August 27, 1998

To:Corporate Services Committee

From:Commissioner of Corporate Services Department

Subject:Licence Agreement - Encroachment on Road Allowance

In Front of 35-65 Weston Road

(Ward No. 21 - Davenport)

Purpose:

For authority to enter into a Licence Agreement for encroachment use of road allowance for parking and commercial purposes, as per attached location and site plans.

Funding Sources, Financial Implications and Impact Statement:

The licence will generate a total income of $80,000.00, net, for the whole term of ten (10) years.

Recommendations:

It is recommended that:

(1)authority be granted to enter into a Licence Agreement with Keele - St. Clair Limited Partnership, by its general partner, 1262425 Ontario Inc., to encroach on the subject lands for parking and commercial purposes, based on the terms and conditions set out in this report, and in a form acceptable to the City Solicitor; and

(2)the appropriate City of Toronto Officials be authorized and directed to take the necessary action to give effect thereto.

Council Reference/Background/History:

Keele - St. Clair Limited Partnership, by its general partner, 1262425 Ontario Inc., has proposed to enter into a Licence Agreement with the City for an encroachment on road allowance for parking and commercial purposes in front of 35-65 Weston Road. This is due to the development of the Westclair Centre, which will be a new retail/commercial centre at the north-east corner of St. Clair Avenue West and Keele Street/Weston Road. The encroachment area is estimated to be approximately 1,100 square metres (11,840.69 square feet).

Comments and/or Discussion and/or Justification:

Following negotiations with Mr. Mark B. Cairns, President of Imland Corporation, at 155 University Avenue, Suite 1240, Toronto, ON M5H 3B7, a partner of Keele - St. Clair Limited Partnership, by its general partner, 1262425 Ontario Inc., an agreement has been reached on the following terms and conditions:

1.Location:

Road allowance on the east side of Weston Road in front of 35-65 Weston Road, Toronto.

2.Licensed Area:

Approximately 1,100 square metres (11,840.69 square feet), as highlighted in yellow on the attached plan.

3.Term:

Ten (10) years, reviewable every five (5) years, the date of commencement to be determined upon commencement of the encroachment use or completion of the Westclair Centre, whichever is earlier.

4.Licence Fee:

(1)year 1 to year 5 -$8,000.00 per annum, net, payable annually in advance, plus all applicable taxes and assessments of every kind whatsoever of any amounts in lieu thereof and any cost related to the Licensed Area; and

(2)year 6 to year 10 -to be reviewed, but at not less than the amount for the first five years.

5.Damage Deposit:

(i)The Licensee agrees to pay a damage deposit of $5,000.00 either by certified cheque or letter of credit from a major bank with no interest payable to the Licensee on the deposit; and

(ii)To be returned to the Licensee without interest at the expiry of the Term or any renewal or extension thereof provided that the Licensed Area is left in a condition satisfactory to the Commissioner of Works and Emergency Services, Transportation Services Division, failing which the deposit shall be used for the purpose of such clean up and repair to any damage.

6.Option to Renew:

The Licensee shall have an option to renew for a further term of ten (10) years, reviewable every five (5) years, on the same terms and conditions as herein provided, save and except for the licence fee which will be re-negotiated, and subject to the Works and Emergency Services, Transportation Services Division having no requirement of the Licensed Area by then.

7.The Licensee shall use the Licensed Area for car parking, commercial uses as circulation and open spaces, and landscaping only.

8.The Licensed Area should not be used for calculation of the gross floor area or density for the development of the Westclair Centre.

9.The Licensee shall not assign or sublet without the prior written consent of the Commissioner of Works and Emergency Services, Transportation Services Division, which consent shall not be arbitrarily or unreasonably withheld.

10.The Licensee shall, at its own expense, provide landscaping to the west portion of the Licensed Area as specified by and to the unfettered satisfaction of the Commissioner of Works and Emergency Services, Transportation Services Division.

11.The Licensee shall pay all charges (including penalties) for utilities supplied to the Licensed Area directly to the supplier thereof.

12.If the Licensee holds over after the expiration of the Term, prior written consent has to be obtained from the City of Toronto and the Licensee shall only be a monthly licensee on the same terms and conditions as provided herein.

13.If the Licensee holds over after the expiry of the Term without the prior written consent of the City of Toronto, the Licensee shall pay double the amount of the license fee set out in paragraph (4) hereto.

14.The Licensee shall, at its own expense and in the name of the Licensee and the City of Toronto, maintain in force insurance coverage with respect to the Licensed Area and its use and occupation and shall provide the City of Toronto with certificate(s) of policy of an insurance company for:

(i)inclusive coverage for legal liability for bodily injury, death, property damage in the amount of not less than $3,000,000.00 per occurrence; and

(ii)insurance against loss by such insurable hazards.

Every policy of insurance shall provide cross-liability coverage together with a waiver of subrogation in favour of the City of Toronto.

15.(i)The Licensee shall, at all times, indemnify and save harmless the City of Toronto from and against any and all manner of claims, demands, losses, costs, charges, actions and other proceedings whatsoever, including those under or in connection with the Workplace Safety and Insurance Act, made or brought against, suffered by or imposed on the City of Toronto or its property in respect of any loss, damage or injury to any person or property (including, without restriction, employees, agents and property of the Licensee or of the City of Toronto) directly or indirectly arising out of, resulting from or sustained as a result of the Licensee's occupation or use of, or any operation in connection with the Licensed Area or any fixtures or chattels thereon, save and except for such damage or injury which is caused or contributed to the Licensed Area as a result of willful misconduct or gross negligence of any employee or agents of the City of Toronto; and

(ii)The Licensee shall, at all times, indemnify and save harmless the City of Toronto from and against any and all claims, demands, losses, costs, charges, actions and other proceedings whatsoever under the Construction Lien Act in connection with any work done for the Licensee at or on the Licensed Area and shall promptly see to the removal from the registered title to the Licensed Area of every claim for lien and certificate of action having to do with such work.

16.The Licensee, shall, at its own expense, be responsible for compliance with all Municipal, Provincial and Federal laws, including, without limitation, the Environmental Protection Act and other environmental legislations, permits, rules and regulations and shall obtain all the necessary permits and licenses that may be required for the use of the Licensed Area and shall save the City of Toronto harmless from any Licensee's failure to so comply.

17.The Licensee shall accept the Licensed Area in its existing condition and shall be responsible, at its own expense, for all repairs and maintenance.

18.The Licensee shall, at its own expense, ensure that no ashes, refuse, garbage or other loose objectionable materials will accumulate on the Licensed Area and to keep the Licensed Area clean and tidy.

19.The Licensee shall not make additions and alteration to the Licensed Area including surfacing, grading or landscaping to the Licensed Area without the prior written consent of the Commissioner of Works and Emergency Services, Transportation Services Division.

20.The Licensee shall not install, erect or remove any fence(s), sign(s), structure(s) and fixture(s) on the Licensed Area without the prior written consent of the Commissioner of Works and Emergency Services, Transportation Services Division.

21.No storage or use of hazardous materials or environmentally sensitive materials will be permitted in respect of the Licensed Area.

22.The Licensee shall, at its own expense, maintain the landscaping and cut the grass on and surrounding the Licensed Area to the reasonable satisfaction of the Commissioner of Works and Emergency Services, Transportation Services Division.

23.The Licensee shall, at its own expense, keep the Licensed Area and sidewalks in and around the Licensed Area free and clear of obstructions and in the case of sidewalks, to keep them free and clear at all times of snow and ice, and it is acknowledged and agreed that the Licensee will retain snow removal contractor for the purposes of maintaining the Licensed Area in such condition.

24.The Licensee shall protect all services of public works and/or utilities easement(s) that may encumber the Licensed Area and shall be liable for any damage to such by its action(s) or omission(s).

25.The Licensee shall not install any equipment or carry on any operation on the Licensed Area in such a way as to materially or unduly increase the insurance risk.

26.The Licensee shall ensure that nothing is done or kept at or on the Licensed Area which is or may be a nuisance, or which will cause disturbance or interfere with the users or occupants of any neighbouring property, or which in the opinion of the Commissioner of Works and Emergency Services, Transportation Services Division, acting reasonably, may cause damage to the Licensed Area or any neighbouring property.

27.(i)The City of Toronto and any of its employees, agents and contractors shall have the right, on at least twenty-four (24) hours' advance notice to the Licensee, or in the case of emergency or pressing urgency without advance notice, provided that the Licensee is notified thereof as soon as may be convenient thereafter, to enter on the Licensed Area for the purpose of maintenance, repair or construction with or without all the necessary gear and equipment as the Commissioner of Works and Emergency Services, Transportation Services Division deems necessary, and the Licensee hereby authorizes such entry and acknowledges that the Commissioner of Works and Emergency Services, Transportation Services Division shall be the sole judge of any emergency or pressing urgency as aforesaid; and

(ii)The Licensee shall ensure that once any notice of entry is given to the Licensee, the Licensed Area is cleared of all persons and vehicles during the performance of the work therein referred to, other than as authorized by the Commissioner of Works and Emergency Services, Transportation Services Division.

28.At the termination of the licence, the Licensee shall, at its own expense, remove any fixtures and chattels belonging to the Licensee, including equipment(s), fixture(s), attachment(s), apparatus(es), appliance(s), structure(s) and debris, and repair all damages caused by such removal and by its use and occupation of the Licensed Area expeditiously, and to the satisfaction of the Commissioner of Works and Emergency Services, Transportation Services Division.

29.Upon acceptance of this proposal, the Licensee shall provide the City of Toronto proof of its proper legal name. If the Licensee is a corporation, such proof shall include a copy of the corporation's Articles of Incorporation and/or Articles of Amendment, if any.

30.Notwithstanding any clause contained or not contained in the proposal, the Licence Agreement shall be in a form and content acceptable to the City of Toronto Solicitor and the Licensee's Solicitor.

Conclusion:

In my opinion, these terms are fair and reasonable, and I have been advised that they are acceptable to the Works and Emergency Services Department, Transportation Services Division.

Contact Name:

Mr. Tony Pittiglio, Manager of Property Services; Telephone No. (416) 392-8155; Fax No. (416) 392-4828; E-mail address: anthony_pittiglio@metrodesk.metrotor.on.ca (cs98168.wpd)

Margaret Rodrigues

Commissioner of Corporate Services

FVC/KK/wvm

Attachs.