The URL can be used to link to this page

Additions 2010/12/13 ADDITIONS TO COUNCIL, MONDAY, DECEMBER 13, 2010 COMMITTEE OF THE WHOLE 1. F- 2010 -66 - 2011 General Insurance Report COUNCIL DEPUTATIONS 1. Copy of MPP Craitors Bill 22 - An Act to amend the Children's Law Reform Act Planning 1. PD- 2010 -96 - AM- 2009 -011, 5547 -5559 Portage Road and Part of 5895 North Street a) Correspondence from Alita Elefante. Consent Agenda 1. F- 2010 -61- 2009 Financial Statements Additional Disclosure BY -LAWS 1. 2010 -165 A by -law to authorize the execution of a Lease and Operating Agreement with Niagara Convention and Civic Centre Inc., respecting the lease and operation of the Niagara Convention and Civic Centre. 2ND SESSION, 39Th LEGISLATURE, ONTARIO 2' SESSION, 39' LEGISLATURE, ONTARIO 59 ELIZABETH II, 2010 59 ELIZABETH 11, 2010 Bill 22 Projet de loi 22 An Act to amend the Loi modifiant la Children's Law Reform Act Loi portant reforme du droit de I'enfance Mr. Craitor M. Craitor Private Member's BiII Projet de loi de depute 1st Reading March 30, 2010 1" lecture 30 mars 2010 2nd Reading 2` lecture 3rd Reading 3 lecture Royal Assent Sanction royale Printed by the Legislative Assembly Imprime par I'Assemblee legislative of Ontario de ('Ontario O ■ EXPLANATORY NOTE NOTE EXPLICATIVE The Bill amends the Children's Law Reform Act to emphasize Le projet de loi modifie la Loi portent reforme du droit de the importance of children's relationships with their parents and I'enfance de facon a faire valoir l'importance des relations grandparents. qu'ont les enfants avec leurs pere et mere ainsi qu'avec leurs grands - parents. Subsection 20 (2.1) of the Act requires parents and others with Le paragraphs 20 (2.1) de la Loi exige des pere et mere et autres custody of children to refrain from unreasonably placing obsta- personnes qui ont la garde d'enfants de ne pas faire deraisonna- cles to personal relations between the children and their grand- blement obstacle aux relations personnelles qui existent entre les parents. enfants et leurs grands- parents. Subsection 24 (2) of the Act contains a list of matters that a Le paragraphe 24 (2) de la Loi enumere les questions dont le court must consider when determining the best interests of a tribunal doit tenir compte pour etablir l'interet veritable d'un child. The Bill amends that subsection to include a specific ref- enfant. Le projet de loi modifie ce paragraphe de fapon a inclure erence to the importance of maintaining emotional ties between une mention expresse de l'importance du maintien des liens children and grandparents and the willingness of each person affectifs qui existent entre enfants et grands- parents ainsi que de applying for custody to facilitate as much contact with each la volonte de chaque personne qui demande, par requete, la parent and grandparent as is consistent with the best interests of garde d'un enfant de faciliter le plus de contact possible avec ses the child. pere et mere et avec ses Brands- parents compte tenu de I'interet veritable de ('enfant. Subsection 24 (2.1) of the Act requires the court to give effect to Le paragraphe 24 (2.1) de la Loi exige que le tribunal applique the principle that a child should have as much contact with each le princtpe selon lequel un enfant doit avoir le plus de contact parent and grandparent as is consistent with the best interests of possible avec ses pere et mere et avec ses grands- parents compte the child. tenu de l'interet veritable de ('enfant. ■ Bill 22 2010 Projet de loi 22 2010 An Act to amend the Loi modifiant la Children's Law Reform Act Loi portant reforme du droit de l'enfance Note: This Act amends the Children's Law Reform Act. Remarque : La presente loi modifie la Loi portant re- For the legislative history of the Act, see the Table of forme du droit de l'enfance, dont l'historique legislatif Consolidated Public Statutes — Detailed Legislative His- figure a la page pertinente de l'Historique legislatif detail - tory on www.e - Laws.gov.on.ca. le des Iois d'interet public codifies sur le site www.lois- en-ligne.gouv.on.ca. Her Majesty, by and with the advice and consent of the Sa Majesty, sur l'avis et avec le consentement de Legislative Assembly of the Province of Ontario, enacts l'Assemblee legislative de la province de l'Ontario, as follows: edicte : 1. Section 20 of the Children's Law Reform Act is 1. L'article 20 de la Loi portant reforme du droit de amended by adding the following subsection: l'enfance est modifie par adjonction du paragraphe suivant : Relations with grandparents Relations avec les Brands- parents (2.1) A person who has custody of a child shall not (2.1) Nulle personne qui a la garde d'un enfant ne doit unreasonably place obstacles to personal relations be- faire deraisonnablement obstacle aux relations personnel - tween the child and the child's grandparents. les qui existent entre l'enfant et ses grands - parents. 2. (1) Subsection 24 (1) of the Act is amended by 2. (1) Le paragraphe 24 (1) de la Loi est modifie striking out "(2), (3)" and substituting "(2), (2.1), (3) ". par substitution de «(2), (2.1), (3)» a «(2), (3) ». (2) Subsection 24 (2) of the Act is amended by add- (2) Le paragraphe 24 (2) de la Loi est modifie par ing the following clauses: adjonction des alineas suivants : (a.1) the importance of maintaining emotional ties be- a.1) l'importance de maintenir les hens affectifs qui tween the child and his or her grandparents; existent entre l'enfant et ses grands - parents; (d.1) the willingness of each person applying for custody d.1) la volonte de chaque personne qui demande, par of the child to facilitate the child's contact with requete, la garde de l'enfant de faciliter les contacts each parent and grandparent in accordance with entre celui -ci et ses pere et mere ainsi que ses subsection (2.1); grands - parents conformement au paragraphe (2.1); (3) Section 24 of the Act is amended by adding the (3) L'article 24 de la Loi est modifie par adjonction following subsection: du paragraphe suivant : Maximum contact Maximum de contact (2.1) The court shall give effect to the principle that a (2.1) Le tribunal applique le principe selon lequel un child should have as much contact with each parent and enfant doit avoir le plus de contact possible avec ses pere grandparent as is consistent with the best interests of the et mere et avec ses grands - parents compte tenu de child. 1'interet veritable de l'enfant. Commencement Entree en vigueur 3. This Act comes into force on the day it receives 3. La presente loi entre en vigueur le jour oil elle Royal Assent. regoit la sanction royale. Short title Titre abrege 4. The short title of this Act is the Children's Law 4. Le titre abrege de la presente loi est Loi de 2010 Reform Amendment Act, 2010. modifiant la Loi portant reforme du droit de l'enfance. 5571 Portage Road Niagara Falls, On L2G 5Y2 December 8, 2010 Attention City Clerk and Members of City Council: Re: Proposal of five story medical building on Portage Road in Niagara Falls Dear City Clerk and Members of City Council, My name is Alita Elefante, my husband Ralph and I reside at the above address. We have been here since we got married in 1975. There is a vacant piece of property east of our property ,.. 5547 and 5559 Portage Road between North Street and Prospect Street. There are rumors of a proposed five story medical clinic being built on these properties. We, along with our neighbors in the surrounding area are very much against this alleged proposal. There are many reasons why we feel a five story medical building is unsuitable at this location. Firstly there is privacy; with this sort of a high traffic building the immediate neighbors on both sides will lose all privacy due to the fact that building is too high and does not conform to the rest of the houses on the block. Another main reason is traffic, this is a busy street as it is, put a five story medical clinic and you will have chaos. There will be added noise and garbage. Not to mention the dust and debris that will be falling on all the residences while this clinic is being built. There are numerous children in this neighborhood not to mention my grandson who plays outside around these properties. They will all have to remain indoors during the completion of this building due to safety reasons. We have a few questions for you as well: With a structure of this size going up so close to residences what kind of safety measures are going to put into place? What about snow? Where will all the snow go? What kind of fence will be built and how high? Lastly and also very important what about our taxes? Will our property taxes go up? We ask City Council to PLEASE take all our questions and concerns into consideration and deny the building a five story clinic in our neighborhood. Thank you for your kind consideration, Yours Truly, C Ltt: ' Ck- Akita Elefante '1 MB: Enclosed are signatures from neighbors opposing the building of a five story medical clinic in the above mentioned location. • F- 2010 -61 Nia ara a11s December 13, 2010 REPORT TO: Mayor James M. Diodati and Members of the Municipal Council City of Niagara Falls, Ontario SUBMITTED BY: Finance Department SUBJECT: F- 2010 -61 2009 Financial Statements Additional Disclosure RECOMMENDATION That Council receive the report for information purposes. EXECUTIVE SUMMARY The City of Niagara Falls along with all other municipalities in the province were required to modify the presentation of its Audited Financial Statements to conform with the amendments to PSAB handbook. In addition, the province introduced regulation 284/09 which required that municipalities that did not incorporate the PSAB changes in its approved 2010 Budgets provide to Council the impact of the changes after the audited statements were approved. The 2010 Budgets did not include provisions for amortization nor post employment benefits, while including the City's scheduled debt repayments ( capital repayment portion) and the transfers to Capital. Staff are providing this report and the accompanying resolution to meet the requirements of both PSAB and the Province of Ontario. Accumulated Surplus as at December 31, 2009 was $629,668,417 and consists of a variety of sources. The largest source of this amount is the tangible capital assets of the City which make up approximately 83% of this balance. The impact of the inclusion of the PSAB reporting changes on the estimated Accumulated Surplus for December 31, 2010 is a reduction of approximately $1,082,206. BACKGROUND Effective January 1, 2009, the Municipality adopted Section 1200 and Section 3150 of the PSAB handbook. Section 1200 refers to general reporting principles and standards related to government financial statements. Section 3150 provides guidance on the recognition and disclosure of tangible capital assets in government financial statements. As a result of the changes to accounting standards, the calculation of the City's surplus for budgeting purposes now differs from the surplus on the City's Financial Statements. The differences are primarily with respect to capital items, debt repayment and post - employment benefits. The financial statements are prepared using accrual accounting methods. The annual budgets continue to be prepared on a cash basis. For 2010, Ontario Regulation 284/09 made under the Municipal Act, 2001, allows municipalities or local boards to exclude amortization and post - employment benefits from December 13, 2010 - 2 - F- 2010 -61 its budget provided the municipality prepares a report about the excluded expenses that this report is adopted by resolution of Council. The following is intended to provide Council with the required information under Ontario Regulation 284/09 regarding excluded expenses for the 2010 budget year and estimated effect these accounting changes will have on Accumulated Surplus for 2010. FINANCIAL IMPLICATIONS Accumulated Surplus recorded at December 31, 2009 in the City's Audited Financial Statements was reported as $629,668,417 and consists of a variety of sources. These sources include surplus from operations, net tangible capital assets, the net equity of Niagara Falls Holding Corporation, the net equity in the Niagara Convention and Civic Centre as well as City Reserves and Reserve funds. The purpose of the Regulation is to indicate what impact the exclusion of the amortization in the 2010 Budget will have on the estimated accumulated surplus for December 31, 2010. As indicated the 2010 General Purpose and Utility Budgets were not prepared and approved based on the full accrual method of accounting and thus amortization expense was excluded, and capital transfers and debt repayments were included. Schedule 1 in the attachment provides a reconciliation of the estimated impacts of reporting as required on the estimated ending Accumulated Surplus for December 31, 2010. This summary indicates that the estimated accumulated surplus should decrease by $1,080,206. Schedule 2 shows the relative expectant changes on the sources of the accumulated surplus. Specifically, the completion of the infrastructure assets will result in a significant increase in the tangible capital assets of the City. LIST OF ATTACHMENTS Schedule 1 - Summary of Reporting changes due to PSAB 1200 and 3150 Schedule 2 - Comparison of Accumulated Surplus Actual 2009 and Estimated 2010 Recommended by: / 61( Ad d i /14-6----------- Todd Harrison, Dir r of Finance Respectfully submitted: en Todd, Chief Administrative Officer Schedule 1 F- 2010 -61 Summary of Reporting changes due to PSAB 1200 and 3150 Accumulated Surplus per Financial Statement as at December 31, 2009 $ 629,668,417 Add: Capital items funded in Operating Budgets 12,794,265 Total Additions 12,794,265 Less: Estimated Amortization in 2010 13,874,471 Total Subtractions 13,874,471 Net Increase (decrease) in Accumulated Surplus (1,080,206) Estimated Accumulated Surplus as at December 31, 2010 $ 628,588,211 Schedule 2 F- 2010 -61 Comparison of Accumulated Surplus - Actual 2009 - Estimated 2010 Actual 2009 Estimated 2010 Invested in T.C.A. 524,630,546 555,580,231 Operating Fund 5,543,214 5,543,214 Reserves & Reserve Funds 62,139,595 44,606,122 Niagara Falls Hydro Holding Company 89,934,338 89,934,338 N.C.C.C. net equity 1,353,254 1,353,254 Amounts to be Recovered (53,932,530) (68,428,948) 629,668,417 628,588,211 ■ CITY OF NIAGARA FALLS By -law No. 2010 - A by -law to authorize the execution of a Lease and Operating Agreement with Niagara Convention and Civic Centre Inc., respecting the lease and operation of the Niagara Convention and Civic Centre. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. A Lease and Operating Agreement made between The Corporation of the City of Niagara Falls as Landlord and Niagara Convention and Civic Centre Inc. as Tenant, respecting the lease and operation of the Niagara Convention and Civic Centre, as attached hereto, is hereby approved and authorized. 2. The Mayor and Clerk are hereby authorized to execute the said Lease and Operating Agreement. 3. The Clerk is hereby authorized to affix the corporate seal thereto and to deliver the said Lease and Operating Agreement. Passed this thirteenth day of December, 2010. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: December 13, 2010. Second Reading: December 13, 2010. Third Reading: December 13, 2010. LEASE AND OPERATING AGREEMENT BETWEEN THE CORPORATION OF THE CITY OF NIAGARA FALLS -AND - i NIAGARA CONVENTION AND CIVIC CENTRE INC. INDEX ARTICLE 1 DEFINITIONS AND INTERPRETATION 2 1.1 Definitions 2 1.2 Schedules 9 1.3 Meaning of Including 10 ARTICLE 2 DEMISE AND TERM 10 2.1 Demise 10 2.2 Term 10 2.3 Right to Renew 10 2.4 Quiet Enjoyment 11 2.5 Overholding 11 2.6 Landlord's Representations and Warranties 11 ARTICLE 3 RENT 11 3.1 Covenant to Pay, Net Lease 11 3.2 Realty and Rental Taxes 12 3.3 Payment Method 12 3.4 Partial Periods 12 ARTICLE 4 GROUND RENT 12 4.1 Ground Rent 12 ARTICLE 5 ADDITIONAL RENT 13 5.1 Additional Rent 13 5.2 Business and Other Taxes 13 5.3 Utilities and Services 13 ARTICLE 6 CONSTRUCTION OF CONVENTION CENTRE 14 6.1 Construction Period 14 6.2 Landlord to Construct Convention Centre 14 6.3 Copies of Construction Contracts 14 6.4 Duties of Landlord in Construction 14 ARTICLE 7 OWNERSHIP, MAINTENANCE AND REPAIR 15 7.1 Ownership of Improvements and Fixtures 15 7.2 Maintenance and Repair of the Project 16 7.3 Inspection by Landlord 16 7.4 Repairs or Replacements 16 7.5 Waste, Nuisance 17 7.6 Lien Claims 17 -i- ARTICLE 8 USE, COMPLIANCE WITH LAWS 17 8.1 Use 17 8.2 Compliance with Laws 17 ARTICLE 9 INDEMNITY 18 9.1 Indemnification 18 ARTICLE 10 INSURANCE 19 10.1 Tenant's Insurance 19 10.2 Landlord's Insurance 20 10.3 Insurance Proceeds 20 10.4 Insurers 20 10.5 Landlord's Right to Insure 20 10.6 Evidence of Insurance 20 ARTICLE 11 STRUCTURE OF THE TENANT 21 11.1 No Change in Control 21 11.2 Composition of Board of Tenant 21 11.3 Rules of Procedure for Board Meetings 21 ARTICLE 12 ASSIGNMENT AND SUBLETTING 22 12.1 No Assignment 22 12.2 Sublet with Authorization 22 ARTICLE 13 LENDER'S RIGHTS AND REMEDIES 22 13.1 Secured Lender Security 22 13.2 Rights and Obligations of Secured Lenders 24 ARTICLE 14 DAMAGE AND DESTRUCTION 24 14.1 Damage or Destruction of Improvements 24 14.2 Restoration of Improvements 24 14.3 Landlord's Right to Decline to Restore 24 ARTICLE 15 DEFAULT 25 15.1 Default and Right to Re -enter 25 15.2 Remedies of Landlord 27 15.3 Distress 28 ARTICLE 16 SETTLEMENT OF DISPUTES 29 16.1 Arbitration 29 16.2 Arbitration Act 29 -ii- ARTICLE 17 GENERAL 29 17.1 Procedure for Approvals and Consents 29 17.2 Entry 30 17.3 Force Majeure 30 17.4 Effect of Waiver or Forbearance 31 17.5 Notices 31 17.6 Survival of Provisions 32 17.7 Further Acts 32 17.8 Interest 32 17.9 Costs 33 17.10 Continuing Obligations 33 17.11 Registration 33 17.12 Number, Gender, Effect of Headings 33 17.13 Severability, Subdivision Control 34 17.14 Entire Agreement 34 17.15 Successors and Assigns 34 17.16 Counterparts 34 17.17 Facsimile Execution 34 SCHEDULE "A" SKETCH OF LANDS 36 SCHEDULE "B" LEGAL DESCRIPTION 37 SCHEDULE "C" DELIVERY PLAN 38 SCHEDULE "D" DISPUTE RESOLUTION PROCEDURE 39 SCHEDULE "E" SITE PLAN 44 -iii - i . LEASE AND OPERATING AGREEMENT THIS LEASE AND OPERATING AGREEMENT is made on the 13 day of December, 2010, BETWEEN: THE CORPORATION OF THE CITY OF NIAGARA FALLS, Hereinafter called the "Landlord ", of the FIRST PART; - and - NIAGARA CONVENTION AND CIVIC CENTRE INC., a corporation incorporated under the laws of the Province of Ontario, Hereinafter called the "Tenant ", of the SECOND PART; For consideration, the receipt and sufficiency of which are acknowledged by each of them, the parties covenant and agree as follows: It is the mutual intent that the parties to this Agreement desire that this Lease and Operating Agreement be interpreted in accordance with the following principles: 1) The function of Niagara Convention and Civic Centre Inc. is to operate a convention centre on the Schedule "A" lands in accordance with sound business practices. 2) The Niagara Convention and Civic Centre has been funded primarily through public funds and is intended to be a benefit to the general public of the City of Niagara Falls and the entire Region of Niagara. 3) Due to the public service nature of the Niagara Convention and Civic Centre, it is, and shall be recognized as, a Municipal Capital Facility as that term is defined m the Municipal Act, 2001, as amended and any successor legislation thereto, and, as such, is not subject to Realty Taxes, building permit fees, development charges and planning application fees. 4) The role of the City of Niagara Falls in the Niagara Convention and Civic Centre is: a) to construct the Niagara Convention and Civic Centre on the Schedule "A" lands through a public tendering process in accordance with best practices; and ■ -2- b) subsequent to the completion of the construction of the Niagara Convention and Civic Centre, to ensure that the operation of the Niagara Convention and Civic Centre, while adhering to the principles and practices of private enterprise, must be, and is, operated in accordance with the rules, regulations and laws respecting Municipal Capital Facilities including the requirement that the facility is for the purposes of the municipality and for public use. 5) The Business Improvement Areas participating in the funding of the Niagara Convention and Civic Centre are the Victoria Centre and Fallsview Business Improvement Areas of the City of Niagara Falls. 6) No party that is not at arm's length from Niagara Convention and Civic Centre Inc. shall be permitted to enter into an Agreement with Niagara Convention and Civic Centre Inc. at terms more advantageous than those available to the regular customers of Niagara Convention and Civic Centre Inc. 7) The Niagara Convention and Civic Centre shall be operated in accordance with acceptable business standards and practices for operating a commercial convention and civic centre. 8) All revenues generated by the operation and use of the Niagara Convention and Civic Centre Inc., and the assets of Niagara Convention and Civic Centre Inc., shall be used for the maintenance, operation, promotion and capital improvement of the Niagara Falls Convention and Civic Centre ( "NCCC ") and for no other purpose. In particular, without limiting the generality of the foregoing, any operational surplus must be invested in the NCCC facility and operation or placed in a reserve for use in the NCCC facility and operation. ARTICLE 1 DEFINITIONS AND INTERPRETATION I 1.1 Definitions In this Lease, unless there is something in the subject matter or context inconsistent therewith, the following terms have the following respective meanings: (a) "Additional Rent" means all sums of money or charges required to be paid by the Tenant under this Lease (except Ground Rent and Rental Taxes) either to the Landlord or otherwise, whether or not the same are designated as "Additional Rent ". (b) "Business Day" means a day other than a Saturday, Sunday or other day which is a statutory holiday in the Province of Ontario. -3- (c) "Claim" means a claim or cause of action in contract, in tort, under any laws and regulations or otherwise. (d) "Change has the meaning set out in Section 7.4.1. (e) "Commencement Date" means the first day after the expiry of the Construction Period. (f) "Construction Period" means the period commencing on May 1, 2009 and ending on the day that the Project is fit for occupancy by the Tenant. (g) " Control" means, with respect to a Person, having ownership, whether beneficial or otherwise, of, or direct or indirect power to vote a majority of the votes attaching to the shares or units of ownership of that Person. (h) "Delivery Plan" means the program of work set out in Schedule "C ". (i) " Encumbrance" means a mortgage, lien, judgment, execution, pledge, charge, security interest, restriction, claim, trust, deemed trust, licence, lease, option, deposit or other encumbrance of any nature whatsoever, whether arising by operation of law or statute or otherwise created. (j) "End Date" means the date on which the Term expires or this Lease is terminated. (k) "Environmental Laws" means: ( i ) all requirements and provisions under or prescribed by the common law and any and all applicable federal, provincial, regional, local or municipal laws, statutes or by -laws; (ii) all applicable rules, regulations, protocols, guidelines, procedures, judgments, concessions, grants, franchises, licenses, agreements and any other governmental requirements, promulgated under or pursuant to any law referred to in clause (i); (iii) all applicable orders, decisions and exemptions rendered by any Governmental Authority; and (iv) any other applicable laws, rules, regulations, orders and decisions relating to environmental matters that pertain to the Project. (I) "Expiry Date" means the date on which the Term expires, or would expire assuming that no early termination of this Lease occurs in accordance with this Lease. -4- (m) "Force Majeure" means the occurrence of an act or circumstance beyond the reasonable control of a party to this Lease affected by such act or circumstance (the "Affected Party "), including an Act of God or public enemy, war, invasion, armed conflict, act of foreign enemy, blockade, revolution, act of terror, sabotage, civil commotions, interference by civil or military authorities, governmental expropriation or confiscation of property or equipment by any Governmental Authority, nuclear or other explosion, radioactive or chemical contamination or ionizing radiation, fire, tidal wave, earthquake, epidemic, quarantine restriction, stop -work order or injunction issued by a court or public authority having jurisdiction, governmental embargo, flood, ice storm, blizzard or other disaster, strike, walk -out, communication line or power failure, that results in or would result in delay or interruption in the performance of any obligation under this Lease, provided that such delay or the cause thereof is not specifically dealt with in this Lease or does not arise by reason of: (i) the negligence or wilful misconduct of the Affected Party or those for whom it is in law responsible; and (ii) any act or omission by the Affected Party (or those for whom it is in law responsible) in breach of the provisions of this Lease. (n) "Governmental Authorization" means any approval, certificate of approval, authorization, consent, waiver, variance, exemption, declaratory order, license, filing, registration, permit, notarization, special lease or other requirement of any Governmental Authority or any utility or service supplier, whether existing or to be obtained, which is necessary in connection with the Substantial Completion of the convention centre or any part thereof. (o) "Governmental Authority" means a federal, provincial, territorial, regional or municipal governmental, quasi - governmental, judicial, public or statutory authority, board, commission, tribunal, agency, department, ministry, body or other organization or entity. (p) "Improvements" means all buildings, fixed improvements, structures and other installations to be constructed by the Landlord in accordance with the Delivery Plan and any buildings, fixed improvements, structures and other installations constructed in accordance with any subsequently approved plans and located on, in or under any portion of the Lands at any time throughout the Construction Period and the Term, including chattels, equipment and machinery owned by the Tenant and any additions, substitutions, alterations or replacements thereto or thereof. (q) "Interest Rate" means the interest at a variable nominal rate per annum equal on each day to the Prime Rate then in effect plus three percent (3 %). -5- (r) "Lands" means the Iands illustrated and described in Schedule "A ". (s) "Laws and Regulations" means: (i) applicable federal, provincial, regional, local or municipal laws, orders -in- council, by -laws, codes, rules, policies, regulations or statues; (ii) applicable order, decisions, judgments, injunctions, decrees, exemptions, awards or writs of any court, tribunal, arbitrator, Governmental Authority or other Person having jurisdiction; and (iii) any requirements under or prescribed by applicable common law. (t) "Lease" means this Lease and Operating Agreement, including the schedules referred to herein, as amended from time to time. (u) "Losses" means losses, compensation, damages, expenditures, costs (including administrative costs), expenses, liabilities, judgments, awards, Taxes, fines, penalties, charges and amounts paid in settlement (net of insurance proceeds actually received), including: (i) reasonable legal fees on a solicitor and his own client basis so as to provide full indemnity (and not only substantial indemnity) and reasonable fees or other charges of accountants and other advisors; and (ii) interest on money paid by a Person in respect of any of the foregoing at the Interest Rate computed from the date such payment is made by such Person until the date of demand for reimbursement, less, to the extent applicable in the circumstances, costs and expenses that the party claiming the Losses would otherwise incur in order to comply with the Project Agreements. (v) "Permitted Encumbrance" means: (i) a security interest taken by a Person who gives value for the purpose of enabling the Tenant to acquire rights in or to personal property for use in the Project to the extent that the value is applied to acquire such rights; (ii) an inchoate or statutory lien for Taxes or utility rates or charges not at the time overdue; (iii) an inchoate or statutory lien for overdue Taxes or utility rates or charges the validity or amount of which the Tenant is contesting in good faith, but only -6- for so long as such contestation effectively postpones enforcement of any such liens; (iv) a statutory lien incurred or deposit made in the ordinary course of the operation of the Project in connection with worker's compensation, employment insurance and similar legislation; (v) a lien arising out of any judgment with respect to which the Tenant intends to prosecute or is prosecuting an appeal or a proceeding for review, but only for so long as there is a stay of execution pending the determination of such appeal or proceeding for review; (vi) security given by the Tenant to a public or private utility or common carrier or any Governmental Authority when required by such utility, carrier or Governmental Authority in the ordinary course of operating the Project; (vii) a construction, repair or storage lien arising in the ordinary course of the Tenant's business for sums that are not overdue or the validity or amount of which is being contested in good faith, but only for so long as such contestation effectively postpones enforcement of any such lien; (viii) a good faith deposit made in the ordinary course of business to secure the performance of bids, tenders, contracts (other than for the payment of borrowed money), leases, surety, customs or performance bonds and other similar obligation; (ix) a right reserved to or vested in any Governmental Authority by any statutory provision; I (x) an Encumbrance permitted under this Lease, including any Secured Lender's Security Agreement; or (xi) an amendment, extension, renewal or replacement of any of the foregoing. (w) "Person" means an individual, corporation, partnership, joint venture, association, trust, pension fund, union, or Governmental Authority, and the heirs, beneficiaries, executors, legal representatives or administrators of an individual. (x) "Premises" means the Lands and the Improvements. (y) "Prime Rate" mean the rate of interest per annum which The Royal Bank of Canada has established at its head office in Toronto, Ontario as a reference rate of interest -7- that will be charged on that day for loans, in Canadian dollars to Canadian customers and that it refers to as its "Prime Rate ". (z) "Project" means: (i) the Lands; (ii) the Improvements; (iii) all other facilities, fixtures, appurtenances and tangible and intangible personal property, including inventories of any nature whatsoever contained on or attaching to the Lands from time to time or used in connection with the Lands; (iv) all mechanical, electrical and other systems installed or used in connection with any of the foregoing; and (v) the Tenant's leasehold interest in the Lands. (aa) "Project Agreements" means all or any of the agreements relating to the Project from time to time to which both the Landlord and the Tenant are parties, including this Lease. (ab) "Realty Taxes" means all real property taxes, rates, duties and assessments (including local improvement rates), impost charges or levies, whether general or special, that are levied, charged or assessed from time to time by any lawful authority, whether federal, provincial, municipal, school or otherwise, and any taxes • payable by the Landlord which are imposed in lieu of, or in addition to, any such real property taxes, whether of the foregoing character or not, and whether or not in existence at the date thereof, and any such real property taxes levied or assessed against the Landlord on account of its ownership of the Lands or its interest therein, but specifically excluding any taxes assessed upon the income of the Landlord, and includes taxes for municipal and school purposes as described in section 110 (6)of the Municipal Act, 2001 S.O. 2001 c. 25. (ac) "Rent" means all Ground Rent and Additional Rent. (ad) "Replacement Cost" means the entire costs, from time to time, of repairing, replacing or reinstating any item of property with materials of like kind and quality on the same site without deduction for physical, accounting or any other depreciation. (ae) "Reversion Date" means the day immediately following the End Date. -8- (af) "Secured Lender" means a lender under a Secured Lender's Security Agreement. (ag) "Secured Lender Reimbursement Amount" means the amount required under the terms of all bona fide debt to repay such debt to the extent such bona fide debt relates to the Project. (ah) "Secured Lender's Security Agreement" means an agreement or instrument, including a deed of trust or similar instrument securing bonds or debentures, containing a charge, mortgage, pledge, security interest, assignment or sublease with respect to all or any part of the Tenant's Chattels granted by the Tenant that is security for any indebtedness, liability or obligation of the Tenant, together with any amendment, change, supplement, restatement, extension, renewal or modification thereof. (ai) "Substantially Completed" means that the work referred to which is to be carried out by the Tenant has been substantially performed as defined in the Construction Lien Act (Ontario) and the Tenant's Architect has certified to the Landlord that in respect of such work: (i) all work of a structural nature has been substantially performed; (ii) all work on all building equipment and services, including elevators, heating and air - conditioning systems and utilities, have been substantially performed, such equipment and services are operating properly and available for use by Tenants and all lobbies, stairwells and any work on other areas intended for the common use ofTenants has been substantially performed except for work of a decorative or superficial nature, which is both minor in character and of a type which, owing to the likelihood of damage, is reasonably to be deferred until the Improvements are partially or substantially occupied by the Tenant; (iii) all building by -laws and other regulations have been complied with and all necessary permits for occupancy have been obtained; (iv) any rentable space has been completed for occupancy by the Tenant, except for work of a superficial nature which is dependent upon individual sublessee's requirements as yet unascertained (such as painting and the installation of lighting fixtures, dividing partitions and sublessee's fixtures) and work which is reasonably and customarily allocated to sublessees to complete; (v) all areas are clean and all surplus building material and rubbish is removed; -9- (vi) the Improvements are generally in a condition in which they can be leased to and occupied by sublessees and any work that is still unfinished is work that can be completed promptly and is work the incompletion of which a reasonable Tenant would not object to; and (vii) the Improvements have been completed in all material respects in a good and workmanlike manner in accordance with the Delivery Plan, except for any requirements of the Delivery Plan which have been waived or varied by the Landlord in writing and except for faults and defects which, in the opinion of the Tenant's Architect, are minor and the correction of which is adequately assured. (aj) "Taxes" means Taxes and related governmental charges (including assessments, duties, rates, fees, imposts, levies and interest, penalties or additions associated therewith), including Canadian federal, provincial, or foreign income, franchise, capital, land transfer, real property, personal property, tangible, withholding, payroll (including Canada Pension Plan), employment insurance and employer health contributions, transfer, sales, use, consumption, excise, duties and value added Taxes, and all other Taxes of any kind, but does not include Realty Taxes. (ak) "Tenant's Chattels" means the chattels of the Tenant used in connection with and related to the operation and creation of the Project. (al) "Tenant Default" has the meaning in Section 15.1. (am) "Tenant's Interest" means the right, title and interest of the Tenant in the Tenant's Chattels. • (an) "Tenant's Obligation" means the Tenant's obligations under the Project Agreements. (ao) "Term" means the term set out in Section 2.2 and, where the context requires, any renewal, extension or overholding thereof. (ap) "Termination Date" means the date this Agreement is terminated for any reason other than the expiry of the Term. (aq) "Zoning By -law" means By -law No. 79 -200 as amended by The City of Niagara Falls. 1.2 Schedules The following schedules for part of the Lease: -10- Schedule "A ", Sketch of Lands; Schedule `B ", Legal Description; Schedule "C ", Delivery Plan; Schedule "D ", Dispute Resolution Procedure; and Schedule "E ", Site Plan. 1.3 Meaning of Including In this Lease the words "include ", "includes" or "including" mean "include without limitation ", "includes without limitation" and "including without limitation ", respectively, and the words following "include ", "includes" or "including" shall not be considered to set forth an exhaustive list. ARTICLE 2 DEMISE AND TERM 2.1 Demise The Landlord demises and leases the Lands to the Tenant and the Tenant leases the Lands from the Landlord, as of and with effect on the Commencement Date and in accordance with the provisions of this Lease, to have and to hold for the Term. 2.2 Term The Term of this Lease shall commence on the Commencement Date and shall expire on the day preceding the twenty-fifth anniversary of the Commencement Date, unless terminated earlier pursuant to the provisions of this Lease. 2.3 Right to Renew The Tenant shall have the right to extend the Term of this Lease for one (1) further Term of twenty -five (25) years commencing on the twenty -fifth anniversary of the Commencement Date under the same terms and conditions as contained herein. The Tenant shall have the right to exercise such right only if it gives the Landlord notice of its intention to do so not later than two (2) years before the expiration of the initial twenty-five (25) -year Term referred to in Section 2.2, failing which this right to renew shall be null and void. 2.4 Quiet Enjoyment Subject to the provisions of this Lease, the Tenant shall have and may peaceably enjoy and possess the Lands during the Term, without any interruption or disturbance whatsoever from the -11- Landlord or any Person lawfully claiming from or under the Landlord. The Landlord shall defend its title to the Lands against any Person claiming any interest adverse to the Landlord in the Lands during the Term, save and except where such adverse interest arises as a result of the act, omission, negligence or wilful misconduct of the Tenant or those for whom the Tenant is in law responsible. 2.5 Overholding If, at the expiration of the initial Term or any subsequent extension thereof, the Tenant shall continue to occupy the Lands without further written agreement, there shall be no tacit renewal of this Lease, and the tenancy of the Tenant thereafter shall be from month to month only, and may be terminated by either party on one (1) month's notice. Rent shall be payable in advance on the first day of each month equal to the sum of one hundred and fifty percent (150 %) of the monthly installment of Rent payable during the last year of the Term and one - twelfth (1/12) of all Additional Rent provided for herein, determined in the same manner as if this Lease had been renewed, and all terms and conditions of this Lease shall, so far as applicable, apply to such monthly tenancy. 2.6 Landlord's Representations and Warranties The Landlord makes the following representations and warranties with respect to itself to the Tenant, and acknowledges that the Tenant is relying upon such representations and warranties in entering into this Lease: (a) the Landlord has the power and authority to enter into this Lease and to do all acts and things and execute and deliver all other agreements, instruments, undertakings or documents as are required under this Lease to be done or executed and delivered by it; (b) the Landlord has taken all necessary action to authorize the execution, delivery and performance of this Lease; (c) it has sufficient title in to the Lands to allow the Project to operate as a convention centre including a lease hold interest in the Parking Lands and an Easement allowing vehicles to traverse the Hydro Lands. ARTICLE 3 RENT 3.1 Covenant to Pay, Net Lease The Tenant covenants to pay Rent as provided in this Lease. It is the intention of the parties that, this is a net and carefree lease and that the Rent provided to be paid shall be net to the Landlord and clear of all Taxes, costs and charges arising from or relating to the Lands, and that the Tenant shall pay as Additional Rent all charges, impositions and expenses of every nature and kind relating -12- to the Lands as if it were an owner thereof in the manner hereinafter provided, and the Tenant hereby covenants with the Landlord accordingly. 3.2 Realty and Rental Taxes It is the express intent of the Landlord and Tenant that the premises shall be exempt from Realty Taxes pursuant to the provisions of section 110 (6) of the Municipal Act, 2001 S.O. 2001 c. 25. 3.3 Payment Method 1. The Rent is payable to the Landlord in advance, as more particularly set out in Article 4. 2. In the event of any change in the estimates of Additional Rent, the Landlord may require a new series of monthly post -dated cheques or new documentation (as applicable). 3. All estimates made by the Landlord that are sent to the Tenant by the Landlord shall be accompanied by sufficient detail to enable the Tenant, acting reasonably, to understand the basis for the estimates. 3.4 Partial Periods If the Construction Period and/or the Term commences on any day other than the first day of the month, or ends on any day other than the last day of the month, Rent for the fraction of a month at the commencement or end of such period shall be calculated on a pro rata basis and shall be payable on the first day of the partial month. ARTICLE 4 GROUND RENT 4.1 Ground Rent The Tenant covenants and agrees to pay, from and after the Construction Period, to the Landlord at the office of the Landlord or to such other Person or at such other location as the Landlord shall direct by notice in writing, in Lawful money of Canada, without any prior demand therefor and without any deduction, abatement or set -off whatsoever, as annual Ground Rent, the sum of one dollar ($1.00), annually, in advance, on the first day of the Construction Period and upon each anniversary of the Commencement Date. -13- ARTICLE 5 ADDITIONAL RENT 5.1 Additional Rent 1. In addition to the Ground Rent reserved in favour of the Landlord, the Tenant shall, throughout the Construction Period and the Term, pay to the Landlord or as otherwise provided in this Lease, in lawful money of Canada, without any deduction, abatement or set -off whatsoever, as Additional Rent, the following costs incurred and attributable to the Lands and Improvements: all other sums, amounts, costs, cost escalations and charges that are, to be or have been imposed upon or charged to the Landlord, the Tenant or the Project by reason of the existence or operation of the Project. 2. All of the payments set out in this Lease shall constitute Ground Rent or Additional Rent, as applicable, and shall be deemed to be and shall be paid as Rent, whether or not any payment is payable to the Landlord or otherwise, and whether or not as compensation to the Landlord for expenses to which it has been put. The Landlord has all the rights against the Tenant for default in payment of Additional Rent that it has against the Tenant for default in payment of Ground Rent. 5.2 Business and Other Taxes In each and every year during the Construction Period and the Term, the Tenant shall pay as Additional Rent, discharge within thirty (30) days after they become due, and indemnify the Landlord from and against payment of, and any interest or penalty in respect of, the following: (a) every Tax, licence fee, rate, duty and assessment of every kind with respect to any business carried on by the Tenant on the Lands or by any subtenant, licensee, concessionaire or franchisee or anyone else, or in respect of the use or occupancy of the Lands by the Tenant, its subtenants, licensees, concessionaires or franchisees, or anyone else (other than such Taxes as income, profits or similar Taxes assessed upon the income and/or profits of the Landlord); and (b) all Rental or other Taxes in respect of the Tenant's fixtures, Improvements, equipment or facilities on or about the Lands, and any Rental Taxes occurring as a result of any reason peculiar to the Tenant. 5.3 Utilities and Services The Tenant shall be solely responsible for and shall promptly pay to the appropriate utility suppliers, as Additional Rent, all charges for water, gas, electricity, telephone and other utilities and services used or consumed in, and any other charges levied or assessed on or in respect of or services -14- supplied to, the Lands and Improvements. In no event is the Landlord liable for, nor has the Landlord any obligation with respect to, an interruption or cessation of or a failure in the supply of any utilities, services or systems in, to or serving the Lands or Improvements. ARTICLE 6 CONSTRUCTION OF CONVENTION CENTRE 6.1 Construction Period The Landlord shall carry out the construction of the convention centre during the Construction Period in accordance with the provisions of this Article 6. 6.2 Landlord to Construct Convention Centre It is the intention of the parties hereto that the Landlord is to erect the convention centre on the Lands at a total cost of not less than seventy -three million dollars ($73,000,000.00). The Landlord and Tenant agree that the Lands shall support a complete project and shall not be part of or connected with a larger project or development on lands not forming part of the Lands. The Landlord shall construct and complete the Project expeditiously and in a good and workmanlike manner and in accordance with the Delivery Plan and provisions of this Article 6, and in particular: (a) shall make all reasonable efforts to cause the Project to be Substantially Completed not later than November 30, 2010; (b) shall cause such Project to be fully completed with reasonable diligence thereafter. 6.3 Copies of Construction Contracts The Landlord shall submit to the Tenant for collaborative purposes construction contracts which the Landlord proposes to enter into for the convention centre. 6.4 Duties of Landlord in Construction 1. The Landlord shall be responsible for all costs and liabilities associated with the design and construction of the convention centre save and except those expenses borne by the Tenant prior to the approval of the Project by the Council of the Landlord and those expenses associated in any way whatsoever with the Tenant's Chattels and the anticipated and ongoing operation of the Project. 2. The Landlord through the project supervisor and the contractor shall perform and comply with the following covenants and requirements in the construction of the convention centre: -15- (a) the convention centre shall be constructed in all respects in accordance with the site plan, subject to such changes as may be required by any Governmental Authority or otherwise as approved in writing by the Landlord; (b) all necessary building permits shall be obtained and all municipal by -laws and legal requirements pertaining to the conduct of the work shall be complied with; (c) the construction work shall be conducted expeditiously in a good and workmanlike manner and otherwise in accordance with the provisions of this Lease; (d) the Landlord, through the construction supervisor, shall properly supervise the work; (e) any contractor engaged on the work shall be required to observe all provisions of its contract, and to furnish and maintain all security, indemnity, insurance and performance bonds required by the contract. ARTICLE 7 OWNERSHIP, MAINTENANCE AND REPAIR 7.1 Ownership of Improvements and Fixtures 1. The Landlord shall be the owner of the Project. 2. The provisions of Section 7.1.1 shall not be construed to prevent the Tenant of the right of property in, or the right to remove, fixtures or Improvements which are of the nature of usual Tenants' fixtures and normally removable by lessees in the normal course of business, and which are not part of the structure or any essential part of the Improvements or any building services. The Tenant shall make good, or shall cause the lessees to make good, all damage to the Improvements or building services caused by any removal of the Tenant's fixtures. 3. So long as the Tenant is not in default, the Tenant may from time to time remove such Tenant's fixtures in the ordinary course of its business or in the event of any Changes made pursuant to this Lease, provided that the Tenant shall cause the Tenant's fixtures to be replaced with fixtures having a value and utility at least equal to that of the fixtures so removed, considering the need to replace obsolete or defective fixtures and to substitute improved fixtures, and the consequences of any reconstruction, changes and alterations to the Improvements. -16- 4. So long as the Tenant is not in default, the Tenant may from time to time remove its chattels in the ordinary course of business provided that the Tenant's Chattels shall, at the sole discretion of the Landlord, become the property of the Landlord upon the expiration of the Term, upon default or upon termination of the Lease. 7.2 Maintenance and Repair of the Project The Tenant shall, at its own cost and expense, during the entire Term, keep in good order and condition the Project, and the appurtenances and equipment thereof, both inside and outside, including fixtures, landscaping, pavement, curbs, walls, foundations, roofs, vaults, elevators and similar devices, heating and air- conditioning equipment, sidewalks on the property, yards and area ways, water and sewer mains and connections, water, gas and electric pipes and conduits, and all other fixtures in and appurtenances to the Lands and Improvements and machinery and equipment used or required in the operation thereof, whether or not enumerated herein, and shall make any and all necessary repairs, replacements, substitutions, improvements and additions, ordinary or extraordinary, foreseen or unforeseen, structural or otherwise, subject to reasonable wear and tear and Force Majeure. Such repairs shall be completed in a good and workmanlike manner and in all respects consistent in quality and workmanship appropriate for a similar project in the vicinity, and shall meet the requirements of municipal or governmental regulations and the fire insurance underwriters. 7.3 Inspection by Landlord The Landlord, its servants, agents and contractors shall be entitled to a constant right of inspection, that is, to enter upon the Project at any time, for the purpose of inspecting the Project. The Tenant shall not be entitled to compensation for any inconvenience, nuisance or discomfort occasioned thereby. The Landlord shall take reasonable precautions and attempt to schedule such inspections so as not to unreasonably interfere with the operation of any aspect of the business of the Project and to minimize interference with the Tenant's use and enjoyment of the Project. 7.4 Repairs or Replacements 1. The Tenant shall not make any repairs, additions, alterations, replacements or improvements (the "Changes ") to or of any part of the Project unless: (a) the Changes comply with all applicable by -laws, zoning regulations, site plan, other governmental requirements, Government Authorizations, Environmental Laws and the requirements of the Tenant's and Landlord's fire insurance underwriters; (b) the Changes do not weaken or endanger the structure of the Improvements; and -17- (c) it has received the express written consent of the Landlord, which consent is not to be unreasonably withheld. 2. The Chief Administrative Officer of the City or his delegate shall have the authority to approve changes on behalf of the Landlord. 3. The Changes shall be constructed by the Tenant, without cost to the Landlord, in a good and workmanlike manner, using first -class materials. 7.5 Waste, Nuisance The Tenant shall not commit or suffer any waste or injury to the Project or any part thereof save and except any demolition and alteration respecting the Project as herein permitted, and shall not use or occupy or permit to be used or occupied the Project or any part thereof so as to constitute a nuisance or for any illegal or unlawful purpose, nor in any manner which may contravene any lawful restrictions of the use thereof by any Governmental Authority. The Tenant shall at all times, at its own expense, keep the sidewalks, curbs and passageways adjacent to the Project clean from rubbish, ice and snow and shall not restrict or obstruct the same or allow the same to be restrict or obstructed in any manner. The Tenant shall not injure or disfigure the Project or permit the same to be injured or disfigured in any way. 7.6 Lien Claims Except for Permitted Encumbrances, the Tenant shall not permit any lien to be registered against the Project for any labour or materials furnished to, or with the consent of, the Tenant, its agents or contractors, in connection with any work performed or claimed to have been performed on the Project by or at the direction or sufferance of the Tenant and shall take immediate steps to remove any such lien filed against the title to the Project forthwith upon receiving notice of the existence of the lien. ARTICLE 8 USE, COMPLIANCE WITH LAWS 8.1 Use The Tenant covenants that the Improvements shall be used for the Niagara Convention and Civic Centre. 8.2 Compliance with Laws The Tenant covenants that at all times the use made of the Improvements shall be in conformity with all of the requirements of the Zoning By -law, all applicable Environmental Laws and any other municipal or governmental statues, laws and regulations which may affect the Lands. -18- The Tenant shall comply with all police, fire and sanitary regulations imposed by any municipal or provincial or federal authorities or recommendations or requirements made by fire insurance underwriters, and observe and obey all municipal and governmental regulations and the terms of any Government Authorizations governing the conduct of any businesses carried out on the Lands and Improvements or with respect to the use of the Lands and Improvements. ARTICLE 9 INDEMNITY 9.1 Indemnification 1. The Tenant shall: (a) indemnify and save harmless the Landlord against and from all Claims by whomsoever made, brought or prosecuted; and (b) pay to the Landlord on demand, the amount of any Losses incurred by the Landlord; in either case in any manner based upon, arising out of, related to, occasioned by or attributable to: (i) any failure by the Tenant to perform any of the Tenant's Obligations under this Lease; (ii) any intentional wrongdoing or negligent act or omission in relation to the Premises by the Tenant or any Person for whom the Tenant is in law responsible; or (iii) any damage to property, either real or personal and whether owned by the Landlord or others (including any member of the public), howsoever occasioned by or as a result of the performance of the Tenant's Obligations under this Lease, or any personal or bodily injury to or death of any individual (including any member of the public), howsoever occasioned by or as a result of the performance of such obligations; provided that a Claim is made by the Landlord within a period of two (2) years from the Termination Date or the Expiry Date, as applicable, or within such shorter period as is set out in this Lease or as may be prescribed by any limitation statute applicable in the Province of Ontario and binding on the Landlord. -19- 2. For the avoidance of doubt, the obligation of the Tenant to indemnify, save harmless and pay the Landlord under this Section 9.1 shall, despite any other provision of this Lease, survive the Termination Date or the Expiry Date, as applicable. ARTICLE 10 INSURANCE 10.1 Tenant's Insurance 1. The Tenant shall, at its sole cost and expense, take out and maintain in full force and effect, at all times throughout the Term, the following insurance: (a) fire and extended perils, including flood, earthquake, collapse and sewer back -up, under a standard extended form of fire insurance policy, in such amounts and on such terms and conditions as would be carried by a prudent owner of a similar project, having regard to the size, age and location of the Project on the Lands, and such insurance shall add the Landlord as an additional insured, with coverage to the full insurable value thereof at all times (to be computed upon a Replacement Cost basis with deduction only of the cost of excavation and foundations); (b) general liability and property damage insurance, including personal liability, contractual liability, tenants' legal liability, non -owned automobile liability and owners' and contractors' protective insurance coverage with respect to the Lands, written on a comprehensive basis with inclusive limits of at least ten million dollars ($10,000,000) for each occurrence, or such higher limit as the Landlord, acting reasonably, or any mortgagee requires from time to time; (c) broad form comprehensive boiler and machinery insurance on a blanket repair and replacement basis, with limits for each accident in an amount not less than the full Replacement Costs of the property and Improvements, with respect to any boilers and machinery upon the Lands or relating to or serving the Lands, and such insurance shall add the Landlord as an additional insured; and (d) any other form of insurance with whatever limits the Tenant, the Landlord, acting as a prudent owner reasonably requires from time to time, in such form and amounts and for risks against which a prudent Tenant under similar circumstances would insure. 2. All public liability insurance shall contain a provision for cross liability or severability of interest as between the Landlord and the Tenant. All the foregoing property policies shall contain a waiver of any right of subrogation or recourse by the -20- Tenant's insurers against the Landlord or its contractors, agents and employees, whether or not any loss is caused by the act, omission or negligence of the Landlord, its contractors, agents or employees or those for whom the Landlord is in law responsible. The Tenant shall obtain, from the insurers under the building coverage, undertakings to notify the Landlord in writing at least thirty (30) days prior to any cancellation thereof. The Tenant shall furnish to the Landlord, upon written request, certificates of all such policies. 10.2 Landlord's Insurance The Landlord may, at its sole discretion, maintain a contractual liability rider with respect to the Premises, whereby this additional insurance coverage would act as secondary insurance in the event that the Tenant's insurance is insufficient or the Tenant's coverage is denied due to a violation of the Tenant's policy. 10.3 Insurance Proceeds Where a partial or complete destruction of the Project occurs the proceeds of any all policies of insurance respecting the Project shall be paid to the Landlord to be administered and applied by the Landlord as directed by the Council of the Landlord. 10.4 Insurers All contracts of insurance required to be maintained under the provisions of this Lease shall be with a company or companies licensed to do business within the Province of Ontario engaged, inter alia, in the business of insuring against the risks herein described. 10.5 Landlord's Right to Insure If the Tenant fails to obtain any or all of the policies of insurance required hereunder, the Landlord may itself, after not less than twenty -four (24) hours' notice to the Tenant, obtain such policies and shall give the Tenant a notice setting out the amount and dates of payment of all costs and expenses incurred by the Landlord in connection therewith to the date of such notice; the Tenant shall, with the next installment of Rent which becomes due, pay the same to the Landlord with interest at the Interest Rate, calculated on the various amounts from the respective dates of payment thereof by the Landlord. Any sum so expended by the Landlord, together with such interest, shall constitute Rent hereunder and be collectible as Rent payable on demand. 10.6 Evidence of Insurance The Tenant shall furnish the Landlord with certificates or other acceptable evidence of all required insurance promptly upon request. Such insurance shall show the Landlord as a named insured and shall provide for a waiver of subrogation among insureds, and liability insurance shall jl -21- provide for severability of interests and cross liability among insureds. All proceeds of any insurance shall first be used by the Tenant for the costs of repairing, reconstructing or replacing, as the case may be, the damaged or destroyed portions of the Improvements to the standard set out herein, except as otherwise provided for in this Lease. ARTICLE 11 STRUCTURE OF THE TENANT 11.1 No Change in Control The Tenant shall not permit or allow a change in the Control of the Tenant, except with the prior consent of the Landlord which consent shall not be unreasonably withheld. 11.2 Composition of Board of Tenant The Board of Directors of the Tenant shall consist of up to 13 members each of whom shall have one vote in any matter put to the Board and shall be made up as follows: (a) 1 representative designated by the Council of the City of Niagara Falls; (b) 1 representative designated by the Niagara Parks Commission; (c) 1 representative designated by Falls Management Corporation; (d) 1 representative designated by the Regional Municipality of Niagara; (e) 1 representative designated by the tourism industry ofNiagara Falls nominated by the Board of Management of the Victoria Centre Business Improvement Area; (f) 6 representatives designated by the tourism industry of Niagara Falls nominated by the Board of Management of the Fallsview Business Improvement Area; (g) 1 representative designated by Niagara Falls Tourism; (h) A thirteenth member to be appointed as soon as practicable. 11.3 Rules of Procedure for Board Meetings Throughout the Term of this Agreement, the Tenant shall provide the Landlord with a written copy of its current rules of procedure for its Board meetings, as are promulgated by the Tenant's Board from time to time. -22- ARTICLE 12 ASSIGNMENT AND SUBLETTING 12.1 No Assignment The Landlord and the Tenant acknowledge and agree that the benefits and burdens of this Lease cannot be assigned, sublet, or otherwise conveyed to any third party. 12.2 Sublet with Authorization The Tenant shall be permitted to sublet portions of the building which forms a part of the Project subject to the written authorization of the Landlord, which authorization shall not be unreasonably withheld. The Application of this clause is restricted to transactions and agreements that grant or have the effect of granting a right to occupy part or all of the Project for a period of more than 3 (three) consecutive months. ARTICLE 13 LENDER'S RIGHTS AND REMEDIES 13.1 Secured Lender Security From time to time during the Term the Tenant shall have the right, at its cost, to enter into a Secured Lender's Security Agreement. A Secured Lender's Security Agreement shall be upon and subject to the following conditions: (a) A Secured Lender's Security Agreement may be made for any amounts and upon any terms (including terms of the loans, interest rates, payment terms and prepayment privileges or restrictions) as desired by the Tenant, except as otherwise provided in this Agreement. (b) No Secured Lender's Security Agreement shall affect or encumber in any manner the Landlord's freehold title to the Lands. (c) The Landlord shall have no liability whatsoever for payment of the principal sum secured by any Secured Lender's Security Agreement, or any interest accrued thereon or any other sum secured thereby or accruing thereunder; and the Secured Lender shall not be entitled to seek any damages against the Landlord for any or all of the same. (d) No Secured Lender's Security Agreement shall be binding upon the Landlord in the enforcement of the Landlord's rights and remedies provided in this Lease or by Laws and Regulations, unless and until a copy of the original thereof and the registration details, if applicable, together with written notice of the address of the Secured -23- Lender to which notices may be sent have been delivered to the Landlord by the Tenant or the Secured Lender; and in the event of an assignment of such Secured Lender's Security Agreement, such assignment shall not be binding upon the Landlord unless and until a copy thereof and the registration details, if applicable, together with written notice of the address of the assignee thereof to which notices may be sent, have been delivered to the Landlord by the Tenant or the Secured Lender. (e) A Secured Lender's Security Agreement must provide that if the Tenant is in default under a Secured Lender's Security Agreement and the Secured Lender gives notice of such default to the Tenant then the Secured Lender shall give notice of such default to the Landlord and no such notice to the Tenant shall be valid for any purpose as against the Tenant until such notice has also been given to the Landlord. (f) Any Secured Lender's Security Agreement permitted hereunder may secure two (2) or more separate debts, liabilities or obligations in favour of two (2) or more separate Secured Lenders, provided that such Secured Lender's Security Agreement complies with the provisions of this Article 13. (g) Any number of permitted Secured Lender's Security Agreements maybe outstanding at any one time, provided that each such Secured Lender's Security Agreement complies with the provisions of this Article 13. (h) Despite any enforcement of any Secured Lender's Security Agreement, the Tenant shall remain liable to the Landlord for the payment of all sums owing to the Landlord under this Lease and for the performance of all of the obligations of the Tenant under this Lease. (i) The Secured Lender must agree with the Landlord to discharge its Secured Lender's Security Agreement for no consideration upon the occurrence of the Termination Date or the Expiry date, as applicable. (j) The Secured Lender shall not, by virtue of its Secured Lender's Security Agreement, acquire any greater rights or interest in the Premises and the Project than the Tenant has at the material time under this Lease, provided that the foregoing shall in no way be construed as restricting the right of the Secured Lender from being named as a loss payee and named insured together with the Landlord and other Persons contemplated in Section 10.1 or Article 10 under any policy of insurance required pursuant to Article 10. (k) The Secured Lender must agree with the Landlord that if the Secured Lender makes demand of the Secured Lender Reimbursement Amount with a view to exercising its rights and remedies under the Secured Lender's Security Agreement, the Secured -24- Lender shall contemporaneously with the making of such demand on the Tenant deliver a copy of such demand to the Landlord. Upon receipt of such copy of the demand, the Landlord shall have the right, but not the obligation, to pay the Secured Lender Reimbursement Amount to the Secured Lender and, by doing so, have all right, title and interest of the Secured Lender in and to the Secured Lender's Security Agreement and all indebtedness, liabilities and other amounts owing to the Secured Lender that are secured by the Secured Lender's Security Agreement assigned to the Landlord free and clear of Encumbrances so that the Landlord shall be entitled to stand in the place and stead of the Secured Lender with respect to the Secured Lender Reimbursement Amount and the Secured Lender's Security Agreement. 13.2 Rights and Obligations of Secured Lenders At any time that the Landlord has received proper notice of a Secured Lender's Security Agreement, the Landlord shall notify the Secured Lender of the service of any notice of default pursuant to section 15.2 and 17.5. ARTICLE 14 DAMAGE AND DESTRUCTION • 14.1 Damage or Destruction of Improvements The complete or partial destruction or damage, by fire or other casualty, of the Improvements shall not, except as provided herein, terminate this Lease or entitle the Tenant to surrender possession of the Lands or to have or to demand any abatement or reduction of the Rent or other charges payable under this Lease. 14.2 Restoration of Improvements The Landlord covenants and agrees that, following the damage or destruction of any of the Improvements, it shall subject to Section 14.3, repair, reconstruct or replace such damaged or destroyed Improvements. All insurance moneys shall be made available to the Landlord to pay for the cost of such restoration, reconstruction and repair and, should the insurance moneys be insufficient to pay the entire cost, the Tenant agrees to pay the deficiency. 14.3 Landlord's Right to Decline to Restore Notwithstanding Section 14.2, in the event of damage to or destruction of the Project to the extent that the Landlord, acting reasonably determines that the cost to repair the Project would exceed more than fifty percent (50 %) of the cost of the initial cost of the construction of the Project, the Landlord may elect to terminate this Lease by written notice to the Tenant within one hundred and twenty (120) days following the damage or destruction, and the Landlord shall restore the Lands -25- to the condition they were in immediately prior to construction of the Project, and this Lease shall be deemed to have been terminated as of the date of such damage or destruction. ARTICLE 15 DEFAULT 15.1 Default and Right to Re -enter The occurrence of any one or more of the following events shall constitute a "Tenant Default" under this Lease: (a) If the Tenant fails to make payment of any Rent owing to the Landlord under this Lease when due. (b) If the Tenant fails to provide any or all of the insurance required by this Lease. (c) If there is a pattern over a rolling period of twenty -four (24) consecutive full calendar months of the Tenant Defaults referred to in this Section 15.1 repeatedly occurring and the Landlord has given thirty (30) days' notice of such pattern to the Tenant. (d) If the Tenant fails or neglects to comply with the requirements or directives of a final award, order or decision in a matter arbitrated in accordance with Article 16 within the period of time for compliance stated in such award, order or decision or, if no such period of time is stated in the award, order or decision for 15 days after the date of the decision. (e) If any resolution is passed for the dissolution, liquidation or winding -up of the Tenant or for the suspension of operations of the Tenant. (f) If a decree, judgment or order of a court having jurisdiction is issued or entered adjudging the Tenant bankrupt or insolvent, ordering the winding -up or liquidation of the Tenant or approving any reorganization, arrangement, compromise, composition, compounding, extension of time, moratorium or adjustment of some or all of the liabilities of the Tenant under the Companies ' Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada) or the Winding - up and Restructuring Act (Canada) or any other bankruptcy, insolvency, moratorium, reorganization or analogous law of any applicable jurisdiction and such decree, judgment or order continues unstayed and in effect and is not withdrawn, dismissed, overturned or set aside within the period of ninety (90) days following its issuance or entry. (g) If execution or any analogous process is issued or filed against the Tenant or against all or a substantial part of its property or assets and such execution or other process -26- continues unstayed and in effect and is not withdrawn, dismissed, overturned or set aside within the period of sixty (60) Business Days following its issuance or filing and the same has a material and adverse effect on the performance of the obligations of the Tenant under this Lease. (h) If a trustee, receiver, receiver and manager, interim receiver, custodian, liquidator, provisional liquidator, agent for a secured creditor or other Person with similar powers is appointed in any manner (judicially or extra judicially) in respect of the Tenant or in respect of all or a substantial portion of the property or assets of the Tenant and such appointment continues unstayed and in effect and is not withdrawn, overturned, set aside or revoked within the period of ninety (90) days following the appointment. (i) If the Tenant becomes insolvent, admits its inability to pay or fails to pay its debts generally as they become due, acknowledges its insolvency, makes an assignment in bankruptcy or any other assignment for the benefit of creditors generally, or files any proposal, notice of intention or petition or otherwise commences or consents to or acquiesces in the commencement of any proceeding seeking any reorganization, arrangement, compromise, composition, compounding, extension of time, moratorium or adjustment of some or all of the liabilities of the Tenant under the Companies' Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), or the Winding -up and Restructuring Act (Canada) or any other bankruptcy, insolvency, moratorium, reorganization or analogous law of any applicable jurisdiction, or applies for, consents to or acquiesces in the appointment in any manner (judicially or extra judicially) of a trustee, receiver, receiver and manager, interim receiver, custodian, liquidator, provisional liquidator, agent for a secured creditor or other Person with similar powers in respect of the Tenant or in respect of all or a substantial portion of the property or assets of the Tenant. (j) .A Change in Control of the Tenant. (k) A request by the Tenant for any kind of funding or assistance in kind from the Landlord. (1) If the Tenant: (i) amalgamates, consolidates, reorganizes or merges with another entity; (ii) creates a new class of shares in itself; (iii) enters in any agreement to issue any shares of any class, or any securities convertible into any shares of any class, of itself or grants any option or other right to purchase any shares or securities convertible into such shares; 1 -27- (iv) amends the rights restrictions or privileges of any shares or class of shares of itself; (v) disposes of or encumbers all or substantially all of its assets; (vi) if the Tenant adopts changes to the corporate structure of itself regarding proportional representation of the members of its Board of Directors or in any way restricts the members of that Board of Directors from overseeing the operations of itself; (vii) changes the number and composition of the Board of Directors of itself; (viii) invests any revenue derived from the operation or existence of the convention centre or received by the Tenant for the funding or the operation or design and construction of the convention centre in any venture, enterprise, business, transaction or endeavour other than the design, construction, management, maintenance or operation of the convention centre; (ix) enters into any partnership, joint venture or other business venture that would involve the expenditure or investment of funds by Niagara Convention and Civic Centre Inc. outside the normal course of business; (x) makes loans, enters contracts or provides financial support to any Person not at arm's length to any officer, director or employee of itself and any Person who is a member of any Business Improvement Area that contributes to the operation and maintenance of the Niagara Convention and Civic Centre on terms more favourable than those available to the general public; (xi) makes any one time expenditure greater than two million dollars ($2,000,000.00) (the method of calculation and estimation of the expenditure to be at the discretion of the Landlord acting reasonably); in the absence of the express written consent of the Landlord, which shall not be unreasonably withheld. 15.2 Remedies of Landlord Upon the occurrence of a Tenant Default, the Landlord may by notice to the Tenant, (a) The Landlord may terminate this Lease by giving thirty (30) days' notice to the Tenant. -28- (b) If the Tenant is in default under this Lease by reason of the failure to pay any amount due to a Person other than the Landlord, the Landlord may (without obligation to do so) make payment on behalf of the Tenant of such amount. Any amount so paid by the Landlord shall be payable by the Tenant to the Landlord on demand. (c) The Landlord may cure or attempt to cure the Tenant Default (but this shall not obligate the Landlord to cure or attempt to cure a Tenant Default or, after having commenced to cure or attempted to cure a Tenant Default, to continue to do so) and all costs incurred by the Landlord in curing or attempting to cure the Tenant Default shall be payable by the Tenant to the Landlord on demand. No such action by the Landlord shall be deemed to be a termination of this Lease. The Landlord shall not incur any liability to the Tenant for any act or omission of Landlord or any other Person in the course of curing or attempting to cure any Tenant Default. (d) The Landlord may seek specific performance, injunction or other equitable remedies. (e) The Landlord may seek to recover its Losses and any amounts due and payable under this Lease and, in connection therewith, exercise any recourse available to any Person who is owed damages or a debt. (f) With respect to those Tenant Defaults which entitle the Landlord to terminate this Lease, the Landlord may re -enter the Lands in the name of the whole and have again, repossess and enjoy the Lands as of the Landlord's former estate. No re -entry by the Landlord shall be construed as an election on its part to terminate this Lease unless a notice of such intention is given to the Tenant. Despite a reletting without termination, the Landlord may at any time thereafter elect to terminate this Lease for the previous breach. Any re -entry or termination of this Lease made in accordance with this Lease as against the Tenant shall be valid and effectual against the Tenant. (g) The Landlord may exercise any of its other rights and remedies provided for in this Lease. (h) In any case involving a Tenant Default listed in sub - section 15.1 (1) the Landlord shall have the right to terminate this agreement forthwith and to enter and take possession of the Project. 15.3 Distress Notwithstanding any provision of this Lease or any provision of any applicable legislation, none of the goods and chattels of the Tenant on the Lands at any time shall be exempt from levy by distress for Rent in arrears, and the Tenant waives any such exemption. If the Landlord makes any Claim against the goods and chattels of the Tenant by way of distress, this provision may be pleaded -29- as an estoppel against the Tenant in any action brought to test the right of the Landlord to levy such distress. ARTICLE 16 SETTLEMENT OF DISPUTES 16.1 Arbitration Unless otherwise provided in this Lease, any dispute between the Lease the parties hereto concerning any matter arising under this Lease, except for issues related to payment of a liquidated sum of money, shall be submitted to a private and confidential arbitration dispute resolution procedure in accordance with the provisions of this Article 16, and the rules and procedures described in Schedule "D ". 16.2 Arbitration Act The provisions of the Arbitration Act, 1991 (Ontario) shall apply to the extent that they are not inconsistent with this Article 16 or Schedule "D ". ARTICLE 17 GENERAL 17.1 Procedure for Approvals and Consents Wherever the provisions of this Lease require, provide for or permit an approval or consent by the Landlord of or to any action, Person, document, budget, list, plan or other matter or thing contemplated by this Lease, the following provisions shall apply (except to the extent that this Lease otherwise provides): (a) such request for approval or consent must be in writing and: (i) contain or be accompanied by any documentation or information required for such approval or consent in reasonably sufficient detail, as determined by the Landlord; (ii) clearly set forth the matter in respect of which such approval or consent is being sought; (iii) form the sole subject matter of the correspondence containing such request for approval or consent; and (iv) state clearly that such approval or consent is being sought; -30- (b) such approval or consent must be in writing; (c) such approval or consent shall not be unreasonably withheld or delayed; (d) the Landlord shall, promptly after the date of receipt by the Landlord of a request by the Tenant for an approval or consent, advise the Tenant by notice either that it consents or approves or that it withholds its consent or approval, in which latter case it shall set forth, in reasonable detail, its reasons for withholding its consent or approval, which reasons may include the insufficiency, as determined by the Landlord acting reasonably, of the information or documentation provided; (e) if the responding notice mentioned in Section 17.1(d) indicates that the Landlord does not approve or consent, the Tenant may take whatever steps may be necessary to satisfy the objections of the Landlord set forth in the responding notice and, thereupon, may resubmit such request for approval or consent from time to time and the provisions of this Section 17.1 shall again apply; (f) if the disapproval or withholding of consent mentioned in Section 17.1(d) is subsequently overruled, such approval or consent shall be deemed to have been given on the date of the final determination of such overruling; (g) if the disapproval or withholding of consent mentioned in Section 17.1(d) is not subsequently overruled, the disapproval withholding of consent of the Landlord shall be deemed to be final; and (h) any dispute as to whether a consent or approval has been unreasonably withheld or delayed shall be resolved in accordance with Article 16. 17.2 Entry The Landlord may enter the Lands at any time during the Construction Period and the Term, upon reasonable notice, for the purpose of inspecting the Project. 17.3 Force Majeure Notwithstanding any other provision contained herein, in the event that either the Landlord or the Tenant should be delayed, hindered or prevented from the performance of any act required hereunder by reason of any unavoidable delay, including strikes, lockouts, unavailability of materials, inclement weather, acts of God, governmental restrictions or any other cause beyond its reasonable care and control, but not including insolvency or lack of funds, then performance of such act shall be postponed for a period of time equivalent to the time lost by reason of such delay. The provisions of this Section 17.3 shall not, under any circumstances, operate to excuse the Tenant from prompt payment of Rent and/or any other charges payable under this Lease. -31- 17.4 Effect of Waiver or Forbearance No waiver by any party hereto of any breach by any other party of any of its covenants, agreements or obligations contained in this Lease shall be or be deemed to be a waiver of any subsequent breach thereof or the breach of any other covenants, agreements or obligations, nor shall any forbearance by any party hereto to seek a remedy for any breach by any other party be a waiver by the party so forbearing of its rights and remedies with respect to such breach or any subsequent breach. The subsequent acceptance of Rent by the Landlord shall not be deemed a waiver of any preceding breach by the Tenant of any term, covenant or condition regardless of the Landlord's knowledge of such preceding breach at the time of the acceptance of such Rent. All Rent and other charges payable by the Tenant to the Landlord hereunder shall be paid without any deduction, set -off or abatement whatsoever, and the Tenant hereby waives the benefit of any statutory or other right in respect of abatement or set off in its favour at the time hereof or at any future time. 17.5 Notices (a) Unless otherwise provided in this Lease, all notices, requests, Claims, reports, certificates, other communications, consents and approvals required or permitted by this Lease shall be in writing and shall be given by personal delivery, or sent by electronic facsimile, or mailed by prepaid registered mail, or delivered by courier service. Notices shall be addressed to a party at its address as follows (or at such other address as that party specifies by written notice in accordance with this Section 17.5): To Landlord: The Corporation of the City of Niagara Falls City Hall 4310 Queen Street P.O. Box 1023 Niagara Falls, ON L2E 6X5 Attention: Chief Administrative Officer Telephone No.: (905) 356 -7521 Telecopier No.: (905) 374 -3557 -32- To the Tenant: Niagara Convention and Civic Centre Inc. 6380 Fallsview Boulevard, Suite 202 Niagara Falls, ON L2G 7Y6 Telephone No.: (905) 357 -6222 Telecopier No.: (905) 357 -6212 (b) A notice, request, Claim, report, certificate, other communication, consent or approval shall be deemed to have been received: (i) on the day it is delivered or on the day on which transmission is confirmed by the sender's telecopier records, if telecopied, or if such day is not a Business Day or if the notice, request, Claim, other communication, consent or approval is received after ordinary office hours (time of place of receipt), the notice, request, Claim, report, certificate, other communication, consent or approval shall be deemed to have been received on the next Business Day; or (ii) on the fifth Business Day after the date of mailing, if sent by prepaid registered mail. 17.6 Survival of Provisions All obligations under this Lease which expressly or by their nature survive the Termination Date or the Expiry Date, as applicable, shall continue in force until they are satisfied or by their nature expire. 17.7 Further Acts The parties shall do or cause to be done all such further acts and things as may be reasonably necessary or desirable to give full effect to this Lease. Without limiting the foregoing, each party shall at any time and from time to time execute and deliver or cause to be executed and delivered such further instruments and take such further actions as may be reasonably requested by the other party or parties in order to cure any defect in the execution and/or delivery of this Lease. 17.8 Interest • Any amount not paid when due under this Lease shall bear interest at a variable nominal rate per annum equal on each day to the Interest Rate then in effect, from the date such payment is due until payment and both before and after judgment. -33- 17.9 Costs Except as otherwise provided in this Lease, each party shall be responsible for its own costs incurred in connection with performing its obligations under this Lease. 17.10 Continuing Obligations Except as otherwise provided in this Lease: (a) termination of the Lease or the expiration of the Term shall be without prejudice to any accrued rights and obligations under this Lease as at the Termination Date or the Expiry Date, as applicable; and (b) termination of the Lease or the expiration of the Term shall not affect the continuing rights of the Landlord under this Agreement or under any other provision of this Lease that is required to give effect to such termination or expiry or the consequences of such termination or expiry. 17.11 Registration 1. Neither the Tenant nor anyone on the Tenant's behalf or claiming under the Tenant (including any Transferee) shall register in full this Lease or any Transfer against the Lands. The Tenant may register a notice or caveat of this Lease provided that: (a) a copy of the Lease is not attached; and (b) the Landlord gives its prior written approval of the notice or caveat, which shall not be unreasonably withheld. 2. Upon the expiration or earlier termination of the Term, the Tenant shall immediately discharge or otherwise vacate any such notice or caveat. 17.12 Number, Gender, Effect of Headings Words importing the singular number only shall include the plural and vice versa, words importing the masculine gender shall include the feminine and neuter genders, and words importing Persons shall include firms and corporations and vice versa. The division of this Lease into Articles and Sections and the insertion of headings are for convenience of reference only, and shall not affect the construction or interpretation of this Lease. -34- 17.13 Severability, Subdivision Control Should any Article or Section or part or parts of an Article or Section in this Lease be illegal or unenforceable, it or they shall be considered separate and severable from the Lease and the remaining provisions of this Lease shall remain in full force and effect and shall be binding upon the Landlord and the Tenant as though such Article or Section or part or parts thereof had never been included in this Lease. It is an express condition of this Lease that the subdivision control provisions of the applicable provincial legislation be complied with, if necessary. If such compliance is necessary, the Tenant covenants and agrees to diligently proceed, at its own expense, to obtain the required consent. 17.14 Entire Agreement Landlord and Tenant warrant that the terms and conditions of this Lease were fully read and understood and this Lease, including the Schedules and any other documents referred to herein, constitutes the entire Agreement and understanding among the parties with respect to the subject matter hereof, and shall supersede all prior oral and written agreements or understandings of the parties relating hereto. There are no covenants, representations, warranties, agreements or other conditions expressed or implied, collateral or otherwise, forming part of or in any way affecting or relating to this Lease, save as expressly set out or incorporated by reference herein, and this Lease constitutes the entire Agreement duly executed by the parties hereto, and no amendment, variation or change to this Lease shall be binding unless the same shall be in writing and signed by the parties hereto. 17.15 Successors and Assigns The rights and liabilities of the parties shall enure to the benefit of their permitted successors and assigns, subject to any requirement for consent by the Landlord hereunder. 17.16 Counterparts This Lease may be executed in any number of counterparts that, taken together, shall constitute one and the same agreement. This Lease shall be effective when it has been executed by each of the parties and delivered to all parties. 17.17 Facsimile Execution To evidence the fact that it has executed this Lease, a party may send a copy of its executed counterpart to all parties by facsimile transmission. Such party shall be deemed to have executed and delivered this Lease on the date it sent such facsimile transmission. In such event, such party • shall forthwith deliver to the other parties an original counterpart of this Lease executed by such party. ■ -35- IN WITNESS WHEREOF the parties hereto have duly executed this Lease. THE CORPORATION OF THE CITY OF NIAGARA FALLS Per: James M. Diodati, Mayor Dean Iorfida, City Clerk NIAGARA CONVENTION AND CIVIC CEN ' INC. Per: #f°-- Name: G. 0}4 Tit . i Name: (),A , Lc (f s T l 6,A- Title: � t-c fit, c i • -36- SCHEDULE "A" SKETCH OF LANDS — — ...>Zb P . .. H O F, q y { $j "� i� •"�,� 5S , f .. - . ; r � 4 3 :.SM t t , .. , �.� ^ i . :i , r �, �`, 1 11.1 1.a II `, :"I'W.,•1 , - ..4,..', 'b.f.!' --! } < � ▪ ^� v. 4 ' � 'fir + h�� a, .e. li M " ' f ,44{ ,' . ▪ ' . t4-4,4,„: -' . � " :- w. w- I*°`Y Sea a' z�1' , >a 14, t t i'3 } �8^s' `"� i�R'v a' � +° K.X �j, to ' i ii } ":, . , 1 a�4 q+^ fie i ^ �. , y -s ,;. ` ¢ � '8 >d N ▪ ' , =r t „ s i.41,,,..4 , ; Y .} ,1! � . i '"4 , q ^, r q . ` f , .� is �,, 4 �4 W8 � t': 4inkitlE;44,1,ii!kgt ''',;r,..; ., 1 4 �t o - . • a � @ 3 * a� " { Y ° . ,, ; , 'a s S ' a ` ,;2sr s df- 8 ■ A i Ti R *� 4iGf x 3 if !ii 1,-, : aye t q* p3 4 � g a � � err y�y� ,a -,.,,,,A'.-',4 r i a � �� . � p 1' � W' � °a` } � L 4:'''','''''`r �'S aD'' 8 d � u', � t - '38' � �� 3 4 , � � � �` � 7 , 3 � t a `� � � s �i Y 'F 's f �„ � a r� `� mr � �m� g � x z�,� y � � �. 4 ..., ,04.,44/14.70.frit,1„ 1:1 .,4,,..,.„4c,,,,,k,„4,./i' .4:A i',.,,,:,,,Yt,4',*ei'‘4,.. z ! . ` � t el 4111 a �� ; I ire,' s � a .m • t : ! a h ' " ` 's� �a � r , . ▪ , ▪ .,+ 11II' ii oil 41 till ill tr. lij 1 iii 1 ,1 41 11111 iiiii Itl a I h ? 4 s ; ,. �l � il j 41:-..4,,,,,,* t „ - ; —(1* .'=' .4-A -,, ' , „1,4 • .' . I- rtilii aqiiil OIL Li 't. '.4.--'7 ''ej -c' ' %%; }4-1-4.6.''' 44.1.0'..!' ::-';',,,,,;,.:Pte,P.',14°." "tf ; ;A' - .. l' - TT, f,,,,...„.4 .„ ice ,i151 S F ;;; '' . 1 . -: ' -i',..ti` .. -24117'; ..,,,,,-.4.:Witet4t,vic''.7:',tct,i1,,t1,0 're-''''.?''',11.1'.164:44*(- - ,c . , , ,........ ....,.,, . r. , .,,, .,,,,,44,,.,,„ „lc ,.,,,,,, 41,4 4,.-,,,i44.‘ f 74-*.u,,Vcao,4*,` . ...P'- ' rrillAllnit' *:',- , : 1.` ft-' ':•:4 $41...- , „': �� P , t� , s �` e r • a `P' .YYA �✓ ,ys , « 'c s. iT ¢ Y t 't � , i te Y,.,,, - -. : x -_.. ;s 1 mztia ou rotlj -37- SCHEDULE "B" LEGAL DESCRIPTION Convention Centre lands: Part of Ontario House Lot and Part of Range 1, Plan 1, Stamford, Part of Township Lot 160, Stamford, described as Parts 1, 2, 3, 4, 5, 6, 7, 8 and 9 on Reference Plan 59R- 13628; subject to an easement in gross over Part 3 on Reference Plan 59R - 13628, as in Instrument Number ST22511; subject to an easement in gross over Parts 3, 6 and 7 on Reference PIan 59R- 13628, as in Instrument Number LT30773; subject to an easement in gross over Part 4 on Reference Plan 59R- 13628, as in Instrument Numbers ST25642 and LT30774; subject to an easement in gross over Parts 8 and 9 on Reference Plan 59R- 13628, as in Instrument Number LT30774; subject to an easement in gross over Part 1 on Reference Plan 59R- 12211, as in Instrument Number SN28103; subject to Instrument Number ST50637, City of Niagara Falls, Regional Municipality of Niagara (PIN 64376 - 0183). Stanley Avenue Easement lands: Part of Ranges 1 and 2, Registered Plan 1, described as Part 1 on Reference Plan 59R- 14023, City of Niagara Falls, Regional Municipality of Niagara (Part of PIN 64376 - 0180). Parking Lot lands: Part of Block 39, Plan 1, and Parts of Lots 160 and 173, Stamford, described as Parts 1 and 2 on Reference Plan 59R -11609 and Parts 1, 2, 3, 4 and 5 on Reference Plan 59R -4726, City of Niagara Falls, Regional Municipality of Niagara (PIN 64376 - 0023). Hydro Easement lands: Part of Range 1, Registered Plan 1, and Part of Stamford Township Lot 160, described as Parts 10, 14, 15, 16 and 18 on Reference Plan 59R- 13628, City of Niagara Falls, Regional Municipality of Niagara (Part of PIN 64376 - 0175). Hydro Licence lands: Part of Lots 14 and 15, Registered Plan 41, Part of Ranges 1 through 6, Registered Plan 1, and Part of Stamford Township Lots 160 and 173, described as Parts 11, 12, 13 and 17 on Reference Plan 59R- 13628, City of Niagara Falls, Regional Municipality of Niagara (Part of PIN 64376- 0175). -38- SCHEDULE "C" DELIVERY PLAN The construction of a convention centre in accordance with the contract between The Corporation of the City ofNiagara Falls and Bondfield Construction Company Limited dated December 15, 2008, to be completed on or before November 30, 2010, following which Niagara Convention and Civic Centre Inc. will operate the convention centre in accordance with the requirements of this Agreement. The milestones for completion of the Project will be as follows: 1. Construction begins May 1, 2009. 2. Substantial Completion on or before November 30, 2010. 3. Occupancy on or before February 15, 2011. -39- SCHEDULE "D" DISPUTE RESOLUTION PROCEDURE 1. Amicable Negotiations (a) Unless otherwise provided in this Lease, in the event of any dispute arising between the Landlord and the Tenant under or relating in any way to this Agreement, its negotiation, the performance of obligations thereunder or to any relationships or legal obligations created thereby, such dispute shall be referred, in the first instance, by notice from the Landlord or the Tenant requiring the dispute to be resolved by negotiation. (b) If the dispute is not resolved to the mutual satisfaction of the Landlord and the Tenant within fifteen (15) Business Days (or such longer period as the Landlord and the Tenant may agree) following such notice, the Landlord or the Tenant may by notice to the other require that the dispute be resolved by mediation as set out below, unless both the Landlord and the Tenant waive such requirement in writing. If both the Landlord and the Tenant waive the mediation requirement, either of them may by notice to the other require the dispute to be resolved by arbitration as set out below. 2. Mediation The mediation shall be held within thirty (30) Business Days following the end of the fifteen (15) - Business Day period. Within seven (7) Business Days following the end of such fifteen (15) - Business Day period, the Landlord and the Tenant jointly shall select and appoint a skilled and experienced commercial mediator to assist them to reach an agreement through mediation. The mediation shall be conducted under such mediation rules as the mediator recommends and the cost of the mediation shall be shared as to one -half by the Landlord and as to one -half by the Tenant. Any settlement reached by mediation shall be reduced to writing, shall be signed by the Landlord and the Tenant and shall be final and binding on the Landlord and the Tenant. If the Landlord and the Tenant fail to agree on a mediator within seven (7) Business Days or the dispute is not resolved to their mutual satisfaction within thirty (30) Business Days following the date of receipt of the notice of mediation, either may by notice to the other require the dispute to be resolved by arbitration as set out below. 3. Initiation of Arbitration Proceedings (a) If the procedures described above do not result in the resolution of the dispute, mandatory arbitration proceedings may be commenced by the Landlord or the Tenant (the "Initiating Party") giving notice (the "Initiation Notice ") to the other party (the "Responding Party"). The Initiation Notice must state the nature of the dispute, the amount involved, if any, and the remedy sought and request such arbitration. -40- (b) The place of arbitration shall be Niagara Falls, Ontario. (c) The Single Arbitrator or panel of arbitrators appointed to act hereunder (the "Arbitrator ") shall have appropriate qualifications by profession or occupation to decide the matter in dispute. (d) Within fifteen (15) Business Days following receipt of the Initiation Notice by the Responding Party, the Initiating Party and the Responding Party shall designate one arbitrator (the "Single Arbitrator ") acceptable to both of them. If the Initiating Party and the Responding Party fail to appoint a Single Arbitrator within such period of time, the Initiating Party shall, by notice to the Responding Party, appoint an arbitrator. The Responding Party shall, within fifteen (15) Business Days following receipt of such notice, appoint an arbitrator by notice to the Initiating Party and the two arbitrators so appointed shall select a third arbitrator acceptable to both arbitrators. (e) If the Responding Party fails to appoint an arbitrator within such period of time (or such additional period of time as the Initiating Party and the Responding Party may agree) the Initiating Party may appoint an arbitrator on behalf of the Responding Party and is hereby appointed the agent of the Responding Party for such purpose. If the two arbitrators so appointed are unable to agree upon the third arbitrator (the "Presiding Arbitrator ") within fifteen (15) Business Days following the appointment of the arbitrator by the Responding Party, either of such parties shall be entitled to make application under the Arbitration Act, 1991 (Ontario) for the appointment of the third arbitrator. (f) The fact that a person was proposed by a party as a potential Single Arbitrator shall • not by that fact disqualify the person from being appointed by a party or the Court as an arbitrator. 4. Basic Procedure (a) Within fifteen (15) Business Days following the appointment of the Arbitrator, the Initiating Party shall send to the Responding Party and the Arbitrator a statement of claim (the "Statement of Claim ") stating in sufficient detail the facts and any contentions of law on which the Initiating Party relies and the relief that it Claims. (b) Within thirty (30) Business Days following the receipt of the Statement of Claim, the Responding Party shall send to the Initiating Party and the Arbitrator a statement of defence and, if applicable, counterclaim, (collectively, the "Statement of Defence ") stating in sufficient detail which of the facts and contentions of law in the Statement of Claim the Responding Party admits or denies, on what grounds, and any other facts and contentions of law on which it relies. -41- (c) Within fifteen (15) Business Days following receipt of the Statement of Defence, the Initiating Party may send to the Responding Party and the Arbitrator a statement of reply and, if applicable, defence to counterclaim (collectively, the "Statement of Reply "). (d) Within fifteen (15) Business Days following receipt of the Statement of Reply, the Responding Party may send to the Initiating Party a statement of reply to counterclaim (the "Statement of Reply to Counterclaim "). (e) Every Statement of Claim, Statement of Defence, Statement of Reply and Statement of Reply to Counterclaim shall be accompanied by copies (or, if they are especially voluminous, lists) of all essential documents and other materials on which the party concerned relies. Documents so listed shall be produced for inspection and copying within twenty (20) days of a request for production. The costs of reproduction shall be borne initially by the party listing the documents. (f) After submission of the Statement of Claim, the Statement of Defence, the Statement of Reply and the Statement of Reply to Counterclaim, if any, the Arbitrator shall forthwith meet with and give directions to the parties to the arbitration for the further conduct of the arbitration. (g) There shall be no oral discovery. 5. Meetings and Hearings (a) Although the place of arbitration shall be Niagara Falls, Ontario, meetings and hearings of the Arbitrator may take place in such other place or by such mode as the parties to the arbitration agree. Meetings and hearings shall be conducted in the English language unless otherwise agreed by the parties to the arbitration and the Arbitrator. Subject to the foregoing, the Arbitrator may at any time fix the date, time and place of meetings and hearings in the arbitration, and shall give the parties to the arbitration adequate notice thereof Subject to any adjournments that the Arbitrator allows, the arbitration hearing shall be continued on successive Business Days until it is concluded. (b) Subject to the duties of the Landlord and Boards of Management of the Business Improvements Areas as public bodies, all meetings and hearings and all materials related to the meetings and hearings shall be in private unless the parties to the arbitration otherwise agree. (c) Each party to the arbitration may be represented at any meetings or hearings by legal counsel. -42- (d) Each party to the arbitration may examine and re- examine its witnesses and cross - examine those of the other parties at the arbitration, but nothing herein shall prevent the parties from agreeing to have the arbitration proceed on the basis of documents only, in whole or in part by telephone, video or electronically or to presenting the evidence in -chief of witnesses in written form. 6. The Decision (a) The Arbitrator shall send a decision in writing (the "award ") to the parties to the arbitration within thirty (30) Business Days following the conclusion of all hearings referred to in Section 5 unless such period of time is extended for a fixed period by agreement of the parties to the arbitration in writing or by the Arbitrator on written notice to the parties to the arbitration because of illness or other cause beyond the Arbitrator's control. (b) The Arbitrator shall state the reasons for the award. (c) If the Arbitrator is a panel, the decision of the majority of the panel shall be deemed to be the decision of the Arbitrator. If there is no majority, the decision of the Presiding Arbitrator shall be the decision of the Arbitrator. (e) If the decision is alleged to have been based upon an error in law, a party may appeal the award in that regard pursuant to section 45(2) of the Arbitration Act, 1991 (Ontario). 7. General (a) The object of an arbitration hereunder shall be to ensure the just, expeditious, economical and final determination of any dispute. (b) The Arbitrator shall include as part of any award, the payment of interest at the rate set out in this Lease from an appropriate date as determined by the Arbitrator. 8. Provisional Remedies No party hereto shall be precluded from and shall not waive its right to arbitrate by reason of initiating a proceeding in a court of competent jurisdiction for the purpose of obtaining any emergency or provisional remedy to protect its rights, including temporary and preliminary injunctive relief and restraining orders. 9. Costs of Arbitration Pending determination by the Arbitrator, the parties shall equally and be responsible for their respective shares of all costs relating to the Arbitrator. The Arbitrator shall be entitled to award costs in accordance with the provisions of the Arbitration Act, 1991 (Ontario). -43- 10. Continuing Performance (a) Notwithstanding the existence of a dispute, the Landlord and the Tenant shall continue to perform their respective obligations in accordance with the provisions of this Lease without prejudice to the right to contest, dispute and challenge the relevant matter in accordance with the provisions of this Lease. (b) Subject to the express provisions of this Lease, where there is any dispute as to the amount of monies owing by a party to another party, the portion of the amount owing that is not contested, disputed or challenged, if any, shall be paid when due hereunder, but without prejudice to the rights of the parties to contest, dispute or challenge the disposition of the remaining portion of the monies claimed. -44- SCHEDULE "E" r SITE PLAN - i ; ' ► s ► i ,;li i L 1 1'�� 1 ,41i i i 7 ,iii j ili i� g 4 hh lit 1 ' 1 �I } '� 1'jj ,Il 11 i1 ; ii ; ! ! �` 1 ! 1 1 I '�.� it llli ��• J L �- owia+..n • - - - -- - rya ► v;i°; i� 1 \l 1 \I 1 I _ . , -8 J I I ■ J]�I I I \\ L i \rL L_ 11 _1 P 1 1 - 'moo TT - T h. I, .L \ \ ,ii , 1 jI——f— I I. 1 1 1 — \— - 11 •iII' - - -- - - -- -- ; 1—___:L.5-71._ 1i1 � J T • ,; i ..ip, 1 . ii c _ (7 ,‘ _19,1. - m g , �I I 1 1 .I I , ,Hi 1 :I I • 7T o1 i i i - . __--1 iiiii/,...._.j - .11 0 1 1 I. \ J3 I/ .114 a • J x al a 4 +— I 1 . 1 1 lfsil[ll. I D 4 _:,ba Nir I I O a ' — — — _ — in — J — L J --!:- 1 If. ;, t: 781118 •1 i + �� f # i i :74 ,h1i :Illl, iZ•1I 1lil� i iii• S 1, ::ill i :Il! j ji l 1R i i ii 1 1 11 1 1 I eb) 1 / 11/111 l.ft l0 h..1 ,tt .1' a I \ \ A 1 ' j --gi -- -- it : , \ Ai fr et t — — \ 1_ , 1 — j \ \ w re y 1 ' !� 1 ! \ 1 i r, th 1 r 1 f I \ \ 1 a 0 17 IR \ 4 > 1 1171 i ' _ C I F g `` \ �'� li .. ' • I : f p; roll • i � � I . .. • : � ' `, : . • _ _ � . I r. ::, \ mi l♦' 'r '.. 1! „, 1 •........: i �R�R�R�RR qA �S� t1 ' 0 G C, 6 41 r \ e + .,I 1I 1 1 w.i I yr ilt► '' .• the , ,. ^ f I /lit �: r l �. p. 1F! r�� f s fi i f q 1 3 `I 1 . vii �� , i i 1 ' " I I © � f • �" 1 !i i 1 iii I. :I :;1,,. I 1 Iigti 4;p q 1 � I i I + I'iC lt1 t . s �1 Sri -- . 2 :: _ . VJit Ilia! 1 •��i 1i1 I✓ I Hilo Iti 1 , f I w Y j 1 I 9 a• • I a > i alftieoHowlp I i L J i , —5f6— I : s se �• o tsor�a " i i it 1 i '�1t;}ill k t il� WI i + i111 � 1 ! i . 1 , !I g 9 k t a e �� i � �� t i t i i d:. t . .t'.. r #'f,• ,l;:. I'i, i�::■ , ri: Ij � v8 i ,1'til IE � ,• , q, ill 1t o u 't!!!i .iliii .i: li i i i I 3 i .,�. L i, z1 ttklki POW OMO 33• • a `: w �� 1 � , {•c • 1 /i� 6� 1 el wR 4.ili IMO • .. � 0 � ' pi ft tfilt 'i I ill *. 9 ;l p TA ; - ; I 4 1, i. 0 (2 , ill � ' , d i 1= II � it _ L ;gyp - ° 11 -a 0 ` 1 0! ., ___I i I oil AP' I1� rL`i/ ) a s ` k 1 c ' 13 - - — — — I Ili I... — a aaG �� , . i s _ I 1 j a/ �I . @ r.5,, .t 1 I g I Nu • 9 ffy •, I 1 a, 1,..., •. - I 1 J !1 • Q, �t I& i ! 92 I ! i Ii 1 1 I t y t1 , 1 - 1 ' i ,.: 1 .. I 1 1 1 I is I 1 1 1 w 1 1 1 1 it 1 �; , i __ I • .. .ill 4 . gi I , 1 i ll V ° r 9 1ae J 1 w.,.. E3 0 t' I. L A , • r , - Si 7- -I 5 twig ; : 1 l ir ,. i 4 • al]; nil; t im 11;1 !dii ,iti iirii Qv /I 1 ; 1:1 r kti■S : I, :li 11WHI) i;:■:!1:i.1/V:,!:■:. Iiii: IL. 1;.j.. le3:. it. 11 LI § I ! 1 1 1 t : Will li ! It i 1 li It II ! . i I i i f • I • 1 ' !Mil •iiilli 11 i; . II I" MO.433,1141' -- - I • . \11-1'17-4 — — — _ I I 1 I I t i 1 it " .1 d id I i I I II i i 7 1 it .,. 11 1 CP . I i 1 I I ••Il 1 • I I , . I L ill ' LI _i_.. . ---\ — — F — --- triiiiiIiiii ,, L_J •• 1111 .::: 1 :, \ 43•410•4:iso•iir Li i lill ., - o PP" 1 . \ ... • •• : \I r I t. .4 >-- --1 ■ L_ii . • 1. .ht ' .... I : 1 1 •• --. 1 7 '• : ---; ., I j'-‘": • — — •-- , ,,,- \ --- t . \ .! - 1 - - - 1 ., e• - ••• I -, ,--- ': 1 • ,, : I i lc • — _ _ 1 _ _ _ 1 .:, ,',-, 4 ` 4 , V i • a 1 i 14 - .2.' _I • i I - • to. • 1 cr 1 l 1 -- •-•,_/- i iv * 1 4 • _ ____ a It: $ I l ik,,,,,,,,„ , , , !.• \ \., ,,,,. ., L., ,, „,•\ „, , 1 k \ \ . •1 41 1 r` \'',) I f I ' • I ., \ . ,, ,-,• , - — __ j ' . , • , ! i I , fi; • • _ _ _ _ : -1 1 f it v... . ";: l I ..:- !I - - - -- - __\_ ____-.- ---- — _i_ -- -- --- - ----- • i i „,.;. \ \„ /: t . _.------- CD t •, ,,,, I I .,.!-----1 • 4 \ i Air • I ''' , V - 1 ' ) :II — \ I - _ ill mi cit 1 , • t. IF 71 e: , - - . - i NI , g i __ . .04 . • • 4---- . I • • / / 1,- -",,---- ..._;----: • • r -- • / / I t o _ morim ..••••••4 1 i / ' . • N - 'NEW' ; i 1 . , • / , .. .1, ' - ft....i TOMEI I Iiii: F -11. 1 il kismiistallico. 1 _._ t, j il . I c lillitiffin,. I . - r - r \ • 1 , r • , / i . i I - AO '_ COY f3MCI 3A L __J . LEASE AND OPERATING AGREEMENT BETWEEN THE CORPORATION OF THE CITY OF NIAGARA FALLS - AND- NIAGARA CONVENTION AND CIVIC CENTRE INC.