National_Zoological_Park_Central_Parking_Facility_Parking_Concession_Agr..__(007).docx

Draft 5-3-18

NATIONAL ZOOLOGICAL PARK

CENTRAL PARKING FACILITY

CONCESSION AGREEMENT

BY AND BETWEEN

THE SMITHSONIAN INSTITUTION

AND

[DEVELOPER]

Note: This draft Agreement is not binding on the Smithsonian, and the Smithsonian reserves the right to request any additional or differing terms based upon the Smithsonian’s further review of this draft Agreement and feedback received from Proposers during the RFP Process.

4832-4774-2548.6 4832-4774-2548.6

ARTICLE 1

DEFINITIONS 2

ARTICLE 2

CONDITIONS PRECEDENT; RESPONSIBILITIES PRIOR TO EFFECTIVE DATE

ARTICLE 3

GRANT AND ACCEPTANCE OF RIGHTS; TERM

ARTICLE 4

DEVELOPER RESPONSIBILITies

ARTICLE 5

DESIGN AND CONSTRUCTION

ARTICLE 6

OPERATIONS AND MAINTENANCE

ARTICLE 7

CONCESSION PAYMENTS

ARTICLE 8

fees, accounts, distributions, and COMPENSATION EVENTS

ARTICLE 9

ASSIGNMENT and tRANSFER

ARTICLE 10

REPORTING REQUIREMENTS

ARTICLE 11

EVENTS OF DEFAULT, REMEDIES, termination, and termination compensation

ARTICLE 12

RISK OF LOSS, DAMAGE, AND INSURANCE

ARTICLE 13

liability; indemnification

ARTICLE 14

REPRESENTATIONS AND WARRANTIES

ARTICLE 15

PROJECT FINANCING

ARTICLE 16

RESOLUTION OF DISPUTES

ARTICLE 17

NOTICES 91

ARTICLE 18

HANDOVER at end of term

ARTICLE 19

MISCELLANEOUS PROVISIONS

Exhibit List

Table of Contents

Page

Table of Contents (continued) Page

Form of Equity Member Certificates Exhibit T-1 and Exhibit T-2 vii

NATIONAL ZOOLOGICAL PARK CENTRAL PARKING FACILITY

CONCESSION AGREEMENT

BY AND BETWEEN

THE SMITHSONIAN INSTITUTION

AND

[DEVELOPER]

THIS NATIONAL ZOOLOGICAL PARK CENTRAL PARKING FACILITY CONCESSION AGREEMENT (the “Agreement”) is made as of the ________ day of _________________, 2018 (the “Execution Date”) between the Smithsonian Institution (“Smithsonian”), a trust instrumentality of the United States, and the Developer, as defined herein.

NOW, THEREFORE, for and in consideration of the mutual covenants, representations, warranties, and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows:

DEFINITIONS

Unless otherwise specified or the context otherwise requires, for the purposes of this Agreement, the following terms have the following meanings:

“Acceptance Letter” has the meaning set forth in Section 5.20.2.

“Affected Floating Concession Fees” means each of the Floating Concession Fees set forth in the chart in Section 7.2.2 for the years in which the Lender Agreement is in effect.

“Affiliate” means in relation to any Person: (a) any other Person having Control of that Person; (b) any other Person over whom that Person has Control; or (c) any Person over whom any other Person referred to in (a) above also has Control, where “Control” of a Person by another Person means that other Person (whether alone or with others, and whether directly or indirectly at any tier): (i) holds the majority of voting rights in the controlled Person; (ii) has the right to appoint the majority of the board of directors (or equivalent) of that controlled Person; and/or (iii) exercises control over that controlled Person’s affairs. In the case of an Equity Member, if the Equity Member is an investment fund, “Affiliate” includes such Equity Member’s general partner and any other investment fund in which its general partner is an equity investor as a general partner.

“Agreement” means this Parking Concession Agreement entered into by and between the Smithsonian and the Developer for the design, construction, financing, operation, and maintenance of the Project.

“Ancillary Parking Fees” means any fees collected by the Developer from the provision of Ancillary Parking Services, which such fees explicitly exclude any Parking Fees.

“Ancillary Parking Services” means any activities authorized by this Agreement that may be provided by the Developer to Persons parking within the Parking System for parking-related services (i.e. valet services, car washing services).

“Ancillary Works” means the demolition and stabilization with natural habitat surface of Parking Lots A, B, and D identified in Exhibit A-4 in accordance with this Agreement.

“Annual Certification of Floating Concession Fee” has the meaning set forth in Section 7.4.

“Annual Concession Fee” has the meaning set forth in Section 7.2.

“Annual Report” has the meaning set forth in Section 10.3.

“Anti-Money Laundering Acts” has the meaning set forth in Section 14.1.10.

“Anti-Terrorism Order” has the meaning set forth in Section 14.1.10.

“Applicable Law” means all federal and District of Columbia laws, rules, regulations, orders, ordinances, and other governmental standards and requirements which may be applicable from time to time, as the context may require.

“Bid Date” means the date that final proposals are due from respondents pursuant to the RFP.

“BOD” has the meaning set forth in Section 2.4.4.

“Bond Documents” has the meaning set forth in Section 15.3.1.

“Business Days” means Monday through Friday, inclusive, other than holidays or other days on which the District of Columbia government is closed.

“Capital Asset Management Plan” has the meaning assigned to such term in the Operating Standards.

“Casualty Property” has the meaning set forth in Section 12.10.1.

“Central Parking Facility” or “CPF” means a multi-level parking structure containing 1,285 parking spaces that will be designed, constructed, and maintained by the Developer in accordance with this Agreement on the CPF Site.

“Change of Control” means a Transfer within a Person resulting in such Person no longer being an Affiliate of the Person(s) that had Control over such Person immediately prior to such Transfer. For purposes of this definition, “Control” means the possession, directly or indirectly, of the power to cause the direction of the management of a Person, whether through voting right or securities, by contract, family relationship, or otherwise.

“Closing Security” has the meaning set forth in Section 2.3.

“Code” has the meaning set forth in Section 15.3.1.

“Commercial Activities” means any activities unrelated to parking (but created for public use) that are proposed by the Developer within the Parking System and are approved by the Smithsonian in accordance with this Agreement.

“Commercial Fees” means any revenues collected by the Developer from Commercial Activities approved by the Smithsonian in accordance with this Agreement.

“Compensation Event” has the meaning set forth in Section 8.12.

“Conceptual Design” means the conceptual design attached as Exhibit B, which will be used by the Developer as the basis for the further design of the Project.

“Conditions Precedent” mean, collectively, the Developer Conditions Precedent, the Smithsonian Conditions Precedent, and the Mutual Conditions Precedent.

“Construction Completion Date” shall mean each of the dates for various levels of completion of portions of the Project as set forth in Exhibit D.

“Construction Documents Submission” has the meaning set forth in Section 5.5.2.

“Construction Monitor” means an independent third party retained at the request of a Financing Party to provide review and oversight of the construction and implementation of the Project.

“Construction Schedule” means the schedule, including milestones for Substantial Completion, of the Construction Works as set forth in Exhibit D.

“Construction Works” means the design and construction of the CPF, the Pedestrian Bridge and Mid-Point Connector Pathway, and the Ancillary Works in accordance with this Agreement.

“Construction Works Plan” has the meaning set forth in Section 5.9.

“Consumer Price Index” or “CPI” means the Consumer Price Index – U.S. City Averages for all Urban Consumers, All items in Washington-Baltimore, DC-MD-VA-WV, all urban consumers (not seasonally adjusted) [BLS Series ID: CUURA311SA0] or its successor, as published by the U.S. Department of Labor, Bureau of Labor Statistics, or its successor. If the CPI is changed so that the base year of the CPI changes, the CPI will be converted in accordance with the conversion factor published by the U.S. Department of Labor, Bureau of Labor Statistics, or its successor. If the CPI is discontinued or substantially altered, the applicable substitute index will be that chosen by the Secretary of the Treasury for the Department of Treasury’s Inflation-Linked Treasuries as described at 62 Fed. Reg. 846-847 (Jan. 6, 1997), or if no such securities are outstanding, will be determined by the Parties in accordance with general market practice at that time.

“Contracting Officer” means the person authorized to perform such role for this Project as determined by the Smithsonian.

“Controlling Bondholder” has the meaning set forth in Section 15.3.1.

“CPF Site” means the roof of the GSB and land immediately to the east that is currently occupied by additional surface parking, equipment, and trailers, as more particularly described in Exhibit A-1.

“Customer Satisfaction Survey” is the survey developed under the Customer Satisfaction Surveyor Agreement in accordance with the Operating Standards and this Agreement.

“Customer Satisfaction Surveyor Agreement” means the agreement to be entered into by the Developer and the Customer Satisfaction Surveyor in advance of the Effective Date with the approval of the Smithsonian, as such agreement may be further amended with the approval of the Smithsonian.

“Customer Satisfaction Surveyor” is the surveying entity identified in the Customer Satisfaction Surveyor Agreement.

“DCHPO” means the D.C. State Historic Preservation Office.

“DDOE” means the District Department of the Environment.

“DDOT” means the District Department of Transportation.

“Debt Capital” means the proceeds of any tax-exempt Financing made available to the Developer by a Controlling Bondholder.

“Design Development” has the meaning set forth in Section 5.5.1.

“Developer” means [__________________]. For purposes of consummating the Financing, the Developer may be organized as either: (a) a for-profit corporation, partnership, or other business entity; or (b) a 501(c)(3) not-for-profit corporation and/or its permitted assignee (“NFP Developer”) which assignee may be (i) a single member limited liability company created by the Developer as a wholly-owned subsidiary of the Developer and authorized to do business in the District, or (ii) an organization created by the Developer that has been granted 501(c)(3) status under the Code as a “nonprofit organization” or under the Code Section 509(a)(3) as a “supporting organization”.

“Developer Conditions Precedent” means those conditions precedent to the Effective Date that are for the benefit of the Developer, as set forth in Section 2.5.

“Developer Default” has the meaning set forth in Section 11.1.

“Developer Interest” means the interest of the Developer in the Parking System created by this Agreement and the rights and obligations of the Developer under this Agreement.

“Developer Project Management Plan” means the plan prepared by the Developer in accordance with the Technical Requirements, and approved in writing by the Smithsonian, that describes the organization, staffing, systems, strategies, approaches, procedures, and methods for the administration and management of the Construction Works and Parking System Management in accordance with this Agreement.

“Developer Quality Management Plan” means the plan prepared by the Developer in accordance with the Technical Requirements, and approved in writing by the Smithsonian, to guide the delivery of quality assurance and quality control processes and procedures for the Construction Works and Parking System Management and to ensure compliance with this Agreement.

“Dispute” has the meaning set forth in Section 16.1.

“District” means the District of Columbia.

“Document” has the meaning set forth in Section 19.16.2.

“Effective Date” means the date on which all the Conditions Precedent are satisfied or waived, as the case may be, as evidenced by the execution by the Parties of an Effective Date Certificate.

“Effective Date Certificate” means the certificate in the form of Exhibit F that will be executed by the Parties to confirm the Effective Date.

“Emergency” means a situation that is urgent and calls for immediate action, which, if such action is not taken, is reasonably likely to result in imminent harm or physical damage to any or all of the Parking System or any Person, including the Smithsonian.

“Enforcement Policies and Procedures” means the policies and procedures set forth in Exhibit H that are designed to deter parking violations within the Parking System.

“Engineering, Procurement, and Construction Contract” means the contract to be entered into by the Developer and its construction contractor with the approval of the Smithsonian, as such agreement may be further amended with the approval of the Smithsonian.

“Environment” means any air (including air within natural or man-made structures above or below ground), water (including territorial, coastal, and inland waters and ground water in drains and sewers), land (including the sea or river bed under any water), surface land, and sub-surface land.

“Environmental Law” means any federal or District of Columbia law, act, statute, ordinance, rule, regulation, order, decree, permit, or ruling of any federal, District of Columbia, or administrative regulatory body, agency, board, or commission or a judicial body, relating to the protection of human health or the environment or otherwise regulating or restricting the management, use, storage, disposal, treatment, handling, release, and/or transportation of a Hazardous Material, which are applicable to the Project or activities on or about the Parking System Site, including but not limited to 42 U.S.C. § 9601, et seq. (CERCLA), 42 U.S.C. § 6901 et seq. (RCRA), the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Emergency Planning and Community Right To Know Act, 42 U.S.C. § 11001 et seq., and any District of Columbia equivalent laws as each of the same is amended or supplemented from time to time.

“Environmental Management Plan” means the environmental management plan prepared by the Developer and approved in writing by the Smithsonian.

“Environmental Reports” means the [Phase 1] report prepared by the Developer dated ___________, 2018, which names the Smithsonian as a party that can rely on such report, and [insert any other reports provided by the Smithsonian to the Developer or prepared by the Developer in advance of the Effective Date].

“Emergency Plan” means the emergency plan prepared by the Developer and approved in writing by the Smithsonian.

“Equity Agreement” means any agreement as may be entered into between the Developer and an Equity Member on or prior to the Effective Date in respect of an Equity Contribution provided to the Developer for the design, engineering, procurement, construction and completion of the Construction Works, which agreement shall be reasonably satisfactory in form and substance to the Smithsonian.

“Equity Contribution” means any equity contribution in cash to the Developer and any loan or advance to the Developer by any Shareholder or any Affiliate thereof required pursuant to a taxable Financing.

“Equity Distribution” means (i) any Equity Contribution that may have been returned or repaid, in whole or in part, to any Shareholder or any Affiliate thereof, (ii) any dividend or other distribution paid by the Developer to any Shareholder or any Affiliate thereof with respect to any Equity Contribution, (iii) any amount paid by the Developer to any Shareholder or any Affiliate thereof as interest, fee, or premium with respect to any Equity Contribution, and (iv) any other amount paid by the Developer to any Shareholder, any Affiliate thereof, or any other Person in which the Developer may directly or indirectly own any class of capital stock or other equity interest, other than any amount so paid in respect of goods sold or services performed by such Shareholder, Affiliate, or other Person to or for the Developer in accordance with a contract or lease complying with the requirements of this Agreement.

“Equity Member” means the members of the Developer that contribute Shareholders’ Equity Contribution to the Developer as part of the Developer’s financing of the Project.

“Evaluation Period” means every period commencing on the Effective Date and ending of the five (5) year anniversary thereof, or each subsequent three (3) year period thereafter. For the avoidance of doubt, such 5-year and 3-year periods are fixed periods, rather than rolling periods.

“Excluded Parking Areas” means those parking areas within the NZP that are identified on Exhibit A-5 which shall remain under the sole custody and control of the Smithsonian for use in non-commercial parking activities.

“Execution Date” has the meaning set forth in the Preamble.

“FAR” means the Federal Acquisition Regulation.

“Fees” means, collectively, the Parking Fees, the Ancillary Parking Fees, and the Commercial Fees.

“Final Construction Documents” has the meaning set forth in Section 5.5.4.

“Financial Plan” has the meaning set forth in Section 2.4.3.

“Financing” means the funding provided by a Financing Party to the Developer pursuant to the Financing Documents, which may be in the form of taxable or tax-exempt debt obligations in accordance with law.

“Financing Documents” means, collectively, any Lender Agreements and any Equity Agreements entered into on or prior to the Effective Date by the Developer and a Financing Party with respect to the financing of this Project, and any agreement representing the refinancing thereof, which agreement shall be reasonably satisfactory in form and substance to the Smithsonian.

“Financing Party” means, collectively, any Lenders and Equity Members.

“Floating Concession Fee” has the meaning set forth in Section 7.2.2.

“Floating Concession Fee Percentage Change” has the meaning set forth in Section 7.2.2.

“FONZ” means Friends of the National Zoo, a non-profit partner of the Smithsonian’s National Zoo and Conservation Biology Institute.

“Force Majeure” means labor dispute, fire, unusual delay in transportation or delivery, unavoidable casualty, flood, earthquake, epidemic, civil disturbance, war, terrorism or threats thereof, freight embargo, riot, sabotage, unusually severe weather conditions in the District of Columbia as determined by the National Weather Service, labor or material shortage or any other similar act or condition, in each case only to the extent the event in question is not reasonably foreseeable by and is beyond the control of and not caused by the fault or negligence of the Developer or the Smithsonian, as applicable, and that results in a delay in the commencement, prosecution, or completion of requirements under this Agreement; provided that the Party claiming Force Majeure provides notice to the other Party of such Force Majeure event within seven (7) days of discovery of such Force Majeure event, which notice shall include the Party’s estimate of the length of the delay that will be caused by such event and the actions the Party claiming Force Majeure is taking to minimize such delay.

“General Services Building” or “GSB” means the building shown on Exhibit A-1 that was constructed by the Smithsonian in 1976 and houses the NZP commissary that prepares animal food, the fleet fuel depot, operations and maintenance shops, NZP Exhibits offices, and NZP Park Management, as well as general administrative offices and engineering (design and construction), support offices, locker rooms, and employee restrooms.

“Governmental Authority” means any and all federal or District of Columbia governmental or quasi-governmental municipal corporation, board, agency, authority, department, or body having jurisdiction over all or any portion of the Parking System Site or the Project or the Developer, including, the NCPC, United States Commission on Fine Arts, DCHPO, DDOE, and DDOT.

“Governmental Delay” means a delay in performance by the Developer directly caused by one or more of the following: (i) with respect to any matter that requires the approval of the Smithsonian specifically under this Agreement, where the Developer has provided the Smithsonian sufficient information to respond to such request for approval, the Smithsonian fails to specify in reasonable detail the reason for the Smithsonian’s disapproval or rejection of such matter and the changes that would be required for approval; (ii) with respect to any matter that requires the review or consent of any Governmental Authority, where the Developer has provided such Governmental Authority sufficient information to respond to such request for approval, delays caused by such Governmental Authority not completing its review within the customary response period for the matter in question, imposing conditions that are not customary for the matter in question or that would constitute a material change to the Construction Works Plans or the Construction Schedule, or acting outside of such Government Authority’s powers contained in Applicable Law; (iii) a Governmental Authority requires a material change to the Final Construction Documents which is inconsistent with the Technical Requirements, provided that the Developer must provide notice to the Smithsonian of such Governmental Delay event within seven (7) days of discovery of such Governmental Delay event, which notice shall include the Developer’s estimate of the length of the delay that will be caused by such event and the actions the Developer is taking to minimize such delay; or (iv) any repairs required to rectify a GSB Latent Defect prior to construction proceeding, provided that a GSB Latent Defect Notice is provided within seven (7) days of discovery of the purported GSB Latent Defect.

“Gross Revenues” means, for any calendar year or part thereof, the sum of: (a) the aggregate gross revenues in respect of such calendar year or part thereof deriving from Parking Fees, Ancillary Parking Fees, Commercial Fees, and any other revenues related to the Project, (b) any insurance proceeds received by the Developer to the extent that such proceeds are in respect of loss gross revenues, and (c) any and all other amounts deposited during such calendar year or part thereof in the Gross Revenues Account, which amounts are not otherwise included in the calculation of aggregate gross revenues under clause (a) above, such as interest earnings, income, and fees in respect of the Project; provided, however, that Gross Revenues specifically excludes any taxes collected by the Developer from Persons parking within the Parking System that are required to be remitted to a Governmental Authority under Applicable Law.

“Gross Revenues Account” means the dollar denominated account established by the Developer or Developer’s Lenders at a bank or other financial institution reasonably acceptable to the Smithsonian into which all Gross Revenues shall be deposited and withdrawn in accordance with Section 8.8 and the Gross Revenues Agreement.

“Gross Revenues Agreement” means the agreement executed among the Smithsonian, the Developer, and the Trustee in advance of the Effective Date with respect to the collection and disbursement of the Gross Revenues.

“GSB Information” means the information contained in the reports listed on Exhibit K which were delivered by the Smithsonian to the Developer in advance of the Effective Date and the GSB Inspection Report prepared on or before the Effective Date.

“GSB Inspection Report” means the report attached in the form of Exhibit J that will be completed by the Developer at the Developer’s expense, with input and review by the Smithsonian, and agreed to by the Developer and the Smithsonian prior to the Effective Date and on or about the yearly anniversary of the Effective Date for the duration of the Term.

“GSB Latent Defect” means a structural defect in the GSB not disclosed in or reasonably inferable from the GSB Information that substantially impacts the CPF as established by the Parties in accordance with Section 5.30.1.

“GSB Latent Defect Notice” means the notice described in Section 5.30.1.

“Handover Process” means the process set forth in Exhibit N-2 whereby the Parking System shall be transferred to the Smithsonian or a third party designated by the Smithsonian upon the expiration of the Term, as set forth in Section 18.2.

“Handover Reserve Account” or “HRA” has the meaning set forth in Section 8.10.1.

“Handover Standards” means the successful completion of the Renewal Works and the availability for delivery to the Smithsonian of a complete and working Parking System, operated and maintained in accordance with the Operating Standards, the Technical Requirements, applicable laws, rules, regulations, and decrees, this Agreement, and the standards set forth in Exhibit N-1.

“Hazardous Materials” means a substance that falls within one or more of the following categories, other than in quantities or concentrations that constitute Permitted Materials: (1) Any “hazardous substance” under 42 U.S.C. § 9601, et seq. or “hazardous waste” under 42 U.S.C. § 6901, et seq.; (2) Any substance or chemical defined and regulated under requirements promulgated, respectively, by the U.S. Environmental Protection Agency at 40 C.F.R. part 355, by the U.S. Department of Transportation at 49 C.F.R. parts 100-180, by the U.S. Occupational Safety and Health Administration at 29 C.F.R. § 1910.1200, and ionizing materials otherwise regulated by the U.S. Nuclear Regulatory Commission at 10 C.F.R. part 20; (3) Any substance or chemical that is defined as a pollutant, contaminant, dangerous substance, toxic substance, hazardous or toxic chemical, hazardous waste, or hazardous substance under any other Environmental Law, or the presence of which requires reporting, investigation, removal and remediation or forms the basis of liability under any Environmental Law; (4) Any substance or material that the Secretary of Defense designates as a “toxic or hazardous material” under 10 U.S.C. § 2692(a)(2); (5) Any substance the presence of which on the Parking System Site or adjacent property causes or threatens to cause a nuisance or poses or threatens to pose a hazard to health or safety of persons on or about the Parking System Site or adjacent property; (6) Gasoline, diesel fuel, or other petroleum hydrocarbons, including refined oil, crude oil and fractions thereof, natural gas, synthetic gas, and any mixtures thereof; (7) Asbestos or asbestos containing material; and (8) Polychlorinated bi-phenyls, or materials or fluids containing the same.

“Improvements” means collectively all improvements made by the Developer under this Agreement, including the CPF, the Pedestrian Bridge and Mid-Point Connector Pathway, and the Ancillary Works, as more particularly defined in the Technical Requirements.

“Inflation Adjustment” has the meaning set forth in Section 8.5.2.

“Initial Payment” means the payment of Seven Million Dollars ($7,000,000.00) to be paid by the Developer to the Smithsonian in accordance with Section 7.1 of this Agreement.

“Key Contractors” means, collectively, [list the Lead Member, Lead Architect, Lead Architect Member, Lead Contractor, Lead Contractor Member, Lead Engineer, Lead Engineer Member, Lead Parking Operator, and Lead Parking Operator Member as identified in the Developer’s response to the RFP].

“KPM” means those Key Performance Measures established in accordance with section 2.31 of the Operating Standards.

“KPM Compensation” means the amount of compensation due from the Developer to the Smithsonian for a KPM Event.

“KPM Event” is a failure of the Developer to meet the KPM set forth in the Operations Plan, unless such failure is due to a Governmental Delay, a breach of the Agreement by the Smithsonian, or the negligence or willful misconduct of the Smithsonian.

“Law” or “Laws” means any order, writ, injunction, decree, judgment, law, ordinance, decision, opinion, ruling, policy, statute, code, rule, or regulation of any Governmental Authority.

“Lender Agreement” means any agreement as may be entered into between the Developer and a Lender on or prior to the Effective Date in respect of any taxable or tax-exempt debt financing provided to the Developer for the design, engineering, procurement, construction and completion of the Construction Works, the form of which shall be provided to the Smithsonian sufficiently in advance of the Effective Date for the Smithsonian to review.

“Lenders” means all Persons providing debt financing to the Developer under the Financing Documents.

“Liquidated Damages” has the meaning set forth in Section 5.23.

“Long Stop Date” means the date which is one year after the Scheduled Substantial Completion Date.

“Loss” or “Losses” means, with respect to any Person, any loss, claim, liability, damage, penalty, charge or out-of-pocket and documented cost or expense (including fees and expenses of counsel and any tax losses) actually suffered or incurred by such Person, but excluding any punitive, special, indirect, and consequential damages and any contingent liability until such liability becomes actual.

“Major KPM Event” means a KPM Event which obligates the Developer to pay KPM Compensation to the Smithsonian, with respect to that KPM Event only, in an amount equal to or greater than One Million Dollars ($1,000,000.00).

“Material Change Costs” has the meaning set forth in Section 5.8.2.

“Material Change Costs Request” has the meaning set forth in Section 5.8.2.

“Mid-Point Connector Pathway” means the pathway to be designed, constructed, and maintained by the Developer to connect the Pedestrian Bridge to the landing entry on the Mid-Point Connector Pathway Site.

“Mid-Point Connector Pathway Site” means the location of the Mid-Point Connector Pathway as set forth on Exhibit A-3.

“Minimum Annual Concession Fee” has the meaning set forth in Section 7.2.1.

“Monthly Report” has the meaning set forth in Section 10.1.

“Mutual Conditions Precedent” means those conditions precedent to the Effective Date that are for the benefit of both the Smithsonian and the Developer, as set forth in Section 2.7.

“National Zoological Park”, “NZP”, or “Zoo” means the operating entity of the Smithsonian created by act of Congress in 1889. For purposes of this Agreement, all references to the National Zoological Park are limited to the 163 acre campus located in Rock Creek Park in northwest Washington, D.C.

“NCPC” means the National Capital Planning Commission.

“Net Equity” means, on and as of the Termination Date, an amount equal to the sum of all Equity Contributions made prior to the Termination Date less the sum of all Equity Distributions made prior to the Termination Date; provided that, if such difference shall result in an amount that is less than zero (0), such amount shall be deemed to be zero (0).

“O&M Management Plan” means the management plan prepared by the Developer in accordance with the Operating Standards and approved in writing by the Smithsonian, which such plan includes the O&M Plan and other plans referenced in the Operating Standards.

“O&M Plan” shall mean the operation and maintenance plan prepared by the Developer, and approved in writing by the Smithsonian, for performance of the Parking System Management, which includes, without limitation, the requirements set forth in the Operating Standards, the salaried and hourly Parking System Personnel engaged on-site to execute the Parking System Management, the building equipment and maintenance requirements, as well the Parking System including janitorial and grounds maintenance requirements, including, but not limited to, the maintenance and repair of: fire and life-safety, plumbing, electrical, HVAC (heating, ventilating, air conditioning and associated climate control), utility and elevator systems, and roofs, foundations, exterior walls, windows and doors, and paved parking areas and the Pedestrian Bridge and Mid-Point Connector Pathway.

“O&M Security” means the performance bond in respect of the Developer’s obligations to operate and maintain the Parking System in accordance with this Agreement [the amount of which would equal 50% of the Developer’s annual operating budget].

“Operating Budget” means, in respect of any calendar year or part thereof, the operating budget stated in dollars setting forth all operating costs and expenditures (determined in accordance with GAAP) to be incurred by the Developer, any Operator Subcontractor, or any subcontractor during such calendar year or part thereof in connection with the performance of the operating and facilities maintenance services under this Agreement, which operating costs and expenditures shall not, for the avoidance of doubt, include any installment of the Annual Concession Fee paid or to be paid by the Developer.

“Operating Reserve Account” or “ORA” has the meaning set forth in Section 8.9.1.

“Operating Standards” means the operating standards set forth in Exhibit G.

“Operational Subcontractors” has the meaning set forth in Section 6.1.

“Operational Subcontracts” has the meaning set forth in Section 6.12.1.

“Operations and Maintenance Agreement” means the agreement to be entered into by the Developer and the Operational Subcontractor in advance of the Effective Date with the approval of the Smithsonian, as such agreement may be further amended with the approval of the Smithsonian.

“Parking Enforcement” means the issuance of parking tickets or citations and all other enforcement actions for violations of the Enforcement Policies and Procedures with respect to the Parking System, including any public ways and fire lanes.

“Parking Facilities” means, collectively, the CPF and the surface parking lots at the NZP.

“Parking Fee” means any fee paid by a Person for the privilege of parking a motor vehicle within the Parking System. The Parking Fee explicitly excludes any taxes paid by a Person for the privilege of parking within the Parking System.

“Parking Fees Inflation Adjustment Notification” means the written notification provided by the Developer to the Smithsonian in accordance with Section 8.5.3.

“Parking Spaces” means each of the parking spaces to be provided by and/or operated and maintained by the Developer within the Parking System under the terms of this Agreement. Unless otherwise authorized by the Smithsonian, the CPF shall accommodate a total of 1,285 Parking Spaces.

“Parking System Management” has the meaning set forth in Section 6.1.

“Parking System Personnel” has the meaning set forth in Section 6.13.1.

“Parking System” means the system consisting of (a) parking garages and surface lots, (b) parking system assets (such as computer systems and software, payment and access control equipment, operating and maintenance equipment, etc.), (c) once constructed, the Pedestrian Bridge and Mid-Point Connector Pathway, and (d) any Developer installed landscaping, improvements, equipment, or systems (such as electrical, plumbing, HVAC, mechanical concerns to the point of connection or tie-in to the overall GSB system), all of which are located on the Parking System Site.

“Parking System Site” means those portions of the NZP’s 163 acre Rock Creek Park campus in Washington, D.C., on which the Project will be undertaken, as more particularly set forth in Exhibit A, as may be reduced in accordance with Section 5.20.5; the Parking System Site excludes the Excluded Parking Areas.

“Parking Technology Standards” means those standards set forth in Exhibit Q.

“Parking Technology” means the equipment to be procured, installed, and maintained by the Developer in order to assist Persons to quickly identify open Parking Spaces, collect Parking Fees, and provide security, including, without limitation, parking control systems, remote and on-line payment systems, Pay-in-Lane machines, real-time parking information systems, closed-circuit television, signage, and computer and communications equipment.

“Parking Transition Plan” has the meaning set forth in Section 2.4.2.

“Parties” means, collectively, the Smithsonian and the Developer.

“Pedestrian Bridge” means the new pedestrian access bridge that is to be designed, constructed, and maintained by the Developer on the Pedestrian Bridge Site to connect the CPF to the Mid-Point Connector Pathway over North Road.

“Pedestrian Bridge and Mid-Point Connector Pathway Site” means, collectively, the Pedestrian Bridge Site and the Mid-Point Connector Pathway Site.

“Pedestrian Bridge and Mid-Point Connector Pathway” means, collectively, the Pedestrian Bridge and Mid-Point Connector Pathway.

“Pedestrian Bridge Site” means the location of the Pedestrian Bridge as set forth on Exhibit A-2.

“Permits” mean all permits required for compliance with applicable local and federal law for the Developer’s activities with respect to the Project.

“Permitted Investments” means any one or more of the following obligations or securities: (i) direct obligations of, and obligations fully guaranteed by, the United States of America or any agency or instrumentality of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America; (ii) demand or time deposits, federal funds or bankers’ acceptances issued by any institutional lender (provided that the commercial paper or the short-term deposit rating or the long-term unsecured debt obligations or deposits of such institutional lender at the time of such investment or contractual commitment providing for such investment have been rated “A” (or the equivalent) or higher by a Rating Agency or any other demand or time deposit or certificate of deposit fully insured by the Federal Deposit Insurance Corporation); (iii) commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one (1) year after the date of issuance thereof) which has been rated “A” (or the equivalent) or higher by a Rating Agency at the time of such investment; (iv) any money market funds, the investments of which consist of cash and obligations fully guaranteed by the United States of America or any agency or instrumentality of the United States of America, the obligations of which are…