5095 Yonge Street - North York Centre

Encroachment - Menkes Developments Inc. - UDSP-96-035 and UDOZ-96-04 - 5095 Yonge Street - North York Centre (City Council on July 4, 5 and 6, 2000, adopted this Clause, without amendment.) The North York Community Council recommends the adoption of the following report (June 6, 2000) from the Director, Engineering Services, Works and Emergency Services, subject to an appropriate rental rate for the subject encroachments: Purpose: The purpose of this report is to consider a request by the applicant to permit various encroachments within the boulevard portion of the road allowances of Empress Avenue and Yonge Street. Financial Implications and Impact Statement: No financial implications Recommendations: It is recommended that: (1) the encroachments be approved by the City, subject to the condition that the Owner(s) enter into an encroachment agreement with the City, with terms as stated in the body of this report and to the satisfaction of the Commissioner of Works & Emergency Services and the City Solicitor. (2) the appropriate City officials be authorized and directed to take the necessary action to give effect thereto. Background: The Empress Walk Development site at 5095 Yonge Street was subject to a development agreement with Menkes Developments Inc., executed on April 17, 1997. The retail/entertainment component of the development opened in November, 1999 and the condominium apartment component commenced occupancy in May, 2000. The development site contains various encroachments described as follows: (i) Decorative Planter System within the Empress Avenue Road Allowance A condition of the development agreement and a former City of North York Council Policy, states that the Owner shall pay for the installation of the Standard Yonge Centre boulevard treatment across the site frontages as per approved streetscaping plans. The City approved the streetscaping plan for the boulevard treatment on September 9, 1999. The streetscape work on the Yonge Street frontage was substantially constructed as per approved plans. It permitted the opening of retail operations of Empress Walk on the Yonge Street frontage in November 1999. The completion of the streetscaping treatment, including tree planters on the Yonge Street frontage are now completed. After the initial approval of the streetscaping plans, the applicant requested revisions to the streetscaping in order to allow barrier free access to two retail stores, along Empress Avenue. However, this was not achievable, due to significant grade differences, up to 1.1m, between the building ground floor elevations and Empress Avenue boulevard elevations. Solutions to provide barrier free access to the retail component within private property and within the building structure were examined. However, the developer indicated that such access could not reasonably be provided. As the building abuts the property line (zero setback), Menkes Developments Inc., then proposed a step and ramp encroachment within the Empress Avenue right-of-way, which was not acceptable to the City. Another proposal which was considered but found unacceptable by the City, involved closing the portion of road allowance with the proposed steps and ramps and selling that road allowance portion to the developer. Finally, an aesthetically pleasing planter wall system, which provided barrier-free access to the retail component and a 3.0m sidewalk for pedestrian travel was considered. The revised streetscape proposal along Empress Avenue frontage includes a decorative concrete planter system with landscaping, such as trees and plantings. The utility agencies have no objections to the proposed planter system in the Empress Avenue boulevard. The decorative planter system is a non-standard boulevard treatment and would still be considered an encroachment. Works & Emergency Services has now reviewed the proposal, along with input from Policy and Development Division (Economic Development, Culture and Tourism Development), and the Landscape and Streetscape Improvement Section (Works & Emergency Services), Traffic Planning Right-Of-Way Management Section (W.E.S.) and have found it acceptable. (ii) Decorative Lighting on the Yonge Street Boulevard Trees The decorative lighting on the Yonge Street boulevard trees is a non-standard boulevard treatment which has been approved previously at various locations throughout the City. The encroachment agreement would cover the installation and maintenance of the decorative lighting. (iii) Metal Cornice over the Main Entrance to 5095 Yonge Street on Yonge Street The cornice is an architectural feature of the building and has been approved through the Site Plan Process. The former Metro Transportation Department started processing the encroachment agreement but could not complete due to the amalgamation activities. The City has no objections to this encroachment and therefore, the encroachment should now be formalized. (iv) Concrete Cornice over the Entrance to 5095 Yonge Street at the Southeast Corner of Yonge Street and Empress Avenue The cornice is an architectural feature of the building and has been approved through the Site Plan Process. The former Metro Transportation Department started processing the encroachment agreement but could not complete due to the amalgamation activities. The City has no objections to this encroachment and therefore, the encroachment should now be formalized. (v) Canopy over the Entrance to 5095 Yonge Street on Empress Avenue The canopy is an architectural feature of the building and has been approved through the Site Plan Process. The former Metro Transportation Department started processing the encroachment agreement but could not complete due to the amalgamation activities. The City has no objections to this encroachment and therefore, the encroachment should now be formalized. In accordance with the former City of North York Policy, subject to the approval of Council, these encroachments may be accepted provided that: (1) all encroachments be subject to a legal agreement being entered into between the City and the Owner of the property abutting the encroachment, (2) such agreement be to the satisfaction of the City Solicitor and the Commissioner of Works & Emergency Services and be registered on the title of the property abutting the encroachment, (3) a suitable survey drawing of the lands involved, prepared by an Ontario Land Surveyor, showing the location of the encroachment, its dimensions and areas, and any significant features or fences pertinent to the encroachment, and satisfactory to the Commissioner of Works & Emergency Services, is provided by the owner and at his/her expense, to delineate the encroachment and such plan shall form part of the agreement, (4) the owner provide confirmation letters from the utility companies that they have no objection to the encroachments prior to entering into the encroachment agreement, (5) the terms of the encroachment agreement are to include but not limited to the following: (a) the life of the Agreement to be limited to 10 years (from the date of the registration on title of the Agreement) or to the date of the removal of the encroachment or to the date of the demolition of the building, whichever is the lesser; at which time the City may consider the Agreement for further extension if requested by the applicant; (b) the encroachment permitted by the Agreement to be removed by the owner at the expense of the owner within 30 days of receiving written notice from the Commissioner of Works & Emergency Services if, in the opinion of the Commissioner of Works & Emergency Services, such removal is necessary including, but not limited to, the installation, servicing or maintenance of municipal services or such other reason as is stated including the installation, servicing and maintenance of utilities (natural gas, electrical energy or telephone services). On expiry of the Agreement, the encroachment shall be removed at the expense of the owner. If encroachment removal is not being done as directed by the Commissioner of Works & Emergency Services, the removal may be done by the City at the expense of the owner and the City may recover the expense incurred in doing the removal in a like manner as municipal real property taxes; (c) indemnification of the City by the owner of the encroachment for all liability relating in any way to the encroachment and providing of insurance policy for such liability for the lifetime of the Agreement, in a form as approved by the City Solicitor, in an amount not less than $2,000,000.00, or such greater amount as the City Solicitor may require; (d) in the event of sale or transfer of the property abutting the encroachment, the Legal Department be authorized to extend the Encroachment Agreement to the new owner, subject to the approval of the Commissioner of Works & Emergency Services; (e) the owner will, at its expense and to the satisfaction of the Commissioner of Works & Emergency Services, keep and maintain the encroachment in a good and proper state of repair and safety and will not make any additions or modifications to the encroachment beyond what is allowed under the terms of the Agreement; (f) the owner receives approvals from Ontario Hydro for the decorative lighting installation; (g) the owner register the lighting installation within the Yonge Street boulevard with Ontario One-Call (utility locate service); (h) the owner satisfactorily maintain the approved trees and plantings within the planter wall system and the decorative lighting. (6) The owner pay a one-time

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