EX-10.5 3 hubs-ex105_342.htm EX-10.5 hubs-ex105_342.htm

Exhibit 10.5

Dated 12 day of November 2018

 

(1) Landlord:

 

HIBERNIA REIT PUBLIC LIMITED COMPANY

 

 

 

(2) Tenant:

 

HUBSPOT IRELAND LIMITED

 

 

 

(3) Guarantor:

 

HUBSPOT, INC.

 

 

 

AGREEMENT FOR LEASE

 

of

 

 

1 - 6 Sir John Rogerson’s Quay,

Dublin 2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HI116/071/AC#29168263.13


 

THIS AGREEMENT made the 12 day of November 2018

BETWEEN

(1)

HIBERNIA REIT PUBLIC LIMITED COMPANY (Company No. 531267) having its registered office at South Dock House, Hanover Quay Dublin D02 XW94 (hereinafter called the “Landlord” which expression shall where the context so admits or requires include its successors and assigns);

(2)

HUBSPOT IRELAND LIMITED (Company No. 515723) having its registered office at  One Dockland Central, Guild Street, Dublin 1 (hereinafter called the “Tenant” which expression shall where the context so admits or requires include its successors and permitted assigns); and

(3)

HUBSPOT, INC., having its registered office at (hereinafter called the “Guarantor” which expression shall where the context so admits or requires include its permitted successors and permitted assigns).

WHEREAS:

A.

The Landlord is in the course of procuring the design, construction and development of the Estate.

B.

Subject to the terms hereinafter appearing the Landlord shall grant and the Tenant shall take the Lease of the Demised Premises subject to the terms and conditions hereinafter appearing.

C.

The Demised Premises forms part of the Building, which is located within the Estate.

NOW IT IS HEREBY AGREED as follows:-

1.

DEFINITIONS

In this Agreement the following expressions shall be deemed to have the following meanings:-

 

1.1

“Ancillary Certificates” has the meaning ascribed to it in the BCR Code;

 

1.2

“Balconies” means the parts of the Building as are shown for the purposes of identification only coloured green on Plan Nos. 13, 14 and 15 attached hereto;

 

1.3

“Basement Storage Area” means that part of the Demised Premises located in the basement of the Building and allocated for use by the Tenant as a storage area shown for purposes of identification coloured light blue on Plan No. 4 attached hereto;

 

1.4

“BIM” means building information modelling (in accordance with the Construction Industry Council Building Information Model Protocol (first edition 2013));

 

1.5

“BCR Code” means the Code of Practice for Inspecting and Certifying Buildings and Works issued by the Minister for the Environment, Community and Local Government pursuant to Article 20G of the Building Control (Amendment) Regulations 2014;

 

1.6

“BER” means the building energy rating calculated and certified in accordance with the Building Control Legislation;

 

1.7

“Bicycle Area” means that part of the Demised Premises within the Basement shown coloured green on the Plan No. 5 attached hereto which the Tenant shall use for bicycle parking and for no other purpose;

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1.8

“Building” means the building located at 1 - 6 Sir John Rogerson’s Quay, Dublin 2 and more particularly outlined in red on Plan No. 2 attached hereto including the areas at basement level shown coloured in green on Plan No. 3 hereto and the brise soleil affixed to the external parts of the building shown coloured orange on Plan Nos. 16, 17, 18, 19 and 20 attached hereto and shall be deemed to include any extensions or alterations to or any reductions or variations of it now or in the future respectively made within the Term of the Lease;

 

1.9

“Building Contract” means the building contract entered into between the Landlord and the Contractor based on the RIAI standard form with amendments for the construction of the Building;

 

1.10

“Building Control Act” means the Building Control Acts, 1990 to 2014;

 

1.11

Building Control Authority” means a Local Authority to which Section 2 of the Building Control Act, 1990 applies;

 

1.12

“Building Control Legislation” means the Building Control Act and the Building Control Regulations;

 

1.13

“Building Control Regulations” means the Building Control Regulations 1997 to 2015 and any amendments thereto;

 

1.14

“Capital Contribution” means a contribution amounting to €29.27 per square foot of the Demised Premises following the measurement of same in accordance with Clause 7.1, which the Landlord shall pay to the Tenant in respect of the CAT A Works set out in Appendix 7 under the heading ‘1-3 and 6 SJRQ’ (the “1-3 and 6 CAT A Works”) and FOR THE AVOIDANCE OF DOUBT, the Capital Contribution shall be paid in stages by the Landlord to the Tenant upon receipt by the Landlord of a Tenant's Certificate in respect of each stage of the 1-3 and 6 CAT A Works in accordance with Clause 11.4;

 

1.15

“CAT A Works” means that part of the Tenant’s Works as more particularly detailed in Appendix 7 and which relate only to that part of the Demised Premises comprising 1 – 6 Sir John Rogerson’s Quay, Dublin 2;

 

1.16

“Certificate of Compliance on Completion” means a certificate of compliance in respect of the Landlord’s Works to be lodged with the Building Control Authority in accordance with the Building Control Legislation;

 

1.17

“Certificate of Practical Completion” means the certificate of the Landlord’s Architect that the Landlord’s Works have been practically completed in accordance with the Specification and the Building Contract;

 

1.18

“Closing Date” means the date that the Lease is granted and delivered by the Landlord in accordance with the provisions of this Agreement which date shall be the first Working Day after the later of either the date of Completion or the Target Date;

 

1.19

“Collateral Warranties” means the collateral warranties to be provided by the Contractor and the Design Team substantially in the forms annexed hereto at Appendix 1;

 

1.20

“Completion” means

 

(a)

the Certificate of Practical Completion has issued;

 

(b)

the relevant particulars of the Certificate of Compliance on Completion for the Landlord’s Works have been included on the register maintained by the Building Control Authority; and

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(c)

the completion of the Landlord's Works in accordance with the Specification so that any items of work or supply then outstanding or any defects then patent are of a minor or trivial nature only and are such that their completion or rectification will not interfere with or interrupt the use and occupation of the Demised Premises by the Tenant for the purpose of carrying out the Tenant's Works.

 

1.21

“Contractor” means John Paul Construction Limited or such other suitably qualified and experienced contractor as the Landlord shall select from time to time;

 

1.22

“Date of Practical Completion” means the date on which the Landlord’s Architect issues the Certificate of Practical Completion;

 

1.23

"DCC Protocol” means the demolition and construction protocol for the Dublin Docklands Area provided by Dublin City Council and appended at Appendix 5 hereto;

 

1.24

“Demised Premises” means the premises more particularly described in the First Schedule to the Lease;

 

1.25

“Design Team” means the Landlord’s Architect, the Landlord’s Structural Engineer, the Landlord’s Mechanical and Electrical Engineer and any sub-contractors having a material design responsibility and providing warranties under the Building Contract, including (but not limited to) the piling sub-contractor, the electrical sub-contractor, the mechanical sub-contractor and the glazing sub-contractor;

 

1.26

“Disability Access Certificate” means the disability access certificates numbered 0048/16 and RDAC/2018/0309 obtained by the Landlord or any other disability access certificate obtained or that may be obtained by the Landlord in relation to the Demised Premises as referred to in the Opinions on Compliance;

 

1.27

“Entrance Courtyard” means that part of the Demised Premises as is shown coloured green on Plan No. 6 attached hereto;

 

1.28

“Estate” means the development intended to be known as the Windmill Quarter as shown for identification purposes only hatched blue on Plan No. 1 annexed hereto and the extent of which Estate may be expanded or retracted from time to time by the Landlord and / or the Management company, and for the avoidance of doubt, the Estate may from time to time include areas which are not immediately contiguous in location to one another PROVIDED that such expansion or retraction does not materially affect the Tenant’s use or operation of the Demised Premises;

 

1.29

“Exclusive Basement Services Areas” means those parts of the Demised Premises within the Basement shown coloured green on the Plan No. 4 attached hereto which exclusively service the Office Premises;

 

1.30

“Fire Safety Certificate” means the fire safety certificates numbered FA/15/1568/7D, FA/16/1490/REV and FA/17/1440/REV obtained by the Landlord or any other fire safety certificate obtained or that may be obtained by the Landlord in relation to the Demised Premises as referred to in the Opinions on Compliance;

 

1.31

“Fit-Out Protocol” means the tenant fit-out protocol appended at Appendix 6 hereto;  

 

1.32

“Floor Area” means the total floor area of the Demised Premises expressed in square feet measured in accordance with the Measuring Code;

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1.33

“Force Majeure” means an exceptional event, circumstance or cause which is beyond the Landlord’s (or the Contractor’s) reasonable control and the impact of which the Landlord (or the Contractor as the case may be) has taken all reasonable steps to mitigate, including:

 

(a)

War, hostilities (whether war be declared or not), civil commotion, invasion, act of foreign enemies;

 

(b)

Rebellion, riots, commotion or disorder, terrorism, revolution, insurrection, military or usurped power, or civil war;

 

(c)

Munitions of war, explosive materials, sonic boom, ionising radiation or contamination by radioactivity;

 

(d)

Natural catastrophes such as earthquake, hurricane, volcanic activity and typhoon;

 

(e)

Restrictions or restraints of governmental authorities whether state or local;

 

(f)

Labour lockout strikes and other industrial disputes; and/or

 

(g)

Unforeseen non availability of materials or equipment as may be essential to the proper execution of the Landlord’s Works;

 

1.34

“Funder” means any person or body currently or in the future providing financial assistance to the Landlord in relation to the Landlord’s Works or the Landlord’s interest in the Estate or any part of it, whose identity the Tenant is on notice of;

 

1.35

“Hard Stop Date” means 1 March 2020;

 

1.36

“Independent Architect” means Brian Murphy of MCA Architects or in the event of him being unwilling or unable to act such other architect (who shall have at least ten (10) years standing as an architect and experience in the design of office space in Ireland) as may be agreed between the parties and in default of agreement to be nominated upon the application of either party by the President for the time being of the Royal Institute of Architects of Ireland;

 

1.37

“Independent Chartered Surveyor” means a chartered surveyor of more than ten (10) years standing and experience in projects in Ireland similar to the construction of the Building or in the event of him/her being unwilling or unable to act such other chartered surveyor (who shall have at least ten (10) years standing as a chartered surveyor in Ireland) as may be agreed between the parties and in default of agreement to be nominated upon the application of either party by the President for the time being of the Society of Chartered Surveyors Ireland;

 

1.38

“Landlord Assigned Certifier” means Pro Cert or such other suitably qualified person as the Landlord shall appoint therefor in relation to the Landlord’s compliance with the Building Control Regulations;

 

1.39

“Landlord’s Architect” means Henry J. Lyons Architects or such other suitably qualified Architect as the Landlord shall appoint following notice to the Tenant;

 

1.40

“Landlord’s Mechanical and Electrical Engineer” means J.V. Tierney & Company or such other suitably qualified firm of mechanical and electrical engineers as the Landlord may appoint from time to time as may be notified to the Tenant from time to time;

 

1.41

“Landlord’s Option to Tax” means the Landlord’s option to apply VAT to the rent and other consideration payable in respect of the Lease pursuant to Section 97(1) of the VAT Act;

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1.42

“Landlord’s Project Supervisor Design Process” means Garland Consultancy or such other suitably qualified person as the Landlord may appoint pursuant to the Safety Regulations from time to time following notice to the Tenant;

 

1.43

“Landlord’s Structural Engineer” means Casey O’Rourke Associates Limited or such other suitably qualified Structural Engineers as the Landlord shall appoint in relation to the design of the Building in substitution therefor following notice to the Tenant;

 

1.44

“Landlord’s Solicitor” means Arthur Cox, Ten Earlsfort Terrace, Dublin 2;

 

1.45

“Landlord’s Works” means the construction of the Building in accordance with the Specification;

 

1.46

“Law” means every Act of Parliament and of the Oireachtas, law of the European Union and every instrument, directive, regulation, requirement, action and bye law made by any government department, competent authority, officer or court which now or may hereafter have force of law in Ireland;

 

1.47

“Lease” means the Lease in the form annexed hereto at Appendix 2;

 

1.48

“LEED Rating” means the rating and certification system developed by the U.S. Green Building Council  known as the ‘Leadership in Energy and Environmental Design’;

 

1.49

“Licence for Works” means the agreed form of licence for works annexed hereto at Appendix 3;

 

1.50

“Long Stop Date” means 1 September 2019;

 

1.51

“Measuring Code” means the International Property Measurement Standards 3: Office Buildings (current at the date when they are to be applied) published  by the International Property Measurement Standards Coalition (or if there is no such code or standards, such code or standards as may be reasonably determined by the Landlord);

 

1.52

“Necessary Consents” means the Permission, the Fire Safety Certificate, the Disability Access Certificate and any regulations or requirements under the Building Control Legislation and all other consents, approvals or licences of and from all competent and Statutory Authorities in relation to the Demised Premises;

 

1.53

“Office Premises” means that part of the Demised Premises shown for purposes of identification only delineated in red on Plan Nos. 6, 7, 8, 9, 10, 11 and 12 attached hereto which premises excludes, for the avoidance of doubt, the Basement Storage Area, the Balconies, the Bicycle Area, the Entrance Courtyard, the Shower Area and the Exclusive Basement Services Areas;

 

1.54

“Opinions on Compliance” means market standard Opinions on Compliance with Planning Permission and Building Control Legislation of the Landlord’s Architect in the form approved of by the Royal Institute of the Architects of Ireland confirming that the Landlord’s Works are in substantial compliance with the Necessary Consents;

 

1.55

“Permission” means the Grants of Planning Permission, register reference 4238/17, 2050/17, 4446/16, 4516/16, 2836/15 and 1057/08 applicable to the Demised Premises to be referred to in the Opinions on Compliance;

 

1.56

Planning Acts” means the Local Government (Planning and Development) Acts 1963 to 1998 and the Planning and Development Acts 2000 to 2016 and any statutory extension, modification, amendment or re-enactment of any such Act or Acts for the time being in force and any statutory instruments, regulations or orders made or issued under any such Act or Acts;

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1.57

“Prescribed Rate” means EURIBOR plus 2%;

 

1.58

“Quarterly Gale Day” has the same meaning as set out in the Lease;

 

1.59

“Safety Regulations” means the Safety, Health and Welfare at Work Act 2005 and 2014 and any and all legislation pursuant thereto (including but not limited to the Safety, Health and Welfare at Work (Construction) Regulations 2013) as may be modified, amended or extended from time to time;

 

1.60

“Shower Area” means that part of the Demised Premises within the Basement shown coloured orange on the Plan No. 5 attached hereto which the Tenant shall use for shower and changing facilities and for no other purpose;

 

1.61

“Side Letter” means the side letter to be entered into between the Landlord, the Tenant and the Guarantor in respect of each of the Lease in the form set out in Appendix 4;

 

1.62

“Snag Items” includes items which are normally dealt with in a snagging list (which term shall have the meaning understood by custom in the building trade in Ireland);

 

1.63

“Specification” means the agreed form plans and specifications furnished by the Landlord's Architect in respect of the Landlord’s Works and identified in Appendix 9 hereto;

 

1.64

“Target Date” means 1 June 2019;

 

1.65

“Tenant Consents” means any and all planning permission, fire safety certificate, disability access certificate or other consents, approvals or licences of or from any competent or statutory authorities necessary for the Tenant’s Works;

 

1.66

“Tenant’s Architect” means Conor McCabe of Henry J Lyons, or such other suitably qualified Architect as the Tenant shall appoint in substitution therefor following notice to the Landlord;

 

1.67

“Tenant’s Certificate” means the certificate(s) of the Tenant’s Architect to be provided pursuant to Clause 11 of this Agreement and FOR THE AVOIDANCE OF DOUBT a Tenant’s Certificate shall be provided upon completion of each stage of the Tenant’s Works as set out in Clause 11;

 

1.68

“Tenant’s Solicitor” means Matheson Solicitors, 70 Sir John Rogerson’s Quay, Dublin 2;

 

1.69

“Tenant’s Specifications” means the plans and specifications to be furnished by the Tenant’s Architect to the Landlord’s Architect in accordance with Clause 3 of this Agreement;

 

1.70

“Tenant’s Works” means the Tenant’s works in accordance with the Tenant’s Specifications as may be approved by the Landlord pursuant to Clause 3.1;

 

1.71

“Term Commencement Date” means the Closing Date;

 

1.72

“Validated Certificate of Compliance on Completion” means the Certificate of Compliance on Completion validated by the Building Control Authority with the relevant particulars of the said certificate included on the register maintained by the Building Control Authority together with certified copies of all certificates (including Ancillary Certificates) and all other supporting documentation submitted with the Certificate of Compliance on Completion created for the purpose of procuring the validation of the Certificate of Compliance on Completion from the Building Control Authority;

 

1.73

“VAT” means Value Added Tax;

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1.74

“VAT Act” means Value Added Taxes Consolidation Act, 2010 as amended and any related VAT regulations and any enactment extending, amending, repealing, replacing or continuing the same; and

 

1.75

“Working Day” has the meaning ascribed to it in Clause 2.6 hereof.

2.

INTERPRETATION

Save as otherwise provided herein:-

 

2.1

Any reference to a clause, paragraph or sub-paragraph shall be a reference to a Clause, paragraph or sub-paragraph (as the case may be) of this Agreement and any reference in a Clause to a paragraph or subparagraph shall be a reference to a paragraph or sub-paragraph of the Clause or paragraph in which the reference is contained unless it appears from the context that a reference to some other provision is intended.

 

2.2

Any reference to the masculine gender shall include reference to the feminine gender and any reference to the neuter gender shall include the masculine and feminine gender and reference to the singular shall include reference to the plural.

 

2.3

References herein to any statute or section of any statute include a reference to any statutory amendment modification replacement or re-enactment thereof for the time being in force and to every instrument order direction regulation bye-law permission licence consent condition scheme and matter made in pursuance of any such statute.

 

2.4

Words such as “hereunder”, “hereto”, “hereof”, and “herein” and other words commencing with “here” shall unless the context clearly indicates to the contrary refer to the whole of this Agreement and not to any particular Clause or paragraph thereof.

 

2.5

The clause headings and captions and headings to the Appendices hereto shall not affect the construction of this Agreement.

 

2.6

“Day” shall mean calendar day, unless the text expressly refers to “Working Days”.  The following days shall not be counted as Working Days: Saturdays, Sundays, Public Holidays and Good Friday.

 

2.7

“Person” includes a firm or a body corporate or unincorporated.

 

2.8

Reference to any Act of the Oireachtas shall include any Act replaced by it or any Act replacing it or amending it and any Order, Regulation, Instrument, Direction, Scheme or Permission made under it or deriving validity from it.

 

2.9

References to “this Agreement” shall where the context so requires include this Agreement as supplemented, amended, modified or varied from time to time.

 

2.10

The Appendices shall be read and construed as if they formed part of the body of this Agreement and the term “this Agreement” shall be construed as including the Appendices hereto.

 

2.11

Reference to any society, institute or other professional body shall include any other body established from time to time in succession to or in substitution for or carrying out the function formerly carried out by such society, institute or other professional body.

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3.

SUBMISSION AND APPROVAL OF TENANT’S SPECIFICATION

 

3.1

The parties agree that the Tenant will use all reasonable endeavours to submit to the Landlord for approval the Tenant's Specifications at least ten (10) weeks prior to the proposed commencement of the Tenant’s Works which must be provided to the Landlord in triplicate and, provided the Landlord provides its “3D Building Information Asset Model” (i.e. Revit / 3D format model) (the “Model”) to the Tenant with the necessary copyright licence to use the Model, in a format that can be incorporated into the Landlord’s “3D Building Information Asset Model” (if such a licence is required by the Tenant) (i.e. Revit / 3D format) and which shall be approved in writing by the Landlord (acting reasonably) within 20 Working Days of receipt of the Tenant’s Specification subject to the Landlord receiving all information and documentation that the Landlord may reasonably require including the documents set out in Clause 8.5 in order to properly evaluate and consider the plans and specifications enclosed therewith.

 

3.2

The Tenant may, at any time after the date hereof, subject to the prior approval of the Landlord (such approval not to be unreasonably withheld or delayed in circumstances where the proposed works are reasonably compatible with the character of the Building) prepare an application for planning permission for each of the following:-

 

(a)

the location of telecom IT equipment on the roof within the dedicated plant areas; and / or

 

(b)

any signage for the Building.

Subject to the Landlord having approved the proposed signage in accordance with this clause, the Landlord shall if requested, provide its written consent to the planning application addressed to the relevant planning authority.

 

3.3

In accordance with clause 3.2 above, the Landlord hereby acknowledges and confirms that it has approved the design and placement of the signage intent for the Demised Premises (the “Intended Signage”) as described in Appendix 11. The Landlord reserves the right to further approve the final detailed fixing details which may require amendment to the signage.  The Landlord will, without undue delay, provide its written consent to the relevant planning authority in relation to any planning application(s) for the Intended Signage.  Any increase in the size of the Intended Signage or additional signage shall be deemed an alteration to the Demised Premises and shall be subject to the further written approval of the Landlord (not to be unreasonably withheld or delayed in circumstances where the revised or additional signage is inoffensive and is substantially compatible with the character of the Building).

4.

CONSTRUCTION

 

4.1

The Landlord shall use all reasonable endeavours to procure that the Contractor proceeds diligently with the construction of the Landlord’s Works substantially in accordance with the Specification and with a view to completion of same as soon as reasonably practicable prior to the Target Date but, save as provided for herein, the Landlord shall not have any liability to the Tenant for any delay for any reason other than default of the Landlord in the completion of same.

 

4.2

The Landlord shall use all reasonable endeavours to procure that the Contractor undertakes the construction of the Landlord’s Works in a good and workmanlike manner and using the standard of skill, care and diligence reasonably to be expected of a prudent contractor who is experienced in carrying out works of a similar size, scope and complexity to the Estate and in accordance with good building practice and the Specification and in substantial compliance with all the Necessary Consents.

 

4.3

The Landlord shall be liable for payment of all financial contributions (or approved staged payments thereof) pursuant to the Permission in respect of the Landlord Works.

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4.4

The Landlord shall, in accordance with Clause 4.2, use all reasonable endeavours to deliver the Landlord’s Works:-

 

(a)

substantially in accordance with the Specification;

 

(b)

in a manner which will enable the Demised Premises achieve a minimum of:-

 

(i)

a LEED Rating of ‘Gold’ and with an expectation of achieving a LEED Rating of ‘Platinum’; and

 

(ii)

a BER rating of A3.

In complying with its obligations to deliver the Landlord’s Works substantially in accordance with the Specification,  it is agreed and confirmed that the Landlord may make any modifications to the details contained in the Specification that are required by any competent authority as a condition of the grant or continuance in force of any Necessary Consents, or that are reasonably required by the Landlord provided that no modification may be made pursuant to this clause that would substantially alter:-

 

(c)

the location, layout or extent of the Demised Premises; or

 

(d)

the quality of the type of materials provided for in the Specification;

 

(e)

the LEED Rating or BER rating as set out in paragraph (b) above; or

substantially prejudice the use of the Demised Premises for the purpose specified in the Lease, save as may be agreed with the Tenant.

 

4.5

The Landlord shall be responsible for the fees or charges payable by law in relation to the Necessary Consents including for the avoidance of doubt the cost of obtaining all Necessary Consents in relation to the Landlord’s Works and the discharge of financial conditions under the relevant consents.

 

4.6

The Landlord shall, until the Closing Date, procure that the Landlord’s Works are insured in their full reinstatement cost (together with architect’s and surveyor’s fees and the cost of demolition and site clearance) against loss or damage by any of the Insured Risks (as defined in the Lease).

 

4.7

The Landlord will engage the services of a competent person or persons to be the project supervisor for the design process for the Landlord’s Works and as project supervisor for the construction stage of the Landlord’s Works all in compliance with the requirements of the Safety Health and Welfare at Work (Construction) Regulations 2013.

 

4.8

If the Landlord’s Works or any part thereof shall be delayed by or in consequence of:

 

(a)

an event of Force Majeure; and/or

 

(b)

any loss, damage or destruction to any part of the Demised Premises caused by an event which is insured under the all risks insurance required to be maintained hereunder (unless caused by the Landlord or its agents);

 

(c)

any extension of time granted pursuant to Clause 30 of the Building Contract;

then the Contractor and/or the Landlord shall be entitled to a fair and reasonable extension of the time for completing the Landlord’s Works.  The Parties acknowledge and agree that nothing in this Agreement shall:-

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(d)

apart from an event of Force Majeure, allow for any extension to the Long Stop Date; and

 

(e)

in any circumstances whatsoever, allow for any extension to the Hard Stop Date.

 

4.9

The Landlord shall use all reasonable endeavours to procure that the Contractor, or in default of the Contractor, another contractor, shall make good all defects in the Landlord’s Works which arise during the period of 12 months commencing on the Date of Practical Completion (the “Defects Liability Period”) as soon as possible once it receives written notification from the Tenant (the “Defects Notice”) PROVIDED ALWAYS that the Defects Notice shall be served in writing to the Landlord as early as possible and, at a minimum, at least 7 days prior to the expiration of the Defects Liability Period.  Where such defects are notified by the Tenant to the Landlord during the Defects Liability Period (subject always to the Tenant providing access to the Landlord's Works to the Landlord, Contractor and any other person nominated by either party), subject to the Landlord agreeing with the content of the Defects Notice, the Landlord shall use reasonable endeavours to procure that the Contractor or, in default of the Contractor, another contractor, shall make good such defects to the satisfaction of the Tenant (acting reasonably) and where reasonably practicable such remedial works should be carried out outside of the usual trading hours of the Tenant causing as little interference as possible to the Demised Premises and to the business carried out thereon and making good any damaged caused to the Demised Premises as a result of the defect or as a result of the remedying of any such defect. Any dispute as to the contents of the Defects Notice shall be determined by the Independent Architect.

 

4.10

In the event of the Landlord failing to procure the remediation of defects pursuant to Clause 4.9, and subject to not less than 15 Working Days prior notification to the Landlord, the Tenant shall have the right to remedy and make good the same and the Landlord hereby agrees to pay to the Tenant the sum equal to the reasonable and vouched costs and expenses of rectifying all such defects within 28 days of such written demand having been made and the Tenant shall use all reasonable endeavours to procure that any such works are undertaken by the contractor in a good and workmanlike manner and using the standard of skill, care and diligence reasonably to be expected of a prudent contractor who is experienced in carrying out works of a similar size, scope and complexity to the Demised Premises and in accordance with good building practice and the Specification and in substantial compliance with all the Necessary Consents and Tenant Consents.

5.

COLLATERAL WARRANTIES

 

5.1

The Landlord shall furnish (or procure that the Contractor and the Design Team furnish) the Collateral Warranties to the Tenant on the Closing Date.

 

5.2

Subject to compliance by the Landlord of its obligations herein contained (and contained in the Lease) it is agreed that the Landlord shall not otherwise have any liability to the Tenant in relation to the construction and completion of the Demised Premises or the Building, other than where such liability arises from the negligent actions of the Landlord.

6.

COMPLETION

 

6.1

The Landlord shall keep the Tenant generally informed of the progress towards Completion.

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6.2

From the date hereof, the Tenant’s Architect and / or contractor shall be entitled to attend and witness any testing and commissioning (including any test or commissioning following a previous failed test or commissioning activities) provided always that the Tenant’s Architect and / or contractor shall not disrupt or interfere with such testing and commissioning and the inspection shall not impact or delay the completion of the Landlord’s Works and the Landlord will provide the Tenant with a testing and commissioning schedule within seven (7) Working Days of the date hereof.

 

6.3

The Landlord’s Architect shall:

 

(a)

notify the Tenant’s Architect in writing not less than ten (10) Working Days before the date on which the Landlord’s Architect anticipates that he will issue the Certificate of Practical Completion; and

 

(b)

invite the Tenant’s Architect to arrange a joint inspection with the Landlord’s Architect of the Demised Premises not less than five (5) Working Days prior to the date that it is anticipated the Certificate of Practical Completion will issue.

 

6.4

The Tenant shall co-operate in arranging such a joint inspection, and if the Tenant fails to respond to the Landlord’s Architect's invitation within five (5) Working Days (as provided for in Clause 6.2(b)), then the Landlord’s Architect may finalise the Certificate of Practical Completion without the Tenant’s input.

 

6.5

The Tenant’s Architect shall notify the Landlord’s Architect in writing within three (3) Working Days of such inspection of any matters which in the view of the Tenant’s Architect should have attention prior to the issue of the Certificate of Practical Completion and the Landlord’s Architect shall take due regard of same but nothing herein shall limit the right of the Landlord’s Architect to issue the Certificate of Practical Completion.

 

6.6

The Landlord’s Architect will furnish to the Tenant a copy of the Certificate of Practical Completion (as agreed or determined) together with a list of the Snag Items (if any) to the Tenant upon its issue.  Thereafter the Landlord shall give the Tenant and its contractors and professional advisors reasonable access to the Demised Premises for the purposes of preparing a list of any additional Snag Items provided always that the Tenant (or its agents) shall be accompanied by the Landlord (or its agents or employees) at all times during the inspection, unless otherwise agreed between the parties but the foregoing shall not unreasonably hinder the Tenant’s ability to carry out a full inspection. Not less than 20 Working Days before the Closing Date the Tenant shall (i) be granted further reasonable access to the Demised Premises (on the same terms as detailed above) to carry out a final inspection and (ii) deliver a further list of additional Snag Items to the Landlord for rectification and if no such list is delivered prior to the Closing Date, the Tenant will be deemed to have accepted the Demised Premises on the Closing Date subject to the list of the Snag Items issued by the Landlord’s Architect.

 

6.7

If the Certificate of Practical Completion is issued with a list of Snag Items remaining to be completed or remedied or the Tenant delivers to the Landlord its list of additional Snag Items pursuant to Clause 6.6 above, the Landlord shall use all reasonable endeavours to procure that those Snag Items are completed or remedied (as the case may be) as soon as practically possible before the Closing Date, and if that is not possible then as soon as practically possible thereafter, bearing in mind the availability, cost and type of items and works required to remediate the snags, and the existence of any remaining Snag Items shall not affect the date of Completion and the Landlord’s Architect shall not be fettered from issuing the Certificate of Practical Completion at such time as in his opinion he thinks the Landlord’s Works have been practically completed notwithstanding any dispute in respect thereof.

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6.8

Without prejudice to Clauses 6.5 and 6.6, if the Tenant’s Architect shall object to the issue of the Certificate of Practical Completion he shall do so in writing to the Landlord’s Architect such notice to be received by the Landlord’s Architect within five Working Days of receipt by the Tenant’s Architect of a copy of the Certificate of Practical Completion specifying his objections which shall not include Snag Items.  The Landlord’s Architect and the Tenant’s Architect shall endeavour to resolve what if any action should be taken and agree the date of Completion within five (5) Working Days of receipt by the Landlord's Architect of the details of such objections (any such agreement to be recorded in writing and signed by both architects) but if no agreement can be reached, the dispute shall be referred to the Independent Architect in the manner set out in Clause 6.8.

 

6.9

In the event of a dispute between the Landlord’s Architect and the Tenant’s Architect as to whether the Certificate of Practical Completion should have issued or whether Completion has been achieved under this Agreement having regard to the objections of the Tenant’s Architect then the items in dispute shall be referred forthwith to the Independent Architect who shall be required to give a decision as to the date of Completion within ten (10) Working Days of being requested to resolve such dispute.

 

6.10

The Independent Architect shall:-

 

(a)

act as an expert and not as an Arbitrator and his fees shall be borne by the party against whom he holds;

 

(a)

afford to the Landlord and the Tenant a reasonable opportunity of stating (whether in writing or otherwise as may be decided by him and within time as he may stipulate in that behalf) reasons in support of such contentions as each party may wish to make relative to the matter or matters under consideration;

 

(b)

be requested to:

 

(i)

inspect the Demised Premises within five (5) Working Days of being requested to resolve such dispute; and

 

(ii)

give a decision within five (5) Working Days of such inspection.

 

6.11

The determination of the Independent Architect shall be binding on the parties.

 

6.12

The costs of the determination will be borne by the party against whom the Independent Architect holds, but either party may discharge such costs in order to procure the release of the Expert's determination.  Costs so paid by a party in whose favour the Independent Architect holds shall become a debt due to the paying party by the other as a contract debt.

 

6.13

Where the Independent Architect finds in favour of the Tenant and that the Certificate of Practical Completion should not have issued, then the Landlord shall procure that the items of works identified by the Independent Architect required to be completed shall be remedied as soon as possible and a further joint inspection of the relevant works shall be undertaken and on completion of such works the provisions of Clauses 6.4 to 6.8 shall be repeated mutatis mutandis until the parties agree or the Independent Architect determines that Completion in accordance with this Agreement has been achieved and the date of Completion shall be as agreed or determined in accordance with this Clause.  

 

6.14

Where the Independent Architect finds in favour of the Landlord, the date of Completion shall remain as originally identified by the Landlord’s Architect and all appropriate provisions shall apply thereto.

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6.15

If there is any dispute between the Landlord and the Tenant as to whether any items properly constitute Snag Items either party shall have the right to refer the determination of such matter in dispute to the Independent Architect. The Independent Architect shall be requested to give his decision within ten days of his/her appointment and shall be entitled to receive oral and/or written submissions from the parties.  The Independent Architect shall act as an expert and not as an arbitrator and his fees shall be borne equally between the parties.

 

6.16

In the event of the Landlord failing to procure the completion of all Snag Items (as agreed between the parties or as determined by the Independent Architect in circumstances of a dispute in accordance with Clause 6.14) within the timeframe specified at Clause 6.6 and subject to not less than 20 Working Days prior notification to the Landlord, the Tenant shall have the right to remedy and make good the same and the Landlord hereby agrees to pay to the Tenant the sum equal to the reasonable and vouched costs and expenses of rectifying all such Snag Items within 28 days of such written demand having been made and the Tenant shall use all reasonable endeavours to procure that any such works are undertaken by the contractor in a good and workmanlike manner and using the standard of skill, care and diligence reasonably to be expected of a prudent contractor who is experienced in carrying out works of a similar size, scope and complexity to the Demised Premises and in accordance with good building practice and the Specification and in substantial compliance with all the Necessary Consents and Tenant Consents.

7.

RENT CALCULATION

 

7.1

The rent to be reserved under the Lease (therein defined as the “Initial Rent”) shall be fifty-nine euro seventy-five cents (€59.75) per square foot of the Floor Area of the Office Premises calculated in accordance with the Measuring Code, together with a sum of seven euro fifty (€7.50) per square foot of the Floor Area for the Basement Storage Area and three thousand seven hundred and fifty euro (€3,750) in respect of each of the thirty one (31) car parking spaces. The Floor Area of the Demised Premises shall be measured and ascertained by the Landlord and the Tenant on such date as the Landlord shall notify to the Tenant and in the event of there being a dispute as to the Floor Area the matter shall be determined by an Independent Chartered Surveyor as set out hereunder:-

 

(a)

The Landlord and the Tenant shall endeavour to agree the Floor Area of the Demised Premises;

 

(b)

If they cannot do so the Floor Area shall be determined by such Independent Chartered Surveyor as the parties may agree or in default of agreement by such Chartered Surveyor as may be nominated upon the application of either party by the President (or other acting senior officer) of the Society of Chartered Surveyors Ireland;

 

(c)

The Independent Chartered Surveyor so appointed shall act as an expert and shall afford to the Landlord and the Tenant a reasonable opportunity of stating (whether in writing or otherwise as may be decided by him) reasons in support of such contentions as each party may wish to make relative to the matter or matters under consideration.

 

7.2

The determination of the Independent Chartered Surveyor shall be binding on the parties and his costs shall be borne by the parties as he shall decide.

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7.3

In the event of the Floor Area not having been agreed by the Closing Date, the Tenant shall pay to the Landlord rent of six million eight hundred and five thousand three hundred thirty nine euro (6,805,339) per annum (exclusive of any service charge, VAT or other payments due by the Tenant under the Lease) based on an estimated Floor Area of one hundred and eleven thousand seven hundred and ninety six (111,796) square feet of Office space, one thousand two hundred and thirty seven (1,237) square feet of basement storage space together with three thousand seven hundred and fifty euro (€3,750) in respect of each of the thirty one (31) car parking spaces and within fourteen days of agreement on or determination of the Floor Area there shall be paid by the Landlord to the Tenant (or vice versa) any excess or underpayment (as the case may be) in respect of the period for which rent has been paid (calculated on a daily basis).  The rent in the Lease shall be initially calculated by reference to the deemed Floor Area and the Landlord and the Tenant shall enter into a memorandum supplemental to the Lease according to the adjusted yearly rent calculated by reference to the Floor Area agreed or determined in accordance with the provisions of this Agreement.

8.

FITTING OUT OBLIGATION

 

8.1

The Tenant shall be solely responsible at its own expense for the Tenant’s Works so as to enable the Tenant to occupy and trade from the Demised Premises and the Tenant shall ensure it is in compliance with Clause 3 prior to the carrying out of any such works.

 

8.2

The Landlord requires the Tenant to enter into the Licence for Works prior to commencing the Tenant’s Works and for the avoidance of doubt, the Term Commencement Date shall not be delayed or extended on account of a Licence for Works having not been executed by the Landlord except to the extent that the Landlord has unreasonably withheld or delayed executing the Licence for Works within the timeframe specified at Clause 3.1.

 

8.3

The Tenant shall submit to the Landlord the Tenant’s Specification in accordance with Clause 3.1.

 

8.4

On the Closing Date, subject to receipt by the Landlord of the payments to be made by the Tenant in accordance with Clause 7 hereof, and subject to approval of the Tenant’s Works, the Landlord shall hand over to the Tenant possession of the Demised Premises whereupon the Tenant shall carry out and complete fitting out of the Demised Premises in accordance with the Tenant’s Specification as soon as practicable in all material respects substantially in accordance with any Tenant Consents.

 

8.5

For the avoidance of any doubt, the details and specifications which the Landlord may reasonably require in order to approve the Tenant’s Specifications and execute the Licence for Works are as follows:

 

(a)

full details of the Tenant’s contractor and Tenant’s professional team;

 

(b)

if, at any time of the Tenant seeking approval of the Tenant’s Specifications it is known that any of the Tenant’s Works are to be carried out by way of sub-contract to a sub-contractor with design responsibility, copy of the sub-contract (or proposed sub-contract) and details of the sub-contractor, the insurance obligations imposed on the sub-contractor and the requirements in relation to providing a performance bond imposed on the sub-contractor (if any);

 

(c)

full details of the insurances carried by the Tenant’s contractor which insurances must be satisfactory to the Landlord (acting prudently but reasonably).  In this respect, the relevant contractor shall be obliged to effect Contractors All Risks, public liability with an indemnity limit of €6,500,000 and employers liability insurances with an indemnity limit of €13,000,000 and such insurances shall, if required, by the Landlord, be extended to include the Landlord with an indemnity to principals clause with the Landlord specifically noted as principal or as joint insured.  (In the event of the Landlord within

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ten days of receipt of the said notification, notifying the Tenant that such fit-out contractor is not suitable to the Landlord, it shall not be lawful for the Tenant to permit or authorise such contractor to enter upon the Estate or the Demised Premises but the Landlord shall act reasonably and shall only be entitled to give such notice on the grounds that the proposed contractor does not have suitable experience in works similar to the Works or for such other good and substantial reason and which shall be advised to the Tenant in writing by the Landlord with reasonable evidence of the contractor’s unsuitability at the time of notification).  However, the Landlord acknowledges and agrees that Sonica Fitout Limited (company number 520157) is a suitable contractor with suitable experience and the Landlord shall not raise any objections to Sonica Fitout Limited acting as the Tenant’s fit out contractor;

 

(d)

confirmation of the existence of the insurances required by the Landlord together with a certificate of insurance;

 

(e)

such other reasonable evidence of insurances as may be required by the Landlord from time to time, including evidence of renewals;

 

(f)

subject to Clause 8.7 below, evidence of payment of any additional insurance premium payable by the Landlord as a result of the Tenant’s Works;

 

(g)

copy of the fit-out contract and sub-contracts that have been entered into at the date the Tenant’s Specification is submitted;

 

(h)

copies of any Tenant Consents (if any);

 

(i)

full details of collateral warranties (the form of which, shall be approved by the Landlord, acting reasonably and having regard to the nature of the Tenant’s Works) in relation to the Tenant’s Works addressed to the Landlord which the Tenant’s contractor, sub-contractors with design responsibility and Tenant’s professional team will provide on completion of the Tenant’s Works; and

 

(j)

the method statements for the carrying out of the Tenant’s Works and such other information and documentation as the Landlord might reasonably require in respect of the Tenant’s Works.

 

8.6

The Landlord shall not be liable for completion of the Tenant’s Works.  

 

8.7

The Landlord shall, subject to the discharge by the Tenant of any increased or additional premium associated with same (“Clause 26 Cover”), procure that the Landlord’s insurance for the Building maintained under the Lease shall provide for a waiver of all rights of subrogation against the Tenant, its’ contractor and the Tenant’s contractor’s sub-contractors, in relation to any of the following risks:-

 

(a)

fire, storm, tempest, flood; or

 

(b)

bursting or overflowing of water tanks apparatus or pipes; or

 

(c)

explosion, impact, aircraft; or

 

(d)

riot, civil commotion or malicious damage.

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8.8

Subject to the Landlord consenting to the Tenant’s Works, and in addition to the Licence for Works that shall be entered into:

 

(a)

The Tenant covenants with the Landlord to carry out the Tenant’s Works in a good and workmanlike manner in accordance with the Tenant’s Specifications, subject to approval of same (and any approval of any modification of the same) by the Landlord and to complete same for the permitted use as agreed with the Landlord.  

 

(b)

To the extent that the Tenant has possession of the Demised Premises at any time before the Lease is delivered to the Tenant, it is to hold the Demised Premises as a licensee of the Landlord and not under any contract of tenancy.

 

(c)

Before carrying out any fitting out of the Demised Premises the Tenant shall obtain all Tenant Consents and the Tenant shall further ensure that all the Tenant’s Works shall substantially comply therewith and shall furnish copies of same to the Landlord prior to such works commencing and shall substantially comply with the Permission, the Fire Safety Certificate and the Disability Access Certificate granted to the Landlord (as may be amended by the Tenant Consents) in respect of the Demised Premises, the DCC Protocol and the Fit-Out Protocol.

 

(d)

As soon as reasonably practicable and in any event no later than 8 (eight) weeks following completion of the Tenant’s Works, the Tenant shall furnish to the Landlord (to the extent not previously furnished):

 

(i)

A certificate of compliance or exemption regarding the Planning Acts and Building Control Regulations from a suitably qualified architect or engineer in a form recommended by the Royal Institute of Architects of Ireland;

 

(ii)

A hard copy and a soft copy of the Safety File for the Tenant’s Works required by the Safety Regulations or upload the safety file to the Landlord’s online register if requested;

 

(iii)

As constructed drawings not otherwise included in the Safety File (if any);

 

(iv)

Copy operating manuals not otherwise contained or included in the Safety File (if any);

 

(v)

All collateral warranties as set out in Clause 8.4(i) together with copies of the relevant contracts, sub-contracts and/or appointments and evidence of the up-to-date insurances required to be effected pursuant to the said contracts, sub-contracts and /or appointments;

 

(vi)

Copy Validated Certificate of Compliance on Completion in respect of the Tenant’s Works (if applicable); and

 

(vii)

Copy of the Tenant Consents (if any).

 

(e)

The Tenant shall

 

(i)

give the Landlord 7 days’ prior notice of the commencement of the Tenant’s Works;

 

(ii)

agree with the Landlord the methodology for access to the Demised Premises for the purposes of carrying out the Tenant’s Works (both parties acting reasonably), which will be carried out in accordance with the Fit-Out Protocol;

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(iii)

carry out the Tenant’s Works in accordance with Tenant’s Specifications approved by the Landlord with good quality materials and in a proper and workmanlike manner and to make good any damage caused by the Tenant, its servants, agent and any other party involved in carrying out of the Tenant’s Works (subject to the Tenant’s inability to procure same on foot of any insurance claim at the Demised Premises in relation to the risks set out in Clause 8.7);

 

(iv)

carry out the Tenant’s Works in accordance with the relevant BIM requirements as set out in Appendix 10 hereto;

 

(v)

observe and perform all proper precautions in executing the Tenant’s Works and in particular not to endanger the safety of the Demised Premises or the Building or any part thereof;

 

(vi)

comply with the requirements (whether notified or directed to the Landlord and then to the Tenant or directly to the Tenant) of the appropriate local authority, the insurers of the Building and the Landlord (acting reasonably) in relation to the fire security and safety precautions affecting the Demised Premises;

 

(vii)

permit the Landlord and its agents to enter upon the Demised Premises at any time while the Tenant’s Works are being carried out (subject only to the safety requirements of the Tenant or its project supervisor for the construction stage) for the purposes of inspecting the manner of execution of the Tenant’s Works and compliance with the provisions of this Agreement provided that the Tenant receives reasonable prior written notice of such inspection and the inspection does not delay or disrupt the carrying out of the Tenant’s Works;

 

(viii)

not to cause or allow to be caused a nuisance or damage or disturbance to the Landlord, the occupiers for the time being of any adjoining property, the users of the Building and/or the safe and orderly operation of the Building and not to infringe the rights of any aforementioned person nor to acquire or entitle to be acquired by prescription any right which would interfere with the free use of any neighbouring or adjoining property;

 

(ix)

provide a photographic record of inspections undertaken in relation to fire stopping works (including the removal or addition to the Demised Premises of fire stopping material) carried out as part of the Tenant’s Works; and

 

(x)

remove from the Demised Premises upon completion of the Tenant's Works all debris arising from and equipment used in connection with the carrying out of the Tenant’s Works; and

 

(xi)

comply with all obligations under or by virtue of any Law and to obtain and comply with such permissions, approvals, certificates, licences and consents as may be required to comply with all such Laws (and in particular with the provisions of the Planning Acts, Building Control Legislation and Safety Regulations) so far as the same relate to or affect the Tenant’s Works and any operations, acts or things carried out, executed, done or omitted on the Demised Premises in connection with the Tenant’s Works.

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8.9

In the event of the Tenant’s Works not conforming to the planning permissions procured in respect of them or not satisfying the requirements of the fire officer or the competent authority in relation to the provisions of any fire safety certificate or disability access certificate obtained or applied for in relation to the Building or the Tenant’s Works to carry out such alterations or amendments as necessary to the Tenant’s Works so that they comply with such planning permissions and fire safety requirements PROVIDED HOWEVER that in the event of it becoming impossible for such Tenant’s Works to comply with the planning permissions procured and/or the requirements of the fire officer or other competent person or authority to restore, at the Tenant’s own cost, the Demised Premises to the condition prevailing prior to the Tenant’s Works being carried out and to the reasonable satisfaction of the Landlord or the Landlord’s Architect (in relation to planning permissions) or the fire officer or competent authority (in relation to any fire safety certificate or disability access certificate).

 

8.10

The Tenant hereby keeps the Landlord fully indemnified from and against all actions, proceedings, claims, demands, losses, costs, expenses, damages and liability (including without limitation those in respect of personal injury to or the death of any person or any injury or damage to any property, real or personal) arising out of any act omission or negligence of the Tenant or any persons in on or about the Demised Premises expressly or impliedly with the Tenant’s authority in connection with the carrying out of the Tenant’s Works or arising from the failure or omission by the Tenant, its servants, agents or any other party involved in the carrying out of the Tenant’s Works to comply with any of  the terms and provisions of this Clause 8.

 

8.11

Without prejudice to the completion deliverables in the Licence for Works or those set out in Clause 8.8(d) above, upon completion of the Tenant’s Works, the Tenant shall notify the Landlord, and the Landlord’s Architect shall be at liberty to inspect the same within five (5) Working Days and if the work has been carried out to the satisfaction of the Landlord’s Architect, the Tenant’s Architect shall issue to the Landlord and the Tenant a certificate that the Tenant has executed the works in accordance with the Tenant’s Specifications and the Necessary Consents PROVIDED ALWAYS that the Tenant may complete the Tenant Works in sections (with each section not being less than a complete floor of the Demised Premises) and this clause will apply mutatis mutandis to each such section.  Any failure of the Landlord to carry out any inspection in the relevant time period shall not prevent the Tenant’s Architect from issuing the certificate certifying completion of the Tenant’s Works or any section.

 

8.12

For the avoidance of doubt, each party shall be responsible for its own costs in respect of the Tenant’s Works, and without prejudice to the generality of the foregoing, the Tenant shall not be responsible for the following costs and expenses that may be incurred by the Landlord:

 

(a)

The Landlord’s surveyors’, architect’ and engineers’ fees in connection with the review and approval of the Tenant’s Specifications; and

 

(b)

The Landlord’s legal and other professional costs in connection with the preparation and delivery of the Licence for Works.

In carrying out the Tenant’s Works, the Tenant hereby agrees not to knowingly damage or cause to be damaged the Demised Premises or any part of the Estate or any adjoining premises or to obstruct the Landlord or its tenants or its nominated agents or contractors in the course of executing any works on the Estate, or the use or occupation of the Building or any part thereof and the Tenant or the person carrying out the Tenant’s Works shall make good, without undue delay, any damage thereby caused to the Demised Premises (subject to the Tenant’s entitlement to make a claim under the Landlord’s insurance on the occurrence of any of the risks listed in Clause 8.7 or any part of the Estate or any adjoining premises.

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8.13

The Landlord hereby acknowledges the Tenant’s Design Intent in respect of the Tenant’s Works as appended at Appendix 8 to this Agreement but the acknowledgment does not commit or amount to an approval of the detailed design of the Tenant’s Works. The Landlord shall be entitled to withhold consent in respect of the design of any of the elements described in the Tenant’s Design Intent, or any works related thereto, in accordance with the terms of this Agreement and Licence for Works but no further.

9.

GRANT OF LEASE

 

9.1

At the time of the execution of this Agreement, the Tenant shall execute the Lease and the Side Letter (and any ancillary documents) in triplicate and they shall be held by the Landlord’s Solicitor in escrow pending the Closing Date.

 

9.2

The Tenant shall become liable to comply with all the covenants on the part of the Tenant and conditions contained in the Lease with effect from the Closing Date.

 

9.3

The Landlord shall, subject to receipt of the relevant stamp duty, stamp the original and counterpart of this Agreement and shall return the original thereof to the Tenant within thirty (30) days of the date hereof.

 

9.4

The term of the Lease held in escrow and the Term Commencement Date, the Rent Commencement Date (as defined in the Lease) and the Service Charge Commencement Date (as defined in the Lease) shall commence on the Closing Date and the Tenant with the consent of the Guarantor hereby irrevocably authorises the Landlord to insert these dates in the relevant parts of the Lease and counterparts thereof on prior agreement with the Tenant’s Solicitor.

10.

VAT

 

10.1

The Landlord confirms to the Tenant that the Landlord will be exercising the Landlord’s Option to Tax.  

 

10.2

Where under this Agreement or the Lease or on the grant of the Lease the Landlord or the Tenant makes or is deemed to have made a supply for VAT purposes then any payment or deemed payment shall be exclusive of VAT and the party making payment shall in addition to all such payments or deemed payments pay to the other party all VAT lawfully payable within ten (10) Working Days of service or delivery of a valid VAT invoice.

11.

PAYMENTS

 

11.1

The Tenant shall, on the signing hereof, pay the stamp duty payable on foot of this Agreement and its counterparts.

 

11.2

The Tenant shall pay on or prior to the Closing Date and prior to entering the Demised Premises to carry out any works:-

 

(a)

an amount equal to one quarter of the Initial Rent as reserved in the Lease;

 

(b)

such sum as the Landlord shall advise (with reasonable supporting evidence) the Tenant as being the advance payment of service charges payable pursuant to the Lease; and

 

(c)

such sum as the Landlord shall advise (with reasonable supporting evidence) the Tenant on account of the first year’s insurance premium payable by the Tenant under the Lease.

PROVIDED THAT all such sums are to be paid to the Landlord’s Solicitor and held by the Landlord’s Solicitor in trust and to the account of the Tenant until such time as the Lease shall be formally granted pursuant to Clause 9.

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11.3

The Tenant shall discharge the VAT (if any) payable on this Agreement and/or the sums payable under the Lease subject to receipt by the Tenant of a valid VAT invoice.

 

11.4

The Landlord shall pay to the Tenant the Capital Contribution (exclusive of any VAT payable) in monthly stages in an amount that is proportionate to the extent to which the relevant CAT A Works have been carried out pursuant to the Tenant’s fit-out contract, SUBJECT ALWAYS to receipt by the Landlord of a Tenant’s Certificate from the Tenant’s Architect detailing the works undertaken, certifying the proportion of the relevant CAT A Works that have been carried out, PROVIDED ALWAYS that there shall be no obligation on the Landlord to pay in excess of 90% of the Capital Contribution unless and until the deliverables set out at Clause 8.8(d) have been delivered to the Landlord.  The Landlord shall make the relevant payment of Capital Contribution within 30 days of receipt of the Tenant’s Certificate or receipt of the deliverables set out in Clause 8.8(d).

 

11.5

The Capital Contribution is stated on a gross basis (exclusive of VAT) but the Landlord may make any deduction or withholding on account of tax as is required under Chapter 2 of Part 18 of the Taxes Consolidation Act 1997. The Tenant receiving the Capital Contribution under this Agreement subject to any such deduction or withholding shall accept the net amount paid after deduction or withholding in discharge of the liability under this Agreement to the same extent as if the deduction or withholding had not been made.

 

11.6

The parties shall co-operate to ensure that all obligations arising under Chapter 2 of Part 18 of the Taxes Consolidation Act 1997 in respect of this Agreement are dealt with in a manner that endeavours not to cause tax difficulties for either party.

 

11.7

For the avoidance of doubt, the parties may also make any deduction or withholding on account of tax as required by law, including any deduction or withholding which does not arise under requirements of law at the date of entering into this Agreement but which may arise at any future date under any circumstances, including any change in law.

 

11.8

The Landlord shall pay to the Tenant a further sum of €27,000 (exclusive of any VAT payable) in lieu of the CAT A Works described in Appendix 7 under the heading ‘5-6 SJRQ’ (the “5-6 CAT A Works”).  The Landlord shall pay to the Tenant the said further sum within 30 days of a certificate from the Tenant’s Architect certifying that the 5-6 CAT A Works are complete.

12.

DOCUMENTS TO BE DELIVERED

 

12.1

The Landlord shall furnish to the Tenant on the Closing Date:

 

(a)

Original Opinions on Compliance;

 

(b)

A soft copy of the safety file for the Landlord’s Works required by the Safety Regulations;

 

(c)

As constructed drawings (to the extent not included in the safety file);

 

(d)

Copy operating manuals (to the extent not included in the safety file);

 

(e)

All Collateral Warranties together with certified copies of the relevant contracts and / appointments and copies of the relevant sub-contracts, and evidence of the up-to-date insurances required to be effected pursuant to the said contracts, sub-contracts and /or appointments;

 

(f)

Certified copy of the Validated Certificate of Compliance on Completion in respect of the Landlord’s Works;

 

(g)

Copy of the Necessary Consents together with all supporting documentation submitted for the relevant applications for such Necessary Consents;

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(h)

A certified copy of the acknowledgement of the relevant planning authority that all financial contributions payable under the Permission regarding the Building are paid in full;

 

(i)

Certified copies of the Certificate of Practical Completion together with the list of Snag Items together with certifies copies of all certificates of practical completion that have been issued under the Building Contract with respect to the Landlord’s Works;

 

(j)

A certified copy of the original Lease (the original to be furnished in accordance with Clause 9.3);

 

(k)

A declaration pursuant to the Family Law Acts;

 

(l)

The original Side Letter fully executed;

 

(m)

The original Licence for Works fully executed (subject to the parties having agreed the Tenant’s Works, the form of Licence for Works and the Tenant having provided the Landlord with all documents required under the Licence for Works);

 

(n)

A letter consenting to the creation of the Lease (and this agreement) from any entity holding a charge over the Demised Premises and the Estate;

 

(o)

A certificate from the company secretary of the Landlord that:

 

(i)

the Landlord has not executed any charges of any description which are not shown as registered in the Companies Registration Office; and

 

(ii)

that no resolution to wind up the Landlord has been passed and that no notice of a meeting at which it is proposed to wind up the Landlord has issued or been published and that no petition has been presented or is pending to wind up the Landlord and no steps have been taken to place the Landlord in receivership or to have a receiver or an examiner appointed;

 

(p)

Copy of the BER certificate for the Building and the full advisory report in relation thereto (the parties note the Landlord’s commitment at Clause 4.4 in this regard);

 

(q)

All documents that the Landlord has agreed to furnish to the Tenant in accordance with the replies given by the Landlord's solicitors;

 

(r)

A letter from the Landlord's insurance brokers (in a form previously agreed with the Tenant) confirming relevant details of  the insurance policy relating to the Building including that premium has been paid and renewal date together with confirmation if available from reputable insurer on reasonable commercial terms containing a waiver of all subrogation rights in respect of the Tenant (including its contractors and its contractor’s sub-contractors subject to the premium for same having been discharged by the Tenant in accordance with Clause 8.6) and confirmation that the policy contains a tenant non-invalidation clause;

 

(s)

Completion searches duly certified and explained (subject to the Tenant's Solicitor furnishing searches to the Landlord’s Solicitor); and

 

(t)

Copies of all keys in the Landlord’s possession in relation to the Demised Premises.

 

12.2

The Landlord shall furnish to the Tenant as soon as possible after the Closing Date a certified copy of the LEED certificate certifying that the Building has achieved a LEED rating (the parties note the Landlord’s commitment at Clause 4.4 in this regard) and will use reasonable endeavours to procure same without undue delay.

22


 

13.

POSSESSION

Upon taking possession of the Demised Premises the Tenant shall be deemed to take possession of the Demised Premises with full knowledge of the actual state and condition of the Demised Premises as to repair, finishes, means of access, enjoyment of light and air, party walls and otherwise, and subject to the terms hereof shall take the same as it stands.  The Tenant confirms that it has received and read the tenant information booklet (the “Tenant Information Booklet”) and takes possession of the Demised Premises on full notice of the contents of the Tenant Information Booklet.

14.

NO ASSIGNMENT

 

14.1

The Tenant shall not assign, under-let, charge, share, part with or otherwise in any way whatsoever (either directly or indirectly) deal with its interest under this Agreement or any part thereof without the prior written consent of the Landlord (such consent not to be unreasonably withheld or delayed), save an assignment to a Group Company (as defined in the Lease).

 

14.2

This Agreement enures for the benefit of the successors and assigns of the Landlord’s interest in the Demised Premises without the necessity for any assignment of it. The Landlord shall not require the prior consent of the Tenant to mortgage, charge, pledge or assign by way of security its interest under the within Agreement to any Funder.

 

14.3

In the event of the Landlord disposing of its interest in the Building or the benefit of this Agreement to a third party, the Landlord shall notify and provide reasonable evidence to the Tenant of said disposal. The Landlord shall inform any purchaser(s) of the Tenant’s interest in the Building of this Agreement and will provide the original Agreement to the purchase(s) notifying them of the covenants and conditions contained in this Agreement, the Lease, the Side Letter and all ancillary documents arising from this transaction. The Landlord shall not dispose of its interest in the Building prior to the Closing Date unless the purchaser accepts and enters into a novation agreement with the Tenant accepting full responsibility and liability for the Landlord’s obligations under this Agreement for Lease, the Lease, Side Letter and any Licence for Works that may have been executed by the Landlord.

15.

NO DAMAGE

The Tenant on behalf of itself, its servants and agents hereby further specifically agrees not to damage the Demised Premises (other than as may be necessary for the completion of the Tenant’s Works, PROVIDED THAT all such damage shall be made good by the Tenant) or any part of the Building or the Estate or any adjoining premises in the course of executing any works on the Demised Premises and if the Tenant, its servants or agents shall cause any damage as aforesaid, the Landlord in addition to any other remedy may make good all such damage where the Tenant fails to make good the damage following 20 Working Days’ notice to the Tenant and the Tenant hereby agrees to pay to the Landlord the sum equal to the reasonable and vouched costs and expenses of making good all such damage within fourteen days of such written demand having been made and if such sum is not paid within that period, the Tenant shall pay interest on such sum at the Prescribed Rate from the expiration of the said fourteen day period until payment is made PROVIDED ALWAYS that where the Tenant is entitled to make a claim against the Landlord’s insurance in relation to the damage, the Tenant shall not be required to make good the damage (and the Landlord shall not be entitled to exercise its remedies under this clause) until such time as the Landlord’s insurers authorise or agree that the damage can be made good without prejudice to the Tenant’s claim under the said insurance.

23


 

16.

TITLE

 

16.1

Landlord’s title

The Tenant confirms that it has received prima facie evidence of the Landlord’s title to the Demised Premises, has been afforded a reasonable opportunity to raise all such pre-lease enquiries as it may have wished in relation to the Landlord’s title, is satisfied with the evidence of Landlord’s title furnished and shall not make any further objections or requisitions in respect of the Landlord’s title to the Demised Premises with the exception of the completion searches.

 

16.2

No implied easements

Nothing in this Agreement shall impliedly confer upon or grant to the Tenant any easement, right or privilege other than those expressly granted by this Agreement or the Lease.

 

16.3

No warranty as to user

Nothing contained in this Agreement shall imply or warrant that the Demised Premises may be used under the Planning Acts and the Public Health Acts for the purpose herein authorised or any purpose subsequently authorised and the Tenant hereby acknowledges and admits that the Landlord has not given or made at any time any representation or warranty that any such use is or will be or will remain a permitted use under the Planning Acts.

 

16.4

Representations

The Tenant acknowledges that this Agreement has not been entered into in reliance wholly or partly on any statement or representation made by or on behalf of the Landlord except any such statement or representation that is expressly set out in this Agreement and in open legal correspondence.

17.

TERMINATION

Termination by Landlord

 

17.1

This Agreement may be terminated by the Landlord upon notification to the Tenant if at any time before completion of the Lease the following occurs:

 

(a)

an event of substantial loss or damage occurs to the Building (other than where caused by the acts or omissions of the Landlord) such that the Landlord cannot deliver the Demised Premises in accordance with the Specification;

 

(b)

any of the events described in the forfeiture provisions of the Lease occur subject to allowances for remedy of breach as outlined therein;

 

(c)

if the Tenant (or the Guarantor) commits a material breach of the terms of this Agreement and, having been given notice of such breach, has failed to remedy (or take material steps to remedy) same within a period of ten (10) Working Days (or such longer period as may be reasonable in light of the nature of the breach) to the reasonable satisfaction of the Landlord;

 

17.2

In the event that the Landlord terminates this Agreement pursuant to Clause 17.1, this Agreement shall for all purposes other than the purposes of this clause be deemed to be absolutely rescinded but without prejudice to any remedy of the Landlord for any breach of this Agreement prior to such rescission:

 

(a)

the Tenant must immediately release or cancel any registration against the Landlord’s title in respect of this Agreement;

24


 

 

(b)

the Tenant must, if in occupation, immediately vacate the Demised Premises and deliver it to the Landlord, who in the event of the Tenant failing to vacate and deliver up the same shall be entitled to recover possession of the Demised Premises from the Tenant by action or otherwise;

 

(c)

the Tenant must remove from the Demised Premises all building and other materials and equipment on the Demised Premises in connection with the Tenant’s Works; and

 

(d)

the Landlord may, after a reasonable time period, take and retain possession of all completed or partially completed Tenant’s Works on the Demised Premises, which are to be forfeited and become the property of the Landlord without the Landlord being liable to make to the Tenant any compensation or allowance in respect of them; and

 

(e)

in the event that the Landlord terminates this Agreement pursuant to Clause 17.1 (b) and (c) only, the Landlord shall be entitled to recover from the Tenant and the Tenant shall pay to the Landlord in addition to all damages, costs and expenses which the Landlord may have suffered by reason of the rescission of this Agreement, if relevant, the licence fee payable in respect of the Demised Premises from the Closing Date up to the date on which the Tenant shall actually vacate the Demised Premises at the rate per day or part thereof which would have been payable by the Tenant under the Lease by way of rent from the said date had the Lease been delivered by the Tenant on the Closing Date and had the rent payable under the Lease been payable as and from such date.

 

17.3

The Tenant hereby agrees to indemnify and keep the Landlord indemnified against all direct expenses, costs, claims, demands, damages and other liabilities whatsoever arising directly from any material breach by the Tenant of any of the terms of this Agreement.

Breach by the Landlord

 

17.4

In the event that the Landlord commits or permits any material breach of the obligations on its part contained in this Agreement which is incapable of remedy then the Tenant may by notice in writing to the Landlord determine this Agreement whereupon this Agreement shall cease absolutely.

 

17.5

If the Landlord’s Works do not achieve Completion on or before the Long Stop Date (as extended in accordance with this Agreement) or the Hard Stop Date, the Tenant shall be entitled to terminate this Agreement by notice in writing to the Landlord whereupon this Agreement shall immediately cease absolutely.

 

17.6

Termination of this Agreement under this Clause 17 shall be without prejudice to any right of action or remedy of either party in respect of any antecedent breach of any of the covenants by either party herein contained.

 

17.7

In the event that this Agreement is terminated pursuant to this Clause 17, the Landlord (or the Landlord’s Solicitor as the case may be) shall return the Lease Documents (as executed by the Tenant) and the sums held in escrow pursuant to Clause 11.2 to the Tenant (or the Tenant’s Solicitor) within thirty (30) days following the date of termination.

18.

NOT A DEMISE

 

18.1

This Agreement is not intended nor shall it operate or be deemed to operate either at law or in equity as a demise of the Demised Premises notwithstanding that the Landlord could deliver or that either the Landlord or the Tenant or either of them could specifically enforce the delivery of the Lease nor shall the Tenant have or be entitled to any estate, right or interest in the Demised Premises or any part thereof or in any materials in or upon the same or any part thereof nor shall the relationship of Landlord and Tenant exist or arise or be deemed to exist or arise between the parties hereto.

25


 

19.

STAMP DUTY

The Tenant shall be responsible for and discharge to the Landlord on demand all stamp duty arising in respect of this Agreement, the Lease and Counterparts thereof.

20.

AGREEMENT TO REMAIN IN FORCE

The terms and conditions of this Agreement shall remain in full force and effect notwithstanding the grant of the Lease insofar as they remain to be observed and performed.

21.

SEVERANCE

If any term or provision of this Agreement shall be held to be invalid or unenforceable in whole or in part for any reason then such term or provision shall to that extent be deemed not to form part of this Agreement and the validity and enforceability of the remainder of this Agreement shall not be affected.

22.

GUARANTOR

The Guarantor jointly and severally covenants with the Landlord as a primary obligation that:

 

22.1

the Tenant or the Guarantor shall perform and observe the covenants and conditions on the part of the Tenant herein contained and that the Guarantor shall be a party to the Lease in the manner therein provided;

 

22.2

the Guarantor indemnifies the Landlord against all claims, demands, losses, damages, liability, costs, fees and expenses whatsoever sustained by the Landlord by reason of or arising out of any default by the Tenant in the performance and observance of any of its obligations to the Landlord under this Agreement;

 

22.3

that the Guarantor is jointly and severally liable with the Tenant (whether before or after any disclaimer by a liquidator, official assignee, trustee in bankruptcy or other persons administering the assets of the Tenant or whether before or after any repudiation by an examiner or other persons administering the assets of the Tenant) for the fulfilment of all the obligations of the Tenant under this Agreement and agrees that the Landlord in the enforcement of its rights hereunder, may proceed against the Guarantor as if the Guarantor was named as the Tenant in this Agreement;

 

22.4

the Guarantor provisions to the Lease are to apply to the Guarantor’s obligations under this clause in respect of the Tenant’s obligations to the Landlord under this Agreement mutatis mutandis as if same were set out in full in this Agreement;

 

22.5

The Guarantor shall be released from its obligations as Guarantor (under this Agreement and the Lease) on the happening of the earliest of the following events:

 

(a)

In the event of this Agreement being assigned with the prior written consent of the Landlord (but such release shall only become effective on completion of such assignment); and

26


 

 

(b)

where it is finally determined (after any appeals have been exhausted) by the Irish courts that the Landlord has unreasonably withheld its consent to a proposed assignment of this Agreement and such assignment subsequently proceeds (but such release shall only become effective on completion of such assignment).

 

22.6

In the event that the Guarantor as named in this Agreement ceases to be the principal holding company of the Tenant; or is acquired by a third party, then the Tenant and/or the Guarantor shall immediately notify the Landlord and the Tenant will ensure that the Guarantor as named in this Agreement for Lease is replaced with another entity acceptable to the Landlord (acting reasonably). In such circumstances, the Tenant and/or the Guarantor will provide all information required by the Landlord to satisfy itself as to the financial standing of the proposed guarantor.

23.

BUILDING NAMING RIGHTS

The Landlord agrees that, as the Demised Premises consists of the entire office area of the Building, the Tenant shall, for so long as it has the entire interest under the Lease, have the right to name (and rename) the Building subject to Landlord consent which consent may only be refused on the grounds that the name is offensive or likely to upset public sentiment.  The Tenant shall be entitled to publish or otherwise publicise the name of the Building and subject to Clause 3, submit any planning application for any Landlord approved signage to display the Building name.

24.

NOTICES

 

24.1

Any notice under this Agreement shall be effectively given if sent by post or delivered by hand or by prepaid registered or recorded delivery mail to the intended recipient (FAO Legal Department in the case of service on the Tenant) or its Solicitors, at its registered address (if a company) or to his or their last known address (if an individual).  Where sent by post, the notice shall be deemed to be served on the second day after posting.  Any notice served on the Tenant and / or Guarantor shall also be copied by email to the following email address(es) (but any failure or omission to do so shall not prejudice or invalidate the notice served on the Tenant or the Guarantor).

 

(i)

jkelleher@hubspot.com

 

(ii)

kpapa@hubspot.com

 

24.2

Where the last day for taking any step would but for this provision be Christmas Day, Good Friday, a Saturday or Sunday or a Public Holiday such last day shall be the next following working day instead.

25.

JURISDICTION

This Agreement shall be construed in accordance with the Laws of Ireland.

27


 

Appendix 1

 

Form of Collateral Warranties

 

 

28


 

 

Dated the

day of

2018

 

 

PERMASTEELISA IRELAND LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

SUB-CONTRACTOR TO BENEFICIARY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HI116/071/AC#29246067.I


 

 

THIS AGREEMENT is made the

 

day of

 

2018

BETWEEN

(1)

PERMASTEELISA IRELAND LIMITED with company registration number 401929 and whose registered office is at c/o Lacey Consulting, 21 Priory Hall, Stillorgan Road, Stillorgan Co. Dublin (“the Sub-Contractor”); and

(2)

● with company registration number ● and whose registered office is at (“Beneficiary”), (together the “Parties” and each a “Party”).

WHEREAS:

A.

The Employer has entered into a contract dated 2 February 2017 (the “Contract”) with John Paul Construction Limited (the “Contractor”) in respect of certain works (the “Works”) which form part of a commercial mixed use development at 1-6 Sir John Rogerson's Quay, Dublin 2 (the “Project”).

B.

The Contractor has appointed the Sub-Contractor by an agreement dated the 5th day of March 2017 (the “Sub-Contract”) to carry out certain works forming part of the Works (the “Sub­ Contract Works”).

C.

The Beneficiary bas agreed to take a lease of part of the Project.

D.

Under the terms of the Sub-Contract, the Sub-Contractor has agreed to enter into this Deed with the Beneficiary.

NOW IT IS HEREBY AGREED between the Beneficiary and the Sub-Contractor that in consideration of the sum of €10.00 now paid by the Beneficiary to the Sub-Contractor (sufficiency and receipt of which is hereby acknowledged) the following warranties and agreements shall have effect:

1.

The Sub-Contractor warrants to the Beneficiary that it has performed and will perform its obligations in respect of the Sub-Contract Works in accordance with the terms of the Sub­ Contract and that it has not broken and shall not break any express or implied terms of the Sub­ Contract.

2.

The Sub-Contractor warrants and undertakes to the Beneficiary that it will exercise all due and proper skill, care and diligence to be expected of a professionally qualified sub-contractor experienced in constructing sub-contract works of a similar nature, size, scope and complexity as the Sub-Contract Works in relation to:

 

2.1

the design (to the extent required by the Sub-Contract) and the construction of the Sub­ Contract Works, including the supervision of all sub-sub-contractors of whatever tier (to such extent as the Sub-Contractor has an obligation to so supervise pursuant to the Sub-Contract or at common law) and

 

2.2

the selection of materials and goods for the Sub-Contract Works, in so far as such goods and materials have been or will be selected by the Sub-Contractor, and

 

2.3

the satisfaction of any performance specifications or requirements in so far as such performance specifications or requirements are included in or referred to in the Sub­ Contract to ensure the Sub-Contract Works are suitable for the purpose intended, and

 

2.4

the performance of all other services and duties performed or undertaken or to be performed or undertaken by the Sub-Contractor pursuant to the Sub-Contract.

3.

The Sub-Contractor shall indemnify and keep indemnified the Beneficiary against any documented loss or expense incurred by the Beneficiary as a result of any breach of the provisions of the Sub-Contract or failure by the Sub-Contractor to comply with the terms thereof.

 


 

4.

[Not Used]

5.

The Sub-Contractor shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years (144 months) from the date of Practical Completion of the Works or 30 December 2030 (whichever is the earlier).

6.

To the extent that design forms part of the Sub-Contract, the Sub- Contractor shall take out before commencing the Sub-Contract Works professional indemnity insurance in an amount of not less than €10,000,000 (ten million euro) in the annual aggregate for a period commencing now and ending 12 (twelve) years after the date of Practical Completion of the Works provided always that such insurance is generally available at commercially reasonable rates and terms. The Sub-Contractor shall notify the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms in order that the Sub-Contractor and the Beneficiary can discuss the best means of protecting their respective interests in respect of the Sub-Contract Works in the absence of such insurance. As and when it is reasonably requested to do so by the Beneficiary, the Sub-Contractor shall produce for inspection documentary evidence that its professional indemnity insurance is being maintained.

7.

The copyright in all drawings, report, specifications, bills of quantities, calculations and other similar documents provided by or on behalf of the Sub-Contractor in connection with the Sub­ Contract Works shall remain vested in the Sub-Contractor, but the Beneficiary and its appointee shall have an irrevocable royalty free licence to copy and use such drawings and other documents and to reproduce the designs contained in them for any purpose relating to the Sub­ Contract Works, including, without limitation, the construction, completion, maintenance, letting, promotion, advertisement, reinstatement and repair of the Sub-Contract Works. The Sub-Contractor shall not be liable for any use by the Beneficiary or its appointee of any drawings and other documents for any purpose other than that for which the same were prepared by or on behalf of the Sub-Contractor.

8.

Without requiring the Sub-Contractor's consent the Beneficiary's rights under this Agreement may be assigned by the Beneficiary to another tenant without payment of any fee to the Sub­ Contractor. Any further assignments shall be subject to the prior written consent of the Sub­ Contractor (not to be unreasonably withheld, delayed or conditioned) but without the payment of any fee PROVIDED THAT nothing in this Agreement will restrict an assignment of the Beneficiary's interest in this Agreement to any subsidiary, holding company or associated company of the Beneficiary or any funder of the Beneficiary.

9.

The Sub-Contractor undertakes with and warrants to the Beneficiary that it has not used or specified for use and will not use or specify for use (or permit the use or specification by others) in the construction of the Sub-Contract Works any substances or materials which are not in accordance with Irish Standards or Codes of Practice in so far as they may be applicable or relevant (and if there are no Irish Standards or Codes of Practice then the appropriate British Standards and Codes which shall be applicable or relevant) or any materials or substances known to the building trade or profession at the time of specification to be deleterious to health or safety or the durability or suitability of the Sub-Contract Works in the particular circumstances in which the same is used.

13.

Any notice to be given by the Sub-Contractor and / or Beneficiary hereunder shall be deemed to be duly given if it is delivered by hand at or sent by registered post to the Beneficiary and/or Sub-Contractor at its address set out above, and in the case of any such notices the same shall, if sent by registered post, be deemed to have been received forty eight hours after being posted.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year fust herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

BENEFICIARY

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

SUB-CONTRACTOR

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 


 

Dated the

day of

2018

 

 

PJ EDWARDS & COMPANY LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

SUB-CONTRACTOR TO BENEFICIARY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

H1116/071/AC#29245835.1

 


 

THIS AGREEMENT is made the

 

day of

 

2018

BETWEEN

(1)

PJ EDWARDS & COMPANY LIMITED with company registration number 39007 and whose registered office is at Kennelsfort Road, Palmerstown, Dublin 20 (“the Sub-Contractor”); and

(2)

with company registration number ● and whose registered office is at ● (“Beneficiary”), (together the “Parties” and each a “Party”).

WHEREAS:

A.

The Employer has entered into a contract dated 2 February 2017 (the “Contract”) with John Paul Construction Limited (the “Contractor”) in respect of certain works (the “Works”) which form part of a commercial mixed use development at 1-6 Sir John Rogerson's Quay, Dublin 2 (the “Project”).

B.

The Contractor has appointed the Sub-Contractor by an agreement dated the 26th day of April 2016 (the “Sub-Contract”) to carry out certain works forming part of the Works (the “Sub­ contract Works”).

C.

The Beneficiary has agreed to take a lease of part of the Project.

D.

Under the terms of the Sub-Contract, the Sub-Contractor has agreed to enter into this Deed with the Beneficiary.

NOW IT IS HEREBY AGREED between the Beneficiary and the Sub-Contractor that in consideration of the sum of €10.00 now paid by the Beneficiary to the Sub-Contractor (sufficiency and receipt of which is hereby acknowledged) the following warranties and agreements shall have effect:

1.

The Sub-Contractor warrants to the Beneficiary that it has performed and will perform its obligations in respect of the Sub-Contract Works in accordance with the terms of the Sub­ Contract and that it has not broken and shall not break any express or implied terms of the Sub­ Contract.

2.

The Sub-Contractor warrants and undertakes to the Beneficiary that it will exercise all due and reasonable skill, care and diligence to be expected of a professionally qualified sub­ contractor experienced in constructing sub-contract works of a similar nature, size, scope and complexity as the Sub-Contract Works in relation to:

 

2.1

the design (to the extent impliedly or expressly required by the Sub-Contract) and the construction of the Sub-Contract Works, including, but not limited to the supervision of all sub-sub-contractors of whatever tier (to such extent as the Sub-Contractor has an obligation to so supervise pursuant to the Sub-Contract or at common law) and

 

2.2

the selection of materials and goods for the Sub-Contract Works, in so far as such goods and materials have been or will be selected by the Sub-Contractor, and

 

2.3

the satisfaction of any performance specifications or requirements in so far as such performance specifications or requirements are included, referred to or implied in the Sub-Contract to ensure the Sub-Contract Works are suitable for the purpose intended, and

 


 

 

2.4

the performance of all other services and duties performed or undertaken or to be performed or undertaken by the Sub-Contractor pursuant to the Sub-Contract.

3.

The Sub-Contractor shall indemnify and keep indemnified the Beneficiary against any loss or expense incurred by the Beneficiary as a result of any breach of the provisions of the Sub­ Contract or failure by the Sub-Contractor to comply with the terms thereof or any valid instructions or requirements of the Architect appointed by the Employer or as a result of the termination of the Sub-Contractor's employment under the Sub-Contract.

4.

[Not Used]

5.

The Sub-Contractor shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years from the date of Practical Completion of the Works (as defined in the Contract).

6.

To the extent that design impliedly or expressly forms part of the Sub-Contract, the Sub­ Contractor shall take out before commencing the Sub-Contract Works professional indemnity insurance in an amount of not less than €6,500,000 (six million, five hundred thousand euro) any one accident or in the aggregate for a period commencing now and ending 12 (twelve) years after the date of Practical Completion of the Works provided always that such insurance is generally available at commercially reasonable rates and terms. The Sub-Contractor shall notify the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms in order that the Sub-Contractor and the Beneficiary can discuss the best means of protecting their respective interests in respect of the Sub-Contract Works in the absence of such insurance. As and when it is reasonably requested to do so by the Beneficiary, the Sub-Contractor shall produce for inspection documentary evidence that its professional indemnity insurance is being maintained. The terms and conditions of the policy of said insurance shall not include any term or condition to the effect that the Sub-Contractor must discharge any liability before being entitled to recover from its insurers. The Sub-Contractor shall not without the prior written approval of the Beneficiary settle or compromise with the insurers that which relates to a claim by the Beneficiary against the Sub-Contractor or by any act or omission loss or prejudice the Beneficiary's rights to make or proceed with such a claim against the insurer.

7.

The copyright in all drawings, report, specifications, bills of quantities, calculations and other similar documents provided by or on behalf of the Sub-Contractor in connection with the Sub­ Contract Works shall remain vested in the Sub-Contractor, but the Beneficiary and its appointee shall have an irrevocable royalty free licence to copy and use such drawings and other documents and to reproduce the designs contained in them for any purpose relating to the Sub­ Contract Works, including, without limitation, the construction, completion, maintenance, letting, promotion, advertisement, reinstatement and repair of the Sub-Contract Works. The Sub-Contractor shall not be liable for any use by the Beneficiary or its appointee of any drawings and other documents for any purpose other than that for which the same were prepared by or on behalf of the Sub-Contractor.

8.

Without requiring the Sub-Contractor's consent the Beneficiary's rights under this Agreement may be assigned twice, by the Beneficiary to another party and in turn by that party to another without payment of any fee to the Sub-Contractor. Any further assignments shall be subject to the prior written consent of the Sub-Contractor (not to be unreasonably withheld, delayed or conditioned) PROVIDED THAT nothing in this Agreement will restrict an assignment of the Beneficiary's interest in this Agreement to any subsidiary, holding company or associated company of the Beneficiary or any funder of the Beneficiary.

 


 

9.

The Sub-Contractor undertakes with and warrants to the Beneficiary that it has not used or specified for use and will not use or specify for use (or permit the use or specification by others) in the construction of the Sub-Contract Works any substances or materials which are not in accordance with Irish Standards or Codes of Practice in so far as they may be applicable or relevant (and if there are no Irish Standards or Codes of Practice then the appropriate British Standards and Codes which shall be applicable or relevant) or any materials or substances known to the building trade or profession at the time of specification to be deleterious to health or safety or the durability or suitability of the Sub-Contract Works in the particular circumstances in which the same is used.

10.

If any dispute, difference or question (a “dispute”) shall at any time hereafter arise between the parties to this Agreement or their respective assigns arising under or in connection with this Agreement, then a party shall deliver by hand or send by certified mail to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within 7 (seven) days after the service of the notice of the dispute, the parties shall confer at least once to attempt to resolve the dispute or to agree to methods of resolving the dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute.

11.

If the dispute has not been resolved within 21 (twenty one) days of the service of the notice of dispute, or such other time as may be mutually agreed by the parties prior to the expiry of 21 (twenty one) days of the service of the notice of the dispute, either party shall be able to refer the dispute to arbitration by a person to be agreed between the parties, or, failing agreement between the parties within 14 (fourteen) days of either party having made a request in writing to the other party to concur in the appointment of an arbitrator, a person to be nominated upon the application of either party by the President for the time being of the Engineers Ireland. Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act, 2010. Provided always that if the difference or dispute to be referred to arbitration under this Agreement raises issues which are substantially the same as/or connected with issues raised in a related dispute between the Beneficiary and/or the Sub­ Contractor and any third party and if such related dispute has already been referred for determination to an arbitrator or any court the parties agree that the difference or dispute under this Agreement shall be referred to such arbitrator or such court. Unless otherwise agreed between the parties the venue for any such arbitration shall be Dublin.

12.

This Agreement shall be governed by and construed in accordance with the laws of Ireland and, subject to Clauses 10 and 11, the parties irrevocably submit to the non-exclusive jurisdiction of the Irish Courts.

13.

Any notice to be given by the Sub-Contractor hereunder shall be deemed to be duly given if it is delivered by hand at or sent by registered post to the Beneficiary at its address set out above and any notice to be given by the Beneficiary hereunder shall be deemed to be duly given if it is delivered by hand or sent by registered post to the Sub-Contractor at its address set out above, and in the case of any such notices the same shall, if sent by registered post, be deemed to have been received forty eight hours after being posted.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year first herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

BENEFICIARY

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

SUB-CONTRACTOR

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 


 

Dated the

day of

2018

 

 

T. BOURKE & CO. LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

SUB-CONTRACTOR TO BENEFICIARY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

H1116/071/AC#29246030.1

 


 

THIS AGREEMENT is made the

 

day of

 

2018

BETWEEN

(1)

T. BOURKE & CO. LIMITED with company registration number 39174 and whose registered office is at T22 Maple Avenue, Stillorgan Industrial Park, Blackrock, Co. Dublin (“the Sub-Contractor”); and

(2)

with company registration number and whose registered office is at (“Beneficiary”), (together the “Parties” and each a “Party”).

WHEREAS:

A.

The Employer has entered into a contract dated 2 February 2017 (the “Contract”) with John Paul Construction Limited (the “Contractor”) in respect of certain works (the “Works”) which form part of a commercial mixed use development at 1-6 Sir John Rogerson' s Quay, Dublin 2 (the “Project”).

B.

The Contractor has appointed the Sub-Contractor by an agreement dated the 11th day of November 2016 (the “Sub-Contract”) to carry out certain works forming part of the Works (the “Sub-Contract Works”).

C.

The Beneficiary has agreed to take a lease of part of the Project.

D.

Under the terms of the Sub-Contract, the Sub-Contractor has agreed to enter into this Deed with the Beneficiary.

NOW IT IS HEREBY AGREED between the Beneficiary and the Sub-Contractor that in consideration of the sum of €10.00 now paid by the Beneficiary to the Sub-Contractor (sufficiency and receipt of which is hereby acknowledged) the following warranties and agreements shall have effect:

1.

The Sub-Contractor warrants to the Beneficiary that it has performed and will perform its obligations in respect of the Sub-Contract Works in accordance with the terms of the Sub­ Contract and that it has not broken and shall not break any express or implied terms of the Sub­ Contract.

2.

The Sub-Contractor warrants and undertakes to the Beneficiary that it will exercise all due and proper skill, care and diligence to be expected of a professionally qualified sub-contractor experience in constructing sub-contract works of a similar nature, size, scope and complexity as the Sub-Contract Works in relation to:

 

2.1

the design (to the extent impliedly or expressly required by the Sub-Contract) and the construction of the Sub-Contract Works, including, but not limited to the supervision of all sub-sub-contractors of whatever tier (to such extent as the Sub-Contractor has an obligation to so supervise pursuant to the Sub-Contract or at common law) and

 

2.2

the selection of materials and goods for the Sub-Contract Works, in so far as such goods and materials have been or will be selected by the Sub-Contractor, and

 

2.3

the satisfaction of any performance specifications or requirements in so far as such performance specifications or requirements are included, referred to or implied in the Sub-Contract to ensure the Sub-Contract Works are suitable for the purpose intended, and

 


 

 

2.4

the performance of all other services and duties performed or undertaken or to be performed or undertaken by the Sub-Contractor pursuant to the Sub-Contract.

3.

The Sub-Contractor shall indemnify and keep indemnified the Beneficiary against any loss or expense incurred by the Beneficiary as a result of any breach of the provisions of the Sub­ Contract or failure by the Sub-Contractor to comply with the terms thereof or any valid instructions or requirements of the Architect appointed by the Employer or as a result of the termination of the Sub-Contractor's employment under the Sub-Contract.

4.

[Not Used]

5.

The Sub-Contractor shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years from the date of Practical Completion of the Works (as defined in the Contract).

6.

To the extent that design impliedly or expressly forms part of the Sub-Contract, the Sub­ Contractor shall take out before commencing the Sub-Contract Works professional indemnity insurance in an amount of not less than €6,500,000 (six million, five hundred thousand euro) in respect of any one claim or series of claims arising out of any one event for a period commencing now and ending 12 (twelve) years after the date of Practical Completion of the Works provided always that such insurance is generally available at commercially reasonable rates and terms. The Sub-Contractor shall notify the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms in order that the Sub-Contractor and the Beneficiary can discuss the best means of protecting their respective interests in respect of the Sub-Contract Works in the absence of such insurance. As and when it is reasonably requested to do so by the Beneficiary, the Sub-Contractor shall produce for inspection documentary evidence that its professional indemnity insurance is being maintained. The terms and conditions of the policy of said insurance shall not include any term or condition to the effect that the Sub-Contractor must discharge any liability before being entitled to recover from its insurers. The Sub-Contractor shall not without the prior written approval of the Beneficiary settle or compromise with the insurers that which relates to a claim by the Beneficiary against the Sub-Contractor or by any act or omission loss or prejudice the Beneficiary's rights to make or proceed with such a claim against the insurer.

7.

The copyright in all drawings, report, specifications, bills of quantities, calculations and other similar documents provided by or on behalf of the Sub-Contractor in connection with the Sub­ Contract Works shall remain vested in the Sub-Contractor, but the Beneficiary and its appointee shall have an irrevocable royalty free licence to copy and use such drawings and other documents and to reproduce the designs contained in them for any purpose relating to the Sub­ Contract Works, including, without limitation, the construction, completion, maintenance, letting, promotion, advertisement, reinstatement and repair of the Sub-Contract Works. The Sub-Contractor shall not be liable for any use by the Beneficiary or its appointee of any drawings and other documents for any purpose other than that for which the same were prepared by or on behalf of the Sub-Contractor.

8.

Without requiring the Sub-Contractor's consent the Beneficiary's rights under this Agreement may be assigned twice, by the Beneficiary to another party and in turn by that party to another without payment of any fee to the Sub-Contractor. Any further assignments shall be subject to the prior written consent of the Sub-Contractor (not to be unreasonably withheld, delayed or conditioned) PROVIDED THAT nothing in this Agreement will restrict an assignment of the Beneficiary's interest in this Agreement to any subsidiary, holding company or associated company of the Beneficiary or any funder of the Beneficiary.

 


 

9.

The Sub-Contractor undertakes with and warrants to the Beneficiary that it has not used or specified for use and will not use or specify for use (or permit the use or specification by others) in the construction of the Sub-Contract Works any substances or materials which are not in accordance with Irish Standards or Codes of Practice in so far as they may be applicable or relevant (and if there are no Irish Standards or Codes of Practice then the appropriate British Standards and Codes which shall be applicable or relevant) or any materials or substances known to the building trade or profession at the time of specification to be deleterious to health or safety or the durability or suitability of the Sub-Contract Works in the particular circumstances in which the same is used.

10.

If any dispute, difference or question (a “dispute”) shall at any time hereafter arise between the parties to this Agreement or their respective assigns arising under or in connection with this Agreement, then a party shall deliver by hand or send by certified mail to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within 7 (seven) days after the service of the notice of the dispute, the parties shall confer at least once to attempt to resolve the dispute or to agree to methods of resolving the dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute.

11.

If the dispute has not been resolved within 21 (twenty one) days of the service of the notice of dispute, or such other time as may be mutually agreed by the parties prior to the expiry of 21 (twenty one) days of the service of the notice of the dispute, either party shall be able to refer the dispute to arbitration by a person to be agreed between the parties, or, failing agreement between the parties within 14 (fourteen) days of either party having made a request in writing to the other party to concur in the appointment of an arbitrator, a person to be nominated upon the application of either party by the President for the time being of the Engineers Ireland. Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act, 2010. Provided always that if the difference or dispute to be referred to arbitration under this Agreement raises issues which are substantially the same as/or connected with issues raised in a related dispute between the Beneficiary and/or the Sub­ Contractor and any third party and if such related dispute has already been referred for determination to an arbitrator or any court the parties agree that the difference or dispute under this Agreement shall be referred to such arbitrator or such court. Unless otherwise agreed between the parties the venue for any such arbitration shall be Dublin.

12.

This Agreement shall be governed by and construed in accordance with the laws of Ireland and, subject to Clauses 10 and 11, the parties irrevocably submit to the non-exclusive jurisdiction of the Irish Courts.

13.

Any notice to be given by the Sub-Contractor hereunder shall be deemed to be duly given if it is delivered by hand at or sent by registered post to the Beneficiary at its address set out above and any notice to be given by the Beneficiary hereunder shall be deemed to be duly given if it is delivered by hand or sent by registered post to the Sub-Contractor at its address set out above, and in the case of any such notices the same shall, if sent by registered post, be deemed to have been received forty eight hours after being posted.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year first herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

BENEFICIARY

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

SUB-CONTRACTOR

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 


 

Dated the

day of

2018

 

 

KIERNAN STRUCTURAL STEEL LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

SUB-CONTRACTOR TO BENEFICIARY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

H1116/071/AC#29245995.l

 

 


 

THIS AGREEMENT is made the

 

day of

 

2018

BETWEEN

(1)

KIERNAN STRUCTURAL STEEL LIMITED with company registration number 332551 and whose registered office is at Carrigglas, Longford (“the Sub-Contractor”); and

(2)

● with company registration number ● and whose registered office is at ● (“Beneficiary”), (together the “Parties” and each a “Party”).

WHEREAS:

A.

The Employer has entered into a contract dated 2 February 2017 (the “Contract”) with John Paul Construction Limited (the “Contractor”) in respect of certain works (the “Works”) which form part of a commercial mixed use development at 1-6 Sir John Rogerson’ s Quay, Dublin 2 (the “Project”).

B.

The Contractor has appointed the Sub-Contractor by an agreement dated the 4th day of July 2016 (the “Sub-Contract”) to carry out certain works forming part of the Works (the “Sub­ Contract Works”).

C.

The Beneficiary has agreed to take a lease of part of the Project.

D.

Under the terms of the Sub-Contract, the Sub-Contractor has agreed to enter into this Deed with the Beneficiary.

NOW IT IS HEREBY AGREED between the Beneficiary and the Sub-Contractor that in consideration of the sum of €10.00 now paid by the Beneficiary to the Sub-Contractor (sufficiency and receipt of which is hereby acknowledged) the following warranties and agreements shall have effect:

1.

The Sub-Contractor warrants to the Beneficiary that it has performed and will perform its obligations in respect of the Sub-Contract Works in accordance with the terms of the Sub­ Contract and that it has not broken and shall not break any express or implied terms of the Sub­ Contract.

2.

The Sub-Contractor warrants and undertakes to the Beneficiary that it will exercise all due and proper skill, care and diligence to be expected of a professionally qualified sub-contractor experienced in constructing sub-contract works of a similar nature, size, scope and complexity as the Sub-Contract Works in relation to:

 

2.1

the design (to the extent impliedly or expressly required by the Sub-Contract) and the construction of the Sub-Contract Works, including, but not limited to the supervision of all sub-sub-contractors of whatever tier (to such extent as the Sub-Contractor has an obligation to so supervise pursuant to the Sub-Contract or at common law) and

 

2.2

the selection of materials and goods for the Sub-Contract Works, in so far as such goods and materials have been or will be selected by the Sub-Contractor, and

 

2.3

the satisfaction of any performance specifications or requirements in so far as such performance specifications or requirements are included, referred to or implied in the Sub-Contract to ensure the Sub-Contract Works are suitable for the purpose intended, and

 

2.4

the performance of all other services and duties performed or undertaken or to be performed or undertaken by the Sub-Contractor pursuant to the Sub-Contract.

 


 

3.

The Sub-Contractor shall indemnify and keep indemnified the Beneficiary against any loss or expense incurred by the Beneficiary as a result of any breach of the provisions of the Sub­ Contract or failure by the Sub-Contractor to comply with the tenns thereof or any valid instructions or requirements of the Architect appointed by the Employer or as a result of the termination of the Sub-Contractor's employment under the Sub-Contract.

4.

[Not Used]

5.

The Sub-Contractor shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years from the date of Practical Completion of the Works (as defined in the Contract).

6.

To the extent that design impliedly or expressly forms part of the Sub-Contract, the Sub­ Contractor shall take out before commencing the Sub-Contract Works professional indemnity insurance in an amount of not less than €6,500,000 (six million, five hundred thousand euro) in respect of any one claim or series of claims arising out of any one event for a period commencing now and ending 12 (twelve) years after the date of Practical Completion of the Works provided always that such insurance is generally available at commercially reasonable rates and terms. The Sub-Contractor shall notify the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms in order that the Sub-Contractor and the Beneficiary can discuss the best means of protecting their respective interests in respect of the Sub-Contract Works in the absence of such insurance. As and when it is reasonably requested to do so by the Beneficiary, the Sub-Contractor shall produce for inspection documentary evidence that its professional indemnity insurance is being maintained. The terms and conditions of the policy of said insurance shall not include any term or condition to the effect that the Sub-Contractor must discharge any liability before being entitled to recover from its insurers. The Sub-Contractor shall not without the prior written approval of the Beneficiary settle or compromise with the insurers that which relates to a claim by the Beneficiary against the Sub-Contractor or by any act or omission loss or prejudice the Beneficiary's rights to make or proceed with such a claim against the insurer.

7.

The copyright in all drawings, report, specifications, bills of quantities, calculations and other similar documents provided by or on behalf of the Sub-Contractor in connection with the Sub­ Contract Works shall remain vested in the Sub-Contractor, but the Beneficiary and its appointee shall have an irrevocable royalty free licence to copy and use such drawings and other documents and to reproduce the designs contained in them for any purpose relating to the Sub­ Contract Works, including, without limitation, the construction, completion, maintenance, letting, promotion, advertisement, reinstatement and repair of the Sub-Contract Works. The Sub-Contractor shall not be liable for any use by the Beneficiary or its appointee of any drawings and other documents for any purpose other than that for which the same were prepared by or on behalf of the Sub-Contractor.

8.

Without requiring the Sub-Contractor's consent the Beneficiary's rights under this Agreement may be assigned twice, by the Beneficiary to another party and in turn by that party to another without payment of any fee to the Sub-Contractor. Any further assignments shall be subject to the prior written consent of the Sub-Contractor (not to be unreasonably withheld, delayed or conditioned) PROVIDED THAT nothing in this Agreement will restrict an assignment of the Beneficiary's interest in this Agreement to any subsidiary, holding company or associated company of the Beneficiary or any funder of the Beneficiary.

 


 

9.

The Sub-Contractor undertakes with and warrants to the Beneficiary that it has not used or specified for use and will not use or specify for use (or permit the use or specification by others) in the construction of the Sub-Contract Works any substances or materials which are not in accordance with Irish Standards or Codes of Practice in so far as they may be applicable or relevant (and if there are no Irish Standards or Codes of Practice then the appropriate British Standards and Codes which shall be applicable or relevant) or any materials or substances known to the building trade or profession at the time of specification to be deleterious to health or safety or the durability or suitability of the Sub-Contract Works in the particular circumstances in which the same is used.

10.

If any dispute, difference or question (a “dispute”) shall at any time hereafter arise between the parties to this Agreement or their respective assigns arising under or in connection with this Agreement, then a party shall deliver by hand or send by certified mail to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within 7 (seven) days after the service of the notice of the dispute, the parties shall confer at least once to attempt to resolve the dispute or to agree-to methods of resolving the dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute.

11.

If the dispute has not been resolved within 21 (twenty one) days of the service of the notice of dispute, or such other time as may be mutually agreed by the parties prior to the expiry of 21 (twenty one) days of the service of the notice of the dispute, either party shall be able to refer the dispute to arbitration by a person to be agreed between the parties, or, failing agreement between the parties within 14 (fourteen) days of either party having made a request in writing to the other party to concur in the appointment of an arbitrator, a person to be nominated upon the application of either party by the President for the time being of the Engineers Ireland. Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act, 2010. Provided always that if the difference or dispute to be referred to arbitration under this Agreement raises issues which are substantially the same as/or connected with issues raised in a related dispute between the Beneficiary and/or the Sub­ Contractor and any third party and if such related dispute has already been referred for determination to an arbitrator or any court the parties agree that the difference or dispute under this Agreement shall be referred to such arbitrator or such court. Unless otherwise agreed between the parties the venue for any such arbitration shall be Dublin.

12.

This Agreement shall be governed by and construed in accordance with the laws of Ireland and, subject to Clauses 10 and 11, the parties irrevocably submit to the non-exclusive jurisdiction of the Irish Courts.

13.

Any notice to be given by the Sub-Contractor hereunder shall be deemed to be duly given if it is delivered by hand at or sent by registered post to the Beneficiary at its address set out above and any notice to be given by the Beneficiary hereunder shall be deemed to be duly given if it is delivered by hand or sent by registered post to the Sub-Contractor at its address set out above, and in the case of any such notices the same shall, if sent by registered post, be deemed to have been received forty eight hours after being posted.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year first herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

BENEFICIARY

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

SUB-CONTRACTOR

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 


 

Dated the

day of

2018

 

 

DESIGNER GROUP ENGINEERING CONTRACTORS LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

SUB-CONTRACTOR TO BENEFICIARY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

H1116/071/AC#29245942.l

 

 


 

THIS AGREEMENT is made the

 

day of

 

2018

BETWEEN

(1)

DESIGNER GROUP ENGINEERING CONTRACTORS LIMITED with company registration number 196956 and whose registered office is at 52 Nore Road, Dublin Industrial Estate, Dublin 11, D11 V677 (“the Sub-Contractor”); and

(2)

● with company registration number ● and whose registered office is at ● (“Beneficiary”), (together the “Parties” and each a “Party”).

WHEREAS:

A.

The Employer has entered into a contract dated 2 February 2017 (the “Contract”) with John Paul Construction Limited (the “Contractor”) in respect of certain works (the “Works”) which form part of a commercial mixed use development at 1-6 Sir John Rogerson's Quay, Dublin 2 (the “Project”).

B.

The Contractor has appointed the Sub-Contractor by an agreement dated the 11th day of November 2016 (the “Sub-Contract”) to carry out certain works forming part of the Works (the “Sub-Contract Works”).

C.

The Beneficiary has agreed to take a lease of part of the Project.

D.

Under the terms of the Sub-Contract, the Sub-Contractor has agreed to enter into this Deed with the Beneficiary.

NOW IT IS HEREBY AGREED between the Beneficiary and the Sub-Contractor that in consideration of the sum of €10.00 now paid by the Beneficiary to the Sub-Contractor (sufficiency and receipt of which is hereby acknowledged) the following warranties and agreements shall have effect:

1.

The Sub-Contractor warrants to the Beneficiary that it has performed and will perform its obligations in respect of the Sub-Contract Works in accordance with the terms of the Sub­ Contract and that it has not broken and shall not break any express or implied terms of the Sub­ Contract.

2.

The Sub-Contractor warrants and undertakes to the Beneficiary that it will exercise all due and proper skill, care and diligence to be expected of a professionally qualified sub-contractor experience in constructing sub-contract works of a similar nature, size, scope and complexity as the Sub-Contract Works in relation to:

 

2.1

the design (to the extent impliedly or expressly required by the Sub-Contract) and the construction of the Sub-Contract Works, including, but not limited to the supervision of all sub-sub-contractors of whatever tier (to such extent as the Sub-Contractor has an obligation to so supervise pursuant to the Sub-Contract or at common law) and

 

2.2

the selection of materials and goods for the Sub-Contract Works, in so far as such goods and materials have been or will be selected by the Sub-Contractor, and

 

2.3

the satisfaction of any performance specifications or requirements in so far as such performance specifications or requirements are included, referred to or implied in the Sub-Contract to ensure the Sub-Contract Works are suitable for the purpose intended, and

 

2.4

the performance of all other services and duties performed or undertaken or to be performed or undertaken by the Sub-Contractor pursuant to the Sub-Contract.

 


 

3.

The Sub-Contractor shall indemnify and keep indemnified the Beneficiary against any loss or expense incurred by the Beneficiary as a result of any breach of the provisions of the Sub­ Contract or failure by the Sub-Contractor to comply with the terms thereof or any valid instructions or requirements of the Architect appointed by the Employer or as a result of the termination of the Sub-Contractor's employment under the Sub-Contract.

4.

[Not Used]

5.

The Sub-Contractor shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years from the date of Practical Completion of the Works (as defined in the Contract).

6.

To the extent that design impliedly or expressly forms part of the Sub-Contract, the Sub­ Contractor shall take out before commencing the Sub-Contract Works professional indemnity insurance in an amount of not less than €6,500,000 (six million, five hundred thousand euro) in respect of any one claim or series of claims arising out of any one event for a period commencing now and ending 12 (twelve) years after the date of Practical Completion of the Works provided always that such insurance is generally available at commercially reasonable rates and terms. The Sub-Contractor shall notify the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms in order that the Sub-Contractor and the Beneficiary can discuss the best means of protecting their respective interests in respect of the Sub-Contract Works in the absence of such insurance. As and when it is reasonably requested to do so by the Beneficiary, the Sub-Contractor shall produce for inspection documentary evidence that its professional indemnity insurance is being maintained. The terms and conditions of the policy of said insurance shall not include any term or condition to the effect that the Sub-Contractor must discharge any liability before being entitled to recover from its insurers. The Sub-Contractor shall not without the prior written approval of the Beneficiary settle or compromise with the insurers that which relates to a claim by the Beneficiary against the Sub-Contractor or by any act or omission loss or prejudice the Beneficiary's rights to make or proceed with such a claim against the insurer.

7.

The copyright in all drawings, report, specifications, bills of quantities, calculations and other similar documents provided by or on behalf of the Sub-Contractor in connection with the Sub­ Contract Works shall remain vested in the Sub-Contractor, but the Beneficiary and its appointee shall have an irrevocable royalty free licence to copy and use such drawings and other documents and to reproduce the designs contained in them for any purpose relating to the Sub­ Contract Works, including, without limitation, the construction, completion, maintenance, letting, promotion, advertisement, reinstatement and repair of the Sub-Contract Works. The Sub-Contractor shall not be liable for any use by the Beneficiary or its appointee of any drawings and other documents for any purpose other than that for which the same were prepared by or on behalf of the Sub-Contractor.

8.

Without requiring the Sub-Contractor's consent the Beneficiary's rights under this Agreement may be assigned twice, by the Beneficiary to another party and in turn by that party to another without payment of any fee to the Sub-Contractor. Any further assignments shall be subject to the prior written consent of the Sub-Contractor (not to be unreasonably withheld, delayed or conditioned) PROVIDED THAT nothing in this Agreement will restrict an assignment of the Beneficiary's interest in this Agreement to any subsidiary, holding company or associated company of the Beneficiary or any funder of the Beneficiary.

9.

The Sub-Contractor undertakes with and warrants to the Beneficiary that it has not used or specified for use and will not use or specify for use (or permit the use or specification by others) in the construction of the Sub-Contract Works any substances or materials which are not in accordance with Irish Standards or Codes of Practice in so far as they may be applicable or relevant (and if there are no Irish Standards or Codes of Practice then the appropriate British Standards and Codes which shall be applicable or relevant) or any materials or substances known to the building trade or profession at the time of specification to be deleterious to health or safety or the durability or suitability of the Sub-Contract Works in the particular circumstances in which the same is used.

 


 

10.

If any dispute, difference or question (a “dispute) shall at any time hereafter arise between the parties to this Agreement or their respective assigns arising under or in connection with this Agreement, then a party shall deliver by hand or send by certified mail to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within 7 (seven) days after the service of the notice of the dispute, the parties shall confer at least once to attempt to resolve the dispute or to agree to methods of resolving the dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute.

11.

If the dispute has not been resolved within 21 (twenty one) days of the service of the notice of dispute, or such other time as may be mutually agreed by the parties prior to the expiry of 21 (twenty one) days of the service of the notice of the dispute, either party shall be able to refer the dispute to arbitration by a person to be agreed between the parties, or, failing agreement between the parties within 14 (fourteen) days of either party having made a request in writing to the other party to concur in the appointment of an arbitrator, a person to be nominated upon the application of either party by the President for the time being of the Engineers Ireland. Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act, 2010. Provided always that if the difference or dispute to be referred to arbitration under this Agreement raises issues which are substantially the same as/or connected with issues raised in a related dispute between the Beneficiary and/or the Sub­ Contractor and any third party and if such related dispute has already been referred for determination to an arbitrator or any court the parties agree that the difference or dispute under this Agreement shall be referred to such arbitrator or such court. Unless otherwise agreed between the parties the venue for any such arbitration shall be Dublin.

12.

This Agreement shall be governed by and construed in accordance with the laws of Ireland and, subject to Clauses 10 and 11, the parties irrevocably submit to the non-exclusive jurisdiction of the Irish Courts.

13.

Any notice to be given by the Sub-Contractor hereunder shall be deemed to be duly given if it is delivered by hand at or sent by registered post to the Beneficiary at its address set out above and any notice to be given by the Beneficiary hereunder shall be deemed to be duly given if it is delivered by hand or sent by registered post to the Sub-Contractor at its address set out above, and in the case of any such notices the same shall, if sent by registered post, be deemed to have been received forty eight hours after being posted.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year first herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

BENEFICIARY

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

SUB-CONTRACTOR

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 


 

Dated the

day of

2018

 

 

RASCOR IRELAND LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

SUB-CONTRACTOR TO BENEFICIARY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

H1116/071/AC#29245864.I

 

 


 

THIS AGREEMENT is made the

 

day of

 

2018

BETWEEN

(1)

RASCOR IRELAND LIMITED with company registration number 481465 and whose registered office is at Executive House, Athy Business Campus, Kilkenny Road, Athy, Co. Kildare (“the Sub-Contractor”); and

(2)

● with company registration number ● and whose registered office is at ● (“Beneficiary”), (together the “Parties” and each a “Party”).

WHEREAS:

A.

The Employer has entered into a contract dated 2 February 2017 (the “Contract”) with John Paul Construction Limited (the “Contractor”) in respect of certain works (the “Works”) which form part of a commercial mixed use development at 1-6 Sir John Rogerson' s Quay, Dublin 2 (the Project”).

B.

The Contractor has appointed the Sub-Contractor by an agreement dated the 8th day of September 2016 (the “Sub-Contract”) to carry out certain works forming part of the Works (the “Sub-Contract Works”).

C.

The Beneficiary has agreed to take a lease of part of the Project.

D.

Under the terms of the Sub-Contract, the Sub-Contractor has agreed to enter into this Deed with the Beneficiary.

NOW IT IS HEREBY AGREED between the Beneficiary and the Sub-Contractor that in consideration of the sum of €10.00 now paid by the Beneficiary to the Sub-Contractor (sufficiency and receipt of which is hereby acknowledged) the following warranties and agreements shall have effect:

1.

The Sub-Contractor warrants to the Beneficiary that it has performed and will perform its obligations in respect of the Sub-Contract Works in accordance with the terms of the Sub­ Contract and that it has not broken and shall not break any express or implied terms of the Sub­ Contract.

2.

The Sub-Contractor warrants and undertakes to the Beneficiary that it will exercise all due and proper skill, care and diligence to be expected of a professionally qualified sub-contractor experienced in constructing sub-contract works of a similar nature, size, scope and complexity as the Sub-Contract Works in relation to:

 

2.1

the design (to the extent impliedly or expressly required by the Sub-Contract) and the construction of the Sub-Contract Works, including, but not limited to the supervision of all sub-sub-contractors of whatever tier (to such extent as the Sub-Contractor has an obligation to so supervise pursuant to the Sub-Contract or at common law) and

 

2.2

the selection of materials and goods for the Sub-Contract Works, in so far as such goods and materials have been or will be selected by the Sub-Contractor, and

 

2.3

the satisfaction of any performance specifications or requirements in so far as such performance specifications or requirements are included, referred to or implied in the Sub-Contract to ensure the Sub-Contract Works are suitable for the purpose intended, and

 

2.4

the performance of all other services and duties performed or undertaken or to be performed or undertaken by the Sub-Contractor pursuant to the Sub-Contract.

 


 

3.

The Sub-Contractor shall indemnify and keep indemnified the Beneficiary against any loss or expense incurred by the Beneficiary as a result of any breach of the provisions of the Sub­ Contract or failure by the Sub-Contractor to comply with the terms thereof or any valid instructions or requirements of the Architect appointed by the Employer or as a result of the termination of the Sub-Contractor's employment under the Sub-Contract.

4.

[Not Used]

5.

The Sub-Contractor shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years from the date of Practical Completion of the Works (as defined in the Contract).

6.

To the extent that design impliedly or expressly forms part of the Sub-Contract, the Sub­ Contractor shall take out before commencing the Sub-Contract Works professional indemnity insurance in an amount of not less than €6,500,000 (six million, five hundred thousand euro) in respect of any one claim or series of claims arising out of any one event for a period commencing now and ending 12 (twelve) years after the date of Practical Completion of the Works provided always that such insurance is generally available at commercially reasonable rates and terms. The Sub-Contractor shall notify the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms in order that the Sub-Contractor and the Beneficiary can discuss the best means of protecting their respective interests in respect of the Sub-Contract Works in the absence of such insurance. As and when it is reasonably requested to do so by the Beneficiary, the Sub-Contractor shall produce for inspection documentary evidence that its professional indemnity insurance is being maintained. The terms and conditions of the policy of said insurance shall not include any term or condition to the effect that the Sub-Contractor must discharge any liability before being entitled to recover from its insurers. The Sub-Contractor shall not without the prior written approval of the Beneficiary settle or compromise with the insurers that which relates to a claim by the Beneficiary against the Sub-Contractor or by any act or omission loss or prejudice the Beneficiary's rights to make or proceed with such a claim against the insurer.

7.

The copyright in all drawings, report, specifications, bills of quantities, calculations and other similar documents provided by or on behalf of the Sub-Contractor in connection with the Sub­ Contract Works shall remain vested in the Sub-Contractor, but the Beneficiary and its appointee shall have an irrevocable royalty free licence to copy and use such drawings and other documents and to reproduce the designs contained in them for any purpose relating to the Sub­ Contract Works, including, without limitation, the construction, completion, maintenance, letting, promotion, advertisement, reinstatement and repair of the Sub-Contract Works. The Sub-Contractor shall not be liable for any use by the Beneficiary or its appointee of any drawings and other documents for any purpose other than that for which the same were prepared by or on behalf of the Sub-Contractor.

8.

Without requiring the Sub-Contractor's consent the Beneficiary's rights under this Agreement may be assigned twice, by the Beneficiary to another party and in turn by that party to another without payment of any fee to the Sub-Contractor. Any further assignments shall be subject to the prior written consent of the Sub-Contractor (not to be unreasonably withheld, delayed or conditioned) PROVIDED THAT nothing in this Agreement will restrict an assignment of the Beneficiary's interest in this Agreement to any subsidiary, holding company or associated company of the Beneficiary or any funder of the Beneficiary.

9.

The Sub-Contractor undertakes with and warrants to the Beneficiary that it has not used or specified for use and will not use or specify for use (or permit the use or specification by others) in the construction of the Sub-Contract Works any substances or materials which are not in accordance with Irish Standards or Codes of Practice in so far as they may be applicable or relevant (and if there are no Irish Standards or Codes of Practice then the appropriate British Standards and Codes which shall be applicable or relevant) or any materials or substances known to the building trade or profession at the time of specification to be deleterious to health or safety or the durability or suitability of the Sub-Contract Works in the particular circumstances in which the same is used.

 


 

10.

If any dispute, difference or question (a “dispute”) shall at any time hereafter arise between the parties to this Agreement or their respective assigns arising under or in connection with this Agreement, then a party shall deliver by hand or send by certified mail to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within 7 (seven) days after the service of the notice of the dispute, the parties shall confer at least once to attempt to resolve the dispute or to agree to methods of resolving the dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute.

11.

If the dispute has not been resolved within 21 (twenty one) days of the service of the notice of dispute, or such other time as may be mutually agreed by the parties prior to the expiry of 21 (twenty one) days of the service of the notice of the dispute, either party shall be able to refer the dispute to arbitration by a person to be agreed between the parties, or, failing agreement between the parties within 14 (fourteen) days of either party having made a request in writing to the other party to concur in the appointment of an arbitrator, a person to be nominated upon the application of either party by the President for the time being of the Engineers Ireland. Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act, 2010. Provided always that if the difference or dispute to be referred to arbitration under this Agreement raises issues which are substantially the same as/or connected with issues raised in a related dispute between the Beneficiary and/or the Sub­ Contractor and any third party and if such related dispute has already been referred for determination to an arbitrator or any court the parties agree that the difference or dispute under this Agreement shall be referred to such arbitrator or such court. Unless otherwise agreed between the parties the venue for any such arbitration shall be Dublin.

12.

This Agreement shall be governed by and construed in accordance with the laws of Ireland and, subject to Clauses 10 and 11, the parties irrevocably submit to the non-exclusive jurisdiction of the Irish Courts.

13.

Any notice to be given by the Sub-Contractor hereunder shall be deemed to be duly given if it is delivered by hand at or sent by registered post to the Beneficiary at its address set out above and any notice to be given by the Beneficiary hereunder shall be deemed to be duly given if it is delivered by hand or sent by registered post to the Sub-Contractor at its address set out above, and in the case of any such notices the same shall, if sent by registered post, be deemed to have been received forty eight hours after being posted.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year first herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

BENEFICIARY

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

SUB-CONTRACTOR

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 


 

Dated the

day of

2018

 

 

KONE (IRELAND) LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

SUB-CONTRACTOR TO BENEFICIARY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

H1116/071/AC#29245901.I

 

 


EXECUTION VERSION

THIS AGREEMENT is made the

 

day of

 

2018

BETWEEN

(1)

KONE (IRELAND) LIMITED with company registration number 123145 and whose registered office is at G7 Calmount Park, Calmount Avenue, Ballymore, Dublin 12 (“the Sub­ Contractor”); and

(2)

● with company registration number ● and whose registered office is at ● (“Beneficiary”), (together the “Parties” and each a “Party”).

WHEREAS:

A.

The Employer has entered into a contract dated 2 February 2017 (the “Contract'') with John Paul Construction Limited (the “Contractor”) in respect of certain works (the “Works”) which form part of a commercial mixed use development at 1-6 Sir John Rogerson's Quay, Dublin 2 (the “Project”).

B.

The Contractor has appointed the Sub-Contractor by an agreement dated the 21st day of October 2016 (the “Sub-Contract'') to carry out certain works forming part of the Works (the “Sub­ Contract Works”).

C.

The Beneficiary has agreed to take a lease of part of the Project.

D.

Under the terms of the Sub-Contract, the Sub-Contractor has agreed to enter into this Deed with the Beneficiary.

NOW IT IS HEREBY AGREED between the Beneficiary and the Sub-Contractor that in consideration of the sum of €10.00 now paid by the Beneficiary to the Sub-Contractor (sufficiency and receipt of which is hereby acknowledged) the following warranties and agreements shall have effect:

1.

The Sub-Contractor warrants to the Beneficiary that it has performed and will perform its obligations in respect of the Sub-Contract Works in accordance with the terms of the Sub­ Contract and that it has not broken and shall not break any express or implied terms of the Sub­ Contract.

2.

The Sub-Contractor warrants and undertakes to the Beneficiary that it will exercise all due and proper skill, care and diligence to be expected of a professionally qualified sub-contractor experienced in constructing sub-contract works of a similar nature, size, scope and complexity as the Sub-Contract Works in relation to:

 

2.1

the design (to the extent impliedly or expressly required by the Sub-Contract) and the construction of the Sub-Contract Works, including, but not limited to the supervision of all sub-sub-contractors of whatever tier (to such extent as the Sub-Contractor has an obligation to so supervise pursuant to the Sub-Contract or at common law) and

 

2.2

the selection of materials and goods for the Sub-Contract Works, in so far as such goods and materials have been or will be selected by the Sub-Contractor, and

 

2.3

the satisfaction of any performance specifications or requirements in so far as such performance specifications or requirements are included, referred to or implied in the Sub-Contract to ensure the Sub-Contract Works are suitable for the purpose intended, and

 

2.4

the performance of all other services and duties performed or undertaken or to be performed or undertaken by the Sub-Contractor pursuant to the Sub-Contract.

 


 

3.

The Sub-Contractor shall indemnify and keep indemnified the Beneficiary against any loss or expense incurred by the Beneficiary as a result of any breach of the provisions of the Sub­ Contract or failure by the Sub-Contractor to comply with the terms thereof or any valid instructions or requirements of the Architect appointed by the Employer or as a result of the termination of the Sub-Contractor's employment under the Sub-Contract.

4.

[Not Used]

5.

The Sub-Contractor shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years from the date of Practical Completion of the Works (as defined in the Contract).

6.

To the extent that design impliedly or expressly forms part of the Sub-Contract, the Sub­ Contractor shall take out before commencing the Sub-Contract Works professional indemnity insurance in an amount of not less than €6,500,000 (six million, five hundred thousand) in respect of each and every claim / in the aggregate for a period commencing now and ending 12 (twelve) years after the date of Practical Completion of the Works provided always that such insurance is generally available at commercially reasonable rates and terms. The Sub­ Contractor shall notify the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms in order that the Sub-Contractor and the Beneficiary can discuss the best means of protecting their respective interests in respect of the Sub-Contract Works in the absence of such insurance. As and when it is reasonably requested to do so by the Beneficiary, the Sub-Contractor shall produce for inspection documentary evidence that its professional indemnity insurance is being maintained. The terms and conditions of the policy of said insurance shall not include any term or condition to the effect that the Sub-Contractor must discharge any liability before being entitled to recover from its insurers. The Sub­ Contractor shall not without the prior written approval of the Beneficiary settle or compromise with the insurers that which relates to a claim by the Beneficiary against the Sub-Contractor or by any act or omission loss or prejudice the Beneficiary' s rights to make or proceed with such a claim against the insurer.

7.

The copyright in all drawings, report, specifications, bills of quantities, calculations and other similar documents provided by or on behalf of the Sub-Contractor in connection with the Sub­ Contract Works shall remain vested in the Sub-Contractor, but the Beneficiary and its appointee shall have an irrevocable royalty free licence to copy and use such drawings and other documents and to reproduce the designs contained in them for any purpose relating to the Sub­ Contract Works, including, without limitation, the construction, completion, maintenance, letting, promotion, advertisement, reinstatement and repair of the Sub-Contract Works. The Sub-Contractor shall not be liable for any use by the Beneficiary or its appointee of any drawings and other documents for any purpose other than that for which the same were prepared by or on behalf of the Sub-Contractor.

8.

Without requiring the Sub-Contractor's consent the Beneficiary's rights under this Agreement may be assigned twice, by the Beneficiary to another party and in turn by that party to another without payment of any fee to the Sub-Contractor. Any further assignments shall be subject to the prior written consent of the Sub-Contractor (not to be unreasonably withheld, delayed or conditioned) PROVIDED THAT nothing in this Agreement will restrict an assignment of the Beneficiary's interest in this Agreement to any subsidiary, holding company or associated company of the Beneficiary or any funder of the Beneficiary.

9.

The Sub-Contractor undertakes with and warrants to the Beneficiary that it has not used or specified for use and will not use or specify for use (or permit the use or specification by others) in the construction of the Sub-Contract Works any substances or materials which are not in accordance with Irish Standards or Codes of Practice in so far as they may be applicable or relevant (and if there are no Irish Standards or Codes of Practice then the appropriate British Standards and Codes which shall be applicable or relevant) or any materials or substances known to the building trade or profession at the time of specification to be deleterious to health or safety or the durability or suitability of the Sub-Contract Works in the particular circumstances in which the same is used.

 


 

10.

If any dispute, difference or question (a “dispute”) shall at any time hereafter arise between the parties to this Agreement or their respective assigns arising under or in connection with this Agreement, then a party shall deliver by hand or send by certified mail to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within 7 (seven) days after the service of the notice of the dispute, the parties shall confer at least once to attempt to resolve the dispute or to agree to methods of resolving the dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute.

11.

If the dispute has not been resolved within 21 (twenty one) days of the service of the notice of dispute, or such other time as may be mutually agreed by the parties prior to the expiry of 21 (twenty one) days of the service of the notice of the dispute, either party shall be able to refer the dispute to arbitration by a person to be agreed between the parties, or, failing agreement between the parties within 14 (fourteen) days of either party having made a request in writing to the other party to concur in the appointment of an arbitrator, a person to be nominated upon the application of either party by the President for the time being of the Engineers Ireland. Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act, 2010. Provided always that if the difference or dispute to be referred to arbitration under this Agreement raises issues which are substantially the same as/or connected with issues raised in a related dispute between the Beneficiary and/or the Sub­ Contractor and any third party and if such related dispute has already been referred for determination to an arbitrator or any court the parties agree that the difference or dispute under this Agreement shall be referred to such arbitrator or such court. Unless otherwise agreed between the parties the venue for any such arbitration shall be Dublin.

12.

This Agreement shall be governed by and construed in accordance with the laws of Ireland and, subject to Clauses 10 and 11, the parties irrevocably submit to the non-exclusive jurisdiction of the Irish Courts.

13.

Any notice to be given by the Sub-Contractor hereunder shall be deemed to be duly given if it is delivered by hand at or sent by registered post to the Beneficiary at its address set out above and any notice to be given by the Beneficiary hereunder shall be deemed to be duly given if it is delivered by hand or sent by registered post to the Sub-Contractor at its address set out above, and in the case of any such notices the same shall, if sent by registered post, be deemed to have been received forty eight hours after being posted.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year first herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

BENEFICIARY

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

SUB-CONTRACTOR

And delivered as a Deed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 


 

Dated the

day of

2018

 

 

J.V. TIERNEY & COMPANY (2002) LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

CONSULTANT TO BENEFICIARIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

THIS AGREEMENT is made the

 

day of

 

 

2018

BETWEEN:-

(1)

J.V. TIERNEY & COMPANY (2002) LIMITED with company registration number 359680 and whose registered office is at Harmony Row, Dublin 2 (“the Consultant”).

(2)

● with company registration number ● and whose registered office is at ● (“the Beneficiary”)

WHEREAS:-

A.

By an Agreement in writing dated the               day of                201[ ] and made between Hibernia REIT Public Limited Company (“the Employer”) and the Consultant (“the Appointment''), the Consultant agreed to provide the Employer with mechanical and electrical engineering services in connection with the design and construction of a mixed use development (the “Project”) as more particularly described and defined in the Appointment.

B.

The Beneficiary has agreed to take a lease of part of the Project.

C.

The Consultant has agreed to enter into this Collateral Warranty with the Beneficiary.

NOW in consideration of the sum of €5 paid by the Beneficiary to the Consultant (receipt of which is acknowledged) IT IS HEREBY AGREED as follows:-

1.

Throughout this Agreement any words and expressions commencing with a capital letter shall have the meanings ascribed to those words as defined in the Appointment.

2.

The Consultant warrants to and undertakes to the Beneficiary that it has and will carry out its duties and the Services under the Appointment with all the reasonable skill, care and diligence to be expected of a professionally qualified consultant experienced in providing services of a similar nature, size and scope as the Services.

3.

The Consultant binds itself  to  the  Beneficiary  in  all  respects  as  if  the  Beneficiary  had  jointly and severally with the Employer appointed  the Consultant  to  act  prior  to the  commencement  of any Services by the Consultant to the extent that the Beneficiary and the  Employer  shall  be entitled to enforce all remedies  against  the  Consultant  by virtue of  any  breach  by the  Consultant of its obligations pursuant to the Appointment.

4.

The Consultant shall maintain professional indemnity insurance in respect of the Project in the amount of €6,500,000 (six million five hundred thousand euro), for any one claim or series of claims arising out of any one event, for a period of 6 (six) years after the date of Practical Completion of the Works. Thereafter, the Consultant shall maintain for a further 6 (six) years professional indemnity insurance provided that such insurance is generally available in the European Union at commercially reasonable rates and terms. The Consultant shall immediately inform the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms. The Consultant warrants that the premiums for the current period of insurance have been duly paid to the insurer. As and when the Consultant is reasonably requested to do so by the Beneficiary, the Consultant shall produce for inspection sufficient documentary evidence that the insurance required under this Clause is being maintained in accordance with the terms of this Agreement.

 


 

5.

The copyright in all designs, drawings, reports, specifications, bills of quantities, calculations, consents, papers and other similar documents (to include CAD materials and other data stored on disk or in electronic format) produced by the Consultant in connection with the Project (the “Documents) shall remain vested in the Consultant but the Beneficiary shall have a non­ exclusive irrevocable and royalty free licence to reproduce, copy and use the Documents for all purposes connected with the Project. The Consultant shall not be liable for any use of the Documents for any purpose other than that for which they were prepared.

 

5.1

The Beneficiary shall be entitled (at its own cost) to full and proper copies of the Documents relating to the Project in the possession or control of the Consultant and the Consultant will not claim copyright or a lien in respect of them against the Beneficiary.

 

5.2

The licence granted to the Beneficiary under this Clause 5 shall include a right for the Beneficiary to grant sub-licences.

6.

The Consultant warrants that it has not and will not specify for use in the Project any material known to be deleterious or affecting the durability of the Project or any material not in accordance with the Employer's standards, Irish standards or codes of practice or, if no Irish standards or codes of practice exist, the relevant British or European standard or code of practice which is the most current and appropriate.

7.

The Beneficiary shall be entitled at any time to assign the benefit of this Agreement on 2 (two) occasions by way of absolute legal assignment to such person or persons as the Beneficiary thinks fit (in addition to an assignment to a lending institution or funder or any subsidiary or associated company of the Beneficiary) without the consent of Consultant. The Beneficiary shall give the Consultant prompt notice of any such assignment provided that the giving of such notice shall not be a precondition to the effectiveness of any assignment.

8.

If any dispute or difference arises out of or in connection with this Agreement or arising thereunder (a “dispute”) then any such dispute shall be and is hereby referred to arbitration and the final decision of such person as the parties may agree to appoint as arbitrator or failing agreement as may be appointed upon the application of either party to the President for the time being of the Engineers Ireland provided that either party may by written notice require that such nomination be to an arbitrator that has legal qualifications and with construction dispute experience (and the President shall be obliged to limit his nomination to a person with such qualifications and experience). Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act 2010 or any Act amending same. The award of the arbitrator shall be final and binding on the parties. The language of arbitration shall be English and the venue shall be Dublin.

9.

This Agreement shall be governed by and construed in accordance with the laws of Ireland .

10.

The Consultant shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years from the date of Practical Completion of the Works.

11.

Where this Agreement is executed by a partnership, all partners from time to time shall be jointly and severally liable.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year first herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

CONSULTANT

and delivered as a Deed:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

BENEFICIARY

and delivered as a Deed:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director/Secretary

 

 

 

 


 

Dated the

day of

2018

 

 

H J LYONS (ARCHITECTS) LIMITED

 

 

 

 

and

 

 

 

 

 

 

 

 

 

 

COLLATERAL AGREEMENT

ARCHITECT TO BENEFICIARIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

THIS AGREEMENT is made the

 

day of

 

2018

BETWEEN:-

(1)

H J LYONS (ARCHITECTS) LIMITED with company registration number 247166 and whose registered office is at 51 - 54 Pearse Street, Dublin 2 (“the Architect”).

(2)

with company registration number and whose registered office is at (“the Beneficiary”)

WHEREAS:-

A.

By an Agreement in writing dated the               day of                201[ ] and made between Hibernia REIT Public Limited Company (“the Employer”) and the Architect (“the Appointment”), the Architect agreed to provide the Employer with architectural services in connection with the design and construction of a mixed use development (the “Project”) as more particularly described and defined in the Appointment.

B.

The Beneficiary has agreed to take a lease of part of the Project.

C.

The Architect has agreed to enter into this Collateral Warranty with the Beneficiary.

NOW in consideration of the sum of €5 paid by the Beneficiary to the Architect (receipt of which is acknowledged) IT IS HEREBY AGREED as follows:-

1.

Throughout this Agreement any words and expressions commencing with a capital letter shall have the meanings ascribed to those words as defined in the Appointment.

2.

The Architect warrants to and undertakes to the Beneficiary that it has and will carry out its duties and the Services under the Appointment with all the reasonable skill, care and diligence to be expected of a professionally qualified consultant experienced in providing services of a similar nature, size and scope as the Services.

3.

The Architect binds itself to the Beneficiary in all respects as if the Beneficiary had jointly and severally with the Employer appointed the Architect to act prior to the commencement of any Services by the Architect to the extent that the Beneficiary and the Employer shall be entitled to enforce all remedies against the Architect by virtue of any breach by the Architect of its obligations pursuant to the Appointment.

4.

The Architect shall maintain professional indemnity insurance in respect of the Project in the amount of €6,500,000 (six million five hundred thousand euro), for any one claim or series of claims arising out of any one event (but subject to separate aggregate limits for claims in relation to asbestos and fire resistance of external cladding), for a period of 6 (six) years after the date of Practical Completion of the Works. Thereafter, the Architect shall maintain for a further 6 (six) years professional indemnity insurance provided that such insurance is generally available in the European Union at commercially reasonable rates and terms. The Architect shall immediately inform the Beneficiary if such insurance ceases to be generally available at commercially reasonable rates and terms. The Architect warrants that the premiums for the current period of insurance have been duly paid to the insurer. As and when the Architect is reasonably requested to do so by the Beneficiary, the Architect shall produce for inspection sufficient documentary evidence that the insurance required under this Clause is being maintained in accordance with the terms of this Agreement.

 


 

5.

The copyright in all designs, drawings, reports, specifications, bills of quantities, calculations, consents, papers and other similar documents (to include CAD materials and other data stored on disk or in electronic format) produced by the Architect in connection with the Project (the Documents”) shall remain vested in the Architect but the Beneficiary shall have a non­ exclusive irrevocable and royalty free licence to reproduce, copy and use the Documents for all purposes connected with the Project. The Architect shall not be liable for any use of the Documents for any purpose other than that for which they were prepared.

 

5.1

The Beneficiary shall be entitled (at its own cost) to full and proper copies of the Documents relating to the Project in the possession or control of the Architect and the Architect will not claim copyright or a lien in respect of them against the Beneficiary.

 

5.2

The licence granted to the Beneficiary under this Clause 5 shall include a right for the Beneficiary to grant sub-licences.

6.

The Architect warrants that it has not and will not specify for use in the Project any material known to be deleterious or affecting the durability of the Project or any material not in accordance with the Employer’s standards, Irish standards or codes of practice or, if no Irish standards or codes of practice exist, the relevant British or European standard or code of practice which is the most current and appropriate.

7.

The Beneficiary shall be entitled at any time to assign the benefit of this Agreement on 2 (two) occasions by way of absolute legal assignment to such person or persons as the Beneficiary thinks fit (in addition to an assignment to a lending institution or funder or any subsidiary or associated company of the Beneficiary) without the consent of Architect. The Beneficiary shall give the Architect prompt notice of any such assignment provided that the giving of such notice shall not be a precondition to the effectiveness of any assignment.

8.

If any dispute or difference arises out of or in connection with this Agreement or arising thereunder (a “dispute”) then any such dispute shall be and is hereby referred to arbitration and the final decision of such person as the parties may agree to appoint as arbitrator or failing agreement as may be appointed upon the application of either party to the President for the time being of the Royal Institute of the Architects of Ireland provided that either party may by written notice require that such nomination be to an arbitrator that has legal qualifications and with construction dispute experience (and the President shall be obliged to limit his nomination to a person with such qualifications and experience). Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act 2010 or any Act amending same. The award of the arbitrator shall be final and binding on the parties. The language of arbitration shall be English and the venue shall be Dublin.

9.

This Agreement shall be governed by and construed in accordance with the laws of Ireland.

10.

The Architect shall have no liability under this Agreement in respect of proceedings issued after the expiration of 12 (twelve) years from the date of Practical Completion of the Works.

11.

Where this Agreement is executed by a partnership, all partners from time to time shall be jointly and severally liable.

 


 

IN WITNESS whereof the parties have caused their common seals to be affixed the day and year first herein written.

 

 

 

 

 

 

 

 

 

 

 

GIVEN UNDER

the common seal of

ARCHITECT

and delivered as a Deed: