SAMPLE Equipment Lease Agreement

SAMPLE: Equipment Lease Agreement This Equipment Lease Agreement (the “Agreement”) is made as of [insert date] by and between the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“VANOC”) and [insert name of Lessor] (the “Lessor”). WHEREAS: A. VANOC has been incorporated to plan, organize and stage the 2010 Olympic and Paralympic Winter Games (the “Games”). VANOC issued Request for Proposals No. [insert] seeking proposals from businesses able to provide the equipment and perform the work and services described herein, and the Lessor was identified as the successful proponent. [delete this Recital if it is not applicable.] The parties wish to enter into this Agreement in order to set forth the terms of the lease of certain equipment by the Lessor to VANOC, as well as certain related services and work to be performed by the Lessor for VANOC. B. C. NOW THEREFORE, in consideration for the mutual covenants and promises made by the parties and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. EQUIPMENT LEASED. 1.1 Lease. The Lessor hereby leases to VANOC the [insert short description of the type of equipment, e.g. “snow making”] equipment, as further described in Schedule “A” (collectively, the “Equipment”). The Lessor shall deliver each item of Equipment to VANOC on the delivery date designated in respect of such item of Equipment in Schedule “A” (as to each item of Equipment, the “Delivery Date”), at the delivery location designated in respect of such item of Equipment in Schedule “A” (as to each item of Equipment, the “Delivery Location”), and shall remove such item of Equipment on the removal date designated in respect of such item of Equipment in Schedule “A” (as to each item of Equipment, the “Removal Date”), all pursuant to the terms and requirements set forth in Schedule “A”. Term. The lease term for each item of Equipment (as to each item of Equipment, the “Term”) shall commence on the Delivery Date and shall expire on the Removal Date. The term of this Agreement (the “Agreement Term”) shall commence on the date first referenced above and, unless terminated earlier in accordance with this Agreement, shall expire on the Removal Date designated for the final item of Equipment to be removed. Performance of Work. The Lessor shall perform the work and services described in Schedule “A” (collectively, the “Work”) promptly and with due care and attention, and in any event shall complete the Work in respect of each item of Equipment by the relevant Delivery Date. Requirements; Installation. Upon delivery to VANOC, the Equipment shall be accompanied by a bill of lading that accurately and consistently describes each item of Equipment. The Lessor covenants and warrants that the Equipment shall, when delivered to VANOC, meet the specifications and requirements (if any) set forth in Schedule “A”. If any item of Equipment requires installation by the Lessor, the Lessor shall comply with the specifications for installation (if any) set forth in Schedule “A”. The Lessor shall supervise and direct the installation of each item of Equipment to be installed by the Lessor using the Lessor’s best skill and attention, and the 1.2 1.3 1.4 Lessor shall be solely responsible for and have control over means, methods, techniques, sequences and procedures, and responsibility for coordinating all portions, of installation and/or commissioning of all Equipment. 1.5 Notices and Permits; Compliance with Laws. The Lessor shall give all notices required by, and otherwise comply with, all laws and ordinances that govern the installation or commissioning of the Equipment. The Lessor shall obtain all permits and other governmental approvals required for the delivery or use of any item of Equipment. The Lessor hereby represents and warrants that the Equipment will comply, upon delivery and installation, with any applicable municipal, provincial or federal laws and regulations, and that any Work to be performed by the Lessor in connection with this Agreement shall be in compliance with such laws and regulations. If the Lessor becomes aware of any permit or license necessary for completion of the Work that may only be obtained by VANOC, the Lessor shall promptly notify VANOC of such need and cooperate with VANOC in obtaining such permit or license. Role of VANOC Representative. Schedule “A” sets forth the name(s) of the person(s) designated by VANOC as its primary representative(s) in connection with the Lessor’s performance of the Work (the “VANOC Representative”). VANOC may designate additional VANOC Representatives or replace a VANOC Representative by written notice to the Lessor. The VANOC Representative shall be the person(s) responsible for maintaining the liaison with the Lessor and for determining whether the Lessor has performed the Work satisfactorily, consistent with Section 5.2 of this Agreement. If a person other than the VANOC Representative purports to serve in such role on behalf of VANOC or gives the Lessor a directive that conflicts with a directive of the VANOC Representative, the Lessor shall promptly notify the VANOC Representative. Title to the Equipment. This Agreement constitutes a true lease and not a sale of the Equipment. The Equipment is and shall remain personal property of the Lessor. VANOC agrees, at its sole cost and expense, to keep the Equipment free and clear of all claims, liens, encumbrances and attachments created by VANOC. No Commercial Markings on Uniforms. If the Lessor’s personnel the personnel of any Subcontractor (as defined below) will perform the Work at VANOC-owned or controlled locations during the Games, items of clothing worn by such personnel may not contain any commercial markings without the prior written approval of VANOC. No Commercial Markings on Equipment. Any commercial markings on the Equipment or equipment that is used by the Lessor’s personnel or any Subcontractor’s personnel to perform the Work at VANOC-owned or controlled locations during the Games or at any other time that VANOC reasonably requests must be covered up or removed at the Lessor’s sole expense in accordance with instructions given by VANOC, unless otherwise agreed by VANOC in writing. Time of Essence. The Lessor acknowledges that the Lessor’s covenants to provide each item of Equipment to VANOC on the Delivery Date and to complete the Work in respect of each item of Equipment by the relevant Delivery Date are material considerations inducing VANOC to enter into this Agreement with the Lessor. The Lessor agrees that should its rate of progress in the Work in respect of an item of Equipment be less than that required to achieve the relevant Delivery Date, the Lessor shall give written notice to VANOC and undertake any and all efforts necessary, including overtime, premiums and additional shifts, to complete the Work by the Delivery Date or as soon as possible thereafter. The Lessor further agrees that all costs and expenses associated with such efforts shall be for the sole account of the Lessor. 1.6 1.7 1.8 1.9 1.10 2. USE AND MAINTENANCE OF EQUIPMENT. 2.1 Use of Equipment. VANOC shall use the Equipment in a careful and lawful manner. 2.2 Condition of Equipment. VANOC shall keep each item of Equipment in good repair and operating condition at all times during the Term, ordinary wear and tear excepted. VANOC shall ensure that on each Removal Date, the relevant item of Equipment is reasonably clean and in the same condition as it was on the relevant Delivery Date, ordinary wear and tear excepted. The Lessor acknowledges that VANOC will use, or authorize its licensees to use, the Equipment in connection with the Games and/or related athletic competitions, cultural events and hospitality services, and the term “ordinary wear and tear” shall mean for purposes of this Agreement, the kind and quantity of wear and tear that might reasonably be expected to occur to such item of Equipment if it were used 24 hours a day, 7 days a week, for the duration of the Term. Examples of ordinary wear and tear in the context of this Agreement are tape or tape adhesive, tags, ink markings, minor scratches, scrapes and chips, dirt and mud, and discoloration. The Lessor further acknowledges that compensation for such ordinary wear and tear upon the Equipment has been a factor in the determination of the amount of the Rent (as defined below). Maintenance of Equipment. Schedule “A” sets forth the requirements (if any) for maintenance and support services to be provided by the Lessor in connection with the Equipment. 2.3 3. RENT. 3.1 Amount and Payment. In consideration for the lease of the Equipment and the performance of the Work by the Lessor, VANOC shall pay the Lessor the rent specified in Schedule “B” (the “Rent”), in accordance with the terms of payment set forth in Schedule “B”. VANOC shall have no responsibility to pay Rent following the Removal Date in respect of any item of Equipment that the Lessor has not removed by such Removal Date. All payments of Rent and any other amounts hereunder shall be in Canadian dollars. All-Inclusive Nature of Rent. The Rent shall be the all-inclusive charge for all services, materials, Equipment leased and Work performed by the Lessor pursuant to or in accordance with this Agreement, including without limitation, all applicable taxes, permits, materials, installation, maintenance, crew expenses (travel, lodging, meals per diem, etc.), equipment and tools, freight, transportation, loading and unloading, safety, administration and overhead, management, temporary storage and warehousing prior to delivery of an item of Equipment to the Delivery Location, and insurance. Billing Records. The Lessor shall maintain complete and accurate books and records as may be necessary for proper financial management under this Agreement for three (3) years after the Agreement Term. VANOC shall have the right, upon reasonable notice to the Lessor and during the Lessor’s regular business hours, to audit such books and records to the extent related to this Agreement. Taxes. The Lessor shall be solely responsible: (i) for the payment of all taxes, withholding payments, penalties and fees with respect to the Rent and any other payments; and (ii) for the filing of all necessary documents, forms and returns pertinent to the foregoing. Overpayments. Payments that have been made by VANOC to the Lessor in advance for the Equipment or the performance of the Work or by mistake, that are in excess of such amounts actually due under this Agreement, shall be promptly returned by the Lessor to VANOC. 3.2 3.3 3.4 3.5 4. LESSOR’S WARRANTIES. 4.1 Work and Equipment. The Lessor warrants to VANOC that the Equipment and any materials and equipment furnished by the Lessor in connection with the Work, will be of good quality, new and of recent manufacture unless expressly provided otherwise by this Agreement, that the Equipment and the Work will be free from defects and will conform with the requirements of this Agreement. Equipment or Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. Further, for the benefit of VANOC, the Lessor shall enforce all manufacturers’ warranties applicable to the Equipment or to any materials or equipment furnished by the Lessor in connection with the Work. The Lessor shall not charge VANOC, or shall reimburse VANOC for any costs paid by VANOC, as the case may be, for repair or replacement of any Equipment or any material or equipment furnished by the Lessor in connection with the Work to the extent such repair or replacement is covered by a manufacturer’s warranty. If required by VANOC, the Lessor shall furnish satisfactory evidence as to the kind and quality of the Equipment and any materials and equipment furnished by the Lessor in connection with the Work. 4.2 Authority. The Lessor represents, warrants and agrees that it has the legal authority to enter into this Agreement and to perform its obligations hereunder. 5. RELATIONSHIP OF THE PARTIES. 5.1 Status as an Independent Contractor. The Lessor shall at all times during the Agreement Term and in the performance of the Work be an independent contractor. Neither the Lessor nor any of the Lessor Personnel (as defined below) shall be considered a director, officer, employee, servant or agent of VANOC for any purpose, and neither the Lessor nor any of the Lessor Personnel shall enter into or purport to enter into any contract or subcontract on behalf of VANOC. It is understood and agreed that the Lessor will act as an independent contracting party to VANOC and that no joint venture, partnership or principal-and-agent relationship exists between them in connection with this Agreement or otherwise, and the parties covenant that they will not assert otherwise. It is further understood and agreed that the Lessor is entitled to no other benefits or payments whatsoever other than those specified in this Agreement. The Lessor shall pay and report, for all its employees (and, if applicable, for all employees of any Subcontractor) assigned to perform the Work, federal and provincial payroll tax, contributions for employment insurance, old age pensions, retirement annuities, worker’s compensation, health and hospitalization plans and other benefits for which the Lessor or any Subcontractor is responsible. The Lessor shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such employees may be entitled. The Lessor shall establish appropriate procedures and controls so that any person who is not legally eligible for employment under Canadian immigration laws will not perform any of the Work. The Lessor shall retain all documentation required by law to be maintained and shall provide VANOC access to such records upon request. Method of Performing the Work. The Lessor shall determine the method, details and means of performing the Work. VANOC shall have no right to, and shall not, control the specific manner or determine the specific method of performing the Work. VANOC may, however, provide general guidelines regarding the performance of the Work, and require the Lessor to observe at all times the security and safety policies of VANOC. In addition, VANOC shall be entitled to exercise a broad general power of supervision and control over the results of the Work performed by the Lessor to ensure satisfactory performance. This power of supervision shall include the right to inspect, stop work, and make suggestions or recommendations as to the details of the Work. Subcontractors. In this Agreement, “Subcontractor” means a person or entity having a direct or indirect contract with the Lessor to perform any portion of the Work, including, without limitation, any material and equipment suppliers, trade service providers and manufacturers. The Lessor shall not subcontract or delegate any portion of the Work to any other person or entity except with the prior written consent of VANOC. The Lessor shall bind every Subcontractor (and require every Subcontractor to so bind its Subcontractors) to all provisions of this Agreement that apply to the Subcontractor’s portions of the Work. Regardless of whether VANOC shall approve Subcontractors, the Lessor shall not be released from liability for the performance of any of the Lessor’s obligations under this Agreement. 5.2 5.3 5.4 Assignment of Personnel. The Lessor shall ensure that the personnel whom the Lessor and any Subcontractor assigns to perform the Work shall be clean, courteous and properly trained. VANOC reserves the right to interview the personnel whom the Lessor (or any Subcontractor) assigns to perform the Work. If at any time VANOC notifies the Lessor that any person assigned by the Lessor or any Subcontractor is not appropriate for the Work based on such person’s specific or general skills, background, experience, work product, or conduct on VANOC’s premises, the Lessor shall promptly take measures to correct the deficiency, including without limitation, assignment of another qualified person to perform the Work. Notwithstanding the foregoing, VANOC shall have the right to require the Lessor to remove any person from performance of the Work if, in VANOC’s judgment, such person is engaging in inappropriate conduct while performing the Work. Inappropriate conduct includes, without limitation, the use, distribution, sale or possession of alcohol, illegal drugs or any other controlled substances (except for approved medical purposes), the possession of a weapon of any sort, harassment, threats or violent behavior. VANOC shall not be responsible for the cost of such removal or assignment. Security. The Lessor acknowledges that VANOC has developed a comprehensive security protocol for anyone having access to the Games venue sites and/or venue information. The Lessor agrees that where it will have such access, as a condition of working with VANOC: the Royal Canadian Mounted Police (the “RCMP”) or any other provincial, federal, regional, or municipal police force, police department or other law enforcement bodies (collectively, “Law Enforcement Agencies”) may at any time and from time to time during or after the Agreement Term and before March 31, 2010, conduct criminal records searches, police history information searches and/or other background checks, investigations and searches (collectively, “Searches”) pertaining to: (i) the Lessor; (ii) any principals, directors, managers, employees and agents of the Lessor performing, directly or indirectly, any part of the Work which involves, or may involve, access to the Games venue sites and/or venue information; (iii) the Subcontractor(s); or (iv) any principals, directors, managers, employees and agents of the Subcontractor(s) performing, directly or indirectly, any part of the Work which involves, or may involve, access to the Games venue sites and/or venue information (for the purposes of Section 5.1 and this Section 5.5, (i) through (iv) are collectively, the “Lessor Personnel”); the Lessor will cause all Lessor Personnel, as a condition of having access to or performing, directly or indirectly, any part of the Work which involves, or may involve, access to the Games venue sites and/or venue information, to execute and deliver to the RCMP, or on the request of the RCMP, to any other Law Enforcement Agencies, a consent document setting out the entity’s or individual’s consent and authorization to conduct any Searches, including without limitation consent to the collection and submission of such personal data and information as may be required to enable the RCMP or other Law Enforcement Agencies to perform such Searches; and without limiting any other term of this Agreement, the Lessor agrees that each of: (i) the failure of any Lessor Personnel to deliver any consent or authorization required hereunder; and (ii) receipt by VANOC of notice from the RCMP that the outcome of any of the Searches is not satisfactory, shall constitute a breach of this Agreement for the purposes of Section 6.2 and in such event VANOC may, but will not be obligated to, exercise any right or remedy that VANOC may have under this Agreement or at law, including without limitation, terminating this Agreement or denying access to any Lessor Personnel to the VANOC offices and systems or to any of the Games venue sites and/or venue information. Restoration. Upon the Lessor’s completion of the Work, if performed on VANOC-owned or VANOC-controlled premises, the Lessor shall remove its materials, equipment and waste and promptly restore the premises to a condition comparable to the condition of the premises at the beginning of the Lessor’s performance of the Work, ordinary wear and tear excepted. 5.5 (a) (b) (c) 5.6 6. TERMINATION. 6.1 Termination for Convenience. Due to the exigencies of VANOC’s obligations related to the Games, VANOC may terminate this Agreement for any reason on giving thirty (30) days’ written notice of termination to the Lessor. During such thirty (30) day period, this Agreement shall remain in full force and effect. Upon such termination of this Agreement, there shall be no further or additional liability upon either party for Rent or Work beyond the effective date of such termination. Termination for Breach. This Agreement may be terminated by either party if a breach of any representation, warranty, covenant, obligation or other provision of this Agreement has been committed by the other party and such breach has not been waived or cured within thirty (30) days following the date on which the non-breaching party provides written notice to the other party of such breach. Notwithstanding the foregoing, during the period from November 1, 2009 through April 30, 2010, due to the exigencies of VANOC’s obligations related to the Games and in recognition of the fact that time is particularly of the essence during such period, VANOC may terminate this Agreement if such a breach of this Agreement has been committed by the Lessor and such breach has not been cured within forty-eight (48) hours following the date on which VANOC provides written notice to the Lessor of such breach. Immediate Termination for Certain Events of Default. This Agreement may be terminated immediately by either party upon the occurrence of any of the following events of default on the part of the other party, which events of default shall deemed not capable of cure: the admission by a party in writing of such party’s inability to pay its debts as they become due; or the making of an assignment for the benefit of such party’s creditors; or the filing by or against such party of a voluntary or involuntary petition in bankruptcy or of any answer or petition seeking any reorganization, arrangement, composition or other insolvency relief under the present or any future Bankruptcy Act or any other applicable federal, provincial or other insolvency statute, law or regulation, which proceeding shall remain unstayed for a period of ninety (90) days after the commencement thereof; ithdrawal by the International Olympic Committee (“IOC”) of the right of VANOC to host the 2010 Olympic Winter Games in Vancouver or cancellation of the 2010 Olympic Winter Games for any reason; or withdrawal by the International Paralympic Committee (“IPC”) of the right of VANOC to host the 2010 Paralympic Winter Games in Vancouver or cancellation of the 2010 Paralympic Winter Games for any reason; or the death or permanent disability of the Lessor, if the Lessor is a natural person. Obligations Upon Termination. The termination of this Agreement pursuant to Section 6.2 or 6.3 shall not relieve VANOC of its obligation to pay the Lessor Rent through the effective date of such termination, subject to any valid claim for deduction or offset by VANOC. Within thirty (30) days of the effective date of termination of this Agreement for any reason, the Lessor shall deliver to VANOC all property in the Lessor’s possession that belongs to VANOC, including all final data, reports and Work for which Rent has been paid. Accrued Rights. Notwithstanding the foregoing provisions of this Article 6, the termination of this Agreement for any reason will not prejudice, limit or affect any claim or matter outstanding prior to termination or obligations consequent upon termination or which by their nature survive termination. Additional VANOC Right to Cure and Offset. In addition to the right to terminate for an uncured breach in accordance with Section 6.2, if the Lessor fails to cure its breach during the thirty (30) day cure period specified in Section 6.2, VANOC shall have the right, but not the obligation, to make any payments, provide any services (either through its own employees or a third party), obtain any equipment and/or take any other actions which VANOC deems appropriate or desirable to obtain the benefits described in this Agreement, and the Lessor shall promptly 6.2 6.3 (a) (b) (c) 6.4 6.5 6.6 reimburse VANOC for all actual and reasonable costs associated therewith. Any amounts not promptly reimbursed may be deducted from the Rent otherwise owing to the Lessor hereunder. This remedy shall not be exclusive but shall be cumulative and in addition to all other remedies available to VANOC, whether at law or in equity. 7. INSURANCE AND RISK OF LOSS. 7.1 Insurance. The Lessor shall provide, maintain and pay for, and cause all Subcontractors to provide, maintain and pay for, the insurance coverage described in Schedule “C”. Risk of Loss. The Lessor shall retain the risk of all loss and damage to the Equipment from all causes, including but not limited to, loss or damage resulting from the installation of the Equipment, except to the extent caused by the gross negligence or intentional misconduct of VANOC or any of its employees, volunteers, officers or agents. VANOC shall reimburse the Lessor for any loss or damage to any item of Equipment that is caused by the gross negligence or intentional misconduct of VANOC or any of its employees, volunteers, officers or agents. If any item of Equipment is damaged during the Term, the Lessor shall repair or replace such item of Equipment, as the case may be, as soon as is reasonably practicable, but in any event, if any damage occurs during the 2010 Olympic Winter Games (during February 12 through 28, 2010) or the 2010 Paralympic Winter Games (March 12 through 21, 2010), within four (4) hours after VANOC gives the Lessor notice of such damage, which notice need not be in writing. Notwithstanding any other provision of this Agreement, the Lessor shall bear all risk of loss or damage to each item of Equipment that occurs as a result of the delivery or installation of such item of Equipment by the Lessor. 7.2 8. CONFIDENTIALITY. 8.1 Obligation Not to Disclose Confidential Information. The Lessor shall maintain in strict confidence, and shall use and disclose only as authorized by VANOC, all Confidential Information (as defined below) that the Lessor receives in connection with the performance of the Work. The Lessor shall require the Lessor’s personnel and all Subcontractors to whom it must disclose Confidential Information to agree to do likewise. The Lessor may disclose any Confidential Information to the extent required by an order of any court or other governmental authority, but only after the Lessor has notified VANOC, and VANOC has had the opportunity to obtain reasonable protection for such Confidential Information. Definition of Confidential Information. means: In this Agreement, “Confidential Information” 8.2 (a) any information concerning the transactions of any sponsor, customer or supplier of VANOC (other than the Lessor) or of any other person or entity with which VANOC does business; any information relating to the contracts, agreements, business plans, budgets, or results of operations, or any other financial information of VANOC (other than this Agreement), to the extent such information has not been made available to the public by VANOC; and any other trade secret, proprietary information or information marked or noted to be confidential by VANOC at the time of disclosure. Information that is not novel or copyrighted or patented may nonetheless be Confidential Information; provided, however, “Confidential Information” shall not include any information: that (i) is or becomes generally known to the public through sources independent of VANOC and through no fault of the Lessor; (ii) is available or becomes available to the Lessor from a third party who has a right to disclose it to the Lessor other than in the Lessor’s capacity under this Agreement; or (iii) is independently developed or acquired by the Lessor or the Lessor’s personnel other than in the (b) (c) course of performing the Work under this Agreement and without reliance in any way upon Confidential Information. 9. VANCOUVER 2010 OLYMPIC WINTER GAMES CONDITIONS 9.1 No Promotion of Relationship. The Lessor must not publicly disclose or promote its relationship with VANOC, including, by means of any verbal declarations or announcements and by means of any sales, marketing or other literature, letters, press releases, brochures, website content or other written materials without the express prior written consent of VANOC, except (i) the Lessor may include a reference to VANOC and the Work performed under this Agreement in a professional resumé, client or potential client presentation or other similar listing of the Lessor’s references without seeking VANOC’s consent in each instance, provided that such reference to VANOC and the Work is included with at least several other similar references and is given no more prominence than such other references; and (ii) as may be necessary for the Lessor to perform the Lessor’s obligations under the terms of this Agreement. The Lessor undertakes not to use “VANOC”, “Vancouver 2010”, the official emblem, logo or mascot of the Games or any other identification of VANOC, the IOC or the Canadian Olympic Committee (“COC”), as reference or means of promotion or publicity, without the express prior written consent of VANOC and the IOC. Furthermore, the Lessor undertakes not to disclose or promote its relationship with VANOC in any communication or manner whatsoever as a basis to create an association, express or implied, between the Lessor and the IOC, the Olympics or the Olympic movement. No Future Commercial Advantages. The Lessor agrees and acknowledges that: (i) nothing in this Agreement shall grant or shall be deemed to grant the Lessor any marketing, sponsorship or promotion right in connection with VANOC or the Games; (ii) nothing in this Agreement shall provide the Lessor with any right or advantage in securing any future marketing or sponsorship opportunity, and the Work performed hereunder shall not be deemed for any purpose an advance or other credit against any such future sponsorship rights fees or other fees otherwise payable to VANOC; and (iii) unless otherwise specified, nothing in this Agreement shall impose or be deemed to impose upon VANOC any obligation to engage the Lessor to lease any equipment whatsoever other than the Equipment or to perform any work whatsoever other than the Work. No License to Marks. No license or right to use any present or future logo, emblem, mark, slogan, trademarks, service marks, copyrighted works or other intellectual property of VANOC or the IOC is granted to the Lessor by this Agreement. The Lessor acknowledges that VANOC’s trademarks, service marks, copyrighted materials and other intellectual property (including any emblem, sport pictogram and mascot) are protected by trademark, copyright and other laws, and may be used only with the prior written permission of VANOC. Signage/Publicity. No form publicity, commercial installation or advertising signage will be permitted at any time at any location where Work is performed, except as determined by VANOC. If any Equipment or other property owned, leased or otherwise supplied by the Lessor is stored, installed, used or provided in a location visible to the public during the period when the Games are in progress, then at the request of VANOC, the Lessor, at its cost, shall take such temporary measures as VANOC may direct so that any name and any trademark or logo of the Lessor or any manufacturer or supplier thereof is not visible during the period of the Games, and in default of the Lessor doing so, VANOC may take such measures at the Lessor’s expense. No Endorsement. This Agreement does not constitute an endorsement by VANOC of the Lessor or of the Lessor's lease of the Equipment or performance of the Work. Ambush Marketing. In this Agreement, “Ambush Marketing” means any advertising, communications commercial identification or other activity undertaken by a person or business that is an attempt to imply a false commercial association with any Olympic and/or Paralympic entity, the Olympic Games the Paralympic Games or any event organized by an Olympic or Paralympic entity. The Lessor acknowledges that one of VANOC’s chief commercial objectives 9.2 9.3 9.4 9.5 9.6 is to prevent Ambush Marketing in connection with the Games. The Lessor shall: (i) not engage in any form of Ambush Marketing in relation to the Games; (ii) not knowingly facilitate any other party in engaging in Ambush Marketing; (iii) reasonably cooperate with VANOC in endeavors to minimize any Ambush Marketing by others; and (iv) promptly notify VANOC if the Lessor becomes aware of any Ambush Marketing activities of others. 9.7 Sustainability. The Lessor recognizes the advancement of sustainability as a key objective of VANOC in connection with the Games and, accordingly, the Lessor will use commercially reasonable efforts to comply with and facilitate any initiatives implemented by VANOC in support of its sustainability commitments. No Liability of Unrelated Parties. The Lessor acknowledges that none of the Dominion of Canada, the City of Vancouver (including without limitation its Board of Parks and Recreation), the Resort Municipality of Whistler, the City of Richmond, the Municipality of West Vancouver, the Province of British Columbia, the Canadian Paralympic Committee, the COC or the IOC, nor any department, agency, director, officer, minister, councilperson, servant, employee, agent or volunteer of any of the foregoing entities (each, an “Unrelated Party”), shall incur any financial responsibility or liability by virtue of or arising from the Unrelated Party’s relationship to VANOC as a member or, if applicable, as a venue owner or provider of capital funding except if, and then only to the extent that, they are made a party hereto or thereto. Without limiting the foregoing, for purposes of any obligation owing to the Lessor in connection with this Agreement, VANOC shall not be deemed to be a partner, joint venturer or agent of any Unrelated Party. The Lessor covenants and agrees that, as its sole and exclusive remedy for any claims, demands, actions, suits or other proceedings under this Agreement, it shall have recourse only to the assets of VANOC and not to the assets of any Unrelated Party. The Lessor, for itself and its heirs, legatees, administrators, executors, successors, agents and permitted assigns, hereby agrees and covenants to refrain from bringing or causing to be brought, any claims, demands, actions, suits or other proceedings, whether at law or in equity, or whether before a court, arbitration panel, agency board or other body, against any Unrelated Party, individually or in any combination thereof, and hereby irrevocably releases and waives any and all rights, demands, damages, claims, actions, causes of action, duties or breaches of duty, known or unknown, existing, pending, accrued or unaccrued, which the Lessor has, claims to have, or may have against any Unrelated Party by virtue of or arising from the Unrelated Party’s relationship to VANOC as a member or, if applicable, as a provider of capital funding, except if, and then only to the extent that, any such rights, demands, damages, claims, actions, causes of action, duties or breaches of duty arise from any Unrelated Party being made a party hereto or to any subsequent agreement entered into by the parties relating to the subject matter hereof. Indemnity. The Lessor shall indemnify, defend and hold harmless VANOC and its directors, officers, employees, volunteers, agents, representatives and heirs, executors, administrators and successors of each of them, from an against any ands all actions, causes of action, suits, claims, proceedings, investigations, inquiries, and demands of whatsoever nature or kind, as well as from and against any and all damages, liabilities, losses, costs, charges and expenses, including reasonable legal fees (collectively, “Losses”), resulting therefrom, that may be brought or made by whomsoever, or suffered, directly or indirectly, by reason of or in any way arising out of or in connection with: (i) any negligent act or omission or willful misconduct by the Lessor or the Lessor’s officers, directors, members, employees, volunteers, agents, affiliates, representatives and Subcontractors in connection with the performance of the Lessor’s obligations under this Agreement; (ii) any breach by the Lessor of any provision of this Agreement; (iii) any claim that the Equipment or Work infringes on an intellectual property right; (iv) any taxes payable by the Lessor under this Agreement; and (v) any alleged violation of any applicable federal, provincial or municipal laws, ordinances, rules and orders of public authorities bearing on the safety of persons or property or protection of the environment and public health by the Lessor or the Lessor’s officers, directors, members, employees, volunteers, agents, affiliates, representatives and Subcontractors in connection with the performance of the Lessor’s obligations under this Agreement. 9.8 9.9 10. GENERAL PROVISIONS 10.1 Governing Law, Venue and Jurisdiction. This Agreement is governed by and is to be construed in accordance with the laws of British Columbia and the federal laws of Canada applicable therein, without reference to principles governing choice or conflict of laws. The parties hereby consent to the jurisdiction of the courts of British Columbia. Equitable Remedies. In the event of a breach of any of the provisions of this Agreement by the Lessor, VANOC, in additional to all other rights and remedies it may have, shall be entitled to preliminary and permanent injunctive relief, including specific performance, it being acknowledged by the parties that a breach of this Agreement by the Lessor will cause irreparable injury to VANOC for which money damages alone will not provide an adequate remedy. No Consequential Damages. Notwithstanding any breach of this Agreement by either party, the party in breach shall not be liable to the other party for any lost revenue, profits or other incidental or economic consequential damages, even if advised of the possibility of such damages. Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the validity of any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision were not contained herein; provided that the Agreement as so modified preserves the basic intent of the parties. Assignment. The Lessor may not assign any benefit of this Agreement or in any manner delegate its duties or obligations hereunder to any third party without the prior written consent of VANOC, which consent may be withheld in VANOC’s sole and absolute discretion. Subject to the foregoing limitation upon assignment and delegation, this Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, agents, heirs and assigns. Waiver. The failure of either party at any time to require performance by the other party of any one or more of the provisions of this Agreement shall not affect the right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any term or provision of this Agreement be interpreted or held to be a waiver of any succeeding breach of such term or provision or as a waiver of the term or provision itself. Entire Agreement; Headings; Amendment. This Agreement, including the Schedules attached hereto (which are incorporated by reference in and form an integral part of this Agreement), constitutes the entire agreement between the parties hereto with respect to the subject matter contained herein, and there are no covenants, terms or conditions, express or implied, other than as set forth or referred to herein. This Agreement supersedes all prior agreements between the parties hereto relating to the subject matter hereof. The headings used herein are for ease of reference only and shall not define or limit the provisions hereof. No representation, oral or written, modifying or contradicting the terms of this Agreement has been made by either party except as contained herein. This Agreement may not be amended or modified except by written agreement of the parties. Survival. The rights and obligations of the parties specified in any Section or Article of this Agreement which by their nature would be reasonably be interpreted as intended by the parties to survive the expiration or termination of this Agreement shall survive such expiration or termination including, without limitation, the obligations provided for in Article 8 and Sections 6.4, 6.5, 9.1, 9.2, 9.3, 9.4 and 9.9. Notices. Where any notice, request, direction or other communication is required or permitted to be given or made by either party, it shall be in writing and is effective if delivered in person, sent 10.2 10.3 10.5 10.6 10.7 10.8 10.9 10.10 by registered mail, or sent by email addressed to the party for whom it is intended at the address or email address (as the case may be) specified below. Any notice, request, direction or other communication shall be deemed to have been given, if delivered, when delivered, if sent by registered mail, when the postal receipt is acknowledged by the other party, and if sent by email, on the day of transmittal thereof. The address and/or email address of either party may be changed by notice given in the manner set out in this Section 10.10. Lessor: _____________________________________________ _____________________________________________ _____________________________________________ Tel _________________________________ Email _________________________________ 400-3585 Graveley Street Vancouver, BC Canada V5K 5J5 Attn: [insert contact name] Tel 778/328-[insert phone number] Email: [insert email address] With a copy to VANOC Legal Dept. Attn: [insert VANOC legal contact name] Tel 778/328-[insert VANOC legal contact phone number] Email: [insert VANOC legal contact email address] VANOC: 10.11 Good Faith Effort to Resolve Disputes. The Lessor and VANOC shall use good faith efforts to agree upon any matter that requires their mutual consent pursuant to the terms of this Agreement through negotiation, and in the event such claim, dispute or other matter is not resolved through negotiation, by mediation. If a controversy or claim should arise, each party’s authorized representatives shall meet at least once to attempt to resolve the matter. Either authorized representative may request the other to meet within five (5) business days, at a mutually agreed time and place. Any subsequent mediation shall occur in Vancouver in accordance with the mediation rules of (and with the assistance a mediator appointed by) the British Columbia International Commercial Arbitration Centre. Further Assurances. Upon VANOC’s request, the Lessor shall take all action that may be necessary or that VANOC may reasonably require, including the execution and delivery of certain documents, in order to give full and proper effect to this Agreement. Execution in Counterparts. For the convenience of the parties, this Agreement may be executed in counterparts, including by facsimile or other electronic transmission, and each of such counterparts shall be deemed to constitute one and the same original document. 10.12 10.13 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. VANCOUVER ORGANIZING COMMITTEE FOR THE 2010 OLYMPIC AND PARALYMPIC WINTER GAMES Per: Authorized Representative Per: Authorized Representative [NAME OF LESSOR] Per: Authorized Representative Per: Authorized Representative SCHEDULE “A” TO AGREEMENT Description of Equipment: [DESCRIBE EACH ITEM OF EQUIPMENT, INCLUDING: (A) QUANTITY; (B) SPECIFICATIONS AND REQUIREMENTS; AND (C) CASH VALUE. IN SOME CASES IT MAY BE PREFERABLE TO CROSSREFER TO OTHER DOCUMENTS BUT IN SUCH EVENT, IDEALLY THE OTHER DOCUMENTS SHOULD BE ATTACHED TO THIS AGREEMENT.] Delivery Date: [DESIGNATE DELIVERY DATE FOR EACH ITEM OF EQUIPMENT.] Delivery Location: [DESCRIBE DELIVERY LOCATION FOR EACH ITEM OF EQUIPMENT.] Removal Date: [DESIGNATE REMOVAL DATE FOR EACH ITEM OF EQUIPMENT.] Description of Work: [PER SECTION 1.1 OF THE AGREEMENT, THE LESSOR IS RESONSIBLE FOR THE DELIVERY AND REMOVAL OF THE EQUIPMENT. HERE ANY OTHER WORK OR SERVICES TO BE PERFORMED BY THE LESSOR SHOULD BE SPECIFIED, FOR EXAMPLE: (A) ANY REQUIRED PROCUREMENT, (B) MOVING OF THE EQUIPMENT, IF FOR EXAMPLE THE EQUIPMENT NEEDS TO BE MOVED FROM THE DELIVERY LOCATION TO OTHER LOCATIONS, (C) ANY INSTALLATION REQUIRED AND (IF SO) SPECIFY ANY SPECIFICATIONS FOR INSTALLATION, (D) ANY TRAINING, (E) ANY MAINTENANCE AND SUPPORT SERVICES, AND (F) ANY STORAGE.] VANOC Representative: [INSERT NAME OF VANOC CONTACT(S) WHO WILL BE THE PRIMARY REPRESENTATIVE(S) IN CONNECTION WITH LESSOR’S PERFORMANCE OF THE WORK.] Other Terms and Requirements: [DESCRIBE ANY OTHER TERMS AND REQUIREMENTS RELATED TO THE EQUIPMENT THAT ARE NOT ALREADY IN THE AGREEMENT OR IN THIS SCHEDULE “A”. IF APPLICABLE, INCORPORATE OTHER DOCUMENTS BY REFERENCE.] SCHEDULE “B” TO AGREEMENT Rent: The rent for each item of Equipment (and related Work) for the entire Term is as follows: [INSERT THE TOTAL RENT (i.e. FOR THE ENTIRE TERM) FOR EACH ITEM OF EQUIPMENT.] Payment Terms: [MODIFY AS NECESSARY.] Rent shall be payable in equal monthly installments. On, or as soon as possible following, the first day of each calendar month, the Lessor shall prepare and submit to VANOC an invoice detailing the monthly Rent installment owing in respect of such calendar month. Invoices should be on the Lessor’s letterhead and should be addressed to: [INSERT RELEVANT VANOC CONTACT DETAILS] Invoices must be fully substantiated and must include the following information: • • • • • • Project Name and Contract Number (if applicable) Invoice Period Total Invoiced to Date Current Invoice Total Rent Remaining Description of relevant Equipment and Work covered by Invoice Provided that an invoice complies with the foregoing, VANOC shall pay to the Lessor the amount specified in such invoice within thirty (30) days after receipt from the Lessor of such invoice. VANOC shall make payments to the Lessor by either electronic payments (in accordance with the bank account details provided in writing by the Lessor) or cheque payments. If an invoice is not complete or otherwise does not comply with the foregoing, VANOC may (in its sole discretion) return such invoice to the Lessor for completion/correction and resubmission, and in such event the thirty (30) day period for payment by VANOC does not commence until the receipt by VANOC of such resubmitted invoice. VANOC will not be liable to pay any amount (whether invoiced or not) in respect of any item of Equipment (and related Work) which exceeds the Rent for such Equipment (and related Work), as specified in this Schedule “B”.] The final invoice must be clearly identified as “Final Invoice”. SCHEDULE “C” TO AGREEMENT Insurance Requirements: Lessor shall provide, maintain and pay for, and cause all Subcontractors to provide, maintain and pay for, the following insurance coverage: • “all risks” equipment insurance covering the Equipment and any owned and non-owned machinery and equipment used in the performance of the Work in an amount sufficient to allow for immediate replacement; vehicle liability insurance with respect to owned and leased vehicles used, if applicable, directly or indirectly in the performance of the Work, covering liability for bodily injury, death and damage to property with a limit of not less than $2,000,000 inclusive for each and every loss; commercial general liability insurance providing third party bodily injury and property damage coverage in an amount of not less than $5,000,000 per occurrence, including the requirement that VANOC be named as an additional insured party, containing a cross liability and/or severability of interest clause protecting each insured to the same extent as if they were separately insured, and containing non-owned automobile liability and contractual liability coverage; workers’ compensation coverage for its employees; other (please specify): [SPECIFY ANY ADDITIONAL INSURANCE REQUIRED, IF APPLICABLE (E.G. IF A PROFESSIONAL (INCLUDING AN ENGINEER) IS INVOLVED, PROFESSIONAL LIABILITY INSURANCE WITH A LIMIT OF NOT LESS THAN $2 MILLION PER CLAIM AND ANNUAL AGGREGATE). IF NO ADDITIONAL INSURANCE IS REQUIRED, PUT ‘N/A’.] • • • • Lessor must provide written proof of such insurance coverage upon the written request of VANOC.