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UTILITY SERVICES AND BUILDING MA

VIEWS: 6 PAGES: 53

  • pg 1
									BUILDING MANAGEMENT AND UTILITY SERVICES
              AGREEMENT
                               between

                  The Board of Regents of
              The University of Washington

                                  and

                M. A. Mortenson Company
                    DBOM Contractor

                      in association with



                   Johnson Controls, Inc.
                    Prime Subcontractor

                                   for

Benjamin Hall Interdisciplinary Research Building
            (Formerly known as Research and Technology Building)


                      NE Northlake Place
                     Seattle, Washington



                    DATE: June 22, 2004
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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
Capital Projects Office, University of Washington


                                                                    TABLE OF CONTENTS
BASIC INFORMATION SHEET
RECITALS

DEFINITIONS ............................................................................................................................................... 6

APPOINTMENT OF PRIME SUBCONTRACTOR ....................................................................................... 8

SERVICES OF DBOM CONTRACTOR ....................................................................................................... 8
      1.1. ORIENTATION................................................................................................................................................. 8
      1.2. MANAGEMENT OF THE FACILITY .................................................................................................................... 8
      1.3. USE AND MAINTENANCE OF THE FACILITY .................................................................................................... 8
      1.4. SPECIFIC DUTIES OF DBOM CONTRACTOR ................................................................................................. 9
            DBOM Contractor’s Obligations ................................................................................................................. 9
            Repairs and Maintenance ........................................................................................................................... 9
            Equipment and Supplies............................................................................................................................ 10
            Taxes 10
            Insurance Claims ........................................................................................................................................ 10
            Insurance and Bond ................................................................................................................................... 10
            Personnel ..................................................................................................................................................... 13
            Other Services. ........................................................................................................................................... 13
            Compliance with Laws ............................................................................................................................... 13
            Notices 13
            Cooperation ................................................................................................................................................. 13
            Occupant’s or Tenant's Notice of Complaints and Violations .............................................................. 13
            Notice of Damages and Suits ................................................................................................................... 14
            Environmental ............................................................................................................................................. 14
            Environmental ............................................................................................................................................. 14
            Garage and Parking Management. .......................................................................................................... 15
TENANT AND CAPITAL IMPROVEMENTS ............................................................................................. 15

APPROVAL OF CONTRACTS/SUBCONTRACTS ................................................................................... 15

PERIODIC REBIDDING OF SUBCONTRACTS ........................................................................................ 15

COMPENSATION FOR BUILDING MANAGEMENT AND UTILITY SERVICES ..................................... 16
      1.5. BUILDING MANAGEMENT AND UTILITY SERVICES FEE ............................................................................... 16
      1.6. PAYMENT OF BUILDING MANAGEMENT AND UTILITY SERVICES FEE ......................................................... 17
      1.7. FEE ADJUSTMENT FOR CHANGES IN BUILDING OCCUPANCY AND USE. .................................................... 17
      1.8. FEE ADJUSTMENTS FOR ANNUAL INFLATION .............................................................................................. 17
          Interim Fee Adjustments for Certain Utility Costs .................................................................................. 17
      1.9. FEE ADJUSTMENTS FOR UNOCCUPIED ASSIGNABLE AREAS ..................................................................... 18
      1.10. FEE ADJUSTMENT FOR W EATHER ......................................................................................................... 18
      1.11. ASSESSMENT FOR PERFORMANCE FAILURE EVENTS........................................................................... 18
      1.12. UNIVERSITY’S RIGHT TO CURE PERFORMANCE FAILURE EVENTS....................................................... 19
ACCOUNTING, RECORDS, REPORTS .................................................................................................... 20
      1.13. FINANCIAL RECORDS ............................................................................................................................. 20
      1.14. ANNUAL COST REPORT ......................................................................................................................... 20

Building Management and Utility Services Agreement
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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
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EXPENDITURE AUTHORIZATION AND REIMBURSEMENT ................................................................. 20
      1.15. REPAIRS. ................................................................................................................................................ 20
INDEMNITIES ............................................................................................................................................. 20
      1.16. DBOM CONTRACTOR INDEMNITY ......................................................................................................... 20
      1.17. THE UNIVERSITY INDEMNITY ................................................................................................................. 21
      1.18. LIMITATION ON INDEMNITY ..................................................................................................................... 21
TERM AND TERMINATION ....................................................................................................................... 21
      1.19. TERM ...................................................................................................................................................... 21
      1.20. EXTENSION............................................................................................................................................. 21
      1.21. TERMINATION FOR CAUSE ..................................................................................................................... 21
         By DBOM Contractor ................................................................................................................................. 21
         By the University ......................................................................................................................................... 21
         Notice and Opportunity to Cure ................................................................................................................ 21
      1.22. TERMINATION WITHOUT CAUSE ............................................................................................................ 22
      1.23. TERMINATION PROCEDURE ................................................................................................................... 22
      1.24. DBOM CONTRACTOR 'S OBLIGATIONS AFTER TERMINATION .............................................................. 23
         Books and Record ...................................................................................................................................... 23
         Service Contracts ....................................................................................................................................... 23
         Proprietary Software and Hardware ........................................................................................................ 24
         Continuing Covenant ................................................................................................................................. 24
DISPUTE AVOIDANCE AND RESOLUTION ............................................................................................ 24

LITIGATION................................................................................................................................................ 25

NO AGENCY .............................................................................................................................................. 25

ASSIGNMENT. ........................................................................................................................................... 26

NO WAIVER. .............................................................................................................................................. 26

LICENSES. ................................................................................................................................................. 26

NOTICES. ................................................................................................................................................... 26

CONFIDENTIALITY AND NONDISCLOSURE. ......................................................................................... 26
      1.25. INFORMATION NOT SUBJECT TO CONFIDENTIALITY. ............................................................................ 27
      1.26. NOTIFICATION. ....................................................................................................................................... 27




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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
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BENEFIT AND LIABILITY. ........................................................................................................................ 27

CAPTIONS. ................................................................................................................................................ 27

CONSTRUCTION. ...................................................................................................................................... 27

ENTIRE AGREEMENT............................................................................................................................... 27

ATTORNEYS' FEES. ................................................................................................................................. 27

UNIVERSITY’S REPRESENTATIVE ......................................................................................................... 27

NONDISCRIMINATION .............................................................................................................................. 27

UNIVERSITY'S CONSENT ........................................................................................................................ 28

GOVERNING LAW AND VENUE .............................................................................................................. 28

TREATMENT OF ASSETS ........................................................................................................................ 28

UNIVERSITY FUNDING ............................................................................................................................. 28

AMENDMENT ............................................................................................................................................ 28

CHANGES TO AGREEMENT .................................................................................................................... 28

TIME ........................................................................................................................................................... 29

SEVERABILITY .......................................................................................................................................... 29

LIMITATIONS OF LIABILITY..................................................................................................................... 29

FORCE MAJEURE ..................................................................................................................................... 29

INTELLECTUAL PROPERTY RIGHTS ..................................................................................................... 29




Building Management and Utility Services Agreement
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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
Capital Projects Office, University of Washington


                                             BASIC INFORMATION SHEET
    The following Basic Information is hereby incorporated into the Building Management and Utility Services
    Agreement (hereinafter “Agreement”) as though set out in full therein:
1. Effective Date: June 22, 2004
2. Commencement Date:                                             [to be filled in upon occurrence]
3. Facility: Benjamin Hall Interdisciplinary Research Building, NE Northlake Place, Seattle, Washington
4. Performance Bond Amount: $5,000,000
5. Building Management and Utility Service Fee (Fee): For the Basic Services described in Section 3.4
   below, DBOM Contractor shall be paid as follows:
    5.1. From the Commencement Date a monthly fee of $125,488.00 per month subject to the Fee
         Adjustments described in this Agreement.
6. Design-Builder: M. A. Mortenson Company
7. DBOM Contractor: M. A. Mortenson Company
8. Address:       14719 NE 29th Place
                  Bellevue, WA 98007
                                                                                     th
9. DBOM Contractor’s Representative: David Mortenson, 14719 NE 29 Place, Bellevue, WA 98007;
   Phone (425) 895-9000; Fax (425) 376-0300.
10. Prime Subcontractor:            Johnson Controls, Inc.
11. Address:
                                    22745 29th Drive SE
                                    Bothell, WA 98021

12. Prime Subcontractor's Representative: Rebecca Aaronson, 22745 29th Drive SE, Bothell, WA 98021;
    Phone: (425) 398-6900; Fax (425) 402-3500.
13. University: The Board of Regents of The University of Washington, an agency of the State of
    Washington.
14. University’s Address:                    University of Washington Real Estate Office
                                             Attn: Director, Real Estate Office
                                             1326 Fifth Avenue Suite 400
                                             Seattle, WA 98101
                                             with a copy to: The University's Representative

15. University’s Representative: Steve Kennard, Real Estate Office, 1326 Fifth Avenue, Suite 400,
    Seattle, WA 98101; Phone (206) 616-3424, Fax (206) 685-1547.
16. Term: The term of the Agreement shall be fifteen (15) years commencing on the Date of Substantial
    Completion of the construction of the Core and Shell of the Facility by the Design-Builder
    (“Commencement Date”), and expiring fifteen years thereafter, provided that the University reserves the
    right to modify the term of this Agreement to ensure that tax exempt financing may be used in connection
    with the Facility. The dates of such term shall be confirmed in writing by the parties within thirty (30)
    days of the actual date of Substantial Completion.




Building Management and Utility Services Agreement
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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
Capital Projects Office, University of Washington


                                                       RECITALS

THIS BUILDING MANAGEMENT AND UTILITY SERVICES AGREEMENT (“Agreement”) is made as of the
Effective Date by and between the University and DBOM Contractor. Attached to and forming a part of this
Agreement are the following documents:
           EXHIBITS:
           Exhibit A - Basic Documents, which shall have the order of precedence set forth therein
           Exhibit B - Management Guidelines
           Exhibit C - Scope of Work
           Exhibit D - Excluded Services
           Exhibit E – Building Management and Utility Service Fee and Related Indices
           Exhibit F – Consent to Assignment

UNIVERSITY AND DBOM CONTRACTOR ENTER INTO THIS AGREEMENT on the basis of the following
facts, understandings and intentions:
A. The University is the owner and occupant of certain Facility as more particularly described in the Basic
   Documents set forth in Exhibit A attached hereto (collectively, the “Facility”).
B. DBOM Contractor is responsible to provide the operations and maintenance of the Facility for the Term
   of the Agreement and has elected to engage Prime Subcontractor as its subcontractor to operate and
   maintain the Facility.
C. DBOM Contractor has represented to the University that DBOM Contractor and/or Prime Subcontractor
   has or will have the expertise and experience to provide the utilities operations and building maintenance
   services described herein;
D. DBOM Contractor agrees to retain the services of Prime Subcontractor as operator of the Facility with
   responsibilities for managing and supervising the operation, maintenance, and servicing of the Facility
   and the performance of all obligations of DBOM Contractor relating thereto, except those rights and
   obligations of DBOM Contractor which DBOM Contractor retains for itself, as stated in its subcontract
   agreement with Prime Subcontractor.
NOW THEREFORE, in consideration of the foregoing and of the full and faithful performance by DBOM
Contractor of all the terms, conditions, and obligations imposed upon DBOM Contractor hereunder, the
parties hereto agree as follows:
1. DEFINITIONS
    1.1.       Assignable Area Interior areas of the Facility as described in the Basic Documents, as defined
               and measured in accordance with the standard specified in the RFP.
    1.2.       Basic Documents University’s Request for Design-Build-Operate-Maintain Proposals (RFP),
               DBOM Contractor Proposals, Exhibits and Addenda thereto, and other documents describing the
               terms and conditions of other relationships between the University and DBOM Contractor, all as
               specifically listed in Exhibit A – Basic Documents in the order of precedence set forth therein.
    1.3.       Building Engineer An employee of Prime Subcontractor assigned to the Facility and officed
               there during normal business hours. The responsibilities of the Building Engineer may, at the
               option of Prime Subcontractor or DBOM Contractor, be fulfilled by more than one individual. The
               individual(s) filling the post of Building Engineer are subject to the University’s prior approval,
               which shall not be unreasonably withheld.
    1.4.       Building Management and Utility Service Fee (also referred to as the “Fee”). The fee paid
               by the University to DBOM Contractor for the services and materials provided by DBOM
               Contractor in satisfaction of the obligations of this Agreement. DBOM Contractor may direct the
               University to pay the Fee directly to Prime Subcontractor.


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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
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    1.5.     Capital Improvement Any part of the Facility that is expected to last longer in use than one
             year and has an initial cost of $10,000 or more and that is classified as Core and Shell with
             respect to the warranties, guaranties and other undertakings of the Design-Builder.
    1.6.     Capital Improvement Repayment Schedule The schedule submitted by Design-Builder as
             part of its Proposal for the Core and Shell of the Facility which, at DBOM Contractor’s option,
             was included over and above that which it would be compensated for by the lump-sum cost in its
             design-build agreement with the University. The cost of these capital improvements is included
             in the Fee. To the extent provided in Section 11, the University’s Termination Without Cause
             prior to the completion of the Term of the Agreement may require the University to assume
             DBOM Contractor’s obligation for the unpaid portions of the repayment schedule.
    1.7.     Commencement Date The date upon which the services under this Agreement begin. The
             Commencement Date shall be the Date of Substantial Completion of the Core and Shell (as
             “Substantial Completion” and “Core and Shell” are defined in the Design-Build Contracts).
    1.8.     Depreciation Fund That part of the Fee collected by DBOM Contractor to pay for the
             replacement (as opposed to manufacturer’s recommended major periodic maintenance) of all or
             portions of Capital Improvements during the Term of the Agreement. The University’s
             Termination Without Cause prior to the completion of the Term of the Agreement shall require
             DBOM Contractor to refund to the University any unused portions of the Depreciation Fund. The
             amount of monthly contributions to the Depreciation Fund is set forth in Exhibit E.
    1.9.     Design-Builder      "Design-Builder" is the term used to refer to DBOM Contractor in its
             contractual role under the Agreement Between Owner and Design-Builder – Lump Sum, dated
             June 22, 2004 for the Design and Construction of Core and Shell, and the Agreement Between
             Owner and Design-Builder – Cost Plus Fee with an Option for a Guaranteed Maximum Price,
             dated June 22, 2004 for the Design and Construction of Tenant Improvements (the "Design-
             Build Contracts").
    1.10.    DBOM Contractor The entity in privity of contract with the University in this Agreement for the
             operations and maintenance of the Facility.
    1.11.    Effective Date The first day this Agreement is in effect. This date coincides with the effective
             date of the Agreement Between Owner and Design-Builder for the Core and Shell of the Facility.
    1.12.    Facility The total improvement described in the RFP and in the Proposals. The Benjamin Hall
             Interdisciplinary Research Building to be built on the University’s site at NE Northlake Place,
             Seattle, Washington.
    1.13.    Prime Subcontractor A subcontractor to DBOM Contractor responsible for the operation and
             maintenance of the Facility. To the extent this Agreement speaks of actions to be taken by
             DBOM Contractor, implementation of such actions will normally be implemented by Prime
             Subcontractor, as subcontractor to DBOM Contractor, provided that Prime Subcontractor shall
             be required by DBOM Contractor to undertake directly (and in addition to DBOM Contractor) the
             indemnification obligations of Section 10.1, subject to the limitations of Section 35. DBOM
             Contractor shall ensure that its subcontract with Prime Subcontractor includes Prime
             Subcontractor’s agreement to assume such obligations to the University.
    1.14.    DBOM Contractor Proposals The documents set forth in Section 4 of Exhibit A (Basic
             Documents) in the order of precedence set forth therein.
    1.15.    Life-Cycle Cost Analysis A formal and structured methodology of analyzing, calculating and
             documenting the total cost to design, build, operate and maintain a facility over the useful life of
             the facility. DBOM Contractor submitted a LCCA in DBOM Contractor Proposals and the
             assumptions documented in that LCCA shall be the basis for future adjustments to the Fee.
    1.16.    Occupants or Tenants Employees of the University assigned to specific Assignable Areas of
             the Facility. There is no contractual relationship intended directly between an Occupant or
             Tenant and DBOM Contractor.

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    1.17.    Subcontractors Entities under contract to DBOM Contractor and responsible to provide some
             or all of the services and materials required for the operations and maintenance of the Facility,
             including Prime Subcontractor.
    1.18.    Term The duration of the Agreement from the Commencement Date to the conclusion of the
             term of the Agreement.
    1.19.    University The Regents of the University of Washington, the owner of the Facility and a party in
             privity of contract with DBOM Contractor for the design, construction, operation and maintenance
             of the Facility.
2. APPOINTMENT OF PRIME SUBCONTRACTOR                         DBOM Contractor hereby appoints Prime
   Subcontractor with the duties and responsibilities and upon the terms and conditions set forth herein and
   Prime Subcontractor by its execution hereof does hereby accept such appointment. Any change in
   Prime Subcontractor (or subcontractors, if multiple subcontractors are used) shall be subject to the
   University’s written approval, which shall not be unreasonably withheld for companies with experience,
   expertise, assets, infrastructure and reputation at least equal to that of the initial Prime Subcontractor
   identified by DBOM Contractor.
3. SERVICES OF DBOM CONTRACTOR
    3.1. Orientation. DBOM Contractor shall directly or through Prime Subcontractor, maintain possession
         of all books and records respecting the operation of the Facility, personal property required for the
         day to day operation and management of the Facility belonging to the University, if any, all
         warranties, guaranties and service contracts and agreements relating to the maintenance and
         operation of the Facility. DBOM Contractor shall provide its subcontractors, including Prime
         Subcontractor, the Basic Documents, books, records, building plans, contracts, correspondence,
         etc. necessary for DBOM Contractor to carry out its obligations hereunder.
    3.2. Management of the Facility In accordance with Exhibit C hereto (Scope of Work) and the Basic
         Documents, including but not limited to University’s RFP Program/Scope of Work and DBOM
         Contractor Proposals and Exhibit B hereto (Management Guidelines), but excluding the items set
         forth on Exhibit D hereto (Excluded Services), the services of DBOM Contractor hereunder are to be
         of a scope and quality not less than those generally performed by professional building engineers
         and managers of other similarly situated Class A (BOMA Standard) properties of similar scope and
         function in the City of Seattle. DBOM Contractor shall advise and make recommendations to the
         University with respect to the policies to be pursued by the University in operating the Facility.
         DBOM Contractor shall implement measures to properly protect and account for the University's
         assets and interest in the Facility.
    3.3. Use and Maintenance of the Facility DBOM Contractor shall use its commercially reasonable best
         efforts to prevent the use of the Facility for any purpose that might void any policy of insurance held
         by the University, or that might render any loss insured thereunder uncollectible or that would be in
         violation of any governmental restriction or policies of the University with respect to the use of
         University facilities. It shall be the duty of DBOM Contractor at all times during the term of this
         Agreement to operate and maintain the Facility according to standards consistent with the
         expressed plan of the University and for similarly situated Class A (BOMA Standard) properties of
         similar scope and function in the City of Seattle. Without limiting in any way Design-Builder’s
         obligations under its warranties and guaranties, to the extent any action is required by the University
         with respect thereto or with respect to other warranties, guaranties, service contracts or other
         agreements relating in any way to the Facility, DBOM Contractor shall use reasonable efforts at all
         times to supervise and facilitate the compliance by the University with its obligations, including its
         responsibilities relating to the building systems, any construction, and the personal property located
         at the Facility. DBOM Contractor shall use reasonable efforts to ensure that University occupants of
         the Facility (Occupants or Tenants) are in compliance with this Agreement, and shall notify the
         University in the event of non-compliance or potential non-compliance. DBOM Contractor shall be
         expected to perform such other acts and deeds as are commercially reasonable, necessary, and
         proper in the discharge of its duties under this Agreement. The University and DBOM Contractor

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          acknowledge that the Facility is utilized for various forms of scientific research requiring staff,
          equipment, and fixtures that are unique to such uses and that DBOM Contractor shall not be
          required to monitor such use with respect to the provisions described herein.

    3.4. Specific Duties of DBOM Contractor DBOM Contractor shall provide not less than one (1) FTE
         Building Engineer assigned to the Facility during regular business hours (8:00 a.m. to 5:00 p.m.).
         Building Engineer must be available 24 hours per day, seven days a week. Building Engineer shall
         provide University with a plan for after hours, weekends and holidays to respond to emergencies,
         including provision for an on-site response within sixty (60) minutes, such plans to be subject to
         University’s approval. Without limiting the duties and obligations of DBOM Contractor under any
         other provisions of this Agreement, DBOM Contractor shall have the following duties and perform
         the following services ("Basic Services"):
         3.4.1.   DBOM Contractor’s Obligations DBOM Contractor shall supervise its staff, subcontractors
                  and suppliers and cause their performance and compliance, duly and punctually, with all of
                  the obligations, terms, and conditions required to be performed, supplied or complied with
                  relating to management, operation, maintenance, and servicing of the Facility, including,
                  without limitation, the timely payment of all sums required to be paid for those materials and
                  services, all to the end that the University's interest in Facility shall be preserved. DBOM
                  Contractor shall be responsible to perform or cause to be performed the services and to
                  supply the materials described in Exhibit C – Scope of Work, Building Operations and
                  Maintenance and Building Custodial and Cleaning Services.
         3.4.2.   Repairs and Maintenance DBOM Contractor shall be responsible for and cause to be made
                  all repairs and shall cause to be performed all maintenance on the building, appurtenances,
                  and grounds of the Facility as required to be made under this Agreement, as described
                  below. If and to the extent the University requires, DBOM Contractor shall arrange for
                  periodic inspections by independent contractors, in which case the University shall be
                  responsible to reimburse DBOM Contractor for the cost of the independent inspections.
             3.4.2.1.      Obtain and be responsible for, review and administer service contracts and
                           preventative maintenance programs (i.e. custodial, fire protection system, HVAC,
                           HVAC controls, building systems, boiler, sump pumps, emergency generator, roof,
                           exterior, etc.)
             3.4.2.2.      Operate and maintain Facility, including but not limited to operation of HVAC
                           equipment, electrical equipment, elevators, fire protection, building systems, and
                           electronic card key, and keypad building and room entry systems. Fire protection
                           systems will be maintained consistent with the University’s Environmental Health
                           and Safety Standards applicable to the Facility and its component parts.
             3.4.2.3.      Inspect the Facility on a regularly scheduled basis for routine maintenance
                           requirements, and provide a written inspection report to the University by the 15th of
                           each month.
             3.4.2.4.      Coordinate building operational procedures with the University and implement safety
                           programs and security measures (may include unlocking and locking exterior and
                           interior doors during normal business hours).
             3.4.2.5.      Train Facility Management staff in the provisions and operational restrictions
                           specified in the current versions of the University’s Environmental Health & Safety
                           (EH&S) Laboratory Design and Operational Guides.
             3.4.2.6.      Maintain key control and management (hard keys and electronic keys).
             3.4.2.7.      Notify the University’s Office of Environmental Health & Safety when DBOM
                           Contractor becomes aware of any hazardous materials for which the University has
                           not previous made arrangements for collection, storage and/or disposal,


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             3.4.2.8.      Maintain accurate files for all Facility management activities related to the Facility.
             3.4.2.9.      Maintain good relations with the occupants of the Facility.
             3.4.2.10.     Notify and inform occupants of the Facility on Facility procedures, including but not
                           limited to emergency procedures.
         3.4.3.   Equipment and Supplies In accordance with the Agreement, DBOM Contractor shall be
                  responsible to furnish to the Facility all utility, maintenance, and other services and provide
                  all equipment and supplies as necessary for the management, operation, and maintenance
                  and servicing of the Facility.
         3.4.4.   Taxes DBOM Contractor shall pay, or cause to be paid, all applicable taxes related to its
                  services, labor, materials and supplies, including, but not limited to sales taxes and payroll
                  taxes.
         3.4.5.   Insurance Claims DBOM Contractor shall promptly investigate and make a full and timely
                  written report to the University, as to all accidents, claims, or damage of which DBOM
                  Contractor has knowledge or should reasonably have known relating to the ownership,
                  operation, and maintenance of the Facility, any damage or destruction to the Facility, and the
                  estimated cost of repair thereof, and shall prepare reports required by any insurance
                  company in connection therewith. All such reports shall be filed timely with the University
                  Office of Risk Management. In the event of an emergency, DBOM Contractor shall
                  telephonically notify the University's Risk Management Office, so that a University
                  representative has an opportunity to view the material damage before repairs are started
                  and complete customary loss reports in connection with fire or other material damage to the
                  Facility. DBOM Contractor shall have no right to settle, compromise, or otherwise dispose of
                  any claims, demands, or liabilities, whether or not covered by insurance, without the prior
                  written consent of the University, which consent may be withheld by the University in its sole
                  discretion.
         3.4.6.   Insurance and Bond
             3.4.6.1.      Insurance Certificates On or before the Commencement Date, DBOM Contractor
                           shall file with the University Certificates of Insurance acceptable to the University,
                           evidencing that DBOM Contractor has obtained the insurance described in Section
                           3.4.6.2. below. These certificates shall contain a provision that coverage afforded
                           under the policies will not be canceled or allowed to expire until at least forty-five
                           (45) days' prior written notice has been given to the University. All such insurance
                           policies required under this Agreement, except the Workers' Compensation
                           Insurance, shall cover DBOM Contractor and shall name the University and any
                           other entity reasonably required by the University as additional insureds: (i) with
                           respect to damages or claims arising out of operations performed for the University
                           by DBOM Contractor under this agreement, but only to the extent caused by the
                           negligence of DBOM Contractor, its agents, employees and subcontractors (and
                           their agents, employees and subcontractors); and (ii) subject to the damage
                           limitation provisions contained in this Agreement.             The additional insured
                           endorsement must be ISOCG29010 1 85 (or other form with like wording) or DBOM
                           Contractor must maintain Completed Operations coverage with additional insured
                           extension for a period of two (2) years after termination of this Agreement.
             3.4.6.2.      DBOM Contractor's Insurance DBOM Contractor shall purchase (or cause Prime
                           Subcontractor to purchase) from and maintain with a company or companies lawfully
                           authorized to do business in the State and satisfactory to the University the
                           insurance set forth in Section 3.4.6. The University reserves the right to review
                           these requirements from time to time and, subject to Paragraph 33, to modify the
                           coverages, endorsements and/or limits to reflect changes to industry standards,
                           insurance forms or applicable law.


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                  3.4.6.2.1.    Commercial General Liability Commercial General Liability insurance to include
                                minimum combined single limits of $5,000,000 each occurrence for Bodily Injury
                                and Property Damage(without maximum aggregate except where there is an
                                endorsement assuring at least $5,000,000 aggregate coverage per year for
                                activities at the Facility). Extensions of coverage to include, but are not limited
                                to, Contractual Liability, Broad Form Property Damage, Completed Operations,
                                Personal Injury, Cross Liability, Stop Gap, and Pollution arising out of heat,
                                smoke or fumes from a Hostile Fire.
                  3.4.6.2.2.    Business Automobile Business Automobile insurance to include minimum limits
                                of $2,000,000 each accident. Coverage shall extend to all owned, hired, or non-
                                owned vehicles.
                  3.4.6.2.3.    Property Damage Insurance Property damage insurance on a “special cause of
                                loss” (also referred to as “all risk”) basis on any personal property owned by
                                DBOM Contractor and Prime Subcontractor and used in the operation of the
                                Facility, which property damage insurance shall contain a waiver of subrogation
                                per Section 3.4.6.4.5 as to any claims covered by such insurance.
                  3.4.6.2.4.    The liability and property damage insurance required hereunder may be
                                provided by a combination of primary, excess and umbrella policies at least as
                                broad in scope as the primary policies, shall be with a company having a Best’s
                                rating of not less than A X, shall be written as primary and non-contributing with
                                any insurance carried by the University, but only to the extent caused by the
                                negligence of DBOM Contractor, its agents, employees and subcontractors and
                                their agents employees and subcontractors.
                  3.4.6.2.5.    Workers' Compensation Insurance DBOM Contractor shall comply with the
                                provisions of Title 51 RCW, Industrial Insurance. Prior to performing work under
                                this Agreement, DBOM Contractor shall provide or purchase industrial insurance
                                coverage for DBOM Contractor’s employees, as may be required of an
                                “employer” as defined in Title 51 RCW, and shall maintain full compliance with
                                Title 51 RCW during the course of this contract. DBOM Contractor will provide
                                its Washington State UBI number and a copy of its Certificate of Coverage or
                                Self-Insurance from the Washington State Department of Labor & Industries as
                                proof of workers’ compensation insurance coverage
             3.4.6.3.      Performance Surety. DBOM Contractor shall secure and pay for (or shall cause
                           Prime Subcontractor to secure and pay for) a surety to guarantee DBOM
                           Contractor’s performance under the terms and conditions of this Agreement. The
                           surety shall be in the penal amount stated on the Basic Information Sheet and may,
                           at DBOM Contractor’s option, be in the form of a surety bond, a letter of credit, or a
                           corporate bond, each subject to the provisions of this Section, and shall be for
                           successive five (5) year periods. At least 120 days prior to the expiration of the
                           surety, or of any successive surety, DBOM Contractor shall (or shall cause Prime
                           Subcontractor to) provide, in a form acceptable to the University, a commitment for a
                           replacement surety. In the event that DBOM Contractor does not satisfy the
                           obligation in the preceding sentence, it shall pay the University, as damages and not
                           as a penalty, liquidated damages of one million dollars ($1,000,000), which
                           contingent obligation shall be secured by the surety.
                  3.4.6.3.1.    Surety Bond DBOM Contractor may secure from a surety company acceptable
                                to University, admitted and licensed in the State of Washington, a bond covering
                                the faithful performance of the Agreement in the full amount of the penal sum
                                specified in the Agreement. The bond must be executed by a duly licensed
                                surety company that is listed in the latest Circular 570 of the United States
                                Treasury Department as being acceptable as surety on federal bonds. No


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                                surety's liability on the bond shall exceed the underwriting limitations for the
                                respective surety specified in Circular 570. The scope of the bond or the form
                                thereof prescribed in the Agreement shall in no way affect or alter the liabilities
                                of DBOM Contractor to University as set forth herein.
                  3.4.6.3.2.    Letter of Credit DBOM Contractor may submit to the University, in lieu of a
                                surety bond, an unqualified letter of credit for a bank licensed to do business in
                                the state of Washington and in a form acceptable to the University. The letter of
                                credit shall be for the full amount of the penal sum specified in the Agreement.
                                The letter of credit shall be renewed annually at least thirty (30) days prior to the
                                expiration date of the letter of credit in effect at the time.
                  3.4.6.3.3.    Corporate Bond DBOM Contractor may submit to the University, in lieu of a
                                surety bond, a corporate resolution from DBOM Contractor’s corporation, in a
                                form acceptable to the University, provided that use of a corporate bond shall be
                                subject to the University’s agreement in its discretion to such arrangement. The
                                corporate resolution shall guarantee the performance of DBOM Contractor’s
                                obligations under this Agreement, and shall remain in full force and
                                effectiveness for the Term of the Agreement. The corporate resolution shall be
                                approved by the corporation’s board of directors, be signed by the corporation’s
                                chief executive officer, and attested by the corporate secretary. DBOM
                                Contractor shall submit annually an audited financial statement of the
                                corporation providing the Corporate Bond indicating a net worth equal to or in
                                excess of the performance bond’s penal sum, as indicated on the Basic
                                information Sheet.
             3.4.6.4. University’s Insurance       University shall self-insure or procure and maintain for
                      University’s benefit, at University’s expense, property insurance as provided herein.
                  3.4.6.4.1 At the Commencement Date, University shall self-insure and/or procure and
                               maintain from insurance companies authorized to do business in the State of
                               Washington insurance upon the entire Facility with the coverage of a "special
                               cause of loss" (also referred to as "all risk") property damage policy to the full
                               insurable value of the Facility. All policies or self insurance shall contain a waiver
                               of subrogation per Section 3.4.6.4.5 as to any claims covered by such insurance
                               or self insurance. In addition, the University releases DBOM Contractor from
                               claims for property damage to the extent such damage would have been covered
                               by a reasonable terrorism endorsement to the University’s property damage
                               insurance, had such an endorsement been obtained.

                  3.4.6.4.2 Unless provided otherwise in this Agreement, the University shall procure and
                               maintain Comprehensive Boiler and Machinery Insurance covering boilers and
                               machinery in the Facility, in the amount of $1,000,000.

                  3.4.6.4.3 Prior to the Commencement Date, University shall provide DBOM Contractor
                               with evidence that (i) all University's insurance obligations required by this
                               Agreement are in full force and (ii) no insurance coverage will be canceled,
                               renewal refused, or materially changed unless at least forty-five (45) days prior
                               written notice is given to DBOM Contractor.

                  3.4.6.4.4 The University shall be solely responsible for all deductibles applicable to losses
                               covered by University’s insurance.

                  3.4.6.4.5 University and DBOM Contractor waive against each other and University's
                               separate    contractors,    Prime   Subcontractor,   subcontractors,    agents   and


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                               employees of each and all of them (for damages occurring during the period
                               during which they filled such roles), all damages covered by property insurance
                               provided herein, except such rights as they may have to the proceeds of such
                               insurance. DBOM Contractor and University shall, where appropriate, require
                               similar waivers of subrogation from University's separate contractors, Prime
                               Subcontractor, and subcontractors and shall require each of them to include
                               similar waivers in their contracts. Nothing in this Agreement shall in any way
                               affect any claim of the University against Design-Builder relating to its
                               performance under the Design-Build Contracts, including but not limited to any
                               claim against the insurance carried by Design-Builder pursuant to the Design-
                               Build Contracts.

         3.4.7.   Personnel DBOM Contractor shall employ such personnel as employees of DBOM
                  Contractor's affiliates or subcontractors, and not of the University, as may be necessary in
                  order for DBOM Contractor to perform its obligations hereunder. Except as expressly set
                  forth below, all employment shall be at the expense of DBOM Contractor.
         3.4.8.   Other Services DBOM Contractor shall perform other management services that are
                  normally performed in connection with the on site operation of similar Facilities, including
                  maintaining the Facility in good condition, timely responding to emergencies, attending
                  special planning meetings, responding to complaints and, specifically, whenever practicable
                  and without limiting the generality of the foregoing, DBOM Contractor’s on-site staff shall
                  perform services normally provided by on-site staff in the locality to occupants and tenants of
                  like premises, without additional charge.
         3.4.9.   Compliance with Laws DBOM Contractor shall inform the University of action necessary,
                  and, when authorized by the University, take such action as may be necessary to cause the
                  Facility to comply with all current and future laws, rules, regulations, or ordinances affecting
                  the ownership, use, or operation of the Facility, including orders of the Underwriters or other
                  similar bodies; provided, however, that DBOM Contractor need not obtain the prior
                  authorization of the University to take action in matters of emergency and life safety, so long
                  as DBOM Contractor shall give the University prompt notice of any such action taken.
                  DBOM Contractor shall comply with all laws relating to the employment by DBOM Contractor
                  of its employees.
         3.4.10. Notices DBOM Contractor shall deliver forthwith to the University at the address stated on
                 the Basic Information Sheet all written notices received by DBOM Contractor from any
                 occupant, tenant, and all written notices from any governmental entity.
         3.4.11. Cooperation Should any claims, demands, suits, or other legal proceedings be made or
                 instituted by any third party against the University that arise out of any matters relating to the
                 Facility or this Agreement or DBOM Contractor's performance hereunder, DBOM Contractor
                 shall promptly give the University all pertinent information and assistance including but not
                 limited to serving as a witness if necessary in the defense or other disposition thereof. The
                 provisions of this Section 3.4.11 are not intended to limit DBOM Contractor’s Indemnity as
                 provided in Section 10.1 of this agreement.
         3.4.12. Occupant’s or Tenant's Notice of Complaints and Violations DBOM Contractor shall handle
                 complaints and requests from occupants and tenants and notify the University within three
                 (3) business days of DBOM Contractor's having received any material complaint made by an
                 occupant or tenant or any alleged violation of University policies and procedures related to
                 the occupancy and use of University facilities. Additionally, DBOM Contractor shall notify the
                 University within three (3) business days of receipt (such notice to be accompanied by
                 copies of supporting documentation) of each of the following: any notice of any
                 governmental requirements; any defect in the Facility; and any fire or other material damage
                 to the Facility. In the case of any fire or other material damage to the Facility, DBOM
                 Contractor shall telephonically notify the University's Risk Management Office, so that a

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                  University representative has an opportunity to view the material damage before repairs are
                  started and complete customary loss reports in connection with fire or other material damage
                  to the Facility. DBOM Contractor shall have no right to settle, compromise, or otherwise
                  dispose of any claims, demands, or liabilities, whether or not covered by insurance, without
                  the prior written consent of the University, which consent may be withheld by the University
                  in its sole discretion.
         3.4.13. Notice of Damages and Suits DBOM Contractor shall notify the University as soon as
                 practical, but not less than three (3) business days of DBOM Contractor’s knowledge of any
                 personal injury or Facility damage occurring to or claimed by any occupant or tenant or third
                 party on or with respect to the Facility, and promptly forward to the University, any summons,
                 subpoena, or other like legal documents served upon DBOM Contractor relating to actual or
                 alleged potential liability of the University, DBOM Contractor, or the Facility. Notwithstanding
                 the foregoing, DBOM Contractor shall not be authorized to accept service of process on
                 behalf of the University. DBOM Contractor shall have no right to settle, compromise, or
                 otherwise dispose of any claims, demands, or liabilities relating to actual or alleged potential
                 liability of the University, whether or not covered by insurance, without the prior written
                 consent of the University, which consent may be withheld by the University in its sole
                 discretion.
         3.4.14. Environmental        The University acknowledges that: (i) DBOM Contractor is not an
                 environmental engineer and does not have any special expertise in the Hazardous Materials
                 Laws, (ii) DBOM Contractor’s duties under this Section 3.4.14 are limited to the quality of
                 reasonable commercial care and diligence customarily applied to Class A (BOMA Standard)
                 properties of similar scope and function in the City of Seattle, and (iii) DBOM Contractor shall
                 not have any liability with respect to the presence of Regulated Substances on, in or about
                 the Facility or for the Facility's compliance with Hazardous Materials Laws, except insofar as
                 such presence or lack of compliance shall result from DBOM Contractor’s gross negligence,
                 willful misconduct, or failure to act in a manner consistent with its duties under this Section
                 3.4.14.
             3.4.14.1.     Tenants' Obligations. The University shall require, by written agreement, each
                           occupant, tenant or any other person using the Facility to comply with all Hazardous
                           Materials Laws, as defined below, provided that University cannot assure Tenants'
                           compliance and shall not be liable to DBOM Contractor if a Tenant fails to comply.
                           If requested by DBOM Contractor, University shall provide DBOM Contractor any
                           regularly kept and accessible lists in the possession of University's property
                           management office detailing the use of any Hazardous Substances or Regulated
                           Substances in the Facility. DBOM Contractor acknowledges that such substances
                           may be in continuous and constantly changing use, and that accordingly lists may
                           be out of date or not available.
             3.4.14.2.     Notice DBOM Contractor shall promptly advise the University in writing of any
                           evidence of non-compliance with any Hazardous Materials Laws, as defined below,
                           which DBOM Contractor is aware of, together with a written report of the nature and
                           extent of the non-compliance and the potential threat, if any, to the health and safety
                           of persons and/or damage to the Facility or the Facility adjacent to or surrounding
                           the Facility.
             3.4.14.3.     Inspection DBOM Contractor shall comply with the University's policies and visually
                           inspect the Facility on a regular basis. If DBOM Contractor determines that any
                           occupant, tenant, or any other person, is using any Regulated Substances, as
                           defined below, at the Facility in violation of law, or, if there is any evidence of such
                           use, or any dumping, release, or discharge in violation of law which DBOM
                           Contractor is aware of, DBOM Contractor shall promptly advise the University in
                           writing of that fact, except for Tenants' inventory or use of such materials in the



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                           ordinary course of their respective businesses in accordance with the Lease,
                           applicable law or except as may be permitted by the University's Representative.
             3.4.14.4.     Hazardous Substances Except as set forth in this Section 3.4.14 with respect to
                           observations and notices, DBOM Contractor shall have no obligation whatsoever
                           with respect to the presence, dumping, use, release, discharge, or disposal of any
                           Hazardous Substances by the University or its Tenants. " Hazardous Substances"
                           means all chemicals, drugs, blood, tissue, serums, waste and other materials and
                           equipment and supplies related thereto in connection with the research activities
                           conducted in the Facility, which Hazardous Substances may include, without
                           limitation Regulated Substances. In the event of contamination by Hazardous
                           Substances, DBOM shall be entitled to take such protective actions, including but
                           not limited to limitations on the work being performed by DBOM Contractor, as are
                           appropriate in the circumstances.
             3.4.14.5.     Definition The term “Regulated Substances” means any chemical, material, or
                           substance defined as, or included in the definition of, “hazardous substances”,
                           “hazardous wastes”, “extremely hazardous wastes”, “restricted hazardous wastes”
                           or “toxic substances” or words of similar import under any applicable local, state, or
                           federal law or under the regulations adopted or publications promulgated pursuant
                           thereto, including, but not limited to, the Comprehensive Environmental Response,
                           Compensation and Liability Act of 1980, as amended, 42 U.S.C. SS 9601, et seq.;
                           the Hazardous Materials Transportation Act, as amended, 49 U.S.C. SS 1801, et
                           seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. SS
                           6901, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. SS
                           1251, et seq.; and applicable state and local statutes (the “Hazardous Materials
                           Laws”). The term “Regulated Substances” also includes any other chemical,
                           material, or substance, exposure to which is prohibited, limited, or Regulated by any
                           governmental authority or may or could pose a hazard to the health and safety of the
                           occupants of the Facility or the University and/or occupants of the Facility adjacent
                           to or surrounding the Facility.
         3.4.15. Garage and Parking Management DBOM Contractor shall have no responsibilities for the
                 operation of the passenger vehicle parking facilities on the Facility. All Garage and Parking
                 Management will be the responsibility of the University. However, DBOM Contractor shall
                 be responsible to clean, maintain and repair the parking facilities to achieve and sustain the
                 level of performance specified or indicated in this Agreement.
4. TENANT AND CAPITAL IMPROVEMENTS In the event construction and/or installation services are
   required by the University during the Term of this Agreement, the University may, but is not required to,
   direct DBOM Contractor to perform such work pursuant to separate purchase order or require the
   Design-Builder to provide those services under the terms and conditions of the Agreement Between
   Owner and Design-Builder – Cost Plus Fee with an Option for a Guaranteed Maximum Price dated June
   22, 2004 for the Design and Construction of Tenant Improvements, subject to the Overhead & Profit
   (OH&P) percentage and the Design Fee percentage stated in DBOM Contractor Proposals.
5. APPROVAL OF CONTRACTS/SUBCONTRACTS DBOM Contractor shall not enter into subcontracts
   with third parties for performance of any part of DBOM Contractor’s duties or obligations without the
   specific, written approval of the University, provided that if approved, in no event shall approval of a
   subcontract operate to release or reduce the liability of DBOM Contractor to the University for any breach
   in the performance of DBOM Contractor’s duties.
6. PERIODIC REBIDDING OF SUBCONTRACTS Thirty (30) days prior to the end of the fifth full calendar
   year after the Commencement Date and every five years thereafter for the Term of the Agreement,
   DBOM Contractor shall publicly solicit and receive bids for all building services subcontracts, except
   subcontracts with Prime Subcontractor and Key Systems Maintenance providers (meaning entities that
   perform a critical function in the design, delivery and maintenance of building systems such as HVAC,


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    plumbing, electrical, elevators, fire and life safety, building automation and security). DBOM Contractor
    and/or Prime Subcontractor shall award building services contracts to the lowest qualified building
    service bidders and DBOM Contractor’s Building Management and Utility Service Fee shall be adjusted
    to reflect any increase or decrease in the cost of these building services over the inflation adjusted cost
    of similar services at the end of the previous five-year period. For the purposes of this article, building
    services shall include, but are not limited to, custodial services, landscape maintenance, elevator repair
    and maintenance, roof inspection and maintenance, interior and exterior window cleaning, trash removal,
    recycle collection, parking garage sweeping, re-lamping and light fixture cleaning, and the like, except
    those provided directly by Prime Subcontractor or Key Systems Maintenance providers with their own
    staff and equipment.
7. COMPENSATION FOR BUILDING MANAGEMENT AND UTILITY SERVICES
         7.1.1.   Building Management and Utility Services Fee The University shall pay DBOM Contractor
                  monthly, as compensation for the utility costs, operation, maintenance and repair, and
                  building maintenance and custodial services rendered hereunder, an amount equal to the
                  Building Management and Utility Service Fee (Fee). The Fee and any adjustments thereto
                  required by the Agreement is intended to compensate DBOM Contractor for:
             7.1.1.1. General and overhead expenses, including bonds and insurance;
             7.1.1.2. Amounts paid by DBOM Contractor to Prime Subcontractor.
             7.1.1.3. All wages, salaries, benefits, and compensation of on-site and off-site personnel
                     employed by DBOM Contractor for the benefit of the Facility;
             7.1.1.4. Materials, equipment, supplies, and utility services, including but not limited to:
                     electricity, water & sewer, natural gas, fuel oil, trash removal, recycle collection services
                     except those utilities and supplies paid by University pursuant to Section 7.9;
             7.1.1.5. Amounts paid to subcontractors, including but not limited to: custodial services, elevator
                     inspection and maintenance, roof inspection and maintenance, window washing,
                     landscape maintenance, and minor repairs;
             7.1.1.6. Capital Improvement Repayment Schedule: to repay DBOM Contractor’s and/or Prime
                     Subcontractor’s capital investment in the initial Core and Shell of the Facility, if any, in
                     accordance with the Capital Improvement Repayment Schedule included in DBOM
                     Contractor Proposals and further enumerated in Exhibit E. Increases, decreases in, or
                     the completion and satisfaction of, the Capital Improvement Repayment Schedule shall
                     not increase or decrease the amount of the other components of the Fee. DBOM
                     Contractor shall not allow liens to be placed on any part of the Facility or its building
                     systems equipment.
             7.1.1.7. Depreciation Fund: The Depreciation Fund is the amount of Depreciation Fund
                     payments made by the University to DBOM Contractor less the amounts paid by DBOM
                     Contractor for the costs of replacement (as opposed to manufacturer’s recommended
                     major periodic maintenance) of all or portions of Capital Improvements over the Term of
                     the Agreement. In no event shall the Depreciation Fund monies be used to pay for any
                     repair or replacement that is the obligation of the Design-Builder under the Design-Build
                     Contracts.
             7.1.1.8. Miscellaneous expenses, including but not limited to: (a) any expenses for office
                     equipment or office supplies of DBOM Contractor's corporate or on-site office, (b) any
                     overhead expenses of DBOM Contractor, (c) any postage, printing, telephone, facsimile,
                     internet services, or delivery expenses of DBOM Contractor incurred during the ordinary
                     course of business, (d) any salaries (including benefits) of DBOM Contractor including
                     those of the on-site Approved Personnel, or (e) the cost of off-site office space (if any)
                     reserved for DBOM Contractor’s personnel, and (f) employment and income or other
                     taxes.


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             7.1.1.9. All other expenses incurred by DBOM Contractor in furtherance of this Agreement,
                     except as specifically provided elsewhere herein.
             7.1.1.10.     DBOM Contractor’s profit.
    7.2. Payment of Building Management and Utility Services Fee The Building Management and Utility
         Service Fee shall be payable by the University to DBOM Contractor monthly. The Fee for each
                                                                                                th
         calendar month of the term of this Agreement shall be paid not later than the tenth (10 ) day of such
                                                                                     th
         month (except January and July, when it shall be paid not later than the 25 of the month), provided
                                                                                                       th
         that DBOM Contractor has sent the University an invoice for the Fee not later than the 20 of the
         month before the month in which the Fee is to be paid. The payment may be increased or
         decreased for any Fee Adjustment described herein below. The payment may also be reduced for
         any Assessment for Performance Failure Events and associated Liquidated Damages during the
         previous month, or carryover of such assessment amounts not satisfied in previous months. Upon
         request of DBOM Contractor, payments shall be split into two checks or electronic transfers made to
         different accounts. DBOM Contractor shall notify the University at least one month prior to the
         Commencement Date, and by January 10 of each calendar year thereafter, how the Building
         Management and Utility Service Fee shall be split as between accounts, and such split shall be
         fixed until the next scheduled change, provided that if the parties determine that there is to be any
         mid-year increase or deduction in the Building Management and Utility Services Fee, DBOM
         Contractor shall designate to which accounts the changes are to be applied.
    7.3. Fee Adjustment for Changes in Building Occupancy and Use At the Commencement Date and
         Sixty (60) days prior to the end of every calendar year thereafter, or more or less often if mutually
         agreed, the parties shall jointly select a qualified individual or firm to audit the occupancy, operation
         and use of the Facility by the University. The results shall be compared to the then current Life-
         Cycle Cost Analysis (LCCA) and the results reported to the parties within thirty (30) days of the end
         of the year. A “significant and material change”, if any, in the use of the Facility by the University
         from occupancies and uses described in the current LCCA shall be the basis of an increase or
         decrease in the Building Management and Utility Services Fee and a resetting of the LCCA to
         reflect that change. Those changes in occupancy and use shall include, but are not limited to:
         hours of normal use, number of Tenant staff occupants and visitors, energy consumption by
         Tenant’s equipment, diversity factor in the use of fume hoods, quantities of potable and hot water
         used, quantities of DBOM Contractor furnished piped laboratory gasses consumed, volume of
         waste collected, and additional recurring custodial services required by the Tenants, if any. A
         “significant and material change” shall be an accumulative change resulting from the changes in
         use or occupancy that increases or decreases the LCCA calculation by two and one-half percent
         (2.5%) or $2,500, whichever is greater, over/under the otherwise applicable LCCA calculation
         (excluding changes to the Depreciation Fund). The 2.5% or $2,500 threshold shall be based on a
         comparison to the LCCA then in effect, even if the differential developed over several years.
         Increases/decreases to the Building Management and Utility Service Fee for changes in Building
         occupancy and use shall be applied prior to the application of any increase for annual inflation.
         Reimbursement or refunds for additional or reduced costs for change of occupancy or use shall not
         be retroactive, but shall only be applicable in the next year(s). The cost of the audit services shall
         be shared equally by the University and DBOM Contractor.
    7.4. Fee Adjustments for Annual Inflation On the Commencement Date and each January 1 thereafter
         for the term of this Agreement, the Building Management and Utility Service Fee shall be adjusted
         proportionally by categories. The categories, base rates and applicable indices are as set forth on
         Exhibit E. Fee adjustments shall be made on the published index available in January for the first
         adjustment and on the index for the same month of the year for all following years and applied to
         the Fee for the remainder of the year, January through December. All indices are “not seasonally
         adjusted.” The base index of each category shall be the index value current on March 1, 2004.
         7.4.1. Interim Fee Adjustments for Certain Utility Costs Interim changes in indices (a) Electricity; (b)
               Utility Natural Gas; (c) Fuels; and (d) water and sewer occurring between annual Fee
               Adjustments shall be applied to the corresponding portion of the Fee monthly, or other time

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                  period as those indices are published, and the resulting incremental Fee Adjustments totaled at
                  the time of the next annual adjustment. The net dollar total of these incremental Fee
                  Adjustments from the previous year shall be prorated over the next twelve months and added
                  to next year’s monthly Fee Payments.
    7.5. Fee Adjustments for Unoccupied Assignable Areas For the periods beginning on the ninth (9th)
         monthly anniversary of the Commencement Date, those portions of the Fee attributable to
         Assignable Areas not occupied by the University during the Term of the Agreement shall be
         refunded to the University and deducted from the next monthly payment. An area or room shall be
         considered unoccupied when, in the written opinion of the University’s Representative, it is no
         longer available to the University or is no longer required by the University. Unoccupied areas shall
         be measured in whole calendar days. DBOM Contractor shall not be required to provide any
         building or utility services to unoccupied areas, except those required by law, safety or reasonable
         security. Fee Adjustments for Unoccupied Assignable Areas shall be calculated by either of the
         following methods, at the option of DBOM Contractor: (a) reduce fifty percent (50%) of the total Fee
         in the same proportion the unoccupied area’s Assignable Area is to the Facility’s total Assignable
         Area; or (b) by documenting and calculating the reduction in costs per a LCCA “occupancy and use”
         based adjustment to reflect the vacancy of the area.
    7.6. Fee Adjustment for Weather Beginning in January following the Commencement Date and each
         January thereafter for the term of this Agreement, the sum of the Fee paid in the previous calendar
         year shall be adjusted to account for actual number of degree days of heating and cooling recorded
         by the Seattle Portage Bay Station and published by the National Climatic Data Center (NCDC) of
         the National Oceanographic and Atmospheric Administration (NOAA) when such data is compared
         to the design data used in the DBOM Contractor’s calculation of the Fee based on the number of
         degree days of heating and cooling specified for Seattle in the ASHRAE Design Guide, as required
         in the RFP. The total of this Fee Adjustment from the previous year shall be prorated over the next
         twelve months and added to or subtracted from next year’s monthly Fee Payments.
    7.7. Assessment for Performance Failure Events The Building Management and Utility Service Fee
         shall be reduced (“Fee Reduction”) and Liquidated Damages assessed for the failure of DBOM
         Contractor to maintain the performance requirements specified in this Agreement. “Performance
         Failure Event” shall be defined as an event of failure to meet any specified performance
         requirement that prevents the reasonable use of any portion of the Facility for the purpose(s) for
         which it was designed and built by the Design-Builder, or subsequently improved, modified or
         remodeled by Design-Builder under the Agreement Between Owner and Design-Builder – Cost Plus
         Fee with an Option for a Guaranteed Maximum Price, dated June 22, 2004 for the Design and
         Construction of Tenant Improvements.
         7.7.1.     Performance Failure Event that prevents the reasonable use of any part of a room or space
                    shall be deemed to affect the reasonable use of the entire space or room.
         7.7.2.     Performance Failure Event that prevents the reasonable use of any part of a room or space
                    for any part of a day (midnight to midnight) shall be deemed to affect the reasonable use of
                    the space or room for the entire day, without regard to weekends or holidays.
         7.7.3.     Building Management and Utility Service Fee Reductions shall be calculated as a
                    “percentage of Assignable Area affected” times “percentage of period affected” times
                    scheduled monthly Building Management and Utility Service Fee for the month in which the
                    Performance Failure Event occurs.
         7.7.4.     The “percentage of Assignable Area affected” shall be the ratio of the Performance Failure
                    Event affected Assignable Area to the total Assignable Area of the entire Facility, excluding
                    parking.
         7.7.5.     The “percentage of period affected” shall be the ratio of the duration in days of Performance
                    Failure Event to the number of days in the month in which the event takes place.



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         7.7.6.   Liquidated Damages for any Performance Failure Event shall be an amount five times the
                  Building Management and Utility Service Fee reduction specified in Section 7.7.3 above, and
                  shall be in addition to the Fee reduction. The Fee reduction and Liquidated Damages shall
                  be deemed full compensation for the University’s loss of use of elements of the Facility due
                  to the Performance Failure Event, including any consequential damages such as lost
                  research, damaged experiments or lost profits. The Liquidated Damages shall not, however,
                  be deemed compensation for any physical damage to persons or property, which shall be
                  addressed as provided elsewhere in this Agreement. For example, if an electrical surge
                  Performance Failure Event interrupts a crystal experiment for two days, resulting in loss of a
                  partially formed crystal, the Liquidated Damages would be deemed to compensate the
                  University fully for loss of use of the Facility and for any interruption or interference with
                  experiments in progress, and for any experimental data lost as a result of the electrical
                  surge, but would not cover any personal injury claim by a worker, the cost of replacing a
                  computer destroyed by the event or the cost of basic materials lost as a result of the event,
                  which could continue to be the responsibility of DBOM Contractor if and to the extent
                  otherwise provided in this Agreement.
         7.7.7.   The University’s Representative shall be the sole judge of a Performance Failure Event,
                  relying on objective measurements and observations of the affected spaces and rooms. The
                  decision of the University’s Representative with regard to a Performance Failure Event shall
                  be subject to the terms, conditions and procedures of Article 12 of this Agreement. DBOM
                  Contractor shall cooperate with the University’s Representative in the investigation of any
                  suspected Performance Failure Event.
         7.7.8.   For the purposes of this Section 7.7, a Performance Failure Event includes the failure of any
                  building systems equipment in the Core and Shell of the Facility, but excludes the failure of
                  any building systems or other equipment in the scope of Tenant Improvements or otherwise
                  included in the Facility outside the Core and Shell Scope of Work.
    7.8. University’s Right to Cure Performance Failure Events If, in the opinion of the University’s
         Representative, DBOM Contractor does not take prompt action to cure the Performance Failure
         Event, the University may, after 24 hours written notice to DBOM Contractor (or such lesser time as
         may be commercially reasonable in an emergency), with its own staff or by a separate contractor,
         make repairs and modifications to the Facility to cure the Performance Failure Event. In such
         instances, the direct costs to the University to cure the Performance Failure Event shall be added to
         the Liquidated Damages assessment described above, and DBOM Contractor shall be responsible
         for the balance of the costs of repairs or modifications, if any.
    7.9. Separately Billed Special Utilities. The Fee includes “domestic” water and sewer (meaning
         washrooms, sinks, showers and the like) but does not include “laboratory” water and sewer
         (meaning water segregated and separately metered for laboratory use as contemplated in the Basic
         Documents). The Fee also does not include provision of special gasses or the changing of filters on
         tenant improvement equipment not contemplated in the Basic Documents. Utility Costs that will be
         charged through DBOM Contractor (rather than paid by the University directly) and that are not
         included in the Fee are referred to herein as “Special Utility Costs”. Costs accounted for in the
         LCCA Fee Adjustments for Changes in Building Occupancy and Use shall not be Special Utility
         Costs. Prior to the Commencement Date, DBOM Contractor and the University shall jointly
         estimate the projected Special Utility Costs for the remainder of the calendar year in which the
         Commencement Date occurs. That cost shall be equally divided by the number of months in that
         first year and as so divided shall be paid by the University at the same time as the Fee. At the time
         of the Annual Cost Report pursuant to Subsection 8.2, DBOM Contractor shall report to University
         (1) the amount of any excess or deficiency in the Special Utility Costs payments compared to the
         actual Special Utility Costs for the prior year, and (2) the projected Special Utility Costs for the
         current year. Beginning with the next Fee payment, the University shall pay DBOM Contractor the
         monthly projected Special Utility Costs plus (or with credit for) any adjustment for the prior year
         payments, all in equal monthly payments over the calendar year. At DBOM Contractor’s request,


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          the Special Utility Costs payment shall be made separately to an account of DBOM Contractor’s
          designation.
8. ACCOUNTING, RECORDS, REPORTS
    8.1. Financial Records DBOM Contractor shall maintain a comprehensive system of office records, on a
         modified accrual basis, books and accounts, all of which shall be available to the University. The
         University and others designated by the University shall at all times have access to such records,
         accounts and books and to all vouchers, files and all other material pertaining to the Facility and this
         Agreement, all of which DBOM Contractor agrees to keep safe, available, and distinct from any
         records not having to do with the Facility. Records described herein shall be available to the
         University during regular business hours and upon 24 hours written notice.
    8.2. Annual Cost Report Not later than thirty (30) days after the end of each calendar year, DBOM
         Contractor shall prepare and submit to the University’s Representative a cost report covering all of
         its costs and expenses for the Facility for the previous year, including its indirect costs of overhead
         and profit. The report shall categorize the costs for utilities by type, for labor, materials, supplies,
         and subcontractors. The report shall include all contributions to and/or payments from the Capital
         Improvement Repayment Fund and the Depreciation Fund and include a detailed description of
         actions taken under the replacement schedule. The report shall allocate the total Building
         Management and Utility Services Fees received, and any additional expenditures authorized under
         this Agreement, to each Tenant in proportion to their Net Assignable Area (NASF), plus any
         additional and specific costs authorized by the University for each Tenant. The purpose of the Cost
         Report is to assist the University to comply with its reporting obligations to its various granting
         agencies and organizations for specific cost information and/or to support its facility overhead
         charges for research support.
9. EXPENDITURE AUTHORIZATION AND REIMBURSEMENT.
    9.1. Repairs DBOM Contractor shall use its commercially reasonable efforts to inform the University of
         accidental, weather caused, malicious or similar material damage to Facility other than normal
         wear-and-tear, and DBOM Contractor shall make payments for repairs, maintenance equipment, or
         supplies, without following the bidding procedures otherwise required, if in the best business
         judgment of DBOM Contractor, emergency action prior to written approval from the University is
         necessary to prevent additional damage or a greater total expenditure or to protect the Facility from
         damage. Any such payment shall be made only in concert with prompt telecopy notification by
         DBOM Contractor to the University. Except to the extent the cost of such repairs are the
         responsibility of Design-Builder under the Design-Build Contracts, the University shall reimburse
         DBOM Contractor for the cost of such repairs monthly, upon the presentation of appropriate
         invoices and expense vouchers.
10. INDEMNITIES
    10.1. DBOM Contractor Indemnity DBOM Contractor shall defend, indemnify and hold the University, its
          regents, officers, employees and agents harmless from and against any and all loss, cost,
          damage, liability and expense from injury to persons (including death) and tangible Facility or
          Personal Property of University (including court costs and reasonable attorneys' fees) to the extent
          caused by the negligent acts or omissions of DBOM Contractor; provided, however, that DBOM
          Contractor shall not be obligated to indemnify the University or its regents, officers, employees or
          agents for any such loss, cost, damage, liability or expense to the extent caused by the negligent
          act or omission of the University, or its regents, officers, employees or agents.
           To the extent necessary to permit the University to enforce DBOM Contractor’s indemnification
           obligations, DBOM Contractor assumes potential liability for claims brought by their employees
           against the University and for that purpose DBOM Contractor specifically waives any immunity
           against indemnification claims asserted by the University which is provided under the Workers
           Compensation Act, RCW Title 51. DBOM CONTRACTOR ACKNOWLEDGES THAT THIS



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            WAIVER IS SPECIFICALLY ENTERED INTO PURSUANT TO THE PROVISIONS OF RCW
            4.24.1145 AND WAS THE SUBJECT OF MUTUAL NEGOTIATION.
    10.2. The University Indemnity The University shall indemnify and hold DBOM Contractor and each of
          their officers, directors, partners, shareholders, employees and agents harmless from and against
          any and all loss, cost, damage, liability and expense to the extent caused by the negligence of the
          University hereunder; provided, however, that the University shall not be obligated to indemnify
          DBOM Contractor for any such loss, cost, damage, liability, or expense to the extent caused by the
          negligent act or omission of DBOM Contractor or any of their officers, directors, partners,
          shareholders, employees or agents.
    10.3. Limitation on Indemnity In compliance with RCW 4.24.115 as in effect on the date of this Lease,
          all provisions of this Lease pursuant to which the University or DBOM Contractor (the "Indemnitor")
          agrees to indemnify the other (the "Indemnitee") against liability for damages arising out of bodily
          injury to Persons or damage to property relative to the construction, alteration, repair, addition to,
          subtraction from, improvement to, or maintenance of, any building, road, or other structure, project,
          development, or improvement attached to real estate, including the Premises, (i) shall not apply to
          damages caused by or resulting from the sole negligence of the Indemnitee, its agents or
          employees, and (ii) to the extent caused by or resulting from the concurrent negligence of (a) the
          Indemnitee or the Indemnitee's agents or employees, and (b) the Indemnitor or the Indemnitor's
          agents or employees, shall apply only to the extent of the Indemnitor's negligence.
11. TERM AND TERMINATION
    11.1. Term The term of the Agreement shall be fifteen (15) years commencing on the Date of
         Substantial Completion of the construction of the Core and Shell of the Facility by the Design-
         Builder, and expiring fifteen (15) years thereafter, provided that the University reserves the right to
         modify the term of this Agreement to ensure that tax exempt financing may be used in connection
         with the Facility.
    11.2. Extension The University shall be entitled to extend the term of this Agreement for up to fifteen
         (15) consecutive extension periods of one (1) year each. The Agreement shall automatically renew
         for such one (1) year periods, provided that the University may cancel the first or any subsequent
         one year period by providing DBOM Contractor with written notice of such cancellation not less than
         twenty-four (24) months prior to the commencement of the one year period that is being cancelled.
         Upon such cancellation, this Agreement shall expire at the end of the initial Term or last effective
         one year period, as applicable.
    11.3.    Termination for Cause
         11.3.1. By DBOM Contractor DBOM Contractor may terminate this Agreement in the event that the
               University has defaulted in the performance of its obligations hereunder subject to the
               provisions of Sections 11.3.3 and 11.5 below.
         11.3.2. By the University The University may terminate this Agreement, subject to the provisions of
               Section 11.5 below, in the event that: (a) DBOM Contractor or Prime Subcontractor has been
               negligent in the management, operation, maintenance, or servicing of the Facility or has
               otherwise defaulted in the performance of its obligations hereunder; or (b) a receiver, liquidator
               or trustee of DBOM Contractor shall be appointed by court order, or a petition to liquidate or
               reorganize DBOM Contractor shall be filed under any bankruptcy, reorganization, or insolvency
               law, and such order or petition is not vacated or dismissed within sixty (60) days, or DBOM
               Contractor shall file a petition in bankruptcy or request reorganization or insolvency laws, or if
               DBOM Contractor shall make an assignment for the benefit of its creditors, or if DBOM
               Contractor is adjudicated as bankrupt.
         11.3.3. Notice and Opportunity to Cure Except as otherwise provided herein, any termination for
               cause shall be effective upon receipt of written notice of termination given by the terminating
               party to the defaulting party or thereafter upon such other date as specified by the termination
               party in such written notice; provided, however, that for those causes for termination set forth in

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               Sections 11.3.1 and 11.3.2 the terminating party shall notify in writing the defaulting party that
               the defaulting party shall have thirty (30) days (the “Cure Period”) after receiving such written
               notice within which to commence to cure to the satisfaction of the terminating party any such
               cause, provided however, that any such cure shall be diligently and promptly pursued to
               completion. Notwithstanding the above, if DBOM Contractor is terminated as a result of fraud,
               bad faith, or illegal activity, no cure period shall be permitted. If DBOM Contractor is in default
               so as to cause a Performance Failure Event more than three (3) times in any twelve (12)
               month period, then the fourth time shall be deemed a non-curable default.
         11.3.4. In the event of termination for cause, the University shall pay DBOM Contractor the balance
               of the Capital Improvement Repayment Schedule owing on the date of termination, if any, plus
               any prepayment penalty due as a result of DBOM Contractor’s having obtained institutional
               financing for the amounts funded through the Capital Improvement Repayment payments.
         11.3.5. DBOM Contractor shall pay to the University the balance of the Depreciation Fund
               accumulated by the date of termination, if any balance remains. The University shall not be
               responsible to reimburse DBOM Contractor for any negative balance in the Depreciation Fund.
    11.4. Termination Without Cause University may terminate this Agreement without cause by written
         notice from University to DBOM Contractor subject to the provisions of Section 11.5 below. Such
         termination shall be effective ninety (90) days after receipt of written notice of such termination or
         thereafter upon such other later date as specified in such written notice. In addition to the
         University’s unilateral decision to terminate, the following shall also be considered as Termination
         Without Cause: (a) there is damage or destruction to all or a substantial portion of the Facility and
         the University decides not to rebuild or restore the Facility or there is taking by condemnation, or
         similar proceeding, of a substantial portion of the Facility; or (b) the University shall at any time sell
         or otherwise transfer its fee interest in all or any portion of the Facility to an entity not a subdivision
         of the State.
         11.4.1. In the event of Termination Without Cause, and in addition to the University’s cost
               obligations specified in below, the University shall pay the DBOM Contractor an amount equal
               to the Fee for the prior twelve months, less the actual cost of labor, materials, utilities, Capital
               Improvement and Depreciation Fund payments for the prior twelve months, or if the Agreement
               has not been in effect for 12 months, extrapolate an equivalent annual cost from existing cost
               information to date. In no instance shall this payment exceed one million dollars ($1,000,000).
               Notwithstanding the above, the termination fee provided for in this Section 11.4.1 shall be
               payable with respect to terminations based on casualty (Section 11.3.2(a)) or termination of
               governmental funding (Section 31) only during the first ten years of this Agreement.
         11.4.2. The University shall pay DBOM Contractor for any sub-subcontractors’ termination costs, if
               any and for severance or relocation costs for Prime Subcontractor’s full-time, on-site personnel
               assigned to the Facility, provided that Prime Subcontractor shall include in all its contracts a
               limit of such termination, severance or relocation costs to an amount equal to one month’s net
               payment that would otherwise be earned by such subcontractor or personnel.
         11.4.3. The University shall pay DBOM Contractor the balance of the Capital Improvement
               Repayment Schedule owing on the date of termination, if any, plus any prepayment penalty
               due as a result of DBOM Contractor’s having obtained institutional financing the amounts
               funded through the Capital Improvement Repayment payments
         11.4.4. DBOM Contractor shall pay to the University the balance of the Depreciation Fund
               accumulated by the date of termination, if any balance remains. The University shall not be
               responsible to reimburse DBOM Contractor for any negative balance in the Depreciation Fund.
    11.5. Termination Procedure Upon termination of this Agreement, the University, in addition to any
         other rights provided in this Agreement, may require DBOM Contractor and Prime Subcontractor to
         deliver to the University any plans, specifications, manuals, records (including repair and
         replacement records), data, tools, equipment, materials, spare parts or supplies specifically


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          produced or acquired for the performance of this Agreement. With respect to any work being
          performed by DBOM Contractor pursuant to agreement with the University and supplemental to its
          obligations hereunder, the University shall pay to the agreed upon price, if separately stated, for
          completed work and services accepted by the University and the amount agreed upon by DBOM
          Contractor and the University for (i) completed work and services for which no separate price is
          stated, (ii) partially complete work and services, (iii) other property or services which are accepted
          by the University, and (iv) the protection and preservation of Facility, unless the termination is for
          cause, in which case the University shall determine the extent of the liability of DBOM Contractor.
          The University may withhold from any amounts due DBOM Contractor such sum as the University
          determines to be necessary to protect the University against potential loss or liability. The rights
          and remedies of the University provided in this Section shall not be exclusive and are in addition to
          any other rights and remedies provided by law or under this Agreement. After receipt of a notice of
          termination, and except as provided in Section 11.3.3 with respect to a party’s right to “notice and
          opportunity to cure” and as reasonably otherwise directed by the University, DBOM Contractor shall:
         11.5.1. Stop work under this Agreement on the date, and to the extent specified in the notice;
         11.5.2. Place no further orders or subcontracts for materials, services, or facilities except as may be
               necessary for Completion of such portion of the work under this Agreement as is not
               terminated;
         11.5.3. Deliver to the University all books and records of account, contracts, leases, receipts for
               deposits, unpaid bills and other papers or documents which pertain to the Facility. Except as
               otherwise set forth in this Agreement, DBOM Contractor shall remain responsible for payment
               of all invoices for work performed or materials delivered prior to the date of termination;
         11.5.4. Assign, transfer or convey to the University or its designee all service contracts and personal
               property relating to or used in the operation, management and maintenance of the Facility,
               except any personal property which is owned by tenants or other occupants at the Facility or
               which was paid for and is owned by DBOM Contractor or Prime Subcontractor, if any;
         11.5.5. Remove, at DBOM Contractor’s cost and expense, all directory or informational signs that it
               may have placed on the Facility indicating that it is the manager of the Facility and repair any
               damage resulting therefrom;
         11.5.6. For a reasonable period of time after the effective date of termination of this Agreement, but
               not to exceed sixty (60) days, make itself available to consult with and advise the University or
               such other person or persons designated by the University, regarding the operation, leasing,
               management and maintenance of the Facility.
    11.6. DBOM Contractor’s Obligations after Termination Upon the expiration or earlier termination of
         this Agreement, or the termination of DBOM Contractor’s services hereunder, as provided above:
         11.6.1. Books and Record DBOM Contractor shall deliver to the University, or such other person or
               persons designated by the University, copies of all books and records of the Facility not
               previously transmitted to the University in annual reports, as defined in Section 8 above, all
               plans, specifications, permits, and any other document directly associated with the Facility and
               not owned by DBOM Contractor or Prime Subcontractor but which is in DBOM Contractor or
               Prime Subcontractor’s possession, and all funds in the possession of DBOM Contractor or
               Prime Subcontractor belonging to the University or received by DBOM Contractor or Prime
               Subcontractor pursuant to the terms of this Agreement or associated with or required of DBOM
               Contractor by any of the Basic Documents.
         11.6.2. Service Contracts DBOM Contractor shall assign, transfer, or convey to the University or
               such other person or persons designated by the University, all service contracts and personal
               property relating to or used in the operation and maintenance of the Facility. DBOM Contractor
               shall, at its sole cost and expense, remove all signs that it may have placed at the Facility
               indicating that it is DBOM Contractor of same and replace and restore any damage resulting
               therefrom. Upon any voluntary termination or the expiration pursuant to this Section 11, the

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               obligations of the parties hereto (except those specified as surviving) shall cease as of the date
               specified in the notice of termination, except that DBOM Contractor shall comply with the
               applicable provisions hereof and shall be entitled to receive any and all compensation that may
               be due DBOM Contractor hereunder at the time of such termination or expiration subject to any
               offsets, prorations or liquidated damages provided herein.
         11.6.3. Proprietary Software and Hardware The University recognizes that DBOM Contractor or
               Prime Subontractor may utilize in the Facility proprietary software or hardware. DBOM
               Contractor and Prime Subcontractor shall provide or procure all such hardware and software in
               such a fashion that, upon termination DBOM Contractor or Prime Subcontractor, the University
               is entitled to continue the use of, and shall be entitled to supportive services with respect to,
               such hardware and software at rates no greater than the monthly service and support rates
               charged institutional owners who acquire similar hardware and software outside the context of
               a comprehensive “operate and maintain” contract (and without any charge to the University for
               the initial procurement of such hardware or software, such procurement being deemed to have
               occurred in the initial construction of the Facility).
         11.6.4. Site Specific Operational Data. At the time of termination of this Agreement, DBOM
               Contractor or Prime Subcontractor, as applicable, shall make available to the University,
               without additional charge, all data contained in the Site-Specific Operational Data base in a
               form usable by the hardware and software that DBOM Contractor or Prime Subcontractor (as
               applicable) identifies for post-termination use as provided above.
         11.6.5. Continuing Covenant DBOM Contractor shall refer questions or requests from occupants in
               the Facility regarding operations and maintenance to DBOM Contractor's replacement.
         11.6.6. Balance of Depreciation Fund Upon Expiration of the Term. Upon expiration of the term
               of this Agreement, the DBOM Contractor shall retain any positive balance in the Depreciation
               Fund, provided that: (a) no major equipment is in use more than ten percent (10%) longer than
               the manufacturers' recommended life as set forth in the LCCA; and (b) no major equipment is
               currently not meeting performance criteria or is scheduled for replacement in the 12 months
               following the date of expiration of the term. In either the case of either (a) or (b) above, any
               positive balance in the Depreciation Fund shall be used first to make the necessary repairs or
               replacements, but DBOM Contractor shall not be obligated to pay for any replacements or
               repairs in amounts in excess of the balance in the Depreciation Fund. In no event shall the
               University be responsible for restoring any negative balance in the Depreciation Fund.


12. DISPUTE AVOIDANCE AND RESOLUTION
     12.1     The parties are fully committed to working with each other throughout the Term of the
              Agreement and agree to communicate regularly with each other at all times so as to avoid or
              minimize disputes or disagreements. If disputes or disagreements between the parties arising
              out of or relating to the Agreement, or the breach thereof, do arise, DBOM Contractor and the
              University each commit to resolving such disputes or disagreements in an amicable,
              professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions
              to the building management and utility services.

     12.2     DBOM Contractor and the University will first attempt to resolve disputes or disagreements at
              the field level through discussions between DBOM Contractor's Representative and the
              University's Representative.

     12.3     If a dispute or disagreement cannot be resolved through DBOM Contractor's Representative
              and the University's Representative, DBOM Contractor's Senior Representative and the
              University's Senior Representative, upon the request of either party, shall meet as soon as
              conveniently possible, but in no case later than thirty (30) days after such a request is made, to


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              attempt to resolve such dispute or disagreement. Prior to any meetings between the Senior
              Representatives, the parties will exchange relevant information that will assist the parties in
              resolving their dispute or disagreement.

     12.4     If after meeting the Senior Representatives determine that the dispute or disagreement cannot
              be resolved, the dispute or disagreement will be submitted to non-binding mediation. The
              mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties
              cannot so agree, a mediator designated by the American Arbitration Association ("AAA")
              pursuant to its Construction Industry Mediation Rules. The mediation will be governed by and
              conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot
              so agree, by procedures established by the mediator. This requirement to mediate is a condition
              precedent to litigation and cannot be waived except by an explicit written waiver signed by the
              University and DBOM Contractor. An officer of DBOM Contractor and the University, both
              having full authority to settle the Claim, must attend the mediation session. To the extent there
              are other parties in interest, such as Prime Subcontractor or subcontractors of any tier, their
              representatives, with full authority to settle the Claim, shall also attend the mediation session.
              Unless the University and DBOM Contractor mutually agree in writing otherwise, all unresolved
              Claims shall be considered at a single mediation session which shall occur promptly. DBOM
              Contractor is responsible for initiating the mediation procedure. The mediator's fee will be
              divided equally among the parties participating in the mediation.

13. LITIGATION

     13.1     Any claims, disputes or controversies between the parties arising out of or relating to the
              Agreement, or the breach thereof, which have not been resolved in accordance with the
              procedures set forth in Section 12 above shall be decided by litigation, unless the parties
              mutually agree in writing otherwise. All unresolved Claims of DBOM Contractor shall be waived
              and released unless DBOM Contractor has complied with the time limits of this Agreement, and
              litigation is served and filed within 120 days after the end of the Term of this Agreement. This
              requirement cannot be waived except by an explicit written waiver signed by the University and
              DBOM Contractor. The pendency of mediation shall toll these deadlines until the earlier of the
              mediator providing written notice to the parties of impasse or thirty days after the last mediation
              session ended with no further sessions scheduled by the mediator.

     13.2     [Intentionally Omitted]

     13.3     Duty to Continue Performance

            13.3.1         Unless provided to the contrary in this Agreement, DBOM Contractor shall continue
                           performance and the University shall continue to satisfy its payment obligations to
                           DBOM Contractor, pending the final resolution of any dispute or disagreement
                           between DBOM Contractor and the University.

14. NO AGENCY DBOM Contractor shall be responsible for all of their employees and the employees of
    any affiliate, the supervision of all persons performing services in connection with the performance of all
    of DBOM Contractor's obligations relating to the maintenance, management, and operation of the
    Facility, and for determining the manner and time of performance of all acts hereunder. Nothing herein
    contained shall be construed to establish DBOM Contractor or its agents as agent of the University.
    DBOM Contractor is acting in the capacity of an independent DBOM Contractor and is not an employee
    or partner of the University. No officer, employee or agent of DBOM Contractor will hold him or her out
    as, nor claim to be, an officer or employee of the University by reason of this Agreement, nor will he or
    she make any claim of right, privilege or benefit which would accrue to a civil service employee under
    Chapter 41.06 RCW.


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15. ASSIGNMENT DBOM Contractor may not assign, hypothecate, or transfer this Agreement without the
    prior written approval of the University, which approval may be granted or denied by the University in its
    sole discretion, provided that the University shall not unreasonably withhold its approval for a request by
    DBOM Contractor to assign this Agreement to Prime Subcontractor at any time after the earlier of (i) two
    (2) years after completion of initial improvements to at least eighty percent (80%) of the floor area of the
    Building under the Contract for Design and Construction of Tenant Improvements, or (ii) three (3) years
    after substantial completion of the Core and Shell, provided that in each case the assignment shall not
    occur until there has been resolution of all outstanding warranty issues under the relevant Design-Build
    Contract, and provided that the University determines in its reasonable discretion that (x) Prime
    Subcontractor has a record of performance that gives the University confidence that Prime Subcontractor
    will fully perform DBOM Contractor’s duties under this Agreement and (y) the University is satisfied with
    Prime Subcontractor’s financial and business strength and business reputation (and specifically that they
    remain adequate to assure performance of the obligations of DBOM Contractor under this Agreement) at
    the time the assignment is requested. By way of point of reference, Prime Subcontractor’s financial and
    business strength and business reputation at the Effective Date of this Agreement is satisfactory to the
    University. The University agrees that it will not unreasonably withhold consent to an assignment of this
    Agreement only (leaving Design-Builder as the contractual party under the Design-Build Contract for
    Tenant Improvements as opposed to requiring assignment of all three contracts) if, but only if, DBOM
    Contractor and Prime Subcontractor develop a contractual arrangement satisfactory to the University
    under which the University is not subject to any conflicting assertions, as between the builder and the
    maintainer of the Building, on the issue whether a failure or repair is due to design/build failure and/or is
    a warranty item or is due to a failure of the maintenance obligations. The parties agree that an
    arrangement in which the assignee (Johnson Controls) assumes prime responsibility for all warranty
    items and defect repair claims under the Design-Build Contracts, except for individual warranty or defect-
    repair obligations of Mortenson under the Design-Build Contracts where the repair cost for such
    individual claim is determined to be in excess of $1,000,000, is acceptable, and understand that in such
    an arrangement Johnson Controls must be entitled to enforce against Mortenson, any and all of
    Mortenson’s obligations to repair warranty items and/or defect repair claims that arise out of the Design-
    Build Contracts. In the event that DBOM Contractor desires to assign this Agreement to Prime
    Subcontractor and the University consents, the Consent to Assignment attached hereto as Exhibit F shall
    be executed by the parties thereto.
16. NO WAIVER The failure of either party to seek redress for breach or to insist upon the strict
    performance of any covenant, agreement, provision, or condition of this Agreement shall not constitute a
    waiver thereof, and both parties shall have all remedies provided herein and by applicable law with
    respect to any subsequent act that would have originally constituted a breach. No term or condition of
    this Agreement shall be held to be waived, modified or deleted except by an instrument in writing, signed
    by the parties hereto.
17. LICENSES DBOM Contractor, at all times hereunder, shall obtain and maintain any and all licenses,
    permits and other governmental consents required in order for DBOM Contractor to perform all of its
    duties and obligations hereunder, including, without limitation, business licenses, at DBOM Contractor's
    sole cost and expense.
18. NOTICES All notices required or permitted to be given hereunder shall be in writing and shall be
    deemed given upon personal service or three (3) days after deposit in the United States certified or
    registered mail, return receipt requested, postage prepaid, or upon facsimile transmission and addressed
    as set forth in the Basic Information Sheet with simultaneous copy by mail. Either party hereto may from
    time to time by notice in writing served on the other party as aforesaid, designate a different mailing
    address or different person(s) to which all such notices are thereafter to be addressed.
19. CONFIDENTIALITY AND NONDISCLOSURE DBOM Contractor and the University shall each use
    reasonable best efforts to hold in confidence all operating information and all financial information
    pertaining to the Facility, provided that the University’s undertaking is subject to any requirements
    imposed on it to report costs to funding agencies and organizations, and its obligations as a public
    agency under applicable “freedom of information” requirements. Parties shall immediately notify the


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    other party if it receives a request from a third party for the disclosure of information related to the
    Facility or to DBOM Contractor’s operating or financial information, whether through public disclosure
    laws or otherwise.
     19.1    Information Not Subject To Confidentiality. The obligations set forth in this Section shall not in
             any way restrict or impair the rights of University or DBOM Contractor, to the extent permitted by
             law, to disclose the following:
         19.1.1 Information which at the time of disclosure has been published or is otherwise in the public
                domain;
         19.1.2 Information which, after disclosure, becomes part of the public domain other than through a
                breach of this Agreement;
         19.1.3 Information which was known to a party to this Agreement prior to receipt from the other
                party provided such prior knowledge can be adequately substantiated;
         19.1.5 Information which becomes known to a party to this Agreement from a source which legally
                derives such information independently of the other party;
         19.1.5 Information which a party to this Agreement can demonstrate it developed without reference
                to any Information provided pursuant to this Agreement;
     19.2    Notification. Information which a party to this Agreement is required to disclose by law,
             regulation or lawful order or process. In such event, that party shall promptly notify the other
             party of the disclosure requirement to permit the other party to oppose or limit such disclosure.
20. BENEFIT AND LIABILITY This Agreement and all of the terms, covenants, and conditions hereof shall
    extend to the benefit of, and be binding upon, the respective successors, successors in trust, and
    permitted assigns of the parties hereto. This Agreement and any liability that may arise as a
    consequence of the execution of this Agreement by or on behalf of the University shall be the liability of
    the University and not the personal liability of any trustee, officer, employee, or agent of the University.
21. CAPTIONS The captions of this Agreement are inserted only for the purpose of convenient reference
    and do not define, limit, or prescribe the scope or intent of this Agreement or any part hereof.
22. CONSTRUCTION Each party participated in the preparation of this Agreement personally and with the
    benefit of counsel. If this Agreement is ever construed by a court of law or equity, such court shall not
    construe this Agreement or any provision hereof more harshly against any party as drafter.
23. ENTIRE AGREEMENT This Agreement, including any exhibits and addenda attached hereto, embodies
    the entire understanding of the parties, and there are no further agreements or understandings, written or
    oral, in effect between the parties relating to the subject matter hereof, i.e., the operation and
    maintenance of the Facility.
24. ATTORNEYS' FEES In the event of any litigation among the parties under this Agreement or
    concerning the meaning or interpretation of any provision contained herein, the losing party shall pay the
    prevailing party's costs and expenses of such litigation, including, without limitation, reasonable
    attorneys' fees.
25. UNIVERSITY’S REPRESENTATIVE The University may, by written notice to DBOM Contractor,
    delegate all or any portion of its authority hereunder to a designated representative of the University. All
    decisions made by the University's designee shall be binding on the University until DBOM Contractor
    has received written notice of the University's termination of such delegation, provided that the
    University’s Representative shall not be entitled to amend the contractual terms of this Agreement. The
    University hereby designates as its initial “University's Representative” with respect to all of the
    University's authority hereunder, the person named on Basic Information Page attached hereto.
26. NONDISCRIMINATION DBOM Contractor certifies it will not discriminate in employment on the basis of
    race, color, religion, sex, national origin, veteran status or physical or mental disability in regard to any
    position for which the employee is qualified, in compliance with (a) Presidential Executive Order 11246,


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    as amended, including the Equal Opportunity Clause contained therein; (b) Section 503 of the
    Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans Readjustment Act of 1974, as
    amended, and the Affirmative Action Clauses contained therein; and (c) the Americans with Disabilities
    Act of 1990, as amended; and (d) Title VI of the Civil Rights Act of 1964. DBOM Contractor agrees it
    will not maintain facilities which are segregated on the basis of race, color, religion or national origin in
    compliance with Presidential Executive Order 11246, as amended, and will comply with the Americans
    with Disabilities Act of 1990, as amended, regarding its programs, services, activities and employment
    practices.
27. UNIVERSITY'S CONSENT The University agrees to use its commercially reasonable efforts to respond
    to all matters requiring the University's consent or approval herein within five (5) business days of the
    University's receipt of such information from DBOM Contractor for which the University's consent or
    approval is required. The University further acknowledges and agrees that DBOM Contractor may rely
    upon the instruction, direction, approval or consent given by the University's Representative; and that
    any submissions for such approval or consent may be direct by DBOM Contractor solely to the
    University's Representative; and that delivery or notice to the University’s Representative of any notice or
    submission shall be deemed effective delivery or notice to the University.
28. GOVERNING LAW AND VENUE This Agreement shall be governed in all respects by the laws of the
    State of Washington. The venue of any action arising out of or related to this Agreement shall be filed in
    the Superior Court of King County, Washington.
29. TREATMENT OF ASSETS
     29.1    Title to all property furnished by the University shall remain with the University. Title to all
             property purchased by DBOM Contractor or its subcontractors for which DBOM Contractor was
             compensated by Utilities Services and Building Management Fee under this Agreement shall
             pass to and vests in the University upon payment of Fee. DBOM Contractor shall not allow liens
             to be placed on such property, the Facility or any of its capital equipment.
     29.2    Any property of the University furnished to DBOM Contractor shall, unless otherwise provided in
             this Agreement, or approved by the University, be used only for the performance of this
             Agreement.
     29.3    Subject to the limitation on liability for negligence set forth in Section 36, DBOM Contractor shall
             be responsible for any loss or damage to property of the University which results from the
             negligence of DBOM Contractor or which results from the failure on the part of DBOM Contractor
             to maintain and administer the property in accordance with sound engineering and building
             management practices.
     29.4    If any of the University's property is lost, destroyed or damaged, DBOM Contractor shall
             immediately so notify the University and shall take all reasonable steps to protect the Facility
             from further damage.
     29.5    DBOM Contractor shall surrender to the University all property of the University upon
             completion, termination or cancellation of this Agreement.
     29.6    All reference to DBOM Contractor under this Section shall include any of its partners, employees
             or agents.
30. UNIVERSITY FUNDING In the event funding from state, federal, or other sources is withdrawn, reduced
    or limited in any way after the Effective Date of this Agreement, the University may terminate this
    Agreement under Section 11.4. – Termination Without Cause, without the sixty-day notice requirement,
    subject to renegotiation under those new funding limitation and conditions.
31. AMENDMENT Any alteration, amendment, modification, or waiver of any clause or condition of this
    Agreement is not effective or binding unless made in writing and signed by all parties hereto.
32. CHANGES TO AGREEMENT The University may, at any time, by written notification to DBOM
    Contractor, make changes within the general scope of the services to be performed under this


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    Agreement in its sole discretion. If any such changes cause an increase or decrease in the cost of, or
    the time required for the performance of this Agreement, an equitable adjustment mutually agreed by the
    parties shall be made in the Management Fee, or Term, or both, and this Agreement shall be modified in
    writing accordingly. Failure to agree to any adjustment shall be considered a dispute, and shall be
    resolved as provided in Article 12 herein using the LCCA analysis and approach generally set forth in the
    Basic Documents.
33. TIME Time is of the essence in the performance of the parties' obligations under this Agreement. The
    parties acknowledge and agree that notwithstanding that this Agreement may have been executed after
    the Effective Date, the parties have complied and performed the terms of the Agreement since the
    Effective Date.
34. SEVERABILITY If any term or condition of this Agreement or the application thereof to any person(s) or
    circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which
    can be given effect without the invalid term, condition or application; to this end the terms and conditions
    of this Agreement are agreed to be severable.
35. LIMITATIONS OF LIABILITY
     35.1    Notwithstanding any provision of this Agreement which may be to the contrary, neither the
             University nor DBOM Contractor shall be liable to the other parties or any of their affiliates,
             employees or subcontractors, for punitive, special, exemplary, incidental or consequential
             damages, damages for loss of profits, loss of use or loss of revenue, or losses associated with
             cost of capital, in connection with or arising out of this Agreement, regardless of whether such
             claim may be based on contract, guarantee, tort (including negligence), strict liability, or any
             other legal or equitable principal. This mutual waiver is applicable, without limitation, to all
             consequential damages due to either party's termination of the Contract in accordance with its
             terms.
     35.2    Notwithstanding any provision of this Agreement which may be to the contrary, the liability of
             DBOM Contractor to the University and its subsidiaries, if any, for physical damage to property
             resulting from the negligence of DBOM Contractor (as opposed to contractual breaches) shall be
             limited to the amounts of liability insurance required to be carried pursuant to Section 3.4.6.2.1 of
             this Agreement.
36. FORCE MAJEURE Unless otherwise set forth in this Agreement, neither party shall be liable to the
    other for damage, loss, injury, or delay caused by conditions that are not reasonably anticipatable and
    are beyond the reasonable control and without the intentional misconduct or negligence of that party.
    Such conditions include, but are not limited to: acts of God; severe weather; acts of Government
    agencies; acts of terrorism, fire; explosions or other casualties; thefts; vandalism; riots or war, or
    unanticipatible unavailability of parts, materials or supplies.
37. INTELLECTUAL PROPERTY RIGHTS
     37.1.   For the purposes of this Agreement, “Intellectual Property” shall mean:
         37.1.1. Computer programs and applications (“Software”);
         37.1.2. Trade secrets being disclosed only for the purposes of performing this Agreement and only
                 subject to strict confidentiality requirements, as set forth in this Agreement (“Trade Secrets”);
         37.1.3. Information regarding the operation or efficiency of the facility or the Systems or Services to
                 be provided by Service Provider “Data”);
         37.1.4. Standardized processes, formats, templates, procedures and databases used in the
                 performance of this Agreement (“Standard Practices”);
         37.1.5. Materials, whether in printed or electronic format, used to describe the Services or the
                 Facility, including, without limitation, user manuals, reference materials, policy and
                 procedure manuals and operations manuals (“Documentation”).


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         37.1.6. Notwithstanding the above, Intellectual Property shall not be deemed to include a Trade
                 Secret, and shall not be otherwise subject to the obligations of confidentiality or restrictions
                 on use provided in this Agreement (although it may still be subject to protection and/or
                 restrictions under patent, copyright, and/or other intellectual property laws), if the Trade
                 Secret or the Intellectual Property, respectively, (a) was, is or becomes available to the
                 public other than as a result of a disclosure by the disclosing party or its representatives in
                 breach of this Agreement, (b) was or becomes available to the recipient on a non-
                 confidential basis from a source other than (in the case of future information) the disclosing
                 party or its representatives, provided that such source was not known by the recipient to be
                 bound by any agreement with the disclosing party to keep such information confidential, (c)
                 was in possession of, or was known by the recipient without an obligation to maintain its
                 confidentiality prior to its receipt from the disclosing party, (d) is independently developed by
                 the recipient without participation of individuals who have had access to the Trade Secrets or
                 Intellectual Property, or (e) is approved for release by written authorization of the disclosing
                 party.
     37.2. For the purposes of this Section 37 the term “Service Provider” shall refer to DBOM Contractor
           or Prime Subcontractor;
     37.3.   Intellectual Property provided by the University shall be referred to as “University Intellectual
             Property.”
     37.4.   Intellectual Property provided by the Service Provider shall be referred to as “Service Provider
             Intellectual Property.” The term “Service Provider Intellectual Property” shall also include any
             computer programs, applications, interfaces, processes or routines prepared by Service
             Provider, especially for the University or to permit Service Provider to provide Services to the
             University (“Custom Software”).
     37.5.   Intellectual Property owned by a third party but licensed to either the University or the Service
             Provider shall be referred to as “Third Party Intellectual Property.”
     37.6.   This Agreement contemplates that Service Provider will be providing, directly or through Third
             Party Intellectual Property, all Intellectual Property necessary to operate the Core and Shell and,
             to the extent required by this Agreement, associated systems. Nevertheless, it is possible that
             interfacing with other systems will require Intellectual Property not the responsibility of Service
             Provider (for example, the software to integrate Building security systems into a University-wide
             security system or other systems the University may acquire or implement, would not be
             provided by Service Provider). Accordingly, to the extent not otherwise the responsibility of
             Service Provider, the University shall provide to Service Provider such University Intellectual
             Property as is necessary for Service Provider to perform the Services. Unless otherwise
             provided by this Agreement or any subsequent addenda or agreements, the University
             Intellectual Property will be deemed licensed, not sold to Service Provider and shall remain the
             property of the University or its third party licensors.
     37.7.   Third Party Intellectual Property Licensed to University: To the extent not otherwise the
             responsibility of Service Provider and as necessary to permit Service Provider to perform its
             obligations under this Agreement, the University shall secure all additional licenses necessary
             for Service Provider to use all necessary Third Party Intellectual Property licensed to the
             University. The University shall defend, indemnify, and hold Service provider harmless against
             any claims that Service Provider’s use of any such Third Party Intellectual Property to perform its
             obligations under the Agreement infringes the rights of any third party.
     37.8.   Third Party Intellectual Property Licensed to Service Provider: To permit Service Provider to
             perform its obligations under this Agreement, Service Provider shall secure all additional
             licenses necessary for Service Provider to use all necessary Third Party Intellectual Property
             licensed to the Service Provider. Except as otherwise specifically consented to by the University
             in writing, with specific reference to this issue, any Third Party Intellectual Property licensed by
             Service Provider shall be licensed in such a way as to permit its continuing use by the University

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             in the event of termination of this Agreement, or shall be of such a character that the University
             shall be able to separately acquire a license to use such Third Party Intellectual Property (or the
             substantial equivalent of such Third Party Intellectual Property) in the event of termination of this
             Agreement. Notwithstanding the previous sentence, Service Provider shall have no obligation to
             enter into any such license or licenses for, or on behalf of, the University. Service Provider shall
             defend, indemnify, and hold the University harmless against any claims that Service Provider’s
             use of any such Third Party Intellectual Property to perform its obligations under the Agreement
             infringes the rights of any third party.
     37.9.   As part of the Services to the University, Service Provider shall provide Service Provider
             Intellectual Property. Service Provider Intellectual Property is licensed, not sold, to University
             and shall remain the property of Service Provider or its third party licensors.
     37.10. Subject to Section 37.1.6 above and requirements imposed on the University to report costs to
            funding agencies and organizations and the University’s obligations under applicable public
            disclosure laws, each party agrees that it shall hold the Intellectual Property of the other in strict
            confidence and neither party shall:
         37.10.1.           Copy, distribute, reproduce, publish or disclose Intellectual Property of the other
                    without the prior written consent of the other party, except that disclosure to employees,
                    agents or contractors shall be permitted, provided such disclosure is required for the
                    performance of this Agreement and the recipient owes his or her employer or principal a
                    legally enforceable duty of confidentiality at least as stringent as the obligations the
                    University and the Service Provider owe to one another under this Agreement;
         37.10.2.          Attempt, permit or encourage any attempt to decompile, reverse engineer or
                    disassemble any Software (including Custom Software) received from the other party
                    pursuant to this Agreement.
     37.11. Except for Data licensed to Service Provider for use in the Library Database and the Site-
            Specific Operational Database, pursuant to Sections 37.12.2 and 37.12.7 of this Agreement, and
            subject to the obligations of Service Provider pursuant to Section 11.6.3 of this Agreement, all
            University Intellectual Property and all Service Provider Intellectual Property, and any copies
            thereof, shall be returned to the University and/or the Service Provider, as applicable, upon
            request or upon any termination of this Agreement.
     37.12. Service Provider is in possession, and brings to the performance of Services, certain specific
            knowledge and expertise relating to or arising out of its facilities management experience
            (“Library Database”), which is continually refined and updated by Service Provider. The
            University and the Service Provider agree that:
         37.12.1. Service Provider will use the Library Database to develop operating procedures and data
                  specific to the Facility covered by this Agreement (“Site-Specific Operational Database”).
         37.12.2. The University hereby licenses Service Provider to enter into the Library Database and the
                  Site-Specific Operational Database Data pertaining to the Facility including, without
                  limitation, Data that is management, cost, technical operations and maintenance, and real
                  and personal property-related.
         37.12.3. The University shall have the right to use the Site-Specific Operational Database solely for
                  the Facility, and only during the term of this Agreement, subject to Section 11.6.3 of the
                  Agreement.
         37.12.4. The Library Database and the Site-Specific Operational Database are and shall remain the
                  property of Service Provider. The University shall not copy, reproduce, distribute or publish
                  the Library Database, the Site-Specific Operational Database, any documentation thereof
                  or any Data contained therein (excepting Data derived from Facility) or any portion thereof
                  without the prior written consent of Service Provider, except that the University may
                  disclose such to its employees who require such access to oversee Service Provider’s


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                   performance and who owe the University a legally enforceable duty of confidentiality that is
                   at least as stringent as the obligations the University, as applicable, owes Service Provider
                   under this Agreement.
         37.12.5. Subject to Section 11.6.3 of the Agreement, the Library Database, the Site-Specific
                  Operational Database, any documentation thereof or any data contained therein (excepting
                  Data derived from the Facility) and any copies thereof shall be returned to Service Provider
                  upon request or upon any termination of this Agreement.
         37.12.6. The Library Database, the Site-Specific Operational Database and all Documentation
                  related thereto are and shall remain the property of Service Provider, and the University
                  agrees that it shall not receive any right or interest in same as a result of entry into those
                  Databases of any Data derived from the Facility.
         37.12.7. The University hereby grants to Service Provider a perpetual, paid-up, royalty-free
                  worldwide license to use Data derived from the Facility in the Library Database, provided
                  that such Data may not be disclosed to a third party in any way that would permit the
                  University to be identified as the source of such Data.
         37.12.8. Notwithstanding anything to the contrary elsewhere in this Agreement, all reports or
                  documents, including drawings, reports and related documentation (collectively the
                  “Information”) specifically prepared for the University by Service Provider during the course
                  of this Agreement shall become the property of the University, provided however that the
                  University shall have no right, title or interest in any of Service Provider Intellectual property
                  used to compile the Information.




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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.


“University”
The Board of Regents of the University of Washington


By:


Its:




“DBOM Contractor”
M. A. Mortenson Company


By:


Its:


IN WITNESS WHEREOF, Prime Subcontractor acknowledges this Agreement as of the day and year first
above written.
“Prime Subcontractor”
Johnson Controls, Inc.


By:


Its:




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                                                       EXHIBIT A


                                                 BASIC DOCUMENTS


The Facility is more commonly known as Benjamin Hall Interdisciplinary Research Building, NE Northlake
Place., Seattle, Washington.
          The Contract Documents are complementary, and shall be read to create a consistent performance
standard to the extent possible. To the extent there is irreconcilable conflict, the following Order of
Precedence shall apply. Silence in a document of a higher order of precedence shall not be deemed a
conflict.

1. All written modifications, amendments and change orders to this Agreement issued in accordance with
University of Washington - Standard Form of General Conditions of Contract Between Owner and Design-
Builder (2003 Edition) (“General Conditions of Contract”).

2. This Agreement executed by Owner and DBOM Contractor;

3. Owner’s Project Criteria; including but not limited to, its Request for Proposals and its Request for Best
and Final Proposals, and Addenda thereto, if any;

         A. RFP: University of Washington, Request for Design-Build-Operate-Maintain Proposals for
            Benjamin Hall Interdisciplinary Research Building, Project Number 10297, dated 9/23/03, and
            Addenda No.1 through No. 6 inclusive.

4. Design-Builder Proposals, submitted in response to Owner’s Project Criteria. Within this section the later
shall have precedence over the earlier;

         A. Ceiling Plenum Space Design: Letter of M. A. Mortenson Company dated April 1, 2004 and
            seven unnumbered pages attached.
         B. Annual Energy & Utility Consumption: Letter of M. A. Mortenson Company dated March 31,
            2004.
         C. Responses to 3/29 Technical Review Meeting Questions:               Letter of M. A. Mortenson
            Company dated March 31, 2004, nine unnumbered pages.
         D. Proposal Clarifications: Cover Letter of M. A. Mortenson Company dated March 26, 2004 and
            attached revised pages ST-1 through ST-4 inclusive, and revised Best and Final Proposal Form
            pages 00400-2 through 6 inclusive and three unnumbered pages.
         E. Proposal Clarifications: Proposal Clarifications, Cover Letter of M. A. Mortenson Company,
            attached pages M-1 through M-16 inclusive, attached Mechanical Equipment List pages 1
            through 6 inclusive, all dated March 23, 2004.
         F. Request for Clarifications: University of Washington, Request for Clarifications and attached
            pages M-1 through M-9 inclusive, dated March 16, 2004, and Addendum No.1 and attached
            page Add 1/M-1 dated March 22, 2004.
         G. Best and Final Proposal: Best and Final Proposal of M. A. Mortenson Company, dated March
            1, 2004 and attachments thereto.
         H. Initial Proposal: Initial Proposal of M. A. Mortenson Company, Volumes 1 - 2, dated October
            28, 2003.


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                                                       EXHIBIT B


                                            MANAGEMENT GUIDELINES


1. DBOM Contractor recognizes that it is the University's policy to view real estate as a long-term
   investment, and that the need to minimize short-term expenses, while important, must be balanced
   against the overall future well-being of the Facility.
2. From time to time, as may be requested by the University, DBOM Contractor will review the performance
   of building service DBOM Contractors and vendors, and make recommendations to the University for
   improving efficiency and quality, and/or reducing costs.
3. DBOM Contractor acknowledges that DBOM Contractor is an essential element in the communications
   link between the University and its tenants. As such, DBOM Contractor shall maintain cordial and
   frequent contact with tenants and keep the University informed of concerns, expansion or contraction
   plans, changes in occupancy or use, and other matters that could have bearing upon the, operation, or
   ownership of the Facility. DBOM Contractor shall be diligent in its treatment of tenants in the Facility to
   ensure equal treatment of tenants under their respective leases.
4. DBOM Contractor shall exercise all due diligence to project a positive and responsible image of the
   University to the Tenants and to the larger community, and will inform the University of any condition,
   policy, or event that could reasonably be expected to harm the reputation of the University among
   tenants or in the larger community.
5. DBOM Contractor recognizes that the management of real estate is a dynamic process and that these
   Management Guidelines reflect the present views of the University, and that these Management
   Guidelines may be reasonably modified by the University from time to time.




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                                                       EXHIBIT C


                                                  SCOPE OF WORK


1. BUILDING OPERATIONS AND MAINTENANCE
    The following major building systems (the “Building Systems”) and the cost of all utilities required for their
    operation are included within DBOM Contractor’s Operations and Maintenance (“O&M”) Services:
     HVAC mechanical heating,               Cooling towers and related       Emergency power supply,
     cooling and ventilating                equipment;                       switching and distribution;
     systems;
     Building electrical distribution       Energy management systems;       Building automation and
     systems;                                                                controls;
     Security systems;                      Fire sprinkler and alarm         Break-room fixtures and
                                            systems;                         appliances;
     Access control systems;                Air filtration systems;          Interior lighting;
     Fire alarm systems;                    Emergency lighting;              Exterior lighting;
     Plumbing and sewer;                    Elevators;                       Emergency showers and
                                                                             eyewash stations;
     Chillers and Boilers;                  Compressed air systems;          Laboratory fume hoods;
     Clean room ventilation and             Laboratory gas distribution      Laboratory counters, sinks and
     exhaust systems;                       system;                          cabinetry;
     Potable/hot water distribution;        Vacuum systems;                  Building and furniture locks;
                                                                             incl. room key reproductions,
                                                                             storage and distribution.
     Laboratory drainage systems;           Landscaping; and irrigation      Roofs/gutters/drains;
                                            systems.
     Foundation drains, pumps, and          Building directory and           Building Envelope, including
     emergency power.                       changeable room identification   cladding, glazing, curtain wall
                                            signs.                           components, and caulking and
                                                                             sealants.
     Interior and exterior finishes.        Interior doors and door          Overhead doors and hardware
                                            hardware.                        and operators.
     Painted surfaces.                      Exterior entry and exit doors.   Parking garage interiors,
                                                                             lighting, ventilation, and
                                                                             security systems.
     Exterior building identification
     signs.


    1.1. Building Systems Operations and Maintenance
          DBOM Contractor will operate, monitor, and adjust the day-to-day operations of Building Systems
          and equipment as necessary to meet the performance standards set forth in the Agreement.
          Operations include, but are not limited to:


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           Monitoring equipment performance;
           Raising and lowering temperature within established energy savings and energy code
             parameters;
           Monitoring and modifying air flow as required by Performance Requirements;
           Calibrating fan speeds;
           Operating building and equipment control systems; and
           Monitoring and operating lighting systems.
          Operating procedures will be optimized by DBOM Contractor as appropriate to the age, conditions,
          and operating requirements of the Facility.
         1.1.1.Building Systems maintenance. DBOM Contractor will perform preventative maintenance and
               planned maintenance work on facilities equipment at the Facility. Activities include but are not
               limited to:
                     Scheduled repairs, overhauls and life cycle equipment and parts replacement;
                     Management and oversight of specialty contractors or warranty repair crews;
                     Replacement of components such as filters, belts, bearings, lubrication, etc.; and
                     Roof maintenance.
         1.1.2.Short and long range maintenance planning. DBOM Contractor will provide expertise and
               implement maintenance procedures, new building systems technologies, equipment overhauls,
               installation of new equipment, and disposal of obsolete equipment. Maintenance planning and
               operations will reflect industry best practices, on new technology developments and DBOM
               Contractor’s and the Prime Service Provider’s experience.
         1.1.3.Equipment repairs and reactive maintenance. Restore non-functioning or malfunctioning
               equipment. Repairs consists of identifying root causes that prevent the equipment from
               operating properly; correcting or replacing defective components to cause the equipment to
               operate correctly; and verifying that the equipment is performing properly after repair.
               Repairs may be performed on site by DBOM Contractor or subcontractors, or equipment may
               be sent off site to independent sources for repair. Where practical, the Primer Contractor will
               provide, install and maintain substitutes at DBOM Contractor’s cost for certain equipment to
               minimize chain of responsibility. Maintain records of all equipment repairs performed by
               DBOM Contractor, preferably integrated into an information system. These repair histories will
               include the following information:
                     Description of malfunction cause and parts requiring replacement;
                     Time the equipment or device was out of service awaiting repair;
                     Time that was spent diagnosing the problem, completing the repair and verifying the
                      performance of the equipment or device; and
                     Cost of repair parts and labor.
               DBOM Contractor will review the above factors to determine if the equipment should be
               repaired or replaced.
         1.1.4.Equipment Guarantee. Building systems equipment or building materials included in the Core
               and Shell of the Facility that fail and cannot be repaired so as to to operate or function in good
               working condition with a reasonably anticipated useful life equal to its remaining scheduled
               useful life, shall be replaced by DBOM Contractor at no cost to the University, throughout the
               Term of the Agreement.


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2. BUILDING CUSTODIAL AND CLEANING SERVICES
    DBOM Contractor will provide custodial and interior cleaning services to the Facility as required
    maintaining interior areas. DBOM Contractor will be responsible for providing personnel, supervision,
    training and inspection necessary to perform the services. Schedule of custodial and cleaning services
    shall be the same schedule as those services are typically provided in Class-A Office Buildings in the
    Seattle area.
    2.1. General Cleaning Services
         The services described below are to be provided to all areas within the Facility unless otherwise
         specified, including: laboratories, conference rooms, offices, work stations, project rooms, coffee and
         break areas, reception areas, lounges and lobbies, corridors, libraries, elevators, stairways, landings,
         dining areas, toilet rooms, storage rooms, loading docks, locker rooms, and vehicle parking areas.
         2.1.1.Surface cleaning. DBOM Contractor will provide the following services:
               Clean workplace and furniture surfaces. Schedules may be revised as needed to meet the
               desired standards of performance. Surface cleaning includes the following activities:
                     Surface cleaning and dust removal;
                     Cleaning sanitary surfaces;
                     Polishing reflective surfaces;
                     Vacuuming carpeted floor areas and; and
                     Sweeping, mopping, waxing, resealing and buffing smooth finished floor areas.
               Surface cleaning and dust removal includes the following:
                     Remove marks, stains and spillage from doors, door glass, door frames, elevators,
                      elevator walls, furniture, trim, walls, door frames, door moldings, ring-down phones,
                      stainless steel surfaces, telephones, partitions, glass, light switches, light fixtures, and
                      woodwork;
                     Dust with oil- treated cloth or mop low ledges, window sills, non- fabric part of chairs,
                      tables, cabinets, desk tops, window openings, counters file cabinets, moldings and other
                      horizontal surfaces that are accessible without the use of a ladder;
                     Wipe down plastic, chrome or vinyl furniture. Damp wipe, with soap or cleaning solution,
                      non-fabric seating and tables;
                     Dust Venetian Blinds where accessible;
                     Remove dust, marks and spots using a damp cloth from picture frames, light fixtures and
                      items on walls;
                     Clean door kick plates and thresholds;
                     Dust with oil-treated cloth or damp wipe handrails and corners. Remove spots with a
                      damp cloth;
                     Dust or damp wipe monitors and office equipment, including copier, fax, telephones,
                      calculators, etc.;
                     Dust fronts and tops of lockers;
                     Clean, dust and/or remove cobwebs from light fixtures, vent openings and window
                      openings;
                     Perform high dusting;



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                     Clean air grills, diffusers, fans, mounted fans (including blades and cages), vents,
                      louvers and dust nearby ceiling tiles; and
                     Remove dust and spots from inside and outside fire extinguisher and fire hose cabinets.
               Cleaning sanitary surfaces includes the following:
                     Damp wipe counters and surfaces that touch food using a disinfectant;
                     Wipe clean and disinfect drinking fountains;
                     Clean around portable office water coolers and empty spill trays. DBOM Contractor is
                      not responsible for operating or refilling water coolers;
                     Wipe clean and disinfect faucets;
                     Clean washbasins, dispensers, chrome fixtures and fittings, mirrors, mirror frames, and
                      lights;
                     Sanitize toilets, toilet seats and urinals;
                     Wipe toilet partitions and tile walls using disinfectant;
                     Clean drains in walk- in shower and individual shower stalls;
                     Sanitize shower floors and walls;
                     Sanitize rubber floor mats and clean underneath the mat as needed;
                     Machine scrub with disinfectant, restroom and shower tile floors;
                     Defrost and damp wipe clean refrigerators. Dispose of unsealed food items according;
                     Empty and damp wipe collector pans located under refrigerators.            Clean drain
                      connection;
                     Wash out and disinfect trash containers as needed, both inside and outside; and
                     Clean microwave ovens as needed.
               Polishing reflective surfaces includes the following:
                     Polish elevator chrome and elevator walls;
                     Polish washbasins, dispensers and chrome fixtures;
                     Polish mirrors;
                     Polish metal door kick plates and thresholds; and
                     Polish stainless steel and chrome surfaces.
               Vacuuming and sweeping includes the following:
                     Completely vacuum rugs and carpeted floors with vacuum cleaner equipment, properly
                      adjusted for the height of the pile on rug. After the carpeted floor has been completely
                      vacuumed, it should be free of visible litter, soil and embedded grit;
                     Vacuum entrance carpets and carpet runners as needed;
                     Sweep or vacuum steps and landings;
                     Sweep or vacuum floors in main traffic areas;
                     Vacuum lobby door tracks and elevator door tracks;
                     Spot vacuum fabric part of chair seats and backs; and


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                     Vacuum tops of lockers in rest rooms and break rooms.
               DBOM Contractor will use low noise (< 55 decibels) vacuuming equipment equipped with
               enclosed dirt collection units, so that dust is not released back into the environment.
               Mopping, waxing, resealing and buffing include the following:
                     Wet Mopping. Prior to wet mopping, sweep the floor surface entirely and move portable
                      furniture to mop underneath. Use a wet mo p, mop bucket and wringer, and a neutral
                      detergent solution to remove soil and non-permanent stains from the entire area, to
                      include stairs. The neutral detergent solution will be changed periodically to ensure
                      proper strength and effectiveness of detergent solution, and to prevent the deposition of
                      debris. Otherwise, rinse the area that was damp mopped with clear water. After being
                      wet mopped, the wet area will be posted with a “Slip” warning;
                     Hardwood and tile floor care will include cleaning using disinfectant cleaner, spill
                      removal, the removal of black marks, scuffmarks, and any additional build-up;
                     Sweep or dust with oil-treated mop concrete floor surfaces and damp wipe as
                      appropriate; and
                     Remove debris and moss from steps, landings, and walkways.
         2.1.2.Spot reconditioning. DBOM Contractor will perform reconditioning activities as listed below. If
               cleaning, reconditioning or minor repairs fail to restore an item to the specified standard of
               appearance (i.e. appropriate to its location and use); cleaning personnel will notify the
               appropriate parties for scheduled repair or replacement of the item.
               DBOM Contractor will provide the following to University under this Scope of Work:
                     Spot recondition: fabric part of chairs, cubicles partitions and dividers; carpets; interior
                      and exterior of elevators; hardwood and vinyl floor; windowsills, doors, door frames and
                      light switches;
                     Remove graffiti from surfaces when required;
                     Clean fabric partitions; and
                     Shampoo, spot treat or steam clean carpets as needed to maintain.
         2.1.3.Restocking of consumables. Provide and restock paper products and soap dispensers, as well
               as feminine products in the restrooms. Restock paper products and soap dispensers in
               employee break rooms. Any dishes in break rooms are the responsibility of the University to
               clean and replace. DBOM Contractor is not required to load, unload or operate dishwashers.
         2.1.4.Glass cleaning. Monitor the condition of interior and exterior glass surfaces. Clean as required
               or as needed to prevent damage to glass or frames.
                     Interior glass:
                      Cleaning interior glass will be defined as the complete removal of smudges, tape, oily
                      film, and other types of soil from interior windows, skylights, partitions, walls, doors,
                      tables, mirrors, displays and other glass surfaces. Interior glass cleaning standards and
                      frequencies will also apply to both sides of glass in exterior doors and vestibules). A
                      glass cleaning chemical, window squeegee tool with rubber blade, clean sponge and
                      synthetic fiber cloths will be used. The glass will be rinsed to remove any detergent
                      solution residue. After washing, the glass area should be free of dust, smudges, oily
                      film, tape and other types of soil streaks, and watermarks. Glass cleaner splashed and
                      drip marks should be removed from adjacent surfaces, such as frames, casings, trim
                      and sills, after each washing.
                     Exterior glass:


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                      Cleaning exterior glass will be defined as the complete removal of smudges, tape, oily
                      films, cobwebs, dust, and other types of soil from both sides of the glass and frames of
                      exterior windows, doors etc. A glass cleaning chemical, window squeegee tool with
                      rubber blades, clean sponge and synthetic cloths will be used. The glass and frame will
                      be rinsed to remove and detergent solution residue. Any paint drops or smears will be
                      removed from outside window glass. Steel wool will not be used, but razor blades or
                      broad knives are permissible. After washing, the glass area should be free of smudges,
                      tape, oily film, cobwebs, dust, and types of soil, streaks and watermarks. Glass cleaner
                      splashes and drip marks should be removed from adjacent surfaces. Window washing
                      will be performed using normally accepted methods for this type of work.
         2.1.5.Specialized Area Cleaning Services. In addition to the activities listed above under General
               Cleaning Services, DBOM Contractor will conduct the following special activities appropriate to
               the following specific types of areas:
                     Janitorial storage areas:
                      o   Clean janitorial storage areas;
                      o   Keep supply and storage areas neat and orderly;
                      o   Leave no trash in supply and storage areas overnight; and
                      o   Store janitorial items in designated storage areas, not in corridors.
                     Computer rooms:
                      o   Clean areas designated as computer rooms;
                      o   Dust desk accessories, chairs, chair legs, cabinets, cabinet tops and desks where
                          accessible;
                      o   Dust baseboards, doorframes and picture frames;
                      o   Spot clean interior glass;
                      o   Do not use water or wax on floor. Damp mop hard floor surfaces to remove spots and
                          spills;
                      o   Dust with oil treated mop hard floor surfaces;
                      o   Do not plug vacuum cleaners into specially marked outlets;
                      o   Do not unplug any equipment;
                      o   Do not use damp cloths or water on equipment;
                      o   Do not stand on equipment; and
                      o   Spot clean any visible marks on surface of tables, tiled floors and carpeted areas.
                      o   Do not use wet mop on computer room floor.
                     Copier and printer areas:
                      o   Clean areas containing copiers and printers;
                      o   Do not unplug any equipment;
                      o   Do not use damp cloths or water on equipment;
                      o   Do not stand on equipment; and
                      o   Provide bins for disposal of recycled paper.
                     Laboratory areas (non clean room environments):


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                      o   Clean non clean room laboratory areas;
                      o   Dust with oil-treated mop hard floor surfaces;
                      o   Spot wet mop hard floor surfaces to remove spots and spills;
                      o   Spot clean sinks and counter areas, if free of equipment and chemicals;
                      o   Wipe clean eyewash sinks. Do not leave residues of cleaners if used;
                      o   Dust with oil-treated cloth or mop low horizontal surfaces under supervision;
                      o   Dust with oil-treated cloth non- fabric part of chairs, stools, file cabinets and desks;
                      o   Do not disturb papers, books or other materials on work surfaces. Do not erase
                          whiteboards;
                      o   Damp wipe outside of laboratory fume hoods (6 hoods); and
                      o   Recondition hard floor surfaces as needed.
                     Warehouse and shop areas:
                      These areas include any designated “industrial use” type of space, including but not
                      limited to warehouses, craft shops, loading docks, receiving areas and utility plants.
                      o   Clean warehouse and shop areas;
                      o   Remove litter;
                      o   Mop spillage and hose down dock areas as required;
                      o   Scrub stains underneath and outside dumpsters with designated chemical;
                      o   Degrease oil leaks; and
                     Clean room environments:
                      o   All personnel working in clean room environments will be properly gowned and
                          trained in clean room cleaning procedures. No unauthorized chemicals will be used
                          or allowed to enter clean rooms. In general, only deionized (“DI”) water will be used
                          for cleaning.
                      o   Damp mop floors with DI water in accordance with defined standards.
                      o   Wipe down walls and glass surfaces with DI water as required.
                      o   Replace consumables, including but not limited to special clean room paper,
                          “chemwipes”, consumables, facemasks, hairnets, and gloves. DBOM Contractor
                          responsible for consumables used by its own staff and subcontractors; University will
                          reimburse DBOM Contractor for consumables used by University personnel.
                      o   Remove clean room trash.
                      o   Avoid contact with equipment in clean room areas except as directed by authorized
                          University personnel.
                      o   Conduct particulate testing of clean rooms upon University request.
                      o   Decontaminate clean rooms upon University request. Check filters in the area for
                          contamination. Surfaces will be scrubbed down using DI water as required to restore
                          acceptable particulate counts. Equipment will be scrubbed only under supervision of
                          authorized University personnel.
                      o   Investigate the causes of any clean room contamination, and submit a report to the
                          University’s Representative and to the University’s Environmental Health & Safety
                          Department (the “EH&S Department”).

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    2.2. Trash Removal
          DBOM Contractor is not responsible for trash removal or cleaning in spaces to which its personnel
          have no access during scheduled cleaning times. University or its Tenants are responsible for
          removing full non-hazardous waste containers from secured or locked areas to locations where they
          can be emptied, and for retrieving them. DBOM Contractor will provide the following services with
          respect to non-hazardous waste removal:
                  Remove workplace trash from trash bins to designated areas;
                  Empty contents of trash and waste containers;
                  Do not remove materials near wastebaskets unless clearly marked or labeled with such
                   words as “trash”, “junk”, “garbage”, “recycle”, etc. Do not remove manufactured materials
                   (e.g. machine parts), regardless of appearance, unless clearly marked for disposal;
                  Prevent adjacent areas from being littered by trash;
                  Remove any accumulations of trash, rubbish, litter, spills, stains, or other foreign matter
                   from containers and the trash area;
                  Clean and restore container surfaces to a sanitary and pleasing condition;
                  Maintain plastic liners in trash baskets in a serviceable and orderly condition;
                  Return trash containers to their original positions;
                  Ensure that non- hazardous trash and recyclable materials storage areas, containers and
                   dumpsters are sited and maintained in a manner consistent with defined standards; and
                  Remove non-hazardous trash from University premises and dispose of properly off site in
                   accordance with applicable environmental policies and regulations. Waste disposal will
                   include reasonable efforts (e.g. via magnets) to sort, reclaim and recycle metals from trash
                   prior to final disposal. University will be responsible for all shipping manifests and ultimate
                   responsibility for all hazardous waste.
    2.3. Recycling
          Recycling arrangements and costs should be reviewed periodically with the University.              The
          following activities will be performed for each of the recyclable materials described:
                  Remove recyclable materials from marked recycling containers and transport to designated
                   storage areas;
                  If a recycling container is observed to contain significant amounts of trash (as opposed to
                   recyclable materials), dispose of all materials in that container as trash;
                  Clean recycling containers as required and return them to their original positions; and
                  Ensure proper removal of recyclable paper from University premises.
    2.4. Materials spill cleanups (non-hazardous materials):
          Customer acknowledges that DBOM Contractor is not an environmental consultant in the field of
          hazardous materials. Therefore, notwithstanding anything else contained herein or in the
          Agreement, with respect to any environmental conditions or issues pertaining to hazardous
          materials at the Facility, University agrees and acknowledges that DBOM Contractor and its agents,
          officers, directors, partners, shareholders, subcontractors and employees are not and shall not be
          deemed “operators” of the Facility or any tenant operations therein (or have any comparable legal
          status) for purposes of current or pending federal, state or local laws pertaining to hazardous
          materials and University shall indemnify and hold such persons harmless from any claims made
          with respect thereto. Unless agreed to in a separate writing signed by both University and a duly
          authorized representative of DBOM Contractor, DBOM Contractor shall not be responsible for the

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          storage, transportation, disposal, abatement, cleanup or removal of hazardous materials below, on,
          under, about or affecting the Facility, except for those hazardous materials, if any, used by DBOM
          Contractor in the ordinary course of its management activities. Any spill of unknown materials
          should be assumed to be a hazardous materials condition until confirmed to be non-hazardous. The
          activities below apply only to spills that are confirmed to be non-hazardous materials, such as non-
          hazardous cleaning chemicals or motor oil:
                  Conduct cleanup as needed to remove traces of contaminant, if possible;
                  Collect and dispose of contaminants and contaminated items that cannot be cleaned in an
                   appropriate manner, in accordance with EH&S Department policies and regulations; and
                  Investigate the causes of any materials spill, and submit report to University and to the
                   University’s EH&S Department.
    2.5. Safety Engineering
         Perform safety audits and verification of regulatory compliance in the work place. Assure that Cal
         OSHA regulations such as IIPP, Hazardous Communications, and Emergency Action Plan, Fire
         Prevention Plan, Hazardous Energy Control, and job specific safety procedures are implemented for
         the Utility and Building Services.
                 Assist in development, delivery and documentation of safety training, including new hire
                  employee safety orientation;
                 Perform routine inspection of equipment for fire protection, emergency lighting, safety eye
                  wash/ shower, and ERT emergency response;
                 Participate in ERT drills, new/refresher training, evacuation drills as directed by University;
                 Maintain and update Material Safety Data Sheet Master Binder, and evaluate safety, use
                  and storage for new chemicals/gas;
                 Perform worksite safety evaluations and surveillance for employee exposures (ventilation,
                  RF, respiratory protection, laser, electrical shock hazards, hazardous chemical or gas etc.)
                  as relates to the Utility and Building Services; and
                 Conduct workplace ergonomic evaluation, document, and provide recommendations, as may
                  be required, for ergonomic equipment.
3. BUILDING ENGINEER’S HELP DESK
    The purpose of the help desk is to provide accurate, responsive and professional dispatch support for
    Facility Occupants and tenants. Problems relating to Utility and Building Services will be properly
    documented and responded to in a reasonable manner once reported. In cases where the unavailability
    or malfunction of a building system impacts the work activities of University personnel, University will be
    provided with current and accurate information as to when it can expect a resolution of the problem.
    DBOM Contractor shall encourage building occupant and University feedback and two-way
    communication between the help desk and occupants. The types of calls that the help desk will handle
    include all activities within the Scope of Work. These include, but are not limited to:
            Maintenance work order calls (see below);
            Hot/cold calls;
            Emergency calls;
            Custodial service calls;
            Complaints/Disturbances (noise, odor, flickering lights, etc.);
            General facilities information (Operations and Maintenance, Janitorial, Grounds);


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            Information requests relating to facilities standards and policies; and
            Forwarding non-facilities related (out-of-scope) requests to the appropriate University resource.
    3.1. Work orders
         The Building Engineer will operate a centralized help desk to coordinate and dispatch service
         requests. This help desk may be located remotely (e.g. a call center). DBOM Contractor will enable
         the help desk to access a CMMS system or similar system capable of providing equipment repair
         history, work order backlog and performance measures. DBOM Contractor may also enable the help
         desk to interface with site monitoring systems. DBOM Contractor will provide the following:
                 Support and coordinate maintenance requests, including emergency and corrective
                  maintenance, user requests, large project work (which will be treated as out of scope),
                  janitorial requests, grounds and site maintenance requests, and space planning and moves
                  requests.
                 Record and relay requests for utility and building services.
                 Provide information to track the progress of work. This may include, but is not limited to,
                  work order numbers, work schedule updates and technical information.
                 To a reasonable extent, refer non- facilities related (out-of-scope) requests to the appropriate
                  parties, and provide that party's contact information to the caller for follow-up purposes.
4. GROUNDS AND EXTERIOR SITE MAINTENANCE
    Grounds maintenance provides for proper function and pleasing appearance, including pest control, of
    exterior areas of Facility. Outdoor areas include grounds, pavements, roads, sidewalks, drainage
    ditches and fences.
    4.1. Exterior site infrastructure
         DBOM Contractor will provide the following services:
                 Police and remove litter from the property. Empty outdoor waste bins and cigarette urns as
                  required to prevent spillover and deter pests;
                 Maintain exterior lighting at a level that meets University safety and security standards;
                 Maintain sidewalks, pavements and pavement markings at a level that meets University
                  safety standards;
                 Remove snow and ice from sidewalks and driveways on site and on adjacent contagious
                  public sidewalks;
                 Maintain exterior fences in good repair; repair any gaps;
                 Maintain signs in orderly and readable condition; and
                 Maintain outdoor structures, such as temporary sheds, construction trailers, dumpsters and
                  smoking areas, in an orderly condition and, where possible, place them in unobtrusive
                  locations.
    4.2. Grounds and landscaping
          DBOM Contractor will provide the following:
                 Lawns:
                      o    Mow, trim, edge, water and fertilize lawns as required to maintain a neat, well-
                           groomed and professional appearance;
                      o    Following mowing, edging or trimming operations, ensure grounds are free of
                           unmulched clippings and streets, sidewalks and parking lots are free of debris;

Building Management and Utility Services Agreement
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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
Capital Projects Office, University of Washington


                      o    Edge sidewalks and curbs to ensure grass and weeds do not extend beyond planted
                           areas. Edging includes removal of vegetation from cracks in sidewalks, driveways,
                           and curbs;
                      o    Ensure that leaves are collected in the fall and tree limbs or other debris that fall
                           following storms or that otherwise present obstacles are promptly removed; and
                      o    Maintain a neat appearance by trimming around vertical elements such as trees,
                           shrubs, buildings, fences, poles, fire hydrants, boulders and other elements.
                 Trees and plantings:
                      o    Prune trees, shrubs and hedges to improve the overall appearance and health of the
                           plant. Thin plants as necessary to promote growth and appearance; and
                      o    Prune trees as required to provide safety, clearances and/or to prevent structural
                           damage, in accordance with industry (ANSI Z133.1 - 1994) standards. Minimum
                           safety clearance is 14 feet over streets, 12 feet over driveways, 8 feet over walk
                           areas, and 4 feet from buildings. Other trees will be pruned.
                 Irrigation systems:
                      o    Operate and maintain automated irrigation systems; and
                      o    Implement measures to minimize water used in irrigation, minimizing leakage, over
                           watering, runoff or accumulation of water in low areas.
                 Vegetation control:
                      o    Remove undesired vegetation in tree buffers, hedge and seasonal color beds, and
                           paved areas including streets, sidewalks, and parking lots; and
                      o    Remove vegetation growth that is on, encroaching on, or obstructing security
                           fences, signposts and other structures.
                 Pest control ;
                      o    DBOM Contractor will identify animal or insect pests on any portion of the Facility
                           and perform pest control in accordance with federal and state regulations.
5. ERT SUPPORT
    The Emergency Response Team (“ERT”) is responsible for assisting emergency service personnel in
    activities on University’s Facility premises. DBOM Contractor’s designated ERT personnel in conjunction
    with the University’s ERT members shall perform the following in the event of an incident on a Facility, as
    instructed by the person designated by the University (the “University Incident Commander”). DBOM
    Contractor shall provide personnel with qualifications mutually agreed with University to participate in the
    ERT. DBOM Contractor will:
                 Support rapid, orderly and complete evacuation of buildings when an alarm occurs or an
                  emergency condition has been reported;
                 Provide site-specific knowledge and technical support services to the University Incident
                  Commander and emergency services personnel. Services might include, but are not limited
                  to:
                      o    Isolating water / gas / electrical / chemical systems;
                      o    Assisting with building access / egress;
                      o    Assisting with navigation through buildings;
                      o    Provision of site and building drawings; and
                      o    Removing debris and obstructions using available equipment.

Building Management and Utility Services Agreement
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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
Capital Projects Office, University of Washington


                 Notify Customer’s Security Department and designated ERT representatives without delay
                  upon receiving an emergency call. Processes and training will be consistent with OSHA
                  requirements. Ensure that call center representatives can quickly collect (via scripting or
                  other methods to be established during the transition period) and relay accurate information
                  as to the nature of the emergency and its location;
                 Work with EH&S personnel and others as required to document processes, staffing and
                  training requirements for emergency response. Ensure that DBOM Contractor ERT
                  personnel contact information is current, accurate and widely distributed. The University will
                  approve the final ERT documents, in consultation with the University’s EH&S Department
                  and DBOM Contractor; and
                 Perform designated roles in scheduled exercises and drills related to the University’s
                  Emergency Action Plan, Emergency Response Plan, Disaster Recovery Plan and
                  Contingency Plan.




Building Management and Utility Services Agreement
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Benjamin Hall Interdisciplinary Research Building, Project No. 10297
Capital Projects Office, University of Washington


                                                       EXHIBIT D


                                               EXCLUDED SERVICES


1. DBOM Contractor shall not be responsible for carrying out the following duties:
    1.1. Moving, loading, unloading, storing or otherwise handling of University materials, supplies or
         equipment.
    1.2. Operating the Facility parking garage or parking lot, other than cleaning and maintenance.
    1.3. Operating or maintaining the University’s telephones or computers or their infrastructure.
    1.4. Providing security personnel or services.
    1.5. Payment of insurance premiums on behalf of the University;
    1.6. Payment of property taxes on behalf of the University;
    1.7. Hazardous Waste Management; and
    1.8. Research Equipment related maintenance.




Building Management and Utility Services Agreement
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                                                              Exhibit E

                               Building Management and Utility Service Fee and Related Indices


      BM&US Fee             Base Amount       Subcategory                                        Applicable Index
                                                Amount

Utilities                            34,743
              Electricity                          30,439 CPI-All Urban Consumers / Seattle-Tacoma-Bremerton / Electricity / CUURA423SEHFO1
            Natural Gas                                   CPI-All Urban Consumers / Seattle-Tacoma-Bremerton / Utility (piped) gas service /
                                                          CUURA423SEHF02
                                                    3,388
                Fuel Oil                              125 CPI-Average Price Data / U.S. City average / Fuel oil #2 per gallon / APU000072511
                Water &                                   CPI-All Urban Consumers / Seattle-Tacoma-Bremerton / Fuel and utilities /
                 Sewer                                791 CUURA423SAH2

Labor                                33,701                 Employment Cost Index / Total compensation / Private Industry / West region /
                                                            ECU13402I

Capital Improvement                  10,931                 no index - flat rate for 120 months, at which time it is deemed paid in full. The University
Repayment Fund                                              may elect to prepay this amount if it so notifies DBOM Contractor not later than 45 days
                                                            after Notice to Proceed under the Core and Shell Design-Build Contract. If the University
                                                            elects prepayment, the prepayment amount shall be $864,000 which shall be paid
                                                            according to the construction draw schedule under the Core and Shell Design-Build
                                                            Contract. In the case of such prepayment, the initial monthly Fee shall be $121,844.

Depreciation Fund                     6,225                 Producer Price Index Industry Data / Non-residential buildings / PCUBBLD-BBLD

All Other Building                   47,175                 CPI-All Urban Consumers / Seattle-Tacoma-Bremerton / All items less food and energy /
O&M                                                         CUURA423SAOL1E
                                           EXHIBIT F


                                CONSENT TO ASSIGNMENT

       This Consent to Assignment (this “Consent”) is made effective the ___ day of ____, 20__
by and between The Board of Regents of the University of Washington (the “University”), M.A.
Mortenson Company (“Mortenson”) and Johnson Controls, Inc. (“JCI”).

                                           RECITALS

        The University and Mortenson are parties to that certain Building Management and
Utility Services Agreement dated for reference purposes June 22, 2004 (the “O&M Agreement”).

        Mortenson wishes to assign its rights and obligations as DBOM Contractor under the
O&M Agreement to JCI, and JCI wishes to assume such rights and obligations, all as more fully
set forth herein.

        The University is willing to consent to such assignment on the terms and conditions set
forth herein.

        All capitalized terms not otherwise defined in this Consent shall have the meanings set
forth in the O&M Agreement.

                                         AGREEMENT

       Now, therefore, for good and valuable consideration, the parties hereto agree as follows:

        1. Mortenson hereby confirms that, effective __________ (the “Assignment Date”), it
has assigned to JCI all rights and obligations of Mortenson as DBOM Contractor under the
O&M Agreement.

       2. JCI hereby confirms that, effective on the Assignment Date, it has accepted
assignment of all rights and obligations of Mortenson as DBOM Contractor under the O&M
Agreement and agrees to fully perform all such obligations.

        3. JCI agrees that with respect to any and all obligations of the DBOM Contractor arising
from and after the Assignment Date (including but not limited to obligations to correct pre-
existing conditions), it will not assert as against the University that such obligations are in any
manner excused by the actions or inactions of Mortenson as DBOM Contractor prior to the
Assignment Date, it being the intention and understanding of the parties that the University shall
be entitled to expect as full and unexcused performance by the DBOM Contractor after the
Assignment Date as would have occurred had there been no assignment. Nothing in this Section
3 shall in any way affect any rights or agreements as between JCI and Mortenson relating to
Mortenson’s actions prior to the Assignment Date.
        4. Subject to Section 3 above, the University agrees that from and after the Assignment
Date it will look solely to JCI for performance of all obligations of the DBOM Contractor, and
that Mortenson shall not be obligated to perform or be liable for non-performance of such
obligations from and after the Assignment Date.

      5. This Consent to Assignment shall be construed under the laws of the State of
Washington.

“University”
The Board of Regents of the University of Washington


By:


Its:


“Mortenson”
M. A. Mortenson Company


By:


Its:


“JCI”
Johnson Controls, Inc.


By:


Its:

								
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