Item - 2022.TE34.169

The Toronto and East York Community Council:

1.  Authorized the City to enter into an encroachment agreement (the "Agreement") with the owner of 481 University Avenue (the "Owner") for the purpose of permitting the Owner to construct, maintain, repair and operate a publicly accessible underground pedestrian tunnel located approximately 9.3 metres north of Dundas Street West, connecting 481 University Avenue to the existing TTC pedestrian tunnel connected to St. Patrick Subway Station (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 of Transportation Services (the "GM"), and in a form satisfactory to the City Solicitor:

a. the Owner shall, at its own expense, design, construct, repair and maintain the Encroachment in a state of good repair, to the satisfaction of the GM, 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 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without limitation for highway loading purposes, including allowance for impact factors, as same may be amended, superseded or replaced from time to time;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 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 GM, prior to the issuance of a Construction Permit;

g. the Owner shall provide reasonable notification to the TTC prior to commencing work on the Tunnel, and shall work collaboratively with the TTC to complete the physical linkage of the Tunnel to the TTC pedestrian tunnel;

h. the Owner shall enter into an Entrance Connection Easement Agreement (the "ECEA") with the City of Toronto to allow continued pedestrian access through the Encroachment into the Owner's Building at 481 University Avenue; This document must be executed prior to the issuance of a construction permit.

i. the Owner shall adhere to all requirements laid out within a Construction Agreement entered into between the Owner and the TTC with respect to tunnel construction relating to their infrastructure;

j. the Owner shall pay (i) an annual licence fee in the amount of $693.73 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;

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

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

m. 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;

n. 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;

o. 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;

p. the Owner shall provide and maintain public liability and property damage insurance with an insurer satisfactory to the GM for the lifetime of the Agreement in a form as approved by the Chief Financial Officer and Treasurer, 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 and Treasurer may require;

q. the Owner shall provide and maintain an irrevocable letter of credit, in an amount of $766,800.00 to be retained by the City, for the duration of construction of the pedestrian Tunnel within the University Avenue 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 GM. 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;

r. 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, at engsvy@toronto.ca, 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;

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

t. the Owner will be responsible for the restoration of the road pavement, including adjacent sidewalks and boulevards, if necessary, to the satisfaction of the GM, upon completion of the installation of the Tunnel;

u. 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;

v. 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 the building located at 481 University Avenue (the "Building"), where such Building(s) is or are not being re-constructed; (iii) the closure of the TTC pedestrian tunnel leading to St. Patrick's Station; (iv) if deemed necessary for municipal purposes as determined by the GM, acting reasonably, upon receiving not less than 180 days' notice in writing from the GM, or (v) in the event that the GM determines there is an emergency that presents a danger to the public health or safety, upon such notice as the GM determinates appropriate in the circumstances, if any;

w. 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 GM, 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;

x. the Owner agrees that the City shall have the right of entry onto the lands and building located 481 University 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 GM;

y. the Agreement shall include rights and remedies acceptable to the GM, 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;

z. 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;

aa. the provisions of Appendix A of Toronto Municipal Code Chapter 743, Streets and Sidewalks, Use of, attached as Attachment 3to this report, shall be substantially incorporated into the Agreement to the satisfaction of the GM;

bb. 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;

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

dd. 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;

ee. the Agreement shall include rights and remedies acceptable to the GM, 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 for the Owner;

ff. as 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 GM, 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;

gg. the Owner shall accept such additional terms and conditions in the Agreement as the GM or the City Solicitor may deem necessary in the interest of the City;

hh. the Owners shall have the tunnel inspected on a regular schedule as deemed necessary by the CHBDC;

ii. the Owners must make a payment in the amount of $43,324.20 for the cost of the Engineering

Inspection and Review Fee; and

jj. the Owner shall ensure any design of the Tunnel that impacts Toronto Water's infrastructure shall meet Toronto Water's standards and approval conditions, as determined by Toronto Water at their sole discretion.

2. Directed the GM to extend the Agreement to the new owner of 481 University Avenue, in the event of sale or transfer of the property at 481 University Avenue, subject to the prior approval of the GM, 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 Solicitor.

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

The owners of 481 University Avenue, 481 Uni Investments Inc., has applied to the City for approval of their Development for a 52-storey mixed use building, containing 709 residential units, 20,782 square metres of office, and 3,605 square metres of retail space. As part of the Development process for this address, the owner has received the necessary Planning approvals for the development. The community benefits for the development obligates the owner to internalize the Toronto Transit Commission's (TTC) existing external stairway entrance at the northeast corner of Dundas Street West and University Avenue, creating an underground pedestrian access tunnel connecting the building at their development to TTC's St. Patrick Subway Station.

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 to be constructed under the sidewalk grade at 481 University Avenue and connecting to the existing TTC pedestrian tunnel which leads to St. Patrick Subway Station.