March 19, 1998 

Standing Committee/Community Council/City Council

To:Toronto Community Council

Head of Department

From:Sylvia N. Watson, Toronto Community Council Solicitor

Subject:Marine Terminal 27 - 25 Queens Quay East - Authorization for Execution of Section 37 Agreement and Update on Site Specific By-law Amendments and Urban Design Guidelines (Ward 24 - Downtown)

 Purpose:

 To obtain authority for the execution of the required Section 37 Agreement respecting 25 Queens Quay East and provide an update on the amendments to By-law No. 1996-0483 recently sent to the Ontario Municipal Board and the proposed Urban Design Guidelines for the Site.

 Funding Sources, Financial Implications and Impact Statement:

 With this development, the City achieves a package of public benefits including waterfront parkland, money for basic park improvements, community services and public art as described in this report and in the site specific by-law.

 Recommendations:

 It is recommended:

 1.That Council approve the terms of the Section 37 Agreement required by By-law No. 1996-0483, as amended, of the former City of Toronto and authorize the appropriate City officials to execute such agreement provided the Toronto Community Council Solicitor, in consultation with the Commissioner of Urban Planning and Development Services and any other appropriate Commissioners, is satisfied both as to its form and that it is substantially as described in her report of March 19, 1998.

 Council Reference/Background/History:

 City Council for the former City of Toronto at its meeting of October 7 and 8, 1996, requested the Acting City Solicitor to report directly to City Council or the Land Use Committee on the terms of the Section 37 Agreement required by Zoning By-law No. 1996-0483 which, as amended, is currently before the Ontario Municipal Board.

 Comments and/or Discussion and/or Justification:

 Further to the settlement discussions between City staff, Avro Quay Limited ("Avro", being the owner of the 25 Queens Quay East Lands to which By-law No. 1996-0483 applies) and Redpath Industries Limited ("Redpath"), an amended By-law No. 1996-0483 has been sent to the Ontario Municipal Board (the "settlement by-law") in accordance with City Council's instructions of October 6 and 7, 1997. Accompanying the by-law was a request that the Board issue its decision on the by-law but withhold the order until such time as the required Three Party Agreement (which secures offsite noise mitigation on the Redpath Lands at 95 Queens Quay East) and the Section 37 Agreement have been executed and registered as first charges against, in the case of the Three Party Agreement - the Avro and the Redpath Lands, and in the case of the Section 37 Agreement - the Avro Lands. The Three Party Agreement has now been settled and was the subject of a report to Council at its meeting of March 4, 5 and 6, 1998.

 The settlement by-law for 25 Queens Quay East (the "Site") requires an agreement under Section 37 of the Planning Act. One of the purposes of this report is to advise Council of the substantive terms of the proposed Section 37 Agreement and to obtain Council authority for the execution of an agreement based on the terms set out herein. While drafting and negotiations continue I am satisfied at this point that we are in a position to put the substantive terms of the proposed agreement before you, subject to the requirement for detailed review and consultation on the final document with the appropriate Commissioners.

 The facilities, services and matters to be secured are set forth in the settlement by-law attached as Appendix I.

 The Section 37 Agreement provisions can be summarised as follows:

 1.Conveyance of Lands for Parks, Dockwall and Parks Improvements

 The Section 37 Agreement requires Avro to convey (and in part sublease or assign the lease with the Toronto Harbour Commissioners) to the City the lands required by the settlement by-law comprising a 25.0 metre wide water's edge promenade identified as Setback Area A on Plan 1A of the By-law and a contiguous area of land of not less than 1 535.0 square metres within the hatched area forming part of Setback Area B on such Plan 1A, for parks purposes.

 The park lands shall be conveyed to the City with the first building permit for the Site for other than a sales pavilion of up to 4 000 square feet, or they may be conveyed to the City incrementally provided a phasing plan is approved by the Commissioner of Community and Neighbourhood Services (Parks) in consultation with the Commissioner of Urban Planning and Development Services as part of the Master Concept Plan, including a requirement for an acceptable utility phasing plan. In addition, following the first conveyance of park lands, each subsequent conveyance must be contiguous to a previously conveyed parcel and each parcel conveyed must be publicly accessible as well as accessible by parks vehicles. No parcel to be conveyed shall be less than 1 200 square metres in size. All of the park lands shall be conveyed to the City no later than 8 years following the date the settlement by-law first comes into full force and effect. An escrow deed or deeds for the park lands will be required to be provided to the City prior to the approval of the Master Concept Plan.

 The owner shall decommission the lands to applicable standards for public park purposes prior to the conveyance, to the satisfaction of the Commissioner of Community and Neighbourhood Services (Parks). The conveyances shall not allow for parking below the park lands.

 A parks levy exemption will be provided for the Site, to the extent of the development permitted by the settlement by-law. The timing for the exemption will be determined as part of the Master Concept Plan.

 Dock Wall:

 The owner must carry out a dockwall study in consultation with the Commissioner of Community and Neighbourhood Services (Parks), by a qualified marine/structural engineer which shall amongst other matters, thoroughly assess the state of the dockwall, identify the location of the structural elements, any limitations on the construction and maintenance of the park, recommend any measures required to ensure its continued existence in a safe and practically maintenance free condition for at least 50 years from the date the park is conveyed. The required restoration work shall be carried out by the owner prior to any park land conveyance. The City will thereafter, subject to warranties, be responsible for the dockwall.

 As the results of the study will inform the Master Concept Plan, the study must be carried out concurrent with or prior to the submission of the Master Concept Plan for approval.

 Park Improvements:

 The owner agrees to pay the City the sum of not less than $107.64 for each square metre of land conveyed to the City for park purposes for the construction of basic park improvements on the lands to be conveyed. Such improvements will be designed and constructed by and under the direction of the Commissioner of Community and Neighbourhood Services (Parks). The monies shall be paid to the City prior to the issuance of the building permit(s). The City shall not be obligated to carry out the park improvements until such time as sufficient land has been conveyed for park purposes.

 2.Construction and Conveyance of Public Street

 The Section 37 Agreement requires the owner to convey to the City in fee simple for public street purposes all of the lands comprising Setback Area B with the exception of the contiguous area of park land addressed above. The street will be an extension of Freeland Street and will include a turnaround area at its southerly terminus and will connect to the parklands to be conveyed to the City. The owner will design and construct the street to City standards and in accordance with the requirements of appropriate City officials. The road will be completed and conveyed prior to the occupancy of the first building on the Site unless the owner satisfies the Commissioner of Works and Emergency Services at the Master Concept Plan stage that the work may be phased or that other timing would be acceptable, in which case the timing of the conveyance will be in accordance with the approved Master Concept Plan. The owner provides a 2 year warranty respecting the road work.

 The owner shall decommission the lands to applicable standards for public road purposes prior to the conveyance to the satisfaction of the Commissioner of Works and Emergency Services.

The owner will reserve a right-of-way over the lands in favour of the abutting lands until such time as the lands are dedicated for public use.

 3.Community Services and Facilities

 Basic Contribution:

 The settlement by-law contains requirements for the owner to provide and maintain on the Site, for a term of 99 years, at nominal rent, free of all operating expenses and municipal taxes, a fully equipped and furnished 33 space non-profit daycare together with 497 square metres of community services and facility use space or at the option of the City an equivalent payment.

 The agreement provides that the basic contribution may be satisfied through the provision of the above-referenced daycare in a location on the Site which is acceptable to the Commissioner of Urban Planning and Development Services or by the payment by the owner to the City of the cash equivalent, the value of which will be determined by agreement between the owner and the City, failing which by arbitration. Any cash payment must be used only towards the provision of community services and facilities within the area bounded by King Street, Bathurst Street, Cherry Street and Lake Ontario. If a cash payment is elected, the standard of the community service and facility shall be that of the St. Lawrence Community Centre, excluding swimming pool.

 The owner shall provide the basic contribution in conjunction with any development of the Site which would cause the aggregate non-residential gross floor area and residential gross floor area to exceed 76 720 square metres (the Threshold).

 The agreement entitles the City to elect to require the owner to construct, finish, furnish and equip the community service and facility space on the Site entirely as a community service and facility use other than a daycare centre.

 The City will lease or own the community service and facility space, at its election, and the City shall be responsible to arrange for an appropriate non-profit daycare provider and for the operation of the daycare and community service and facility use space.

 The agreement will contain a warning clause to ensure purchasers are aware of the ongoing and capital expenses connected with the community service and facility obligations at an early stage and in any event before they purchase any interest in the Site.

The community service and facility space shall be primarily at the ground floor level, in a location acceptable to the City. The location must have a significant amount of frontage on Queens Quay East and the frontage must allow for direct entrance off the street and clear views from the street into the space.

 In the event facilities are provided by the owner or their successors, the ongoing maintenance, repair and operating expenses will be required to be carried by all owners on the Site, not just the building in which such facilities may be located and such obligations shall be included in appropriate condominium documents. In the case of condominiums, these ongoing expenses will be treated as a common expense of all of the condominium units that exist on the Site from time to time. Each condominium corporation shall contribute its pro rata share based on the floor area contained within the particular condominium building and based on annual budgets prepared by the City.

 The capital costs may be secured prior to the issuance of the building permits for each development on the Site.

 Option to Lease Contiguous Space:

 The City may elect to lease up to an additional 1 000 square feet (92.9 sq. m) of contiguous space. The City would pay only nominal rent but would be required to pay its share of expenses.

Bonus Contribution:

 The settlement by-law contains requirements in the event the owner brings forward plans in excess of specified floor area limits, for the owner to provide and maintain for the same term and free of the same expenses as described above a community service and facility use space of not less than 1 300 square metres, including a fully equipped and furnished 52 space non-profit daycare. In the event the bonus contribution is elected, a cash equivalent is not available to the City.

 The owner must advise the City no later than the submission of a site plan application which would result in development on the Site in excess of the Threshold whether the owner intends to provide the Bonus Contribution.

 In the event the owner elects the bonus contribution, the owner shall provide the basic facility as specified above prior to the occupancy of the any floor area on the Site in excess of the Threshold until such time as a development approval is submitted which causes the floor area erected on the Site to exceed 142 616 square metres in aggregate or the non-residential floor area erected on the Site to exceed 71 308 square metres, at which time the Bonus Contribution shall be required to be provided prior to the occupancy of such floor area.

 4. District Heating and Cooling

 The agreement contains provisions for a process for the consideration by the owners of a proposal by the Toronto District Heating Corporation (TDHC) to service the Site with district heating and cooling. At least 3 months prior to making the first site plan application for residential development on the Site, the owner shall provide TDHC with written notice of its intention. The notice shall set out particulars of the proposed development. TDHC shall have 45 days to prepare and submit to the owner a written proposal to service the proposed development with district heating and cooling. The owner agrees to give full consideration to such proposal. The final decision whether to incorporate the TDHC proposal rests with the owner.

 5.Public Art Program

 The owner agrees that one percent of the gross construction costs of each building and structure erected on the Site which comprises a development in excess of 20 000 square metres of floor area shall be paid or contributed in accordance with the City's public art program. Costs related to community service and facility use space or public pedestrian walkways shall not be included in the valuation. A comprehensive public art plan is required to be submitted by the owner for approval by the City in conjunction with the Master Concept Plan. It is expected that a portion of the public art contribution will be deployed in the park.

 6.Master Concept Plan

 The master concept plan required by the settlement by-law is addressed in more detail below. In addition the agreement provides that no application or request for subdivision or severance or conveyance of any part of the Site or request for lifting part lot control shall be made, other than a conveyance of the whole Site, until such time as the Master Concept Plan has been approved by the City.

 7.Noise Mitigation and the Three Party Agreement

 The agreement includes various provisions addressing noise mitigation, the content of which have been reviewed and agreed to by Redpath.

 The owner agrees that land use applications for the Site shall address a number of principles, including the following:

 (i)using the building bulk at the eastern property line as a sound and view barrier,

 (ii)using single loaded corridor with no windows at the eastern property edge,

 (iii)prohibiting openings on the easterly facades at the eastern property edge,

 (iv)special treatment in terms of sound isolation for facades of buildings which may be subject to noise impact from sound sources on the Redpath Lands and which are not fully screened by buildings and which might otherwise place Redpath in non-compliance with the City's Noise By-law or Ministry of the Environment noise guidelines.

 Three Party Agreement:

 The owner agrees to enter into the Three Party Agreement to provide the reimbursement by the owner and the implementation and operation and maintenance by Redpath of the offsite acoustic measures which take place on the Redpath Lands.

 Noise Warning Clause:

 Warning clauses have been agreed to which advise of the nature and operation of the industrial uses on the Redpath Lands and warn of sounds and odours emanating from such lands. It is a condition of any sale or lease that the owner require each purchaser/tenant to acknowledge in writing, with a copy to Redpath, that they have read the noise warning clause and are prepared to accept the noise and release the City and Redpath from liability therefrom and agree not to request the City to prosecute in respect of noise existing on the Redpath lands prior to the date of purchase or lease.

 Prior to entering into any agreement, noise warning clauses are to be provided to prospective purchasers/tenants and the noise warning clause must be posted in sales pavilions on the Site. The owner also agrees to include the noise warning clause in any Condominium Declaration and purchasers are to be advised of the clause in the estoppel certificate. Failure to so warn is a breach of the agreement and may allow purchasers/tenants to void any agreement prior to closing, without penalty, at the option of the purchaser/tenant.

 In addition to noise emanating from the Redpath Lands, the noise warning clause will recognize the existence of the Toronto City Centre Airport and its operational needs.

 Performance Standards:

 The settlement by-law contains provisions requiring that certain openings in buildings be "attenuated" openings in various circumstances. "Attenuated" is defined as an opening complying with sound isolation performance standards described in the Section 37 agreement and they form a schedule in the agreement. Noise and vibration consultant's retained by each of the owner and Redpath have reviewed these schedules and find them acceptable. A noise and vibration consultant was retained on the City's behalf to carry out a peer review of the settlement by-law and approach to noise mitigation set forth in the Section 37 agreement and he was satisfied with the approach being proposed. In addition, staff in the City's Noise Enforcement Section have been involved in the review of these matters, however, by necessity the detailed review of each standard has been carried out by the consultant's retained by the owner and Redpath. Staff have been given to understand that the analysis is quite conservative.

 Phasing:

 The settlement by-law includes phasing provisions which require certain buildings or structures to be constructed before others. The Section 37 Agreement contains a deeming provision which will enable a building permit to issue prior to the completion of a required building or structure provided the Chief Building Official is satisfied that permits for the required building or structure have issued, that construction in accordance with the permit is diligently proceeding and in the case of a required building the elevator core of such building has reached the highest floor level of the building vis a vis the permit; in the case of a required structure the structure has been erected to at least half of the required height and to the full extent of the vertical requirements set out in the by-law.

 Noise Impact and Vibration Statement:

 The owner must submit to the City a satisfactory noise impact and vibration statement prepared by an experienced noise and vibration consultant for each site plan application respecting the possible effects of and on the proposed development of the Site. In addition to the usual requirements, it must contain such recommendations for noise mitigation or for adjustments to the site plan and architectural design as are necessary to comply with the noise control and environmental sound exposure objectives set out in the settlement by-law and the agreement.

 The owner must provide a copy of the statement to Redpath on or before the date it is provided to the City and Redpath will have 45 days within which the agreement provides the City will not approve the statement in order to allow Redpath to provide written comments regarding the statement to the City and the owner.

 The owner agrees that all buildings and structures will be erected in accordance with the approved statement and a noise and vibration consultant will provide a written opinion to the Chief Building Official confirming that all building permit plans submitted have incorporated the noise and vibration abatement measures. That opinion shall also be provided to Redpath at the time an application for building permit is submitted to the City, together with a copy of the plans submitted and confirmation to the City that Redpath has been provided with such material.

The agreement provides that the City will not issue a permit within a 45 day period to allow Redpath to provide written comments to such official and the owner.

 The owner agrees to provide, maintain and operate the stipulated noise impact measures, except the offsite measures which are governed by the Three Party Agreement. On completion of each building and prior to the occupancy of each building on the Site, the owner shall have a qualified and experienced noise and vibration consultant provide an opinion in writing to the City that the development has been designed and constructed in accordance with the approved statement.

 The owner agrees to indemnify and release the City regarding any claims arising out of the adjacency of the residential uses on the Site to the industrial uses on the Redpath Lands and the noises emanating therefrom.

 8.Low End of Market Housing and Housing Suitable for Families with Children

 The owner agrees to provide at least 30 percent of the units to be constructed on the Site as low-end of market housing and at least 25 per cent of the units to be constructed on the Site shall contain at least 2 bedrooms. These requirements need not be met on a building by building basis.

 9.Other Collateral Matters

The owner shall submit and implement satisfactory studies related to traffic, wind mitigation, sunlight conditions, soil remediation and air quality at the time of each site plan application to the City.

 Update on Settlement By-law Amendments:

 Zoning By-law No. 1996-0483, as enacted by the former City of Toronto Council, contained a number of noise mitigation measures intended to buffer the industrial uses at Redpath from new residential development on the Site. The by-law was part of a multifaceted package of measures which represented a unique approach to locating these two uses side by side. These measures included the following:

 (a)mitigation of high level noises at-source on the Redpath Lands through funds provided by Avro, the implementation of which was secured through a Three Party Agreement between the City, Redpath and Avro,

 (b)construction of a 12 metre high wall or building for the eastern edge of the Site prior to any building permit being issued,

 (c)provision of a build-to building on the eastern edge of the Site which would orient the development away from Redpath and provide further noise mitigation and restrict views,

 (d)establishment of noise control zones on the Site, in order to control the level and extent of views into Redpaths property, based on proximity to Redpath and the height of the individual unit,

 (e)phasing of buildings to ensure that the build-to building is built at an early stage,

 (f)noise impact statements to be prepared at the time of site plan control, and

 (g)warning clauses to inform potential owners or tenants of the level of noise produced by Redpath.

 At the same time, the City took the step of appealing its own newly enacted site specific by-law for the Site, because the required Three Party and Section 37 Agreements had not been agreed to or executed nor had Redpath agreed to mitigate noise emanating from its lands. The school boards also appealed, since the adoption of the by-law by Council, in the absence of accompanying agreements, left them with no other way to secure their education levies. Redpath also appealed the by-law as it was not satisfied with the noise mitigation approach reflected in the by-law.

 In June 1997, it became apparent that Avro and Redpath were attempting to achieve a settlement. City staff became officially involved in that process in August 1997. Staff informed Council of the potential settlement and at its meeting of October 6 and 7, 1997, Council adopted a recommendation that

 "the Commissioner of Urban Development Services and the City Solicitor be instructed to make amendments to the Council approved zoning by-law for MT 27 at the Ontario Municipal Board, arising from the settlement discussions between Avro and Redpath, for the purposes of settling the outstanding matters, if they are substantially in accordance with the approved zoning by-law and represent good planning."

 At the Ontario Municipal Board hearing in November 1997, staff of Urban Development Services provided evidence in support of a draft by-law that had developed through the negotiation process and which they felt was substantially in accordance with By-law No. 1996-0483 and represented good planning. Due to the need to finalize certain noise-related details of the new by-law, the related noise provisions for the Section 37 Agreement and Three-Party Agreement were not finalized at that time. The settlement by-law was sent to the Ontario Municipal Board on March 2, 1998 with a request for the Board to issue a decision but to withhold its order until such time as the required Section 37 and Three Party Agreements are completed and registered as first charges against the Avro Lands in the case of the former agreement and the Avro and Redpath Lands in the case of the latter agreement, and until such time as the School Board agreements are registered next in priority.

 I am advised by the Commissioner of Urban Planning and Development Services that City planning staff are satisfied that the settlement by-law is in accordance with the Official Plan provisions for the Site and represents the evolution of an approach set out in the Council enacted by-law. No amendments have been made to the density, composition of uses or ultimate built form envelope established over the past few years. Further, there has been no loss of any of the benefits that were negotiated during the earlier stages of the project. The changes to the by-law are intended to reduce the possibility of noise complaints from residents on the Site. This has resulted in a reduced level of tolerance for views into and noise from Redpath. Specifically, views into the Redpath Lands for its length and to a height of six metres are now restricted. Levels of noise attenuation are now specifically prescribed by the by-law by reference to the Section 37 Agreement which contains the detailed standards. Performance standards for any particular wall or opening with respect to noise are now known at the by-law stage.

 While the settlement by-law goes further than the enacted by-law in restricting the building footprints, City planning staff have informed me they believe that it is the prerogative of the owner of the Site, Avro Quay Limited, to bind itself to a greater level of restriction if it chooses. The settlement by-law provides for greater certainty with proscribed building footprints for the eastern portion of the Site, and somewhat looser restrictions for the western portion. Nevertheless, the development permitted by this amended by-law could have been built within the previous by-law regime, and City planning staff believe it represents one of the most preferable site plan variations.

 In addition:

 (a)the loss of an exterior connection at the eastern edge of the Site has been replaced with a through-block connection through the north-east building, along with securing a public, rather than a potentially private, street providing access into the Site and to the adjacent proposed public parklands;

 (b)certain blinder walls and ledges that obscure views of Redpath from the development will protrude into the public park and setback area. However, each of these has been examined to ensure that they begin as far above grade as possible and have no impact on free movement of pedestrians; and

 (c)a 12 metre high wall, as opposed to one of 6 metres is to be constructed to the waters edge and Urban Design Guidelines will require that this wall be treated as a part of the park and a distinct feature of the park. Acoustical studies indicated that it was possible to remove the wall found in the north-east corner of the property and this is reflected in the settlement by-law.

 The settlement by-law requires a Master Concept Plan for the Site be approved prior to the first application for site plan approval and defines it as "a comprehensive set of plans prepared and submitted by the owners of the site, to the satisfaction of the City, which sets forth the phasing of development, the phasing of the parklands conveyance, the provision and phasing of pedestrian and vehicular access to and within the site, including main entrances to buildings, the location of all loading facilities, the location and extent of community service and facility use space, the provision of a comprehensive public art plan and the provision and phasing of landscaping treatment for outdoor areas within the site".

 The Master Concept Plan stage is included in this development, and secured through the Section 37 Agreement, as a way to ensure that overall site design has been coordinated amongst the different owners and developers of the Site and that the public benefits are achieved and delivered in an organized and timely manner. Because it is anticipated that site development will be phased on a yet unknown schedule, the Master Concept Plan will ensure that adequate public access to any portion of the completed water's edge park is provided and secured throughout the development of the Site.

 Lastly, planning staff advise that the work involved in settling the by-law has resulted in a number of unexpected benefits to the City. Certain of the acoustical studies that would have had to be done at a later stage, are now complete. We also have the commitment from Redpath that within 9 months of the approval of the by-law by the Ontario Municipal Board, the at-source mitigation at Redpath will be complete, removing a significant level of uncertainty for all parties. And because building envelopes have been established, urban design guidelines have been developed that are more sensitive to the actual built form.

 Urban Design Guidelines for Marine Terminal 27:

 Section 14.32 of the Official Plan specifically requires urban design guidelines be prepared to illustrate and describe urban design concepts for the Site, to provide a context for coordinated incremental development, to assist Council in the appropriate zoning regulations for the Site and for evaluating development applications for review under Sections 34 and 41 of the Planning Act.

 The urban design guidelines for this Site have been prepared by City planning staff and agreed to by Avro, and will form a schedule to the Section 37 Agreement. While they are intended to address the development specifically at 25 Queens Quay East, I am advised planning staff expect that similar guidelines would be developed for the adjacent Torstar site at 7 Queens Quay East.

 Planning staff have indicated the urban design guidelines are based on the model set out in the Urban Design Handbook of the former City of Toronto, consistent with the policies of Section 3 of the Official Plan, and follow the format for urban design guidelines implemented in other complex and high profile development areas like Harbourfront and the Railway Lands.

 One aspect of these guidelines which sets them apart from others produced by the City, is the fact that they address the site specific noise buffering features that are required on the Site by the settlement by-law, including the buffer wall/building complex on the eastern property edge, and the intrusion of architectural features into the air space above the required setbacks. In all cases, the guidelines require that the design of these components be carefully integrated as a part of the public space and architecture of the Site.

 A copy of the Guidelines will be available at the City Council meeting.

 Conclusions:

 We expect to be in a position shortly to finalize the Section 37 Agreement. To-date most of the provisions have been substantially agreed upon such that I am prepared to recommend Council to authorize the execution of the Section 37 Agreement provided I am satisfied it is substantially as described above and subject to consultation with the appropriate Commissioners.

  Contact Name:

 Sharon Haniford, Solicitor

Telephone:(416)392-6975

Fax:(416)392-0024

E-Mail: shanifor@city.toronto.on.ca

 Signature of Department Head

Title

   Sylvia N. Watson

Toronto Community Council Solicitor

Full Document Name (e.g. P:\1998\UG\CPS\LEG\CN980001.LEG)

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