[NOTE, SEPARATE TECHNICAL SERVICES AGREEMENTS ARE CONTEMPLATED FOR EACH HOTEL.]
CHICAGO O’HARE INTERNATIONAL AIRPORTTECHNICAL SERVICES AGREEMENT
BETWEEN
THE CITY OF CHICAGO
AND
______
______, 20__
4834-1889-7465.11
CHICAGO O’HARE INTERNATIONAL AIRPORT
TECHNICAL SERVICES AGREEMENT
TABLE OF CONTENTS
Page
Article 1 DEFINITIONS AND EXHIBITS 2
1.1 Definitions 2
1.2 Exhibits 2
Article 2 TECHNICAL SERVICES 2
2.1 Engagement of Manager 2
2.2 Technical Services 2
2.3 Site Visits 2
2.4 Inspections 2
2.5 Use of Affiliates by Manager 3
2.6 Term 3
Article 3 FEES AND EXPENSES 3
3.1 Technical Services Fee 3
3.2 Reimbursable Expenses 3
3.3 Accrual after Opening Date 3
3.4 Payment of Fees and Expenses 3
Article 4 PLANS AND SPECIFICATIONS 4
4.1 Delivery of Plans and Specifications to Manager 4
4.2 Review of Plans and Specifications 5
4.3 Changes to Plans and Specifications After Approval by Manager 5
4.4 Compliance with Brand and Brand Standards 6
Article 5 DEVELOPMENT AND CONSTRUCTION OF THE HOTELS 6
5.1 Owner’s Development and Construction Team 6
5.2 Commencement and Completion of the Hotels 6
5.3 Periodic Reports and Information 7
Article 6 COVENANTS 7
Article 7 CONFIDENTIALITY 13
7.1 Confidential Information 13
Article 8 ASSIGNMENTS 14
8.1 Assignment by Manager 14
8.2 Assignment by Owner. 15
Article 9 INSURANCE AND INDEMNIFICATION 16
9.1 Insurance 16
9.2 Indemnification 16
Article 10 DEFAULTS AND TERMINATIONS 17
10.1 Event of Default 17
10.2 Remedies for Event of Default 18
10.3 Cross-Termination with Other Agreements 18
10.4 Termination Due to Hotel Construction 18
10.5 Actions To Be Taken on Termination 18
Article 11 JURISDICTION AND VENUE 19
11.1 Submission to Jurisdiction 19
11.2 Claims by Manager 20
11.3 Manager Disputes. 21
11.4 Waiver of Consequential and Punitive Damages 23
11.5 Survival and Severance 23
Article 12 REPRESENTATIONS AND WARRANTIES 23
12.1 Owner’s Representations and Warranties 23
12.2 Manager’s Representations and Warranties 24
12.3 OWNER’S ACKNOWLEDGEMENTS 25
Article 13 GENERAL PROVISIONS 25
13.1 Governing Law 25
13.2 Miscellaneous Instruments 25
13.3 Estoppel Certificates 25
13.4 Construction of this Agreement 25
13.5 Limitation of Liability 27
13.6 LIMITATION ON MANAGER’S DUTIES AND OBLIGATIONS 27
13.7 Waivers 28
13.8 Notices 28
13.9 Owner’s Representative 30
13.10 Further Assurances 30
13.11 Relationship of the Parties 30
13.12 Force Majeure 30
13.13 Counterparts; Facsimile and Electronic Execution 30
13.14 Illinois Freedom of Information Act 30
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4834-1889-7465.11
LIST OF EXHIBITS
EXHIBIT A - DESCRIPTION OF PROJECT; TECHNICAL SERVICES FEES
EXHIBIT B - DEFINITIONS
EXHIBIT C - TECHNICAL SERVICES
EXHIBIT D - PROJECT SCOPE AND COST
EXHIBIT E - INSURANCE REQUIREMENTS
EXHIBIT F - SPECIAL CONDITIONS FOR PROFESSIONAL SERVICES MBE & WBE
EXHIBIT G - BRAND STANDARDS
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4834-1889-7465.11
TECHNICAL SERVICES AGREEMENT
This Technical Services Agreement (this “Agreement”) is made and entered into as of the __ day of ______, 20__ (the “Effective Date”), between the CITY OF CHICAGO, a municipal corporation, home rule unit of local government organized and existing under Article VII, Sections 1 and 6(a), respectively, of the 1970 Constitution of the State of Illinois (“Owner” or the “City”), and ______, a ______(“Manager”). (Owner and Manager are sometimes referred to individually as a “Party” and collectively in this Agreement as the “Parties”).
RECITALS
A. Owner holds the beneficial rights to the real property described in Exhibit A (the“Premises”), on which site Owner intends to (i) renovate the existing hotel more specifically described in Exhibit A (the “Existing Hotel”), and (ii) develop and build a Brand hotel as more specifically described in Exhibit A (the “New Hotel”) (The Existing Hotel and New Hotel are each referred to herein as the “Hotel” and collectively as the “Hotels” or the “Sites”).
B. The Owner issued a Request for Proposals on November 9, 2016 (the “RFP”) for management of and technical services relating to the development and renovation of the Hotels. Manager responded to the RFP with its proposal dated ______, 2017 (“Manager’s Proposal”). Owner has evaluated all of the proposals submitted in response to its RFP, and has selected the Manager to provide technical services in connection with the renovation of the Existing Hotel and the development of the New Hotel pursuant to the terms and conditions set forth herein and in the Technical Services Agreement relating to the [New Hotel] dated as of the date hereof. By action of the City Council of the City on ______, 2017 execution and delivery of this Agreement was authorized, but not directed.
C. Manager is experienced in the planning, designing, equipping, decorating and furnishing of hotels and related facilities and amenities, and in advising third parties in connection with such activities.
D. Owner desires to engage Manager as an independent contractor to assist Owner and its architects, engineers, designers and consultants in the planning, designing, equipping, decorating and furnishing of the Hotels, and Manager desires to perform such services, subject to the terms in this Agreement.
E. Owner and Manager have entered or intend to enter into a Management Agreement (the “Management Agreement”) for the operation of the Hotels by Manager upon the completion and opening of each Hotel.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals, promises and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree:
Article 1 DEFINITIONS AND EXHIBITS
1.1 Definitions
. All capitalized terms used without definition in this Agreement shall have the meanings assigned to such terms in Exhibit B, and if not defined in Exhibit B shall have the meanings assign to such terms in the Management Agreement.
1.2 Exhibits
. The exhibits listed in the table of contents and attached hereto are incorporated in, and deemed to be an integral part of, this Agreement.
Article 2 TECHNICAL SERVICES
2.1 Engagement of Manager
. Subject to the terms of this Agreement, Owner hereby engages Manager, and Manager hereby accepts such engagement by Owner, to provide the Technical Services as set forth in this Agreement.
2.2 Technical Services
. During the Term of this Agreement, Manager shall perform the technical services specified in this Agreement upon delivery by Owner to Manager of the various documents, materials and information required under this Agreement, including (a)advising Owner regarding the design, programming and operational aspects of the Hotels, including compliance with any applicable Brand Standards, (b)reviewing plans and specifications for the Hotels, (c)making recommendations to the plans and specifications to the extent Manager deems appropriate, (d)approving plans and specifications when acceptable in accordance with the terms of this Agreement, and (e) preforming certain pre-opening activities for the Hotels (collectively with those items set forth on Exhibit C, the “Technical Services”). Manager shall perform all services specified in this Agreement utilizing Manager’s best skill and judgment and efficient business administration to further the interests of Owner. Manager further agrees at all times to perform the Technical Services in the best, most expeditious and most economical manner consistent with the interests of Owner, and Manager will devote such time and staff as may be required for the efficient and timely performance of all such Technical Services.
2.3 Site Visits
. Manager shall (a)make regular visits to the site as appropriate given the phase of construction and/or to the offices of Owner or its architects, engineers, designers, contractors, manufacturers or other Persons involved in the Hotels, and (b)maintain one or more representatives onsite throughout the Construction of the Hotels, as Manager considers necessary, appropriate or advisable to perform the Technical Services, or otherwise upon the reasonable request of Owner. Manager shall attend all design, development and construction meetings related to the development of the Hotels. Manager’s representatives shall be given full access at all times upon Manager’s request to all (i)financial, development and other information related to the Hotels and backup materials, and (ii)the site of the Hotels and the Construction in process.
2.4 Inspections
. Owner hereby grants to Manager and its inspectors the right to enter the site on which the Hotels are being constructed, without notice, at any time during the Construction, and to access any Persons providing goods or services for the Construction or such other work, in order to conduct an inspection of the Hotels to confirm its compliance with the Approved Plans and Specifications, the Design Guide and the Brand Standard. Manager shall promptly notify Owner of any deficiencies of the Hotels that Manager finds during any such inspection. Owner acknowledges that Manager may use Corporate Personnel or retain a third-party inspection service to perform any of Manager’s inspections. Owner acknowledges and agrees that Manager’s inspection will be limited to ensuring that the Construction of the Hotels complies with the Approved Plans and Specifications, the Design Guide and the Brand Standard, but shall not constitute an inspection of compliance with Applicable Laws. In addition, upon substantial completion of the Construction, Manager shall participate in the inspection of the Hotels with Owner’s consultants and contractors, and assist Owner’s architects, engineers, contractors and consultants in the preparation of a “punch list” of deficiencies requiring correction or completion (the “Deficiency List”) to complete the Construction.
2.5 Use of Affiliates by Manager
. Owner acknowledges and agrees that in performing its obligations under this Agreement, Manager may from time to time use the services of one or more of its Affiliates; provided, however, that (a)Manager shall be responsible to Owner for its Affiliate’s performance, and (b)Owner shall not pay more for the Affiliate’s services and expenses than Manager would have been entitled to receive under this Agreement had Manager performed the services. If an Affiliate of Manager performs services for or provides goods to the Hotels, such goods or services shall be supplied at prices and on terms at least as favorable to the Hotels as generally available from third parties in arms-length transactions in the relevant market and consistent with terms made available to other Brand hotels receiving such goods and services.
2.6 Term
. This Agreement shall be for a period (the “Term”) commencing on the Effective Date and expiring without notice upon the Opening Date, unless terminated earlier in accordance with the terms of this Agreement.
Article 3 FEES AND EXPENSES
3.1 Technical Services Fee
. Owner shall pay to Manager a total fee in the amount of [to be proposed by Respondents]______($______) (the “Technical Services Fee”) in accordance with this Article 3.
3.2 Reimbursable Expenses
. Owner shall reimburse Manager for all approved Reimbursable Expenses incurred by Manager in accordance with this Article 3.
3.3 Accrual after Opening Date
. Owner acknowledges that the Technical Services Fee and Reimbursable Expenses may be incurred or accrued after the Opening Date, in accordance with this Agreement, and Owner agrees to pay any such Technical Services Fee and Reimbursable Expenses, whether incurred or accrued prior to, during or after the Term in accordance with this Article 3.
3.4 Payment of Fees and Expenses
.
3.4.1 Monthly Statements. Manager shall submit to Owner a monthly statement and payment request (“Monthly Statement”) including (a)a statement of all Reimbursable Expenses incurred by Manager during the prior calendar month (accompanied by substantiation of such Reimbursable Expenses in a form acceptable to Owner), (b)a statement of all Reimbursable Expenses anticipated to be incurred with respect to the next calendar month (accompanied by such supporting information as Owner may request), (c)a statement of any portion of the Technical Services Fee then due or to become due during such calendar month, and (d)a reconciliation of the amounts previously funded by Owner against the Technical Services Fee and Reimbursable Expenses incurred or anticipated to be incurred in the next calendar month. Manager shall provide a final accounting and statement to Owner for the Technical Services Fee and all Reimbursable Expenses and any other outstanding amounts that are owed to Manager within 120 days after the Opening Date.
3.4.2 Due Dates. The Technical Services Fee shall be paid to Manager in [Respondents to provide] ___ equal monthly installments commencing one-month following the execution of this Agreement and continuing on the first day of each calendar month thereafter until paid in full. The Reimbursable Expenses shall be due 60 days after delivery to Owner of the Monthly Statements.
3.4.3 Place and Means of Payment. All fees and other amounts due to Manager or its Affiliates under this Agreement shall be paid to Manager in U.S. Dollars, in immediately available funds, at the location(s) specified by Manager from time to time.
Article 4 PLANS AND SPECIFICATIONS
4.1 Delivery of Plans and Specifications to Manager
4.1.1 Timelines for Delivery of Plans and Specifications. Owner shall provide the documents, materials and information to be submitted to Manager as set forth in Exhibit C, within the following time periods:
(a) Conceptual plans and specifications showing general layout and design shall be delivered to Manager no later than [City to provide]______;
(b) Preliminary plans and specifications showing general layout and design shall be delivered to Manager no later than [City to provide]______;
(c) Final plans and specifications showing general layout and design shall be delivered to Manager no later than [City to provide]______; and
(d) Plans, specifications, renderings and working drawings relating to the interior design and decoration, and other matters affecting the operating efficiency of the Hotels and the selection of all FF&E and all operating equipment at various stages showing general layout and design shall be delivered to Manager periodically, when requested by Manager and as required under the Design Approval Policy.
4.1.2 Extension of Timelines for Delivery. The dates set forth in Section4.1.1 for the delivery of all plans, specifications and other documents and materials relating to the Hotels (collectively, the “Review Materials”) may be extended as necessary by agreement of the parties, and shall be extended for a Force Majeure event in accordance with Section13.12; provided, however, no such extension shall be granted unless Manager is provided with notice of such delay at least 14 days prior to the required due date (except for events which occur within the 14 day period prior to the due date, in which case, Owner shall notify Manager of any anticipated delay as soon as reasonably possible following such Force Majeure).
4.1.3 Method of Delivery. All Review Materials to be submitted to Manager for its approval under this Agreement (including Exhibit C) shall be sent to Manager in accordance with Section13.8. Owner shall provide Manager with such numbers of copies as Manager may reasonably require, and shall provide photographs for all renderings and color boards included in the Review Materials.
4.2 Review of Plans and Specifications