EXHIBIT 10.10
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ENERGY SERVICES AGREEMENT AMENDMENT NO. 1
This Amendment No. 1 is entered into as of this First day of July, 1999, by and
between Atlantic-Pacific Las Vegas, LLC, a Delaware limited liability company
("Seller"), and Grand Canal Shops Mall, LLC, a Delaware limited liability
company ("Buyer"). Capitalized terms used herein have the same meaning as used
in the Agreement defined below.
WITNESSETH:
WHEREAS, Grand Canal Shops Mall Construction, LLC and Seller have entered into
an Energy Services Agreement (the "Agreement"), dated May 1, 1997; and
WHEREAS, Grand Canal Shops Mall Construction, LLC has assigned its rights and
obligations under this Agreement and the Easement Agreement to Buyer; and
WHEREAS, Seller has established a staff of full time employees for the purpose
of providing Operations and Maintenance Services pursuant to Article 3.2 of the
Agreement, and
WHEREAS, Buyer's affiliate, Venetian Casino Resort, LLC (VCR), has established a
staff of full time employees for the purpose of operating and maintaining
Buyer's Facilities, and
WHEREAS, Buyer and Seller have mutually agreed to utilize the services of each
others employees to the extent appropriate and practical ("Staff Consolidation")
for the purpose of minimizing the size of each staff, such minimization
resulting in significant labor cost savings, and
WHEREAS, in connection with the Staff Consolidation as described herein, Buyer
and Seller agree that Buyer shall direct and supervise Seller's employees,
subject to the provisions and qualifications contained in the Agreement and this
Amendment No. 1.
NOW, THEREFORE, in consideration of the premises and mutual covenants,
conditions and agreements set forth herein and such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller, each intending to be legally bound, do hereby agree to modify
the Agreement as follows:
1. Section 3.3, Energy Management Services, add the following after the fourth
sentence: Buyer shall have the right, but not the obligation, to (i) review
the performance of the Energy Management Services on an on-going basis,
(ii) provide comments and suggestions regarding the performance of the
Energy Management Services, and (iii) make recommendation regarding the
purchase of supplies of electricity, natural gas, and alternate fuels.
Notwithstanding the second sentence of this Section 3.3, Seller shall
consider such suggestions and recommendations during the discharge of its
obligations herein, and implement them.
2. Section 4.2 (a), Operations and Maintenance Services Payments, replace the
word "Contract" with the word "Budget" in the third line.
3. Section 4.5, Billings and Payments, delete paragraph (iii) in its entirety
and revise the numbering of the succeeding paragraphs accordingly.
4. Section 4.5 (c), Billings and Payments, delete the word "plus" in the
fourth line and delete "(ii) the cost of any Thermal Energy provided to
Buyer during the preceding calendar month in an amount equal to the product
of the Unit Variable Costs and Buyer's actual, metered consumption of
Thermal Energy during such period".
5. Section 7.2, Seller's Insurance, Replace "set forth on Schedule 7.2" in the
first line with "of this Agreement".
6. Section 7.5, Evidence of Insurance, add the following sentence at the end
of the paragraph: "Buyer and Seller shall, on each anniversary date of this
Agreement, provide revised and updated certificates to the other party, if
necessary. Buyer and Seller agree that prior to providing such
certificates, each party will review the insurance requirements of this
Agreement for the purpose of confirming that such requirements remain
appropriate and that no duplication of insurance exists between Buyer and
Seller".
7. Section 13.5, Notice, revise Seller's address to the following:
Atlantic Pacific Las Vegas, LLC
1825 Atlantic Avenue
Atlantic City, NJ 08400
Attention: General Manager
Telefax (609) 572-7200
8. SCHEDULE 3.2A, Operation And Maintenance Services,
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A. add the following at the end of the first sentence of the first
paragraph: "in a manner which is consistent with the mission and goals
of Buyer's and Other Customer's business operations".
B. add the following at the beginning of the second paragraph: "Seller
will integrate its operations and maintenance staff ("Staff
Consolidation") with the staff of the Venetian Casino Resort, LLC
building maintenance staff (the "Venetian Facilities Department") for
the purpose of organizational coordination and utilization of the
talents and capabilities of members of the integrated staff by either
the Venetian Facilities Department or Seller. The Venetian Facilities
Department shall direct and supervise Seller's operation and
maintenance services (such direction and supervision to include,
without limitation, decisions with respect to the implementation of
Staff Consolidation and decisions with respect to the amount of
Seller's personnel that is necessary for Buyer's business and Other
Customer's operations) to the extent necessary to realize the benefits
of Staff Consolidation; provided however that under no circumstances
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shall Seller be directed to perform operation and maintenance services
that would be inconsistent with Prudent Operating Practice and/or
Seller's obligations under this Agreement. Any dispute in connection
with the proviso clause of the preceding sentence shall be resolved in
accordance with clause (3) of Amended and Restated Schedule 4.2. To
the extent directed by Buyer,"
C. replace the fourth sentence of the second paragraph with the following
sentence: " Buyer shall supply, or cause to be supplied, all goods and
materials required to operate and maintain the Central Plant , the
Other Facilities, and Buyer's Equipment, unless Buyer directs Seller
to do, in which case, the cost of such goods and materials shall be
included in Seller's O&M Budget."
D. replace the fourth paragraph of Section I. Staffing, with the
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following:
"Seller will execute the work by providing a staff which, as of the
HVAC Completion date, consists of the types and quantity of the
following personnel:
o Energy Facility Manager 1
o Maintenance Manager 1
o Central Plant Manager 1
o Environ/Safety Manager 1
o Shift Supervisors 4
o Maintenance Clerk 1
o Administrative Assistant 1
o Senior Facilities Technicians 19
o Assistant Facilities 2
Technicians 10
o Central Plant Operators 2
o Instrument/Electricians 3
o Duty Engineers 3
9. SCHEDULE 4.2, O&M Services Payment Determination, replace SCHEDULE 4.2 with
the attached AMENDED AND RESTATED SCHEDULE 4.2.
10. All references in the Agreement to "Unit Variable Cost" or "Unit Variable
Share" shall be deemed deleted.
IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to be duly
executed and delivered as of the date and day first above written.
Grand Canal Shops Mall, LLC Atlantic Pacific Las Vegas, LLC
("Buyer) ("Seller")
By: /s/ David Friedman By: /s/ Carl Fogler
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Name: David Friedman Name: Carl Fogler
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Title: Secretary Title: Vice President
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