PROPOSAL FOR STRATEGIC CONSULTING SERVICESCAAICON
STRATEGIC ADVISORY
June 16, 2023 (Revised)
Via Email
Art Kader
Director Parks & Recreation
City of Clearwater Florida
Email: art.kader@myclearwater.com
Re: Proposal for Strategic Consulting Services
Dear Art:
CAA ICON is pleased to present this proposal to the City of Clearwater Florida ("City" or "Client") to
provide consulting services in connection with the City's ongoing negotiations with the Major
League Baseball ("MLB") Philadelphia Phillies for the renovation and use of BayCare Ballpark and
the Carpenter Complex ("Project").
This proposal, which includes the terms and conditions in the attached Exhibit A (collectively, this
"Letter") describes our scope of services and sets forth our obligations to each other to allow the
Project to move forward in an efficient and expeditious manner. By executing this Letter, Client
expressly acknowledges and agrees that CAA ICON's Reports are for Client's internal use only and
may not be used for financing, investment, or marketing purposes.
SCOPE OF SERVICES
Based on our understanding of your needs, we are proposing our scope of services (collectively,
the "Services") in a phased approach as set forth below.
In order to complete the Services, we expect initially to complete a number of key due diligence
tasks to better understand your specific situation. Such tasks allow our team to establish the
foundation for the Project to move forward in an efficient manner.
1. Kickoff meeting/conference call
2. Develop understanding of background/history
3. Meet with key representatives and advisors
4. Identify goals and objectives
5. Identify key stakeholders
6. Determine preliminary schedule
7. Define roles and expectations
8. Establish communication guidelines
9. Prepare data request
10. Review key documents
Phase 1: Negotiation Strategy Development ("Phase 1")
Successful consulting in the sports and entertainment industry requires in-depth knowledge and
extensive experience in a broad range of a highly specialized and complex areas. Sports and
entertainment consulting encompasses not only diverse organizational and technical issues, but
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Manhattan Beach, CA 90266
310.802.8775
www.caaicon.com
CAAICON
also many projects must be performed under public scrutiny in a complex marketing, financial,
political, and statutory environment.
Building upon our years of experience, we will collaborate with the City to prepare, plan, and
execute a negotiation strategy. Key to building the negotiation strategy are a number of tangible
and intangible factors including:
1. Key Considerations
a. Financial considerations
b. Financing considerations
c. Operating considerations
d. Capital repair considerations
e. Timing considerations
f. Political considerations
2. Parameters of agreement terms
a. Alignment with goals
b. Risks and opportunities
3. Key stakeholder goals/objectives and alternatives
Phase 2: Deal Structure/Lease Analysis ("Phase 2")
CAA ICON will provide detailed deal structure/lease analysis comparison for MLB teams/spring
training facilities. The analysis will provide independent, objective support during negotiations. The
analysis seeks to answer the following high-level questions:
1. How does the proposed deal compare to other MLB spring training deals?
2. Will the proposed deal represent an above -market deal, below-market deal, or market rate
deal?
3. How will the deal impact short-term and long-term team and ballpark economics from a
comparative/competitive perspective?
CAA ICON will prepare a comprehensive review and evaluation of comparable spring training deal
structures and leases, and will provide case studies for each transaction that will include
development overviews, sources/uses of funds (including a breakdown of public vs. private
investment), lease summaries, etc. The analysis will attempt to isolate all the relevant deal points
and lease terms to allow for accurate and meaningful comparisons. CAA ICON will attempt to
identify the material lease components and account for other significant costs of occupancy (e.g.
direct and indirect equity/debt contributions).
CAA ICON's analysis is based on identifying the respective team's total occupancy costs as a
percentage of estimated facility revenues, gross gate receipts, and net gate receipts, among other
measurements. Examples of occupancy costs include:
1. Rental payments and taxes
a. Base rent/additional rent/percentage rent
b. Ticket sales tax/ticket surcharges/admissions taxes
2. Revenue sharing with public sector partner(s)
a. Luxury suites/club level seats/loge boxes/private club
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b. Concessions/novelties
c. Naming rights/advertising/sponsorships
d. Parking (and parking surcharges)
e. Other
3. Expenses
a. Gameday operating expenses
b. Facility operating expenses
c. Facility capital expenses
d. Other
4. Up -front team equity/debt investment (effectively pre -paid rent)
5. Vendor/concessionaire investment
6. Miscellaneous/other
a. Rent rebate/ticket guarantee
CAA ICON will develop an equivalent performance analysis for MLB spring training deal structures
and leases. The equivalent performance analysis approach attempts to isolate the deal points and
lease terms to better understand their impact on the team. Performance measures such as
attendance, average ticket price, sponsorship revenue, etc. are held constant, while facility
attributes such as capacity, number of luxury suites, number of club seats, number of parking
stalls, etc. reflect actual characteristics.
The output is a summary of findings and comment(s) on how the deal structure compares to other
relevant MLB spring training deals.
Phase 3: Negotiation Advisory and Support ("Phase 3")
We are recognized for our independence and objectivity. We have no pre -determined position on
the course of action that should be taken. Our support through the engagement will be independent
and impartial, and our primary goal is to provide accurate data to the City and its constituents.
Through the negotiation with counterparties, CAA ICON will provide support services to include:
1. Deal structure advisory
a. Advise on comparability with other spring training venues
b. Bring creative thinking to deal negotiations based on past experience and specific
needs of the City and key stakeholders
c. As necessary, present findings to key stakeholders
2. Lead negotiations with counterparties
a. Work with City resources to analyze and evaluate key negotiation terms
3. Identify issues and concerns
a. Develop risk mitigation strategies
4. Evaluate financial impacts of key negotiating terms and support the City in its financial
analyses, as necessary and appropriate:
a. Research, prepare, plan, and model potential outcomes in advance of each
conversation/negotiation with counterparties.
b. Provide multi -variable scenarios for each stage of the negotiation, with a qualitative
and quantitative assessment of each.
c. Provide an assessment of market rate deal structure/lease terms
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5. Develop, review, and validate the financial analysis as needed for all the potential related
scenarios. Consideration of alternative approaches
a. Gather and present comprehensive data on alternative options
6. Support go/no go decision
a. Submit all proposals/counterproposals with support from the City
b. Resolve and clarify all outstanding issues for each variable
Phase 4: Document Execution Support ("Phase 4")
With the consultation and coordination of external legal counsel, CAA ICON will support the City
and its outside counsel in development of definitive documents through execution. This process
includes:
1. Support the preparation of key definitive documents by the City and its external legal
counsel:
a. Letter of intent/memorandum of understanding/term sheet
b. Definitive agreements
c. Other documents, as appropriate
2. During negotiations, assist the City and external legal counsel in reviewing and responding
to proposals by the other parties
3. When documents are ready for execution, assist the City and external legal counsel in
briefing key stakeholders when documents are reviewed and considered for approval
SCHEDULE
Due to the nature of the Project, certain tasks may be completed quickly, while others may only be
completed after an extended period of time due to reliance on the interest, activities, and
performance of other parties. For this reason, we are not able to provide a detailed timeline of the
tasks described in the Services at this time.
BUSINESS ARRANGEMENTS
The fees for professional services of this nature are difficult to estimate due to the uncertainty of the
final scope of services associated with the Project. We will perform the work described in the
Services for $35,000 per month for a minimum of three months ($105,000 in total professional fees),
plus Reimbursable Expenses (as defined in Paragraph 2 of the Terms and Conditions). At the end of
the initial three month period, we will continue the work described in the Services on a month-to-
month basis at $35,000 per month, or at a mutually agreeable rate, for up to an additional three
months. At that time, we will discuss further business arrangements, if necessary, and reach a
mutually agreeable approach moving forward.
Notwithstanding anything to the contrary contained in this Letter, Services shall not commence, nor
the Client's obligation to pay for such Services as provided above, until that date that is the earlier
of (a) the date a kick-off meeting is had between CAA ICON and the Phillies, or (b) the date a
kick-off meeting is had between CAA ICON and the staff of the City of Clearwater.
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Your countersignature below shall signify your agreement to engage CAA ICON under the terms
and conditions outlined in this Letter, including, without limitation, the Terms and Conditions
outlined in Exhibit A (attached). As such, the date upon which you countersign this Letter as
indicated below will be the "Effective Date" under this Letter.
We greatly appreciate the opportunity to be of service and assistance to you in this very exciting
Project. If you have any questions or comments, please feel free to reach out directly.
Sincerely,
ICON VENUE GROUP, LLC d/b/a CAA ICON
By:
Name: Dan Barrett
Title: President
Attachments - Exhibit A: Terms and Conditions
ACKNOWLEDGEMENT OF RECEIPT AND AGREEMENT WITH THE TERMS AND CONDITIONS
OF THIS LETTER (INCLUDING THOSE ATTACHED HERETO AS EXHIBIT A):
CITY OF CLEARWATER FLORIDA
By:
Name:
Title:
Date:
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Countersigned:
Bri-n J. A
Mayor
CITY OF CLEARWATER, FLORIDA
By:
Approved as to form: Attest:
Sti/ //ti
David Margolis
City Attorney
eni'(ifer Poirrier
City Manager
Rosemarie Call
City Clerk
CAAICON
STRATEGIC ADVISORY
Exhibit A
Terms and Conditions
ICON Venue Group, LLC, d/b/a CAA ICON ("CAA ICON") will perform the Services set forth in this
Letter, of which these terms and conditions (the "Terms and Conditions") are a part, subject to the
following:
1. Term; Termination. The term of this Letter (the "Term") shall commence as of the Effective
Date of this Letter and continue until the earlier of (a) that date CM ICON has performed the
Services, or (b) or ten months after the Effective Date, unless otherwise modified or terminated
in accordance with the terms of this Letter. Either party may terminate this Letter for any or no
reason upon 30 days written notice to the other. In the event of a termination under this
Paragraph 1, CAA ICON shall be entitled to payment for the Services performed and
Reimbursable Expenses incurred that remain unpaid as of the effective date of termination
(including Services performed and Reimbursable Expenses incurred but not yet invoiced).
2. Reimbursable Expenses. Client will reimburse CAA ICON for all reasonable expenses incurred
including, without limitation, travel and subsistence of our staff, copies, postage, publications,
specialized reports, maps, survey web -hosting (if any), survey panels (if any), econometric
models, demographic database report allocation (which is a one-time expense of $750), and
administrative and overhead expenses of $150 per month (collectively, "Reimbursable
Expenses"). Reimbursable Expenses may also include the cost of any Specialty Consultants or
special expenditures made with the prior approval of, or at the specific request of, Client.
3. Payment Terms. CAA ICON will submit to Client a monthly invoice for the professional fees
due for that month, as well as for any Reimbursable Expenses incurred during the previous
month. Payment in full will be due within 30 days after receipt of each such invoice. Amounts
not paid within 30 days accrue an interest charge of one percent per month.
4. Information and Data; Independence; Disclaimers.
a. The written reports (including the Final Report), recommendations, analyses, and
conclusions, whether complete, incomplete, in final or draft form, provided by CAA ICON
(collectively, "Reports"; each, a "Report") may include estimates of annual operating results
based upon courses of action that the Client expects to take prior to and during the period
under analysis. Client is solely responsible for representations about its plans and
expectations, and for the disclosure of information that might affect the estimated results.
Client acknowledges that CAA ICON will provide an independent evaluation, and Client
agrees to not attempt to influence or otherwise affect the independence of CAA ICON's
Services. Client further understands and agrees that (i) CAA ICON makes no
assurances or guarantees of market demand, recommendations or subsequent
outcomes (nor have the same been made or are a condition of this Letter), (ii) any plot
plans, sketches, drawings or other exhibits included in the Reports, if any, are
included only to assist the reader in visualizing the Assets (as defined below), and (iii)
CAA ICON disclaims all responsibility for any survey (including the results thereof).
b. CAA ICON's Services may include providing advice or recommendations to the Client;
however, implementation (or lack thereof) of any such advice or recommendations is the
Client's sole responsibility. CAA ICON disclaims all responsibility for decisions made by
the Client relating to CAA ICON's Services.
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1219 Morningside Drive, Suite 101
Manhattan Beach, CA 90266
310.802.8775
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CAAICON
c. Any projections of future sales, rents, revenues, expenses, net operating income, mortgage
debt service, capital outlays, cash flows, inflation, capitalization rates, yield rates or interest
rates are intended solely for analytical purposes and are not to be construed as predictions
of CAA ICON. They represent only the judgment of the authors as to the assumptions likely
to be used by purchasers and sellers active in the market place, and their accuracy is in no
way guaranteed.
d. To the extent any Reports contains value estimates, asset values are influenced by a large
number of external factors. The information contained in the Reports comprises the
pertinent data considered necessary to support the value estimate. Client acknowledges
and agrees that CAA ICON does not guarantee that CAA ICON has knowledge of all factors
that might influence the value of the subject property. Due to rapid changes in external
factors, the value estimate is considered reliable only as of the effective date of the
appraisal.
e. CAA ICON is entitled to rely on, without independent verification, the accuracy of all
information and data provided to CAA ICON by or on behalf of Client. All information and
data to be supplied will be complete and accurate to the best of the Client's knowledge.
CAA ICON disclaims all responsibility for, and provides no assurance regarding, the
accuracy of any such information or data. CAA ICON further disclaims all
responsibility for any assumptions made or provided by the Client, which assumptions
are the Client's sole responsibility. Additionally, to the extent that the Services
includes assets, properties or business interests (collectively, the "Assets"),
CAA ICON is entitled to make the following assumptions regarding any such Assets,
and disclaims all responsibility for such assumptions:
i. Title is good and marketable, and the Assets are free and clear of any and all
security interests, encroachments, liens or other encumbrances, and the
rightful claim of any third person by way of infringement (including, without
limitation, patent, trademark, trade dress, and copyright infringement);
ii. The Assets are full compliance with all applicable federal, state, local and
national regulations and laws (including, without limitation, zoning regulations),
and all required licenses, certificates of occupancy, consents, or legislative or
administrative authority from any federal, state, local or national government,
private entity or organization have been or can be obtained or renewed for any
use on which CAA ICON's Services are to be based;
iii. The Assets and any surrounding property are free of adverse soil conditions,
as well as any hazardous or contaminated substances (including, without
limitation, asbestos, PCB transformers, or other toxic materials, or
underground storage tanks). For clarity, the costs of removing, mitigating or
remediating any of the foregoing is not included in any Report; and
iv. The Assets are responsibly owned and competently managed.
5. Specialty Consultants. If Client requires specialized consulting services that are outside the
scope of CAA ICON's Services, CAA ICON shall recommend the hiring of, and advise Client
with respect to the selection of, appropriate third -party consultants for specialized Project
related services (the "Specialty Consultants"). Unless otherwise agreed to in writing by
CAA ICON and Client, Client shall contract directly with all such Specialty Consultants.
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CAA ICON disclaims any and all liability for the acts or omissions of the Specialty
Consultants.
6. Unseen Conditions. CAA ICON's Services are based only upon the readily observable
conditions of the Project site or any facilities located on the Project site. CAA ICON will make no
analysis, review, or study into subsurface conditions, structural conditions, contaminated or
hazardous waste conditions (if any exist), or unseen or unforeseen conditions. CAA ICON's
Services shall further not take into consideration the possibility of the existence of any
hazardous or contaminated substances in or around the Assets (including, without limitation,
asbestos, PCB transformers, or other toxic, or underground storage tanks), or the cost of their
removal. By executing this Letter, Client acknowledges and agrees that CAA ICON is not
qualified to detect, and shall not be responsible for detecting, any such hazardous or
contaminated substances.
7. Reports: Services Not Included. The Reports are valid only when presented in their entirety
and only for the purpose stated therein. All partially completed Reports or drafts presented to
Client are for internal review only and are not otherwise valid. Client acknowledges and agrees
that (a) the Reports do not, in whole or in part, constitute a fairness or solvency opinion and (b)
CAA ICON will not perform any review, audit or other attestation procedures with respect to
financial information as defined by the American Institute of Certified Public Accountants and
will not issue any opinion, report or other form of assurance with respect to any financial
information. Client acknowledges that there may be differences between the estimated and
actual results because events and circumstances frequently do not occur as expected, and
those differences may be material. Should the Client have any concerns with regard to the
estimates, CAA ICON and the Client will discuss those concerns before the Final Report is
issued.
The Reports are intended for internal use only and may not be used, in whole or in part, in
any financing, investment, or marketing purposes or documents.
Furthermore, CAA ICON is not acting as an architect, a general contractor, insurance advisor,
nor an attorney or other legal representative in connection with the Project or in the
performance of Services hereunder. Notwithstanding anything to the contrary contained in the
Terms and Conditions, this Letter, or the exhibits thereto, CAA ICON is not responsible to Client
for actual architectural work or design, construction means, methods, techniques, sequences or
procedures, or for safety precautions and programs in connection with the Project, although
CAA ICON may advise and consult with Client with respect thereto. Client agrees that all of
CAA ICON's consultations with and recommendations to Client with respect to design
decisions shall be made to assist Client in evaluating alternatives from the Client's perspective
and interest (including, without limitation, alternatives with respect to value engineering) and are
not to be considered a design evaluation of the soundness or effectiveness of any particular
design approach. Client acknowledges and agrees that CAA ICON is not liable for any acts
or omissions of any architect, general contractor, insurance advisor, any attorney or other
legal representative, Specialty Consultant, nor any associated professionals and
consultants.
Client further agrees that CAA ICON will be compensated for any time and expenses (including,
without limitation, legal fees and expenses) that CAA ICON may incur in considering or
responding to discovery requests or other requests for documents or information, or in
participating as a witness or otherwise in any legal, regulatory, or other proceedings, including,
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without limitation, those other than in this matter, as a result of CAA ICON's performance of the
Services.
8. Confidentiality. CAA ICON will preserve the confidential nature of information received from the
Client in accordance with CAA ICON's established policies and practices. For clarity,
confidential information shall not include information that: (i) has become a matter of public
knowledge through no fault, action or omission of or by CAA ICON; (ii) was rightfully in
CAA ICON's possession prior to disclosure by Client; (iii) subsequent to disclosure by Client,
was rightfully obtained by CAA ICON from a third party who was lawfully in possession of such
confidential information without restriction and was authorized to disclose such information; (iv)
was independently developed by CAA ICON without resort to the confidential information; or (v)
must be disclosed by CAA ICON pursuant to law, judicial order or any applicable regulation,
provided that CAA ICON provides Client with prior written notice of such requirement to
disclose (if permitted) and provided further that CAA ICON only disclose those specific items
required to be disclosed pursuant to such requirement. The Client agrees not to reference
CAA ICON's name or any of the Reports or other documents prepared by CAA ICON, in whole
or in part, in any document distributed to third parties without CAA ICON's prior written
consent. The Client further agrees that any of the Reports or other documents prepared by
CAA ICON: (1) shall be deemed to be confidential; (2) shall not be disclosed to third parties
(except to Client's employees, directors, officers, accountants, attorneys, or other agents or
representatives having the need to know and have been made aware of the confidential nature
of such information, or except as otherwise provided in this Paragraph 8); and (3) shall be used
only in compliance with the Terms and Conditions and applicable laws and regulations. The
Client also agrees to keep confidential and not reference this Letter without prior written
consent of CAA ICON. CM ICON's obligation of confidentiality under this Paragraph 8 shall
survive this Letter for a period of three years from the date of its termination or expiration and
thereafter shall terminate and be of no further force or effect. Notwithstanding anything to the
contrary in this Letter, CAA ICON will be entitled to (a) retain copies of confidential information
preserved or recorded in any computerized data storage device or component or saved
automatically to standard back-up or archival systems, and (b) retain copies of confidential
information to the extent required by law, regulation or normal document retention policies;
provided that for so long as CAA ICON retains any confidential information, it shall employ
reasonable security measures and shall exercise reasonable care in protecting the
confidentiality of such information as it does protecting its own information similarly recorded or
saved.
9. Property: Background IP. Upon CAA ICON's receipt of all amounts properly due and payable,
the final Report produced by CAA ICON (the "Final Report") shall become the property of the
Client and may be used by the Client, subject to the limitations of this Letter; provided,
however, Client acknowledges and agrees that it shall have no ownership, title, or other rights
to any other Reports, except for a limited license to the extent necessary to review such
Reports. CAA ICON shall be able to retain copies of the Reports and may use the Reports for
any ordinary business purpose. Notwithstanding the foregoing, Client acknowledges and
agrees that Client shall have no ownership, title, license, or other rights to any intellectual
property (including, without limitation, copyrights, patents, trademarks, trade secrets, know-
how, and other proprietary rights) that was either (a) owned, controlled, or developed by
CAA ICON on or before the Effective Date of this Letter, or (b) was created by CAA ICON
outside the scope of the Services hereunder (the "Background IP"), even if the Background IP
was used in developing any Report and regardless of whether the Background IP has been
registered with the appropriate governing body having jurisdiction, is protected under common
law, has been reduced to practice, has been perfected, or otherwise. To the extent that
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CAA ICON utilizes any of its property (including, without limitation, Excel models, proprietary
databases, proprietary information, any hardware or software) in connection with its Services,
such property shall remain the property of CAA ICON, and the Client shall not acquire any right,
title, license, or other interest in such property. CAA ICON shall have ownership (including,
without limitation, copyright ownership) and all rights to use and disclose its ideas, concepts,
know-how, methods, techniques, processes and skills, and adaptations thereof (including,
without limitation, generalized features of the sequence, structure and organization of any
works of authorship) in conducting its business, and the Client shall not assert or cause to be
asserted against CAA ICON or its personnel any prohibition or restraint from so doing. The
provisions of this Paragraph 9 shall survive the expiration or termination of this Letter.
10. Representations and Warranties: Limitation on Warranties. This is a professional services
agreement. CAA ICON shall provide the Services in good faith consistent with the degree of
skill and care, and to the professional standards ordinarily exercised by professionals, acting
diligently, in providing similar services for projects of comparable size, complexity, schedule,
and other characteristics of the Project. Each party represents and warrants to the other party
that: (i) it has the full corporate right, power and authority to enter into this Letter, and to
perform the acts required of it hereunder; (ii) the execution of this Letter by it and the
performance of its obligations and duties hereunder, do not and will not violate any agreement
to which it is a party or by which it is otherwise bound; and (iii) when executed and delivered,
this Letter will constitute the legal, valid and binding obligation of each party, enforceable
against each party in accordance with its terms, and that no further corporate action is required
to bind it to, or effectuate the terms and condition of, this Letter. CAA ICON disclaims all other
representations and warranties, whether express, implied or otherwise, including, without
limitation, warranties of merchantability and fitness for a particular purpose. Client
represents and warrants that it owns or otherwise has sufficient title, license or rights to permit
CAA ICON to utilize all information, data, and other materials provided to CAA ICON by or on
behalf of Client.
11. Indemnification. Client agrees to defend, indemnify and hold harmless CAA ICON, its
parent, affiliate and subsidiary companies, and their respective owners, officers,
members, managers, directors, agents, and employees (collectively, the "Indemnitees")
from and against any causes of action, investigations, damages, claims, losses, liabilities,
costs, and expenses (including reasonable attorneys' fees and court costs) of any nature,
kind, or description (collectively, "Losses") that may be asserted, brought against, paid or
incurred by any Indemnitee at any time in any way arising out of or relating to the
Services, except to the extent it is finally judicially determined that such Losses have
resulted from the intentional misconduct of CAA ICON.
The provisions of this Paragraph 11 shall apply regardless of the form of action, whether
in contract, statute, tort (including, without limitation, negligence), or otherwise, and shall
survive the expiration or termination of this Letter.
12. Limitation on Damages: Waiver of Consequential Damages. CAA ICON shall not be liable
for any Losses in any way arising out of or relating to this Letter for an aggregate amount
in excess of the professional fees paid by the Client to CAA ICON for its Services.
In no event shall either party, including its members, principals, or employees, be liable
for any consequential, special, indirect, incidental, punitive, or exemplary loss, damage,
cost, or expense (including, without limitation, lost profits and opportunity costs). The
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foregoing limitation shall not extend or be construed to extend beyond the scope of this
Letter.
The provisions of this Paragraph 12 shall apply regardless of the form of action, whether
in contract, statute, tort (including, without limitation, negligence), or otherwise, and shall
survive the expiration or termination of this Letter.
13. Non -Recourse. In no event and under no circumstances shall CAA ICON's members,
affiliated or subsidiary organizations and entities, or any of their respective owners,
directors, officers, agents, employees, members, trustees, volunteers, representatives,
partners, or shareholders have any personal obligation or liability for any of the terms,
covenants, agreements, undertakings, representations or warranties contained in this
Letter. In the case of a default hereunder by CAA ICON, the Client and all persons
claiming by, through, or under the Client, shall look solely to CAA ICON, CAA ICON's
insurance, and any other assets of any nature whatsoever of CAA ICON, but not of such
other entities or persons. The provisions of this Paragraph 13 shall apply regardless of the
form of action, whether in contract, statute, tort (including, without limitation, negligence),
or otherwise, and shall survive the expiration or termination of this Letter.
14. Subsequent Work; Non -Exclusivity. CAA ICON, by reason of the performance of its Services,
is not required to furnish additional work or services, to give testimony, or to be in attendance in
court with reference to the assets, properties, or business interests in question. CAA ICON will
have no responsibility to update any Reports or other document relating to its Services for any
events or circumstances occurring subsequent to the date of such Report or other document.
Nothing in this Letter shall be construed as precluding or limiting in any way the right of
CAA ICON to provide consulting or other services of any kind or nature whatsoever to any
person or entity as CAA ICON in its sole discretion deems appropriate.
15. Force Majeure. CAA ICON shall not be liable for any delays or failures to perform its Services
resulting from circumstances or causes beyond its reasonable control, including, without
limitation, fire or other casualty, act of God, pandemic, epidemic, strike or labor dispute, war, or
other violence, or any law, order, or requirement of any governmental agency or authority.
16. Independent Contractor; No Third -Party Beneficiaries. CAA ICON is an independent
contractor, and CAA ICON's compensation is not contingent in any way upon its conclusions or
recommendations. CAA ICON reserves the right to use subcontractors, as necessary.
CAA ICON is and shall be deemed to be an independent contractor of Client, and nothing
contained herein shall be deemed to constitute a partnership between or a joint venture by the
parties, or cause either party to be deemed the employee or agent of the other. CAA ICON's
compensation is not contingent in any way upon the substance of its conclusions or
recommendations. CAA ICON acknowledges that nothing in this Letter gives CAA ICON the
right to bind or commit Client to any agreements with any third parties. This Letter is not
entered into for the benefit of any third party and shall not be deemed to give any right or
remedy to any such party regardless of whether it is referred to herein.
17. Complete Agreement; Assignment. This Letter constitutes the entire agreement between the
Client and CAA ICON, and supersedes all other oral or written representations, understandings,
and agreements between the Client and CAA ICON. This Letter cannot be changed, except by
written instrument signed by both the Client and CAA ICON. In the event of any conflict or
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inconsistency between the provisions set forth in this Letter and the Terms and Conditions, the
provisions of the Terms and Conditions shall govern. This Letter shall be binding on the Client
and CAA ICON, and their respective permitted successors and assigns; however, neither the
Client nor CAA ICON may assign this Letter without the prior written consent of the other,
except that the Client and CAA ICON may assign this Letter to any successor to all or
substantially all of the business or assets of such party, or to any entity controlling or controlled
by or under common control with such party. As used in this Paragraph, the term "control,"
"controlling," or "controlled by" shall mean the possession, directly or indirectly, of the power
either to (a) vote ten percent or more of the securities or interests having ordinary voting power
for the election of directors (or other comparable controlling body) of such entity or (b) direct or
cause the direction of management or policies of such entity, whether through the ownership of
voting securities or interests, by contract or otherwise, excluding in each case, any lender of
such entity or any affiliate of such lender.
18. Counterparts. This Letter may be executed in one or more counterparts and transmitted
electronically (PDF acceptable) each of which when executed shall be deemed to be the
original, but all of which taken together shall constitute one and the same agreement.
19. Consent and Good Faith Dealings; Cooperation. The parties hereby covenant, each to the
other, that each will deal with the other equitably, and will take into account the reasonable
commercial expectation of the other in the exercise of rights and obligations hereunder. When
consent or approval is requested for any action, the party from whom approval is sought shall
give full and fair consideration to the financial and operational issues raised by the other party
and shall act in a fair, timely and non -capricious manner. Unless otherwise indicated specifically
in this Letter, consent and approvals shall not be unreasonably withheld, delayed, or
conditioned. Client shall cooperate with CAA ICON in connection with the performance by
CAA ICON of its Services, including providing CAA ICON with reasonable and timely access to
the Client's information, data, and personnel.
20. Governing Law; Venue; Waiver of Jury Trial. This Letter shall be governed by and construed
under the laws of the jurisdiction in which the Project is located, exclusive of its provisions on
conflicts of laws. The parties understand and agree that any dispute arising under this Letter will
be brought only in the state or federal court encompassing the Project site location. The parties
consent to the exclusive personal jurisdiction and venue being laid therein. The parties waive
their right to a trial by jury.
21. Survival. The rights, duties and obligations of the parties to this Letter that imply performance
under this Letter beyond its termination or expiration, including but not limited to any and all
indemnity and confidentiality provisions, shall survive the termination or expiration of this Letter.
22. Non -Solicitation. During the Term of this Letter and for a period of two years thereafter, Client
shall not, without CAA ICON's prior written consent, directly or indirect, (i) solicit or encourage
any person to leave the employment or other service of CAA ICON, (ii) hire, employ, or
otherwise engage, on behalf of Client, any of its affiliates, or any other person or entity, any
person employed by CAA ICON at the time of the termination or expiration of this Letter, or (iii)
otherwise interfere with relationships between CAA ICON and such employee.
23. Severability. In the event that a court of competent jurisdiction finds any term or clause in this
Letter to be invalid, unenforceable, or illegal, the same will not have an impact on other terms
or clauses in this Letter or the entire Letter. However, such a term or clause may be revised to
the extent required according to the opinion of the court to render this Letter enforceable or
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valid, and the rights and responsibilities of the parties shall be interpreted and enforced
accordingly, so as to preserve their agreement and intent to the fullest possible extent.
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