Real Estate Management Agreement (73K)
Doc #336372: Click preview link for longer preview.
REAL ESTATE MANAGEMENT AGREEMENT
THIS AGREEMENT, made as of the 1St day of October, 2002, between PARK
PLAZA MALL, LLC, having an office at do First Union Real Estate Equity and
Mortgage Investments, 125 Park Avenue 14th Floor, New York, New York 10017,
("Owner"), and GENERAL GROWTH MANAGEMENT, INC., having a principal address 110
North Wacker Drive, Chicago, Illinois, 60606 ("AGENT").
W I T N E S S E T H
In consideration of the Covenants herein contained, the parties hereto
agree as follows:
ARTICLE I
APPOINTMENT AND AUTHORITY OF AGENT
1.1 Owner owns a shopping center (referred to as the `Premises"),
identified on Exhibit A attached hereto and made a part hereof: Owner hereby
appoints Agent as the sole and exclusive managing and leasing agent for the
Premises, and hereby authorizes Agent to exercise such powers with respect to
the Premises as may be necessary for the performance of Agent's obligations
under Article II, arid Agent accepts such appointment on the terms and
conditions hereinafter set forth for a term as provided in Article V and agrees
to manage, operate and maintain the Property in a faithful and diligent manner,
subject to the terms and conditions in this Agreement. Agent shall have no right
or authority, express or implied, to commit or otherwise obligate Owner in any
manner whatsoever except to the extent specifically provided herein.
ARTICLE II
AGENT'S AGREEMENT
2.1 Agent, on behalf of Owner, shall implement, or cause to be
implemented, the decisions of Owner and shall conduct the ordinary and usual
business affairs of Owner as provided in this Agreement. Agent shall at all
times use reasonable efforts to conform to the policies and programs established
by Owner and identified to Agent, and the scope of Agent's authority shall be
limited to said policies. All undertakings incurred by Agent on behalf of Owner
under this Agreement shall be at the cost and expense of Owner unless otherwise
provided for herein. Agent agrees to use its best efforts in the management and
operation of the Premises, and to comply with Owner's instructions. If Owner has
or creates a Managing Agent's Manual ("the Manual") which summarizes the
instructions, then the "Manual" furnished by Owner to Agent shall be made a part
hereof. In the event of any inconsistency or conflict between the terms and
provisions of this Agreement and the Manual or the policies and programs
established by Owner, the terms and provisions of this Agreement shall govern
and be binding. Agent shall perform the following duties in connection with the
management and operation of the Premises:
(a) Contract, for periods limited to Owner's possession
of the Premises, but not in excess of one (1) year, in the name of Owner, for
gas, electricity, water and such other services as are being currently furnished
to the Premises. Service contracts shall be written to include a thirty (30) day
notice of cancellation by Owner wherever possible. All service contracts in
effect at the date hereof in respect of the Premises, including the terms
thereof (with cancellation right, if any), the services provided
- 1 -
{PAGE}
thereunder and the charges called for thereby, should be detailed in the Annual
Budget. No such contract, other than a contract for an item specified in the
Annual Budget or for water or utilities, which involves an expenditure in excess
of the amount set forth in paragraph 3 of Exhibit A attached hereto shall
hereinafter be entered into by Agent without the prior approval of Owner.
(b) Select, employ, pay, supervise, train, direct and
discharge all employees necessary for the operation and maintenance of the
Premises, including the payment of all related expenses, compensation, salary,
bonuses, fringe and fringe-related costs in accordance with industry practices
and, where applicable, the Annual Budget, carry Worker's Compensation Insurance
(and, when required by law, compulsory Non-Occupational Disability Insurance)
covering such employees, and use reasonable care in the selection and
supervision of such employees. Owner agrees to reimburse Agent for any
reasonable relocation costs associated with the relocation of exempt level
employees to the Premises. Agent will keep bi-weekly time sheets which shall be
available for inspection by Owner. Agent shall prepare or cause to be prepared
and timely filed and paid, all necessary returns, forms and payments in
connection with unemployment insurance, medical and life insurance policies,
pensions, withholding and social security taxes and all other taxes relating to
said employees which are imposed by any federal, state or municipal authority.
Agent shall also provide usual management services in connection with labor
relations and shall prepare, maintain and file all necessary reports with
respect to the Fair Labor Standards Act and all other required statements and
reports pertaining to labor employed at the Premises. Agent shall use its best
efforts to comply with all laws and regulations and collective bargaining
agreements, if any, affecting such employment. Agent will be and will continue
throughout the term of this Agreement to be an Equal Opportunity Employer. All
persons employed in connection with the operation and maintenance of the
Premises shall be employees of Agent.
Owner warrants and represents that as of the date of this Agreement, the
employees of the current manager of the Premises that the Agent has been asked
to retain have never been employed by Owner nor participated in any retirement
plan offered by Owner, are not presently or in the past been represented by a
labor union in their employment at the Premises and that the Agent will not
incur any unfunded vested retirement plan liability arising out of these
employees' employment, by any previous manager at the Premises.
(c) Keep the Premises, or cause the Premises to be kept
in a safe, clean and sightly condition and make and contract for all repairs,
alterations, replacements, and installations, do or cause to be done all
decorating and landscaping, and purchase all supplies necessary for the proper
operation and maintenance of the Premises as a first-class regional shopping
mall and the fulfillment of Owner's obligations under any. lease, operating
agreement or other agreement or compliance with all governmental and insurance
requirements, provided that, except as provided in Section 2.4 hereof, Agent
shall not make any purchase or do any work, the cost of which shall exceed the
approved budget or the amount set forth in paragraph 3 of Exhibit A attached
hereto, without obtaining in each instance, the prior approval of Owner, except
in circumstances which Agent shall deem to constitute an emergency requiring
immediate action for the protection of the Premises or of tenants or other
persons or to avoid the suspension of necessary services or in order to cure any
violation or other condition which would subject Owner or Agent to any criminal
penalty or civil fine. Agent shall promptly notify Owner immediately of the
necessity for, the nature of, and the cost of, any such emergency repairs or any
action to cure any such violation or other condition. Agent shall arrange for
and supervise, on behalf of Owner, the performance of all alterations and other
work to prepare or alter space in the Premises for occupancy by tenants thereof.
Agent shall submit a list of contracts and subcontractors performing tenant
work, repairs, alterations or services at the Premises, under Agent's direction
for Owner's approval before such subcontractors commence any work at the
Premises.
It is understood that Agent shall not be required to undertake
the making or supervision of
336372