Encroachment Agreement for Shoring

Caissons, Lagging and Tie-Backs at

40 College Street - (Ward 24 - Downtown)

The Corporate Services Committee recommends the adoption of the following report (July8, 1998) from the Commissioner of Corporate Services:

Purpose:

To enter into an Encroachment Agreement with Bay-College Holdings Inc. at 40 College Street, as per the attached location and site maps.

Funding Sources, Financial Implications and Impact Statement:

This agreement will generate revenue of approximately $8,828.00 net.

Recommendations:

It is recommended that:

(1)the City of Toronto enter into an Encroachment Agreement with Bay-College Holdings Inc. on the terms and conditions outlined in this report and in a form acceptable to the City Solicitor; and

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

Council Reference/Background/History:

Bay-College Holdings Inc. is constructing a condominium building at 801 Bay Street and needs to

permanently encroach on City of Toronto land located to the north at 40 College Street which is occupied by the Toronto Police Services. The purpose of the encroachment is to place portions of shoring caissons, wooden lagging between the caissons, and tie-backs to enable the development to be built out to the lot line.

Bay-College Holdings Inc. received a building permit to begin removing the foundation of the former building at 801 Bay Street and urgently requested permission to encroach upon the City of Toronto lands along the adjacent northerly boundary of 801 Bay Street and to temporarily excavate a portion of the soil next to the easterly lot limit.

To accommodate this request, Bay-College Holdings Inc. through their agent, Mr. Ivan Fleishmann, executed an Indemnity Agreement, which includes a clause that requires Bay-College Holdings Inc. to enter into an encroachment agreement with the City on the following terms and conditions:

(1)(a)Encroachment:

part of Part 1, Reference Plan 63R-3325 on the attached sketch and containing approximately 265 square feet, referred to as the "Encroachment Lands"; and

(b) Excavation:

part of Part 1, Reference Plan 63R-3325 on the attached sketch.

(2)Encroachment Term:

Until such time as Bay-College Holdings or their successor(s), or the City of Toronto redevelop their respective properties.

(3)Commencement Date:

The commencement date shall be June 22, 1998.

(4)Encroachment Fee:

(a)$8,828.00 to be paid upon execution of this proposal plus all applicable taxes:

Land Rental-$2,328.00

Incremental Cost-$5,000.00

Consultant Fee-$1,500.00

$8,828.00

(b)any additional costs related to having a qualified engineer on site to inspect the excavation.

(5)BCH shall not be granted permission to enter the licensed property for the purpose of commencing construction until it has executed a release, waiver and indemnity agreement in a form satisfactory to the City of Toronto Solicitor.

(6)Use:

(a)the installation of shoring caissons, tiebacks, and lagging in connection with the construction of the adjacent condominium development at 801 Bay Street, as shown on shoring drawings SH1, SH2, SH3, and SH4, prepared by RWB Engineering Ltd.

For Job No. 98B107 dated April 17, 1998 or their approved revisions. It is expressly understood that the lagging caissons or tiebacks will not be connected or attached to any part of the City's development at 40 College Street.

(7)Insurance:

BCH, at its sole expense, shall obtain adequate insurance of all types in an amount and form satisfactory to the City of Toronto Solicitor and/or the Commissioner of Finance, with the City of Toronto shown as additional insured and with Cross Liability and Waiver of Subrogation clauses.

(8)Indemnities:

(a)BCH shall, at all times, indemnify and save harmless the City of Toronto from and against any and all manner of claims, demand, losses, costs, charges, actions and other proceedings whatsoever (including those under or in connection with the Worker's Compensation Act or any successor legislation) made or brought against, suffered by or imposed on the City of Toronto or its property in respect of any loss, damage or injury (including fatal injury) to any person or property (including without restriction, employees, agents and property of the City of Toronto or of BCH) directly or indirectly arising out of, resulting from or sustained as a result of BCH's occupation or use of, or any operation in connection with the Encroachment Lands or any wiring, devices, equipment, fixture or chattels thereon; and

(b)BCH 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, 1983, or any successor legislation in connection with any work done for BCH at or on the Encroachment Lands, and shall promptly see to the removal from the registered title to the Encroachment Lands, of every claim for lien and certificate of action having to do with such work.

(9)BCH shall, at its own expense:

(a)obtain all necessary permits and approval required by law;

(b)locate and identify all underground services and structures and take all precautions necessary to ensure they are not damaged;

(c)restore to their prior condition the city's lands affected by the contractor's construction in an expeditious manner to the satisfaction of the Commissioner of Corporate Services; such restoration to occur immediately upon completion of the adjacent development at 801 Bay Street;

(d)provide as-built drawings showing the location of the shoring caissons and lagging and shall reimburse the City of Toronto for its reasonable incremental costs directly or indirectly incurred as a result of the removal of such shoring caissons;

(e)prior to the commencement of work and if necessary, prior to any amendments, submit detailed plans and specifications of all installation and/or construction on the Encroachment Lands and the exact location within the Encroachment Lands for the approval of the Commissioner of Corporate Services;

(f)backfill the outside of the said piling and shoring (on the Encroachment Lands) with granular material; see Clause 10 (b), if required;

(g)fill all voids with granular material, if required;

(h)stop the excavation if there is a vertical or horizontal movement of shoring caissons;

(I)perform the construction in a good and worker-like manner in accordance with accepted engineering procedures and standards and with safe and efficient construction methods similar to the work being done in the adjoining road allowances; and

(j)provide letters of incorporation for Bay-College Holdings Inc.;

(10)(a)any deviation or modification from the plans approved by the Facilities Management Branch of Corporate Services Department must be resubmitted for further approval;

(b)that shoring caissons encroaching on the Encroachment Lands shall be cut down to a depth of 2.4 metres and the excavation shall then be backfilled with granular material and compacted at not less than 95 percent of the minimum density of the materials as determined by the modified Proctor method; and

(c)BCH will grant the City of Toronto a consent to enter upon BCH's lands at any time in the future to facilitate the removal of the caissons and shoring or any future use of the caissons and shoring in connection with any future redevelopment of the City of Toronto's lands and BCH will pay the cost of registering this consent on the title to BCH's property;

(11)during the term of the license and any extension, renewal or option to extend thereof, BCH, at its sole expense, shall be responsible for compliance with all current Municipal, Provincial and Federal laws, by-laws, rules, building code(s) and regulations and shall obtain all necessary permits and licenses that may be required for the use of the Encroachment Lands and its operation and shall save the City of Toronto harmless from any liability or cost suffered by BCH or the City of Toronto as a result of BCH's failure to so comply. At the

request of the City of Toronto, BCH shall be required to submit proof of such compliances. More specifically, BCH shall not commence work or operation without receipt of permits, licenses or approvals from proper authorities.

(12)BCH shall not be permitted to install, erect any fence(s), sign(s) structure(s) and/or fixture(s) on the Encroachment Lands without prior written approval of the Commissioner of Corporate Services.

(13)BCH shall not make any changes in surfacing, grading, landscaping to the Encroachment Lands or remove tree(s) without the prior written approval of the Commissioner of Corporate Services.

(14)BCH shall not store or permit to be stored or use any hazardous materials at the Encroachment Lands, or conduct any act which may cause soil contamination.

(15)BCH shall protect all public works' services and/or utilities easement(s) that may encumber the property, and shall be liable for any damage to such by its action(s) or omission(s).

(16)BCH shall, at its expense, keep the Encroachment Lands in a clean and well-ordered condition, and not to permit any rubbish, refuse, debris or other objectionable material to be stored, or to accumulate, thereon.

(17)BCH shall ensure that nothing is done or kept at or on the Encroachment Lands which is or may be a nuisance, or which causes disturbance, damage to or interference with normal usage of any adjoining property.

(18)BCH, shall not install any equipment or carry on any operation at the Encroachment Lands in such way as to increase the insurance risk.

(19)All documentation shall be in the City of Toronto's standard form and notwithstanding any terms and conditions contained or not contained in this proposal, shall be in a form and content mutually satisfactory to the City of Toronto Solicitor and the Legal Counsel for Bay-College Holdings Inc.

Comments and/or Discussion and/or Justification:

Using adjacent properties to place tie-backs and shoring caissons is a common construction practice in downtown Toronto that allows developers to construct to the lot line.

Conclusion:

The Indemnification Agreement fully protects the interests of the City of Toronto and I have been advised that the encroachment is acceptable to the City of Toronto's Facilities Section.

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 (cs98133.wpd)

(A copy of the maps attached to the foregoing report was forwarded to all Members of Council with the July 20, 1998, agenda of the Corporate Services Committee, and a copy thereof is also on file in the office of the City Clerk.)