THIS CONSTRUCTION COORDINATING AGREEMENT is made as of the ____ day of July, 1998, by and among THE COUNTY OF ERIE, a New York municipal corporation having an office and principal place of business at 95 Franklin Street, Buffalo, New York 14202 (the "County"), ERIE COUNTY STADIUM CORPORATION, a New York business corporation and wholly-owned subsidiary of the New York State Urban Development Corporation d/b/a the Empire State Development Corporation, a public benefit corporation having an office and principal place of business at 633 Third Avenue, New York 10017-6754 (the "ECSC") and BUFFALO BILLS, INC., a New York business corporation having an office and principal place of business at One Bills Drive, Orchard Park, New York 14127 (the "Bills") (the County, the ECSC and the Bills are hereinafter sometimes collectively referred to as the "Parties").

WHEREAS, the County is the owner of an approximately 135 acre parcel of real property situated in the Town of Orchard Park, New York, which parcel is improved by a football stadium and related amenities (the "Stadium Complex"); and

WHEREAS, pursuant to its rights as a National Football League franchisee, the Bills are the owners of the "Buffalo Bills" football team (the "Team"); and

WHEREAS, pursuant to a certain Agreement of Lease, dated as of October 15, 1971, between the County and the Bills' predecessor in interest (as amended, the "Original Lease"), the Team has used and occupied the County's football stadium for its home games since 1973; and

WHEREAS, the term of the Original Lease expires on July 31, 1998; and

WHEREAS, the County, New York State (the "State") and the Bills have determined that the Team encourages and fosters economic development and prosperity for the citizens of Erie County and Western New York, enhances the image of Erie County and Western New York and provides recreational and other opportunities for the citizens of Erie County and Western New York; and

WHEREAS, the citizens of Western New York have supported and enjoyed the Team since its inception such that the Team has become an integral part of the Western New York community; and

WHEREAS, on January 12, 1998, the State, the County and the Bills entered into a Memorandum of Understanding (the "MOU") setting forth in principle certain actions to be undertaken by each of the parties to enable the Team to continue to play its home games at the County's football stadium through July 31, 2013; and

WHEREAS, pursuant to Chapter _______ of the 1998 Session Laws of New York (the "Authorizing Legislation"), the State has found and declared, among other things, that the refurbishment, renovation, improvement, operation, maintenance, repair and financing of the Stadium Complex constitute a public and governmental purpose for the benefits of the citizens of the County and the State, and has specifically authorized the implementation of the various actions contained in the MOU, including, without limitation, the execution and delivery of this Construction Coordinating Agreement and certain other documents relating to the Stadium Complex; and

WHEREAS, certain of the actions contained in the MOU relate to the refurbishing, renovation and improvement of the Stadium Complex at a cost of approximately $63.25 million; and

WHEREAS, under the New York State Urban Development Act, Chapter 174 of the 1968 Laws of New York, as amended (the "Act"), the New York State Urban Development Corporation d/b/a the Empire State Development Corporation (the "ESDC") is empowered to lease real property from municipalities and to rehabilitate and improve such real property; and

WHEREAS, pursuant to Section 12 of the Act, the ESDC is empowered to create subsidiary corporations and to confer upon such subsidiary corporations all "privileges, immunities, tax exemptions and other exemptions" which the ESDC enjoys, including, without limitation, such privileges, immunities, tax exemptions and other exemptions which enure to the ESDC by virtue of the ESDC's status as a public benefit corporation; and

WHEREAS, on February 6, 1998, the ESDC filed a Certificate of Incorporation with the New York Secretary of State forming the ECSC; and

WHEREAS, in the Authorizing Legislation, the State has confirmed that the ECSC is a public benefit corporation; and

WHEREAS, paragraph seven of such Certificate of Incorporation provides that the ECSC shall enjoy all of the "privileges, immunities, tax exemptions and other exemptions" of the ESDC; and

WHEREAS, on February 27, 1998, the ESDC and the Bills entered into a Design Funding Agreement pursuant to which the Bills have agreed to undertake certain preliminary design and construction work related to the refurbishing, renovation and improvement of the County's football stadium; and

WHEREAS, to facilitate such refurbishing, renovation and improvement, the County has leased the Stadium Complex to the ECSC pursuant to a certain Master Lease, dated as of July __, 1998, between the County, as lessor, and the ECSC, as lessee; and

WHEREAS, to further facilitate such refurbishing, renovation and improvement, the ECSC has, in turn, subleased the Stadium Complex to the Bills pursuant to a certain Stadium Lease, dated as of July __, 1998, between the ECSC, as sublessor, and the Bills, as sublessee; and

WHEREAS, the refurbishing, renovation and improvement of the Stadium Complex is described with more particularity in the Development Study and Report prepared by DiDonato Associates, P.E., P.C., et al., dated February 1997 (the "Development Study"); and

WHEREAS, it is the intent of the Parties to complete all of the work described in the Development Study [other than "Work Action Item 6" (Refurbish Administration Building) and "Work Action Item 10" (New Training Center/Team Operations)] prior to the first scheduled regular season "home" game of the 1999 NFL Season, and to thereafter complete the work described in "Work Action Item 10" prior to the first scheduled regular season "home" game of the 2000 NFL Season, and the work described in "Work Action Item 6" prior to the first scheduled regular season "home" game of the 2001 NFL Season; and

WHEREAS, in its capacity as "lead agency," the County has issued, on its own behalf and on behalf of all other involved agencies, a "negative declaration" under the New York State Environmental Quality Review Act covering the refurbishing, renovation and improvement of the Stadium Complex; and

WHEREAS, to implement the refurbishing, renovation and improvement of the Stadium Complex, the Parties have agreed to enter into this Construction Coordinating Agreement.

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements of the Parties contained herein, and other good and valuable consideration, the Parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE 1.         RECITALS; DEFINITIONS; EXHIBITS AND SCHEDULES

1.1 Recitals. The Recitals set forth above are hereby incorporated into and made a part of this Construction Coordinating Agreement as if more fully set forth herein.

1.2 Definitions. In this Construction Coordinating Agreement, capitalized terms used but not defined herein shall have the meanings ascribed thereto in Schedule 1.2 attached hereto or in Section 1.1 of the Stadium Lease.

1.3 Exhibits and Schedules. The following exhibits and schedules are attached to and made a part of this Construction Coordinating Agreement:

EXHIBIT A - Assignment And Assumption Agreement
EXHIBIT B - Budget
EXHIBIT C - Alternates
EXHIBIT D - Legal Opinions
EXHIBIT E - Affirmative Action Plan

Schedule 1.2 - Definitions
Schedule 3.1 - Summary of Professional Agreements

 

ARTICLE 2.         DEVELOPMENT ACTIVITIES

2.1 Development Generally. Subject to the terms and conditions of this Construction Coordinating Agreement, including the scheduling of Work in accordance with the Master Project Schedule, the limitations set forth in the Budget and the general scope of services set forth in the Development Study, the Parties shall endeavor in good faith to design, construct, operate and use the Project, as contemplated in this Construction Coordinating Agreement.

2.2 Obligations of the County. In addition to the other obligations of the County set forth in this Construction Coordinating Agreement, but subject to the terms and conditions set forth herein, the County:

(a) shall serve as the permitting Governmental Authority for the construction of the Project, and, in such capacity, shall, subject to Applicable Law, promptly issue all necessary building permits and other construction approvals upon application by the Bills or the ECSC therefor;

(b) shall pay the County's Project Costs, if any; and

(c) shall appoint a representative with respect to the Project in accordance with Section 4.1.

2.3 Obligations of the ECSC. In addition to the other obligations of the ECSC set forth in this Construction Coordinating Agreement, but subject to the terms and conditions set forth herein [including, but not limited to, the limitation set forth in Section 13.21 capping the ECSC's maximum financial contribution for the construction of the Project at $63,250,000 (or such greater amount as may be approved by the ECSC), and the terms and conditions of Section 3.3(c) and Article 12] the ECSC:

(a) shall cause the construction of the Project to proceed with reasonable diligence after the Commencement of the Work until Final Completion of the Project;

(b) shall assume the Bills' obligations under the Professional Agreements in accordance with Article 3;

(c) shall select and contract with the Construction Providers in accordance with Article 3;

(d) shall pay or cause to be paid up to $63,250,000 (or such greater amount as may be approved by the ECSC) of the Project Costs within the time(s) provided in the Project Agreements, including, but not limited to:

(i) all fees for the issuance of permits and licenses for the construction of the Project in order to ensure the timely completion of the Project;

(ii) concurrently with the execution hereof, the sum of $12,500 as reimbursement for the costs incurred by the County in preparing the Survey;

(iii) the premiums for any Project Insurance Policies;

(e) shall appoint a representative with respect to the Project in accordance with Section 4.1;

(f) shall provide to the County and the Bills "as built" drawings for the Project within ninety (90) days after the date of Substantial Completion of the Project;

(g) shall cause Project Damage, if any, to be repaired, restored and replaced in accordance with Article 5;

(h) shall pay the ECSC Project Costs, if any; and

(i) shall implement the Affirmative Action Plan.

2.4 Obligations of the Bills. In addition to the other obligations of the Bills set forth in this Construction Coordinating Agreement, but subject to the terms and conditions set forth herein, the Bills:

(a) shall assign the Professional Agreements to the ECSC in accordance with Article 3;

(b) shall furnish the other Parties with all necessary access to the Stadium Complex for the purpose of carrying out their respective obligations hereunder in accordance with the Master Project Schedule;

(c) shall furnish the County and the ECSC with copies of all relevant plans, specifications, drawings and other written materials in its possession with respect to the design or alteration of the Stadium Complex;

(d) shall furnish the ECSC with a suitable construction trailer for the Project (complete with water, electric and telephone utility service);

(e) shall deposit funds with the ECSC sufficient to cover any Project Costs in excess of the Budget not constituting County Project Costs or Bills' Project Costs;

(f) shall pay the Bills' Project Costs, if any; and

(g) shall appoint a representative with respect to the Project in accordance with Section 4.1.

2.5 Term. The term of this Construction Coordinating Agreement, unless sooner cancelled or terminated in accordance with the terms and conditions hereof, shall commence on the Effective Date and continue until (a) the Final Completion of the Project and (b) the fulfillment of the Parties' respective obligations hereunder.

2.6 Title to Improvements; End of Term. Title to all alterations, changes, improvements and fixtures installed by or on behalf of the ECSC in conjunction with the Project shall upon installation immediately become the property of the County by virtue of its fee ownership of the Stadium Complex. At the expiration of the term of this Construction Coordinating Agreement, whether by reason of attainment of the Final Completion of the Project, or the earlier cancellation or termination of this Construction Coordinating Agreement in accordance with the terms and conditions hereof, the ECSC and the Bills shall deliver to the County such assignments and other documentation as the County may reasonably require in order to confirm its ownership of any such alterations, changes, improvements and fixtures subject, however, to the respective rights of the ECSC and the Bills in and to any such alterations, changes, improvements and fixtures pursuant to the terms of the Lease Agreements.

ARTICLE 3. PROJECT PROVIDERS; PROJECT AGREEMENTS; PLANS AND SPECIFICATIONS

3.1 Professional Agreements.

(a) Pursuant to the terms and conditions of the Design Funding Agreement, the Bills have entered into the Professional Agreements identified on Schedule 3.1. Upon the delivery by the Bills of a notice in accordance with Section 7.1 of the Stadium Lease evidencing either the achievement of Satisfaction with respect to the Marketing Campaign or the waiver of the necessity therefor, the Bills will promptly deliver to the ECSC (i) an assignment and assumption agreement, substantially in the form attached hereto as Exhibit A, assigning to the ECSC all of the Bills' right, title and interest in the Professional Agreements and (ii) an estoppel certificate from the CM and each A/E in the form required by Section 1(c) of the Design Funding Agreement.

(b) Prior to selecting or engaging (or allowing the CM or any A/E to select or engage) any other Person to serve as an additional or replacement CM or as an additional or replacement A/E in conjunction with the Project, the Bills or the ECSC, as the case may be, shall submit to the other Parties for their approval (which approval shall not be unreasonably withheld or delayed in excess of fifteen (15) days), such Person's name, references, qualifications, financial statements or similar financial information and other information as such other Parties shall reasonably request. Without limiting the generality of the foregoing, the selection and engagement of any Person to serve as a replacement or additional CM or A/E shall be done in accordance with Applicable Law.

3.2 Master Project Schedule. Pursuant to Sections 1.1(d) and 1.1(g) of the CM Agreement, the Bills shall cause the CM, in cooperation with the A/Es and the other Parties, to prepare the Master Project Schedule. Upon the completion of the Master Project Schedule, the CM, the A/Es and the Parties shall initial the Master Project Schedule to indicate their approval. Except as expressly provided herein, no amendment, modification or supplement to the Master Project Schedule shall be effective unless it shall have been approved by the Parties, which approval shall not be unreasonably withheld, conditioned or delayed.

3.3 Plans and Specifications.

(a) Pursuant to the terms and conditions of the A/E Agreements, the Bills shall cause the A/Es to prepare the Plans and Specifications in accordance with the Master Project Schedule. Without limiting the rights of any Party pursuant to the A/E Agreements, each Party shall have the right to review and approve the Plans and Specifications within the time period set forth in the Master Project Schedule.

(b) To the extent that any Party seeks to modify any Schematic Design Documents, Design Development Documents, Construction Documents or other Plans and Specifications, such Party shall notify the other Parties, the applicable A/E and the CM within the time period set forth in the Master Project Schedule for the modification and revision of such documents. Any request to modify any such document which is received after the applicable time period set forth in the Master Project Schedule shall not be incorporated into the Plans and Specifications unless each of the other Parties consent, which consent shall not be unreasonably withheld, conditioned or delayed.

(c) Upon approval of the Plans and Specifications by the Parties, the ECSC or the Bills, as the case may be, shall cause the A/E's to prepare construction bid packages, in form and content reasonably acceptable to the Parties, and shall advertise the Work for public bidding by potential Construction Providers, with a deadline for receipt of bids no later than _____________ __, 1998. If either (a) Satisfaction is achieved in accordance with Section 7.1 of the Stadium Lease, or (b) the Bills have delivered a notice waiving the necessity of achieving Satisfaction as permitted by such Section 7.1, and (y) the bids for the Project exceed the Budget and (z) none of the Parties are willing to cover such excess out of its own funds, the ECSC shall have the right to cancel this Construction Coordinating Agreement by delivery of written notice to the other Parties on or before 12:00 noon December 2, 1998. If, however, either (a) Satisfaction is achieved in accordance with Section 7.1 of the Stadium Lease or (b) the Bills have delivered a notice waiving the necessity of achieving Satisfaction as permitted by such Section 7.1, and either (y) the bids for the Project are at or below the Budget or (z) one of the Parties has agreed to cover the amount by which the Project bids exceed the original Budget out of its own funds, the ECSC will use commercially reasonable efforts to award the bids for the Work to the successful bidders as soon as practicable following the earlier of the date of such waiver or December 2, 1998, and thereupon use commercially reasonable efforts to enter into Construction Agreements with such Construction Providers, subject to the approval of the County and the Bills in accordance with Section 3.4(d).

(d) The approval by any of the Parties of any of the Plans and Specifications shall constitute only an approval of the aesthetic features of the Project described in the drawings, and such Party's acknowledgment that site plans and floor plans and the spatial relationship of the various parts of the plans are satisfactory to it shall not be construed as an approval of the quality of the architectural, structural or engineering design of the Project or any of its components, or an acknowledgment that the design complies with Applicable Law. Such approval shall not constitute a waiver of any warranties or guaranties set forth in any of the Professional Agreements or release the CM or any A/E from liability for any errors or omissions.

(e) Upon the approval of the Plans and Specifications by the Parties, no Major Change shall be made except upon the request of either the County or the Bills, and the approval thereof by the non-requesting Party, which approval shall not be unreasonably withheld, conditioned or delayed. In the event either the County or the Bills proposes a Major Change, the requesting Party shall notify the County and the Bills stating: (i) the portion of the Plans and Specifications affected; (ii) a complete description of the proposed change to the Plans and Specifications, together with a cost analysis thereof; and (iii) the rationale for the Major Change. The requesting Party shall make its Representative reasonably available to respond to questions presented by the other Parties. Within thirty (30) days after receipt of a notice of a proposed Major Change, the non-requesting Party shall notify each other and the requesting Party of its approval or disapproval of the proposed Major Change. Any proposed Major Change shall be deemed approved unless the non-requesting Party notifies the requesting Party in writing within thirty (30) days after receipt of a proposed Major Change of its disapproval thereof. In the event a proposed Major Change is rejected by a non-requesting Party, the notice of such rejection shall be accompanied by a written explanation in reasonably sufficient detail outlining the rationale for its disapproval. The requesting Party may initiate arbitration in accordance with Article 23 of the Stadium Lease in order to resolve any issues associated with any such proposed Major Change.

3.4 Construction Agreements.

(a) The Construction Agreements will contain the terms and conditions described in this Section 3.4 and such other terms and conditions as may be necessary or appropriate to permit the ECSC to comply with its obligations under this Construction Coordinating Agreement.

(b) Each of the Construction Agreements shall grant third party beneficiary status to the County and the Bills and permit the assignment thereof by the ECSC to the County or its designee without the need to obtain the consent from the other party or parties to such agreement.

(c) In addition to the requirements set forth elsewhere in this Construction Coordinating Agreement, the Construction Agreements shall require or provide for the development, construction and completion of the Project in accordance with the Plans and Specifications. In particular, each Construction Agreement shall contain, as appropriate, (i) a payment schedule setting forth the payment amounts to be made upon the completion of specific portions of the work required under such Construction Agreement or provisions requiring payment for the value of work completed on a monthly basis, (ii) procedures to withhold from payment appropriate retention amounts (including any retention amounts required by Applicable Law), (iii) requirements for the receipt of lien waivers and general releases from Construction Providers and their agents, (iv) requirements for the delivery of a "payment request certificate" from the CM and the A/E for the applicable portion of the Project certifying that the Work to which the requested payment relates has been completed in accordance with the Plans and Specifications and that such requested payment is not the subject of another outstanding or previously paid payment request, (v) requirements that the Construction Providers consult with the Bills during the course of construction and that the Construction Providers apprise the Bills periodically of the progress of the construction of the Work, and (vi) requirements affording the Bills the right to inspect the Work periodically during the course of construction and the right to reject any Work that does not conform to the Plans and Specifications. All Construction Agreements shall require the Construction Providers to deliver monthly progress reports along with invoices setting forth the amounts due for Work performed to date for review and approval by the CM.

(d) The County and the Bills shall have the right to approve each of the Construction Agreements, which approval shall not be unreasonably withheld provided such Construction Agreements meet the requirements of this Construction Coordinating Agreement. Any notice by either party that it is withholding its approval with respect to any Construction Agreement must be given within the time period set forth in the Master Project Schedule and shall state all objections or reasons for withholding approval of any Construction Agreement to allow the applicable Persons the opportunity to satisfy the objections.

3.5 Change Orders.

(a) Each of the County and the Bills (but not the ECSC) shall be entitled to submit from time to time Change Requests in accordance with this Section 3.5. Any Change Requests made by either the County or the Bills shall be submitted to the non-requesting Party and shall be accompanied, at a minimum, by conceptual drawings depicting the scope of the proposed Work. Within ten (10) days of the receipt by the non-requesting Party of any Change Request, the non-requesting Party shall notify the requesting Party of its approval or rejection thereof. In considering any Change Request, the non-requesting Party's approval shall not be unreasonably withheld, conditioned or delayed. In the event a Change Request is rejected by the non-requesting Party the non-requesting Party's rejection notification shall be accompanied by a written explanation in reasonably sufficient detail outlining the rationale for its disapproval. Either the County or the Bills may initiate arbitration in accordance with Article 23 of the Stadium Lease in order to resolve any issues associated with any proposed Change Order.

(b) If a Change Request is submitted and approved by the non-requesting Party as provided above, the ECSC shall cause the CM and the appropriate A/E to furnish to the other Parties as promptly as possible after receipt of any such Change Request a good faith estimate of the cost of designing and implementing such Change Request (or the net savings that would result from such Change Request) including all costs associated with the evaluation, budgeting, design and managing of the requested change. If such estimates indicate that such Change Request would not cause the Project Costs (after taking into account all increases and decreases in the Project Costs attributable to such Change Request) to exceed the Budget, the ECSC shall issue a Change Order with respect to such Change Request, shall cause such Change Request to be incorporated into the subsequently developed Plans and Specifications and shall pay all of the Project Costs attributable to any such Change Request. If such estimates indicate that such a Change Request would cause the Project Costs (after taking into account all increases and decreases in the Project Costs attributable to such Change Request and all prior Change Orders) to exceed the Budget, the ECSC shall not be required to issue a Change Order with respect to such Change Request unless and until the requesting Party shall have deposited with the ECSC immediately available funds sufficient to pay the additional Project Costs relating to such Change Request as and when such costs are required to be paid under all Project Agreements relating to such Change Request. If the County or the Bills submits a Change Request that is governed by this Section 3.5(b) and such Change Request is not implemented, all fees and expenses of the CM and the appropriate A/E incurred by the ECSC in connection with the evaluation, budgeting, design and managing of the requested change by the other Parties shall be considered County Project Costs or Bills' Project Costs, as the case may be; provided, however, that any such Bills Project Costs shall be reimbursed to the Bills by the ECSC upon Substantial Completion of the Project to the extent that Project Costs are less than the Budget.

3.6 Budget Surplus.

(a) Attached hereto as Exhibit B is the Budget for the Project, which has been approved by the Parties.

(b) If at Substantial Completion of any Work Action Item, there exists a Budget Surplus after payment of all outstanding Project Costs for such Work Action Item, provided no Bills Default has occurred and is continuing, the Bills shall have the right to direct the ECSC to apply such Budget Surplus to any Alternate designated by the Bills in accordance with this Section 3.6. Upon receipt of written instructions from the Bills directing the ECSC to undertake an Alternate, the ECSC shall cause the appropriate A/E to prepare Plans and Specifications for the designated Alternate and shall cause the CM to prepare a GMP for such Alternate. Upon the completion thereof, such A/E shall furnish such items to the Parties for their review and approval, which approval shall not be unreasonably withheld, conditioned or delayed in light of the fact that the Parties have, in concept pre-approved the Alternates, provided: (i) the GMP does not exceed the remaining portion of the Budget Surplus for such Work Action Item (after deducting therefrom the fees and expenses incurred in preparing the Plans and Specifications and the GMP for such Alternate) (unless the Bills deposit with the ECSC immediately available funds in the amount of such excess, in which case, this condition shall be deemed to have been satisfied), (ii) such Alternate does not materially change the overall function or design of the Stadium Complex or shorten the useful life thereof or materially change the aesthetics, sightlines, structure or systems thereof; (iii) such Alternate does not violate any Applicable Law; and (iv) such Alternate is otherwise in compliance with the terms and conditions of the Stadium Lease and this Construction Coordinating Agreement.

(c) In the event a proposed Alternate is rejected by any Party, the rejecting Party's notification shall be accompanied by a written explanation in reasonably sufficient detail outlining the rejecting Party's rationale for its disapproval. Any Party may initiate arbitration in accordance with Article 23 of the Stadium Lease in order to resolve any issues associated with any proposed Alternate.

(d) Upon the approval by the Parties of the Plans and Specifications and the GMP for any proposed Alternate, the ECSC shall either (i) amend the Project Agreements to include such Alternate within the scope thereof, or (ii) cause such Alternate to be bid in accordance with Section 3.1. Any Professional Agreement or amendment to a Professional Agreement entered into by the ECSC in conjunction with an Alternate shall be subject to the terms and conditions of Section 3.3.

(e) All Project Costs incurred by the ECSC in conjunction with any approved Alternate shall be paid by the ECSC out of the Budget Surplus which created the right in favor of the Bills to request such Alternate. To the extent the Project Cost for any such Alternate exceeds such Budget Surplus, such excess shall be offset against any Budget Surplus which may arise thereafter out of uncompleted Work Action Items. If at Substantial Completion of the Project, the Project Costs exceed the Budget, said excess shall be immediately paid by the Bills to the ECSC.

(f) The Bills shall have the right during the term of this Construction Coordinating Agreement to amend the list of potential Alternates attached hereto as Exhibit D upon the approval of the other Parties, which approval shall not be unreasonably withheld, conditioned or delayed.

3.7 Payment and Performance Bonds. To the extent required by Applicable Law, and in any event for Construction Agreements in excess of $100,000 (unless otherwise agreed to by the ECSC, the County and the Bills), each of the Construction Providers shall be required to furnish and maintain in full force and effect, from the date of the Construction Agreements to which it is a party until the expiration of the warranty period set forth in such Construction Agreements, a performance bond and a labor and material payment bond in the full amount of the lump sum or GMP payable for the Work under such Construction Agreement in form and substance and issued by a surety satisfactory to the ECSC, the County and the Bills. The bonds shall be in favor of the ECSC, the County, the Bills and the CM and shall conform in all respects to all requirements imposed by Applicable Law. The ECSC shall pay, or arrange for the Construction Provider to pay, all premiums for such bonds, which premiums shall constitute Project Costs.

ARTICLE 4. MATTERS CONCERNING CONSTRUCTION OF THE PROJECT

4.1 Construction Representatives. Each of the ECSC, the County and the Bills shall appoint a representative to be available and actively involved in the activities contemplated by this Construction Coordinating Agreement from the date hereof until Final Completion of the Project. Each of the ECSC, the County and the Bills may remove and replace its Representative as and when it so desires and shall promptly notify the other Parties of any such change. Each of the Representatives shall have full access to the Stadium Complex (subject to safety considerations) and shall be permitted to review all Project Agreements and Plans and Specifications, including all drafts thereof (and to permit such other persons from the respective Representative's organization and such advisors and consultants as such Representative considers advisable or appropriate to review such Project Agreements and Plans and Specifications), and shall be notified in advance of and invited to attend all material meetings relating to the design and construction of the Project, including, without limitation, any meetings relating to the preparation of the Plans and Specifications and any periodic meetings with Project Providers concerning the status or quality of the construction of the Stadium Complex. Each of the Representatives shall be permitted to take such other persons from the respective Representative's organization and such advisors and consultants as such Representative considers advisable or appropriate onto the Stadium Complex (subject to safety considerations) and to such meetings.

4.2 Administration of the Construction Agreements.

(a) The ECSC or the Bills, as applicable, in cooperation with the other Parties, shall supervise, monitor and enforce the CM Agreement, the A/E Agreements and the Construction Agreements in such manner as is reasonably appropriate and necessary to complete the Project.

(b) The ECSC, in cooperation with the County and the Bills, shall cause the CM, the A/Es and all Construction Providers to ensure that all Work is done in a good and workmanlike manner, in accordance with the Plans and Specifications and in accordance with all Applicable Laws, including but not limited to, the Americans with Disabilities Act and any other similar measures designed to ensure or enhance handicapped access to public facilities.

(c) The ECSC or the Bills, as applicable, in cooperation with the other Parties, shall cause the CM or the A/Es to obtain or procure all necessary variances, permits, licenses and certificates of occupancy necessary for the design, development, construction and occupancy of the Project.

ARTICLE 5. DAMAGE TO THE PROJECT

5.1 Damage or Destruction Prior to Substantial Completion. If, at any time prior to Substantial Completion of the Project, Project Damage occurs, the ECSC shall commence and thereafter proceed as promptly as possible to repair, restore and replace the Project Damage so as to cause same to be repaired in accordance with the Plans and Specifications.

5.2 Insurance Proceeds. All proceeds from insurance maintained in accordance with this Construction Coordinating Agreement and paid on account of any Project Damage shall be deposited into the Special Account. The County shall maintain the Special Account and all funds deposited therein to fund the ECSC's repair, restoration and replacement obligations under this Construction Coordinating Agreement. The County shall not permit any funds deposited into the Special Account to be withdrawn prior to the completion of the repair, restoration or replacement of all of the Project Damage, except (i) for the purpose of making payments from time to time as repair, restoration or replacement work progresses in amounts equal to the sum of the cost of labor and materials incorporated into and used in such work and builders', architects' and engineers' fees and other charges in connection with such work and (ii) upon delivery to the County of a certificate of the A/E for each portion of the Project certifying that the amounts to be paid are then due and payable and have not theretofore been paid, a copy of which shall be provided to the ECSC and the Bills.

ARTICLE 6. PROJECT INSURANCE

6.1 Builders' Risk Insurance. To the extent commercially available and permitted by Applicable Law, throughout the Construction Period, the ECSC shall cause the CM to procure and maintain, at the expense of the ECSC, a policy or policies containing the following types of coverages:

(a) Comprehensive builder’s casualty and property insurance against any and all casualty or property loss or damage to the Project on an "all risk" peril basis (other than earthquakes and floods) including coverage against fire, extended coverage, vandalism, malicious mischief and special extended perils as contained in customary "all risk" policies in an amount not less than $___________; and

(b) Comprehensive builder’s casualty and property insurance against any and all loss or damage to the Project caused by earthquake or flood in an amount not less than $____________.

6.2 Liability Insurance. To the extent commercially available and permitted by Applicable Law, throughout the Construction Period, the ECSC shall, at its sole cost and expense, keep and maintain, or cause to be kept and maintained, a policy or policies containing the following types of coverages:

(a) Commercial general liability insurance, including coverage for injury or death of any person or damage to property occurring with respect to the Project with a single combined minimum limit coverage of not less than $1,000,000 per occurrence; and

(b) Workers’ compensation insurance in accordance with Applicable Law;

(c) Employer's liability insurance, as follows:

(i) bodily injury by accident-not less than $1,000,000 each accident;

(ii) bodily injury by disease-not less than $1,000,000 each employee;

(iii) bodily injury by disease-not less than $1,000,000 policy limit;

(d) Automobile liability insurance not less than $1,000,000 combined single limit each accident; and

(e) Umbrella liability insurance not less than $24,000,000 combined single limit each occurrence in excess of each of the coverages described in clauses (c), (e) and (f).

6.3 Requirements of Project Insurance Policies.

(a) Each Project Insurance Policy shall be with companies that are nationally recognized and, if underwriting primary coverage, that have a policyholder's rating of at least "A" and an "FPR" rating of at least "7" as listed at the time of issuance by A. M. Best Insurance Reports, or such other ratings as the ECSC, the County and the Bills may mutually agree, and are qualified to issue such insurance in the State of New York.

(b) Each Project Insurance Policy shall provide that it may not be canceled, terminated, reduced or materially changed unless at least 30 days' advance notice thereof has been provided to the Parties, except in the case of cancellation or termination due to a lapse for nonpayment, in which case only 10 days' advance notice shall be required.

(c) Each Project Insurance Policy shall include waivers of any recourse against the County and the Bills for payment of any premiums or assessments under such policy. Each Project Insurance Policy obtained in accordance with Sections 6.1(a) and 6.1(b) shall include waivers of subrogation against the Parties.

(d) Each Project Insurance Policy covering third-party liability shall contain a "cross-liability" endorsement or a "severability of interest" endorsement providing that coverage, to the maximum amount of the policy, shall be available despite any suit between the insured and any additional insured under such policy.

(e) The Project Insurance Policies shall not in the aggregate have deductibles in excess of $10,000.

(f) Each Project Insurance Policy obtained in accordance with Sections 6.1(a) and 6.1(b) shall be on a "completed value" form including "boiler and machinery" coverage, and shall contain an endorsement providing that, in the case of loss, if the Project costs more to restore due to changes in Applicable Law, then such increased costs shall be insured.

(h) Each Project Insurance Policy maintained in accordance with Sections 6.1(a) and 6.1(b) shall name the County and the ECSC as joint loss payees. Each Insurance Policy maintained in accordance with Sections 6.2(a), (b), (c) and (d) shall name the County and the Bills as additional insureds, as their interests may appear.

(i) Each Project Insurance Policy providing liability coverage shall contain an endorsement specifying this Construction Coordinating Agreement as an "insured contract."

(j) The ECSC shall deliver, or cause to be delivered, to the other Parties certificates of insurance and any other documentation reasonably required by such other Parties evidencing the existence of the Project Insurance Policies, such delivery to be made at least three (3) business days prior to the Commencement of Work. Within twenty-one (21) days after the issuance of any additional policies or amendments or supplements to any of the Project Insurance Policies, the ECSC shall deliver to the other Parties revised certificates of insurance reflecting any such addition, amendment or supplement. With respect to any Project Insurance Policy that expires by its terms prior to the Final Completion of the Project, the ECSC shall deliver to the other Parties certificates of insurance and any other documentation reasonably required by such other Parties evidencing the existence of the renewal or replacement of such Project Insurance Policy, such delivery to be made at least three (3) business days prior to the expiration of such Project Insurance Policy; provided that the ECSC may instead deliver a facsimile of the binder of insurance, such facsimile delivery to be made on or prior to the expiration of such insurance policy, and within ten (10) days after the expiration of such insurance policy, the actual certificate of insurance and any other required documentation shall be furnished to the other Parties.

6.4 Primary Coverage. The Project Insurance Policies shall provide primary coverage for third-party liability in connection with the Project. None of the Project Insurance Policies shall contain a provision relieving the insurer of liability for any loss by reason of the existence of other policies of insurance covering the Stadium Complex, or any part thereof, against the peril involved, whether collectible or not, if such other policies do not name the County and the Bills as additional insureds, with losses payable as their interests may appear.

ARTICLE 7. DEFAULT

7.1 Bills' Default. Any of the following events shall constitute a "Bills' Default":

(a) The Bills file a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or admit the material allegations of any such petition by answer or otherwise, or are dissolved or make an assignment for the benefit of creditors;

(b) Involuntary proceedings under any such bankruptcy law or insolvency act or for the dissolution of the Bills are instituted against the Bills, or a receiver or trustee is appointed for all or any material portion of the property of the Bills, and such proceeding is not dismissed or such receivership or trusteeship vacated within ninety (90) days after such institution or appointment;

(c) The Bills breach any of the agreements, terms, covenants, or conditions that this Construction Coordinating Agreement requires the Bills to perform, and such breach continues for a period of thirty (30) days after written notice from either the ECSC or the County to the Bills or, if such breach cannot be cured reasonably within such thirty (30) day period, if the Bills fail to diligently commence to cure such breach within thirty (30) days after written notice from the ECSC or the County and to diligently complete such cure thereafter.

(d) The Bills breach any of the agreements, terms, covenants or conditions set forth in either the Master Lease or the Stadium Lease that the Bills are required to perform or observe pursuant to the terms thereof and said breach continues beyond any applicable notice and cure period; or

(e) Any representation or warranty made by the Bills herein proves to be false or inaccurate in any material respect when made.

7.2 ECSC Default. Any of the following events shall constitute an "ECSC Default":

(a) The ECSC files a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or admits the material allegations of any such petition by answer or otherwise, or is dissolved or makes an assignment for the benefit of creditors;

(b) Involuntary proceedings under any such bankruptcy law or insolvency act or for the dissolution of the ECSC are instituted against the ECSC, or a receiver or trustee is appointed for all or any material portion of the property of the ECSC, and such proceeding is not dismissed or such receivership or trusteeship vacated within ninety (90) days after such institution or appointment;

(c) The ECSC breaches any of the agreements, terms, covenants, or conditions that this Construction Coordinating Agreement requires the ECSC to perform, and such breach continues for a period of thirty (30) days after written notice from either the Bills or the County to the ECSC or, if such breach cannot be cured reasonably within such thirty (30) day period, if the ECSC fails to diligently commence to cure such breach within thirty (30) days after written notice from the Bills or the County and to diligently complete such cure thereafter; or

(d) The ECSC breaches any of the agreements, terms, covenants or conditions set forth in either the Master Lease or the Stadium Lease that the ECSC is required to perform or observe pursuant to the terms thereof and said breach continues beyond any applicable notice and cure period; or

(e) Any representation or warranty made by the ECSC herein proves to be false or inaccurate in any material respect when made.

7.3 County Default. Any of the following events shall constitute a "County Default":

(a) The County breaches any of the agreements, terms, covenants, or conditions that this Construction Coordinating Agreement requires the County to perform, and such breach continues for a period of thirty (30) days after written notice from either the Bills or the ECSC to the County or, if such breach cannot be cured reasonably within such thirty (30) day period, if the County fails to diligently commence to cure such breach within thirty (30) days after written notice from the Bills or the ECSC and to diligently complete such cure thereafter; or

(b) The County breaches any of the agreements, terms, covenants or conditions set forth in either the Master Lease or the Stadium Lease that the County is required to perform or observe pursuant to the terms thereof and said breach continues beyond any applicable notice and cure period; or

(c) Any representation or warranty made by the County herein proves to be false or inaccurate in any material respect when made.

7.4 Default Remedies.

(a) Upon the occurrence of any one or more Bills' Defaults, (i) the ECSC shall have the option to cease funding any Project Costs not yet incurred, to terminate this Construction Coordinating Agreement or to exercise any of its other rights or remedies existing at law, in equity or otherwise and (ii) the County shall have the option to terminate this Construction Coordinating Agreement or to exercise any of its other rights or remedies existing at law, in equity or otherwise.

(b) Upon the occurrence of any one or more ECSC Defaults, (i) the Bills shall have the option to terminate this Construction Coordinating Agreement and/or exercise any of their other rights or remedies existing at law, in equity or otherwise and (ii) the County shall have the option to terminate this Construction Coordinating Agreement or exercise any of its other rights or remedies existing at law, in equity or otherwise. Notwithstanding the foregoing, the Bills may not exercise their right to terminate this Construction Coordinating Agreement unless and until (i) they shall have furnished the County with a notice of the ECSC Default and the County has failed to cure such ECSC Default within thirty (30) days following the furnishing of such notice (unless said ECSC Default cannot be cured within said thirty (30) day period, in which case said period shall be extended as long as the County is diligently pursuing a cure), and (ii) the existence of such ECSC Default has been confirmed by final decision of the arbitrators following arbitration conducted in accordance with Article 23 of the Stadium Lease.

(c) Upon the occurrence of any one or more County Defaults, (i) the Bills shall have the option to exercise any of its rights or remedies existing at law, in equity or otherwise and (ii) the ECSC shall have the option to exercise any of its rights or remedies existing at law, in equity or otherwise. Notwithstanding the foregoing, the Bills may not exercise any such right or remedy which would result in a termination of this Construction Coordinating Agreement unless and until (i) they shall have furnished the ECSC with a notice of the County Default and the ECSC has failed to cure such County Default within thirty (30) days following the furnishing of such notice (unless said County Default cannot be cured within said thirty (30) day period, in which case said period shall be extended as long as the ECSC is diligently pursuing a cure), and (ii) the existence of such County Default has been confirmed by final decision of the arbitrators following arbitration conducted in accordance with Article 23 of the Stadium Lease.

ARTICLE 8. DISPUTE RESOLUTION; TERMINATION

8.1 Arbitration. All disputes arising under or relating to this Construction Coordinating Agreement, or the breach thereof, shall be resolved by arbitration, conducted in Buffalo, New York, in accordance with the procedures outlined in Article 23 of the Stadium Lease.

8.2 Automatic Termination. In the event the Stadium Lease is cancelled or terminated for any reason, including, but not limited to, automatic cancellation pursuant to Section 7.1 thereof upon the delivery by the Bills of a notice establishing that Satisfaction was not achieved with respect to the Marketing Campaign, this Construction Coordinating Agreement shall automatically terminate and none of the Parties shall have any further rights or obligations hereunder.

ARTICLE 9. REPRESENTATIONS AND WARRANTIES

9.1 Representations and Warranties of the ECSC . The ECSC represents and warrants to the County and the Bills that:

(a) the ECSC is a business corporation duly organized and validly existing corporation under the laws of the State of New York, is in good standing under the laws of the State of New York, and has all requisite corporate power and authority to execute, deliver and perform its obligations under the Stadium Agreements;

(b) the ECSC is a duly organized subsidiary corporation of the UDC and, pursuant to the Act, possesses the "privileges, immunities, tax exemptions and other exemptions which enure to the UDC by virtue of the UDC's status as a public benefit corporation;

(c) the ECSC has all requisite power and authority to execute, deliver and perform its obligations under the Stadium Agreements;

(d) the Stadium Agreements have been duly authorized, executed and delivered by the ECSC and constitute the legal, valid and binding obligations of it, enforceable against it in accordance with the terms hereof and thereof, except to the extent enforceability is limited by bankruptcy, reorganization and other similar laws affecting the rights of creditors generally and by general principles of equity;

(e) the ECSC has obtained all authorizations, consents or approvals required for the execution, delivery and performance by it of the Stadium Agreements;

(f) to the best of its knowledge, the execution, delivery, and performance of the Stadium Agreements by the ECSC do not conflict with, nor will they result in a breach or violation of (with or without due notice and/or lapse of time, or both), any of the terms, conditions or provisions of (i) any Applicable Law, (ii) any order of any Governmental Authority or (iii) any charter document, indenture, mortgage, material contract or other material agreement or instrument to which the ECSC is a party or by which the ECSC or its properties is bound;

(g) the ECSC may, in compliance with Applicable Law, lease the Stadium Complex to the Bills pursuant to the terms of the Stadium Lease; and

(h) There are no actions, suits or proceedings pending, or to the best knowledge of the ECSC threatened, against or affecting it or the Project, which, if adversely determined, would impair the ability of the ECSC to perform its obligations under the Stadium Agreements, and it is not in default with respect to any judgment, decision, order, writ, injunction, decree or demand of any Governmental Authority.

9.2 Representations and Warranties of the County. The County represents and warrants to the ECSC and the Bills that:

(a) the County is a municipal corporation duly organized and existing under New York law;

(b) the County has all requisite municipal power and authority to execute, deliver and perform its obligations under the Stadium Agreements;

(c) the Stadium Agreements have been duly authorized, executed and delivered by the County and constitute the legal, valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except to the extent enforceability is limited by bankruptcy, reorganization and other similar laws affecting the rights of creditors generally and by general principles of equity;

(d) the County has obtained all authorizations, consents or approvals required for the execution, delivery and performance by it of the Stadium Agreements without any further legislative action;

(e) to the best of its knowledge, the execution, delivery, and performance of the Stadium Agreements by the County do not conflict with, nor will they result in a breach or violation of (with or without due notice and/or lapse of time, or both), any of the terms, conditions or provisions of (i) any Applicable Law, (ii) any order of any Governmental Authority or (iii) any charter document, indenture, mortgage, material contract or other material agreement or instrument to which the County is a party or by which the County or its properties is bound;

(f) the County may, in compliance with Applicable Law, lease the Stadium Complex to the ECSC pursuant to the terms of the Master Lease; and

(g) There are no actions, suits or proceedings pending, or to the best knowledge of the County threatened, against or affecting it or the Project, which, if adversely determined, would impair the ability of the County to perform its obligations under the Stadium Agreements, and it is not in default with respect to any judgment, decision, order, writ, injunction, decree or demand of any Governmental Authority.

9.3 Representations and Warranties of the Bills. The Bills represent and warrant to the ECSC and the County that:

(a) the Bills are a business corporation duly organized and validly existing corporation under the laws of the State of New York, are in good standing under the laws of the State of New York, and have all requisite corporate power and authority to execute, deliver and perform their obligations under the Stadium Agreements;

(b) the Stadium Agreements have been duly authorized, executed and delivered by the Bills and constitute the legal, valid and binding obligations of it, enforceable against it in accordance with the terms hereof and thereof, except to the extent enforceability is limited by bankruptcy, reorganization and other similar laws affecting the rights of creditors generally and by general principles of equity;

(c) the Bills have obtained all authorizations, consents, or approvals required for the execution, delivery and performance by it of the Stadium Agreements;

(d) to the best of its knowledge, the execution, delivery and performance of the Stadium Agreements by the Bills do not conflict with, nor will they result in a breach or violation of (with or without due notice and/or lapse of time, or both), any of the terms, conditions or provisions of (i) any Applicable Law, (ii) any order of any Governmental Authority or (iii) any charter document, indenture, mortgage, material contract or other material agreement or instrument to which it is a party or by which it or any of its properties are bound;

(e) the Bills may, in compliance with Applicable Law and with all contractual obligations of the Bills, lease the Stadium Complex pursuant to the terms of the Stadium Lease;

(f) the Bills are the valid and legal holder of, and have the exclusive rights with respect to, the Franchise, which Franchise is in full force and effect; and

(g) There are no actions, suits or proceedings pending, or to the best knowledge of the Bills threatened, against or affecting it or the Project, which, if adversely determined, would impair the ability of the Bills to perform its obligations under the Stadium Agreements, and it is not in default with respect to any judgment, decision, order, writ, injunction, decree or demand of any Governmental Authority.

ARTICLE 10. CERTAIN COVENANTS

10.1 Legal Opinions. Simultaneously with the execution and delivery of this Construction Coordinating Agreement, the ECSC, the County and the Bills will cause their respective legal counsel to deliver to the other Parties legal opinions in the respective forms attached hereto as Exhibits D(1) through D(3).

10.2 Permits and Licenses. All fees for the issuance of permits and licenses for the Project shall constitute ECSC Project Costs and shall be paid by the ECSC.

10.3 Marketing Campaign. In conjunction with the implementation of the Marketing Campaign, the Bills will, from time to time, but not less frequently than monthly, furnish the ECSC and the County with a written update detailing the Bills' efforts with respect to the Marketing Campaign, which update shall, at a minimum, include, a summary of the Marketing Expenses incurred to date, the total number of binding License Agreements entered into as of such date and the amount of License Fees for the 1999 NFL Season which would be produced thereby. On or before December 1, 1998, the Bills shall deliver to the ECSC and the County a final written report summarizing the results of the Marketing Campaign.

ARTICLE 11. INDEMNIFICATION

11.1 Indemnification of the Bills. Except to the extent that any injury or damage to persons or property on the Stadium Complex is caused by or results from the negligence or deliberate act of the Bills, any Affiliate of the Bills or their respective employees, contractors, agents, guests or invitees, the ECSC will neither hold nor attempt to hold the Bills, any Affiliate of the Bills or their respective employees or agents liable for, and the ECSC will indemnify, defend and hold harmless the Bills, all Affiliates of the Bills and their respective employees and agents from and against, any and all Losses incurred in connection with or arising from the negligence or deliberate act of the ECSC or its employees, contractors, agents, guests or invitees in the conjunction with the Project or any component thereof. If any action or proceeding is brought against the Bills, any Affiliate of the Bills, or their respective employees or agents by reason of any such claim for which the ECSC has indemnified any party hereunder, the ECSC, upon written notice from such indemnified party, will defend the same at the ECSC's expense, with counsel reasonably satisfactory to such indemnified party.

11.2 Indemnification of the County. Except to the extent that any injury or damage to persons or property on the Stadium Complex is caused by or results from the negligence or deliberate act of the County, any Affiliate of the County or their respective employees, contractors, agents, guests or invitees, the ECSC will neither hold nor attempt to hold the County, any Affiliate of the County or their respective employees or agents liable for, and the ECSC will indemnify, defend and hold harmless the County, all Affiliates of the County and their respective employees and agents from and against, any and all Losses incurred in connection with or arising from the negligence or deliberate act of the ECSC or its employees, contractors, agents, guests or invitees in the conjunction with the Project or any component thereof. If any action or proceeding is brought against the County, any Affiliate of the County, or their respective employees or agents by reason of any such claim for which the ECSC has indemnified any party hereunder, the ECSC, upon written notice from such indemnified party, will defend the same at the ECSC's expense, with counsel reasonably satisfactory to such indemnified party.

11.3 Survival. The provisions of this Article 11 will survive the expiration or termination of this Construction Coordinating Agreement.

11.4 Exercise of Certain Remedies. The Parties agree that significant costs will be incurred by the ECSC to maintain the insurance coverages required by this Construction Coordinating Agreement and, with respect to the Bills, required by the Stadium Lease. Accordingly, each Party agrees to pursue all available recoveries under such policies with respect to any loss suffered by, as applicable, an indemnified party and covered, in whole or in part, by such insurance policies before asserting any claim for Losses against another Party or its Affiliates.

ARTICLE 12. CONDITIONS PRECEDENT

12.1 PACB Approval. This Construction Coordinating Agreement, and the terms, covenants and conditions set forth herein shall be conditioned upon the receipt by the ECSC of written approval from the New York State Public Authorities Control Board as to the Project. In the event such approval is not obtained by the ECSC on or before ___________ __, 1998, this Construction Coordinating Agreement shall automatically become null and void and none of the Parties shall have any further rights or obligations hereunder.

12.2 Satisfaction/Acceptability of Bids. The obligations of the Parties with respect to the development and construction of the Project pursuant to this Construction Coordinating Agreement are conditioned upon the occurrence of the following events: (a) the completion to the satisfaction of the Parties on or before ______________ __, 1998 of the Plans and Specifications; (b) the achievement of Satisfaction (or the waiver of the necessity therefor in accordance with Section 7.1 of the Stadium Lease); and (c) the waiver (or lapse due to non-exercise) of the ECSC's right to terminate this Construction Coordinating Agreement pursuant to Section 3.3(c) hereof.

ARTICLE 13. MISCELLANEOUS PROVISIONS

13.1 Public Sector Capacity. Except for its obligations set forth in Section 2.2(a), in entering into this Construction Coordinating Agreement, the County is acting in a proprietary rather than a governmental capacity. Nothing contained herein shall limit the County from exercising its governmental or police powers with respect to the protection of the public health, safety or welfare.

13.2 Exculpatory Provisions. All covenants, stipulations, promises, agreements and obligations of the Parties contained herein shall be deemed to be covenants, stipulations, provisions, agreements and obligations of the Party making such covenant, stipulation, promise, agreement or obligation and not of any member, director, officer, employee or agent of such Party in his or her individual capacity, and no recourse shall be had for any claim hereunder against any such member, director, officer, employee or agent.

13.3 Assignment. Without the prior written consent of the other Parties, no Party may assign their interests in this Construction Coordinating Agreement to any Person. Notwithstanding the foregoing, (a) the Bills shall have the right to assign their rights under this Construction Coordinating Agreement to a Permitted Assignee and (b) the ECSC shall have the right to assign this Construction Coordinating Agreement to an Affiliate. To the extent that any assignment is approved or permitted hereunder, such assignment shall not relieve the assigning Party from any liability or obligation pursuant to this Construction Coordinating Agreement.

13.4 No Construction Against Drafting Party. The County, the ECSC and the Bills acknowledge that each of them and their counsel have had an opportunity to review this Construction Coordinating Agreement and that this Construction Coordinating Agreement will not be construed against the County or the ECSC merely because the County has prepared it.

13.5 No Waiver. No failure of any Party to require, and no delay by any Party in requiring, any other Party to comply with any provision of this Construction Coordinating Agreement shall constitute a waiver of the right to require such compliance. No failure of any Party to exercise, and no delay by any Party in exercising, any right or remedy under this Construction Coordinating Agreement shall constitute a waiver of such right or remedy. No waiver by any Party of any right or remedy under this Construction Coordinating Agreement shall be effective unless made in writing. Any waiver by any Party of any right or remedy under this Construction Coordinating Agreement shall be limited to the specific instance and shall not constitute a waiver of such right or remedy in the future.

13.6 Notices. Unless otherwise provided in this Construction Coordinating Agreement, any agreement, notice, request, instruction or other communication to be given hereunder by any Party to the others shall be in writing and (i) delivered personally (such delivered notice to be effective on the date it is delivered), (ii) mailed by certified mail, postage prepaid (such mailed notice to be effective four (4) days after the date it is mailed); (iii) sent by recognized overnight courier service (such couriered notice to be effective one (1) day after it is delivered to such service) or (iv) sent by facsimile transmission with a confirmation sent by way of one of the above methods (such facsimile notice to be effective on the date that confirmation of such facsimile transmission is received), addressed to the Party for whom it is intended at its address set forth in Section 1.1 of the Stadium Lease; provided that any Party may designate in a writing to the other Parties any other address or telecopier number to which, and any other Person to whom or which, a copy of any such notice, request, instruction or other communication should be sent.

13.7 Severability. If any provision of this Construction Coordinating Agreement proves to be illegal, invalid, or unenforceable, the remainder of this Construction Coordinating Agreement will not be affected by such finding, and in lieu of each provision of this Construction Coordinating Agreement that is illegal, invalid, or unenforceable, a provision will be added as a part of this Construction Coordinating Agreement as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

13.8 Written Amendment Required. No course of performance or other conduct hereafter pursued, accepted or acquiesced in, and no oral agreement or representation made in the future, by any Party to this Construction Coordinating Agreement, whether or not relied or acted upon, and no usage of trade, whether or not relied or acted upon, shall modify or terminate this Construction Coordinating Agreement, impair or otherwise affect any obligation of any Party pursuant to this Construction Coordinating Agreement or otherwise operate as a waiver of any such right or remedy. No modification of this Construction Coordinating Agreement or waiver of any such right or remedy shall be effective unless made in writing duly executed by the duly authorized representatives of the Parties to this Construction Coordinating Agreement.

13.9 Entire Agreement. The Stadium Agreements and the exhibits, schedules and addenda thereto, if any, contain the entire agreement among the County, the ECSC and the Bills with respect to the matters set forth herein.

13.10 Captions. The captions of the various articles and sections of this Construction Coordinating Agreement are for convenience only and do not necessarily define, limit, describe, or construe the contents of such articles or sections.

13.11 Jurisdiction; Venue. Each Party hereby consents to the jurisdiction of the courts of the State of New York and/or the United States District Court for the Western District of New York in any action or proceeding arising under or relating to this Construction Coordinating Agreement (with Buffalo, New York as the venue for any action or proceeding). Each Party agrees not to institute suit against the others in a court in any jurisdiction, except as stated above, without the other Parties' consent. The Parties further agree that all matters with respect to the validity, construction or interpretation of this Construction Coordinating Agreement shall be governed by the internal law of the State of New York, without reference to any conflict of laws provisions.

13.12 Binding Effect. The covenants, conditions, and agreements contained in this Construction Coordinating Agreement will bind and inure to the benefit of the County, the ECSC and the Bills and their respective heirs, distributees, executors, administrators, successors and assigns.

13.13 Counterparts. This Construction Coordinating Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. Any Party may execute this Construction Coordinating Agreement by facsimile signature and the other Parties shall be entitled to rely on such facsimile signature as evidence that this Construction Coordinating Agreement has been duly executed by such Party . Any Party executing this Construction Coordinating Agreement by facsimile signature shall immediately forward to the other Parties an original signature page by overnight mail.

13.14 Applicable Standard. Any approval, consent, decision or election to be made or given by a Party hereunder may be made or given in such Party's sole judgment and discretion, unless a different standard (such as reasonableness) is provided for explicitly.

13.15 Additional Assurances. From time to time after the date of this Construction Coordinating Agreement, without further consideration and subject to the other terms of this Construction Coordinating Agreement, the Parties shall promptly execute and deliver such other instruments and take such other action as any other Party reasonably may request to consummate the transactions contemplated hereby.

13.16 No Third Party Beneficiaries. This Construction Coordinating Agreement is solely for the benefit of the Parties, and their successors and permitted assigns and no provisions of this Construction Coordinating Agreement shall be deemed to confer upon any other Person any remedy, claim, liability, reimbursement, cause of action or other right.

13.17 No Merger. The terms and provisions of this Construction Coordinating Agreement (including, without limitation, the representations, warranties and covenants) shall not merge, be extinguished or otherwise affected by the delivery and execution of any document delivered pursuant to any Stadium Agreement unless such document shall specifically so state and shall be signed by the Parties.

13.18 Non-Discrimination Covenants. Each of the Parties represents and warrants that it will not discriminate against employees or applicants for employment with respect to the Project because of race, creed, color, national origin, sex, sexual orientation, age, disability or marital status, and that it shall undertake a program (or continue any existing programs) to ensure that minority members and women are afforded equal opportunities without discrimination with respect to such employment.

13.19 Project Labor Agreement. Pursuant to paragraph 1(n) of the CM Agreement, the Bills shall cause the CM to provide an analysis of the types and quantities of labor required for the Project. As part of such analysis, the CM shall make a determination in accordance with Applicable Law as to whether or not a project labor agreement is appropriate for the Project.

13.20 WBE/MBE. During the design, development and construction of the Project, the ECSC shall be primarily responsible for monitoring (a) the employment of minority and women-owned business enterprises by the CM, the A/Es and the Construction Providers and (b) the compliance by the CM, the A/Es and the Construction Providers with respect to minority and woman workforce participation goals as set forth in the Affirmative Action Plan.

13.21 Limited Liability of ECSC. Notwithstanding anything contained herein to the contrary, the liability and obligation of ECSC to perform and make good the obligations contained herein shall not be enforced by any Proceeding wherein damages or any money judgement shall be sought against ECSC, ESDC or the State; provided, however, that the foregoing limitation shall not be construed so as to limit the ability of any Party to commence a Proceeding against ECSC seeking:

(a) Recovery for Losses arising out of the negligence or willful misconduct of ECSC;

(b) Recovery for Losses arising out of the negligence or willful misconduct of any employee of ECSC;

(c) Recovery for Losses arising out of the negligence or willful misconduct of any Person at the Stadium Complex at the behest, request or invitation of ECSC (including any guest or invitee in conjunction with an ECSC sponsored Civic Event, but excluding any contractor retained by ECSC for the Project not acting upon the direction of ECSC);

(d) Recovery of any Project Insurance Policy proceeds;

(e) Contribution from ECSC for up to $63,250,000 (or such greater amount as may be approved by the ECSC as the Budget) to fund the construction of the Project as and when contemplated by the Construction Coordinating Agreement and the Project Agreements;

(f) Reimbursement from ECSC for Operating Expenses and Game Day Expenses in accordance with Section 9.4 of the Stadium Lease;

(g) Payment by the ECSC of Working Capital Assistance in accordance with Section 11.1 of the Stadium Lease;

(h) Payment by ECSC of additional rent in accordance with Section 11.3 of the Stadium Lease;

(i) Payment by ECSC of additional rent in accordance with Section 3.1(b) of the Master Lease; and/or

(j) Payment by ECSC of the ECSC Project Costs pursuant to Section 2.3(h) of this Construction Coordinating Agreement.

IN WITNESS WHEREOF, the Parties have executed this Construction Coordinating Agreement as of the day and year set forth above.

CORPORATE:154783_6 (3BFJ_6)

Schedule 1.2

Defined Terms

(a) Alternates: The designated groups of optional construction activities related to the Stadium Complex set forth on the list attached to this Construction Coordinating Agreement as Exhibit C, as may be modified, amended or supplemented pursuant to Section 3.6(f).

(b) Approved Alternate: Any Alternate proposed by the Bills and accepted by the ECSC and the County in accordance with Section 3.6.

(c) A/E: For any Work Action Item or Alternate, the Person whose name appears opposite such Work Action Item or Alternate on Schedule 3.1 or such other qualified, licensed architectural/engineering firm or firms having demonstrable experience in designing projects similar to the applicable Work Action Item or Alternate that are selected and approved in accordance with Section 3.1(b).

(d) A/E Agreement: Any agreement between the Bills or the ECSC, as the case may be, and an A/E with respect to the design of the Work Action Item or Alternate in question.

(e) Affirmative Action Plan: The plan setting forth the minority and woman workforce participation goals for the Project as agreed to by the Parties, which is attached to the Construction Coordinating Agreement as Exhibit E.

(f) Bills Change Order: A Change Request submitted by the Bills which is approved by the County in accordance with Section 3.5.

(g) Bills Project Costs: (a) The amount by which any Bills Change Order or Alternate causes the Project Costs to exceed the Budget; and (b) those costs associated with the evaluation, budgeting, design and managing of Change Requests submitted by the Bills as provided in Section 3.5(b).

(h) Bills Representative: The representative appointed by the Bills pursuant to Section 4.1.

(i) Budget: The total budget for the Project set forth in Exhibit B to this Construction Coordinating Agreement, as may be modified, amended or supplemented pursuant to Section 3.6.

(j) Budget Surplus: The amount by which the Budget exceeds actual Project Costs.

(k) Change Order: Either a County Change Order or a Bills Change Order.

(l) Change Request: A written request to change the Plans and Specifications that does not in the reasonable opinion of the non-requesting Party materially alter the overall function or design of the Project.

(m) CM: ADF Construction Corporation, or such other qualified, licensed construction manager having demonstrable experience in managing and design and construction of projects similar to the Project that is selected and approved in accordance with Section 3.1(b).

(n) CM Agreement: The Agreement, dated as of February 16, 1998, between the Bills and ADF Construction Corporation with respect to the management of the design and construction of the Project.

(o) Commencement of the Work: The commencement of significant construction activities related to the Project.

(p) Construction Agreement: Any agreement that relates to the development or construction of the Project between the ECSC and any Construction Provider, or any between two Construction Providers.

(q) Construction Documents: Any design document classified as a "Construction Document" under any A/E Agreement.

(r) Construction Period: The period beginning on the Commencement of the Work and continuing until Final Completion of the Project.

(s) Construction Provider: Any contractor, consultant or other Person furnishing materials or construction services for the Project.

(t) Corrective Work: Any Work necessary to correct Rejected Work or to repair or replace any damage to the Project or the Stadium Complex caused by the construction of the Project.

(u) Corrective Work Costs: All out-of-pocket fees, costs and expenses whatsoever incurred by any of the Parties in connection with the performance of the Corrective Work.

(v) County Change Order: A Change Request submitted by the County which is approved by the Bills in accordance with Section 3.5.

(w) County Project Costs: (a) The amount by which any County Change Order causes the Project Costs to exceed the Budget; (b) those costs associated with the evaluation, budgeting, design and managing of Change Requests submitted by the County as provided in Sections 3.5(b); and (c) the amount by which the bids for the Project exceed the Budget which the County agrees to pay pursuant to Section 3.3(c).

(x) County Representative: The representative appointed by the County pursuant to Section 4.1.

(y) Design Development Document: Any design document classified as a "Design Development Document" under any A/E Agreement.

(z) Design Funding Agreement: The Design Funding Agreement, dated as of February 27, 1998, between the UDC and the Bills pursuant to which the UDC has agreed, on behalf of the ECSC, to reimburse the Bills for Project Costs incurred pursuant to certain Professional Agreements entered into by the Bills prior to the Effective Date.

(aa) ECSC Project Costs: (a) Any additional costs incurred under the Project Agreements or otherwise as a result of the ECSC's failure to timely pay or perform any of its obligations under the Project Agreements when the Bills or the County, as the case may be, shall have timely paid or performed any obligations under such Project Agreements directly related thereto; and (b) the amount by which the bids for the Project exceed the Budget which the ECSC agrees to pay pursuant to Section 3.3(c).

(bb) ECSC Representative: The representative appointed by the ECSC pursuant to Section 4.1.

(cc) Effective Date: The date on which this Construction Coordinating Agreement is executed and delivered by all Parties.

(dd) Final Completion of the Project: The delivery by the ECSC to the Bills and the County of a written certification from the CM and all A/Es establishing that the Project is completed and that all Punch List Items and Corrective Work have been fully and completely performed in accordance with the Plans and Specifications.

(ee) GMP: Guaranteed maximum price.

(ff) Lease Agreements: The Stadium Lease and the Master Lease.

(gg) Major Change: Any material amendment, modification, addition or deletion with respect to the Plans and Specifications.

(hh) Marketing Campaign: The marketing campaign to be carried out by the State and the Bills prior to December 1, 1998, the object of which shall be to secure binding License Agreements for terms of not less than five (5) years each, which will produce aggregate License Fees for the 1999 NFL Season equal to or greater than $11,000,000.

(ii) Master Project Schedule: The schedule prepared by the Construction Manager pursuant to Sections 1.1(d) and 1.1(g) of the CM Agreement and approved by the Parties in accordance with Section 3.2 that reflects the master schedule of the design, purchase, construction and development of the Project, as further modified, amended or supplemented in accordance with Section 3.2.

(jj) Plans and Specifications: The graphic and pictorial documents depicting the design, location and dimension of the Project, together with the written requirements for the materials, equipment, construction systems, standards and workmanship of the Project, including, but not limited to the Construction Documents, the Design Development Documents and the Schematic Design Documents.

(kk) Professional Agreements: The CM Agreement and the A/E Agreements.

(ll) Project: The renovation, refurbishing and improvement of the Stadium Complex as outlined in the Development Study, as modified by any Approved Alternates.

(mm) Project Agreements: The Professional Agreements and the Construction Agreements.

(nn) Project Costs: All out-of-pocket fees, costs and expenses whatsoever incurred by any of the Parties in connection with the design and construction of the Project, including, but not limited to, all Corrective Work Costs, all fees and expenses paid by the Bills to the CM or any A/E pursuant to the Design Funding Agreement, all costs incurred by the County with respect to the Survey, all A/E fees and expenses, all CM fees and expenses, and all sums paid by the ECSC for insurance pursuant to Article 6 of this Construction Coordinating Agreement, but excluding any Bills' Projects Costs, any County Project Costs and any fees or expenses incurred by any of the Parties for "in-house" personnel.

(oo) Project Damage: Any Casualty that occurs prior to Substantial Completion of the Project.

(pp) Project Insurance Policy: Any policy of insurance required to be maintained by or on behalf of the ECSC pursuant to Section 6.1.

(qq) Punch List Items: As to any Work Action Item or Alternate, any uncompleted, insubstantial Work consisting of minor construction details, mechanical adjustments or decorations, the non-completion of which does not materially interfere with the use of such Work Action Item or Alternate for its intended purposes.

(rr) Rejected Work: Any Work rejected by any A/E, the County or the Bills because of non-conformance with the Plans and Specifications, whether observed before or after Substantial Completion of the Work Action Item to which such Work relates.

(ss) Representatives: The Bills' Representative, the County Representative and the ECSC Representative.

(tt) Schematic Design Document: Any design document classified as a "Schematic Design Document" under any A/E Agreement.

(uu) Special Account: A segregated account to be established and maintained by the County into which all insurance and condemnation proceeds are to be deposited.

(vv) Stadium Lease: The Stadium Lease, dated as of July __, 1998, between the ECSC and the Bills.

(ww) Substantial Completion: (a) As to any Work Action Item, the delivery by the ECSC to the County and the Bills of a Substantial Completion Certificate which certifies that except for Punch List Items the Work Action Item is completed in accordance with the Plans and Specifications, and describes in reasonable detail such Punch List Items, and (b) as to the Project, the delivery by the ECSC to the County and the Bills of (i) a Substantial Completion Certificate which certifies that except for Punch List Items, all Work Action Items are completed in accordance with the Plans and Specifications and describes in reasonable detail such Punch List Items, (ii) a certificate of occupancy for the Project from all applicable Governmental Authorities, and (iii) final waivers of lien and general releases from all Construction Providers.

(xx) Substantial Completion Certificate: A written certification from the applicable A/E to the County, the Bills and the CM as to the completion status of a Work Action Item or the Project.

(yy) Survey: The boundary survey of the Stadium Complex, dated January 15, 1998, last revised April 6, 1998, Job No. 988010, prepared by TVGA Engineering, Surveying, P.C.

(zz) Work: Construction activities related to the Project.

(aaa) Work Action Items: Each Work Action Item as identified in the Development Study.

 

 

 

CORPORATE:154783_9 (3BFJ_9)