The Lease Agreement between City of Toronto, Empire Communities (2183 Lakeshore Blvd) Ltd. and Toronto and Region Conservation Authority (February 1, 2013)

I acquired this Lease Agreement via a FOIA Request. Though the Lease Agreement is mentioned in passing on various documents available online, the entire lease has not been available until now. Perhaps this is because the Lease was shared via regular email and was posted neither on the City of Toronto’s nor the TRCA’s website.

The full Lease Agreement can be found after my observations. My observations are in blue. The italics are my emphasis, the bold is found in the original document.

In this Lease Agreement:

“Landlord” = City of Toronto “Tenant” = Empire Communities (2183 Lakeshore Blvd.) Ltd. “Authority” = Toronto and Region Conservation Authority (TRCA) “The Park” = Humber Bay Park East “Leased Premises” = area of Humber Bay Park East containing the Eau du Soleil Sales Centre

Humber Bay Park East (the “Park”) in the City of Toronto is owned by the Authority [TRCA] and managed on its behalf by the Landlord [City of Toronto] pursuant to Management Agreement between the City of Toronto and TRCA (October 11, 1972). The Management Agreement does not allow the Landlord to lease or dispose of the lands without the prior written approval of the Authority.

The Landlord [City of Toronto], with the consent of the Authority [TRCA], agreed to lease a portion of the Park [Humber Bay Park East] to the Tenant [Empire Communities Ltd.] for the purpose of constructing and operating a condominium sales office and associated parking lot, on the terms and conditions set out in this Agreement.

Toronto's official interactive map clearly indicating the parcel of land at park Lawn Rd. and Marine Parade Dr. is a part of Humber Bay Park East.

One of the final clauses in this Lease is: (31) This Agreement and the Schedules attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between the Landlord, the Authority and Tenant concerning the Leased Premises and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as are set forth in this Agreement. Except as otherwise provided herein, no subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties unless in writing and signed by each of them.

According to this last clause, the donation of the Eau du Soleil in 2014 had no validation because nothing was in writing and signed by all three parties. Also, due to various other conditions in the Lease Agreement, it would have been a breach because proper protocol was not followed. Furthermore, up until March 2016, the TRCA was unaware of the building being gifted to another organization.

1. (a) Pursuant to the terms of the Management Agreement and as agent for the Authority, the Landlord hereby leases the Leased Premises to the Tenant for the purpose of constructing and operating a condominium sales office and associated parking lot and for no other purpose, for a Term of Three (3) Years, commencing on the date upon which a building permit for the sales office is issued by the City (the “Building Permit”).

(b) The Tenant does not have the right to use any land owned by the Landlord or the Authority beyond the boundary of the Leased Premises.

The original Lease was only for a sales centre and parking lot and expired on March 31, 2016. Empire Communities Ltd. obtained 2 new leases for other purposes in August 2015. Records of signed documentation and the TRCA’s approval of these new agreements, one of the conditions of the original Lease, were not provided via this FOIA request. Thus, it is unclear if TRCA was aware of these two new agreements between the Business Division of PFR and Empire Communities Ltd.

2 (1) The Tenant shall pay Rent as follows:

(a) One Hundred and Twenty-Three Thousand Dollars ($123,000.00) per annum plus HST as described in section 19 of this Agreement, for a total of One Hundred and Thirty-Eight Thousand Nine Hundred and Ninety-Nine Dollars ($138,990.00) per annum, payable in advance monthly instalments of Eleven Thousand Five Hundred and Eighty-Two Dollars and Fifty cents ($11,582.50), commencing on the date upon which the Building Permit is issued.

The City made $416,970 of the original 3 year Lease Agreement. With the two new lease agreements, Net revenue generated to the City will be $101, 631. 04 for the Crane Swing Agreement and $45, 931.92 for the Tieback Agreement plus all and any applicable taxes for the term of the agreements (just over a half million dollars for almost 5 years of leasing).

3(1) The Tenant covenants with the Landlord:

(g) to use the Leased Premises only as a sales centre and associated parking lot for condominiums to be constructed on the Tenant’s adjacent land at 2183 Lake Shore Boulevard West;

This condition is self-explanatory.

(m) if the Landlord elects to retain the building, to leave the Leased Premises (including all buildings and HVAC, electrical, mechanical, plumbing and other systems if the building is retained by the City) in a state of good repair and in good working order, upon the expiry or other termination of this Agreement or any renewal thereof, subject only to reasonable wear and tear;

There was nothing in writing from the Landlord [i.e. City of Toronto] stating that they wanted to retain the sales centre after the lease expired on March 31, 2016 (or December 31, 2017 with the new leases). Councillor Mark Grimes did not submit the mandatory request to re-purpose the sales centre when it was first “donated” to the HBSCA in 2014. He did submit a request in February 2016; almost 17 months after the sales centre was “gifted.” This request coincided with general public outcry against the proposed pavilion in Humber Bay Park East, as well as HBSCA’s public denouncement of the new location. Furthermore, according to the conditions of this Lease Agreement, such a donation would have had to been approved and signed in writing by all three parties: the Landlord, the Tenant and the Authority. This did not happen in 2014, nor has it happened now.

(n) not to assign, sub-lease or otherwise part with possession of all or any portion of this Agreement or the Leased Premises without the prior written consent of the Landlord, which consent may not be arbitrarily and unreasonably withheld;

(o) upon the expiry or other termination of this Agreement or any renewal thereof, at the Tenant’s own risk and expense, to remove from the Leased Premises within Sixty (60) Days (Ninety (90) days if the removal is of a structural nature), all chattels belonging to the Tenant, (and any or all structural or other improvements to the Leased Premises, but only if so requested by the General Manager), with all damage, if any, caused by such removal made good by the Tenant, and to leave the Leased Premises in good repair, reasonable wear and tear only excepted, and free of all waste material/debris/rubbish, all to the reasonable satisfaction of the General Manager.

If the new agreements did not extend the lease from March 31, 2016 until December 31, 2017, then the Sales Centre might have already been torn down by now, unless requested otherwise by the General Manager. As the Lease does not state nor define who the General Manger is, I assume it must be Peter Wallace http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=56f632d0b6d1e310VgnVCM10000071d60f89RCRD

Also, the Tenant [Empire Communites Ltd.] committed to improving the subject site with a park upon termination of the lease.

(5) (4) The Tenant shall not pursue stand-alone advertising signage opportunities and sponsorships with third parties without prior written consent of the General Manager, which may be unreasonably and arbitrarily withheld at his sole direction.

It is unclear whether Councillor Mark Grimes’ appearance in an Eau du Soleil promotional advertising video is in conflict with this condition. This video was made around the time of the 2014 elections as well as the “donation” of the sales centre to HBSCA. http://blog.empirecommunities.com/2014/10/behind-scenes-eau-du-soleil-city-councillor-mark-grimes/ In an email response to a CBC News request for comment, Grimes wrote, "I don't believe appearing in the promotional video contravenes any section of the Councillor Code of Conduct. I was simply helping to promote Ward 6, as I always do." He went on to

say that he has not appeared in any other videos and that he has not been paid to do so. http://www.cbc.ca/news/canada/toronto/toronto-integrity-commissioner-asked-to-investigate-coun-mark-grimes-1.2946984

20. Any obligation of the Tenant which is outstanding and unfulfilled on the expiry or other termination of this Agreement or any renewal thereof, shall survive until fulfilled.

Empire Communities Ltd. committed to improving the subject site with a park. According to this condition, it is a binding commitment.

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Humber Happenings, Winter 2014, p. 17