Report to/Rapport au:
Comité de l'urbanisme
and Council
/ et au Conseil
8 November 2011 / le 8 novembre 2011
Submitted by/Soumis par: Kent
Kirkpatrick, City Manager / Directeur municipal
Contact Person/Personne ressource :
Gordon MacNair, Director, Real Estate Partnerships and Development
Office/Directeur, Partenariats et Développement en immobilier
(613)
580-2424 x 21217, Gordon.MacNair@Ottawa.ca
Somerset
(14) |
Ref N°:
ACS2011-CMR-REP-0034 |
SUBJECT: |
150 ELGIN - AMENDMENTS TO
AGREEMENTS - MORGUARD ELGIN LIMITED |
|
|
OBJET : |
150, RUE ELGIN – MODIFICATIONS DES ENTENTES –
MORGUARD ELGIN LIMITED |
REPORT RECOMMENDATIONS
That the Planning Committee recommend Council:
1. Approve amendments
to the Development, Parking and Non-Merger Agreements between the City and
Morguard Elgin Limited dated 21 December 2005 as described in this report and further
outlined in Document 1;
2. Delegate authority to the City Manager to finalize and
execute amended Development, Parking and Non-Merger Agreements with Morguard
Elgin Limited.
RECOMMANDATIONS
DU RAPPORT
Que le Comité de l'urbanisme recommande
au Conseil :
1. d’approuver les modifications aux ententes d’aménagement, de
stationnement et de non fusionnement entre la Ville et Morguard Elgin Limitée,
en date du 21 décembre 2005, telles qu’elles sont décrites dans le
présent rapport et détaillées dans le document 1.
2. de déléguer le pouvoir au directeur municipal de terminer et d’exécuter
les ententes modifiées d’aménagement, de stationnement et de non fusionnement
avec Morguard Elgin Limitée.
EXECUTIVE SUMMARY
Morguard
Elgin Limited (Morguard) purchased the property at 150 Elgin Street/31
Gloucester Street from the City on 21 December 2005 for $6.6M based on an offer
submitted to a Request for Offers to Purchase (RFOTP) process which commenced
on 25 November 2003 and closed on 2 February 2004.
The
purchase was subject to the execution of a Development Agreement, a Parking
Agreement, a Non-Merger Agreement (regarding provisions of Agreement of
Purchase and Sale that survived closing), and Covenants on closing based on
terms and conditions approved by Council on 13 October 2004 and 30 November
2005 which included provisions related to a potential Concert Hall component
that would, if developed, be owned and operated by the Ottawa Chamber Music
Society (OCMS).
The Development Agreement is based on Morguard’s
conceptual design plans, as set out in a design brief prepared by FoTenn
Consultants dated 12 August 2005 and on architectural plans prepared by DCYSM
dated 29 July 2005. The plans depict a 304,300 sq. ft. mixed use complex
including a nine hundred (900) seat, 30,000 sq. ft. concert hall component, a
15,674 sq. ft. interior Community Accessible/Public Benefit Space component (associated
with the concert hall component), an exterior Public Benefit Space component
(Elgin ‘pocket park’ and fourth and seventh floor roof terraces related to the
concert hall foyers and roof), a one hundred and sixty (160) unit, 156,200 sq.
ft. residential component (50% small units with 25% costing less
than $181,000 per City affordability criteria), a 92,540 sq. ft. leasable office component and a three (3) level below
grade parking garage with provision for two hundred and thirty-six (236)
parking spaces.
The
Development Agreement also provides an option for the City to lease or purchase
the concert hall space for an Arts and Heritage Plan use if the OCMS project
does not proceed, or for Morguard to redesign and utilize the space for
commercial purposes if the City does not exercise its option, but in both cases
for Morguard to continue to provide public benefit space at no cost to the
City, based on a new design approved by the City under the terms of an amending
agreement. The City retained an option to repurchase the whole property until 28
February 2008 if Morguard was unwilling to proceed with the whole development
in the event the OCMS or the City was ready to proceed with the concert hall or
an alternative Arts and Heritage Plan project.
The
OCMS did not proceed with the concert hall project and the City did not
exercise its option to utilize the concert hall space for another arts and
heritage project. The City’s option to repurchase the property lapsed on 28 February
2008.
Morguard
has now redesigned the project to include the former concert hall space as part
of a 362,088 sq. ft. rentable commercial complex (351,615 sq. ft. office tower
component and 10,473 sq. ft. ground floor commercial component) which precludes
a residential component. The well-designed exterior is consistent with the one
shown in the concept plan approved by Council in 2004 and the design endorsed
by the City’s Design Review Panel in 2005.
The
design also maintains the Elgin ‘pocket park’ and a seventh floor roof terrace
as public benefit spaces but the fourth
floor roof terrace now relates to office space and the interior public benefit
space has been reduced to an approximately 8,070 sq. ft. ground floor winter
garden.
In
addition, Morguard has indicated that its proposed building is being designed
to achieve LEED Gold certification and beyond providing significant energy
savings features. Morguard is also
proposing not to provide any parking spaces beyond the minimum requirements of
the Zoning By-law and to institute a number of other measures to support the
City’s transportation policies for the downtown core. As a result, Morguard can no longer provide
all of the one hundred and twenty one (121) short-term parking spaces on the
upper floors of the parking garage as set out in the Parking Agreement.
Morguard
indicated on 20 September 2011 that its Board has given approval to proceed
with the development based on the project being approximately 30% leased to the
Canada Council for the Arts and the remaining space being targeted primarily to
the private sector market. The design submitted for site plan approval includes
for significant presentation facilities within the winter garden area to be
programmed primarily by the Canada Council for the Arts as well as including
the rear addition of the Grant House at 150 Elgin Street within the winter
garden area in a manner supported by the City’s Heritage Planners.
Morguard
has submitted applications for site plan approval and heritage alterations that
fit within the City’s existing planning requirement framework but the site plan
approval cannot be issued until Morguard enters into an Amended Development
Agreement with the City. Morguard has requested that the Development, Parking and
Non-Merger Agreements be amended to be consistent with the redesigned project.
Morguard
also advised that its leasing requirements for the Canada Council for the Arts
require Morguard to obtain City approval for changes to the Development
Agreement and related agreements and to obtain a Site Plan Approval by
mid-November 2011 with the objective of obtaining an excavation and shoring
permit before the end of November 2011 in order to achieve a 1 January 2014
occupancy.
In
considering Morguard’s proposal, the City must clearly demonstrate the overall
benefit to the City in making amendments to the agreements with Morguard.
As
a result, this report recommends that amendments to the Development, Parking
and Non-Merger Agreements as outlined in this report be approved. The framework for the proposed
amendments to
the Development, Parking and Non-Merger Agreements, as recommended by staff, is
described in the Discussion Section of this report and summarized in Document 1.
SOMMAIRE
Morguard Elgin
Limitée (Morguard) a acheté la propriété située au 150 rue
Elgin/31 rue Gloucester de la Ville, le 21 décembre 2005, pour
6 millions de dollars ŕ la suite d’une offre présentée dans le cadre d’un
processus de Demandes d’offre d’achat (DOA) qui a débuté le 25 novembre
2003 et s’est terminé le 2 février 2004.
L’achat était
assujetti ŕ l’exécution de l’Accord de développement, de l’Accord de
stationnement et de l’Accord de non-fusionnement (concernant les dispositions
de l’Accord d’achat et vente demeurant en vigueur aprčs la clôture), et les
clauses restrictives de clôture fondées sur les modalités et conditions
approuvées par le Conseil le 13 octobre 2004 et le 30 novembre 2005,
qui comprenaient des dispositions liées ŕ la création d’une salle de concert
qui, si construite, serait possédée et exploitée par la Société de musique de
chambre d’Ottawa (SMCO).
L’Accord de développement est établi en fonction des
plans de conception de Morguard, tels
qu’ils ont été présentés dans le sommaire de conception rédigé par FoTenn Consultants le 12 aoűt 2005 et
sur des plans architecturaux préparés par DCYSM le 29 juillet 2005. Les
plans décrivent un complexe polyvalent de 304 300 pi. ca. comprenant
une salle de concert de 30 000 pi. ca. de neuf cents (900) sičges, un
espace intérieur communautaire de 15 674 pi. ca. accessible au grand
public, un espace extérieur grand public (« parc de poche » Elgin et
des terrasses de toit au quatričme et au septičme étages reliées aux foyers et
au toit de la salle de concert), un immeuble résidentiel de
156 200 pi. ca. comportant cent-soixante (160) unités (50 % de
petites unités dont 25 % coűtent moins de 181 000 $ conformément
aux critčres d’abordabilité de la Ville), des espaces ŕ bureaux de
92 540 pi. ca. ŕ louer, et trois (3) niveaux souterrains d'espaces de
stationnement comptant deux-cent-trente-six (236) espaces de stationnement.
L’Accord de
développement donne aussi l’option ŕ la Ville de louer ou d’acheter l’espace de
la salle de concert pour la mise en śuvre d’un plan pour les arts et le
patrimoine, si le projet de la SMCO n’est pas exécuté, et ŕ Morguard de revoir
le concept de l’espace et d’utiliser cet espace ŕ des fins commerciales si la
Ville décide de ne pas exercer son option, mais dans les deux cas, Morguard
doit continuer ŕ offrir un espace grand public, sans frais pour la Ville,
d’aprčs un nouveau concept approuvé par la Ville, conformément aux modalités
d’un accord modifié. La Ville a conservé l’option d’acheter toute la propriété
d’ici le 28 février 2008 si Morguard n’était pas disposé ŕ exécuter
l’ensemble du développement dans l’éventualité oů la SMCO ou la Ville était
pręte ŕ aller de l’avant avec la salle de concert ou avec le projet de plan
pour les arts et le patrimoine.
La SMCO n’a pas
donné suite au projet de salle de concert et la Ville n’a pas exercé son option
d’utiliser l’espace de la salle de concert pour un autre projet axé sur les
arts et le patrimoine. L’option de la Ville de racheter la propriété est
échue depuis le 28 février 2008.
Morguard a maintenant reconçu le projet
de façon ŕ inclure l’espace réservé ŕ la salle de concert ŕ un complexe
commercial locatif de 362 088 pi. ca. (tour de bureaux de
351 615 pi. ca. et espace commercial au rez-de-chaussée de
10 473 pi. ca.) qui écarte l'élément résidentiel. L’extérieur bien conçu est conforme ŕ celui qui figure
au plan de conception approuvé par le Conseil en 2004 et au concept appuyé par
le Comité de révision de la conception urbaine de la ville en 2005. Le concept
conserve aussi le « parc de poche » Elgin et une terrasse au septičme
étage comme espace grand public, mais la terrasse du quatričme étage est
annexée ŕ l’espace de bureaux et l’espace grand public a été réduit d’environ
8 070 pi. ca. comme jardin d’hiver au rez‑de‑chaussée.
En outre,
Morguard a indiqué que l’immeuble proposé est conçu en vue d’obtenir la
certification or de LEED et en plus d’offrir des caractéristiques importantes ŕ
haut rendement énergétique, Morguard propose aussi de ne pas fournir d’espaces
de stationnement au-delŕ des exigences minimales du rčglement de zonage et
d'instituer plusieurs autres mesures pour appuyer les politiques de transport
de la Ville pour le centre-ville.
Par conséquent,
Morguard ne peut plus fournir les 121 espaces de stationnement de courte
durée aux étages supérieurs du garage comme l’indique l’Accord de
stationnement.
Morguard a
indiqué le 20 septembre 2011 que son Conseil d’administration avait
approuvé la continuation du projet, sous réserve qu’environ 30 % soit loué
au Conseil des Arts du Canada et que l’espace restant soit principalement axé
sur le marché du secteur privé. Le concept présenté pour approbation du plan
d'implantation prévoit que d'importantes installations de présentation dans la
zone du jardin d'hiver soient programmées principalement par le Conseil des
Arts du Canada en plus d’inclure l'ajout arričre de Grant House au
150, rue Elgin dans la zone du jardin d’hiver d’une maničre qui est
appuyée par les planificateurs de la conservation du patrimoine de la Ville.
Morguard a
présenté des demandes pour l’approbation du plan du site et des modifications
patrimoniales qui sont conformes au cadre actuel d’exigences en matičre de
planification de la Ville, mais l’approbation du plan du site ne peut pas ętre
donnée tant que Morguard n’a pas conclu un accord de développement modifié avec
la Ville. Morguard
a demandé que les accords de développement, de stationnement et de non‑fusionnement
soient modifiés pour ętre cohérents avec le projet reconçu.
Morguard a aussi indiqué que les
exigences liées ŕ la location au Conseil des Arts du Canada exigent
l’approbation par la Ville de l’Accord de développement et autres accords, et
l’obtention de l’approbation du plan du site d’ici la mi-novembre 2011,
dans le but d’obtenir un permis d’excavation et d’étayage avant la fin de
novembre 2011, afin de garantir que les locaux pourront ętre occupés au 1er janvier
2014.
Dans le cadre de
l’examen de la proposition de Morguard, la Ville doit clairement démontrer les
avantages que peut retirer la Ville en modifiant les accords avec Morguard.
Par conséquent,
le présent rapport recommande que les modifications aux Accords de
développement, de stationnement et de non-fusionnement décrits dans ce rapport
soient approuvées. Le cadre
pour les modifications proposées aux Accords de développement, de stationnement
et de non-fusionnement, recommandé par le personnel, est décrit ŕ la section
Discussion du présent rapport et résumé dans le Document 1.
BACKGROUND
Sale
of Property and Related Agreements
As
described in the Project History attached as Document 2 of this report, Morguard
Elgin Limited (Morguard) purchased the property at 150 Elgin Street/31
Gloucester Street from the City on 21 December 2005 for $6.6M based on a offer
submitted to a Request for Offers to Purchase (RFOTP) process which commenced
on 25 November 2003 and closed on 2 February 2004.
The
purchase was subject to the execution of Development Agreement, Parking
Agreement, Non-Merger Agreement (regarding provisions of Agreement of Purchase
and Sale that survived closing) and Covenants on closing based on terms and
conditions approved by Council on 13 October 2004 and 30 November 2005 which
included provisions related to a potential Concert Hall component that would,
if developed, be owned and operated by the Ottawa Chamber Music Society (OCMS).
Development Agreement
The Development Agreement is based on Morguard’s
conceptual design plans, as set out in a design brief prepared by FoTenn
Consultants dated 12 August 2005 and on architectural plans prepared by DCYSM
dated 29 July 2005. The plans depict a 304,300 sq. ft. mixed use complex
including a nine hundred (900) seat, 30,000 sq. ft. concert hall component, a
15,674 sq. ft. interior Community Accessible/Public Benefit Space component
(associated with the concert hall component), an exterior Public Benefit Space
component (Elgin ‘pocket park’ and fourth and seventh floor roof terraces
related to the concert hall foyers and roof), a one hundred and sixty (160)
unit, 156,200 sq. ft. residential component (50% small units
with 25% costing less than $181,000 per City affordability criteria), a 92,540 sq. ft. leasable office component,
and a three (3) level below grade parking garage with provision for two hundred
and thirty-six (236) parking spaces.
The
Development Agreement provides an option for the City to lease or purchase the concert
hall space for an Arts and Heritage Plan use if the OCMS project does not
proceed, or for Morguard to redesign and utilize the space for commercial
purposes if the City does not exercise its option, but in both cases for Morguard
to continue to provide public benefit space at no cost to the City based on a
new design approved by the City under the terms of an amending agreement. The City
retained an option to repurchase the whole property until 28 February 2008 if
Morguard was unwilling to proceed with the whole development in the event the OCMS
or the City was ready to proceed with the concert hall or the alternative Arts
and Heritage Plan project.
The
Development Agreement also provides for the City to pay up to a total of $1.3M
in development charges and building permit fees related to the residential
component.
An
extract of the relevant provisions of the Development Agreement is attached as
Document 3.
Parking
Agreement
The
Parking Agreement requires Morguard to provide one hundred and twenty one (121)
short term public parking spaces year round on a twenty four (24) hour basis on
the upper floors of the parking garage at parking rates equivalent to City
rates in the downtown for a period of fifteen (15) years from the date of
occupancy of the parking garage.
An
extract of the relevant provisions of the Parking Agreement is attached as
Document 4.
Non-Merger
Agreement
As
set out in Document 5 of this report, the
Non-Merger Agreement includes and maintains the provisions of the Agreement of
Purchase and Sale for Morguard to carry out “immediate repairs” (deferred life
cycle work - estimated cost $400K) to the heritage Grant House at 150 Elgin
Street; to enter into an Heritage
Easement Agreement with the City prior to requesting the issuance of a
building permit for the project; and also for the City to pay up to $276K in
tipping fees for existing environmental contamination on the property site (ash
/ construction debris).
Current
Status:
Morguard
has completed the immediate repairs to the Grant House at a reported cost of
approximately $800K.
As
set out in the Project History attached as Document 2, the OCMS did not proceed
with the concert hall project and the City did not exercise its option to
utilize the concert hall space for another arts and heritage project. The City’s
option to repurchase the property lapsed on 28 February 2008.
Morguard
has now redesigned the project to include the former concert hall space as part
of a 362,088 sq. ft. rentable commercial complex (351,615 sq. ft. office tower
component and 10,473 sq. ft. ground floor commercial component) which precludes
a residential component. The exterior design is consistent with the concept
plan approved by Council in 2004 and was endorsed by the City’s Design Review
Panel in 2005. The design also maintains the Elgin Street ‘pocket park’ and a seventh
floor roof terrace as public benefit spaces but the fourth floor roof terrace
now relates to office space and the interior public benefit space has been
reduced to an approximately 8,070 sq. ft. ground floor winter garden.
A
comparison of the proposed space and uses for Morguard’s current development
concept plan with the concept plans considered by Council in May 2004 and
October 2004 is set out in Document 6. It
is noted from this comparison that the amount of Community Accessible/Public
benefit Space has been reduced such that the total interior space is now 7,604
sq. ft. from the 15,674 sq. ft. shown on the Development Plan requirements in
the Development Agreement.
Morguard
has submitted applications for site plan approval and heritage alterations that
fit within the City’s existing planning requirement framework.
Morguard
has also entered into an agreement to lease with the Canada Council for the
Arts for space on the second, third, fourth floors and the western part of the fifth
floor of the office component. The proposed lease is subject to Morguard
receiving the required planning approvals before the end of November 2011 and
for the leased space to be ready for occupancy by 1 January 2014.
The
design submitted for site plan approval includes for significant presentation
facilities within the winter garden area to be programmed primarily by the
Canada Council for the Arts as well as including the rear addition of the Grant
House at 150 Elgin Street within the winter garden area in a manner supported
by the City’s Heritage Planners.
Morguard
indicated on 20 September 2011 that its Board has given approval to proceed
with the development based on the project being approximately 30% leased, and
the remaining space being targeted primarily to the private sector market.
Morguard
has requested that the Development Agreement be amended to remove the
residential component requirements and associated requirement for the City to
pay development and building permit fees up to $1.3M; and to provide for the
reduced exterior and interior public benefit spaces as now indicated on the
redesigned development plans. Morguard has also indicated its willingness to
eliminate the requirement for the City to pay up to $276K in tipping fees as
currently set out under the provisions of the Non-Merger Agreement.
Morguard
also requested, because of the requirements for office leasing, that the
Parking Agreement be amended to change the requirement for one hundred and
twenty one (121) short term public parking spaces at City rates to a minimum of
thirty five (35) short term public parking spaces weekdays during the hours of 8:00
a.m.to 7:00 p.m. and one hundred and thirty five (135) spaces from 7:00 p.m. to
8:00 a.m. on weekdays and all day on weekends based at market rates and
utilizing ‘valet’ parking operations. Morguard has agreed that the existing provisions
related to not offering early bird specials will be maintained.
In addition, Morguard
has indicated that its proposed building is being designed to achieve LEED Gold
certification and beyond providing significant energy savings features,
Morguard is also proposing a number of measures to support the City’s transportation
policies in the downtown area. In this regard, Morguard is proposing to provide
an additional one hundred and twenty (120) bicycle parking spaces beyond the
by-law requirement with the additional spaces being available
and provided in locations accessible to the general public; to pay for one
hundred (100) transit passes for one (1) year for employees of tenants in the
building; and provide two (2) car sharing spaces (VRTUCAR). Morguard has also indicated that it would be
willing to commit to maintaining at least one (100) short term public parking
spaces in its facility at 350 Sparks Street (Delta Hotel) for fifteen (15)
years from the occupancy of 150 Elgin Street but these are already existing
public parking spaces and are located at the other end of the downtown.
Morguard
has also indicated that its leasing requirements for the Canada Council for the
Arts require Morguard to obtain City approval for changes to the Development
Agreement and related agreements and to obtain the Site Plan Approval by
mid-November 2011 with the objective of obtaining an excavation and shoring
permit before the end of November 2011 in order to achieve a 1 January 2014
occupancy. In this regard, Morguard has
also requested that the provision in the Non-Merger Agreement related to not
requesting the issuance of a building permit prior to entering into the
Heritage Easement Agreement be amended to allow for an excavation, shoring and
foundation permit to be issued upon Site Plan approval being granted by the
City, subject to the insurance and other financial security requirements
contemplated for the Heritage Easement Agreement being in place as part of the
Site Plan approval requirement.
DISCUSSION
Given
the current economic climate, the commencement of the well-designed 150 Elgin
Street project targeted to the private sector office market, as now proposed by
Morguard would be of substantial benefit to ensuring the viability of the
City’s downtown core.
In
the early 2000’s the City needed to encourage residential growth in the
downtown areas. By the time Council
finally approved the sale of 150 Elgin Street and the related project, many
residential condominium projects were already under construction or being
planned and Council had already discontinued incentives with respect to the
waiving of development and building permit fees for residential developments in
the downtown core. The provision for 25% of the residential units to be sold at
a price of less than $181,000, while meeting the City’s then current affordability
guidelines did not assist the City in providing the most needed affordable
housing units.
The
proposed change to include a 351,615 sq. ft. of rentable office space is very
much in keeping with the objectives of the Mixed-Use Downtown (MD) Zone which are
as follows:
1.
support the Central
Area as designated in the Official Plan as the central place in the
region for employment and shopping while also allowing residential, cultural
and entertainment uses;
2.
ensure that the Character Areas in the Central Area, namely the Core Area,
the Parliamentary Precinct, the ByWard Market, the Rideau/Congress Centre, the
Canal Area, Lowertown, Upper Town, Sandy Hill West, LeBreton Flats and the four
Business Improvement Areas, Rideau, Sparks, ByWard Market and Bank Streets
continue to serve as primary business or shopping areas and maintain their
distinct character;
3.
facilitate more intense, compatible and
complementary development to ensure that the active pedestrian-oriented
environment at street level, particularly along Bank Street, Sparks Street and
Rideau Street is sustained; and
4.
impose development standards that will protect the
visual integrity and symbolic primacy of the Parliament Buildings and be in
keeping with the existing scale, character and function of the various
Character Areas and Business Improvement Areas in the Central Area while having
regard to the heritage structures of the Central Area.
The
removal of the residential component in the 150 Elgin Street project will result
in the City not having to pay $1.3M in development charges/building permit fees
and up to $276K in tipping fees. This will allow the City to uncommit the $1.5M
in the City wide reserve currently being held for reimbursement of development
charges, building permit fees and tipping fees. In addition, it is estimated
that the conversion of 156,200 sq. ft. of building area from residential to
office space will result in approximately $650K in additional Development
Charges being received by the City as well as approximately $500K annually in
additional property taxes just for the converted area. The overall office
development project is now approximately 100,000 sq. ft. larger than the
formerly proposed residential development and it is estimated that this additional
development will result in approximately another $1.1M in additional
development charges and approximately another $800K annually in additional
property taxes being received by the City.
The
changes proposed by Morguard with respect to a reduction in the number of short
term public parking spaces at 150 Elgin Street will reduce the supply of short
term parking under the direct or indirect control of the City by no more than eighty
six (86) spaces during weekdays in the eastern part of the downtown core. It is
also noted that, in any event, the one hundred and twenty one (121) existing
public parking spaces would be lost during the project’s one (1+) year
construction period. While ‘valet
parking’ is not ideal, Morguard has indicated this type of parking operation is
needed to maximize the amount of short term parking available at all times
while ensuring the parking requirements for tenants can be met. The City’s
current Parking Management Strategy appears to be based more on availability
than price and the proposal to provide parking at market rates does not appear
to be the most significant concern.
The
potential loss of approximately 7,604 sq, ft. in public benefit space is
considered to be significant given that in October 2004 Morguard valued its
contribution of 16,850 sq.ft. of public benefit space shown on the concept
plans at $3.5M (approximately $208/sq. ft.) as indicated in the 13 October 2004
Council report. On that basis, the 7,604 sq. ft. of potentially lost public
benefit space, as defined in the Development Agreement would have a value of at
least $1.58M if the lost space cannot be accommodated elsewhere in the
development.
Morguard
has indicated that while its financial pro forma does not allow for a $1.304M
contribution over and above not receiving $276K in tipping fees from the City it
is prepared to negotiate the leasing of approximately 6,000 sq. ft. base office
space in the office tower component for an appropriate use that supports City
programs at a reduced rate over a transitional period (e.g. a five (5) year
initial term with a five (5) year
option) and to provide some limited amount of “foothold space” for this use in
the winter garden area on the ground floor. The intent would be that the City
could, from its perspective, receive up to $1.304M in value from such an
arrangement.
As
an alternative, Morguard has also expressed its willingness to consider
allocating, from space currently allocated for retail and related uses, an
additional 4,000 sq. ft. of finished space on the ground floor, in an area adjacent
to the winter garden, as Community Accessible /Public Benefit Space. The intent
would be that this higher value space could be programmed and rented for short
term use by non-profit groups that would have activities compatible with, and
supporting, activities in the winter garden such as arts and cultural groups.
From
a location standpoint, the best additional space in the office tower for
community accessibility and public benefit use might be provided on either the
eastern parts of the fifth and sixth floors together with less than 1,000 sq.
ft. on the ground floor in, or adjacent to the winter garden area, with nearby
access to the elevators serving the seventh floor roof garden.
With
respect to utilizing office space for public benefit, Morguard has indicated
that the Canada Council for the Arts has an option to lease additional space on
that floor until 1 January 2014 and, therefore, space on that floor cannot
currently be made available for Community Accessible / Public Benefit use.
Morguard has also indicated that it has submitted leasing proposals to other
prospective tenants for most of the remaining part of the office tower starting
from the sixth floor upwards and the provision of additional public benefit
space in the office tower would, therefore, need to be considered in terms of
fitting within Morguard’s leasing program.
The
10,473 sq. ft. of retail space proposed for the ground floor under the office
tower has not yet been leased and, being subject to final leasing and demising
plans, might be adjusted significantly before the building is completed. Given that Morguard has set aside a 3,000 sq.
ft. portion of the winter garden to be programmed by the Canada Council for the
Arts, and is proposing that the future restaurant tenant of the heritage Grant
House building also be allowed to operate up to an approximately 1,000 sq. ft.
patio in the winter garden area, it is critical that the final size design and
operation of the winter garden provide the degree of community accessibility and
public benefit that was intended when Council approved the sale of the property
in October 2004.
It
is also possible that a yet to be identified City program use (e.g., arts,
culture, tourism type use) that is acceptable to Morguard, or some other community
accessible / public benefit use proposed by Morguard acceptable to the City,
might be better accommodated in a different amount of space and location in the
building than described above. In this regard, staff has proposed, and Morguard
has agreed, that the amendments to the Development Agreement should also include
provisions as follows:
· The City and Morguard
will negotiate provisions for Morguard to
provide additional Community Accessible / Public Benefit Space in a total amount of not more than 7,604 sq.
ft., or for Morguard to make a financial contribution of equivalent value from
the City’s perspective in amount not greater than $1.304M, and
·
Morguard
will not lease any retail space on the ground floor until an agreement has been
reached with the City regarding an additional contribution by Morguard related
to Community Accessible / Public Benefit Space.
If
the City does not agree to amend the agreement with Morguard, and Morguard
cannot proceed with the project based on the proposed lease arrangement with
the Canada Council for the Arts, it is likely that the development of 150 Elgin
Street may not occur for many years. However, in considering Morguard’s
proposal, the City must clearly demonstrate overall benefit to the City in
making amendments to the agreements with Morguard.
As
a result, staff is recommending that the proposed provisions for amendments to
the Development, Parking and Non-Merger Agreements as described above be
approved.
The framework for the proposed
amendments to
the Development, Parking and Non-Merger Agreements, as recommended by staff, is
summarized in Document 1 of this report.
ENVIRONMENTAL IMPLICATIONS
Under the terms on the Non-Merger
Agreement, Morguard Elgin Limited will remain responsible for any environmental
contamination on the property and for adherence to environmental regulations. The
proposed development is being designed to achieve a LEED Gold certification.
RURAL IMPLICATIONS
N/A
CONSULTATION
The Real Estate Partnerships and
Development Office has consulted with Planning and Infrastructure Approvals and
Parking Operations staff in carrying out the negotiations with Morguard.
On 28 October 2011, Morguard
indicated that it supports the recommendations set out in this report.
COMMENTS BY THE WARD
COUNCILLOR(S)
The Ward
Councillor
has indicated in the site plan circulation and in subsequent discussions with
staff regarding changes to the Development and Parking Agreements that she is
not opposed to the elimination of the residential component but is opposed to a
proposed change to the parking agreement that would eliminate the requirement
for Morguard to provide one hundred and twenty one (121) short term public
parking spaces at City rates. The Councillor also remains concerned about the
amount and type of Community Accessible / Public Benefit Space that will
ultimately be provided in this development.
HOUSING FIRST POLICY
The Official
Plan policy directs that the City make land available for affordable housing
and give priority for the sale or lease of surplus City-owned property for this
purpose. The Housing First Policy,
approved by Council on 13 July 2005, establishes priority consideration to the
Affordable Housing Division in the identification of potentially surplus
City-owned property, to be used in achieving the City’s affordable housing
program targets. The policy also requires that the Official Plan target of 25%
affordable housing, be met on any City-owned property sold for residential
development. Where viable, residential
properties are disposed of without a condition requiring an affordable housing
component, 25% of the proceeds from the sale are to be credited to a housing
fund, to be used for the development of affordable housing elsewhere in the
City.
The subject
property is zoned MD S52&S53, a downtown mixed-use development zone, and
therefore the provision of affordable housing, and/or a financial contribution
in lieu of affordable housing, will depend on the ultimate use for the
components in a development on the site.
LEGAL IMPLICATIONS
Subject to the City and Morguard
reaching agreement on the amount of additional Community Accessible/Public
Benefit Space or the amount of the financial contribution by Morguard in lieu
of such additional space, there are no legal impediments to the implementation
of the recommendations contained in this Report. Should the City and Morguard not be able to
reach such agreement, the issue would be settled by arbitration pursuant to a
provision in the Development Agreement.
Further protection is provided to the City in that Morguard has agreed
not to lease any retail space on the ground floor until there is agreement
between the City and Morguard regarding the quantity of Community
Accessible/Public Benefit Space or a financial contribution in lieu thereof as
set out in this Report.
RISK
MANAGEMENT IMPLICATIONS
If
the City does not agree to amend the agreement with Morguard, and Morguard
cannot proceed with the project based on the proposed lease arrangement with
the Canada Council for the Arts, it is likely that the development of 150 Elgin
Street may not occur for many years delaying the City receiving significant
financial and community benefit. The proposed amendments to the Development,
Parking and non-Merger Agreements as recommended in this repot will eliminate
this risk.
CITY
STRATEGIC PLAN
The proposed
development of 150 Elgin Street / 31 Gloucester Street is supportive of
Council’s Term of Council Priorities as approved by Council on 13 July 2011
with respect to the following strategic directions.
·
Economic Prosperity: use Ottawa's unique combination
of recreational, social, cultural and business assets, natural environment and
physical infrastructure to attract enterprises, visitors and new residents,
while at the same time, developing and retaining our local firms and talent;
· Transportation
and Mobility: meet the current and future
transportation and mobility needs of residents, visitors and enterprises by
improving transit and by emphasizing choice and accessibility of multiple types
of transportation including the development of a Light Rail Transit system;
· Environmental
Stewardship: promote
long-term sustainability and reduce our environmental footprint by maintaining
and improving the quality of our air and water, by utilizing green technology
and promoting energy efficiency and by protecting our natural resources and
land to enhance the quality of the environment for our residents;
· Healthy
and Caring Communities:
help all residents enjoy a high quality of life and contribute to community
well-being through healthy, safe, secure, accessible and inclusive places;
· Financial
Responsibility:
be financially responsible to the
residents of Ottawa by practicing prudent fiscal management of existing
resources and by making sound long-term choices that allow core City programs
and services to be sustainable now and into the future.
TECHNOLOGY
IMPLICATIONS
N/A
FINANCIAL IMPLICATIONS
Council
approval of the recommendations of this report and the subsequent execution of
the related amendments to the Development and Non-Merger Agreements will
eliminate the City’s current financial liability for development charges,
building permit and tipping fees, in an amount of $1.5M.
ACCESSIBILITY
IMPACTS
The development
of 150 Elgin Street / 31 Gloucester Street property is subject to site plan
approval and review by Planning and Growth Management staff including review of
accessibility provisions.
While it is not
known when the Province will release the final draft Accessibility for
Ontarians with Disabilities Act (AODA) Regulation relating to the
Built Environment, the City’s Accessibility Office will begin convening a
corporate committee this fall to review the draft standards and how the City
work is aligned to those upcoming standards. This fall the Planning and Growth
Management department will be creating workshops and a built environment
accessibility checklist for Planning and Growth Management staff. This will promote accessibility in the built
environment processes and eliminate potential barriers before they happen.
SUPPORTING DOCUMENTATION
Document 1 - Framework for Amendments to Agreements
Document 2 -
Project History
Document 3 -
Development Agreement - Relevant Provisions
Document 4 -
Parking Agreement - Relevant Provisions
Document 5 -
Non Merger Agreement - Relevant Provisions
Document 6 -
Comparison of Morguard Concepts
DISPOSITION
Following Council approval, Real
Estate Partnerships and Development Office will negotiate the specific provisions
for the amendments to the
Development, Parking and Non-Merger Agreements with Morguard Elgin Limited and
then in consultation with the Legal Services Branch finalize the amending
agreement documents for execution by the City
Manager.
DOCUMENT 1
FRAMEWORK FOR AMENDMENTS TO
AGREEMENTS
Proposed Relevant Provisions for Amending Development
Agreement
It is recommended that the relevant provisions of
the Development Agreement as set out in Document 3 of this report be amended
based on the draft wording / actions outlined below:
1. Provision
to be amended to the effect that “The Purchaser agrees to make its best efforts
to market the development, as proposed by the redesigned Development Plan
submitted to the Purchaser by to the City for site plan approval in July 2011 (the
“Development”) for the uses set out in the said Development Plan and more
specifically agrees that the retail area shown for the ground floor will be
designed and marketed to target the commercial uses as set out in the Concept
Plan.”
2. Provision
re: residential component to be deleted.
3. Provision
re: development charges and building permit fees to be deleted.
4. Provision
to be amended to the effect that “The Purchaser agrees to design and construct,
at no cost to the Vendor the base building and improvements for the Winter
Garden, the improvements for the Elgin Pocket Park and 7th floor
Roof Garden for use as Community Accessible/Public Benefit spaces (the
“Community Accessible/Public Benefit Space”) all as shown on the redesigned Development
Plan submitted by the Purchaser to submitted to the City for site plan approval
in July 2011 (the “Development”) and the Purchaser agrees to operate and
maintain these spaces as not-for-profit areas at no cost to the Vendor. The
Purchaser further agrees to enter into
negotiations with the Vendor with respect to the provision of additional
Community Accessible / Public Benefit Space in the Development in an amount of not more than 7,604 sq. ft., or
the provision of a financial contribution of equivalent value from the City’s
perspective in amount not greater than $1.304M, and not to lease any retail
space on the ground floor, until an agreement has been reached with the City
regarding an additional contribution by Morguard related to Community
Accessible / Public Benefit Space “
5. Provision re: public art contribution to
remain.
6. Provision re: direct access to Community
Accessible / Public Benefit Spaces to remain.
7. Provision to be amended to the effect that “The
Purchaser agrees that the Elgin Pocket Park, Winter Garden, and the 7th Roof
Garden areas and the connections between these areas as shown on the
Development Plan shall be accessible on a daily basis to the general public for
the period from 7:00 AM to 12:00 AM or whenever the commercial facilities in
the Development are open, whichever period is greater, except as may otherwise
be proposed by the Purchaser and agreed to by the Vendor in writing and subject
to the provisions of Paragraph 9 below.”
8. Provision re: restriction on selling or
leasing Community Accessible / Public Benefit Space to remain.
9.
Provision re: public access through proposed Concert Hall space to be
deleted.
10. Provision re: Concert Hall space on 2nd
floor to be deleted.
12. Provision re: OCMS Concert Hall to be
deleted.
Proposed Relevant Provisions for Amending Parking Agreement
It is recommended that the relevant provisions of
the Parking Agreement as set out in Document 4 of this report be amended based
on the draft wording / actions outlined below:
1. Provision
to be amended to the effect that “The conveyance of the Real Property to the
Purchaser is and shall continue after Closing for a term of fifteen (15)
years from the date of issuance of an
occupancy certificate for the Parking Facility to be subject to the Purchaser’s
obligation to provide, operate and maintain on the Real Property:
(a) a
minimum of 35 short-term public parking spaces in the Parking Facility that
shall be available public parking spaces in the Parking Facility that shall be
available on a twenty-four (24) hour daily basis for public parking use;
(b) a
minimum of 135 short-term public parking spaces in the Parking Facility that
shall be available between the hours of 7:00PM and 8:00 AM on weekdays and on a
twenty-four (24) hour basis on weekend and holidays for public parking use;
(c) the
short-term parking spaces as set out in (a) and (b) above (the “designated
short-term spaces”) may be provided on the basis of valet parking operations at
the discretion of the Purchaser;
(d) 2 parking spaces assigned for car sharing purposes
spaces; and
(e) 120
secure bicycle parking spaces, over and above the amount required under the
Zoning By-law for the proposed development, that are available and provided in
locations accessible to the general public.
2. Provision re: parking design guidelines to remain.
3. Provision to be amended to the effect that “Except
with the prior written consent of the Vendor:
(a)
All short term spaces, as designated
from time to time, shall only be used in accordance with the provisions set out
in the Parking Agreement;
(b)
The Purchaser shall not establish
policies or practices, which would be inconsistent with ensuring the designated
short term spaces are, in fact, available for short-term parking;
(c)
The Purchaser shall not reserve any or
all of the designated short term spaces or permit the use of such spaces for
monthly parking, without the prior written consent of the Vendor.
(d)
The Purchaser shall provide the designated
short term spaces at market rates in downtown Ottawa
(e) The Purchaser shall not offer special
daily rates before a specified time (e.g. the “early bird special”) with
respect to the designated short term spaces;
(f) The Purchaser shall make available all
occupancy and usage records respecting the operation of the designated short
term spaces and allow inspections by the Vendor of these spaces when required
by the Vendor for the purposes of monitoring the provisions of the agreement.”
4. Provision
re: revenue to remain.
Proposed Relevant Provisions for Amending Non-Merger
Agreement
It is recommended that the relevant provisions of
the Agreement of Purchase and Sale as set out in the Non-Merger Agreement as
outlined in Document 5 of this report be amended based on the draft wording /
actions outlined below:
12. Provision re: approval to alter heritage
building to remain.
13. Provision
to be amended to the effect that ‘The Purchaser agrees to enter into a heritage
easement agreement with the Vendor, pursuant to Section 37 of the Ontario
Heritage Act, (the “Heritage Easement”) with respect to the Heritage
Building based on terms and conditions
as set out in Schedule “E” attached hereto. The Purchaser further agrees that
the Heritage Easement shall be entered into and registered on title prior to
the issuance of a building permit by the City of Ottawa for the Development
save and except for an excavation, shoring and foundation permit in the event
that Site
Plan approval has been granted by the City and the insurance and other
financial security requirements contemplated for the Heritage Easement
Agreement as set out in Schedule “E” are
in place as part of the Site Plan Approval requirements. While
the parties hereto acknowledge that the Purchaser may have made application to
the City of Ottawa for a building permit for the Development, the Purchaser
agrees not to request or demand the issuance of any such building permit from
the City of Ottawa save and except for an excavation, shoring and foundation permit
until the Heritage Easement is entered into and registered on title. The
Purchaser further agrees that the area of the Real Property that will be
subject to the Heritage Easement, and on which the Heritage Easement will be registered,
shall be established by the Vendor based on the Protective Measures prescribed
by the Heritage Consultant as set out in Schedule “E” attached hereto. Provided, that, in no event shall the area of
the Heritage Easement be less than,
horizontally, the perimeter of the Heritage Building as formed by the outside
of the exterior walls, and, vertically, on a stratified basis from immediately
below the bottom of the basement floor to the top of the roof and any
appurtenances that protrude beyond the roof including chimneys and such area
shall not be more than the area designated by By-law Number 21-82.”
17. Provision to be amended to the
effect that “Except as otherwise explicitly set out herein, the Vendor makes no
representations or warranties whatsoever regarding the fitness of the Real
Property for any particular use, or regarding the presence or absence on the
Real Property, or any surrounding or neighbouring lands or the leakage or
emission from or onto the Real Property, of any toxic, hazardous, dangerous, or
potentially dangerous substance or condition.
The Vendor disclaims any responsibility for soil conditions, subsurface
contents, contours, building conditions and site conditions generally. The Purchaser acknowledges and agrees that
the Real Property is being sold on an "as is" basis.”
18. Provision re: Immediate
Repairs to Grant House to be deleted.
Schedule “E” to remain
DOCUMENT 2
PROJECT HISTORY
On 24 July 2002, City Council (Report
ACS-2002-CRS-RPR-0061) approved the Corporate Accommodations Master Plan
(CAMP) for administrative space so that the amalgamated City of Ottawa could
reduce the total amount of administrative space it occupies by 25%, dispose of
surplus properties, including former city halls, improve service delivery to
residents and achieve permanent operational savings of over $3.5 million
annually from both the consolidation of space and the co-location of staff into
fewer sites.
In May 2003, City Council (Report
ACS-2003-CRS-0040) approved the acquisition of 100 Constellation in order to
achieve these objectives. At that time, four City properties became surplus:
1595 Telesat Court (former Gloucester City Hall), 495 Richmond Road (Denis
Coolican Building where the Health Department is located), 580 Terry Fox Drive
(former Kanata City Hall); and 150 Elgin Street/31 Gloucester Street (“Friday’s
Roast Beef House” property and adjacent City public parking lot). Within 5
months, agreements of purchase and sale had been approved
for the
two former City Halls and the Health Department building for a total dollar
value of $25.1 million.
City Council determined that the 150
Elgin Street/31 Gloucester Street property should not be sold in the same way
as other surplus properties because of its importance as a key site for the
development of the downtown. It is located on Elgin Street, forms part of a
gateway to the downtown core, includes a heritage building, and offers 121
parking spaces at City rates. The Official Plan recognizes that the
redevelopment of strategically located sites like this one is instrumental in
helping the City revitalize the downtown core.
Accordingly, Council directed that
the sale of the land and building at 150 Elgin/31 Gloucester be carried out
under a request for offers to purchase (RFOTP) process based on specific
Council-approved criteria to make sure the property would be developed in such
a way that Council’s objectives would be met.
The sale price was set at $6.6 million, based on two independent
appraisals of the current market value adjusted for the estimated cost of
repairs to the Grant House building at 150 Elgin. The purchaser would therefore
not be chosen on the basis of who offered the best price, but on who would best
meet Council’s direction for a development that would:
On 19 November 2003 (ACS-2003-CRS-RPR-0072), City
Council approved the Request for Offers to Purchase (RFOTP) process for 150
Elgin/31 Gloucester, the Mandatory Requirements together with the Development
Criteria Subject to Point Rating and the Point Weightings, and the composition
of the Evaluation Team for the RFOTP.
The RFOTP was issued on 25 November 2003 and six (6)
responses were received on 2 February 2004. Based on the Council approved selection
process, the response from Morguard Corporation was identified as the preferred
offer.
On 12 May
2004, Council considered a recommendation by the Corporate Services and
Economic Development Committee (Ref.
No. ACS2004-CRS-RPR-0022) to authorize staff to negotiate and execute an agreement
of purchase and sale with Morguard Corporation. At that time Council expressed concerns about whether the RFOTP
process sufficiently addressed provisions and criteria for public use space at
150 Elgin/31 Gloucester to ensure that this space would not become a
commercially-oriented court with little utility for the local arts community.
In this respect, Council also noted the identified
need in the downtown area of a medium-sized performing arts facility (concert
hall) (as set out in the Ottawa 20/20 Arts and Heritage Plan approved by
Council in April 2003) and that none of the offers meeting all of the Mandatory
Requirements of the RFOTP, and subsequently evaluated with respect to the
development criteria, included a concert hall.
As a result, Council considered and carried a Motion
directing staff to undertake the following:
On 23 June 2004 Council considered a staff
report (Ref N°: ACS2004-CRS-RPR-0034) with
respect to an offer received from Morguard Corporation in context of a previous
report considered by Council on 12 May 2004. At that time Council acknowledged the Ottawa Chamber Music Society as the
representative community group for the development of a Festival/Concert Hall,
in accordance with the Ottawa 20/20 Growth Plan Strategy, with responsibility for:
a) Establishing a business plan that demonstrates the viability
of constructing and operating a festival/concert hall at 150 Elgin within
the parameters of the Morguard offer to purchase;
b) Providing the necessary performance specifications necessary
to Morguard in order that it can assess the construction and operating
viability of such a facility within the framework of its proposal;
c) Undertaking the required fund-raising to support both the
construction and the operation of a Festival/Concert Hall.
Council
then directed that the City Manager negotiate an Agreement of Purchase and Sale with
Morguard Corporation and that the
Agreement of Purchase and Sale be returned to Council with a report:
a) Assessing the
viability of the OCMS business plan to construct and operate a
“Festival/Concert Hall with acoustics to support performing arts”;
b) Assessing whether
the proposed Festival/Concert Hall can be constructed within the parameters set out by the offer to purchase as
submitted by Morguard, respecting the financial pro forma, the scheduling, the allocation of community benefit
space and the physical envelope of the proposed complex.
On 13 October 2004 City Council approved the 150 Elgin
Street Concert Hall, Business Plan Evaluation Report (ACS2004-DEV-BUS-0007) to:
1. Support the Ottawa Chamber Music Society
(OCMS) in their pursuit of a concert hall at 150 Elgin Street,
2. Pre-commit the 2005 Capital Budget by $5.47M
to allow a municipal capital grant for the concert hall in the proposed
Morguard building at 150 Elgin Street, with funds to be released to the OCMS
upon:
a. The City receiving prior to September 30,
2006 satisfactory written confirmation from a Chartered Accountant in good
standing representing the OCMS, that all required funding for the construction
of the concert hall is in place save and except the City’s $5.47M share;
b. The City receiving prior to September 30,
2006 an executed memorandum of understanding between Morguard and the OCMS
specifying the terms, conditions and timing of the delivery of the concert hall
space; and,
c. The execution of a Contribution and Community
Access Agreement by September 30, 2006 between the City of Ottawa and the OCMS,
which among other matters will establish the specific timing of the City’s
contribution and the amount of community access required for the concert hall
facility.
On October 13, 2004 City Council also considered
a separate report (ACS2004-CRS-RPR-0044), with respect to Morguard’s revised
development concept dated the 30th of June 2004 that provided for the OCMS
concert hall and approved the terms and conditions for an agreement of purchase
and sale with Morguard. The Agreement of Purchase and Sale with Morguard for
150 Elgin was executed on November 25, 2004. The Agreement of Purchase and Sale
contained provisions that if the OCMS fails to meet its commitments, Morguard
can still proceed with development subject to Morguard providing written notice
to City that OCMS will not be proceeding with acquisition and development of
Concert Hall Space provided that:
a) The City has the first option to purchase or
lease all or a portion of Concert Hall Space for use as a visual or performing
arts facility identified as a priority in Arts & Heritage Plan (e.g.
concert hall, theatre, art gallery or heritage display facility).
b) If the City leases or purchases, the City
will negotiate with Morguard provisions of a lease/sale agreement for the City
facility but the City is still entitled to comparable benefit to that set out
in approved Development Plan for Community Accessible/Public Benefit Space. The
agreement will also provide for extension to time limits for commencement and
completion of construction as required in order to accommodate redesign and
construction of the Concert Hall Space.
c) If the City decides not to lease or purchase
the Concert Hall space, the City and Morguard will negotiate an agreement for
the alternate use of the Concert hall Space to ensure the City still receives
comparable benefit to that set out in approved Development Plan for Community
Accessible/Public Benefit Space and that alternate uses are consistent with
those set out in Concept Plan submitted by Morguard. The agreement will also
provide for extension to time limits for commencement & completion of
construction as required to accommodate redesign and construction of Concert
Hall Space.
d) The City will not be responsible for any
costs to Morguard if OCMS does not proceed with Concert Hall and space is used
for an alternate use.
On 19
January 2005, the Agreement of Purchase and Sale for 150 Elgin/31 Gloucester
was executed by the City and Morguard.
Morguard
submitted its Site Plan application for the development on 9 August 2005 and
Development Plan documents on 12 August 2005, in accordance with the provisions
of the agreement. City staff, as required by the agreement, reviewed the
Development Plan documents and advised Morguard on 23 August 2005 that the
Development Plan was consistent with the material filed with the Site Plan
Application and also with the Concept Plan dated 24 June 2004, approved by City
Council on 13 October 2004 and the Development
Criteria set out in the Request for Offers to Purchase (“RFOTP”) document.
The site plan drawings were
also submitted to the City’s Design Review Panel on 9 August 2005 and a meeting
was held with Morguard on 17 October 2005 to address the Panel’s comments. Morguard then submitted revised site plan drawings on 17 November 2005
in response to agreements reached with the Design Review Panel and also
submitted a letter on 8 November 2005 confirming that revised plans respect the
height limits set out in Schedules 176 & 177 of the Zoning By-law 1998.
On 30 November 2005, Council
approved an amendment to the Agreement of Purchase and Sale (Ref N°: ACS2005-CRS-RPM-0047 with respect to the City
paying the cost of the tipping fees up to an amount of $276K associated with
the disposal of the contaminated material and a restated Agreement of
Purchase and Sale was executed on December 5, 2005.
On 21
December 2005 The sale of 150 Elgin to Morguard closed and, at the same time, a
Development Agreement, Parking Agreement, Non-Merger Agreement and Restrictive
Covenants were executed and registered on title to preserve the City rights
regarding the Concert Hall Space as indicated above.
In March 2006, provincial
funding in the amount of $6.5M was announced for the Community Concert Hall and
was transferred to the City. At the
request of the Ottawa Chamber Music Society, City Council approved the transfer
of $500,000 from the $6.5M provincial funding to OCMS on 24 May 2006 to offset
project management costs and to finalize the design and building program for
the facility.
On 14 February 2007, City
Council approved the extension of the City’s endorsement and funding deadline
from 30 September 2006 to 30 November 2007 (Ref N°: ACS 2007-CPS-CSF-0003) in
order for the OCMS to continue its work aimed at realizing federal government
and private sector funding for the Community Concert Hall.
On 28 November 2007, City
Council granted the Ottawa Chamber Music Society an extension to 28 February
2008 to raise funds for the Community Concert Hall (Ref N°:
ACS2007-CPS-CSF-0013).
At the same November 2007 City Council meeting, a
letter addressed to the Mayor from the
Minister of Canadian Heritage, Status of Women and Official Languages was received,
read and added to Council minutes. This
letter indicated that the federal government had conditionally earmarked up to
$8M for the Ottawa Community Concert Hall, a contribution that would be the
largest to date through the Cultural Spaces Canada program.
The letter also advised that the deadline for consideration of the
federal Community Concert Hall funding file would be extended until February
28, 2008, to allow the OCMS to complete its negotiations with a major sponsor
and to ensure that the builder was able to begin construction as planned.
On 28 February 2008, Ottawa
Chamber Music Society advised the City that it would no longer be pursuing the
concert hall project at 150 Elgin Street and subsequently, on 26 March 2008,
City Council directed (Ref N°: ACS2008-CPS-CSF-000) as follows:
that the $5.475M Capital Project for the Community Concert Hall remain open
until further options for the development of a mid-sized Concert Hall or other
city arts facility, as identified as a priority within the Ottawa 20/20 Arts
and Heritage Plan, can be assessed.”
The City's unilateral
rights to repurchase the 150 Elgin Street property from Morguard expired on 28
February 2008 and, while the City had a first option to lease or purchase the
Concert Hall space based on the provisions of the Development
Agreement between Morguard and the City for use as a visual or performing
arts facility identified as a priority in the City’s Arts and Heritage Plan,
the option has now expired as well. Morguard is currently moving forward with
alternate development plans for the concert hall space as provided for in the
Development Agreement with the City, and so the opportunity to have a concert
hall included in the development at 150 Elgin Street appears to be no longer
viable.
On August 25 2010, Council approved the
implementation of the Arts Court redevelopment project as the City’s prime
opportunity to fulfill a high priority cultural facility need, as identified in
the Ottawa 20/20 Arts and Heritage Plan and, subject to consultation with the
Province, directed to this project the City and Provincial funding initially
set aside for the concert hall project.
DOCUMENT 3
DEVELOPMENT
AGREEMENT - RELEVANT PROVISIONS
The
Development Agreement dated 21 December 2005 sets out the following:
Relevant
Recitals
(D) The Vendor and the Purchaser have
agreed that the Purchaser will develop the Property as a mixed-use development
including residential, office, retail and cultural components for both
community and commercial use as set out in the Report approved by City Council
on October 13, 2004 (the “Concept Plan”), all in accordance with the terms and
conditions set out in this Development Agreement;
(E) In
accordance with the Purchase Agreement, Morguard carried out detailed design
development and studies with respect to the Concept Plan including completion
of a Planning Report and Urban Design/Traffic Impact/Site Servicing/Sun
Shadow/Wind Studies (collectively, the “Development Plan”) in accordance with
requirements and objectives set out in the Purchase Agreement, which was
submitted by Morguard to the Vendor by August 12, 2005 as required by the
Purchase Agreement to demonstrate that the proposed development shown on the
Concept Plan can, in fact, be practically implemented; and
(F) The
Vendor has completed its review of the Development Plan and has satisfied
itself that the Development Plan is consistent with the Concept Plan and meets
the requirements of the development criteria approved by the Council of the
City of Ottawa for the Property.
Relevant Terms and
Conditions
1. The
Purchaser agrees to make its best efforts to market the development as proposed
by the Development Plan submitted to the Purchaser by the Vendor on August 12,
2005 (the “Development”) for the uses set out in the said Development Plan and
more specifically agrees that the retail area shown for the ground floor will
be designed and marketed to target the commercial uses as set out in the
Concept Plan.
2. The
Purchaser agrees that the sale price for at least 25% of the residential units
in the Development will not exceed One Hundred Eighty-One Thousand Dollars
($181,000.00) per unit, plus any applicable taxes, unless otherwise authorized
by the Vendor.
3. (a)
The Vendor agrees, and the Purchaser acknowledges and accepts, that, provided
the Purchaser has complied in all material respects with the terms and
conditions of this Agreement, the Agreement of Purchase and Sale dated
December 5, 2005 and the Parking
Agreement and the Heritage Easement Agreement to be registered subsequent to
this Agreement:
(i) if Development Charges apply to the
residential component of the Development at the time the Purchaser applies for
a building permit for the Development on the Property, the Vendor shall pay, on
behalf of the Purchaser, that portion of the Development Charges applicable to
the residential component of the Development at the time such payment is
required; and
(ii) the Vendor shall pay, on behalf of the Purchaser, that portion of
the Building Permit Fees applicable to the residential component of the
Development at the time such payment is required,
provided that the total amount to be
paid by the Vendor pursuant to
subparagraphs 3(a)(i) and 3(a)(ii) above shall be based on Development
Charges and Building Permit Fees charged by the City of Ottawa as of November
25, 2004 and also provided that the amount to be paid by the Vendor
shall not exceed One Million Three Hundred Thousand Dollars ($1,300,000.00) if
both Development Charges and Building Permit Fees apply and shall not exceed
Four Hundred Thousand Dollars ($400,000.00) if only Building Permit Fees apply.
(b) Notwithstanding the provisions of
paragraph 3(a) above, if at any time after November 25, 2004 and prior to
September 25, 2006:
(i) the amount of Development Charges charged by the City of Ottawa with respect to the commercial, residential or any other component of the Development and/or the amount of Building Permit Fees charged or imposed by the City of Ottawa with respect to the commercial, residential or any other component of the Development are increased by the City of Ottawa over and above the amount of such charges or fees charged as of November 25, 2004 the Vendor and Purchaser agree to negotiate, each acting reasonably and in good faith, an appropriate adjustment in favour of the Purchaser to such increased charges or fees, provided that any such adjustment shall be subject to City Council approval; and
(ii) the Purchaser increases, with the approval of
the Vendor, the total number and/or the mix of residential units such that
there is an increase in the amount of Development Charges and/or Building
Permit Fees payable to the City of Ottawa with respect to the residential
component of the Development, the Vendor and Purchaser agree to negotiate, each
acting reasonably and in good faith, an appropriate adjustment in favour of the
Purchaser to such increased charges or fees, provided that any such adjustment
shall be subject to City Council approval.
4.
The Purchaser agrees to design and
construct, at no cost to the Vendor or the Ottawa Chamber Music Society (the
“OCMS”), the base building and improvements for the Winter Garden, the base
building for the Panoramic Foyers, and the improvements for the Elgin Pocket
Park/Panoramic Roof Garden/Concert Hall Roof Gardens for use as Community
Accessible/Public Benefit spaces (the “Community Accessible/Public Benefit
Space”) all as shown on the Development Plan submitted by the Purchaser to the
Vendor on August 12, 2005 (the “Development Plan”) and the Purchaser agrees to
operate and maintain these spaces as not-for-profit areas at no cost to the
Vendor.
5.
The Purchaser agrees to work with cultural services staff of the
City of Ottawa to commission, at the Purchaser’s cost, a public art project
valued at no less than Sixty Thousand Dollars ($60,000.00) to be incorporated
into the design of the proposed buildings and/or other improvements on the
Property in accordance with the City of Ottawa’s 1% for Art Policy. The Purchaser understands that the Selection
Committee for this project shall have a total of five (5) members made up to
two (2) artists, the Purchaser’s architect, a representative of the Purchaser
and a representative of OCMS.
6. The Purchaser
agrees that direct access for the general public will be designed, constructed,
operated and maintained to connect the Community Accessible/Public Benefit
spaces as shown on the Development Plan, at no cost to the Vendor.
7. The Purchaser agrees that the Elgin Pocket
Park, Winter Garden, Panoramic Roof Garden and Concert Hall Roof Garden areas
and the connections between these areas as shown on the Development Plan shall
be accessible on a daily basis to the general public for the period from 7:00
AM to 12:00 AM or whenever the commercial facilities in the Development are
open, whichever period is greater, except as may otherwise be proposed by the
Purchaser and agreed to by the Vendor in writing and subject to the provisions
of Paragraph 9 below.
8. The Purchaser shall not lease or sell, separate
and apart from the building in which the space is situate, all or any part of
the Community Accessible/Public Benefit Space without having first obtained the
written consent of the City, such consent not to be unreasonably or arbitrarily
withheld or delayed. For certainty, the Vendor acknowledges and agrees that the
foregoing shall not prevent, limit or impair the Purchaser’s ability to lease
or sell the Property as a whole or the entire building and associated lands in
which such Community Accessible/Public Benefit Space is situate provided that
the use of any or all of the Community Accessible/Public Benefit Space shall
continue to be subject to the approval of the Vendor.
9. The
Vendor and Purchaser acknowledge that access to the Panoramic Roof Garden and
Concert Hall Roof Garden will be provided within the Concert Hall space to be
purchased by OCMS, as shown on the Development Plan, and that access to the
general public may be restricted during Concert Hall events and the Purchaser
agrees that the sale to OCMS will be conditional upon OCMS permitting access by
the general public to these roof gardens on a daily basis from 7:00 AM to 12:00
AM, subject to the foregoing and to the needs of OCMS.
10. The Vendor acknowledges that the
provision of Concert Hall space for OCMS on the second floor of the Development
replaces and precludes the provision of Artist Lofts space as set out in the
Report approved by City Council on June 23, 2004 and the Vendor agrees that the
Purchaser shall no longer be required by the Vendor to provide any space for
Artist Lofts in the Development on the Property.
12. (a) The Vendor acknowledges that the sale
of the space designated for the Concert Hall ( the “Concert Hall Space”) by the Purchaser
to OCMS will be conditional on:
(i) OCMS committing, by February 2006, to funding
the cost of the base building area for the Concert Hall and any upgrades to the
base building requirements for the other portions of the Development necessary
to accommodate the Concert Hall and OCMS fit-up requirement, and
(ii) OCMS committing, by
February 2007, to funding and commencing construction
of the improvements for the Concert Hall space.
(b) The Vendor agrees that, should OCMS fail to
meet either of the commitments in subparagraph 12(a) above the Vendor will
still allow the Purchaser to proceed, or continue as the case may be, with the
remainder of the Development.
(c) The Vendor further agrees, and the Purchaser
acknowledges and accepts, should OCMS fail to meet either of the commitments in
subparagraph 12(a) above, to permit the Purchaser to redesign and market the
Concert Hall Space for other uses, subject to:
(i)
the Purchaser providing the Vendor with
written notice that OCMS has not met either of the conditions in subparagraph
12(a) above and that, as a result, OCMS will not be proceeding with the
acquisition and development of the Concert Hall Space;
(ii) the Vendor
having the first option to lease or purchase all or a portion of the Concert
Hall Space from the Purchaser for use as a visual or performing arts facility
identified as a priority in the City of Ottawa 20/20 Arts and Heritage Plan as
adopted by the Council of the City on April 23, 2003 including a concert hall,
theatre, art gallery or heritage display facility. Should the Vendor decide to so lease or
purchase the Concert Hall Space, the Vendor and the Purchaser shall negotiate
and enter into a further agreement which shall include provisions regarding the
lease or purchase of the space and to provide that the Vendor receives
comparable public benefits to those set out in the Development Plan for the
Community Accessible/Public Benefit space. The further agreement shall also
include, without limitation, provisions for appropriate extensions to the time
limits for commencement and completion of construction as required to
accommodate the redesign and construction of the Concert Hall Space and the
preparation and execution of the related agreement between the parties;
(iii) if the Vendor decides not to lease or purchase
the Concert Hall Space, the Purchaser and Vendor then negotiating and entering
into a further agreement with respect to the intended alternate use for, and
the design of, the Concert Hall Space. The further agreement shall include
provisions to provide that the Vendor receives comparable public benefit to
those set out in the Development Plan for the Community Accessible/Public
Benefit space and that the other proposed uses for the remaining portion of the
Concert Hall Space are consistent with the intended mix of uses as set out in
the Concept Plan. The further agreement shall also include, without limitation, provisions for appropriate
extensions to the time limits for commencement and completion of construction
as required to accommodate the redesign and construction of the Concert Hall
Space and the preparation and execution of the relate agreement between the parties; and
(iv) the Purchaser acknowledges and agrees that
the contractual arrangement for the Concert Hall Space is between the Purchaser
and OCMS and that the costs of the Concert Hall Space are the sole
responsibility of the Purchaser and OCMS.
The Purchaser further acknowledges and agrees that the Vendor will not
be responsible for any costs or losses resulting from the re-design, marketing
and/or alteration or construction of the Concert Hall Space to accommodate a
new user of the Concert Hall Space and the Purchaser hereby releases the Vendor
from any such costs or losses which may be incurred by the Purchaser or OCMS.
DOCUMENT
4
PARKING AGREEMENT - RELEVANT PROVISIONS
1. The
conveyance of the Real Property to the Purchaser is and shall continue after
Closing for a term of fifteen (15) years from the date of issuance of an
occupancy certificate for the Parking Facility to be subject to the Purchaser’s
obligation to provide, operate and maintain on the Real Property 121 short-term
public parking spaces (the “short term spaces”) on the uppermost levels of the
Parking Facility that shall be available on a twenty-four (24) hour daily basis
for public parking use.
2. The Purchaser acknowledges that it has received and reviewed a copy of the City of Ottawa’s Parking Criteria Manual (August 2004 draft) and agrees to design and construct the Parking Facility in a manner that is generally consistent with the guidelines of the Parking Criteria Manual.
3.
Except with the prior written consent of the Vendor:
(e)
All short term spaces, as designated
from time to time, shall only be used in accordance with the provisions set out
in the Parking Agreement;
(f)
The Purchaser shall not establish
policies or practices, which would be inconsistent with ensuring the designated
short term spaces are, in fact, available for short-term parking and shall not
be inconsistent with the Vendor’s short-term parking policies or practices;
(g)
The Purchaser shall not reserve any or
all of the short term spaces or permit the use of such spaces for monthly parking,
without the prior written consent of the Vendor.
(h)
The Purchaser shall provide the short
term spaces at hourly rates comparable to public parking lots operated
by, or under agreement with, the Vendor in downtown Ottawa, as approved by
Council on 10 March 2004 or as amended by Council from time to time, provided
that at no time shall the Vendor require that such rates be less than Fifty
($0.50) Cents per twelve (12) minutes except on Saturdays and Sundays at which
times the short term spaces shall be made available to the public free of
charge unless otherwise approved by the Vendor.
The parking rates shall be applied in the same increments as established
by the Vendor from time to time for public parking lots operated by, or under
agreement, with the Vendor in downtown Ottawa.
The Purchaser shall not charge a daily parking rate for the short term
spaces which is less than the daily rate charged at other parking lots in
downtown Ottawa operated by or under agreement with the Vendor;
(e) The Purchaser shall not offer special
daily rates before a specified time (e.g. the “early bird special”) with
respect to the designated short term spaces;
(f) The Purchaser shall make available all
certified financial records and occupancy and usage records respecting the
operation of the short term spaces and allow inspections by the Vendor of these
spaces when required by the Vendor for the purposes of monitoring the
provisions of the agreement.
4. All revenues from the Parking
Facility shall be the property of the Purchaser, its successors and
assigns.
DOCUMENT 5
NON-MERGER
AGREEMENT - RELEVANT PROVISIONS
The following provisions regarding preservation of the Grant House (150 Elgin), tipping fees were included in a restated Agreement of Purchase and Sale dated December 5, 2005 executed between Morguard, as Purchaser, and the City of Ottawa as Vendor. The sale transaction was closed on December 21, 2005 and the above referenced provisions as detailed below survive the closing under the terms of a Non-Merger Agreement dated December 21, 2005 between Morguard and the City.
12. The Purchaser acknowledges that the
building at 150 Elgin Street, known as the Grant House, (the “Heritage
Building”) is designated under By-law Number 21-82 of the former Corporation of
the City of Ottawa as being of historic and architectural value or interest
under Part IV of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended. The
Purchaser agrees that any connection to, or alteration of, the Heritage
Building required by the Development Plan will require an approval to alter the
property in accordance with the provisions of the Ontario Heritage Act and in
accordance with the Heritage Easement described in Paragraph 13 hereof. The
Vendor and the Purchaser acknowledge that a portion of the proposed new
development shown on the Concept Plan will be located on the portion of Real
Property designated under By-law Number 21-82 and the Purchaser agrees and the
Vendor acknowledges that this portion of the new development will require an
approval to alter the property in accordance with the provisions of the Ontario
Heritage Act and in accordance with the Heritage Easement described in
Paragraph 13 hereof.
13. The Purchaser agrees to enter into a
heritage easement agreement with the Vendor, pursuant to Section 37 of the
Ontario Heritage Act, (the “Heritage Easement”) with respect to the Heritage
Building based on terms and conditions as set out in Schedule “E” attached
hereto. The Purchaser further agrees that the Heritage Easement shall be
entered into and registered on title prior to the issuance of a building permit
by the City of Ottawa for the Development.
While the parties hereto acknowledge that the Purchaser may have made
application to the City of Ottawa for a building permit for the Development,
the Purchaser agrees not to request or demand the issuance of any such building
permit from the City of Ottawa until the Heritage Easement is entered into and
registered on title. The
Purchaser further agrees that the area of the Real Property that will be
subject to the Heritage Easement, and on which the Heritage Easement will be
registered, shall be established by the Vendor based on the Protective Measures
prescribed by the Heritage Consultant as set out in Schedule “E” attached
hereto. Provided, that, in no event
shall the area of the Heritage Easement be less than, horizontally, the perimeter of the Heritage Building
as formed by the outside of the exterior walls, and, vertically, on a
stratified basis from immediately below the bottom of the basement floor to the
top of the roof and any appurtenances that protrude beyond the roof including
chimneys and such area shall not be more than the area designated by By-law
Number 21-82.
17. Except as otherwise explicitly set out herein, the Vendor makes
no representations or warranties whatsoever regarding the fitness of the Real
Property for any particular use, or regarding the presence or absence on the
Real Property, or any surrounding or neighbouring lands or the leakage or emission
from or onto the Real Property, of any toxic, hazardous, dangerous, or
potentially dangerous substance or condition.
The Vendor disclaims any responsibility for soil conditions, subsurface
contents, contours, building conditions and site conditions generally. The Purchaser acknowledges and agrees that
the Real Property is being sold on an
"as is" basis, **save and except that the Vendor
shall reimburse the Purchaser for the full amount of any tipping fees incurred
by the Purchaser, up to a maximum amount of Two Hundred Seventy-Six Thousand
Dollars ($276,00000), excluding GST, for the off-site disposal of any
construction rubble and ash fill removed from the Real Property that is
required by governmental regulation to be disposed of at a licensed waste
disposal facility as indicated in the report dated March 31, 2005 from Golder
Associates Ltd. and titled “Materials Management Assessment 150 Elgin Street
Property, Ottawa, Ontario”. Any amounts
to be reimbursed by the Vendor in accordance with the foregoing shall be paid
by the Vendor to the Purchaser within forty-five (45) days following the
submission by the Purchaser to the Vendor of an invoice for such amounts,
together with reasonable supporting documentation to evidence the amount of the
tipping fees incurred by the Purchaser. **Subject to Council approval**
18. The Purchaser further agrees that it will carry out, following
Closing, any repairs to the Grant House as required by the provisions of the
Dolan Lease and the provisions set out in Schedule “E” for the Heritage
Easement. The Vendor shall not require the Purchaser to
undertake any repairs or alterations to the Grant House that are required to
comply with the requirements of the City of Ottawa Building Permit #0409941, a
copy of which has been provided by the Vendor to the Purchaser, to legalize the
existing third floor residential unit. On Closing, the Purchaser shall
provide the Vendor with an irrevocable letter of credit, in a form satisfactory
to the Vendor, in the amount of Four Hundred Thousand Dollars ($400,000.00) to
be drawn upon by the Vendor as it sees fit in its sole discretion in the event
that the Purchaser fails to carry out or complete the immediately needed
repairs identified in the RFOTP documentation (the “Immediate Repairs”). The
Purchaser hereby agrees that in the event of failure by the Purchaser to
complete the Immediate Repairs within one hundred and twenty (120) days of
Closing, the Vendor shall have
the right to carry out or complete the Immediate Repairs and to access the
Grant House after closing to carry out and complete the Immediate Repairs.
1.0
PRESERVATION
AND REPAIR
1.1
The Purchaser agrees to preserve and
maintain, or cause to be maintained, at
all times, the interior and exterior of the building known as the Grant House
located at 150 Elgin Street in the City of Ottawa, (the “Heritage Building”)
more particularly described in Schedule “A” attached to City of Ottawa By-law
Number 21-82.
1.2
The Purchaser agrees to maintain, or
cause to be maintained, the Heritage Building in as good and sound state of
repair as a prudent owner would normally do, so that no deterioration in the
present condition and appearance of the interior and exterior of the Heritage
Building shall take place.
1.3
The Purchaser agrees not to alter, remove,
change in any manner, or do any act to the Heritage Building which detracts
from or is inconsistent with any provision for the Heritage Easement or the
Statement of Reason for Designation attached as Schedule “B” to City of Ottawa
By-law Number 21-82, without first making application to Council pursuant to
the Ontario Heritage Act and obtaining the prior written consent of Council.
1.4
The Purchaser shall utilize the services
of a consultant(s), such as an architect, engineer, or contractor with
demonstrated expertise in the preservation and restoration of heritage
buildings, (the “Heritage Consultant”) in preparing the plans and
specifications for any work on or adjacent to, the Heritage Building that will
from part of any application for consent from Council.
1.5
The Purchaser agrees that the Heritage
Consultant shall set out the requirements and scope for all special provisions
and works necessary to protect the Heritage Building and adjacent heritage
building at 140 Laurier Avenue West (the “First Baptist Church”) during and
after construction of the Purchaser’s proposed development (the “Protective
Measures”)
1.6
The Vendor shall have the right to
request the Purchaser to obtain, solely at the Purchaser’s cost, a “Certified
Construction Estimate” from the Heritage Consultant to confirm the cost of the
Protective Measures.
1.7
The Purchaser shall, immediately prior
to the registration of the Heritage Easement, provide the Vendor with an
irrevocable letter of credit, in a form satisfactory to the Vendor, for an amount
equal to the amount of the Construction Cost Estimate. In the event that the
Purchaser fails to undertake or complete any of the Protective Measures, the
Purchaser hereby agrees that the Vendor shall have the right to undertake or
complete such Protective Measures and draw upon the letter of credit
accordingly.
1.8
The Purchaser agrees not to proceed with any demolition of or
construction to the Heritage Building without prior written consent of Council.
2.0
INSURANCE
2.1
The Purchaser shall, while the Heritage Easement
is in place, provide and maintain, or cause to be maintained, adequate All Risk
Property insurance coverage to a limit which will affect the replacement and
restoration of the Heritage Building.
Such insurance coverage shall include an acknowledgement that the municipality
may, at its option, repeal or enact a new heritage designation by-law in the
event of a loss.
2.2
Evidence of All Risk Property insurance,
in the form of a Certificate of Insurance, shall be provided to the Vendor
prior to the signing of the Heritage Easement Agreement. If requested by the Vendor, a certified copy
of the insurance policy must be provided.
The Purchaser shall notify the Vendor, as soon as possible, if the
policy or policies are cancelled or changed.
2.3
The Vendor may request the Purchaser to
obtain a “Certified Building Appraisal” to confirm the replacement cost of the
Heritage Building, excluding land. The
cost of the appraisal shall be the responsibility of the Purchaser and must be
performed by a competent certified appraiser or the Heritage Consultant.
2.4
The Purchaser agrees that all proceeds
receivable by the Purchaser under the insurance policy, described in paragraph
2.1, must be applied to the replacement, rebuilding, restoration or repair of
the Building in a manner consistent with the heritage aspects of the Heritage
Building and the Statement of Reasons for Designation attached as Schedule “B”
to City of Ottawa By-law 21-82, unless written approval to the contrary has
been received from Council pursuant to the Ontario Heritage Act, R.S.O. 1990, Chapter 0.18. Replacement, rebuilding, restoration or
repair shall not be undertaken without the prior written consent of the Council
of the Vendor.
3.0
RECTIFICATION
OF BREACH
3.1
The parties agree that in the event of a
breach of the provisions herein contained, the aggrieved party(ies) shall give
written notice of the breach to the party(ies) committing the breach,
requesting rectification thereof within a reasonable period of time, and, in
default of rectification, the aggrieved party(ies) may proceed to enforce
compliance with the provisions in any manner it may deem appropriate in
accordance with the law, at the cost and expense of the defaulting party(ies).
4.0
NON-LIABILITY
OF VENDOR
4.1
The Vendor shall not be held liable for
any damage to the Building that may result from the operation of the Heritage
Easement save and except for any such liabilities or claims for or in respect
of any act or deed done by the Vendor, its agents or servants pursuant to
Paragraph 3.1 of the Heritage Easement.
5.0
GENERAL
PROVISIONS
5.1
The parties agree that where there is a
conflict between the provisions of the Heritage Easement and any provision of
the Ontario Heritage Act,
R.S.O. 1990, Chapter 0.18, or any amendment or statute substituted therefor,
the provisions of the Heritage Easement shall prevail.
5.2
The Heritage Easement shall apply to and be binding upon the Real
Property.
5.3
The Purchaser agrees that the Heritage
Easement will be entered into and registered on title prior to the issuance of
a building permit by the City of Ottawa for the Purchaser’s development, as
notice to prospective purchasers, transferees or assigns of the Heritage
Easement obligations described therein. While the parties hereto acknowledge
that the Purchaser may have made application to the City of Ottawa for a
building permit for the Purchaser’s development, the Purchaser agrees not to
request or demand any such building permit from the City of Ottawa until the
Heritage Easement is entered into and registered on title.
5.4
This agreement shall not merge on the
transfer of the Real Property to the Purchaser but shall survive the closing.
5.5
The Agreement and every provision herein
contained shall be to the benefit of and be binding upon the parties hereto and
their respective successors and assigns.
6.0
USE OF THE REAL PROPERTY
The Purchaser expressly reserves for
itself, its successors and assigns, the right to continue use of the Real
Property for all purposes, provided such use is a legally permitted use and is
in accordance with the Development Agreement referred to in Schedule “D” of
this Agreement of Purchase and Sale, and provided that such use is not
inconsistent with the provisions of the Heritage Easement.
DOCUMENT 6
COMPARISON OF MORGUARD CONCEPTS
Use/Facility |
May 2004 Concept |
October
2004 Concept |
October
2011 Concept |
Overall Development |
301,000 sq. ft. (28 storeys) |
315,115 sq. ft. (29 storeys) |
416,486 sq. ft. (23 storeys) |
Residential |
212,700 sq. ft. (170 + units – 68 small) |
181, 700 sq. ft. (162 units – 80 small) |
None |
Leasable
Retail Space |
10,050 sq. ft. (grnd, & 4th flrs.) |
12,790 sq. ft. (grnd. flr. + 5,500 sq. ft. common
area) |
10,592 sq. ft. (grnd. flr.) |
Community
Accessible Public Benefit Space |
16,850 sq. ft. (grnd & 4th flrs.) |
*16,850 sq. ft. (grnd, 2nd, 3rd
& 4th flrs.) |
8,070 sq. ft. (Winter Garden grnd. flr.) |
Saleable/Leasable
Cultural Use Space |
11,000 sq. ft. (Art workshops & lofts grnd &
2nd flrs.) |
27,001 sq. ft.
(Concert Hall 2nd & 3rd flr.) + Community
Use space = 9650 sq. ft. of panoramic foyers and lobbies |
88,000 sq. ft. (Canada Council for the Arts - 2nd to 5th
flrs.) + Programming 3,200 sq. ft. of Winter Garden |
Leasable
Office Space |
50,400 sq. ft. |
73,725 sq. ft. |
351,615 sq. ft. |
Roof Gardens |
18,700 sq. ft. (4th & 5th
flrs. 5,800 accessible to general
public 4th flr. Panoramic roof garden) |
14,360 sq. ft. (4th, 7th &
9th flrs.) 12,860 sq. ft.
publicly accessible on 4th and 7th flrs. |
9,600 sq. ft. (4th & 7th flrs.) 6,050 publicly accessible on 7th flr. |
*Note: The August 12, 2005 Development Plan set out
in the Development Agreement was based on the design plans dated July 2005
which indicated that the interior areas of the development related to Community Accessible/Public
Benefit Space were as follows:
580.71 sq. m. - winter garden
407.71 sq. m. - panoramic
foyer 2nd floor
407.71 sq. m. - panoramic
mezzanine foyer 3rd floor
59.85 sq. m. - panoramic
hall 4th floor
1,455.98 total sq. m.
15,674 total sq. ft. (approximately)