Vancouver. Public transportation is available
via buses and the rapid transit system which services Vancouver, Burnaby, New
Westminster, Surrey, Richmond and the Vancouver International Airport.
The Property is rectangular shaped and comprised of three legal lots offering a
frontage of approximately 148.50 feet and a depth of approximately 122.0 feet. The
total site area is approximately 18,117 square feet. The site offers good corner
exposure and rear lane access. The existing building occupies the entire site.
1.4.1 Legal Description
The lands that comprise the Property are legally described as:
PID: 003-621-154
Lot 14 Block 45 District Lot 200A Plan 197
PID: 003-621-618
Lot 15 Block 45 District Lot 200A Plan 197
PID: 003-621-626
Lot 16 Block 45 District Lot 200A Plan 197
(the "Lands")
Situated on the north side of 8th Avenue between Ontario Street and Quebec
Street.
The titles to the Lands are currently free and clear of all encumbrances. A copy of
recent title searches for the Lands are attached as Schedule C.
The Property is currently vacant and available for occupancy. It was most recently
used as a police authority building by the Vancouver Police Department. There is no
lease information to report.
The actual operating expenses for the last three years are broken down and shown
below and are reflective of a 24/7 operational use.
The 2012 Assessment is the most recent assessment for the Property. The assessment
is split between land and improvement values as follows:
While owned by the City, the Property is exempt from property taxes. Upon sale by
the City, the property taxes will be payable. BC Assessment has classified the Property
as Class 6 Business 8t Other. The 2011 property tax rate for Business Class 6 properties
is 18.11148 per $1,000 of assessed value.
1.9 HST
Any HST (or any successor tax that may replace or supersede the HST) or other
applicable taxes, including, without limitation, property transfer tax payable on the
purchase of the Property will be the responsibility of the Offeror.
1.10 Zoning
The Property is zoned 1-1 (Industrial District) pursuant to Zoning and Development By
law No. 3575. The subject zoning permits light industrial uses that are generally
compatible with one another and with adjoining residential or commercial districts. It
is also the intent to permit advanced technology, and industry with a significant
amount of research and development activity.
The maximum building height is 18.3 metres or 60.0 feet. There are no side yard
setbacks. The maximum floor space ratio shall not exceed 3.00 for Manufacturing,
Transportation and Storage Uses, Utility and Communication Uses, Wholesale Uses,
Service Uses: Laboratory; Laundry or Cleaning Plant; Production or Rehearsal Studio,
Repair Shop - Class A; and Work Shop. The maximum floor space ratio shall be 1.0 for
all other uses combined and the floor area in retail uses, including accessory retail,
shall not exceed 1,000 m2 or 10,764 square feet.
The building was built as a "public authority" building and it functions as an office
building. The Property can be maintained as a general office with limitations on
service type office uses as provided in the zoning bylaw. The permitted uses for this
non-conforming public authority building should be confirmed with the Planning
Department.
The zoning documents and policies may be amended from time to time. The Zoning
and Development By-law is available on the City's website at
www, city. Vancouver, be. ca
No information other than that contained in this Sale Package will be provided by the
City of Vancouver in its capacity as owner of the Property. However, if in carrying out
due diligence, an Offeror wishes to obtain further information concerning the Property
from the City in its capacity as a regulatory body, they may do so.
The City will provide two opportunities to view the Property in advance of the
deadline for Offers. Offerors who wish to tour the Property prior to submitting an
Offer are advised to notify Melinda Chan, City of Vancouver, Real Estate Services in
writing by 4:30 p.m. 3 days in advance of their selected viewing date. The available
viewing date and times are Wednesday, March 7, 2012 at 10:00 a.m. or Thursday,
March 29, 2012 at 10:00 a.m. A Property Viewing Reservation Form is provided as
Schedule H.
For convenience, a timeline for this Invitation to Offer process is provided as Schedule
The City is subject to the British Columbia Freedom of Information and Protection of
Privacy Act. All information submitted to the City becomes the property of the City,
will be received and held in confidence by the City and the information will not be
disclosed except to the extent necessary for carrying out this agreement or as required
by law.
This Sale Package has been prepared and administered by the City's Real Estate
Services Group independent of the other departments within the City which have
regulatory control or duties relating to the Property. An Offeror must not rely on the
contents of the Schedules included in this Sale Package and must acknowledge, and is
hereby now notified, that the information residing in files or databases or within the
knowledge of City staff working on the Property other than in the Real Estate Services
Group have not necessarily been incorporated into this Sale Package and, if not so
incorporated, cannot be deemed or interpreted as the City acting through the Real
Estate Services Group. Each Offeror now agrees to submit an Offer only on the same
basis as property being offered for sale by an owner other than a public regulatory
body and now waives all rights and/or recourse, both in law and in equity, which
might arise by virtue of the fact that information was known to the City as seller and
the City failed to disclose it because it failed to cross-reference all its files, databases
and City staff with the action taken by the City's Real Estate Services Group in offering
the Property for sale.
SECTION 2.0
RULES GOVERNING SALE PROCESS
The Offer should be submitted in the form set out in Section 4.0 of this Sale
Package and should be completed in its entirety. An authorized signatory for
the Offeror should initial in the space provided at the bottom of each page
and return every page of this bound Sale Package in its entirety.
April 13, 2012 (4:30 PM) is the offer closing time (the "Offer Closing Time"),
and all Offers (including, without limitation, the offers to purchase contained
in them) are irrevocable and will remain open for acceptance by the City for 30
calendar days after the Offer Closing Time.
It is the sole responsibility of the Offeror to deliver its Offer to the Reception
Counter of the Office of the Director of Real Estate Services at the address set
out in Section 2.2.4 before the Offer Closing Time.
Offers which arrive after the Offer Closing Time or without the Initial Deposit
(see Section 2.2.3) may be returned unopened. Faxed Offers will not be
accepted.
/-
SALE PACKAGE
The name of the Offeror inserted in the Offer should be the Offeror's exact
legal name.
Both the Offer and the Initial Deposit must be enclosed in a sealed envelope
clearly addressed on the outside of the envelope with the following:
Offer and Deposit For:
2.3 Commission
If the Offer is submitted by an agent of the Offeror who is the holder of a valid
and subsisting agent's license (hereinafter called the "Agent") pursuant to the
Real Estate Services Act S.B.C. 2004, Chapter 42, and the City's Director of
The City assumes no legal duty or obligation in respect of this Sale Package
(except to return the Initial Deposit to any Offeror whose Offer is not accepted
within the 30 day period referred to in Section 2.1.2), unless and until the City
accepts a valid Offer by resolution of City Council and the authorized
signatories for the City have signed both the acceptance page of the Offer and
the Sale Contract and then only those duties and obligations which are
expressed in the Sale Contract will apply. No Offer will be considered
accepted by or binding on the City, unless and until City Council has resolved to
accept the Offer and the authorized signatories for the City have signed both
the acceptance page of the Offer and the Sale Contract and forwarded an
executed copy to the Offeror.
Despite any other term, express or implied, of this Sale Package, the City and
the Offeror agree that all of their respective rights and obligations at law and
in equity, in contract and in tort, in all matters relating to the sale process (as
opposed to a Sale Contract) will be absolutely and unconditionally subject to
this Section 2.4.
The Offeror acknowledges that the City is a public body required by law to act
in the public interest. While the City has every intention of conducting the
sale process in a fair and impartial manner, in no event does the City owe to
any Offeror:
(b) a contract or tort law duty to preserve the integrity of the sale process,
and the Offeror now assumes and agrees to bear all Losses arising from
participating in the sale process, including all costs and expenses incurred by
the Offeror in preparing its Offer. Without in any way limiting the general
scope of this Section 2.4, and by way of example and illustration only,
(c) the highest or any Offer need not necessarily be accepted and the City
may reject any and all Offers at any time without further explanation
(by way of further example, if the City determines that all Offer prices
are too low), or accept any Offer considered advantageous to the City,
or may subsequently advertise the Property for sale in any manner that
the City chooses;
(e) The City may, at any time prior to signing a Sale Contract, negotiate
changes to terms and conditions of the Sale Contract with any one or
more of the Offerors without having any duty or obligation to advise any
other Offerors or to allow them to vary their Offer prices as a result of
such changes and the City will have no liability to any other Offeror as a
result of such negotiations or modifications.
2.4.5 Release
The Offeror now releases the City from all liability for any Losses in respect of:
(a) any alleged (or judicially imposed) breach by the City of the sale
process (it being acknowledged and agreed that, to the best of the
parties' knowledge, the City has no obligation or duty under the sale
process which it could breach (other than wholly unanticipated
obligations or duties merely alleged or imposed judicially));
(b) any unintentional tort of the City occurring in the course of conducting
the sale process;
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39V)DVd3TVS U
12 SALE PA C K A G E
(a) the arbitrator will be selected by the City's Director of Legal Services,
and
ii. survive any and all awards made by the arbitrator, and
The Offeror acknowledges that it will only submit an Offer in response to this Sale
Package that is subject to the Offeror conducting all inquiries, investigations, tests
and surveys ("Due Diligence") which a sophisticated purchaser of property sold on an
"as is, where is" basis could conduct given such opportunity within twenty-five (25)
days of receiving both the signed Offer and Sale Contract from the City (as completed
by the City's Director of Legal Services in accordance with the Offer). This condition
precedent, as set out in section 4.3 of the Sale Contract attached as Schedule G,
would be removed by the Offeror in the event the Offeror is completely satisfied
either with the results of the Due Diligence, the risk level associated with those
results, or the risk level associated with the lack of results (either from (i) not
performing the Due Diligence or (ii) attempting and failing to get results or reliable
results or (iii) obtaining results for which, if incorrect, the Offeror has waived its rights
of recourse against the City).
The Offeror hereby releases the City from all Losses in any manner related to or
arising from the Offeror's reliance on any information contained within this Sale
Package, including, without limitation, all Schedules attached hereto, or information
(verbal or written) provided at any time by officials or employees of the City.
2.6 No Effect on Vancouver Charter Rights
Nothing in this Sale Package will operate, if the City so elects, to affect or derogate
from the City's powers, rights, duties and obligations under the Vancouver Charter as
amended or replaced from time to time, and the City may, if the City so elects,
exercise and carry out any and all of its powers, rights, duties and obligations under
the Vancouver Charter as though any agreement resulting from this Sale Package had
never been made.
2.7 Communication
Any communication with Real Estate Services regarding this Offer must be in writing
and delivered to:
SECTION 3.0
TERMS AND CONDITIONS OF PURCHASE AND SALE
Within 14 calendar days of receiving both the signed Offer and Sale Contract (as
completed by the City's Director of Legal Services in accordance with the Offer) from
the City, the successful Offeror will execute the Sale Contract. The successful Offeror
and the City will then complete the purchase and sale of the Property on the Closing
Date of July 9. 2012 or otherwise as set out in the Sale Contract in accordance with
the terms and conditions of the Sale Contract.
The successful Offeror assumes all risks of purchasing the Property on the basis set out
in Section 5.6 of the Sale Contract and releases the City as set out in Section 5.5 of
the Sale Contract.
Once the successful Offeror and the City execute the Sale Contract, the successful
Offeror will increase the Initial Deposit in accordance with Section 2.3 of the Sale
Contract, so that the total deposit (including the Initial Deposit) equals 10% of the
Purchase Price as set out in the Offer and this deposit will be a credit against the
Purchase Price. Interest, if any, which accrues on the increased deposit held by the
City will accrue to the benefit of and be retained by the City.
SECTION 4.0
OFFER / ACCEPTANCE SECTION
I/We now offer to purchase from the City the Property located at 5 East 8th Avenue,
legally described in this Sale Package for the sum of $
(the "Purchase Price") on the terms and conditions contained in this Sale Package,
including the Sale Contract, all of which will survive the completion of the purchase
and sale of the Property.
My/Our certified cheque or bank draft for $200,000.00 is enclosed as the Initial
Deposit to be held on account of my/our offer to purchase the Property.
[Note to Offeror: Insert full legal names and, if partners are corporations,
include incorporation /registration numbers for each corporate partner in the
spaces provided above.]
Offeror(s) Address:
Telephone/Fax/E-Mail:
Name Name
Signature Signature
Address Address
Name
Signature
Address
Telephone No.
Fax No.
[Note to Offeror: The following will be completed by the City only if the Offeror's
Offer is accepted by the City]
ACCEPTANCE
CITY OF VANCOUVER
by its Authorized Signatories:
Michael Flanigan
Director of Real Estate Services
Frances J. Connell
Director of Legal Services
SECTION 5.0
SCHEDULES
Except only for the legal description portion of the title search attached as Schedule
D, the following schedules are provided to Offerors for general reference purposes
only. Without limiting the general scope and intent of any of the other terms of this
Sale Package, the City makes no representations or warranties concerning the
completeness or accuracy of the contents of the following schedules. Offerors must
not rely on the contents of the Schedules and must independently satisfy themselves
as to all aspects of the Property by acquiring information independent of and entirely
separate and apart from the attached schedules and without relying in any way on the
attached schedules.
The following schedules are attached to this Sale Package and are at all times
completely subject to the terms and conditions of Section 5.1:
SCHEDULES
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1.2.1 sections and headings are for convenient reference, and are not to
affect the meanings of provisions, and use of the singular or masculine
includes the plural, feminine, or body corporate, and vice versa;
1.2.3 the Seller and Buyer will interpret the language of this Contract simply,
fairly, and not strictly for or against either of them;
1.2.4 time will be of the essence, and if the Buyer or Seller expressly or
impliedly waives that requirement, the Buyer or Seller may re-instate it
by delivering notice to the other;
1.2.5 this Contract represents the entire agreement between the Buyer and
Seller regarding the matters set out in it, and supersedes all prior
agreements, understandings, letters of intent, negotiations, or
discussion about those matters, and no amendment is to have any force
or effect unless the Buyer and Seller have signed it;
1.2.6 references to statutes and bylaws are to them as they exist on the
Effective Date, and to later amendments or replacements of them; and
1.2.7 if there is more than one Buyer, the Buyer's representations and
agreements will be joint and several.
SECTION 2
SALE AND PURCHASE
2.1 Sale and purchase. The Seller will sell the Property to the Buyer free from all
liens, charges, or encumbrances except for Permitted Charges, and the Buyer will
purchase the Property from the Seller, subject to the terms and conditions of this
Contract.
2.2 Purchase price. The Buyer will pay the Purchase Price to the Seller for the
Property.
2.3 Deposit. The Seller acknowledges the receipt and sufficiency from the Buyer
of the Deposit on account of the Purchase Price. If the Seller gives the Buyer the
notice referred to in section 4.1 and the Buyer gives the Seller the notice referred to
in section 4.2, the Buyer will enclose with its notice to the Seller a further deposit of
$<i-insert amount of required increase in Deposit but, if there is no increase, insert
"0"> payable to the Seller. If the transaction completes, the Deposit will be a credit
against the Purchase Price. If the transaction does not complete because the Seller
defaults in complying with the Seller's obligations under this Contract, the Seller does
No. S141130
Vancouver Registry
BETWEEN:
AND:
RESPONDENT
AFFIDAVIT
1, John Breckner, Associate Director, of 515 West 10ui Avenue, Vancouver, British Columbia,
V5Z 4A8, SWEAR OR AFFIRM THAT:
1. I am the Associate Director of Operations in the Real Estate and Facilities Management
Department ("Real Estate Department") of the City of Vancouver, and as such have
personal knowledge of the facts deposed to in this affidavit except those facts which I say
are based upon information and belief and as to those facts I truly believe them to be true.
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to the Director of Real Estate Services, Michael Flanagan, who reported to the General
Manager of the Real Estate Department, who reported to the City Manager.
3. The Subject Property is a former Vancouver Police Department facility. When the
Vancouver Police Department relocated the operations formerly located in the Subject
Property (and certain of its operations on Main Street) to a new facility on Graveley
Street in Vancouver, the Subject Property was determined to be surplus to the
4. In February 2012, the Real Estate Department issued a Notice of Invitation to Offer for
GO
the Subject Property, inviting bids to purchase, with a closing date of April 13, 2012.
The Notice of Invitation to Offer was, as is the usual practice of the Real Estate
5. As is the usual practice for properties of this nature, the Real Estate Department obtained
an independent third party appraisal on April 4, 2012, a copy of which is attached and
marked as Exhibit "B" to this my Affidavit.
6. Four offers were received ranging in value between $3 million and $7.5 million. The
Real Estate Department considered all of them to be below the market value of the
Subject Property based on the assessed value of $9,619,000 and the independent third
party appraisal at $9,950,000, and therefore did not accept any of them. The proponents , pV* . /
were notified that their offers were rejected on April 17, 2012. (AA y /? ^"fi/
7. Thereafter, the Real Estate Department continued informal efforts to market the Subject
VI
Property for sale or lease on commercial terms and at fair market value. With respect to
the latter, it was believed that the Subject Property might be more likely to attract a
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to
duration and amount of rent the City could expect from any given tenant was unknown
and accordingly, consistent with its usual practice, the Real Estate Department did not
initiate any formal procurement process for leasing the Subject Property.
8. The continued availability of the Subject Property for sale or lease was known publicly.
Attached and marked as Exhibit "C" to this my Affidavit is a copy of a story that
Subject Property, a photo of which is attached and marked as Exhibit "D" to this my
Affidavit.
9. The Real Estate Department was contacted by PCI Developments Corp. ("PCI"), a
Vancouver development company. PCI indicated that it was working jointly with
HootSuite Media Inc. ("HootSuite") to locate and develop office space which would be
occupied by HootSuite. A copy of PCI's letter dated May 14, 2012 is attached and
marked as Exhibit "E" to this my Affidavit. PCI and HootSuite were represented by a
commercial broker, CB Richard Ellis ("CBRE").
10. The Real Estate Department entered negotiations with CBRE towards a lease of the
Subject Property with an option to purchase. At a later stage during the negotiations, it
became clear that PCI Group would not be participating, and CBRE began negotiating
11. The Real Estate Department continued its negotiations with CBRE, and was ultimately
able to reach an agreement with HootSuite, subject to approval by City Council. A copy
of the Lease Proposal dated June 14, 2012, executed by Mr. Flanigan, is attached and
marked as Exhibit "F" to this my Affidavit.
12. The Real Estate Department was aware through the Vancouver Economic Commission
("VEC") that HootSuite was outgrowing its prior office space in the Railtown area of
Vancouver, and that the VEC believed HootSuite was a desirable employer to retain in
Vancouver. The Real Estate Department regularly receives inquires from staff and Board
members of the VEC (which includes the Mayor and the City Manager) regarding
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\1 13. While the VEC and the City of Vancouver both have the corporate goal of maintaining
""j Tp quality employers in Vancouver, the City of Vancouver has a policy of only selling or 7\ J
leasing property at (or if possible above) its fair market value, unless it is to a non-profit /\, j~
organization, which would not include HootSuite. "fo/L. \
14. The agreement negotiated by the Real Estate Department with HootSuite satisfied the
Real Estate Department's mandate of realizing at or above fair market value for City- <^J-
owned p r o p e r t y. ^-1^
15. The Subject Property was purpose-built for use as a police facility and has been described
as a "bunker". As such, the Subject Property would not be considered optimal for
general office use. The independent appraisal obtained by the Real Estate Department on
April 4, 2012 opined that the City could expect fair market base rent between $16.00 and
$18.00 per square foot, assuming a fair market tenant inducement allowance of $25 per
16. Given it was a triple net lease, HootSuite agreed to pay for all utilities and other operating
costs, amounts in lieu of property taxes, and maintenance (other than any structural
repairs), cumulatively estimated to be approximately Sll per square foot per annum, plus
an average base rent of $19.80 per square foot (exclusive of a three month base rent free
period) over the lease term plus parking rates, and the landlord would only have to
provide a tenant inducement allowance of $20 per square foot for a 5 year lease term.
This was determined by the Real Estate Department to be at or possibly above fair market
rent.
17. As well, the Real Estate Department was satisfied that the $9.3 million option to purchase
A /
price represented fair market value, having regard to the assessed value and independent w if
appraisal value, and taking into account that a portion of the tenant inducement allowance
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will become refundable if the option to purchase is exercised prior to the date the tenant
inducement becomes fully amortized.
18. On the basis of the foregoing, the Real Estate Department was confident that the
HootSuite transaction would be very beneficial to the City of Vancouver and should be
recommended to Council for approval. Mr. Flanigan prepared an In Camera
Administrative Report to City Council dated June 26, 2012, a copy of which is attached
and marked as Exhibit "G" to this my Affidavit. The City Manager and the General
Manager of the Real Estate Department concurred in the recommendations in the June
26, 2012 In Camera Administrative Report, as indicated therein.
19. Except for leases to non-profit organizations, it is and has long been the regular practice
of the City of Vancouver that potential property transactions be considered in camera
because of concerns that disclosure could harm the commercial interests of the City
and/or the third party purchaser or tenant.
20. When a property transaction is considered at an in camera City Council meeting, the
regular practice is for the written staff report to be circulated to Council, creating a record
for the transaction, accompanied by a high level verbal presentation by City staff,
followed by a vote of Mayor and Council. Although I was not present at the June 27,
2012 meeting of City Council, my experience from attending many such meetings over
the course of my career is that rejection of the recommendation of the Real Estate
Department is unusual.
21. Pursuant to Council approval, I executed the Lease Agreement that is (without schedules)
marked as Exhibit "DD" to the First Affidavit of Glen Norman Chernen in this
proceeding.
22. Subsequent to Council approval of the Lease Proposal, Mike Magee of the Mayor's
office passed along to Mike Flanigan an inquiry from HootSuite as to whether the Subject
Property would qualify for the City's Tennant Improvement Program ("TIP"), as is set
out at page 130 to the Exhibits to the First Affidavit of Glen Norman Chernen filed in this
proceeding. City staff regularly receive contact from elected officials who have been
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approached by constituents about doing business with the City such as this. The
procedure in such instances is to have the inquiries referred through senior staff for a
workup and response which aligns with City policy, bylaws and statutory requirements.
23. This particular email refers to an alternative permit-issuing process generally available to
businesses that rent in bylaw compliant buildings (no matter who their landlord is) and
has nothing to do with the financial terms of the Lease Agreement. Attached and marked
as Exhibit "H" to this my Affidavit is a copy of a City of Vancouver webpage describing
the TIP program. The Real Estate Department is not involved in the permitting process,
which is instead handled by Planning & Development Services. I understand this inquiry
was forwarded to Planning & Development Services.
24. While HootSuite was undertaking renovations to the Subject Property, an issue arose
with HootSuite as to whether the City was obligated to replace the roof of the Subject
Property. The tenant approached the Mayor's Office, which passed the inquiry on the
City Manager, and subsequently the Real Estate Department received inquiries from both
the Mayor's Office and the City Manager on this issue. In response, the Real Estate
Department clarified with HootSuite that no structural repair or roof replacement was
required, and accordingly under the terms of the Lease Agreement any current repairs to
the roof were HootSuite's responsibility. HootSuite ultimately accepted the Real Estate
Department's position.
25. In 2013, the Real Estate Department was consulted by the City's Director of Access to
Information about requests submitted to the City under the Freedom of Information and
Access to Privacy Act with respect to the lease and option to purchase of the Subject
Property. It is the general practice of the Real Estate Department to seek to have redacted
from responses to freedom of information requests the financial terms associated with
commercial leases of City owned property. That practice was followed in this case.
26. In my experience, the financial terms of commercial leases are generally regarded as
confidential (whether or not a public body is the landlord), in the interests of both the
landlord and the tenant. With respect to the landlord, disclosure of the terms of one lease
could prejudice the landlord's ability to negotiate the best possible financial terms with
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respect to other properties. With respect to the tenant, disclosure of financial lease terms
could result in competitors of the tenant gaining a competitive advantage through
knowledge of one of the tenant's significant costs of doing business.
27. However, the fact that HootSuite had an option to purchase the Subject Property for $9.3
million has been a matter of public record since November 6, 2012, when the Option to
Purchase was filed in the New Westminster Land Title Office. On the same date, a short
form lease was filed that did not disclose the financial terms of the lease, as is commonly
done with commercial leases.
28. As far as I am aware, there has been no other involvement of the Mayor or the Mayor's
Office with respect to the Subject Property other than as noted above.
7'/IAIN Kf DIXON
,453 WEST 12th AVENUE
VANCOUVER BC V5Y 1W
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VANCOUVER
REPORT TO COUNCIL
OCTOBER 6, 2011
A Regular Meeting of the Standing Committee of Council on City Services and Budgets was
held on Thursday, October 6, 2011, at 10:05 am, in the Council Chamber, Third Floor, City
Hall.
P R E S E N T: C o u n c i l l o r R a y m o n d L o u i e * , C h a i r
Mayor Gregor Robertson*
Councillor Suzanne Anton
Councillor David Cadman
Councillor George Chow
Councillor Heather Deal*
Councillor Kerry Jang
Councillor Geoff Meggs*, Vice-Chair
Councillor Andrea Reimer*
Councillor Tim Stevenson*
Councillor Ellen Woodsworth
CARRIED UNANIMOUSLY
(Councillor Deal and Mayor Robertson absent for the vote)
The Mayor proclaimed the week of October 10 - 16, 2011, as "Homelessness Action Week" in
the city of Vancouver and invited Karen O'Shannacery, Executive Director, Lookout Emergency
Aid Society, to receive the proclamation and say a few words.
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Standing Committee of Council on City Services and Budgets
Minutes, Thursday, October 6, 2011
f t
PRESENTATION: Homelessness Action Week 2011
The Coordinator of the Tenant Assistance Program, along with the Deputy General Manager,
Community Services, and the Assistant Director, Housing Policy, provided a presentation on
w H o me l e ssn e ss Acti o n We e k, a n d re sp o n d e d to q u e sti o n s.
THAT staff present a report at the next Regular Council meeting to confirm the
_* tenanting of the fourteen Memorandum of Understanding (MOU) sites is progressing.
CARRIED UNANIMOUSLY
V
1. Renewal of Sub-Lease of Foreshore in Stanley Park to Vancouver Rowing Club
m September 19, 2 0 11
fr - The Committee heard from one speaker in support of the recommendations.
A. THAT Council authorize the Director of Real Estate Services to negotiate and
enter into a sub-lease with Vancouver Rowing Club for the two areas of Stanley
Park, with an area of 4.426 acres and .091 acres respectively, and on which the
ft Vancouver Rowing Club Heritage Clubhouse, wharves and appurtenances are
f t situated, as shown dotted and labelled "Lease of Portion of Stanley Park" in
Appendix A (the "Sub-Lease Lands") of the Administrative Report dated
-
September 19, 2011, entitled "Renewal of Sub-Lease of Foreshore in Stanley
Park to Vancouver Rowing Club", subject to the following general terms and
conditions:
Rent: Nominal Rent. Two ($2.00) dollars per year plus property
taxes as if levied and applicable taxes.
v
Use: For the purposes of maintaining a clubhouse and
operating a club engaged in promoting, developing,
participating in and sponsoring amateur athletic activities
m related to but not limited to the sports of rowing, r u g b y,
cricket, field hockey, tennis, cross country running, in
addition to the operation of a marina for use by members
^ and the public for no commercial gain to its members.
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.* C. THAT the Director of Reat Estate Services be authorized to execute and deliver
the sub-lease, as contained in the Administrative Report dated
September 19, 2011, entitled "Renewal of Sub-Lease of Foreshore in Stanley
m P a r k t o Va n c o u v e r R o w i n g C l u b " , o n b e h a l f o f t h e C i t y o f Va n c o u v e r.
D. THAT, as contained in the Administrative Report dated September 19, 2011,
entitled "Renewal of Sub-Lease of Foreshore in Stanley Park to Vancouver
Rowing Club", no legal rights or obligations will arise hereby and none will arise
or be granted hereafter unless and until all legal documentation has been
executed and delivered by the Director of Real Estate Services.
m G A R R E D U W \ N M O U S LY A N D
BY THE REQUFej MAJORITY
(Mayor Robertson absent for the vote)
Little Saigon
b
Vancouver City Council, at its meeting on September 20, 2011, referred this matter to the
Standing Committee on City Services and Budgets meeting on September 22, 2011, in order to
hear from speakers. Subsequently, due to time constraints this matter was referred to a
future Standing Committee meeting.
The Committee heard from eleven speakers; ten spoke in support of the motion and one
spoke in opposition.
****
*****
PDFTiditor
Regular Council
Minutes, Thursday, October 6, 2011
THAT the recommendations and actions taken by the Standing Committee on City
Services and Budgets at its meeting of October 6, 2011, as contained in the
presentation and items 1 to 5, be approved.
CARRIED UNANIMOUSLY
CARRIED UNANIMOUSLY
Compiled / created by Glen Chernen For the VPD - Financial Crime Unit - April 2014 - 778 877- 6360,
gchernen@gmail.com
Office of the
Information & Privacy
Protecting privacy. Promoting transparency.
Commissioner
for British Columbia
January 9, 2014
Glen Chernen
3758 West 33rd Avenue
VANCOUVER BC V6N 2H5
Further to the letter I sent you dated December 10, 2013,1 am the investigator assigned to
conduct the mediation of your request for a review of the City of Vancouver's decision to
withhold portions of a lease agreement between the City and Hootsuite Media Inc. under
sections 17(1)(c), (d) & (f) and s. 21(1) of the Freedom of Information and Protection of Privacy
Act (FIPPA). The redacted portions of the agreement include rent, parking stall and security
deposit amounts and other financial information, as well as building plans.
I have reviewed the agreement and in my view, the City is not required or authorized to withhold
this information. Section 21 of FIPPA only applies if the information is "supplied". On many
occasions, the Commissioner and Adjudicators have ordered public bodies to release
information contained in contracts between public bodies and organizations because they have
held that the information is negotiated, not supplied (for example, Order F13-06: Hope).
The Commissioner and Adjudicators have also established several times that s. 17(1) does not
apply to financial information contained in a contract between a public body and an organization
where the public body has not demonstrated the harm to the interests of the public body that
would result from disclosing that information (for example, Order 03-02: UBC).
Today I called Barbara Van Fraassen, Manager, Corporate Information and Privacy, and she
told me that the City is not prepared to reconsider its decision to withhold portions of the lease
agreement. You have the right to request an inquiry where an Adjudicator will consider whether
to order the City to disclose the entire lease to you. Please advise me if you would like to
request an inquiry. If I do not hear from you by Monday, January 27,2014,1 will assume you
do not want to request an inquiry and I will close this file.
Sincerely,
Caitlin Lemiski
Investigator
Copy to: Barbara Van Fraassen, Manager, Corporate Information and Privacy
City of Vancouver (Barbara. VanFraassen@vancouver.ca)
...
Gimil Glen Chernen <gchernen@gmail.com>
Dear Caitlin Lemiski: Re: Request for Review - Partial/Severed Release; City of
Vancouver File 04-1000-20-2013-262; OIPC File F13-55319
Caitlin Lemiski <CLemiski@oipc.bc.ca> Thu, Jan 9, 2014 at 3:08 PM
To: Glen Chernen <gchemen@gmail.com>
Glen,
Further to our conversation, here are the dates that are available. Can you email me back and confirm that these
dates will work for you?
Thank you,
Caitlin.
Caitlin Lemiski
Office of the Information and Privacy Commissioner for B.C.
250-953-4105 250-387-1696
Twitter clemiski@oipc.bc.ca
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.. - . - . .
Dear Caitlin Lemiski: Re: Request for Review - Partial/Severed Release; City of
Vancouver File 04-1000-20-2013-262; OIPC File F13-55319
Caitlin Lemiski <CLemiski@oipc.bc.ca> Thu, Jan 9, 2014 at 3:21 PM
To: Glen Chernen <gchernen@gmail.com>
Glen,
Thank you for confirming for me on thd telephone that those dates work for you.
Caitlin.
Caitlin Lemiski
Office of the Information and Privacy Commissioner for B.C.
7 sor. 947 =
tel 250-953-4105 250-387-1696
Follow Twitter clemiski@oipc.bc.ca
' . - - '
.
I am writing to ask for your office's assistance to force the City of Vancouver to release the above file in its entirety.
Because of concerns I had with the lease agreement between the City of Vancouver and Hootsuite for their building in my
neighbourhood I submitted a FOI request to see the lease on October 31, 2013.
I received the lease on November 27, 2013 but ail the cash amounts were blacked out; basically the only thing I really
wanted to see.
I read the sections of the Act the City quoted to justify their redactions and to my mind they are so vague they could be
used to withhold any information.
As a resident and property owner I should have the right to see how my tax dollars and public owned assets are
managed.
I would appreciate if your office could review the file I received (which I've attached) to determine if the C'tty of
Vancouver is justified in withholding the information I've requested.
Sincerely,
Jeremy Gustafson
512-774 Great Northern Way, Vancouver, B.C. V5T 1E5
604-970-2537
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5 EAST 8th AVENUE - ALLEGED FRAUD PACKAGE
Interesting proposal and somewhat timely given the other discussion the City Manager is entertaining re: HootSuite. You
do not need to do anything on this at this time as I will elevate this proposal to the Mayor and City Manager.
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Can you please let me know 1) are they using the existing building? 2) what type of uses?
I can then run it by my staff to see if we can fit them into the current zoning.
Kevin McNaney
Assistant Director of Planning 1 central area planning
CITY OF VANCOUVER | [p] 604 8716851
Hi Kevin,
The City is selling the above referenced property and we've received a proposal from an interested party, HootSuite
Media Inc. to occupy the property. I believe you're familiar with them having dealt with them in the Gastown area.
The property is zoned 1-1. I would like to confirm whether or not HootSuite Media would be considered to be a
permitted use - either as an outright use or as a conditional use under the zoning bylaws and what restrictions if any
there are.
We would really like to move this proposal forward and hope to get a favourable interpretation from you regarding this
potential user.
Thanks.
Melinda Chan, AACI, P.App
Property Negotiator
City of Vancouver - Real Estate Services
Suite 300-515 W.lOth Avenue
Vancouver, BC, V5Z4A8
Tel: 604-873-7409
Fax: 604-873-7064
E-mail: melinda.chan@vancouver.ca
Hey Guys,
Would Hootsuite fit into the 1-1 zoning for this building, which has consistently been used as office for many years?
Thanks!
Kevin McNaney
Assistant Director of Planning | central area planning
CITY OF VANCOUVER J [p] 604 8716851 *
Kevin,
The building is vacant and has been since the VPD moved out July, 2011. The building is non-conforming and was built
as a "public authority building and functions as an office building and can be maintained as a general office building.
HootSuite Media Inc. is involved in social management systems. I am not sure exactly how to describe their work/use
and have provided you with their website so that you can see what they do.
http://hootsuite.com/comDanv
Hi Melinda,
2
FOI Request # 2012-316 Page 51 of 295
Flanigan, Michael
From: M c N a n e y, Kevin
S e n t : Tu e s d a y, M a y 1 5 , 2 0 1 2 2 : 1 0 P M
To : F l a n i g a n , M i c h a e l ; C h a n , M e l i n d a
Subject: FW: 5 East 8th Avenue
I have conferred with my staff and the Assistant Director of Development Services (John Greer) and we agree that
Hootsuite would be permitted in this building as the office use has been "grandfathered".
I hope that this is helpful. Please don't hesitate to ask if you have any further questions.
Kevin McNaney
Assistant Director of Planning | central area planning
CITY OF VANCOUVER | [p] 604 8716851
I concur. I was just in the process of checking the address notes in PRISM. The notes confirm that the
building can continue to be used as general office.
Paul
F r o m : G r e e r, J o h n
Sent: Tuesday, May 15,2012 2:06 PM
To: McNaney, Kevin; Nowlan, Paul; Johnson, Richard
Subject: RE: 5 East 8th Avenue
Hootsuite is approved as office at their existing space @ 37-45 Dunlevy. If they were moving their operation to 5
e 8th they would fit into the "graidftithered" office use of this building.
john greer
assistant director
development services, city of Vancouver
t: 604:871.6194 f: 604.873.7060 e: iohn.Qreer@vancouver.ea
CoV
DEPUTY CITY MANAGER
SADHU AFOCHS JOHNSTON
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Chan, Melinda
From: Flanigan, Michael
Sent: Thursday, May 31, 2012 3:06 PM
To: Chan, Melinda
Cc: B r e c k n e r, J o h n ; F a l e s , H o l l v
Subject: FW: 5 East 8th Avenue
FYI
Michael
Sadhu Johnston
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Cc: McLellan, David; Aujla, Bill; Magee, Michael; Breckner, John; Chan, Melinda; Impey, Patrice
Subject: RE: 5 East 8th Avenue5 ;
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Stay tuned....
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Thanks michael.
Sadhu
Sadhu Johnston
Deputy City Manager
City of Vancouver
Sadhu.johnston(S)vancouver.ca
604.873. 7627
Michael
Thanks Michael:
Please keep us posted.
Sadhu
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Your help in expediting Hootsuite s approvals is much appreciated,
Michael
Hi Ryan:
I will be on vacation at the end of next week. Should your architect be ready to discuss the
scope of work associated with renovation to 5 East 8th Ave and associated permits while I m
away (July 27 to August 21), please contact John Greer, Assistant Director, Processing Centre at
604-871-6194 or john.greer@vancouver.ca
Doug Robinson
604-371 =6092
Thanks all. In final selection for Architect. Will loop in as soon as I have someone for you.
De Ryan Holmes - CEO
lm< (778) 383-1649 | (415)355-4668 (US mobile)
@invoker | hootsuite | blog | facebook | we're hiring! | #BSU
Many thanks,
Michael
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Office of the
Information & Privacy
Commissioner
forBritnliColumt'a
Introduction
This document explains the implications under the Freedom of Information and
Protection of Privacy Act ("FIPPA") for use of personal email accounts for work
purposes by employees of public bodies. It conveys two key messages. First, FIPPA
applies to the use of personal email accounts for work purposes. Second, public bodies
should not, for FIPPA purposes, allow the use of personal email accounts for work.
(2) Could the government institution reasonably expect to obtain a copy of the
document upon request?3
The facts of each case will determine whether personal email are under the control of a
public body. As a general rule, any email that an employee sends or receives as part of
her or his employment duties will be a record under the public body's control, even if a
personal account is used.
FIPPA requires public bodies to make every reasonable effort to assist applicants and
to respond without delay to each applicant openly, accurately
and completely. This includes a duty to perform an adequate
search for records that respond to an access request. The use of personal
A public body must be able to prove that its search efforts email accounts by
have been thorough and comprehensive and that it has employees does
explored all reasonable avenues to locate records.4 The not remove or
Information and Privacy Commissioner has the authority to reduce the duty of a
compel the production of records in the custody or under the public body to
control of a person5, including those in personal email search for records
accounts.
and produce those
that are responsive
The use of personal email accounts does not relieve public
to an access
bodies of their duty to comprehensively search for requested
records and to produce them. While nothing in FIPPA directly request.
prohibits public body employees from using personal email
accounts, doing so may make it more difficult for their employer to search for records.
Employees may be unwilling to produce records from their personal account or to allow
access to their accounts for that purpose.
To address this risk, public bodies should create policy on the use of personal email
accounts for work purposes. A preferred solution is for public bodies to require the use
of its email system for work purposes. If that is truly not practicable, the policy should
be that employees must copy their work email account on any work-related email they
send from a personal account.6 This policy should be part of each employee's
conditions of employment.
3 See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.
4 See, for example, Order F07-12, [2007] B.C.I.P.C.D. No. 17, Order 00-32, [2000] B.C.I.P.C.D. No. 35
and Order 00-26, [2000] B.C.I.P.C.D. No. 29.
5Sees.44(1)(b)ofFIPPA.
6 This policy should also apply where there is a ban on use of personal email accounts for work purposes,
to deal with cases where an employee failed to comply with the policy and possesses personal email that
might be responsive to an access to information request.