Item - 2019.TE7.70

The Toronto and East York Community Council:  

1. Authorized the City to enter into an encroachment agreement (the "Agreement") with the owners of 81 Bay Street permitting the pedestrian bridge (the "Encroachment") on the terms and conditions set out 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 Owner shall submit a report, stamped and signed by either the architect or professional engineer who designed the Encroachment , addressing how vehicles,  pedestrians and City-owned infrastructure will be protected from any snow and/or ice or other materials that may fall from the bridge;

b. the Owner shall design, construct, repair and maintain the Encroachment, at its own expense to the satisfaction of the General Manager of Transportation Services and 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;

c. 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, or as a result of street repairs;

d. the City shall maintain the right to place pipes, cables, wires, poles and other infrastructure through, over or under the Encroachment;

e. 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 for the Encroachment;

f. 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 Encroachment, and any failure of the property owner to comply with the Agreement in a form and content satisfactory to the City Solicitor;

g. 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 Deputy City Manager and 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 Deputy City Manager and Chief Financial Officer and Treasurer may require;

h. the Owner shall provide and maintain an irrevocable letter of credit, in an amount satisfactory to the City to be retained by the City, for the duration of construction of the pedestrian bridge within the Queen Street West 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.  Prior to the release of the letter of credit the property owner 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 the bridge is safe and ready to be opened to pedestrian traffic, along with two sets of as-built drawings;

i. the Owner shall pay (i) an annual licence fee in the amount of $10,900.00 plus applicable HST, and (ii) any applicable real property taxes eligible.  The licence fees will be recalculated every ten (10) years, and shall increase annually by an amount equivalent to the percentage increase in the Consumer Price Index (all items – Toronto). 

j. the design and construction of the Encroachment shall comply with the Canadian Highway Bridge Design Code (CAN/CSA) as amended, superseded or replaced from time to time;

k. 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;

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

m. 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;

n. the life of the Agreement to be limited to the removal of the Encroachment or the date of the demolition of either of the Buildings, whichever is event earlier

o. 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 if deemed necessary for municipal purposes by the General Manager, Transportation Services upon receiving not less than 365 days' notice in writing by the General Manager, Transportation Services; 

p. 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;

q. 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; 

r. the Owner agrees that the pedestrian bridge shall, for the life of the Buildings, remain publicly accessible in accordance with the provisions of the Agreement;

s. the Owner agrees that the City shall have the right of entry on the Buildings 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;

t. the Agreement shall include rights and remedies acceptable to the General Manager of 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. 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; 

v. the Owner shall submit a Traffic Management Plan and Construction Schedule letter outlining proposed Bridge Installation and advising on impacts within the public right of way in the area of the proposal which content shall be to the satisfaction of the General Manager, Transportation Services prior to the issuance of a Construction Permit; and

w. the Owner will be responsible for restoration to the road pavement, to the satisfaction of the General Manager, Transportation Services, if necessary, upon completion of the installation of the Encroachment.

x. the Owner shall be responsible for obtaining TTC clearance for the use of loads/hoists on the roadway in order to install the bridge.  This must be provided prior to the issuance of the construction permit.

2. Directed the General Manager, Transportation Services to extend the Agreement to the new owner, in the event of sale or transfer of the properties abutting or encumbered by the encroachments, subject to the prior approval of the General Manager of Transportation Services in respect of the property owner's property, 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 and arrange execution 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 which Community Council has delegated authority from City Council to make a final decision.

The proposed bridge will link the property at 81 Bay Street to the Scotiabank Arena "Galleria", at 40 Bay Street.  On behalf of the owners of 81 Bay Street, Khurana Associates Inc. submitted an application which proposes to construct the new pedestrian bridge.  45 Bay Street Property II Inc., 45 Bay Street Property III Inc., 141 Bay Street Property I Inc., Hines 81 Bay Street Inc. and 10103578 Canada Inc. are the owners of 81 Bay Street, and Maple Leaf Sports and Entertainment Ltd. are the owners of 40 Bay Street.  The bridge will encroach over the public right of way above Bay Street.

Transportation Services has reviewed the application.  The Applicant and owners are required to satisfy all conditions of approval set out in the recommendations of this report and must comply with Transportation Services procedure for granting approval of bridges.