Item - 2020.TE19.27

The Toronto and East York Community Council:

1.  Authorized the City to enter into an encroachment agreement (the "Agreement") with the owner, including the subsequent owner, of 33 Yorkville Avenue (the "Owner") for the purpose of permitting the Owner to re-construct, maintain, repair and operate a publicly accessible underground pedestrian tunnel located approximately 82 metres west of Bay Street, connecting 33 Yorkville Avenue to the existing tunnel connected to 2 Bloor Street West (the "Encroachment" or "Tunnel"), substantially on the major terms and conditions set out below, and including such other terms and conditions as deemed appropriate by the General Manager, Transportation Services (the "GM"), and in a form satisfactory to the City Solicitor

a. the Owner shall, at its own expense, design, re-construct, repair and maintain the Encroachment in a state of good repair, to the satisfaction of the General Manager, Transportation Services, and shall assume full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Encroachment, at no expense to the City;

b. the design and re-construction of the Encroachment shall comply with the Canadian Highway Bridge Design Code (CAN/CSA), including without limitation for highway loading purposes, including allowance for impact factors, as same may be amended, superseded or replaced from time to time;

c. the Owner shall obtain all Public Utility Coordinating Committee clearances and/or sign-offs from the public utility companies and satisfy any requirements they may have;

d. the Owner shall obtain approval and all necessary permits for the re-construction of the Encroachment from the Toronto Building Division, if required;

e. prior to commencement of construction, a street work permit shall be obtained by the Owner in accordance with Article III of Chapter 743, Streets and Sidewalks, City of Toronto Municipal Code;

f. the Owner shall submit and adhere to an accepted Traffic Management Plan, Construction Management Plan, Construction Schedule letter and Traffic Assessment Study outlining the proposed Tunnel re-construction/installation and advise on the impacts within the public right-of-way in the area of the proposal Encroachment, which content shall be to the satisfaction of the General Manager, Transportation Services, prior to the issuance of a Construction Permit;

g. the Owner shall provide reasonable notification to the owner of 2 Bloor Street West prior to commencing work on the Tunnel, and shall work collaboratively with the owner of 2 Bloor Street West to complete the physical linkage of the Tunnel to the existing tunnel connecting to 2 Bloor Street West;

h. the Owner shall pay (i) an annual licence fee in the amount of $8,641.00 plus applicable HST, and (ii) any applicable real property taxes eligible.  The licence fee shall increase annually by an amount equivalent to the percentage increase in the Consumer Price Index (all items – Toronto), and shall further be recalculated every ten (10) years based on the applicable fee of the City for private tunnel encroachments, as prescribed under Chapter 441, Fees and Charges, Appendix C – Schedule 2, Transportation Services, of the City's Municipal Code, as amended or replaced;

i. the Owner agrees that the pedestrian Tunnel shall remain publicly accessible throughout the term of the Agreement;

j. the City shall maintain the right  to place or affix pipes, cables, wires, poles and other infrastructure within/to, over or under the Encroachment;

k. the City shall not be responsible for repairing or replacing the Encroachment damaged as a result of street repairs, construction or other municipal activities on the public right-of-way;

l. the City shall be released from and against all actions, suits, claims or demands and from all loss, costs, damages and expenses that may result from the permission granted, which release shall be in a form and content satisfactory to the City Solicitor;

m. the Owner shall indemnify the City from and against all actions, suits, claims or demands and from all loss, costs, damages and expenses that may result or arise from the permission granted, any matter related to the Encroachment, and any failure of the Owner to comply with the Agreement, which indemnity shall be in a form and content satisfactory to the City Solicitor;

n. the Owner shall provide and maintain public liability and property damage insurance with an insurer satisfactory to the General Manager, Transportation Services for the lifetime of the Agreement in a form as approved by the Chief Financial Officer, including a cross-liability /severability of interest clause, a provision that the insurance is primary before the insurance of the City, and a 30 day prior notice of cancelation/renewal clause, and in the amount not less than $10 million or such greater amount as the Chief Financial Officer may require;

o. the Owner shall provide and maintain an irrevocable letter of credit, in an amount of $207,800.00 to be retained by the City, for the duration of re-construction of the pedestrian Tunnel within the Cumberland Street right-of-way, to secure against any damage to the City right-of-way and to guarantee that the work within the public right-of-way is completed to the City's satisfaction, including the restoration of the public right-of-way, to the satisfaction of the General Manager, Transportation Services.  Prior to the release of the letter of credit the Owner will be required to provide a construction sign-off letter stamped and signed by the structural engineering firm that designed the Tunnel which states that the Tunnel is safe and ready to be opened to pedestrian traffic, along with two sets of as-built drawings;

p. the Owner shall provide as-built drawings within 60 days of completing the construction of the Encroachment to Survey and Mapping, Attention: Utility Mapping Supervisor, Engineering Design, 275 Merton Street, 1st Floor, Toronto, Ontario M4S 1A7, as well as to Transportation Services, Right of Way Management, Construction Activities, 55 John Street, 17th Floor, Metro Hall, Toronto, Ontario M5V 3C6;

q.  the Owner shall submit a reference plan for the Tunnel which includes the area of the Tunnel in m2, upon completion of the Tunnel;

r.  the Owner will be responsible for the restoration of the road pavement, including adjacent sidewalks and boulevards, if necessary, to the satisfaction of the General Manager, Transportation Services, upon completion of the installation of the Tunnel;

s. the Owner shall not make or permit any additions or modifications to the Encroachment beyond what is permitted under the terms of the Agreement without the City's consent, which may be unduly delayed or arbitrarily withheld;

t. the term of the Agreement shall expire on the earlier of: (i) the removal or abandonment of the Tunnel, (ii) the date of demolition of either of the buildings located at 33 Yorkville Avenue and 2 Bloor Street West (the "Buildings"), where such Building(s) is or are not being re-constructed; (iii) if deemed necessary for municipal purposes as determined by the General Manager, Transportation Services, acting reasonably, upon receiving not less than 180 days' notice in writing from the General Manager, Transportation Services, or (iv) in the event that the General Manager, Transportation Services determines there is an emergency that presents a danger to the public health or safety, upon such notice as the General Manager, Transportation Services, determinates appropriate in the circumstances, if any;

u. at the expiration or earlier termination of the Agreement, at the City's sole discretion, the City may require the Owner to alter, demolish and/or remove the Encroachment at the Owner's sole cost and expense, to the satisfaction of the General Manager, Transportation Services,, and after the removal of the Encroachment, the Owner shall restore the street pursuant to Article VIII of Chapter 743, Streets and Sidewalks, City of Toronto Municipal Code;

v. the Owner agrees that the City shall have the right of entry onto the lands and building located 33 Yorkville Avenue and on the Encroachment, to acquire access to the Encroachment for the purposes of inspection, repair, or removal of the Encroachment or performing any other activity permitted by the City under the Agreement, on terms acceptable to the General Manager, Transportation Services;

w. the Agreement shall include rights and remedies acceptable to the General Manager, Transportation Services, including the right, but not the obligation, of the City to remedy any failure of the Owner to comply with the Agreement, and the costs incurred by the City in enforcing the Agreement shall be payable by the Owner;

x. shall require the Owner to adhere to applicable federal, provincial or municipal laws, by-laws, policies including the City of Toronto Municipal Code and Transportation Services' standard process for acquisition of encroachment agreements;

y. the provisions of Appendix A of Toronto Municipal Code Chapter 743, Streets and Sidewalks, Use of, attached as Appendix C to the report (September 17, 2020) from the Director, Transportation Services, Permits and Enforcement, shall be substantially incorporated into the Agreement to the satisfaction of the General Manager, Transportation Services;

z. the Agreement shall be registered on title to the Owner's property and other affected properties deemed necessary by the City Solicitor, at the expense of the Owner, with appropriate title opinions provided to the satisfaction of the City Solicitor as may be required by the City Solicitor;

aa. the Owner shall pay all cost associated with the preparation of the Agreement and the registration of the Agreement on title; and

bb. the Owner shall accept such additional terms and conditions as the General Manager, Transportation Services, or the City Solicitor may deem necessary in the interest of the City.

2. Directed the General Manager, Transportation Services to extend the Agreement to the new owner of 33 Yorkville Avenue, in the event of sale or transfer of the property at 33 Yorkville Avenue, subject to the prior approval of the General Manager, Transportation Services, and provided in all cases the transferee or assignee enters into an assumption agreement with the City to assume the obligations under the Agreement, in form satisfactory to the City.

This staff report is about a matter which Community Council has delegated authority from City Council to make a final decision.

The current owner of 33 Yorkville Avenue, 33 Yorkville Residences Inc., is planning to construct a 68-storey mixed-use development and a 42 storey residential condo at 33 Yorkville Avenue and 50 Cumberland Street with approximately 1079 residential dwellings, retail on the ground and 2nd floor, above a six level below grade Toronto Parking Authority commercial parking garage.  As a part of this proposed development, the owner submitted an application which proposes to re-construct a portion of an existing below grade tunnel at 33 Yorkville Avenue beneath Cumberland Street which connects to the property at 2 Bloor Street West.  The portion of the tunnel to be re-constructed was formerly located on the owner's lands, but the owner was required to convey to the City a 3.05 metre road widening along the Cumberland Street frontage of the subject site.  As a result of the road widening, the portion of the tunnel to be re-constructed is now located under the public highway.

The purpose of this report is to seek Community Council authorization to enter into an encroachment agreement with the owner to permit the portion of the tunnel now located under Cumberland Street to be re-constructed and to remain within the public highway.