Tripartite Agreement – Schedule A (Definitions and Rent Schedule)

Tripartite Agreement – Schedule A (Definitions and Rent Schedule)

SCHEDULE "A" — DEFINITIONS

(a) "Additional Rent" means all sums of money to be paid by the Tenant, whether to the Landlord or otherwise under the Lease, except for Annual Base Rent and GST/HST payable by the Tenant.

(b) "Annual Base Rent" means the following:

Market Rent: The Landlord will retain a qualified commercial real estate appraiser who will determine the then current market Annual Base Rent which may not:

(i) for the first year of the five year periods representing years 6 through 10 and 11 through 15, be less than 100% nor more than 115% of the rate during the previous year; and

(ii) for the first year of the five year periods representing years 16 through 20 and 21 through 25, be less than 95% nor more than 115% of the rate during the previous year.

The Annual Base Rent for the first year of each five year period commencing in year 6 will be the then current market rate determined by the appraiser, with an increase or decrease in each subsequent year of the five year period reflective of the increase or decrease in the Consumer Price Index for Victoria ("CPI") for the preceding twelve month period. Notwithstanding the foregoing:

(1) if the increase in CPI is 4% or less for a given year ofthe Term to which the CPI provisions apply, the increase in Annual Base Rent for that year will be the amount of the CPI increase;

(2) if the increase in CPI is more than 4% for a given year of the Term to which the CPI provisions apply, the increase in Annual Base Rent for

that year will be 4%; and

(3) if CPI decreases for a given year of the Term to which the CPI provisions apply, the Annual Base Rent will decrease by the amount ofthe decrease in CPI, provided however that the Annual Base Rent in any given year of a five year period set out in the table above shall not be less than the Annual Base Rent of the first year of that five year period.

Should the Tenant disagree with the Landlord's appraiser's valuation of market rent, the Tenant may retain its own appraiser to calculate then current market rent, which appraisal shall only use the direct comparison approach i f it can in fact identify a building or buildings that are directly comparable. I f the parties cannot agree on market rent after reviewing the two appraisals, either party may elect, by giving notice in writing to the other party, to proceed to arbitration to have an arbitrator determine market rent, which the parties agree shall nonetheless be between 100 and 115% of the previous year's rent. The costs of such arbitration will be split equally between the Landlord and Tenant.

(c) "Building" means that certain building and those certain areas and improvements to be constructed on the Lands and all additions and replacements to it;

(d) "Business Day" means a day other than a Saturday, Sunday or statutory holiday in British Columbia;

(e) "Completion Date" means the date on which the Landlord advises the Tenant it will complete construction of the building, or as extended under the Lease;

(f) "Deposit" means the sum of $250,000.00 which will be paid by the Tenant to the Landlord;

(g) "Force Majeure" means any act of God, major storms, civil disturbance or any similar major event or occurrence not within the control of a party and which by the exercise of due diligence by such party could not have been prevented, but lack of funds on the part of such party shall not be deemed to be a Force Majeure;

(h) "Landlord" means Westhills Land Corp., Inc. No. BC0752971;

(i) "Lands" means those lands owned by WLC being a portion of Part of Block I , Sections 86, 87, 88, 89 and 90, Esquimalt District, and Section 87 Metchosin District, Plan 1139, which will be subdivided for the construction of the Recreation Centre;

(j) "Lease" means the lease agreement between the Y and WLC for the Aquatic Facility dated effective fekrvAry 2.gr*> ;

"Lease Year" means, in the case of the first Lease Year, the period beginning on the Completion Date and terminating 12 months from the last day of the calendar month in which the Completion Date occurs (except that if the Completion Date occurs on the first day of a calendar month, the first Lease Year will terminate on the day prior to the first anniversary ofthe Completion Date) and, in the case of each subsequent Lease Year, means each 12-month period after the first Lease Year;

"Opening Day" means the first day the Aquatic Facility is open to the public for use;

"Purchase Commitment" means the annual payment by the City to the Y in consideration of the Y operating and maintaining the Aquatic Facility and the programs offered therein, initially in the amount of $750,000.00 per year, and which may increase every two years by a percentage amount equal to the percentage increase in the population of the City during that period, to a maximum of $950,000.00 annually;

"Rent" means the Annual Base Rent, Additional Rent, and all other sums payable by the Tenant to the Landlord under the Lease except for goods and services tax payable by the Tenant.

"Rentable Area" means approximately 57,000 ft 2 on three floors, rental area to be confirmed using BOMA 2010 Office Standard measurement;

"Report" means the statistical summary prepared by the Y of the usage of the Aquatic Facility including programs, activities, events and services; membership numbers, and any notable accomplishments, challenges or trends during the year;

"Services" means all of the activities and services necessary and incidental to the performance of the Y in operating and managing the Aquatic Facility and offering programs to the public under this Agreement, including but not limited to, the obligations set forth herein and any other direction by or obligation to the City arising from this Agreement;

"Services Agreement" means the agreement whereby the City agrees to purchase services from the Y for its operation of the Aquatic Facility;

"Substantial Breach" means: any event which will, as a result, have a material adverse effect upon the delivery ofthe Services or the performance ofthe Y under this

Agreement, including but not limited to:

i. temporary or permanent closure of any part of the Aquatic Facility where the consent of the City has not been obtained in writing;

ii. failure to maintain accurate books and records in the operation of the Aquatic Facility;

iii. the petitioning into bankruptcy of the Y or the making of any assignment for the benefit of his creditors;

iv. the institution of proceedings for the dissolution or winding-up oftheY.

b. termination ofthe Lease;

"Tenant" means YMCA/YWCA of Greater Victoria, Inc. No. S-0006088.

"Term" means 25 years, commencing on the day that is two months after the Completion Date and expiring on the 25 t h anniversary of that date unless this agreement is earlier terminated in accordance with the provisions of this agreement.