ADDITIONAL SERVICE CONTRACT PROVISIONS

  1. Addendum. This Addendum (this “Addendum”) supplementsand modifies that certain______, [as supplemented by the Exhibits attached thereto] (the “Original Agreement,” and together with this Addendum, this “Agreement”) by and between ______and ______is hereby made a part of and incorporated into this Agreement. In the event of any conflict, inconsistency or ambiguity between all or any part of the Original Agreement and this Addendum, this Addendum will control and govern in all respects.
  1. Termination. [Owner may terminate this Agreement for convenience on 7 days notice to Contractor.] Notwithstanding anything to the contrary in this Agreement, Owner may terminate this Agreement at any time, immediately and without notice, for “cause.” “Cause” means:any default under this Agreement, negligence, fraud, unlawful conduct, or intentionalmisconduct by Contractoror Contractor’s breach of any confidentiality obligations to Owner under this Agreement or otherwise owed independently to Owner or its affiliates. If this Agreement is terminated early by Owner as provided in this Agreement, the sole liability and obligation of Owner upon termination of this Agreement will be to pay the fees and expenses accruing prior to the effective date of termination; provided, however, that Owner may offset any damages incurred by Owner resulting from any Cause against such amounts owed to Contractor and Contractor shall remain liable to Owner for any such damages.
  1. Covenants, Representations & Warranties. Contractorfurther covenants, represents, and warrants to Owner that:
  1. Neither Contractornor Contractor’s employees, subcontractors, consultants, agents or representatives (collectively, “Contractor’s Representatives”) havethe authority to bind Ownerin any way unless specifically authorized in writing by Owner. Neither Contractor nor Contractor’s Representatives will solicit, receive or accept payments on behalf of Owner or enter into any agreement on behalf of Owner without Owner’s prior written consent.
  2. Contractor shall, and shall cause Contractor’s Representatives to, in performing the services, comply with all applicable federal, state and local laws, ordinances, regulations and orders (collectively, “Laws”).
  3. [Contractor shall, and shall cause Contractor’s Representatives to, and Contractor’s Representatives shall, not use Owner’s facilities for any other purposes besides providing the services hereunder.]
  4. Contractor shall assure that it and all of Contractor’s Representatives have the legal right to provide services hereunder. Without limiting the foregoing, Contractor shall not utilize the services of any person who is, by contract, law or otherwise, limited in providing the services to Owner.
  5. Contractor shall be solely responsible for the means, methods, techniques and procedures used by ContractorandContractor’s representatives to perform the services under this Agreement.
  6. Contractor has the full right, power, and authority to enter into this Agreement and to take all actions contemplated hereby. The person signing this Agreement on behalf of Contractor has the legal right, power, and authority to bind Contractor.
  7. Contractor has agreements in place with Contractor’s Representatives sufficient to convey all ownership in the work product provided to Owner, and that Contractor will, during the term of this Agreement, including any renewal term, enter into agreements with Contractor’s Representatives sufficient to convey all ownership in such work product to Owner, and that none of the work product does or will infringe upon any third party’s intellectual property rights.
  1. Expenses/Invoices. Except as expressly set forth in this Agreement, any request by Contractor for reimbursement of expenses hereunder must be pre-approved by Owner in advance and accompanied by a receipt evidencing any such expense with sufficient detail.
  1. Taxes. Contractor shall be solely responsible for all taxes with respect to any compensation due hereunder or any services provided hereunder.
  1. Lien Waivers. As a condition precedent to any payment, Contractor shall deliver promptly to Owner such waivers or releases of liens if and as reasonably requested by Owner with respect to the services provided.
  1. Confidentiality. Contractor acknowledges that, in rendering the services hereunder, Contractor or Contractor’s Representatives may learn, acquire, gather or develop secret and confidential information and data concerning Owner, business, plans, programs, employees and operations of, or belonging to, Owner or Owner’s affiliates, and/or other companies with whom Owner has a business relationship, and additional information and data will be made available to Contractor or Contractor’s Representatives or be developed or acquired by Contractor or Contractor’s Representatives as a result of the services to be provided to Owner under Agreement (collectively, the “Confidential Information”). Contractor and Contractor’s Representatives shall (i) treat all Confidential Information as Owner’s confidential property and (ii) not divulge such information to others at any time nor use it for any purpose, except on behalf of Owner, without the prior written consent of Owner. This obligation to keep all Confidential Information confidential shall continue beyond and after the termination of this Agreement. The provisions of this Section do not apply to information that is publicly available, was or becomes known by Contractor from a source not known by Contractor to be under a confidentiality obligation to Owner or its affiliates, or is required to be disclosed by law (provided that Contractor provides Owner prompt notice prior to any such disclosure). At the completion or termination of this Agreement or at any time Owner so requests, Contractor and Contractor’s Representatives shall deliver to Owner all Confidential Information. Contractor agrees that (i) the covenants and restrictions contained in this Section are of material consideration to this Agreement and are reasonable and necessary to protect and preserve the interests of Owner, (ii) irreparable loss and damage will be suffered by Owner resulting from any breach hereof, (iii) monetary damages will not be sufficient to compensate Owner for any such default or breach, and (iv) in addition to all other remedies provided at law or in equity or this Agreement, Owner shall be entitled to seek and obtain temporary, preliminary and permanent injunctive relief in a court of law to prevent and restrain any breach or contemplated or threatened breach of and to specifically enforce the provisions of this Section, and Owner will not be obligated to post a bond or other security in seeking such relief or to prove irreparable harm. The existence of any claim, demand, action, set-off, counterclaim, or cause of action by Contractor or Contractor’s Representatives against Owner or any other person shall not constitute a defense to the enforcement by Owner of this clause. Contractor shall be liable for any breach of this Section by Contractor’s Representatives.
  1. Ownership and License of Materials. [Owner shall have the entire right and title to all information and work product acquired, gathered or developed by Contractor as a result of providing the services to Owner pursuant to this Agreement.] OR [Contractor hereby grants to Owner a perpetual, fully paid, assignable and transferable license to use the plans, specifications, drawings, and other documents prepared by Contractor in connection with the Services (the “Intellectual Property”).] [Contractor agrees not to use any of the Intellectual Property for any purpose other than in the course of providing services to Owner, except with Owner’s prior written consent, which may be withheld in Owner’s discretion.]
  1. Independent Contractor. The relationship between the parties is that of independent contractor, and nothing contained in this Agreement shall make either party a partner, agent, employee, joint venturer, dealer or franchisee of the other. Contractor is retained by Owner only for the purposes and to the extent set forth in this Agreement. Neither Contractor nor Owner may bind the other party. The services to be provided by Contractor are not part of a continuing relationship between Contractor and the Owner. Contractor agrees to pay any and all salary or other benefits for Contractor’s representatives and any other Contractor employees and shall make all appropriate tax, social security, and other withholding deductions and payments. Contractorshall indemnify the Indemnified Parties (as defined below) and hold them harmless from and with respect to any and all such taxes. In no event will Contractor be, claim to be, or be deemed to be an employee of Owner by reason of or with respect to this Agreement or any services provided hereunder.
  1. Indemnification. Contractor shall indemnify and hold harmless Owner and its affiliates, employees, managers, members, and partners (together with Owner, the “Indemnified Parties”) from and against any and all losses, damages, costs (including reasonable attorneys fees and costs), judgments, expenses, actions, and liabilities (collectively, “Losses”) to the extent arising out of Contractor’s performance under this Agreement, Contractor’s breach of any representation, warranty or covenant under this Agreement, Contractor’s negligence or intentional misconduct, or Contractor’s breach of any Law. Contractor also shall indemnify each Indemnified Party against all losses arising in connection with, and shall assume full responsibility for payment of, all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax laws with respect to Contractor.
  1. Limitation on Liability. Contractor agrees that, notwithstanding any provision in this Agreement to the contrary, no partner, member, manager, shareholder, director, officer, employee, agent, affiliate or representative of Owner, nor any partner, member, manager, shareholder, director, officer, employee, agent, affiliate or representative of any partner of Owner, shall have any liability for the obligations of Owner under this Agreement.
  1. No Damages. If this Agreement is terminated early pursuant to the terms hereof, including because of the Contractor’s default, Contractor agrees that any funds expended or expenses incurred for labor, equipment or other items with regard to its performance under this Agreement are expended or incurred with the understanding that this Agreement may at some point be terminated. It is understood and agreed that, except as expressly otherwise set forth in Agreement, Owner shall not be liable for damages in any form by reason of any termination of this Agreement in accordance with the terms hereof including, but not limited to, any claims relating to or arising out of Contractor’s expected future performance under this Agreement.
  1. Waiver of Consequential Damages. Except with respect to Contractor’s indemnification obligations hereunder, each party waives the right to special, indirect, consequential and punitive damages, including lost profits related to, arising out of, or resulting from a breach of this Agreement.
  1. [Limitation on Damages. Notwithstanding anything in this Agreement to the contrary, in no event (even a breach by Owner) shall Owner be liable for any Losses in excess of the actual amount payable by Owner to Contractor for the supply of a particular Service actually provided by Contractor pursuant to this Agreement.]
  1. [Waiver of Claims.

a.Contractor hereby waives any and all claims against the Indemnified Parties and the Indemnified Parties’ properties for liabilities, losses, actions, damages, judgments, costs or expenses of whatever nature, including attorneys' fees, incurred by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of any property, violation of Law, or otherwise in connection with (i) the condition of the Property or any facilities thereon, (ii) any event or occurrence on or about the Property, or (iii) the acts or omissions of any person, except with respect to the gross negligence or willful misconduct of an Indemnified Party.

b.All personal property belonging to Contractor shall be brought onto the Property at the risk of Contractor, and the Indemnified Parties shall not be liable for damage or destruction to or theft of any such personal property, except if any Losses are caused by the gross negligence or intentional misconduct of an Indemnified Party.]

  1. Entire Agreement/No Waiver. This Agreement contains all of the terms and conditions agreed upon by the parties hereto with reference to the subject matter hereof and supersedes all prior agreements and negotiations with respect to the subject matter hereof. The parties agree that the terms of this Agreement cannot be varied, waived or amended by Owner, except by a writing executed by an officer of Owner. No provision of this Agreement shall be deemed to have been waived, except if such waiver is contained in a written instrument executed by the party against whom such waiver is to be enforced. No waiver by a party of any term or condition of this Agreement shall constitute a waiver by such party of any prior, concurrent or subsequent breach or default of the same or any other term or condition of this Agreement.
  1. Assignability. This Agreement shall be binding and inure to the benefit of the successors and permitted assigns of the parties hereto. The parties acknowledge and agree that the services of Contractor are of a personal nature and Contractor may not assign its rights, obligations or this Agreement or this Agreement, except with the prior written approval of Owner (which may be given or withheld in Owner’s sole discretion). Owner may, without the consent of Contractor, assign this Agreement to any affiliate or subsidiary of Owner or to any person or entity acquiring substantially all of the assets of Owner. Upon such assignment, Owner shall be relieved of any further liability or obligations to Contractor arising after the effective date of such assignment.
  1. Survivability. The provisions of this Agreement which, by their reasonable terms, are intended to survive termination of this Agreement (such as indemnity or confidentiality obligations) shall survive termination. In the event that this Agreement is terminated or expires by its terms, such expiration or termination shall not affect any liability or other obligation which shall have accrued prior to such termination.
  1. No Use of Name. Contractor shall not publicize, publish or otherwise use the name of Owner, Industrial Income Trust Inc.,Industrial Property Trust Inc., Black Creek Capital, Dividend Capital Group, Dividend Capital Diversified Property Fund Inc., or any of their affiliates (collectively, the “Owner Group”) in any advertising, customer list or similar document, or otherwise disclose the contractual relationship with the Owner Group, without the prior written approval of the appropriate member(s) of the Owner Group, as applicable (which approval may be given or withheld in such party’s sole discretion, as applicable).
  1. [Insurance.

1.Contractor’s Insurance. Contractor shall maintain, at its own cost and expense, insurance coverages in the following amounts and shall require that all subcontractors brought onto the Property have insurance coverage, at the Contractor’s or subcontractor’s expense, in the following amounts (which amounts may be increased at Owner’s written direction, depending on the Services performed):

(a)Workers’ Compensation – Coverage A: Statutory amount; Coverage B: Employer’s Liability insurance:

$1,000,000 Each Accident

$1,000,000 Disease, Policy Limit

$1,000,000 Disease, Each Employee

(b)Commercial General Liability shall be written on ISO occurrence form CG 00 01 12 07 (or a substitute form providing equivalent coverage).

Combined Bodily Injury and Property Damage Liability

General Aggregate$2,000,000Limit of Liability

Products – Completed Operations Aggregate$2,000,000Limit of Liability

Each Occurrence$1,000,000Limit of Liability

Personal Injury and Advertising Injury$1,000,000Limit of Liability

The following coverages must be included:

Premises/Operations

Contingent Liability for work performed by Subcontractor’s/Vendors

Explosion, Collapse, and Underground

Broad Form Property Damage (including Completed Operations)

Personal Injury Liability

Contractual Liability (including the tort liability of another assumed in a business contract

The following endorsements are required under Contractor’s policy:

Owner and its property manager listed as Additional Insured for Ongoing Operations (Form CG 20 33 10/01) and for Completed Operations (Form CG 20 37 10/01), or their equivalent on a combined form.

The policy shall state that it is primary and non-contributory with any insurance maintained by Owner, its subsidiaries, directors, officers, employees and agents.

The policy shall contain a hold harmless provision in favor of Owner and its property manager.

Contractor shall maintain Products and Completed Operations Liability Insurance, and the Additional Insured and Primary and Non-contributory coverage as specified herein for three (3) years after work is completed.

Cross-Liability Coverage. If Contractor’s liability policies do not contain the standard ISO separation of insureds provision, or a substantially similar clause, they shall be endorsed to provide cross-liability coverage.

(c)Owned, Hired and Non-Owned Business Automobile liability insurance in an amount no less than $1,000,000 per accident Combined Single Limit for Combined Bodily Injury and Property Damage Liability.

(d)Contractor, and its Subcontractors at any tier, shall retain the risk of loss for any damage whatsoever to their equipment, stationary or mobile, tools including worker’s tools, supplies, materials, scaffolding, automobiles and vehicles, highway or otherwise, cranes, and hoists or any other property owned or leased which will not be incorporated into the physical construction.

If separate insurance is maintained for any property described in this Section, it shall contain a Waiver of Subrogation on the part of the insurance company in favor of Owner and all other Contractors and Subcontractors at any tier with respect to on Site activities. If a Contractor of any tier chooses to self-insure any of the property described under this Section, it is agreed that Owner and all other suppliers and Subcontractors of any tier shall be held harmless for any loss or damage to the property while on Site.

(e)Employee Theft Insurance / Comprehensive Crime Insurance in an amount not less than $1,000,000 (covering theft, criminal, fraudulent or dishonest acts).

(f)Excess/Umbrella Liability Insurance (Occurrence form with defense costs outside the limits) in an amount no less than $5,000,000 per occurrence/$5,000,000 Aggregate Excess of the Employer’s Liability, Commercial General Liability and Automobile Coverages on a following form basis, including coverage for the Additional Insureds (including Owner and its property manager) specified in (b) and shall include liability coverage for damage to the insured’s completed work equivalent to that provided under ISO form CG 00 01.

(g)Subcontractor’s Insurance. Contractor shall cause each subcontractor employed by Contractor to purchase and maintain insurance of the types specified above with limits of liability appropriate for the work. When requested by Owner, Contractor shall furnish copies of certificates of insurance evidencing coverage for each subcontractor.