Tripartite Agreement (City of Langford / YMCA / Westhills)

PART 1 - DEFINITIONS AND TERMS FROM OTHER AGREEMENTS

1.1

Certain defined words, terms and phrases contained in the Services Agreement and Lease are incorporated into this Agreement as Schedule "A".

1.2

The Parties have agreed that the name of the Building/Recreation Centre will be "Westhills YMCA/YWCA" and the Aquatic Facility will have the sub-name "Langford Aquatics."

1.3

The Term of this Agreement will be as set out in Schedule "A."

PART 2 - EARLY WARNING NOTIFICATION

2.1

The parties agree that it is critical to the success of the Aquatic Facility that all parties to this Agreement uphold their obligations under the Services Agreement, the Lease, and this Agreement. Accordingly, should any party become aware that any other party is in breach of an obligation under one of those agreements or is otherwise conducting itself in such a way as might jeopardize the success of the Aquatic Facility, the party becoming so aware will notify the other parties to this Agreement.

PART 3 - TERMINATION OF LEASE OR SERVICES AGREEMENT

3.1

The provisions of this Part 3 apply in the event the Lease or Service Agreement is being terminated for cause and the Y is no longer the operator ofthe Aquatic Facility.

3.2 Termination of Agreements

In the event the City intends to terminate the Services Agreement as provided in the Services Agreement prior to the expiry of the Term, or WLC intends to terminate the Lease as provided in the Lease prior to the expiry of the Term, the terminating party will advise the other parties as soon as is reasonable practical to do so, and will advise of the date ofthe intended termination.

Notwithstanding any other provision relating to termination or cancellation of either the Services Agreement or the Lease, in the event the City terminates or cancels the Services Agreement, WLC will terminate and cancel the Lease concurrently therewith; and in the event WLC terminates or cancels the Lease prior to expiry ofthe Term, the City will terminate and cancel the Services Agreement.

Where the Lease and Services Agreement are terminated and cancelled, the follow provisions apply:

i. WLC will not remove from the Aquatic Facility any furniture, equipment or other chattels or fixtures it obtains ownership of through the course of termination of the Lease. Such chattels or fixtures will be left at the Aquatic Facility for use by the City or the new service provider for the term of the New Services Agreement and New Lease.

ii. The City will use its best efforts to locate a new service provider for the Aquatic Facility (the "New Service Provider") and to enter into a new agreement on the same terms and conditions as the Services Agreement with such service provider (the "New Services Agreement");

iii. In the interim, the City agrees to:

1. Rent the Aquatic Facility from WLC on a month to month basis, it being agreed and understood that: A. Neither the City nor WLC will have the right to cancel the month to month lease until such time as a New Service Provider is operating the Aquatic Facility and Rent is being paid by the new provider to WLC under a lease on the same terms and conditions as the Lease (the "New Lease") and the parties (being the City, WLC and the New Service Provider) have entered a new tri-partite Agreement on the same terms as this Agreement (the "New Tripartite Agreement"); and B. The Rent payment for the month to month lease will be the same as the Rent paid by the Y to WLC; and C. The City's obligation to rent the Aquatic Facility will terminate upon payment of Rent under the New Lease by the New Service Provider.

iv. Any portion of the Deposit being held by WLC at the time the City commences renting the Facility will be applied to Rent payable by the City at the times and using the process set out in the Lease. Should the City's obligation to rent the Aquatic Facility terminate under 3.2(c)(iii)(C) > WLC will refund to the City a corresponding amount of the Deposit being held by it to the amount of any deposit paid to WLC by the New Service Provider. Any amount of the Deposit in excess of the deposit received from the New Service Provider will be retained by WLC until the termination or expiration ofthe New Lease.

d. The New Services Agreement, New Lease, and New Tripartite Agreement will be identical to the Services Agreement, Lease, and this Agreement respectively, other than that the term of the New Services Agreement and New Lease will be the time that would have remained in the Term under the Services Agreement and Lease at the time the New Services Agreement and New Lease are entered into, and that any provisions in the Lease that by necessary implication can pertain only to the Y as the operator of the Aquatic Facility will be omitted;

e. Once a New Service Provider has been found, the City will notify WLC in writing. WLC will have the right to approve the new operator, such approval not to be unreasonably withheld and given within thirty (30) days of such notice. The parties agree that WLC's financial institution's refusal to approve the New Service Provider will be considered a "reasonable" basis for WLC to disapprove the New Service Provider. Where WLC does not advise the City within the said thirty (30) days, WLC will be deemed to have approved the New Service Provider.

f. Once the New Service Provider has been approved, the City and WLC agree that within 30 days following execution by the New Service Provider of the New Service Agreement, New Lease, and New Tripartite Agreement they will also execute the New Service Agreement, New Lease and New Tripartite Agreement as required.

g. The City will continue to purchase services under the New Services Agreement immediately upon that agreement being effective. The effective date will be the day Rent is paid by the New Service Provider to WLC under the New Lease.

This Agreement will automatically terminate upon execution of the New Tripartite Agreement by all parties to that agreement.

PART 4 - CITY AGREEMENT TO RENT ADDITIONAL SPACE

4.1

In addition to the Services Agreement between the Y and the City and the Lease between the Y and WLC, the City agrees to enter into a lease with WLC (hereinafter the "City Lease") to rent approximately 4,000 sq. ft. of space (hereinafter the "Demised Premises") in the Recreation Centre for one term of five (5) years commencing on the Opening Day of the Aquatic Facility and terminating on the 5 t h anniversary thereof.

4.2

The parties agree that the rent for the Demised Premises will be $25.00 per sq. ft. for each year ofthe term.

4.3

The City will have the right to assign or sub-let any or all of the Demised Premises provided that assignment by the City will not relieve the City of its obligations under the City Lease if the assignee defaults in its obligations to WLC. WLC will have the right to approve any assignee or sub-tenant, such approval not to be unreasonably withheld and given within thirty (30) days of notice of assignment or sub-let. Where WLC does not advise the City within the said thirty (30) days, WLC will be deemed to have approved the assignment or sub-let.

PART 5 - USE AND RELEASE OF INFORMATION

5.1

The parties represent, warrant and covenant that they will comply with all laws, bylaws, ordinances, regulations, and the directive of any public authority having jurisdiction, including the requirements of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996 c. 165 as amended.

5.2

Where information of a party deemed confidential by that party is shared with the other parties hereto, the other parties agree:

a. to use the confidential information of the other party solely for the purposes of this Agreement, the Services Agreement and the Lease and for no other purpose;

b. to protect the confidential information of the other party and not disclose the confidential information other than to persons who have a bona fide need to have access to such confidential information in order for the parties to carry out the purposes and objectives of this Agreement, the Services Agreement and the Lease;

c. No part of this section prevents disclosure by a party of any confidential information if, in the written opinion of the party's legal counsel, the disclosure is legally required to be made in a judicial, administrative, or governmental proceeding or pursuant to the party's obligations under any applicable legislation;

d. Information will be not be considered confidential i f it: i. is in the public domain prior to its disclosure by a party; ii. is in the receiving party's possession prior to its disclosure by the other party; iii. lawfully enters the public domain through no violation of this confidentiality obligation after disclosure to another party; or

e. The covenants in this section 5 shall survive the termination of this Agreement, the Services Agreement and the Lease for a period of one year from the date of termination.

PART 6 - ASSIGNMENT

6.1

In the event WLC assigns its right, title and interest in and to the Lease, WLC may also assign its right, title and interest in this Agreement without the consent of the other parties.

PART 7 - GENERAL PROVISIONS

7.1

All notices required or permitted to be given under this Agreement must be in writing and may be delivered by hand, sent by facsimile or forwarded by registered mail to the addresses shown on the first page or any other address of which notice in writing is given.

7.2

Time is of the essence respecting this Agreement.

7.3

This Agreement is governed by and will be construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein.

7.4

This Agreement survives any termination of the Services Agreement or Lease, or any New Services Agreement or New Lease with any other service provider.

7.5

Other than provided for herein, none of the parties shall assign this agreement to any other party without the express written consent of the other parties.

7.6

No amendment to this Agreement shall be effective unless consented to in writing by all the parties.

7.7

The parties covenant and agree that in the event any provision of the Services Agreement or Lease are altered, modified, amended, deleted, or replaced, the parties to the Agreement being amended will forthwith notify the party not a party to that agreement.

7.8

No waiver by either Party of any default by the other in the performance of any of the provisions of this Agreement will operate or be construed as a waiver of any other or future default or defaults hereunder, whether of a like or different character.

7.9

Each Party will execute and deliver all such further documents and do all such further things as may be reasonably requested by the other Party to give full effect to the intent and meaning of this Agreement.

7.10

Nothing in this Agreement will create a partnership, joint venture, or employment. The parties acknowledge each is an independent party in entering into this Agreement, the Services Agreement and the Lease.

7.11

This Agreement may be executed by the parties in one or more counterparts and may be delivered by facsimile or other means of electronic transmission, each of which when delivered shall be deemed to be an original and all of which shall together constitute one and the same Agreement.

7.12

This Agreement shall be binding upon and enure to the benefit of, the parties and their respective successors and permitted assigns.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above by their respective authorized representatives.

CITY O F / D ^ G f F p R D , by its authorized signatories:

YMCA - Y W C A OF GREATER VICTORIA by its aud^ized^ignatories:

WESTHILLS LAND CORP. by its authorized signatories:

Authorized Signatory

Authorized Signatory