Item - 2012.TE20.12

City Council on November 27, 28 and 29, 2012, adopted the following:

1.         City Council amend the Official Plan, for the lands at 90 Harbour Street and 1 York Street substantially in accordance with the draft Official Plan Amendment attached as Attachment 2 to the report (November 5, 2012) from the Director, Community Planning, Toronto and East York District.

2.         City Council amend former City of Toronto Zoning By-law 438-86, as amended for the lands at 90 Harbour Street and 1 York Street substantially in accordance with the draft Zoning By-law Amendment attached as Attachment 10 to the report (September 21, 2012) from the Director, Community Planning, Toronto and East York District.

3.         City Council authorize the City Solicitor to make such stylistic and technical changes to the draft Official Plan Amendment and draft Zoning By-law Amendment as may be required.

4.         City Council require the applicant to provide parking on site as outlined in the Traffic Impact Studies by LEA Consulting Ltd. which include a minimum residential parking rate of 0.32 parking spaces per residential unit, a maximum number of 21 car share parking spaces, a commercial parking garage in lieu of required non-residential parking spaces and residential visitor parking spaces and a maximum of 25% of all parking spaces to be a minimum of 2.6 metres in width despite any obstructions.

5.         Before introducing the necessary Bills to City Council for enactment, City Council require the Owner to enter into one or more Agreement(s) pursuant to Section 37 of the Planning Act to secure the following at the owner's sole expense:

a.         A cash payment of $10,000,000.00 payable as follows, to the satisfaction of the Chief Planner and Executive Director of City Planning in consultation with the Ward Councillor:

i.          $1,000,000.00 upon bills being introduced to Council to facilitate the immediate start of the design process for the modification of the Gardiner Expressway York/Bay/Yonge off-ramp;

ii.         $4,000,000.00 upon issuance of the first above grade building permit for the site; and

iii.        $5,000,000.00 upon the earlier of first occupancy of any part of any building on the site or the award of the detailed design assignment for the York/Bay/Yonge off-ramp modification.

b.         Require that the cash amounts identified in Part 5.a. above shall be indexed upwardly in accordance with the Statistics Canada Non-Residential Construction Price Index for Toronto for the period from the date of the execution of the Section 37 Agreement to the date of payment.

c.         The community benefits recommended to be secured in the Section 37 Agreement are as follows:

i.          modification of the York/Bay/Yonge off-ramps of the Gardiner Expressway as approved by City Council at their meeting of August 25, 2010 and addressed in the Environmental Assessment Report to be filed with the Province in Fall 2012; and

ii.          should there be any surplus funds from the implementation of the ramp modification that they be directed to the York "Off-Ramp" park improvements located north of Queens Quay West, east of York Street, west of 85 Harbour Street and south of Harbour Street and/or to the Jack Layton Ferry Terminal revitalization.

d.         The following matters are also recommended to be secured in the Section 37 Agreement as a legal convenience to support development:

i.          Require the items retained from the demolition of the previous heritage building at 90 Harbour Street to be incorporated into or within the vicinity of the new development to the satisfaction of Heritage Preservation Services.

ii.         The construction and development of the subject site shall in no way impede the construction and/or operation of the PATH pedestrian bridge between 40 Bay Street and 85 Harbour Street.  The PATH pedestrian bridge is to be fully integrated into the subject site.

iii.        The wind mitigation measures listed in the submitted Wind Study shall be implemented to ensure that the wind effects are acceptable.

iv.        At least 10 percent of the total number of dwelling units to be constructed on the lot shall contain at least three or more bedrooms in compliance with the provisions of the Ontario Building Code.

v.         Staff evaluate the public art contribution proposal of the applicant including recovered heritage features from the site, art installation in the PATH connection, and components in the public realm and finalize such public art contribution to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor and the applicant, which amount shall not exceed $2,000,000.00.    

vi.        The proposed fitness centre shall be secured to ensure that the ownership of the space reverts to the residential condominium(s) in the future in the event that the commercial enterprise fails.

vii.       The owner shall provide and maintain a PATH route north/south and east/west through 90 Harbour Street connecting the site to 85 Harbour Street and 10-20 Bay Street and ultimately to 40 Bay Street (through site plan 11-220406 STE 28 SA) and to York Street.  Finishes, lighting and materials will generally be in accordance with the City of Toronto PATH Design Guidelines.  The PATH connection will be fully accessible and is to be a minimum of 6 metres clear in width as shown on the approved plans and is to be kept free and clear for pedestrian use and is to be protected by way of City Easements as appropriate.

viii.      Prior to the occupancy of the building, the owner shall convey to the City an easement(s) over the PATH routes, including any necessary rights of support (the “City Easements”), for nominal consideration and to the satisfaction of the City Solicitor, shall maintain these areas free and clear of encumbrances for pedestrian use, in perpetuity, and shall pay all costs associated with the preparation and registration of all necessary documents and plans, to the satisfaction of the Executive Director, Technical Services.

ix.        With respect to any rights-of-way/easements described in Condition viii. above, the Owner shall construct, repair and maintain the City Easements, at its sole cost and expense and to the satisfaction of the Executive Director, Technical Services.  Notwithstanding anything to the contrary which may be herein expressed, the Owner shall have the right at all reasonable times to enter upon the City Easements for the purpose of repairs and maintenance and any appurtenances situate within the City Easements, provided the Owner in exercising such right of access, shall not unreasonably interfere with the use of the City Easements as granted and shall exercise all reasonable care in conducting its operations and shall restore the City Easements to the same or an improved condition, as existed immediately prior to such entry.

x.         The Owner shall, from time to time and all times hereafter fully indemnify and save harmless the City, its elected officials, officers, employees, agents, their successors and assigns, or any of them, from and against all actions, causes of action, suits, claims and other proceedings which may be brought against or made upon the City, its elected officials, officers, employees, agents, their successors and assigns, or any of them, and from and against all loss, liability, judgment, costs, charges, demands, damages or expenses which the City, its elected officials, officers, employees, agents, their successors and assigns, or any of them may sustain, suffer or be put to resulting from or arising out of:

a.         the failure of the Owner to maintain the City Easements in accordance with the terms of this Agreement;

b.         the failure of the Owner to design, construct or maintain lands and structures supporting the City Easements in accordance with the terms of this Agreement;

c.         any loss, damage or injury (including death resulting from injury) to any person or property, howsoever caused directly or indirectly, resulting from or sustained by reason of any act or omission of the owner or any person for whom it is in law responsible in connection with any of the purposes set out in the City Easements or in this Agreement with respect to the City Easements; and

d.         the Owner shall take out and maintain, at its expense, commercial general liability insurance with respect to the City Easements acceptable as to form, limits and conditions to the City for a limit of not less than $5,000,000 per occurrence (such limit be increased from time to time to reflect an amount which would be maintained by a prudent owner as determined by the City) covering possible, damages, losses, claims and expenses for or in connection with any personal injury, death or property damage that might be incurred on or about the City Easements.  The insurance policy shall include the City as an additional insured and shall contain a cross-liability and severability of interest clause and include contractual liability coverage.  The liability insurance policy shall provide that any breach of a condition of the policy by an insured shall not affect protection given by the policy to any other insured. The liability insurance policy shall contain a clause providing that the insurer will not cancel or refuse to renew the said insurance without first giving the City 30 day's prior written notice thereof.  The Owner shall supply the City with satisfactory evidence of such insurance upon request by the City, and a certificate of insurance shall be remitted to the Chief Planner within 30 days of issuance and evidence of continuance shall be remitted to the City at least 30 days prior to the expiration of any insurance policy.  The Owner shall provide to the City a copy of the insurance policy upon request.

xi.        The Owner agrees to design, construct and maintain all required indoor and outdoor signage for the PATH to the satisfaction of the Chief Planner and Executive Director of Technical Services.

xii.       The Owner agrees to pay for and construct PATH improvements internal to the building and for the connection to the PATH bridge to the Air Canada Centre.

xiii.      The Owner agrees to enter into a Wayfinding Agreement or similar agreement with the City to secure that the City Easements that will be accessible to the public during TTC operating hours.

xiv.      The Owner may refuse access to the Future PATH Connections or the Owner may require a person to leave such lands only in the case where a person or persons:

a.         unreasonably interferes with other members of the public or lawful occupants of the Future PATH Connections;

b.         carries on an unlawful activity;

c.         acts in a manner unreasonably inconsistent with the intended use of the Future PATH Connections;

d.         injures or attempts to injure any person, property or property rights;

e.         obstructs, injures or attempts to obstruct or injure any lawful business or occupation carried on by the Owner or person in lawful possession of any component of the Future PATH Connections; or

f.          commits or attempts to commit any criminal or quasi-criminal offence.

xv.       The Owner agrees to make all necessary improvements to the Future PATH Connections as required in the Wayfinding Agreement, Site Plan Agreement and this Agreement, to the satisfaction of the City Solicitor, Transportation Services, City Planning and Economic Development and Culture.

xvi.      The Owner agrees that the Future PATH Connections shall, for the life of the Proposed Building, remain publicly accessible in accordance with the provisions of this Agreement.

xvii.     The City and the Owner agrees that the Future PATH Connections, or a portion thereof, may be closed to the public during emergencies.

xviii.    Prior to shoring and excavation and/or any hoarding being installed around the periphery of the site whichever comes first the owner shall remove the vehicular lay-by on Harbour Street.