[NOTE, SEPARATE TECHNICAL SERVICES AGREEMENTSARE 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
1.1Definitions
1.2Exhibits
Article 2 TECHNICAL SERVICES
2.1Engagement of Manager
2.2Technical Services
2.3Site Visits
2.4Inspections
2.5Use of Affiliates by Manager
2.6Term
Article 3 FEES AND EXPENSES
3.1Technical Services Fee
3.2Reimbursable Expenses
3.3Accrual after Opening Date
3.4Payment of Fees and Expenses
Article 4 PLANS AND SPECIFICATIONS
4.1Delivery of Plans and Specifications to Manager
4.2Review of Plans and Specifications
4.3Changes to Plans and Specifications After Approval by Manager
4.4Compliance with Brand and Brand Standards
Article 5 DEVELOPMENT AND CONSTRUCTION OF THE HOTELS
5.1Owner’s Development and Construction Team
5.2Commencement and Completion of the Hotels
5.3Periodic Reports and Information
Article 6 COVENANTS
Article 7 CONFIDENTIALITY
7.1Confidential Information
Article 8 ASSIGNMENTS
8.1Assignment by Manager
8.2Assignment by Owner.
Article 9 INSURANCE AND INDEMNIFICATION
9.1Insurance
9.2Indemnification
Article 10 DEFAULTS AND TERMINATIONS
10.1Event of Default
10.2Remedies for Event of Default
10.3Cross-Termination with Other Agreements
10.4Termination Due to Hotel Construction
10.5Actions To Be Taken on Termination
Article 11 JURISDICTION AND VENUE
11.1Submission to Jurisdiction
11.2Claims by Manager
11.3Manager Disputes.
11.4Waiver of Consequential and Punitive Damages
11.5Survival and Severance
Article 12 REPRESENTATIONS AND WARRANTIES
12.1Owner’s Representations and Warranties
12.2Manager’s Representations and Warranties
12.3OWNER’S ACKNOWLEDGEMENTS
Article 13 GENERAL PROVISIONS
13.1Governing Law
13.2Miscellaneous Instruments
13.3Estoppel Certificates
13.4Construction of this Agreement
13.5Limitation of Liability
13.6LIMITATION ON MANAGER’S DUTIES AND OBLIGATIONS
13.7Waivers
13.8Notices
13.9Owner’s Representative
13.10Further Assurances
13.11Relationship of the Parties
13.12Force Majeure
13.13Counterparts; Facsimile and Electronic Execution
13.14Illinois Freedom of Information Act
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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 1DEFINITIONS AND EXHIBITS
1.1Definitions
. 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.
1.2Exhibits
. 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 2TECHNICAL SERVICES
2.1Engagement 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.
2.2Technical 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.
2.3Site 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.
2.4Inspections
. 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.
2.5Use 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.
2.6Term
. 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 3FEES AND EXPENSES
3.1Technical 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.
3.2Reimbursable Expenses
. Owner shall reimburse Manager for all approved Reimbursable Expenses incurred by Manager in accordance with this Article 3.
3.3Accrual 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.
3.4Payment of Fees and Expenses
.
3.4.1Monthly 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.
3.4.2Due 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.
3.4.3Place 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 4PLANS AND SPECIFICATIONS
4.1Delivery of Plans and Specifications to Manager
4.1.1Timelines 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.
4.1.2Extension 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).
4.1.3Method 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.
4.2Review of Plans and Specifications
.
4.2.1Manager shall review the Review Materials to determine whether such Review Materials comply with the Design Guide and the Brand Standard. Manager shall either approve or reject the Review Materials submitted to Manager by providing notice to Owner within 10 Business Days after receipt by Manager of any Review Materials. If Manager rejects any Review Materials, Manager shall provide written comments and proposed corrections to Owner for resubmittal to Manager. If Manager does not provide notice of approval or rejection within such 10 Business Day period, the Review Materials submitted shall be deemed to be disapproved. The terms “approval”, “approve” or “approved” when used in reference to Manager’s review of any plans and specifications or items therein shall mean Manager’s acceptance that the plans and specifications or items in question comply with the Design Guide and Brand Standard, or are otherwise accepted by Manager. Notwithstanding the foregoing, Owner shall have the right to deliver to Manager a second request for Manager’s review and approval (the “Second Request”), which shall include in bold, capital letters the following statement: “THIS IS A SECOND NOTICE FOR REVIEW AND APPROVAL BY MANAGER. FAILURE TO RESPOND TO THIS NOTICE WITHIN FIVE BUSINESS DAYS WILL RESULT IN THE DEEMED APPROVAL BY MANAGER OF THE MATERIALS SUBMITTED WITH THIS NOTICE.” If Manager does not respond to such Second Request within five Business Days after Manager’s receipt of such Second Request, the items submitted shall be deemed approved. If any Review Materials or other items submitted to Manager are disapproved or deemed disapproved, Owner shall have the right to revise and modify such items to comply with objections of Manager; provided, however, that Owner shall resubmit such items to Manager for approval pursuant to this Section4.2. If Owner makes any material modifications or changes to any Review Materials or other items approved by Manager, Owner shall resubmit such items to Manager for approval in accordance with this Section4.2.
4.3Changes to Plans and Specifications After Approval by Manager
. If Owner makes any material changes to any Review Materials approved by Manager, such revised Review Materials shall be subject to Manager’s re-approval in accordance with this Article 4.
4.4Compliance with Brand and Brand Standards
. Owner acknowledges and agrees that the Hotels will be deemed not to comply with the Design Guide and Brand Standard for the purposes of this Agreement and the Management Agreement, unless and until Manager approves the plans and specifications described in Exhibit C in accordance with Article 4, and the Hotels are constructed in accordance with such Approved Plans and Specifications.
Article 5DEVELOPMENT AND CONSTRUCTION OF THE HOTELS
5.1Owner’s Development and Construction Team
.
Owner shall engage, at its own cost and expense, such reputable and qualified architects, contractors, engineers, decorators and other professionals, specialists and consultants as may be necessary or desirable to complete the Hotels as set forth in ExhibitD, including all aspects for the development, design, architecture, construction and furnishing of the Hotels as required under the Design Guide and Brand Standards. The plans and specifications for the Hotels shall be prepared by a duly licensed architect, at Owner’s expense, and in compliance with the Design Guide and Brand Standard, and the contractors engaged by Owner shall be responsible for supervision of the Construction of the Hotels. The engagement by Owner of such professionals shall be through a public procurement process. A representative of Manager shall sit on the Evaluation Committee for the public procurement as a technical advisor if any of the public procurement is qualification-based.
5.2Commencement and Completion of the Hotels
.
5.2.1Timeline for the Hotels. Owner shall use commercially reasonable efforts to (a)provide or obtain all financial and other resources necessary to complete the development and Construction of the Hotels in accordance with this Agreement, (b)perform all work necessary to cause the Start of Construction to occur prior to [City to provide]______, with time being of the essence, and (c)perform all work necessary to cause the Opening Date to occur before [City to provide]______, with time being of the essence, all in accordance with the Approved Plans and Specifications, the Design Guide, the Brand Standard and all Applicable Laws.
5.2.2Inspections. Owner, at its expense, shall take such actions as reasonably necessary to correct any undisputed deficiencies (as determined in accordance with the terms of this Agreement) detected during such an inspection of the Construction by Manager. In addition, if Managerand Owner permit the opening of the Hotels prior to completion of the items on the Deficiency List, Owner, at its expense, shall take such actions as necessary to complete all remaining items on the Deficiency List. This Section5.2.2 shall survive the Opening Date.
5.2.3Necessary Approvals. Owner, at its expense, shall obtain all Approvals necessary to perform the work required for the Construction prior to the Start of Construction, including construction permits, from all Governmental Authorities having jurisdiction over the Hotels and the business to be operated therein, and maintain all such Approvals throughout the Construction. Manager shall cooperate with owner fully as necessary in securing such Approvals.
5.3Periodic Reports and Information