Item - 2021.CC38.8

City Council on December 15, 16 and 17, 2021, adopted the following:

1.  City Council adopt the confidential instructions to staff in Confidential Attachment 1 to the report (December 6, 2021) from the City Solicitor.

2.  City Council authorize the public release of the confidential instructions to staff in Confidential Attachment 1 to the report (December 6, 2021) from the City Solicitor.

3.  City Council direct that the balance of Confidential Attachment 1 to the report (December 6, 2021) from the City Solicitor remain confidential at the discretion of the City Solicitor, as it contains advice that is subject to solicitor-client privilege.

4.  City Council authorize the public release of Confidential Attachments 2 to 10, inclusive, to the report (December 6, 2021) from the City Solicitor.

The confidential instructions to staff in Confidential Attachment 1 to the report (December 6, 2021) from the City Solicitor were adopted by City Council and are now public as follows: 

1.  City Council accept the owner's offer to settle its appeals of its Official Plan Amendment and Zoning By-law Amendment applications (File.: 20 115845 NNY 08 OZ) as set out in the owner's settlement offer comprised of the letter dated December 6, 2021 and attached as Confidential Attachment 2 to the report (December 6, 2021) from the City Solicitor and the materials attached as Confidential Attachments 3 to 10 (the "Settlement Offer"), to the report (December 6, 2021) from the City Solicitor subject to the terms and conditions contained in Parts 3 to 8 below.

2.  City Council direct the City Solicitor and the appropriate City staff to attend before the Ontario Land Tribunal in support of the owner's revised applications to amend the Official Plan and the applicable zoning by-laws, as described in the Settlement Offer.

3.  In the event that the Ontario Land Tribunal allows the appeals of the Official Plan Amendment application and the Zoning By-law Amendment application, in whole or in part, City Council authorize the City Solicitor to request the Ontario Land Tribunal withhold the issuance of any final Order(s) until such time as the Ontario Land Tribunal has been advised by the City Solicitor that:

a.  the proposed Official Plan and Zoning By-law Amendments are in a final form and content satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b.  a Section 37 Agreement has been executed and registered in priority to secure Section 37 contributions and related matters to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor;

c.  the owner has provided a Functional Servicing Report, Stormwater Management Report, Hydrogeological Report and Groundwater Report satisfactory to the Chief Engineer; and Executive Director, Engineering and Construction Services;

d.  the owner has designed and provided the City with financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Functional Servicing Report, Groundwater Report, Stormwater Management Report and Hydrogeological Report to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services, should it be determined that improvements or upgrades are required to support the development;

e.  the owner has entered into appropriate agreement(s) with the City requiring the owner, prior to the issuance of the first below grade building permit (save and except permits for excavation and shoring), and at no cost to the City, to design, financially secure, construct and make operational, any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Functional Servicing Report, Groundwater Report, Stormwater Management Report and Hydrogeological Report to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and

f.  the owner has provided a construction management plan that includes details regarding the interim condition during construction and the full restoration of the existing pedestrian tunnels on-site post-construction, connecting to the Yonge Corporate Centre and the York Mills subway station, to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor.

4.  City Council direct the City Solicitor to prepare, and authorize the Chief Planner and Executive Director, City Planning or their designate to enter into, an agreement with the owner pursuant to Section 37 of the Planning Act as follows, to the satisfaction of the Chief Planner and Executive Director, City Planning or their designate and the City Solicitor:

a.  to secure the following community benefits:

i.  prior to the first above grade building permit issued for the site, the owner shall make a cash payment to the City in the amount of $1.0 million to be allocated towards improvements to path and trails within the West Don River Valley area adjacent to the site, improvements to Stewart A. McGregor Parkette, improvements to York Mills Valley Park, and improvements to the Don Valley Golf Course facility, to the satisfaction of the Chief Planner and Executive Director, City Planning in consultation with the Ward Councillor;

ii.  the cash contribution referred to in Part 4.a.i shall be indexed upwardly in accordance with the Statistics Canada Non-Residential Construction Price Index for the Toronto Census Metropolitan Area, reported quarterly by Statistics Canada in Building Construction Price Indexes Publication 18-10-0135-01, or its successor, calculated from the date of the Section 37 Agreement to the date of payment;

iii.  in the event the cash contribution referred to in Part 4.a.i above has not been used for the determined purpose within three (3) years after the amending Zoning By-law coming into full force and effect, the cash contribution may be redirected for another purpose, at the discretion of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor, provided the purpose is identified in Official Plan Policy 5.1.1 and will benefit the community in the vicinity of the lands; and

iv.  the owner shall design, finance and construct an at grade/below-grade pedestrian tunnel connection linking the proposed development to the York Mills Subway Station on the east side of Yonge Street at no cost to the City or the Toronto Transit Commission, including the supply and installation of payment turnstiles/gates that provide access to York Mills Subway Station via the Toronto Transit Commission entrance connection (if determined to be required by the Toronto Transit Commission), and such below-grade Toronto Transit Commission entrance connection shall be designed, constructed, repaired and maintained to the City and Toronto Transit Commission standards at the sole cost and expense of the owner, to the satisfaction of the Chief Planner and Executive Director, City Planning in consultation with the Toronto Transit Commission; and

b.  to secure the following as legal conveniences to support development:

i.  prior to the earlier of any residential use and the registration of the first residential condominium within the site under the Condominium Act, the owner will complete the Toronto Transit Commission Entrance Connection, at the sole cost and expense of the owner, and at no cost to the City or the Toronto Transit Commission, and a public access easement, or license as applicable, shall be provided to the City concurrently to provide access through the interior of the proposed development to the Toronto Transit Commission entrance connection to the York Mills Subway Station in a manner and form satisfactory to the Director, Real Estate Services, the Toronto Transit Commission, and the City Solicitor;

ii.  prior to the first Site Plan Approval for the lands but in any event prior to the issuance of the first above grade building permit for the proposed development and prior to any works conducted within or below Yonge Street as it relates to the Toronto Transit Commission Entrance Connection, the owner shall obtain all necessary approvals and enter into a Tunnel Encroachment Agreement and/or an Entrance Connection Easement Agreement with the City and/or the Toronto Transit Commission, at no cost to the City and/or Toronto Transit Commission, regarding the Toronto Transit Commission Entrance Connection, which shall include the required maintenance, licensing permissions, any required letters of credit prior to the construction for a period of time as specified in the agreement, insurance, indemnity and any necessary provisions, to the satisfaction of the General Manager, Transportation Services, the Director, Real Estate Services, and the Toronto Transit Commission, and with such agreement(s) entered into, executed and registered on title satisfactory to the City Solicitor and subject to the following:
 

1.  the owner shall be responsible for all costs relating to the preparation, execution registration of the Tunnel Encroachment Agreement and/or the Entrance Connection Easement Agreement, including, without limiting the generality of the foregoing: a Toronto Transit Commission Entrance Connection Fee as determined by the Toronto Transit Commission; the costs for providing any surveys or reference plans that may be required by the City and/or the Toronto Transit Commission; and all the registration costs relating to the registration of such agreements on title to lands owned by the owner in first priority subject to such permitted encumbrances as may be permitted by the City; and

2.  the owner satisfy any required pre-conditions and post-conditions, including any agreements, easements, maintenance arrangements, and fees of the Toronto Transit Commission and the City in relation to the Toronto Transit Commission Entrance Connection, to the satisfaction of the General Manager, Transportation Services, the Toronto Transit Commission, and the City Solicitor, in consultation with the Chief Planner and Executive Director, City Planning.

iii.  City Council require that the owner convey to the City, for nominal consideration and at no cost to the City or the Toronto Transit Commission, licences and/or public access easements, as may be required for public use of the proposed below-grade Toronto Transit Commission entrance connection, including any space internal to the building as required to access the below-grade Toronto Transit Commission entrance connection to the satisfaction of the City Solicitor;

iv.  prior to the earlier of the registration of the first condominium corporation within the subject lands, the first residential occupancy of the lands, the owner shall grant a surface easement to the City along the Yonge Street frontage of the site to secure a pedestrian clearway of no less than 10 metres in width along the entire Yonge Street frontage of the site as shown on Drawing A.08, dated November 23, 2021, in Confidential Attachment 3 to the report (December 6, 2021) from the City Solicitor;

v.  the owner shall provide and maintain on-site transportation demand management measures as set out in the Transportation Demand Management Plan prepared by the BA Group, dated November 3, 2021, attached as Confidential Attachment 7 to the report (December 6, 2021) from the City Solicitor, to the satisfaction of the Chief Planner and Executive Director, City Planning; and

vi.  the owner will construct and maintain the development of the site in accordance with Tier 1, Toronto Green Standard, and the owner will be encouraged to achieve Tier 2, Toronto Green Standard, or higher, where appropriate, consistent with the performance standards of Toronto Green Standards applicable at the time of the site plan application for each building on the site.

5.  City Council authorize the City Solicitor and appropriate staff to continue to work with the appellant in an effort to resolve the City's issues with, and finalize the conditions of approval for, the Site Plan Control application (File.: 20 115847 NNY 08 SA), to the satisfaction of the Chief Planner and Executive Director, City Planning.

6.  City Council request the City Solicitor to report back to City Council prior to the Ontario Land Tribunal hearing scheduled to commence on May 9, 2022, at the discretion of the City Solicitor, to provide an update regarding progress being made with respect to Part 5 above, but that matters related to the Site Plan Control application (File.: 20 115847 NNY 08 SA) and the related appeal remain delegated to the Chief Planner and Executive Director, City Planning or their designate pursuant to Toronto Municipal Code Chapter 415-18.1 and 415-19.

7.  City Council direct that City Council's acceptance of the Settlement Offer is conditional upon the applicant entering into an agreement of purchase and sale and completing the purchase of Parts 1 and 2 as shown on Reference Plan 66R-26058 (the "City Land") from the City, provided that this condition shall not fetter the discretion of the relevant City authorities or impose any obligations on the City in its capacity as owner of the City Land in determining whether or not to declare the City Land surplus and authorize the sale of the City Land to the owner.

8.  City Council authorize the City Solicitor and necessary City staff to take such necessary steps, as required, to implement City Council's decision.

Confidential Attachments 2 to 10, inclusive, to the report (December 6, 2021) from the City Solicitor are now public and can be accessed under Background Information (City Council).

The balance of Confidential Attachment 1 to the report (December 6, 2021) from the City Solicitor remains confidential at this time in accordance with the provisions of the City of Toronto Act, 2006, as it contains advice that is subject to solicitor-client privilege. The balance of Confidential Attachment 1 to the report (December 6, 2021) from the City Solicitor will be made public at the discretion of the City Solicitor.