Item - 2022.CC43.24

City Council on May 11 and 12, 2022, adopted the following:

1. City Council adopt the confidential instructions to staff in Confidential Attachment 1 to the report (May 4, 2022) from the City Solicitor, as amended by motion 1 by Councillor Ana Bailão.

2. City Council authorize the public release of the confidential instructions to staff as amended by motion 1 by Councillor Ana Bailão, and the Financial Impact section in Confidential Attachment 1 to the report (May 4, 2022) from the City Solicitor, at the discretion of the City Solicitor.

3. City Council direct that the balance of Confidential Attachment 1 to the report (May 4, 2022) from the City Solicitor remain confidential, as it contains advice that is subject to solicitor-client privilege.

4. City Council authorize the public release of Confidential Appendices A and  B to the report (May 4, 2022) from the City Solicitor, at the discretion of the City Solicitor. 

The confidential instructions to staff in Confidential Attachment 1 to the report (May 4, 2022) from the City Solicitor, as amended by motion 1 by Councillor Ana Bailão, were adopted by City Council and have been made public, the City Solicitor having exercised the City Solicitor's discretion to make them public:

1. City Council accept the "without prejudice" settlement offer, attached as Confidential Appendix A and the plans and drawings contained in Confidential Appendix B to the report (May 4, 2022) from the City Solicitor for the lands municipally known as 290 Old Weston Road (the "Development Site") and City Council direct the City Solicitor to attend the Ontario Land Tribunal to support the Revised Proposal, subject to Parts 2 to 17 below, and subject to the following modification:

i. provide 4.0 square metres of indoor and outdoor amenity space per unit.

2. City Council direct the City Solicitor to request the Ontario Land Tribunal to withhold issuance of its Order on the Official Plan Amendment and Zoning By-law Amendments Applications until such time as the Ontario Land Tribunal has been advised by the City Solicitor that the proposed Official Plan and Zoning By-law Amendments are in a content and form satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning.

3. City Council authorize the City Solicitor to enter into an Agreement pursuant to Section 37 of the Planning Act, satisfactory to the City Solicitor to secure the following matters as community benefits and as a legal convenience to support the development:

a. in fulfillment of its Section 37 contribution, the owner of the Development Site (the "Owner") shall, as irrevocably determined by the Executive Director, Housing Secretariat, in the Executive Director, Housing Secretariat's sole and unfettered discretion and in accordance with the Settlement Offer attached as Confidential Appendix A to the report (May 4, 2022) from the City Solicitor (the "Election"), either:

i. convey affordable rental housing units to a non-profit provider on the terms set out in Part 3.b. below (the "Affordable Housing Rental Units Conveyance"); or

ii. provide the cash contribution to the City on the terms and conditions set out in Part 3.c. below (the "Cash Contribution");

Affordable Housing Rental Units Conveyance

b. should the Executive Director, Housing Secretariat elect to require the Affordable Housing Rental Units Conveyance then the Owner shall convey to the Luso Canadian Charitable Society ("Luso") or to another non-profit affordable housing provider selected by the City and approved by the Owner (the "Alternative Provider") (with the selected transferee to be referred to as the "Provider"), all eighteen (18) residential dwelling units and the central interior floor space located on the second storey of the residential building composed of 15,385 square feet (the “Affordable Housing Rental Units”) at a price of $915.61 per saleable square foot, representing a total value of approximately $14,086,625 (the “Below-Market Sale Price”) in accordance with the following:

i.  the eighteen (18) Affordable Housing Rental Units will:

a. have a layout substantially in accordance with the sample second storey floor plans, as such are indicated within the settlement plans attached as Confidential Appendix B to the report (May 4, 2022) from the City Solicitor.

b. be designed as accessible and barrier-free, with standard unit finishes equal to the unit finishes in the other residential units in the remainder of the residential building;

c. include the conveyance for no extra cost of a total of three parking spaces (one standard and two barrier-free parking spaces) to the Provider;

d. include full access to, and use of, all indoor and outdoor amenities in the Development, at no extra charge, and on the same terms and conditions as any other resident of the remainder of the residential building, without the need to pre-book or pay a fee, unless specifically required as a customary practice for private bookings;

e. include laundry facilities on the same basis as the other residential units in the remainder of the residential building; and

f. include access to permanent and visitor bicycle parking and bicycle lockers on the same terms and conditions as the other residential units in the remainder of the residential building;

ii. contemporaneously with the Election, the Owner shall enter into an agreement of purchase and sale for the sale of the Affordable Housing Rental Units to the Provider and the City (with the City as a contingent transferee), which shall be subject to the following terms:

a. the City shall not be liable to pay any deposit, penalty, or liquidated damages to the Owner or the Provider in the event the City terminates the agreement of purchase and sale following Election for any reason, including failure of the Provider to close on the transaction, a lack of funding to complete the transaction, or the City being unsuccessful in identifying an Alternative Provider (for greater clarity, if the Non-Profit Provider fails to close on the transaction following the Election, the Owner shall have nonetheless satisfied the Section 37 Contribution required for the Development);

b. any timelines associated with the agreement of purchase and sale may be extended by mutual agreement of the parties;

c. the closing of the purchase transaction with any Provider shall be conditional on the Provider having entered into a municipal housing project facility agreement with the City to secure the financial assistance being provided, including the decreased value of the Affordable Housing Rental Units and the value of the Open Door Program incentives, if any, and to set out the terms of the operation of the new affordable rental housing to be provided for a 99-year affordability period beginning from the date that each such unit is first sold to the Provider;

d. standard closing adjustments shall be made with respect to the Affordable Housing Rental Units sold to the Provider (for greater clarity, such adjustments shall not include upward adjustments for development charges, property taxes or other fees or charges associated with the City's Open Door Program); and

e. that the Owner shall be solely responsible and liable for remitting the Harmonized Sales Tax eligible on the Affordable Housing Rental Units, if the conveyance to the Provider and/or the City of Toronto are not to be eligible for any new housing rebates; and

iii. the Below-Market Sale Price for the Affordable Housing Rental Units will be further reduced by an amount equivalent to the financial incentives provided to the Owner through the Open Door Program, and the Owner will enter into a municipal housing project facility agreement with the City to secure the Open Door Incentives being provided until the completion of the Affordable Housing Rental Units Conveyance;

Cash Contribution

c. in the alternative, if the City decides not to require the Affordable Housing Rental Units Conveyance, the Owner shall pay to the City a cash contribution of $5,000,000.00 (Five Million dollars), upwardly indexed from the date of execution of the Section 37 agreement in accordance with the Residential Building Construction Price Index for the Toronto Census Metropolitan Area, payable to the City upon the later of:

i. issuance of the first above grade building permit in respect of the development; and

ii. the City providing notice to the Owner of its decision to require the Cash Contribution.

Open Door Incentives

4. City Council authorize the eighteen (18) Affordable Housing Rental Units and any space ancillary to the affordable housing to be constructed on the lands known as 290 Old Weston Road and conveyed to the Provider to be eligible for waivers of planning application, building permit, and parkland dedication fees, and development charges exemptions through the Open Door Affordable Rental Housing Program, unless already paid.

5. City Council authorize an exemption from taxation for municipal and school purposes for 99 years, for the eighteen (18) Affordable Housing Rental Units and any space ancillary to the affordable housing to be constructed on the lands known as 290 Old Weston Road and conveyed to the Provider.

6. City Council authorize the Executive Director, Housing Secretariat to negotiate and enter into, on behalf of the City of Toronto, a municipal housing project facility agreement (the "Contribution Agreement") with the Provider for the Affordable Housing Rental Units to be constructed on the lands known as 290 Old Weston Road, to secure the financial assistance being provided and to set out the terms of the operation of the Affordable Housing Rental Units, on terms and conditions satisfactory to the Executive Director, Housing Secretariat and in a form approved by the City Solicitor.

7. City Council authorize the Executive Director, Housing Secretariat to negotiate and enter into, on behalf of the City, a municipal housing project facility agreement with the Owner for the development of the Affordable Housing Rental Units to be constructed on the lands known as 290 Old Weston Road, to secure the financial assistance being provided and to set out the terms of the development and the ownership/transfer of the Affordable Housing Rental Units, on terms and conditions satisfactory to the Executive Director, Housing Secretariat and in a form approved by the City Solicitor.

8. City Council authorize the Controller to cancel or refund any taxes paid after the effective date of the exemption from taxation for municipal and school purposes as set out in the Contribution Agreement.

9. City Council authorize the Executive Director, Housing Secretariat to execute, on behalf of the City, any security or financing documents required by the Owner or the Provider to secure construction and conventional financing and subsequent refinancing, including any postponement, tripartite, confirmation of status, discharge or consent documents of any City security documents where and when required during the term of the municipal housing project facility agreement, as required by normal business practices, and provided that such documents do not give rise to financial obligations on the part of the City that have not been previously approved by City Council.

Agreement of Purchase and Sale

10. City Council authorize the City of Toronto to be a party to the agreement(s) of purchase and sale for the Affordable Housing Rental Units as a contingent transferee, in order to implement City Council's decision and ensure the benefit of the Affordable Housing Rental Units is secured for the intended purpose should the Provider not be able to complete the transactions.

11. City Council authorize the Executive Director, Housing Secretariat to execute the agreement of purchase and sale for the Affordable Housing Rental Units, provided the agreement of purchase and sale provide the City with the right to assign the agreement of purchase and sale to other non-profit housing providers with the consent of the Owner, that the City is not liable to pay any deposit, penalty or liquidated damages to the Owner or the Provider in the event it terminates the agreement of purchase and sale following Election for any reason, including failure of the Provider to close on the transaction, a lack of funding to complete the transaction, or the City being unsuccessful in identifying an Alternative Provider, and that any timeframes associated with the agreement of purchase and sale may be extended by mutual agreement of the parties.

12. City Council authorize the Executive Director, Housing Secretariat to administer and manage the transaction relating to the Affordable Housing Rental Units in consultation with the Executive Director, Corporate Real Estate Management, including the provision of any consents, approvals, waivers and notices, provided that they may, at any time, refer consideration of any such matters (including their content) to City Council for consideration and direction, all as may be required.

13. City Council also direct that the following matters required to support development be secured in the Section 37 Agreement and Zoning By-law Amendment to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, as a legal convenience:

a. as part of the Site Plan application, City Council direct that the Owner provide a Functional Servicing, Stormwater Management Report, and Hydrogeological Report, acceptable to the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water; should it be determined that improvements or upgrades are required to support the development, according to the Functional Servicing, Stormwater Management Report, and Hydrogeological Report, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services, the Owner shall design and provide financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Functional Servicing, Stormwater Management Report, and a Hydrogeological Report to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

b. as part of the Site Plan application, City Council direct that the Owner provide a Rail Safety and Noise and Vibration Report to the satisfaction of the Chief Planner and Executive Director, City Planning, that is to be peer reviewed at the sole expense of the Owner;

c. City Council direct the Owner provide financial contributions/payments in the form of a letter of credit/certified cheque and/or provide additional documentation for the implementation of a transportation demand management plan, which provisions include, but are not limited to, the following items:

i. a minimum of two car-share parking spaces;

ii. one car-share membership per unit, offered for the first year of occupancy;

iii. one bike-share membership per unit, offered for the first year of occupancy;

iv. one Presto card per unit, pre-loaded with the value of the a monthly pass, offered at the time of occupancy; and

v. a minimum of one bike repair station provided on-site;

d. construction of the non-residential building shall commence immediately upon:

i. commencement of construction of the residential building; and

ii. the Delta Bingo Driveway, as such is generally depicted on the settlement plans, is opened as a public highway or the new public road/lane connection thereon is substantially constructed and public vehicular ingress and egress over it is legally permitted; and

e. as part of the Site Plan application, City Council direct the Owner provide a Wind Study to the satisfaction of the Chief Planner and Executive Director, City Planning, with any required wind mitigation measures in the accepted Wind Study to be implemented at the sole expense of the Owner.

14. City Council accept an on-site parkland dedication pursuant to Section 42 of the Planning Act having a minimum size of 660 square metres, generally as shown on Confidential Appendix B to the report (May 4, 2022) from the City Solicitor, satisfying the Owner's Parkland dedication requirement under Section 42 of the Planning Act, with the exact size, location and configuration of the on-site parkland dedication to be to the satisfaction of the General Manager, Parks, Forestry and Recreation; the on-site parkland dedication to be transferred to the City shall be in an acceptable environmental condition, free and clear, above and below grade, of all easements, encumbrances, and encroachments, and conveyed to the City prior to the issuance of the first above grade building permit on the Development Site.

15. City Council approve a development charge credit against the Parks and Recreation component of the Development Charges for the design and construction by the Owner of the Above Base Park Improvements to the satisfaction of the General Manager, Parks, Forestry and Recreation; the development charge credit shall be in an amount that is the lesser of the cost to the Owner of designing and constructing the Above Base Park Improvements, as approved by the General Manager, Parks, Forestry and Recreation, and the Parks and Recreation component of development charges payable for the development in accordance with the City's Development Charges By-law, as may be amended from time to time.

16. City Council approve the acceptance of on-site parkland dedication, subject to the Owner transferring the parkland to the City free and clear, above and below grade, of all easements, encumbrances, and encroachments, in an acceptable environmental condition.

17. City Council authorize the City Solicitor and any other City Staff to take such actions as necessary to give effect to City Council's decision.

Confidential Appendices A and B to the report (May 4, 2022) from the City Solicitor are now public, the City Solicitor having exercised the City Solicitor's discretion to make them public, and they can be accessed under Background Information (City Council).

The balance of Confidential Attachment 1 to the report (May 4, 2022) 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 Financial Impact section of Confidential Attachment 1 will be made public at the discretion of the City Solicitor.