Item - 2019.TE7.69

The Toronto and East York Community Council:

1. Authorized the City to enter into an encroachment agreement (the" Agreement") with the leasehold owner of 125 and 155 Queens Quay East (collectively, the "Applicant") to permit the Applicant to construct, maintain, repair and operate a pedestrian bridge connecting 125 and 155 Queens Quay East, over Dockside Drive (the "Bridge" or "Encroachment"), substantially on the terms and conditions set out in Recommendations 1.a. to 1.bb. below, and on any other or amended terms and conditions satisfactory to the General Manager,Transportation Services and  in a form satisfactory to the City Solicitor:

a. the Applicant shall, at its own expense, design, construct, repair and maintain the Encroachment in a state of good repair, and 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design and construction of the Bridge shall comply with the Canadian Highway Bridge Design Code (CAN/CSA) as amended, superseded or replaced from time to time;

c. the Applicant 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 Applicant shall submit a report, stamped and signed by either the architect or professional engineer who designed the Bridge, addressing how vehicles and pedestrians will be protected from any snow and/or ice that may fall from the Bridge;

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

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

g. the Applicant shall submit and adhere to the accepted Traffic Management Plan, Construction Management Plan, Construction Schedule letter and Traffic Assessment Study outlining proposed Bridge installation and shall advise on the impacts within the public right of way in the area of the proposed Encroachment, which content shall be to the satisfaction of the General Manager, Transportation Services, prior to the issuance of a Construction Permit;

h. the Applicant shall pay (i) an annual licence fee in the amount of $7,200.00 plus applicable HST, and (ii) any applicable real property taxes exigible. 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 bridge 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 City shall maintain the right to place or affix pipes, cables, wires, poles and other infrastructure within/to the Encroachment;

j. the City shall not be responsible for repairing or replacing the Encroachment damaged as a result of clearing or removing litter, graffiti, posters, snow or ice from the City right-of-way, or as a result of street repairs or construction;

k. 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 or arise from the permission granted, which release shall be in a form and content satisfactory to the City Solicitor;

l. the Applicant 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 Bridge, and any failure of the Applicant to comply with the Agreement, which indemnity shall be in a form and content satisfactory to the City Solicitor;

m. the Applicant 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 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;

n. the Applicant shall provide and maintain an irrevocable letter of credit, in the amount of $1,316,393.50 to be retained by the City, for the duration of construction of the pedestrian Bridge within Dockside Drive 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 Applicant will be required to provide a construction sign-off letter stamped and signed by the structural engineering firm that designed the Bridge which states that Bridge is safe and ready to be opened to pedestrian traffic, along with two sets of as-built drawings;

o. the Applicant 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 M4S1A7, as well as to Transportation Services, Right of Way Management, Construction Activities, 55 John Street, 17th Floor, Toronto, Ontario, M5V 3C6;

p. the Applicant shall submit a reference plan for the Bridge which includes the area of the Bridge in m2, upon completion of the Bridge;

q. the Applicant will be responsible for restoration to 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 Encroachment;

r. the Applicant 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;

s. the term of the Agreement shall expire on the earlier of: (i) the removal or abandonment of the Bridge, (ii) the date of the demolition of either of the buildings located at 125 Queen Quay East and 155 Queens Quay East (the "Buildings"),  (iii) the termination of the Applicant's ground lease; (iv) if deemed necessary for municipal purposes as determined by the General Manager, Transportation Services,  acting reasonably, upon receiving not less than ninety (90) days' notice in writing by the General Manager, Transportation Services, or (v) in the event that the General Manager, Transportation Services determines there is an emergency that presents a danger to public health or safety, upon such notice as the General Manager, Transportation Services determines appropriate in the circumstances, if any;

t. at the expiration or earlier termination of the Agreement, at the City's sole discretion, the City may require the Applicant to alter, demolish and/or remove the Encroachment at the Applicant's sole cost and expense, to the satisfaction of the General Manager, Transportation Services, and after the removal of the Encroachment, the Applicant shall restore the street pursuant to Article VIII of Chapter 743, Streets and Sidewalks, City of Toronto Municipal Code;

u. if the City does not require the Applicant to alter, demolish and/or remove the Encroachment as set out in subsection u. above, at the expiration or earlier termination of the Agreement, the Bridge shall become the property of the City, free and clear of any and all encumbrance, and without any payment therefor to the Applicant;

v. the Applicant agrees that the City shall have the right of entry on the Buildings and on the Encroachment, to acquire access to  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 of remedy any failure of the Applicant to comply with the Agreement, and the costs incurred by the City in enforcing the Agreement shall be payable by the Applicant;

x. the Applicant shall be required 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 to the report (May 30, 2019) from the Manager, Permits and Enforcement, Transportation Services shall be substantially incorporated into the Agreement to the satisfaction of the General Manager, Transportation Services;

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

aa. the Applicant shall pay all costs associated with preparing the Agreement and the registration of the Agreement on title; and

bb. the Applicant 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(s) and/or leasehold owner(s) of 125 and 155 Queens Quay East, in the event of an assignment of the ground lease, sale or transfer of the properties abutting or encumbered by the encroachments, as the case may be, 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 a 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 of 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 and arrange execution and registration of the Agreement as required by the report (May 30, 2019) from the Manager, Permits and Enforcement, Transportation Services.

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

Transportation Services has assessed a request from Menkes Waterfront Holdings Inc. to construct an overhead pedestrian bridge, to connect two office buildings being constructed at 125 and 155 Queens Quay East, which will encroach within the public right-of-way over Dockside Drive.

The City is the registered owner of lands municipally known as 125 and 155 Queens Quay East (the "Lands"), and entered into a long term ground lease dated April 20, 2018 with Menkes Waterfront Holdings Inc., as nominee for and on behalf of Menkes WIP GP Inc. and Alcion (WIC) GP Inc. in their capacity as the general partner of WIC Limited Partnership, Menkes WIC GP Inc. in its capacity as general partner of WIC Limited Partnership, and Alcion (WIC) GP Inc., in its capacity as general partner of WIC Limited Partnership (collectively referred to as  "Menkes"), in respect of the Lands, for a term of 102 years. 

Menkes is constructing two new 11 storey commercial buildings (office/retail) known as the Waterfront Innovation Centre, which will create over 400,000 square feet of premium office space along the City's waterfront. The proposed bridge is an integral component of the overall functionality of the development and will link the two buildings on the second floor.

The purpose of this report is to seek Community Council authorization to enter into an encroachment agreement with the leasehold owner of the Lands to permit the construction of the pedestrian bridge over Dockside Drive.