10.1

RFP – Waterfront Toronto – River Square Neighbourhood – December 5, 2007

Waterfront Toronto

REQUEST FOR PROPOSALS

[Insert name of Project, Logo]

TABLE OF CONTENTS OF THE REQUEST FOR PROPOSALS

PageSECTION 1 - INTRODUCTION.........................................................................................1

1.1 General.......................................................................................................1

1.2 Prequalified Parties, Prequalified Subcontractors and Respondent Representatives.........................................................................................1

1.3 Fairness Advisor.........................................................................................2

SECTION 2 – THE RFP DOCUMENTS AND THE DATA ROOM..................................2

2.1 RFP Documents.........................................................................................2

2.2 Conflicts or Inconsistencies in Documents.................................................2

2.3 Distribution of Documents to Respondents................................................3

2.4 Data Room.................................................................................................3

2.5 Respondent Investigations.........................................................................4

SECTION 3 – THE RFP PROCESS................................................................................4

3.1 RFP Process Timetable.............................................................................4

3.2 Questions and RFP Documents Comments..............................................5

3.2.1 Contact Person...............................................................................5

3.2.2 Clarification/Question Submission Process....................................5

3.2.3 Draft Agreement Documents Comments........................................6

3.3 Communications Restrictions.....................................................................6

3.3.1 Communications with Municipalities, Other Government Authorities and Utilities...................................................................6

3.3.2 Prohibited Contacts and Lobbying Prohibition................................7

3.3.3 Media Releases, Public Disclosures and Public Announcements..7

3.3.4 Restrictions on Communications between Respondents – No Collusion.........................................................................................8

3.4 Meetings with Respondents.......................................................................8

3.4.1 Respondents’ Meeting....................................................................8

3.4.2 Commercially Confidential Meetings..............................................8

3.5 Site Tour and Additional Site Visit..............................................................9

3.5.1 Scheduled Site Tour.......................................................................9

3.5.2 Additional Site Visit.........................................................................9

3.5.3 Liability During Site Tour and Site Visit..........................................9

3.6 Changes to Respondents and Respondent Team Members.....................9

3.7 Addenda/Changes to the RFP Documents..............................................10

3.8 Confidentiality and Copyright...................................................................11

3.8.1 Confidentiality Agreements...........................................................11

3.8.2 Confidential Information................................................................11

3.8.3 Copyright and Use of Information in Proposals............................12

3.9 Conflict of Interest....................................................................................13

3.9.1 Conflict of Interest.........................................................................13

3.9.2 Waterfront Toronto Advisors.........................................................13

3.10 Respondent Costs....................................................................................13

SECTION 4 – PROPOSAL – FORM AND CONTENT REQUIREMENTS....................14

4.1 General Submission Requirements..........................................................14

4.1.1 Format of the Proposal.................................................................14

4.1.2 Content of the Proposal – General...............................................14

SECTION 5 – SUBMISSION, WITHDRAWAL AND MODIFICATION OF THE PROPOSAL.......................................................................................17

5.1 Submission of Proposal –General Requirements....................................17

5.2 Withdrawal of Proposals...........................................................................18

5.3 Amendment of Proposal...........................................................................18

SECTION 6 – EVALUATION, CLARIFICATION AND VERIFICATION OF PROPOSALS.....................................................................................18

6.1 Evaluation Committee and Advisors........................................................18

6.2 Waterfront Toronto Clarification and Verification of Proposals.................18

6.3 Steps in the Evaluation Process...............................................................19

6.3.1 Step 1 – Completeness of Proposals...........................................19

6.3.2 Step 2 – Review of the Proposal Submission Form.....................19

6.3.3 Step 3 – Review of Parts A, B, C, D and E of the Proposal.........19

6.3.4 Step 4 – Review of the Financial Submission Form Submitted by the Respondent............................................................................20

6.3.5 Step 5 – Interview.........................................................................21

6.3.6 Step 6 – Establishing a Final Proposal Score..............................21

SECTION 7 – GENERAL EVALUATION AND DISQUALIFICATION PROVISIONS. .21

7.1.1 Waterfront Toronto’s Discretion in Determining Completeness, Scoring and Ranking....................................................................21

7.1.2 Disqualification.............................................................................22

SECTION 8 – COMPETITION, NEGOTIATIONS AND THE IDENTIFICATION OF A PREFERRED RESPONDENT...........................................................23

8.1 Evaluation Results and the Identification of a Preferred Respondent or Negotiations Respondents.......................................................................23

SECTION 9 – PREFERRED RESPONDENT...............................................................23

9.1 Preferred Respondent Obligations...........................................................23

SECTION 10 - GENERAL LEGAL MATTERS AND RIGHT TO ACCEPT OR REJECT24

10.1 RFP Not a Bidding Contract.....................................................................24

10.2 Special Circumstances.............................................................................24

10.3 Waterfront Toronto’s Liability for Respondent’s Costs.............................25

10.4 Applicable Law, Attornment and Limit on Liability....................................25

10.5 Licenses, Permits, etc..............................................................................25

10.6 Power of Legislative Assembly.................................................................26

SECTION 11 – NOTIFICATION AND DEBRIEFING....................................................26

SECTION 12 - DEFINITIONS.......................................................................................26

12.1 General.....................................................................................................26

12.2 RFP Definitions........................................................................................26

RFP – Waterfront Toronto – River Square Neighbourhood – December 5, 2007 Page 1 of 28

REQUEST FOR PROPOSALS

SECTION 1 - INTRODUCTION

1.1 General

(1) This Request for Proposals (“RFP”) is issued by the Toronto Waterfront Revitalization Corporation (“Waterfront Toronto”), on behalf of itself, the Government of Ontario and the Ministry of Public Infrastructure Renewal (“PIR”). Respondents acknowledge and agree that the intention of this RFP Process is for Waterfront Toronto to choose a negotiating partner with whom to attempt to negotiate a final set of agreement documents in respect of the Project. In accordance with RFP Section 10.1, this is a non-binding competitive process. Respondents should note that Waterfront Toronto is not an agent of the Government of Ontario.

(2) A brief description of the project that is the subject of this RFP (the “Project”) is set out in the RFP Data Sheet. A detailed description of the Project is contained in the documentation in the Data Room and in the Draft Agreement Documents.

(3) Subject to RFP Section 3.6, only those parties that were prequalified through the Project’s Request for Qualifications (“RFQ”) process that preceded this RFP are eligible to participate in the RFP Process. The prequalified parties are listed in the RFP Data Sheet (“Prequalified Parties”). In this RFP, Prequalified Parties that submit documents in response to this RFP are referred to as “Respondents” and their submissions are referred to as “Proposals”. The entity that is selected by Waterfront Toronto to enter into the final agreements with Waterfront Toronto is referred to as the “Preferred Respondent”. For the purposes of convenience, in this RFP the expression “Respondents” also includes Prequalified Parties prior to the submission of their Proposals.

(4) The procurement process to select a Preferred Respondent shall commence with the issuance of this RFP and shall terminate on the date the agreement of purchase and sale is executed by Waterfront Toronto with the Successful Respondent (“Commercial Close”) (the “RFP Process”).

(5) Waterfront Toronto will manage the RFP Process on behalf of the Government of Ontario and PIR and Waterfront Toronto shall be the single point of contact for Respondents for this RFP Process. During the RFP Process, Respondents shall contact Waterfront Toronto only through the Contact Person as set out in RFP Section 3.2.1.

(6) While Waterfront Toronto will manage the procurement process in respect of the Project, the Preferred Respondent, subject to the requirements and conditions of the RFP Documents, will actually enter into the final forms of the Draft Agreement Documents with the Government of Ontario or Waterfront Toronto party or parties named in the Draft Agreement Documents themselves (the “Signing Party” or “Signing Parties”, as applicable).

1.2 Prequalified Parties, Prequalified Subcontractors and Respondent Representatives

(1) The prequalification documents submitted by each of the Prequalified Parties in the RFQ process that preceded and was with respect to this RFP Process are referred to as a Prequalified Party’s “Prequalification Submission”.


(2) All correspondence from Waterfront Toronto to a Respondent will be sent to the person identified, in the Respondent’s Prequalification Submission, to receive information and notices on behalf of the Respondent (the “Respondent Representative”). Each Respondent is solely responsible to ensure that all contact information of the Respondent Representative is accurate and updated at all times during the RFP Process. Respondents may update or revise their Respondent Representatives’ contact information by notifying the Contact Person, in writing.

1.3 Fairness Advisor

Waterfront Toronto has retained the Fairness Advisor named in the RFP Data Sheet to monitor the RFP Process.

SECTION 2– THE RFP DOCUMENTS AND THE DATA ROOM

2.1 RFP Documents

(1) The RFP Documents (the “RFP Documents”) are:

(a) the RFP;

(b) Schedule 1 – RFP Data Sheet;

(c) Schedule 2 – Respondent Submission Forms consisting of:

(i) Form 2–1 – Proposal Submission Form;

(ii) Form 2–2 – Personnel Submission Form;

(iii) Form 2–3 – Financial Submission Form;

(d) Schedule 3 –Draft Agreement Documents (including all related Schedules, Appendices and Attachments for each Draft Agreement Document) as listed in the RFP Data Sheet; and

(e) Addenda to the RFP Documents, if any.

(2) The RFP Documents shall be read as a whole. The Schedules and Addenda, if any, constitute an integral part of this RFP and are incorporated by reference. For greater clarity, Background Information documents are not RFP Documents.

2.2 Conflicts or Inconsistencies in Documents

(1) For the purpose of the RFP Process, if there are any conflicts or inconsistencies among the terms and conditions of the documents comprising RFP Documents, the following shall apply:

(a) In respect of matters of interpretation related to the RFP Process and all competitive procurement process matters, the RFP shall prevail over the Schedules to the RFP during the RFP Process; and


(b) In respect of all matters of interpretation of the Draft Agreement Documents themselves the provisions of each of the Draft Agreement Documents dealing with conflicts or inconsistencies shall govern.

(2) Despite RFP Section SECTION 2(1), if the Respondent believes that there is any term or condition in any RFP Document that is ambiguous, or that conflicts or is inconsistent with any other term or condition in the RFP Documents, the Respondent shall notify Waterfront Toronto of that ambiguity, conflict or inconsistency in accordance with RFP Section 3.2.2 and by the deadline set out in the RFP Data Sheet for the submission of questions.

(3) If there is a conflict or inconsistency between,

(a) Waterfront Toronto’s electronic version of an RFP Document as contained in the Data Room; and

(b) any other version of the same RFP Document (whether in electronic or hard copy);

Waterfront Toronto’s electronic version as contained in the Data Room shall govern.

(4) If there is any conflict or inconsistency between documents, including RFP Documents, contained in the Data Room and documents that are downloaded by the Respondent, the documents contained in the Data Room shall govern.

(5) Unless Respondents are expressly notified otherwise, if there is any conflict or inconsistency between two versions of the same RFP Document contained in the Data Room, the RFP Document of the later date shall prevail over the same RFP Document of an earlier date. For the purposes of this RFP Section SECTION 2(5), the date of each RFP Document shall be determined by the date and time when that document was placed in the Data Room by Waterfront Toronto.

2.3 Distribution of Documents to Respondents

(1) Waterfront Toronto circulated this RFP directly to each Respondent’s Representative by giving notice to the Respondent Representative that a hard copy of the RFP Documents was available for pick-up at the Waterfront Toronto offices. Waterfront Toronto will circulate all other RFP Documents, including Addenda, by placing them in the Data Room and notifying the Respondent Representatives by e-mail that RFP Documents or Addenda, as applicable, have been added to the Data Room. Notification to Respondents by Waterfront Toronto that documents have been added to the Data Room is a courtesy only and Respondents are solely responsible to ensure that they reviewed all documents in the Data Room in accordance with RFP Section SECTION 2(3) and, in particular, have reviewed all documents in the Data Room immediately prior to submitting Proposals.

2.4 Data Room

(1) Waterfront Toronto has established an electronic data room (the “Data Room”) at a secure website address for,

(a) the distribution of RFP Documents and Addenda (including any “black-lined” RFP Documents revised by Addenda); and


(b) the provision of various types of background information for the Respondents’ review (“Background Information”).

(2) The Data Room will be accessible on approximately the date set out in the Timetable. Waterfront Toronto may add, delete or amend documents in the Data Room at any time.

(3) Each Respondent is solely responsible to ensure that it,

(a) contacts the Contact Person at the coordinates set out in the RFP Data Sheet to arrange access to the Data Room and receipt of a Data Room password;

(b) has the appropriate software which allows the Respondent to access and download RFP Documents and Background Information from the Data Room; and

(c) checks the Data Room frequently for the addition, deletion or amendment of RFP Documents and Background Information and, at all times, bases its actions or submissions during the RFP Process on only the most current RFP Documents or Background Information.

2.5 Respondent Investigations

(1) Each Respondent and each of its Respondent Team Members is solely responsible, at its own cost and expense, to carry out its own independent research, due diligence or to perform any other investigations, including seeking independent advice, considered necessary by the Respondent and Respondent Team Members to satisfy themselves as to all existing conditions affecting the Project or the Draft Agreement Documents. The Respondents’ and Respondent Team Members’ obligations set out in this RFP Section 2.5 apply irrespective of any Background Information in the Data Room or information contained in the RFP Documents.

(2) Waterfront Toronto does not represent or warrant the accuracy or completeness of any information set out in the RFP Documents or made available to Respondents in the Data Room as Background Information or of any other background or reference information or documents prepared by Waterfront Toronto, the Government of Ontario, PIR or the Ontario Realty Corporation or by third parties and which may be made available to Respondents or Respondent Team Members by or through Waterfront Toronto. Respondents and Respondent Team Members shall make such independent assessments as they consider necessary to verify and confirm the accuracy and completeness of all such information as any use of or reliance by Respondents or Respondent Team Members on any and all such information shall be at the Respondents’ and Respondent Team Members’ sole risk and without recourse against Waterfront Toronto or the Government of Ontario, PIR or the Ontario Realty Corporation.

SECTION 3– THE RFP PROCESS

3.1 RFP Process Timetable

(1) The deadline for the submission of Proposals (the “Submission Deadline”) and the general timetable for the RFP Process (the “Timetable”) are set out in the RFP Data Sheet.

(2) Waterfront Toronto may amend the Timetable in its sole discretion,


(a) at any time prior to the Submission Deadline for events that are to occur prior to or on the Submission Deadline, including the Submission Deadline itself; and

(b) at any time in the RFP Process for events that are to occur after the Submission Deadline.

3.2 Questions and RFP Documents Comments

3.2.1 Contact Person

(1) The Respondents shall submit all questions and other communications regarding the RFP, the RFP Process, the Draft Agreement Documents and their Proposals to the Contact Person by e-mail at the coordinates listed in the RFP Data Sheet and in accordance with RFP Section 3.2.2.

3.2.2 Clarification/Question Submission Process

(1) In addition to the requirement set out in RFP Section 3.2.1, the following rules shall apply to Respondents when submitting questions or requests for information to Waterfront Toronto during the RFP Process:

(a) Respondents are permitted to submit questions categorized as follows:

(i) questions that are of general application and that would apply to other Respondents (“General Questions”); and

(ii) questions that the Respondent considers to be commercially sensitive or confidential to that particular Respondent (“Confidential Questions”);

(b) If Waterfront Toronto disagrees with the Respondent’s categorization of an question as a Confidential Question, Waterfront Toronto will give the Respondent an opportunity to either categorize the question as a General Question or to withdraw the question;

(c) If Waterfront Toronto determines, in its sole discretion, that a Confidential Question, even if it is withdrawn by a Respondent, is of general application or would provide a significant clarification of the RFP Documents or RFP Process to Respondents, Waterfront Toronto may issue a clarification to Respondents that deals with the same subject matter as the withdrawn Confidential Question; and

(d) If Waterfront Toronto agrees with the Respondent’s categorization of a Confidential Question, then Waterfront Toronto will provide a response to that question to only the Respondent that submitted the question.

(2) Responses to questions prepared and circulated by Waterfront Toronto are not RFP Documents and do not amend the RFP Documents. If, in Waterfront Toronto’s sole discretion, responses to questions require an amendment to the RFP Documents, such amendment will be prepared and circulated by Addendum in accordance with RFP Section 3.7. Only a response to an question that has been incorporated into or issued as an Addendum will modify or amend the


RFP Documents and, otherwise, responses to questions will have no force or effect whatsoever and shall not be relied upon by any Respondent.

(3) Respondents shall submit questions in accordance with the deadline(s) set out in the Timetable.

(4) Respondents shall submit all questions by e-mail to the Contact Person in accordance with the instructions set out in the RFP Data Sheet.

(5) Waterfront Toronto will respond to questions by posting responses in the Data Room in accordance with the schedule set out in the Timetable. Waterfront Toronto may, in its sole discretion, distribute responses to questions of a minor or administrative nature to only the Respondent who submitted the minor or administrative question.

(6) It is the Respondent’s obligation to seek clarification from Waterfront Toronto of any matter it considers to be unclear in accordance with RFP Section 3.2.2 by the deadline set out in the RFP Data Sheet for the submission of questions. Waterfront Toronto is not responsible in any way whatsoever for any misunderstanding by any Respondent or Respondent Team Member of the RFP Documents, Background Information, responses to questions, any documents placed in the Data Room or any other type of information provided by or communication made by Waterfront Toronto.

3.2.3 Draft Agreement Documents Comments

In addition to requiring Respondents to provide their proposed revisions to the Draft Agreement Documents as part of the Respondents’ Proposals (see RFP Section 4.1(e)), Waterfront Toronto is encouraging Respondents to submit comments on the Draft Agreement Documents prior to the Commercially Confidential Meetings (as part of the clarification/submission of questions process). If Waterfront Toronto accepts a comment, or part of a comment, and that acceptance requires a change to the Draft Agreement Documents, Waterfront Toronto shall implement that change by Addendum. Respondents are to submit comments on the Draft Agreement Documents by the deadline set out in the Timetable. Waterfront Toronto is not obliged to respond to each comment made by Respondents under this RFP Section 3.2.3.

3.3 Communications Restrictions

3.3.1 Communications with Municipalities, Other Government Authorities and Utilities

(1) Except as set out in RFP Section 3.3.2 and subject to any special rules set out in the RFP Data Sheet, Respondents are permitted to communicate directly with any municipality, government authority or utility with respect to municipal, utility or other types of government requirements related to the Project. Any special rules with respect to these communications are set out in the RFP Data Sheet. Under no circumstances will the special rules set out in the RFP Data Sheet override the provisions of RFP Section 3.3.2.

(2) Waterfront Toronto is not, in any way whatsoever, responsible for any representations, statements, assurances, commitments or agreements which Respondents receive or believe they may have received from a municipality, a government authority, or a utility. Respondents and Respondent Team Members rely on any such representations, assurances, commitments or agreements at their sole risk without recourse against Waterfront Toronto or the Government of Ontario.


3.3.2 Prohibited Contacts and Lobbying Prohibition

(1) Respondents and Respondent Team Members and all of their respective Advisors, employees and representatives are prohibited from engaging in any form of political or other lobbying, of any kind whatsoever, to influence the outcome of the RFP Process.

(2) Without limiting the generality of RFP Section SECTION 3(1), neither Respondents or Respondent Team Members or any of their respective Advisors, employees or representatives shall contact or attempt to contact, either directly or indirectly, at any time during the RFP Process, any of the following persons or organizations on matters related to the RFP Process, the RFP Documents, or the Proposals:

(a) any member of the Evaluation Committee or, if applicable, the Steering Committee;

(b) any Advisor to Waterfront Toronto or the Evaluation Committee;

(c) any employee or representative of,

(i) Waterfront Toronto;

(ii) PIR, the Ontario Realty Corporation or any other Ministry or entity listed in the RFP Data Sheet; or

(iii) the Premier of Ontario’s office or the Ontario Cabinet office;

(d) any Member of the Provincial Parliament (including the Premier) or his or her staff or representatives; or

(e) any directors or officers of any entity listed in RFP Section 3.3(a) to (d).

(3) If a Respondent or a Respondent Team Member or any of their respective Advisors, employees or representatives, in the opinion of Waterfront Toronto, contravenes RFP Section SECTION 3(1) or (2), Waterfront Toronto may, in its sole discretion,

(a) take any action in accordance with RFP Section 7.1.2; or

(b) impose conditions on the Respondent’s or Respondent Team Member’s continued participation in the RFP Process that Waterfront Toronto considers, in its sole discretion, to be appropriate.

For clarity, Waterfront Toronto is not obliged to take the actions set out in this RFP Section 3.3(a) or (b).

3.3.3 Media Releases, Public Disclosures and Public Announcements

(1) A Respondent shall not, and shall ensure that its Advisors, employees, representatives and Respondent Team Members, and their respective Advisors, employees and representatives do not, issue or disseminate any media release, public announcement or public disclosure (whether for publication in the press, on the radio, television, internet or any other medium) that relates to the RFP Process, the RFP Documents or the Project or any matters related thereto, without the prior written consent of Waterfront Toronto.


(2) Neither the Respondents or the Respondent Team Members or any of their respective Advisors, employees or representatives shall make any public comment, respond to questions in a public forum, or carry out any activities to either criticize another Respondent or Proposal or to publicly promote or advertise their own qualifications, interest in or participation in the RFP Process without Waterfront Toronto’s prior written consent, which consent may be withheld in Waterfront Toronto’s sole discretion. Respondents, Respondent Team Members and their Advisors, employees and representatives are permitted to state publicly that they are participating in the RFP Process.

3.3.4 Restrictions on Communications between Respondents – No Collusion

(1) A Respondent shall not discuss or communicate, directly or indirectly, with any other Respondent, any information whatsoever regarding the preparation of its own Proposal or the Proposal of the other Respondent. Respondents shall prepare and submit Proposals independently and without any connection, knowledge, comparison of information or arrangement, direct or indirect, with any other Respondent.

(2) For clarity, RFP Section SECTION 3(1) applies to Respondents and Respondent Team Members, and all of their respective Advisors, employees and representatives.

3.4 Meetings with Respondents

3.4.1 Respondents’ Meeting

(1) Waterfront Toronto may, in its sole discretion, convene a general Respondents meeting (“Respondents Meeting”) on the date and at the time set out in the Timetable and at the location set out in the RFP Data Sheet. While attendance at the Respondents Meeting is not mandatory, Respondents are strongly encouraged to attend. A Respondent’s failure to attend the Respondents Meeting is at the Respondent’s sole risk and responsibility.

(2) Respondents may ask questions and seek clarifications at the Respondents Meeting. If Waterfront Toronto gives oral answers at the Respondents Meeting, those answers shall not be considered final unless the Respondent also submits those questions in accordance with RFP Section 3.2.2 and responses are issued in accordance with RFP Section 3.2.2.

3.4.2 Commercially Confidential Meetings

(1) Waterfront Toronto may, in its sole discretion, convene commercially confidential meetings with individual Respondents (“Commercially Confidential Meetings”). These Commercially Confidential Meetings are intended to be bilateral meetings between Waterfront Toronto and its representatives and Advisors and individual Respondents and their representatives and Advisors, to discuss the Draft Agreement Documents and the Respondent’s suggested amendments to the Draft Agreement Documents.

(2) Whether Waterfront Toronto intends to hold Commercially Confidential Meetings and the location of those meetings is set out in the RFP Data Sheet. The approximate date and time of Commercially Confidential Meetings is set out in the Timetable.

(3) If Waterfront Toronto holds Commercially Confidential Meetings, the Fairness Advisor may be present during some or all of those meetings.

(4) No statement, consent, waiver, acceptance, approval or anything else said or done in any of these Commercially Confidential Meetings by Waterfront Toronto or Waterfront


Toronto’s Advisors or representatives shall amend or waive any provision of the RFP Documents, or be binding on Waterfront Toronto or be relied upon in any way by Respondents, except when and only to the extent expressly confirmed in an Addendum to the RFP Documents issued in accordance with RFP Section 3.7.

3.5 Site Tour and Additional Site Visit

3.5.1 Scheduled Site Tour

Waterfront Toronto has established a scheduled date for a Site tour (“Scheduled Site Tour”) for all Respondents and their representatives and Advisors. The date and time of the Scheduled Site Tour is set out in the Timetable. For clarity, the Scheduled Site Tour is in addition to any Respondent visits scheduled in accordance with RFP Section 3.5.2. The Site address and a brief description of the Site are set out in the RFP Data Sheet and the Site is described fully in the Background Information and the Draft Agreement Documents.

3.5.2 Additional Site Visit

(1) Except for Scheduled Site Tour, Respondents are not permitted to access the Site except by prior written arrangement with the Contact Person for each access to the Site.

(2) A Respondent is permitted to request one additional Site visit (in addition to the Schedule Site Tour). A Respondent that wishes to arrange that additional Site visit shall submit its request to the Contact Person and shall describe the proposed date(s) and time(s) it would like to carry out the Site visit as well as the purpose for the Site visit. The Respondent’s request must be submitted at least two Business Days in advance of the proposed time for the Site visit.

(3) Waterfront Toronto may, in its sole discretion and through the Contact Person, require that a Waterfront Toronto representative be present to monitor the Respondent’s activities during the Site visit. The Contact Person will confirm whether a Waterfront Toronto representative will be present at the Site visit at the time the Site visit is approved and scheduled.

3.5.3 Liability During Site Tour and Site Visit

Respondents are obliged to ensure that they investigate all occupational health and safety requirements with respect to both their attendance at the Site tour and any additional Site visits. Respondents shall be solely liable for the health and safety of all Respondents’ representatives participating in the Scheduled Site Tour and in Site visits. Neither Waterfront Toronto nor the Government of Ontario, PIR or the Ontario Realty Corporation shall be liable in any way whatsoever for personal injury or death or damage to the Respondents’ property occurring during the Scheduled Site Tour or Site visits. Attendance at the Site tour or Site visits is at the Respondents’ own risk and expense.

3.6 Changes to Respondents and Respondent Team Members

(1) A Respondent shall not change its shareholders (unless the Respondent is a company whose equity securities are listed on a recognized stock exchange), Respondent Team Members, proposed subcontractors, Key Personnel, or other parties identified in the Respondent’s Prequalification Submission (the “Identified Respondent Parties”) without the prior written consent of Waterfront Toronto.


(2) Despite RFP Section SECTION 3(1), Respondents are permitted to request a change in their Identified Respondent Parties in accordance with this RFP Section 3.6.

(3) If, prior to the Submission Deadline, a Respondent wishes to request a change in its Identified Respondent Parties, the Respondent shall notify the Contact Person as soon as possible and in any event no later than seven days prior to the Submission Deadline. That notification shall clearly identify the proposed change in the Identified Respondent Party including a proposed substitute and including sufficient documentation to demonstrate that the proposed substitute would have met or exceeded any applicable criteria applied during the RFQ process.

(4) The Respondent shall provide any further documentation as may be reasonably requested by Waterfront Toronto to assess any proposed substitute. If Waterfront Toronto, in its sole discretion, considers the proposed substitute to be acceptable Waterfront Toronto may consent to the substitution. Waterfront Toronto’s consent to such substitution, however, may be subject to such terms and conditions as Waterfront Toronto may require. If the proposed substitute is not acceptable to Waterfront Toronto, the Respondent shall propose an alternate substitute for review by Waterfront Toronto in the same manner as the first proposed substitute. Waterfront Toronto may, in its sole discretion, disallow any actual or proposed change.

(5) In the case of an actual change in the Identified Respondent Parties made by the Respondent without consent by Waterfront Toronto or a change proposed after the Submission Deadline, Waterfront Toronto may, in its sole discretion, disqualify the Respondent and terminate its continued involvement in the RFP Process, or allow the Respondent to continue under such terms and conditions as Waterfront Toronto, in its sole discretion, may require.

(6) If on or after the Submission Deadline and prior to Commercial Close there is an actual or proposed addition, deletion, substitution or other change in the membership or effective control of an Identified Respondent Party, or if there is a change in circumstances that may materially adversely affect an Identified Respondent Party in a way which could impair the Respondent’s or the Identified Respondent Party’s ability to perform their respective obligations under the Draft Agreement Documents, then the Respondent shall promptly notify Waterfront Toronto in writing (and signed so as to be legally binding) by delivery or facsimile to the Contact Person. Waterfront Toronto may, in its sole discretion, refuse to accept a change in an Identified Respondent Party that occurs or is requested by the Respondent after the Submission Deadline and may, in its sole discretion, disqualify the Respondent from continuing in the RFP Process.

3.7 Addenda/Changes to the RFP Documents

(1) Waterfront Toronto may, in its sole discretion, amend or supplement the RFP Documents prior to the Submission Deadline. Waterfront Toronto shall issue changes to the RFP Documents by Addenda only. No other statement, whether oral or written, made by Waterfront Toronto, Waterfront Toronto’s Advisors or representatives or the Government of Ontario, PIR or the Ontario Realty Corporation or any of their respective Advisors or representatives, including, for clarity, the Contact Person, or any other person, shall amend the RFP Documents. The approximate final date that Waterfront Toronto will issue an Addendum is set out in the Timetable.

(2) The Respondent is solely responsible to ensure that it has received all Addenda issued by Waterfront Toronto. Respondents may, in writing, seek confirmation of the number of Addenda issued under this RFP from the Contact Person.


(3) Waterfront Toronto shall issue Addenda by placing them in the Data Room and notifying the Respondents’ Representatives by e-mail that an Addendum has been placed in the Data Room.

(4) Any reference to any one or all of the RFP Documents in the RFP Documents includes any amendments to the RFP Documents made in accordance with this RFP Section 3.7.

3.8 Confidentiality and Copyright

3.8.1 Confidentiality Agreements

(1) Respondents are required to sign and submit a confidentiality agreement in a form and substance prescribed by Waterfront Toronto (the “Confidentiality Agreement”) prior to receiving the RFP Documents.

(2) In addition to the signing and submission of the Confidentiality Agreement, no later than five days after a request by Waterfront Toronto, the Respondent shall cause each of its employees, representatives and Advisors and its Respondent Team Members and each of their employees, representatives and Advisors who are in receipt of Confidential Information, to execute and deliver to Waterfront Toronto a confidentiality agreement in a form prescribed by and with terms and conditions acceptable to Waterfront Toronto, in its sole discretion.

3.8.2 Confidential Information

(1) For the purpose of this RFP Process, “Confidential Information” means all material, data, information or any item in any form, whether oral or written, including in electronic or hard-copy format, supplied by, obtained from or otherwise provided by Waterfront Toronto, the Government of Ontario or PIR in connection with the RFP Process, the RFP Documents or the Project, whether supplied, obtained from or provided before or after the RFP Process.

(2) The Respondent agrees that all Confidential Information,

(a) shall remain the sole property of the Government of Ontario or Waterfront Toronto, as applicable, and the Respondent shall treat it as confidential;

(b) shall not be used by the Respondent for any other purpose other than developing and submitting a Proposal in response to this RFP Process or the performance of any subsequent agreement relating to the Project with the Signing Parties;

(c) shall not be disclosed by the Respondent to any person who is not involved in the Respondent’s preparation of its Proposal or the performance of any subsequent agreement relating to the Project with the Signing Parties, without prior written consent of Waterfront Toronto or the Government of Ontario, as applicable;

(d) shall not be used in any way detrimental to Waterfront Toronto or the Government of Ontario; and


(e) if requested by Waterfront Toronto, shall be returned by the Respondents to Waterfront Toronto no later than ten calendar days after that request.

(3) Each Respondent shall be responsible for any breach of the provisions of this RFP Section 3.8.2 by any person to whom it discloses the Confidential Information including, for greater clarity, the Respondent’s employees, representatives and Advisors and the Respondent Team Members and their employees, representatives and Advisors.

(4) Each Respondent acknowledges and agrees that a breach of the provisions of this RFP Section 3.8.2 would cause Waterfront Toronto, the Government of Ontario and each of their related entities to suffer loss that could not be adequately compensated by damages, and that Waterfront Toronto, the Government of Ontario and any related entity may, in addition to any other remedy or relief, enforce any of the provisions of this RFP Section 3.8.2 upon application to a court of competent jurisdiction without proof of actual damage to Waterfront Toronto, the Government of Ontario or any related entity.

(5) The provisions of this RFP Section 3.8.2 shall survive any cancellation of this RFP Process and the conclusion of the RFP Process and, notwithstanding RFP Section 10.1 shall be legally binding on all Prequalified Parties, whether or not they submit a Proposal.

(6) The confidentiality obligations of the Respondent shall not apply to any information which falls within the following exceptions:

(a) information that is lawfully in the public domain at the time of first disclosure to the Respondent, or which, after disclosure to the Respondent, becomes part of the public domain other than by a breach of the Respondent’s confidentiality obligations or by any act or fault of the Respondent;

(b) information which was in the Respondent’s possession prior to its disclosure to the Respondent by Waterfront Toronto, and provided that it was not acquired by the Respondent under an obligation of confidence; or

(c) information which was lawfully obtained by the Respondent from a third party without restriction of disclosure, provided such third party was at the time of disclosure under no obligation of secrecy with respect to such information.

3.8.3 Copyright and Use of Information in Proposals

(1) The Proposal and all Proposal Information submitted by the Respondents during the RFP Process shall become the property of Waterfront Toronto, in accordance with this RFP Section 3.8.3 upon the submission of Proposals.

(2) Respondents shall not use or incorporate into their Proposals any concepts, products or processes which are subject to copyright, patents, trademarks or other intellectual property rights of third parties unless Respondents have, or will procure through licensing without cost to Waterfront Toronto, the right to use and employ such concepts, products and processes in and for the Project.


(3) All requirements, designs, documents plans and information supplied by Waterfront Toronto to the Respondents in connection with this RFP are and shall remain the sole property of Waterfront Toronto. Upon request of Waterfront Toronto, all such designs, documents, plans and information (and any copies thereof in any format or medium created by or on behalf of the Respondent) must be returned to Waterfront Toronto.

(4) For the purpose of this RFP Section 3.8.3 “Proposal Information” includes,

(a) all information contained in a Proposal or which is disclosed by or through a Respondent to Waterfront Toronto during the evaluation of Proposals or during the process of executing any Project Agreement Document; and

(b) all ideas, concepts, products, alternatives, processes, recommendations and suggestions developed by or through a Respondent and revealed to or discovered by Waterfront Toronto, including all those which may be connected in any way to the preparation, submission, review or negotiation of any Proposal or the Project Agreement Documents.

(5) Respondents shall ensure that all intellectual property rights associated with any and all of the Proposal Information (including copyright and moral rights but excluding patent rights) provide for and give Waterfront Toronto the rights set out in this RFP Section 3.8.3. It is expressly understood and agreed that any actual or purported restriction in the future on Waterfront Toronto’ ability to use any of the Proposal Information, or anything else obtained by or through Respondents, shall be absolutely null and void and unenforceable as against Waterfront Toronto, the Government of Ontario, and each of their respective Advisors, and that the provisions of this RFP Section 3.8.3 shall take precedence and govern.

3.9 Conflict of Interest

3.9.1 Conflict of Interest

Respondents shall identify, in their Proposal Submission Forms, any additional conflicts of interest and any changes to existing conflicts of interest that came into existence after the Respondents’ submissions of the Prequalification Submissions in the prequalification process that preceded this RFP Process.

3.9.2 Waterfront Toronto Advisors

(1) As a result of their involvement in the Project, the persons named in the RFP Data Sheet as “Waterfront Toronto Advisors” are not eligible to participate as Respondent Team Members or Respondent Advisors.

(2) Waterfront Toronto may amend the Waterfront Toronto Advisors list in the RFP Data Sheet from time to time during the RFP Process.

3.10 Respondent Costs

(1) The Respondents and the Respondent Team Members shall bear all costs and expenses incurred by them relating to any aspect of their participation in this RFP Process, including all costs and expenses related to the Respondents’ involvement in,


(a) the preparation, presentation and submission of their Proposals;

(b) attendance at the Respondents Meeting or at any meeting with Waterfront Toronto;

(c) due diligence and information gathering processes;

(d) Scheduled Site Tour or additional Site visits;

(e) preparation of responses to questions or requests for information from Waterfront Toronto;

(f) preparation of the Respondent’s own questions during the clarification process; and

(g) negotiations.

(2) Waterfront Toronto is not liable to pay any costs or expenses of any Respondent or to reimburse or compensate a Respondent under any circumstances, regardless of the outcome of the RFP Process.

SECTION 4– PROPOSAL – FORM AND CONTENT REQUIREMENTS

4.1 General Submission Requirements

4.1.1 Format of the Proposal

Respondents shall submit Proposals organized in accordance with and in the format set out in the RFP Section 4.1.2 and Schedule 2 to the RFP and all instructions contained in Schedules 2.

4.1.2 Content of the Proposal – General

(1) Respondents shall submit Proposals in the following parts (Parts A, B, C, D , E and F) as follows:

(a) Part A – A section entitled, “Vision/Community Building” containing

(i) a demonstration of how the Respondents’ vision for the proposed project will achieve a stable, vibrant, liveable community that attracts a diversity of households and is suitable to a variety of demographics in keeping with Waterfront Toronto’s vision as outlined in the West Don Lands Precinct Plan. Respondents should consider such community building elements as:

(A) Amenities for families of different types;

(B) Plan for 6% low-end-of-market housing;

(C) Diversity of housing stock;

(D) Appeal to broad demographics;


(E) Encouraging community interaction;

(F) Encouraging owner-occupied suites;

(G) At-grade uses and animation; and

(H) Local job creation initiatives; and

(i) A preliminary marketing strategy including a description of :

(A) Unit and suite mix;

(B) Target market;

(C) Initial price ranges (estimated and indicative only); and

(D) Sales approach and pre-sales strategy

(b) Part B – A section entitled, “Sustainability Plan” containing

(i) A demonstration of how the Respondent plans to achieve LEED Gold certification. In responding, the Respondent should consider such elements as:

(A) Use of integrated design processes to integrate LEED process with excellence in urban design and built form;

(B) Structure of team and working methodology to facilitate integrated design processes;

(C) Creativity in achieving various credits;

(D) Realistic ability to have the proposed approach approved by approval authorities for the project and implemented;

(E) Long term operability of proposed approach;

(F) Demonstrated application and benefits of integrated design process; and

(G) A demonstration of how the Respondent’s sustainability plan will create value for future owners; and

(ii) A description of how the Respondent will ensure the long-term sustainability and stewardship of operation of the buildings including a discussion on education and support to condominium corporations and residents if applicable. In responding, the Respondent should consider;

(A) Interaction of the condominium corporation with other organizations and stakeholders (municipality, utilities, community); and


(B) Support for continued use of the District Energy system.

(c) Part C – A section entitled, “Project Design Plan” containing,

(i) A description of the Respondent’s commitment to achieve design excellence. In responding, the Respondent should consider elements such as:

(A) Use of integrated design process to integrate LEED process with excellence in urban design and built form;

(B) Whether the image the Respondent wishes to create reflect Corktown/ Distillery or a modernistic one;

(C) Palate of materials appropriate for this location;

(D) Different/similar design approaches for each of the proposed buildings;

(E) Relationship to the TCHC buildings, design and context; and

(F) A definition of the key design issues as the Respondent perceives them to be for this project.;

(ii) A description of how the Respondent Team Members will interact to ensure design excellence. The Respondent should include the following in its response:

(A) A plan and decision making framework for Respondent Team Members to work together to achieve design excellence;

(B) The availability of the Key Design Team Member and other design personnel and the percentage of total design time to be allocated to each member of the design team;

(C) The identification of the individual responsible for design drawings; and

(D) The relationship of the design architect with the architect of record, if they are different; and

(E) The qualifications in the format set out in Form 2-2 for design personnel that have a material role other than the Key Design Team Member identified in the prequalification process that preceded this RFP.

(d) Part D – A section entitled, “Development Plan” containing the Respondent’s development plan including a description of :

(i) the Respondent’s development approach to various blocks;

(ii) the timing/phasing of blocks;


(iii) the commencement and completion for buildings on each block; and

(iv) the Respondent’s plan to achieve proposed phasing/timelines;

(e) Part E – A section entitled, “Comments on the Draft Agreement Documents” including comments on the Draft Agreement Documents that indicate the Respondent’s proposed changes to the,

(i) the Draft Development Agreement, including its Schedules; and

(ii) the Draft Agreement of Purchase and Sale, including its Schedules.

Respondents should note that they should not propose changes to those parts of the Draft Agreement Documents that are highlighted in yellow and that Part E must include all proposed changes to the Draft Agreement Documents, even if they were already submitted as “comments” in preparation for the Commercially Confidential Meetings in accordance with RFP Section 3.2.3.

(f) Part F – A section entitled, “Financial Submission” consisting of a completed Financial Submission Form which is attached as Form 2-3 in Schedule 2 to this RFP.

SECTION 5– SUBMISSION, WITHDRAWAL AND MODIFICATION OF THE PROPOSAL

5.1 Submission of Proposal –General Requirements

(1) Each Respondent shall submit one original and 15 copies of its Proposal before the Submission Deadline.

(2) Each of the original and copies shall be clearly labelled with the name of the Project and the name of the Contact Person and marked as either “Original” or “Copy 1 of 15” etc. For the purposes of this RFP Process, the determination of whether the Proposal is submitted before the Submission Deadline shall be based on the time and date stamp the Respondent must ensure it receives at the address for submission set out in the RFP Data Sheet. Proposals received after the Submission Deadline, as documented by the time and date stamp, shall be returned unopened to the sender. If there is any difference between the original and the copies of the Proposal, the original shall govern.

(3) Respondents shall submit their Proposals by sending them by pre-paid courier or hand delivery to Waterfront Toronto at the address set out in the RFP Data Sheet. It is the sole responsibility of the Respondent to ensure that its Proposal is received by Waterfront Toronto prior to the Submission Deadline and to ensure it receives a date and time stamp receipt from Waterfront Toronto confirming the timely delivery of the Proposal.

(4) The Respondent shall provide both hard copies and an electronic copy of their Proposals on a compact disc in PDF format or Microsoft Word. The compact disc shall be set up and organized in the format as set out in RFP Section SECTION 4(1). Waterfront Toronto will not accept Proposals delivered by electronic mail.

(5) If there is any difference whatsoever between the electronic copy of a Proposal and the original, the original of the Proposal, as submitted in hard copy, shall govern.


5.2 Withdrawal of Proposals

A Respondent may withdraw its Proposal only by giving written notice before the Submission Deadline to the Contact Person. Waterfront Toronto will return, unopened, a Proposal that has been withdrawn in accordance with this RFP Section 5.2.

5.3 Amendment of Proposal

Respondents may amend their Proposals after submission but only if the Proposal is resubmitted before the Submission Deadline in accordance with the following:

(a) the Respondent shall withdraw its original Proposal by notifying the Contact Person in writing before the Submission Deadline; and

(b) the Respondent shall submit a revised replacement Proposal in accordance with the RFP Documents and before the Submission Deadline in accordance with the requirements of RFP Section 5.1.

SECTION 6– EVALUATION, CLARIFICATION AND VERIFICATION OF PROPOSALS

6.1 Evaluation Committee and Advisors

(1) Waterfront Toronto will establish an evaluation committee (the “Evaluation Committee”) for the purpose of evaluating Proposals in accordance with the RFP Documents. Waterfront Toronto, in its sole discretion, will determine the size, structure and composition of the Evaluation Committee and any sub-committees of the Evaluation Committee. The Evaluation Committee may be assisted by and receive advice from any of Waterfront Toronto’s Advisors and any other employees or representatives of Waterfront Toronto in any manner determined necessary or desirable by Waterfront Toronto.

(2) If a member of the Evaluation Committee becomes unable to continue serving on the Evaluation Committee in the middle of a step in the evaluation process, the evaluation comments and scores of that individual, in respect of the uncompleted steps in the evaluation process only, shall be ignored. Whether or not an Evaluation Committee member, in these circumstances, is replaced is in the sole discretion of Waterfront Toronto.

6.2 Waterfront Toronto Clarification and Verification of Proposals

(1) Waterfront Toronto may,

(a) require the Respondent to clarify or verify the contents of its Proposal or any statement made by the Respondent;

(b) require the Respondent to submit supplementary documentation clarifying or verifying any matters contained in its Proposal; and

(c) seek a Respondent’s acknowledgement of Waterfront Toronto’s interpretation of the Proposal or any part of the Proposal.

(2) Waterfront Toronto is not obliged to seek clarification or verification of any aspect of a Proposal or any statement by a Respondent, including an ambiguity in a Proposal or in a statement made by a Respondent.


(3) Any written information received by Waterfront Toronto from a Respondent pursuant to a request for clarification or verification from Waterfront Toronto as part of the RFP Process may, in Waterfront Toronto’s sole discretion, be considered as an integral part of the applicable Proposal.

6.3 Steps in the Evaluation Process

6.3.1 Step 1 – Completeness of Proposal s

(1) In Step 1, Waterfront Toronto will open each Proposal and will review the contents of the Proposal to assess whether they are complete. While a Proposal that is fully compliant with the provisions of this RFP is likely to be evaluated more favourably, a failure to fully comply does not necessarily mean a Proposal will be rejected or disqualified.

(2) If, in the sole discretion of Waterfront Toronto, a Proposal does not provide sufficient information to allow evaluation of the Proposal Waterfront Toronto may, in its sole discretion, without liability, cost or penalty, eliminate the Proposal and, if eliminated, the Proposal shall not be given any further consideration. The Evaluation Committee may, in its sole discretion, determine that it wishes to consider an incomplete Proposal.

(3) A requirement in either this RFP or in Schedule 2 that a Respondent “must” or “shall” do anything is not intended to indicate an absolute requirement and does not, in any way, supersede Waterfront Toronto’s right to exercise its discretion as to whether sufficient information has been provided by the Respondent to permit evaluation by the Evaluation Committee.

(4) For the purpose of clarity, each Respondent acknowledges and agrees that Waterfront Toronto’s evaluation of completeness with the RFP Documents is not an evaluation of absolute completeness. Each Respondent acknowledges and agrees that a Proposal does not need to be compliant with the requirements of this Request for Proposals in order to be evaluated by the Evaluation Committee. For clarity, Waterfront Toronto may waive any failure to submit a complete Proposal or an failure to comply with the requirements of this RFP.

6.3.2 Step 2 – Review of the Proposal Submission Form

(1) In Step 2, Waterfront Toronto shall review the Proposal Submission Form to,

(a) ensure that the form has been properly completed and signed;

(b) ensure that there have been no changes to the Respondent or the Respondent Team Members from their Prequalification Submissions, except for changes that have been approved by Waterfront Toronto in accordance with RFP Section 3.6; and

(c) assess the conflict of interest section of the Proposal Submission Form.

6.3.3 Step 3 – Review of Parts A, B, C, D and E of the Proposal

(1) In Step 3 of the evaluation process the Evaluation Committee will evaluate the Technical and Quality Submission based on the following evaluation criteria:


Proposal Part/Weighting Evaluation Criteria

Part A - Vision/Community Building

8%

i) Extent to which the Respondent’s vision for the proposed project is in keeping with, promotes and demonstrates ability to implement Waterfront Toronto’s vision for community building in West Don Lands. The extent to which the Respondent’s vision incorporates innovative and realistic elements that will enhance community building.

ii) Extent to which the Respondent’s marketing strategy demonstrates the Respondent’s ability to accommodate families of different types and a cross section of demographics that will enhance community building and long-term ownership.

Part B - Sustainability Plan

8%

i) Extent to which the Respondent’s sustainability plan demonstrates leading edge creativity and commitment to achieve LEED Gold. The extent to which the sustainability plan provides for innovative and realistic approaches to achieving LEED Gold with clearly articulated rationale and assessment of the likelihood of success using integrated design process demonstrating significant value for future owners.

ii) Extent to which the Respondent’s sustainability plan demonstrates leadership to ensure the future of sustainability stewardship for the project. Extent to which the sustainability plan provides innovative ways of ensuring the long-term and ongoing education for owners/users.

Part C - Project Design Plan and Team

8%

i) Extent to which plan to achieve design excellence is creative and capable of being implemented. Extent to which the plan is an innovative and realistic plan to achieve design excellence that provides certainty of success.

ii) Extent to which the Respondent Team interaction plan will result in design excellence. Extent to which the project design plan demonstrates a creative approach to Respondent Team coordination, decision making and allocation of work efforts that is capable of being implemented and realistic.

Part D - Development Plan

4%

i) Extent to which the Respondent’s development plan is detailed, demonstrates the Respondent’s knowledge of the development process and is achievable. The extent to which the plan provides a phasing strategy and milestone targets that are in keeping with Waterfront Toronto’s vision, approval processes and are realistically achievable.

Part E – Comments on the Draft Agreement Documents

4%

i) Extent of material changes to Draft Agreement Documents.

6.3.4 Step 4 – Review of the Financial Submission Form Submitted by the Respondent

(1) In Step 4 of the evaluation process, the Evaluation Committee will evaluate the Financial Submission Form, to assess which Proposal offers the best value (from a pricing and


timing perspective) to Waterfront Toronto. Each Respondent acknowledges and agrees that “best value” means that the highest price submitted by a Respondent may not, in the sole discretion of Waterfront Toronto’s sole discretion, necessarily be the best value Proposal.

6.3.5 Step 5 – Interview

Waterfront Toronto intends to interview all Respondents based on pre-established questions that will be the same for all Respondents. Respondents will not be required to make a presentation at the interview.

6.3.6 Step 6 – Establishing a Final Proposal Score

(1) For the purpose of the evaluation process, the following weightings and scoring will apply:

Scored Category Weighting

Parts A, B, C, D, and E 34

Interview 33

Financial Submission (Part F)

33

Final Proposal Score 100%

(2) The score established based on RFP Section SECTION 6(1) shall be the Final Proposal Score (“Final Proposal Score”).

SECTION 7– GENERAL EVALUATION AND DISQUALIFICATION PROVISIONS

7.1.1 Waterfront Toronto’s Discretion in Determining Completeness, Scoring and Ranking

(1) Waterfront Toronto shall determine, in its sole discretion,

(a) the membership of the Evaluation Committee and any sub-committees of the Evaluation Committee;

(b) whether a Proposal is sufficiently complete to warrant evaluation of the Proposal by the Evaluation Committee;

(c) the Final Proposal Score;

(d) the rankings of the Proposals; and

(e) whether a Proposal or a Respondent,

(i) is disqualified; or

(ii) will cease to be considered in the evaluation process.


(2) Waterfront Toronto’s discretion in determining completeness, scores, ranking and disqualification of the Respondents and their Proposal is not limited or restricted in any way by the fact that a prequalification process preceded this RFP Process.

7.1.2 Disqualification

(1) Waterfront Toronto may, in its sole discretion, disqualify a Proposal or reverse their decision to make an award (even if the award has already been made) to a Preferred Respondent under this RFP, at any time prior to Commercial Close if,

(a) the Proposal is determined to be incomplete pursuant to RFP Section 6.3.1;

(b) the Respondent fails to cooperate in any attempt by Waterfront Toronto to verify any information provided by the Respondent in its Proposal or interview;

(c) the Respondent contravenes RFP Section 3.3.2 or 3.3.3;

(d) the Respondent fails to comply with the laws of the Province of Ontario or of Canada, as applicable;

(e) the Proposal contains false or misleading information or a misrepresentation;

(f) the Proposal, in the opinion of Waterfront Toronto, reveals a new and material conflict of interest as described in RFP Section 3.9 and the Respondent,

(i) does not receive a waiver or consent from Waterfront Toronto with respect to the conflict or interest; or

(ii) fails to substitute the person or entity giving rise to the conflict of interest if required by Waterfront Toronto;

(g) if, in the opinion of Waterfront Toronto, acting reasonably, the Respondent, its employees, agents, consultants or representatives directly or indirectly colluded with one or more other Respondents or any of its or their respective employees, agents, consultants or representatives in the preparation or submission of its Proposal or otherwise contravened RFP Section 3.3.4;

(h) the Respondent has committed a material breach of any existing agreement between the Respondent and Waterfront Toronto, PIR, the Ontario Realty Corporation or the Government of Ontario; or

(i) the Respondent has been convicted of an offence in connection with, or any services rendered to Waterfront Toronto or any Ministry, agency, Board or Commission of the Government of Ontario.


SECTION 8– COMPETITION, NEGOTIATIONS AND THE IDENTIFICATION OF A PREFERRED RESPONDENT

8.1 Evaluation Results and the Identification of a Preferred Respondent or Negotiations Respondents

(1) Waterfront Toronto will choose its negotiating partner or partners based on the Final Proposal Scores. Waterfront Toronto may, in its sole discretion,

(a) identify the highest ranked Respondent as the only Respondent that Waterfront Toronto wishes to engage in negotiations with or identify the highest ranked Respondent as the Preferred Respondent and accept the Respondent’s Proposal as submitted; or

(b) identify the two highest ranking Respondents as the First Negotiations Respondent (highest ranked) and the Second Negotiations Respondent (second highest ranked) (the “Negotiations Respondents”) and enter into negotiations with the First Negotiations Respondent and, failing successful negotiations, enter into negotiations with the Second Negotiations Respondent and identify the Respondent with whom Waterfront Toronto conclude successful negotiations as the Preferred Respondent.

(2) Waterfront Toronto may use the negotiations process to negotiate any aspect of the Negotiations Respondents’ Proposals or the Draft Agreement Documents, or both.

(3) A Negotiations Respondent will not be permitted to raise any new revision to the Draft Agreement Documents that it did not raise in Part E of its Proposal.

(4) If, in accordance with RFP Section 8.1(b) if the Respondent and Waterfront Toronto negotiate revisions to the Draft Agreement Documents, Waterfront Toronto and the Respondent shall develop revised Draft Agreement Documents and, for the purposes of RFP SECTION 9, the revised Draft Agreement Documents shall be the “Draft Agreement Documents”.

SECTION 9 – PREFERRED RESPONDENT

9.1 Preferred Respondent Obligations

(1) Once Waterfront Toronto has identified a Preferred Respondent and notified the Preferred Respondent of such identification, the Preferred Respondent shall execute the applicable final Agreement Documents (the “Agreement Documents”), as revised during negotiations, without further substantial amendment, to achieve Commercial Close on or before the expiration of 10 Business Days after the Preferred Respondent’s receipt of that notice or such other earlier or later date as the Preferred Respondent and Waterfront Toronto may agree in writing.

(2) The Preferred Respondent acknowledges and agrees that the entering into of the Agreement Documents by the Signing Party or Parties is conditional on and subject to the Signing Party or Parties obtaining any necessary, authorizations and approvals required in connection with the Project, including, for certainty, the approval of any relevant government authority.


SECTION 10 - GENERAL LEGAL MATTERS AND RIGHT TO ACCEPT OR REJECT

10.1 RFP Not a Bidding Contract

(1) Notwithstanding any other provision of this RFP, this RFP is not an offer to enter into either a bidding contract (often referred to as “Contract A”) or a contract to a carry out the Services (often referred to as “Contract B”). Except as provided in RFP Sections 3.8 and SECTION 10(3) neither this RFP nor the submission of a Proposal by a Respondent shall create any legal or contractual rights or obligations whatsoever on any of the Respondent, Waterfront Toronto, the Government of Ontario or any Ministry of the Government of Ontario. Except as provided in RFP Sections 3.8 and SECTION 10(3), no legal relationship or obligation of any kind whatsoever shall be created between the Respondent and Waterfront Toronto, the Government of Ontario or any Ministry of the Government of Ontario until the successful negotiation and execution of a the final Agreement Documents.

(2) Without limiting the generality of RFP Section Waterfront Toronto may, in its sole discretion,

(a) reject any or all of the Proposals, including, for clarity, the Proposal with the highest Final Proposal Score;

(b) accept any Proposal;

(c) if only one Proposal is received, elect to accept or reject it or enter into negotiations with the Respondent;

(d) elect to discontinue the RFP Process at any time before the end of the RFP Process, including after the identification of a Preferred Respondent but before Commercial Close;

(e) alter the Timetable, the RFP Process or any other aspect of this RFP; and

(f) cancel this RFP Process and subsequently advertise or call for new submission for the same subject matter of these RFP Documents.

10.2 Special Circumstances

(1) If Waterfront Toronto determines that all of the Proposals submitted are not sufficiently complete to be evaluated, Waterfront Toronto may, in its sole discretion,

(a) take any action in accordance with RFP Section SECTION 10(2);

(b) carry out a process whereby all Respondents are directed to correct or complete their Proposals for re-submission, without a change in their Prices (as set out in the Financial Submission Form); or

(c) enter into negotiations with any one of the Respondents to attempt to finalize an agreement.


10.3 Waterfront Toronto’s Liability for Respondent’s Costs

Waterfront Toronto and the Government of Ontario shall not be liable for any expense, cost, loss or damage incurred or suffered by any Respondent, any Respondent Team Member, any Respondent Advisor, or any person connected with any one of them, as a result of any action taken by Waterfront Toronto in accordance with RFP Sections 10.1 or 10.2.

10.4 Applicable Law, Attornment and Limit on Liability

(1) This RFP shall be governed and construed in accordance with the applicable laws of the Government of Ontario and the Government of Canada.

(2) The Respondent agrees that,

(a) any action or proceeding relating to this RFP Process shall be brought in any court of competent jurisdiction in the Province of Ontario and for that purpose the Respondent irrevocably and unconditionally attorns and submits to the jurisdiction of that Ontario court;

(b) it irrevocably waives any right to and shall not oppose any Ontario action or proceeding relating to this RFP Process on any jurisdictional basis, including forum non conveniens; and

(c) it shall not oppose the enforcement against it, in any other jurisdiction, of any judgement or order duly obtained from an Ontario court as contemplated by this RFP Section 10.4.

(3) Waterfront Toronto, the Respondent and the Respondent Team Members agree that in accordance with RFP Section SECTION 10(1) it is not the intention of any entity involved in this RFP Process to create a bidding contract or any other type of contractual relationship between Respondents and Waterfront Toronto, the Government of Ontario, PIR or the Ontario Realty Corporation. Notwithstanding this, the Respondent, the Respondent Team Members and any other entities that may be involved in this RFP Process agree that if Waterfront Toronto, the Government of Ontario, PIR or the Ontario Realty Corporation is found to be liable in any way for any act or omission of Waterfront Toronto, the Government of Ontario, PIR or the Ontario Realty Corporation during this RFP Process, Waterfront Toronto’s, the Government of Ontario’s, PIR’s and the Ontario Realty Corporation’s total liability to any Respondent, Respondent Team Member or any other entity participating in this RFP Process and the aggregate amount of damages recoverable against Waterfront Toronto, the Government of Ontario, PIR or the Ontario Realty Corporation for any matter relating to or arising from any Waterfront Toronto, the Government of Ontario, PIR or the Ontario Realty Corporation act or omission, whether based upon an action or claim in contract, warranty, equity, negligence, intended conduct or otherwise, including any action or claim arising from the acts or omissions, negligent or otherwise, of Waterfront Toronto, the Government of Ontario, PIR or the Ontario Realty Corporation, shall be no greater than the Respondent’s cost of preparing its Proposal or $50,000, whichever is less.

10.5 Licenses, Permits, etc.

If a Respondent is required by the Applicable Law to hold or obtain a licence, permit, consent or authorization to carry on an activity contemplated in its Proposal or in the Draft Agreement Documents, neither acceptance of the Proposal nor execution of the Draft Agreement Documents by Waterfront Toronto shall be considered to be approval by Waterfront


Toronto of carrying on such activity without the requisite licence, permit, consent or authorization.

10.6 Power of Legislative Assembly

Respondents are advised that no provision of the RFP Documents (including a provision stating the intention of Waterfront Toronto) is intended to operate, nor shall any such provision have the effect of operating, in any way, so as to interfere with or otherwise fetter the discretion of the Legislative Assembly of Ontario in the exercise of its legislative powers.

SECTION 11 – NOTIFICATION AND DEBRIEFING

(1) Any time after the Preferred Respondent has been identified, Waterfront Toronto will formally notify all Respondents who were not successful in the RFP Process that they have not been selected.

(2) Any time after Commercial Close, Waterfront Toronto and a member or members of the Evaluation Committee will meet with any unsuccessful Respondents, at the request of the unsuccessful Respondent, to provide a de-briefing.

SECTION 12- DEFINITIONS

12.1 General

Unless otherwise defined in this RFP SECTION 12, capitalized terms and expressions used in this RFP have the meaning given to them in the Draft Agreement Documents. In this RFP, the singular shall include the plural and the plural shall include the singular, except where the context otherwise requires.

12.2 RFP Definitions

Whenever used in this RFP,

(1) “Addendum” means a written addendum to the RFP Documents issued by Waterfront Toronto as set out in RFP Section 3.7;

(2) “Advisor” means any person or firm retained to provide professional advice to either Waterfront Toronto, a Respondent, or a Respondent Team Member, as applicable;

(3) “Background Information” means various types of information provided by Waterfront Toronto and is defined in the RFP Section 2.4(b);

(4) “Confidential Questions” is defined in RFP Section 3.2.2(ii);

(5) “Confidential Information” is defined in RFP Section SECTION 3(1);

(6) “Contact Person” is defined in RFP Section 3.2.1;

(7) “Contract A” is defined in RFP Section SECTION 1(4);

(8) “Data Room” is defined in RFP Section 2.4;

(9) “Evaluation Committee” is defined in RFP Section 6.1;


(10) “Fairness Advisor” is defined in the RFP Data Sheet;

(11) “Final Proposal Score” is defined in RFP Section 6.3.4;

(12) “Financial Services Provider” means any Lender (as that term is defined in the Draft Agreement Documents) and any other provider of financial services or products;;

(13) “First Negotiations Respondent” is defined in RFP Section 8.1(b);

(14) “General Questions” is defined in RFP Section SECTION 3(1);

(15) “Identified Respondent Parties” is defined in RFP Section SECTION 3(1);;

(16) “Waterfront Toronto” is defined in RFP Section SECTION 1(1);

(17) “Negotiations Respondent” is defined in RFP Section 8.1(b);

(18) “PIR” is defined in RFP Section SECTION 1(1) ;

(19) “Preferred Respondent” is defined in RFP Section SECTION 1(2);

(20) “Prequalification Submission” is defined in RFP Section SECTION 1(1);

(21) “Prequalified Parties” is defined in RFP Section SECTION 1(1);

(22) “Project” is defined in RFP Section SECTION 1(2);

(23) “Draft Agreement Documents” are those documents listed as the “Draft Agreement Documents” in the RFP Data Sheet;

(24) “Respondent” is defined in RFP Section SECTION 1(2);

(25) “Respondents Meeting” is defined in RFP Section 3.4.1;

(26) “Respondent Representative” is defined in RFP Section SECTION 1(2);

(27) “Respondent Team Members” means all members of the Respondent team that were identified in the RFQ process and were prequalified as a Respondent team to submit a Proposal in this RFP Process;

(28) “Proposal” is defined in RFP Section SECTION 1(2);

(29) “RFP Documents” is defined in RFP Section SECTION 2(1);

(30) “RFP Process” is defined in RFP Section SECTION 1(4);

(31) “RFQ” is defined in RFP Section SECTION 1(1));

(32) “Scheduled Site Tour” is defined in RFP Section 3.5.1;

(33) “Second Negotiations Respondent” is defined in RFP Section 8.1(b);

(34) “Signing Parties” is defined in RFP Section SECTION 1(6);


(35) “sole discretion”, wherever used, means in the sole and absolute discretion of the party exercising the discretion;

(36) “Submission Deadline” is defined in RFP Section SECTION 3(1);

(37) “Timetable” is defined in RFP Section SECTION 3(1).

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