Item - 2018.TE34.135

The Toronto and East York Community Council:

1. Authorized the City to enter into an encroachment agreement (the "Agreement") with the owner of 12, 14, and 16 York Street (the "Owner") for the purpose of permitting the Owner to construct, maintain, repair, and operate a publicly accessible underground pedestrian PATH tunnel connection fronting 12, 14 and 16 York Street, that will be situated a minimum of 2.38 metres below the surface of the road, and will encroach the full width of the public right of way, commencing at approximately 28.23 metres south of the south curb line of Bremner Boulevard running east thereof, linking to Maple Leaf Square at 15 York Street (the "Tunnel" or "Encroachment"), and the Agreement will be substantially on the terms and conditions set out in Recommendation 1.a. through bb. below, and any other or amended terms and conditions satisfactory to the General Manager, Transportation Services (the "GM"), and in a form satisfactory to the City Solicitor:  

a. the Owner shall design, construct, maintain and repair the Encroachment, at its own expense, and the Encroachment shall be constructed to the satisfaction of the General Manager, Transportation Services, the Executive Director, Engineering and Construction Services and the General Manager, Economic Development, Culture and Tourism, and shall be maintained in a state of good repair, at no expense to the City;

b. the design and construction of the Tunnel shall comply with the Canadian Highway Bridge Design Code (CAN/CSA) for highway loading purposes, as amended, superseded or replaced from time to time, including allowance for impact factors;

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 submit drawings to Transportation Services to obtain compliance with the Ministry of the Environment and Climate Change for environmental compliance approvals, and all work shall be in compliance with any requirements of Toronto Water;

e. the Owner shall obtain approval and all necessary permits for the construction of the Tunnel from the Toronto Building Division, if required;

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

g. the Owner shall adhere to the accepted Traffic Management Plan, Construction Management Plan, Construction Schedule letter and Traffic Assessment Study outlining the proposed tunnel installation and shall submit revised plans, as advised, which content shall be to the satisfaction of the GM prior to the issuance of a Construction Permit;

h. the City shall maintain the right to place pipes, cables, wires, poles and other infrastructure within the Encroachment and shall be entitled to attach infrastructure, including that required by TTC, if necessary, to the exterior of the Encroachment;

i. 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 such permission granted, in a form and content satisfactory to the City Solicitor;

j. 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 from such permission granted, any matter related to the Tunnel, and any failure of the Owner to comply with the Agreement, in a form and content satisfactory to the City Solicitor;

k. 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 Interim 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 Interim Chief Financial Officer may require;

l. the Owner shall provide as-built drawings within 60 days of completing the construction of the Tunnel to Survey and Mapping, Attention: Mr. Michael Kolominsky, 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;

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

n. the Owner will be responsible for restoration to the road pavement, to the satisfaction of the GM, upon completion of the installation of the Encroachment; 

o. the Owner shall pay (i) an annual licence fee in the amount of $22,000.00 plus applicable HST, and (ii) any applicable real property taxes exigible. The licence 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;

p. the life of the Agreement to be limited to the removal of the Tunnel or the date of the demolition of either of the buildings at 12, 14 and 16 York Street and 15 York Street (the "Buildings"), whichever occurs first;

q. the Owner shall, at its own cost, charge and expense and to the satisfaction of the General Manager, Transportation Services , alter or remove the Encroachment on: (i) the demolition of either of the Buildings, or (ii) if deemed necessary for municipal purposes as determined from the General Manager, Transportation Services, acting reasonably, upon receiving reasonable notice in writing by the General Manager, Transportation Services, and thereafter, the Owner shall restore the street pursuant to Article VIII of Chapter 743, Streets and Sidewalks, City of Toronto Municipal Code;

r. the Owner agrees that the pedestrian Tunnel shall, for the life of the Tunnel and the Buildings and as long as public access exists between the Tunnel and the PATH system via the 12, 14 and 16 York Street and 15 York Street remain publicly accessible;

s. the Owner agrees that the City shall have the right of entry on the lands and premises at 12, 14 and 16 York Street 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;

t. 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;

u. the City shall not be responsible for repairing or replacing the Encroachment damaged a result of street repairs or reconstruction;

v. shall require the Owner to adhere to all 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;

w. the provisions of Attachment A to this report shall be substantially incorporated into the Agreement to the satisfaction of the General Manager, Transportation Services;

x.  the Owner shall comply with all requirements contained in the Section 16 Agreement dated April 30, 2009, as amended by an Amending Agreement dated October 26, 2015, and as same may be further amended, from time to time, including without limitation, the posting of financial security, the refinement of the financial security, the construction of the proposed future PATH connection within the Commercial Phase, peer review of the design by the City's peer reviewer, at the Owner's expense, and compliance with all accepted plans and drawings;

y. the Owner shall not make or permit any additions or modifications to the Encroachment beyond what is permitted under the terms of the Agreement;  

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 costs associated with preparing the Agreement and the registration of the Agreement on title; and

bb.  the Owner shall accept any other terms and conditions considered appropriate by the General Manager, Transportation Services or the City Solicitor.

2. Directed the General Manager, Transportation Services to extend the Agreement to the new owner, in the event of sale or transfer of the property abutting or encumbered by the Encroachment, 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.

3. Authorized the General Manager, Transportation Services to administer and manage the Agreement including the provision of any consents, approvals, notices provided that the General Manager, Transportation Services may, at any time, refer consideration of such matters (including their content) to the Toronto and East York Community Council for its determination and direction.

4. Authorized the City Solicitor to prepare the Agreement, and arrange execution and registration of the Agreement as required by the report (June 26, 2018) from the Acting Director, Transportation Services, Toronto and East York District.

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

When Council approved the development of 12, 14 and 16 York Street within the Railway Lands East in 2009, as a condition of approval the owner was required to enter into a Section 16 Agreement to secure a range of facilities and services, including the construction of a PATH tunnel connection under York Street at the owner's expense.  The Section 16 Agreement was amended by an Amending Agreement dated October 26, 2015, which amongst other matters, deferred the timing for completion of the tunnel connection and imposed financial security obligations on the owner.

The purpose of this report is to seek Community Council authorization to enter into an encroachment agreement with the owner such that the developer (Lanterra Developments) be permitted to proceed with the construction of the PATH tunnel connection. The tunnel will encroach under the public right of way below York Street, to link the PATH between 12, 14, and 16 York Street and 15 York Street (Maple Leaf Square).