EX-10.9 2 f10q0920ex10-9_halloffame.htm TECHNOLOGY AS A SERVICE AGREEMENT, DATED OCTOBER 9, 2020, BY AND BETWEEN HOF VILLAGE NEWCO, LLC AND JOHNSON CONTROLS, INC.

Exhibit 10.9

 

CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. [***] or [Redacted] INDICATES THAT INFORMATION HAS BEEN REDACTED.

 

TECHNOLOGY AS A SERVICE AGREEMENT

 

Between

 

HOF Village NEWCO, LLC

 

as Customer

 

- and -

 

Johnson Controls, Inc.

 

as Provider

 

October 9, 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

Technology as a Service Agreement

EXECUTION VERSION

 

 

 

 

TABLE OF CONTENTS

 

Article 1 AGREEMENT DOCUMENTS AND DEFINITIONS

2
1.1 Agreement Documents 2
1.2 Principles of Interpretation 3
1.3 Schedules, Annexes and Attachments. 4
1.4 Definition; Recitals 5
     
Article 2 PERFORMANCE of THE Project WORK 5
2.1 Provider’s Obligation to Perform the Phase 2 Work 5
2.2 Provider’s Obligation to Perform the Phase 3 Work 6
2.3 Provider Subcontracted Work 7
2.4 Project Labor Agreement 7
2.5 Project Diversity Goals 7
     
Article 3 Support of Project Work and Project Services 8
3.1 Customer’s Obligation to Support Project Work and Project Services. 8
3.2 Provider Additional Obligations 9
3.3 Communications 9
3.4 Co-ordination with General Contractor(s) 10
     
Article 4 maintenance and lifecycle obligations 10
4.1 Interim Services 10
4.2 General 10
4.3 Key Performance Indicators 10
4.4 KPI Remedy Limitation 12
4.5 Monthly Performance Report. 12
4.6 Planned and Emergency Maintenance or Replacement. Annual Scheduled Maintenance Plan. 12
4.7 KPI Remedy Not Applicable 13
4.8 Phase 1 Planned Services Agreement 13
     
Article 5 TERM 14
5.1 Overall Term of Agreement 14
     
Article 6 Payment 14
6.1 Payments. 14
6.2 Taxes 15
6.3 Overdue Amounts 15
     
Article 7 COMPLIANCE WITH LAWS/CHANGES 15
7.1 Compliance With Law. 16
7.2 Change in Law/Customer Policies. 16
7.3 Changes. 16
7.4 Excused Failure. 16

 

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Article 8 WARRANTY DISCLAIMER 16
8.1 No Implied Warranty 16
8.2 Tax Treatment 16
     
Article 9 insurance 16
9.1 Insurance 16
9.2 Damage or Destruction. 17
9.3 Net Proceeds. 17
9.4 Liability for Property Damage. 17
     
Article 10 CONFIDENTIALITY 17
10.1 Confidentiality 17
10.2 Disclaimer 18
10.3 Return of Materials 18
10.4 Patent or Copyright Infringement 18
10.5 Term 18
10.6 Remedies 19
10.7 Press Releases 19
     
Article 11 Representations 19
11.1 Customer Representations 19
11.2 Provider Representations 20
     
Article 12 EVENTS OF DEFAULT; REMEDIES; LIMITATION OF LIABILITY 20
12.1 Default by Provider 20
12.2 Default by Customer 23
12.3 Limitation of Liability. 25
12.4 Force Majeure Event; Termination. 26
     
Article 13 INDEMNITY 26
13.1 General Indemnity 26
13.2 Notice. 27
13.3 Indemnifying Party’s Right to Dispute Direct Claim by Indemnified Party. 27
13.4 Indemnifying Party’s Right to Assume Defense of Third Party Claims. 27
13.5 Compromise and Settlement of Third Party Claims. 27
13.6 Insurance Proceeds. 28
     
Article 14 ENVIRONMENTAL 28
14.1 Provider’s Environmental Obligations 28
14.2 Customer’s Environmental Duties 28
     
Article 15 intellectual property 29
15.1 Intellectual Property. 29
15.2 Intellectual Property Indemnity. 29
15.3 Intellectual Property Indemnity Limitation 29
15.4 Naming Rights and Sponsorship Agreement 29
     
Article 16 Assignment 29
16.1 Assignment by Provider 29
16.2 Assignment by Customer 29

 

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Article 17 notices and change of address 30
17.1 Notices and Change of Address 30
     
Article 18 MISCELLANEOUS 31
18.1 Time of the Essence; Effect of Waiver; Remedies 31
18.2 Governing Law; Venue 31
18.3 Further Assurances 31
18.4 Severability 31
18.5 Joint and Several 31
18.6 Counterparts and Electronic Signature 32
18.7 Independent Contractor 32
18.8 Final Agreement; Amendments; Binding Nature 32
18.9 Survival 32

 

Schedule 1 Definitions
Schedule 2 Maintenance and Lifecycle
Schedule 3 Payment and Deductions
Schedule 4 Insurance
Schedule 5 Dispute Resolution Procedure
Schedule 6 Customer Support Services
Schedule 7 Changes
Schedule 8 Customer Policies
Schedule 9 Reliance Documents
Schedule 10 Construction Additional General Terms and Conditions
Schedule 11 Design Assist Services Agreement
Schedule 12 Project Labor Agreement
Schedule 13 Planned Services Agreement

 

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TECHNOLOGY AS A SERVICE AGREEMENT

 

This Technology as a Service Agreement is entered into as of October 9, 2020 (the “Effective Date”), by and between:

 

HOF VILLAGE NEWCO, LLC, a Delaware limited liability corporation

 

(hereinafter referred to as “Customer”)

 

- and -

 

JOHNSON CONTROLS, INC., a Wisconsin corporation

 

(hereinafter referred to as “Provider”)

 

Hereinafter, each of the foregoing may be individually referred to as a “Party” and collectively as the “Parties”.

 

RECITALS:

 

A.WHEREAS Customer owns, directly or indirectly, a controlling ownership interest in the “HOF Village Complex”, which is a commercial, educational, retail and recreational complex being developed by, or on behalf of, Customer and anchored by The Tom Benson Hall of Fame Stadium (the “Stadium”) and the Pro Football Hall of Fame, all of which is collectively referred to herein as the “Project”.

 

B.AND WHEREAS the Project is comprised of three phases (“Phase 1”, “Phase 2” and “Phase 3” as defined in this TAAS Agreement) which, collectively include but are not limited to: (i) extensive redevelopment of, and improvements to, the Stadium, (ii) construction of numerous turf playing fields and related improvements for youth sporting events, (iii) construction of a Hotel and Conference Center, (iv) construction of the Center For Excellence, (v) construction of the NFL Experience, (vi) construction of parking facilities, both structured and surface parking lots, and (vii) construction of other retail, entertainment, and residential improvements within the HOF Village Complex;

 

C.AND WHEREAS in connection with the development of the Project, Customer has engaged the following parties, each pursuant to separate written agreements: (i) each of Turner Construction Company and Welty Building Company has been engaged to serve as a Construction Manager for the HOF Village Complex; (ii) DuSoul Company Inc. dba TSAV has been engaged to serve as technology program manager with respect to the technology, and other related systems for the Project; and (iii) Prime AE Group Inc has been engaged as the lead architect for the Project;

 

D.AND WHEREAS Provider and HOF Village, LLC negotiated and entered into an amended and restated sponsorship and naming rights agreement dated July 02, 2020 whereby HOF Village, LLC granted Provider certain naming and sponsorship rights with respect to the Project, as more fully described therein, which agreement was assigned to the Customer by a contribution agreement dated June 30, 2020 (“the amended and restated sponsorship and naming rights agreement, as assigned, the “Naming Rights and Sponsorship Agreement”).

 

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E.AND WHEREAS Customer and Provider entered into a design assist services agreement dated October 20, 2016 pertaining to certain design assistance and performance of certain scopes of work in respect of the Project, a copy of which is attached as Schedule 11 [Design Assist Services Agreement];

 

F.AND WHEREAS Customer desires to engage, cause related entities of Customer who are tenants of the Facilities to engage, or cause unrelated entities of the Customer who are involved in Phase 2 or Phase 3 to engage Provider directly to provide certain design assist consulting, equipment sales and turn-key installation services in respect of specified systems, as more particularly described herein, to be constructed as part of Phase 2 and Phase 3 of the Project;

 

G.AND WHEREAS the Phase 2 scope of work is intended to be valued at approximately [***] and the Phase 3 scope of work is intended to be valued at approximately [***];

 

H.AND WHEREAS Customer desires to engage Provider to provide certain maintenance and lifecycle services in respect of certain systems constructed as part of Phase 1, and to be constructed as part of Phase 2 and Phase 3, of the Project, as more particularly described herein.

 

NOW THEREFORE in consideration of the mutual promises and undertakings set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

Article 1
AGREEMENT DOCUMENTS AND DEFINITIONS

 

1.1Agreement Documents. This Technology as a Service Agreement and the Schedules listed below and attachments hereto or thereto (collectively, the “Agreement” or the “TAAS Agreement”) constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and shall supersede and take the place of any and all agreements, negotiations or understandings (whether written or oral) including without limitation documents, minutes of meetings, letters, emails, texts, requests for proposals, proposals and any other materials on the subject matter which may, prior to the Effective Date, be in existence. For the avoidance of doubt, the foregoing sentence does not apply to: (a) the Naming Rights and Sponsorship Agreement and, to the extent of any conflict between this Agreement and the Naming Rights and Sponsorship Agreement, the Naming Rights and Sponsorship Agreement shall prevail; and (b) the Design Assist Services Agreement and documents delivered or created pursuant to the Design Assist Services Agreement, and, to the extent of any conflict between this Agreement and the Design Assist Services Agreement, this Agreement shall prevail. Specifically, in respect of the Naming Rights and Sponsorship Agreement, the Parties intend, acknowledge and understand that: (i) Customer’s performance under the Agreement is essential to, and a condition to Provider’s performance under, the Naming rights and Sponsorship Agreement and (ii) Provider’s performance under the Naming Rights and Sponsorship Agreement is essential to, and a condition to Customer’s performance under, the Agreement. The Parties represent, warrant and agree that the transactions, agreements and obligations contemplated under the Agreement and the Naming Rights and Sponsorship Agreement are intended to be, and shall be, interrelated, integrated and indivisible, together being essential to consummating a single underlying transaction necessary for the Project.

 

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1.2Principles of Interpretation. In this Agreement, unless the context otherwise requires:

 

(a)any table of contents, titles, captions, headings, the rendering of text in bold and italics and similar items contained in this Agreement or any Schedule or Annex or attachments hereto or thereto are for convenience and reference only and shall not affect the interpretation of this Agreement;

 

(b)words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders;

 

(c)the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

 

(d)a reference to a Section, paragraph, clause, Party, exhibit, Annex, Attachment or Schedule is a reference to that Section, paragraph, clause of, or that Party, exhibit, Annex, attachment or Schedule to, this Agreement unless otherwise specified;

 

(e)a reference to this Agreement shall mean this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of this Agreement;

 

(f)a reference to a person or entity includes that person’s or entity’s successors and permitted assigns;

 

(g)the term “including” means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided;

 

(h)references to any amount of money shall mean a reference to the amount in US Dollars;

 

(i)the expression “and/or” when used as a conjunction shall connote “and any or all of”; and

 

(j)any inconsistency in or conflict between the terms and conditions of this Agreement including the main body of this Agreement, any Schedule, Annex, exhibit or attachment hereto or thereto, shall be resolved by giving precedence first to the main body of this Agreement, second to Schedule 10 [Construction Additional General Terms and Conditions], third to Schedule 2 [Maintenance and Lifecycle], fourth to Schedule 3 [Payment and Deductions] and then to all other Schedules to this Agreement in numerical order. Subject to the foregoing sentence, in the event of a conflict, a mathematical formula describing a concept or defining a term shall prevail over words describing a concept or defining a term.

 

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1.3Schedules, Annexes and Attachments.

 

(a)This Agreement has the following Schedules, Annexes, Attachments and Exhibits, which hereby are incorporated as part of this Agreement:

 

Schedule 1     Definitions

Attachment 1.1 – In-Scope Systems

Attachment 1.2 – Project Facilities

Attachment 1.3 – Intentionally Deleted

Attachment 1.4 - Labor Costs for Provider’s Personnel for Phase 2

 

Schedule 2     Maintenance and Lifecycle

Exhibit A – O&M Plans and O&M Reports

Exhibit B – Excluded O&M Services

Attachment 1 – Key Performance Indicators & Deductions

Attachment 2 – Key Personnel

Attachment 3 – Handback and Useful Life Requirements

 

Schedule 3     Payment and Deductions

Appendix A – Pro Forma

 

Schedule 4     Insurance

 

Schedule 5     Dispute Resolution Procedure

Appendix A – Form of Retainer Agreement

 

Schedule 6     Customer Support Services

 

Schedule 7     Changes

 

Schedule 8     Customer Policies

 

Schedule 9     Reliance Documents

 

Schedule 10   Construction Additional General Terms and Conditions

Attachment 1A – Construction Payments—Phase 2

Attachment 1B – Construction Payments—Phase 3

Attachment 1C – Progress Payment Provisions

Attachment 2A – Customer Schedule Phase 2

Attachment 2B – Customer Schedule Phase 3

Attachment 3A – Design Documentation Phase 2

Attachment 3B – Design Documentation Phase 3

Attachment 4 – Modified AIA Document A201-2007

Attachment 5 – Extended Warranties

 

Schedule 11   Design Assist Services Agreement

 

Schedule 12   Project Labor Agreement

 

Schedule 13   Planned Services Agreement

 

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1.4Definition; Recitals. Capitalized terms used in this Agreement are defined in Schedule 1 [Definitions] or shall have the meanings given them when first defined. The recitals are incorporated into this Agreement by reference.

 

Article 2
PERFORMANCE of THE Project WORK

 

2.1Provider’s Obligation to Perform the Phase 2 Work.

 

(a)Phase 2 Work. Provider shall perform the Phase 2 Work in accordance with the terms and conditions stated in this Agreement and consistent with the applicable Design Documentation. For clarity, any Phase 2 Work performed prior to the date of this Agreement shall be deemed to have been performed in accordance with the terms of this Agreement

 

(b)Additional Phase 2 Work Conditions. The additional conditions specified in Schedule 10 [Construction Additional General Terms and Conditions] hereto shall be applicable to the performance of the Phase 2 Work, to the extent of any Phase 2 Work that Provider is retained directly by Customer to perform. Each of Provider and Customer shall perform, to the extent of any Phase 2 Work that Provider is retained directly by Customer to perform, all of its obligations in respect of the Phase 2 Work in accordance with the terms of Schedule 10 [Construction Additional General Terms and Conditions].

 

(c)Tenant Fit-Out Work. While the Parties understand and agree that decisions regarding tenant fit-out work for Phase 2 will be made by each tenant, the Customer will make best efforts to facilitate Provider’s involvement in tenant fit-outs. For clarity, tenant fit-out work shall not form part of Project Work and Provider shall not be responsible to provide Project Services in respect of any tenant’s equipment and technologies unless such work and/or services are incorporated into this Agreement by Change Order. The Customer shall incorporate in all tenant leases a covenant from each tenant that, if such tenant elects to use In-Scope Systems which are not Provider products, and such In-Scope Systems are public facing in any of the Project Facilities, the tenant shall remove the template identifying, or white out the name of, the provider of such In-Scope Systems. Customer shall use commercially reasonable efforts to enforce such covenant provided that Customer shall not be required to terminate the lease or evict such tenant. The provisions of this Section 2.1 shall not apply to entities related to Customer and the Parties agree that fit-outs of tenants related to Customer shall form part of the Project Work and Project Services.

 

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2.2Provider’s Obligation to Perform the Phase 3 Work

 

(a)Phase 3 Work. Provider shall perform the Phase 3 Work in accordance with the terms and conditions stated in this Agreement and consistent with the applicable Design Documentation.

 

(b)Additional Project Work Conditions. The additional conditions specified in Schedule 10 [Construction Additional General Terms and Conditions] hereto shall be applicable to the performance of the Phase 3 Work, to the extent of any Phase 3 Work that Provider is retained directly by Customer to perform. Each of Provider and Customer shall perform, to the extent of any Phase 3 Work that Provider is retained directly by Customer to perform, all of its obligations in respect of the Phase 3 Work in accordance with the terms of Schedule 10 [Construction Additional General Terms and Conditions].

 

(c)Adjustment to Phase 3 Work. Customer and Provider acknowledge that there is a greater certainty regarding the Phase 2 Work then the Phase 3 Work (and the cost of the Phase 3 Work). As a result, Provider’s and Customer’s expectations regarding the Phase 3 Work may require reasonable adjustments as the Phase 3 development evolves. Customer shall nonetheless award Provider all work associated with the supply and installation of all of the Phase 3 Equipment / Technology that is under control of the Customer

 

(d)Liquidated Damages. Customer and Provider have estimated the value of the Phase 3 Work (the “Provider Phase 3 Work”) to be [***] (Index Linked) pending final design. If due to Customer’s development decisions (including not proceeding with the Provider Phase 3 Work, terminating the Provider Phase 3 Work, or electing to reduce the scope of the Provider Phase 3 Work or changing the mix of the Project Facilities for Phase 3), the value of the Provider Phase 3 Work is reduced by [***] or more from the expected amount of [***] (Index Linked), then Customer shall pay to Provider, as Provider’s sole remedy for the reduction in the Provider Phase 3 Work, the Phase 3 Work Liquidated Damages. Any Phase 3 Work Liquidated Damages shall be paid by Customer to Provider as follows:

 

(i)50% upon Provider achieving Substantial Completion of the Phase 3 Work; and

 

(ii)50% upon completion of all Phase 3 construction work (as evidenced by the issuance of certificates of occupancy (or other equivalent) for all Project Facilities comprising Phase 3),

 

provided that, if the Phase 3 construction work has not been completed by December 31, 2025 any outstanding Phase 3 Work Liquidated Damages shall be paid by Customer to Provider within thirty (30) days of such date.

 

It is acknowledged that the failure by Customer to award Provider the Provider Phase 3 Work in an amount that materially comports with the expected amount stated above will cause Provider to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by Provider of actual damages, and that the Phase 3 Work Liquidated Damages represent a fair, reasonable and appropriate estimate thereof. Such Phase 3 Liquidated Damages are intended to represent estimated actual damages and are not intended as a penalty.

 

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(e)Tenant Fit-Out Work. While the Parties understand and agree that decisions regarding tenant fit-out work for Phase 3 will be made by each tenant, the Customer will make best efforts to facilitate Provider’s involvement in tenant fit-outs. For clarity, tenant fit-out work shall not form part of Project Work and Provider shall not be responsible to provide Project Services in respect of any tenant’s equipment and technologies unless such work and/or services are incorporated into this Agreement by Change Order. The Customer shall incorporate in all tenant leases a covenant from each tenant that, if such tenant elects to use In-Scope Systems which are not Provider products, and such In-Scope Systems are public facing in any of the Project Facilities, the tenant shall remove the template identifying, or white out the name of, the provider of such In-Scope Systems. Customer shall use commercially reasonable efforts to enforce such covenant provided that Customer shall not be required to terminate the lease or evict such tenant. The provisions of this Section 2.2 shall not apply to entities related to Customer and the Parties agree that fit-outs of tenants related to Customer shall form part of the Project Work and Project Services.

 

Provider Subcontracted Work. Customer shall contract directly with Provider for all In-Scope Systems which previously were to be subcontracted to Provider through Turner and Welty.

 

2.3Project Labor Agreement. Provider acknowledges that Customer has entered into a Project Labor Agreement (“PLA”) with the East Central Trades Council (a copy of which is set forth in Schedule 12 [Project Labor Agreement] hereto) and that, if the Phase 2 Work or the Phase 3 Work includes work governed by the PLA, Provider shall comply with all of Customer’s obligations set forth in the PLA to the extent they relate to the scopes of the Phase 2 Work or the Phase 3 Work, as applicable, which Provider is required to carry out pursuant to the terms of this Agreement. For clarity, Provider shall not be required to comply with the PLA in respect of any Project Services (being the maintenance and lifecycle services).

 

2.4Project Diversity Goals. Customer and Provider agree that the diversity goals of the Project include the following:

 

(a)a minimum of [***] of the Project Work subcontracted for the Project will be subcontracted to MBE, WBE, DBE and VBE; and,

 

(b)the workforce for the Project Work will comprise [***] residents of Stark County, Ohio and adjacent communities.

 

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Provider shall use commercially reasonable efforts to assist Customer to achieve these goals, including:

 

(a)requesting all sub-contract pricing to include diversity goals;

 

(b)introducing various minority contractors to Customer and general contractor(s) with its preferred sub-contractors;

 

(c)maintaining an organized sub-contractor/supplier list broken out by DBE type and specialty; and

 

(d)participating in Diversity events as they are scheduled by Customer.

 

Article 3
Support of Project Work and Project Services

 

3.1Customer’s Obligation to Support Project Work and Project Services. 

 

(a)Access. Customer shall provide Provider, its employees, independent contractors and subcontractors such access to the Premises as is necessary for Provider to perform the Project Work (including the Phase 2 Work and the Phase 3 Work) and deliver the Project Services to Customer in accordance with the terms and condition of this Agreement. Customer shall ensure that Provider has access to any portion of the Premises as required by Provider to complete the Project Work including in accordance with the schedule for each of Phase 2 and Phase 3 of the Project Work and to perform the Project Services in accordance with the requirements of this Agreement. Customer shall provide such access to Provider effective as of the Effective Date for the Term. Such access shall be at Customer’s cost and expense.

 

(b)License. Accordingly, Customer does hereby grant and convey to Provider and its employees, agents, independent contractors and subcontractors, a non-exclusive license for the purpose of performing the Project Work and delivering the Project Services over, across and upon the Premises, for the Term of this Agreement. Such license shall include a right of ingress and egress to the Premises and the right to access, use, construct, supply, test, commission, operate, maintain, repair, replace and to perform any other act as required to perform the Project Work in accordance with the terms and conditions of this Agreement and deliver the Project Services during the Term of this Agreement.

 

(c)Customer Support Services. In conjunction with Provider’s performance of the Project Work, Customer shall provide the Customer Support Services. Notwithstanding the foregoing, Customer shall be excused from its obligation to provide the Customer Support Services for the duration of a Force Majeure Event if a Force Majeure Event occurs and Customer is prevented from providing the Customer Support Services by such Force Majeure Event.

 

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(d)Customer Representative. Within 10 (ten) days following the Effective Date, Customer shall designate an authorized representative (“Customer Representative”), who shall meet regularly, at a time set by the Parties, with Provider’s Representative to schedule and facilitate each Phase of the Project Work. Customer shall provide Provider with at least ten (10) days prior written notice in the event it elects to designate a new authorized representative.

 

(e)Permits. Subject to the terms hereof, Provider shall be responsible to obtain the Provider Permits and Customer shall be responsible to obtain the Customer Permits.

 

(f)Provider Permits. Customer shall provide all assistance as Provider may reasonably request in order for Provider to obtain the Provider Permits, including entering into or applying for Permits where reasonably required to be entered into or applied for in the name of Customer. Notwithstanding the foregoing, to the extent related to any Project Work or Project Services, Provider shall retain the risk of performance of the Provider Permits.

 

(g)Permits Information. Customer shall apply for and deliver or otherwise make available to Provider such information as required and reasonably requested by Provider to facilitate Provider’s timely procurement of the Provider Permits. Customer shall provide such information that is within its possession to Provider within 10 (ten) Business Days of request by Provider and shall provide such information that is not within its possession to Provider as soon as reasonably practicable.

 

3.2Provider Additional Obligations

 

(a)Provider Representative. Within ten (10) Business Days following the Effective Date, Provider shall designate an authorized representative (“Provider Representative”). Provider shall provide Customer with at least ten (10) days prior written notice in the event it elects to designate a new authorized representative.

 

3.3Communications

 

(a)Meetings. Provider Representative and Customer Representative shall meet regularly to schedule and facilitate the Project Work, and as soon as practicable after a request of either of them, throughout the Term.

 

(b)Executive Meetings. At the request of either Provider Representative or Customer Representative for an executive meeting, executives of Customer (or the designees of such executives) and the Customer Representative shall meet with the Provider Representative and executives of Provider (or the designees of such executives); provided such designees have the requisite authority to make decisions or otherwise bind Provider and Customer.

 

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3.4Coordination with General Contractor(s)

 

(a)General. Provider acknowledges that Customer has or will be hiring one or more general contractors to design and construct the Project. Provider shall, and Customer shall cause its general contractor(s) to, cooperate and coordinate their respective activities on the Premises so as to promote the proper and timely construction of the Project and so as to minimize any delay and/or interference with the other party’s respective scope of work.

 

(b)Coordination Agreement. Provider shall, and Customer shall cause its general contractor(s), to enter into a coordination agreement by and among Provider, Customer, and each of the general contractor(s) in respect of Phase 2 and Phase 3, as applicable, providing for the cooperation and coordination contemplated in Section 3.4(a) above, including specific rights and obligations in respect of access to the Premises, health and safety and coordination of installations and connections by November 15, 2020, in a form to be mutually agreed to by the parties thereto.

 

Article 4
maintenance and lifecycle obligations

 

4.1Interim Services

 

Provider shall provide the Interim Project Services for each Project Facility from the commencement of the Interim Project Services Period for such Project Facility until the start of the Project Services Period for Phase 2 or Phase 3, as applicable, in accordance with the terms and conditions set forth in this Agreement. Interim Project Services shall be paid for by Transition Fees, invoiced and paid as Allowable Costs, during the performance of the Phase 2 Work and the Phase 3 Work. Transition Fees for Phase 2 will be paid monthly in advance on the first day of each month commencing January 1, 2021 until the start of the Project Services Period for Phase 2. Transition Fees for Phase 3 will be paid monthly in advance on the first day of each month commencing on the commencement of the Interim Project Services for the first Project Facility in Phase 3 until the start of the Project Services Period for Phase 3.

 

4.2General

 

Provider shall provide the Project Services for all Project Facilities comprising each Phase from the commencement of the Project Services Period, in respect of the respective Phase, until the end of the Term, in accordance with the terms and conditions set forth in this Agreement.

 

4.3Key Performance Indicators

 

(a)KPIs. With respect to certain of the maintenance and repair obligations set forth in Part 2 [Project Services] of Schedule 2 [Maintenance and Lifecycle], this Agreement sets forth corresponding key performance indicators (collectively, “KPIs” and singularly “KPI”) that Provider shall achieve, subject to the occurrence of an Excused Failure. Provider shall measure its performance against each KPI for the applicable measurement periods specified in the KPI List, and report such performance to Customer in accordance with Section 4.4. If Provider fails to meet one or more KPI, Provider shall:

 

(i)promptly investigate, assemble, and preserve pertinent information with respect to, and report on the causes of, the problem, including performing a root cause analysis of the problem;

 

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(ii)advise Customer of the failure and the status of remedial efforts being undertaken with respect to such problem;

 

(iii)minimize the impact of and correct the problem(s) causing such KPI not to be met;

 

(iv)take appropriate preventive measures so that the problem does not recur; and

 

(v)be subject to the Deductions set out in the KPI Deductions List, to the extent applicable, up to a maximum of the Service Payment - Monthly, in each case, in the respective Contract Month.

 

(b)The Customer shall have the right, no more frequently then quarterly, to audit, at Customer’s cost, the Provider’s performance against each KPI provided that the Provider may participate in such audit during the course of any walk-throughs of the Project Facilities. Provider shall provide, at least annually, at Provider’s cost, an audit of Provider’s performance against each KPI.

 

(c)Without prejudice to any other rights Customer may have under this Agreement, if a KPI Increased Monitoring Trigger occurs, Customer may, upon written notice to Provider, increase the level of its monitoring, inspection, testing and auditing of the Project Services and Provider’s compliance with this Agreement to such level as Customer determines, acting reasonably. Customer may continue to exercise its rights under this Section 4.3(c) until such time as Provider has demonstrated to the reasonable satisfaction of Customer that Provider intends to diligently perform and is capable of performing its obligations under this Agreement. Provider shall reimburse Customer for any reasonable increased or additional costs incurred by Customer in exercising its rights under this Section 4.3(c) within thirty (30) days of receiving an invoice from Customer with respect to such costs.

 

(d)Without prejudice to any other rights Customer may have under this Agreement, if a KPI Remedial Plan Trigger occurs, Provider shall within fourteen (14) days of such occurrence submit to Customer a remedial plan (“KPI Remedial Plan”) for Customer’s review and approval. A KPI Remedial Plan must set out specific actions and an associated scheduled to be followed by Provider to improve its performance and reduce the number and frequency of Provider’s failure to meet KPIs in the future. Such actions may include: (i) changes in organizational and management structure; (ii) revising and restating management plans and procedures; (iii) improvements to quality control practices; (iv) increased monitoring and inspections; (v) changes in key personnel; (vi) replacement of Subcontractors; and (vii) other reasonable measures. Provider shall implement any approved KPI Remedial Plan in accordance with its terms.

 

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(e)Without prejudice to any other rights Customer may have under this Agreement, if the KPI Default Trigger occurs, Customer may terminate this Agreement in accordance with Section 12.1.

 

4.4KPI Remedy Limitation. Customer’s remedies for any breach by Provider of any KPI, whether asserted pursuant to contract, tort or other law, are limited solely to the recovery of Deductions and remedies set forth in Sections 4.3(c), (d) and (e) (including termination of this Agreement in accordance with the provisions of Section 12.1) below. In each Contract Year, the maximum aggregate amount of all Deductions that Customer is entitled to shall be equal to [***] of the Escalated Maintenance Payment - Annual, in respect of Phase 1, Phase 2 and Phase 3, as applicable.

 

4.5Monthly Performance Report. Provider shall provide Customer with a monthly performance report, within fifteen (15) days after the end of each month, describing performance of the Project Services in such month in respect of the applicable Phase (the “Monthly Performance Report”), in a form to be agreed by Customer and Provider, each acting reasonably.

 

4.6Planned and Emergency Maintenance or Replacement. Annual Scheduled Maintenance Plan.

 

(a)Prior to the commencement of the Project Services Period for each Phase and prior to the last day of the eleventh (11th) month of each Contract Year after commencement of the Project Services Period for each Phase, Provider shall advise Customer as to any planned Maintenance or Replacement Work that is expected to cause an In-Scope System in respect of such Phase to be unable or unavailable to perform its function such that any applicable KPI will not be met. Provider and Customer shall jointly review and approve such Maintenance or Replacement Work plan and agree to the schedule for such work, during times that minimize the negative impact of the planned Maintenance or Replacement Work upon Customer. Customer agrees not to unreasonably withhold or delay its agreement to Provider’s planned schedule (the “Annual Scheduled Maintenance Plan”).

 

(b)Changes to Annual Scheduled Maintenance Plan. Each of Provider and Customer (the “Notifying Party”) may notify the other of a need for a change to the Annual Scheduled Maintenance Plan for each Phase on at least five (5) Business Days’ prior written notice. Provider and Customer shall jointly review such requested change or update and agree to use commercially reasonable efforts to schedule such work during times that minimize the negative impact of the change upon the party which received the request for the change (the “Notified Party”). Each of Provider and Customer shall use all reasonable commercial efforts to promptly agree to any such change within the timeframe requested by the Notifying Party.

 

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(c)Ordinary Maintenance. Provider may, from time to time, in its reasonable discretion and upon at least five (5) Business Days’ prior written notice to Customer, perform Maintenance or Replacement Work that is not included on the Annual Scheduled Maintenance Plan for the relevant Phase, if considered appropriate or necessary by Provider or manufacturer’s guidelines or specifications, or if done in accordance with Provider’s standard operating procedures and practices (“Ordinary Maintenance”), unless Customer has objected to the performance of such Ordinary Maintenance on the basis that the performance of the Ordinary Maintenance at the time and date selected by Provider will cause material disruption to the regular operations of Customer and performance of such Ordinary Maintenance at a different time or date would cause substantially less disruption to Customer’s regular operations. Provider shall use commercially reasonable efforts to schedule Ordinary Maintenance during periods that will minimize the amount of disruption to the regular operations of Customer caused by Ordinary Maintenance.

 

(d)Emergencies. Provider may, upon the occurrence of an Emergency, perform Maintenance and Replacement Work for the purpose of responding to the Emergency. In addition, Provider shall promptly notify Customer and all appropriate Governmental Authorities of the nature of the Emergency and Provider’s response thereto.

 

4.7KPI Remedy Not Applicable

 

(a)KPI Remedy Not Applicable. Provider shall not be liable for any breach or noncompliance with this Agreement, and shall not be liable for any breach of any KPI in respect of or resulting from:

 

(i)Provider’s performance of Scheduled Maintenance or Ordinary Maintenance in accordance with the terms of this Agreement;

 

(ii)Emergency Maintenance, except to the extent the Emergency which caused the requirement for Emergency Maintenance was caused or contributed to by Provider or Provider Person; or

 

(iii)any Excused Failure.

 

4.8Phase 1 Planned Services Agreement. Customer and Provider acknowledge that they entered into a planned services agreement with respect to Phase 1 (the “Original PSA”). The Parties shall concurrently, with the execution of this Agreement, enter into a new planned services agreement (the “PSA”) substantially on the terms and conditions set forth in Schedule 13 [Planned Services Agreement]. The PSA shall provide that Provider shall be paid by Customer a not to exceed sum of [***] to bring the In-Scope Systems in respect of Phase 1 into good working order in three installments of [***] payable on October 15. 2020, November 15, 2020 and December 15, 2020, subject to adjustment once the final amount is agreed between the Parties. The PSA shall continue in full force and effect until the commencement of the start of the Project Services Period for Phase 2, after which, the Project Services for In-Scope Systems in respect of Phase 1 shall become part of the Project Services for In-Scope Systems in respect of Phase 2. The Customer shall pay the Provider, pursuant to the PSA, [***] in fourteen equal monthly installments in advance on the first day of each month commencing November 1, 2020; provided that if the Project Services Period for Phase 2 has not commenced by January 1, 2022, the term of the PSA shall continue until the Project Services Period for Phase 2 has commenced and the Provider shall be paid a monthly amount of [***] in advance on the first day of each month commencing on January 1, 2022. The amounts payable under the PSA shall be Index-Linked.] On-Site Work Space for Project Services. Customer will furnish Provider with defined office space throughout the Term of the Agreement in respect of the Project Services. Such space shall be located within the grounds of the Hall of Fame Village campus and shall be adequate to support the day to day activities of Provider staff. Provider will provide all equipment and furnishings.

 

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Article 5
TERM

 

5.1Overall Term of Agreement. The term of this Agreement shall commence on the Effective Date and, subject to earlier termination as provided herein, shall continue until expiry of the Term.

 

Article 6
Payment

 

6.1Payments.

 

(a)Project Work Payments. Customer shall pay Provider for the Project Work in accordance with the requirements of Schedule 10 [Construction Additional General Terms and Conditions], including Attachment 1A [Construction Payments – Phase 2], Attachment 1B [Construction Payments – Phase 3], and Attachment 1C [Progress Payment Provisions] thereto, and the provisions of this Article 6, provided that the amount paid by Customer to Provider for the Project Work for Phase 2 and Phase 3 shall not exceed the GMP - Phase 2 or the GMP - Phase 3, as applicable.

 

(b)Project Services Payments. From and after the commencement of the Project Services Period for a specific Phase, Customer shall, on a monthly basis, pay to Provider, in advance, the Indexed Payments for such Phase as set forth in Part 2 [Project Services Period Payments] to Schedule 3 [Payment and Deductions] hereto.

 

(c)Project Services Payment Dates. The Indexed Payments shall be due and payable monthly in advance on the tenth (10th) day of each month respecting the Interim Project Services Period and the Project Services Period for each Project Facility or Phase, as applicable (the “Payment Dates”).

 

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(d)Method of Payment. All Indexed Payments and other amounts owed hereunder, including without limitation, in respect of the Project Work (collectively, “Payments”) shall be in United States Dollars and shall be made by wire transfer of immediately available funds to Provider’s Payment Bank Account, or to such other account as Provider may specify by written notice to Customer from time to time.

 

(e)Taxes Payable by Customer. Taxes, to the extent payable by Customer pursuant to the provisions of Section 6.2, shall be paid by Customer on the date when such taxes are due or, if invoiced to Customer by Provider, on the next occurring Payment Date. Customer represents that the Project Work is tax exempt and Customer shall provide to Provider the associated sales tax certificate.

 

6.2Taxes. Customer has the responsibility for paying all applicable taxes pertaining to the provision of the Project Services, Project Work and all Indexed Payments and other payments, including but not limited to payment and discharge when due, or reimbursement of Provider on demand for all sales, use, property, employment and other taxes (excluding however, all taxes on or measured by Provider’s net income) (collectively, “Value Added Taxes”), together with any penalties or interest applicable thereto, now or hereafter imposed by any Governmental Authority upon the Payments and other amounts payable to Provider hereunder, whether the same be payable by or assessed to Provider or Customer.

 

6.3Overdue Amounts. Any amount owed by one Party hereunder and not received by the other on the date due shall bear interest, payable on written demand, at the rate of [***] per month (or such lesser rate as is the maximum rate allowable under Applicable Law) from the date due to the date of receipt. Payment of such interest is not the limit of the paying Party’s liability for any breach by it of any provision of this Agreement. The paying Party’s liability shall include, without limitation, payment of late payment, penalty, fee, assessment or other charges incurred by a non-failing Party as a result of the other Party’s failure to make one or more Payments on time. The failing Party shall pay on demand any and all late payment, penalty, fee, assessment and other charges so incurred by the non-failing Party.

 

Article 7
COMPLIANCE WITH LAWS/CHANGES

 

7.1Compliance With Law. Customer shall perform each and every one of its obligations under this Agreement in compliance with Applicable Law. Provider shall perform, each and every one of its obligations under this Agreement in compliance with Applicable Law.

 

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7.2Change in Law/Customer Policies. Upon the occurrence of a Change in Law or a change in Customer Policies that Provider reasonably believes will materially affect the delivery or cost of, including any modification to, the Project Work or the Project Services, Provider shall notify Customer and shall submit a report that: (a) describes the potential effect of the Change in Law or change in Customer Policies; (b) identifies alternatives for complying with, and mitigating the effects of, the Change in Law or change in Customer Policies; (c) estimates the cost of each alternative and the potential impact of each alternative on the Payments; and (d) sets forth Provider’s recommended alternative and its reason for such recommendation. The Parties shall then cooperate to identify the most commercially reasonable alternative to mitigate the Change in Law or change in Customer Policies and to negotiate amendments to this Agreement (including but not limited to, an increase or decrease in any Payment and extensions of any time periods for the performance of Provider’s obligations hereunder) necessary to implement such alternative. If the Parties are unable to agree to the foregoing, the Change in Law or change in Customer Policies shall be treated as a Change Directive and governed by Schedule 7 [Changes].

 

7.3Changes. If during the Term there is any change to the obligations of the Parties hereunder, not contemplated and dealt with elsewhere under this Agreement, the Parties shall follow the procedures outlined in Schedule 7 [Changes].

 

7.4Excused Failure. Provider shall be entitled to a Change in accordance with Schedule 7 [Changes] in the case of the occurrence of an Excused Failure and, in the event that the Parties are unable to agree to a Change Order in respect thereof, such shall be treated as a Change Directive.

 

Article 8
WARRANTY DISCLAIMER

 

8.1No Implied Warranty. Without limiting Provider’s obligations and Customer’s remedies in respect of KPIs, and except for any warranties in respect of the Project Work explicitly provided for in Schedule 10 [Construction Additional General Terms and Conditions], Provider hereby disclaims any and all warranties, whether express or implied, including without limitation, any implied warranty of fitness for any purpose, in respect of the Project Services, the Project Work, the Project Facilities or any other matter addressed in this Agreement.

 

8.2Tax Treatment. The Parties acknowledge and agree that each Party makes no representation or warranty as to how this Agreement and its Annexes, Schedules and any attachments and exhibits hereto or thereto should be or will be treated or classified on the books and records of the other Party for accounting, tax, credit rating agency or regulatory purposes.

 

Article 9
insurance

 

9.1Insurance. Throughout the Term, each Party shall maintain the insurance and comply with the provisions applicable to it in respect of insurance specified in Schedule 4 [Insurance] hereto.

 

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9.2Damage or Destruction. If the Project Facilities or any portion thereof are destroyed (in whole or in part) or damaged by fire or other casualty, such that the Project Services cannot be delivered in accordance with the requirements of this Agreement, Customer shall have the rights specified in this Section 9.2 with respect to the Net Proceeds of any insurance or condemnation award. All Net Proceeds shall be applied to the prompt repair, restoration, modification, improvement or replacement of the Project Facilities by Customer and this Agreement shall continue in effect, or if Customer elects not to repair or rebuild, all Net Proceeds shall belong to Customer and this Agreement shall terminate and such termination shall be treated as if the Agreement was terminated pursuant to Section 12.2(b)(i), provided that any payment shall be reduced by any proceeds received by Provider in cash from Customer or any insurance required to be maintained by Provider hereunder in respect of such event.

 

9.3Net Proceeds. Provider shall have no liability to Customer to the extent that the Net Proceeds are insufficient to repair, restore, modify, improve or replace the Project Facilities.

 

9.4Liability for Property Damage. From the Effective Date, Provider shall have no liability hereunder for any property damage howsoever caused, except to the extent caused by Provider’s breach of this Agreement or the negligence or willful misconduct of Provider or any Provider Person. Customer specifically acknowledges and accepts this provision and allocation of risk.

 

Article 10
CONFIDENTIALITY

 

10.1Confidentiality. All information and data furnished or obtained hereunder by any Party, the “Receiving Party”, respecting the operations or property of another Party, the “Disclosing Party” shall be held strictly confidential and shall not be disclosed to third parties without written authorization of the Disclosing Party (“Confidential Information”). The confidentiality obligations stated herein shall not apply to:

 

(a)information in the public domain other than due to a breach of an obligation of confidentiality of the Receiving Party;

 

(b)information that at the time of disclosure or acquisition was already known to the Receiving Party;

 

(c)information that the Receiving Party is bound to disclose under Applicable Law; and

 

(d)disclosures to the Receiving Party’s auditors, bankers, tax or legal advisors, contractors, subcontractors or consultants who are required to have access to this Agreement and the said information in the provision of their professional advice or services, provided that such auditors, bankers, tax or legal advisors, contractors, subcontractors or consultants are made to be bound by similar confidentiality obligations as those herein.

 

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10.2Disclaimer. No representation, warranty, assurance or guarantee is being made by the Disclosing Party with respect to the accuracy or completeness of the Confidential Information it provides, subject (i) to the representation that such Disclosing Party will not knowingly provide any Confidential Information that is inaccurate or incomplete and (ii) to any specific representation or warranty provided in respect of information provided by one Party to the other Party under this Agreement.

 

10.3Return of Materials. Except with regard to records and information that Provider must provide Customer at the expiration or termination of this Agreement, at the expiration or termination of this Agreement, any Confidential Information which has been furnished in tangible form to the Receiving Party, or otherwise obtained by the Receiving Party in connection with this Agreement, will be promptly returned or destroyed by the Receiving Party, at its sole discretion, accompanied by all copies of such documentation. With respect to Confidential Information that has been stored electronically, the Receiving Party shall provide written assurance to the Disclosing Party that all such material has been rendered inaccessible, deleted, or destroyed by the Receiving Party. The return or destruction of all Confidential Information shall occur within ten (10) Business Days after a written request of Disclosing Party. Notwithstanding the foregoing, the Receiving Party may keep archival copies of the Confidential Information (in whatever form) for regulatory, legal and compliance purposes in accordance with its document retention policies or as otherwise required by Applicable Law or its regulators’ policies.

 

10.4Patent or Copyright Infringement. Nothing in this Agreement is intended to or shall grant any rights under any patent, copyright, trademark, trade secret or other Intellectual Property of Disclosing Party, nor shall this Agreement grant Receiving Party any rights in the Disclosing Party’s Confidential Information, except the limited right to review such Confidential Information in connection with the Project Facilities and the obligations of the parties as set forth in this Agreement. Further, Receiving Party agrees not to reverse engineer, attempt to reverse engineer, decompile or disassemble any computer software programs or devices supplied by the other Party.

 

10.5Term. The obligations under this Article 10 shall continue in full force and effect for a period of two (2) years from the termination of this Agreement, or a longer period if required by Applicable Law, however, nothing set forth herein shall be deemed to obligate any Party with respect to continuation of its other obligations in connection with this Agreement. Notwithstanding the foregoing, the obligations of confidentiality under this Agreement shall remain in effect during the time that any Confidential Information is considered to be secret or confidential or to otherwise qualify for protection under any Law of the United States providing or creating Intellectual Property rights.

 

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10.6Remedies. Each Party agrees that its obligations as a Receiving Party in respect of Confidential Information as provided in this Agreement are necessary and reasonable in order to protect the Disclosing Party and its business, and each Party expressly agrees that monetary damages may be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of its covenants and agreements in respect of Confidential Information set forth in this Agreement. Accordingly, the Receiving Party agrees and acknowledges that: (a) any such violation or threatened violation may well cause irreparable injury to the Disclosing Party; (b) the rights and remedies provided to the Disclosing Party herein in respect of Confidential Information are cumulative such that, in addition to any other remedies that may be available to the Disclosing Party, in law, in equity or otherwise, the Disclosing Party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Receiving Party, regardless of whether monetary damages may be an adequate remedy.

 

10.7Press Releases. Each Party shall be entitled to make public announcements or disclosure, in the press, radio, television or any other medium, of details of the Project and each Party’s involvement therein (including disclosure on each Party’s website), provided that the Party seeking to make such announcement or disclosure shall have first obtained the prior written consent of the other Party, such consent not to be unreasonably withheld.

 

Article 11
Representations

 

11.1Customer Representations. Customer hereby represents, warrants and covenants to Provider that:

 

(a)Customer: (i) is duly organized and existing and in good standing, under the laws of the state of Delaware; (ii) has the power to own its property and to carry on its business as now being conducted and is duly qualified to do business in the state of Delaware and Ohio; and (iii) is in good standing in the states of Delaware and Ohio.

 

(b)Customer has full power and authority to enter into this Agreement, to execute and deliver this Agreement and to incur its obligations provided for herein, all of which have been duly authorized by all proper and necessary corporate action. No additional consent or approval is required as a condition to the validity of this Agreement.

 

(c)This Agreement constitutes the legal, valid and binding obligation of Customer, enforceable against it in accordance with its terms, subject to general principles of equity and the effect of bankruptcy, moratorium and insolvency laws.

 

(d)There are no proceedings pending or, to Customer’s knowledge, threatened before any court or administrative agency which would materially adversely affect the financial condition or results of operation of Customer or its performance of this Agreement.

 

(e)There is no charter, bylaw or provision of any other organizational document of Customer and no provision of any existing mortgage, indenture, contract or agreement binding on Customer or affecting its property that conflicts with or prohibits Customer’s execution, delivery or performance of its obligations under this Agreement except as would not have a material adverse effect on Customer’s ability to perform its obligations hereunder.

 

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(f)Customer shall pay all real estate taxes, special assessments and other governmental charges of any kind which are at any time lawfully assessed or levied against or with respect to the Premises, Project Facilities or Project during the Term of this Agreement.

 

11.2Provider Representations. Provider hereby represents and warrants to Customer that:

 

(a)Provider: (i) is duly organized and existing under the laws of the state of Wisconsin; (ii) has the power to own its property and to carry on its business as now being conducted and is duly qualified to do business in the states of Wisconsin and Ohio; and (iii) is in good standing in the states of Wisconsin and Ohio.

 

(b)Provider has full power and authority to enter into this Agreement, to execute and deliver this Agreement and to incur the obligations provided for herein, all of which have been duly authorized by all proper and necessary corporate action. No additional consent or approval is required as a condition to the validity of this Agreement.

 

(c)This Agreement constitutes the legal, valid and binding obligation of Provider, enforceable against it in accordance with its terms, subject to general principles of equity and the effect of bankruptcy, moratorium and insolvency laws.

 

(d)There are no proceedings pending or, to Provider’s knowledge, threatened before any court or administrative agency which would materially adversely affect Provider’s ability to perform its obligations under this Agreement.

 

(e)There is no charter, bylaw or provision of any other organizational document of Provider and no provision of any existing mortgage, indenture, contract or agreement binding on Provider or affecting its property that would conflict with or in any way prevent the execution, delivery or carrying out of the terms of this Agreement except as would not have a material adverse effect on Provider’s ability to perform its obligations hereunder.

 

Article 12
EVENTS OF DEFAULT; REMEDIES; LIMITATION OF LIABILITY

 

12.1Default by Provider

 

(a)Provider Events of Default. The occurrence of any one of the following events or conditions, unless caused by and except to the extent contributed to by an Excused Failure, shall constitute an event of default by Provider (“Provider Event of Default”) under this Agreement:

 

(i)Provider fails to pay any amount payable to Customer under this Agreement within thirty (30) days following the date such payment was due;

 

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(ii)Provider fails to perform or observe any material covenant, condition or agreement to be performed or observed by Provider hereunder and such failure is not cured within sixty (60) days after Customer provides written notice of such failure, or, if such failure cannot reasonably be cured within such sixty (60) day; provided that if such failure is of a nature that cure cannot with diligence be completed within such sixty (60) -day period, such period shall be extended by such additional time, as is reasonably necessary to diligently effect cure;

 

(iii)A KPI Default Trigger occurs;

 

(iv)Any representation or warranty made by Provider in this Agreement proves to be false or misleading in any material respect when made or reaffirmed by Provider in writing which prejudices the benefit of this Agreement to Customer in any material respect if not cured within ten (10) Business Days;

 

(v)Any insolvency or inability of Provider to pay its debts as they become due or any assignment by Provider for the benefit of its creditors or a voluntary commencement by Provider of any proceeding in bankruptcy, receivership or insolvency or the institution of any proceeding in bankruptcy, receivership or insolvency against Provider or the appointment of a trustee or receiver for Provider, unless such proceedings are discharged within sixty (60) days after their date of filing, provided, however, that none of the events specified in this Section 12.1(a)(iv) shall constitute a Provider Event of Default at any time at which Customer shall be in default of payment of any amount owed by Customer to Provider pursuant to this Agreement; and

 

(vi)Failure to provide and maintain the insurance required to be provided and maintained by Provider in accordance with the terms of this Agreement if not cured within five (5) Business Days of notice of such failure received from Customer.

 

(b)Customer’s Remedies Upon a Provider Event of Default. Upon the occurrence of a Provider Event of Default, and for so long as the Provider Event of Default is continuing, Customer may, at its option, exercise any one or more of the following remedies, but in all events subject to the provisions of Section 4.3(a)(v), Section 4.4 and Section 12.3 hereof:

 

(i)terminate this Agreement by written notice to Provider, provided that Customer pays to Provider the amounts specified in Section 12.1(c) below;

 

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(ii)bring and maintain any action at law or in equity to recover any payment required to be made by Provider to Customer pursuant to the terms of this Agreement;

 

(iii)pursue any other right, remedy or privilege available to Customer under this Agreement, at law or in equity, provided however, that termination of this Agreement may only be pursued pursuant to clause (i) above; or

 

(iv)suspend all payments to Provider.

 

(c)Payments on Default.

 

(i)After termination of this Agreement pursuant to Section 12.1(b)(i) and notwithstanding anything to the contrary contained herein, Customer shall pay to Provider or Provider shall pay to Customer, as the case may be, the following amount:

 

(A)if the termination occurs prior to the commencement of the Project Services Period for all Project Facilities in a Phase, all commercially reasonable and documented Allowable Costs incurred by Provider up to the date of termination in connection with the construction, supply, testing and commissioning of the Project Work for such Phase together with the Provider’s Fee - Phase 2 and/or Provider’s Fee - Phase 3, as applicable, on such Allowable Costs (subject to the GMP - Phase 2 or the GMP - Phase 3, as applicable and except to the extent such costs, expenses and fees have already been compensated in accordance with Section 6.1(a)), less the commercially reasonable and documented costs and expenses incurred by Customer directly resulting from the Provider Event of Default and the exercise of Customer’s rights and remedies in respect thereof, including, without limitation, costs to complete the construction, supply, testing and commissioning of the Project Work for such Phase and reasonable attorney fees; plus

 

(B)If the termination occurs on or after the commencement of the Interim Project Services Period for a Project Facility or the Project Services Period for a Phase, the sum of all past due Payments and any other amounts owed to Provider under this Agreement (except to the extent such costs, expenses and fees have already been compensated in accordance with Section 6.1(b) or Section 6.1(c)), less (i) any Deductions owing from Provider to Customer and (ii) all commercially reasonable and documented costs and expenses incurred by Customer directly resulting from the Provider Event of Default and the exercise of Customer’s rights and remedies in respect thereof, including, without limitation, reasonable attorney fees.

 

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(ii)For the avoidance of doubt, in calculating the amount in accordance with Section 12.1(c)(i) such amount shall be calculated without any duplication or double counting of amounts.

 

(iii)Customer hereby agrees that the amount determined under Section 12.1(c)(i) shall constitute a reasonable estimation of damages suffered by Provider and shall not constitute or be deemed a penalty;

 

12.2Default by Customer. 

 

(a)Customer Events of Default. The occurrence of any one of the following events or conditions shall constitute an event of default by Customer (“Customer Event of Default”) under this Agreement:

 

(i)Customer fails to pay any Payment or any other amount payable to Provider or its assignees under this Agreement within thirty (30) days following the date such payment was due;

 

(ii)Customer fails to perform or observe any other material covenant, condition or agreement to be performed or observed by Customer hereunder and such failure is not cured within sixty (60) days after Provider provides written notice of such failure; provided that if such failure is of a nature that cure cannot with diligence be completed within such sixty (60) -day period, such period shall be extended by such additional time, as is reasonably necessary to diligently effect cure;

 

(iii)Any representation or warranty made by Customer in this Agreement proves to be false or misleading in any material respect when made or reaffirmed by Customer in writing which prejudices the benefit of this Agreement to Provider in any material respect if not cured within ten (10) Business Days;

 

(iv)Any insolvency or inability of Customer to pay its debts as they become due or any assignment by Customer for the benefit of its creditors or a voluntary commencement by Customer of any proceeding in bankruptcy, receivership or insolvency or the institution of any proceeding in bankruptcy, receivership or insolvency against Customer or the appointment of a trustee or receiver for Customer, unless such proceedings are discharged within sixty (60) days after their date of filing; and

 

(v)Failure to provide the insurance required to be provided by Customer in accordance with the terms of this Agreement if not cured within five (5) Business Days of notice of such failure received from Provider.

 

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(b)Provider’s Remedies upon Customer Default. Upon the occurrence of a Customer Event of Default, and for so long as the Customer Event of Default is continuing, Provider may, at its option, exercise any one or more of the following remedies, but in all events subject to Section 12.3 hereof:

 

(i)Terminate this Agreement by written notice to Customer and declare due the following amounts:

 

(A)if the termination occurs prior to the commencement of the Project Services Period for all Project Facilities in a Phase, the sum of: (1) all commercially reasonable and documented Direct Losses incurred by Provider as of the date of termination in connection with the construction, supply, testing and commissioning of the Project Work in a Phase or mobilization in respect of the Interim Project Services Period or Project Services Period (except to the extent such costs have already been compensated in accordance with Section 6.1(a) or Section 6.1(c)); (2) all commercially reasonable and documented subcontractor breakage and demobilization costs; and (3) all commercially reasonable and documented costs, losses and expenses incurred by Provider directly resulting from the Customer Event of Default and the exercise of Provider’s rights and remedies in respect thereof including reasonable attorney fees; and

 

(B)if the termination occurs on or after the commencement of the Interim Project Services Period for one or more Project Facilities or the Project Services Period for a Phase, the sum of: (1) all past due Payments and any other amounts owed under this Agreement; (2) all commercially reasonable and documented subcontractor breakage and demobilization costs; and (3) all commercially reasonable and documented Direct Losses incurred by Provider directly resulting from the Customer Event of Default and the exercise of Provider’s rights and remedies in respect thereof, including reasonable attorney fees.

 

(C)For the avoidance of doubt, in calculating the amount in accordance with this Section 12.2(b)(i) such amount shall be calculated without any duplication or double counting of amounts.

 

(D)Customer hereby agrees that the amount determined under this Section 12.2(b)(i) shall constitute a reasonable estimation of damages suffered by Provider and shall not constitute or be deemed a penalty;

 

(ii)Suspend the provision of Interim Project Services or Project Services hereunder, in which event Provider may also, if it so elects, extend the Term by a number of days equal to the number of days of such suspension; provided, that Provider shall give Customer at least five (5) Business Days’ advance written notice of any such suspension;

 

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(iii)Set-off against any payments or other amounts owing by Provider to Customer under the Naming Rights and Sponsorship Agreement any payments or other amounts owing by Customer to Provider under this Agreement; or

 

(iv)Pursue any other right, remedy or privilege which may be available to Provider pursuant to law or in equity.

 

12.3Limitation of Liability.

 

(a)To the extent allowed under Applicable Law, neither Party, nor any of their respective successors and assignees nor any affiliates, subsidiaries, partners, shareholders, directors, officers, agents, employees or representatives of any of them, shall have any liability with respect to, and each Party hereby waives, releases and agrees not to sue any other Party or its respective successors and assignees or affiliates, subsidiaries, subcontractors, partners, shareholders, directors, officers, agents, employees or representatives for, in any action at law or in equity, whether based on contract, tort, strict liability or otherwise, any special, consequential, indirect, incidental, punitive or exemplary damages or for loss of profits or revenues, loss of use or loss of business opportunity, whether or not a Party shall have been advised of the possibility of the same (“Indirect Losses”). Notwithstanding the foregoing, no payments, nor any other amount or cost or expense reimbursements due or to become due and owing by Customer to Provider or Provider to Customer under Article 4, Article 6, Section 12.1(c)(i), 12.2(b)(i), 12.4, 13.1, Schedule 7 [Changes] or Attachment 1 [Construction Payments] of Schedule 10 [Construction Additional General Terms and Conditions] of this Agreement shall fail by virtue of this Section 12.3 to be recoverable.

 

(b)Notwithstanding any other term of this Agreement (save and except for Section 12.3(c)), to the extent allowed under Applicable Law, the liability of Provider to Customer hereunder whether such liability arises in contract, tort, strict liability or otherwise, or before or after termination of this Agreement, shall not exceed:

 

(i)in the period beginning on the Effective Date and ending when all of the Phase 2 Work has achieved Substantial Completion and solely in respect of Provider, the Limit of Liability – Phase 2 Construction;

 

(ii)in the period beginning on the Commencement of Phase 3 Work and ending when all of the Phase 3 Work has achieved Substantial Completion and solely in respect of Provider, the Limit of Liability – Phase 3 Construction;

 

(iii)from the beginning of the Interim Project Services Period for a Phase until the expiry of the Term or earlier termination of this Agreement and solely in respect of the performance of the Interim Project Services for such Phase, the Interim Limit of Liability – Operating for such Phase; but subject to a cap in any one Contract Year in the amount of the Interim Limit of Liability – Yearly Operating for Phase 2 or Phase 3, as applicable; and,

 

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(iv)from the beginning of the Project Services Period for a Phase until the expiry of the Term or earlier termination of this Agreement and solely in respect of the performance of the Project Services for such Phase the Limit of Liability – Operating for such Phase, but subject to a cap in any one Contract Year in the amount of the Limit of Liability – Operating for Phase 1, Phase 2 or Phase 3, as applicable.

 

(c)The limitations of liability set forth in Section 12.3(b) do not apply to, nor shall the calculation thereof include:

 

(i)any liabilities or obligations to the extent that: (x) the amount thereof is paid from the proceeds of insurance required to be maintained by Provider under this Agreement; (y) an amount is paid by Provider but subsequently recovered by Provider from the proceeds of insurance required to be maintained by Provider under this Agreement; or (z) the same would have been recovered through such insurance if Provider had maintained the coverage required to be maintained by it under this Agreement or if Provider had otherwise complied with its obligations under, and the limitations of, such insurance policies and diligently pursued the relevant insurance claim; or

 

(ii)liabilities that arise out of the fraudulent conduct of Provider.

 

12.4Force Majeure Event; Termination. 

 

(a)If a Party asserting an excuse for nonperformance of any of its obligations under this Agreement as the result of a Force Majeure Event is unable, despite its commercially reasonable efforts, to restore full performance of this Agreement or provide alternative performance within one hundred eighty (180) days from the time the nonperformance first occurs, then such Party shall be entitled to terminate this Agreement upon thirty (30) days’ written notice, in which event, such termination shall be treated as if this Agreement was terminated pursuant to Section 12.2(b)(i), provided that any Payment shall be reduced by any insurance proceeds received by Provider in cash in respect of such Force Majeure Event.

 

Article 13
INDEMNITY

 

13.1General Indemnity. Each Party (the “Indemnifying Party”) expressly agrees to indemnify the other Party, and its affiliates, trustees, agents, officers, employees, directors, members and permitted assigns (collectively, the “Indemnified Party”) against (a) all claims, liability, fines, costs or expenses imposed by any Governmental Authority and (b) loss, damage or injury to the person or property of third parties, in each case caused by (i) the failure on the part of the Indemnifying Party to perform its obligations under this Agreement or (ii) the negligent acts or omissions or willful misconduct on the part of the Indemnifying Party, its subcontractors, affiliates, trustees, agents, officers, employees, directors, members.

 

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13.2Notice. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any claim, event, or fact that may give rise to the Indemnifying Party’s obligation to indemnify under Section 13.1, stating the nature and basis of the claim, event, or fact and the amount, to the extent known.

 

13.3Indemnifying Party’s Right to Dispute Direct Claim by Indemnified Party. The Indemnifying Party shall notify the Indemnified Party within ten (10) Business Days following receipt of the Indemnified Party’s notice pursuant to Section 13.2 to dispute its liability to the Indemnified Party with respect to the claim. The Parties shall negotiate in good faith to resolve this dispute and if such negotiations are unsuccessful, shall implement the dispute resolution process set forth in Schedule 5 [Dispute Resolution Procedure].

 

13.4Indemnifying Party’s Right to Assume Defense of Third Party Claims. If the Indemnifying Party wishes to assume the defense of any claim by a third party or Governmental Authority, it shall do so by notifying the Indemnified Party of such assumption. The Indemnifying Party’s assumption of the defense acknowledges its obligation to indemnify. The Indemnified Party may participate in the defense of the claim and may retain counsel of its own choosing without the Indemnifying Party’s participation provided (a) the Indemnifying Party fails or refuses to defend the claim within ten (10) Business Days following its receipt of the Indemnified Party’s notice pursuant to Section 13.2; or (b) representation of both Parties would, in the opinion of counsel, constitute a conflict of interest. The Indemnifying Party shall not be responsible for the fees and costs of the Indemnified Party’s counsel unless either of these conditions is met or the Indemnifying Party otherwise consents.

 

13.5Compromise and Settlement of Third Party Claims. If an Indemnifying Party assumes the defense of a claim by a third party or a Governmental Authority, it may not compromise or settle such claim without the consent of the Indemnified Party and the Indemnified Party shall have no liability with respect to any compromise or settlement of any such claim effected without its consent. The Indemnifying Party, however, may compromise or settle a claim by a third party or a Governmental Authority without the Indemnified Party’s consent if the following four conditions are met: (a) there is no finding or admission of any violation of Law or violation of the rights of any person and no effect on any other claim that may be made against the Indemnified Party; (b) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; (c) the compromise or settlement includes, as an unconditional term, the release of the Indemnified Party by the claimant or the Governmental Authority in form and substance satisfactory to the Indemnified Party, from all liability in respect of the claim acting reasonably; and (d) the compromise or settlement will not significantly adversely impact the reputation of the Indemnified Party.

 

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13.6Insurance Proceeds. If a Party is obligated to indemnify and hold the other Party harmless under Section 13.1, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s actual loss net of any insurance proceeds received by the Indemnified Party following a reasonable effort by the Indemnified Party to obtain such insurance proceeds.

 

Article 14
ENVIRONMENTAL

 

14.1Provider’s Environmental Obligations. Notwithstanding any other provision of this Agreement to the contrary, Provider shall not be responsible for environmental damage or the existence of any Hazardous Materials on the Premises or in respect of the Project Facilities, Project Work, Interim Project Services or Project Services, save and except that Provider shall be responsible for the identification, clean-up, control, removal, and disposal and all related costs and expenses of environmental damage to the Premises, Project Facilities, Project Work caused by any negligent acts or omissions of Provider resulting from Hazardous Materials brought onto the Premises by Provider, or any of its agents, affiliates, consultants, subcontractors or other parties for whom Provider is in law or contract responsible.

 

14.2Customer’s Environmental Duties. Customer shall be responsible for, or shall address, all environmental damage and the existence of Hazardous Materials in respect of the Project Facilities, the Project Work, Interim Project Services, Interim Project Services, the Project Services or any other matter in connection with this Agreement, including without limitation found in, on or under the Premises or in relation to the Project Facilities, Project Work, Interim Project Services or Project Services (including any matters discovered in annual insurance risk assessments performed by Customer), save for Provider’s obligations set forth in Section 14.1. Customer shall supply Provider with any information in its possession relating to the presence of Hazardous Materials at or underneath the Premises or in the Project Facilities, including copies of the relevant portions of any annual risk assessment describing the presence of Hazardous Materials. If either Customer or Provider becomes aware of or suspects any environmental damage or the presence of Hazardous Materials, at or underneath the Premises or in the Project Facilities or otherwise in connection with the Project Facilities, the Project Work, Interim Project Services, the Project Services or any other matter in connection with this Agreement, it shall promptly notify the other Party and the appropriate Governmental Authority (if required by Applicable Law) and such shall constitute an Excused Failure and Provider shall be entitled to suspend performance any Project Work or the provision of the Interim Project Services or the Project Services to the extent necessary to prevent any further contamination or as necessary to protect the health and safety of any person.

 

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Article 15
intellectual property

 

15.1Intellectual Property. Each Party shall retain ownership of its respective Intellectual Property and the rights therein.

 

15.2Intellectual Property Indemnity. Provider shall indemnify Customer and its employees, directors and officers from and against any all third party claims that the Project Materials infringe, misappropriate or violate a valid United States patent, trademark, copyright or other intellectual property right of such third party and shall pay all amounts awarded by a court of competent jurisdiction or agreed to in settlement by Provider, provided that, Customer shall: (a) promptly provide Provider with written notice of the claim, (b) give Provider sole control over the defense and settlement of the claim, provided that no such settlement will obligate Customer to take any action other than pay money that is paid in full by Provider on behalf of Customer, without the prior written consent of Customer; and (c) reasonably cooperate in Provider’s defense of the claim.

 

15.3Intellectual Property Indemnity Limitation. Provider’s obligations set forth in Section 15.2 shall not apply to the extent any claim arises out of information, materials, or specifications that were provided to Provider by or on behalf of Customer.

 

15.4Naming Rights and Sponsorship Agreement. Without limiting Section 1.1, in the event of a conflict or inconsistency between the terms of this Article 15 and the terms of the Naming Rights and Sponsorship Agreement, the terms of the Naming Rights and Sponsorship Agreement shall prevail.

 

Article 16
Assignment

 

16.1Assignment by Provider. Provider may sell, delegate, transfer or assign this Agreement, Payments, or any other sums due or to become due hereunder, in whole or in part, to any person or entity, provided that other than in respect of an assignment to an affiliate of Johnson Controls, Inc., Customer shall have first provided its prior written consent, not to be unreasonably withheld or delayed.

 

16.2Assignment by Customer. Customer shall not, without the prior written consent of Provider, which consent shall not be unreasonably withheld or delayed, transfer or assign all or any part of its rights and obligations herein to any party other than an affiliate of Customer. Customer shall continue to be liable for all obligations of this Agreement after an assignment, unless Provider, in its sole discretion, expressly releases Customer from its obligations.

 

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Article 17
notices and change of address

 

17.1Notices and Change of Address. All notices to be given by either Party to the other shall be in writing and mailed by certified mail, return receipt requested, or sent by a courier service which renders a receipt upon delivery, or sent by electronic mail, addressed as set forth below, or at such other addresses as either Party may hereinafter designate by a notice to the other. Notices are deemed delivered upon actual receipt and the signed return receipt or courier receipt shall be prime facie proof thereof.

 

If to Customer, for all purposes:

 

HOF Village NEWCO, LLC

2626 Fulton Avenue NW

Canton, OH 44718

Attention: Michael Crawford, CEO

Email: Michael.Crawford@hofvillage.com

 

With copy to:

 

Hunton Andrews Kurth

2200 Pennsylvania Ave., NW

Washington, DC 20037

Attention: J. Steven Patterson, Partner

E-Mail: spatterson@HuntonAK.com

 

If to Provider:

 

Johnson Controls, Inc.

835 Greencrest Drive

Westerville, OH 43081

 

Attention: Bill Schumacher

Email: William.l.schumacher@jci.com

 

-and-

 

Attention: Michael McKenna

E-mail: Michael.K.McKenna@jci.com

 

with a copy to:

 

Building Technologies and Solutions Business Unit

Johnson Controls, Inc.

507 E. Michigan

Milwaukee, Wisconsin 53202


Attention: General Counsel

Fax: 414-524-5520

 

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Article 18
MISCELLANEOUS

 

18.1Time of the Essence; Effect of Waiver; Remedies. Time shall be the essence of this Agreement. No failure on the part of a Party hereto to exercise, and no delay in exercising, any right or remedy shall operate as a waiver thereof or modify the terms of this Agreement. A waiver of any one default shall not be deemed to be a waiver of any other or subsequent default or a waiver of any of a Party’s rights hereunder. Any waiver, permit, consent or approval on the part of a Party of any breach or default under this Agreement, or any Schedule, or any Annex or attachment or exhibit hereto or thereto, or of any provision or condition hereof, must be in writing specifically setting forth the extent of such waiver, consent or approval. All remedies of a Party under this Agreement may, to the extent permitted by law, be exercised by such Party or its assignees concurrently or separately.

 

18.2Governing Law; Venue. This Agreement and the construction and enforceability thereof shall be interpreted under the laws of the State of Ohio determined without regard to its conflict of laws principles. Any action, suit, or proceeding by either of the Parties and which arises from a dispute or claim under this Agreement or is brought to enforce any of this Agreement’s terms or provisions shall be referred to the dispute resolution procedure in accordance with Schedule 5 [Dispute Resolution Procedure]. Proceedings under Schedule 5 [Dispute Resolution Procedure] are barred unless commenced within the earlier of the applicable Ohio statute of limitations or repose for commencing actions and one (1) year from the date on which the injury in respect of which the proceeding is being made occurred.

 

18.3Further Assurances. The Parties hereto shall execute and deliver all documents and take such further actions that may be reasonably necessary to more effectively carry out the intent and purposes of the provisions of this Agreement.

 

18.4Severability. In the event that any provision of this Agreement or any Schedule, Annex or attachment hereto or thereto shall be prohibited by, or invalid or unenforceable under, Applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without affecting the validity or enforceability of the remaining portions of this Agreement, Schedules, Annexes or attachments hereto or thereto.

 

18.5Joint and Several. Where this Agreement has been executed by more than one corporation as Customer, then each covenant and agreement of Customer hereunder shall be deemed, for all purposes, to be a covenant or agreement of the corporations who comprise Customer and each of them, and the provisions hereof shall be read with all grammatical changes thereby rendered necessary and each reference to Customer shall include each corporation severally and all covenants and agreements herein contained on the part of Customer shall be deemed to be joint and several covenants and agreements of each such corporation, respectively.

 

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18.6Counterparts and Electronic Signature. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but collectively shall constitute one and the same instrument. This Agreement may be delivered by the Parties by email, facsimile or other electronic transmission to the other Party. When such signature pages so executed and delivered are attached to this Agreement, this Agreement shall be deemed executed and delivered.

 

18.7Independent Contractor. The relationship of Provider to Customer shall be that of independent contractor, and Provider is not and will not become an employee, partner, principal or agent of Customer or its affiliates or customers for any purpose. Nothing in this Agreement shall be construed as granting to Customer any right to exercise any control over or to direct in any respect the actions of the employees of Provider.

 

18.8Final Agreement; Amendments; Binding Nature. This Agreement may not be amended, modified or terminated, except in a writing signed by the Parties hereto. This Agreement (inclusive of all Schedules, Annexes and attachments hereto and thereto) shall inure to the benefit of and is binding upon the heirs, legatees, personal representatives, successors and permitted assignees of the Parties hereto. This Agreement shall become binding when accepted in writing by Provider.

 

18.9Survival. Section 4.4, Article 6, Article 7, Section 8.1, Article 10, Section 12.3, Article 13, Article 14, Article 15, Section 18.2, Section 18.4, Section 18.7, Section 18.8 and Schedule 5 [Dispute Resolution Procedure] shall survive the termination or earlier expiry of this Agreement.

 

[The remainder of this page is intentionally blank.
The signature page next follows.]

 

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IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto subscribe their names to this instrument on the date first above written.

 

Customer:

HOFV VILLAGE NEWCO, LLC

 

Provider:

JOHNSON CONTROLS, INC.

     
By:   By:
  Name: MICHAEL CRAWFORD     Name:  LISA ROY
  Title: CEO     Title:

 

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Schedule 1
DEFINITIONS

 

In the TAAS Agreement, unless the context otherwise requires, the following terms have the following meanings:

 

1.17/24/365(6)” means 24 hours per day 7 days per week, 365(6) days per year.

 

1.2Allowable Costs” means costs necessarily incurred by Provider in the proper performance of the Project Work and the Transition Fees payable by Customer in respect of the performance of Transition Services and the Interim Project Services. The Allowable Costs Agreement shall include only the items set forth below and is limited to the actual cost of the following.

 

(a)Where, pursuant to the Agreement, any cost is subject to the Customer’s prior approval, Provider shall obtain such approval in writing prior to incurring the cost.

 

(b)Costs shall be at rates not higher than the standard paid at the place of the Project, except with prior approval of Customer.

 

(c)Labor Costs:

 

(i)Wages or salaries of construction workers directly employed by Provider to perform the construction of the Project Work at the site or, with Customer’s prior approval, at off-site workshop.

 

(ii)Wages or salaries of Provider’s supervisory and administrative personnel when stationed at the site and performing Project Work, with Customer’s prior approval.

 

(iii)Wages or salaries of Provider’s supervisory and administrative personnel when performing Project Work and stationed at a location other than the site, but only for that portion of time required for the Project Work, and limited to the personnel and activities listed below:

 

(Provider has identified the personnel and their rates as well as type of activity for Phase 2 in Attachment 1.4. If applicable, any agreed upon percentage of time to be devoted to the Project Work shall be agreed to by the Parties and recorded as a Change Order.)

 

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(iv)Wages or salaries of Provider’s supervisory or administrative personnel engaged at factories, or while traveling, in expediting the production or transportation of materials or equipment required for the Project Work, but only for that portion of their time required for the Project Work.

 

(v)Costs paid or incurred by Provider, as required by law or collective bargaining agreements, for taxes, insurance, contributions, assessments, and benefits and, for personnel not covered by collective bargaining agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Allowable Costs under Sections (c)(i) through (c)(iii).

 

(vi)Labor costs for Provider’s personnel for Phase 2 shall be as per the rate schedule attached as Attachment 1.4 including any future mutually agreed upon changes therein with both parties acting reasonably in lieu of actual costs.

 

(d)Subcontract Costs:

 

(i)Payments made by Provider to Subcontractors in accordance with the requirements of the subcontracts and this Agreement. For clarity, Project Work performed by Customer’s branch level personnel shall be considered Project Work provided by a Subcontractor.

 

(e)Costs of Materials and Equipment Incorporated in the Completed Construction:

 

(i)Costs, including transportation and storage at the site, of materials and equipment incorporated, or to be incorporated, in the completed construction where such costs are related to the Project Work.

 

(ii)Costs of materials described in the preceding Section (i) in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become Customer’s property at the completion of the Project Work or, at Customer’s option, shall be sold by Provider. Any amounts realized from such sales shall be credited to Customer as a deduction from the Allowable Costs.

 

(f)Costs of Other Materials and Equipment, Temporary Facilities and Related Items:

 

(i)Costs of transportation, storage, installation, dismantling, maintenance, and removal of materials, supplies, temporary facilities, machinery equipment and hand tools not customarily owned by construction workers that are provided by Provider at the site and fully consumed in the performance of the Project Work. Costs of materials, supplies, temporary facilities, machinery, equipment, and tools, that are not fully consumed, shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site. Costs for items not fully consumed by Provider shall meet fair market value.

 

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(ii)Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by Provider at the site, and the costs of transportation, installation, dismantling, minor repairs, and removal of such temporary facilities, machinery, equipment, and hand tools. Rates and quantifies of equipment owned by Provider, or a related party as defined in Section (i) below, shall be subject to Customer’s prior approval. The total cost of any such equipment may not exceed the purchase price of any comparable item.

 

(iii)Costs of removal of debris from the site of the Project Work and its proper and legal disposal.

 

(iv)Costs of materials and equipment suitably stored off the site at a mutually acceptable location, subject to Customer’s prior approval.

 

(g)Miscellaneous Costs:

 

(i)Premiums for that portion of Provider’s project specific insurance and bonds (and Provider’s Subcontractor’s insurance and bonds) required by the Agreement that can be directly attributed to this Agreement.

 

(ii)Costs for self-insurance, for either full or partial amounts of the project specific or Subcontractor coverages required by the Agreement, with Customer’s prior approval.

 

(iii)Costs for project specific or Subcontractor insurance through a captive insurer owned or controlled by Provider or Subcontractor, as applicable, with Customer’s prior approval.

 

(iv)Sales, use, or similar taxes, imposed by a governmental authority, that are related to the Project Work and for which Provider is liable.

 

(v)Fees and assessments for the building permit, and for other permits, licenses, and inspections, for which Provider is required by the Agreement to pay related specifically to the Project Work.

 

(vi)Fees of laboratories for tests required by the Agreement; except those related to defective or non-conforming Project Work for which reimbursement is excluded under the provisions of the Agreement, and which do not fall within the scope of Section (h)(iii), subject to prior Customer approval.

 

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(vii)That portion of royalties and license fees attributable to the Project Work which are paid for the use of a particular design, process, or product, required by the Agreement.

 

(viii)(A) The cost of defending suits or claims for infringement of patent rights arising from requirements of the Agreement, payments made in accordance with legal judgments against Provider resulting from such suits or claims, and payments of settlements made with Customer’s consent, unless Provider had reason to believe that the required design, process or product was an infringement of a copyright or a patent, and Provider failed to promptly furnish such information to the lead architect. (B) The costs of legal defenses, judgments, and settlements, shall not be included in the Allowable Costs used to calculate Provider’s Fee - Phase 2 or Provider’s Fee - Phase 3, as applicable, or subject to GMP - Phase 2 or GMP - Phase 3, as applicable.

 

(ix)Deposits lost for causes other than Provider’s negligence or failure to fulfill a specific responsibility in the Agreement.

 

(x)Legal, mediation and arbitration costs, including attorneys’ fees, other than those arising from disputes between Customer and Provider, reasonably incurred by Provider after the execution of this Agreement in the performance of the Project Work, provided that they are not caused by negligent acts or omissions of the Provider and with Customer’s prior approval, which shall not be unreasonably withheld.

 

(xi)Intentionally Deleted.

 

(xii)Intentionally Deleted.

 

(h)Other Costs and Emergencies:

 

(i)Other costs incurred in the performance of the Project Work, with Customer’s prior approval.

 

(ii)Costs incurred in taking action to prevent threatened damage, injury, or loss, in case of an emergency affecting the safety of persons and property, as provided in the Agreement.

 

(iii)Costs of repairing or correcting damages or nonconforming Project Work executed by Provider, Subcontractors, or suppliers, provided that such damaged or nonconforming Project Work was not caused by the negligence of, or failure to fulfill a specific responsibility by, Provider, and only to the extent that the cost of repair or correction is not recovered by Provider from insurance, sureties, Subcontractors, suppliers, or others.

 

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(i)Related Party Transactions:

 

(i)For purposes of this Section (i), the term “related party” shall mean: (1) a parent, subsidiary, affiliate, or other entity having common ownership of, or sharing common management with, Provider; (2) any entity in which any stockholder in, or management employee of, Provider holds an equity interest in excess of ten percent in the aggregate; (3) any entity which has the right to control the business or affairs of Provider; or (4) any person, or any member of the immediate family of any person, who has the right to control the business or affairs of Provider.

 

(ii)If any of the costs to be reimbursed arise from a transaction between Provider and a related party, Provider shall notify Customer of the specific nature of the contemplated transaction, including the identity of the related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If Customer, after such notification, authorizes the proposed transaction in writing, then the cost incurred shall be included as a cost to be reimbursed, and Provider shall procure the Project Work, equipment, goods, or service, from the related party, as a Subcontractor, according to the terms of the Agreement. If Customer fails to authorize the transaction in writing, Provider shall procure the Project Work, equipment, goods, or service from some person or entity other than a related party according to the terms of the Agreement,

 

(j)Transition Costs,

 

provided that Allowable Costs shall not include the items listed below:

 

(A)salaries and other compensation of Provider’s personnel stationed at Provider’s principal office or offices other than the site office, except as specifically provided in Section (c) above, or as otherwise provided in the Agreement;

 

(B)Provider’s Project Executive and Safety Manager;

 

(C)bonuses, profit sharing, incentive compensation, and any other discretionary payments, paid to anyone hired by Provider or paid to any Subcontractor or vendor, unless Customer has provided prior approval;

 

(D)expenses of Provider’s principal office and offices, including the site office.

 

(E)overhead and general expenses, except as may be expressly included in the definition of “Allowable Costs”;

 

(F)the Contractor’s capital expenses, including interest on Provider’s capital employed for the Project Work;

 

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(G)except as provided in Section (h)(iii) above, costs due to the negligence of, or failure to fulfill a specific responsibility of the Agreement by Provider, Subcontractors, and suppliers, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable;

 

(H)any cost not specifically and expressly described in in the definition of “Allowable Costs”; and

 

(I)costs, other than costs included in Change Orders approved by Customer, that would cause the GMP - Phase 2 or the GMP - Phase 3 to be exceeded.

 

1.3Annual Scheduled Maintenance Plan” has the meaning ascribed to it in Section 4.6(a) to the TAAS Agreement.

 

1.4Applicable Law” means all Laws which are applicable to Provider, Customer and/or the Project.

 

1.5Applicable Standards” means Applicable Law and manufacturers’ recommended maintenance and operations activities and maintenance and operations activities that would normally be undertaken in accordance with Good Industry Practices, provided that in the event of a conflict the more stringent standard shall apply.

 

1.6Arbitration Notice” has the meaning ascribed to it in Section 5.4 of Schedule 5 [Dispute Resolution Procedure].

 

1.7Arbitration Notice Response” has the meaning ascribed to it in Section 5.5 of Schedule 5 [Dispute Resolution Procedure].

 

1.8Arbitrator” has the meaning ascribed to it Section 5.8 of Schedule 5 [Dispute Resolution Procedure].

 

1.9As Built Drawings” means as built drawings in respect of the Project Work for Phase 2 or Phase 3, as applicable.

 

1.10Assisting Party” has the meaning ascribed to it in Article 12 of Schedule 4 [Insurance].

 

1.11Base Date” means January 1, 2020.

 

1.12Builder’s Risk Policies” has the meaning ascribed to it in Section 7.1(a) of Schedule 4 [Insurance].

 

1.13Building Occupants” means:

 

(a)Customer’s students, users, guests, customers, staff, employees, contractors and other invited occupants;

 

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(b)Customer’s visitors; and

 

(c)Provider Parties.

 

1.14Business Days” means any day other than a Saturday, Sunday or statutory holiday in the State of Ohio.

 

1.15Change” has the meaning ascribed to it in Section 1.1 of Schedule 7 [Changes].

 

1.16Change Directive” has the meaning ascribed to it in Section 3.1 of Schedule 7 [Changes].

 

1.17Change in Law” means either of the following events or conditions which have, or which may reasonably be expected to have, an effect on the performance by either Party of its obligations under this Agreement: (i) the adoption of a new Law or change in any Law (or the interpretation thereof) from its status on the Effective Date, which adoption or change occurs after the Effective Date or (ii) a suspension, termination, interruption, denial, failure to renew, or imposition of a new condition in connection with, any Law.

 

1.18Change Order” has the meaning ascribed to it in Section 2.1 of Schedule 7 [Changes].

 

1.19Confidential Information” has the meaning ascribed to it in Section 10.1 of the TAAS Agreement.

 

1.20Construction Documents” means the drawings, specifications and documents prepared by or on behalf of Customer, and provided to Provider by or on behalf of Customer for the Project, Phase 2 or Phase 3, as applicable, based on the Design Documents (including the Design-Documentation-Phase 2 and the Design-Documentation-Phase 3).

 

1.21Construction Payments” has the meaning ascribed to it in Section 5.1 [Construction Payments] of Schedule 10 [Construction Additional General Terms and Conditions].

 

1.22Construction Price – Phase 2” means the sum of the Provider’s Fee - Phase 2 and the Allowable Costs for Phase 2.

 

1.23Construction Price – Phase 3” means the sum of the Provider’s Fee - Phase 3 and the Allowable Costs for Phase 3.

 

1.24Contract Month” means a calendar month.

 

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1.25Contract Year” means each year of the Term beginning on January 1st and ending on December 31st except that the first Contract Year shall begin on the Effective Date and end on December 31st immediately following the Effective Date and the last Contract Year will begin on January 1st and end on the last day of the Term.

 

1.26CPI” means the All Urban Consumers Data Index for Cleveland-Akron Ohio published by the United States Department of Labor, Bureau of Labor Statistics or, if no longer published by the United States Department of Labor, Bureau of Labor Statistics an equivalent index published by any successor organization, or if no longer published, an equivalent index agreed to by the Parties which approximates the same.

 

1.27“Critical Spaces” means:

 

(i)within Phase 1 scope including existing stadium: Customer Experience: Locker Rooms, Club Level Area, VIP Lounge and VIP Club; and, (ii) Critical Space - Infrastructure: (1) Event Level: IDF 166, FIRE PUMP 108, WATER ENTRANCE 109, PIPE CHASE Not labeled; (2) Second Level: AV IDF 227; ELECTRICAL 225; AV IDF 208; (3) Third Level: AV IDF 302; (4) Fourth Level: ELECTRICAL 407; (5) Mezzanine Level: MDF; DAS ROOM; and (6) Club Level: IDF 615; IDF 616;

 

(ii)within Phases 2 and 3 Project Facilities:

 

Critical & Key Personnel/Guest spaces typical including VIP and exclusive recreation and refuge areas (Equivalent to VIP, Club Level as identified in existing Phase 1 facilities),

 

Emergency services and associated provider spaces (including any spaces, provided they are designated as such as mutually agreed upon, for use by first responders during a first-responders-active events),

 

Customer Executive Offices & assigned meeting room (“War Room”),

 

Communications infrastructure spaces typical (including IDF, MDF, Electrical, Telecom rooms, DAS rooms, Network Operations Center (NOC) and Security Operations Center (SOC), etc.),

 

Critical infrastructure spaces typical (including Fire Pump, Water Entrance, Pipe Chases, etc.),

 

Guest Egress areas; and,

 

Other mutually agreed upon spaces which are designated as such and documented via addendum to this Agreement.

 

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1.28Customer” has the meaning ascribed to it in the preamble to the TAAS Agreement.

 

1.29Customer Event of Default” has the meaning ascribed to it in Section 12.2(a) of the TAAS Agreement.

 

1.30Customer Permit” means all Permits specific to Customer business requirements and not any that are specific to Provider to perform the Project Work or Project Services.

 

1.31Customer Persons” means Customer’s contractors, subcontractors or any tier, agents, representatives, employees, directors, officers, affiliates and advisors in each case acting directly or indirectly for Customer in respect of this Agreement, or acting in respect of the Project Facility, Project Work, Interim Project Services or Project Services.

 

1.32Customer Policies” means the policies, rules and regulations of the Customer identified in Schedule 8 [Customer Policies], as the same may be amended from time to time.

 

1.33Customer Representative” has the meaning ascribed to it in Section 3.1(d) of the TAAS Agreement.

 

1.34Customer Schedule – Phase 2” is the construction schedule for Phase 2 attached to Schedule 10 [Construction Additional General Terms and Conditions] as Attachment 2A [Customer Schedule – Phase 2], being the Customer’s detailed current construction schedule for Phase 2 of the Project.

 

1.35Customer Schedule – Phase 3” is the construction schedule for Phase 3 attached to Schedule 10 [Construction Additional General Terms and Conditions] as Attachment 2B [Customer Schedule – Phase 3], being the Customer’s detailed current construction schedule for Phase 3 of the Project.

 

1.36Customer Support Services” means those obligations of the Customer identified in Schedule 6 [Customer Support Services].

 

1.37DBE” means disadvantaged business enterprise.

 

1.38Deductions” means the reductions to the Indexed Payments otherwise due to Provider from Customer for Project Services performed if KPIs are not achieved as set out in Attachment 1 of Schedule 2 [Maintenance and Lifecycle].

 

1.39Demand Maintenance” means Maintenance or Replacement Work performed by Provider in response to Service Requests made by the Customer.

 

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1.40Design Documentation – Phase 2” means the documents listed on Attachment 3A [Design Documentation] to Schedule 10 [Construction Additional General Terms and Conditions].

 

1.41Design Documentation – Phase 3” means the documents listed on Attachment 3B [Design Documentation] to Schedule 10 [Construction Additional General Terms and Conditions].

 

1.42Design Documents” means the Design Documentation-Phase 2 and the Design Documentation-Phase 3.

 

1.43Direct Losses” means any and all claims, demands, losses, liabilities, damages, obligations, payments, fines, penalties and reasonable costs and expenses whatsoever excluding Indirect Losses.

 

1.44Disclosing Party” has the meaning ascribed to it in Section 10.1 of the TAAS Agreement.

 

1.45Dispute” means any disagreement between the Customer and the Provider in respect of any matter related to any of the TAAS Agreement, the Project Work, the Project Facilities or the Project Services.

 

1.46Dispute Notice” has the meaning ascribed to it in Section 2.1 of Schedule 5 [Dispute Resolution Procedure].

 

1.47Dispute Resolution Procedure” means the various dispute resolution procedures described in Schedule 5 [Dispute Resolution Procedure].

 

1.48Effective Date” has the meaning ascribed to it in the preamble to this Agreement.

 

1.49Emergency” means an event or act that imminently threatens to harm persons and/or damage, destroy, or cause a material loss of all or any material portion of the Project Facilities or any part of the Premises.

 

1.50Emergency Maintenance” means Maintenance or Replacement Work performed upon the occurrence of an Emergency in accordance with Section 4.6 of the TAAS Agreement.

 

1.51Escalation Factor” means the amount calculated in accordance with Section 4 of Part A of Schedule 3 [Payment and Deductions] for each Phase, as applicable.

 

1.52Escalated Operations and Maintenance Payment – Annual” means the amount calculated in accordance Section 2.1 of Part A of Schedule 3 [Payment and Deductions] for each Phase, as applicable.

 

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1.53Excused Failure” means (x) an event of Provider’s breach or noncompliance with any of the terms or conditions of this Agreement, or (y) any increase in the cost to Provider in performing its obligations in accordance with the terms of this Agreement, in each case, that results directly from:

 

(a)the occurrence of an Emergency, except to the extent caused by Provider or any Provider Person;

 

(b)any breach of an obligation under this Agreement by Customer (provided such breach is not attributable to the occurrence of a Force Majeure Event), or any negligent act or omission by Customer or any Customer Person or any third party under the supervision or control of Customer or any Customer Person (other than Provider or any Provider Person) including:

 

(i)any event relating to the Project Facilities such as construction, alteration, misuse, or repair by or on behalf of the Customer or any Customer Person of any part of portion of the Project Facilities;

 

(ii)any failure to provide Customer Support Services in accordance with the requirements of this Agreement;

 

(iii)failure by the Customer to apply for and execute in its name, or jointly with Provider any Permit; or

 

(iv)failure by the Customer to deliver information that Provider requires to obtain Permits in accordance with this Agreement;

 

(v)performance or non-performance by Customer of any Customer obligation in connection with Section 15.2, except to the extent that such is the responsibility of Provider in accordance with Section 15.1;

 

(vi)any representation or warranty by Customer in this Agreement that proves to be have been untrue; or

 

(vii)any other breach of Customer’s obligations under this Agreement;

 

(c)the occurrence of a Force Majeure Event;

 

(d)the absence of or delay in procuring any Permit, except to the extent that such Permit is a Provider Permit and Provider failed to act diligently and in accordance with Good Industry Practice in pursuing such Permit;

 

(e)in respect of the determination of Deductions, the actions of any third party and, in all other respects, the actions of any third party user of the Project Facilities and any subcontractor of the Customer (excluding actions in the normal course of using the Project Facilities), which materially adversely affects performance of the Project Work or delivery of the Interim Project Services or the Project Services;

 

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(f)the discovery of:

 

(i)subsurface or otherwise concealed physical conditions that differ materially from the reports identified in Schedule 9 [Reliance Documents];

 

(ii)unknown physical conditions of an unusual nature that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided under this Agreement;

 

(iii)any other feature of, in or under the Premises which differs materially from the reports identified in Schedule 9 [Reliance Documents];

 

(iv)human remains, or the existence of burial markers, archaeological sites, or wetlands, not indicated in Schedule 9 – [Reliance Documents]; or

 

(v)any element of any Permit as issued, being different from the version of the permit identified in Schedule 9 [Reliance Documents];

 

(g)any damage or destruction to the Project Facilities, except to the extent caused by Provider or any Provider Party;

 

(h)any limitation on Provider’s access to the Premises; or

 

(i)any defect or deficiency or latent defect or deficiency in the Project Facilities except for any defect or deficiency or latent defect or deficiency in an In-Scope System, but excluding a defect or deficiency or latent defect or deficiency caused by any defect or deficiency or latent defect or deficiency in the design of the Project Facility or, unless installed, tested and commissioned the In-Scope System, the installation, testing or commissioning of the In-Scope System.

 

1.54Excluded O&M Services has the meaning ascribed to it in Schedule 2, Part 2, Article 1, Section 3 of this Agreement.

 

1.55Fast Track Dispute Resolution Procedure” means the fast track dispute resolution procedure described in Article 3 of Schedule 5 [Dispute Resolution Procedure].

 

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1.56Force Majeure Event” shall mean an event, casualty, occurrence, condition or circumstance of any kind or nature reasonably beyond the control of the Party contending the occurrence of the same, having a direct and substantial adverse effect on such Party’s ability or cost to perform any of its obligations under this Agreement, in full or in part. “Force Majeure Event” includes: compliance in good faith with any applicable Change in Law whether or not it proves to be invalid; acts of God; acts or omissions of any Governmental Authority (including any act which renders it commercially impracticable for Provider or Customer to perform all or a material part of its obligations under this Agreement, other than as a consequence of a breach by the Party contending that the event occurred); war; blockade; insurrection; riot; sabotage; terrorist activity; strike; slow-down or labor dispute (even if such difficulties could be resolved by conceding to the demands of a labor group) other than a labor dispute that only affects the Party itself; shortage or unavailability of equipment, parts, materials, natural gas, fuel oil or transportation; or fire, explosion, flood, nuclear emergency, epidemic, pandemic, landslide, earthquake, hurricane, tornado, storm, adverse weather or similar occurrence.

 

1.57GAAP” shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect from time to time.

 

1.58Good Industry Practice” means the exercise of that degree of skill, care, diligence, prudence and foresight that would reasonably and ordinarily be expected from a good and prudent provider of Interim Project Services, Project Services or Project Work in the United States, engaged in the same type of undertaking under the same or similar circumstances.

 

1.59Governmental Authority” means the federal government, or any state or other political subdivision thereof, or any agency, court or body of the federal government, any state or other political subdivision thereof, exercising executive, legislative, judicial, regulatory or administrative functions.

 

1.60GMP - Phase 2” is the amount determined in accordance with Section 5.3 of Article 5 of Schedule 10 [Construction Additional General Terms and Conditions], as the same may be adjusted in accordance with the terms of the TAAS Agreement. In the event that no amount is determined pursuant to Section 5.3 of Article 5 of Schedule 10 [Construction Additional General Terms and Conditions], the provisions pertinent to the GMP-Phase 2, whenever they appear in the TAAS Agreement, shall be individually inoperative and considered deleted from the TAAS Agreement.

 

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1.61GMP - Phase 3” is the amount determined in accordance with Section 5.3 of Article 5 of Schedule 10 [Construction Additional General Terms and Conditions], as the same may be adjusted in accordance with the terms of the TAAS Agreement. In the event that no amount is determined pursuant to Section 5.3 of Article 5 of Schedule 10 [Construction Additional General Terms and Conditions], the provisions pertinent to the GMP-Phase 3, whenever they appear in the TAAS Agreement, shall be individually inoperative and considered deleted from the TAAS Agreement.

 

1.62Handback Requirements” has the meaning ascribed to it in Section 4 of Article 4 of Part 2 of Schedule 2 [Maintenance and Lifecycle].

 

1.63Hazardous Materials” means any material or substance that, whether by its nature or use, is now or hereinafter defined or regulated as hazardous waste, hazardous substance, pollutant or contaminant under Applicable Laws, relating to or addressing public or employee health and safety or protection of the environment, or which is toxic, explosive, corrosive, flammable, radioactive, carcinogenic, mutagenic or otherwise hazardous, or which is or contains petroleum gasoline, diesel, fuel or other petroleum hydrocarbon products or polychlorinated biphenyls.

 

1.64Help Desk” means the service established by the Provider where Customer, Customer Persons, users of the Project Facilities and Provider can submit Service Requests via telephone, web, email and SMS.

 

1.65Indemnified Party” has the meaning ascribed to it in Section 13.1 of the TAAS Agreement.

 

1.66Indemnifying Party” has the meaning ascribed to it in Section 13.1 of the TAAS Agreement.

 

1.67Indexation Date” has the meaning ascribed to it in Section 4 of Part A of Schedule 3 [Payment and Deductions].

 

1.68Index Linked” when an amount is stated to be Index Linked, such amount shall be increased annually at the beginning of each Contract Year in accordance with the following formula:

 

[Amount1] = [Amount0] * Escalation Factor

 

where

 

[Amount1] is the relevant amount stated to be Index Linked after the first Contract Year.

 

[Amount0] is the relevant amount as stated in this TAAS Agreement.

 

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1.69Indexed Payment” means the Service Payment – Monthly for a Contract Month for each Phase and is the sum payable monthly by Customer to Provider in accordance with the provisions of Article 6 of this TAAS Agreement.

 

1.70Indirect Losses” has the meaning ascribed to it in Section 12.3(a) of the TAAS Agreement.

 

1.71In-Scope System” means each of the systems listed in Attachment 1.1 [In-Scope Systems] to this Schedule 1 [Definitions].

 

1.72Intellectual Property” means in connection with a specified subject matter, on a worldwide basis to the extent protected, all registered or unregistered trade-marks, trade names, patents, copyrights, trade secrets, designs, rights of publicity, mask work rights, utility models and other industrial or intangible property rights of a similar nature.

 

1.73Interim Limit of Liability – Operating” means the amount of [***] (Index Linked) for Phase 2 and for Phase 3 the amount of the Transition Fees for Phase 3 as agreed between the Parties (Index Linked)

 

1.74Interim Project Services” means the Services described in Part 1 of Schedule 2 [Maintenance and Lifecycle].

 

1.75Interim Project Services Period” means in respect of a Project Facility, the period beginning on Substantial Completion in respect of the Project Facility and ending the day before the commencement of the Project Services Period.

 

1.76KPI” and “KPIs” has the meaning ascribed to it in Section 4.3(a) of the TAAS Agreement.

 

1.77KPI Deductions List” means the list of KPIs attached as Attachment 1 [KPI Penalty List] to Schedule 2 [Maintenance and Lifecycle].

 

1.78KPI Default Trigger” means (i) the cumulative amount of Deductions assessed during any rolling three (3) -month calendar period equals or exceeds [***] (Indexed Linked) or (ii) the cumulative amount of Deductions assessed during any rolling twelve (12) -month calendar period equals or exceeds [***] (Indexed Linked).

 

1.79KPI Increased Monitoring Trigger” means (i) the cumulative amount of Deductions assessed during any rolling three (3) -month calendar period equals or exceeds [***] (Indexed Linked) or (ii) the cumulative amount of Deductions assessed during any rolling twelve (12) -month calendar period equals or exceeds [***] (Indexed Linked).

 

1.80KPI List” means the list of KPIs attached as Attachment 1 [KPI List] to Schedule 2 [Maintenance and Lifecycle].

 

1.81KPI Remedial Plan” has the meaning ascribed to it in Section 4.3(d) of the TAAS Agreement.

 

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1.82KPI Remedial Plan Trigger” means (i) the cumulative amount of Deductions assessed during any rolling three (3) -month calendar period equals or exceeds [***] (Indexed Linked) or (ii) the cumulative amount of Deductions assessed during any rolling twelve (12) -month calendar period equals or exceeds [***] (Indexed Linked).

 

1.83Lawor Laws” means federal, state and local laws, rules, regulations, ordinances, codes, common law, licenses, permits, decrees, judgments, directives or the equivalent of or by any Governmental Authority.

 

1.84LC Periodical Aggregation” shall be the aggregate of Lifecycle Payments, as stated in the Pro Forma, for the following periods of time: (i) the three (3) years commencing on the third (3rd) Calendar Year following the commencement of the Project Services for Phase 2 [***] (Index Linked), (ii) the three (3) years commencing on the sixth (6th) Calendar Year following the commencement of the Project Services for Phase 2 [***] (Index Linked); and (iii) the four (4) years commencing on the ninth (9th) Calendar Year following the commencement of the Project Services for Phase 2 [***] (Index Linked).

 

1.85Lifecycle Payment” means the annual amounts as set out in Appendix B [Lifecycle Payment Amount] to Schedule 3 [Payment and Deductions] in respect of the replacement, refreshment and/or refurbishment of building systems, equipment and fixtures.

 

1.86Lifecycle Services” has the meaning ascribed to it in Schedule 2, Part 2, Article 2, Section 1(a).

 

1.87Limit of Liability – Phase 2 Construction” means the amount of [***] until the GMP-Phase 2 is established and, thereafter, the GMP-Phase 2.

 

1.88Limit of Liability – Phase 3 Construction” means the amount of [***] until the GMP-Phase 3 is established and, thereafter, the GMP-Phase 3.

 

1.89Limit of Liability – Operating” means the amount of [***] (Index Linked) for Phase 2 and [***] (Index Linked) for Phase 3.

 

1.90MBE” means minority business enterprise.

 

1.91Maintenance or Replacement Work” means work to maintain, replace, lifecycle or refurbish any In-Scope Systems as more particularly described in Schedule 2.

 

1.92“Manual” or “Manuals” means policies, procedures, practices, guidelines, plans, checklists, deliverables, etc. that are developed, implemented and updated by Provider.

 

1.93Monthly Performance Report” has the meaning ascribed to it in Section 4.5(a) of the TAAS Agreement.

 

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1.94Net Proceeds” means any insurance proceeds or condemnation award, paid with respect to the Project Facilities, remaining after payment therefrom of all expenses incurred in the collection thereof and payment of Provider’s costs and losses in connection therewith.

 

1.95Normal Hours of Operations” means 8 a.m. to 5 p.m., Monday to Friday excluding non-Business Days.

 

1.96O&M Reports” has the meaning ascribed to it in Section 7 of Article 3 of Part 2 of Schedule 2 [Maintenance and Lifecycle].

 

1.97O&M Requirements” means the requirements of Provider to perform the [O&M Services] set forth in Schedule 2 [Maintenance and Lifecycle].

 

1.98O&M Services” has the meaning ascribed to it in Section 1.1(a) of Article 1 of Part 2 of Schedule 2 [Maintenance and Lifecycle].

 

1.99Ordinary Maintenance” means Maintenance or Replacement Work performed in accordance with Section 4.6(c) to the TAAS Agreement.

 

1.100Original PSA” has the meaning ascribed to it in Section 4.8 [Phase 1 Planned Services Agreement] of the TAAS Agreement.

 

1.101Party” or “Parties” has the meaning ascribed to it in the preamble to the TAAS Agreement.

 

1.102Payment Bank Account” means the bank account identified by Provider in any invoice submitted to Customer.

 

1.103Payment Dates” has the meaning ascribed to it in Section 6.1(d) of the TAAS Agreement.

 

1.104Payments” has the meaning ascribed to it in Section 6.1(e) of the TAAS Agreement.

 

1.105Permits” means all agreements, approvals, authorization, certificates, consents, licenses, permits, statutory necessary in connection with the Project, including to permit the design, construction, operation and maintenance of the Project Facilities and performance of the Project Work, Interim Project Services and Project Services.

 

1.106Phase” means Phase 1, Phase 2 or Phase 3 and “Phases” means Phase 1, Phase 2 and Phase 3.

 

1.107Phase 1” means the redevelopment, improvement, design and/or construction of the Phase  1 Project Facilities within the HOF Village Complex.

 

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1.108Phase 1 Equipment / Technology” means the In-Scope Systems for Phase 1 identified in subsection (a) of Attachment 1.1 [In-Scope Systems] to this Schedule 1 [Definitions].

 

1.109Phase 1 In-Scope Systems” has the meaning ascribed to it in subsection (a) of Attachment 1.1 [In-Scope Systems] to this Schedule 1 [Definitions].

 

1.110Phase 1 Project Facilities” means the Project Facilities listed in Part 1 of Attachment 1.2 [Project Facilities] to this Schedule 1 [Definitions].

 

1.111Phase 2” means the redevelopment, improvement, design and/or construction of the Phase  2 Project Facilities within the HOF Village Complex.

 

1.112Phase 2 Equipment / Technology” means the In-Scope Systems for Phase 2 identified in subsection (b) of Attachment 1.1 [In-Scope Systems] to this Schedule 1 [Definitions].

 

1.113Phase 2 In-Scope Systems” has the meaning ascribed to it in subsection (b) of Attachment 1.1 [In-Scope Systems] to this Schedule 1 [Definitions].

 

1.114Phase 2 Project Facilities” means the Project Facilities listed in Part 2 of Attachment 1.2 [Project Facilities] to this Schedule 1 [Definitions].

 

1.115Phase 2 Work” means the supply and/or installation of the Phase 2 Equipment/Technology.

 

1.116Phase 3” means the redevelopment, improvement, design and/or construction of the Phase 3 Project Facilities within the HOF Village Complex.

 

1.117Phase 3 Equipment / Technology” means the In-Scope Systems for Phase 3 identified in subsection (c) of Attachment 1.1 [In-Scope Systems] to this Schedule 1 [Definitions].

 

1.118Phase 3 In-Scope Systems” has the meaning ascribed to it subsection (c) of Attachment 1.1 [In-Scope Systems] to this Schedule 1 [Definitions].

 

1.119Phase 3 Project Facilities” means the Project Facilities listed in Part 3 of Attachment 1.2 [Project Facilities] to this Schedule 1 [Definitions].

 

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1.120Phase 3 Work” means the supply and/or installation of the Phase 3 Equipment/Technology.

 

1.121Phase 3 Work Liquidated Damages” means an amount equal to (i) [***] of (ii) the amount by which the value of the Phase 3 Work is less than [***] (Index Linked).

 

1.122PLA” means the Project Labor Agreement to be entered into by the Customer, which agreement shall apply to the Phase 2 Work and the Phase 3 Work but not the Project Services.

 

1.123Planned Maintenance” means Maintenance or Replacement Work performed in accordance with the Annual Scheduled Maintenance Plan as modified from time to time in accordance with this Agreement.

 

1.124Pollution Liability Policy” has the meaning ascribed to it in Section 6.1(e) of Schedule 4 [Insurance].

 

1.125Premises” means the Customer’s land, buildings, improvements, and facilities and includes the Project Facilities.

 

1.126Pro Forma” has the meaning ascribed to it in Part 2, Article 1, Section 1(a).

 

1.127Project” has the meaning ascribed to it in the Recitals to the TAAS Agreement.

 

1.128Project Facility” means each of the Phase 1 Project Facilities, Phase 2 Project Facilities and Phase 3 Project Facilities listed on Attachment 1.2 [Project Facilities] to this Schedule 1 [Definitions].

 

1.129Project Materials” means all drawings, reports, documents, plans, formulae, calculations and other data used in relation to the Project Work but expressly excludes any source codes for any software (but excluding un-compiled source code for Project-specific applications or editable versions of third party software application files, including CAD/BIM files). and any Intellectual Property of third parties, such as CAD software, that is used in the process of the Project Work or Project Services.

 

1.130Project Services” means the services to be provided by Provider to Customer in respect of In-Scope Systems as described in Schedule 2 [Maintenance and Lifecycle] other than the Interim Project Services.

 

1.131Project Services Period” means, in respect of each Phase the period beginning when the Project Work for such Phase has achieved Substantial Completion and ending on expiry of the Term, or earlier termination, of this Agreement.

 

1.132Project Work” means, collectively, the Phase 2 Work and the Phase 3 Work.

 

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1.133Project Work Schedule” has the meaning ascribed to it in Section 6.1 [Project Work Schedule] of Schedule 10 [Construction Additional General Terms and Conditions] and refers to the Phase 2 Project Work Schedule and the Phase 3 Project Work Schedule, as applicable.

 

1.134Provider” has the meaning ascribed to it in the preamble to the TAAS Agreement.

 

1.135Provider Event of Default” has the meaning ascribed to it in Section 12.1(a) of the TAAS Agreement.

 

1.136Provider Intellectual Property Rights” means all Intellectual Property, in or associated with the Project Materials, required for the Project Work or Project Services with the express exception of source codes.

 

1.137Provider Permits” means all permits, if any, required to be obtained by Provider in order to conduct its business in the normal course.

 

1.138Provider Person” means Provider’s subcontractors or any tier, agents, representatives, employees, directors, officers, affiliates and advisors in each case acting directly or indirectly for Customer in respect of this Agreement, or acting in respect of the Project Facility, Project Work, Interim Project Services or Project Services.

 

1.139Provider Phase 3 Work” has the meaning ascribed to it in Section 2.2(d) of the TAAS Agreement.

 

1.140Provider Representative” has the meaning ascribed to it in Section 3.2(a) of the TAAS Agreement.

 

1.141Provider’s Fee - Phase 2” means a percentage fee of [***] of the Allowable Costs for Phase 2 earned as the Allowable Costs for Phase 2 accrue.

 

1.142Provider’s Fee - Phase 3” means a percentage fee of [***] of the Allowable Costs for Phase 3 earned as the Allowable Costs for Phase 3 accrue.

 

1.143Provider Staff” means all Provider human resources and/or subcontractor resources, including employees and any other Persons providing Project Services.

 

1.144PSA” means the Planned Services Agreement as described in Section 4.8 of this Agreement, a summary of which is attached hereto as Schedule 13 [Planned Services Agreement].

 

1.145Receiving Party” has the meaning ascribed to it in Section 10.1 of the TAAS Agreement.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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1.146Rectification Times” means the time to rectify a Service Request set forth in Section 1b of Attachment 1 [Key Performance Indicators & Deductions] of Schedule 2 [Maintenance and Lifecycle] under the heading “KPI Notes and Clarifications”.

 

1.147Referee” has the meaning ascribed to it in Section 3.1 of Schedule 5 [Dispute Resolution Procedure].

 

1.148Referee Agreement” has the meaning ascribed to it in Section 3.1(b) of Schedule 5 [Dispute Resolution Procedure].

 

1.149Referee Notice” has the meaning ascribed to it in Section 3.1 of Schedule 5 [Dispute Resolution Procedure].

 

1.150Remaining Useful Life” means the remaining lifecycle, expressed in years, for which each In-Scope System is expected to remain in good condition and, if applicable, operating order, normal wear and tear (which shall not include the Provider’s failure to maintain in accordance with the requirements of this Agreement) excluded, before requiring complete replacement.

 

1.151Requesting Party” has the meaning ascribed to it in Article 12 of Schedule 4 [Insurance].

 

1.152Respondent” has the meaning ascribed to it in Section 5.5 of Schedule 5 [Dispute Resolution Procedure].

 

1.153Response Times” means the times to respond to a Service Request set forth in Section 1 of Attachment 1 [Key Performance Indicators & Deductions] of Schedule 2 [Maintenance and Lifecycle] under the heading “KPI Notes and Clarifications”.

 

1.154Safety Officer” means the individual appointed by the Customer as its representative in respect of safety matters in respect of the Project.

 

1.155Scheduled Maintenance” means Maintenance or Replacement Work performed in accordance with the Annual Scheduled Maintenance Plan.

 

1.156Service Payment – Annual” means the annual service payment in respect of Phase 1, Phase 2 or Phase 3, as applicable, calculated, in the case of Phase 1, in accordance with the PSA, and, in the case of Phase 2 and Phase 3, in accordance with Section 3.1 of Part A of Schedule 3 [Payment and Deductions].

 

1.157Service Payment – Monthly” means the monthly service payment in respect of Phase 1, Phase 2 or Phase 3, as applicable, calculated, in the case of Phase 1, in accordance with the PSA, and, in the case of Phase 2 and Phase 3, in accordance with Section 1.1 of Article 1 of Schedule 3 [Payment and Deductions].

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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1.158Service Requests” means requests made to the Help Desk or directly to Provider’s on-site employees by an employee of the Customer for the Provider to perform Maintenance or Replacement Work.

 

1.159Settlement Meeting” has the meaning ascribed to it in Section 4.1 of Schedule 5 [Dispute Resolution Procedure].

 

1.160SP Subcontractor” means suppliers, vendors, subcontractors engaged by Provider to perform any part of the Project Services.

 

1.161Special Events” means scheduled events or meetings identified by the Customer.

 

1.162Subcontractor” means any person or entity performing all or a portion of the Project Work, for Provider.

 

1.163Submittal Schedule” has the meaning ascribed to in in Section 7.1 [Submittal Schedule] of Schedule 10 [Construction Additional General Terms and Conditions] and refers to the Submittal Schedule in respect of Phase 2 and the Submittal Schedule in respect of Phase 3, as applicable.

 

1.164Substantial Completion” means the Project Work to be completed at each Project Facility or in respect of each Phase, that such Project Facility or Phase has received a temporary certificate of occupancy or would have received, but for the negligent act or omission of Customer or those for whom it is responsible (including contractors, consultants and subcontractors) has achieved Substantial Completion in accordance with the requirements of this Agreement in respect of such Project Work or Project Facility or Phase.

 

1.165TAAS Agreement” or “Agreement” has the meaning ascribed to it in Section 1.1 of the TAAS Agreement.

 

1.166Term” means the period that begins on the Effective Date and ends December 31, 2034, as extended in accordance with the terms of this Agreement.

 

1.167Transition Fees” means the fees payable by Customer to Provider in respect of Transition Services and the Interim Project Services as set forth in, Attachment 1.5 - Transition Fees.”

 

1.168Transition Services” means the development and transition activities and services undertaken by the Provider for the purpose of enabling the Provider to provide to the Customer the Interim Project Services and the Project Services.

 

1.169Value Added Taxes” has the meaning ascribed thereto in Section 6.2 of the TAAS Agreement.

 

1.170VBE” means veterans business enterprise.

 

1.171Warranty Period” means the period of time identified in the AIA Documents (as defined in Schedule 10) that the Provider is obligated to honor the warranties described in the AIA Document.

 

1.172WBE” means women business enterprise.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Attachment 1.1 – In-Scope Systems

 

(a) Phase 1 In-Scope Systems

 

1.JCI Core Business: As described in the PSA.

 

2.Technology: As described in the PSA

 

The following are the current anticipated In-Scope Systems for Phase 2 and Phase 3:

 

(b) Phase 2 In-Scope Systems

 

1.JCI Core Business: Chillers; chiller controls; boilers; cooling towers; VAV fans & boxes; FCUs, UHs & CUHs; RTUs; EFs; BAS; DOAs, MAU & blowers; heat exchangers; CRAC units & duct split units; access control and CCTV; lighting controls; and fire alarm systems; and

 

2.Technology: Structured cabling systems; converged network infrastructure; audio/visual to the extent procured by Customer in respect of Phase 2; sound masking to the extent procured by Customer in respect of Phase 2; mass notification system; emergency stations; emergency responder system; time clocks to the extent procured by Customer in respect of Phase 2; overhead paging system; and POS systems to the extent procured by Customer for Phase 1 , Active network components such as switches and servers are not in scope but may be added to scope at HOFV discretion,

 

(c) Phase 3 In-Scope Systems

 

1.JCI Core Business: Chillers; chiller controls; boilers; cooling towers; VAV fans & boxes; FCUs, UHs & CUHs; RTUs; EFs; BAS; DOAs, MAU & blowers; heat exchangers; CRAC units & duct split units; access control and CCTV; lighting controls; and fire alarm systems; and

 

2.Technology: Structured cabling systems; converged network infrastructure; audio/visual to the extent procured by Customer in respect of Phase 3; sound masking to the extent procured by Customer in respect of Phase 3; mass notification system; emergency stations; emergency responder system; time clocks to the extent procured by Customer in respect of Phase 3; overhead paging system; and POS systems to the extent procured by Customer for Phase 3; Active network components such as switches and servers are not in scope but may be added to scope at HOFV discretion.

 

The Parties acknowledge and agree that the In-Scope Systems for Phase 2 and Phase 3 will be modified as the Design Documents for each Phase are evolved. The In-Scope Systems for Phase 2 and Phase 3 will be finalized at the same time the GMP-Phase 2 and the GMP-Phase 3 are finalized in accordance with Section 5.3 of Article 5 of Schedule 10 [Construction Additional Terms and Conditions] and the revised In-Scope Systems for Phase 2 and Phase 3 will be incorporated into this Attachment 1.1 by Change Order.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Attachment 1.2 – Project Facilities

 

Part 1 - Phase 1 Project Facilities:

 

ØThe Tom Benson Hall of Fame Stadium

 

ØPlaying Fields - Phase 1 and Related Improvements

 

Part 2 - Phase 2 Project Facilities:

 

ØTapestry by Hilton (on-site hotel)

 

ØConstellation Center For Excellence

 

ØCenter For Performance

 

ØHOFV Retail Promenade

 

ØHOFV Waterpark

 

ØTom Benson Stadium East End Zone

 

ØYouth Fields - Phase II

 

Part 3 - Phase 3 Project Facilities:

 

ØHall of Fame Experience

 

ØLuxury Hotel (including retail)

 

ØMulti-Family Housing

 

ØLegends Landing

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Attachment 1.3 – Responsibility Matrix

 

See Attached

 

Intentionally Deleted

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Attachment 1.4 – Labor Costs for Provider’s Personnel for Phase 2

 

[Redacted]

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Attachment 1.5 - Transition Fees

 

[Redacted]

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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SCHEDULE 2

 

MAINTENANCE AND LIFECYCLE

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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PART 1

 

INTERIM PROJECT SERVICES

 

1.General Requirements:

 

Provider shall, in respect of each of Phase 2 and Phase 3, provide the O&M Services and the other services and obligations described in Part 2 of this Schedule 2 [Maintenance and Lifecycle] for each Project Facility, commencing on Substantial Completion of such Project Facility and continuing until Substantial Completion of all Project Facilities in the applicable Phase. Customer acknowledges that certain Project Services described in Part 2 of Schedule 2 [Maintenance and Lifecycle], such as Lifecycle Services and certain reporting, will not be able to be provided until all Project Facilities in a particular Phase have achieved Substantial Completion and such Lifecycle Services and reporting requirements shall not form part of the Interim Project Services In addition, there shall be no Deductions, including in respect of KPI failures, in respect of Interim Project Services and the provisions of Attachment 1 to this Schedule 2 shall not apply. 

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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PART 2

 

PROJECT SERVICES

 

Article 1 o&m services

 

1.GENERAL REQUIREMENTS:

 

(a)Provider shall provide operation and maintenance services (“O&M Services”) (including warranty, software licensing, and other associated services) for the In-Scope Systems for each of Phase 1, Phase 2 and Phase 3, as more particularly described below). Upon commencement of the Project Services Period for Phase 2, the O&M Services shall include the O&M Services for the In-Scope Systems for Phase 1 and the In-Scope Systems for Phase 2. Upon commencement of the Project Services Period for Phase 3, the O&M Services shall include the O&M Services for the In-Scope Systems for Phase 1, the In-Scope Systems for Phase 2 and the In-Scope Systems for Phase 3. Provider’s Service Payment - Annual for such O&M Services are preliminarily priced pursuant to the pro forma financial model attached hereto as Exhibit 1 to Schedule 3 (“Pro Forma”). The Service Payment - Annual for each of Phase 2 and Phase 3 may vary by up to [***] of the amounts set forth in the Pro Forma (Index Linked), but the aggregate of all Service Payment - Annual for all Phases at the end of the Term shall be equal to the aggregate amount set forth in the Pro Forma (Index Linked). O&M Services will satisfy the Key Performance Indicators (KPIs) identified in Attachment 1.

 

(b)Provider shall provide O&M Services 24/7/365(6) on a scheduled and unscheduled basis as may be required to meet the KPIs and shall:

 

(i)provide safe, efficient, responsive, continuous, reliable, comprehensive and effective plant services, including maintenance activities of all In-Scope Systems, including those associated with buildings, building services, infrastructure, mechanical and electrical systems, water, building and property management, which are based on sound technical and operational requirements and Applicable Standards in accordance with Good Industry Practices, in order to meet the operational needs of Customer;

 

(ii)ensure that the O&M Services do not cause or create any safety or environmental hazards at the Project Facilities or on the Premises or surrounding area;

 

(iii)minimize disruption to Customer’s activities, and at a minimum:

 

A.present the Annual Scheduled Maintenance Plan to Customer one month in advance; and

 

B.provide adequate prior notice to Customer for all Scheduled Maintenance;

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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(iv)where Provider is requesting or relaying third-party shut-down requests, clearly provide a written description and justification for such requests within requested timeframe;

 

(v)maintain a safe, compliant, functional, working, barrier-free environment, applying the necessary available safe working practices, including the use of recognized Provider reviewed risk assessment/management systems to ensure that standards are maintained and that any adverse variance is recognized and corrected; and

 

(vi)develop and keep up-to-date sets of instructions related to O&M Services on In-Scope Systems in order to minimize potential human error.

 

(c)Provider shall exercise supervision, by a duly qualified competent resource, of the O&M Services at all times.

 

(d)Provider shall ensure that all Service Requests for Maintenance or Replacement Work may be completed in accordance to the Response Times and Rectification Times and via the Help Desk.

 

(e)Provider shall provide delivery functions (e.g., movement of equipment) as it relates to O&M Services.

 

(f)Provider shall have sufficient inventory of spare parts in order to meet the Response Times and Rectification Times. Provider shall maintain a record of critical spare parts inventory levels accessible by Customer upon request.

 

(g)Provider shall re-commission equipment on a regular cycle as per the manufacturers’ specifications. Provider shall initially witness the commissioning of In-Scope Systems and subsequently re-commission on a regular cycle as per the manufacturers’ specifications.

 

(h)Provide compliance inspections, reviews and certification to meet all Applicable Standards for In-Scope Systems, as applicable.

 

(i)Provider shall provide all testing and Maintenance or Replacement Work as required by Applicable Law, as appropriate to meet Good Industry Practices and, as required, to ensure compliance with the performance requirements of this Agreement.

 

(j)Provider shall provide a report which will, at minimum, include the following:

 

(i)copies of inspection reports, studies, analysis and tests that demonstrate that the In-Scope Systems, including building systems and equipment provided as part of the Project Work, are operating in accordance with the requirements of the Agreement;

 

(ii)copies of inspection reports, studies, analysis and tests that demonstrate that the In-Scope Systems are operating in accordance with the commissioning program undertaken in connection with the Project Work;

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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(iii)comparison and variation analysis of the results that were measured during commissioning against the results that were measured at the time of the one year performance review, including a recommendation on how any variance will be rectified.

 

2.SPECIFIC REQUIREMENTS:

 

(a)Provider shall provide:

 

(i)full operation, maintenance and equipment repair services (including warranty, software licensing, and other associated services, including firmware upgrades, end of life upgrades and updates to documentation) for all of the In-Scope Systems included in the scope of work for all three Phases of the Project;

 

(ii)use of the full suite of Provider’s digital solutions, inclusive of remote monitoring, help desk, computerized maintenance management system, predictive diagnostics and the Johnson Enterprise Management system;

 

(iii)all equipment and tools required (computers, CMMS, supplies, consumables, uniforms, etc.);

 

(iv)truck-based personnel to supplement on-site staff as needed to perform higher-level service work (chiller, fire alarms, BAS, etc.);

 

(v)full Project reporting] throughout the term; and,

 

(vi)on-site staffing. 8:00AM – 5:00PM Monday through Friday with Demand Maintenance 24 hours per day, 7 days per week.

 

(b)Provider's O&M Services responsibilities include the following, as further described in this Schedule 2 [Maintenance and Lifecycle]:

 

(i)Operations Management Services:

 

(A)Service Requests services

 

(B)Emergency and Incident Management Services

 

(C)Environmental Management Services to the extent they pertain to the Services being delivered by the Provider

 

(ii)In-Scope Systems Maintenance and Renewal Services:

 

(A)Planned Maintenance

 

(B)Demand Maintenance

 

(C)Replacement Work

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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(c)Provider shall also be responsible for additional O&M Services, as required and agreed between the Parties, each acting reasonably, and such additional O&M Services shall be treated as Changes.

 

(d)From the commencement of O&M Services for the In-Scope Systems, Provider shall maintain and renew such In-Scope Systems, including all associated elements and improvements. At a minimum, Provider shall:

 

(i)Adhere to, update and maintain as current the version of the Annual Scheduled Maintenance Plan as approved by Customer;

 

(ii)Properly operate, maintain and renew the In-Scope Systems and each element of the In-Scope Systems to ensure that the In-Scope Systems and all areas of the In-Scope Systems:

 

(A)meet the Applicable Standards;

 

(B)function, operate safely and perform in accordance with the O&M Requirements and the final Design Documents;

 

(C)remain in compliance with Applicable Laws and manuals and guidelines; and

 

(D)meet the Handback Requirements upon expiration of the Term.

 

(e)Ensure that properly trained, licensed, and certified personnel address the range of Planned Maintenance, Demand Maintenance and Replacement Work;

 

(f)Ensure that security, fire suppression and detection, emergency power supply, and mechanical systems are available for operation 7/24/365(6), as well as any other Critical Systems unless specifically authorized by Customer, the local or state authority having jurisdiction, and Safety Officer;

 

(g)Unless otherwise provided in the O&M Requirements or TAAS Agreement, maintain all In-Scope Systems and all applicable equipment in accordance with manufacturer’s requirements and frequencies; and

 

(h)In addition to the foregoing, Provider shall perform the following obligations, set out in Table 1 below, in respect of O&M Services:

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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TABLE 1

 

1.

Staffing, Operations and Maintenance

 

In-Scope Systems will be maintained by a combination of on-site staff, truck-based service providers and remote monitoring and management services via the BMS.

 

(a) Premium 24x7 Coverage of ALL In-Scope Systems within Phase 1, Phase 2 and Phase 3 projects. This means that all preventative maintenance, all repairs, troubleshooting, parts and labor on repairs will be covered for Phases 1, 2 and 3.
(b) Provide HVAC technician(s) on site five (5) days a week. These technicians will have training on all mechanical equipment and be able to access and troubleshoot all HVAC equipment on site. Typically this will be Monday-Friday normal business hours.

2

 

Heating, Ventilation and Air Conditioning Systems (HVAC) Requirements.

 

The HVAC equipment and system includes all In-Scope Systems pumps, air handlers, computer room AC (CRAC) units, server room A/C units, exhaust systems, fan coil units, fresh air and return air fan systems, air compressors, pumps, VAV boxes, VFDs, thermostats, piping, duct work, air and water distribution devices, pressure valves, fire dampers and associated mechanical equipment within the Project Facilities

 

(a) Operate, maintain and renew HVAC equipment and systems to ensure the areas served by the systems comply with applicable standards including ASHRAE Standard 62, ASHRAE Standard 55, and addendums to the standards;
(b) Operate, maintain and renew HVAC equipment and systems to provide maximum efficiency for energy conservation in accordance with the Agreement without compromising the comfort of the Building Occupants.
(c) Operate, maintain and renew HVAC equipment and systems to provide continuous operations with no controllable interruptions that affect Customer activities during Normal Hours of Operation;
(d) Ensure flexibility to allow area set points to be adjusted during the Term as agreed to by Provider and Customer;
(e) Test for bacteria, legionella and like contaminants on an ASHRAE approved frequency
(f) Test and maintain building hydronic chemistry and report the rate of metal erosion and share results with the Customer upon request
(h) Ensure that interior areas maintain an interior temperature of 72 degrees Fahrenheit DB, +/- 3 degrees

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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3.

 

Fire Protection and Life Safety Systems. Fire protection and life safety systems include devices that support the safety of users of the Project Facilities (the “Fire Protection and Life Safety Systems”) excluding sprinklers and their associated devices.. Typical devices include, without limitation, fire alarm system, mass notification system, emergency, fire and smoke dampers, fire dampers, opening protective systems, and all devices as adopted by Governmental Authorities.
(a) Inspect, test, maintain and renew Fire Protection and Life Safety Systems to ensure continuous operation and availability;
(b) Conduct all fire and life safety specific inspections, testing and maintenance of all Fire Protection and Life Safety Systems and components consistent with and at the frequencies required by the Applicable Law and the requirements set forth in NFPA Standards. Provide a written report to the Customer within one (1) month of such test or inspection performed describing the results of the inspections, testing and maintenance (if any) required;
(c) Conduct all fire and life safety specific maintenance and testing of all fire doors and other opening protective devices consistent with and at the frequencies required by Good Industry Practices, Applicable Law and the requirements set forth in NFPA 80;
(d) Submit the results of all inspections and testing of Fire Protection and Life Safety Systems and components, including fire doors and opening protective devices, to the appropriate governmental official, within one (1) month of such test or inspection being performed, and submit records relating to any other aspect of the Fire Protection and Life Safety Systems and components to the appropriate governmental official, upon request by the appropriate governmental official;
(e) Provide immediate verbal and written notification to the appropriate governmental official of any impairment to or interruption of the Fire Protection and Life Safety Systems;
4.

Communication Systems and IT Infrastructure

 

Includes for all In-Scope Systems within Provider’s scope of work, all infrastructure cabling including telecommunications, audio visual, ERRS/First Responder DAS, video mesh wall, and data cabling as well as public address systems. Also, with respect to all structured cabling and all passive related equipment, includes all network infrastructure including Route/Switch Network (LAN), Wireless Network (WLAN) and Voice Network (VoIP/Analog) and all structured cabling. Integrations include Lighting Control Unit, Simplex Fire Alarm Control Unit, SNE Controller for Emergency Generator, Mecho Shade Network.

(a) The communications systems shall be maintained in accordance with all relevant codes and standards.
(b) All electrical communications and data transmission installations to comply with Applicable Standards
(c) Access to all telecommunication rooms/closets shall be strictly controlled to authorized parties only in accordance with Customer direction
(d) All electrical communications and data transmission installations to comply with relevant codes and standards
(e) Shall function as intended.
5. Building Management System (“BMS”),  Building Technologies and Integrations
  Provider shall maintain and renew all components of the BMS. Building Technologies and software integrations to ensure connectivity and control of the mechanical and electrical equipment in the In-Scope Systems. Includes but not limited to all BMS sensors, actuator, elements, meters and controllers. Network infrastructure including Route/Switch Network (LAN), Wireless Network (WLAN) and Voice Network (VoIP/Analog) and all structured cabling. Integrations include Lighting Control Unit, Simplex Fire Alarm Control Unit, SNE Controller for Emergency Generator, Mecho Shade Network.  

6.

 

Access Control

Includes all Software House software and components, CCTV cameras, wiring, controllers, door strikes, door locks, card readers, video management equipment, software and systems.

 

(a) component replacement on the central processing unit, including reprogramming of system due to failure, replacement of circuit boards, and components in the control panels, annunciator panels, transponders, printers, keyboards monitors, and peripheral devices (Motion sensors, access control readers, closed circuit television cameras, monitors, audible/ visible units, door contacts.) associated with system. Replacement of faulty wiring, batteries, and/or ground faults are not covered.
(b) trained technicians will perform inspections and diagnostic tests for the accessible peripheral devices listed and currently connected to the facility life safety system. Tests will be scheduled in advance.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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3.EXCLUDED O&M SERVICES:

 

Provider shall not be responsible for providing any of the services described in Exhibit B [Excluded O&M Services] of this Schedule 2 [Maintenance and Lifecycle] hereto (collectively, the “Excluded O&M Services”), which Excluded O&M Services shall be the sole responsibility of Customer

 

Article 2 LIFECYCLE services

 

1.GENERAL REQUIREMENTS:

 

(a)Provider will provide equipment upgrades and refreshes during the Term relating to the In-Scope Systems (the “Lifecycle Services”). Provider’s preliminary pricing for yearly and aggregate Lifecycle Payments is as set forth in the Pro Forma, with the understanding that for each of the LC Periodical Aggregation: the Parties may, upon mutual agreement, adjust the yearly amount of Lifecycle Payments by up to [***] of the annual amounts stated in the Pro Forma, but only so long as the aggregate amount of actual Lifecycle Payments in any such LC Periodical Aggregation period equals the aggregate Lifecycle Payments stated in the Pro Forma for such LC Periodical Aggregation period.

 

(b)A function of Provider is to ensure the long-term integrity, operational efficiency and ongoing operational integrity and serviceability of the In-Scope Systems through the delivery of the Lifecycle Services in accordance with the Annual Scheduled Maintenance Plan which defines the estimated design life of the In-Scope Systems (being the period of time during which an In-Scope System is expected to work within its specified parameters), specific replacement/refurbishment strategies, key assumptions, annual cost provisions for all types of In-Scope Systems. Provider shall be responsible to maintain and renew the In-Scope Systems and all equipment, components and systems/software described herein as required, such that, at termination or expiry of the Agreement, the In-Scope Systems are fully functional and capable of performing to the standards set out in the original Design Documentation.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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2.SPECIFIC REQUIREMENTS:

 

(a)Lifecycle Services will include but not be limited to:

 

(i)turnkey replacement of In-Scope Systems that are failing or operating incorrectly or inefficiently;

 

(ii)major repairs as required to meet KPIs;

 

(iii)component repair and replacement as required to meet KPIs; and,

 

(iv)all work will be done with off-site staff to ensure smooth operations of O&M Services;

 

(b)Provider responsibilities shall include:

 

(i)provision of Lifecycle Services that minimize disruption to Customer. Customer reserves the right to limit replacement/renewal or other project related activities to outside of the Normal Hours of Operation if they are deemed to be disruptive to Customer operations;

 

(ii)initiation of an emergency procurement procedure (which will be documented in the O&M plan, which shall be presented to Customer its review and approval, acting reasonably) to enable timely replacement response in the event of unexpected or premature elements failure;

 

(iii)competent supervision of the work at all times and of all Provider staff and/or Subcontractors performing Lifecycle Services;

 

(iv)provision of advice, guidance and recommendations on lifecycle replacement and/or refurbishment of out-of-scope additions to the In-Scope Systems; and

 

(v)Reporting and quality monitoring.

 

Article 3 GENERAL

 

1.GENERAL PROVIDER RESPONSIBILITIES:

 

Provider shall operate, maintain, repair, replace and manage the In-Scope Systems on a 7/24/365(6) basis during the Project Services Period for each Phase in accordance with the requirements of this Schedule 2 [Maintenance and Lifecycle]. Provider shall provide all personnel, equipment, tools, materials, vehicles, supervision, and other items and services necessary to perform all services, tasks, and functions as set out herein and maintain a level of operations consistent with the Applicable Standards and Good Industry Practice.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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2.OPERATING AND SERVICE HOURS:

 

Provider shall ensure the In-Scope Systems are fully accessible within the Normal Hours of Operation, except for public holidays officially observed by Customer and Special Events.

 

The Parties acknowledge and agree that the timeframes set out in Attachment 1 of Schedule 2 [Maintenance and Lifecycle] of this Agreement are intended to be applied during Normal Hours of Operation.

 

3.DATA:

 

As part of the O&M Services and Lifecycle Services, Provider will collect facility data and information from In-Scope Systems. Customer will collect data from non-In-Scope Systems. Provider shall have the right to use such data and information on a de-identified basis in connection with its efforts to analyze and understand building efficiency and performance and the development of technology and tools relating thereto. Provider shall not, however, have rights associated with data that is restricted by Applicable Law or other governmental requirements. Furthermore, Provider acknowledges that (i) ownership of such data shall remain with Customer and license to collect and/or use such data does not constitute ownership thereof and (ii) such data collected and analysis thereof shall be made available to Customer in the same frequency and format as collected by Provider.

 

4.RESPONSE PERIOD:

 

Provider shall respond to and cure all Service Requests within the times indicated in Attachment 1 of Schedule 2 [Maintenance and Lifecycle], as applicable.

 

Failure to meet KPIs outlined in Attachment 1 of Schedule 2 [Maintenance and Lifecycle] will result in Deductions to the Monthly Service Payment in respect of each Phase as set forth in this Agreement.

 

5.HUMAN RESOURCES:

 

(a)Provider shall:

 

(i)to the extent applicable, adhere to prevailing wage requirements as defined by the Ohio Labor Code;

 

(ii)provide qualified personnel to perform all of the Project Services during the Project Services Period for each applicable Phase (the job descriptions of Provider’s on-site personnel are attached as Attachment 2 to this Schedule 2); and

 

(iii)ensure that employees have all required professional certifications, current, valid, and on file, before starting work.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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6.MATERIAL, EQUIPMENT, AND SUBCONTRACT PURCHASES:

 

(a)Provider shall:

 

(i)purchase and manage, as applicable, all materials, equipment, and subcontracts to be used in the performance of these Provider Services; and

 

(ii)maintain and manage sufficient materials and equipment to perform the Provider Services.

 

7.O&M MONITORING AND REPORTING:

 

The Provider shall be responsible for periodic operation and maintenance reporting requirements (the “O&M Reports”) as set out in Exhibit A [O&M Plans and O&M Reports] of this Schedule 2 [Maintenance and Lifecycle]. The format of the O&M Reports will be subject to approval by Customer prior to the Substantial Completion of the first Project Facility in a Phase (except in respect of Phase 1, which shall be approved prior to the commencement of the Project Services in respect of Phase 1). The format of such O&M Reports will be amended and changed during the Term as agreed by Provider and Customer, both acting reasonably.

 

8.COMPUTERIZED MAINTENANCE MANAGEMENT SYSTEM:

 

Provider shall utilize a CMMS and provide Customer with the ability to read, download and print data from the CMMS.  The CMMS shall be web-enabled. The CMMS shall, at a minimum, be used to track Planned Maintenance and Demand Maintenance, Service Requests made to the Help Desk, Maintenance or Replacement Work, and time to complete Maintenance or Replacement Work, Service Request Response Time and Rectification Time, vendor work, asset and equipment histories, cost data, space utilization and other relevant documentation required to actively manage the In-Scope System’s environment as required to meet the Applicable Standards.  All data and documentation contained in the CMMS shall be the property of Customer.

 

Article 4 OPERATIONS MANAGEMENT SERVICES

 

1.SERVICE ORDER REQUESTS SERVICES:

 

(a)Provider shall:

 

(i)provide sufficient resources to address all Service Requests from the time they are received at the Help Desk through their completion in a manner that is consistent with the O&M Requirements and this Agreement;

 

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(ii)respond to all Service Requests through deployment of the correct level of support to resolve all matters in accordance with the O&M Requirements and this TAAS Agreement;

 

(iii)establish with the Customer a system for receiving and processing Service Requests submitted by the Help Desk via telephone, web, e-mail and SMS and provide CMMS training to Customer representatives for purpose of work order entry. For clarity, Customer will be able to initiate Service Requests via web, mobile device, telephone or CMMS, or in person;

 

(iv)comply with all relevant notification and reporting procedures set out in this Agreement;

 

(v)ensure that all data relating to a Provider initiated Service Request is promptly reported and transferred to the Help Desk. Such data shall include the following, at a minimum, to the extent that such information is provided:

 

(A)Requestor’s name;

 

(B)Date and time of request;

 

(C)Phone number;

 

(D)Email address;

 

(E)Location of requested service;

 

(F)Asset type; and

 

(G)Asset number.

 

(vi)All notes, correspondence, and any other documentation provided by the requestor, if any, in each case, unaltered.

 

2.EMERGENCY AND INCIDENT MANAGEMENT SERVICES:

 

(a)At the request of Customer, Provider shall assign one (1) representative (acceptable to Customer, acting reasonably) to Customer’s emergency operations committee. In addition, Provider shall:

 

(i)adhere to, update, and maintain as current, an emergency management and disaster recovery plan as approved by Customer;

 

(ii)continue to provide critical O&M Services during an emergency (as defined in Provider’s emergency plan, which shall be consistent with and otherwise in compliance with Customer’s emergency plans). All In-Scope Systems related to such critical O&M Services shall be identified within the CMMS;

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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(iii)ensure forty-eight (48) hour fuel supply at a minimum for auxiliary backup systems;

 

(iv)work with the Safety Officer to develop and conduct fire and life safety training programs for all Provider and Customer personnel at the In-Scope Systems. Provider shall provide training to new personnel within their first sixty (60) days at the In-Scope Systems, and shall provide refresher sessions to all personnel every twelve (12) months;

 

(v)assist Customer and the Safety Officer in the Customer’s performance of the annual fire drill and evacuation procedures at the In-Scope Systems and document attendance, in coordination with Customer and the Safety Officer;

 

(vi)participate in Customer disaster back-up and recovery program development and effectively address assigned action steps in the event disaster recovery plans are activated; and

 

(vii)establish emergency response escalation programs in accordance with Customer guidelines to ensure the appropriate Customer personnel are notified of emergency conditions,

 

(collectively, the “Emergency and Incident Management Services”).

 

3.O&M INTERFACE OBLIGATIONS

 

(a)Coordination with Excluded O&M Services

 

Customer and Provider acknowledge that there is interface between the O&M Services and the Excluded O&M Services. Provider and Customer shall coordinate the O&M Services and the Excluded O&M Services so that Provider can perform the O&M Services and Customer can perform, or cause to be performed, the Excluded O&M Services without material obstruction or limitation to either Party. Provider and Customer shall each adhere to, and Provider shall update, and maintain as current, the Co-Ordination Plan as approved by Customer.

 

(b)Customer Activities and the Coordination of O&M Services

 

Provider shall coordinate the O&M Services to support and avoid disruption to the Customer activities. Customer shall coordinate the Excluded O&M Services to support and avoid disruption to Provider’s performance of the O&M Services.

 

(c)Key Management

 

Provider shall ensure that keys and key cards assigned to Provider by Customer are not lost or misplaced and are not used by unauthorized persons. Provider shall immediately report lost or duplicate keys to Customer. Only Provider or Provider Persons engaged in the performance of O&M Services, or personnel authorized for entrance by Customer, shall be granted access to locked areas. Keys lock(s), locksets, and key cards provided to Provider are property of Customer. Lost keys or keycards assigned to Provider or Provider Persons shall be replaced at Provider’s expense. In order to maintain security, locksets requiring repining and the replacement of lock(s) or locksets as a result of lost or stolen keys assigned to Provider will be provided by Customer at Provider’s expense.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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(d)Replacement Work Notifications to Customer

 

In addition to complying with the notice and reporting obligations in the TAAS Agreement and O&M Requirements, Provider shall, seven (7) day prior to the commencement of any Replacement Work, notify the Customer Representative of such Replacement Work so as to minimize disruptions to Customer’s activities. In the event Customer requests a reschedule of Replacement Work, Provider shall make all reasonable efforts to accommodate such request.

 

(e)O&M Services During Special Events

 

(i)Provider shall not perform Lifecycle Work or Planned Maintenance during Special Events. Customer shall provide Provider due notice of the Special Event seven (7) days in advance of its occurrence.

 

(ii)Provider shall only test fire alarms with advanced notification and approval by Customer and not at night, on weekends, holidays, or during any Special Event.

 

(iii)Notwithstanding the restrictions set forth in this Agreement, Provider shall continuously provide all other O&M Services during Special Events;

 

Any additional Provider staff requested by the Customer during Special Events shall be treated as a Change.

 

4.HANDBACK REQUIREMENTS AND PROCEDURES

 

(a)Handback Requirements

 

Provider shall:

 

(i)draft and submit to Customer for approval within 24 months following the date of this Agreement, the Handback Renewal Work Plan (which may include analysis from a third party, to be paid for equally by the Parties) for joint development by Customer and Provider;

 

(ii)upon receipt of approval by Customer, implement and comply with the Handback Renewal Work Plan;

 

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ALL RIGHTS RESERVED.

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(iii)perform the work identified in the Annual Handback Evaluation Reports in accordance with the Handback Renewal Work Plan and the TAAS Agreement (the “Handback Renewal Work”) and ensure that:

 

(A)the In-Scope Systems and elements within the In-Scope Systems are in compliance with Applicable Law and performing in accordance with the O&M Requirements at the expiry of the Term; and

 

(B)the In-Scope Systems and elements within the In-Scope Systems are in the condition required to achieve the Remaining Useful Life requirements set out in (c)(ii) below;

 

(iv)transfer Replacement Parts to Customer. Customer and Provider shall create an inventory of Replacement Parts onsite at the commencement of the Project Services Period for each of Phase 2 and Phase 3 and shall transfer Replacement Parts in similar quality and quantity to Customer at the end of the Term, Critical, high-frequency (daily or weekly) materials/items will be stocked to a 3 month run rate at the end of the Term. In addition, Provider shall transfer to Customer all other Replacement Parts it has in stock at the end of the Term.

 

(b)Inspections Prior to Handback

 

Prior to the expiry of the Term, Provider shall perform three (3) inspections of the In-Scope Systems as follows (the “Handback Inspections”):

 

(i)The first Handback Inspection shall take place no earlier than forty (40) calendar months and be completed no later than thirty seven (37) calendar months prior to the expiry of the Term;

 

(ii)The second Handback Inspection shall take place no earlier than sixteen (16) calendar months and be completed no later than thirteen (13) calendar months prior to the expiry of the Term; and

 

(iii)The final Handback Inspection shall take place no earlier than four (4) calendar months and be completed no later than two (2) calendar months prior to the expiry of the Term.

 

Customer may participate in all aspects of the Handback Inspections. Provider shall provide Customer with reasonable notice of all inspection activities and tests to allow Customer or any Customer Person to fully participate in the Handback Inspections.

 

(c)In-Scope Systems Condition and Remaining Useful Life

 

On the expiry of the Term:

 

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ALL RIGHTS RESERVED.

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(i)The In-Scope Systems and each of the elements comprising the In-Scope Systems shall be in a condition consistent with such In-Scope Systems and elements:

 

(A)having been designed and constructed in accordance with the applicable industry minimum design life requirements; and

 

(B)having been operated, maintained and renewed in accordance with this Agreement.

 

(ii)The elements identified in Attachment 3 shall have, at a minimum, the Remaining Useful Life identified in Attachment 3.

 

(d)Turnover or Replacement Parts

 

At the expiry of the Term, Provider shall transfer to Customer all spare fixed components and replacement parts (the “Replacement Parts”), at no cost to Customer, that Provider has in its inventory and possession for purposes of the maintenance of the In-Scope Systems. For further certainty, at the expiry of the Term, Provider shall have an inventory of Replacement Parts which is reasonably in accordance with the amount and type of inventory maintained throughout the Term. Provider shall ensure that all Replacement Parts are stored at the In-Scope Systems at locations previously approved by Customer as of the expiry of the Term. At the expiry of the Term, Provider shall release and transfer to Customer all its right, title and interest in any and all such Replacement Parts, free and clear of all liens and encumbrances. Customer reserves the right not to accept obsolete, damaged or any other Replacement Parts from Provider’s inventory the use of which Customer deems not to be in the best interest of Customer.

 

(e)Handback Deliverables

 

(i)Asset Inventory Report. Provider shall provide an up-to-date final Asset Inventory Report, including all records of warranties, as well as an inventory of spare parts and other infrastructure to be handed over to the Customer no later than one (1) calendar month prior to the expiry of the Term.

 

(ii)Project Records. Provider shall provide to Customer the most current and up-to-date versions of all project records prepared in connection with the Project Work, including In-Scope Systems, systems manuals, and all instruction manuals, warranties and documents related to the In-Scope Systems.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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(iii)Electronic Documents. Electronic files containing schedule information shall be compatible with the latest version of the scheduling software utilized by Customer at the expiry of the Term, be submitted in native format, and be editable by Customer. Electronic files containing computer aided design (“CAD”) drawing information shall be compatible with the latest version of CAD software used by Customer at the expiry of the Term, be submitted in native format, and be editable by Customer. Other electronic files shall be compatible with the most recent version of the corresponding software suite utilized by Customer at the expiry of the Term and be editable. Upon request by Customer, selected documents may be submitted in PDF format or another format as otherwise agreed by Customer and Provider. All electronic files shall be made available to Customer on a secure web-based portal managed by Customer or via other means specified by Customer and agreed to by Provider.

 

Article 5 ANNUAL REVIEW

 

1.GENERAL REQUIREMENTS:

 

The Parties acknowledge and agree that the scope of the Project Services identified in this Schedule 2 has been developed before all Project Facilities for Phase 2 and Phase 3 have been fully designed or constructed. The Parties agreed to meet on an annual basis, commencing on the first anniversary of the commencement of the Project Services for Phase 2, to review the scope of the Project Services for the purpose of ensuring the intent of the Parties set out in this Agreement is being met with respect to the services intended to be provided and the services required in respect of the Project Facilities. If the Parties determine and agree acting reasonably that amendments are required to this Agreement the Parties shall work in good faith to negotiate fair and equitable amendments to this Agreement provided that the risk profile and the compensation payable in respect of the services to be provided following each review are consistent with the risk profile and compensation payable for the services provided by the Provider prior to each such review.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Exhibit A: O&M Plans and O&M Reports

 

Provider shall be responsible for preparing each of the plans referenced in Table 1 – Work Plans below (collectively, the “Work Plans”) for submission to Customer for review and approval, acting reasonably.

 

Unless otherwise stated:

 

(a)Provider and Customer will agree upon a schedule for review and approval at delivery of the initial Work Plans (which delivery shall not be less than 90 days in advance of the commencement of the Project Services Period for Phase 2 or Phase 3, as applicable), ensuring the Project Work Plans are approved by Customer upon Substantial Completion of each Phase (excluding Phase 1, which such Plans shall be approved as soon as reasonably possible following the execution of this Agreement); and

 

(b)from time to time, Provider shall have the right to update the Project Work Plans, as required to reflect material changes, subject to prior notification to and approval by Customer in respect of such updates.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Table 1 – Work Plans

 

Plan # Name of Plan Description

Frequency

 

  Collaboration Plan

Provider shall prepare and submit to the Customer for review and approval, acting reasonably, a Collaboration Plan (“CP”) which review will include review by the Customer’s operations team and collaboration between the Parties including defining response/feedback time and deliverables for Customer’s review. The CP shall, at a minimum:

 

(a)   For the period prior to Substantial Completion of each Project Facility, include a plan and framework for meetings with Customer, other interested stakeholders, and Provider to collaborate on Project issues, access issues, coordination issues, and any other issues arising prior to Substantial Completion of the In-Scope Systems during the Project Work period, with a view towards streamlining the satisfactory resolution of issues arising during the Project Work.

 

(b)   For the Project Services Period, include a plan and framework for Provider to participate with the Customer to discuss O&M Services performance issues, custodial interface services, general communication with stakeholders, and any other matters arising in connection with the O&M Services at the In-Scope Systems, with a view toward fostering cooperation and better services by all during the Project Services Period;

 

(c)    Establish communication protocols to communicate key environmental commitments; compliance, noncompliance, and/or violations of environmental commitments; and any permitting issues and/or approvals to Customer;

 

(d)    Describe Provider’s approach to performance of O&M Interface Obligations described herein;

 

(e)    Describe the procedures for communication of Project information between Provider and Customer;

 

(f)    Describe the frequency of coordination meetings with Customer to discuss Project progress and issues;

 

(g)    Provide the names and contact information for the Provider Representative; and

 

(h)    Describe how Provider will respond to unexpected requests for information and communicate changes to Provider personnel, including the notification of affected stakeholders before and after changes are made to the O&M Requirements and/or the TAAS Agreement.

 

(a) Established 6 months following execution of this Agreement in respect of Phase 2 and months following commencement of the Project Work for Phase 3.

 

(b) – (h) Initially, 3 months prior to Substantial Completion of each Project Facility or in the case of Phase 1 as soon as reasonably possible following execution of this Agreement.

  O&M Plan

Provider shall prepare and submit an Operations and Management Plan (“OMP”) that describes Provider’s approach to the O&M Services throughout the Project Service Period for each Phase. The OMP shall, at a minimum, include the following:

 

(a)   A SMP following the general requirements of the Staffing Management Plan), and as applicable only to the performance of the O&M Services;

 

(b)   A reporting structure following the general requirements of this Agreement, and as applicable only to the O&M Services;

 

(c)   An O&M Quality Management Plan (“O&M QMP”) following the general requirements of this Agreement.

 

Initially, 4 months prior to Substantial Completion of each Project Facility or in the case of Phase 1 as soon as reasonably possible following execution of this Agreement.

 

 

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Plan # Name of Plan Description

Frequency

 

  O&M Quality Management Plan

The O&M QMP shall, at a minimum:

 

(a)   Clearly outline the roles, rights, and responsibilities of Customer and Provider, as applicable, and consistent with the requirements of the O&M Services, Excluded O&M Services and O&M Interface Obligations;

 

(b)   Include procedures to report the status and closeout of all nonconforming work and instances of noncompliance throughout the Term. The QMP shall also include procedures for investigations and surveys undertaken by Provider as part of the monitoring process;

 

(c)   Encompass all O&M Services performed by Provider, and Provider Persons; and

 

(d)   Assign an overall Quality Manager that shall supervise and coordinate all the quality management activities and procedures set forth in the O&M QMP.

 

Initially, 4 months prior to Substantial Completion of each Project Facility or in the case of Phase 1 as soon as reasonably possible following execution of this Agreement.
  Master Maintenance Plan and Renewal Work Plan

Provider shall prepare and submit a Master Maintenance Plan and a Renewal Work Plan in accordance with the general requirements set forth directly below.

 

 
   

Master Maintenance Plan

 

Provider shall submit an initial Master Maintenance Plan for Customer’s review and approval, acting reasonably, thirty (30) days prior to Substantial Completion for the In-Scope Systems. Thereafter, Provider shall adhere to, update, and maintain as current, on an annual basis, the Master Maintenance Plan (“MMP”), as approved by Customer, acting reasonably. Provider shall submit an updated Master Maintenance Plan annually for Customer’s review and approval, acting reasonably, and Customer shall have a minimum of 60 days to review and approve, acting reasonably, such updated Master Maintenance Plan, acting reasonably. Provider shall ensure that the initial MMP sets forth O&M practices that are designed to reduce life cycle costs and to reflect Good Industry Practices. The initial MMP and all subsequent updates to the MMP must, at a minimum:

 

(a)   Account for the current condition of the In-Scope Systems;

 

(b)   Describe how Provider will perform Planned Maintenance and Demand Maintenance and provide metrics to track maintenance performance;

 

(c)    Describe how the In-Scope Systems will be assessed to determine both Planned Maintenance and Renewal Work; and

 

(d)   Include service plans, schedules, and replacement activities for the In-Scope Systems and associated equipment. Provider will schedule O&M Services so as to minimize negative impacts on the Customer activities. O&M Services that, due to the nature of work, would have a negative impact on the Customer activities shall be scheduled outside of Normal Hours of Operation.

Initially, thirty (30) days prior to Substantial Completion (subject to annual updates) of each Project Facility or in the case of Phase 1 as soon as reasonably possible following execution of this Agreement.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Plan # Name of Plan Description

Frequency

 

   

Renewal Work Plan

 

●     Provider shall adhere to, update, and maintain as current, the Renewal Work Plan (“RWP”) as approved by Customer, acting reasonably. The RWP shall address all elements of the In-Scope Systems to be renewed in accordance with the TAAS Agreement, including all In-Scope Systems, including the Building Management System (“BMS”).

 

●     Provider shall submit the initial Renewal Work Plan for the Customer’s review and approval, acting reasonably, thirty (30) days prior to Substantial Completion for the In-Scope Systems of each Phase or in the case of Phase 1 as soon as reasonably possible following execution of this Agreement. Thereafter, Provider shall submit an updated Renewal Work Plan annually for the Customer’s review and approval, acting reasonably, concurrently with the Annual O&M Report, except that Customer shall have a minimum of sixty (60) days to review and provide comments, acting reasonably, the updated Renewal Work Plans.

 

●    The initial Renewal Work Plan and all subsequent updates to the plan must, at a minimum:

 

(a)          Be aligned with the obligations described in this Schedule 2;

 

(b)          Identify and describe Provider’s management approach with respect to integrating and aligning the Planned Maintenance, Demand Maintenance, the Lifecycle Work and the Handback Renewal Work;

 

(c)          Describe the approach for the In-Scope Systems condition inspection consistent with this Agreement;

 

(d)          Describe the process for asset preservation, work identification and prioritization;

 

(e)          Detail the maintenance and repair requirements to remedy any identified defects;

 

(f)          Identify any areas of risk and describe appropriate mitigation measures;

 

(g)          Identify aspects of Lifecycle Work that may require environmental review, and that does not qualify as Demand Maintenance work, and a minimum of twelve (12) months prior to commencement of such Lifecycle Work;

 

(h)         Describe the approach for completing the annual Renewal Work Schedule including the resources, materials and equipment required;

 

(i)          Provide a detailed description of the Lifecycle Work completed during the previous twelve (12) month period and a detailed description of the Lifecycle Work planned for the upcoming twelve (12) month period;

 

(j)           Provide for the development, submission and review of the Renewal Work Schedule in accordance with the TAAS Agreement; and

 

(k)          The Renewal Work Schedule shall provide a rolling, forward-looking, five (5) -year schedule that describes the timing and nature of all planned Lifecycle Work.

Initially, thirty (30) days prior to Substantial Completion (subject to annual updates) of each Phase or in the case of Phase 1 as soon as reasonably possible following execution of this Agreement.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Plan # Name of Plan Description

Frequency

 

  Help Desk

Provider shall prepare and submit a Help Desk Plan that addresses, at a minimum:

 

(a)  The interface between Provider and Customer in association with the Help Desk, incorporating customer interface procedures and protocols, work reception, scheduling, and dispatch.

 

(b)   Provider responsibilities as detailed in this Agreement), as well as operational processes related to planned and unplanned inspections and maintenance, In-Scope Systems modifications, and renewal work;

 

(c)   Provider establishment and maintenance of an effective building management program and how it will interface with Customer to ensure the highest level of attention is given to In-Scope System’s maintenance requirements. This plan shall outline communication protocols and contacts between Provider and Customer;

 

(d)   Provider management and response to Service Requests, managing the scheduling of maintenance and repair work by field personnel, and completion of reporting and data entry relating to Service Requests. The plan shall include a description of Provider’s processes for tracking start, stop and pause times, materials expended, equipment and asset data, technician comments, root cause analysis and failure data, and customer satisfaction information. The plan shall include processes for self-monitoring of performance by Provider and plans for meeting Provider’s reporting obligations during the Project Services Period.

Initially, 4 months prior to Substantial Completion in respect of each Phase or in the case of Phase 1 as soon as reasonable possibly following execution of this Agreement.
  Transition and Training Plan

(a)    Provider shall provide a comprehensive Transition and Training Plan to Customer for the Customer’s review and approval, acting reasonably, at least twelve (12) months prior to the end of the Term.

 

(b)    Additionally, at least six (6) months prior to the end of the Term, Provider shall provide a comprehensive O&M training session for Customer’s staff. The training session shall include a review of certain In-Scope Systems records as well as all O&M manuals, and other plans and procedures. The complete curriculum for this training session shall be contained in the Transition and Training Plan.

At least:

(a) twelve (12) months prior to the end of the Term

 

(b) six (6) months prior to the end of the Term

 

Provider shall be responsible for preparing and submitting to Customer each of the following the O&M Reports:

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Table 2 – O&M Reports

Report #

Name of Report Description Frequency
  Monthly O&M Report

Provider shall submit to Customer a report containing information on Provider’s performance of the O&M Services during the previous calendar month including identifying all Service Requests for such calendar month (a “Monthly O&M Report”).] The Monthly O&M Report shall contain:

 

(a)  The number of Service Requests logged by number, title and description;

 

(b)  The number of Service Requests open by number, title and description;

 

(c)   The number of Service Requests closed by number, title and description;

 

(d)   A list of all Service Requests, along with an explanation of the issue, discovery time and date, and actual Response and Rectification Periods versus required Response Times and Rectifications Times;

 

(e)   A description of the Planned Maintenance and Lifecycle Work performed, including dates and tasks performed;

 

(f)    A comparison of actual performance metrics for Demand Maintenance and Planned Maintenance to the target performance metrics identified in the Annual Scheduled Maintenance Plan;

 

(g)   A description of the Planned Maintenance and Lifecycle Work that is scheduled or forecasted to be performed in the upcoming six (6) week period, with scheduled or forecasted dates for each activity;

 

(h)   Any environmental issues that occurred within the In-Scope Systems or on the Premises and the resolution;

 

(i)   Any safety issues that occurred and the resolution;

 

(j)   The Quality Inspection Report in accordance with this Schedule 2, Exhibit A, (Table 2) (Quality Inspection Report); and

 

(k)  Any other information specifically required for Customer to measure and assess Provider’s performance of the O&M Services relative to the applicable Standards, Response Periods and Rectification Periods set forth in the TAAS Agreement.

 

By the final day of each month, starting the month after the Project Services commence, for the prior month.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Report #

Name of Report Description Frequency
  Annual O&M Report

Provider shall submit to the Customer a report containing information on Provider’s performance of the O&M Services during the previous calendar year (an “Annual O&M Report”). The Annual O&M Report shall contain:

 

(a)   A summary of the data provided in each Monthly O&M Report for that year;

 

(b)   The Annual Scheduled Maintenance Plan for the next year;

 

(c)   Provider’s Renewal Work Plan for the next five (5) years;

 

(d)   An Asset Inventory Report in accordance with this Schedule 1, Exhibit A, Table 2 (Asset Inventory Report); and

 

(e)   A Quality Inspection Report that details Provider’s conformance with its O&M QMP

By the end of the first month of every calendar year during the Term for the prior calendar year.

Subject to amendment of the Annual Scheduled Maintenance Plan and the Renewal Work Plan by written notice to Customer from Provider.

  Every 5 Years during Term As part of the Annual O&M Report, Provider shall submit to Customer a report that contains an inventory of systems, components, spare parts and other items or elements required for the ongoing operation and maintenance of the In-Scope Systems (an “Asset Inventory Report”). By the end of the first month of every calendar year during the Term for the prior month.
  Annual Handback Evaluation Report

Beginning five (5) years prior to the end of the Term, Provider shall prepare and deliver to Customer a report of the condition of the In-Scope Systems (the “Annual Handback Evaluation Report”). The Annual Handback Evaluation Report shall:

 

(a)   identify the condition of the In-Scope Systems, and each element of the In-Scope Systems in relation to the Handback Requirements;

 

(b)  identify the Handback Renewal Work required to ensure that the In-Scope Systems meets the Handback Requirements;

 

(c)   include Provider’s detailed written plan for completing the Handback Renewal Work, including the calendar year in which each aspect of the Handback Renewal Work would be required;

 

(d)  specify Provider’s estimate of the Renewal Amount; and

 

(e)   detail how Provider’s estimated Renewal Amount was calculated.

 

After the preparation of the first Annual Handback Evaluation Report and prior to the commencement of each year remaining in the Term, Provider, upon consultation with Customer, shall update the Handback Renewal Work Plan, as needed, to reflect changes in conditions of the In-Scope Systems or evaluation methodology determined following an inspection of the In-Scope Systems by Customer or its designee. Each subsequent Handback Renewal Work Plan prepared after the first plan shall be subject to the approval of Customer. As well as including the results from the last Annual Handback Evaluation Report, the Handback Renewal Work Plan shall include the estimated cost and schedule of implementation of the remaining Handback Renewal Work.

Within forty-five (45) days following each Handback Inspection.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 2 [Maintenance and Lifecycle]

EXECUTION VERSION

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Exhibit B: Excluded O&M Services

 

The following services constitute the Excluded O&M Services: Operation, maintenance, renewal and replacement of any and all interior Furniture, Fixtures and Equipment (“FF&E”)

 

a)Operation, maintenance, renewal and replacement of the IT systems and devices (other than those expressly specified elsewhere in this Agreement);

 

b)Operation, maintenance, renewal and replacement of kitchen equipment inclusive of grease traps and provision of dining food preparation services;

 

c)Operation, maintenance, renewal and replacement of building fabric and flooring including roofs, facades, hardscaping and roads, windows, interior and exterior architecture, walls and wall coverings, ceilings and ceiling coverings. For clarity, this does not extend to the coverings for AV/IT items;

 

d)Collection of exterior waste (except for Project Waste) in all areas within the Premises, and transport and disposal of such waste;

 

e)Collection of interior and exterior hazardous waste (except for Project Waste) in all areas within the Premises, and transport and disposal of such waste;

 

f)Exterior grounds services, meaning:

 

i.Operation, maintenance, renewal and replacement of the irrigation system, weeding, mowing and grass cutting;

 

ii.Maintaining and cleaning and, as applicable, maintenance, renewal and replacement of, roadside ditches, circulation roadways (including curbs and gutters along circulation roadways) and parking lots, and keeping them free of debris (except for Project Waste), litter, and excess vegetation;

 

iii.Maintaining and cleaning and, as applicable, maintenance, renewal and replacement of, sidewalks, roadways and parking structures including snow removal; and

 

iv.Operation, maintenance, renewal and replacement of, all exterior lighting not attached to the Project Facility.

 

g)Security services, meaning:

 

i.Physical security (Provider remains responsible for maintenance of the security systems excluding x-ray or similar weapons screening systems );

 

ii.Managing and maintaining, and as applicable, operation, renewal and replacement of, a hard master key inventory and a key control program for all controlled areas and containers; and

 

iii.Operation, maintenance, renewal and replacement of key card creation and assignment.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 2 [Maintenance and Lifecycle]

EXECUTION VERSION

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h)Occupant support services, meaning arranging for seating, desks or exterior movable furniture and equipment;

 

i)Parking Garage services meaning:

 

i.Maintaining and cleaning of Parking Garage Areas;

 

ii.Painting;

 

iii.Elevators; and

 

iv.Trash removal;

 

j)Parking services management;

 

k)Routing all Service Requests that are not initiated by Provider, and that come in to the HELP DESK and are not in scope, to the appropriate entity.

 

l)Cleaning Exterior Furniture or spaces;

 

m)Custodial Services for interior (excluding those required due to Provider’s work), meaning:

 

i.Trash collection;

 

ii.Cleaning entry glass;

 

iii.Sweeping, dusting and mopping;

 

iv.Sanitizing, restroom care, and locker room care; and

 

v.Specialized cleaning of labs, evidence, and drying rooms;

 

n)Shipping, receiving and distribution functions for mail and parcels;

 

o)Maintenance and renewal of all exterior utilities connected to the In-Scope Systems, including:

 

i.Domestic Water, Sewer, and Storm Water up to the building;

 

ii.Natural Gas up to and including the meter;

 

iii.Customer Electrical up to and including transformer and meter; and

 

iv.Water;

 

p)Integrated Pest Control Management Services (Customer shall be responsible for providing Integrated Pest Control Management Services for the interior and exterior of the In-Scope Systems); and

 

q)Maintain and renew power distribution units from the main switch to the outlet or connections to an occupant device, to ensure continuous operations.

 

Equipment required for the Excluded O&M Services that is not included in the FF&E will be supplied by Customer.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 2 [Maintenance and Lifecycle]

EXECUTION VERSION

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ATTACHMENT 1

 

KEY PERFORMANCE INDICATORS & DEDUCTIONS

 

KPI Deductions:

 

In each instance where a percentage applies to the Deduction calculation, (i) in the case of the emergency and urgent categories; or, (ii) in the case of the routine category, a minimum of ten (10) Service Requests in the respective category(ies), must have occurred within the applicable time frame measured. In the event ten (10) Service Requests in the respective category(ies) do not occur within the applicable time the Deduction amount applied will be [***] for all KPI failures except for KPI failures in System Disruptions in Critical Spaces in which event the Deduction will be [***]. Deductions will be capped so as not to exceed the monthly Project Services Payment.

 

The amount of the Deduction in respect of each KPI failure will be as follows: for KPIs measured with a percentage performance metric as set out in the KPI Schedule below, the Deduction for each percentage point or part thereof below the minimum acceptable performance (MAP) level of the KPI will be as shown in the table below, subject to an Index Linked adjustment during the Term, and will be applied according to the frequency of measurement specified in the KPI Schedule:

 

[Redacted]

 

For the General Premises Inspection KPI, the Deduction for each percentage point above the lower limit in the KPI will be as shown in the table below, subject to an Index Linked adjustment, and will be applied according to the frequency of measurement specified in the KPI Schedule:

 

[Redacted]

 

For KPIs measured by inspection criteria, as set out in KPI Schedule, where the average score of the relevant criterion is less than two (2), the Deduction will be as shown in the table below, subject to an Index Linked adjustment, for each inspection and will be applied according to the frequency of measurement specified in KPI Schedule:

 

[Redacted]

 

For unapproved disruptions in Critical Spaces, as set out in the KPI Schedule, the Deduction will be as shown in the table below, subject to an Index Linked adjustment, for each unapproved disruption over the lower limit, and will be applied according to the frequency of measurement specified in the KPI Schedule:

 

[Redacted]

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 2 [Maintenance and Lifecycle]

EXECUTION VERSION

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KPIs:

 

Cat. Report Type Frequency How Reported? Metric
1.

Service Request Responsiveness – Customer Service

 

Activities:

·   Emergency

·   Urgent

·   Routine

Monthly (Total number of Service Requests that are within acceptable response timeframes divided by total Service Requests) x 100 (to arrive at a percentage)

Emergency / Urgent:

Minimum Acceptable Performance (MAP) - [***]

 

Routine:

MAP – [***]

2.

Service Request Completion by Type – Customer Service

 

Activities:

·   Emergency

·   Urgent

·   Routine

Monthly (Total number of Service Requests completed/rectified on time divided by the total number of Service Requests) x 100

MAP:

 

Emergency / Urgent: [***]

 

Routine: [***]

3. Preventative Maintenance (PM) Service Requests – Customer Service Activities

Quarterly

(Total number of preventative maintenance Service Requests scheduled for the current month divided by the total number of open PM Service Requests) x 100

 

MAP – [***]
4. Contract Requirement Documents Quarterly

Review of documentation and plan submittals to validate delivery of contractually required reports, documentation and data. Satisfaction measured based on document content, accuracy, completeness and timeliness of delivery.

 

MAP: [***]
5.

General Premises Inspection

Random, but not more than 6 times annually

Inspection by Customer of all aspects of this Agreement using an agreed upon inspection checklist to review compliance with standards and contractual obligations.

 

Use 5-point "Likert" scales where 1 is bad service and 5 is outstanding service (approximately 20-25 inspection criteria).

 

MAP – inspection criteria = [***]
6. System Disruption Quarterly Metric is unapproved disruptions per quarter.

MAP – [***] times per quarter.

 

7. Employee Certification Annually

Employees shall be properly trained and certified for assigned roles and responsibilities.

 

MAP – [***]
8. Space Temperature Management Quarterly

Conditions Space temperature will be reviewed based on Space Temperature Trending Report as generated by the BAS Monitoring System. A Baseline will be set in Year 1 of Operations and this metric will be applied to the Baseline in all subsequent years.

 

MAP – [***]
9. Refresh & Renew Program Annually

Annual completion of projected refresh & renew projects. Satisfaction based upon percentage of projects planned compared to projects completed.

 

Formula % = Projected refresh & renew projects / completed refresh & renew projects.

MAP – [***]

 

 

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 2 [Maintenance and Lifecycle]

EXECUTION VERSION

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KPI Notes and Clarifications:

 

1.For KPIs 1, 2 and 3:

 

a.Definitions:

 

i.Response – Dispatch of work order. Acknowledgement documented for Emergency and Urgent Calls.

 

ii.Rectification – Completion of the Service Requests noted in the Computerized Maintenance Management System within the required time. Temporary repairs are acceptable, provided a full completion plan and deadline is established and documented

 

iii.Emergency – Immediate response required; situations requiring immediate action to return the Project Facilities to normal operations, stopping accelerated deterioration, or correcting a safety hazard that imminently threatens life or serious injury.

 

iv.Urgent – necessary but not yet critical; situations that will imminently become critical, if not corrected expeditiously, includes intermittent interruptions and/or potential safety hazards.

 

v.Routine – Conditions requiring appropriate attention to preclude deterioration or potential downtime and associated damage or higher costs if deferred further. Items representing a practical improvement to existing conditions. These items are not required for the most basic functions of the Project Facilities, but will improve the overall usability, accessibility, and/or reduce long term maintenance.

 

b.Rectification Timeframe

 

Severity Emergency Urgent Routine
Priority 1 2 3

 

Normal Hours of Operation (8 am – 5pm; M-F, excepting non-Business Days)

Response Time [***] [***] [***]
Completion Time [***] [***] [***]
Outside Normal Hours of Operation
Response Time [***] [***] [***]
Completion Time [***] [***] [***]

 

2.For KPI 5 – Inspection form to be jointly developed by Customer and Provider.

 

3.For KPI 6 – “System Disruption” means Emergency or Urgent Service Requests was not rectified in the Rectification Timeframe and Customer was required to modify some aspect of its operations to accommodate the disruption.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 2 [Maintenance and Lifecycle]

EXECUTION VERSION

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ATTACHMENT 2
KEY PERSONNEL

 

Operations & Maintenance Team

Personnel Title/Name

 

Responsibilities Qualifications Availability
O&M Manager

●   Represent Johnson Controls as Service Provider, ensure the delivery of all services in accordance with the Project Agreement 

●   Manage the Johnson Controls staff promoting professionalism, responsiveness and customer service  

●   Support the Operating Period Representative in preparing reports as required by the Project Agreement including Operating Period Plans and Performance Monitoring Reports 

●   Represent Service Provider as member of the Operating Period Joint Committee and participate in monthly meetings 

●   Oversee and manage Service Provider in the areas of Human Resource Management, Training and skills Development, Contingency Planning, Communication Protocols, and Supporting Health Services Accreditation 

●   Has the full authority to represent Johnson Controls

●   An experienced manager with 10 years of experience managing a team of maintenance and operations staff in a critical environment. 

●   This experience will include a minimum of eight years of experience in a healthcare environment. 

●   Has a minimum of 5 years of experience working on DBFM/P3 type Contracts in a similar role. 

Assigned full time to the Project from Financial and prior to commencement of O&M Work.
Maintenance Technician

●   Responsible to deliver Preventative maintenance and demand maintenance. 

●   The technician’s primary responsibility will be to attend to demand maintenance within the response and rectification times. 

●   Duties include the following: Responds to routine and on-demand service requests and performs preventative and Corrective maintenance on mechanical and electrical equipment and systems. 

●   Assists in implementing preventative maintenance program. 

●   Ensures that deficiencies are identified, recorded and escalated, and that related documentations are maintained. 

●   Provides troubleshooting and repairs to Fire Protection Systems, and BMS. 

●   Responds to elevator entrapment and follows approved training to release occupants.

●   Has a minimum of three to five years of experience in a healthcare environment with preference given to experience working in a performance based contract such as a DBFM or outsourcing contract. 

●   Strong ability to adhere and to properly apply policies and procedures to facility operations and maintenance. 

●   Proven experience in troubleshooting and repair of mechanical and electrical building systems and equipment. 

●   Strong building mechanical and electrical equipment and system troubleshooting and repair/rectification skills. 

●   Knowledge of fire, life, safety and building codes and standards and ability to research, interpret and apply related codes and standards. 

●   Possesses a commitment to environmental, health and safety. Consistently performs work in a safe manner. 

●   Strong client-focused commitment and sense of urgency. 

●   Effective communication skills for information sharing, feedback, and clarification. 

 
Controls Technician

●   Day-to-day monitoring, reporting and system review of the PA System, Electronic door hardware, Access control (Station public and retail spaces), Structured Cabling, Project Co IT Infrastructure. 

●   Perform the scheduled maintenance activities on the systems. 

●   Respond and resolve user reported problems. 

●   Coordinate resources to perform repairs, including warranty repair work. 

●   Participate in all design changes or enchantments. 

●   Provide monthly system up-time reports. 

●   Assist in planning and forecasting yearly hardware and software for budgeting.

●   Proficiency in working on and around different types of computer and electronic equipment is required. 

●   Computer keyboarding skills and proficiency in Microsoft Suite Applications (Word, Excel, Access, and PowerPoint), Internet Explorer and E-mail is required. 

●   Possesses excellent troubleshooting and problem solving skills. 

●   Knowledge of MS Windows Server Environment. 

●   Knowledge of MS Windows Workstation Environment. 

●   Experience working in an enterprise information and technology environment. 

●   General network and IP expertise. 

●   Access Control and PA system expertise.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 2 [Maintenance and Lifecycle]

EXECUTION VERSION

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ATTACHMENT 3
HANDBACK USEFUL LIFE REQUIREMENTS

 

Provider will perform the Project Services in such a manner that upon the expiration of the Term, the minimum Remaining Useful Life of the components shall be at least:

 

Project Component

Minimum Remaining
Useful Life

Security/Audio Visual [***]
High Voltage Distribution and Secondary Distribution Equipment [***]
Emergency Electrical System [***]
Emergency Power Source [***]
Plumbing System [***]
Fire Suppression System [***]
Communication Systems, IT [***]
Heating Ventilation and Air Conditioning System [***]
Conveying Equipment [***]
Building Management System [***]

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 2 [Maintenance and Lifecycle]

EXECUTION VERSION

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Schedule 3

 

PAYMENT AND DEDUCTIONS

 

[Redacted]

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 3 [Payment and Deductions]

EXECUTION VERSION

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Appendix A

 

Pro-Forma

 

[Redacted]

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS - Schedule 3 [Payment and Deductions]

EXECUTION VERSION

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SCHEDULE 4

 

INSURANCE

 

Article 1
Provider Insurance Required During the Term

 

1.1Provider shall secure and keep in force, or cause to be secured and kept in force, from the Effective Date until the expiry or termination of the TAAS Agreement the following insurance coverages:

 

(a)Commercial General Liability shall include coverage for Products & Completed Operations, Advertising Injury, Personal Injury, 3rd party bodily injury and property damage. CGL Limits shall be a $5,000,000 per occurrence, $5,000,000 annual aggregate and $5,000,000 annual products completed operations, including a per location aggregate endorsement per policy period shared by all insureds and additional insureds. Policy shall be written on an occurrence form and include a primary non-contributory endorsement in favor of Customer. Coverage shall also include a per-location aggregate endorsement.

 

(i)Customer shall be listed as an additional insured for both ongoing operations, and completed operations, through the issuance of an additional insured policy endorsement to Provider’s commercial general liability policy in with respect of any liability arising out of the negligent acts or omissions of Provider.

 

(b)Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with liability limits of $1,000,000 per occurrence and in the aggregate per policy period shared by all insureds and additional insureds. Policy shall also include coverage for underinsured and uninsured motorists, as well as remove the fellow employee exclusion.

 

(i)Customer shall be listed as an additional insured through the issuance of an additional insured policy endorsement to Provider’s automobile liability policy in respect of any liability arising out of the negligent acts or omissions of Provider.

 

(c)Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of the TAAS Agreement.

 

(d)Employer's liability or “stop gap” insurance of $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance, including a primary non-contributory endorsement in favor of Customer.

 

(e)Umbrella/Excess policies, with coverage limits of $10,000,000, shall be procured and maintained by Provider, and schedule the General Liability, Employer’s Liability, Commercial Auto as underlying. Policy shall not include any exclusions or endorsements that reduce or eliminated underlying coverages. Umbrella/Excess shall include a primary non-contributory endorsement in favor of Customer.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 4 [Insurance]

EXECUTION VERSION

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(f)Crime Insurance, including Employee Theft, Theft of Client Property, Funds Transfer Fraud, Forgery, Alteration, Computer Fraud, and Social Engineering, written on a loss discovery basis, with a limit of $1,000,000

 

(g)Professional Liability and Cybersecurity Insurance, providing coverage for third party damages as a result of all services by Provider included in this Agreement, or future amendments of this Agreement, including technology services, construction management services, fire and security products and services performed by Provider or by others acting under their direction including any such services that are performed electronically utilizing the internet or a network of two or more computers (including but not limited to network extortion, data/record recovery and restoration, and phishing), with a limit of $2,000,000.  The Professional Liability policy shall also include coverage for contingent bodily injury and property damage.

 

(h)Property coverage for owned or rented equipment, and owned or rented property located in, on or about the premises and in your care, custody and control.

 

(i)If Provider engages a sub-contractor, that sub-contractor should be subject to the same terms as Provider as provided in this Schedule 4.

 

Article 2
RESERVED

 

Article 3
Provider Construction Period Insurance

 

3.1Intentionally Omitted

 

Article 4
Provider Subcontractor Insurance for Project Work, Project Services and Interim Project Services

 

4.1Provider shall require that each of its subcontractors secure, prior to commencement of any Project Work, Project Services or Interim Project Services pursuant to an agreement between Provider and each relevant subcontractor, and keep in force from the date on which the relevant subcontractor begins Project Work, Project Services or Interim Project Services until completion of the relevant subcontractor’s Project Work, Project Services or Interim Project Services the following insurance coverages:

 

(a)Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with liability limits of $1,000,000 per occurrence and in the aggregate per policy period shared by all insureds and additional insureds.

 

(i)Customer and Provider shall be listed as an additional insured through the issuance of an additional insured policy endorsement to subcontractor’s automobile liability policy in respect of any liability arising out of the negligent acts or omissions of such subcontractor.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 4 [Insurance]

EXECUTION VERSION

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(b)Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of the subcontractor’s Work.

 

(c)Employer's liability or "stop gap" insurance of $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

 

(d)Commercial general liability insurance shall be written on an occurrence form and include coverage for Products & Completed operations, Advertising Injury, Personal Injury, 3rd party bodily injury and property damage. CGL limits of $2,000,000 per occurrence, and in the aggregate, and $2,000,000 products completed operations per policy period shared by all insureds and additional insureds. Coverage shall also include a per-location aggregate endorsement, primary non-contributory endorsement, waiver of subrogation endorsements.

 

(i)Customer and Provider shall be listed as an additional insured through the issuance of an additional insured policy endorsement to subcontractor’s commercial general liability policy in respect of any liability arising out of the negligent acts or omissions of such subcontractor.

 

(e)In the event a sub-contractor does not maintain required insurance coverages, and/or in the event of a claim that would otherwise be covered had the sub-contractor complied, Provider’s insurance will drop down to assume and act as the primary source of coverage.

 

Article 5
RESERVED

 

Article 6
Customer Insurance Required DURING TERM

 

6.1Customer shall secure and keep in force, or cause to be secured and kept in force, from the Effective Date until the expiry or termination of the TAAS Agreement the following insurance coverages:

 

(a)Commercial general liability, insuring Customer and its subcontractors, including premises or operations, contractual, and products or completed operations coverages (if applicable), with liability limits of $5,000,000 per occurrence shared by all insureds and additional insureds.

 

(i)Provider shall be listed as an additional insured.

 

(b)Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with liability limits of $1,000,000 per occurrence shared by all insureds and additional insureds.

 

(i)Provider shall be listed as an additional insured.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 4 [Insurance]

EXECUTION VERSION

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(c)Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of the TAAS Agreement.

 

(d)Employer's liability or "stop gap" insurance of $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

 

(e)Pollution Liability coverage for Personal Injury, Property Damage and Cleanup Cost (“Pollution Liability Policy”) insuring the Customer and its subcontractor arising from sudden and accidental pollution conditions caused by Customer’s operations with limits of $5,000,000 in the aggregate shared by all insureds and additional insureds. Occurrence coverage is preferred but coverage may be provided on a claims-made form.

 

(i)Provider shall be named on Customer’s Pollution Liability Policy as an additional insured in respect of any liability arising out of the acts or omissions of Customer.

 

(f)Commercial General Liability. Project specific commercial general liability, insuring Customer and its subcontractors, including premises or operations, contractual, and products or completed operations coverages (if applicable), with liability limits of $5,000,000 per occurrence shared by all insureds and additional insureds.

 

(i)Provider shall be listed as an additional insured.

 

Article 7
BUILDER’S RISK AND PROFESSIONAL LIABILITY INSURANCE

 

7.1Customer shall secure and keep in force, or cause to be secured and kept in force, from the Effective Date until the commencement of the Project Service Period the following insurance coverage:

 

(a)Builder’s Risk. Project specific builder’s risk insurance insuring the interest of Customer, Provider, contractor(s) and subcontractor(s) of all tiers including coverage on an All Risk basis, including but not limited to, coverage against fire, lightning, wind damage, hail, explosion, riot or civil commotions, aircraft and other vehicles, collapse, flood, earth movement, and coverage available under the so-called Installation Floater (the “Builder’s Risk Policy(ies)”).

 

(i)The policy(ies) for such coverage shall be secured and maintained by Customer in an amount equal to the full completed value of the project and shall provide coverage per occurrence up the full replacement cost of the Project Facilities.

 

(b)To the extent available, the Builder’s Risk Policy(ies) shall include coverage for:

 

(i)foundations, including pilings, but excluding normal settling, shrinkage, or expansion;

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 4 [Insurance]

EXECUTION VERSION

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(ii)physical damage resulting from machinery accidents but excluding normal and natural wear and tear, corrosion, erosion, inherent vice or latent defect in the machinery;

 

(iii)plans, blueprints and specifications;

 

(iv)physical damage resulting from faulty work or faulty materials, but excluding the cost of making good such faulty work or faulty materials;

 

(v)physical damage resulting from design error or omission but excluding the cost of making good such design error or omission;

 

(vi)physical damage resulting from mechanical breakdown or electrical apparatus breakdown;

 

(vii)demolition and debris removal coverage insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project Facilities;

 

(viii)the increased replacement cost due to any change in Applicable Laws;

 

(ix)expense to reduce loss;

 

(x)building ordinance compliance, with the building ordinance exclusion deleted; and

 

(xi)full collapse, including collapse resulting from design error.

 

(c)Professional Liability Insurance. At all times during the Term that professional services are rendered respecting design and construction of the Project Facilities, Customer shall or shall cause its designer to carry errors and omissions insurance with a limit of not less than $2,000,000 per claim and in the aggregate.

 

(d)Customer shall be the named insured on the Builder’s Risk Policy(ies). Provider shall be named on the Builder’s Risk Policy(ies) as an additional insured. The policies shall provide for separation of insureds. The proceeds of the Builder’s Risk Policy(ies) shall be held by Customer and timely applied to the cleanup, repair and reconstruction of the Project Facilities.

 

Article 8
Customer INSURANCE During the Interim Project Services Period and Project Services Period

 

8.1Customer shall secure and keep in force, or cause to be secured and kept in force, from the commencement of the Interim Project Services Period until the expiry or termination of the TAAS Agreement the following insurance coverages:

 

(a)all risks property insurance (the “All Risks O&M Property Insurance”).

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 4 [Insurance]

EXECUTION VERSION

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(i)The All Risks O&M Property Insurance Policy shall cover all risks scheduled under Section 8.1(a)(ii) of direct physical loss or damage to the property of the insured or property over which it exercises a power of management or supervision, and which forms part of or is associated with the Project Facilities, whether or not the property is on the premises of the Project Facilities or in transit and regardless of the mode of ground transport, including materials and supplies destined for the Project Facilities

 

(ii)The All Risks O&M Property Insurance shall cover but is not limited to:

 

(A)the Project Facilities, including the Project Work, including their footings, foundations and underground structures, temporary structures and work camps, scaffolding, temporary works, formwork, fencing, excavations, preparation, landscaping and other similar works;

 

(B)flood and ice conditions;

 

(C)natural or man-made earth movement, including earthquakes, earth slides and subsidence;

 

(D)damage resulting from maintenance of roads and contiguous property so long as damage is not resulting from failure to perform maintenance.;

 

(E)demolition and increased cost of construction, in particular the costs to satisfy the requirements of the enforcement of any law or ordinance regulating the demolition, construction, repair, replacement or use of buildings or structures;

 

(F)data processing and media equipment and media, including the costs of data restoration and recreation. This coverage may also be secured through a Cyber policy;

 

(G)boilers and pressurized equipment, and mechanical or electrical failure unless they are covered by a separate Insurance Policy for equipment breakdown;

 

(H)expenses related to fighting fires;

 

(I)property while in transit, including loading and unloading and while in temporary storage;

 

(J)removal of debris when the loss is caused by an insured peril; and

 

(K)valuable papers and records.

 

(b)Customer shall be the named insured on the All Risks O&M Property Insurance and the Provider shall be named as a loss payee as its interest may appear on the All Risks O&M Property Insurance. The proceeds of the Builder’s Risk Policy(ies) shall be held by Customer and timely applied to the cleanup, repair and reconstruction of the Project Facilities.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 4 [Insurance]

EXECUTION VERSION

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Article 9
The insurance coverages listed above must meet the following additional requirements:

 

9.1The insurance required to be provided by this Schedule 4 [Insurance] should be written on an occurrence form with the exception of Pollution, Professional, and Executive Risk coverages. In order to meet required limits, multiple carriers may be used to layer limits. Property policies shall be written on a Special Cause or All Risk Loss Form and must be placed with insurers rated "A-" or better by A.M. Best Company, Inc. authorized to do business in Ohio and a minimum financial size of VIII. A rating of less than "A-" by A.M. Best Company, Inc. for any insurance company proposed by one Party to provide insurance required hereunder must be approved by the other Party.

 

9.2The insolvency or bankruptcy of a party responsible to procure insurance hereunder shall not release the insurer from payment under the policy, even when such insolvency or bankruptcy prevents such party from meeting the retention limit under the policy.

 

9.3Each Party shall furnish a certificate of insurance in respect of the insurance required to be procured by it hereunder, prior to commencement of Project Work. The Customer shall provide copies of project specific policies to Provider promptly on the request of Provider.

 

9.4Each Party shall endeavor to provide at least 30 days’ notice of any cancellation to the policies or endorsements it is responsible for hereunder. Each Party shall provide on an ongoing basis, current certificates of insurance or other evidence of coverage in respect of the insurance or coverage it is responsible to procure during the Term of the Agreement. A renewal certificate will be provided 10 days prior to coverage expiration.

 

9.5Provider and Customer shall each cause their property damage and liability-based insurance policies hereunder to include a waiver of subrogation clause.

 

9.6Coverages terms, conditions and limits may be revisited from time to time to ensure both parties are adequately protected and contemplating current and future risk trends that may pose risk or threat for the nature of this agreement.

 

Article 10
Deductibles

 

10.1The Party responsible for the matter giving rise to a claim, to the extent responsible therefor, shall be responsible and liable for the payment of deductibles under any policy of insurance under which it is an insured party or under any policy of insurance required to be maintained under this Schedule 4 [Insurance] or the TAAS Agreement. In the event that responsibility for the matter giving rise to the claim is indeterminable, the first named insured under the policy of insurance is responsible and liable for the payment of deductibles.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 4 [Insurance]

EXECUTION VERSION

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Article 11
Provider Corporate Policies

 

11.1Provider shall be permitted to provide any of the insurance it is required to procure hereunder, or which it is required to have others procure, through its or their blanket general corporate policy or policies.

 

Article 12
Cooperation

 

At a Party’s request (the “Requesting Party”) the other Party (the “Assisting Party”) shall cooperate fully with the Requesting Party, at the expense of the Requesting Party, in filing any proof of loss with respect to any insurance policy covering the casualties described in this Schedule 5 [Insurance] and in the prosecution or defense of any prospective or pending condemnation proceeding with respect to the Project Facilities or any part thereof and will, to the extent it may lawfully do so and subject to the next following sentence, permit the Requesting Party to litigate, subject to the approval of carrier’s panel counsel, in any proceeding resulting therefrom in the name of and on behalf of the Assisting Party. At the Assisting Party’s request, the Requesting Party shall provide the Assisting Party with security, acceptable to the Assisting Party, acting reasonably, for payment of Assisting Party’s costs and in respect of any such cooperation or claim and any potential losses of the Assisting Party directly related to such cooperation or claim. Subject to the foregoing, in no event will a Party voluntarily settle, or consent to the settlement of, any proceeding arising out of any insurance claim or any prospective or pending condemnation proceeding with respect to the Project Facilities which could reasonably be expected to have a material adverse effect on the other Party without the written consent of the other Party, acting reasonably.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 4 [Insurance]

EXECUTION VERSION

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SCHEDULE 5

 

DISPUTE RESOLUTION PROCEDURES

 

Article 1
Procedure

 

1.1Subject to Section 18.2 of the TAAS Agreement, Parties agree to resolve all Disputes in accordance with the terms of this Schedule 5 [Dispute Resolution Procedure].

 

Article 2
Dispute Notice

 

2.1The Dispute Resolution Procedure may be commenced by either Party by giving notice to the other Party (the “Dispute Notice”) briefly setting out the pertinent facts and the remedy or relief sought.

 

Article 3
Fast Track Dispute Resolution Procedure

 

3.1If the Dispute is not resolved to the mutual satisfaction of the Parties within fifteen (15) Business Days following the delivery of the Dispute Notice, either Party may by notice to the other (a “Referee Notice”), request the appointment of a referee (“Referee”) as provided under the terms of this Section 3.1. The Referee will be appointed and will participate in resolution of the Dispute as follows:

 

(a)unless the Parties otherwise agree, the Parties will appoint a Referee as follows:

 

(i)within five (5) Business Days of the delivery of the Referee Notice, each Party will submit in writing to the other Party, the names of no more than two (2) candidates for Referee each of whom are (1) independent of the Parties, (2) experienced in the resolution of disputes, (3) a professional with technical and/or legal experience relating to projects similar to the Project and (4) immediately available to perform the role of Referee in respect of the Dispute at hand;

 

(ii)if a Party has an objection to a candidate, it will give written notice of such objection with reasons to the other Party;

 

(iii)if the Parties name the same candidate, the Parties shall select that candidate as the Referee. In all other circumstances the Parties shall use reasonable commercial efforts to agree on the candidate who will be appointed as Referee within five (5) Business Days of the delivery of a Referee Notice;

 

(iv)if for any reason within five (5) Business Days of the delivery of a Referee Notice, a Referee meeting the criteria set forth in Section 3.1(a)(i) has not been appointed, then either Party may request the American Arbitration Society to promptly choose the Referee.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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(b)no later than three (3) Business Days after the Referee’s appointment, the Parties will enter into an agreement with the Referee to act as Referee generally in the form attached as Appendix A to this Schedule 5 (the “Referee Agreement”). The Referee’s fees and expenses will be shared equally by Provider and Customer;

 

(c)the Referee will conduct an impartial review of the Dispute in such manner as the Referee thinks fit, including carrying out onsite inspections and interviews with any persons that the Referee thinks fit. The Parties will comply with all reasonable requests from the Referee for additional information, documents and access to personnel which the Referee considers necessary for the review. Each Party shall have a right to submit a reasonable volume of documents it believes are relevant to the Dispute to the Referee. Any submission or documentation in respect of the Dispute provided to the Referee by a Party will also be provided to the other Party;

 

(d)the Referee may, with the written approval of both Parties, retain other professional persons or experts to assist with the review and each Party shall have the right to request that the Referee retain other professional persons or experts as such Party believes is appropriate given the nature of the Dispute and the Referee will pay due regard to any request by either Party for it to retain such other professional persons or experts;

 

(e)except as otherwise explicitly provided herein, the Referee will not be obliged to conduct its inquiries in the presence of the Parties or receive submissions from the Parties, except to the extent that the Referee thinks fit, and may render its decision notwithstanding the failure of a Party to participate in the proceedings;

 

(f)the Referee will render a brief, written, reasoned and impartial decision of the Parties rights in respect of the Dispute and the resolution of the Dispute, with copies to both Parties within five (5) Business Days of the signing by the Referee and both Parties of the Referee Agreement referred to in Section 3.1(b), or such longer period as agreed to in writing by both Parties. The Referee’s decision will be in the form of a proposed determination of the rights of the Parties having regard to the Referee’s understanding of the relevant contractual provisions, the applicable law and the facts as agreed by the Parties or as best the Referee is able to determine them;

 

(g)each Party acknowledges the value of having the Referee render a timely decision regarding the Dispute. If the Referee is unable to render its decision within the time set or as extended by mutual agreement of the Parties, then the Parties will grant the Referee up to an additional thirty (30) days to complete its review and make its determination. If the Referee is unable to make a determination within such period, the Parties shall request that the Referee provide to the Parties within such time such analysis of the Dispute as the Referee is able to make within that time and describe the further work the Referee recommends would be required in order to arrive at a reasoned decision;

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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(h)a person who has acted as a Referee under this Section may be retained by either party, or both parties, to assist in any Settlement Meeting with respect to the Dispute. Neither Party will be entitled to refer to or enter into evidence the decision of the Referee or anything contained therein in any such proceedings;

 

(i)to the extent permitted by Law, the Parties will agree to release and save harmless the Referee from any liability arising from the Referee’s actions, made in good faith, in carrying out the duties of the Referee as described in this Schedule 5 [Dispute Resolution Procedure] or as may be described in the Referee Agreement referred to in Section 3.1(b);

 

(j)to the extent permitted by Law, the proceedings under this Section 3.1 will be confidential and all information, data or documentation disclosed or delivered by either Party to the Referee as a result or in connection with its duties as Referee will be treated as confidential and to the extent permitted by Law, neither the Parties nor the Referee will disclose to any Person any such information, data or documentation unless the Parties otherwise agree in writing. Nothing contained in this provision will prevent the submission in any subsequent proceedings of any factual evidence other than factual evidence that came into existence for the express purpose of submission to, or assistance of, the Referee and such factual evidence that came into existence for the express purpose of submission to, or assistance of, the Referee and any argument, pleading or similar document interpreting factual evidence shall not be submitted or referred to in any subsequent proceeding;

 

(k)the decision of the Referee will be final in respect to Disputes relating to Deductions and in respect of all other Disputes unless a Party gives notice to the other Party (i) to request a Settlement Meeting (without prejudice to any further proceedings it may commence in accordance with this Schedule) in accordance Section 4.1, or (ii) to commence proceedings in accordance with Section 5.1;

 

(l)Unless or until the decision of the Referee on the Dispute is revised cancelled or varied by agreement of the Parties, or by arbitration (if proceedings are taken under Article 5) or by litigation (if proceedings are taken under Article 6) the Referee’s decision on the Dispute will when rendered be binding on both parties who will forthwith give effect to the decision; and

 

(m)should compliance with the Referee process under this Section 3.1 prove impracticable for any reason, a party not at fault for the failure in compliance, and which has made all reasonable efforts to ensure compliance, may forthwith request a Settlement Meeting as though the requirements of this Section 3.1 had been fully satisfied.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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Article 4
Settlement Meeting Negotiations

 

4.1Within ten (10) Business Days of the date on which the Referee’s decision is rendered in accordance with Section 3.1(f) or 3.1(g), either party may (save and except in respect of Disputes in respect of Deductions which shall be final and binding) give notice to the other party requesting a settlement meeting (a “Settlement Meeting”). A Settlement Meeting will be a meeting of at least two (2) senior representatives of each party at which those representatives will make good faith efforts to resolve the Dispute by without prejudice negotiations. At least one of the representatives of each Party will not have been previously involved in prior negotiations concerning the Dispute. The procedure for a Settlement Meeting will be as follows:

 

(a)the Parties’ representatives will convene the Settlement Meeting within ten (10) Business Days of delivery of the written notice for a Settlement Meeting, or such longer period as the Parties may agree; and

 

(b)the Settlement Meeting may, with the agreement of both parties, be in the form of mediation conducted in accordance with the meditation provisions of the American Arbitration Society Commercial Arbitration Rules and Mediation Procedures, as modified by the agreement of the parties.

 

Article 5
Arbitration

 

5.1If a Dispute is not finally settled by agreement of the parties by the earlier of:

 

(a)twenty (20) Business Days after receipt of the Referee’s decision; and

 

(b)sixty (60) Business Days after giving of the Dispute Notice,

 

then either party may commence proceedings to have the Dispute finally settled by binding arbitration under this Article 5, pursuant to the American Arbitration Society Commercial Arbitration Rules and Mediation Procedures with the consent of the other party or by litigation as contemplated in Article 6. In any such proceedings the scope of issues will not be limited strictly to the terms of the Dispute Notice but may extend to include directly related matters for the purpose of completely settling the Dispute.

 

5.2The Parties agree that the Arbitrator shall not have the power and jurisdiction to:

 

(a)issue judgments for exemplary or punitive damages;

 

(b)rule on a ground that has not been raised by either Party. Should the Arbitrator rule that the solution to the Dispute comes, in whole or in part, under such ground, it shall reopen the case and summon the Parties to a hearing so that they may present their observations and, where applicable, adduce further evidence in respect of said ground.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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5.3The place of arbitration is Akron, Arbitration shall be conducted in English.

 

5.4Any Party that wants to refer a Dispute to arbitration (such Party, the “Applicant”) shall send an Arbitration Notice to the other Party (in this Schedule the “Arbitration Notice”), which shall contain, inter alia, the following:

 

(a)a demand that the Dispute be referred to arbitration;

 

(b)a brief description of the claim and an indication of the amount involved, if any;

 

(c)the relief or remedy sought; and

 

(d)a proposal for the arbitrator designation by that Party.

 

5.5Within a period of ten (10) Business Days, the party receiving the Arbitration Notice (the “Respondent”) shall provide a response to the Arbitration Notice indicating whether or not it agrees to arbitration (“Arbitration Notice Response”) failing which the Respondent shall be deemed to agree to arbitration.

 

5.6If the Respondent does not agree to arbitration, either party may commence proceedings to have the Dispute finally settled by litigation in accordance with Article 6.

 

5.7If the Respondent does agree to arbitration, thirty (30) days after the Arbitration Notice has been served, the Respondent shall serve its response containing the following elements:

 

(a)its comments on the claim and the amount involved;

 

(b)its position as to the relief or remedy sought;

 

(c)a proposal for the arbitrator designator by the Respondent; and

 

(d)any counterclaim formulated in accordance with the requirements that apply to the Arbitration Notice, if applicable.

 

5.8The arbitrator designator put forward by the Applicant in accordance with Section 5.4(d) and the arbitrator designator put forward by the Respondent in accordance with Section 5.7(c) shall be independent third parties experienced in the arbitration of disputes. The arbitrator designators shall within a period of ten (10) Business Days following delivery of the Respondent’s Response to the Arbitration Notice appoint an arbitrator for the dispute who shall be an arbitrator experienced with disputes in the nature of the Dispute and be an independent third party with no pre-existing relationship to either Party. In the event that, for any reason, an Arbitrator has not been appointed within such ten (10) Business Day period, either party may apply to the American Arbitration Society for the appointment of an arbitrator. The person appointed as arbitrator pursuant to this Section 5.8 shall be the “Arbitrator”.

 

5.9The Applicant shall present its response to the counterclaim within a period of 30 days after the counterclaim has been served, if applicable.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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5.10Unless otherwise agreed by the Parties, either Party may amend or supplement its Claim or defense during the course of the arbitral proceedings, unless the Arbitrator considers it inappropriate to allow such amendment having regard to the delay in making it.

 

5.11Within 30 days of its appointment the Arbitrator shall summon the Parties to a preliminary conference for the purposes of drafting and executing the terms of reference, which shall include:

 

(a)the names, full corporate names and nature of the Parties;

 

(b)the addresses of the Parties, for service of procedures purposes;

 

(c)a presentation of the Parties’ allegations and conclusions sought in the principal and counterclaim;

 

(d)a list of the issues under dispute;

 

(e)the timetable, including deadlines for serving the declaration, the defense and, eventually, the counterclaim, the reply and defense to the counterclaim, and the preliminary arguments, the examinations before and after the defense, the objection proceedings, the disclosure of exhibits, the disclosure of expert reports, the submission of “prehearing” briefs, the prehearing conferences, the date of hearing, and the “post-hearing” briefs, as applicable; and

 

(f)the amounts to be paid by the Parties as provisions for arbitration fees.

 

5.12The terms of reference shall be executed by the Parties and the members of the Arbitrator. Refusal by either Party to participate in the prehearing conference or execute the terms of reference shall not hamper the conduct of the arbitration procedure. The terms of reference may be amended for the specific purpose of taking into account any new principal or counterclaim instituted by the Parties, or any change to the timetable of the procedures.

 

5.13The Arbitrator may take any measure to protect the business or trade secrets and Confidential Information of the Parties.

 

5.14The Arbitrator shall establish rules of procedure, which shall under no circumstances be open to individuals not Party to the proceedings. The Arbitrator may specifically order the exclusion of witnesses. The Parties shall appear in person or through a duly mandated representative, including their counsel.

 

5.15Upon adjournment of the hearings or, where applicable, after receipt of the written arguments, the Arbitrator shall declare the proceedings closed and, after that date, no further proceeding, argument or evidence may be presented, unless so requested or authorized by the Arbitrator.

 

5.16Any arbitration award shall be rendered in writing and reasons be given therefor. The award shall be deemed to have been rendered in the location of the arbitration and on the date stipulated therein.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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5.17The arbitration award shall be final, without appeal and binding on the Parties.

 

5.18The Parties and the Arbitrator shall treat all meetings and communications, the proceedings, documents disclosed during the proceedings and the award as confidential, except:

 

(a)to the extent that disclosure may be required of a Party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a court or other judicial authority;

 

(b)with the consent of the Parties;

 

(c)where needed for the preparation or presentation of a claim or defense between the Parties pursuant to the TAAS Agreement;

 

(d)where such information is already in the public domain other than as a result of a breach of this clause; or,

 

(e)by order of the Arbitrator(s) upon application of a Party.

 

5.19The Parties undertake to pay the arbitration fees established by the Arbitrator within the timeframe determined by the Arbitrator. In its final arbitration award, the Arbitrator shall determine the arbitration fees, including the fees and expenses of the Arbitrators as well as the cost of experts, and shall decide which Party shall assume the payment thereof or in what proportion they shall be shared by the Parties.

 

Article 6
Judicial Proceedings

 

6.1To the extent that the provisions of this Schedule 5 [Dispute Resolution Procedure] authorize the Parties to seek recourses from the courts of law, including any request to quash an arbitration award, the Parties are permitted to proceed with any such suit, action, or other proceeding in the State of Ohio.

 

Article 7
Miscellaneous

 

7.1Customer and Provider shall diligently carry out their respective obligations under this TAAS Agreement during the pendency of any Disputes, including, without limitation, arbitration proceedings or litigation proceedings. If during the pendency of any Dispute it is considered necessary by either Party to proceed in respect of the matter that is in Dispute, then without prejudice to Provider’s rights in respect of the Dispute (including in respect of Excused Failures or Changes), Provider shall proceed in accordance with the instructions of Customer, and Customer shall pay the Provider for such work as if such work was being performed on the basis of a Change Directive, and in the event the matter in dispute is determined in favor of Customer, Provider shall repay to the Customer any amounts received in respect of such matter.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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7.2For greater certainty, in respect of any Dispute relating to the Project Work or the Project Services or the Interim Project Services, the Referee shall be the decision maker of the first instance and the Parties shall comply with the decision of the Referee unless and until is overturned in a subsequent arbitration or litigation proceeding.

 

7.3Nothing contained in this Schedule 5 [Dispute Resolution Procedure] will prevent the Parties from seeking interim protection from the courts referred to in Section 6.1, including seeking an interlocutory injunction where available pursuant to Law, if necessary to prevent irreparable harm to a Party.

 

7.4Customer shall ensure that any and all documents in the possession or control of any Customer Person that are available to Customer and that may be necessary for the resolution of a Dispute on an informed basis pursuant to negotiations, Article 3 [Fast Track Dispute Resolution Procedure], mediation, arbitration, or judicial proceedings, are made available in a timely manner to Provider. Provider shall ensure that any and all documents in the possession or control of any Provider Party that are available to Provider and that may be necessary for the resolution of a Dispute on an informed basis pursuant to negotiations, Article 3 [Fast Track Dispute Resolution Procedure], mediation, arbitration, or judicial proceedings, are made available in a timely manner to Customer.

 

7.5The Parties can, by written agreement, on a Dispute by Dispute basis:

 

(a)extend any or all timelines set out in this Schedule 5 [Dispute Resolution Procedure];

 

(b)agree to waive or by-pass any one or more of the Dispute resolution processes in this Schedule 5 [Dispute Resolution Procedure]; and/or

 

(c)agree to resolve a Dispute by Referee rather than arbitration or litigation.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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Appendix A
FORM OF REFEREE RETAINER AGREEMENT

 

This Agreement is made this ____ day of __________ 20___, by ___________ (the “Referee Appointee”) and [Customer Name] and [Provider Name] (each a “Client”).

 

1.Each Client wishes to retain Referee Appointee to act as the referee in accordance with Schedule 5 [Dispute Resolution Procedure] to the TAAS Agreement entered into between the Clients on or about [DATE] (the “TAAS Agreement”). A copy of Schedule 5 [Dispute Resolution Procedure] to the TAAS Agreement has been provided to the Referee Appointee.

 

2.Referee Appointee agrees to act honestly, independently and in good faith as Referee, as defined in TAAS Agreement. Referee Appointee confirms and warrants that except as disclosed to each Party, it has no relationship with any Client which could be perceived as a conflict of interest in respect of its impartiality or role as Referee under the TAAS Agreement. The Referee Appointee agrees to keep all matters related to its appointment hereunder, the TAAS Agreement and all matters related to this retainer strictly confidential and not to disclose any information or documents which it receives in respect of this retainer.

 

3.The Referee Appointee shall be entitled to be paid by the Clients its reasonable out of pocket expenses and a fee of $_______ per hour (“Referee Amounts”). Each Client shall be responsible to pay 50% of all of Referee Amounts, invoiced monthly in arears within 30 days of receipt of a detailed invoice from the Referee Appointee. Each Client shall not be responsible to pay any amount which is not paid by the other Client.

 

4.To the extent permitted by Applicable Law, the Referee Appointee shall not be liable to either Client for any loss, claim or damage which results from the actions of the Referee Appointee or arises out of or relates to this Referee Retainer Agreement or the matters in respect of which the Referee is being retained except in the event of a breach of Section 2 of this Referee Appointment Agreement and except to the extent of the Referee Appointee’s wilful misconduct or fraud.

 

5.This Agreement may be terminated by agreement of the Clients on 30 days prior written notice and shall terminate at the time that the Referee Appointee renders its decision in accordance with the requirements of the TAAS Agreement. The payment obligations of the Clients and the provisions of Section 4 shall survive termination.

 

6.The laws of the State of Ohio shall govern the construction and interpretation of this Agreement.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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7.Any notices required under this Agreement shall be in writing and shall be deemed to have been duly served if delivered in person to the party for whom it is intended or if delivered at or sent by registered or certified mail to the address indicated below:

 

Referee:

 

[ADDRESS FOR SERVICE]

 

[Customer Name]:

 

[ADDRESS FOR SERVICE]

 

[Provider Name]:

 

[ADDRESS FOR SERVICE]

 

8.This Agreement may be executed in one or more counterparts. Any single counterpart or a set of counterparts executed, in either case, by all of the Parties will constitute a full, original and binding agreement for all purposes. Counterparts may be executed either in original, faxed or electronic mail form.

 

  [REFEREE]  
     
     
  Name:  
  Title:  
     
  [CUSTOMER NAME]  
     
     
  Name:  
  Title:  
     
  [PROVIDER NAME]  
     
     
  Name:  
  Title:  

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 5 [Dispute Resolution Procedures]

EXECUTION VERSION

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SCHEDULE 6

 

Customer Support Services

 

In addition to any other obligations of Customer pursuant to the TAAS Agreement, Customer shall perform any additional obligations identified and agreed to by the Parties as being the responsibility of the Customer and, once identified, all such obligations shall be at Customer’s sole risk, cost and expense, including in respect of payment.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 7 [Changes]

EXECUTION VERSION

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SCHEDULE 7

 

Article 1
general

 

1.1Changes in the Project Work (including changes in the GMP - Phase 2 or the GMP - Phase 3, as applicable) or the Project Services (including, without limitation, changes caused by an Excused Failure as provided in Section 7.4 of the TAAS Agreement or a Change in Law or a change in Customer Policies as provided in Section 7.2 of the TAAS Agreement) may be accomplished after execution of the Agreement, and without invalidating the Agreement, by Change Order or Change Directive (collectively, a “Change”), subject to the limitations stated in this Schedule 7 [Changes] and elsewhere in the TAAS Agreement.

 

1.2A Change Order shall be based upon agreement between Provider and Customer. Subject to Section 3.2, Customer may issue a Change Directive without agreement of Provider.

 

1.3Changes in the Project Work or the Project Services shall be performed under applicable provisions of the TAAS Agreement, and Provider shall proceed promptly, unless otherwise provided in the Change Order or Change Directive.

 

1.4Provider shall be entitled to a Change Order in respect of an Excused Failure, a Change in Law or a change in Customer Policies, provided that, in the absence of agreement on the terms of a Change Order in respect of an Excused Failure or Change in Law or change in Customer Policies, Customer shall issue a Change Directive.

 

1.5Any failure of Provider to provide the Project Services in accordance with the requirements of Article 3 of the TAAS Agreement as a result of implementing a Change shall be deemed to be an Excused Failure and no Deductions shall apply in respect thereof.

 

Article 2
CHANGE ORDERS

 

2.1A change order is a written instrument signed by Provider and Customer (a “Change Order”) stating their agreement upon all of the following:

 

(a)the change in the Project Work (including changes in the GMP - Phase 2 or the GMP - Phase 3, as applicable) or the Project Services;

 

(b)the method of adjustment or the amount of the adjustment, if any, in the GMP - Phase 2, GMP - Phase 3, the Indexed Payments (or any component thereof), or other method of payment for the change; provided that if Provider elects not to finance the capital cost of any change in the Project Work or the Project Services, such capital cost shall be paid by Customer to Provider on a lump sum or on an agreed progress basis as the capital work is performed;

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 7 [Changes]

EXECUTION VERSION

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(c)the extent of the adjustment, if any, in the scheduled Phase 2 Project Work substantial completion date, scheduled Phase 3 Project Work substantial completion date and the Term; and

 

(d)any other changes to the TAAS Agreement agreed by Provider and Customer.

 

Article 3
CHANGE DIRECTIVES

 

3.1A change directive is a written order signed by Customer directing a change in the Project Work (including changes in the GMP - Phase 2 or the GMP - Phase 3, as applicable) or the Project Services prior to agreement on a Change Order (a “Change Directive”). Customer may by Change Directive, without invalidating the Agreement, order changes in the Project Work or the Project Services within the general scope of the TAAS Agreement consisting of additions, deletions or other revisions, with consequent changes to the scheduled Phase 2 Project Work substantial completion date, scheduled Phase 3 Project Work substantial completion date, the Term and/or the Indexed Payments (or any component thereof) or another method of payment as contemplated in Section 2.1 above and in accordance with Sections 3.4 and 3.8 below.

 

3.2Provider shall not be required to comply with a Change Directive issued by Customer in following circumstances:

 

(a)Provider, acting reasonably, determines that complying with the Change Directive would result in a violation of Applicable Law or create a danger to the health or safety of any person;

 

(b)Provider, acting reasonably, is not satisfied that Customer is able to pay for or finance the Change Directive;

 

(c)Provider, acting reasonably, determines that the requirements of the Change Directive are not within the general scope of the TAAS Agreement;

 

(d)Provider, acting reasonably, determines that the Change Directive relates to any environmental damage or Hazardous Materials; or

 

(e)after the Phase 2 Project Work substantial completion date or the Phase 3 Project Work substantial completion date, Provider, acting reasonably, determines that the Change Directive involves material change to the Project Facilities.

 

3.3A Change Directive shall be used in the absence of total agreement on the terms of a Change Order.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 7 [Changes]

EXECUTION VERSION

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3.4Provider’s compensation for a Change Directive shall be paid by Customer to Provider as agreed between them in accordance with the following and failing agreement as provided in Section 3.8:

 

(a)mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation;

 

(b)unit prices stated in the Design Documentation or subsequently agreed upon by the Parties; or

 

(c)cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee.

 

3.5If unit prices are stated in the Design Documentation or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Change Directive so that application of such unit prices to quantities of Project Work proposed will cause substantial inequity to Provider or Customer, the applicable unit prices shall be equitably adjusted.

 

3.6Subject to Section 3.2, upon receipt of a Change Directive, Provider shall promptly proceed with the change in the Project Work or the Project Services involved and advise Customer of Provider’s agreement or disagreement with the method, if any, provided in the Change Directive for determining the proposed adjustment in the Project Work or the Project Services, the GMP - Phase 2, the GMP - Phase 3, the Indexed Payments (or any component thereof), or other payment method or in the scheduled Phase 2 Project Work substantial completion date, the scheduled Phase 3 Project Work substantial completion date or Term.

 

3.7A Change Directive signed by Provider indicates Provider’s agreement to proceed therewith. In the event that Provider agrees with Customer’s proposed method of payment for the Change Directive, Provider shall state so explicitly in writing to Customer and such method of adjustment shall then be binding on Provider.

 

3.8Subject to Section 3.7, the adjustment to Provider’s payment resulting from a Change Directive will be the change in Provider’s reasonable costs, expenditures and savings for the performance of the Project Work or the Project Services attributable to the change, including, in case of an increase, an amount for overhead and profit of sixteen (16) percent in respect of the Project Work and, in respect of the Project Services, a reasonable and equitable amount having regard to the risk being undertaken by the Provider and the margins for public private partnership transactions generally. In such case, and also under Section 3.4, the Provider shall keep and present, in such form as Customer may reasonably prescribe, an itemized accounting of its costs related to the Change Directive together with appropriate supporting data. In respect of the Project Work, unless otherwise provided in the Design Documentation, costs for the purposes of this Section 3.8 shall be limited to Allowable Costs.

 

3.9The amount of credit to be allowed by the Provider to the Customer for a deletion or change that results in a net decrease in the Indexed Payments or other charges shall be the actual net decrease in Provider’s cost. The amount of the Change Order or the Change Directive shall include all costs arising from, or related to, the change including, without limitation, any debt and/or financing costs, but only to the extent that such costs are incurred by Provider.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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3.10Pending final determination of the total cost of a Change Directive, Provider may require payment for Project Work or the Project Services completed under the Change Directive in a monthly invoice delivered by Provider to Customer. Customer will make an interim determination for purposes of payment or certification of payment for those costs deemed to be reasonably justified. Customer’s interim determination of cost shall adjust the Indexed Payments (or any component thereof) or other payment method as contemplated in Section 2.1(b) above, on the same basis as a Change Order, subject to the right of Provider to disagree and assert a claim in accordance with Schedule 5 [Dispute Resolution Procedure].

 

3.11Payments by Customer to Provider in respect of invoices delivered pursuant to Section 3.10 shall be, prior to the Phase 2 Project Work substantial completion date or the Phase 3 Project Work substantial completion date, as applicable, be paid at the same time as the construction draw for the relevant month and after the Phase 2 Project Work substantial completion date or the Phase 3 Project Work substantial completion date, as applicable, at the time the Indexed Payment is made in respect of the relevant month.

 

3.12When Provider and Customer agree with a determination concerning the adjustments in the Project Work or the Project Services; the GMP - Phase 2; the GMP - Phase 3 and the Indexed Payments (or any component thereof) or other payment method and in the scheduled Phase 2 Project Work substantial completion date, the Phase 3 Project Work substantial completion date or Term, if applicable, or otherwise reach agreement upon the adjustments, such agreement shall be reduced to writing and Provider and Customer shall execute a Change Order. Change Orders may be issued for all or any part of a Change Directive.

 

3.13If a Change Order or Change Directive requires Project Work or the Project Services to be provided on a time and material basis, Customer shall have the right to review all records (including time logs and daily work tickets) to verify the Project Work or the Project Services being performed and the cost thereof.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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SCHEDULE 8

 

CUSTOMER policies

 

See Attached

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 7 [Changes]

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PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 7 [Changes]

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PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 7 [Changes]

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PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 7 [Changes]

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PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 7 [Changes]

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PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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SCHEDULE 9

 

RELIANCE DOCUMENTS

 

None.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Schedule 10

 

Construction Additional General Terms and Conditions

 

Article 1
Design Documentation, Construction Documentation and Shop Drawings

 

1.1References. The provisions of this Schedule 10 (including all attachments) shall apply to both the Phase 2 Work and the Phase 3 Work. All references to Project Work shall mean the Phase 2 Work or the Phase 3 Work, as applicable. All references to Construction Price shall mean the Construction Price - Phase 2 and the Construction Price - Phase 3, as applicable, all references to GMP shall mean the GMP - Phase 2 and the GMP - Phase 3, as applicable, all references to Customer Schedule shall mean Customer Schedule – Phase 2 and Customer Schedule – Phase 3, as applicable.

 

1.2Modified AIA Document Customer and Provider acknowledge that a modified version of AIA Document A201-2007 is attached as Attachment 4 and that such modified version together with AIA Document A102-2017 is herein referred to as the “AIA Document”. The Parties shall, in good faith, settle the terms and conditions of the AIA Document, having regard to the terms and conditions of this Agreement, by November 15, 2020 and, once settled, the terms and conditions therein shall be incorporated in this Agreement by reference and shall apply to the Project Work. In the event of any conflict or inconsistency between the AIA Document and any term or condition of this Agreement, the terms and conditions of this Agreement shall govern. For purposes of the AIA Document, all references to Owner shall mean Customer, all references to Contractor shall mean Provider, all references to Work shall mean the Project Work (and, as applicable, the Phase 2 Work or Phase 3 Work).

 

1.3Design Documentation and Construction Documentation. The Design Documentation reflects the expected scope of the Project Work and will serve as the basis of the preparation of the Construction Documentation by Customer and serve as the basis for the pricing of the Project Work by Provider. Customer shall prepare the Construction Documentation on the basis of the Design Documentation. The Construction Documentation may vary from the Design Documentation, provided that the Construction Documentation shall be consistent with and generally have the same scope as shown in the Design Documentation.

 

1.4Shop Drawings. Provider shall be responsible for preparing shop drawings corresponding to the Construction Documentation provided by Customer to Provider (“Project Shop Drawings”).

 

1.5Documentation Changes. To the extent that there is any material difference between the Design Documentation and the Construction Documentation, Provider shall be entitled to a Change in respect thereof. To the extent that the Parties cannot agree on the terms of a Change Order in respect of such difference, such difference shall be treated as a Change Directive.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Article 2
General

 

2.1Construction in Accordance with Construction Documentation. Provider shall construct, supply, commission and test the Project Work in accordance with the Construction Documentation, as the same may be prepared by Customer and provided to Provider in accordance with the terms of this Agreement.

 

2.2Licensing. Provider shall comply with any applicable licensing requirements in the jurisdiction where the Project is located.

 

2.3No Relief. Provider shall not be relieved of the obligation to perform the Project Work in accordance with the Construction Documentation by the tests, inspections or approvals of Customer, except as expressly provided in this Agreement.

 

2.4Compliance With Law. Provider shall perform the Project Work in compliance with Applicable Law. If Provider performs Project Work contrary to Applicable Law, Provider shall assume responsibility for all such Project Work and shall bear the costs attributable to correction, except to the extent such Project Work was completed based on instructions received from Customer.

 

2.5Limitation on Performance Obligation. Neither Provider, Customer nor any Subcontractor shall be obligated to perform any act which they believe will violate Applicable Law. If Provider determines that implementation of any instruction received from Customer would cause a violation of Applicable Law, Provider shall as soon as reasonably practicable notify Customer in writing. Upon verification by Customer that a change to Customer’s instruction is required to remedy the violation, Customer and Provider shall execute a Change Order, or Customer shall issue a Change Directive, in accordance with Schedule 7 [Changes], as applicable.

 

2.6Provider Person. Provider shall be responsible to Customer for acts and omissions of any Provider Person performing any portion of the Project Work.

 

Article 3
General Consultation

 

3.1Consultation and Meetings. Provider shall schedule and conduct periodic meetings with Customer to review matters such as procedures, progress, coordination, and scheduling of the Project Work.

 

Article 4
Progress Reports

 

4.1Monthly Reporting. Provider shall keep Customer informed of the progress and quality of the Project Work. On a monthly basis or as otherwise agreed to by Customer and Provider, Provider shall submit written progress reports to Customer, showing estimated percentages of completion and other information identified below:

 

(a)Project Work completed for the period;

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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(b)Project Work Schedule status;

 

(c)Submittal Schedule and status report, including a summary of outstanding Project Shop Drawings;

 

(d)Responses to requests for information to be provided by Provider;

 

(e)Approved Change Orders and Change Directives;

 

(f)Pending Change Order and Change Directive status reports;

 

(g)Tests and inspection reports;

 

(h)Status report of Project Work rejected by Customer;

 

(i)Status of claims previously submitted in accordance with Schedule 5 – [Dispute Resolution Procedure];

 

(j)Scheduled draws as compared to Schedule of Values; and,

 

(k)Additional information as agreed to by Customer and Provider, each acting reasonably.

 

Article 5
Construction Period Payments

 

5.1Construction Payments. Customer shall pay Provider the Construction Price, up to the GMP set forth in Attachment 1 [Construction Payments] to this Schedule 10 - [Construction Additional General Terms and Conditions], and any other amounts owed hereunder by Customer to Provider (collectively, the “Construction Payments”) on a progress payment basis in accordance with Attachment 1C.

 

5.2Additional Payment Conditions. The provisions of Sections 6.1(a) [Project Work Payments], 6.1(d) [Method of Payment], 6.1(e) [Taxes Payable by Customer], 6.2 [Taxes] and 6.3 [Overdue Amounts] of the main body of this TAAS Agreement shall apply to all Construction Payments.

 

5.3Guaranteed Maximum Price. Customer and Provider have established an indicative guaranteed maximum price (“GMP”) for the Project Work as set out in Attachment 1A or 1B, as applicable. At the request of the Customer for a Customer supplied date, a firm GMP shall be agreed to by the Parties, acting reasonably. At the conclusion of the Project Work, any amount of the Construction Price in excess of the GMP will be paid by Provider without reimbursement by Customer.

 

Article 6
Provider’s Schedules

 

6.1Project Work Schedule. Provider, within sixty (60) days after execution of this Agreement, shall prepare and submit for Customer’s review and approval, a resource loaded schedule for the Project Work which shall conform to the requirements of the Customer Schedule (the “Project Work Schedule”). The Project Work Schedule, including the commencement date, the time required for construction, supply testing and commissioning, shall show Substantial Completion of the Project Work required for each Project Facility or Phase by the Scheduled Project Work Substantial Completion Date for such Project Facility or Phase, shall be revised at appropriate intervals as required by Change Orders, Excusing Events, the conditions of the Project Work and the Project, shall be related to the entire Project Work, and shall include and identify, as separate items, allowances for reasonable periods of time required for Customer’s review. Provider shall take due account of any comments received from Customer in respect of the schedule.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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6.2Performance to Schedule. Provider shall perform the Project Work in general accordance with the most recent schedule submitted to Customer and Customer and Provider shall coordinate their activities to facilitate performance of the Project Work in accordance with the Project Work Schedule.

 

6.3Updated Schedules. Customer shall provide to Provider an updated Customer Schedule for the Project at regular intervals and no less than monthly. Provider shall update the Project Work Schedule to the extent required to coordinate with the Customer Schedule, and shall be entitled to an Excusing Cause to the extent that the time for performance of the Project Work is extended or the order of the Project Work is required to be revised as a result of changes to the Customer Schedule.

 

Article 7
Provider’s Submittals

 

7.1Submittal Schedule. Prior to submission of any Project Shop Drawings, Provider shall prepare a Project Shop Drawing schedule, and shall submit the schedule for Customer’s approval (the “Submittal Schedule”). Customer’s approval and/or comments shall be returned to Provider within ten (10) Business Days. The Submittal Schedule shall (i) be coordinated with the Project Work Schedule, (ii) allow Customer reasonable time to review Project Shop Drawings (ten (10) Business Days for each Project Shop Drawing), and (iii) be periodically updated to reflect the progress of the Project Work.

 

7.2Performance at Risk. If Provider shall perform any portion of the Project Work for which the Construction Documentation requires Project Shop Drawings before Customer has approved the respective Project Shop Drawing, Provider shall be deemed to be proceeding at risk and to the extent any Project Work must be removed, added or revised as a result of Provider proceeding at risk, Provider shall bear the risk of such removal, addition or revision.

 

7.3Professional Services. All Project Shop Drawings requiring professional design services or certifications to be provided by Provider, including all drawings, calculations, specifications, certifications, shall contain the signature and seal of the licensed design professional preparing them, when required by Applicable Law. Customer understands and agrees that the services of Provider’s consultants are performed in the sole interest of, and for the exclusive benefit of, Provider.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Article 8
Customer Review of Submittals

 

8.1Customer Approval Limitation. Customer shall review and approve or take other appropriate action on Project Shop Drawings. Review of Project Shop Drawings is not conducted for the purpose of (i) determining the accuracy and completeness or other details, such as dimensions and quantities or (ii) for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of Provider. Customer’s review shall not constitute approval of safety precautions or, unless otherwise specifically stated by Customer, of any construction means, methods, techniques, sequences or procedures.

 

8.2Customer Approval. Customer review and approval of Project Shop Drawings is conducted for the purpose of determining that the Project Shop Drawings are in conformance with the Construction Documentation, which is the responsibility of Customer.

 

8.3Deemed Approval. Customer’s action will be taken in accordance with the Submittal Schedule approved by Customer, in the absence of an approved Submittal Schedule, with reasonable promptness while allowing sufficient time to permit adequate review and in a timely manner to allow Provider to proceed in accordance with the then current Project Work Schedule. Customer’s approval of a specific item shall not indicate approval of an assembly of which the item is a component.

 

8.4Customer Response to Submittal. Customer shall respond to each such Project Shop Drawing within the time allowed by the Submittal Schedule either approving the Project Shop Drawing and confirming that the Project Shop Drawing is in conformance with the requirements of the Construction Documentation or by rejecting the Project Shop Drawing and providing a reasonably detailed explanation of the reasons that the Project Shop Drawing was rejected. Customer’s failure to respond to a Project Shop Drawing within the time permitted by Section 8.3 shall be deemed to be an approval of such Project Shop Drawing, including that such Project Shop Drawing is in accordance with the Construction Documentation.

 

Article 9
Construction

 

9.1Provider’s Responsibility for Construction. Provider shall supervise and direct the Project Work, using the skill and attention of a prudent Provider. Provider shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures (except as expressly provided otherwise in this Agreement), and for coordinating all portions of the Project Work under this TAAS Agreement, unless the Design Documentation gives other specific instructions concerning these matters.

 

9.2Provider’s Inspections. Provider shall be responsible for inspection of portions of the Project Work already performed to determine that such portions are in proper condition to receive subsequent Project Work.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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EXECUTION VERSION

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Article 10
Labor and Materials

 

10.1Provider’s Responsibility For Labor and Materials. Subject to Section 10.2, unless otherwise provided in the Design Documentation, Provider shall provide and pay for labor, supplies, materials, equipment, tools, construction equipment and machinery, transportation, and other facilities and services, necessary for proper execution and completion of the Project Work, whether temporary or permanent, and whether or not incorporated or to be incorporated in the Project Work.

 

10.2Owner’s Responsibility For Utilities Materials. Unless otherwise provided in the Design Documentation, Customer shall provide and pay for all utilities required in connection with the Project Work, including without limitation all water, heat, electricity, gas, garbage disposal and sewage.

 

10.3Substitutions and Limitation on Substitutions. When a particular material or system is specifically specified in the Design Documentation, except to the extent specifically permitted in the Design Documentation, Customer may make substitutions only in accordance with Schedule 7 [Changes] to the TAAS Agreement, provided that Customer may not make any changes to the Provider In-Scope Systems without the prior written consent of Provider.

 

10.4Responsibility for Labor. Provider shall enforce strict discipline and good order among Provider Persons carrying out the Project Work. Provider shall not permit employment of unfit persons or persons not properly skilled in tasks assigned to them and shall ensure that Provider’s safety standards are applied to all Project Work.

 

10.5Parking. Construction parking passes will be issued to Provider by Customer as needed for access to the Project Work at Provider’s cost.

 

Article 11
Concealed or Unknown Conditions

 

11.1Concealed or Unknown Conditions. If during the performance of the Project Work Provider encounters conditions described in Section (f) of the definition of Excused Failure, including for the avoidance of doubt any of the subsections of Section (f), Provider shall promptly provide notice to Customer before such conditions are disturbed and in no event later than five (5) Business Days after first observance of the conditions. Customer shall promptly investigate such conditions and report to Provider in respect thereof. If Customer agrees that the conditions constitute an Excused Failure, Customer shall recommend an equitable adjustment in the Construction Price, Project Work Schedule and Scheduled Project Work Substantial Completion Date, as applicable. If Customer does not so agree, Customer shall promptly notify Provider in writing, stating the reasons. If Provider disputes Customer’s determination or recommendation, Provider may proceed as provided in Schedule 5 [Dispute Resolution Procedure].

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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EXECUTION VERSION

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11.2Damage to Customer’s Property. Where Provider is performing Project Work, on the Premises, Provider shall be responsible for any damage to Customer’s property resulting from the Project Work. Notwithstanding the foregoing, Provider shall not be liable for damage to any property which was previously damaged, improperly installed, weakened items, or items not suitable for the purpose that they are performing.

 

Article 12
Human Remains and Archaeological Premisess

 

12.1Archeological Materials. In addition to the obligations of Provider and Customer described above in Section 11.1, if during the performance of the Project Work Provider encounters an Excused Failure described in Section (f)(iv) of the definition of Excused Failure, Provider shall suspend any Project Work which would disturb such conditions until otherwise instructed by Customer and Customer shall promptly take any action necessary to allow Provider to proceed with any part of the Project Work so suspended including obtaining any governmental authorization required to resume such part of the Project Work.

 

Article 13
Documents and Submittals

 

13.1Customer shall maintain at the Premises one copy of the Design Documentation and a current set of the Construction Documents, in good order and marked currently to indicate field changes and selections made during construction. Provider shall maintain at the Premises one copy of the approved Project Shop Drawings.

 

Article 14
Cleaning Up

 

14.1Provider shall keep the Premises and surrounding area free from accumulation of waste materials or rubbish caused by Project Work. At completion of the Project Work at each Project Facility, Provider shall remove waste materials, rubbish, Provider’s tools, construction equipment, machinery and surplus materials from and about such Project Facility.

 

Article 15
Health and Safety

 

15.1Customer shall notify and train Provider regarding Project safety criteria and programs, which Provider and the Provider Person’s performing any part of the Project Work, shall comply with while at the location of the Project Work.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Article 16
Provider Rights

 

16.1Visits to the Project Work by Customer shall not be construed to create an obligation on the part of Customer to make on-site inspections to check the quality or quantity of the Project Work. Customer shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for Provider’s compliance with the safety precautions and programs in connection with the Project, because these are solely Provider’s responsibility.

 

16.2Customer shall not be responsible for Provider’s failure to perform the Project Work in accordance with the requirements of the Project Shop Drawings approved by Customer. Customer shall not have control over or charge of, and will not be responsible for acts or omissions of Provider, or its Subcontractors.

 

16.3Customer has the authority to reject Project Work that does not conform to the Project Shop Drawings approved by Customer. Customer shall have authority to require inspection or testing of the Project Work in accordance with the Design Documentation, whether or not such Project Work is fabricated, installed or completed. However, neither this authority of Customer nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of Customer to Provider or any Subcontractor, or other persons or entities performing portions of the Project Work.

 

Article 17
Substantial Completion

 

17.1If Provider considers that the Project Work has achieved Substantial Completion, Provider shall prepare a deficiency list and submit same to Customer. Failure to include an item on the deficiency list does not alter the responsibility of Provider to complete all Project Work in accordance with the Project Shop Drawings.

 

17.2Upon receipt of Provider’s list, Customer shall make an inspection to determine whether the Project Work has achieved Substantial Completion. If Customer’s inspection discloses any item, whether or not included on Provider’s list, which is not sufficiently complete in accordance with the Project Shop Drawings so as to be considered to have achieved Substantial Completion, Provider shall, before issuance of a Certificate of Substantial Completion in respect of the Project Work, complete or correct such item upon notification by Customer. In such case, Provider shall then submit a request for another inspection by Customer to determine whether the Project Work has achieved Substantial Completion.

 

17.3When the Project Work has achieved Substantial Completion, Provider will prepare for Customer’s signature a Certificate of Substantial Completion. Subject to compliance with Section 17.2, Customer shall sign and return such Certificate of Substantial Completion within two (2) Business Days. Unless otherwise specified in the Project Shop Drawings, Warranties required by the Design Documentation shall commence on the date Substantial Completion in respect of that portion of the Project Work which has achieved Substantial Completion unless otherwise provided in the Certificate of Substantial Completion.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Article 18
Uncovering of Work

 

18.1If Customer has reasonable grounds to believe that Project Work which has been covered has not been performed in accordance with the Project Shop Drawings, Customer may request to examine such portion of the Project Work that Provider has covered to determine if the Project Work has been performed in accordance with the Project Shop Drawings approved by Customer. If such Project Work is in accordance with the Project Shop Drawings approved by Customer, or if Customer was provided with an opportunity to inspect before such Project Work was covered, Provider shall be entitled to a Change Order or Change Directive and adjustment of the Project Work Schedule and Scheduled Project Work Substantial Completion Date to compensate it for the cost and time required in respect of the uncovering, recovering and ancillary work required as a result of Customer’s request. If such Project Work is not in accordance with the Project Shop Drawings approved by Customer and if Customer was not provided with an opportunity to inspect such Project Work before it was covered, the costs of uncovering and correcting the Project Work shall be at Provider’s expense and Provider shall not be entitled to a change in the Project Work Schedule and Scheduled Project Work Substantial Completion Date unless the condition was caused or contributed to by Customer or a Customer Person in which event Provider shall be entitled to a Change Order or Change Directive and adjustment of the Project Work Schedule and Scheduled Project Work Substantial Completion Date to compensate it for the cost and time required in respect of the uncovering, recovering and ancillary work required as a result of Customer’s request.

 

Article 19
Correction of Work

 

19.1Before the commencement of the Project Services Period or Interim Project Services Period for each Project Facility for each Phase, as applicable, Provider shall promptly correct Project Work rejected by Customer or failing to conform to the requirements of the Project Shop Drawings, discovered before commencement of the Project Services Period or Interim Project Services Period for each Project Facility for each Phase, as applicable, whether or not fabricated, installed or completed. Costs of correcting such rejected Project Work, including additional testing and inspections, the cost of uncovering and replacement, and compensation for any design consultant employed by Customer whose expenses and compensation were made necessary thereby, shall be at Provider’s expense. For the avoidance of doubt, the determinations of Customer in respect of the need for any such work shall be subject to dispute by Provider in accordance with Schedule 5 [Dispute Resolution Procedure].

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Article 20
Acceptance of Nonconforming Work

 

20.1If Customer elects in its discretion to accept Project Work that is not in accordance with the requirements of the Project Shop Drawings approved by Customer, Customer may do so instead of requiring its removal and correction, in which case Customer shall issue a Change Order or Change Directive, as the case may be, with an appropriate and equitable adjustment to the Project Work. Such adjustment shall be effected whether or not final payment has been made. For the avoidance of doubt, the determinations of Customer in respect of the need for any adjustment and the quantum of any such adjustment shall be subject to dispute by Provider in accordance with Schedule 5 [Dispute Resolution Procedure].

 

Article 21
Tests and Inspections

 

21.1Tests, inspections and approvals of portions of the Project Work shall be made as required by the Design Documentation and by Applicable Law. Unless otherwise provided, Customer shall make arrangements for all third party tests, inspections and approvals with an independent testing laboratory or entity acceptable to Provider acting reasonably, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals except for the costs of Provider. Customer shall give Provider reasonable prior written notice of when and where tests and inspections are to be made so that Provider may be present for such procedures. Tests, inspections or approvals that do not become requirements until after the Effective Date shall be deemed to have resulted from a Change in Law. For clarity, Provider shall bear the cost of all third party tests, inspections or approvals which are required to be performed in conjunction with the permits issued in respect of the Project Work..

 

21.2If such procedures for testing, inspection or approval under Sections 21.1 hereof reveal failure of the portions of the Project Work to comply with requirements established by the Design Documentation, all costs made necessary by such failure shall be at Provider’s expense.

 

21.3Subject to Section 3.1(e) [Permits] of the main body of this TAAS Agreement, required certificates of testing, inspection or approval shall, unless otherwise required by the Design Documentation, be secured by Provider and promptly delivered to Customer.

 

21.4If Customer is to observe tests, inspections or approvals required by the Design Documentation, Customer will do so promptly and, where practicable, at the normal place of testing.

 

21.5Tests or inspections conducted pursuant to the Design Documentation shall be made promptly to avoid unreasonable delay in the Project Work.

 

Article 22
WARRANTIES

 

22.1Provider shall provide in respect of the Project Work, the general warranties contemplated in the AIA Document together with the extended warranties set forth in Attachment 5.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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ATTACHMENT 1A
CONSTRUCTION PAYMENTS – PHASE 2

 

[Redacted]

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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ATTACHMENT 1B
CONSTRUCTION PAYMENTS – PHASE 3

 

[Redacted]

  

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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ATTACHMENT 1c
progress payment provisions

 

1.1 Payment Schedule

 

A Payment Schedule for each of Phase 2 and Phase 3 allocating the entire Construction Price for the respective Phase to the various portions of the Project Work shall be prepared and agreed by the Provider and Customer prior to the commencement of the Project Work for such Phase. The Provider shall amend the Payment Schedule from time to time, supported by such data to substantiate its accuracy as the Customer may require, such amendment to be agreed by the parties, acting reasonably. The Payment Schedule for each Phase, shall be used as a basis for reviewing the Provider’s Applications for Payment.

 

1.2 Applications for Payment

 

1.2.1 Provider shall submit to Customer by the 25th day of each month, a draft (pencil copy) of the Application for Payment and by no later than the 1st day of the following month Provider shall submit to Customer (or any construction manager appointed on behalf of Customer) an itemized Application for Payment for completed portions of the Project Work. The application shall be supported by data substantiating Provider’s right to payment as Customer may require, such as detailed back-up for Allowable Costs, line item break-out of any Subcontractor costs provided by the detailed back-up from the Subcontractor’s Application for Payment as well as conditional waivers for payments to be made (and the following month the unconditional waivers for payments made the previous month), together with copies of requisitions from consultants, Subcontractors, and material suppliers, and the Application for Payment shall reflect retainage as required.

 

1.2.1.1 Applications for Payment may include requests for payment on account of Allowable Costs and the Provider’s Fee, as well as Changes that have been properly authorized in accordance with the Agreement, or by interim determinations of Customer, but not yet properly authorized.

 

1.2.1.2 Applications for Payment shall not include requests for payment for portions of the Project Work for which Provider does not intend to pay the consultants, Subcontractors, material suppliers, or other persons or entities providing services or work for Provider, unless such Project Work has been performed by others whom Provider intends to pay.

 

1.2.2 Unless otherwise provided in the Agreement, payments shall be made for services provided as well as materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Project Work and which constitute Allowable Costs. If approved in advance by Customer, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing and which constitute Allowable Costs. Payment for materials and equipment stored on or off the Premises shall be conditioned upon compliance by Provider with procedures satisfactory to Customer to establish the Customer’s title to such materials and equipment or otherwise protect Customer’s interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site.

 

1.2.3 Provider warrants that title to all Project Work covered by an Application for Payment will pass to Customer no later than the time of payment. Provider further warrants that, upon submittal of an Application for Payment, all Project Work for which Certificates for Payment have been previously issued and payments received from Customer shall, to the best of Provider’s knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of Provider, consultants, Subcontractors, material suppliers, or other persons or entities entitled to make a claim by reason of having provided labor, materials and equipment relating to the Project Work.

 

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ALL RIGHTS RESERVED.

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1.3 Certificates for Payment

 

The Customer shall, within seven (7) days after receipt of the Provider’s Application for Payment, issue to Provider a Certificate for Payment.

 

1.4 Decisions to Withhold Certification

 

1.4.1 Customer may withhold a Certificate for Payment in whole or in part to the extent reasonably necessary to protect Customer due to Customer’s determination that the Project Work has not progressed to the point indicated in Provider’s Application for Payment, or the quality of the Project Work is not in accordance with the Design Documentation. If Customer is unable to certify payment in the amount of the Application for Payment, Customer will notify Provider. If Provider and Customer cannot agree on a revised amount, Customer will promptly issue a Certificate for Payment for the amount that Customer deems to be due and owing to Provider. Customer may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued to such extent as may be necessary to protect Customer from loss for which Provider is responsible because of:

 

.1defective Project Work, including design and construction, not remedied;

 

.2third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to Customer is provided by Provider;

 

.3failure of Provider to make payments properly to the consultants, Subcontractors or others, for services, labor, materials or equipment;

 

.4damage to Customer or a separate contractor;

 

1.4.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld.

 

1.5 Progress Payments

 

1.5.1 After Customer has issued a Certificate for Payment, Customer shall, subject to Section 1.7 of this Attachment 1C, make payment to Provider within 10 days of receipt of funds from Lender but in no event later than 45 days following the issuance of the Provider’s Application for Payment to the Customer or to any construction manager on behalf of the Customer.

 

1.5.2 Provider shall pay each consultant, Subcontractor, and other person or entity providing services or work for Provider no later than the time period required by Applicable Law, but in no event more than ten (10) days after receipt of payment from Customer the amount to which the consultant, Subcontractor, and other person or entity providing services or work for Provider is entitled, reflecting percentages actually retained from payments to Provider on account of the portion of the Project Work performed by the consultant, Subcontractor, or other person or entity. Provider shall, by appropriate agreement with each consultant, Subcontractor, and other person or entity providing services or work for Provider, require each consultant, Subcontractor, and other person or entity providing services or work for Provider to make payments to subconsultants and subcontractors in a similar manner.

 

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ALL RIGHTS RESERVED.

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1.5.3 Provider will, on request and if practicable, furnish to a consultant, Subcontractor, or other person or entity providing services or work for Provider, information regarding percentages of completion or amounts applied for by Provider and action taken thereon by Customer on account of portions of the Project Work done by such consultant, Subcontractor or other person or entity providing services or work for Provider.

 

1.5.4 Customer has the right to request written evidence from Provider that Provider has properly paid the consultants, Subcontractors, or other person or entity providing services or work for Provider, amounts paid by Customer to Provider for the Project Work. If Provider fails to furnish such evidence within fifteen (15) days, Customer shall have the right to contact the consultants, and Subcontractors to ascertain whether they have been properly paid. Customer shall have no obligation to pay or to see to the payment of money to a consultant or Subcontractor, except as may otherwise be required by Applicable Law.

 

1.5.5 Provider payments to material and equipment suppliers shall be treated in a manner similar to that provided in Sections 1.5.2, 1.5.3 and 1.5.4.

 

1.5.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by Customer shall not constitute acceptance of Project Work not in accordance with the Agreement.

 

1.6 Failure of Payment

 

If Customer does not issue a Certificate for Payment, through no fault of Provider, within the time required hereunder, then Provider may, upon 30 additional days’ written notice to Customer, stop the Project Work until payment of the amount owing has been received. The time periods for performance of the Project Work shall be extended appropriately and the GMP for the applicable Phase shall be increased by the amount of Provider’s reasonable costs of shut-down, delay and start-up, plus interest as provided for in the Design Documentation.

 

1.7 Lien Indemnification.

 

Should any Subcontractor or any other person acting through or under Provider or any subcontractor file a lien or other encumbrance against all or any portion of the Project Work, the Premises or the Project, Provider shall, at its sole cost and expense, remove and discharge, by payment, bond or otherwise, that lien or encumbrance within ten (10) business days of the filing of that lien or encumbrance.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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ATTACHMENT 2A
CUSTOMER SCHEDULE PHASE 2

 

 

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ALL RIGHTS RESERVED.

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ATTACHMENT 2B
CUSTOMER SCHEDULE PHASE 3

 

Phase 3 detailed construction schedule is yet to be developed. Phase 3 Project Work is planned to begin in 2024 and end in 2025. Detailed schedule to be provided at least 6 months prior to Project Work starting on Phase III.

 

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ALL RIGHTS RESERVED.

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ATTACHMENT 3A
DESIGN DOCUMENTATION PHASE 2

 

All drawings, plans and specifications provided by Customer to Provider as of the date of this Agreement.

 

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ALL RIGHTS RESERVED.

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ATTACHMENT 3B
DESIGN DOCUMENTATION PHASE 3

 

To be added to Agreement by Change Order once such Design Documentation are prepared.

 

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ALL RIGHTS RESERVED.

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ATTACHMENT 4
MODIFIED AIA DOCUMENT A201-2007

 

See Attached

 

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ATTACHMENT 5
EXTENDED WARRANTIES

 

All manufacturer warranties which are in excess of Provider’s warranties under this Agreement.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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Schedule 11

 

Design Assist Services Agreement

 

See Attached

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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DESIGN ASSIST SERVICES AGREEMENT

 

THIS DESIGN ASSIST SERVICES AGREEMENT (“Agreement”) is dated as of ___________, 2016 (the “Effective Date”) by and between HOF VILLAGE, LLC, a Delaware limited liability company ("HOFV"), and JOHNSON CONTROLS, INC., a Wisconsin corporation (“JCI”, and together with HOFV, sometimes collectively referred to as the “Parties”).

 

RECITALS

 

WHEREAS, HOFV owns, directly or indirectly, a controlling ownership interest in the “HOF Village Complex”, which is a commercial, educational, retail and recreational complex being developed by, or on behalf of, HOFV and anchored by The Tom Benson Hall of Fame Stadium (the “Stadium”) and the Pro Football Hall of Fame (the “HOF Facility”) (hereinafter, sometimes referred to as the “Project”);

 

WHEREAS, the Project is comprised of several aspects, including but not limited to: (i) extensive redevelopment of, and improvements to, the Stadium, (ii) construction of numerous turf playing fields and related improvements for youth sporting events, (iii) construction of a Hotel and Conference Center, (iv) construction of the Center For Excellence, (v) construction of the NFL Experience, (vi) construction of parking facilities, both structured and surface parking lots, and (vii) construction of other retail, entertainment, and residential improvements within the HOF Village Complex (each, a “Project Location”).

 

WHEREAS, in connection with the development of the HOF Village Complex, HOFV has engaged the following parties, each pursuant to separate written agreements containing the parties’ respective roles and responsibilities: (i) Welty Building Company, Ltd. (“Welty”) has been engaged to serve as Construction Manager for the HOF Village Complex; (ii) Technical Services (“TSAV”) has been engaged to serve as Construction Manager with respect to the technology, and other related systems for the Project; and (iii) HKS, Inc. (“HKS”) has been engaged as the lead architect for the Project;

 

WHEREAS, HOFV desires to engage JCI to provide design assistance and related services, with respect to the certain potential scopes of work relating to the technology and building systems aspects of the Project, as identified in more detail in Exhibit B attached hereto (such scopes of work shall be referred to herein as the “Building Systems”), pursuant to the terms herein;

 

WHEREAS, the Parties are simultaneously negotiating the terms of a Binding Short-Form Sponsorship and Naming Rights Agreement (“Sponsorship Agreement”) whereby HOFV will grant JCI certain naming and sponsorship rights with respect to the Project, as more fully described therein;

 

WHEREAS, upon execution of the Sponsorship Agreement, the Parties shall negotiate in good faith to enter into the Long From Agreement, as such term is defined in the Sponsorship Agreement, which Long Form Agreement would replace and supersede the Sponsorship Agreement. If any of the terms herein conflict with the terms of the Sponsorship Agreement, or the Long Form Agreement, the terms of the Sponsorship Agreement or Long Form Agreement, as applicable, shall control.

 

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ALL RIGHTS RESERVED.

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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Parties hereby covenant and agree as follows:

 

1. Term: This Agreement shall be effective as of the Effective Date and shall continue in effect until the earlier to occur of (i) JCI’s completion of the Services (as herein defined) contemplated herein, or (ii) the termination of this Agreement pursuant to the terms herein (the “Term”). If one or more subcontracts between either Welty or TSAV, on one hand, and JCI, on the other hand, are executed whereby JCI is engaged to provide work on the Project relating to the Building Systems (such subcontract to be referred to herein as a “JCI Subcontract”), then in any such event, the terms and conditions of said JCI Subcontract shall govern and control over this Agreement with respect to the scopes of work and Project Location (as herein defined) contemplated in said JCI Subcontract(s).

 

2. Services.

 

a.During the Term, JCI shall provide to HOFV, or its designee, agent, representative, or contractor, the services set forth on Exhibit A attached hereto and incorporated herein (“Services”). JCI shall make itself available during such hours and at such locations as are reasonably necessary to complete the Services.

 

b.As directed by HOFV, JCI shall work directly with either TSAV or Welty, depending on the scope of work, to provide the Services contemplated herein. JCI shall report directly to TSAV or Welty, as applicable, regarding all design assist and planning review matters associated with the Building Systems and corresponding infrastructure aspects of the Project and shall do so within the timeframes and deadlines contained in the Project schedule.

 

c.JCI shall provide the Services in accordance with applicable standards of professional skill and care. When applicable law requires that the Services be performed by licensed professionals, JCI shall provide said Services (hereinafter “Professional Services”) through the performance of qualified persons or entities duly licensed to practice their professions. It is recognized, however, that, except for Professional Services, JCI’s review and assistance hereunder is made in JCI’s capacity as a contractor and not as a licensed design professional.

 

d.Except with HOFV’s prior knowledge and written consent, JCI shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise JCI’s professional judgment with respect to the Services being performed or the Project in general.

 

e.JCI shall be entitled to rely on the accuracy, timeliness and completeness of services and information furnished by HOFV, HKS, and their respective agents, representatives, and contractors. JCI shall provide written notice to HOFV within a reasonable time frame of JCI becoming aware of any errors, omissions or inconsistencies in such services or information.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

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3. Technology Contracting and Equipment.

 

a.With respect to the Building Systems, and subject to the terms and conditions set forth in this Agreement, HOFV hereby acknowledges and agrees that JCI shall implement and/or manage the implementation of such Building Systems, including the categories and scopes of work associated therewith to the extent such categories and scopes are included within the final design of the Project. In furtherance of such management and implementation services, HOFV agrees as follows:

 

i.In circumstances where JCI OEM products are appropriate and consistent with the final design of the Project, JCI shall self-perform (subject to HOFV’s approval, not to be unreasonably withheld, conditioned or delayed) said portions of the Building Systems scopes of work and related integration work, to provide a turn-key solution for such scopes, provided such categories and scopes are included within the final design of the Project. For purposes of clarity, the term “self-perform” shall mean JCI has the in-house capabilities to perform such work without subcontracting said work, or any portions thereof;

 

ii.If JCI desires to self-perform any of the Building Systems scopes of work, the Parties, along with TSAV and Welty, as applicable, shall work in good faith to execute JCI Subcontract(s) whereby the respective rights, duties and obligations of the parties shall be more fully defined. The Parties hereby acknowledge and agree that the JCI Subcontract(s) shall reflect the following: (i) the pricing for OEM products shall be fixed according to published MSRP pricing, plus a reduction of no less than [***] off the MSRP; (ii) the pricing for OEM services shall be set at JCI’s actual cost of installation, plus a fee of [***] of the actual installation cost, but excluding any other mark-up for profit, overhead expenses or general conditions. Notwithstanding the foregoing, in no event shall the cumulative costs of the products and services described in (i) and (ii) above exceed the approved GMP for the applicable Project Location.

 

b.If JCI desires to subcontract any of the Building Systems scopes of work, the Parties hereby acknowledge and agree that the JCI Subcontract(s) shall provide that JCI shall competitively bid the approved scopes of work to qualified subcontractors and provide recommendations to TSAV or Welty (according to impending delineations cited in Section 2(b) above) for award thereof. The JCI Subcontract(s) shall provide that JCI’s fee structure for subcontractor bid awards approved by HOFV shall be based on JCI’s “direct cost” (said direct cost shall be inclusive of any sub-subcontractor fees), plus a reasonable contingency that is approved by HOF, in its sole discretion and subject to HOFV’s control, for any unforeseen expenses, plus a fee equal to [***] of the GMP associated with the applicable Project Location (said fee shall be inclusive of JCI’s direct personnel, expenses, general conditions and insurance).

 

c.For Building Systems scopes where JCI desires to provide equipment only, such equipment shall be competitively bid to qualified vendors for award thereof and all such awards shall be approved by HOFV, in its sole discretion. JCI’s fee structure for vendor bids approved by HOFV shall be based on the direct cost of the materials, plus a fee equal to [***], plus a reasonable contingency that is approved by HOFV, in its sole discretion and subject to HOFV’s control, for any unforeseen conditions (collectively, the “Supplier Fee”). For clarity, the Supplier Fee shall not include any additional mark-ups for profit, overhead expenses, or general conditions.

 

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d.JCI shall participate in the development of Building Systems scopes where certain JCI OEM products and services are to be utilized. For purposes of clarity, some scopes described on Exhibit B may require that they are designed according to a HOFV designated budget. Should JCI desire to incorporate certain OEM products where costs exceed a HOFV designated budget, JCI may pay for said “upgrades” provided that they are approved in writing by HOFV. JCI funded upgrades shall not be eligible for an additional fee payable to JCI.

 

e.The terms and conditions associated with JCI’s performance of the work described in Sections 3(a)(i), 3(a)(ii), and Sections 3(b) – (d), including the binding terms regarding pricing, insurance, expenses, milestones and timeliness for completion, etc., shall be further defined in a JCI Subcontract executed between TSAV or Welty, as construction manager, and JCI, as subcontractor, at the appropriate time. Such JCI Subcontract(s) shall also further define the parties’ rights and obligations regarding the topics provided in Exhibit C attached hereto. The Parties agree to use a standard AIA A401-2007 Contractor/Subcontractor Agreement as the starting point of the JCI Subcontract, subject to such modifications and revisions as mutually agreed upon by the applicable parties.

 

f.Subject to the terms set forth in this Agreement, in the event that the aggregate subcontract value of work awarded to JCI prior to December 31, 2019 (the “Expiration Date”) pursuant to one or more JCI Subcontract(s) is less than [***] (the “Subcontract Target Amount”), then HOFV shall, within 60 days after the Expiration Date, pay to JCI the amount of Liquidated Damages (as defined herein) as follows.  As used herein, the term “Liquidated Damages” shall mean or refer to an amount equal to (i) [***] of (ii) the amount by which the aggregate subcontract value of work awarded to JCI pursuant to JCI Subcontract(s) prior to the Expiration Date is less than the Subcontract Target Amount. It is acknowledged that, except as provided in Section 3(j) herein, the failure by HOFV to award JCI an aggregate subcontract value of work prior to the Expiration Date equal to the Subcontract Target Amount will cause JCI to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by JCI of actual damages, and that the Liquidated Damages identified herein represent a fair, reasonable and appropriate estimate thereof. Such Liquidated Damages are intended to represent estimated actual damages and are not intended as a penalty. Notwithstanding the foregoing, in no event shall Liquidated Damages under this Section 3(f) exceed [***].  The Liquidated Damages shall be offset by an amount equal to (y) [***] of (z) any revenue received by JCI, or its affiliates or subsidiaries, through business dealings facilitated by HOFV or any of its affiliates (including without limitation Industrial Realty Group, LLC) during the period beginning on the Effective Date through the Expiration Date. The Parties shall work in good faith and reasonably cooperate with each other to determine any such offset amounts, including but not limited to, review by HOFV of JCI’s books and records with respect to such business dealings.

 

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ALL RIGHTS RESERVED.

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g.The Parties acknowledge and agree that if the aggregate subcontract value of work awarded to JCI prior to the Expiration Date pursuant to one or more JCI Subcontracts exceeds the Subcontract Target Amount, then JCI will receive substantial economic gain and HOFV’s Project costs will significantly increase. Accordingly, in the event that the aggregate subcontract value of work awarded to JCI prior to the Expiration Date pursuant to one or more JCI Subcontracts exceeds [***] (the “Subcontract Ceiling”), then JCI’s fee, for all such work between the Subcontract Ceiling and the Fee Threshold Amount (as defined below), shall be equal to [***] (as compared to JCI’s aforementioned fee of [***]). Aside from said reduced fee, the other elements of JCI’s fee structure, as more fully described in Section 3, would remain applicable under these circumstances.

 

h.In the event the aggregate subcontract value of work awarded to JCI prior to the Expiration Date pursuant to one or more JCI Subcontracts is equal to or greater than [***] (“Fee Threshold Amount”), then the Parties shall negotiate in good faith to determine the appropriate fee percentage payable to JCI in connection with any such work over the Fee Threshold Amount; provided, however, that such fee shall not be less than [***] (“Fee Floor”) unless otherwise mutually agreed upon in writing by the Parties. Notwithstanding anything herein to the contrary, but subject to the Fee Floor in the preceding sentence, HOFV shall not be obligated in any way to award any work to JCI over and above the Fee Threshold Amount unless and until the Parties mutually agree upon the fee percentage applicable to said work. The Parties acknowledge and agree that JCI will, through its supply chain management and other efficiencies unique to JCI, use its best efforts to reduce Project costs and that any corresponding value related to such efforts shall factor into the negotiations for JCI’s fee percentage for work over and above the Fee Threshold Amount.

 

i.Notwithstanding the foregoing, (i) in the event general economic conditions decline such that the active development of the Project must be suspended, terminated or reduced in scope temporarily or permanently as determined by HOFV in the exercise of its reasonable discretion, then HOFV shall have the right to extend the Expiration Date from time to time until general economic conditions recover and the Project is again in the active phase of development; and (ii) at all times JCI shall ensure that the costs and prices charged to TASV or Welty or any other counterpart to a JCI Subcontract are competitive in the marketplace, and HOFV shall have no obligation for payment of Liquidated Damages to the extent it arises out of, is connected with, or results from rejection of a JCI Subcontract which proposes costs and prices which are not competitive in the marketplace. Notwithstanding the foregoing, the maximum extension of the Expiration Date as provided above shall be Twenty-Four (24) months.

 

j.The Parties acknowledge and agree that the estimated top end budget for the costs related to the Building Systems scopes of work contemplated in this Agreement is [***] (“Top End Budget”). Notwithstanding anything herein to the contrary, HOFV shall not be obligated in any way to engage JCI, whether through self-performance, as a supplier, subcontractor or otherwise, for any work related to the Project where the aggregate subcontract value of work awarded to JCI hereunder exceeds the Top End Budget.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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4. Relationship of the Parties. JCI accepts the relationship of trust and confidence established by this Agreement and covenants with HOFV to cooperate with Welty, TSAV, and HKS, as the case may be, and to exercise JCI’s skill and judgment in furthering the interests of HOFV; to efficiently furnish the Services; to furnish at all times an adequate supply of personnel and materials; and to perform the Services in an expeditious and economical manner consistent with HOFV’s interests.

 

5. Notices and Compliance with Laws. JCI shall comply with all applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities applicable to its performance under this Agreement, and with equal employment opportunity programs, and other programs as may be required by governmental and quasi-governmental authorities.

 

6. Confidentiality. The Parties’ acknowledge and agree that the terms of this Agreement shall be subject to the same confidentiality provisions as described in the Sponsorship Agreement, and the Parties agree to abide by such confidentiality provisions as if those provisions were fully restated herein.

 

7. Termination or Suspension of this Agreement. This Agreement may be terminated prior to the expiration of the Term only by written agreement of all Parties or as follows:

 

a.This Agreement may be terminated by JCI immediately upon written notice to HOFV in the event of fraud or gross or willful misconduct by HOFV and this Agreement may be terminated by HOFV immediately upon written notice to JCI in the event of fraud or gross or willful misconduct by JCI.

 

b.This Agreement may be terminated by the JCI on ten (10) days’ written notice to HOFV if HOFV (a) materially breaches this Agreement and fails to cure such breach within sixty (60) days of notice of such breach, or (b) makes a general assignment for the benefit of creditors or is insolvent, bankrupt, or the subject of receivership.

 

c.This Agreement may be terminated by HOFV on ten (10) days’ written notice to JCI if JCI (a) materially breaches this Agreement and fails to cure such breach within sixty (60) days of notice of such breach, or (b) makes a general assignment for the benefit of creditors or is insolvent, bankrupt, or the subject of receivership.

 

d.Notwithstanding anything herein to the contrary, if the Long Form Agreement is not executed on or before November 15, 2016, or such other date as may be mutually agreed between the Parties, then either party may terminate this Agreement upon ten (10) days’ written notice to the other.

 

8. Indemnification. JCI agrees to indemnify and hold HOFV, its employees, agents, and representatives, including but not limited to Welty, TSAV and HKS, harmless from any damage, liability or cost (including liability to third parties and reasonable attorney’s fees) to the extent caused by JCI’s negligent acts, errors or omissions in the performance of the Services under this Agreement. HOFV agrees to indemnify and hold JCI, its employees, agents and representatives harmless from any damage, liability or cost (including liability to third parties and reasonable attorney’s fees) to the extent caused by HOFV’s negligent acts, errors or omissions in the performance or receipt of the Services under this Agreement.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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9. Dispute Resolution.

 

a.Mediation. Any claim, dispute or other matter in question arising out of or related to this Agreement (“Claims”) shall be subject to mediation as a condition precedent to the institution of legal, equitable or other proceedings by either party. If such matter relates to or is the subject of a lien arising out of JCI’s services, JCI may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to conclusion of mediation.

 

i.The Parties shall endeavor to resolve claims, disputes and other matters in question between them by mediation, which, unless the Parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation. Request for mediation shall be filed in writing with the other Party to this Agreement and with the American Arbitration Association. The request may be made concurrently with the institution of legal, equitable or other proceedings but, in such event, mediation shall proceed in advance of such proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.

 

ii.The Parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.

 

b.Litigation. If the parties do not resolve their dispute through mediation pursuant to Section 9(a), the method of binding dispute resolution shall be litigation in a court of competent jurisdiction.

 

c.Waiver of Consequential Damages. HOFV and JCI each waive Claims against one another for consequential damages arising out of or relating to this Agreement, including without limitation expenses relating to rental expenses; losses of use, income, profit, financing, business and reputation; and for loss of management or employee productivity.

 

10. Insurance. If JCI performs any work as a subcontractor for the Project, JCI’s corresponding insurance obligations shall be as set forth in the JCI Subcontract. The JCI Subcontract shall include a provision whereby upon HOFV’s request, JCI shall enroll in the Owner’s Controlled Insurance Program for the Project and the Construction Manager’s Subcontractor Default Insurance Program. At all times during the Term of this Agreement, and in connection with the Services being provided by JCI hereunder, JCI shall maintain the following insurance policies.

 

a.General Liability – $1,000,000 per occurrence, $5,000,000 excess. JCI shall provide an endorsement to their policy naming HOFV, and its designees, as additional insureds. The additional insured endorsement(s) shall be at least as broad as the CB 2010 04/13 and the CG2037 04/13 or their equivalent.

 

b.Automobile Liability – $1,000,000 per occurrence, $5,000,000 excess.

 

c.Workers’ Compensation – $500,000 or as required by Ohio law as may be applicable. A waiver of subrogation endorsement shall be required, issued in favor of HOFV.

 

d.Professional Liability – $5,000,000 per claim, $7,000,000 annual aggregate. Said “claims-made” coverage shall be capable of being renewed for a period of five (5) years.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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11. Instruments of Service. Drawings, specifications, and other documents, including those in electronic form, prepared by JCI and its sub-consultants are Instruments of Service for use solely with respect to the Project. JCI and its sub-consultants shall be deemed the authors and owners of their respective Instruments of Service and shall retain all common law, statutory and other reserved rights, including copyrights. Upon execution of this Agreement, JCI grants to HOFV, its agents, representatives and contractors (including but not limited to Welty, TSAV, and HKS), a non-exclusive license to reproduce and use JCI's Instruments of Service solely in connection with the Project, including the Project's further development by HOFV and others retained by HOFV for such purposes, including Welty, TSAV, and HKS. Such license shall also extend to any other persons or entities retained by HOFV for such purposes. JCI shall obtain similar non-exclusive licenses from its sub-consultants consistent with this Agreement. No other license or right shall be deemed granted or implied under this Agreement. HOFV shall not otherwise assign or transfer any license herein to another party without the prior written agreement of JCI. Any unauthorized reproduction or use of the Instruments of Service by HOFV or others shall be at HOFV's sole risk and expense and without liability to JCI and its sub-consultants.

 

12. Excluded Sponsors. The Sponsorship Agreement contains a list of excluded sponsors for the Project (the term “Excluded Sponsors” is more specifically defined in the Sponsorship Agreement and the use of that phrase herein shall have the same meaning ascribed to it in the Sponsorship Agreement and/or Long Form Agreement, as applicable). It is understood between the Parties that some products and services of Excluded Sponsors may already be integrated into the infrastructure of the HOF Facility and/or Stadium and that JCI has the opportunity to replace the Excluded Sponsor’s existing infrastructure; the cost of the replacement (including the cost of any lost sponsorship fees) would be borne by JCI.

 

13. Miscellaneous.

 

a.Governing Law. This Agreement shall be governed by the laws of the State of Ohio.

 

b.Entire Agreement; Sponsorship Agreement. With the exception of the Sponsorship Agreement, and any long form sponsorship agreement of like tenor, this Agreement replaces any and all other agreements in effect on the Effective Date, whether written or oral and is the sole agreement between the Parties regarding the Services. In the event any of the terms or provisions of this Agreement conflict with the Sponsorship Agreement, the terms of the Sponsorship Agreement shall govern and control.

 

c.Severability. All of the covenants and provisions herein contained are severable; in the event that any of said covenants or provisions shall be held invalid by any court of competent jurisdiction; this Agreement shall be construed as if such invalid covenant or provision were not herein contained.

 

d.Counterparts. This Agreement may be executed in two or more counterparts, each of which should be an original but all of which together shall constitute a single agreement.

 

e.Binding Agreement. HOFV and JCI, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither HOFV, nor JCI shall assign this Agreement without the written consent of the other, not to be unreasonably withheld, conditioned or delayed; provided, however, HOFV may assign this Agreement to a lender providing financing for the Project. In such event, the lender shall assume HOFV’s rights and obligations under this Agreement, and JCI shall execute all reasonable consents facilitating such assignment, conditioned upon JCI’s receipt of all amounts due, if any, as provided in this Agreement.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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f.Notices. All notices arising out of, or from, provisions of this Agreement shall be in writing and delivered to the parties at the addresses below, either by certified mail, FedEx or other overnight delivery service. All notices sent via the U.S. Postal Service are deemed effective on the date of postmark. Notices mailed through another carrier such as FedEx or UPS shall be effective upon receipt.

 

i.If to HOFV: c/o IRG Realty Advisors, LLC

4020 Kinross Lakes Parkway, Suite 200

Richfield, Ohio 44286

Attn: Carol Smith

 

ii.If to JCI: Johnson Controls

9797 Midwest Ave.

Cleveland, OH 44125

Attn: Todd Grabowski, Branch General Manager

 

g.Recitals. The Recitals stated above are hereby incorporated by reference into this Agreement.

 

[Signature page follows]

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

- 200 -

 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of Effective Date.

 

HOFV:

HOF VILLAGE, LLC,

a Delaware limited liability company

 

By: IRG Canton Village Manager, LLC,  
  a Delaware limited liability company, its Manager
     
By:      
Name:     
Title:    
     
JCI:  
JOHNSON CONTROLS, INC., a Wisconsin corporation
     
By:      
Name:    
Title:    

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

- 201 -

 

Exhibit A

 

Design Assist and Related Services to be performed by JCI

 

·JCI shall perform the following services, and/or advise HOFV, and its designees, agents, representatives, and contractors, as directed by HOFV from time to time, regarding the following:

 

oAssist and advise relating to the overall scope, approach, costs, efficiency analysis, construction and performance of the Project’s Building Systems scope(s) of work, based on the conceptual budget target of [***] in construction costs for such Building Systems, plus approved ongoing maintenance and support services during the term of the Sponsorship Agreement.

 

oProvide detailed plan review for the Project, including but not limited to:

 

§working closely with the TSAV and Welty to review applicable Building Systems options for the Project, which could enhance the overall business performance of the Project and its end users and consumers.

 

§Providing insight, benchmarking, and access (where available) to other similar facilities for illustrating best practices.

 

oProvide design assistance for the Project’s Building Systems, including but not limited to:

 

§Overlay construction documents to identify design duplications in system infrastructures.

 

§Identify infrastructure efficiencies by the use of a single infrastructure/vendor doing multiple tasks in lieu of multiple infrastructures/subcontractors doing single tasks where appropriate.

 

§Conduct constructability reviews of the overall technology systems in unison with Welty’s Project Schedule (Closet Details, Schedules, Construction details).

 

§Coordinate with HOFV provided equipment

 

§Perform cost vs. life cycle cost reviews based on take-offs from the preliminary plans and specifications (provided by others) as each Project asset is programmed or designed. The cost reviews will be comprised of a base cost (minimum requirements for an operational system that meets the defined criteria) and an optimum cost (requirements for an operations system that exceeds the defined criteria, but increases operational efficiencies) for each technology system in scope.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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§Assistance with design management and coordination between applicable technology systems, designers, construction trades and TSAV and Welty.

 

§Develop a comprehensive technology procurement, installation, and implementation schedule based on the project team’s schedule.

 

§Prepare a master commissioning schedule to coordinate and facilitate all commissioning programs for applicable technology systems.

 

oProvide assistance and consultation regarding Building Systems related construction services, including but not limited to the following:

 

§Outlining the Construction Expectations and Deliverables for all approved subcontracts.

 

§If requested by HOFV, serve as the single point of responsibility for procurement, installation, and management of technology systems included in the scope of work.

 

§Continuously communicate and coordinate with TSAV, Welty and HOFV, and their respective team members, regarding all relevant technology and building systems design and construction issues.

 

§Attend Construction Coordination meetings representing all technology systems under scope.

 

§Within a 60 days after HKS’ issuance of the Construction Drawings for an applicable Project Location, develop a final GMP in conjunction with TSAV based on actual cost from selected technology vendors (such GMP pricing shall be good for a period of 90 days from issuance).

 

§Except for scopes of work where JCI will be competitively bidding and/or self-performing:

 

·Assist TSAV and Welty in development and administration of Request for Proposals (RFP) for all technology system bid packages that makeup the overall technology system outcome under scope

 

·Qualify and review prospective bidders with TSAV and Welty

 

·Assist in preparation of instructions to bidders, identifying bid dates, quantities of proposals, contact points, and other bidding information

 

·Assist in preparation of Project Manuals and Project General Conditions to accompany system specific RFPs, including short and long-term service agreements to ensure fair market pricing for the life of the system.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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·Participate in hosting of onsite pre-bid meetings for each system bid package release in scope, including onsite walk-thrus

 

·Assist in collection and facilitation of responses to bidder’s Request for Information (RFI) in conjunction with TSAV

 

·Assist in conduction of interviews with TSAV, Welty and others designated by HOFV for the awarding of all technology systems in scope

 

·Assist in conduction of interviews and "No Gaps" meetings to verify completeness of scope and introduction of project delivery team

 

·Announce and document contract awards

 

§Host construction kick off meeting to establish project implementation team, lines of communication, specific meeting attendance, and project team reporting lines.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

- 204 -

 

Exhibit B

 

Product Categories

 

1.Fire Suppression (Division 21)
a.Operation and Maintenance of Fire Suppression
b.21 05 05 Selective Demolition for Fire Suppression
c.21 05 13 Common Motor Reg. for Fire Suppression Equipment
d.21 05 16 Expansion Fittings & Loops for Fire-Suppression Piping
e.21 06 17 Sleeves & Sleeve Seals for Fire-Suppression Piping
f.21 05 19 Meters & Gages for Fire- Suppression System
g.21 05 23 General Duty Valves for Water based Fire-Suppression Pipe
h.21 05 29 Hangers & Supports for Fire-Suppression P & E
i.Seismic Controls for Fire-Suppression Piping & Equipment
j.21 05 53 Identification for Fire Suppression Piping & Equipment
k.Schedule for Fire Suppression
l.Commissioning of Fire Suppression
m.Instrumentation & Control for Fire-Suppression Systems
n.Fire Suppression Standpipes
o.Fire- Suppression Sprinkler System
p.Fire-Suppression Pressure Maintenance Pumps
q.Fire- Extinguishing Systems
r.Carbon-Dioxide Fire-Extinguishing Systems
s.1Clean-Agent Fire-Extinguishing Systems
t.Wet-Chemical Fire-Extinguishing Systems
u.Dry-Chemical Fire-Extinguishing Systems
v.Centrifugal Fire Pumps
w.Vertical-Turbine Fire Pumps
x.Positive-Displacement Fire Pumps
y.Fire Pump Accessories

 

2.Plumbing Systems (Division 22) Subsystems
a.Division 22 05 19 Meters and Gages for Plumbing Piping
b.Division 22 09 00 Instrumentation & Control for Plumbing
c.Division 22 51 23 Swimming Pool Equipment Controls
d.Division 22 52 23 Fountain Equipment Controls

 

3.Heating, Ventilating and Air Conditioning (Division 23) Subsystems
a.Metasys Building Automation
b.Air Handling Units
c.Chillers
d.Terminal Equipment (VAV, FCU, etc..)
e.Fans
f.Grills, Registers & Diffusers
g.Variable Refrigerant Flow
h.Chilled Beams
i.Underfloor air distribution systems
j.23 08 00 Commissioning of HVAC
k.23 09 00 Instrumentation and Control for HVAC Division
l.23 01 90 Diagnostic Systems for HVAC

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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4.Integrated Automation (Division 25)

 

5.Electrical (Division 26) Subsystems
a.Simplex Fire Alarm and Detection
b.Mass Notification
c.Distributed Energy Storage (DES)
d.Housekeeping Controls
e.Command/Control Room Infrastructure/Connectivity
f.Lighting Controls
g.Credentialing
h.Shades Controls
i.Parking/Valet Controls
j.26 05 19 Low-Voltage Electrical Power Conductors and Cables
k.26 05 23 Control-Voltage Electrical Power Cables
l.26 09 17 Programmable Controllers
m.26 09 19 Enclosed Contactors
n.26 09 23 Lighting Control Devices
o.26 09 43 Network Lighting Controls
p.26 09 43.13 Digital-Network Lighting Controls
q.26 09 43.16 Addressable Luminaire Lighting Controls
r.26 09 43.19 Wireless Network Lighting Controls
s.26 09 43.23 Relay-Based Lighting Controls
t.26 29 00 Low-Voltage Controllers
u.26 33 00 Battery Equipment

 

6.Communications (Division 27) Subsystems
a.Village Infrastructure/Connectivity to Support AV
b.Stadium and COP LED Displays and Scoreboards
c.Infrastructure to Support League Specialty Technology Requirements
d.Campus Radio and Repeater Systems
e.Infrastructure (Data/Voice/Video)
f.Wi-Fi (HD)
g.Data Center Infrastructure/Connectivity
h.DAS – Cell and Radio
i.RF/RTLS
j.Village specialty technology “FFE” Systems
i.IPTV Infrastructure/Connectivity
ii.Digital Signage Infrastructure/Connectivity
iii.Broadcast/Control Room Infrastructure/Connectivity
iv.PoS Infrastructure/Connectivity
v.Ticketing Infrastructure/Connectivity
vi.Exhibit Lighting Controls
vii.Bluetooth Beacon Technology
viii.Wayfinding Infrastructure/Connectivity
ix.Room Access
x.NOC Infrastructure/Connectivity
xi.Patient Wanders

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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k.27 10 00 Structured Cabling
l.27 42 13 Point of Sale Systems
m.27 42 16 Transportation Information Display Systems
n.27 42 19 Public Information Systems
o.27 53 16 Infrared and Radio Frequency Tracking Systems
p.27 53 19 Internal Cellular, Paging, and Antenna Systems

 

7.Electronic Safety and Security (Division 28) Subsystems
a.Village Security and Access Controls
b.Village Life Safety
c.28 00 00 Electronic Safety and Security
d.28 10 00 Access Control
e.28 20 00 Video Surveillance
f.28 30 00 Security Detection, Alarm, and Monitoring
g.28 40 00 Life Safety

 

8.Process Heating, Cooling and Drying Equipment (Division 42)

 

9.Water and Wastewater Equipment (Division 46)

 

10.Electrical Power Generation (Division 48) Subsystems
a.48 17 13 Electrical Power Generation Batteries
b.48 19 13 Electrical Power Generation Battery Charging Equipment
c.48 19 16 Electrical Power Generation Inverters
d.48 19 23 Electrical Power Generation Transformers
e.48 19 26 Electrical Power Generation Voltage Regulators
f.48 70 00 Electrical Power Generation Testing
g.48 71 00 Electrical Power Generation Test Equipment

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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PRODUCT CATEGORY EXCLUSIONS

 

The following sub-categories are excluded from the list of categories where JCI shall be entitled to manage, competitively bid or provide equipment, with respect to the Project:

 

§Tenant provided technologies in tenant spaces
§Village or Museum website and application(s)
§Medical systems
§Software systems outside of JCI’s OEM systems where specified
§Telecommunications/VOIP and directly related systems
§Low Voltage pathways, conduits, cable supports, innerducts, and line voltage power systems.
§Other technology sub-categories that are not a core business to JCI
§Categories not listed in the preceding section

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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Exhibit C

 

Additional Terms and Conditions to Be Governed in the JCI Subcontract(s)

 

JCI’s obligations thereunder may include:

 

oConstruction:

 

§Facilitate weekly and monthly construction meetings that must be attended by the technology vendors & subcontractors

 

§Perform work designated as approved for self-performance.

 

§Coordinate storage, onsite trailer, and other pre-construction coordination items

 

§Identify bonded warehouse and delivery locations onsite

 

§Define document control practices and expectations (submittal, O&M, As-built, & Commissioning)

 

§Verify power and mechanical infrastructures support technology systems and infrastructures; "Post-Award". Make solution recommendations for revisions to Technology systems.

 

§Assist in management of construction RFI’s through-out construction for all technology systems.

 

§Assist in management of contingency spending and change orders for all technology systems.

 

§Provide TSAV and Welty a monthly report tracking JCI’s identified savings, alternative savings, and project cost to date.

 

§Prepare and execute pre and final commissioning.

 

§Assist in coordination of all owner training sessions, recording of training as requested.

 

§Prepare a composite as-built and O&M package for all technology systems in JCI’s scope of work.

 

oPost-Construction

 

§Value Reporting – a customer satisfaction report based on key performance indicators (KPI) giving feedback to JCI on meeting the outcome expectations of VREA. These KPI’s were developed during the ideation process during the preconstruction phase of services. This feedback will allow JCI to ensure Owner’s outcomes have been meet or exceeded.

 

§Provide a single point of contact through-out warranty for all technology systems in scope.

 

§Prepare post-construction service agreements with technology vendors and subcontractors in scope. Review and make recommendations to Owner based on the information/costing gathered during the bid process and need of Owner.

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 11 [Design Assist Services Agreement]

EXECUTION VERSION

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Schedule 12

 

Project Labor Agreement

 

PARTIES AGREE THAT ONCE PROJECT LABOR AGREEMENT FINALIZED AND EXECUTED IT SHALL BE ADDED TO THE AGREEMENT BY CHANGE ORDER

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 12 [Project Labor Agreement]

EXECUTION VERSION

- 210 -

 

SCHEDULE 13

 

PLANNED SERVICES AGREEMENT

 

[Redacted]

 

 

 

 

 

 

 

 

 

 

 

 

PROPRIETARY AND CONFIDENTIAL.

ALL RIGHTS RESERVED.

TAAS – Schedule 13 [Planned Services Agreement]

EXECUTION VERSION