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HomeMy WebLinkAbout9.a. Authorizing Various Agreements for Lifetime Project EXECUTIVE SUMMARY Port Authority Special Meeting: April 4, 2023 AGENDA ITEM: Authorize Various Agreements related to the Life Time project AGENDA SECTION: New Business PREPARED BY: Logan Martin, City Administrator Dan Schultz, Park & Rec Director AGENDA NO. 6.a. ATTACHMENTS: Resolution, Lease, CMA 132/232 APPROVED BY: LJM RECOMMENDED ACTION: Motion to authorize the attached Resolution to execute various agreements related to the Life Time project. BACKGROUND City Staff and the project team from Life Time have been working diligently on final preparation of documents and plans to move the project into its implementation phase. The project is currently out for bid and remains on track for an early summer groundbreaking. At this point, staff is requesting Port Authority approval of two documents under its purview to solidify the project. Specifically, the Port Authority is the responsible entity on the Lease Agreement between the parties and the Construction Management Agreements. The Construction Management agreement (CMA-132 and CMA 232) establish Life Time’s role as the Port Authority’s agent to complete the construction project. It outlines their responsibilities for management of subcontractors, site safety, reporting, payment of invoices, distribution of project funds, and more. The project is currently out for bid to a large list of subcontractors, and separate contracts will be entered into between the Port Authority and each contractor on a litany of specialized work (grading, HVAC, steel, concrete, landscaping, etc.). This arrangement is identical to the arrangement the City has entered into for its PD PW Campus with Kraus Anderson. The Lease Agreement establishes the Port Authority’s landlord / tenant relationship with Life Time for the next 30 years. Below is a discussion of key items in the lease, and staff will be prepared to discuss further at the work session. • Life Time will operate an approx. 95,000 SF facility featuring indoor / outdoor pool and water slides, indoor and outdoor café / bistro (with liquor sales), exercise facilities, gyms, outdoor pickleball courts, child’s play areas, salon and day spa, etc. • Estimated Project cost of $48 million o City contributes $21 million o Life Time funds $27 million in project funds and services provided (architect, engineer, construction manager, etc.) • City owns the building and retains the asset in perpetuity o Life Time leases the building from the City for 30 years o Annual lease payment is equal to their portion of the bond payment (i.e. payments for the $27 million portion of the debt) o City acts as financial lender for the deal, utilizing bond capacity to acquire funds. City assumes risk of lease default by operator. A new tenant would be pursued in that instance, or the sale of the City-owned asset would occur to pay off any remaining bond debt. • Life Time pays to furnish and maintain the building for the life of the lease o No annual City costs to maintain or repair the building or grounds • Rosemount residents receive the following benefits: o No initiation fee o Reduced monthly rates ($10 off for individual, $15 off for couple, $20 off for family) o Optional “summer membership” from June – August reduced by $50 for individuals, $75 for couples, and $75 for families (to support pool utilization and span the summer break for students) o 4 guests passes per household annually (first 5 years, with 2 year extension) o A scholarship fund will be created to fund 66% of 75 family memberships (funded by City and Life Time) to assist families in need • Life Time may not assign or sublet the facility without the City’s approval o If an entity acquires 10 or more Life Time locations in MN, a transfer of this lease to that entity is permitted o A business merger, sale, or consolidation is another allowable transfer of this lease arrangement • Life Time pays all taxes and utilities (estimated $250,000 a year in total taxes for all govts.) • 30-year lease, with renewal options o Annual lease in years 31-40 will be ½ of the debt service payment (approx. $600,000 to $700,000 based on final bond amounts) The current schedule anticipates a June land closure, with earthwork and construction starting thereafter. RECOMMENDATION Staff recommends the Port Authority authorize the attached Resolution to execute various agreements related to the Life Time project. RESOLUTION 2023-___ RS125-24-865828.v1 ROSEMOUNT PORT AUTHORITY CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2023-__ RESOLUTION AUTHORIZING THE EXECUTION OF VARIOUS AGREEMENTS (LIFE TIME PROJECT) WHEREAS, the City of Rosemount (the “City”), as buyer, and Akron 42, LLC, as seller, have executed that certain Purchase and Sale Agreement dated April 5, 2022, as amended and assigned (the “Purchase Agreement”), pursuant to which the City will acquire that certain tract of land with all easements, hereditaments and appurtenances belonging thereto, located at northwest corner of County Road 42 and Akron Avenue in Rosemount, Minnesota, consisting of approximately 21.75 net developable acres in the aggregate (the “Development Property”); and WHEREAS, pursuant to a quit claim deed or the terms of a Partial Assignment of Purchase Agreement, to be entered into between the City and the Rosemount Port Authority, a Minnesota body corporate and politic (the “Port”), with the consent of Akron 42, LLC, as seller, (collectively, the “PA Assignment”), the Port proposes to acquire and become the fee owner of that portion of the Development Property containing approximately 10.9 net developable acres, to be legally described as Lot 1, Block 1, Prestwick Place 23rd Addition, according to the approved plat thereof (the “PA Property”); and WHEREAS, the Port, as landlord, and LTF Lease Company, LLC (“LTF Tenant”), propose to enter into a Lease (the “Lease”), pursuant to which a health and fitness facility with outdoor recreational uses will be developed and constructed by the Port, pursuant to a AIA Document C132 – 2019 Standard Form of Agreement Between Owner and Construction Manager as Adviser and a AIA Document A232 – 2019 General Conditions of the Contract for Construction, Construction Manager as Adviser Edition (collectively, the “Construction Management Agreement”) between the Port and LTF Construction Company, LLC, an affiliate of LTF Tenant (the “Construction Manager”), and leased to and operated on the PA Property by LTF Tenant (the “Health Club Project”); and WHEREAS, LTF Real Estate Company, Inc., a Minnesota corporation (“LT Owner”) as the initial owner of Outlots A and C, Prestwick Place 23rd Addition, of the Development Property (the “LT Owner Property”) plans to facilitate the development of an integrated retail/residential development on the LT Owner Property by developing and/or selling the outlots or lots comprising the LT Owner Property to third parties; and WHEREAS, the Port, pursuant to the Construction Management Agreement, will cause the completion of certain site work, utility, roadway, and signage improvements (the “Improvements”) that will benefit the entire Development Property; and WHEREAS, the Port and LT Owner, with the consent of the City, propose to enter into a Site Development Agreement (the “Site Development Agreement”), which describes the scope of the Improvements to be performed in connection with the development of the Development Property and the timing of completion of the Improvements and pursuant to which the costs and expenses associated RESOLUTION 2023-___ RS125-24-865828.v1 with the completion of such Improvements will be paid for by the Port and LTF Owner pro rata based upon the relative net developable acres comprising each of the PA Property and the LT Owner Property; and WHEREAS, the Port, LTF Tenant, LTF Owner, and the City, propose to enter into a Declaration of Easements and Covenants (the “Declaration”), which describes easement areas for the Improvements and imposes various other restrictions on the Development Property; and WHEREAS, in furtherance of the objectives of the Port as detailed in the Laws of Minnesota 1991, Chapter 291, as codified in Minnesota Statutes, Section 469.0813, and a certain enabling resolution adopted by the City Council of the City (the “City Council”), on September 3, 1991 (the “Enabling Resolution”), the Commission of the Port Authority (the “Commission”) established the Connemara Industrial Development District (the “Development District”) and adopted a development plan for the Development District as set forth the document entitled “Development Plan for Connemara Industrial Development District” (the “Plan”), pursuant to Minnesota Statutes, Sections 469.048 to 469.068 and Section 469.0813 (the “Act”); and WHEREAS, the Commission found that there is a need for development and redevelopment within the City and, in particular, within the Development District, and a need to provide an improved local tax base, to provide public facilities, to provide employment opportunities, and to improve the general economy of the City and the State. The Commission further found that the City lacks adequate community recreational facilities to serve the needs of the City’s population. Acquisition of land at the proposed site in the Development District will allow the Port to facilitate development of a recreational facility and to be leased to LTF Tenant. The proposed site in the Development District will provide adequate space to develop such recreational facility. The Development District will allow the Port to encourage commercial development within the Development District and stimulate future development of the City, including attraction of commercial development by providing access to public services, including without limitation recreational facilities and services, to the citizens of and visitors to the City. The recreational facility is a necessary public facility and the site will be acquired and developed at a cost reasonably related to the public purpose to be served without need of any residential clearance activities. The additional findings set forth in the Plan are incorporated herein by reference; and WHEREAS, the Port proposes to issue up to $48,000,000 of general obligation bonds (the “Bonds”) to finance the Health Club Project on which the Port expects to pay the principal of and interest on a $21,000,000 portion thereof from property taxes and other available Port and City revenues and expects to pay the principal of and interest on the remaining portion thereof from rent payments to be made by LTF Tenant under the Lease; and NOW THEREFORE, BE IT RESOLVED by the Commission of the Rosemount Port Authority (the “Commission”) as follows: Section 1. Additional Findings. (a) The City and the Port studied the feasibility of constructing, operating and maintaining a community recreational facility without a private operator and found that the cost thereof to the City or the Port over a 30-year period would be greater than the cost of the proposed financing of the Health Club Project through the issuance of the Bonds plus the aggregate contributions and expenses required under the Lease, Construction Management Agreement, RESOLUTION 2023-___ RS125-24-865828.v1 Purchase Agreement, PA Assignment, Site Development Agreement and Declaration, because of the financial contributions by LTF Tenant and its affiliates; it was further determined that a publicly operated facility would experience an annual loss of public funds throughout the term of the operation; therefore the Commission finds that the plan of finance and financial contributions required by the City and the Port under such agreements is reasonable; and (b) Staff of the City and the Port consulted with commercial real estate brokers and, based on the information obtained through such consultations, the Commission finds that the rent to be paid by LTF Tenant under the Lease over the initial 30-year period of operations and during the Renewal Term (as defined in the Lease) is commercially reasonable. Section 2. Approval of Agreements. The Commission hereby approves the acquisition of the PA Property pursuant to the PA Assignment or other conveyance and approves the Lease and Construction Management Agreement in substantially the forms presented to the City Council, together with any related documents necessary in connection therewith or in connection with the Lease and Construction Management Agreement, including but not limited to any documents, exhibits, certifications or consents referenced in or attached to the Lease and Construction Management Agreement as approved by legal counsel to the Port (collectively, the “Development Documents”), and hereby authorizes the Chair and Executive Director to negotiate the final terms thereof and, in their discretion and at such time, if any, as they may deem appropriate, the Chair and Executive Director are authorized to execute the same on behalf of the Port, and to carry out, on behalf of the Port, the Port’s obligations thereunder. Section 3. Modifications. The approval hereby given to the Development Documents includes approval of such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by legal counsel to the Port, by the Executive Director and by the officers authorized herein to execute said documents prior to their execution; and said officers are hereby authorized to approve said changes on behalf of the Port. The execution of any instrument by the appropriate officers of the Port herein authorized shall be conclusive evidence of the approval of such document in accordance with the terms hereof. This Resolution shall not constitute an offer and the Development Documents shall not be effective until the date of execution thereof as provided herein. Section 4. Absence of Authorized Officials. In the event of absence or disability of the officers, any of the documents authorized by this Resolution to be executed may be executed without further act or authorization of the Commission by any duly designated acting official, or by such other officer or officers of the Commission as, in the opinion of the City Attorney, may act in their behalf. Upon execution and delivery of the Development Documents, the officers and employees of the Port are hereby authorized and directed to take or cause to be taken such actions as may be necessary on behalf of the Port to implement the Development Documents. Section 5. Public Purpose. The Commission hereby determines that the execution and performance of the Development Documents will help realize the public purposes of Laws of Minnesota 1991, Chapter 291, as codified in under the provisions of Minnesota Statutes, Sections 469.048 to 469.068 and in particular, Minnesota Statutes, Section 469.0813 (collectively, as amended from time to time, the “Act”). RESOLUTION 2023-___ RS125-24-865828.v1 ADOPTED this 4th day of April, 2023. _______________________________________ Paul Essler, Chair ATTEST: Logan Martin, Executive Director LEASE BETWEEN ROSEMOUNT PORT AUTHORITY, a Minnesota body corporate and politic (“LANDLORD”) AND LTF LEASE COMPANY, LLC, a Delaware limited liability company (“TENANT”) i TABLE OF CONTENTS 1. BASIC LEASE PROVISIONS AND DEFINITIONS ....................................................................................... 1 Section 1.1 Additional Rent ................................................................................................................... 1 Section 1.2 Applicable Law(s) ............................................................................................................... 2 Section 1.3 Approved Plans .................................................................................................................. 2 Section 1.4 Base Rent ............................................................................................................................ 2 Section 1.5 Bond Issuance Date ............................................................................................................ 2 Section 1.6 Bonds .................................................................................................................................. 2 Section 1.7 Bond Sale Date ................................................................................................................... 2 Section 1.8 Building .............................................................................................................................. 2 Section 1.9 Business Days ..................................................................................................................... 3 Section 1.10 City ................................................................................................................................... 3 Section 1.11 Closure Events .................................................................................................................. 3 Section 1.12 Construction Management Agreement ............................................................................. 3 Section 1.13 Construction Manager ..................................................................................................... 3 Section 1.14 Development Agreement ................................................................................................... 3 Section 1.15 Development Parcel Acquisition Date ............................................................................. 3 Section 1.16 Guarantor. ........................................................................................................................ 3 Section 1.17 Life Time, Inc. ................................................................................................................... 3 Section 1.18 Health Club ...................................................................................................................... 3 Section 1.19 Initial Term ....................................................................................................................... 4 Section 1.20 Institutional Lender .......................................................................................................... 4 Section 1.21 Landlord’s Notice Address ............................................................................................... 4 Section 1.22 Landlord Portion of Bonds ............................................................................................... 4 Section 1.23 Landlord’s Work ............................................................................................................... 5 Section 1.24 Leasehold Mortgage ......................................................................................................... 5 Section 1.25 Leasehold Mortgagee ....................................................................................................... 5 Section 1.26 Letter of Credit ................................................................................................................. 5 Section 1.27 LT Owner .......................................................................................................................... 5 Section 1.28 Partial Assignment of Purchase Agreement ..................................................................... 5 Section 1.29 Permitted Encumbrances.................................................................................................. 5 Section 1.30 Permitted Use ................................................................................................................... 5 Section 1.31 Possession Date ................................................................................................................ 5 Section 1.32 Plat ................................................................................................................................... 5 Section 1.33 Purchase Agreement ......................................................................................................... 5 Section 1.34 REA ................................................................................................................................... 5 Section 1.35 Renewal Terms ................................................................................................................. 6 Section 1.36 Rent ................................................................................................................................... 6 Section 1.37 Rent Commencement Date ............................................................................................... 6 Section 1.38 Signage and Trade Dress ................................................................................................. 6 Section 1.39 Site Control....................................................................................................................... 6 Section 1.40 Taxes ................................................................................................................................. 6 Section 1.41 Tenant Contingencies ....................................................................................................... 6 Section 1.42 Tenant Portion of Bonds ................................................................................................... 6 Section 1.43 Tenant’s Notice Address ................................................................................................... 6 Section 1.44 Tenant’s Work .................................................................................................................. 7 Section 1.45 Term ................................................................................................................................. 7 Section 1.46 Title Company .................................................................................................................. 7 ii 2. THE PREMISES. ...................................................................................................................................... 7 Section 2.1 Grant and Demise of the Premises ..................................................................................... 7 Section 2.2 Site Control......................................................................................................................... 7 Section 2.3 Representations and Warranties of Landlord; Quiet Enjoyment ....................................... 8 Section 2.4 Presale Area ....................................................................................................................... 9 3. TERM AND OPTIONS. ............................................................................................................................. 9 Section 3.1 Initial Term ......................................................................................................................... 9 Section 3.2 Options to Renew; Renewal Terms ..................................................................................... 9 4. RENT; RESIDENT BENEFITS. ................................................................................................................ 10 Section 4.1 Pre-Term Payments; Rent ................................................................................................ 10 Section 4.2 Resident Benefits .............................................................................................................. 10 5. TAXES. ................................................................................................................................................. 11 6. INITIAL IMPROVEMENTS OF THE PREMISES. ........................................................................................ 12 Section 6.1 Landlord’s Information .................................................................................................... 12 Section 6.2 Landlord’s Work............................................................................................................... 12 Section 6.3 Punch List ......................................................................................................................... 13 Section 6.4 Tenant’s Work .................................................................................................................. 14 Section 6.5 Option to Begin Tenant’s Work Prior to Completion of Landlord’s Work ...................... 14 Section 6.6 Rooftop Installations ........................................................................................................ 15 Section 6.7 Ownership of Premises and Tenant’s Work ..................................................................... 15 7. CONTINGENCIES. ................................................................................................................................. 15 Section 7.1 Tenant Bond Issuance Contingencies ............................................................................... 15 Section 7.2 Tenant Real Property Contingencies ................................................................................ 16 Section 7.3 Landlord Bond Contingencies .......................................................................................... 17 Section 7.4 Landlord Real Property Contingencies ............................................................................ 18 8. SIGNS AND TRADE DRESS. .................................................................................................................. 18 9. USE AND OCCUPANCY. ........................................................................................................................ 19 Section 9.1 Permitted Use ................................................................................................................... 19 Section 9.2 Operating Covenant ......................................................................................................... 19 Section 9.3 Tenant’s Use ..................................................................................................................... 21 Section 9.4 Landlord’s Right of Access ............................................................................................... 21 Section 9.5 Compliance with Applicable Laws ................................................................................... 21 Section 9.6 Surrender of Premises; Trade Fixtures; Holdover........................................................... 22 10. BUSINESS SUBSIDY LAW. .................................................................................................................... 22 11. MAINTENANCE, REPAIRS AND CAPITAL IMPROVEMENTS. .................................................................. 23 Section 11.1 Landlord’s Responsibility ............................................................................................... 23 Section 11.2 Tenant’s Responsibility .................................................................................................. 24 Section 11.3 Capital Improvements .................................................................................................... 24 Section 11.4 Mechanics’ Liens ............................................................................................................ 24 12. LETTER OF CREDIT. ............................................................................................................................. 25 Section 12.1 ......................................................................................................................................... 25 13. UTILITIES/TRASH/RECYCLING. ........................................................................................................... 26 Section 13.1 Utility Charges, Service.................................................................................................. 26 Section 13.2 Trash/Recycling .............................................................................................................. 26 14. COMMON AREAS ................................................................................................................................. 26 Section 14.1 Merchants Association/Marketing Fees ......................................................................... 26 15. PARKING .............................................................................................................................................. 26 16. INDEMNITY AND INSURANCE. ............................................................................................................. 27 Section 16.1 Indemnification by Tenant .............................................................................................. 27 Section 16.2 Indemnification by Landlord .......................................................................................... 27 Section 16.3 Tenant’s Insurance ......................................................................................................... 27 iii Section 16.4 Landlord’s Insurance ..................................................................................................... 28 Section 16.5 Additional Policy Requirements ..................................................................................... 28 Section 16.6 Waiver of Right of Recovery ........................................................................................... 29 Section 16.7 Liquor License and Dram Shop Insurance ..................................................................... 29 17. CASUALTY. .......................................................................................................................................... 29 Section 17.1 Casualty .......................................................................................................................... 29 Section 17.2 Rights of Termination ..................................................................................................... 30 Section 17.3 Termination of Rent Obligation...................................................................................... 30 18. CONDEMNATION. ................................................................................................................................ 30 Section 18.1 Permanent Taking .......................................................................................................... 30 Section 18.2 Temporary Taking .......................................................................................................... 31 Section 18.3 Participation in Proceedings .......................................................................................... 31 Section 18.4 Condemnation Award ..................................................................................................... 31 19. ASSIGNMENT AND SUBLETTING BY TENANT ...................................................................................... 32 20. LEASEHOLD FINANCING; SUBORDINATION; ESTOPPEL CERTIFICATES. .............................................. 33 Section 20.1 Leasehold Financing ...................................................................................................... 33 Section 20.2 Subordination ................................................................................................................. 36 Section 20.3 Estoppel Certificates ...................................................................................................... 36 21. RESTRICTION ON HAZARDOUS MATERIALS. ....................................................................................... 37 Section 21.1 Definitions ...................................................................................................................... 37 Section 21.2 Tenant’s Obligation ........................................................................................................ 37 Section 21.3 Landlord’s Obligations .................................................................................................. 37 Section 21.4 Discovery of Hazardous Materials During Construction .............................................. 38 22. DEFAULT. ............................................................................................................................................ 39 Section 22.1 Event of Default .............................................................................................................. 39 Section 22.2 Landlord’s Remedies ...................................................................................................... 39 Section 22.3 Landlord’s Default ......................................................................................................... 40 Section 22.4 Cumulative Remedies ..................................................................................................... 40 23. NON-WAIVER PROVISIONS. ................................................................................................................. 41 24. NOTICES. ............................................................................................................................................. 41 25. BROKER’S COMMISSION. ..................................................................................................................... 41 26. MEMORANDUM OF LEASE. .................................................................................................................. 41 27. GENERAL. ............................................................................................................................................ 41 Section 27.1 Governing Law ............................................................................................................... 41 Section 27.2 Effectiveness ................................................................................................................... 41 Section 27.3 Complete Understanding ................................................................................................ 42 Section 27.4 Amendment ..................................................................................................................... 42 Section 27.5 Severability ..................................................................................................................... 42 Section 27.6 Force Majeure ................................................................................................................ 42 Section 27.7 Anti-Terrorism ................................................................................................................ 43 Section 27.8 Survival of Obligations ................................................................................................... 44 Section 27.9 Captions.......................................................................................................................... 44 Section 27.10 Number and Gender ..................................................................................................... 44 Section 27.11 Consent ......................................................................................................................... 44 Section 27.12 Counterparts/Lease Signing/Authority ......................................................................... 44 Section 27.13 Lease Guaranty ............................................................................................................ 45 Section 27.14 Data Practices Act Compliance ................................................................................... 45 Section 27.15 Prevailing Parties ......................................................................................................... 45 Section 27.16 Relationship of Parties ................................................................................................. 45 Section 27.17 Construction ................................................................................................................. 45 Section 27.18 Successors and Assigns; No Third Party Beneficiaries................................................ 45 iv Section 27.19 Accord and Satisfaction ................................................................................................ 45 EXHIBIT A–1 Legal Description of Development Parcel EXHIBIT A–2 Legal Description of Lease Parcel EXHIBIT B–1 Development Parcel Site Plan EXHIBIT B-2 Premises Site Plan EXHIBIT B-3 Building Floor Plan EXHIBIT C Permitted Encumbrances EXHIBIT D Signage/Trade Dress EXHIBIT E List of Prohibited Uses of Premises EXHIBIT F Memorandum of Lease EXHIBIT G Tenant’s Parent Guaranty EXHIBIT H Base Rent Schedule EXHIBIT I Form Letter of Credit EXHIBIT J Landlord’s Work LEASE THIS LEASE (this “Lease”) is made effective as of April _____, 2023 (the “Effective Date”), by and between the ROSEMOUNT PORT AUTHORITY, a Minnesota body corporate and politic (“Landlord”), and LTF LEASE COMPANY, LLC, a Delaware limited liability company (“Tenant”). RECITALS A. The City of Rosemount (the “City”) is the contract purchaser under that certain Purchase and Sale Agreement dated April 5, 2022, as amended and assigned (the “Purchase Agreement”), by and between the City, as buyer, and Akron 42, LLC, as seller (the “Development Parcel Owner”), to acquire the Development Parcel (as hereinafter defined) containing approximately 29.51 acres and forming the Development that commonly will be known as Prestwick Place 23rd Addition located in the City of Rosemount, Dakota County, State of Minnesota (the “Development”), as legally described on Exhibit A-1 (the “Development Parcel”). B. The City has or will assign its interest in the Lease Parcel (defined below) under the Purchase Agreement to Landlord, which will occur no later than the Development Parcel Acquisition Date. Within the Development, Landlord desires to lease to Tenant, and Tenant desires to Lease from Landlord, for the purposes and upon the terms and conditions hereinafter set forth, that certain real property located at the Northeast intersection of 145th Street West and Akron Avenue, as legally described on attached Exhibit A-2 (the “Lease Parcel”), together with the building to be constructed by Landlord, as further provided herein (the “Building”) and all other improvements on or about the Lease Parcel (collectively, the “Premises”). C. The Development Parcel is depicted on the site plan attached hereto as Exhibit B- 1 (the “Development Parcel Site Plan”). The Premises is depicted on the site plan attached hereto as Exhibit B-2 (the “Premises Site Plan”). The floor plan of the Building is depicted on attached Exhibit B-3 (the “Building Floor Plan”). PROVISIONS In consideration of the mutual promises of the parties, the rents provided for herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows: 1. Basic Lease Provisions and Definitions The provisions set forth below (the “Basic Lease Provisions”) summarize certain basic lease provisions and provide definitions for certain terms used throughout this Lease. Section 1.1 Additional Rent. Sums, other than Base Rent, required to be paid directly by Tenant in connection with this Lease including, without limitation, the following: 2 Taxes – See Section 5 Insurance – See Section 16 Maintenance & Capital Repairs – See Section 11 Amounts due under the REA – See Sections 8 and 11.1 Fees for Utilities and Trash – See Section 13 Section 1.2 Applicable Law(s). Individually or collectively, as the context requires, all applicable zoning, municipal, county, state and federal laws, ordinances and regulations, including, without limitation, the Americans with Disabilities Act, now in effect or hereafter adopted, passed, or promulgated. Section 1.3 Approved Plans. The Development Parcel Site Plan attached hereto as Exhibit B-1, the Premises Site Plan attached hereto as Exhibit B-2, the Building Floor Plan attached hereto as Exhibit B-3, and the Signage and Trade Dress attached hereto as Exhibit D, each as approved by Landlord. Section 1.4 Base Rent. Tenant shall pay base rent according to the final schedule to be attached hereto as Exhibit H pursuant to the terms and conditions of this Lease. Prior to the Rent Commencement Date, the portion of the base rent consisting of the Pre-Term Payments shall be paid from capitalized interest funded by the Tenant Portion of Bonds. Beginning on the Rent Commencement Date through and including the date shown on Exhibit H on which the final base rent payment is due to pay the principal of, and accrued interest on, the Tenant Portion of Bonds in full, Base Rent shall be equal to 1/12 of the principal and 1/6 of the interest due on the Tenant Portion of Bonds, in accordance with Section 4.1, all as set forth on Exhibit H. During each Renewal Term, as applicable, Tenant shall pay monthly base rent equal to 50% of the average monthly Base Rent payable during the Initial Term in the final twelve (12) months prior to the payment, in full, of the principal of, and accrued interest on, the Tenant Portion of Bonds, as shown on Exhibit H. A final schedule for the Base Rent for the Term of this Lease, including without limitation Pre-Term Payments and the Base Rent for the Initial Term and the Renewal Terms, shall be prepared by Landlord’s municipal advisor on the Bond Sale Date. As long as this Lease is not terminated in accordance with Sections 7.1 or 7.3, the attached Exhibit H shall be automatically amended and restated with the new Exhibit H prepared by Landlord’s municipal advisor on the Bond Sale Date. Section 1.5 Bond Issuance Date. The date on which Bonds in an aggregate principal amount exceeding $21,000,000 are issued by Landlord. Section 1.6 Bonds. Those certain General Obligation Bonds, to be issued in one or more series by Landlord, for the purpose of funding costs to acquire, develop and construct the Premises in an amount not to exceed $48,000,000. Section 1.7 Bond Sale Date. The date on which a pricing committee designated by the Board of Landlord awards the sale of the Bonds. Section 1.8 Building. The single tenant building located on the Premises, containing approximately 92,000 square feet of interior space. 3 Section 1.9 Business Days. Each calendar day of the week other than Saturday, Sunday and nationally recognized holidays. Section 1.10 City. City of Rosemount, Dakota County, State of Minnesota. Section 1.11 Closure Events. Temporary closures of Tenant’s business during (a) such time as Tenant is repairing, remodeling, or renovating the Premises or restoring damage caused by casualty or condemnation to the Premises, (b) national holidays, or (c) a Force Majeure event. Section 1.12 Construction Management Agreement. Collectively, the AIA Document C132 – 2019 Standard Form of Agreement Between Owner and Construction Manager as Adviser and the AIA Document A232 – 2019 General Conditions of the Contract for Construction, Construction Manager as Adviser Edition, as modified, to be executed and delivered on the Effective Date by and between Landlord and Construction Manager, pursuant to which Construction Manager, in cooperation with Landlord’s City Engineer, has agreed to provide, at the cost set forth therein, (i) all design and architectural services for the site plan and plat of the Development, including without limitation, all utilities and infrastructure for the site, and the construction of the Building, (ii) prepare bid packets and assist with conducting public bidding for all work on the Premises and all utilities and infrastructure in the Development in accordance with MN Stat. Sections 471.345 – 471.462, and (iii) provide Construction Management services for all work performed under such contracts. Section 1.13 Construction Manager. LTF Construction Company, LLC, a Minnesota limited liability company, in its role as Construction Manager and Landlord’s agent under the Construction Management Agreement. Section 1.14 Development Agreement. The Site Development Agreement to be executed and delivered on the Bond Sale Date by the City, Landlord and LT Owner. Section 1.15 Development Parcel Acquisition Date. The date on which (a) Landlord acquires fee title to the Lease Parcel pursuant to the Purchase Agreement, and (b) LT Owner acquires fee title to the remainder of the Development Parcel pursuant to the Partial Assignment of Purchase Agreement. The Development Parcel Acquisition Date is currently anticipated to be June 30, 2023. Section 1.16 Guarantor. Life Time, Inc. Section 1.17 Guaranty. The Tenant’s Parent Guaranty to be executed and delivered on the Effective Date by the Guarantor in substantially the form attached hereto as Exhibit G. Section 1.18 Health Club. Use of the Premises up to twenty-four (24) hours a day, seven (7) days a week as a health and fitness facility which may include, but not be limited to, outdoor recreation uses, including, but not limited to, outdoor pool, water slides, outdoor child’s play area, outdoor exercise areas, outdoor fields and outdoor tennis, pickleball, indoor pools, indoor tennis, racquetball/squash, tennis lessons (both indoor and outdoor), group classes, free weights, weight and aerobic training, cardio equipment, circuit training, and also including use of 4 the Premises for child care, hair salon, whirlpool/spa, spa and/or day spa, medi-spa, café/bistro inside the Premises (with food sales for on-premises and off-premises consumption and liquor sales for on-premises consumption) with additional outdoor seating, liquor sales in the Premises, physical therapy, chiropractic care, medical office, collaborative office, “co-working” or shared workspace, sale of health and fitness-related merchandise and/or any other use related to healthy living, healthy aging, healthy working or a healthy way of life, and any other use compatible with the primary health and fitness facility function of the Premises which specifically excludes any uses listed in Exhibit E and is subject to the requirements of Article 9 and Section 11.3. Section 1.19 Initial Term. Three hundred sixty (360) consecutive full calendar months commencing on the Possession Date. Section 1.20 Institutional Lender. (i) a savings bank, (ii) a savings or building and loan association, (iii) a commercial bank or trust company (whether acting individually or in any fiduciary capacity), (iv) an insurance company, (v) an educational institution, (vi) a state, municipal or similar public employees’ welfare, pension or retirement fund or system, (vii) a charitable or other eleemosynary institution, (viii) a real estate investment trust, or (ix) any other entity which, in each of the foregoing (i) through (ix), has assets (capital and surplus) in excess of One Billion Dollars ($1,000,000,000) and whose principal businesses include, among other things, interim or permanent financing secured by real estate (or ownership interests in real estate). Section 1.21 Landlord’s Notice Address: Rosemount Port Authority Attn: City Administrator 2875 145th Street West Rosemount, MN 55068-4997 Email: Logan.Martin@ci.rosemount.mn.us with a copy to: Kennedy & Graven, Chartered Attn: Rosemount City Attorney 150 South Fifth Street, Suite 700 Minneapolis, MN 55402 Email: mtietjen@kennedy-graven.com or such other address as may, from time to time, be designated by notice from Landlord to Tenant in accordance with the terms of Article 24 of this Lease. Section 1.22 Landlord Portion of Bonds. $21,000,000 of Bond proceeds; provided however, that Landlord will issue the Bonds in the amount of up to $48,000,000 to finance costs and amounts required to develop and construct the Premises and all infrastructure for the Premises, including without limitation all off-Premises site improvements to the extent of the proceeds of the Bonds in an amount not to exceed $48,000,000.00 (the “Maximum Landlord Contribution”). 5 Section 1.23 Landlord’s Work. The Building and the improvements to be constructed by Landlord on the Lease Parcel, the site work to be performed by Landlord within the Development Parcel, and all approvals, entitlements, and site development work to be obtained or undertaken by Landlord, all as described in the Construction Management Agreement, the Development Agreement and Exhibit J, prior to delivery of possession of the Premises to Tenant and further described in Article 6, the Construction Management Agreement and the Development Agreement. Section 1.24 Leasehold Mortgage. Any mortgage or deed of trust constituting a lien upon this Lease and the leasehold estate hereby created hereby for the benefit of an Institutional Lender, and any modifications, extensions, consolidations or replacements thereto or thereof, and any future advances thereunder. Section 1.25 Leasehold Mortgagee. An Institutional Lender that is the holder of a Leasehold Mortgage, including any successor, assign or designee, or a successful bidder at a foreclosure sale. Section 1.26 Letter of Credit. A letter of credit which satisfies the requirements of Article 12 hereof. Section 1.27 LT Owner. LTF Real Estate Company, Inc., a Minnesota corporation. Section 1.28 Partial Assignment of Purchase Agreement. The Partial Assignment of Purchase Agreement by and between the City and LT Owner, pursuant to which LT Owner will agree to acquire the balance of the Development Parcel, excluding the Lease Parcel and Outlot B, Prestwick Place 23rd Addition, on the Development Parcel Acquisition Date. Section 1.29 Permitted Encumbrances. The liens, charges, easements, restrictions and encumbrances encumbering title to the Lease Parcel as of the Effective Date listed on Exhibit C. Section 1.30 Permitted Use. The use of the Premises as described in Section 1.18 and specifically excluding any uses listed in Exhibit E. Section 1.31 Possession Date. The date on which Tenant accepts delivery of the Premises with the Landlord’s Work Substantially Complete in accordance with Sections 6.2 and 6.3. Section 1.32 Plat. The plat for the Development titled “Prestwick Place 23rd Addition”, as recorded on the Development Parcel Acquisition Date. Section 1.33 Purchase Agreement. The purchase and sale agreement defined in Section A of the Recitals. Section 1.34 REA. That certain Declaration of Easements and Covenants to be executed and delivered on the Development Parcel Acquisition Date by Landlord, the City and LT Owner and to which any other applicable third-party owners within the Development Parcel will 6 be subject, to be recorded on the Development Parcel Acquisition Date after the Plat and the deeds but prior to any financing documents. Section 1.35 Renewal Terms. Two (2) consecutive periods of sixty (60) calendar months each, with the first such Renewal Term, if exercised, commencing upon expiration of the Initial Term, and the second Renewal Term commencing upon expiration of the first Renewal Term. Section 1.36 Rent. All Base Rent and Additional Rent. Section 1.37 Rent Commencement Date. Approximately July 5, 2025. The Rent Commencement Date shall be set forth in the final Exhibit H. Section 1.38 Signage and Trade Dress. Tenant shall have the right, at Tenant’s expense, to install on all building elevations its standard sign package and trade dress in accordance with Article 8 herein and as depicted on attached Exhibit D. Section 1.39 Site Control. Upon the full execution and delivery of the Purchase Agreement with no contingencies for the benefit of either Development Parcel Owner or City. Landlord’s notice to Tenant that the City has secured Site Control is referred to herein as the “Site Control Notification.” Section 1.40 Taxes. Subject to the terms and conditions set forth herein, all taxes (including personal property taxes, if any), assessments, sewer rents, water rents and charges, duties, impositions, license and permit fees, charges for public utilities of any kind, and payments and other charges of every kind and nature whatsoever, ordinary or extraordinary, foreseen or unforeseen, general or special that, during the Term, pursuant to present or future law or otherwise, becoming due and payable out of or for the Premises or any part thereof, or any Tenant’s Work now or hereafter located thereon, or the appurtenances thereto, or any franchises as may be appurtenant to the use and occupation of the Premises. Any general or special assessments on the Lease Parcel as of the Effective Date of this Lease shall be paid on the Development Parcel Acquisition Date in accordance with the Purchase Agreement and the Partial Assignment of Purchase Agreement. Taxes include those resulting from this Lease pursuant to Applicable Laws but shall not include any transfer tax or any increase in Taxes arising directly out of a reassessment of the Premises triggered by any other transfer of title to the Premises by Landlord after the Development Parcel Acquisition Date, or any penalties or interest arising from the failure of Landlord to timely pay the Taxes to the extent Landlord is obligated to pay such Taxes in accordance with Article 5 hereof. Section 1.41 Tenant Contingencies. Collectively, the Inspection Contingencies and Approval Contingencies as defined in Article 7 hereof. Section 1.42 Tenant Portion of Bonds. The original principal amount of the Bonds in excess of $21,000,000 on the Bond Issuance Date. Section 1.43 Tenant’s Notice Address: 7 LTF Lease Company, LLC 2900 Corporate Place Chanhassen, MN 55317 Attn: Kari Broyles Email: kbroyles@lt.life with a copy to: LTF Lease Company, LLC 2900 Corporate Place Chanhassen, MN 55317 Attn: Property Management Email: propertymanagement@lt.life or such other address as may be designated from time to time by notice from Tenant to Landlord in accordance with the terms of Article 24 of this Lease. Section 1.44 Tenant’s Work. The soft costs Tenant incurs for its design of the Premises (including the Building), the design of the infrastructure improvements located on the Premises, the design of certain designated off-Premises site improvements, and the furnishing and installation of Tenant’s desired furniture, fixtures and equipment. Section 1.45 Term. Collectively, the Initial Term and each properly exercised Renewal Term, as provided in this Lease, unless sooner terminated as herein provided. Section 1.46 Title Company. First American Title Insurance Company. 2. The Premises. Section 2.1 Grant and Demise of the Premises. Subject to Landlord acquiring the Lease Parcel and all other contingencies contained herein, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the Term, in accordance with and subject to, the terms, covenants and conditions of this Lease. Landlord grants to Tenant, its employees, licensees, invitees and guests, (i) the nonexclusive right to use during the Term of this Lease any easement areas which may from time to time exist within, or for the benefit of the Development as set forth in the REA, (ii) the nonexclusive right to use the drive aisles and other easement areas as set forth in the REA; and (iii) a non-exclusive easement for vehicular and pedestrian ingress and egress over and through the drive lanes and parking areas of the Development as set forth in the REA. Section 2.2 Site Control. Landlord and Tenant acknowledge and agree that as of the Effective Date, Landlord does not yet own or hold title to the Premises and accordingly, Landlord’s obligation to lease the Premises pursuant to the terms of this Lease (and to otherwise satisfy those obligations under this Lease for which it must hold fee title to, or control the Development Parcel in order to satisfy the same) is in all respects subject to, and contingent upon, Landlord’s ability to acquire title to the Lease Parcel pursuant to the Purchase Agreement. Landlord shall use good faith, diligent efforts to secure Site Control on or before May 1, 2023 8 (sometimes referred to herein as the “Site Control Outside Date”); provided that Landlord will not notify the Development Parcel Owner that contingencies to closing under the Purchase Agreement have been satisfied or waived unless by noon on May 1, 2023 Tenant notifies Landlord that it concurs with such notification and is willing to fund the escrow required in accordance with Section 6.2(b) on the Bond Sale Date. Notwithstanding anything to the contrary contained herein, however, (a) in no event shall Landlord be deemed in default under this Lease if its failure to fulfill any obligation hereunder is due to the fact that Site Control does not occur on or before the Site Control Outside Date, and (b) in the event that Site Control has not occurred (or will not occur) on or before the Site Control Outside Date, then Tenant shall have the right to terminate this Lease, to be exercised by written notice thereof delivered to Landlord within twenty (20) Business Days following the earlier to occur of (i) the Site Control Outside Date or (ii) the date Landlord notifies Tenant in writing that it has permanently ceased negotiations with the Development Parcel Owner for acquisition of the Lease Parcel and no longer intends to acquire the Lease Parcel, whereupon neither party, nor the Guarantor, shall have any further rights or obligations hereunder, except for those rights and obligations that expressly survive the termination of this Lease. Section 2.3 Representations and Warranties of Landlord; Quiet Enjoyment. Landlord covenants, warrants and represents to Tenant that: (a) The Premises are zoned appropriately for the Permitted Use; (b) Subject to Landlord acquiring the Lease Parcel and the other conditions set forth herein, Landlord has the full right and authority to enter into this Lease for the full Initial Term and the Renewal Terms; (c) Upon acquisition of the Lease Parcel, Landlord will hold fee simple title to the Premises free and clear of all liens, charges, easements, restrictions and encumbrances, except the Permitted Encumbrances; (d) Landlord shall deliver the Premises to Tenant on the Possession Date free and clear of all other tenancies and claims of rights to occupy the Premises, except for the Permitted Encumbrances; (e) As long as no Event of Default has occurred and is continuing, and subject to the terms and condition of this Lease, Tenant shall have and enjoy quiet and undisturbed possession of the Premises and all of Tenant’s rights and benefits under this Lease without hindrance, ejection, or molestation by Landlord or any other person; (f) Landlord shall not allow any amendment to the REA or the Permitted Encumbrances which adversely affects access to, use of, visibility of, parking for, or cost of operating the Premises, or would otherwise be inconsistent with the terms of this Lease; (g) Landlord will require the Construction Manager to cause the Landlord’s Work to be constructed in a good and workmanlike manner and in accordance with the Permitted Encumbrances and all Applicable Laws, including without limitation the Americans with Disabilities Act; provided that Tenant shall designate a representative to participate in monthly meetings with Landlord and Construction Manager during the construction period to inspect the Landlord’s Work; 9 (h) Landlord will promptly pay, as and when due, all payments required pursuant to the Bonds; (i) Landlord will not pledge or otherwise mortgage or encumber the Lease Parcel as part of, or associated with, the sale or issuance of the Bonds; and (j) Neither the execution, delivery or performance of this Lease by Landlord, nor the consummation of the transaction contemplated hereby will (i) violate or conflict with any provision of the organizational documents of Landlord, or (ii) violate any order, judgment, injunction, award or decree of any court or arbitration body, by or to which Landlord is or may be bound or subject. Section 2.4 Presale Area. Intentionally Deleted. 3. Term and Options. Section 3.1 Initial Term. The Initial Term of this Lease shall commence upon the Possession Date, provided Tenant’s occupancy prior to the Possession Date shall be governed by the terms of this Lease, except that, prior to the Rent Commencement Date, Tenant shall not be required to pay Rent, other than Pre-Term Payments, which will be paid from capitalized interest on the Tenant Portion of Bonds which will be deposited with Landlord from the Tenant Portion of Bonds on the Bond Issuance Date. Landlord and Tenant agree to execute, within thirty (30) days of the Possession Date, an instrument expressing the commencement and expiration dates of the Initial Term and the Renewal Terms. Section 3.2 Options to Renew; Renewal Terms. Provided this Lease is in effect and no Event of Default (as hereinafter defined) has occurred and is continuing either at the time Tenant’s exercises its option to renew or at the time the applicable Renewal Term commences, Landlord hereby grants to Tenant, and to Tenant’s successors and assigns in compliance with the terms of Article 19, the right and option to renew this Lease for the successive Renewal Terms, upon the same terms, covenants, and conditions that exist for the Initial Term, except for the Base Rent, the construction provisions, and any other terms or conditions, which, either expressly or by their nature, apply only to the Initial Term. Each option to renew shall be exercised, if at all, by Tenant’s delivery of written notice to Landlord on or before the date that is one hundred eighty (180) days prior to the last day of the then-current Term of this Lease, provided, however, to prevent the inadvertent failure of Tenant to exercise any of the options set forth above within the time limits prescribed, this Lease shall not expire unless and until Landlord notifies Tenant (the “Reminder Notice”) that Tenant has not exercised its option to extend within the required time period and that Tenant’s option to extend shall expire ten (10) Business Days after Tenant’s receipt of such notice unless Tenant elects to extend prior to the expiration of such ten (10) Business Day period. In the event Tenant does not elect to exercise its option to extend prior to the expiration of said ten (10) business day period, Tenant’s option to extend shall expire. If Landlord fails to send the Reminder Notice prior to the expiration of the Term and Tenant elects to remain in possession of the Premises after the expiration of such Term, the Term shall be extended at the monthly rental in effect during the last month of the Term until the first (1st) to occur of (i) the date on which this Lease is terminated by Tenant by notice designating the date of termination which notice shall be given thirty (30) or more days prior to the date designated by Tenant for 10 termination, or (ii) if Landlord sends a Reminder Notice after the expiration of the Term, thirty (30) days after the expiration of the aforesaid ten (10) Business Day period without Tenant having exercised its right to extend. If Tenant exercises its option to extend, then the effective date of such exercise shall be retroactive to the scheduled expiration date of the then prior term. Said renewal options may be transferred to any party to whom Tenant’s interest in this Lease is transferred in compliance with the terms of Article 19. 4. Rent; Resident Benefits. Section 4.1 Pre-Term Payments; Rent Commencement Date. (a) On the Bond Sale Date, Landlord’s municipal advisor will notify Landlord and Tenant regarding bids received for the award of the Bonds and prepare a revised Exhibit H based on the most favorable bid; provided that Landlord will not award the sale of Bonds unless by 3:00 p.m. CDT on the Bond Sale Date Tenant notifies Landlord that it accepts its Base Rent obligations in accordance with the revised Exhibit H and initiates funding of the escrow required in accordance with Section 6.2(b). If Landlord does not award the sale of Bonds on the Bond Sale Date due to Tenant’s failure to notify Landlord that it accepts its Base Rent obligations in accordance with the revised Exhibit H, then either Landlord or Tenant shall have the right to terminate this Lease, to be exercised by written notice thereof delivered to other Party within twenty (20) Business Days following such Bond Sale Date, whereupon neither party, nor the Guarantor, shall have any further rights or obligations hereunder, except for those rights and obligations that expressly survive the termination of this Lease. (b) On the Bond Issuance Date, Landlord shall confirm to Tenant in writing that Landlord has received the proceeds of the Bonds, including without limitation capitalized interest proceeds of the Tenant Portion of Bonds to make the payments set forth on Exhibit H due prior to the Rent Commencement Date (“Pre-Term Payments”). (c) Beginning on the Rent Commencement Date, Tenant covenants and agrees to pay to Landlord Base Rent during the Term of this Lease at Landlord’s Notice Address. The Base Rent shall be paid in monthly installments, payable in advance, without demand, on or before the fifth (5th) day of each calendar month. Base Rent for any partial month, after the Initial Term, shall be prorated on a daily basis. Section 4.2 Resident Benefits. (a) Tenant will not charge an enrollment fee to residents of the City to obtain memberships. (b) During each of the first five (5) years after the City issues a certificate of occupancy for the Building (the “Resident Membership Initial Term”), Tenant will cooperate with Landlord to provide up to 4 guest passes per household within the City. After the Resident Membership Initial Term, Tenant and Landlord will re-evaluate the guest pass benefits and if agreed to by Tenant and Landlord, will continue the guest pass benefits; provided, however, Tenant shall continue providing the guest past benefits for a period of two (2) years after the expiration of the Resident Membership Initial Term. 11 Thereafter, Tenant and Landlord will meet annually to re-evaluate the guest pass benefits and if agreed to by Tenant and Landlord, Tenant will continue the guest pass benefits as long as mutually beneficial. (c) Tenant and Landlord will work together to establish a program to make memberships available to residents of the City who meet income qualifications, pursuant to which, during the Resident Membership Initial Term, Tenant will match the City’s contribution towards such residents’ memberships up to (i) a maximum of one-third (1/3) of the membership cost and (ii) a maximum of seventy-five (75) discounted memberships at any particular time. After the Resident Membership Initial Term, Tenant and Landlord will meet annually to re-evaluate the discounted membership program and if agreed to by Tenant and Landlord, the parties will continue the discounted membership program as long as mutually beneficial. (d) Tenant will make available to residents of the City: (i) A 3-month membership for the months of June, July and August, the total cost of which will be discounted by $50 for individual memberships, $75 for couple memberships, and $100 for a family of 3 or more. (ii) Regular memberships that will be discounted by $10 per month for individual memberships, $15 per month for couple memberships, and $20 per month for a family of 3 or more, from the monthly rate then in effect which discounts will be increased to adjust for inflation at a rate of 3% per year. (iii) For clarity, residents cannot receive both discounts set forth in (i) and (ii) above in a 12-month period. Residents may choose only one. 5. Taxes. Landlord represents and warrants that the Premises will, upon filing of the Plat, constitute a separate Tax Parcel with Taxes (as hereafter defined) allocated separately to the Premises by the taxing authority. On or before the Development Parcel Acquisition Date, all special assessments then levied or pending against the Premises shall be paid and/or continued in accordance with the Purchase Agreement and the Partial Assignment of Purchase Agreement. From and after the Possession Date, or such earlier date if Dakota County, Minnesota classifies the Premises as subject to taxation pursuant to Applicable Laws and requires Taxes to be paid prior to the Possession Date, Tenant shall pay, as Additional Rent, directly to the taxing authority on or before the due date, the “Taxes” affecting the Premises. Landlord shall promptly, upon receipt, provide any tax bills for the Premises it receives to Tenant. Taxes shall include, to the extent due and payable during the Term, all real estate taxes and/or assessments, ad valorem taxes, general and special assessments. In the case of general or special assessments, Tenant may pay the same in installments over the longest period allowed under the assessing entity’s resolution approving the assessment, and only those installments (or partial installments) attributable to installment periods (or partial periods) falling within the Term of this Lease shall be included in Taxes. Tenant shall have the right to institute tax reduction or other proceedings to challenge Taxes or reduce the assessed value of the Premises, and Landlord shall cooperate with any such contest, appeal or 12 proceeding. Should any Taxes relate to or be payable over a period of time which encompasses all or a portion of the Term and either precedes or succeeds the Term, Tenant shall pay a pro rata share thereof based upon the portion of such Taxes due and payable during the Term. 6. Initial Improvements of the Premises. Section 6.1 Landlord’s Information. By execution of this Lease, Tenant has accepted and approved the following, whether or not provided by Landlord: (i) the legal description for the Premises, (ii) a current ALTA/ASCM Survey of the Development (including the Premises and the remainder of the Development Parcel); (iii) a current title insurance commitment for the Premises from the Title Company and all accompanying encumbrance documents (collectively, the “Commitment”); (iv) a current real estate tax statement for the tax parcel of which the Premises is a part; (v) the estimated market value of the tax parcel of which the Premises is a part and the estimated amount of Taxes payable thereon; (vi) engineering, environmental and other studies with regard to the Premises in Landlord’s possession, including without limitation, surveys, title reports and policies, environmental and engineering reports and drawings, geotechnical reports and utilities, if any (collectively, “Landlord’s Information”). Tenant acknowledges that Landlord has provided all of Landlord’s Information to Tenant as of the Effective Date. Section 6.2 Landlord’s Work. (a) Landlord shall deliver possession of the Premises to Tenant in accordance with attached Exhibit J and in the condition required by the Construction Management Agreement and complete the Landlord’s Work pursuant to the terms and conditions of Construction Management Agreement. Tenant shall designate a representative to participate in monthly meetings with Landlord and Construction Manager during the construction of the Landlord’s Work to inspect the Landlord’s Work and to approve, on Tenant’s behalf, any change orders requested pursuant to the Construction Management Agreement. Landlord will not authorize any change orders to the plans and specifications attached to the Construction Management Agreement as of the date hereof without written consent by Tenant. Tenant will not unreasonably withhold or delay its consent to change orders proposed by Landlord’s contractors. (b) Landlord shall pay for all costs associated with acquiring and purchasing the Lease Parcel. Landlord shall also pay for the Landlord’s Work as set forth in the Construction Management Agreement and the publicly bid contracts therefor from the proceeds of the Bonds up to and including the Maximum Landlord Contribution net of capitalized interest and issuance expenses; provided that (i) Landlord will not capitalize interest on the Landlord Portion of Bonds, and (ii) Landlord will pay any costs of issuance of the Landlord Portion of Bonds in excess of $500,000 with funds not part of the proceeds of the Landlord Portion of Bonds. Tenant shall be solely responsible to pay for all costs of the Landlord’s Work in excess of the Maximum Landlord Contribution plus any costs of issuance of the Tenant Portion of Bonds not funded with the proceeds of the Tenant Portion of Bonds. On the Bond Sale Date, Tenant will deposit in escrow with Landlord funds equal to the amount necessary to pay all costs to develop and construct the Premises in excess of the Maximum Landlord Contribution, if any. Amounts deposited into such escrow account 13 shall be disbursed for costs of the Landlord’s Work prior to the disbursement of any proceeds of the Bonds for such Landlord’s Work. If at any time prior to completion of the Landlord’s Work, Landlord determines that the remaining Bond proceeds plus any amount on hand in escrow deposited by Tenant are insufficient to pay the remaining costs of the Landlord’s Work, including without limitation any costs to be paid by Landlord under the Construction Management Agreement and contracts executed pursuant to the Construction Management Agreement, Landlord shall notify Tenant of the amount of the deficiency and Tenant shall deposit such amount in escrow with Landlord within ten (10) Business Days of such notification. After completion of the Landlord’s Work and payment of all costs thereof, if there are any unspent proceeds of the Bonds remaining, Landlord will (i) apply such remaining funds first to reimburse Tenant up to the aggregate amount deposited by Tenant in escrow pursuant to this Section 6.2(b), and (ii) if any funds remain thereafter, deposit such remaining funds into the Bond fund maintained by Landlord for the payment of the Bonds and apply such amount pro rata based on the original principal amounts of the Tenant Portion of Bonds and the Landlord Portion of Bonds, to the payment of the debt service on the Bonds. (c) Pursuant to the Construction Management Agreement, Landlord agrees to cause the Construction Manager to ensure that all contractors and subcontractors diligently proceed with the Landlord’s Work and deliver possession of the Premises to Tenant with all of the Landlord’s Work completed (subject only to the Punch List pursuant to Section 6.3) and a final certificate of occupancy for the entire Premises (collectively, “Substantial Completion” or “Substantially Complete”) no later than February 28, 2025 (the “Substantial Completion Date”). (d) Landlord shall assign all assignable warranties to Tenant associated with the Landlord’s Work. (e) Landlord shall timely pay all costs and expenses associated with the Landlord’s Work pursuant to the Construction Management Agreement and all contracts associated with the Landlord’s Work from the Bonds and amounts deposited with Landlord by Tenant, if any, as set forth in (b), above. Section 6.3 Punch List. Landlord is required to deliver possession of the Premises to Tenant with Landlord’s Work completed in accordance with the Construction Management Agreement, subject only to Punch List items (as defined below) which Punch List items shall be completed by Landlord as provided in this Section 6.3. Landlord and Tenant shall conduct a “walk- through” inspection of the Premises and shall set out on the Punch List any defects in Landlord’s Work, or the Premises noted by either party. Landlord and Tenant will regularly communicate and cooperate with respect to the completion of any Punch List items. If there are Punch List items, then, pursuant to the Construction Management Agreement, Landlord will cause the Construction Manager to ensure that all contractors and subcontractors diligently proceed to complete the Punch List items. Tenant reserves the right to object to latent defects in the Premises. As used in this Lease the term “Punch List” means a list of minor details of construction, mechanical adjustments or finishing touches which do not interfere with Tenant’s operation of business to the general public or with Tenant’s receipt of a certificate of occupancy, and which can 14 be corrected by Landlord within thirty (30) days, unless a longer period is consented to by Tenant in writing. Section 6.4 Tenant’s Work. (a) Any material changes to the Approved Plans shall be subject to mutual approval by the Landlord and Tenant. (b) All of Tenant’s Work shall be performed at Tenant’s cost and expense. Tenant shall not be prohibited from installing audio visual equipment, including televisions and speakers in any outdoor area of the Premises, so long as such installations are done so in accordance with all Applicable Laws. (c) From and after the Possession Date and throughout the construction of Tenant’s Work, Tenant may utilize the Lease Parcel as a staging area for Tenant’s equipment and materials. (d) Landlord hereby approves LTF Construction Company, LLC and its subcontractors as the contractors of the Tenant’s Work and, subject to Section 11.3 all future alterations, improvements, or modifications that Tenant desires to make within the Premises. Notwithstanding the foregoing, Tenant shall not be obligated to use LTF Construction Company, LLC as its general contractor. (e) Landlord agrees that it will not charge a construction management fee for completion of the Tenant’s Work or any Alterations. (f) Landlord shall reasonably cooperate, as requested by Tenant, to enable Tenant to arrange for utility services to the Premises, at no cost or liability to Landlord, such cooperation shall include, without limitation, executing right of entry or easement agreements for Tenant’s selected service providers so long as the same impose no cost or liability on Landlord and are terminable without penalty upon the expiration or sooner termination of this Lease. (g) Tenant shall be entitled to install its security/surveillance systems within the Premises. (h) Tenant shall be responsible for causing the repair of any damage caused to the Building as a result of Tenant’s Work or any Alterations. Section 6.5 Option to Begin Tenant’s Work Prior to Completion of Landlord’s Work. In the event that Tenant has satisfied or waived the Contingencies as set forth in Article 7 hereof and Landlord’s Work is not yet fully complete but is sufficiently completed so that Tenant can begin Tenant’s Work without materially interfering with the completion of Landlord’s Work, Tenant will be permitted early entry to the Premises for the purpose of beginning Tenant’s Work, subject to any applicable construction safety requirements. Tenant’s right to early entry to the Premises will not affect the Rent Commencement Date. 15 Section 6.6 Rooftop Installations. Tenant, its assignees and subtenants in compliance with Article 19, contractors, agents, licensees, telecommunications and/or energy providers shall have the exclusive right to erect and maintain upon the Premises, including on the roof of any Building at the Premises, telecommunications and energy generation equipment and may also maintain equipment ancillary thereto anywhere on the Premises, including on the ground thereof without the consent of Landlord. Tenant shall be responsible for causing the maintenance and repair of the equipment, as well as any damage caused to the Building as a result of any such installations. Landlord shall cooperate, as requested by Tenant, to enable Tenant to arrange for utility services to the Premises, such cooperation shall include, without limitation, executing commercially reasonable right of entry agreements for Tenant’s selected service providers. Section 6.7 Ownership of Premises and Tenant’s Work. Landlord will be the owner of the land comprising the Premises; provided, however, that Tenant shall be entitled to deduct all depreciation and take all investment tax credits and other tax benefits on Tenant’s income tax returns for any leasehold improvements, fixtures or other capital improvements provided by Tenant and attributable to amounts expended by Tenant. Upon termination of this Lease, all Tenant’s Work shall, at Tenant’s sole discretion, thereupon remain the property of Tenant; provided, however, that Tenant shall be responsible for causing the repair of any damage caused to the Building as a result of removing any or all of Tenant’s Work or property. The parties intend that the Lease be a true lease for all purposes and the parties will not take tax positions inconsistent with that intent. 7. Contingencies. Section 7.1 Tenant Bond Issuance Contingencies. Tenant shall have the option to terminate this Lease if the following contingencies (the “Tenant Bond Approval Contingencies”) are not satisfied or waived on or before the Bond Sale Date (the “Bond Approval Period”): (a) All contingencies under the Purchase Agreement and the Partial Assignment of Purchase Agreement shall have been satisfied or waived; and (b) Landlord and Construction Manager shall have received bids for the Landlord’s Work and Landlord and Tenant shall have determined the final construction project costs for the Landlord’s Work; and (c) Landlord shall have approved the award of all contracts recommended by the Construction Manager for the Landlord’s Work in accordance with the bid specifications for the Landlord’s Work; and (d) Tenant shall have obtained a leasehold title insurance policy/proforma in form and content acceptable to Tenant; and (e) Landlord shall have received proposals for the financial and payment terms of the Bonds which are consistent with the terms initially set forth on Exhibit H and such proposals result in annual Base Rent payments on the Tenant Portion of Bonds, based on the Base Rent schedule prepared by Landlord’s municipal advisor, after the Bond Sale 16 Date, that are approved by Tenant and Tenant and Landlord shall have approved the terms and conditions of the Bonds. Tenant shall have the option, if the Tenant Bond Approval Contingencies are not satisfied or waived on or before the Bond Sale Date, to terminate this Lease and Tenant and Guarantor shall have no further obligations under this Lease. The Tenant Bond Approval Contingencies are for the sole and exclusive benefit of Tenant. Tenant shall give notice to Landlord of satisfaction or waiver of the Tenant Bond Approval Contingencies on or prior to expiration of the Tenant Bond Approval Period; provided, however, if such notice shall not have been so given by Tenant to Landlord, then the Tenant Bond Approval Contingencies shall be deemed to have not been satisfied and this Lease shall terminate. Upon any termination of this Lease under the foregoing provisions of this Section 7.1, each party and Guarantor shall be released thereby without further obligation under this Lease or the Guaranty to the other party, except for obligations that expressly survive such termination as specified in this Lease. Section 7.2 Tenant Real Property Contingencies. Tenant shall have the option to terminate this Lease if the following contingencies (the “Tenant Real Property Approval Contingencies”) are not satisfied or waived on or before the Development Parcel Acquisition Date (the “Tenant Real Property Approval Period”): (a) The Bond Sale Date shall have occurred; and (b) The Plat shall have received all final approvals and be available for recording; and (c) All required parties shall have executed the REA and the Development Agreement; and (d) Landlord shall have closed on the purchase of the Lease Parcel in accordance with the Purchase Agreement. Tenant shall be entitled to determine that all Tenant Real Property Approval Contingencies have been satisfied on terms and conditions satisfactory to Tenant without qualification, limitation or restriction, except such qualifications, limitations and restrictions as shall be acceptable to Tenant in its sole and absolute discretion, and no longer being subject to appeal. Landlord and Tenant shall cooperate in good faith with each other to satisfy the Tenant Real Property Approval Contingencies in accordance with this Section 7.2. Tenant shall have the option, if the Tenant Real Property Approval Contingencies are not satisfied or waived on or before the Development Parcel Acquisition Date, to terminate this Lease and Tenant and Guarantor shall have no further obligations under this Lease. The Tenant Real Property Contingencies are for the sole and exclusive benefit of Tenant. Tenant shall give notice to Landlord of satisfaction or waiver of the Tenant Real Property Contingencies on or prior to expiration of the Tenant Real Property Approval Period; provided, however, if such notice shall not have been so given by Tenant to Landlord, then the Tenant Real Property Contingencies shall be deemed to have not been satisfied and this Lease shall terminate. Upon any termination of this Lease under the foregoing provisions of this Section 7.2, each party 17 and Guarantor shall be released thereby without further obligation under this Lease or the Guaranty to the other party, except for obligations that expressly survive such termination as specified in this Lease. Section 7.3 Landlord Bond Contingencies. Landlord acknowledges that it has received, as of the Effective Date, the Guaranty executed by the Guarantor. On or before the Bond Sale Date, Landlord shall have the option to terminate this Lease if the following contingencies (the “Landlord Bond Approval Contingencies”) are not satisfied or waived: (a) As of May 1, 2023, all contingencies under the Purchase Agreement and the Partial Assignment of Purchase Agreement shall have been satisfied or waived and Tenant shall have notified Landlord that it concurred in the determination of such satisfaction or waiver; and (b) Landlord and Construction Manager shall have received bids for the Landlord’s Work and Landlord and Tenant shall have determined the final construction project costs for the Landlord’s Work; and (c) Tenant shall have deposited, pursuant to Section 6.2(b), the amount that, together with the proceeds of the Bonds, if any, Landlord and Tenant determine is sufficient to complete the Landlord’s Work pursuant to the terms herein and pursuant to the Construction Management Agreement; and (d) Tenant shall have delivered a commitment from a Qualified Issuer for the Letter of Credit in accordance with Article 12 and a draft Letter of Credit in a form meeting the requirements of Article 12 with no contingencies to delivering such Letter of Credit on the Bond Issuance Date; and (e) Landlord shall have approved the award of all contracts recommended by the Construction Manager for the Landlord’s Work in accordance with the bid specifications for the Landlord’s Work; and (f) Landlord shall have received proposals for the financial and payment terms of the Bonds which are consistent with the terms initially set forth on Exhibit H and such proposals result in annual Base Rent payments on the Tenant Portion of Bonds, based on the Base Rent schedule prepared by Landlord’s municipal advisor, after the Bond Sale Date, that are approved by Tenant and Tenant and Landlord shall have approved the terms and conditions of the Bonds; and (g) LT Owner shall have executed and delivered the Development Agreement and the letter of credit required thereunder to Landlord. The Landlord Bond Approval Contingencies are for the sole and exclusive benefit of Landlord. Landlord shall give notice to Tenant of satisfaction or waiver of the Landlord Bond Approval Contingencies on or prior to expiration of the Bond Sale Date, as applicable; provided, however, if such notice shall not have been so given by Landlord to Tenant, then the Landlord Bond Approval Contingencies shall be deemed to have not been satisfied and this Lease shall terminate. Upon any termination of this Lease under the foregoing provisions of this Section 7.3, 18 each party and Guarantor shall be released thereby without further obligation under this Lease or the Guaranty to the other party, except for obligations that expressly survive such termination as specified in this Lease. Section 7.4 Landlord Real Property Contingencies. Landlord shall have the option not to acquire the Lease Parcel and to terminate this Lease if the following contingencies (the “Landlord Real Property Approval Contingencies”) are not satisfied or waived on or before the Development Parcel Acquisition Date (the “Landlord Real Property Approval Period”): (a) Tenant shall have notified Landlord that the Tenant Real Property Approval Contingencies have been satisfied or waived; and (b) The Plat shall have received all final approvals and be available for recording; and (c) The Bond Sale Date shall have occurred. The Landlord Real Property Approval Contingencies are for the sole and exclusive benefit of Landlord. Landlord shall give notice to Tenant of satisfaction or waiver of the Landlord Real Property Approval Contingencies on or prior to expiration of the Development Parcel Acquisition Date, as applicable; provided, however, if such notice shall not have been so given by Landlord to Tenant, then the Landlord Real Property Approval Contingencies shall be deemed to have not been satisfied and this Lease shall terminate. Upon any termination of this Lease under the foregoing provisions of this Section 7.4, each party and Guarantor shall be released thereby without further obligation under this Lease or the Guaranty to the other party, except for obligations that expressly survive such termination as specified in this Lease. 8. Signs and Trade Dress. Tenant, at its expense, may install the Signage and Trade Dress all in accordance with local building code approval and as depicted on Exhibit D. Tenant shall have the right to display “opening soon,” “grand opening” and promotional banners from time to time after execution of this Lease. It is understood that this Lease is contingent upon applicable local government authorities’ approval of Tenant’s signage. Tenant shall have the right, at its sole cost and expense, to install and maintain its sign panels on the pylon sign and/or monument sign(s) within the Development as such signage is depicted on attached Exhibit D. Tenant’s sign panels shall be in the top panel position on the pylon and/or monument sign(s). To the extent that the costs of the initial construction of the pylon and/or monument sign(s) are required to be paid by Landlord under the Development Agreement or the Construction Management Agreement, such costs will be paid from the proceeds of the Bonds to the extent available and any costs in excess of available Bond proceeds shall be paid by Tenant. The operator under the REA shall be responsible for the maintenance and repair of the pylon and/or monument sign structures. The REA shall provide for electricity to the pylon and/or monument sign(s) and the operator under the REA shall be responsible for keeping the pylon and/or 19 monument sign(s) illuminated during Tenant’s business hours and Tenant agrees to pay Landlord’s Allocable Share (as defined in the REA) of the cost thereof as Additional Rent hereunder. Tenant has determined, based on its review thereof, that the REA to addresses, to Tenant’s satisfaction, the placement of Tenant’s signage on wayfinding signs throughout the Development. Tenant, and/or the operator under the REA, shall be entitled to enforce restrictions against installing, placing, displaying or allowing any tenant, occupant or owner of any portion of the Development to install, place or display any signage or banners of any kind at the Development that advertises or relates to any party, whether occupying a portion of the Development or otherwise, whose use is or would be excluded under the REA. Tenant acknowledges that the City cannot deny a permit for development of a legally permitted use. In no event shall exterior signage or advertising material for persons or entities who are not owners, tenants or occupants of the Development be permitted. Except as provided herein, Landlord shall not install signage on the exterior of the Building (or allow same to be installed) without Tenant’s prior written consent. 9. Use and Occupancy. Section 9.1 Permitted Use. Tenant may use and occupy the Premises for the Permitted Use, the majority of which shall consist of spaces for recreational and physical activity and fitness. Except during the Operating Covenant Period (as hereinafter defined), nothing in this Lease shall be construed to require Tenant to continuously operate its business in the Premises and it shall not be a default hereunder if Tenant ceases to operate its business in the Premises. Notwithstanding the foregoing, Tenant shall pay all Rent and perform its other obligations under this Lease even if it is not operating its business in the Premises. Section 9.2 Operating Covenant. Subject to Closure Events, during the one hundred twenty (120) month period commencing on the Possession Date (the “Operating Covenant Period”), Tenant shall continuously operate at the Premises for the Permitted Use being open for business to the public from 8:00 a.m. to 5:00 p.m., Monday through Friday, and 10:00 a.m. to 5:00 p.m., Saturday and Sunday (“Tenant’s Operating Covenant”). Nothing in this Lease shall be construed to require Tenant to continuously operate its business in the Premises after the expiration of the Operating Covenant Period and it shall not be a default hereunder if Tenant ceases to operate its business in the Premises after the expiration of the Operating Covenant Period; provided that Tenant shall pay Base Rent and Additional Rent and perform its other obligations under this Lease even if it is not operating its business in the Premises. Notwithstanding the foregoing or anything to the contrary set forth in this Lease, if Tenant ceases to operate its business in substantially all of the Premises after the expiration of the Operating Covenant Period for a continuous uninterrupted period of eighteen (18) months (“Go Dark Period”), subject to Closure Events, then Landlord shall have the ongoing right, in its sole and absolute discretion (the “Recapture Right”), to: (a) terminate this Lease by delivering written notice thereof thirty (30) days in advance of Landlord’s proposed effective date of termination (the “Recapture Notice Period”), whereupon, this Lease shall terminate, Tenant shall vacate and surrender the 20 Premises to Landlord on the effective date of termination, and neither Tenant nor Guarantor shall have any further liability hereunder or under the Guaranty, except for those obligations that explicitly survive any termination of this Lease or the Guaranty; provided, however, that if Tenant elects by written notice to Landlord prior to the expiration of the Recapture Notice Period to reopen, and resumes operation of the Premises for the Permitted Use within the thirty (30) day period following the expiration of the Recapture Notice Period, then this Lease shall remain in full force and effect as if Landlord had not previously exercised the Recapture Right; or (b) keep this Lease in full force and effect but engage a temporary operator of the Premises, provided that: (i) any approved temporary operator must pay Temporary Operator Rent. “Temporary Operator Rent” shall be the current, fair market rental rate for the Premises, as determined by three (3) independent brokers, each of whom shall have at least five (5) years of commercial real estate experience in leasing in the greater Minneapolis, Minnesota area. Landlord and Tenant shall each select one broker and the brokers selected by Landlord and Tenant shall select the third broker. Landlord and Tenant each shall select its broker within ten (10) days after the end of the Go Dark Period, and the third broker shall be selected within ten (10) days after Landlord’s and Tenant’s selections. Landlord and Tenant each shall be responsible for the fees of its broker, and Landlord and Tenant shall share equally the fees of the third broker. Each broker, within fifteen (15) days after selection of the third (3rd) broker, shall deliver to Landlord and Tenant its written report setting forth the Temporary Operator Rent for the Premises, which determination shall take into consideration the location of the Premises, other properties comparable thereto, the then-existing condition of the Premises, the then-current use of the Premises and the then-prevailing rental rates for properties of equivalent quality, size, utility and location. Each broker will make its determination of Temporary Operator Rent independently without consulting with any other broker and on the same day, all brokers will submit their appraisals to Landlord and Tenant. The Temporary Operator Rent will be determined by averaging (A) all brokers’ calculations in the event the highest number is within 10% of the lowest number; or (B) the two calculations that are closest in amount to each other if the highest number is more that 10% higher than the lowest number; (ii) all Temporary Operator Rent shall offset the amount of any Base Rent and Additional Rent to be paid by Tenant for the duration of the Temporary Operator Rent; (iii) any temporary operator must enter into a sublease that is subject to Tenant’s prior review; and (iv) any proposed temporary operator must meet the following, minimum requirements: (w) such operator must use the Premises in keeping with the dignity and character of the then use and occupancy of the Premises as a first class building; (x) such operator must have assets, capitalization and a tangible net worth sufficient 21 to meet the financial terms of this Lease, taking into account the difference between Base Rent and Temporary Operator Rent, as reasonably determined by Landlord and Tenant; (y) must have at least ten (10) years’ experience in operating health and fitness facilities; and (z) must operate at least ten (10) comparable health and fitness locations the United States. Notwithstanding the foregoing, if Tenant fails to cooperate with Landlord in accordance with this Section 9.2(b), Landlord may independently proceed to find a temporary operator meeting the criteria in clause (b)(iv) and determining Temporary Operator Rent in accordance with clause (b)(i) solely utilizing Landlord’s broker. Further, if the parties are unable find a temporary operator meeting the criteria in clause (iv) or that is able to pay the Temporary Operator Rent in clause (i), then Landlord shall have the right to enter and operate the Premises without terminating this Lease. Section 9.3 Tenant’s Use. Landlord hereby represents and warrants to Tenant that subject to the terms and conditions of this Lease, Tenant, its successors and permitted assigns, shall have the right to use the Premises for the Permitted Use during the Term. Landlord further represents and warrants to Tenant that there currently are no restrictions on the use of the Premises by Tenant, and Landlord agrees that it will not enter into any agreement which places any restrictions on the use of the Premises by Tenant in accordance with the Permitted Use section of this Lease. Landlord further represents and warrants to Tenant that Tenant’s Permitted Use will not violate any applicable use restrictions. Landlord hereby agrees to indemnify, defend, with counsel reasonably satisfactory to Tenant, and hold harmless Tenant from any claims, actions, causes of action, obligations, liabilities, damages, expenses and costs, including attorney’s fees, arising out of or relating to any claim that the use of the Premises in accordance with the Permitted Use under this Lease violates any restrictions placed upon such use, or any attempt, in any manner, to restrict Tenant’s full use of the Premises in accordance with the Permitted Use provisions of this Lease. Landlord acknowledges and agrees that Tenant may play loud music within the Premises, cause noise or vibration and that Tenant shall have no liability to Landlord or any other tenants or occupants of the Development in connection therewith. Section 9.4 Landlord’s Right of Access. Landlord shall have the right to enter upon the Premises during reasonable hours as determined by Tenant following forty-eight (48) hours prior written notice to Tenant (except in the case of an emergency when no notice shall be required) for the purpose of inspecting the same to ensure compliance with this Lease, to make repairs to the Premises (to the extent required by this Lease or to the extent an exercise of Landlord’s rights hereunder). In addition, upon at least forty-eight (48) hours’ prior written notice to Tenant, Landlord shall have the right to reasonable access to the Premises for the purpose of exhibiting the same to prospective purchasers or lenders, or during the last ninety (90) days of the Term, to prospective tenants. Landlord agrees that any entry by it into the Premises shall be: (a) completed outside of Tenant’s Peak Hours (as defined herein), and (b) done in such a manner so as to minimize interference with Tenant’s business operations and so as not to unreasonably interfere with the conduct of normal business operations therein. “Tenant’s Peak Hours” shall mean the peak hours of Tenant’s business operations which shall be determined by Tenant and provided by written notice to Landlord from time to time. Section 9.5 Compliance with Applicable Laws. Tenant shall at all times throughout the Term of this Lease fulfill its obligations under this Lease in substantial compliance 22 with all Applicable Laws. Landlord will cause the Construction Manager to ensure that the easement areas of the Development are constructed in accordance with all Applicable Laws, and Tenant has determined based on its review thereof, that the REA requires, to Tenant’s satisfaction, the easement areas of the Development to continue to comply with all Applicable Laws throughout the Term of this Lease. Landlord shall at all times throughout the Term of this Lease fulfill its obligations as set forth in this Lease in substantial compliance with all Applicable Laws. Tenant has determined based on its review thereof, that the REA requires, to Tenant’s satisfaction, the easement areas to conform to all applicable requirements of the Americans With Disabilities Act of 1990, as amended, Pub. L. 101-336, 42 U.S.C., et seq., and the administrative regulations promulgated thereunder. Section 9.6 Surrender of Premises; Trade Fixtures; Holdover. Tenant covenants and agrees to deliver up and surrender to Landlord possession of the Premises upon the expiration or earlier termination of this Lease, as herein provided, in broom clean condition, damage or destruction by casualty and reasonable wear and tear excepted. If Tenant makes any alterations, additions or improvements to the Premises during the Term hereof, Tenant may surrender the Premises in such altered or improved condition without liability for restoring the same to the condition existing when Tenant took possession thereof. Tenant shall not hold over beyond the end of the Term for failure of Landlord to give notice to vacate, any such notice being waived by Tenant. Upon expiration or earlier termination of this Lease, all improvements to the Premises and all permanently attached fixtures shall be and become the property of Landlord, except that all equipment, furniture, trade fixtures not permanently attached to the Building and branded items installed by Tenant shall remain the property of Tenant, and Tenant, at its option, may remove the same upon the expiration or earlier termination of this Lease so long as all material damage caused by such removal shall be promptly repaired by Tenant at Tenant’s expense. Notwithstanding the foregoing, in the event Tenant shall hold over after the expiration or earlier termination of this Lease, it shall constitute a tenancy from month to month governed by the terms hereof at monthly Base Rent determined by an independent broker with at least five (5) years of commercial real estate experience in leasing in the greater Minneapolis, Minnesota area, which determination shall take into consideration the location of the Premises, other properties comparable thereto, the then-existing condition of the Premises, the then-current use of the Premises and the then-prevailing rental rates for properties of equivalent quality, size, utility and location. 10. Business Subsidy Law. (a) In order to satisfy the provisions of Minnesota Statutes, Sections 116J.993 to 116J.995 (the “Business Subsidies Act”), Tenant acknowledges and agrees that the amount of the business subsidy granted to Tenant under this Lease is the Tenant Portion of Bonds for Tenant’s share of the cost of the Building at a below market interest rate (the “Business Subsidy”) and that the Business Subsidy is needed because the Landlord’s Work and Tenant’s Work is not sufficiently feasible for Tenant to undertake without the Business Subsidy. The public purpose of the Business Subsidy is to provide a public recreational and fitness facility in the City, increase the tax base in the City and the State, and stimulate construction and the creation of jobs, including construction jobs. Tenant will cause the following job creation goal to be met (the “Goal”): It will create at least ten (10) full-time equivalent jobs at a wage equal to at least 200% of the State of Minnesota 23 Minimum Wage excluding benefits (“Jobs”), no later than the date two years after the date on which a certificate of occupancy (or equivalent) is issued by the City for the Building (the “Benefit Date”). (b) If the Goal is not met, Tenant agrees to repay all of the Business Subsidy to Landlord, plus interest (“Interest”) set at the implicit price deflator defined in Minnesota Statutes, Section 275.70, Subdivision 2, accruing from and after the Benefit Date, compounded semiannually. If the Goal is met in part, Tenant will repay a portion of the Business Subsidy (plus Interest) determined by multiplying the Business Subsidy by a fraction, the numerator of which is the number of jobs in the Goal which were not created at the wage level set forth above and the denominator of which is 10 (i.e. number of Jobs set forth in the Goal). To effect this Section 10(b), Base Rent paid by Tenant shall increase by the amount by which Interest as provided herein exceeds the interest due and payable with respect to the Bonds. (c) Tenant agrees to (i) report its progress on achieving the Goal to Landlord until the later of the date the Goal is met or two years from the Benefit Date, or, if the Goal is not met, until the date the Business Subsidy is repaid, (ii) include in the report the information required in Section 116J.994, Subdivision 7 of the Business Subsidies Act on forms developed by the Minnesota Department of Employment and Economic Development, and (iii) send completed reports to Landlord. Tenant agrees to file these reports no later than March 1 of each year commencing March 1, 2024, and within 30 days after the deadline for meeting the Goal. Landlord agrees that if it does not receive the reports, it will mail Tenant a warning within one week of the required filing date. If within 14 days of the post marked date of the warning the reports are not made, Tenant agrees to pay to Landlord a penalty of $100 for each subsequent day until the report is filed up to a maximum of $1,000. (d) Tenant has agreed to continue operations at the Premises for at least ten (10) years after the Possession Date in accordance with Section 9.2 hereof. (e) Other than Landlord, there are no other state or local government agencies providing financial assistance for the Landlord’s Work and Tenant’s Work. (f) Guarantor is Tenant’s parent company. 11. Maintenance, Repairs and Capital Improvements. Section 11.1 Landlord’s Responsibility. To the extent of Landlord’s obligation under the REA, Tenant shall pay Landlord’s Allocable Share (as defined in the REA) of the costs to maintain, repair and replace, promptly after the need therefore arises, at its sole cost and expense, as Additional Rent, the easement areas in the Development that are subject the REA. All repairs and maintenance which are Landlord’s responsibility under the REA shall be performed and made by Tenant promptly after the need therefor arises, and in a good and workmanlike manner. During the Term of this Lease and notwithstanding anything to the contrary in the REA, Tenant shall pay Landlord’s share of the cost of any such repairs and maintenance as Additional Rent hereunder and shall not invoice, assess or otherwise charge Landlord for the cost thereof. 24 Section 11.2 Tenant’s Responsibility. Tenant, at its sole cost, shall keep and maintain the Premises and every part and component thereof, including, without limitation the exterior and interior portions of the Building, all doors, windows, elevators serving the Premises, loading docks, furnishings; the heating, ventilating and air-conditioning system, and electrical equipment and apparatus; plumbing and sewage lines, facilities and systems to the extent such lines, facilities and systems service the Premises solely and no other space in the Development; furniture, furnishings, fixtures, and equipment; interior walls, floors, and ceilings; signs; and all interior building appliances and equipment, in good repair, safe and sanitary condition. All repairs and maintenance shall be performed and made promptly after the need therefor arises, and in a good and workmanlike manner. Section 11.3 Capital Improvements; Alterations. Tenant and Landlord will coordinate the planning, implementation, and payment of all Capital Improvements to the Premises. “Capital Improvements” shall be understood as major structural replacements, alterations and additions to the Premises that are beyond the repair and maintenance that Tenant will undertake in its normal scope of operations, as described in Section 11.2 and that exceed an estimated cost of $50,000.00. Tenant and Landlord will meet annually during the Term of this Lease to discuss and plan for any anticipated Capital Improvements needed at the Premises. Tenant shall obtain Landlord’s prior written consent before making any Capital Improvements, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, if the Capital Improvements are not consistent with Tenant’s Permitted Use or Landlord determines in its reasonable discretion that the Capital Improvements are not consistent with Landlord’s public purpose of providing a community recreational and fitness facility, Landlord may withhold its consent. Tenant shall be permitted to make changes, alterations, replacements or additions to the interior of the Premises that are not Capital Improvements without Landlord’s consent. If Landlord funds are involved in any Capital Improvement contract, Tenant shall coordinate with Landlord before seeking bids or hiring Capital Improvement contractors and vendors to ensure compliance with municipal contracting and bidding laws. To maintain an appropriate level of stewardship with regard to the expenditure of public funds, Landlord will follow all legally required processes for approval of contracts that spend public funds. All work shall be performed and made promptly, in a good and workmanlike manner and in conformance with City and state regulations (i.e. zoning and building/fire codes). Tenant shall obtain all necessary permits at Tenant’s expense. Section 11.4 Mechanics’ Liens. If by reason of any construction, alteration, repair or restoration of any part of the Premises by Tenant, any mechanics’ or other lien, encumbrance, judgment lien or order for the payment of money or the performance of any act or thing, shall be filed against the Premises (including, for this purpose, any such filing against the Development and/or any other building or improvements), or against Landlord (whether or not such lien or order is valid or enforceable as such), Tenant shall, at Tenant’s own cost and expense, cause the same to be canceled, discharged of record, bonded over or establish a third-party escrow to cover the payment of the lien prior to the commencement of a lien foreclosure action, and Tenant shall also indemnify and save harmless Landlord from and against any and all costs, expenses, claims, losses or damages, including, but not limited to, reasonable counsel fees charged by counsel of Landlord’s choice, resulting therefrom or by reason thereof. Notwithstanding the 25 foregoing, Tenant may contest the validity of such a lien, in good faith, on condition that Tenant provide Landlord with reasonable evidence of Tenant’s ability to pay the amount of such lien if such contest is unsuccessful. 12. Letter of Credit. Section 12.1 Letter of Credit Amount. On or before the Bond Issuance Date and during the Initial Term, as security for Tenant’s faithful performance of Tenant’s obligation hereunder, Tenant shall deliver to Landlord a clean, irrevocable letter of credit established in Landlord’s favor in an amount equal to 100% of the maximum annual debt service on the Tenant Portion of Bonds (the “Letter of Credit Amount”) issued by a Qualified Issuer (as hereinafter defined) (the “Letter of Credit”) substantially in the form of attached Exhibit I. Section 12.2 Use of Letter of Credit. If Tenant fails to make any payment of Base Rent, Additional Rent, Taxes, or other amounts due under the terms of this Lease, or otherwise defaults hereunder, beyond any applicable notice and cure period, Landlord, at Landlord’s option, may make a demand for payment under the Letter of Credit in an amount equal to the amounts then due and owing to Landlord under this Lease. In the event that Landlord draws upon the Letter of Credit, Tenant shall present to Landlord a replacement Letter of Credit or replenish the Letter of Credit to the full Letter of Credit Amount satisfying all of the terms and conditions of this paragraph within fifteen (15) days after receipt of notice from Landlord of such draw. The Letter of Credit shall contain a so-called “evergreen” clause providing that the Letter of Credit shall not be cancelled unless the issuing bank delivers thirty (30) days’ prior written notice to Landlord. If Tenant fails to present to Landlord a replacement Letter of Credit satisfying all of the terms and conditions of this paragraph not later than fifteen (15) days prior to the date of expiration or earlier termination of the Letter of Credit that Landlord is then holding, or post a cash escrow with Landlord equal to the Letter of Credit Amount in lieu of the Letter of Credit, Landlord, at Landlord’s option, may make a demand for payment under the Letter of Credit in an amount equal to the full amount of the Letter of Credit. Tenant acknowledges that any proceeds of a draw made under the Letter of Credit and thereafter held by Landlord shall be used by Landlord to cure or satisfy any default of Tenant hereunder and, upon satisfaction of any such defaults hereunder, Landlord shall deliver to Tenant any cash proceeds held by Landlord in excess of amounts needed to satisfy Tenant’s obligations with respect to Base Rent, Additional Rent, Taxes, or otherwise to cure any Tenant default under this Lease. Landlord and Tenant expressly acknowledge and agree that at the end of the Initial Term, if Tenant is not then in default under this Lease, Landlord shall return the Letter of Credit to the issuer of the Letter of Credit or its successor (or as such issuer may direct in writing) and if Landlord is then holding any cash proceeds from a draw on the Letter of Credit that have not been applied and are not needed to cure any uncured defaults, such funds shall be returned to Tenant. As used herein, a “Qualified Issuer” shall mean a federally insured banking or lending institution having assets of at least $250 million whose long-term debt is rated single A or higher by Moody’s, Standard & Poor’s or Fitch and which is not under any government supervision. At any time during the Term, Tenant may substitute for a Letter of Credit then being held by Landlord, a substitute letter of credit issued by a different Qualified Issuer and otherwise conforming to the requirements of this Section 12.2 (which will be the Letter of Credit for all purposes hereunder), in which event Landlord shall surrender the Letter of Credit it is then holding. 26 13. Utilities/Trash/Recycling. Section 13.1 Utility Charges, Service. In accordance with the Construction Management Agreement, the Premises will be designed so that, as of the Possession Date, all utilities shall be separately metered for the Premises. Tenant shall pay directly for all charges for water, electricity, gas, sewage, telephone, internet, cable television, satellite television and all other utility services furnished to the Premises on and after the delivery of possession of the Premises to Tenant. Tenant shall promptly pay and discharge, as and when the same become due, all utility and other charges including, without limitation, water, gas, electrical, telephone, and sewer charges, incurred during the Term of this Lease and the operation maintenance, use, occupancy, and upkeep of the Premises. In accordance with the Construction Management Agreement, the Premises will be designed so that the capacity of the utilities furnished to the Premises shall be adequate for Tenant’s Permitted Use. Interruption or impairment of any such utility or related service, caused by or necessitated by repairs, improvements, or by hazards beyond the control of Landlord during the Initial Term, shall not give rise to a right or cause of action against Landlord in damages or otherwise or a reduction or abatement of Base Rent and Tenant shall rely solely on any policy of business interruption insurance it maintains at its sole cost. Notwithstanding the foregoing, during any Renewal Term, if as result of Landlord’s negligence or willful misconduct directly with respect to utilities on the Premises, any utility service to the Premises is interrupted as a result of which Tenant is unable to fully operate the Premises for the Permitted Use for more than three (3) consecutive days, then beginning on the fourth (4th) consecutive day of such interruption and failure by Tenant to operate, and continuing for so long as such interruption and failure continue, all Rent shall abate in full and Tenant shall have no liability for the same. Section 13.2 Trash/Recycling. Tenant shall be responsible for the removal and disposal of trash from the Premises in compliance with Applicable Laws using a trash vendor selected by Tenant. 14. Common Areas. Operation, maintenance and repairs, costs and other matters concerning the easement areas of the Development are more fully addressed in the REA. Tenant accepts and undertakes the responsibilities of the “Operator” as defined and set forth in the REA for the Term of this Lease. Section 14.1 Merchants Association/Marketing Fees. Notwithstanding anything in this Lease to the contrary, Tenant will not be required to pay Landlord or contribute to a fund for merchants association or marketing. 15. Parking. In accordance with the Construction Management Agreement, the Premises will be designed so that there will be sufficient parking spaces in the Development for operation of Tenant’s business in addition to the other tenants, owners and occupants. As further provided in the REA, the Development will not share any parking and each parcel shall park to code, without variance. Such parking restrictions shall be set forth in the REA. In accordance with the REA, the Premises will be provided continuous, uninterrupted access to, from and among the 27 driveways of the Development and all streets adjacent thereto and all parking areas so long as this Lease remains in effect. 16. Indemnity and Insurance. Section 16.1 Indemnification by Tenant. To the fullest extent permitted by law, Tenant agrees to indemnify, hold harmless and defend Landlord and its employees, agents and contractors, from and against all claims, losses or liabilities arising out of damage to property of, or injury to, any third parties or Landlord, including Landlord’s employees, agents and contractors, caused in connection with the negligence or willful misconduct of Tenant or Tenant’s employees, agents and contractors, and Tenant’s failure to perform its obligations under this Lease, and all costs, fees and reasonable attorneys’ fees, incurred in connection therewith. The provisions of this Section 16.1 shall survive the expiration or earlier termination of this Lease. Section 16.2 Indemnification by Landlord. To the fullest extent permitted by law, Landlord agrees to indemnify, hold harmless and defend Tenant and its employees, agents and contractors, from and against all claims, losses or liabilities arising out of damage to property of, or injury to, any third parties or Tenant, including Tenant’s employees, agents and contractors, caused in connection with the negligence or willful misconduct of Landlord or Landlord’s employees, agents and contractors, and Landlord’s failure to perform its obligations under this Lease, and all costs, fees and reasonable attorneys’ fees, incurred in connection therewith. The provisions of this Section 16.2 shall survive the expiration or earlier termination of this Lease. Section 16.3 Tenant’s Insurance. At all times after the date of delivery of possession of the Premises to Tenant, Tenant, at Tenant’s sole cost and expense, shall maintain in full force and effect the following insurance: (a) A Commercial General Liability (“CGL”) Policy applying to the use and occupancy of the Premises and the business operated at the Premises; such coverage shall have a minimum combined single limit of liability of at least Two Million Dollars ($2,000,000.00) per occurrence and an annual aggregate limit of at least Four Million Dollars ($4,000,000.00). The following coverages shall be included during the policy term: Premises and Operations Bodily Injury and Property Damage; Blanket Contractual Liability; Products and Completed Operations Liability; and (b) A Causes of Loss – Special Form insurance policy, written at replacement cost value and with replacement cost endorsement, covering all of Tenant’s personal property in the Premises (including, without limitation, inventory, trade fixtures, floor coverings, furniture, equipment, and other property removable by Tenant under the provisions of this Lease), and all alterations and Tenant’s Work installed in the Premises by or on behalf of Tenant (collectively, the “Tenant Insured Property”) and Tenant’s insurance coverage for the Tenant Insured Property shall be primary. 28 Section 16.4 Landlord’s Insurance. (a) General Liability Insurance. Landlord will purchase and maintain at its sole cost and expense general liability insurance with the League of Minnesota Cities Insurance Trust (“LMCIT”) with a limit of at least $2,000,000 per occurrence, under standard LMCIT liability coverage forms. The LMCIT policy will include coverage for bodily injury and property damage and the policy shall cover liability arising from premises, operations, products-completed operations, personal injury, advertising injury, and contractually assumed liability. Landlord will add Tenant as an additional insured on the LMICT policy for claims that arise under this Lease. Alternatively, Landlord may maintain equivalent liability insurance not with the LMCIT provided all terms, conditions and requirements of this Lease are met. (b) Builder’s Risk Insurance. Pursuant to the Construction Management Agreement, the Construction Manager will purchase and maintain or cause contractors under any applicable construction contract(s) to purchase and maintain, as a cost of Landlord’s Work to be paid from the Bonds and amounts deposited by Tenant, if any, pursuant to Section 6.2(b) hereof, Builders Risk (Property) Insurance written on an “all- risk” builders risk basis or equivalent policy form in the amount of the contract(s) for construction of the Premises and shall be in place during the full length of construction, plus the value of subsequent modifications and the cost of materials supplied or installed by third parties, comprising the total value for the Premises on a replacement cost basis. (c) Property Insurance. Upon completion of construction of the Premises, Landlord will purchase and maintain at its sole cost and expense in full force and effect a Cause of Loss – Special Form property insurance policy written at 150% of the replacement cost value and with replacement cost endorsement if such endorsement is not currently provided with the cause of loss – special form property insurance policy and add the Premises to its property insurance schedule written at 150% of the replacement cost value covering the Premises, any plate glass in or surrounding the Premises, and the Landlord’s Work. Coverage shall also extend to Landlord’s revenue loss in an amount equal to no less than $5,000,000.00. Landlord will purchase and maintain such property insurance at its sole cost and expense during the remainder of the Term of this Lease. Section 16.5 Additional Policy Requirements. (a) Each policy required under Article 16 shall be placed with an insurer, authorized to do business in the State of Minnesota, which is rated at least B+/VIII in AM Best’s insurance reports or an equivalent. Landlord’s policies are exempt from this requirement if coverage is provided through the LCMIT. (b) Tenant is required to annually submit a Certificate of Insurance in form reasonably acceptable to Landlord as evidence of the required insurance coverage requirements. Landlord is required to annually submit a Certificate of Insurance in form reasonably acceptable to Tenant as evidence of the required insurance coverage requirements. 29 (c) Tenant’s CGL policy must be endorsed and the Certificate of Insurance must show Landlord as an additional insured and must contain a provision that coverage afforded under the policy will not be cancelled without at least thirty (30) days’ advanced written notice to Landlord, or ten (10) day’s written notice for non-payment of premium. (d) All proceeds of any insurance maintained by Tenant shall belong to and be the sole property of Tenant except as expressly set forth in this Lease; provided, however, that the proceeds of insurance under Section 16.3(b) shall be deposited with and disbursed by Landlord until completion of restoration of the Premises under Section 17.1. (e) Tenant may meet its insurance obligations under any blanket policy carried by it, under a separate policy therefor or under any combination of primary insurance, or umbrella insurance policies carried by Tenant. Notwithstanding anything to the contrary in this Lease, Tenant shall have the right to self-insure with respect to (a) some or all of the property insurance coverage required hereunder, and/or (b) some or all of the liability insurance coverage required hereunder, so long as any self-insured retention shall not exceed Three Million Dollars ($3,000,000); provided Tenant shall defend and indemnify Landlord to the same extent as if such coverage were not self-insurance. As an alternative to delivering a certificate of insurance, Tenant may provide Landlord with a website address maintained by Tenant’s insurance consultant which shall enable Landlord to electronically review all insurance maintained by Tenant from time to time during the Term to confirm Tenant’s compliance with the terms of this Lease related to insurance. Section 16.6 Waiver of Right of Recovery. Notwithstanding any provision of this Lease to the contrary, if either party hereto suffers a loss or damages to its property, and such loss or damages would typically be covered under any policy of property insurance that such party actually maintains or is required to maintain pursuant to this Lease, then such party hereby releases the other party to and from any and all liability for each such loss or damage, and/or notwithstanding that such party has failed to maintain the insurance policy required to be maintained by it under this Lease. Section 16.7 Liquor License and Dram Shop Insurance. Tenant shall obtain any and all licenses and insurance necessary to serve alcohol on the Premises. 17. Casualty. Section 17.1 Casualty. If the Premises are damaged or destroyed by fire or other casualty insurable under a standard Causes of Loss – Special Form insurance policy, Landlord shall, from the proceeds of such insurance, as soon as possible after the occurrence of such casualty rebuild the Premises and otherwise repair, reconstruct and restore the Premises, including Landlord’s Work to the condition in which the Premises were immediately prior to the happening of such casualty. To the extent that Tenant is partially or totally unable to operate its business at the Premises, Rent during the Initial Term shall be paid solely from the proceeds of Landlord’s insurance and Tenant’s obligation to pay Rent shall abate during such time. To the extent that Tenant is partially or totally unable to operate its business at the Premises, Rent during a Renewal Term shall be proportionately abated until Landlord has fully completed such repair, reconstruction or restoration; provided, however, that Tenant shall be permitted a reasonable 30 period of time thereafter to recommence business operations in the Premises prior to the time Tenant’s obligation to pay Rent hereunder recommences. Section 17.2 Rights of Termination. Notwithstanding the provisions of Section 17.1 to the contrary, Landlord shall have the option to terminate this Lease by written notice to Tenant given within thirty (30) days after the occurrence of any damage or destruction, if the damage or destruction occurs within the last twelve (12) months of the Term of this Lease (unless Tenant promptly thereafter exercises its renewal right) or any Renewal Term. Within thirty (30) days following a casualty Landlord shall deliver to Tenant a notice stating whether the casualty entitles Landlord to terminate this Lease, and if so whether Landlord intends to terminate this Lease. Tenant shall also have the right to terminate this Lease, by written notice to Landlord given within thirty (30) days after the occurrence of a casualty to the Premises, if as a result of such casualty (a) the Premises are destroyed or rendered untenantable during the last twelve (12) months of the Term, (b) Tenant notifies Landlord that the restoration of the Premises and/or the Building is not likely to be fully completed within one hundred eighty (180) days of the casualty, or (c) Tenant notifies Landlord that Tenant does not want Landlord to rebuild, in which case the proceeds of the property insurance policy shall belong to Landlord. Section 17.3 Termination of Rent Obligation. Upon any termination of this Lease under the provisions of this Article 17, all Rent due during the Term or any Renewal Term shall be adjusted as of the date of such termination, and each party and Guarantor shall be released thereby without further obligation to the other party coincident with the surrender of possession of the Premises to Landlord, except for items which have accrued prior to such termination and are then unpaid, or which expressly survive any termination of this Lease or the Guaranty. 18. Condemnation. Section 18.1 Permanent Taking. If (a) more than two and one-half percent (2.5%) of the interior square footage of the Building (or a smaller percentage if the Premises is no longer operable for Tenant’s business purposes, as determined by Tenant) or (b) more than seven percent (7%) of the parking spaces on the Premises are permanently condemned or taken by any public authority under the power of eminent domain or deed in lieu thereof, Tenant shall have the right during the Initial Term or any Renewal Term, as of the day possession shall be taken by such public authority, to terminate this Lease by written notice to Landlord within sixty (60) days after possession is so taken, and all Rent shall be paid to the date of such possession, each party and Guarantor shall automatically be released from this Lease and the Guaranty thereby without further obligation to the other party coincident with the date possession is taken by such public authority, except for items which have accrued prior to such termination date and are then unpaid or obligations that expressly survive any termination of this Lease. Notwithstanding anything contained herein to the contrary, Tenant shall have a period of thirty (30) days after providing notice of termination of the Lease in which to vacate the Premises. For purposes hereof “permanently” taken or condemned shall mean any period of twelve (12) months or more. If Tenant shall elect not to terminate this Lease by reason of such condemnation, the Base Rent shall be reduced by the lesser of (i) the proportion of Tenant’s interior square footage taken by such condemnation, if any, or (ii) the amount of the condemnation award available to prepay and defease a proportionate amount of the Tenant Portion of Bonds. In addition, Tenant shall make all necessary repairs or alterations so as to constitute the remaining part of the Premises a complete 31 architectural unit to the condition existing immediately prior to the taking to the extent possible. Damages for such taking, shall belong to and be the property of Tenant or Landlord, to the extent of their interest in the Premises as determined pursuant to Section 18.4. Section 18.2 Temporary Taking. If any part of the Premises or any of the parking spaces in the Premises shall be taken at any time during the Term for temporary use and occupancy for any public or quasi-public purpose by any lawful power or authority, by the exercise of the right of condemnation or eminent domain, or by agreement under the threat of condemnation between Landlord, Tenant and those authorized to exercise such right (a “Temporary Taking”), Tenant shall give prompt notice thereof to Landlord, and the Term of this Lease shall not be reduced or affected in any way. For purposes hereof, a Temporary Taking or condemnation shall mean any period shorter than twelve (12) months. In such case, Tenant shall continue to pay in full all Rent and other charges provided to be paid by Tenant. Tenant shall be entitled to the entire award for any such Temporary Taking applicable to the Premises (whether paid by way of damages, rent, or otherwise), except to the extent the Term of this Lease expires prior to the termination of the Temporary Taking in which case, the award shall be equitable apportioned between Landlord and Tenant. At the termination of any such temporary use or occupation of the Premises, Tenant will, at its sole cost, repair and restore the Premises to the condition, as nearly as may be reasonably possible, in which the Premises were prior to such Temporary Taking, and Tenant will, at its sole cost, repair and restore the Premises to the condition, as nearly as may be reasonably possible, in which such Premises were at the time of such Temporary Taking (with such changes as Tenant may desire to make subject to the terms of this Lease, including, without limitation, any prior approval required from Landlord). Tenant shall not be required to make such repairs and restoration if the Term of this Lease shall expire before the date of termination of such Temporary Taking, and, in any such event, Landlord shall be entitled to recover all damages and awards arising out of the failure of the condemning authority to repair and restore the Premises at the expiration of such Temporary Taking. Section 18.3 Participation in Proceedings. In cooperation with Landlord, Tenant may participate in any proceedings or negotiations with any public or quasi-public authority affecting the Premises concerning the condemnation of all or any part thereof, and to be represented by counsel for the purpose of protecting its interest hereunder, and no settlement or compromise shall be made that adversely affects Tenant's interests without Tenant’s approval (not to be unreasonably withheld). Section 18.4 Condemnation Award. Each party may prove their respective claims in any condemnation proceeding based upon its interests (including easement interests) in the property taken, with Landlord being entitled to claim and recover from the condemning authority an award for its fee interest in the Premises or other area taken, and Tenant being entitled to claim and recover from the condemning authority an award for loss of Tenant's leasehold interest, easement rights hereunder, any leasehold improvements made by Tenant to the Premises at its own expense, loss of goodwill and moving expenses, and for or on account of any cost or loss incurred in removing Tenant's merchandise, furniture, fixtures and equipment. The terms and conditions of this Article 18 shall survive any termination of this Lease. 32 19. Assignment and Subletting by Tenant. Tenant may not assign or sublet the whole or any part of the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed, or conditioned. Any limitation on the Guaranty of the Guarantor as a result of such assignment shall be a reasonable basis for denying consent. Notwithstanding the foregoing consent requirement, Tenant shall have the right to enter into an assignment of this Lease or a sublease of the Premises to any Permitted Transferee (as hereinafter defined), without Landlord’s consent (each, a “Permitted Transfer”). For purposes of this Lease, “Permitted Transferee" means (a) an entity controlling, controlled by or under common control with Tenant, Life Time, Inc., or Life Time Group Holdings, Inc., including, without limitation, any change in control or management or an initial public offering of such entity, Tenant, Life Time, Inc., Life Time Group Holdings, Inc. or any affiliate thereof (a “Tenant Affiliate”), (b) an entity which succeeds to Tenant’s, Life Time, Inc.’s, Life Time Group Holdings, Inc.’s business by merger, consolidation, initial public offering, or other form of corporate reorganization, (c) an entity which acquires all or substantially all of Tenant’s, Life Time, Inc.’s, or Life Time Group Holdings, Inc.’s, assets or stock; provided that an entity may not become a Permitted Transferee through or as a part of a bankruptcy or other similar insolvency proceeding, (d) an entity which acquires ten (10) or more of Tenant’s, Life Time Inc.’s or Life Time Group Holdings, Inc.’s locations in Minnesota, or (e) an entity which assumes Tenant’s interest in this Lease by a real estate investment trust formed by Tenant or by any entity described in subsections (a), (b), (c) or (d) of this paragraph. Further, Tenant shall have the right to sublease up to ten percent (10%) of the leasable square footage of the Premises for a Permitted Use without Landlord’s consent. In connection with a Permitted Transfer the Guaranty shall be released as follows: (a) With the prior written consent of Landlord subject to conducting due diligence to determine financial position, capacity, experience, history, bankruptcy or financial filing and Permitted Transferee providing access to company records to allow Landlord or its consultant/representative to verify compliance; or (b) After July 1, 2033 by prepaying the Tenant Portion of Bonds and all interest thereon accruing to the date of redemption thereof; or (c) The Permitted Transferee satisfies the following conditions: (i) Permitted Transferee has net assets or net equity of ten times the outstanding principal amount the Tenant Portion of Bonds as follows: $230 million in years 1-10 of the Initial Term; $200 million in years 11-15 of the Initial Term; $160 million in years 1 6-20 of the Initial Term; and $100 million in years 21-30 of the Initial Term. If any of the above conditions are met in connection with a Permitted Transfer, Guarantor shall be forever released from any further liability and obligations under this Lease and the Guaranty. 33 20. Leasehold Financing; Subordination; Estoppel Certificates. Section 20.1 Leasehold Financing. Without the prior written consent of Landlord, Tenant shall have the right, from time-to-time, to execute and deliver a Leasehold Mortgage granting a lien or security interest in Tenant’s leasehold estate in the Premises (the “Leasehold Interest”), to an Institutional Lender; provided that any such Leasehold Mortgage shall satisfy the conditions set forth herein and provided that, notwithstanding any provision to the contrary in this Section 20.1, Tenant shall remain liable hereunder for the payment of all Rent payable hereunder and for the performance of all of the obligations of Tenant under this Lease. In no event shall any such Leasehold Mortgage encumber Landlord’s interest in the Premises or limit Landlord’s remedies against the Guarantor under the Guaranty. All such Leasehold Mortgages shall be subject to the following conditions: (a) Notice and Cure Rights. Tenant or such Mortgagee shall give Landlord prompt notice of such Leasehold Mortgage and furnish Landlord with a complete and correct copy of such Leasehold Mortgage, certified as such by Tenant or such Leasehold Mortgagee, together with the name and address of such Leasehold Mortgagee. After receipt of the foregoing, Landlord shall give to such Leasehold Mortgagee, at the address of such Leasehold Mortgagee set forth in such notice, and otherwise in the manner provided by Section 24, a copy of each notice of default and other notice at the same time as, and whenever, any such notice of default or other notice shall thereafter be given by Landlord to Tenant. Leasehold Mortgagee (i) shall thereupon have a period of thirty (30) days more than given to Tenant in each instance in the case of a default in the payment of Rent and sixty (60) days more than given to Tenant in each instance in the case of any other default, for remedying the default or causing the same to be remedied, provided, however, if any non-Rent default is not capable of remedy by Leasehold Mortgagee within such sixty (60) day period, Leasehold Mortgagee shall have such sixty (60) day period to commence curing the default and such greater period of time as is necessary to complete same with due diligence, and (ii) shall, within such periods and otherwise as herein provided, have the right (but not the obligation) to remedy such default or cause the same to be remedied. Landlord shall accept performance by a Leasehold Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant. Notwithstanding anything to the contrary herein contained, if the default is of such a nature that it cannot be cured by Mortgagee and can only be cured by Tenant (for example, the bankruptcy of Tenant), such event shall not be a default under this Lease. (i) Notwithstanding any of the provisions of this Lease to the contrary, no default by Tenant shall be deemed to exist as long as the Leasehold Mortgagee within the periods set forth in subsection (a) above shall have delivered to Landlord its written agreement to take the action described in clause (i) or (ii) of subsection (a) above and thereafter, in good faith, shall have commenced promptly either (X) to cure the default and to prosecute the same to completion, or (Y) if possession of the Premises is required in order to cure the default, to institute foreclosure proceedings and obtain possession directly or through a receiver, and to prosecute such proceedings with diligence and continuity and, upon obtaining such possession, commence promptly to cure the default and to prosecute the same to 34 completion with diligence and continuity, provided that during the period in which such action is being taken (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease, to the extent they are reasonably susceptible of being performed by the Leasehold Mortgagee, are being performed. However, at any time after the delivery of the aforementioned agreement, the Leasehold Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued or will discontinue them, and in such event, the Leasehold Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord, and, thereupon, Landlord shall have the unrestricted right to terminate this Lease and to take any other action it deems appropriate by reason of any default, and upon any such termination the provisions of Section 20.1(b) below shall apply. (ii) Except as provided in Section 20.1(a) above, no Leasehold Mortgagee shall become liable under the provisions of this Lease or any lease executed pursuant to Section 20.1(b) hereof unless and until such time as it becomes, and then only for as long as it remains, the owner of the Leasehold Interest created hereby or thereby. This Lease shall not be amended or modified without the consent of any Leasehold Mortgagee which has delivered the notice provided for in Section 20.1(a) hereof. In the event that a Leasehold Mortgagee shall become the owner of such Leasehold Interest, such Leasehold Mortgagee shall not be bound by any modification or amendment of this Lease made subsequent to the date of the Leasehold Mortgage and delivery to Landlord of the notice provided in Section 20.1(a) hereof and prior to its acquisition of such interest unless the Leasehold Mortgagee shall have consented to such modification or amendment at the time it was made or at the time of such acquisition. (b) New Lease. (i) In the case of termination of this Lease for any reason, or in the event this Lease is rejected or disaffirmed pursuant to any bankruptcy, insolvency or other law affecting creditor’s rights, Landlord shall give prompt notice thereof to a Leasehold Mortgagee whose name and address Landlord has received pursuant to notice made in compliance with the provisions of Section 20.1(a), at the address of such Leasehold Mortgagee set forth in such notice, and otherwise in the manner provided by this Article 20. Landlord, on written request of such Leasehold Mortgagee made any time within thirty (30) days after the giving of such notice by Landlord, shall promptly execute and deliver a new lease of the Premises to the Mortgagee, for the remainder of the term, at the Rent and upon all the covenants, conditions, limitations and agreements herein contained (including, without limitation, options to extend the term of this Lease) except for such provisions which must be modified to reflect such termination, rejection or disaffirmance and the passage of time provided that such Leasehold Mortgagee (X) shall pay to Landlord, simultaneously with the delivery of such new lease, all unpaid Rent due under this Lease up to and including the date of the commencement of the term of such new lease and all reasonable expenses, including, without limitation, 35 reasonable attorneys’ fees and disbursements and court costs, incurred by Landlord in connection with the default by Tenant, the termination of this Lease and the preparation of the new lease, and (Y) shall cure all defaults existing under this Lease which are susceptible of being cured by such Leasehold Mortgagee promptly and with due diligence after the delivery of such new lease. (ii) Upon the execution and delivery of a new lease under this Section 20.1(b), all subleases which theretofore have been assigned to, or made by, Landlord shall be assigned and transferred, without recourse, by Landlord to the tenant named in such new lease. Between the date of termination of this Lease and the date of execution of the new lease, if a Leasehold Mortgagee shall have requested such new lease, Landlord shall not cancel any subleases or accept any cancellation, termination or surrender thereof (unless such termination shall be effected as a matter of law on the termination of this Lease) or enter into new subleases without the consent of the Leasehold Mortgagee. (iii) If there is more than one Leasehold Mortgage, Landlord shall only recognize the Leasehold Mortgagee whose Leasehold Mortgage is senior in lien and which has requested a new lease of the Premises within the time period set forth in Section 20.1(b)(i) as the Leasehold Mortgagee entitled to the rights afforded by this Section 20.1(b); provided that either Tenant or such Leasehold Mortgagee shall have given Landlord notice of such Leasehold Mortgage in compliance with the provisions of Section 20.1(a). (c) Miscellaneous. (i) If a Leasehold Mortgage is in effect, (A) this Lease shall not be modified or amended by the parties hereto, or terminated or surrendered by the Tenant, nor shall the Landlord accept any such termination or surrender of this Lease by the Tenant, without the prior written consent of the Leasehold Mortgagee and (B) Landlord shall not have the right to terminate this Lease in the event of a casualty or condemnation without the prior written consent of the Leasehold Mortgagee. (ii) The purchaser at any sale of this Lease and the leasehold interest hereby created in any proceedings for the foreclosure of the Leasehold Mortgage (including, without limitation, power of sale) or the assignee or transferee of this Lease and the leasehold interest hereby created under any instrument of assignment or transfer in lieu of the foreclosure (whether the Leasehold Mortgagee or any third party) shall be deemed to be a permitted assignee or transferee under this Lease without the need to obtain Landlord's consent, and shall be deemed to have assumed and agreed to perform all of the terms, covenants and conditions on the part of Tenant to be performed under this Lease, including the obligation to cure any Event of Default that exists upon such assignment or other transfer. 36 (iii) The Leasehold Mortgagee shall have the right to participate in the adjustment of losses with any insurance company with respect to any damage or destruction of the Premises. (iv) In the event of any taking of all or any part of the Premises, the Leasehold Mortgagee shall have the right to participate in any condemnation proceedings settlement discussions to the extent of Tenant’s interest in the Premises. (v) Under no circumstances shall the fee estate of the landlord and the Leasehold Interest created hereby merge, even though owned by the same party, without the written consent of the Leasehold Mortgagee. (d) Tenant Termination Rights. Notwithstanding any provisions of the Lease to the contrary, so long as the Leasehold Mortgage is in effect, Tenant shall have no right to terminate the Lease with respect to any event unless the written approval of the Leasehold Mortgagee holding the Leasehold Mortgage on the Leasehold Interest is obtained, including, without limitation, the right to terminate in the event of any casualty or condemnation. (e) No Impact on Guaranty. Notwithstanding any provisions of the Lease to the contrary, upon any commencement of any proceedings for foreclosure of Tenant’s Leasehold Mortgage, Landlord shall have the right to demand that the Guarantor cure Tenant’s default under the Leasehold Mortgage. Section 20.2 Subordination. So long as no Event of Default has occurred and is continuing, Tenant’s rights under this Lease shall not be disturbed, this Lease shall be subject and subordinate to each Mortgage hereafter covering any or all of the Premises (and each renewal, modification, consolidation, replacement or extension thereof) or other similar instrument of encumbrance now or hereafter existing, subject to execution by any subsequent Mortgagee of a commercially reasonable subordination, non-disturbance and attornment agreement, providing that notwithstanding the default of Landlord under such Mortgage, or the foreclosure of the lien thereof, or the grant of a deed in lieu of foreclosure, this Lease shall continue in full force and effect upon the terms, conditions, covenants and agreements herein contained so long as Tenant is not in default hereunder beyond any applicable notice or cure period. Tenant shall promptly and, in any event, within fifteen (15) Business Days after the request of Landlord or any Mortgagee execute, acknowledge and deliver such further reasonable instrument or instruments evidencing such subordination provided that such instrument does not conflict with or modify the terms of this Lease. Landlord represents and warrants that, as of the Effective Date, no Mortgage affects the Lease Parcel. As used in this Section 20.2, “Mortgage” means any ground lease, mortgage, or other security interest now or hereafter encumbering all of any part of Landlord’s interest in the Premises and/or the Lease Parcel, together with any and all amendments or modifications thereof. Also, as used in this Section 20.2, “Mortgagee” means the holder of any Mortgage, including any successor, assign or designee, or a successful bidder at a foreclosure sale. Section 20.3 Estoppel Certificates. Either party shall within fifteen (15) Business Days after being requested to do so by the other party or any Mortgagee or Leasehold Mortgagee, 37 execute, acknowledge and deliver to the requesting party (or, at such party’s request, to any existing or prospective purchaser, transferee, assignee or Mortgagee or Leasehold Mortgagee) an instrument, certifying (a) that this Lease is unmodified and in full force and effect (or, if there has been any modification thereof, that it is in full force and effect as so modified, stating therein the nature of such modification); (b) as to the dates to which Base Rent, and other charges owing hereunder have been paid; (c) as to the amount of any prepaid Rent or any credit due to the other party hereunder; (d) the date on which the Term commenced; (e) as to whether any notice of default has been given by either party which default has not been cured; and, (f) as to any other fact or condition reasonably requested by the requesting party or such other addressee; and acknowledging and agreeing that any statement contained in such certificate may be relied upon by the requesting party and any other such addressee. 21. Restriction on Hazardous Materials. Section 21.1 Definitions. (a) As used herein, the term “Hazardous Materials” means any substance or material (i) containing gasoline or oil or any other petroleum product, asbestos, any radioactive material or any polychlorinated biphenyl; (ii) that is defined or termed as a “hazardous substance” or “hazardous waste” as defined by any existing federal state or local law, statute, regulation code or authority or (iii) the use, disposal storage, handling or generation of which is otherwise restricted, governed or regulated by any federal state or local law, statute, regulation, code or authority intended to protect the environment or public health. (b) As used herein the term “Environmental Damages” means (i) all claims, judgments, damages, penalties, fines, costs, liabilities and losses; and (ii) all sums paid for settlement of claims, and reasonable attorneys,’ consultant’s and experts’ fees. Section 21.2 Tenant’s Obligation. Tenant shall not cause or permit the Premises to become contaminated by any Hazardous Materials (defined in Section 21.1) being brought upon, kept or used in or about the Premises by Tenant, its agents, employees, or contractors. Notwithstanding the foregoing, Tenant may bring ordinary amounts of Hazardous Materials used in connection with Tenant’s business (such as cleaning solutions, pool chemicals, etc.) so long as the same is used, stored and disposed of in accordance with Applicable Laws. If the presence of Hazardous Materials on the Premises caused or permitted by Tenant results in contamination of the Premises, or if contamination of the Premises by Hazardous Materials otherwise occurs for which, under Applicable Laws, Tenant is liable to Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and hold Landlord harmless from Environmental Damages caused by Tenant. Notwithstanding the foregoing, none of the prohibitions contained herein shall prohibit Tenant from the normal and routine use of lawful cleaning solutions and other lawful, routine products normally used in a commercial office and/or a typical Life Time health club and fitness operation including but not limited to pool chemicals and medical waste. Section 21.3 Landlord’s Obligations. Pursuant to the Construction Management Agreement, the Lease Parcel, the Building and the Premises shall be delivered free of Hazardous Materials. Landlord agrees to hold Tenant and its subsidiaries, affiliates officers, employees and 38 agents harmless from any Environmental Damages which arise after the Effective Date during or after the Term of this Lease from or in connection with the presence of Hazardous Materials on, under or emanating from the Premises or Development, unless the Hazardous Materials are present solely as a result of a breach of Tenant with respect to Hazardous Materials under this Lease, or the gross negligence or willful misconduct of Tenant, its officers, employees, or agents; provided, however, that remediation of Hazardous Materials necessary for construction of the Premises and the cost thereof shall be paid in accordance with Section 6.2(b) hereof unless this Lease is terminated in accordance with Section 21.4. Section 21.4 Discovery of Hazardous Materials During Construction. In accordance with the Construction Management Agreement, if conditions suggesting the presence of Hazardous Materials are discovered during construction of the Landlord’s Work, the Construction Manager shall promptly notify Landlord, and Landlord shall cause its environmental consultant to investigate the Premises and/or to perform tests to determine whether there are any Hazardous Materials which require remediation under Applicable Laws, rules and regulations. Remediation shall include those steps required to eliminate, remove or otherwise mitigate the presence of Hazardous Materials. In accordance with the Construction Management Agreement, if Hazardous Materials are discovered in the Premises during construction of the Premises, such Hazardous Materials shall be removed and remediated in accordance with Applicable Laws, rules and regulations and the cost thereof shall be paid from the proceeds of the Bonds, to the extent available, and Tenant shall pay any cost thereof in excess of available Bond proceeds and shall deposit the estimated cost thereof with Landlord in accordance with Section 6.2(b). If remediation is required and the proposed remediation will (a) result in more than a 180 calendar day delay in the Landlord’s Work, or (b) result in a reconfiguration of the Premises, the easement areas subject to the REA or the Development which, in the exercise of Tenant’s reasonable business judgment, will materially affect Tenant’s business operations, or (c) the estimated cost of the remediation will exceed $1,000,000, then, in any event, Tenant may terminate this Lease upon deposit in a defeasance escrow of an amount sufficient, together with unspent proceeds of the Bonds, to pay the outstanding principal balance of the Bonds plus interest thereon through the earliest call date on the Bonds, and thirty (30) days’ written notice to Landlord delivered within thirty (30) days after Tenant is notified of the discovery of the occurrence of either (a), (b) or (c) above, as the case may be. After delivery of notice from Tenant to Landlord and such defeasance escrow deposit, this Lease shall terminate as provided in the notice unless the termination is due to (b) above, in which event if pursuant to the Construction Management Agreement the Premises, the easement areas subject to the REA and/or Development Agreement, as the case may be, can be reconfigured within such thirty (30) day period, such that the reconfiguration does not, in Tenant’s reasonable business judgment, materially affect Tenant’s business operations, this Lease shall not terminate. In any event, Tenant shall be responsible for the increases in the construction costs of Tenant’s Work and Landlord’s Work caused by such delay, remediation, reconfiguration and/or termination in excess of the Bond proceeds. All required remediation shall be diligently completed in accordance with the Construction Management Agreement. The remedies provided herein are in addition to any other remedies available to the parties pursuant to this Lease. Upon any termination of this Lease under the provisions of this Section 21.4, each party and Guarantor shall be released thereby without further obligation under this Lease to the other party coincident with the surrender of possession of the Premises to Landlord, except for obligations that expressly survive as specified in this Lease. 39 22. Default. Section 22.1 Event of Default. Any one or more of the following events shall constitute an “Event of Default”: (a) failure of Tenant to pay an installment of Rent or any other sum payable by Tenant hereunder within ten (10) days after Tenant’s receipt (or denial of delivery of) Landlord’s written notice thereof to Tenant; (b) the making by Tenant of an assignment for the benefit of its creditors, which is not reversed within thirty (30) days; (c) institution by Tenant of proceedings for reorganization, liquidation, or bankruptcy of Tenant, unless the same is discharged within sixty (60) days; (d) institution against Tenant of proceedings for reorganization, liquidation, or bankruptcy which are not dismissed within sixty (60) days; (e) the appointment of a receiver, trustee or liquidator to take charge of all or substantially all of Tenant’s assets which is not vacated within sixty (60) days; or (f) failure of Tenant to perform any of Tenant’s other non-monetary obligations under this Lease within sixty (60) days after Landlord gives Tenant written notice thereof; provided, however, that if such failure is curable, but cannot with reasonable diligence be cured within such sixty (60) day period, then so long as Tenant commences to cure such default within such sixty (60) day period and thereafter cures such default with due diligence, Tenant shall have an additional sixty (60) days to cure such breach. Section 22.2 Landlord’s Remedies. Upon a Tenant Event of Default, Landlord, at its option, shall have the following remedies: (a) During the Initial Term, if an Event of Default occurs pursuant to subsections (a) through (e) of Section 22.1 above, Landlord may draw upon the Letter of Credit to pay for Rent and any other uncured Tenant monetary obligations pursuant to the terms and conditions of Section 12.2. (b) During the Initial Term, if an Event of Default occurs pursuant to subsection (f) of Section 22.1 above, Landlord shall be entitled to enforce Guarantor’s guaranty of performance under the Guaranty with respect to remedying the Event of Default or to cure such Event of Default and if curing such Event of Default involves the expenditure of money, Landlord may charge Tenant for such amounts and provide an invoice to Tenant along with reasonable supporting documentation setting forth the costs incurred by Landlord in curing such Event of Default. If Tenant does not timely pay said invoice, Landlord may pursue its remedies as set forth in Section 22.2(a) above. (c) During the Initial Term, if, after exercising the remedy in Section 22.2(a) above, the Letter of Credit is not reinstated or replenished in accordance with Article 12 hereof, or Tenant does not post an escrow equal to the Letter of Credit Amount within the timeframe required to reinstate or replenish the Letter of Credit in accordance with Article 12, then Landlord, at its option, shall have the right to declare immediately due and payable Base Rent in an amount equal to the outstanding Tenant Portion of Bonds plus interest thereon through the earliest call date on the Bonds, exercise Landlord’s remedies under the Guaranty, terminate this Lease or Tenant’s right to possession of the Premises, and enter into and take possession of the Premises and remove all persons and their property therefrom. Upon any such termination of this Lease, each party and Guarantor shall be released thereby without further obligation under this Lease or the Guaranty upon satisfaction of any outstanding demand for payment under the Guaranty. 40 (d) After the expiration of the Initial Term, and during any Renewal Term, if an Event of Default occurs, Landlord, at its option, shall have the right to exercise Landlord’s remedies under the Guaranty, terminate this Lease or Tenant’s right to possession of the Premises, and enter into and take possession of the Premises and remove all persons and its property therefrom, and shall further be entitled to pursue all other remedies available to Landlord at law or in equity, except Landlord shall not be permitted to accelerate the payment of Rent. Landlord further will be entitled to an award of reasonable attorneys’ fees in connection with the exercise of Landlord’s remedies to the extent Landlord prevails in enforcing its rights under this Lease. In any such event, Landlord shall use all reasonable efforts to mitigate any and all damages that it may sustain as a result of Tenant’s default hereunder. Section 22.3 Landlord’s Default. During the Initial Term, if Landlord shall default in the performance of any of Landlord’s obligations hereunder, and such default shall not be cured within thirty (30) days after receipt of notice thereof from Tenant (provided, however, that if such failure is curable, but cannot with reasonable diligence be cured within such thirty (30) day period, then so long as Landlord commences to cure such default within such thirty (30) day period and thereafter cures such default with due diligence, Landlord shall have an additional thirty (30) days to cure such breach), then, in addition to any other remedies available at law or in equity, Tenant shall have the option of either: (i) seeking specific performance of Landlord, or (ii) curing such default and, if curing such default involves the expenditure of money, Landlord shall reimburse Tenant within thirty (30) days after receipt of an invoice and reasonable supporting documentation for such expenditure. After the expiration of the Initial Term and during any Renewal Term, if Landlord shall default in the performance of any of Landlord’s obligations hereunder, and such default shall not be cured within thirty (30) days after receipt of notice thereof from Tenant (provided, however, that if such failure is curable, but cannot with reasonable diligence be cured within such thirty (30) day period, then so long as Landlord commences to cure such default within such thirty (30) day period and thereafter cures such default with due diligence, Landlord shall have an additional thirty (30) days to cure such breach), then, in addition to any other remedies at law or in equity, Tenant shall have the option of either: (i) seeking specific performance of Landlord, or (ii) curing such default and, if curing such default involves the expenditure of money, deducting the cost thereof together with interest until fully recouped by Tenant at the lesser of: (i) 12% per annum, or (ii) the maximum lawfully permitted interest rate, from the Rent due or accruing hereunder. During the Term, Tenant will be entitled to an award of reasonable attorneys’ fees, at the hourly rate in effect for Landlord’s appointed legal counsel, in connection with the exercise of Tenant’s remedies to the extent Tenant prevails in an adjudicated dispute in enforcing its rights under this Lease. Section 22.4 Cumulative Remedies. Subject to the limitations and remedies set forth above, no right or remedy herein conferred upon or reserved to either party is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder, or now or hereafter existing at law, in equity or by statute. Notwithstanding anything to the contrary contained herein, in no event 41 shall either Landlord or Tenant be entitled to recover from the other party any punitive or consequential damages resulting from any default or other breach of this Lease by the other party or its employees, agents, servants or customers, whether foreseen or unforeseen, and each hereby waives and releases any claim for such punitive or consequential damages. 23. Non-Waiver Provisions. No waiver of any condition or covenant of this Lease or failure to exercise a remedy by either of the parties hereto shall be considered to imply or constitute a further waiver by such party of the same or any other condition, covenant or remedy. 24. Notices. Any notice, demand, request, consent, approval, assignment, assumption or other communication or document required or permitted under this Lease shall be (a) in writing and (b) deemed to have been given upon delivery (or rejection by the addressee) when (i) sent by electronic mail (provided that in addition to electronic mail, the notifying party also provides notice by one of the other acceptable means hereunder) or personally delivered, or (ii) sent by certified or registered mail, postage prepaid, return receipt requested, or (iii) sent by a recognized overnight mail service, or (iv) sent by private courier service, and addressed, if intended for Landlord, to Landlord’s Notice Address, or if intended for Tenant, to Tenant’s Notice Address; provided, however, that in the case of a notice of payment default, the notice will be deemed given upon receipt (or rejection by the addressee). 25. Broker’s Commission. Landlord and Tenant hereby represent and warrant to the other that no broker or finder has been engaged by the party making such representation in connection with any of the transactions contemplated by this Lease or, to its knowledge, is in any way connected with any of such transactions. Each party shall defend, indemnify and hold harmless the other from and against any claim by any broker or finder claiming to have dealt through the indemnitor. 26. Memorandum of Lease. Landlord and Tenant hereby agree, upon the request of either party, to execute a short form of Memorandum of Lease, in form suitable for recording under the laws of the State in which the Development is located, in form substantially as set forth on Exhibit F attached hereto. Tenant, at its sole expense, shall have the right to file the Memorandum of Lease of record in Dakota County, Minnesota. 27. General. Section 27.1 Governing Law. This Lease shall be governed according to the laws of the State of Minnesota. Section 27.2 Effectiveness. The furnishing of the form of this Lease shall not constitute an offer and this Lease shall become effective only upon execution and delivery by each party hereto. 42 Section 27.3 Complete Understanding. This Lease represents the complete understanding between the parties hereto as to the subject matter hereof, and supersedes all prior written or oral negotiations, representations, warranties, statements or agreements between the parties hereto as to the same. No inducements, representations, understandings or agreements have been made or relied upon in the making of this Lease, except those specifically set forth in this Lease, including without limitation by cross-references herein to the Construction Management Agreement, the Guaranty, the Partial Assignment of Purchase Agreement, the REA, and the Development Agreement. Neither party hereto has any right to rely on any other prior or contemporaneous representation made by anyone concerning this Lease which is not set forth herein. Section 27.4 Amendment. This Lease may be amended only by an instrument executed and delivered by each party hereto. Section 27.5 Severability. No determination by any court, governmental body or otherwise that any provision of this Lease is invalid or unenforceable in any instance shall affect the validity or enforceability of any other such provision, or such provision in any circumstance not controlled by such determination. Each such provision shall be valid and enforceable to the fullest extent allowed by, and shall be construed wherever possible as being consistent with, Applicable Laws. Section 27.6 Force Majeure. (a) For the purposes of this Lease, “Force Majeure” shall mean: (i) matters beyond the reasonable control of a party responsible for a particular action (including, by means of example and not as limitation, general unavailability or moratorium on the issuance of required governmental approvals, delays in submittals of permit applications, delays in the governmental issuance of permits or temporary or final certificates of occupancy, unforeseeable governmental delays or restrictions not caused by the party responsible for the particular action, strikes, lockouts not caused by the party responsible for the particular action, labor unrest, inability to obtain materials or energy sources, abnormally inclement weather, acts of God and fire, or other casualties not caused by the party responsible for the particular action or any other conditions beyond the party’s reasonable control); and (ii) plague, epidemic, pandemic, contagion, outbreaks of infectious disease, the coronavirus [COVID-19] pandemic, or any other public health crisis, and shall include any quarantine, stay-at-home orders, operational restrictions or shutdowns, construction-related restrictions, slowdowns or stoppages, or any other measure taken by any government authority in response thereto, including without limitation, any related travel restrictions or embargoes (collectively a “Public Health Event”); and 43 (iii) economic or political conditions or events that result in a significant decline in economic activity spread across the economy, such as a temporary or long term liquidity crisis or major recession (an “Economic Crisis Event”). In the event of an Economic Crisis Event that is anticipated to continue for more than 365 days or, in fact, continues for more than 365 days, Tenant shall have the right to terminate this Lease by written notice to Landlord. Landlord and Tenant agree that this agreement regarding an Economic Crisis Event shall be of no further force and effect and will not be considered a Force Majeure event at such time as Landlord’s Work and Tenant’s Work is substantially complete. (b) A specific Force Majeure event shall excuse performance of a particular action only for so long as such matters actually and directly cause delay in the party’s performance of its obligations or satisfying any condition under this Lease. If either party shall be prevented or delayed from punctually performing any obligations or satisfying any condition under this Lease as set forth in the immediately preceding sentence, then the time for such performance or satisfaction of the specific matter in question shall be deemed extended on a day-for-day basis for the period of the delay caused by such applicable Force Majeure event. Except as expressly provided herein, lack of funds and the inability to obtain internal approvals shall in no event be deemed to be Force Majeure. Landlord or Tenant shall not be entitled to rely upon this Section 27.6 unless it shall first have given notice to the other party of the existence of any Force Majeure event preventing the performance of an obligation or satisfaction of any condition of the party claiming Force Majeure within thirty (30) days after the commencement of the Force Majeure event. Notwithstanding anything to the contrary in this Lease, a party may provide the notice required under this Section 27.6 via email to the other party provided that a hard copy of such notice is sent via one of the permitted methods set forth in Section 24 of this Lease as soon as is reasonably practicable under the circumstances: if to Tenant: kbroyles@lt.life and to PropertyManagement@lt.life and, if to Landlord: Logan.Martin @ci.rosemount.mn.us. The party claiming the benefit of this Section 27.6 shall take such reasonable measures as applicable under the circumstances to mitigate the effects of such Force Majeure event. (c) From and after the Bond Issuance Date, all Rent hereunder will continue to be due and owing notwithstanding the occurrence of a Force Majeure event. Section 27.7 Anti-Terrorism. Landlord shall not assign this Lease to a party who, or whose officers, directors, or controlling shareholders, partners or members, is or are a “blocked person” identified on the list kept by the U.S. Treasury Department’s Office of Foreign Assets (“OFAC”). Neither Landlord nor any person holding a direct or indirect ownership interest in Landlord is described in, covered by or specially designated pursuant to, or affiliated with any person described in, covered by or specially designated pursuant to, any Anti-Terrorism Law or any list issued by any department or agency of the United States of America in connection with any Anti-Terrorism Law. For purposes hereof, “Anti-Terrorism Law” shall mean Executive Order 13224, as amended; the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701-06 et seq.; the Iraqi Sanctions Act, Pub.L. 101-513, 104 Stat. 2047-55; the United Nations 44 Participation Act, 22 U.S.C. Section 287c; the Antiterrorism and Effective Death Penalty Act; the International Security and Development Cooperation Act, 22 U.S.C. Section 2349 aa-9; the Terrorism Sanctions Regulations, 31 C.F.R. Part 595; the Terrorism List Governments Sanctions Regulations, 31 C.F.R. Part 596; and the Foreign Terrorist Organizations Sanctions Regulations, 31 C.F.R. Part 597. The foregoing restrictions shall not be applicable to the shareholders of public companies. Tenant shall not assign this Lease to a party who, or whose officers, directors, or controlling shareholders, partners or members, is or are a “blocked person” identified on the list kept by OFAC. Neither Tenant nor any person holding a direct or indirect ownership interest in Tenant is described in, covered by or specially designated pursuant to, or affiliated with any person described in, covered by or specially designated pursuant to, any Anti-Terrorism Law or any list issued by any department or agency of the United States of America in connection with any Anti-Terrorism Law. The foregoing restrictions shall not be applicable to the shareholders of public companies. Section 27.8 Survival of Obligations. Any obligations of Landlord or Tenant accruing prior to the expiration or earlier termination of this Lease, or otherwise expressly surviving the expiration or earlier termination of this Lease, shall survive such expiration or earlier termination of this Lease, and Landlord or Tenant shall promptly perform all such obligations whether or not this Lease has expired or been terminated. Section 27.9 Captions. All captions, headings, titles, numerical references and computer highlighting are for convenience only and shall have no effect on the interpretation of this Lease. Section 27.10 Number and Gender. All terms and words used in this Lease, regardless of the number or gender in which they are used, shall be deemed to include the appropriate number and gender, as the context may require. Section 27.11 Consent. Except as otherwise expressly provided herein to the contrary, wherever in this Lease a party’s consent is required, such consent shall not be unreasonably withheld, delayed or conditioned. Section 27.12 Counterparts/Lease Signing/Authority. This Lease may be executed separately and in counterparts, which, when taken together, shall constitute one and the same instrument. Any counterpart of this Lease may be executed and delivered by electronic transmission (including, without limitation, in portable document format (pdf) transmitted by email) and shall have the same force and effect as an original, provided that either party may request an original signature of the Lease from the other party. Each signatory of this Lease represents that she or he has the authority to execute and deliver the same on behalf of the party for which such signatory is acting, and that upon the execution by such signatory and delivery to the counterparty, this Lease is binding on behalf of the party for which such signatory is acting and enforceable against such party and its successors and assigns in accordance with its terms. This Lease is not in full force until the execution and delivery of this Lease by both parties. 45 Section 27.13 Lease Guaranty. Concurrently with the execution and delivery of this Lease by Tenant, Tenant shall deliver the Guaranty attached hereto as Exhibit G executed by Guarantor. Section 27.14 Data Practices Act Compliance. Data Practices Act Compliance. Any and all data provided to Tenant, received from Tenant, created, collected, received, stored, used, maintained, or disseminated by Tenant pursuant to this Agreement shall be administered in accordance with, and is subject to the requirements of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13. This paragraph does not create a duty on the part of Tenant to provide access to public data to the public if the public data are available from Landlord. Section 27.15 Prevailing Parties. In any action brought by any party to this Lease in enforcing the terms and conditions hereof, the prevailing party in an adjudicated dispute shall be entitled to recover its reasonable attorneys’ fees, at the hourly rate in effect for Landlord’s appointed legal counsel, and costs from the non-prevailing party. Section 27.16 Relationship of Parties. Nothing herein contained shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that no provision contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of landlord and tenant. This Lease shall not confer rights or benefits, including third-party beneficiary rights or benefits to anyone that is not a named party to this Lease, including any individual, corporation, partnership, trust, unincorporated organization, governmental organization or agency or political subdivision. The provisions of this Section 27.16 shall survive the expiration or earlier termination of this Lease. Section 27.17 Construction. The rule of construction that a document should be construed most strictly against the party which prepared the document shall not be applied, because both parties have participated in the preparation of this Lease. The necessary grammatical changes required to make the provisions of this Lease apply in the plural sense where there is more than one tenant and to either corporations, associations, partnerships or individuals, males or females, shall, in all instances, be assumed as though fully expressed. The captions used in this Lease are for convenience only and do not in any way limit or amplify the terms and provisions hereof. The printed provisions of this Lease and written or typed additions shall be given equal weight for the interpretation of this Lease. The provisions of this Section 27.17 shall survive the expiration or earlier termination of this Lease. Section 27.18 Successors and Assigns; No Third Party Beneficiaries. The covenants, conditions and terms of this Lease shall be binding upon and shall inure to the benefit of the permitted successors and assigns of the parties hereto. This Lease and the provisions hereof are only for the benefit of the parties hereto, their respective permitted successors and assigns and are not for the benefit of any third party. Section 27.19 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or 46 letter accompanying the payment of any Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such Rent or pursue any other remedy provided for in this Lease or available at law or in equity. [Signature Pages to Follow] 47 IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the date written below. LANDLORD: ROSEMOUNT PORT AUTHORITY, a Minnesota body corporate and politic Date of Signing: April _______, 2023 By: Name: Its: [Tenant Signature Page to Follow] 48 TENANT: LTF LEASE COMPANY, LLC, a Delaware limited liability company Date of Signing: April _______, 2023 By: Name: Its: A-1 EXHIBIT A-1 LEGAL DESCRIPTION OF DEVELOPMENT PARCEL As of the Development Parcel Acquisition Date: Real property located in the County of Dakota, State of Minnesota, legally described as follows: Lot 1, Block 1 and Outlots A, B and C, Prestwick Place 23rd Addition, according to the recorded plat thereof. A-2 EXHIBIT A-2 LEGAL DESCRIPTION OF LEASE PARCEL As of the Development Parcel Acquisition Date: Real property located in the County of Dakota, State of Minnesota, legally described as follows: Lot 1, Block 1, Prestwick Place 23rd Addition, according to the recorded plat thereof. B-1 EXHIBIT B-1 DEVELOPMENT PARCEL SITE PLAN B-1-1 EXHIBIT B-2 LEASE PARCEL SITE PLAN B-2-1 EXHIBIT B-3 BUILDING FLOOR PLAN C-1 EXHIBIT C PERMITTED ENCUMBRANCES 1. REA. 2. Memorandum of Lease. 3. Easement for pipeline purposes in favor of Northern Natural Gas Company, as contained and described in the following: A) Easement dated August 22, 1940, recorded September 6, 1940 as Document No. 157379 in Book 48 of Miscellaneous at Page 388; B) Conveyance, Assignment and Bill of Sale dated December 31, 1990, recorded April 30, 1992 as Document No. 1041083; and C) Modification and Amendment of Easement Grant dated April 9, 2002, recorded July 18, 2002 as Document No. 1917503. 4. Easement for electric transmission line purposes in favor of Northern States Power Company, as contained and described in the following: A) Easement dated September 10, 1942, recorded October 8, 1942 as Document No. 165951 in Book 51 of Miscellaneous at Page 94; B) Assignment and Assumption of Easements dated December 29, 2000, recorded August 23, 2001 as Document No. 1805118; C) Partial Release of Easement recorded June 13, 2019 as Document No. 3309512; D) Corrected Partial Release of Easement recorded December 17, 2019 as Document No. 3343698; and E) Corrected Partial Release of Easement recorded December 24, 2019 as Document No. 3345326. 5. Easements for drainage and utility purposes in favor of the City of Rosemount, Minnesota, as contained and described in the Easements dated October 21, 2003, recorded January 18, 2005 as Document No. 2285919. 6. Drainage and utility easements shown and dedicated on the Plat. 7. Development Agreement. D-1 EXHIBIT D SIGNAGE/TRADE DRESS D-2 E-1 EXHIBIT E LIST OF PROHIBITED USES OF PREMISES No portion of the Premises shall be used for any of the following uses or purposes: (a) motor vehicle service, fuel or gas stations, motor vehicle repairs including without limitation any body and fender repair work, car washes, or the displaying, renting, leasing, or sale of any automobile, truck, boat, trailer or other motor or recreational vehicle that is not entirely conducted inside of a building; (b) a venture whose primary business is operation of video or arcade games; (c) adult book or video store; (d) warehouse or industrial use; (e) self-storage facility; (f) liquor store, (g) establishment for the sale of guns or other firearms; (h) tattoo or piercing parlor; (i) so-called “head shops,” which are defined as facilities primarily used for selling products intended to assist, aid, or used in conjunction with the consumption of illegal drugs; (j) sale or provision of marijuana, whether for therapeutic, medicinal or other purposes; (k) any public or private nuisance; (l) any obnoxious odor except customary odors emanating from restaurants; (m) any fire, explosion or other damaging or dangerous hazard, including the storage, display, or sale of explosives or fireworks; (n) any distillation (other than so-called micro-brewing of beer), refining, smelting, agriculture or mining operations; (o) any mobile home or trailer court, labor camp, junk yard, stock yard or animal raising; provided, however, that, notwithstanding the foregoing, pet shops shall be permitted; (p) any drilling for and/or removal of subsurface substances; E-2 (q) any dumping of garbage or refuse, other than in enclosed receptacles intended for such purpose; (r) any cemetery, mortuary or similar service establishment; (s) any fire sale, bankruptcy sale (unless pursuant to a court order) or auction operation; (t) any church, synagogue, mosque or other place of worship or other religious use; (u) any second-hand or thrift stores, or flea markets; (v) any dry cleaning facilities utilizing hazardous substances with an on- premises plant; provided, however, that nothing contained herein shall preclude a drop- off/pick-up dry cleaning business as long as no cleaning services are conducted at such location; (w) warehousing or storage facilities of any kind unless incidental to another use permitted on the premises; (x) call center or similar use; and (y) use or occupancy of a building by a discount or reduced-price general or specialty retailer or merchandiser, including, but not limited to, Wal-Mart, K-Mart, Sam’s Club, T. J. Maxx, or Marshall’s. F-1 EXHIBIT F MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE, dated as of April _____, 2023, by and between ROSEMOUNT PORT AUTHORITY, a Minnesota body corporate and politic (hereinafter called “Landlord”), and LTF LEASE COMPANY, LLC., a Delaware limited liability company (hereinafter called “Tenant”): WITNESSETH: A. Landlord and Tenant have entered into that certain Lease dated April ___, 2023 (“Lease”) relating to certain leased premises (“Premises”) adjacent to and part of a development known as Prestwick Place 23rd Addition (“Development”), situated on certain real property in the City of Rosemount, Dakota County, Minnesota, legally described on Exhibit A attached hereto. B. Landlord and Tenant now wish to memorialize of record that existence of the Lease and certain specific terms of the same. NOW THEREFORE, in consideration of the Lease and other good and valuable consideration, Landlord and Tenant agree as follows: 1. Landlord and Tenant have entered in to the Lease effective as of April _____, 2023, to demise and let the Premises upon the terms and conditions more particularly set forth in the Lease. 2. The Lease term shall be for an initial term of three hundred sixty (360) consecutive calendar months commencing on the Possession Date, as such term is defined in the Lease. 3. Subject to the terms and conditions more particularly set forth in the Lease, Tenant has the option to extend the term of the Lease for two (2) consecutive periods of sixty (60) calendar months each, with the first Renewal Term commencing upon expiration of the Initial Term, and subsequent Renewal Terms commencing upon expiration of the preceding Renewal Term. 4. Landlord grants to Tenant, its employees, licensees, invitees and guests, (i) the nonexclusive right to use during the Term of the Lease any easement areas which may from time to time exist within, or for the benefit of the Development as set forth in the REA, (ii) the nonexclusive right to use the drive aisles and other easement areas as set forth in the REA; and (iii) a non-exclusive easement for vehicular and pedestrian ingress and egress over and through the drive lanes and parking areas of the Development as set forth in the REA. 5. Except as otherwise indicated herein, capitalized terms used in this Memorandum are defined as set forth in the Lease. 6. The sole purpose of this instrument is to give notice of said Lease and all of its terms, covenants, and conditions to the same extent as if said Lease were set forth herein. F-2 7. This Memorandum of Lease is not intended to cover all the terms and conditions of the Lease and is not to be construed as restricting, enlarging, modifying or amending the Lease. Both Landlord and Tenant possess executed counterparts of the Lease to which reference is made for the exact terms, provisions and conditions. 8. The conditions, covenants and agreements contained in this instrument shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns. In the event of any conflict between the terms and conditions of this instrument and the term and conditions of the Lease, it is agreed that the terms and conditions of the Lease shall control. F-3 IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the day and year first above written. LANDLORD: ROSEMOUNT PORT AUTHORITY, a Minnesota body corporate and politic Date of Signing: April ________, 2023 By: Name: Its: STATE OF MINNESOTA ) ) SS: COUNTY OF ) The foregoing Memorandum of Lease was acknowledged before me this ____ day of April, 2023, by ________________________________, the __________________ of the Rosemount Port Authority, a Minnesota body corporate and politic, on behalf of the authority. Notary Public [Tenant Signature Page to Follow] F-4 TENANT: LTF LEASE COMPANY, LLC, a Delaware limited liability company Date of Signing: April ____, 2023 By: Name: Its: STATE OF MINNESOTA ) ) SS: COUNTY OF ) The foregoing Memorandum of Lease was acknowledged before me this ____ day of April 2023, by _______________________________, the __________________________ of LTF LEASE COMPANY, LLC, a Delaware limited liability company, on behalf of the company. Notary Public This instrument was prepared by: Dorsey & Whitney LLP (MAM) 50 South 6th Street, Suite 1500 Minneapolis, MN 55402 F-5 EXHIBIT A LEGAL DESCRIPTION Lot 1, Block 1, Prestwick Place 23rd Addition, Dakota County, Minnesota, according to the recorded plat thereof. G-1 EXHIBIT G TENANT’S PARENT GUARANTY As a material inducement to ROSEMOUNT PORT AUTHORITY, a Minnesota body corporate and politic (“Landlord”) to enter into the attached Lease (the “Lease”), between LTF LEASE COMPANY, LLC, a Delaware limited liability company (“Tenant”), and Landlord, LIFE TIME, INC., a Minnesota corporation (the “Tenant Guarantor”), hereby unconditionally and irrevocably guarantees the complete and timely payment of all Rents when and as the same shall become due, and other sums payable by Tenant under the Lease and performance of each obligation of Tenant under the Lease and under the terms of any Leasehold Mortgage (as defined in the Lease). This Guaranty is an absolute, primary, and continuing, guaranty of payment and performance of Tenant’s obligations in accordance with the terms of the Lease and under the terms of any Leasehold Mortgage (as defined in the Lease). Tenant Guarantor waives any right to require Landlord to (a) join Tenant with Tenant Guarantor in any suit arising under this Guaranty, (b) proceed against or exhaust any security given to secure Tenant’s obligations under the Lease, or (c) pursue or exhaust any other remedy in Landlord’s power. Until all of Tenant’s obligations to Landlord have been discharged in full, Tenant Guarantor shall have no right of subrogation against Tenant. Landlord may, without notice or demand and without affecting Tenant Guarantor’s liability hereunder, from time to time, compromise, extend or otherwise modify any or all of the terms of the Lease, or fail to perfect, or fail to continue the perfection of, any security interests granted under the Lease. Tenant Guarantor hereby waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, dishonor and notices of acceptance of this Guaranty, and waives all notices of existence, creation or incurring of new or additional obligations from Tenant to Landlord. Tenant Guarantor further waives all defenses afforded guarantors or based on suretyship or impairment of collateral under applicable law, other than payment and performance in full of Tenant’s obligations under the Lease. The liability of Tenant Guarantor under this Guaranty will not be affected by (1) the release or discharge of Tenant from, or impairment, limitation or modification of, Tenant’s obligations under the Lease in any bankruptcy, receivership, or other debtor relief proceeding, whether state or federal and whether voluntary or involuntary; or (2) the rejection or disaffirmance of the Lease in any such proceeding. This Guaranty shall be binding upon the heirs, legal representatives, successors and assigns of Tenant Guarantor and shall inure to the benefit of Landlord’s successors and assigns. If Tenant Guarantor is no longer a publicly traded company, Tenant Guarantor agrees to provide to Landlord (a) its unaudited financial statements within sixty (60) days of the end of G-2 Tenant Guarantor’s fiscal year, and (b) its audited financial statements (if any) within one hundred twenty (120) days of the end of Tenant Guarantor’s fiscal year. During the Initial Term (as such term defined in the Lease) of the Lease, Tenant Guarantor shall not consolidate with or merge into another corporation, association, or entity or permit any other corporation, association, or entity to consolidate with or merge into the Tenant Guarantor, unless: (A) Landlord gives its prior written consent, subject to conducting due diligence to determine financial position, capacity, experience, history, bankruptcy or financial filing and the Transferee (defined below) providing access to company records to allow Landlord or its consultant/representative to verify compliance; or (B) This Guaranty is released pursuant to a Permitted Transfer under Section 19 of the Lease; or (C) All of the following conditions are satisfied: (1) the surviving, resulting, or transferee corporation, association, or other entity (a “Transferee”), as the case may be, assumes in writing all of the obligations of the Tenant Guarantor under this Guaranty; (2) the Tenant Guarantor certifies in writing to Landlord that such action will not result in a default under any note or other instrument by which such Tenant Guarantor is bound; and (3) The Transferee has net assets or net equity of ten times the outstanding principal amount the Tenant Portion of Bonds as follows: $230 million in years 1-10 of the Initial Term; $200 million in years 11-15 of the Initial Term; $160 million in years 16-20 of the Initial Term; and $100 million in years 21-30 of the Initial Term. In the event of such sale, transfer, consolidation or merger as permitted (A) or (C) the Tenant Guarantor, if not the surviving corporation, shall be relieved of all its obligations under this Guaranty. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, bankruptcy reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the rights of creditors of Tenant Guarantor, Landlord shall be entitled and empowered by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of principal, premium, if any, and interest owing and unpaid (whether at stated maturity or by acceleration, call for redemption or otherwise) in respect of the Bonds and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Landlord (including G-3 any claim for the reasonable compensation, expenses, disbursements and advances of Landlord, its agents and counsel) allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized to make such payments to the Landlord. The Tenant Guarantor irrevocably: (a) agrees that any suit, action, or other legal proceeding arising out of this Guaranty may be brought in the courts of the State of Minnesota or the courts of the United States for the State of Minnesota; (b) consents to the jurisdiction of each such court in any suit, action, or proceeding; and (c) waives any objection which it may have to the laying of the venue of any suit, action, or proceeding in any of such courts. The Tenant Guarantor further agrees and consents that any such service of process upon it shall be taken and held to be valid personal service upon it whether or not the Guarantor shall then be doing or at any time shall have done, business within the State of Minnesota and that any such service of process shall be of the same force and validity as if service were made upon it according to the laws governing the validity and requirements of such service in such state, and waives all claim or error by reason of any such service, provided that a copy of such notice shall be mailed by registered or certified mail to the Tenant Guarantor at its respective address on file with the Landlord. The invalidity or unenforceability of any one or more phrases, sentences, clauses, or sections in this Guaranty shall not affect the validity or enforceability of the remaining portion of this Guaranty, or any part thereof. This Guaranty is intended to be interpreted in accordance with and governed by the laws of the State of Minnesota. Any notice, demand, or request by the Landlord to the Tenant Guarantor shall be in writing and shall be deemed to have been duly given or made to the Tenant Guarantor if either delivered personally to the Tenant Guarantor or if mailed by registered or certified mail to the Tenant Guarantor at the following address on file with the Landlord: Life Time, Inc. 2900 Corporate Place Chanhassen, MN 55317 Attn: Kari Broyles with a copy to: Life Time, Inc. 2900 Corporate Place Chanhassen, MN 55317 Attn: Property Management Notice so mailed shall be deemed given and made upon deposit in the United States mail. G-4 LIFE TIME, INC. By: Name: Title: H-1 EXHIBIT H BASE RENT SCHEDULE I-1 EXHIBIT I FORM LETTER OF CREDIT U.S. Bank National Association Global Trade & Standby Services BC-MN-H20G 800 Nicollet Mall Minneapolis, Minnesota 55402 SWIFT: USBKUS44 Phone: 612-303-7395 612-303-7374 Fax : 612-303-5226 This is a draft for discussion purposes only. It does not represent a liability of the bank at this time. Any letter of credit issued will be printed on bank letterhead. IRREVOCABLE LETTER OF CREDIT NUMBER _____________ ISSUING BANK: U.S. BANK NATIONAL ASSOCIATION 800 NICOLLET MALL MINNEAPOLIS, MN 55402 ATTN: STANDBY L/C DEPT. BC-MN-H20G DATE OF ISSUANCE: EXPIRY DATE: _____________ AMOUNT: $__________ PLACE: ____________________ BENEFICIARY: APPLICANT: ROSEMOUNT PORT AUTHORITY [LT ENTITY] 2875 145TH STREET WEST 2900 CORPORATE PLACE ROSEMOUNT, MN 55068-4997 CHANHASSEN, MN 55317 Issuance. At the request and for the account of [LT Entity], 2900 Corporate Place, Chanhassen, MN 55317 ("Account Party"), we U.S. Bank National Association, 800 Nicollet Mall, Minneapolis, Minnesota 55402, Attn: Standby L/C Dept. BC-MN-H20G ("Issuer") issue this irrevocable standby letter of credit number [reference number] ("Standby") in favor of the Rosemount Port Authority, 2875 145th Street West, Rosemount, MN 55068-4997 ("Beneficiary") in the maximum aggregate amount of [currency/amount]. Undertaking. Issuer undertakes to Beneficiary to pay Beneficiary's demand for payment in the currency and for an amount available under this Standby and in the form of the Annexed Payment Demand completed as indicated and presented to Issuer at the following place for presentation: U.S. Bank National Association, 800 Nicollet Mall, Minneapolis, Minnesota 55402, Attn: Standby L/C Dept. BC-MN-H20G, on or before the expiry date. I-2 Expiration. The Expiry Date of this Standby is [date]. This Standby shall automatically renew for one (1) year periods from the then current Expiry Date unless Issuer gives written notice of non- renewal to Account Party and Beneficiary at least thirty (30) days prior to the expiry thereof. Payment. Payment against a complying presentation shall be made within 3 business days after presentation by wire transfer to a duly requested account of Beneficiary. An advice of such payment shall be sent to Beneficiary's above-stated address. Drawing. Partial and multiple drawings are permitted. ISP98. This Standby is issued subject to the International Standby Practices 1998 (ISP98) (International Chamber of Commerce Publication No. 590) and U.S. Bank National Association’s obligations under this Standby are governed by the laws of the state of New York. The courts located in the state of New York shall have exclusive jurisdiction over any action to enforce U.S. Bank National Association’s obligation under this Standby. Issuer disclaims liability for any delay, non-return of documents, non-payment, or other action or inaction compelled by a judicial order or government regulation applicable to Issuer. IF CANCELLATION OF THIS LETTER OF CREDIT IS REQUIRED BEFORE THE EXPIRY DATE STATED HEREIN AS EXTENDED FROM TIME TO TIME, THE ORIGINAL OF THIS LETTER OF CREDIT (AND ANY AMENDMENTS) MUST BE RETURNED TO US ACCOMPANIED BY THE ORIGINALBENEFICIARY LETTER REQUESTING CANCELLATION IN THE FORM ATTACHED HERETO AS ATTACHMENT "A." THIS LETTER OF CREDIT CAN BE REDUCED WITHOUT AMENDMENT FROM TIME TO TIME UPON RECEIVING AN ORIGINAL REDUCTION CERTIFICATE IN THE FORM OF ATTACHMENT "A." U.S. Bank National Association DRAFT Authorized Signature Authorized Signature, Applicant as authorization to issue in this form I-3 Annexed Payment Demand [INSERT DATE] The undersigned Beneficiary demands payment of [INSERT CURRENCY/AMOUNT] under the Standby. Beneficiary states that: [Account Party is obligated to pay the Beneficiary the amount demanded under [or in connection with] the agreement between Beneficiary and Account Party titled [Lease between the Account Party and the Beneficiary][Site Development Agreement between the Account Party and the Beneficiary] and dated [date].] Beneficiary requests that payment be made by wire transfer to an account of Beneficiary as follows: [INSERT NAME, ADDRESS, AND ROUTING NUMBER OF BENEFICIARY'S BANK, AND NAME AND NUMBER OF BENEFICIARY'S ACCOUNT]. BENEFICIARY: ROSEMOUNT PORT AUTHORITY 2875 145TH STREET WEST ROSEMOUNT, MN 55068-4997 By its authorized officer: [INSERT ORIGINAL SIGNATURE] [INSERT TYPED/PRINTED NAME AND TITLE] *[Before the standby is issued, all text in [bold] should be completed, and optional text in [italics] should be included or deleted (or redrafted). Text in the annexed demand form preceded by "INSERT" (or other ALL CAPITALS guidance) and in [ALL CAPITALS. UNDERLINED] is to be completed as indicated when the beneficiary prepares and presents a demand.] I-4 THIS ATTACHMENT "A" IS AN INTEGRAL PART OF OUR LETTER OF CREDIT NO. __________ ATTACHMENT "A" DATE: ISSUING BANK: U.S. BANK NATIONAL ASSOCIATION 800 NICOLLET MALL MINNEAPOLIS, MN 55402 ATTN: STANDBY L/C DEPT. BC-MN-H20G FROM: [LT ENTITY] 2900 CORPORATE PLACE CHANHASSEN, MN 55317 AND ROSEMOUNT PORT AUTHORITY 2875 145TH STREET WEST ROSEMOUNT, MN 55068-4997 REF: LETTER OF CREDIT #____________________ AS PARTIES TO THE ABOVE-REFERENCED LETTER OF CREDIT, WE REQUEST THAT THE FOLLOWING ACTION(S) BE TAKEN AS EVIDENCED BY OUR INITIALS AND SIGNATURES BELOW: PLEASE INITIAL: ______________ REDUCE THE AMOUNT FROM $__________ TO $__________ ______________ CANCEL THIS LETTER OF CREDIT EFFECTIVE IMMEDIATELY. ENCLOSED HEREWITH ARE THE ORIGINAL LETTER OF CREDIT DOCUMENTS, INCLUDING ANY AMENDMENTS THERETO. AUTHORIZATION: ROSEMOUNT PORT AUTHORITY [LT ENTITY] BY: BY: NAME: NAME: TITLE: TITLE: J-1 EXHIBIT J LANDLORD’S WORK PLAN PAGE & DESCRIPTION SEQUENCE OF DATED REVISIONS PLAN PAGE INDEX OF DRAWINGS Permit & Bid 03/24/23 CIVIL SHEETS C000 COVER SHEET 3/24/2023 C100 GENERAL NOTES 3/24/2023 V100 ALTA/NSPS LAND TITLE SURVEY 3/24/2023 V101 PRELIMINARY PLAT 3/24/2023 V102 FINAL PLAT 3/24/2023 C200 DEMO PLAN 3/24/2023 C300 EROSION AND SEDIMENT CONTROL PLAN - PHASE I 3/24/2023 C301 EROSION AND SEDIMENT CONTROL PLAN - PHASE II 3/24/2023 C302 EROSION AND SEDIMENT CONTROL DETAILS 3/24/2023 C303 SWPPP NOTES 3/24/2023 C400 OVERALL SITE PLAN PHASE I 3/24/2023 C401 SITE PLAN ENLARGEMENT PHASE I 3/24/2023 C402 SITE PLAN ENLARGEMENT PHASE I 3/24/2023 C403 SITE PLAN ENLARGEMENT PHASE I 3/24/2023 C404 SITE PLAN ENLARGEMENT PHASE I 3/24/2023 C405 OVERALL SITE PLAN PHASE II 3/24/2023 C406 SITE PLAN ENLARGEMENT PHASE II 3/24/2023 C407 SITE DETAILS 3/24/2023 C408 SITE DETAILS 3/24/2023 C500 OVERALL GRADING PLAN PHASE I 3/24/2023 C501 GRADING PLAN ENLARGEMENT PHASE I 3/24/2023 C502 GRADING PLAN ENLARGEMENT PHASE I 3/24/2023 C503 GRADING PLAN ENLARGEMENT PHASE I 3/24/2023 C504 GRADING PLAN ENLARGEMENT PHASE I 3/24/2023 C505 OVERALL GRADING PLAN PHASE II 3/24/2023 C506 GRADING PLAN ENLARGEMENT PHASE II 3/24/2023 C507 STORM SEWER PROFILE 3/24/2023 C508 STORM SEWER PROFILE 3/24/2023 C509 STORM SEWER PROFILE 3/24/2023 C510 STORM SEWER PROFILE 3/24/2023 C511 GRADING DETAILS 3/24/2023 C512 TYPICAL SECTIONS 3/24/2023 C600 OVERALL UTILITY PLAN PHASE I 3/24/2023 C601 UTILITY PLAN ENLARGEMENT PHASE I 3/24/2023 C602 UTILITY PLAN ENLARGEMENT PHASE I 3/24/2023 C603 UTILITY PLAN ENLARGEMENT PHASE I 3/24/2023 J-2 C604 UTILITY PLAN ENLARGEMENT PHASE I 3/24/2023 C605 OVERALL UTILITY PLAN PHASE II 3/24/2023 C606 UTILITY PLAN ENLARGEMENT PHASE II 3/24/2023 C607 WATERMAIN PROFILE 3/24/2023 C608 WATERMAIN PROFILE 3/24/2023 C609 WATERMAIN PROFILE 3/24/2023 C610 UTILITY DETAILS 3/24/2023 ARCHITECTURAL SHEETS G001 TITLE SHEET - VOLUME 1 3/24/2023 G002 TITLE SHEET - VOLUME 2 3/24/2023 G003 CODE INFORMATION 3/24/2023 G004 OCCUPANCY TABLES 3/24/2023 G030 SIGNAGE AND ACCESSIBILITY STANDARDS 3/24/2023 G100 CODE PLAN - SITE PLAN 3/24/2023 G100-A CODE PLAN - OUTDOOR POOL DECK AND KIDS PLAY 3/24/2023 G101 CODE PLAN - FIRST FLOOR 3/24/2023 G102 CODE PLAN - SECOND FLOOR 3/24/2023 G110 ACCESSIBILITY PLAN - OUTDOOR POOL 3/24/2023 G111 ACCESSIBILITY PLAN - FIRST FLOOR 3/24/2023 G112 ACCESSIBILITY PLAN - SECOND FLOOR 3/24/2023 G130 CEILING PLENUM AND FIREPROOFING KEY PLANS 3/24/2023 G510 FIRESTOP DETAILS 3/24/2023 G511 FIRESTOP DETAILS 3/24/2023 G520 FIRE RESISTIVE CONSTRUCTION 3/24/2023 G521 FIRE RESISTIVE CONSTRUCTION 3/24/2023 G522 FIRE RESISTIVE CONSTRUCTION 3/24/2023 G523 FIRE RESISTIVE CONSTRUCTION 3/24/2023 G524 FIRE RESISTIVE CONSTRUCTION 3/24/2023 G532 TYPICAL MOUNTING DETAILS 3/24/2023 AS100 SITE PLAN 3/24/2023 AS101 SITE PLAN - OUTDOOR POOL DECK 3/24/2023 AS401 ENLARGED PLAN - OUTDOOR PLAY AREA AND FRONT ENTRY 3/24/2023 AS411 ENLARGED DRAINAGE PLAN - OUTDOOR POOL AREA 3/24/2023 AS500 SITE DETAILS 3/24/2023 AS501 SITE DETAILS 3/24/2023 AS502 SITE DETAILS - TRASH ENCLOSURE 3/24/2023 AS503 SITE DETAIL - MONUMENT SIGNS 3/24/2023 A101 FLOOR PLAN - FIRST FLOOR 3/24/2023 A102 FLOOR PLAN - SECOND FLOOR 3/24/2023 A109 ROOF PLAN 3/24/2023 A110 WATERPROOFING KEY PLANS 3/24/2023 A111 DRAINAGE PLANS 3/24/2023 A121 REFLECTED CEILING PLAN - FIRST FLOOR 3/24/2023 A122 REFLECTED CEILING PLAN - SECOND FLOOR 3/24/2023 A131 FINISH PLAN - FIRST FLOOR 3/24/2023 J-3 A132 FINISH PLAN - SECOND FLOOR 3/24/2023 A141 CASEWORK & STONE PLAN - FIRST FLOOR 3/24/2023 A142 CASEWORK & STONE PLAN - SECOND FLOOR 3/24/2023 A150 FURNITURE AND EQUIPMENT PLAN - OUTDOOR POOL DECK 3/24/2023 A151 FURNITURE AND EQUIPMENT PLAN - FIRST FLOOR 3/24/2023 A152 FURNITURE AND EQUIPMENT PLAN - SECOND FLOOR 3/24/2023 A200 EXTERIOR ELEVATIONS 3/24/2023 A211 EXTERIOR ELEVATIONS - MOCK-UP PANEL DETAILS 3/24/2023 A300 BUILDING SECTIONS 3/24/2023 A301 BUILDING SECTIONS 3/24/2023 A310 EXTERIOR WALL SECTIONS - SOUTH ELEVATION 3/24/2023 A311 EXTERIOR WALL SECTIONS - SOUTH ELEVATION 3/24/2023 A312 EXTERIOR WALL SECTIONS - WEST ELEVATION 3/24/2023 A313 EXTERIOR WALL SECTIONS - NORTH & EAST ELEVATION 3/24/2023 A330 VERTICAL CIRCULATION 3/24/2023 A331 VERTICAL CIRCULATION 3/24/2023 A332 VERTICAL CIRCULATION 3/24/2023 A401-0 ENLARGED MASONRY PLANS - MENS AND WOMENS LOCKER 3/24/2023 A401-1 ENLARGED PLAN - ENTRY 3/24/2023 A401-2 ENLARGED PLAN - LIFE CAFE 3/24/2023 A401-3 ENLARGED PLAN - MEN'S LOCKER 3/24/2023 A401-4 ENLARGED PLAN - LIFE SPA 3/24/2023 A401-5 ENLARGED PLAN - WOMEN'S LOCKER AND FAMILY LOCKERS 3/24/2023 A401-6 ENLARGED PLAN - KIDS ACADEMY 3/24/2023 A401-7 ENLARGED PLAN - KIDS ACADEMY AND BOH 3/24/2023 A402-1 ENLARGED PLAN - PILATES AND YOGA 3/24/2023 A402-2 ENLARGED PLAN - STUDIOS 3/24/2023 A402-3 ENLARGED PLAN - GYM 3/24/2023 A402-4 ENLARGED PLAN - RECOVERY 3/24/2023 A411-1 ENLARGED DRAINAGE PLANS - FIRST FLOOR 3/24/2023 A411-2 ENLARGED DRAINAGE PLANS - LIFE CAFE 3/24/2023 A411-3 ENLARGED DRAINAGE PLANS AND INTERIOR DRAINAGE DETAI 3/24/2023 A421-1 ENLARGED RCP - ENTRY 3/24/2023 A421-2 ENLARGED RCP - LIFE CAFÉ, CAFÉ AND BAR 3/24/2023 A421-3 ENLARGED RCP - MEN'S LOCKER 3/24/2023 A421-4 ENLARGED RCP - LIFE SPA 3/24/2023 A421-5 ENLARGED RCP - WOMEN'S LOCKER AND FAMILY LOCKERS 3/24/2023 A421-6 ENLARGED RCP - KIDS ACADEMY 3/24/2023 A421-7 ENLARGED RCP - KIDS ACADEMY 3/24/2023 A422-1 ENLARGED RCP - PILATES AND YOGA 3/24/2023 A422-2 ENLARGED RCP - STUDIOS 3/24/2023 A422-3 ENLARGED RCP - LT RECOVERY AND GRAND STAIRS 3/24/2023 A431-1 ENLARGED FINISH PLAN - ENTRY 3/24/2023 A431-2 ENLARGED FINISH PLAN - LIFE CAFE 3/24/2023 A431-3 ENLARGED FINISH PLAN - MEN'S LOCKER 3/24/2023 J-4 A431-4 ENLARGED FINISH PLAN - LIFE SPA 3/24/2023 A431-5 ENLARGED FINISH PLAN - WOMEN'S LOCKER AND FAMILY LOC 3/24/2023 A431-6 ENLARGED FINISH PLAN - KIDS ACADEMY 3/24/2023 A431-7 ENLARGED FINISH PLAN - KIDS ACADEMY 3/24/2023 A432-1 ENLARGED FINISH PLAN - PILATES AND YOGA 3/24/2023 A432-2 ENLARGED FINISH PLAN - STUDIOS 3/24/2023 A432-3 ENLARGED FINISH PLAN - GYM 3/24/2023 A432-4 ENLARGED FINISH PLAN - PT DESK AND RECOVERY 3/24/2023 A441-1 ENLARGED CASEWORK AND STONE PLAN - ENTRY 3/24/2023 A441-2 ENLARGED CASEWORK AND STONE PLAN - LIFE CAFE 3/24/2023 A441-3 ENLARGED CASEWORK AND STONE PLAN - MEN'S LOCKER 3/24/2023 A441-4 ENLARGED CASEWORK AND STONE PLAN - LIFE SPA 3/24/2023 A441-5 ENLARGED CASEWORK AND STONE PLAN - WOMEN'S LOCKER 3/24/2023 A441-6 ENLARGED CASEWORK AND STONE PLAN - KIDS ACADEMY 3/24/2023 A471-1 INTERIOR ELEVATIONS - ENTRY AND ADMIN 3/24/2023 A471-2 INTERIOR ELEVATIONS - LIFE CAFE 3/24/2023 A471-3 INTERIOR ELEVATIONS - LIFE CAFE 3/24/2023 A471-4 INTERIOR ELEVATIONS - MENS LOCKER 3/24/2023 A471-5 INTERIOR ELEVATIONS - MENS LOCKER 3/24/2023 A471-6 INTERIOR ELEVATIONS - FAMILY LOCKER 3/24/2023 A471-7 INTERIOR ELEVATIONS - WOMENS LOCKER 3/24/2023 A471-8 INTERIOR ELEVATIONS - WOMENS LOCKER 3/24/2023 A471-9 INTERIOR ELEVATIONS - LIFE SPA 3/24/2023 A471-10 INTERIOR ELEVATIONS - POOL 3/24/2023 A471-11 INTERIOR ELEVATIONS - POOL 3/24/2023 A471-12 INTERIOR ELEVATIONS - KIDS ACADEMY 3/24/2023 A471-13 INTERIOR ELEVATIONS - KIDS ACADEMY 3/24/2023 A472-1 INTERIOR ELEVATIONS - YOGA, PILATES AND RESTROOM 3/24/2023 A472-2 INTERIOR ELEVATIONS - BARRE 3/24/2023 A472-3 INTERIOR ELEVATIONS - CYCLE STUDIO AND GROUP STUDIO 3/24/2023 A472-4 INTERIOR ELEVATIONS - LT RECOVERY 3/24/2023 A472-5 INTERIOR ELEVATIONS - FITNESS FLOOR 3/24/2023 A472-6 INTERIOR ELEVATIONS - FITNESS FLOOR 3/24/2023 A472-7 INTERIOR ELEVATIONS - GYM 3/24/2023 A503 SIGNAGE DETAILS 3/24/2023 A508 EXTERIOR DETAILS - ENTRY VESTIBULE 3/24/2023 A509 EXTERIOR DETAILS - ENTRY VESTIBULE 3/24/2023 A510 EXTERIOR DETAILS 3/24/2023 A511 EXTERIOR DETAILS 3/24/2023 A512 EXTERIOR DETAILS 3/24/2023 A513 EXTERIOR DETAILS 3/24/2023 A514 EXTERIOR PLAN DETAILS 3/24/2023 A530 ROOF DETAILS 3/24/2023 A531 ROOF DETAILS - DRAINAGE 3/24/2023 A540 GRAND STAIR DETAILS 3/24/2023 J-5 A541 MISC VERTICAL CIRCULATION DETAILS 3/24/2023 A542 ELEVATOR DETAILS 3/24/2023 A550 CEILING DETAILS 3/24/2023 A551 CEILING DETAILS 3/24/2023 A552 CEILING DETAILS 3/24/2023 A570 INTERIOR DETAILS - GENERAL DETAILS 3/24/2023 A571 INTERIOR DETAILS - LOCKER CORE 3/24/2023 A572 INTERIOR DETAILS - LOCKER CORE 3/24/2023 A573 INTERIOR DETAILS - CAFÉ, BAR AND SPA 3/24/2023 A574 INTERIOR DETAILS - STEAM 3/24/2023 A575 INTERIOR DETAILS - SAUNA 3/24/2023 A576 INTERIOR DETAILS - POOL AND SPA DETAILS 3/24/2023 A577 INTERIOR DETAILS - STUDIOS AND GYM 3/24/2023 A578 INTERIOR DETAILS 3/24/2023 A579 INTERIOR DETAILS - TRANSITION DETAILS 3/24/2023 A580 INTERIOR OPENING DETAILS 3/24/2023 A610 ROOM FINISH SCHEDULE 3/24/2023 A620 PARTITION TYPES 3/24/2023 A622 ACOUSTIC PARTITION DETAILS 3/24/2023 A623 ACOUSTIC PARTITION DETAILS 3/24/2023 A630 DOOR SCHEDULE AND FRAME TYPES 3/24/2023 A640 ALUMINUM FRAME TYPES - EXTERIOR 3/24/2023 A650 ALUMINUM FRAME TYPES - INTERIOR 3/24/2023 LANDSCAPE SHEETS L100 OVERALL LANDSCAPE PLAN 3/24/2023 L101 LANDSCAPE PLAN ENLARGEMENT 3/24/2023 L102 LANDSCAPE PLAN ENLARGEMENT 3/24/2023 L103 LANDSCAPE PLAN ENLARGEMENT 3/24/2023 L104 LANDSCAPE PLAN ENLARGEMENT 3/24/2023 L105 LANDSCAPE SCHEDULE 3/24/2023 L106 LANDSCAPE DETAILS 3/24/2023 LI100 OVERALL IRRIGATION PLAN 3/24/2023 LI101 IRRIGATION PLAN - POOL AND PICKLEBALL 3/24/2023 LI102 IRRIGATION PLAN - BUILDING AND EAST PARKING LOT 3/24/2023 LI103 IRRIGATION PLAN - OFFSITE IMPROVEMENTS 3/24/2023 LI104 IRRIGATION PLAN - SOUTH PARKING LOT 3/24/2023 LI105 IRRIGATION DETAILS 3/24/2023 LI106 IRRIGATION DETAILS 3/24/2023 LI107 IRRIGATION SCHEDULE AND NOTES 3/24/2023 STRUCTURAL SHEETS S000 STRUCTURAL COVER SHEET 3/24/2023 J-6 S001 GENERAL STRUCTURAL NOTES 3/24/2023 S002 SPECIAL INSPECTIONS SCHEDULES 3/24/2023 S003 TYPICAL DETAILS - FOUNDATION 3/24/2023 S004 TYPICAL DETAILS - FOUNDATION 3/24/2023 S005 TYPICAL DETAILS - NON-STRUCTURAL CMU 3/24/2023 S006 TYPICAL DETAILS - STEEL CONNECTION 3/24/2023 S007 TYPICAL DETAILS - STEEL COMPOSITE 3/24/2023 S008 TYPICAL DETAILS - STEEL 3/24/2023 S090 SITE REFERENCE PLAN 3/24/2023 S091 SITE DETAILS 3/24/2023 S092 SITE DETAILS 3/24/2023 S101 FOUNDATION PLAN - FIRST FLOOR 3/24/2023 S102 FRAMING PLAN - SECOND FLOOR 3/24/2023 S109 FRAMING PLAN - ROOF 3/24/2023 S110 FRAMING PLAN - GYM ROOF 3/24/2023 S120 ENLARGED PLANS AT FRONT ENTRY 3/24/2023 S121 ENLARGED PLANS AT ELEVATOR / CANOPY 3/24/2023 S122 ENLARGED PLANS AT SURGE TANK 3/24/2023 S200 PRECAST LOADING PLANS 3/24/2023 S300 FOUNDATION DETAILS 3/24/2023 S400 FRAMING DETAILS 3/24/2023 S401 FRAMING DETAILS 3/24/2023 S402 FRAMING DETAILS 3/24/2023 PLUMBING SHEETS P000 PLUMBING TITLE SHEET 3/24/2023 P010 PLUMBING PLAN - UNDERGROUND 3/24/2023 P101 PLUMBING PLAN - FIRST FLOOR 3/24/2023 P102 PLUMBING PLAN - SECOND FLOOR 3/24/2023 P103 PLUMBING PLAN - ROOF 3/24/2023 P104 PLUMBING PLAN DRAIN TILE 3/24/2023 P105 PLUMBING PLAN - EXTERIOR POOL DECK 3/24/2023 P200 PLUMBING PLAN - WATER CLOSET 3/24/2023 P201 PARTIAL PLUMBING PLAN - WOMENS LOCKER 3/24/2023 P202 PARTIAL PLUMBING PLAN - MENS LOCKER 3/24/2023 P203 PARTIAL PLUMBING PLAN - CAFE 3/24/2023 P204 PARTIAL PLUMBING PLAN - CAFE UNDERGROUND 3/24/2023 P301 SANITARY WASTE RISERS 3/24/2023 P302 SANITARY WASTE RISERS 3/24/2023 P303 SANITARY WASTE RISERS 3/24/2023 P304 DOMESTIC WATER RISERS 3/24/2023 P305 DOMESTIC WATER RISERS 3/24/2023 P306 DOMESTIC WATER RISERS 3/24/2023 P307 DOMESTIC WATER RISERS 3/24/2023 P308 NATURAL GAS RISER 3/24/2023 P401 PLUMBING DETAILS 3/24/2023 J-7 P402 PLUMBING DETAILS 3/24/2023 P403 PLUMBING DETAILS AND SCHEDULES 3/24/2023 FIRE PROTECTION SHEETS FP000 FIRE PROTECTION TITLE SHEET 3/24/2023 FP101 FIRE PROTECTION PLAN - FIRST FLOOR 3/24/2023 FP102 FIRE PROTECTION PLAN - SECOND FLOOR 3/24/2023 FP201 FIRE PROTECTION PLAN - ENLARGED AND DETAILS 3/24/2023 MECHANICAL SHEETS M000 MECHANICAL TITLE SHEET 3/24/2023 M101 HVAC PLAN - FIRST FLOOR 3/24/2023 M102 HVAC PLAN - SECOND FLOOR 3/24/2023 M103 HVAC PLAN - ROOF 3/24/2023 M104 HVAC ENLARGED PLANS 3/24/2023 M105 HVAC ENLARGED PLANS - KITCHEN 3/24/2023 M201 PIPING PLAN 3/24/2023 M301 MECHANICAL SCHEDULES 3/24/2023 M302 MECHANICAL SCHEDULES 3/24/2023 M401 MECHANICAL DETAILS 3/24/2023 M402 MECHANICAL DETAILS 3/24/2023 M403 MECHANICAL DETAILS 3/24/2023 M404 MECHANICAL SECTIONS 3/24/2023 ELECTRICAL SHEETS E000 ELECTRICAL TITLE SHEET 3/24/2023 E001 ELECTRICAL SITE PLAN 3/24/2023 E002 PHOTOMETRIC SITE PLAN 3/24/2023 E003A PHOTOMETRIC CUT SHEETS 3/24/2023 E003B PHOTOMETRIC CUT SHEETS 3/24/2023 E101 LIGHTING PLAN - FIRST FLOOR 3/24/2023 E102 LIGHTING PLAN - SECOND FLOOR 3/24/2023 E201 POWER PLAN - FIRST FLOOR 3/24/2023 E202 POWER PLAN - SECOND FLOOR 3/24/2023 E203 POWER PLAN - ROOF 3/24/2023 E204 FITNESS EQUIPMENT POWER PLAN - SECOND FLOOR 3/24/2023 E205 POOL ELECTRICAL PLAN - INTERIOR 3/24/2023 E206 POOL ELECTRICAL PLAN - EXTERIOR 3/24/2023 E301 FIRE ALARM PLAN - FIRST FLOOR 3/24/2023 E302 FIRE ALARM PLAN - SECOND FLOOR 3/24/2023 E303 FIRE ALARM DETAILS 3/24/2023 E401 ENLARGED ELECTRICAL PLAN - LIFE SPA 3/24/2023 E402 ENLARGED ELECTRICAL PLAN - CAFE 3/24/2023 E403 ENLARGED ELECTRICAL PLAN - LT RECOVERY 3/24/2023 E501 ELECTRICAL RISER DIAGRAM 3/24/2023 E601 ELECTRICAL DETAILS 3/24/2023 E602 ELECTRICAL DETAILS 3/24/2023 J-8 E603 ELECTRICAL DETAILS 3/24/2023 E604 ELECTRICAL DETAILS 3/24/2023 E701 LIGHT FIXTURE SCHEDULE 3/24/2023 E702 LIGHTING CONTROL SCHEDULES 3/24/2023 E703 MOTOR SCHEDULE 3/24/2023 E704 FOOD SERVICE EQUIPMENT SCHEDULE 3/24/2023 E705 PANEL SCHEDULES 3/24/2023 E706 PANEL SCHEDULES 3/24/2023 E707 PANEL SCHEDULES 3/24/2023 PROCESS AUTOMATION SHEETS DI000 PROCESS AUTOMATION TITLE SHEET 3/24/2023 DI101 PROCESS AUTOMATION PLAN - FIRST FLOOR 3/24/2023 DI102 PROCESS AUTOMATION PLAN - SECOND FLOOR 3/24/2023 DI103 PROCESS AUTOMATION PLAN - ROOF 3/24/2023 DI200 PROCESS AUTOMATION SYSTEM DIAGRAMS 3/24/2023 DI201 PROCESS AUTOMATION SYSTEM DIAGRAMS 3/24/2023 TECHNOLOGY SHEETS T000 TECHNOLOGY TITLE SHEET 3/24/2023 T001 TECHNOLOGY TITLE SHEET 3/24/2023 T101 DATA/PHONE PLAN - FIRST FLOOR 3/24/2023 T102 DATA/PHONE PLAN - SECOND FLOOR 3/24/2023 T103 DATA/PHONE RISER DIAGRAM 3/24/2023 T201 CCTV PLAN - FIRST FLOOR 3/24/2023 T202 CCTV PLAN - SECOND FLOOR 3/24/2023 T301 AUDIO/VISUAL PLAN - FIRST FLOOR 3/24/2023 T302 AUDIO/VISUAL PLAN - SECOND FLOOR 3/24/2023 T303 WORKOUT FLOOR SPEAKER PLAN - SECOND FLOOR 3/24/2023 T304 FITNESS EQUIPMENT TECHNOLOGY PLAN - SECOND FLOOR 3/24/2023 T305 POOL TECHNOLOGY PLAN - EXTERIOR 3/24/2023 T306 AUDIO/VISUAL FLOW DIAGRAMS 3/24/2023 T401 TECHNOLOGY DETAILS 3/24/2023 T402 TECHNOLOGY DETAILS 3/24/2023 T403 TECHNOLOGY SCHEDULES 3/24/2023 T404 AUDIO/VISUAL LARGE SCALE PLANS 3/24/2023 T405 TECHNOLOGY SCHEDULES 3/24/2023 T501 AUDIO/VISUAL SCHEMATICS 3/24/2023 T502 AUDIO/VISUAL SCHEMATICS 3/24/2023 T503 AUDIO/VISUAL SCHEMATICS 3/24/2023 T504 AUDIO/VISUAL SCHEMATICS 3/24/2023 T505 AUDIO/VISUAL SCHEMATICS 3/24/2023 T506 AUDIO/VISUAL SCHEMATICS 3/24/2023 T507 AUDIO/VISUAL SCHEMATICS 3/24/2023 T508 AUDIO/VISUAL SCHEMATICS 3/24/2023 T509 AUDIO/VISUAL SCHEMATICS 3/24/2023 J-9 T510 AUDIO/VISUAL SCHEMATICS 3/24/2023 T511 AUDIO/VISUAL SCHEMATICS 3/24/2023 T512 AUDIO/VISUAL SCHEMATICS 3/24/2023 T513 AUDIO/VISUAL SCHEMATICS 3/24/2023 T514 AUDIO/VISUAL SCHEMATICS 3/24/2023 T601 AUDIO/VISUAL BILL OF MATERIALS 3/24/2023 POOL SHEETS AQ000 AQUATIC COVER SHEET 3/24/2023 AQS100 OVERALL PLAN - SITE 3/24/2023 AQS100-1 OVERALL AQUATICS STRUCTURAL PLAN - SITE 3/24/2023 AQS110 OVERALL PIPING PLAN - SITE 3/24/2023 AQ101 OVERALL PLAN - FIRST FLOOR 3/24/2023 AQ101-1 OVERALL AQUATICS STRUCTURAL PLAN - FIRST FLOOR 3/24/2023 AQ121 OVERALL PIPING PLAN - FIRST FLOOR 3/24/2023 AQ405 ENLARGED PLAN - OUTDOOR LEISURE POOL 3/24/2023 J-1 AQ406 ENLARGED SECTIONS - OUTDOOR LEISURE POOL 3/24/2023 AQ407 ENLARGED PIPING PLAN - OUTDOOR LEISURE POOL 3/24/2023 AQ408 PIPING SCHEMATICS - OUTDOOR LEISURE POOL 3/24/2023 AQ425 ENLARGED PLAN & SECTIONS - INDOOR LAP POOL 3/24/2023 AQ426 ENLARGED PIPING PLAN - INDOOR LAP POOL 3/24/2023 AQ435 ENLARGED PLAN & SECTIONS - INDOOR LESSON POOL 3/24/2023 AQ436 ENLARGED PIPING PLAN - INDOOR LESSON POOL 3/24/2023 AQ450 ENLARGED PLAN & SECTIONS - MEN'S WARM SPA 3/24/2023 AQ451 ENLARGED PIPING PLAN - MEN'S WARM SPA 3/24/2023 AQ455 ENLARGED PLAN & SECTIONS - MEN'S COLD SPA 3/24/2023 AQ456 ENLARGED PIPING PLAN - MEN'S COLD SPA 3/24/2023 AQ460 ENLARGED PLAN & SECTIONS - WOMEN'S WARM SPA 3/24/2023 AQ461 ENLARGED PIPING PLAN - WOMEN'S WARM SPA 3/24/2023 AQ465 ENLARGED PLAN & SECTIONS - WOMEN'S COLD SPA 3/24/2023 AQ466 ENLARGED PIPING PLAN - WOMEN'S COLD SPA 3/24/2023 AQ470 ENLARGED PLAN & SECTIONS - OUTDOOR POOL SURGE TANK 3/24/2023 AQ471 ENLARGED PLAN & SECTIONS - INDOOR POOL SURGE TANKS 3/24/2023 AQ475 ENLARGED PLAN - MECHANICAL ROOM 3/24/2023 AQ476 ENLARGED PIPING PLAN - MECHANICAL ROOM 3/24/2023 AQ490 ENLARGED SECTIONS - PIPE PENETRATIONS 3/24/2023 AQ500 OUTDOOR POOL DETAILS 3/24/2023 AQ501 OUTDOOR POOL DETAILS 3/24/2023 AQ530 INDOOR POOL DETAILS 3/24/2023 AQ531 INDOOR POOL DETAILS 3/24/2023 AQ540 INDOOR SPA DETAILS 3/24/2023 AQ550 GENERAL STRUCTURAL DETAILS 3/24/2023 AQ551 POOL STRUCTURAL DETAILS 3/24/2023 AQ552 SPA STRUCTURAL DETAILS 3/24/2023 AQ560 PROCESS & EQUIPMENT DETAILS 3/24/2023 AQ561 PROCESS & EQUIPMENT DETAILS 3/24/2023 FOODSERVICE SHEETS QF001 FOODSERVICE COVER SHEET 3/24/2023 QF101 FOODSERVICE OVERALL PLAN 3/24/2023 QF111 FOODSERVICE EQUIPMENT PLAN 3/24/2023 QF121-A FOODSERVICE PLUMBING ROUGH-IN PLAN 3/24/2023 QF122-B FOODSERVICE PLUMBING PLAN REQUIREMENTS 3/24/2023 QF131-A FOODSERVICE ELECTRICAL ROUGH-IN PLAN 3/24/2023 QF131-B FOODSERVICE ELECTRICAL PLAN REQUIREMENTS 3/24/2023 QF141 FOODSERVICE SPECIAL CONDITIONS PLAN 3/24/2023 QF200 FOODSERVICE ELEVATIONS 3/24/2023 QF201 FOODSERVICE ELEVATIONS 3/24/2023 QF500 FOODSERVICE DETAILS 3/24/2023 QF700 FOODSERVICE ISO VIEWS 3/24/2023 AIA® Document C132TM – 2019 Standard Form of Agreement Between Owner and Construction Manager as Adviser AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 1 RS220-402-865247.v2 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. This document is intended to be used in conjunction with AIA Documents A132™– 2019, Standard Form of Agreement Between Owner and Contractor, Construction Manager as Adviser Edition; A232™–2019, General Conditions of the Contract for Construction, Construction Manager as Adviser Edition; and B132™– 2019, Standard Form of Agreement Between Owner and Architect, Construction Manager as Adviser Edition. AIA Document A232™–2019 is adopted in this document by reference. Do not use with other general conditions unless this document is modified. ELECTRONIC COPYING of any portion of this AIA® Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document. AGREEMENT made as of the «» day of «April » in the year 2023 (In words, indicate day, month and year.) BETWEEN the Owner: (Name, legal status, address, and other information) «Rosemount Port Authority »« » «2875 145th Street West » «Rosemount, MN 55068 » « » and the Construction Manager: (Name, legal status, address, and other information) LTF Construction Company, LLC A Delaware LLC 2900 Corporate Place Chanhassen, MN 55317 for the following Project: (Name, location, and detailed description) Life Time Athletic – Rosemount Intersection of 145th Street West and Akron, as described in section 1.1.1. The Architect: (Name, legal status, address, and other information) LTF Architecture, LLC A Delaware LLC 2900 Corporate Place Chanhassen, MN 55317 The Owner and Construction Manager agree as follows. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 2 RS220-402-865247.v2 TABLE OF ARTICLES 1 INITIAL INFORMATION 2 CONSTRUCTION MANAGER’S RESPONSIBILITIES 3 SCOPE OF CONSTRUCTION MANAGER’S BASIC SERVICES 4 SUPPLEMENTAL AND ADDITIONAL SERVICES 5 OWNER’S RESPONSIBILITIES 6 COST OF THE WORK 7 COPYRIGHTS AND LICENSES 8 CLAIMS AND DISPUTES 9 TERMINATION OR SUSPENSION 10 MISCELLANEOUS PROVISIONS 11 COMPENSATION 12 SPECIAL TERMS AND CONDITIONS 13 SCOPE OF THE AGREEMENT ARTICLE 1 INITIAL INFORMATION § 1.1 This Agreement is based on the Initial Information set forth in this Section 1.1The Owner and the Construction Manager agree that this Agreement shall govern multiple independent Projects per the terms and conditions of this Agreement. In lieu of executing separate contracts for each such Project, the Owner and the Construction Manager have agreed to execute one contract that can be individually applicable to each such Project. Therefore, the Owner and the Construction Manager agree that this Agreement will be used for multiple independent and discrete Projects, each of which is referred to as a "Project" for purposes of this Agreement. The individual Projects shall be described in individual Amendments to this Agreement which shall be governed by this Agreement. Each individual Project Amendment shall provide a description of the Project, compensation terms, and other project-specific items or modifications to this Agreement required for the individual Project. If an Amendment for a particular Project modifies or excludes any terms of this Agreement, such modification shall apply only to the Project for which such Amendment is applicable and shall not modify this Agreement with respect to any other Project governed by this Agreement. (For each item in this section, insert the information or a statement such as “not applicable” or “unknown at time of execution.”) § 1.1.1 The Owner’s program for the Project: (Insert the Owner’s program, identify documentation that establishes the Owner’s program, or state the manner in which the program will be developed.) An E-box Prototype Life Time Athletic Resort and associated on-site and off-site infrastructure inclusive of outlots located at 145th Street West and Akron in accordance with the Drawings and Specifications attached as Appendix A. The Project will include a two-story facility with a 50,000 sq. ft. outdoor amenity deck and approximately 520 parking spaces. § 1.1.2 The Project’s physical characteristics: AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 3 RS220-402-865247.v2 (Identify or describe pertinent information about the Project’s physical characteristics, such as size; location; dimensions; geotechnical reports; site boundaries; topographic surveys; traffic and utility studies; availability of public and private utilities and services; legal description of the site, etc.) «See 1.1.1 » § 1.1.3 The Owner’s budget for the Cost of the Work, as defined in Section 6.1: (Provide total and, if known, a line item breakdown.) Approximately forty-four million dollars ($44,000,000.00). § 1.1.4 The Owner’s anticipated design and construction milestone dates: .1 Design phase milestone dates, if any: «Design completion date April 1, 2023 » .2 Construction commencement date: «July 1, 2023 » .3 Substantial Completion date or dates: « No later than February 28, 2025 » .4 Other milestone dates: « Anticipated Substantial Completion date is October 29, 2024. Anticipated turnover of the Project to the Tenant (defined below) is December 6, 2024. » § 1.1.5 The Owner intends the following procurement method for the Project: (Identify method such as competitive bid or negotiated contract.) « Multiple Prime Contractor public bidding pursuant to the Minnesota Uniform Municipal Contracting Act, Minnesota Statutes, Sections 471.345 (“Public Bidding”). » § 1.1.6 The Owner’s requirements for accelerated or fast-track design and construction, multiple bid packages, or phased construction are set forth below: (Identify any requirements for fast-track scheduling or phased construction and, if applicable, list number and type of bid/procurement packages.) «To Be Determined » § 1.1.7 The Owner’s anticipated Sustainable Objective for the Project: (Identify and describe the Owner’s Sustainable Objective for the Project, if any.) «To Be Determined » § 1.1.7.1 If the Owner identifies a Sustainable Objective, the Owner and Construction Manager shall endeavor to define the terms, conditions and services related to the Owner’s Sustainable Objective and may complete and incorporate AIA Document E235™–2019, Sustainable Projects Exhibit, Construction Manager as Adviser Edition, into this Agreement. If E235–2019 is incorporated into this Agreement, the Owner and Construction Manager shall incorporate the completed E235–2019 into the agreements with the consultants and contractors performing services or Work in any way associated with the Sustainable Objective. § 1.1.8 Other Project information: (Identify special characteristics or needs of the Project not provided elsewhere.) «N/A » AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 4 RS220-402-865247.v2 § 1.1.9 The Owner identifies the following representative in accordance with Section 5.5: (List name, address, and other contact information.) «Logan Martin, City Administrator » «2875 145th Street West » «Rosemount, MN 55068 » «Phone: 651-322-2006 » «Email; logan.martin@ci.rosemount.mn.us » § 1.1.10 The persons or entities, in addition to the Owner’s representative, who are required to review the Construction Manager’s submittals to the Owner are as follows: (List name, address, and other contact information.) «In accordance with the Lease (defined below)LTF Lease Company, LLC (“Tenant”) shall review and approve any proposed change orders prior to submittal to the Owner. In accordance with that certain Site Development Agreement (“Development Agreement”) to be entered into between Owner, the City of Rosemount and LTF Real Estate Company, Inc. (“LT Owner”), LT Owner shall review and approve any proposed change orders to the work described under the Development Agreement prior to submittal to the Owner. » § 1.1.11 The Owner shall retain the following consultants and Contractors: (List name, legal status, address, and other contact information.) .1 Land Surveyor: « »« » « » « » « » « » .2 Geotechnical Engineer: « »« » « » « » « » « » .3 Civil Engineer: « »« » « » « » « » « » .4 Contractors, as defined in Section 1.4: « To Be Determined » .5 Separate Contractors, as defined in Section 1.4: « To Be Determined » AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 5 RS220-402-865247.v2 .6 Other, if any: (List any other consultants retained by the Owner.) «N/A » § 1.1.12 The Construction Manager identifies the following representative in accordance with Section 2.5: (List name, address, and other contact information.) Brent Marlow Project Executive Life Time Property Development 2900 Corporate Place Chanhassen, MN 55317 § 1.1.13 The Construction Manager’s staffing plan as required under Section 3.3.3 shall include: (List any specific requirements and personnel to be included in the staffing plan, if known.) Project Executive – Preconstruction: Bill Brown Project Executive – Brent Marlow Project Manager - Construction: Chase Norton Site Superintendent: Doug Zimmerman § 1.1.14 The Construction Manager’s consultants retained under Basic Services, if any: (List name, legal status, address, and other contact information of any consultants.) « Civil: Kimley Horn Geotech: American Engineering Testing Environmental: American Engineering Testing Survey: Westwood Professional Services MEP Design: Emanuelson-Podas, Inc Structural Engineering: Ericksen Roed & Associates LTF Architecture, LLC » § 1.1.15 The Construction Manager’s consultants retained under Supplemental Services: «To be determined. » § 1.1.16 Other Initial Information on which this Agreement is based: «N/A » § 1.2 The Owner and Construction Manager may rely on the Initial Information. Both parties, however, recognize that the Initial Information may materially change and, in that event, the Owner and the Construction Manager shall, by appropriate written agreement, appropriately adjust the Construction Manager’s services, schedule for the Construction Manager’s services, and the Construction Manager’s compensation. The Owner shall adjust the Owner’s budget for the Cost of the Work and the Owner’s anticipated design and construction milestones, as necessary, to accommodate material changes in the Initial Information. § 1.3 The Construction Manager shall assist the Owner and Architect in establishing protocols governing the transmission and use of Instruments of Service or any other information or documentation in digital form. The parties may use AIA Document E203™–2013, Building Information Modeling and Digital Data Exhibit, to establish the protocols for the development, use, transmission, and exchange of digital data. § 1.3.1 Any use of, or reliance on, all or a portion of a building information model without agreement to protocols governing the use of, and reliance on, the information contained in the model, shall be at the using or relying party’s AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 6 RS220-402-865247.v2 sole risk and without liability to the other party and its contractors or consultants, the authors of, or contributors to, the building information model, and each of their agents and employees. § 1.4 The term “Contractors” refers to persons or entities who perform Work under contracts with the Owner that are administered by the Construction Manager and Architect. The term “Contractors” is used to refer to such persons or entities, whether singular or plural. The term does not include the Owner’s own forces, or Separate Contractors, which are persons or entities who perform construction under separate contracts with the Owner not administered by the Construction Manager and Architect. ARTICLE 2 CONSTRUCTION MANAGER’S RESPONSIBILITIES § 2.1 The Construction Manager shall provide the services as set forth in this Agreement. The Construction Manager, in cooperation with Owner, shall agree to provide or caused to be provided, (i) all design and architectural services for the site plan and plat of the Development, including without limitation, all utilities and infrastructure for the site, and the construction of the Project, (ii) prepare bid packets and assist with conducting public bidding for all work on the Premises and all utilities and infrastructure in the Development in accordance with MN Stat. Sections 471.345 – 471.462, and (iii) provide Construction Management services for all work performed for the Project. § 2.2 The Construction Manager shall perform its services consistent with the skill and care ordinarily provided by experienced construction managers practicing in the same or similar locality under the same or similar circumstances. The Construction Manager shall perform its services as expeditiously as is consistent with such skill and care and the orderly progress of the Project. The Construction Manager shall put forth reasonable efforts to complete its duties in a timely manner. The Construction Manager shall not be responsible for delays caused by factors beyond its control or that could not be reasonably foreseen at the time of execution of this Contract. § 2.3 The Construction Manager shall provide its services in conjunction with the services of an Architect. The Construction Manager shall be responsible for actions taken by the Architect. § 2.4 The Construction Manager shall coordinate its services with those services provided by the Owner, the Architect, the Contractors, and the Owner’s other consultants and Separate Contractors. The Construction Manager shall be entitled to rely on, and shall not be responsible for, the accuracy and completeness of services and information furnished by the Owner, and the Owner’s other consultants and Separate Contractors. The Construction Manager shall provide prompt written notice to the Owner if the Construction Manager becomes aware of any error, omission, or inconsistency in such services or information. § 2.5 The Construction Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the Project. § 2.6 The Construction Manager, as soon as practicable after execution of the Agreement, shall notify the Owner in writing of the names and qualifications of its proposed key staff members. Within 14 days of receipt of the names and qualifications of the Construction Manager’s proposed key staff members, the Owner may reply to the Construction Manager in writing, stating (1) whether the Owner has reasonable objection to a proposed key staff member or (2) that the Owner requires additional time to review. Failure of the Owner to reply within the 14-day period shall constitute notice of no reasonable objection. The Construction Manager shall not staff any employees on the Project to whom the Owner has made reasonable and timely objection. The Construction Manager shall not change its key staff members without the Owner’s consent, which shall not be unreasonably withheld or delayed. § 2.7 Except with the Owner’s knowledge and consent, the Construction Manager shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Construction Manager’s judgment with respect to this Project. § 2.8 The Construction Manager shall maintain the following insurance, including the minimum coverages and limits of liability specified below, until termination of this Agreement. § 2.8.1 Commercial General Liability with policy limits of not less than « Two Million Dollars » ($ « 2,000,000 » ) for each occurrence and « Four Million Dollars » ($ « 4,000,000 » ) in the aggregate for bodily injury and property damage. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 7 RS220-402-865247.v2 § 2.8.2 Automobile Liability covering vehicles owned, and non-owned vehicles used, by the Construction Manager with policy limits of not less than « One Million Dollars » ($ « 1,000,000 » ) per accident for bodily injury, death of any person, and property damage arising out of the ownership, maintenance and use of those motor vehicles, along with any other statutorily required automobile coverage. § 2.8.3 The Construction Manager may achieve the required limits and coverage for Commercial General Liability and Automobile Liability through a combination of primary and excess or umbrella liability insurance, provided such primary and excess or umbrella liability insurance policies result in the same or greater coverage as the coverages required under Sections 2.8.1 and 2.8.2, and in no event shall any excess or umbrella liability insurance provide narrower coverage than the primary policy. The excess policy shall not require the exhaustion of the underlying limits only through the actual payment by the underlying insurers. § 2.8.4 Workers’ Compensation at statutory limits and Employers Liability with policy limits not less than « One Million Dollars » ($ « 1.000,000 » ) each accident, « One Million Dollars » ($ « 1,000,000 » ) each employee, and « One Million Dollars » ($ « 1,000,000 » ) policy limit. § 2.8.5 Professional Liability covering negligent acts, errors and omissions in the performance of professional services with policy limits of not less than « Five Million Dollars » ($ « 5,000,000 » ) per claim and « Five Million Dollars » ($ « 5,000,000 » ) in the aggregate. § 2.8.6 Reserved. § 2.8.7 The Construction Manager shall provide certificates of insurance to the Owner that evidence compliance with the requirements in this Section 2.8. Such proof of insurance shall confirm that the insurer has agreed that it will not cancel the insurance without giving the Owner thirty (30) days advance written notice of its intent to cancel (or any lesser period allowed by law). The Construction Manager shall likewise demand from its consultants proof of insurance meeting the foregoing insurance coverage requirements as a condition precedent to their engagement to perform services on the Project. § 2.9 The Construction Manager shall assist the Owner, Architect, and other Project participants in establishing building information modeling and digital data protocols for the Project, which may be documented using AIA Document E203™–2013, Building Information Modeling and Digital Data Exhibit, to establish the protocols for the development, use, transmission, and exchange of digital data. § 2.10 If a centralized electronic document management system will be used on the Project, the Construction Manager shall be responsible for managing and maintaining the centralized electronic document management system. § 2.11 The Construction Manager shall retain all Project related documents and information it receives, and the Owner and Architect shall have access to the documents and information. The Construction Manager shall transmit the documents and information to the Owner at final completion. § 2.12 The Project shall be designed so that all utilities shall be separately metered. The Project will be designed so that the capacity of the utilities furnished to the Project shall be adequate for Life Time’s permitted use. The Project will be designed so that there will be sufficient parking spaces in the Development for operations of Life Time’s business. ARTICLE 3 SCOPE OF CONSTRUCTION MANAGER’S BASIC SERVICES § 3.1 Definition The Construction Manager’s Basic Services consist of those described in this Article 3, and include usual and customary Preconstruction and Construction Phase Services. Services not set forth in this Article 3 are Supplemental or Additional Services. The Owner, Construction Manager, and Contractors may agree, in consultation with the Architect, for the Construction Phase to commence prior to completion of the Preconstruction Phase, in which case, both phases will proceed concurrently. § 3.2 Preconstruction Phase AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 8 RS220-402-865247.v2 § 3.2.1 The Construction Manager shall review the program furnished by the Owner and any evaluation of the Owner’s program provided by the Architect, to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner and Architect. § 3.2.2 The Construction Manager shall provide a preliminary evaluation of the Owner’s program, schedule and construction budget requirements, each in terms of the other. § 3.2.3 The Construction Manager shall prepare, and deliver to the Owner, for the Owner’s approval, a written Construction Management Plan that includes, at a minimum, the following: (1) preliminary evaluations required in Section 3.2.2, (2) a Project schedule, (3) cost estimates, (4) recommendations for Project delivery method, and (5) Contractors’ scopes of Work. The Construction Manager shall periodically update the Construction Management Plan, for the Owner’s approval, over the course of the Project. § 3.2.4 The Construction Manager shall prepare and periodically update the Project schedule included in the Construction Management Plan for the Architect’s review and the Owner’s acceptance. The Construction Manager shall obtain the Architect’s approval for the portion of the Project schedule relating to the performance of the Architect’s services. The Project schedule shall coordinate and integrate the Construction Manager’s services, the Architect’s services, other Owner consultants’ services, and the Owner’s responsibilities and highlight items that affect the Project’s timely completion. § 3.2.5 The Construction Manager shall update the Project schedule to include the components of the Work, including phasing of construction, times of commencement and completion required of each Contractor, ordering and delivery of products, including those that must be ordered in advance of construction, obtaining the required reviews and approvals of authorities having jurisdiction over the Project, and the occupancy requirements of the Owner. § 3.2.6 Based on the preliminary design and information prepared or provided by the Architect and other Owner consultants, the Construction Manager shall prepare, for the Architect’s review and Owner’s approval, preliminary estimates of the Cost of the Work or the cost of program requirements using area, volume or similar conceptual estimating techniques, including the establishment of sufficient contingency to reasonably anticipate the development of the Project’s design documents. § 3.2.7 The Construction Manager shall review design documents during their development and advise the Owner and Architect on proposed site use and improvements, selection of materials, building systems, and equipment. The Construction Manager shall also provide recommendations to the Owner and Architect, consistent with the Project requirements, on constructability; availability of materials and labor; sequencing for phased construction; time requirements for procurement, installation and construction; and factors related to construction cost including, but not limited to, costs of alternative designs or materials, preliminary budgets, life-cycle data, and possible cost reductions. § 3.2.8 The Construction Manager shall review recommendations for systems, materials, or equipment for the impact upon cost, schedule, sequencing, constructability, and coordination among the Contractors. The Construction Manager shall discuss its findings with the Owner and the Architect, and assist the Owner and Architect with resolution, as necessary, of any such impacts. § 3.2.9 As the Architect progresses with the preparation of the Schematic Design, Design Development and Construction Documents, the Construction Manager shall prepare and update, at appropriate intervals agreed to by the Owner, Construction Manager and Architect, an estimate of the Cost of the Work with increasing detail and refinement. The Construction Manager shall include in the estimate those costs to allow for further development of the design, bidding or negotiating, price escalation, and market conditions. The estimate shall be provided for the Architect’s review and the Owner’s approval. The Construction Manager shall inform the Owner and Architect in the event that the estimate of Cost of the Work exceeds the latest approved Project budget, and make recommendations for corrective action. § 3.2.10 As the Architect progresses with the preparation of the Schematic Design, Design Development and Construction Documents, the Construction Manager shall consult with the Owner and Architect and make recommendations whenever the Construction Manager determines that the design, or details, adversely affect cost, scope, schedule, constructability, or quality of the Project. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 9 RS220-402-865247.v2 § 3.2.11 The Construction Manager shall provide recommendations and information to the Owner and Architect regarding the assignment of responsibilities for temporary Project facilities and equipment, materials and services for common use of the Contractors. The Construction Manager shall verify that such requirements and assignment of responsibilities are included in the proposed Contract Documents. § 3.2.12 The Construction Manager shall provide recommendations and information to the Owner regarding the allocation of responsibilities for safety programs among the Contractors. § 3.2.13 The Construction Manager shall provide recommendations to the Owner and coordinate with the Architect on the division of the Project into individual contracts for the construction of various categories of Work, including the public procurement method to be used for selecting Contractors and awarding Contracts for Construction. The Construction Manager shall review the Drawings and Specifications and make recommendations and prepare scopes of Work with the Architect as required to provide that (1) the Work of the Contractors is coordinated, (2) all requirements for the Project are assigned to the appropriate Contract, (3) the likelihood of jurisdictional disputes is minimized, and (4) proper coordination is provided for phased construction. The Construction Manager shall keep the Owner apprised of Construction Manager-proposed Work Scopes prior to finalizing the divisions of Work. § 3.2.14 The Construction Manager shall make recommendations about, and coordinate the ordering and delivery of, materials in support of the schedule, including those that must be ordered in advance of construction. § 3.2.15 The Construction Manager shall assist the Owner in selecting, retaining, and coordinating the professional services of surveyors, geotechnical engineers, special consultants, and construction materials testing required for the Project. § 3.2.16 The Construction Manager shall provide an analysis of the types and quantities of labor required for the Project and review the availability of appropriate categories of labor required for critical phases. The Construction Manager shall make recommendations for actions designed to minimize adverse effects of labor shortages. § 3.2.17 The Construction Manager shall assist the Owner in obtaining information regarding applicable requirements for equal employment opportunity programs, and other programs as may be required by governmental and quasi- governmental authorities for inclusion in the Contract Documents. § 3.2.18 Following approval of the Drawings and Specifications, the Construction Manager shall update and submit the latest estimate of the Cost of the Work and the Project schedule for the Architect’s review and the Owner’s approval. § 3.2.19 The Construction Manager, in consultation with the Owner, shall develop bidders’ interest in the Project. The Construction Manager shall assist the Owner and the Architect with the issuance of public Bidding Documents, which consist of bidding requirements and proposed Contract Documents in accordance with Minnesota Statutes, Section 471.345 (“Public Bidding”). The Construction Manager, with the assistance of the Architect, shall issue Bidding Documents conduct a pre-bid conferences with prospective bidders. The Construction Manager shall issue the current Project schedule with each set of Bidding Documents. The Construction Manager shall assist the Architect with regard to questions from bidders and with the issuance of addenda. § 3.2.20 The Construction Manager shall submit a list of prospective bidders for the Architect’s review and the Owner’s approval. § 3.2.21 The Construction Manager, with the assistance of the Architect, shall review bids, and prepare bid analyses, and make recommendations to the Owner for the Owner’s award of Contracts for Construction or rejection of bids in accordance with Public Bidding. § 3.2.22 The Construction Manager, with the assistance of the Architect, shall assist the Owner in preparing Contracts for Construction. The Construction Manager shall advise the Owner on the acceptability of Subcontractors and material suppliers proposed by Contractors. The Owner will review and approve contracts consistent with the Owner’s approval process. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 10 RS220-402-865247.v2 § 3.2.23 The Construction Manager shall assist the Owner in obtaining building permits and special permits for permanent improvements, except for permits required to be obtained directly by the Contractors. The Construction Manager shall verify that the Owner has paid applicable fees and assessments. The Construction Manager shall assist the Owner and Architect in connection with the Owner’s responsibility for filing documents required for the approvals of governmental authorities having jurisdiction over the Project. § 3.2.24 If the Owner identified a Sustainable Objective in Article 1, the Construction Manager shall fulfill its Preconstruction Phase responsibilities per the agreed-upon terms, conditions and services related to the Owner’s Sustainable Objective. § 3.3 Construction Phase § 3.3.1 The Construction Manager shall provide on-site administration of the Contracts for Construction in cooperation with the Architect as set forth below. § 3.3.2 Subject to Section 4.2 and except as provided in Section 3.3.30, the Construction Manager’s responsibility to provide Construction Phase Services commences with the award of the initial Contract for Construction and terminates on the date the Architect issues the final Certificate for Payment. § 3.3.3 The Construction Manager shall provide a staffing plan to include one or more representatives who shall be in attendance at the Project site whenever the Work is being performed. § 3.3.4 The Construction Manager shall provide administrative, management and related services to coordinate scheduled activities and responsibilities of the Contractors with each other and with those of the Construction Manager, the Owner and the Architect. The Construction Manager shall coordinate the activities of the Contractors in accordance with the latest approved Project schedule and the Contract Documents. § 3.3.5 The Construction Manager shall review and analyze the construction schedules provided by the Contractors to update the Project schedule, incorporating the activities of the Owner, Architect, and Contractors on the Project, including activity sequences and durations, allocation of labor and materials, processing of Shop Drawings, Product Data and Samples, and delivery and procurement of products, including those that must be ordered in advance of construction. The Project schedule shall include the Owner’s occupancy requirements showing portions of the Project having occupancy priority. The Construction Manager shall update and reissue the Project schedule as required to show current conditions. If an update indicates that the previously approved Project schedule may not be met, the Construction Manager shall recommend corrective action to the Owner and Architect. § 3.3.6 The Construction Manager shall schedule and conduct meetings to discuss matters such as procedures, progress, coordination, and scheduling of the Work, and to develop solutions to issues identified. The Construction Manager shall prepare and promptly distribute minutes to the Owner, Architect and Contractors. § 3.3.7 In accordance with the Contract Documents and the latest approved Project schedule, and utilizing information from the Contractors, the Construction Manager shall review, analyze, schedule and coordinate the overall sequence of construction and assignment of space in areas where the Contractors are performing Work. § 3.3.8 The Construction Manager shall coordinate all tests and inspections required by the Contract Documents or governmental authorities, observe the on-site testing and inspections, and arrange for the delivery of test and inspection reports to the Owner and Architect. § 3.3.9 The Construction Manager shall endeavor to obtain satisfactory performance from each of the Contractors. The Construction Manager shall recommend courses of action to the Owner when requirements of a Contract are not being fulfilled. § 3.3.10 The Construction Manager shall monitor and evaluate actual costs for activities in progress and estimates for uncompleted tasks and advise the Owner and Architect as to variances between actual costs and budgeted or estimated costs. If a Contractor is required to submit a Control Estimate, the Construction Manager shall meet with the Owner and Contractor to review the Control Estimate. The Construction Manager shall promptly notify the Contractor if there are any inconsistencies or inaccuracies in the information presented. The Construction Manager shall also report the Contractor’s cost control information to the Owner. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 11 RS220-402-865247.v2 § 3.3.11 The Construction Manager shall develop cash flow reports and forecasts for the Project and include them in the Construction Manager’s progress reports. § 3.3.12 The Construction Manager shall maintain accounting records on authorized Work performed under unit costs, additional Work performed on the basis of actual costs of labor and materials, and other Work requiring accounting records. § 3.3.12.1 The Construction Manager shall develop and implement procedures for the review and processing of Applications for Payment by Contractors for progress and final payments consistent with the Prompt Payment of Local Government Bills, Minnesota Statutes, Section 471.425 (“Prompt Payment Act”). § 3.3.12.2 Not more frequently than monthly, the Construction Manager shall review and certify the amounts due the respective Contractors as follows: .1 Where there is one or more than one Contractor responsible for performing different portions of the Project, the Construction Manager shall, within seven days after the Construction Manager receives each Contractor’s Application for Payment: (1) review the Applications and certify the amount the Construction Manager determines is due each Contractor; (2) prepare a Summary of Contractors’ Applications for Payment by summarizing information from each Contractor’s Application for Payment; (3) prepare a Project Application and Certificate for Payment; (4) certify the total amount the Construction Manager determines is due all Contractors collectively; and (5) forward the Summary of Contractors’ Applications for Payment and Project Application and Certificate for Payment to the Architect. § 3.3.12.3 The Construction Manager’s certification for payment shall constitute a representation to the Owner, based on the Construction Manager’s evaluations of the Work and on the data comprising the Contractors’ Applications for Payment, that, to the best of the Construction Manager’s knowledge, information and belief, the Work has progressed to the point indicated, the quality of the Work is in accordance with the Contract Documents, and the Contractors are entitled to payment in the amount certified. The foregoing representations are subject to (1) an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion; (2) results of subsequent tests and inspections; (3) correction of minor deviations from the Contract Documents prior to completion; and (4) specific qualifications expressed by the Construction Manager. The issuance of a Certificate for Payment shall further constitute a recommendation to the Architect and Owner that the Contractor be paid the amount certified. § 3.3.12.4 The certification of an Application for Payment or a Project Application for Payment by the Construction Manager shall not be a representation that the Construction Manager has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, procedures, or sequences for a Contractor’s own Work; (3) reviewed copies of requisitions received from Subcontractors and suppliers and other data requested by the Owner to substantiate each Contractor’s right to payment; or (4) ascertained how or for what purpose that Contractor has used money previously paid on account of the Contract Sum. § 3.3.13 The Construction Manager shall obtain and review the safety programs developed by each Contractor solely and exclusively for purposes of coordinating the safety programs with those of the other Contractors and for making recommendations for any additional safety measures to be considered in the Work of the Contractors. The Construction Manager’s responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractors, Subcontractors, agents or employees of the Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed by the Construction Manager. § 3.3.14 The Construction Manager shall determine in general that the Work of each Contractor is being performed in accordance with the requirements of the Contract Documents and notify the Owner, Contractor and Architect of defects and deficiencies in the Work. The Construction Manager shall have the authority to reject Work that does not conform to the Contract Documents and shall notify the Architect about the rejection. The failure of the Construction Manager to reject Work shall not constitute acceptance of the Work. The Construction Manager shall record any rejection of Work in its daily log and include information regarding the rejected Work in its progress reports to the Architect and Owner pursuant to Section 3.3.21.. Upon written authorization from the Owner, the Construction Manager may require and make arrangements for additional inspection or testing of the Work in AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 12 RS220-402-865247.v2 accordance with the provisions of the Contract Documents, whether or not the Work is fabricated, installed or completed, and the Construction Manager shall give timely notice to the Architect of when and where the tests and inspections are to be made so that the Architect may be present for such procedures. § 3.3.15 The Construction Manager shall advise and consult with the Owner and Architect during the performance of its Construction Phase Services. The Construction Manager shall have authority to act on behalf of the Owner only to the extent provided in this Agreement. The Construction Manager shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors, since these are solely the Contractor’s rights and responsibilities under the Contract Documents. The Construction Manager shall not be responsible for a Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents. The Construction Manager shall be responsible to the Owner for the Construction Manager’s negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractors, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. Subject to Section 3.3.14, nothing in this section is intended to limit the Construction Manager’s duty to report to the Owner and the Architect all defects in the Work or deviations from the Contract Documents that have been observed by or reported to the Construction Manager. Subject to Section 3.3.14, nothing in this section is intended, or shall be construed to, negate or limit the Construction Manager’s duties to the Owner in Section 2.2. § 3.3.16 The Construction Manager shall transmit to the Architect requests for interpretations, and requests for information of the meaning and intent of the Drawings and Specifications. The Construction Manager shall assist in the resolution of questions that may arise. § 3.3.17 The Construction Manager shall review requests for changes, assist in negotiating Contractors’ proposals, submit recommendations to the Architect and Owner, and, if the proposed changes are accepted or required by the Owner, prepare Change Orders or Construction Change Directives that incorporate the Architect’s modifications to the Contract Documents. § 3.3.18 The Construction Manager shall assist the Initial Decision Maker in the review, evaluation and documentation of Claims, subject to Section 4.2.2.7. § 3.3.19 Utilizing the submittal schedules provided by each Contractor, the Construction Manager shall prepare, and revise as necessary, a Project submittal schedule incorporating information from the Owner, Owner’s consultants, Owner’s Separate Contractors and vendors, governmental agencies, and participants in the Project under the management of the Construction Manager. The Project submittal schedule and any revisions shall be submitted to the Architect for approval. § 3.3.20 The Construction Manager shall promptly review all Shop Drawings, Product Data, Samples, and other submittals from the Contractors for compliance with the submittal requirements of the Contract, coordinate submittals with information contained in related documents, and transmit to the Architect those that the Construction Manager recommends for approval. The Construction Manager’s actions shall be taken in accordance with the Project submittal schedule approved by the Architect, or in the absence of an approved Project submittal schedule, with such reasonable promptness as to cause no delay in the Work or in the activities of the Contractors, the Owner, or the Architect. § 3.3.20.1 If professional design services or certifications by a design professional related to systems, materials, or equipment are specifically required of the Contractors by the Contract Documents, the Construction Manager shall review those submittals for sequencing, constructability, and coordination impacts on the other Contractors. The Construction Manager shall discuss its findings with the Owner and the Architect, and assist the Owner and the Architect with resolution, as necessary, of any such impacts. § 3.3.21 The Construction Manager shall keep a daily log containing a record of weather, each Contractor’s Work on the site, number of workers, identification of equipment, Work accomplished, problems encountered, and other similar relevant data as the Owner may require. § 3.3.21.1 The Construction Manager shall collect, review for accuracy, and compile the Contractors’ daily logs; and include them in the Construction Manager’s reports prepared and submitted in accordance with section 3.3.21.2. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 13 RS220-402-865247.v2 § 3.3.21.2 The Construction Manager shall record the progress of the Project. On a monthly basis, or otherwise as agreed to by the Owner, the Construction Manager shall submit written progress reports to the Owner and Architect, showing percentages of completion and other information identified below: .1 Work completed for the period; .2 Project schedule status; .3 Submittal schedule and status report, including a summary of remaining and outstanding submittals; .4 Request for information, Change Order, and Construction Change Directive status reports; .5 Tests and inspection reports; .6 Status report of nonconforming and rejected Work; .7 Daily logs; .8 Summary of all Contractors’ Applications for Payment; .9 Cumulative total of the Cost of the Work to date including the Construction Manager’s compensation and reimbursable expenses at the job site, if any; .10 Cash-flow and forecast reports; .11 Photographs to document the progress of the Project; .12 Status reports on permits and approvals of authorities having jurisdiction; and .13 Any other items the Owner may require: « » § 3.3.21.3 In addition, for Projects constructed on the basis of the Cost of the Work, the Construction Manager shall include the following additional information in its progress reports: .1 .2 .3 Cost summary, comparing actual costs to updated cost estimates; and .4 Any other items as the Owner may require: « » § 3.3.22 Utilizing the documents provided by the Contractors, the Construction Manager shall make available, at the Project site, the Contract Documents, including Change Orders, Construction Change Directives, and other Modifications, in good order and marked currently to indicate field changes and selections made during construction, and the approved Shop Drawings, Product Data, Samples, and similar required submittals. These shall be in electronic form or paper copy, available to the Owner, Architect, and Contractors. Upon completion of the Project, the Construction Manager shall deliver them to the Owner. § 3.3.23 The Construction Manager shall arrange for the delivery, storage, protection and security of Owner- purchased materials, systems and equipment that are a part of the Project until such items are incorporated into the Work. § 3.3.24 With the Owner’s maintenance personnel, the Construction Manager shall observe the Contractors’ final testing and start-up of utilities, operational systems and equipment and observe any commissioning as the Contract Documents may require. § 3.3.25 When the Construction Manager considers each Contractor’s Work or a designated portion thereof substantially complete, the Construction Manager shall, jointly with that Contractor, prepare for the Architect a list of incomplete or unsatisfactory items and a schedule for their completion. The Construction Manager shall assist the Architect in conducting inspections to determine whether the Work or designated portion thereof is substantially complete. § 3.3.26 When the Work of all of the Contractors, or designated portion thereof, is substantially complete, the Construction Manager shall prepare, and the Construction Manager and Architect shall execute, a Certificate of Substantial Completion. The Construction Manager shall submit the executed Certificate to the Owner and Contractors. The Construction Manager shall coordinate the correction and completion of the Work. Following issuance of a Certificate of Substantial Completion of the Work or a designated portion thereof, the Construction Manager shall perform an inspection to confirm the completion of the Work of the Contractors and make recommendations to the Architect when the Work of all of the Contractors is ready for final inspection. The Construction Manager shall assist the Architect in conducting the final inspection. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 14 RS220-402-865247.v2 § 3.3.27 The Construction Manager shall forward to the Owner, with a copy to the Architect, the following information received from the Contractors: (1) certificates of insurance ; (2) consent of surety or sureties, if any, to reduction in or partial release of retainage or the making of final payment; (3) affidavits, receipts, releases and waivers of liens or bonds indemnifying the Owner against liens; and (4) any other documentation required of the Contractors under the Contract Documents, including warranties and similar submittals. § 3.3.28 The Construction Manager shall coordinate receipt, and delivery to the Owner, of other items provided by the Contractors, such as keys, manuals, and record drawings. The Construction Manager shall forward to the Architect a final Project Application for Payment and Project Certificate for Payment, or a final Application for Payment and final Certificate for Payment, upon the Contractors’ compliance with the requirements of the Contract Documents. § 3.3.29 Duties, responsibilities and limitations of authority of the Construction Manager as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner and Construction Manager. Consent shall not be unreasonably withheld. § 3.3.30 Upon request of the Owner, and prior to the expiration of one year from the date of Substantial Completion, the Construction Manager shall, without additional compensation, conduct a meeting with the Owner and Architect to review the facility operations and performance. ARTICLE 4 SUPPLEMENTAL AND ADDITIONAL SERVICES § 4.1 Supplemental Services § 4.1.1 The services listed below are not included in Basic Services but may be required for the Project. The Construction Manager shall provide the listed Supplemental Services only if specifically designated in the table below as the Construction Manager’s responsibility, and the Owner shall compensate the Construction Manager as provided in Section 11.2. Unless otherwise specifically addressed in this Agreement, if neither the Owner nor the Construction Manager is designated, the parties agree that the listed Supplemental Service is not being provided for the Project. (Designate the Construction Manager’s Supplemental Services and the Owner’s Supplemental Services required for the Project by indicating whether the Construction Manager or Owner shall be responsible for providing the identified Supplemental Service. Insert a description of the Supplemental Services in Section 4.1.2 below or attach the description of services as an exhibit to this Agreement.) Supplemental Services Responsibility (Construction Manager, Owner or not provided) § 4.1.1.1 Measured drawings Construction Manager § 4.1.1.2 Tenant-related services Construction Manager, if required § 4.1.1.3 Commissioning Construction Manager. § 4.1.1.4 Development of a commissioning plan Construction Manager. § 4.1.1.5 Sustainable Project Services pursuant to Section 4.1.3 N/A § 4.1.1.6 Furniture, furnishings and equipment delivery, and installation coordination Construction Manager, if required § 4.1.1.7 Furniture, furnishings and equipment procurement assistance N/A § 4.1.1.8 Assistance with site selection N/A § 4.1.1.9 Assistance with selection of the Architect Construction Manager § 4.1.1.10 Furnish land survey Construction Manager, if required § 4.1.1.11 Furnish geotechnical engineering services Construction Manager § 4.1.1.12 Provide insurance advice Owner, if required § 4.1.1.13 Provide supplemental Project risk analysis and mitigation strategies Owner, if required § 4.1.1.14 Stakeholder relationships management N/A § 4.1.1.15 Owner moving coordination Construction Manager, if required. § 4.1.1.16 Coordination of Owner’s Separate Contractors Construction Manager, if required § 4.1.1.17 Other Supplemental Services N/A AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 15 RS220-402-865247.v2 § 4.1.2 Description of Supplemental Services § 4.1.2.1 A description of each Supplemental Service identified in Section 4.1.1 as the Construction Manager’s responsibility is provided below. (Describe in detail the Construction Manager’s Supplemental Services identified in Section 4.1.1 or, if set forth in an exhibit, identify the exhibit.) «N/A » § 4.1.2.2 A description of each Supplemental Service identified in Section 4.1.1 as the Owner’s responsibility is provided below. (Describe in detail the Owner’s Supplemental Services identified in Section 4.1.1 or, if set forth in an exhibit, identify the exhibit.) «N/A » § 4.1.3 If the Owner identified a Sustainable Objective in Article 1, the Construction Manager shall provide, as a Supplemental Service, the Sustainability Services per the agreed-upon terms, conditions and services related to the Owner’s Sustainable Objective. The Owner shall compensate the Construction Manager as provided in Section 11.2. § 4.2 Construction Manager’s Additional Services § 4.2.1 The Construction Manager may provide Additional Services after execution of this Agreement, without invalidating this Agreement. Except to the extent services are required due to the fault of the Construction Manager, any Additional Services provided in accordance with this Section 4.2 shall entitle the Construction Manager to compensation pursuant to Section 11.3. In the event that Construction Manager believes that it may be required to perform any Additional Services, it shall first notify Owner in writing of such services, with a quoted price for the same, and obtain advance written approval before performing the same, except in the event the Construction Manager is taking emergency action. § 4.2.2 Upon recognizing the need to perform the following Additional Services, the Construction Manager shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. The Construction Manager shall not proceed to provide the following Additional Services until the Construction Manager receives the Owner’s written authorization: .1 Services necessitated by a change in the Initial Information, previous instructions or approvals given by the Owner, or a material change in the Project including size, quality, complexity, the Owner’s schedule or budget for Cost of the Work, or procurement or delivery method, or bid packages in addition to those listed in Section 1.1.6. Services necessitated by sections 6.4 and 6.6 shall not be considered additional services; .2 Services necessitated by the enactment or revision of codes, laws, regulations or official interpretations after the date of this Agreement; .3 Services necessitated by decisions of the Owner not rendered in a timely manner or any other failure of performance on the part of the Owner or the Owner’s other consultants or contractors; .4 Preparation of documentation for alternate bid or proposal requests proposed by the Owner; .5 Preparation for, and attendance at, public presentations, meetings or hearings in excess of six (6); .6 Preparation for, and attendance at, a dispute resolution proceeding or legal proceeding, except where the Construction Manager is party thereto; .7 Consultation concerning replacement of Work resulting from fire or other cause during construction and furnishing services required in connection with the replacement of such Work; or .8 Assistance to the Initial Decision Maker. § 4.2.3 To avoid delay in the Construction Phase, the Construction Manager shall provide the following Additional Services, notify the Owner with reasonable promptness, and explain the facts and circumstances giving rise to the need. If, upon receipt of the Construction Manager’s notice, the Owner determines that all or parts of the services are not required, the Owner shall give prompt written notice to the Construction Manager of the Owner’s determination. The Owner shall compensate the Construction Manager for the services provided prior to the Construction Manager’s receipt of the Owner’s notice: AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 16 RS220-402-865247.v2 .1 Providing assistance to the Initial Decision Maker in evaluating an extensive number of Claims submitted by a Contractor or others in connection with the Work. .2 Services required in an emergency to coordinate the activities of a Contractor or Contractors in the event of risk of personal injury or serious property damage, consistent with Section 3.3.15. § 4.2.4 Except for services required under Section 3.3.30, Construction Phase Services provided more than 60 days after (1) the date of Substantial Completion of the Work, or (2) the anticipated date of Substantial Completion identified in the Initial Information, whichever is earlier, shall be compensated as Additional Services to the extent the Construction Manager incurs additional cost in providing those Construction Phase Services. § 4.2.5 If the services covered by this Agreement have not been completed within «Twenty-Three » ( «23» ) months of the date of this Agreement, through no fault of the Construction Manager, extension of the Construction Manager’s services beyond that time shall be compensated as Additional Services. ARTICLE 5 OWNER’S RESPONSIBILITIES § 5.1 Unless otherwise provided for under this Agreement, the Owner shall provide information in a timely manner regarding requirements for and limitations on the Project, including a written program, which shall set forth the Owner’s objectives; schedule; constraints and criteria; special equipment; systems; and site requirements. § 5.2 The Owner shall establish the Owner’s budget for the Project, including (1) the budget for the Cost of the Work as defined in Section 6.1; (2) the Owner’s other costs; and (3) reasonable contingencies related to all of these costs. The Owner shall update the Owner’s budget for the Project as necessary throughout the duration of the Project until final completion. If the Owner significantly increases or decreases the Owner’s budget for the Cost of the Work, the Owner shall notify the Construction Manager and Architect. The Owner and the Architect, in consultation with the Construction Manager, shall thereafter agree to a corresponding change in the Project’s scope and quality. § 5.3 The Owner acknowledges that accelerated, phased, or fast-track design and construction provides a benefit, but also carries with it the risk of additional costs. If the Owner selects accelerated, phased or fast-track scheduling, the Owner agrees to include in the budget for the Project sufficient contingencies to cover such costs. § 5.4 LTF Architecture, LLC shall be the Project Architect. § 5.5 The Owner shall identify a representative authorized to act on the Owner’s behalf with respect to the Project. Construction Manager acknowledges that Owner’s representative will need City Council approval for certain contract adjustments per City policy, and the Owner’s representative shall obtain any such City Council approval prior to communicating any decisions to the Construction Manager. The Owner shall render decisions pertaining to documents the Construction Manager submits in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Construction Manager’s services. § 5.6 The Construction Manager’s consultants or the Contractors, as applicable shall furnish surveys to describe physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site, including without limitation as-built surveys as required pursuant to the Lease and the Development Agreement. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; designated wetlands; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries, and contours of the site; locations, dimensions, and other necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. § 5.7 Unless otherwise required by this Agreement to be provided by the Construction Manager, the Owner shall furnish services of geotechnical engineers, which may include test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations. § 5.8 The Owner shall provide the Supplemental Services designated as the Owner’s responsibility in Section 4.1.1. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 17 RS220-402-865247.v2 § 5.9 If the Owner identified a Sustainable Objective in Article 1, the Owner shall fulfill its responsibilities as required in AIA Document E235™–2019, Sustainable Projects Exhibit, Construction Manager as Adviser Edition, attached to this Agreement. § 5.10 The Owner shall coordinate the services of its own consultants with those services provided by the Construction Manager. Upon the Construction Manager’s request, the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner’s consultants. The Owner shall furnish the services of consultants other than those designated as the responsibility of the Construction Manager in this Agreement, or authorize the Construction Manager to furnish them as an Additional Service, when the Construction Manager requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants and contractors maintain insurance, including professional liability insurance, as appropriate to the services or work provided. § 5.11 The Owner shall furnish tests, inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. § 5.12 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner’s needs and interests. § 5.13 The Owner shall provide prompt written notice to the Construction Manager and Architect if the Owner becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in the Architect’s Instruments of Service or any fault or defect in the Construction Manager’s services. § 5.14 The Owner reserves the right to perform construction and operations related to the Project with the Owner’s own forces, and to award contracts in connection with the Project which are not part of the Construction Manager’s responsibilities under this Agreement. The Construction Manager shall notify the Owner if any such independent action will interfere with the Construction Manager’s ability to perform the Construction Manager’s responsibilities under this Agreement. When performing construction or operations related to the Project, the Owner agrees to be subject to the same obligations and to have the same rights as the Contractors. § 5.15 The Owner shall communicate with the Contractors and the Construction Manager’s consultants through the Construction Manager about matters arising out of or relating to the Contract Documents. The Owner and Construction Manager shall include the Architect in all communications that relate to or affect the Architect’s services or professional responsibilities. The Owner shall promptly notify the Architect of the substance of any direct communications between the Owner and the Construction Manager otherwise relating to the Project. Communications by and with the Architect’s consultants shall be through the Architect. § 5.16 Before executing the Contracts for Construction, the Owner shall coordinate the Construction Manager’s duties and responsibilities set forth in the Contracts for Construction with the Construction Manager’s services set forth in this Agreement. The Owner shall provide the Construction Manager a copy of the executed agreements between the Owner and Contractors, including the General Conditions of the Contracts for Construction. § 5.17 The Owner shall provide the Construction Manager access to the Project site prior to commencement of the Work and shall obligate the Contractors to provide the Construction Manager access to the Work wherever it is in preparation or progress. § 5.18 Within 15 days after receipt of a written request from the Construction Manager, the Owner shall furnish the requested information as necessary and relevant for the Construction Manager to evaluate, give notice of, or enforce lien rights. § 5.19 The services, information and reports provided by the Owner pursuant to this Article 5 shall be provided at the Owner’s expense, and the Construction Manager shall be entitled to reasonably rely upon the accuracy and completeness thereof. ARTICLE 6 COST OF THE WORK § 6.1 For purposes of this Agreement, the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed or specified by the Architect and shall include the Contractors’ general conditions costs, overhead and profit. The Cost of the Work also includes the reasonable value of labor, materials, and AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 18 RS220-402-865247.v2 equipment, donated to, or otherwise furnished by, the Owner. The Cost of the Work includes the compensation of the Construction Manager and Construction Manager’s Consultants during the Construction Phase only, including compensation for reimbursable expenses at the job site, if any. The Cost of the Work does not include the compensation of the Architect; the costs of the land, rights-of-way, financing, or contingencies for changes in the Work; or other costs that are the responsibility of the Owner. § 6.2 The Owner’s budget for the Cost of the Work is provided in Initial Information, and shall be adjusted throughout the Project as required under Sections 5.2 and 6.4. Evaluations of the Owner’s budget for the Cost of the Work, and the estimates of the Cost of the Work prepared by the Construction Manager, represent the Construction Manager’s judgment as a person or entity familiar with the construction industry. It is recognized, however, that neither the Construction Manager nor the Owner has control over the cost of labor, materials; or equipment; the Contractors’ methods of determining bid prices; or competitive bidding, market, or negotiating conditions. Accordingly, the Construction Manager cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner’s budget for the Cost of the Work, or from any estimate of the Cost of the Work, or evaluation, prepared or agreed to by the Construction Manager. § 6.3 If the Architect is providing cost estimating services as a Supplemental Service, and a discrepancy exists between the Construction Manager’s cost estimates and the Architect’s cost estimates, the Construction Manager and the Architect shall work together to reconcile the cost estimates. § 6.4 If the Construction Manager’s estimate of the Cost of the Work exceeds the Owner’s budget for the Cost of the Work, the Construction Manager, in consultation with the Architect, shall make appropriate recommendations to the Owner to adjust the Project’s size, quality, or budget for the Cost of the Work, and the Owner shall cooperate with the Construction Manager and Architect in making such adjustments. § 6.5 If the Construction Manager’s estimate of the Cost of the Work exceeds the Owner’s budget for the Cost of the Work, the Owner shall .1 give written approval of an increase in the budget for the Cost of the Work; .2 terminate in accordance with Section 9.5; .3 in consultation with the Construction Manager and Architect, revise the Project program, scope, or quality as required to reduce the Cost of the Work; or .4 implement any other mutually acceptable alternative. § 6.6 If the Owner chooses to revise the Project program, scope, or quality to reduce the Cost of the Work pursuant to Section 6.5.3, or if the bids or proposals received from the prospective Contractors, in the aggregate, exceed the Owner’s budget for the Cost of the Work, and the Owner chooses to revise the Project program, scope, or quality to reduce the Cost of the Work , the Construction Manager shall cooperate with the Owner and Architect to develop the necessary revisions, update the cost estimate, and obtain additional bids. The Construction Manager will perform the services described in Sections 6.4 and 6.6 without additional compensation. ARTICLE 7 COPYRIGHTS AND LICENSES The Construction Manager and the Construction Manager’s consultants, if any, shall not own or claim a copyright in the Instruments of Service. The Construction Manager, the Construction Manager’s consultants, if any, and the Owner warrant that in transmitting Instruments of Service, or any other information, the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project. ARTICLE 8 CLAIMS AND DISPUTES § 8.1 General § 8.1.1 The Owner and Construction Manager shall commence all claims and causes of action against the other and arising out of or related to this Agreement, whether in contract, tort, or otherwise, in accordance with the requirements of the binding dispute resolution method selected in this Agreement and within the period specified by applicable law. § 8.1.2 To the extent damages are covered by property insurance, the Owner and Construction Manager waive all rights against each other and against the contractors, consultants, agents, and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in AIA Document A232–2019, General Conditions of the Contract for Construction. The Owner or the Construction Manager, as appropriate, shall AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 19 RS220-402-865247.v2 require of the contractors, consultants, agents, and employees of any of them, similar waivers in favor of the other parties enumerated herein. § 8.1.3 The Construction Manager shall indemnify and hold the Owner and the Owner’s officers and employees harmless from and against damages, losses and judgments arising from claims by third parties, including reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent they are caused by the negligent acts or omissions of the Construction Manager, its employees and its consultants in the performance of professional services under this Agreement. The Construction Manager’s obligation to indemnify and hold the Owner and the Owner’s officers and employees harmless does not include a duty to defend.. All indemnification obligations under this Section shall survive termination, expiration or cancellation of this Agreement. The Construction Manager agrees, that in order to protect itself and the Owner under the indemnity provisions set forth in this Section 8.1.3, it will at all times during the term of this Agreement keep in force policies of insurances required in Section 2.8. Nothing in this Contract shall be construed to waive any immunities or limitations to which Owner is entitled under Minnesota Statute, Chapter 466 or otherwise. § 8.1.4 The Construction Manager and Owner waive consequential damages for claims, disputes, or other matters in question, arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of this Agreement, except as specifically provided in Section 9.5. § 8.2 Mediation § 8.2.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation. Mediation is not a condition precedent to commencing litigation. If litigation is commenced, the parties agree to mediate before proceeding with formal discovery. § 8.2.2 Reserved. § 8.2.3 The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 8.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 8.2, the method of binding dispute resolution shall be the following: (Check the appropriate box.) [ « X » ] Litigation in a court of competent jurisdiction § 8.3 Reserved § 8.4 The provisions of this Article 8 shall survive the termination of this Agreement. ARTICLE 9 TERMINATION OR SUSPENSION § 9.1 Except for amounts that are the subject of a good faith dispute, if the Owner fails to make payments to the Construction Manager in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Construction Manager’s option, cause for suspension of performance of services under this Agreement. If the Construction Manager elects to suspend services, the Construction Manager shall give seven days’ written notice to the Owner before suspending services. In the event of a suspension of services, the Construction Manager shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Owner shall pay the Construction Manager all sums due in accordance with the Agreement prior to suspension and any expenses incurred in the interruption and resumption of the Construction Manager’s services. The Construction Manager’s fees for the remaining services and the time schedules shall be equitably adjusted. § 9.2 Once the Owner issues bonds to finance the Project, the Owner may only terminate for cause pursuant to section 9.4. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 20 RS220-402-865247.v2 § 9.3 Intentionally Omitted. § 9.4 Either party may terminate this Agreement upon not less than six months written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. Such notice to terminate must be preceded by a written notice from the non-defaulting party to the defaulting party describing the default and providing the defaulting party a six-month period to cure the default. If the defaulting party is diligently proceeding to cure the default, the parties will mutually agree in writing to a reasonably longer cure period. § 9.5 If the Construction Manager terminates this Agreement pursuant to Section 9.4, the Owner shall compensate the Construction Manager for services performed prior to termination, Reimbursable Expenses incurred, and reasonable costs attributable to termination. § 9.6 Except as otherwise expressly provided herein, this Agreement shall terminate one year from the date of Substantial Completion. ARTICLE 10 MISCELLANEOUS PROVISIONS § 10.1 This Agreement shall be governed by the law of the place where the Project is located, excluding that jurisdiction’s choice of law rules. § 10.2 Terms in this Agreement shall have the same meaning as those in AIA Document A232–2019, General Conditions of the Contract for Construction, as modified, except for purposes of this Agreement, the term “Work” shall include the work of all Contractors under the administration of the Construction Manager and the Architect. § 10.3 The Owner and Construction Manager, respectively, bind themselves, their agents, successors, assigns, and legal representatives to this Agreement. Neither the Owner nor the Construction Manager shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project if the lender agrees to assume the Owner’s rights and obligations under this Agreement, including any payments due to the Construction Manager by the Owner prior to the assignment. § 10.4 If the Owner requests the Construction Manager to execute certificates, the proposed language of such certificates shall be submitted to the Construction Manager for review at least 14 days prior to the requested dates of execution. If the Owner requests the Construction Manager to execute consents reasonably required to facilitate assignment to a lender, the Construction Manager shall execute all such consents that are consistent with this Agreement, provided the proposed consent is submitted to the Construction Manager for review at least 14 days prior to execution. The Construction Manager shall not be required to execute certificates or consents that would require knowledge, services, or responsibilities beyond the scope of this Agreement. § 10.5 Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either the Owner or Construction Manager. § 10.6 Unless otherwise required in this Agreement, the Construction Manager shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site. § 10.7 The Construction Manager shall have the right to include photographic or artistic representations of the design of the Project among the Construction Manager’s promotional and professional materials. The Construction Manager shall be given reasonable access to the completed Project to make such representations. However, the Construction Manager’s materials shall not include the Owner’s confidential or proprietary information if the Owner has previously advised the Construction Manager in writing of the specific information considered by the Owner to be confidential or proprietary. This Section 10.7 shall survive the termination of this Agreement unless the Owner terminates this Agreement for cause pursuant to Section 9.4. § 10.8 Reserved. § 10.9 The invalidity of any provision of the Agreement shall not invalidate the Agreement or its remaining provisions. If it is determined that any provision of the Agreement violates any law, or is otherwise invalid or AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 21 RS220-402-865247.v2 unenforceable, then that provision shall be revised to the extent necessary to make that provision legal and enforceable. In such case the Agreement shall be construed, to the fullest extent permitted by law, to give effect to the parties’ intentions and purposes in executing the Agreement. § 10.10 Record Keeping—Availability and Retention. Pursuant to Minnesota Statutes, Section 16C.05, subd. 5, Construction Manager agrees that the books, records, documents and accounting procedures and practices of Construction Manager, that are relevant to the Contract or transaction, are subject to examination by the Owner and the state auditor for a minimum of six (6) years. Construction Manager shall maintain such records for a minimum of six (6) years after final payment. § 10.11 Data Practices. The Parties acknowledge that this Contract is subject to the applicable requirements of Minnesota’s Government Data Practices Act (Act), Minnesota Statutes, Section 13.01 et seq. The Construction Manager agrees to cooperate with the Owner with respect to the Owner’s obligations to comply with the requirements of the Act. § 10.12 Non-Discrimination. The provisions of any law or ordinance relating to civil rights and discrimination applicable to the services for which the Construction Manager is responsible under this Agreement shall be considered part of this Agreement as if fully set forth herein. § 10.13 Modifications/Amendment. Any alterations, variations, modifications, amendments or waivers of the provisions of this Contract shall only be valid when they have been reduced to writing, and signed by authorized representative of the Owner and the Construction Manager. § 10.14 Compliance with Laws. The Construction Manager shall comply with any Federal, State and local laws, statutes, ordinances, rules and regulations now in effect to the extent applicable to the Construction Manager’s performance of its services under this Agreement. § 10.15 No Waiver. Any Party’s failure in any one or more instances to insist upon strict performance of any of the terms and conditions of this Contract or to exercise any right herein conferred shall not be construed as a waiver or relinquishment of that right or of that Party’s right to assert or rely upon the terms and conditions of this Contract. Any express waiver of a term of this Contract shall not be binding and effective unless made in writing and properly executed by the waiving Party. § 10.16 Survivability. All covenants, indemnities, guarantees, releases, representations and warranties by any Party or Parties, and any undischarged obligations of the Owner and The Construction Manager arising prior to the expiration of this Contract (whether by completion or earlier termination), shall survive such expiration. ARTICLE 11 COMPENSATION § 11.1 For the Construction Manager’s Basic Services described under Article 3, the Owner shall compensate the Construction Manager as follows: § 11.1.1 For Preconstruction Phase Services in Section 3.2: (Insert amount of, or basis for, compensation, including stipulated sums, multiples or percentages.) N/A § 11.1.2 For Construction Phase Services in Section 3.3: (Insert amount of, or basis for, compensation, including stipulated sums, multiples or percentages.) Zero ($0). Construction Manager is entitled to $203,333.33 per month for reimbursable expenses identified in Section 11.6.1 (“Stipulated Sum”), with a not-to-exceed amount of $3,660,000 (18 months x $203,333.33) inclusive of reimbursables. The $203,333.33 per month will be billed monthly on a lump-sum basis. Upon full audit and Final Completion of the Project, any unspent or Project cost savings will be handled pursuant to Section 6.2(b) of the Lease Agreement between the Rosemount Port Authority and LTF Lease Company, LLC, dated April ____, 2023 (the “Lease”). The Owner shall pay for all building permits and SAC charges. AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 22 RS220-402-865247.v2 § 11.2 For the Construction Manager’s Supplemental Services designated in Section 4.1.1, and for any Sustainability Services required pursuant to Section 4.1.3, the Owner shall compensate the Construction Manager as follows: (Insert amount of, or basis for, compensation. If necessary, list specific services to which particular methods of compensation apply.) Supplemental Services requested will be priced by Construction Manager using Stipulated Sum method. § 11.3 For Additional Services that may arise during the course of the Project, including those under Section 4.2, the Owner shall compensate the Construction Manager as follows: (Insert amount of, or basis for, compensation.) Supplemental Services requested will be priced by Construction Manager using Stipulated Sum method. § 11.4 Compensation for Supplemental and Additional Services of the Construction Manager’s consultants when not included in Sections 11.2 or 11.3, shall be the amount invoiced to the Construction Manager plus « » percent ( « » %), or as follows: (Insert amount of, or basis for computing, Construction Manager’s consultants’ compensation for Supplemental or Additional Services.) «N/A » § 11.5 The hourly billing rates for services of the Construction Manager and the Construction Manager’s consultants are set forth below. The rates shall be adjusted in accordance with the Construction Manager’s and Construction Manager’s consultants’ normal review practices. (If applicable, attach an exhibit of hourly billing rates or insert them below.) § 11.5.1 Hourly Rates for administrative and management personnel: N/A – Compensation shall be pursuant to Article 11.1.1 and 11.1.2. § 11.5.2 Regular Hourly Rates for field labor personnel for any miscellaneous general requirements or general conditions-type work: N/A – All miscellaneous general requirements or general conditions type work will be completed by Construction Manager pursuant to Article 11.1.1 and 11.1.2. § 11.6 Compensation for Reimbursable Expenses § 11.6.1 The following Reimbursable Expenses are included in Stipulated Sum amounts provided in Article 11.1.1 and 11.1.2: .1 Transportation and authorized out-of-town travel and subsistence; .2 Long distance services, dedicated data and communication services, teleconferences, Project web sites, and extranets; .3 Permitting and other fees required by authorities having jurisdiction over the Project, other than the building permit and SAC charges, which will be paid directly by Owner; .4 Printing, reproductions, plots, and standard form documents; .5 Postage, handling, and delivery; .6 Expense of overtime work requiring higher than regular rates, if authorized in advance by the Owner; .7 Professional photography, and presentation materials requested by the Owner; .8 If required by the Owner, and with the Owner’s prior written approval, the Construction Manager’s consultants’ expenses of professional liability insurance dedicated exclusively to this Project, or the expense of additional insurance coverage or limits in excess of that normally maintained by the Construction Manager’s consultants; .9 All taxes levied on professional services and on reimbursable expenses; .10 Site office expenses; .11 General conditions expenditures; AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 23 RS220-402-865247.v2 .12 Construction collaboration technology; .13 General liability, professional liability, and umbrella liability insurance; .14 Temporary facilities, including power, water, sanitation, temporary heating, propane, scaffolding, storage, and security; and .15 Other similar Project-related expenditures. § 11.6.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Construction Manager and the Construction Manager’s consultants are included in Article 11.1.1 and 11.1.2. § 11.8 Payments to the Construction Manager § 11.8.1 Initial Payment § 11.8.1.1 An initial payment of «zero» ($ «0.00» ) shall be made upon execution of this Agreement and is the minimum payment under this Agreement. It shall be credited to the Owner’s account in the final invoice. § 11.8.2 Progress Payments § 11.8.2.1 Unless otherwise agreed, payments for services shall be made monthly in proportion to services performed. Payments are due and payable upon presentation of the Construction Manager’s invoice. Amounts unpaid « sixty » ( « 60 » ) days after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Construction Manager. The provisions of the Municipal Prompt Payment Act shall govern late payments made under this Agreement. (Insert rate of monthly or annual interest agreed upon.) § 11.8.2.2 Reserved. § 11.8.2.3 Records of Reimbursable Expenses, expenses pertaining to Supplemental and Additional Services, and services performed on the basis of hourly rates shall be available to the Owner at mutually convenient times. The Construction Manager shall keep and maintain accurate documentation of all claimed reimbursable expenses. ARTICLE 12 SPECIAL TERMS AND CONDITIONS Special terms and conditions that modify this Agreement are as follows: (Include other terms and conditions applicable to this Agreement.) § 12.1 DOCUSIGN ELECTRONIC SIGNING SYSTEM. The Construction Manager has an agreement with DocuSign, Inc. (“DocuSign”) with respect to the DocuSign electronic signing system (the “DocuSign System”). The DocuSign System may be used to facilitate the administration and execution of the Owner’s Construction Contracts with the prime contractors and/or Subcontractors, as well as various other Contract Documents requiring signatures. Should the Owner elect to have the Construction Manager use the DocuSign System with respect to any portion of the Project, the Owner acknowledges and agrees that (i) the Owner conducted its own independent investigation and evaluation as to all legal and other considerations related to its decision to use the DocuSign System on the Project, (ii) the Owner did not rely on any advice, recommendations or representations of the Construction Manager in making the Owner’s independent determination to use the DocuSign System on the Project, (iii) the Construction Manager and DocuSign are not affiliated with each other and the Construction Manager does not warrant or guarantee any portion of the DocuSign System, (iv) the Construction Manager does not warrant or guarantee that the DocuSign system complies with or satisfies any legal requirements applicable to its use on the Project, and (v) to the fullest extent permitted by law, the Owner waives, and shall hold harmless and indemnify the Construction Manager from and against, all claims, causes of action, costs, expenses and damages (including reasonable attorney’s fees) arising out of or resulting from the use of the DocuSign System on the Project. ARTICLE 13 SCOPE OF THE AGREEMENT § 13.1 This Agreement represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and Construction Manager. § 13.2 This Agreement is comprised of the following documents identified below: AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 24 RS220-402-865247.v2 .1 AIA Document C132™–2019, Standard Form Agreement Between Owner and Construction Manager as Adviser, as modified .2 AIA Document E203™–2013, Building Information Modeling and Digital Data Exhibit, dated as indicated below: (Insert the date of the E203-2013 incorporated into this Agreement.) « » .3 Exhibits: (Check the appropriate box for any exhibits incorporated into this Agreement.) [ « » ] AIA Document E235™–2019, Sustainable Projects Exhibit, Construction Manager as Adviser Edition, dated as indicated below: (Insert the date of the E235-2019 incorporated into this agreement.) « » [ « » ] Other Exhibits incorporated into this Agreement: (Clearly identify any other exhibits incorporated into this Agreement, including any exhibits identified in Section 4.1.2.) « » .4 Other documents: (List other documents, if any, forming part of the Agreement.) This Agreement is entered into as of the day and year first written above. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this document by facsimile, pdf or other generally accepted electronic means (e.g., DocuSign) shall be effective as delivery of a manually executed counterpart of this document. Rosemount Port Authority LTF Construction Company, LLC OWNER (Signature) CONSTRUCTION MANAGER (Signature) « » « » « » (Printed name and title) (Printed name and title) AIA Document C132™ – 2019. Copyright © 1973, 1980, 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 11:25:17 ET on 03/17/2020 under Order No.7449099792 which expires on 12/13/2020, and is not for resale. User Notes: (860977505) 25 RS220-402-865247.v2 APPENDIX A Drawings and Specifications AIA® Document A232™ – 2019 General Conditions of the Contract for Construction, Construction Manager as Adviser Edition AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 1 RS220-402-865244.v2 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. This document is intended to be used in conjunction with AIA Documents A132™– 2019, Standard Form of Agreement Between Owner and Contractor, Construction Manager as Adviser Edition; B132™–2019, Standard Form of Agreement Between Owner and Architect, Construction Manager as Adviser Edition; and C132™–2019, Standard Form of Agreement Between Owner and Construction Manager as Adviser. ELECTRONIC COPYING of any portion of this AIA® Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document. for the following PROJECT: (Name, and location or address) Life Time Athletic – Rosemount Intersection of 145th Street West and Akron THE CONSTRUCTION MANAGER: (Name, legal status, and address) LTF Construction Company, LLC A Delaware LLC 2900 Corporate Place Chanhassen, MN 55317 THE OWNER: (Name, legal status, and address) Rosemount Port Authority 2875 145th Street West Rosemount, MN 55068 THE ARCHITECT: (Name, legal status, and address) LTF Architecture, LLC A Delaware LLC 2900 Corporate Place Chanhassen, MN 55317 AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 2 RS220-402-865244.v2 TABLE OF ARTICLES 1 GENERAL PROVISIONS 2 OWNER 3 CONTRACTOR 4 ARCHITECT AND CONSTRUCTION MANAGER 5 SUBCONTRACTORS 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7 CHANGES IN THE WORK 8 TIME 9 PAYMENTS AND COMPLETION 10 PROTECTION OF PERSONS AND PROPERTY 11 INSURANCE AND BONDS 12 UNCOVERING AND CORRECTION OF WORK 13 MISCELLANEOUS PROVISIONS 14 TERMINATION OR SUSPENSION OF THE CONTRACT 15 CLAIMS AND DISPUTES AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 3 RS220-402-865244.v2 ARTICLE 1 GENERAL PROVISIONS § 1.1 Basic Definitions § 1.1.1 The Contract Documents. The Contract Documents are enumerated in the Agreement between the Owner and Contractor (hereinafter the Agreement) and consist of the Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, Payment Bond and Performance Bond, other documents listed in the Agreement, and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive, or (4) a written order for a minor change in the Work issued by the Architect. Unless specifically enumerated in the Agreement, the Contract Documents do not include the advertisement or invitation to bid, Instructions to Bidders, sample forms, other information furnished by the Owner in anticipation of receiving bids or proposals, the Contractor’s bid or proposal, or portions of addenda relating to bidding or proposal requirements. § 1.1.2 The Contract. The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations, or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Contractor and the Architect or the Architect’s consultants, (2) between the Owner and the Construction Manager or the Construction Manager’s consultants, (3) between the Owner and the Architect or the Architect’s consultants, (4) between the Contractor and the Construction Manager or the Construction Manager’s consultants, (5) between the Owner and a Subcontractor or Sub-subcontractor (6) between the Construction Manager and the Architect, or (7) between any persons or entities other than the Owner and Contractor. The Construction Manager and Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of their duties. § 1.1.3 The Work. The term “Work” means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or a part of the Project. § 1.1.4 The Project. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by other Contractors, and by the Owner’s own forces and Separate Contractors. § 1.1.5 Contractors. Contractors are persons or entities, other than the Contractor or Separate Contractors, who perform Work under contracts with the Owner that are administered by the Architect and Construction Manager. § 1.1.6 Separate Contractors. Separate Contractors are persons or entities who perform construction under separate contracts with the Owner not administered by the Architect and Construction Manager. § 1.1.7 The Drawings. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams. § 1.1.8 The Specifications. The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. § 1.1.9 Instruments of Service. Instruments of Service are representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by the Architect and the Architect’s consultants under their respective professional services agreements. Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, and other similar materials. § 1.1.10 Initial Decision Maker. The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in accordance with Section 15.2. The Initial Decision Maker shall not show partiality to the Owner or Contractor and shall not be liable for results of interpretations or decisions rendered in good faith. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 4 RS220-402-865244.v2 § 1.1.11 Tenant. The term “Tenant” means LTF Lease Company, LLC. The Owner and Tenant have entered a Lease Agreement related to the Owner’s property and the Project, after completion. § 1.2 Correlation and Intent of the Contract Documents § 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. § 1.2.1.1 The invalidity of any provision of the Contract Documents shall not invalidate the Contract or its remaining provisions. If it is determined that any provision of the Contract Documents violates any law, or is otherwise invalid or unenforceable, then that provision shall be revised to the extent necessary to make that provision legal and enforceable. In such case the Contract Documents shall be construed, to the fullest extent permitted by law, to give effect to the parties’ intentions and purposes in executing the Contract. § 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. § 1.2.3 Unless otherwise stated in the Contract Documents, words that have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. § 1.3 Capitalization Terms capitalized in these General Conditions include those that are (1) specifically defined, (2) the titles of numbered articles, or (3) the titles of other documents published by the American Institute of Architects. § 1.4 Interpretation In the interest of brevity the Contract Documents frequently omit modifying words such as “all” and “any” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. § 1.5 Ownership and Use of Drawings, Specifications, and Other Instruments of Service § 1.5.1 The Architect and the Architect’s consultants shall be deemed the authors and owners of their respective Instruments of Service, including the Drawings and Specifications, and retain all common law, statutory, and other reserved rights in their Instruments of Service, including copyrights. The Contractor, Subcontractors, sub- subcontractors, and suppliers shall not own or claim a copyright in the Instruments of Service. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the Architect’s or Architect’s consultants’ reserved rights. § 1.5.2 The Contractor, Subcontractors, Sub-subcontractors, and suppliers are authorized to use and reproduce the Instruments of Service provided to them, subject to any protocols established pursuant to Sections 1.7 and 1.8, solely and exclusively for execution of the Work. All copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of Service. The Contractor, Subcontractors, Sub-subcontractors, and suppliers may not use the Instruments of Service on other projects or for additions to the Project outside the scope of the Work without the specific written consent of the Owner, Architect, and the Architect’s consultants. § 1.6 Notice § 1.6.1 Except as otherwise provided in Section 1.6.2, where the Contract Documents require one party to notify or give notice to the other party, such notice shall be provided in writing to the designated representative of the party to whom the notice is addressed and shall be deemed to have been duly served if delivered in person, by mail, by courier, or by electronic transmission if a method for electronic transmission is set forth in the Agreement. § 1.6.2 Notice of Claims as provided in Section 15.1.3 shall be provided in writing and shall be deemed to have been duly served only if delivered to the designated representative of the party to whom the notice is addressed by certified or registered mail, or by courier providing proof of delivery. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 5 RS220-402-865244.v2 § 1.7 Digital Data Use and Transmission The parties shall agree upon protocols governing the transmission and use of Instruments of Service or any other information or documentation in digital form. The parties may use AIA Document E203™–2013, Building Information Modeling and Digital Data Exhibit or other agreed upon form, to establish the protocols for the development, use, transmission, and exchange of digital data. § 1.8 Building Information Models Use and Reliance Any use of, or reliance on, all or a portion of a building information model without written agreement to protocols governing the use of, and reliance on, the information contained in the model and without having those protocols set forth in AIA Document E203™–2013, Building Information Modeling and Digital Data Exhibit, and the requisite AIA Document G202™–2013, Project Building Information Modeling Protocol Form, or other agreed upon form shall be at the using or relying party’s sole risk and without liability to the other party and its contractors or consultants, the authors of, or contributors to, the building information model, and each of their agents and employees. ARTICLE 2 OWNER § 2.1 General § 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall identify a representative authorized to act on the Owner’s behalf only with respect to specific matters delegated to the representative in writing by the Owner’s governing body.. Except as otherwise provided in Section 4.2.1, the Construction Manager and the Architect do not have such authority. The term “Owner” means the Owner or the Owner’s authorized representative. § 2.2 Evidence of the Owner’s Financial Arrangements § 2.2.1 Prior to commencement of the Work, and upon written request by the Contractor, the Owner shall furnish to the Contractor reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract. The Contractor shall have no obligation to commence the Work until the Owner provides such evidence. If commencement of the Work is delayed under this Section 2.2.1, the Contract Time shall be extended appropriately. § 2.2.2 Following commencement of the Work and upon written request by the Contractor, the Owner shall furnish to the Contractor reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract only if (1) the Owner fails to make payments to the Contractor as the Contract Documents require; (2) the Contractor identifies in writing a reasonable concern regarding the Owner’s ability to make payment when due; or (3) a change in the Work materially changes the Contract Sum. If the Owner fails to provide such evidence, as required, within fourteen days of the Contractor’s request, the Contractor may immediately stop the Work and, in that event, shall notify the Owner that the Work has stopped. However, if the request is made because a change in the Work materially changes the Contract Sum under (3) above, the Contractor may immediately stop only that portion of the Work affected by the change until reasonable evidence is provided. If the Work is stopped under this Section 2.2.2, the Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor’s reasonable costs of shutdown, delay and start-up, plus interest as provided in the Contract Documents. § 2.2.3 After the Owner furnishes evidence of financial arrangements under this Section 2.2, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor. § 2.2.4 Where the Owner has designated information furnished under this Section 2.2 as “confidential,” the Contractor shall keep the information confidential and shall not disclose it to any other person. However, the Contractor may disclose “confidential” information, after seven (7) days’ notice to the Owner, where disclosure is required by law, including a subpoena or other form of compulsory legal process issued by a court or governmental entity, or by court or arbitrator(s) order. The Contractor may also disclose “confidential” information to its employees, consultants, sureties, Subcontractors and their employees, Sub-subcontractors, and others who need to know the content of such information solely and exclusively for the Project and who agree to maintain the confidentiality of such information. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 6 RS220-402-865244.v2 § 2.3 Information and Services Required of the Owner § 2.3.1 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. Unless otherwise provided under the Contract Documents, the Owner, assisted by the Construction Manager, shall secure and pay for the building permit. § 2.3.2 The Construction Manager shall retain an architect lawfully licensed to practice architecture, or an entity lawfully practicing architecture, in the jurisdiction where the Project is located. That person or entity is identified as the Architect in the Agreement and is referred to throughout the Contract Documents as if singular in number. § 2.3.3 The Owner shall retain a construction manager adviser lawfully practicing construction management in the jurisdiction where the Project is located. That person or entity is identified as the Construction Manager in the Agreement and is referred to throughout the Contract Documents as if singular in number. § 2.3.4 If the employment of the Construction Manager or Architect terminates, the Owner shall employ a successor construction manager or the Construction Manager shall employ a successor architect to whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the Construction Manager or Architect, respectively. § 2.3.5 Except as otherwise required by the Contract Documents, the Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. § 2.3.6 The Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or services under the Owner’s control and relevant to the Contractor’s performance of the Work with reasonable promptness after receiving the Contractor’s written request for such information or services. § 2.3.7 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one copy of the Contract Documents for purposes of making reproductions pursuant to Section 1.5.2. § 2.3.8 The Owner shall forward all communications to the Contractor through the Construction Manager. Other communication shall be made as set forth in Section 4.2.6. § 2.4 Owner’s Right to Stop the Work If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3. § 2.5 Owner’s Right to Carry Out the Work If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a ten-day period after receipt of notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies the Owner may have, correct such default or neglect. Such action by the Owner and amounts charged to the Contractor are both subject to review by the Construction Manager and prior concurrence of the Architect, and the Construction Manager or Architect may, pursuant to Section 9.5.1, withhold or nullify a Certificate for Payment in whole or in part, to the extent reasonably necessary to reimburse the Owner for the reasonable cost of correcting such deficiencies, including Owner’s expenses and compensation for the Construction Manager’s and Architect’s and their respective consultants’ additional services made necessary by such default, neglect, or failure. If current and future payments are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. If the Contractor disagrees with the actions of the Owner or the Architect, or the amounts claimed as costs to the Owner, the Contractor may file a Claim pursuant to Article 15. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 7 RS220-402-865244.v2 ARTICLE 3 CONTRACTOR § 3.1 General § 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Contractor shall be lawfully licensed, if required in the jurisdiction where the Project is located. The Contractor shall designate in writing a representative who shall have express authority to bind the Contractor with respect to all matters under this Contract. The term “Contractor” means the Contractor or the Contractor’s authorized representative. § 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents. § 3.1.3 The Contractor shall not be relieved of its obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Construction Manager or Architect in their administration of the Contract, or by tests, inspections or approvals required or performed by persons or entities other than the Contractor. § 3.2 Review of Contract Documents and Field Conditions by Contractor § 3.2.1 By executing the Contract, the Contractor represents that the Contractor has reviewed and understands the Contract Documents, visited the Site and is familiar with local conditions under which the Work is to be performed, has correlated personal observations with the requirements of the Contract Documents, and has notified the Architect of and obtained clarification of any discrepancies which have become apparent during the bidding or proposal period. § 3.2.2 Because the Contract Documents are complementary, the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 2.3.5, shall take field measurements of any existing conditions related to that portion of the Work, and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the Construction Manager and Architect any errors, inconsistencies or omissions discovered by or made known to the Contractor as a request for information submitted to the Construction Manager in such form as the Construction Manager and Architect may require. It is recognized that the Contractor’s review is made in the Contractor’s capacity as a contractor and not as a licensed design professional, unless otherwise specifically provided in the Contract Documents. § 3.2.3 The Contractor must take field measurements and verify Site conditions, and must carefully compare such field measurements and Site conditions and other information known to the Contractor with the Contract Documents. § 3.2.4 The Contractor must make frequent inspections during the progress of the Work to confirm that Work previously performed by the Contractor is in compliance with the Contract Documents and applicable laws and regulations bearing on the performance of the Work and that portions of the Work previously performed by the Contractor are in proper condition to receive subsequent work. § 3.2.5 If the Contractor believes that any portions of the Contract Documents do not comply with applicable laws, statutes, ordinances, building codes, and rules and regulations, or any orders by code enforcement officials or the Owner or its designees acting in the capacity of building code inspectors, the Contractor must promptly notify the Owner and Architect of the non-compliance as provided in Section 3.2.6 and request direction before proceeding with the affected Work. § 3.2.6 The Contractor must promptly notify the Owner and the Architect in writing of any apparent errors, inconsistencies, omissions, ambiguities, construction impracticalities or code violations discovered as a result of the Contractor’s review of the Contract Documents including any differences between actual and indicated dimensions, locations and descriptions, and must give the Owner and the Architect timely notice in writing of same and of any corrections, clarifications, additional Drawings or Specifications, or other information required to define the Work in greater detail or to permit the proper progress of the Work. The Contractor must provide similar notice with respect to any variance between its review of the Site and physical data and Site conditions observed. § 3.2.7 If the Contractor performs any Work involving an apparent error, inconsistency, ambiguity, construction impracticality, omission or code violation in the Contract Documents of which the Contractor is aware, or which could reasonably have been discovered by the review required by Section 3.2, without prompt written notice to the AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 8 RS220-402-865244.v2 Owner and the Architect and request for correction, clarification or additional information, as appropriate, the Contractor does so at its own risk and expense and all claims relating thereafter are specifically waived. § 3.2.8 If the Contractor believes that additional cost or time is involved because of clarifications or instructions the Architect issues in response to the Contractor’s notices or requests for information pursuant to Section 3.2, the Contractor shall submit Claims as provided in Article 15. If the Contractor fails to perform the obligations of Section 3.2, the Contractor shall pay such costs and damages to the Owner, as would have been avoided if the Contractor had performed such obligations. If the Contractor performs those obligations, the Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents, for differences between field measurements or conditions and the Contract Documents, or for nonconformities of the Contract Documents to applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities. § 3.3 Supervision and Construction Procedures § 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work under the Contract. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences, or procedures, the Contractor shall evaluate the jobsite safety thereof and shall be solely responsible for the jobsite safety of such means, methods, techniques, sequences, or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely notice to the Owner, the Construction Manager, and the Architect, and shall propose alternative means, methods, techniques, sequences, or procedures. The Architect shall evaluate the proposed alternative solely for conformance with the design intent for the completed construction. The Construction Manager shall review the proposed alternative for sequencing, constructability, and coordination impacts on the other Contractors. Unless the Architect or the Construction Manager objects to the Contractor’s proposed alternative, the Contractor shall perform the Work using its alternative means, methods, techniques, sequences, or procedures. § 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors. § 3.3.3 The Contractor shall be responsible for inspection of portions of the Project already performed to determine that such portions are in proper condition to receive subsequent Work. § 3.3.4 The Contractor shall at all times staff the Project adequately to allow the Project to be managed and completed in a timely and professional manner. The Contractor shall have competent supervision on the job during work hours and readily available at all times upon call. § 3.3.5 The Contractor shall at all times make reasonable provisions to protect any Work performed by any separate contractors, adjacent property, and the existing building (if any) from damage due to the Work or due to the weather. § 3.3.6 The Owner or its approved representative (heretofore referred to as Owner’s Representative) shall have access to the Work site and all Work. No supervision or inspection by the Owner or the Owner’s Representative, nor the authority to act, nor any other actions taken by the Owner’s Representative shall relieve the Contractor of any of its obligations under the Contract Documents or give rise to any duty on the part of the Owner. § 3.4 Labor and Materials § 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § 3.4.2 Except in the case of minor changes in the Work approved by the Architect in accordance with Section 3.12.8 or ordered by the Architect in accordance with Section 7.4, the Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect, in consultation with the Construction Manager, and in accordance with a Change Order or Construction Change Directive. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 9 RS220-402-865244.v2 § 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not properly skilled in tasks assigned to them. § 3.5 Warranty § 3.5.1 The Contractor warrants to the Owner, Construction Manager, and Architect that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit. Work, materials, or equipment not conforming to these requirements may be considered defective. If required by the Construction Manager or Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The quality required under this Warranty shall, as a minimum, equal all standards or requirements of form, function, durability, performance, type, strength, efficiency, service, appearance or other criteria established by the requirements of the Contract Documents. § 3.5.2 All material, equipment, or other special warranties required by the Contract Documents shall be issued in the name of the Owner, or shall be transferable to the Owner, and shall commence in accordance with Section 9.8.4. § 3.5.3 The Contractor’s general warranty and any additional or special warranties are not limited by the Contractor’s obligations to specifically correct defective or nonconforming Work as provided in Article 12, nor are they limited by any other remedies provided in the Contract Documents. The Contractor shall also be liable for any damage to property or persons (including death) including direct damages to Owner relating to any breach of the Contractor’s general warranty or any additional or special warranties under the Contract Documents. § 3.5.4 The Contractor must furnish all special warranties under the Contract Documents to the Owner no later than Substantial Completion. The Owner may require additional special warranties in connection with the approval of “Or-Equals” or Substitutions, Allowance items, Work that is defective or nonconforming, or the acceptance of nonconforming Work pursuant to Article 12. § 3.6 Taxes The Contractor shall pay sales, consumer, use and similar taxes for the Work or portions thereof provided by the Contractor that are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. § 3.7 Permits, Fees, Notices, and Compliance with Laws § 3.7.1 Unless otherwise provided in the Contract Documents, the Owner, assisted by the Construction Manager, shall secure and pay for the building permit. The Contractor shall secure and pay for other permits, fees, licenses, and inspections by government agencies necessary for proper execution and completion of the Work that are customarily secured after execution of the Contract and legally required at the time bids are received or negotiations concluded. The Contractor shall provide and pay for all bonds that may be required to accomplish the Work, including any bonds required by municipalities. § 3.7.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work. § 3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. § 3.7.4 Concealed or Unknown Conditions. If the Contractor encounters conditions at the site that are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner, Construction Manager, and the Architect before conditions are disturbed and in no event later than 14 days after first observance of the conditions. The Architect and Construction Manager will promptly investigate such conditions and, if the Architect, in consultation with the Construction Manager, determines that they differ materially and cause an increase or decrease in the Contractor’s AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 10 RS220-402-865244.v2 cost of, or time required for, performance of any part of the Work, will recommend that an equitable adjustment be made in the Contract Sum or Contract Time, or both. If the Architect, in consultation with the Construction Manager, determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall promptly notify the Owner, Construction Manager, and Contractor, stating the reasons. If the Owner or Contractor disputes the Architect’s determination or recommendation, either party may submit a Claim as provided in Article 15. § 3.7.5 If, in the course of the Work, the Contractor encounters human remains or recognizes the existence of burial markers, archaeological sites or wetlands not indicated in the Contract Documents, the Contractor shall immediately suspend any operations that would affect them and shall notify the Owner, Construction Manager, and Architect. Upon receipt of such notice, the Owner shall promptly take any action necessary to obtain governmental authorization required to resume the operations. The Contractor shall continue to suspend such operations until otherwise instructed by the Owner but shall continue with all other operations that do not affect those remains or features. Requests for adjustments in the Contract Sum and Contract Time arising from the existence of such remains or features may be made as provided in Article 15. § 3.8 Allowances § 3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. § 3.8.2 Unless otherwise provided in the Contract Documents: .1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Contractor’s costs for unloading and handling at the site, labor, installation costs, overhead, profit, and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; and .3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section 3.8.2.1 and (2) changes in Contractor’s costs under Section 3.8.2.2. § 3.8.3 Materials and equipment under an allowance shall be selected by the Owner with reasonable promptness. § 3.9 Superintendent § 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work, including that performed by all Subcontractors. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. The Superintendent must provide his or her email address and cell phone number to Owner, Architect, and Construction Manager and must be available to be contacted during all business hours, and outside of business hours in the event of an emergency. § 3.9.2 The Contractor, as soon as practicable after award of the Contract, shall notify the Owner and Architect, through the Construction Manager, of the name and qualifications of a proposed superintendent. Within 14 days of receipt of the information, the Construction Manager may notify the Contractor, stating whether the Owner, the Construction Manager, or the Architect (1) has reasonable objection to the proposed superintendent or (2) require additional time for review. Failure of the Construction Manager to provide notice withi n the 14-day period shall constitute notice of no reasonable objection. § 3.9.3 The Contractor shall not employ a proposed superintendent, or any other management personnel, to whom the Owner, Construction Manager, or Architect has made reasonable and timely objection. The Contractor shall not change the superintendent without the Owner’s consent, which shall not unreasonably be withheld or delayed. § 3.10 Contractor’s Construction and Submittal Schedules § 3.10.1 The Contractor, promptly after being awarded the Contract, shall submit for the Owner’s and Architect’s information, and the Construction Manager’s use in developing the Project schedule, a Contractor’s construction schedule for the Work. The schedule shall contain detail appropriate for the Project, including (1) the date of AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 11 RS220-402-865244.v2 commencement of the Work, interim schedule milestone dates, and the date of Substantial Completion; (2) an apportionment of the Work by construction activity; and (3) the time required for completion of each portion of the Work. The schedule shall provide for the orderly progression of the Work to completion and shall not exceed time limits current under the Contract Documents. The schedule shall be revised at appropriate intervals as required by the conditions of the Work and Project. The Contractor shall cooperate with the Construction Manager in scheduling and performing the Contractor’s Work to avoid conflict with, and as to cause no delay in, the work or activities of other Contractors, or the construction or operations of the Owner’s own forces or Separate Contractors. § 3.10.2 The Contractor, within ten (10) days of execution of the Contract and thereafter as necessary to maintain a current submittal schedule, shall submit a submittal schedule for the Owner’s, Construction Manager’s and Architect’s approval. The Owner’s, Architect’s and Construction Manager’s approval shall not be unreasonably delayed or withheld. The submittal schedule shall (1) be coordinated with the Contractor’s construction schedule, and (2) allow the Owner, Construction Manager and Architect reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, or fails to provide submittals in accordance with the approved submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals. § 3.10.3 The Contractor shall participate with other Contractors, the Construction Manager, and the Owner in reviewing and coordinating all schedules for incorporation into the Project schedule that is prepared by the Construction Manager. The Contractor shall make revisions to the construction schedule and submittal schedule as deemed necessary by the Construction Manager to conform to the Project schedule. § 3.10.4 The Contractor shall perform the Work in general accordance with the most recent schedules approved by the Owner, Construction Manager, and Architect, and incorporated into the approved Project schedule. § 3.11 Documents and Samples at the Site The Contractor shall make available, at the Project site, the Contract Documents, including Change Orders, Construction Change Directives, and other Modifications, in good order and marked currently to indicate field changes and selections made during construction, and the approved Shop Drawings, Product Data, Samples, and similar required submittals. The record documents shall be a separate set of documents used only for record purposes and kept clean and undamaged. These shall be in electronic form or paper copy, available to the Construction Manager, Architect, and Owner, and delivered to the Construction Manager for submittal to the Owner upon completion of the Work as a record of the Work as constructed. § 3.12 Shop Drawings, Product Data, and Samples § 3.12.1 Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work. § 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. § 3.12.3 Samples are physical examples that illustrate materials, equipment, or workmanship, and establish standards by which the Work will be judged. § 3.12.4 Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. Their purpose is to demonstrate how the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals. Review by the Architect and Construction Manager is subject to the limitations of Sections 4.2.10 through 4.2.12. Informational submittals upon which the Construction Manager and Architect are not expected to take responsive action may be so identified in the Contract Documents. Submittals that are not required by the Contract Documents may be returned by the Construction Manager or Architect without action. § 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve, and submit to the Construction Manager, Shop Drawings, Product Data, Samples, and similar submittals required by the Contract Documents, in accordance with the Project submittal schedule approved by the Owner, Construction Manager and Architect or, in the absence of an approved Project submittal schedule, with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of other Contractors, Separate Contractors, or the AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 12 RS220-402-865244.v2 Owner’s own forces. The Contractor shall cooperate with the Construction Manager in the coordination of the Contractor’s Shop Drawings, Product Data, Samples, and similar submittals with related documents submitted by other Contractors. The Contractor must provide the Owner, Architect, and Construction Manager with copies of all submittals made to regulatory agencies. § 3.12.6 By submitting Shop Drawings, Product Data, Samples, and similar submittals, the Contractor represents to the Owner, Construction Manager, and Architect, that the Contractor has (1) reviewed and approved them, (2) determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and (3) checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. § 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples, or similar submittals, until the respective submittal has been reviewed and approved by the Architect. The Contractor must correct at its cost, and without any adjustment in Contract Time, any Work the correction of which is required due to the Contractor’s failure to obtain approval of a submittal required to have been obtained prior to proceeding with the Work, including, but not limited to, correction of any conflicts in the Work resulting from such failure. § 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from the requirements of the Contract Documents by the Architect’s approval of Shop Drawings, Product Data, Samples, or similar submittals, unless the Contractor has specifically notified the Construction Manager and Architect of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals, by the Architect’s approval thereof. § 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples, or similar submittals, to revisions other than those requested by the Construction Manager and Architect on previous submittals. In the absence of such notice, the Architect’s approval of a resubmission shall not apply to such revisions. § 3.12.10 The Contractor shall not be required to provide professional services that constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor’s responsibilities for construction means, methods, techniques, sequences, and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. § 3.12.10.1 If professional design services or certifications by a design professional related to systems, materials, or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall be entitled to rely upon the adequacy and accuracy of the performance and design criteria provided in the Contract Documents. The Contractor shall cause such services or certifications to be provided by an appropriately licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings, and other submittals prepared by such professional. Shop Drawings, and other submittals related to the Work, designed or certified by such professional, if prepared by others, shall bear such professional’s written approval when submitted to the Architect. The Owner, the Architect, and the Construction Manager shall be entitled to rely upon the adequacy and accuracy of the services, certifications, and approvals performed or provided by such design professionals, provided the Owner and Architect have specified to the Contractor the performance and design criteria that such services must satisfy. Pursuant to this Section 3.12.10, the Architect will review and approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Construction Manager shall review submittals for sequencing, constructability, and coordination impacts on other Contractors. § 3.12.10.2 If the Contract Documents require the Contractor’s design professional to certify that the Work has been performed in accordance with the design criteria, the Contractor shall furnish such certifications to the Construction Manager and Architect at the time and in the form specified by the Architect. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 13 RS220-402-865244.v2 § 3.13 Use of Site § 3.13.1 The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes, ordinances, codes, rules and regulations, lawful orders of public authorities, and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. § 3.13.2 The Contractor shall coordinate the Contractor’s operations with, and secure the approval of, the Construction Manager before using any portion of the site. § 3.13.3 Except as may be specifically provided in the Contract Documents, the Construction Manager shall provide all necessary temporary facilities, including power, water, sanitation, scaffolding, storage, and security. These items will be covered as Reimbursable Expenses pursuant to Section 11.6.1 of the C132-2019. Contractor shall indemnify, defend, and hold Owner harmless from and against any claims arising out of Contractor’s use of such facilities. § 3.13.4 The Contractor shall return all improvements on or about the site, streets and adjacent property which are not shown to be altered, removed or otherwise changed, to the conditions which existed previously. The Contractor shall protect existing structures or other features from damage by any operation in connection with the contract. § 3.13.5 Utilities or other services which are shown, or not shown but encountered or otherwise found, shall be protected by the Contractor from any damage from excavation or other work and operations of this Contract, unless or until they are abandoned. Contractor shall immediately restore any damage from its work or operations to place the utilities and services in good operating condition. If the utilities or services are shown to be abandoned or moved, they shall remain in service, and be protected by the Contractor, until new utilities and services have been provided, tested and ready for use. § 3.14 Cutting and Patching § 3.14.1 The Contractor shall be responsible for cutting, fitting, or patching required to complete the Work or to make its parts fit together properly. All areas requiring cutting, fitting, or patching shall be restored to the condition existing prior to the cutting, fitting, or patching, unless otherwise required by the Contract Documents. Cutting and patching shall be kept to an absolute minimum by careful planning and through providing proper holes, sleeves, anchors, inserts or other built-ins as Work progresses and then only to the extent required to properly place, support, hang, anchor or install work. Contractor shall restore the improvements and finishes to like-new condition, to match adjoining work and such restoration shall be performed by workers skilled in the particular type of work involved. Where finishes are patched, they shall be patched to the extent necessary to provide unbroken and unattached appearance and shall be carried to natural break points as necessary. All patching is subject to the Architect’s acceptance. Unauthorized or careless cutting will not be permitted. No structural member shall be cut in a manner or to an extent which will affect the structural effectiveness, unless approved by the Architect. § 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner, Separate Contractors, or of other Contractors by cutting, patching, or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter construction by the Owner, Separate Contractors, or by other Contractors except with written consent of the Construction Manager, Owner, and such other Contractors or Separate Contractors. Consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold, from the Separate Contractors, other Contractors, or the Owner, its consent to cutting or otherwise altering the Work. § 3.15 Cleaning Up § 3.15.1 The Contractor shall keep the Site and adjacent areas free from accumulation of waste materials and rubbish caused by operations under the Contract, and must keep tools, construction equipment, machinery and surplus materials suitably stored when not in use. If the Contractor fails to do so in a manner reasonably satisfactory to the Owner or the Construction Manager within forty-eight (48) hours after notice or as otherwise required by the Contract Documents, the Owner may clean the Site and back charge the Contractor for all costs associated with the cleaning. At completion of the Work, the Contractor shall promptly remove waste materials, rubbish, the Contractor’s tools, construction equipment, machinery, and surplus materials from and about the Project. § 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner, or Construction Manager with the Owner’s approval, may do so and the Owner shall be entitled to reimbursement from the Contractor. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 14 RS220-402-865244.v2 § 3.16 Access to Work The Contractor shall provide the Owner, Construction Manager, and Architect with access to the Work in preparation and progress wherever located. § 3.17 Royalties, Patents and Copyrights The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner, Construction Manager, and Architect harmless from loss on account thereof, but shall not be responsible for defense or loss when a particular design, process, or product of a particular manufacturer or manufacturers is required by the Contract Documents, or where the copyright violations are contained in Drawings, Specifications, or other documents prepared by the Owner, Architect, or Construction Manager. However, if an infringement of a copyright or patent is discovered by, or made known to, the Contractor, the Contractor shall be responsible for the loss unless the information is promptly furnished to the Architect through the Construction Manager. § 3.18 Indemnification § 3.18.1 To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the Owner, Construction Manager, Architect, Construction Manager’s and Architect’s consultants, and agents and employees of any of them from and against claims, damages, losses, and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss, or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in this Section 3.18. § 3.18.2 In claims against any person or entity indemnified under this Section 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, the indemnification obligation under Section 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation, or benefits payable by or for the Contractor or a Subcontractor under workers’ compensation acts, disability benefit acts, or other employee benefit acts. § 3.19 Miscellaneous Contractor Responsibilities § 3.19.1 The Contractor agrees to adequately and properly protect its Work. The Contractor agrees to adhere to the Federal Occupational Safety & Health Act, state and local safety regulations, so as to avoid injury or damage to persons or property resulting from failure to do so. § 3.19.2 In the event the Contractor, after 24 hour written notice from the Construction Manager fails to take corrective action to ensure compliance with said safety regulations, the Construction Manager may, but shall not be obligated to, remedy the situation according to OSHA standards and charge the cost of same to the Contractor’s account without further notice to the Contractor. § 3.19.3 The Contractor agrees to notify the Construction Manager’s representative on the job site of all accidents which may occur to persons or property and shall provide the Construction Manager’s representative with a copy of all accident reports on appropriate forms. All reports shall be signed by the Contractor or his authorized representative and submitted within twenty-four (24) hours of occurrence. § 3.19.4 The Contractor shall submit to the Construction Manager upon request, copies of orders placed for the various materials required for the Project or stock lists if such material is normally a stock item. Order copies need not reflect prices but should indicate, among other things, type of material, quantity, and vendor name, and address. The Contractor shall be required to submit to the Construction Manager a monthly Material Status report, or more often if required by the Construction Manager, as a prerequisite for the monthly progress payment. The Contractor shall notify the Construction Manager immediately upon learning of a change of status of any material, equipment or supplies. § 3.19.5 The Contractor agrees to maintain an adequate force of experienced workers and the necessary materials, supplies, and equipment to meet the requirements of the Construction Manager and other trades in order to maintain construction progress schedules, as established by the Construction Manager and Owner. In the event that AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 15 RS220-402-865244.v2 Contractor’s forces are, in the judgment of the Construction Manager, inadequate to meet the established schedules during the regular working hours, the Contractors agree to work sufficient overtime hours or increase its work force to meet such schedules at no extra cost to the Construction Manager, Architect, or the Owner. § 3.19.6 The Contractor shall insure that all construction tools, equipment, temporary facilities, and other items used in accomplishing the Work, whether purchased, rented or otherwise provided by the Contractor or provided by the others, are in a safe, sound, and good condition; capable of performing the function for which they are intended and maintained in conformance with applicable laws and regulations. § 3.19.7 The Contractor shall be responsible to the Owner and Construction Manager for the acts and omissions of all of its employees and all of its subcontractors, their agents and employees, and all other persons performing any of the Contractor’s Work. ARTICLE 4 ARCHITECT AND CONSTRUCTION MANAGER § 4.1 General § 4.1.1 The Architect is the person or entity retained by the Construction Manager pursuant to Section 2.3.2 and identified as such in the Agreement. § 4.1.2 The Construction Manager is the person or entity retained by the Owner pursuant to Section 2.3.3 and identified as such in the Agreement. § 4.1.3 Duties, responsibilities, and limitations of authority of the Construction Manager and Architect as set forth in the Contract Documents shall not be restricted, modified, or extended without written consent of the Owner, Construction Manager, Architect, and Contractor. Consent shall not be unreasonably withheld. § 4.2 Administration of the Contract § 4.2.1 The Construction Manager and Architect will provide administration of the Contract as described in the Contract Documents and will be the Owner’s representatives during construction until the date the Architect issues the final Certificate for Payment. The Construction Manager and Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents. § 4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction, or as otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine in general if the Work observed is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of the site visits, the Architect will keep the Owner and the Construction Manager reasonably informed about the progress and quality of the portion of the Work completed, and promptly report to the Owner and Construction Manager known deviations from the Contract Documents and defects and deficiencies observed in the Work. § 4.2.3 The Construction Manager shall provide one or more representatives who shall be in attendance at the Project site whenever the Work is being performed. The Construction Manager will determine in general if the Work observed is being performed in accordance with the Contract Documents, will keep the Owner and Architect reasonably informed of the progress of the Work, and will promptly report to the Owner and Architect known deviations from the Contract Documents and the most recent Project schedule, and defects and deficiencies observed in the Work. § 4.2.4 The Construction Manager will schedule and coordinate the activities of the Contractor and other Contractors in accordance with the latest approved Project schedule. § 4.2.5 The Construction Manager, except to the extent required by Section 4.2.4, and Architect will not have control over, charge of, or responsibility for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor’s rights and responsibilities under the Contract Documents, and neither will be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents. Neither the Construction Manager nor the Architect will have control over or charge of, or be responsible for acts or omissions of, the Contractor, Subcontractors, or their agents or employees, or of any other persons or entities performing portions of the Work. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 16 RS220-402-865244.v2 § 4.2.6 Communications. The Owner shall communicate with the Contractor and the Construction Manager’s consultants through the Construction Manager about matters arising out of or relating to the Contract Documents. The Owner and Construction Manager shall include the Architect in all communications that relate to or affect the Architect’s services or professional responsibilities. The Owner shall promptly notify the Architect of the substance of any direct communications between the Owner and the Construction Manager otherwise relating to the Project. Communications by and with the Architect’s consultants shall be through the Architect. Communications by and with Subcontractors and suppliers shall be through the Contractor. Communications by and with other Contractors shall be through the Construction Manager. Communications by and with the Owner’s own forces and Separate Contractors shall be through the Owner. The Contract Documents may specify other communication protocols. § 4.2.7 The Construction Manager and Architect will review and certify all Applications for Payment by the Contractor, in accordance with the provisions of Article 9. § 4.2.8 The Architect and Construction Manager have authority to reject Work that does not conform to the Contract Documents, and will notify each other about the rejection. Whenever the Construction Manager considers it necessary or advisable, the Construction Manager will have authority to require inspection or testing of the Work in accordance with Sections 13.4.2 and 13.4.3, upon written authorization of the Owner, whether or not the Work is fabricated, installed or completed. The foregoing authority of the Construction Manager will be subject to the provisions of Sections 4.2.18 through 4.2.20 inclusive, with respect to interpretations and decisions of the Architect. However, neither the Architect’s nor the Construction Manager’s authority to act under this Section 4.2.8 nor a decision made by either of them in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect or the Construction Manager to the Contractor, Subcontractors, suppliers, their agents or employees, or other persons performing any of the Work. § 4.2.9 Utilizing the submittal schedule provided by the Contractor, the Construction Manager shall prepare, and revise as necessary, a Project submittal schedule incorporating information from other Contractors, the Owner, Owner’s consultants, Owner’s Separate Contractors and vendors, governmental agencies, and participants in the Project under the management of the Construction Manager. The Project submittal schedule and any revisions shall be submitted to the Architect for approval. § 4.2.10 The Construction Manager will receive and promptly review for conformance with the submittal requirements of the Contract Documents, all submittals from the Contractor such as Shop Drawings, Product Data, and Samples. Where there are other Contractors, the Construction Manager will also check and coordinate the information contained within each submittal received from the Contractor and other Contractors, and transmit to the Architect those recommended for approval. By submitting Shop Drawings, Product Data, Samples, and similar submittals, the Construction Manager represents to the Owner and Architect that the Construction Manager has reviewed and recommended them for approval. The Construction Manager’s actions will be taken in accordance with the Project submittal schedule approved by the Architect or, in the absence of an approved Project submittal schedule, with reasonable promptness while allowing sufficient time to permit adequate review by the Architect. § 4.2.11 The Architect will review and approve, or take other appropriate action upon, the Contractor’s submittals such as Shop Drawings, Product Data, and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect’s action will be taken in accordance with the submittal schedule approved by the Architect or, in the absence of an approved submittal schedule, with reasonable promptness while allowing sufficient time in the Architect’s professional judgment to permit adequate review. Upon the Architect’s completed review, the Architect shall transmit its submittal review to the Construction Manager. § 4.2.12 Review of the Contractor’s submittals by the Construction Manager and Architect is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Construction Manager and Architect’s review of the Contractor’s submittals shall not relieve the Contractor of the obligations under Sections 3.3, 3.5, and 3.12. The Construction Manager and Architect’s review shall not constitute approval of safety precautions or of any construction means, methods, techniques, sequences, or procedures. The Architect’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. § 4.2.13 The Construction Manager will prepare Change Orders and Construction Change Directives. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 17 RS220-402-865244.v2 § 4.2.14 The Construction Manager and the Architect will take appropriate action on Change Orders or Construction Change Directives in accordance with Article 7, and the Architect will have authority to order minor changes in the Work as provided in Section 7.4. The Architect, in consultation with the Construction Manager, will investigate and make determinations and recommendations regarding concealed and unknown conditions as provided in Section 3.7.4. § 4.2.15 Utilizing the documents provided by the Contractor, the Construction Manager will maintain at the site for the Owner one electronic copy of all Contract Documents, approved Shop Drawings, Product Data, Samples, and similar required submittals, in good order and marked currently to record all changes and selections made during construction. These will be available to the Architect and the Contractor and will be delivered to the Owner upon completion of the Project. § 4.2.16 The Construction Manager will assist the Architect in conducting inspections to determine the date or dates of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion in conjunction with the Architect pursuant to Section 9.8; and receive and forward to the Owner written warranties and related documents required by the Contract and assembled by the Contractor pursuant to Section 9.10. The Construction Manager will forward to the Architect a final Application and Certificate for Payment or final Project Application and Project Certificate for Payment upon the Contractor’s compliance with the requirements of the Contract Documents. § 4.2.17 If the Owner and Architect agree, the Architect will provide one or more Project representatives to assist in carrying out the Architect’s responsibilities at the site. The Owner shall notify the Construction Manager of any change in the duties, responsibilities and limitations of authority of the Project representatives. § 4.2.18 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of the Construction Manager, Owner, or Contractor through the Construction Manager. The Architect’s response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. § 4.2.19 Interpretations and decisions of the Architect will be consistent with the intent of, and reasonably inferable from, the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either, and will not be liable for results of interpretations or decisions so rendered in good faith. § 4.2.20 The Owner’s decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. § 4.2.21 The Construction Manager will receive and review requests for information from the Contractor, and forward each request for information to the Architect, with the Construction Manager’s recommendation. The Architect will review and respond in writing, through the Construction Manager, to requests for information about the Contract Documents. The Construction Manager’s recommendation and the Architect’s response to each request will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If appropriate, the Architect will prepare and issue supplemental Drawings and Specifications in response to the requests for information. ARTICLE 5 SUBCONTRACTORS § 5.1 Definitions § 5.1.1 A Subcontractor is a person, firm or entity who has a direct contract or purchase order with the Contractor to provide or furnish materials, equipment, facilities, labor or services, or a combination of these, for the execution and completion of the Work or part thereof. The term “Subcontractor” is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term “Subcontractor” does not include other Contractors or Separate Contractors or the subcontractors of other Contractors or Separate Contractors. § 5.1.2 A Sub-subcontractor is a person or entity having a direct or indirect contract or purchase order with a Subcontractor to provide or furnish materials, equipment, facilities, labor or services, or a combination of these, for the execution and completion of the Work or part thereof. The term “Sub-subcontractor” is referred to throughout AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 18 RS220-402-865244.v2 the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub-subcontractor. § 5.2 Award of Subcontracts and Other Contracts for Portions of the Work § 5.2.1 After award of the Contract, if the Contractor seeks to substitute a Subcontractor, the Contractor shall notify in writing the Construction Manager, for review by the Owner, Construction Manager and Architect, of the substitute(s) proposed for each principal portion of the Work, including those who are to furnish materials or equipment fabricated to a special design. Within 14 days of receipt of the information, the Construction Manager may notify the Contractor whether the Owner, the Construction Manager or the Architect (1) has reasonable objection to any such proposed substitute(s) or, (2) requires additional time for review. Failure of the Construction Manager to provide notice within the 14-day period shall constitute notice of no reasonable objection. § 5.2.2 The Contractor shall not contract with a substitute Subcontractor to whom the Owner, Construction Manager or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. § 5.2.3 The Contractor shall not substitute a Subcontractor, person, or entity for one previously selected if the Owner, Construction Manager or Architect makes reasonable objection to such substitution. No increase in the Contract Sum shall be allowed should a substitution be required as a result of the Owner’s or Architect’s reasonable objection based on specified criteria on which a proposed subcontractor will be evaluated. § 5.3 Subcontractual Relations By appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor’s Work, that the Contractor, by these Contract Documents, assumes toward the Owner, Construction Manager and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner, Construction Manager and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies, and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement that may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. § 5.4 Contingent Assignment of Subcontracts § 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner, provided that .1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to Section 14.2 and only for those subcontract agreements that the Owner accepts by notifying the Subcontractor and Contractor; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor’s rights and obligations under the subcontract. § 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor’s compensation shall be equitably adjusted for increases in cost resulting from the suspension. § 5.4.3 Upon assignment to the Owner under this Section 5.4, the Owner may further assign the subcontract to a successor Contractor or other entity. If the Owner assigns the subcontract to a successor Contractor or other entity, the Owner shall nevertheless remain legally responsible for all of the successor Contractor’s obligations under the subcontract. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 19 RS220-402-865244.v2 ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 6.1 Owner’s Right to Perform Construction with Own Forces and to Award Other Contracts § 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner’s own forces, and with Separate Contractors retained under Conditions of the Contract substantially similar to those of this Contract, including those provisions of the Conditions of the Contract related to insurance and waiver of subrogation. § 6.1.2 When the Owner performs construction or operations with the Owner’s own forces or Separate Contractors, the Owner shall provide for coordination of such forces and Separate Contractors with the Work of the Contractor, who shall cooperate with them. § 6.1.3 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner’s own forces or with Separate Contractors, the Owner or its Separate Contractors shall have the same obligations and rights that the Contractor has under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6, and Articles 10, 11, and 12. § 6.2 Mutual Responsibility § 6.2.1 The Contractor shall afford the Owner’s own forces, Separate Contractors, Construction Manager and other Contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor’s construction and operations with theirs as required by the Contract Documents. § 6.2.2 If part of the Contractor’s Work depends for proper execution or results upon construction or operations by the Owner’s own forces, Separate Contractors or other Contractors, the Contractor shall, prior to proceeding with that portion of the Work, promptly notify the Construction Manager and Architect of apparent discrepancies or defects in the construction or operations by the Owner or Separate Contractor or other Contractors that would render it unsuitable for proper execution and results of the Contractor’s Work. Failure of the Contractor to notify the Construction Manager and the Architect of apparent discrepancies or defects prior to proceeding with the Work shall constitute an acknowledgment that the Owner’s or Separate Contractor’s or other Contractors’ completed or partially completed construction is fit and proper to receive the Contractor’s Work. The Contractor shall not be responsible for discrepancies or defects in the construction or operations by the Owner or Separate Contractors or other Contractors that are not apparent. § 6.2.3 The Contractor shall reimburse the Owner for costs the Owner incurs, including costs that are payable to a Separate Contractors or to other Contractors, because of the Contractor’s delays, improperly timed activities or defective construction. The Owner shall be responsible to the Contractor for costs the Contractor incurs because of delays, improperly timed activities, damage to the Work or defective construction by the Owner’s own forces, Separate Contractors, or other Contractors. § 6.2.4 The Contractor shall promptly remedy damage that the Contractor causes to completed or partially completed construction, or to property of the Owner, Separate Contractors, or other Contractors as provided in Section 10.2.5. § 6.2.5 The Owner, Separate Contractors, and other Contractors shall have the same responsibilities for cutting and patching as are described for the Contractor in Section 3.14. § 6.3 Owner’s Right to Clean Up If a dispute arises among the Contractor, Separate Contractors, other Contractors, and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Construction Manager, with notice to the Architect, will allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK § 7.1 General § 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 20 RS220-402-865244.v2 § 7.1.2 A Change Order shall be based upon agreement among the Owner, Construction Manager, Architect and Contractor. A Construction Change Directive requires agreement by the Owner, Construction Manager and Architect and may or may not be agreed to by the Contractor. An order for a minor change in the Work may be issued by the Architect alone. § 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents. The Contractor shall proceed promptly with changes in the Work, unless otherwise provided in the Change Order, Construction Change Directive, or order for a minor change in the Work. § 7.2 Change Orders and Change Proposals § 7.2.1 A Change Order is a written instrument prepared by the Construction Manager and signed by the Owner, Construction Manager, Architect, and Contractor, stating their agreement upon all of the following: .1 The change in the Work; .2 The amount of the adjustment, if any, in the Contract Sum; and .3 The extent of the adjustment, if any, in the Contract Time. § 7.2.2 The Contractor must submit Change Proposals covering a contemplated Change Order within twenty-one (21) days after request of the Owner, or the Architect or within twenty-one (21) days of the event, or Contractor’s discovery of a condition, whichever is earlier, giving rise to the Contractor’s claim for a change in the Contract Sum or Contract Time. No increase in the Contract Sum or extension of the Contract Time will be allowed the Contractor for the cost or time involved in making Change Proposals. Change Proposals will define or confirm in detail the Work which is proposed to be added, deleted, or changed and must include any adjustment which the Contractor believes to be necessary in (i) the Contract Sum, or (ii) the Contract Time. Any proposed adjustment must include detailed documentation including, but not limited to: cost, properly itemized and supported by sufficient substantiating data to permit evaluation including cost of labor, materials, supplies and equipment, rental cost of machinery and equipment, additional bond cost, plus a fixed fee for profit and overhead (which includes office overhead and Site-specific overhead and general conditions) of ten percent (10%) if the Work is performed by the Contractor, or five percent (5%) if the Work is performed by a Subcontractor or Sub-subcontractor. The Subcontractor’s or Sub-subcontractor’s overhead and profit in turn must not exceed a total aggregate of ten percent (10%). Change Proposals will be binding upon the Contractor and may be accepted or rejected by the Owner in its discretion. The Owner may, at its option, instruct the Contractor through a Construction Change Directive to proceed with the Work involved in the Change Proposal in accordance with Section 7.3 without accepting the Change Proposal in its entirety. § 7.2.3 If the Owner determines that a Change Proposal is appropriate, the Architect will prepare and submit a request for a Change Order or Contract Amendment providing for an appropriate adjustment in the Contract Sum or Contract Time, or both, for further action by the Owner. No such change is effective until the Owner, Architect, and Construction Manager sign the Change Order. § 7.3 Construction Change Directives § 7.3.1 A Construction Change Directive is a written order prepared by the Construction Manager and signed by the Owner, Construction Manager and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions, or other revisions, the Contract Sum and Contract Time being adjusted accordingly. § 7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. § 7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: .1 Mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; .2 Unit prices stated in the Contract Documents or subsequently agreed upon; .3 Cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or .4 As provided in Section 7.3.4. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 21 RS220-402-865244.v2 § 7.3.4 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the Owner and Construction Manager shall determine the adjustment on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, an amount for overhead and profit as set forth in the Agreement, or if no such amount is set forth in the Agreement, a reasonable amount. In such case, and also under Section 7.3.3.3, the Contractor shall keep and present, in such form as the Construction Manager may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Section 7.3.4 shall be limited to the following: .1 Costs of labor, including applicable payroll taxes, fringe benefits required by agreement or custom, workers’ compensation insurance, and other employee costs approved by the Construction Manager and Architect; .2 Costs of materials, supplies, and equipment, including cost of transportation, whether incorporated or consumed; .3 Rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; .4 Costs of premiums for all bonds and insurance, permit fees, and sales, use, or similar taxes, directly related to the change; and .5 Costs of supervision and field office personnel directly attributable to the change. § 7.3.5 If the Contractor disagrees with the adjustment in the Contract Time, the Contractor may make a Claim in accordance with applicable provisions of Article 15. § 7.3.6 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Construction Manager of the Contractor’s agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. § 7.3.7 A Construction Change Directive signed by the Contractor indicates the Contractor’s agreement therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. § 7.3.8 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change that results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Construction Manager and Architect. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. § 7.3.9 Pending final determination of the total cost of a Construction Change Directive to the Owner, the Contractor may request payment for Work completed under the Construction Change Directive in Applications for Payment. The Construction Manager and Architect will make an interim determination for purposes of monthly certification for payment for those costs and certify for payment the amount that the Construction Manager and Architect determine to be reasonably justified. The interim determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of either party to disagree and assert a Claim in accordance with Article 15. § 7.3.10 When the Owner and Contractor agree with a determination made by the Construction Manager and Architect concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and the Construction Manager shall prepare a Change Order. Change Orders may be issued for all or any part of a Construction Change Directive. § 7.4 Minor Changes in the Work The Architect may order minor changes in the Work that are consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract Time. The Architect’s order for minor changes shall be in writing. If the Contractor believes that the proposed minor change in the Work will affect the Contract Sum or Contract Time, the Contractor shall notify the Construction Manager and shall not proceed to implement the change in the Work. If the Contractor performs the Work set forth in the Architect’s order for a minor change without prior notice to the Construction Manager that such change will affect the Contract Sum or Contract Time, the Contractor waives any adjustment to the Contract Sum or extension of the Contract Time. The Architect shall also have the right to make minor changes in dimensions, locations, arrangements or details to AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 22 RS220-402-865244.v2 accommodate changes in other materials and equipment, improve the Work, or prevent unforeseen interference with structural or other features. Such changes shall be made without a change in the Contract Sum. § 7.5 Changes Subject to Tenant Approval In connection with the Construction Manager’s review of a Change Order or Construction Change Directive, the Construction Manager will promptly obtain consent from Tenant and will provide the Owner with evidence of Tenant’s approval of the Change Order or Construction Change Directive. ARTICLE 8 TIME § 8.1 Definitions § 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. § 8.1.2 The date of commencement of the Work is the date established in the Agreement. § 8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Section 9.8. § 8.1.4 The term “day” as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. § 8.2 Progress and Completion § 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement, the Contractor confirms that the Contract Time is a reasonable period for performing the Work. § 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, commence the Work prior to the effective date of insurance required to be furnished by the Contractor and Owner. § 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. § 8.2.4 The Contractor must conform to the most recently approved Progress Schedule. The Contractor must complete the indicated Work or achieve the required percentage of completion, as applicable, within any interim completion dates established in the most recently approved Progress Schedule. § 8.2.5 The Contractor must maintain at the Site, available to the Owner and the Architect for their reference during the progress of the Work, a copy of the approved Progress Schedule and any approved revisions thereto. The Contractor must keep current records of and mark on a copy of the approved Progress Schedule the actual commencement date, progress and completion date of each scheduled activity indicated on the Progress Schedule. § 8.2.6 The Contractor represents that its bid includes all costs, overhead and profit which may be incurred throughout the Contract Time and the period between Substantial and final Completion. Accordingly, the Contractor may not make any claim for delay damages based in whole or in part on the premise that the Contractor would have completed the Work prior to the expiration of the Contract Time but for any claimed delay. § 8.2.7 If the Contractor’s progress is not maintained in accordance with the approved Progress Schedule such that the Substantial Completion will not be achieved as required by the Contract Documents, or the Owner has evidence reasonably indicating that the Contractor will not be able to conform to the most recently approved Progress Schedule such that the Substantial Completion will not be achieved as required by the Contract Documents, the Contractor must, promptly and at no additional cost to the Owner, take all commercially reasonable measures necessary to accelerate its progress to overcome the delay. § 8.2.8 The Owner reserves the right to issue a written directive to accelerate the Work that shall be subject to an appropriate adjustment, if any, in the Contract Sum. If the Owner requires an acceleration of the Project Schedule and no adjustment is made in the Contract Sum, or if the Contractor disagrees with any adjustment made, the Contractor must file a claim as provided in Article 15 or the same will be deemed to be conclusively waived. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 23 RS220-402-865244.v2 § 8.3 Delays and Extensions of Time § 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by (1) an act or neglect of the Owner, Architect, Construction Manager, or an employee of any of them, or of the Owner’s own forces, Separate Contractors, or other Contractors; (2) by changes ordered in the Work; (3) by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions documented in accordance with Section 15.1.6.2, or other causes beyond the Contractor’s control; (4) by delay authorized by the Owner pending mediation and litigation; or (5) by other causes that the Contractor asserts and the Architect, based on the recommendation of the Construction Manager, determines justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine. § 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Article 15. § 8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. ARTICLE 9 PAYMENTS AND COMPLETION § 9.1 Contract Sum § 9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. § 9.1.2 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed so that application of such unit prices to the actual quantities causes substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted. § 9.2 Schedule of Values Where the Contract is based on a stipulated sum or Guaranteed Maximum Price, the Contractor shall submit a schedule of values to the Construction Manager, before the first Application for Payment, allocating the entire Contract Sum to the various portions of the Work. The schedule of values shall be prepared in the form, and supported by the data to substantiate its accuracy, required by the Construction Manager and the Architect. This schedule, unless objected to by the Construction Manager or Architect, shall be used as a basis for reviewing the Contractor’s Applications for Payment. The Construction Manager shall forward to the Architect the Contractor’s schedule of values. Any changes to the schedule of values shall be submitted to the Construction Manager and supported by such data to substantiate its accuracy as the Construction Manager and the Architect may require, and unless objected to by the Construction Manager or the Architect, shall be used as a basis for reviewing the Contractor’s subsequent Applications for Payment. § 9.3 Applications for Payment § 9.3.1 At least fifteen days before the date established for each progress payment, the Contractor shall submit to the Construction Manager an itemized Application for Payment prepared in accordance with the schedule of values, if required under Section 9.2, for completed portions of the Work. The application shall be notarized, if required, and supported by all data substantiating the Contractor’s right to payment that the Owner, Construction Manager or Architect require, such as copies of requisitions, and releases of waivers of lien from Subcontractors and suppliers, and shall reflect retainage if provided for in the Contract Documents. § 9.3.1.1 As provided in Section 7.3.9, such applications may include requests for payment on account of changes in the Work that have been properly authorized by Construction Change Directives, or by interim determinations of the Construction Manager and Architect, but not yet included in Change Orders. § 9.3.1.2 Applications for Payment shall not include requests for payment for portions of the Work for which the Contractor does not intend to pay a Subcontractor or supplier, unless such Work has been performed by others whom the Contractor intends to pay. As required by Minnesota Statutes, Section 471.425, subd. 4a, the Contractor must pay all Subcontractors, less any retainage, within ten (10) calendar days of the Contractor’s receipt of payment from the Owner for undisputed services provided by the Subcontractor(s) and must pay interest at the rate of one and one-half percent per month or any part of a month to the Subcontractor(s) on any undisputed amount not paid on time to the Subcontractor(s) § 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 24 RS220-402-865244.v2 by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner’s title to such materials and equipment or otherwise protect the Owner’s interest, and shall include the costs of applicable insurance, storage, and transportation to the site, for such materials and equipment stored off the site. § 9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor’s knowledge, information, and belief, be free and clear of liens, claims, security interests, or encumbrances, in favor of the Contractor, Subcontractors, suppliers, or other persons or entities that provided labor, materials and equipment relating to the Work. § 9.3.4 The Contractor must submit to the Architect, Construction Manager and Owner itemized Applications for Payment for Work completed on a monthly basis in accordance with a schedule approved by the Owner. Each Application for Payment must be consistent with the approved Schedule of Values. In order to expedite the review and approval of Applications for Payment, the Contractor may submit to and review with the Owner a draft Application for Payment at a progress meeting prior to submitting a formal Application for Payment. § 9.3.5 The form of Application for Payment must be AIA Document G732, Application and Certificate for Payment, supported by AIA Document G703, Continuation Sheet (latest edition), or such other form as may be prescribed by the Owner. The Application must be notarized and supported by sufficient data to demonstrate the Contractor’s right to payment and compliance with the payment provisions of the Contract, such as copies of requisitions from Subcontractors and material suppliers, partial lien waivers, releases and other documents. Each Application for Payment must reflect approved Contract Modifications and the Contract retainage provided for in the Contract Documents. § 9.3.6 Applications for Payment may include materials and equipment delivered and suitably stored at the Site for subsequent incorporation in the Work. The Owner has no obligation or responsibility to pay for materials stored off the Site. If specifically approved in writing in advance by the Owner, an Application for Payment may include materials and equipment stored off the Site at a location agreed upon in writing. Payment for materials and equipment stored on or off the Site is conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to protect the Owner’s interests. Payment for materials and equipment stored off the Site will, in addition, be conditioned upon the Contractor’s provision of applicable insurance, storage and transportation to the Site. § 9.3.7 Prompt Payment to Subcontractors. In accordance with Minnesota Statutes, Section 471.425, each Prime Contractor must pay any subcontractor within ten (10) days of the Prime Contractor’s receipt of payment from the municipality for undisputed services provided by the subcontractor. The Contract must require the Prime Contractor to pay interest of 1-1/2 percent per month or any part of a month to the subcontractor on any undisputed amount not paid on time to the subcontractor. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the Prime Contractor shall pay the actual penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from a Prime Contractor must be awarded its costs and disbursements, including attorney’s fees, incurred in bringing the action. § 9.4 Certificates for Payment § 9.4.1 Where there is only one Contractor, the Construction Manager will, within seven days after the Construction Manager’s receipt of the Contractor’s Application for Payment, review the Application, certify the amount the Construction Manager determines is due the Contractor, and forward the Contractor’s Application and Certificate for Payment to the Architect. Within seven days after the Architect receives the Contractor’s Application for Payment from the Construction Manager, the Architect will either (1) issue to the Owner a Certificate for Payment, in the full amount of the Application for Payment, with a copy to the Construction Manager; or (2) issue to the Owner a Certificate for Payment for such amount as the Architect determines is properly due, and notify the Construction Manager and Owner of the Architect’s reasons for withholding certification in part as provided in Section 9.5.1; or (3) withhold certification of the entire Application for Payment, and notify the Construction Manager and Owner of the Architect’s reason for withholding certification in whole as provided in Section 9.5.1. The Construction Manager will promptly forward to the Contractor the Architect’s notice of withholding certification. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 25 RS220-402-865244.v2 § 9.4.2 Where there is more than one Contractor performing portions of the Project, the Construction Manager will, within seven days after the Construction Manager receives all of the Contractors’ Applications for Payment: (1) review the Applications and certify the amount the Construction Manager determines is due each of the Contractors; (2) prepare a Summary of Contractors’ Applications for Payment by combining information from each Contractor’s application with information from similar applications for progress payments from the other Contractors; (3) prepare a Project Application and Certificate for Payment; (4) certify the amount the Construction Manager determines is due all Contractors; and (5) forward the Summary of Contractors’ Applications for Payment and Project Application and Certificate for Payment to the Architect. § 9.4.2.1 Within seven days after the Architect receives the Project Application and Project Certificate for Payment and the Summary of Contractors’ Applications for Payment from the Construction Manager, the Architect will either (1) issue to the Owner a Project Certificate for Payment, with a copy to the Construction Manager; or (2) issue to the Owner a Project Certificate for Payment for such amount as the Architect determines is properly due, and notify the Construction Manager and Owner of the Architect’s reasons for withholding certification in part as provided in Section 9.5.1; or (3) withhold certification of the entire Project Application for Payment, and notify the Construction Manager and Owner of the Architect’s reason for withholding certification in whole as provided in Section 9.5.1. The Construction Manager will promptly forward the Architect’s notice of withholding certification to the Contractors. § 9.4.3 The Construction Manager’s certification of an Application for Payment or, in the case of more than one Contractor, a Project Application and Certificate for Payment, shall be based upon the Construction Manager’s evaluation of the Work and the data in the Application or Applications for Payment. The Construction Manager’s certification will constitute a representation that, to the best of the Construction Manager’s knowledge, information, and belief, the Work has progressed to the point indicated, the quality of the Work is in accordance with the Contract Documents, and that the Contractor is, or Contractors are, entitled to payment in the amount certified. § 9.4.4 The Architect’s issuance of a Certificate for Payment or, in the case of more than one Contractor, Project Application and Certificate for Payment, shall be based upon the Architect’s evaluation of the Work, the recommendation of the Construction Manager, and data in the Application for Payment or Project Application for Payment. The Architect’s certification will constitute a representation that, to the best of the Architect’s knowledge, information, and belief, the Work has progressed to the point indicated, the quality of the Work is in accordance with the Contract Documents, and that the Contractor is, or Contractors are, entitled to payment in the amount certified. § 9.4.5 The representations made pursuant to Sections 9.4.3 and 9.4.4 are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion, and to specific qualifications expressed by the Construction Manager or Architect. § 9.4.6 The issuance of a Certificate for Payment or a Project Certificate for Payment will not be a representation that the Construction Manager or Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, sequences, or procedures; (3) reviewed copies of requisitions received from Subcontractors and suppliers and other data requested by the Owner to substantiate the Contractor’s right to payment; or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 9.5 Decisions to Withhold Certification § 9.5.1 The Construction Manager or Architect may withhold a Certificate for Payment or Project Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Construction Manager’s or Architect’s opinion the representations to the Owner required by Section 9.4.3 and 9.4.4 cannot be made. If the Construction Manager or Architect is unable to certify payment in the amount of the Application, the Construction Manager will notify the Contractor and Owner as provided in Section 9.4.1 and 9.4.2. If the Contractor, Construction Manager and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment or a Project Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Construction Manager or Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment or Project Certificate for Payment previously issued, to such extent as may be necessary in the Construction Manager’s or Architect’s opinion to protect the Owner from loss for which the Contractor is responsible, including loss resulting from the acts and omissions described in Section 3.3.2 because of AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 26 RS220-402-865244.v2 .1 defective Work not remedied; .2 third party claims filed or reasonable evidence indicating probable filing of such claims, unless security acceptable to the Owner is provided by the Contractor; .3 failure of the Contractor to make payments properly to Subcontractors or suppliers for labor, materials or equipment; .4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or a Separate Contractor or other Contractor; .6 reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .7 repeated failure to carry out the Work in accordance with the Contract Documents. § 9.5.2 When either party disputes the Architect’s decision regarding a Certificate for Payment under Section 9.5.1, in whole or in part, that party may submit a Claim in accordance with Article 15. § 9.5.3 When the reasons for withholding certification are removed, certification will be made for amounts previously withheld. § 9.5.4 If the Architect or Construction Manager withholds certification for payment under Section 9.5.1, the Owner may, at its sole option, issue joint checks to the Contractor and to any Subcontractor or supplier to whom the Contractor failed to make payment for Work properly performed or material or equipment suitably delivered. If the Owner makes payments by joint check, the Owner shall notify the Architect and the Construction Manager, and both will reflect such payment on the next Certificate for Payment. § 9.6 Progress Payments § 9.6.1 After the Architect has issued a Certificate for Payment or Project Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Construction Manager and Architect. § 9.6.2 The Contractor shall pay each Subcontractor, no later than seven days after receipt of payment from the Owner, the amount to which the Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of the Subcontractor’s portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a similar manner. § 9.6.3 The Construction Manager will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Owner, Construction Manager and Architect on account of portions of the Work done by such Subcontractor. § 9.6.4 The Owner has the right to request written evidence from the Contractor that the Contractor has properly paid Subcontractors and suppliers amounts paid by the Owner to the Contractor for subcontracted Work. If the Contractor fails to furnish such evidence within seven days, the Owner shall have the right to contact Subcontractors and suppliers to ascertain whether they have been properly paid. Neither the Owner, Construction Manager nor Architect shall have an obligation to pay, or to see to the payment of money to, a Subcontractor or supplier, except as may otherwise be required by law. § 9.6.5 The Contractor’s payments to suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6.3 and 9.6.4. § 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. § 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors or provided by suppliers shall be held by the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under contract with the Contractor for which payment was made by the Owner. Nothing contained herein shall require money to be placed in a separate account and not commingled with money of the Contractor, create any AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 27 RS220-402-865244.v2 fiduciary liability or tort liability on the part of the Contractor for breach of trust, or entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this provision. § 9.6.8 Provided the Owner has fulfilled its payment obligations under the Contract Documents, the Contractor shall defend and indemnify the Owner from all loss, liability, damage or expense, including reasonable attorney’s fees and litigation expenses, arising out of any lien claim or other claim for payment by any Subcontractor or supplier of any tier. Upon receipt of notice of a lien claim or other claim for payment, the Owner shall notify the Contractor. If approved by the applicable court, when required, the Contractor may substitute a surety bond for the property against which the lien or other claim for payment has been asserted. § 9.7 Failure of Payment If the Construction Manager and Architect do not issue a Certificate for Payment or a Project Certificate for Payment, through no fault of the Contractor, within fourteen days after the Construction Manager’s receipt of the Contractor’s Application for Payment, or if the Owner does not pay the Contractor within seven days after the date established in the Contract Documents, the amount certified by the Construction Manager and Architect or awarded by binding dispute resolution, then the Contractor may, upon seven additional days’ notice to the Owner, Construction Manager and Architect, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor’s reasonable costs of shutdown, delay and start-up, plus interest as provided for in the Contract Documents. § 9.8 Substantial Completion § 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so the Owner can occupy or utilize the Work for its intended use. § 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall notify the Construction Manager, and the Contractor and Construction Manager shall jointly prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. § 9.8.3 Upon receipt of the list, the Architect, assisted by the Construction Manager, will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect’s inspection discloses any item, whether or not included on the list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect, assisted by the Construction Manager, to determine Substantial Completion. § 9.8.4 When the Architect, assisted by the Construction Manager, determines that the Work of all of the Contractors, or designated portion thereof, is substantially complete, the Construction Manager will prepare, and the Construction Manager and Architect shall execute, a Certificate of Substantial Completion that shall establish the date of Substantial Completion; establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance; and fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. § 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in the Certificate. Upon such acceptance, and consent of surety if any, the Owner shall make payment of retainage applying to the Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. § 9.8.6 After Substantial Completion, the Contractor shall coordinate his activities with the Owner’s use of the substantially completed work and shall diligently complete the remaining work, without delay or interruption, within the remaining Contract Time. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 28 RS220-402-865244.v2 § 9.9 Partial Occupancy or Use § 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer and authorized by public authorities having jurisdiction over the Project. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion substantially complete, the Contractor and Construction Manager shall jointly prepare and submit a list to the Architect as provided under Section 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect after consultation with the Construction Manager. § 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Construction Manager, Contractor, and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. § 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. § 9.10 Final Completion and Final Payment § 9.10.1 Upon completion of the Work, the Contractor shall forward to the Construction Manager a notice that the Work is ready for final inspection and acceptance, and shall also forward to the Construction Manager a final Contractor’s Application for Payment. Upon receipt, the Construction Manager shall perform an inspection to confirm the completion of Work of the Contractor. The Construction Manager shall make recommendations to the Architect when the Work of all of the Contractors is ready for final inspection, and shall then forward the Contractors’ notices and Application for Payment or Project Application for Payment, to the Architect, who will promptly make such inspection. When the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Construction Manager and Architect will promptly issue a final Certificate for Payment or Project Certificate for Payment stating that to the best of their knowledge, information and belief, and on the basis of their on-site visits and inspections, the Work has been completed in accordance with the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable. The Construction Manager’s and Architect’s final Certificate for Payment or Project Certificate for Payment will constitute a further representation that conditions listed in Section 9.10.2 as precedent to the Contractor’s being entitled to final payment have been fulfilled. § 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect through the Construction Manager (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner’s property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect, (3) a written statement that the Contractor knows of no reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to final payment (5) documentation of any special warranties, such as manufacturers’ warranties or specific Subcontractor warranties, and (6), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts and releases and waivers of liens, claims, security interests, or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien, claim, security interest, or encumbrance. If a lien, claim, security interest, or encumbrance remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging the lien, claim, security interest, or encumbrance, including all costs and reasonable attorneys’ fees. § 9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Construction Manager and Architect so confirm, the Owner shall, upon application by the Contractor and certification by the Construction Manager and Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed, corrected, and accepted. If the remaining balance for Work not fully completed or corrected is AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 29 RS220-402-865244.v2 less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of the surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect through the Construction Manager prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of Claims. § 9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from .1 liens, Claims, security interests, or encumbrances arising out of the Contract and unsettled; .2 failure of the Work to comply with the requirements of the Contract Documents; .3 terms of special warranties required by the Contract Documents; or .4 audits performed by the Owner, if permitted by the Contract Documents, after final payment. § 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor, or a supplier, shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. § 9.10.6 When the Contractor has completed or corrected all items on the final Punch List and considers that the Work is complete and ready for final acceptance, the Contractor must give written notice to the Owner and the Architect and request a final inspection of the Work as provided in Section 9.10.2. The Contractor’s notice and request for a final inspection must be accompanied by a final Application for Payment and the Submittals required by Section 9.10.3. § 9.10.7 Upon receipt of the Contractor’s notice and request for final inspection, the Owner and Architect will promptly make such inspection and, when the Owner and Architect concur that the Work has been fully completed and is acceptable under the Contract Documents, Architect will issue a Certificate of Final Completion to the Owner. The Contractor’s notice and request for final inspection constitutes a representation by the Contractor to the Owner that the Work has been completed in accordance with terms and conditions of the Contract Documents. The Architect will promptly notify the Contractor if the Owner or Architect do not concur that the Work is finally complete. In such case, the Contractor must bear the cost of any necessary additional professional services of the Owner or Architect until the Work is determined to be finally complete. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY § 10.1 Safety Precautions and Programs The Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall submit the Contractor’s safety program to the Construction Manager for review and coordination with the safety programs of other Contractors. The Construction Manager’s responsibilities for review and coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractors, Subcontractors, agents or employees of the Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed by the Construction Manager. § 10.2 Safety of Persons and Property § 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury, or loss to .1 employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody, or control of the Contractor, a Subcontractor, or a Sub-subcontractor; .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures, and utilities not designated for removal, relocation, or replacement in the course of construction; and .4 construction or operations by the Owner, Separate Contractors, or other Contractors. § 10.2.2 The Contractor shall comply with, and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities, bearing on safety of persons or property or their protection from damage, injury, or loss. § 10.2.3 The Contractor shall implement, erect, and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 30 RS220-402-865244.v2 against hazards; promulgating safety regulations; and notifying the owners and users of adjacent sites and utilities of the safeguards. § 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel and shall give the Owner and Construction Manager reasonable written advance notice. § 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Sections 10.2.1.2, 10.2.1.3 and 10.2.1.4 caused in whole or in part by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Sections 10.2.1.2, 10.2.1.3 and 10.2.1.4. The Contractor may make a Claim for the cost to remedy the damage or loss to the extent such damage or loss is attributable to acts or omissions of the Owner, Construction Manager or Architect or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor’s obligations under Section 3.18. § 10.2.6 The Contractor shall designate a responsible member of the Contractor’s organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor’s superintendent unless otherwise designated by the Contractor in writing to the Owner, Construction Manager and Architect. § 10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause damage to it or any adjacent property or create an unsafe condition. § 10.2.8 Injury or Damage to Person or Property If either party suffers injury or damage to person or property because of an act or omission of the other party, or of others for whose acts such party is legally responsible, notice of the injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. § 10.3 Hazardous Materials § 10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract Documents regarding hazardous materials or substances. If the Contractor encounters a hazardous material or substance not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and notify the Owner, Construction Manager and Architect of the condition. § 10.3.2 Upon receipt of the Contractor’s notice, the Construction Manager, after consultation with the Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to cause it to be rendered harmless. When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner and Contractor. By Change Order, the Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor’s reasonable additional costs of shutdown, delay, and start-up. § 10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, Construction Manager, Architect, their consultants, and agents and employees of any of them from and against claims, damages, losses, and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work on Owner’s property if in fact the material or substance presents the risk of bodily injury or death as described in Section 10.3.1 and has not been rendered harmless, provided that such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), except to the extent that such damage, loss, or expense is due to the fault or negligence of the party seeking indemnity. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 31 RS220-402-865244.v2 § 10.3.4 The Owner, Tenant, and Construction Manager shall not be responsible under this Section 10.3 for hazardous materials or substances the Contractor brings to the site unless such materials or substances are required by the Contract Documents. The Owner shall be responsible for hazardous materials or substances required by the Contract Documents, except to the extent of the Contractor’s fault or negligence in the use and handling of such materials or substances. § 10.3.5 The Contractor shall reimburse the Owner for the cost and expense the Owner incurs (1) for remediation of hazardous materials or substances the Contractor brings to the site and negligently handles, or (2) where the Contractor fails to perform its obligations under Section 10.3.1, except to the extent that the cost and expense are due to the Owner’s fault or negligence. § 10.3.6 If, without negligence on the part of the Contractor, the Contractor is held liable by a government agency for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall reimburse the Contractor for all cost and expense thereby incurred. § 10.3.7 If Owner’s obligations under this Section 10.3 result in expenses that exceed the Bond (as defined in the Lease) proceeds, such expenses will be paid pursuant to Section 21.4 of the Lease.. § 10.4 Emergencies In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor’s discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and Article 7. § 10.5 Miscellaneous General Safety Provisions § 10.5.1 The requirements under 10.5, Miscellaneous General Provisions, shall be considered as minimum requirements and shall not be construed to limit the amount of protection required to safeguard all persons and property, nor construed as directing or establishing the Contractor’s methods or responsibilities. § 10.5.2 The Construction Manager shall provide and maintain adequate fire extinguishers in and around the construction area, available to all workers, but the Contractor shall not use extinguishers that are to be installed in the Work. § 10.5.3 The Contractor shall provide and maintain guard lights at barricades, railings, obstructions in streets, roads or sidewalks and at trenches or pits including at those adjacent to existing buildings, public roads, walks, and similar locations where a hazard may exist. The Contractor shall provide and maintain suitable barricades or fences around excavations, including trench excavations, excavated by Contractor or Subcontractors. § 10.5.4 As may be applicable to the Project and to the Work, the Contractor shall provide and be responsible for: protection of equipment, materials, supplies and Work to prevent any damage, including from freezing, thermal shock, heat, water, and other damaging elements; providing proper and adequate drainage (temporary and permanent) of the site in connection with work of this Contract; damage to property as a result of work or operations under this Contract, including but not restricted to damage from water, excavation, underpinning, removal or changing or structural supports; collapse or other failure to the Project resulting from the Contractor’s acts, operations or work, including water undermining or creating pressure on the construction; pumping of water from work areas and excavations of this Contract, and spaces built, constructed or opened up under the Contract, and if necessary, installing temporary heat to keep the spaces dry; providing protection and planking on finished floors and other finished surfaces where work is being done by the Contractor or Subcontractors; closing and protecting all holes or openings through walls, floors and roofs that are cut or built by the Contractor or Subcontractors; and which will admit water to interior spaces during the construction period or will create a potential safety hazard; removal of snow to accomplish the Work; keeping premises in neat and orderly condition; eliminating fire hazards. § 10.5.5 As may be applicable to the Project and to its Work, the Contractor shall be responsible for the following: providing safe and adequate stairways (temporary and permanent) for the use of all trades; maintaining access to the site; proper protection by heating of an enclosed building during cold weather; protection for trees and other similar features, which are to remain, from damage from operations in connection with the Project, by boxing tree trunks and setting up barricades at sufficient distance to prevent damage to branches; the removal of accumulated snow and ice within a building, which generally shall be hauled out (not melted), unless it is a minor amount, as approved by Architect/Construction Manager. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 32 RS220-402-865244.v2 § 10.5.6 The Contractor and each of its Subcontractors shall provide storage and enclosures to protect and preserve the materials stored at and off the site. Materials such as wood, metal, cement, masonry materials, equipment of any type, conduit and similar materials, shall not be set directly on ground. Coverings shall be durable, watertight, fully cover sides as well as top, substantial and well anchored to prevent blowing away. Shed type enclosures shall be provided for easily damaged and small items. Any protection which becomes damaged shall be replaced immediately at the Contractor’s sole cost and expense. Contractor’s storage shall be reviewed and must be acceptable to the Construction Manager, as it relates to site coordination. ARTICLE 11 INSURANCE AND BONDS § 11.1 Contractor’s Insurance and Bonds § 11.1.1 The Contractor shall purchase and maintain insurance of the types and limits of liability, containing the endorsements, and subject to the terms and conditions, as described in the Agreement or elsewhere in the Contract Documents. The Contractor shall purchase and maintain the required insurance from an insurance company or insurance companies lawfully authorized to issue insurance in the jurisdiction where the Project is located. The Owner, Construction Manager and Construction Manager’s consultants, and the Architect and Architect’s consultants, shall be named as additional insureds under the Contractor’s commercial general liability policy or as otherwise described in the Contract Documents. § 11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall name the Owner and Construction Manager as additional insureds, and shall be maintained without interruption from the date of commencement of the Work until the date of final payment through the completed operations period. Completed operations shall be the period within which any claims may be brought for damages arising out of the Project Work § 11.1.3 The Contractor shall provide surety bonds of the types, for such penal sums, and subject to such terms and conditions as required by the Contract Documents. The Contractor shall purchase and maintain the required bonds from a company or companies lawfully authorized to issue surety bonds in the jurisdiction where the Project is located. § 11.1.4 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall authorize a copy to be furnished. § 11.1.5 Notice of Cancellation or Expiration of Contractor’s Required Insurance. Within three (3) business days of the date the Contractor becomes aware of an impending or actual cancellation or expiration of any insurance required by the Contract Documents, the Contractor shall provide notice directly to the Owner, and separately to the Construction Manager, of such impending or actual cancellation or expiration. Upon receipt of notice from the Contractor, the Owner shall, unless the lapse in coverage arises from an act or omission of the Owner, have the right to stop the Work until the lapse in coverage has been cured by the procurement of replacement coverage by the Contractor. The furnishing of notice by the Contractor shall not relieve the Contractor of any contractual obligation to provide any required coverage. § 11.2 Owner’s Insurance § 11.2.1 The Owner shall purchase and maintain insurance of the types and limits of liability, containing the endorsements, and subject to the terms and conditions, as described in the Agreement or elsewhere in the Contract Documents. The Owner shall purchase and maintain the required insurance from an insurance company or insurance companies lawfully authorized to issue insurance in the jurisdiction where the Project is located. § 11.2.2 Failure to Purchase Required Property Insurance. If the Owner fails to purchase and maintain the required property insurance, with all of the coverages and in the amounts described in the Agreement or elsewhere in the Contract Documents, the Owner shall inform both the Contractor and the Construction Manager, separately and in writing, prior to commencement of the Work. Upon receipt of notice from the Owner, the Contractor may delay commencement of the Work and may obtain insurance that will protect the interests of the Contractor, Subcontractors, and Sub-Subcontractors in the Work. When the failure to provide coverage has been cured or resolved, the Contract Sum and Contract Time shall be equitably adjusted. In the event the Owner fails to procure coverage, the Owner waives all rights against the Contractor, Subcontractors, and Sub-subcontractors to the extent AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 33 RS220-402-865244.v2 the loss to the Owner would have been covered by the insurance to have been procured by the Owner. The cost of the insurance shall be charged to the Owner by a Change Order. If the Owner does not provide written notice, and the Contractor is damaged by the failure or neglect of the Owner to purchase or maintain the required insurance, the Owner shall reimburse the Contractor for all reasonable costs and damages attributable thereto. § 11.2.3 Notice of Cancellation or Expiration of Owner’s Required Property Insurance. Within three (3) business days of the date the Owner becomes aware of an impending or actual cancellation or expiration of any property insurance required by the Contract Documents, the Owner shall provide notice directly to the Contractor, and separately to the Construction Manager, of such impending or actual cancellation or expiration. Unless the lapse in coverage arises from an act or omission of the Contractor: (1) the Contractor, upon receipt of notice from the Owner, shall have the right to stop the Work until the lapse in coverage has been cured by the procurement of replacement coverage by either the Owner or the Contractor; (2) the Contract Time and Contract Sum shall be equitably adjusted; and (3) the Owner waives all rights against the Contractor, Subcontractors, and Sub-subcontractors to the extent any loss to the Owner would have been covered by the insurance had it not expired or been cancelled. If the Contractor purchases replacement coverage, the cost of the insurance shall be charged to the Owner by an appropriate Change Order. The furnishing of notice by the Owner shall not relieve the Owner of any contractual obligation to provide required insurance. § 11.3 Waivers of Subrogation § 11.3.1 The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub- subcontractors, agents, and employees, each of the other; (2) the Construction Manager and Construction Manager’s consultants; (3) the Architect and Architect’s consultants; (4) other Contractors and any of their subcontractors, sub- subcontractors, agents, and employees; and (5) Separate Contractors, if any, and any of their subcontractors, sub- subcontractors, agents, and employees, for damages caused by fire, or other causes of loss, to the extent those losses are covered by property insurance required by the Agreement or other property insurance applicable to the Project, except such rights as they have to proceeds of such insurance. The Owner or Contractor, as appropriate, shall require similar written waivers in favor of the individuals and entities identified above from the Construction Manager, Construction Manager’s consultants, Architect, Architect’s consultants, other Contractors, Separate Contractors, subcontractors, and sub-subcontractors. The policies of insurance purchased and maintained by each person or entity agreeing to waive claims pursuant to this Section 11.3.1 shall not prohibit this waiver of subrogation. This waiver of subrogation shall be effective as to a person or entity (1) even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, (2) even though that person or entity did not pay the insurance premium directly or indirectly, or (3) whether or not the person or entity had an insurable interest in the damaged property. § 11.3.2 Notwithstanding the above, Owner does not waive its right to subrogate against (1) Contractor, any of its Subcontractors, Sub-Subcontractors, agents or employees for damages caused to non-Project related property, real or personal or both, at or adjacent to the site of the Project, caused by the negligent, intentional or other willful act or omission of the Contractor, any of its Subcontractors, Sub-Subcontractors, agents or employees; or against or (2) the Architect, or Architect’s consultant, if any, for damages caused to non-Project related property, real or personal or both, at or adjacent to the site of the Project, caused by the negligent, intentional or other willful act or omission of the Architect, or Architect’s consultants, if any.. § 11.3.3 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, to the extent permissible by such policies, the Owner waives all rights in accordance with the terms of Section 11.3.1 for damages caused by fire or other causes of loss covered by this separate property insurance. § 11.4 Adjustment and Settlement of Insured Loss § 11.4.1 A loss insured under the property insurance required by the Agreement shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section 11.5.2. The Owner shall pay the Construction Manager, Architect and Contractor their just shares of insurance proceeds received by the Owner, and by appropriate agreements the Construction Manager, Architect and Contractor shall make payments to their consultants and Subcontractors in similar manner. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 34 RS220-402-865244.v2 § 11.4.2 Prior to settlement of an insured loss, the Owner shall notify the Contractor of the terms of the proposed settlement as well as the proposed allocation of the insurance proceeds. The Contractor shall have 14 days from receipt of notice to object to the proposed settlement or allocation of the proceeds. If the Contractor does not object, the Owner shall settle the loss and the Contractor shall be bound by the settlement and allocation. Upon receipt, the Owner shall deposit the insurance proceeds in a separate account and make the appropriate distributions. Thereafter, if no other agreement is made or the Owner does not terminate the Contract for convenience, the Owner and Contractor shall execute a Change Order for reconstruction of the damaged or destroyed Work in the amount allocated for that purpose. If the Contractor timely objects to either the terms of the proposed settlement or the allocation of the proceeds, the Owner may proceed to settle the insured loss, and any dispute between the Owner and Contractor arising out of the settlement or allocation of the proceeds shall be resolved pursuant to Article 15. Pending resolution of any dispute, the Owner may issue a Construction Change Directive for the reconstruction of the damaged or destroyed Work. ARTICLE 12 UNCOVERING AND CORRECTION OF WORK § 12.1 Uncovering of Work § 12.1.1 If a portion of the Work is covered contrary to the Construction Manager’s or Architect’s request or to requirements specifically expressed in the Contract Documents, it must, if requested in writing by either, be uncovered for their examination and be replaced at the Contractor’s expense without change in the Contract Time. § 12.1.2 If a portion of the Work has been covered that the Construction Manager or Architect has not specifically requested to examine prior to its being covered, the Construction Manager or Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, the Contractor shall be entitled to an equitable adjustment to the Contract Sum and Contract Time as may be appropriate. If such Work is not in accordance with the Contract Documents, the costs of uncovering the Work, and the cost of correction, shall be at the Contractor’s expense. § 12.2 Correction of Work § 12.2.1 Before Substantial Completion The Contractor shall promptly correct Work rejected by the Construction Manager or Architect or failing to conform to the requirements of the Contract Documents, discovered before Substantial Completion, and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections, the cost of uncovering and replacement, and compensation for the Construction Manager’s and Architect’s services and expenses made necessary thereby, shall be at the Contractor’s expense. § 12.2.2 After Substantial Completion § 12.2.2.1 In addition to the Contractor’s obligations under Section 3.5, if, within one year after the date of Substantial Completion of the Work or designated portion thereof, or after the date for commencement of warranties established under Section 9.9.1, or by terms of any applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of notice from the Owner to do so, unless the Owner has previously given the Contractor a written acceptance of such condition. The Owner shall give such notice within a reasonable time after discovery of the condition, and such notice shall be within one year after substantial completion, or, for Work performed pursuant to Sections 12.2.2.2 and 12.2.2.3, within the one year following such Work or Corrective Work. If Owner fails to give notice to Contractor within these one-year periods, Owner waives its right to Corrective Work, but retains all other rights it may have under law for defective Work. During the period for correction of Work, the Owner shall give the Contractor a reasonable opportunity to make the correction.. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner, Construction Manager or Architect, the Owner may correct it in accordance with Section 2.5. The expiration of the above one year or any other specified time period, or any other period prescribed by law, shall not relieve the Contractor of the obligation for the expense to correct any latent defect in the Work or deficiencies which are not readily ascertained, including but not limited to defective materials and workmanship, defects attributable to material substitutions for specified materials, substandard performance or otherwise not in compliance with the Contract Documents. Such latent defects or deficiencies shall be corrected as provided in this Subsection 12.2. Following the correction or replacement of any of the Work, as above specified, the Contractor shall correct any defects or deficiencies in corrected or replaced materials and workmanship, which is found within one year after the date of correction or replacement. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 35 RS220-402-865244.v2 § 12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual completion of that portion of the Work. § 12.2.2.3 With respect to any corrective work performed during the Correction Period, the Correction Period for that corrective work shall be extended for one year from the date the Corrective Work was completed. § 12.2.3 The Contractor shall remove from the site portions of the Work that are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. § 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction of the Owner, Separate Contractors, or other Contractors, whether completed or partially completed, caused by the Contractor’s correction or removal of Work that is not in accordance with the requirements of the Contract Documents. § 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations the Contractor has under the Contract Documents. Establishment of the one-year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor’s liability with respect to the Contractor’s obligations other than specifically to correct the Work. § 12.3 Acceptance of Nonconforming Work If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS § 13.1 Governing Law The Contract shall be governed by the law of the place where the Project is located . § 13.2 Successors and Assigns § 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to covenants, agreements, and obligations contained in the Contract Documents. Except as provided in Section 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. § 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to a lender providing construction financing for the Project, if the lender assumes the Owner’s rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate the assignment. § 13.3 Rights and Remedies § 13.3.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights, and remedies otherwise imposed or available by law. § 13.3.2 No action or failure to act by the Owner, Construction Manager, Architect, or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed upon in wr iting. § 13.4 Tests and Inspections § 13.4.1 Tests, inspections, and approvals of portions of the Work shall be made as required by the Contract Documents and by applicable laws, statutes, ordinances, codes, rules, and regulations or lawful orders of public authorities. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections, and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections, and approvals. The Contractor shall give the Construction Manager and Architect timely notice of when and where tests and inspections are to be made so that the Construction Manager and Architect may be present for such procedures. The Owner shall bear costs of tests, inspections, or AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 36 RS220-402-865244.v2 approvals that do not become requirements until after bids are received or negotiations concluded. The Owner shall directly arrange and pay for tests, inspections, or approvals where building codes or applicable laws or regulations so require. § 13.4.2 If the Construction Manager, Architect, Owner, or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection, or approval not included under Section 13.4.1, the Construction Manager and Architect will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection, or approval, by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Construction Manager and Architect of when and where tests and inspections are to be made so that the Construction Manager and Architect may be present for such procedures. Such costs, except as provided in Section 13.4.3, shall be at the Owner’s expense. § 13.4.3 If procedures for testing, inspection, or approval under Sections 13.4.1 and 13.4.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure, including those of repeated procedures and compensation for the Construction Manager’s and Architect’s services and expenses, shall be at the Contractor’s expense. § 13.4.4 Required certificates of testing, inspection, or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Construction Manager for transmittal to the Architect. § 13.4.5 If the Construction Manager or Architect is to observe tests, inspections, or approvals required by the Contract Documents, the Construction Manager or Architect will do so promptly and, where practicable, at the normal place of testing. § 13.4.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. § 13.5 Interest All payments to the Contractor shall be governed by the Prompt Payment of Local Government Bills, Minnesota Statutes, Section 471.125 (“Prompt Payment Act”) and Section 8.2 of the A132–2019 Agreement on this Project. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT § 14.1 Termination by the Contractor § 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault of the Contractor, a Subcontractor, a Sub-subcontractor, their agents or employees, or any other persons or entities performing portions of the Work, for any of the following reasons: .1 Issuance of an order of a court or other public authority having jurisdiction that requires all Work to be stopped; .2 An act of government, such as a declaration of national emergency, that requires all Work to be stopped; or .3 Because the Construction Manager has not certified or the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Section 9.4, or because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents. § 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor, a Subcontractor, a Sub-subcontractor, their agents or employees, or any other persons or entities performing portions of the Work, repeated suspensions, delays, or interruptions of the entire Work by the Owner as described in Section 14.3, constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period, whichever is less. § 14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days’ notice to the Owner, Construction Manager and Architect, terminate the Contract and recover from the Owner payment for Work executed. § 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor, a Subcontractor, a Sub-subcontractor, or their agents or employees, or any other persons performing portions of the AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 37 RS220-402-865244.v2 Work because the Owner has repeatedly failed to fulfill the Owner’s obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days’ notice to the Owner, Construction Manager and Architect, terminate the Contract and recover from the Owner as provided in Section 14.1.3. NO RIGHT TO STOP WORK FOR NON-PAYMENT § 14.1.5 Except as provided in Section 9.7, the Contractor has no right to stop Work as a consequence of non- payment. In the event of any disagreement between the Contractor and Owner involving the Contractor’s entitlement to payment, the Contractor’s only remedy is to file a Claim in accordance with Article 15. The Contractor must diligently proceed with the Work pending resolution of the Claim. If, however, an Application for Payment has been approved for payment by the Owner, and the Owner fails to make payment within sixty (60) days of the approval for payment by the Owner, the Contractor may upon ten (10) days written notice to the Owner, stop work if payment is not made by the Owner within ten (10) days following the notice. § 14.2 Termination by the Owner for Cause § 14.2.1 The Owner may terminate the Contract if the Contractor .1 repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors or suppliers in accordance with the respective agreements between the Contractor and the Subcontractors or suppliers; .3 repeatedly disregards applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of a public authority; or .4 otherwise is guilty of substantial breach of a provision of the Contract Documents. § 14.2.2 When any of the reasons described in Section 14.2.1 exist, after consultation with the Construction Manager and Architect, the Owner may, without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor’s surety, if any, seven days’ notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: .1 Exclude the Contractor from the site and take possession of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; .2 Accept assignment of subcontracts pursuant to Section 5.4; and .3 Finish the Work by whatever reasonable method the Owner may deem expedient. Upon written request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. § 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Construction Manager’s and Architect’s services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to the Contractor or Owner, as the case may be, shall, upon application, be certified by the Initial Decision Maker after consultation with the Construction Manager, and this obligation for payment shall survive termination of the Contract. § 14.3 Suspension by the Owner for Convenience § 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work, in whole or in part for such period of time as the Owner may determine. § 14.3.2 The Contract Sum and the Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay, or interruption under Section 14.3.1. No adjustment shall be made to the extent: .1 that performance is, was, or would have been, so suspended, delayed, or interrupted, by another cause for which the Contractor is responsible; or .2 that an equitable adjustment is made or denied under another provision of this Contract. § 14.4 Termination by the Owner for Convenience § 14.4.1 The Owner may, at any time, terminate the Contract for the Owner’s convenience and without cause. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 38 RS220-402-865244.v2 § 14.4.2 Upon receipt of notice from the Owner of such termination for the Owner’s convenience, the Contractor shall .1 cease operations as directed by the Owner in the notice; .2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and .3 except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. § 14.4.3 In case of such termination for the Owner’s convenience, the Owner shall pay the Contractor for Work properly executed; costs incurred by reason of the termination, including costs attributable to termination of Subcontracts; and the termination fee, if any, set forth in the Agreement. ARTICLE 15 CLAIMS AND DISPUTES § 15.1 Claims § 15.1.1 Definition. A Claim is a demand or assertion by the Contractor seeking, as a matter of right, payment of money, a change in the Contract Time, or other relief with respect to the terms of the Contract. The term “Claim” also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. The responsibility to substantiate Claims shall rest with the Contractor. This Section 15.1.1 does not require the Owner to file a Claim in order to impose liquidated damages in accordance with the Contract Documents. Nothing in this paragraph 15.1.1 is intended to in any way limit the Owner’s right to make Claims related to or arising out of the Contract. § 15.1.2 Time Limits on Claims The Owner and Contractor shall commence all Claims and causes of action against the other and arising out of or related to the Contract, whether in contract, tort, breach of warranty or otherwise, in accordance with the requirements of the binding dispute resolution method selected in the Agreement and within the period specified by applicable law. § 15.1.3 Notice of Claims § 15.1.3.1 Claims by the Contractor, where the condition giving rise to the Claim is first discovered prior to expiration of the period for correction of the Work set forth in Section 12.2.2, shall be initiated by written notice to the Owner and to the Initial Decision Maker with a copy sent to the Construction Manager and Architect, if the Architect is not serving as the Initial Decision Maker. Claims by the Contractor under this Section 15.1.3.1 shall be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the Contractor first recognizes the condition giving rise to the Claim, whichever is later. As a condition to making a claim for additional costs, the Contractor shall maintain and produce accurate records to substantiate all additional costs actually incurred. If a Claim for actual costs is approved, the Owner shall pay the Contractor actual costs incurred, plus either (a) ten percent (10%) for overhead and profit for work performed by the Contractor, or (b) five percent (5%) overhead and profit for work performed by a Subcontractor, as applicable. § 15.1.3.2 Claims by either the Owner or Contractor, where the condition giving rise to the Claim is first discovered after expiration of the period for correction of the Work set forth in Section 12.2.2, shall be initiated by written notice to the other party. In such event, no decision by the Initial Decision Maker is required. § 15.1.4 Continuing Contract Performance § 15.1.4.1 Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section 9.7 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. § 15.1.4.2 The Contract Sum and Contract Time shall be adjusted in accordance with the Initial Decision Maker’s decision, subject to the right of either party to proceed in accordance with this Article 15. The Architect will issue Certificates for Payment in accordance with the decision of the Initial Decision Maker. § 15.1.5 Claims for Additional Cost. If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided in Section 15.1.3 shall be given before proceeding to execute the portion of the Work that is the subject of the Claim. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10.4. As a condition to making a Claim for additional costs, the Contractor shall AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 39 RS220-402-865244.v2 maintain and produce accurate records to substantiate all additional costs actually incurred. If a claim for additional actual costs is approved, the Owner shall pay Contractor actual costs incurred plus either: (1) ten percent (10.00%) for overhead and profit for Work performed by the Contractor, or (2) five percent (5.00%) overhead and profit for Work performed by a subcontractor. § 15.1.6 Claims for Additional Time § 15.1.6.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, notice as provided in Section 15.1.3 shall be given. The Contractor’s Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay only one Claim is necessary. § 15.1.6.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. § 15.2 Initial Decision § 15.2.1 Claims, excluding those where the condition giving rise to the Claim is first discovered after expiration of the period for correction of the Work set forth in Section 12.2.2 or arising under Sections 10.3, 10.4, and 11.5, shall be referred to the Initial Decision Maker for initial decision. The Architect will serve as the Initial Decision Maker, unless otherwise indicated in the Agreement. Except for those Claims excluded by this Section 15.2.1, an initial decision shall be required as a condition precedent to mediation of any Claim. If an initial decision has not been rendered within 30 days after the Claim has been referred to the Initial Decision Maker, the party asserting the Claim may demand mediation and binding dispute resolution without a decision having been rendered. Unless the Initial Decision Maker and all affected parties agree, the Initial Decision Maker will not decide disputes between the Contractor and persons or entities other than the Owner. § 15.2.2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one or more of the following actions: (1) request additional supporting data from the Contractor or a response with supporting data from the Owner, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties that the Initial Decision Maker is unable to resolve the Claim if the Initial Decision Maker lacks sufficient information to evaluate the merits of the Claim or if the Initial Decision Maker concludes that, in the Initial Decision Maker’s sole discretion, it would be inappropriate for the Initial Decision Maker to resolve the Claim. § 15.2.3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Initial Decision Maker in rendering a decision. The Initial Decision Maker may request the Owner to authorize retention of such persons at the Owner’s expense. § 15.2.4 If the Initial Decision Maker requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of the request, and shall either (1) provide a response on the requested supporting data, (2) advise the Initial Decision Maker when the response or supporting data will be furnished, or (3) advise the Initial Decision Maker that no supporting data will be furnished. Upon receipt of the response or supporting data, if any, the Initial Decision Maker will either reject or approve the Claim in whole or in part. § 15.2.5 The Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating that the Initial Decision Maker is unable to resolve the Claim. This initial decision shall (1) be in writing; (2) state the reasons therefor; and (3) notify the parties, the Construction Manager, and the Architect, if the Architect is not serving as the Initial Decision Maker, of any change in the Contract Sum or Contract Time or both. The initial decision shall be final and binding on the parties but subject to mediation and, if the parties fail to resolve their dispute through mediation, to binding dispute resolution. § 15.2.6 In the event of a Claim against the Contractor, the Owner may, but is not obligated to notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor’s default, the Owner may, but is not obligated to notify the surety and request the surety’s assistance in resolving the controversy. AIA Document A232™ – 2019. Copyright © 1992, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 10:28:36 ET on 01/02/2023 under Order No.2114302942 which expires on 04/02/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (794455106) 40 RS220-402-865244.v2 § 15.3 Mediation § 15.3.1 Any Claim, dispute or other matter in question or arising out of or related to this Agreement shall be subject to mediation. Mediation is not a condition precedent to commencing litigation, but if litigation is commenced, the parties agree to mediate before any dispositive motions or trial. The parties shall share equally the mediator’s fee and any filing fees. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation and ratified by the Owner’s governing body shall be enforceable as settlement agreements in any court having jurisdiction thereof.