The day after we filed our reply to Urbancorp and the City's statements of defense, the City of Toronto reached out to TMAC to ask if we'd be open to mediation (rather than proceed to court with our claim). Of course, this is exactly what we'd been asking for all along–for the City to simply talk to us and make time and space for all parties to come to a positive resolution.
It took almost two months to confirm it, but we're very excited to have nailed down a date for mediation: October 23.
We are confident the City shares our goal of conveying the community arts space to the rightful and intended operator—the Toronto Media Arts Centre—and that we'll have great news to share with this incredibly supportive and energized community at the end of October.
Thank you again to the community, from artists to donors, funders to neighbors, for your constant support. We're so excited to share our amazing space with you soon!
We filed a joint reply to the City's and Urbancorp's statements of defence today. You can read the whole thing here:
Reply to Edge on Triangle Park and City of Toronto (PDF)
The City claims its conduct was justified as a “good faith attempt to support the City’s objective of ensuring that the Space could be successfully operated for the benefit of the Community.” Instead, the City's actions have had the exact opposite effect, as it knew or should have known they would. If the City had simply fulfilled its obligations, TMAC would already be operating the space and providing a benefit to the community.
Instead, the Space sits vacant with no prospect of the community receiving the promised benefit from it in the foreseeable future. The City's careless actions may delay operation of the Space for months or years if it does not take steps to begin mediation soon.
The City attempted to colour the proceedings with an attack on TMAC's alleged “financial and operational” problems. These allegations are untrue and legally irrelevant — our right to purchase the space was not conditional on the City’s continuing faith in our abilities — and should be disregarded entirely. (We did think the City's claim that TMAC has "no experience in operating a very large number of events" was particularly funny, having run between our orgs about 1,500 events in the last four years alone.)
Urbancorp's claim that TMAC's rights could be terminated by Urbancorp's own delays is incorrect and ridiculous, contradicted by the plain words of the agreement.
Urbancorp claims that because it did not fulfill its pre-closing obligations by May 3, 2015, its obligations to complete the transaction simply disappeared. No suggestion has been made that TMAC lost its right to purchase the space through anything it did or failed to do.
Urbancorp failed to work diligently and in good faith to complete the sale, robbing TMAC of close to $800,000 in investment and four years of work, and the community of the arts and cultural space it was promised.
TMAC remains open to talking to the City about how to resolve this situation. We need Councillor Bailao to meet us halfway and take steps to begin a formal, transparent, accountable process to get everyone to a positive resolution. It's not too late for the City to take responsibility for its actions and do right by TMAC, Toronto artists and the West Queen West community.
While we wait on the City to decide how it wants to proceed (whether to leave the space sitting empty for years or simply talk to us), TMAC continues to operate on the assumption that we will soon be able to occupy the space we designed and built. That means:
We're very grateful to our lead donors and funders for their continued support! If you're interested in TMAC's future, consider making a tax-deductible donation. Stay tuned on Twitter and Facebook, join our mailing list, and we'll keep in touch!
Today, the City of Toronto responded to the statement of claim TMAC filed on May 28. It’s an interesting document filled with many assertions and much erroneous information. We are curious to see how the Court responds to the City’s claims.
On May 3, TMAC was ready, willing and able to close.
The City did not have the right to direct Urbancorp not to close with us.
It seems the City viewed the May 3 outside date as an “escape hatch” to get out of a deal it simply did not want to uphold, instead of following through with the agreements it made.
Throughout this four-year process, TMAC proved it could rise to every challenge encountered, from construction delays caused by condo flooding, to changing TMAC member priorities and resources. We held up TMAC’s end of the bargain, right up to tendering our closing deliveries on May 3.
TMAC wholeheartedly stands by our claim. We invite the City to make good on its promises and ensure this community benefit does not fail West Queen West.
About a month ago, TMAC filed a statement of claim against the City of Toronto and the property developer Urbancorp. It was a sad end to a four-year collaboration that was supposed to result in a new media arts centre our neighborhood, members, and community could be proud of — a place to build the future of our organizations.
When that was taken away, we felt hopelessly backed into a corner.
But as stewards of public funding, as small non-profits with long histories planning our future as part of this collaborative organization, we could not simply shrug our shoulders and walk away.
As the weakest party in a three-way agreement, and without the City as an advocate, we had no choice but to protect ourselves by filing a claim.
We want our building back, yes! We also want West Queen West to have the community-engaged arts space it very much deserves and needs. The one Active 18, the community and all our organizations have worked so hard for.
And we want to ensure future Section 37 deals between developers, the City and non-profits do not go as terribly sideways as ours did at the last minute.
We can fix this together. We want to fix this together. Bring TMAC back to the table. Rebuild the trust and goodwill needed to ensure Toronto can continue to secure the cultural spaces that make our city both vibrant and livable.
The state-of-the-art, purpose-built media arts facility we secured in 2011 through a Section 37 deal with condo developer Urbancorp and the City of Toronto has been ripped out from under us just as we were preparing to move in. We are frankly mystified by the lack of support and facilitation the City provided to ensure Urbancorp did not default on this deal.
Despite a fully executed purchase agreement that obligated Urbancorp to build and deliver this space to TMAC, Urbancorp failed to complete work and close on the property by its deadline.
With construction nearly done, and TMAC agreeable, there was no reason for Urbancorp not to extend this date in order to give itself time to complete the work and close the transaction.
Instead, the City of Toronto directed Urbancorp to allow the date to pass, apparently because it intended to hand the facility over to real estate developer Artscape in the final hour. [Edited June 26 to add: Indeed, Artscape CEO Tim Jones confirmed in the media that Artscape became involved in our project at the City's request weeks before the outside date of our agreement, and "recommended 'a reset' to city officials and the developer" — despite our rejection of Artscape's offer of "assistance"]
The role of the City was to facilitate the agreement and ensure Urbancorp delivered on its promises to the community and TMAC. That it failed to do so demonstrates not only bad faith but also a gross breach of community trust.
In what we believe was an attempt to justify this interference and discredit TMAC, our local Councillor Ana Bailão made unreasonable and irrelevant requests — just weeks before Urbancorp’s deadline — under threat of "canceling" our agreement, which she had no power or authority to do.
We obliged, but were in effect ignored.
Urbancorp refused to close the transaction by the deadline, despite acknowledging TMAC was ready, willing and able to close. Because of their failure:
While Urbancorp suffers no consequences for its default, and indeed enjoys the profits of its 6-story density increase, TMAC is left to answer to public and private funders who relied on the City’s purported support. Our member organizations are now scrambling to relocate. And four years of cash-strapped arts administrators’ time has been wasted designing, stewarding, and planning a future in a facility that will now be handed over to a different owner.
The disastrous consequences of the City’s bad faith and Urbancorp’s self-interest apply not only to TMAC and its member organizations, but also to all Toronto arts non-profits. Trust between provincial and federal arts funders and the City will be deeply eroded. The impact of public input on community benefit contributions is in doubt. It’s unlikely another deal like this will ever happen again if the termination of our agreement is not reversed.
The community made its needs clear through the original consultation process in 2011.
Now, despite TMAC’s legal interest in the property, the City of Toronto is attempting to engage the public in a new consultation process to find a different operator for the space — even before responding to our claim.
TMAC remains ready, willing and able to close. All we want is for Urbancorp to deliver on the promises it made and complete the transaction — nothing more, nothing less. The City has the authority and right to compel them to do so, and a responsibility to protect this unique Section 37 benefit in West Queen West by facilitating its stewardship by the rightful and intended owner.
TMAC formed to secure permanent affordable space for media arts non-profits
TMAC commissions needs assessment for shared facility
TMAC and Urbancorp sign a letter of intent
Urbancorp and the City enter into Section 37 agreement
Urbancorp, TMAC and the City finalize Agreement of Purchase and Sale (read it!)
City directs Urbancorp not to complete sale, despite facility being substantially completed for occupancy and subsequently registered
TMAC tenders closing deliveries; Urbancorp refuses to complete the transaction
TMAC files a statement of claim against Urbancorp and the City of Toronto for specific performance of the APS, requiring Urbancorp to complete the sale
City provides notice of public consultation and intent to move forward with an RFP process, despite a legal action by TMAC asserting its rights to the space
A "raucous" community consultation attended by 200+ sends a message to the City: The community wants TMAC in its space.