HomeMy WebLinkAbout6C1 MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement(this"Agreement")is made as of the day of January,2013,by and
between the CITY OF SOUTH BEND,DEPARTMENT OF COMMUNITY INVESTMENT,acting by and
through the SOUTH BEND REDEVELOPMENT AUTHORITY,(the"Lessor")the CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT,acting by and through the SOUTH BEND REDEVELOPMENT
COMMISSION(the"Lessee")(collectively,the"City")and CRESSY&EVERETT MANAGEMENT CORP.,
an Indiana corporation("Manager")with reference to the following facts:
A. Lessor is the owner of the building located at 111 S. St. Joseph Street, South Bend, Indiana(the
"Building")and Lessee leases the Building from the Lessor. Any reference to"Property"in this
Agreement shall be deemed to the Building and the accompanying land.
B. Manager represents that it is in the business of managing properties similar to the Property and possesses
the skills and experience necessary for the efficient,professional management of the Property.
C. City desires to engage the services of Manager in connection with managing the Property and Manager
desires to provide such services to City.
Now,therefore,in consideration of the following promises,obligations and agreements,City and Manager agree as
follows:
ARTICLE I-BASIC TERMS
1.1 Effective Date. Manager's appointment under Article II shall become effective as of January , 2013
(the"Effective Date").
1.2 Term. The term of this Agreement shall commence on the Effective Date and shall continue on a month to
month basis, and thereafter the term shall be automatically renewed for additional periods of one month
each, subject at all times to the rights of termination set forth in Article IX.
1.3 Limits on Non-Emergency Purchase and Repairs. The limit on the amount Manager may incur for non-
emergency purchases or repairs under Section 3.4 is Two Thousand Dollars($2,000.00). City's prior
written approval is required under Section 3.4 for any contract for more than Two Thousand Dollars
($2,000.00).
1.4 Address of City. Unless changed by written notice to Manager,the address of City for notices under
Section 10.2 shall be:
City of South Bend,Department of Redevelopment
Attn: Don Inks
County City Building
227 W.Jefferson Blvd, Suite 1400 S
South Bend,IN 46601
1.5 Address of Manager. Unless changed by written notice to City,the address of Manager for notices under
Section 10.2 shall be:
Cressy&Everett Management Corp.
Attn: Robert E.Dunbar,Jr.,COO
4100 Edison Lakes Parkway, Suite 350
Mishawaka,IN 46545
1.6 Fees. Subject to Article VIII,the management fee payable to Manager for its services under this
Agreement shall be billed monthly for facility maintenance services provided by its technicians at the then
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current rates.
ARTICLE II-APPOINTMENT
City hereby appoints Manager as the manager for the Property as of the Effective Date,and for the term
stated in Section 1.2. City hereby authorizes Manager to exercise such powers and to take such actions with
respect to the Property as may be necessary for the performance of Manager's obligations under this
Agreement. Manager hereby accepts such appointment on the terms and conditions hereinafter set forth.
ARTICLE III-DUTIES OF MANAGER
3.1 General Duties.
(a) Manager,on behalf of City,shall use diligent efforts to manage and operate the Property. Manager
shall comply with other instructions of City as set forth herein or as may from time to time be
provided in writing by City to Manager. Manager shall perform its services in a professional and
diligent manner and shall manage,operate,repair,maintain and service the Property consistent
with industry standards in the locale where the Property is located. In particular,Manager shall
have the duties and obligations set forth hereafter in this Article III.
(b) Manager shall use its own technicians to perform routine inspections and on site facility
maintenance of the Property based upon a mutually agreed schedule with City.
3.2 Utility and Service Contracts. All contracts for gas,electricity,water,trash collection,sewer,landscaping,
snow removal,janitorial service, security service and such other services shall be in the name of the City
and negotiated by City or Manager as directed by City.
3.3 Employment of Personnel.
(a) All persons employed in connection with the operation and maintenance of the Property shall be
employees of Manager and shall not be employees of City. Manager shall employ,pay, supervise,
direct and discharge all employees necessary for the operation and maintenance of the Property,
and shall use reasonable care in the supervision of such employees. Manager shall be responsible
for complying with all laws,regulations and agreements affecting such employment,including
without limitation payment of all expenses,taxes and other obligations regarding such
employment.
(b) City may not, directly or indirectly,during the term of this Agreement and for a period of one year
following the date of expiration or earlier termination of this Agreement, solicit for employment
any individual then employed by Manager with whom City had contact in connection with this
Agreement prior to the date of expiration or earlier termination. City acknowledges and agrees that
a breach of the provisions of this Section 3.3(b)could not adequately be compensated by money
damages, and,therefore,Manager shall be entitled, in addition to any other right and remedy
available to it,to an injunction restraining any breach or threatened breach,and Manager shall not
be required to post a bond in any proceeding brought for such purpose. City further acknowledges
and agrees that the provisions of this Section 3.3(b)are necessary and reasonable to protect
Manager in the conduct of its business. Nothing herein shall be construed as prohibiting Manager
from pursuing any other remedies,at law or in equity, for any such breach or threatened breach.
3.4 Maintenance and Repairs.
(a) Manager shall perform, or cause to be performed under contracts with vendors, suppliers,
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contractors, subcontractors or consultants,entered into by City and/or Manager,all ordinary
maintenance,repairs, alterations,replacements and installations,all decorating and landscaping,
and the purchase of all supplies necessary for(i)the proper operation of the Property,and(ii)
compliance with covenants,conditions and restrictions affecting the Property,to the extent
Manager has been notified in writing by City of any such covenants,conditions and restrictions.
Notwithstanding the foregoing, Manager shall not make any purchase or order any work costing
more than the limit on the amount authorized for non-emergency purchases and repairs set forth in
Section 1.3 without City's prior written approval,except in circumstances reasonably deemed by
Manager to be an emergency requiring immediate action for the protection of the Property or other
persons or to avoid the suspension of necessary services. Manager shall promptly notify City of
the necessity for,the nature of, and the cost of such emergency repairs or compliance.
(b) Manager shall obtain all necessary receipts,releases,waivers,discharges and assurances necessary
to keep the Property free of any mechanics', laborers',materials suppliers'or vendors'liens in
connection with work,materials or supplies for which City contracts and for which Manager
directly contracts pursuant to the terms of this Agreement.
3.5 Monitoring of Third Party Contractors.Manager shall monitor all independent contractors,consultants,
suppliers,vendors and entities retained by City for the operation,repair,maintenance and servicing of the
Property or for any other activity within the scope of this Agreement.
3.6 Not applicable.
3.7 Not applicable.
3.8 Compliance with Laws. Subject to the other provisions of this Agreement,at City's expense,Manager
shall use its best efforts to cause the Property to comply with federal, state and municipal laws,ordinances,
regulations and orders relative to the use, operation,repair and maintenance of the Property and with the
rules,regulations or orders of the local Board of Fire Underwriters or other similar body. Manager shall
use its best efforts to remedy the violation of any such law,ordinance,rule,regulation or order of which it
has actual knowledge and which violation occurs after the Effective Date,at City's expense. Expenses
incurred in so complying and in correcting any such violation shall be approved in advance by City.
Notwithstanding the foregoing,however,Manager's responsibilities under this Section 3.8 shall not extend
to matters as to which the expenditure of City's funds is required but such funds are not made available by
City.
ARTICLE IV-REPORTS,AND OTHER FINANCIAL MATTERS
4.1 Not applicable.
4.2 Records. Manager agrees to keep separate records,either paper or electronic,with respect to the
management and operation of the Property and to retain those records for a period of two(2)years.
ARTICLE V-RESPONSIBILITIES OF CITY
5.1 Documents Provided by City. In order for Manager to set-up and establish operations City shall provide to
Manager such information,documents and certificates regarding the Property as Manager shall reasonably
request and as City has in its possession, including,but not limited to,the following to the extent available:
(a) Legal description of the Property and any improvements.
(b) Site plans and specifications.
(c) An inventory of City's personal property at the Property, including all tools,equipment and
supplies.
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(d) A list of all vendors.
(e) All pertinent books and records relating to the operation of the Property.
(f) All third party contracts in force.
(g) All insurance information on the property.
(h) All vendor insurance certificates.
(i) Procedures for reporting claims and evaluating safety and loss prevention conditions.
The above and any and all books and records are and shall remain the property of City but shall be made available
to Manager for its use and knowledge in assuming the duties and responsibilities of Manager under this Agreement.
5.2 City's Obligations. Throughout the term of this Agreement,City agrees to perform the following:
(a) To pay Manager for its services in the amounts and in the manner and at the times described in
Article VIII.
(b) To promptly reimburse Manager,upon written demand,to the full extent of all funds advanced by
Manager for City's account in carrying out the terms and conditions of this Agreement.
(c) To communicate with Manager through Manager's assigned manager for the Property at the
property management level.
(d) To maintain adequate funds to fund all expenditures to be made by Manager pursuant to the terms
of this Agreement.
(e) To disclose promptly to Manager,upon Manager's request,the property and liability loss history of
the Property as set forth in the records of the City and City's insurance carriers.
(f) To disclose promptly to Manager, in writing,any unresolved past or present claims,conditions,or
occurrences which may become future claims, conditions,or occurrences which would not be
covered by insurance policies maintained by City,including those policies required to be
maintained by City under this Agreement.
(g) To promptly inform Manager in writing of the existence on the Property of any Hazardous
Substance,the presence of which either:
(i) requires investigation or remediation under any federal, state,or local laws,rules,codes,
statutes,regulations,orders,notices,determinations,ordinances,or other requirements; or
(ii) causes or threatens to cause a nuisance upon the Property or adjacent properties or poses or
threatens to pose any hazard to the health and safety of any persons on or about the
Property.
(h) To require all contractors and consultants that may be hired by City as set forth in Article III
to obtain and maintain liability insurance in an amount sufficient to adequately insure against
any identified or suspected environmental hazard at the Property or any other hazards relating to
any such inspections,test, studies,and remediation activities. All such liability policies shall
name Manager as an additional insured. Manager shall be entitled to receive a certificate of
insurance.
(i) To not make any payments,whether for commissions,bonuses or other reasons,directly to
Manager's employees.
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ARTICLE VI-INDEMNIFICATION AND SUBROGATION
6.1 Indemnification.
(a) Subject to Section 6.2,City shall protect,defend,indemnify and hold Manager,its agents,
employees and contractors harmless from and against any and all claims,damages, demands,
penalties,costs,liabilities,losses and expenses(including reasonable attorneys'fees and expenses
at the trial and appellate levels)to the extent arising out of or relating to the negligence or willful
misconduct of City or City's agents,employees or contractors, except to the extent caused directly
by the negligence or willful misconduct of Manager, its agents,employees or contractors.
(b) Subject to Section 6.2,Manager shall protect,defend, indemnify and hold City, its agents,
employees and contractors harmless from and against any and all claims,damages,demands,
penalties, costs,liabilities, losses, and expenses(including reasonable attorneys'fees and expenses
at the trial and appellate levels)to the extent(a)arising out of or relating to any act,omission,
negligence,or willful misconduct of Manager or Manager's agents,employees,contractors,
customers or invitees in or about the Property,including without limitation any default under this
Agreement,or(b)arising out of or relating to any of Manager's personal property or equipment,
except to the extent caused directly by the sole negligence or willful misconduct of City,its agents,
employees or contractors.
(c) "Indemnified Party"and"Indemnitor"shall mean Manager and City,respectively,as to Section
6.1(a)and shall mean City and Manager,respectively, as to Section 6.1(b). If any action or
proceeding is brought against the Indemnified Party with respect to which indemnity may be
sought under this Section 6.1,the Indemnitor,upon written notice from the Indemnified Party, shall
assume the investigation and defense thereof, including the employment of counsel and payment of
all reasonable expenses. The Indemnified Party shall have the right to employ separate counsel in
any such action or proceeding and to participate in the defense thereof,but the Indemnitor shall not
be required to pay the fees and expenses of such separate counsel,unless such separate counsel is
employed with the written approval and consent of the Indemnitor.
(d) The indemnities in this Section 6.1 shall survive the expiration or termination of this Agreement.
6.2 Waiver of Claims. Notwithstanding anything contained in this Agreement to the contrary,City and
Manager hereby waive any rights each may have against the other on account of any loss of or damage to
their respective property,the Property, its contents,or other portions of the Property arising from any risk
which may be insured against by a special form policy of property insurance. City and Manager shall cause
their respective insurance companies to include an endorsement to their respective property insurance
policies containing an express waiver of any rights of subrogation by the insurance company against City
and Manager,as applicable.
ARTICLE VII-COSTS AND EXPENSES
City shall pay all taxes, special assessments,ground rents,insurance premiums and mortgage payments affecting
the Property as they become due and before any delinquency date.
ARTICLE VIII—FEES
City shall pay Manager as compensation for the management services rendered hereunder fees at the rate and
amounts specified in Section 1.6. Such Fees shall be payable within thirty(30)days following City's receipt of
invoice from Manager.
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ARTICLE IX-TERMINATION
This Agreement may be terminated prior to the expiration of the initial term or of any renewal term,as the case
may be,on the following terms and conditions, it being understood and agreed,however,that termination shall
relieve neither City nor Manager from liabilities or claims accruing and arising up to and including the date of
termination:
(a) City shall have the right to terminate this Agreement in the event that Manager fails to keep,
observe or perform any covenant,agreement,term or provision of this Agreement,to be kept,
observed,or performed by Manager,and such failure continues for a period of thirty(30)days after
written notice thereof by City to Manager.
(b) In the event that the Property is leased or sold to a party which is not affiliated with City,City
shall have the right to terminate this Agreement as it applies to the Property so sold with thirty(30)
days' prior written notice to Manager.
(c) City shall have the right to terminate this Agreement if a petition for bankruptcy,reorganization
or rearrangement is filed under any federal or state bankruptcy or insolvency laws by Manager,or
if any such petition is filed against Manager and not removed or discharged within sixty(60)days
thereafter.
(d) Manager shall have the right to terminate this Agreement in the event City fails to keep observe
or perform any covenant,agreement,term or provision of this Agreement to be kept observed,or
performed by City and such failure continues for a period of thirty(30)days after written notice
thereof by Manager to City,or if City materially fails to comply with any law,regulation or
ordinance relating to or affecting City's ownership of the Property.
(e) If any building on the Property is destroyed and City, for any reason,elects not to rebuild the
building,then this Agreement shall terminate as to such building as of the date of notice to
Manager that City has elected not to rebuild the building after such destruction.
(f) In the event there is a condemnation of all or any substantial part of any Property,then this
Agreement shall automatically terminate as to such Property as of the date of such taking.
(g) This Agreement may be terminated with thirty(30)days advance written notice by either party.
ARTICLE X-MISCELLANEOUS
10.1 Status of Manager. It is the intention of the parties to create a relationship wherein Manager is an
independent contractor in the management, operation and maintenance of the Property. Nothing herein
contained shall be construed as creating the relationship of employer-employee or establishing any
partnership or joint venture arrangement between City and Manager.
10.2 Notices. Any statement,notice,recommendation,request,demand, consent or approval under this
Agreement must be in writing and personally delivered or sent by overnight courier service,or sent by
United States registered or certified mail,postage prepaid,return receipt requested,and shall be deemed to
have been given upon the date of personal delivery or the next business day following deposit with an
overnight courier or five days after deposit in the United States mail,provided that in the case of
communications sent by overnight courier service or United States registered or certified mail,the
communication is addressed as set forth in Section 1.4 if sent to the City and as set forth in Section 1.5 if
sent to Manager. Either party may,by written notice,designate a different address.
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10.3 Ownership of Fixtures and Personal Property. Manager acknowledges that City owns all fixtures and
personal property situated on or about the Property and used in or necessary for the operation,maintenance
and occupancy of the Property except for such items as are purchased by Manager out of its own funds and
for which it is not reimbursed by City.
10.4 Assignment. This Agreement shall not be assignable by Manager without the express prior written consent
of City,except that Manager may assign this Agreement without such consent to an affiliate of Manager
pursuant to a merger or reorganization of its parent company,or any subsidiary of the parent or Manager.
This Agreement shall be for the benefit of and shall be binding upon the heirs,successors and assigns of the
parties hereto.
10.5 Severability. Each provision of this Agreement is intended to be severable. If any term or provision hereof
or the application thereof to any entity or circumstance shall be determined by a court of competent
jurisdiction to be illegal or unenforceable for any reason whatsoever, such term,provision or application
thereof shall be severed from this Agreement and shall not affect the validity of the remainder of this
Agreement or the application of such term or provision to any other entity or circumstance.
10.6 Costs of Suit. If City or Manager shall institute any action or proceeding against the other relating to this
Agreement,the unsuccessful party shall reimburse the successful party for its disbursements incurred in
connection therewith and for its reasonable attorneys'fees,as fixed by the court.
10.7 Waiver. No consent or waiver,express or implied,by either party to or of any breach or default by the
other party in the performance of its obligations hereunder,shall be valid unless in writing. No such
consent or waiver shall be deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such other party of any other obligations of such party hereunder. The failure
of any party to declare the other party in default shall not constitute a waiver by such party of its rights
hereunder,irrespective of how long such failure continues. The granting of any consent or approval in any
one instance by or on behalf of City shall not be construed to waive or limit the need for such consent in
any other or subsequent instance.
10.8 Remedies Cumulative. No remedy herein contained or otherwise conferred upon or reserved to City shall
be considered exclusive of any other remedy,but such remedy shall be cumulative and in addition to every
other remedy given hereunder or now or hereafter existing at law,in equity or by statute. Every power and
remedy given by this Agreement to City may be exercised from time to time and as often as occasion may
arise or as may be deemed expedient.
10.9 Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes all
prior oral or written agreements,understandings, representations and covenants,to the extent that they are
inconsistent with this Agreement.
10.10 Amendment. This Agreement may not be amended or modified except by an agreement in writing signed
by the party against whom enforcement of such change or modification is sought.
10.11 Governing Law. This Agreement and the obligations of City and Manager shall be governed by,and
construed and enforced in accordance with,the laws of the state where the Property is located.
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Agreed to and accepted this day of January, 2013 by the following duly authorized representatives;
OWNER
City of South Bend,Department of Community Investment, acting by and through the
South Bend Redevelopment Authority
By:
Its:
By:
Its:
City of South Bend,Department of Redevelopment,
Acting by and through the South Bend
Redevelopment Commission
By:
Its:
By:
Its:
MANAGER
Cressy and Everett Management Corp.
By:
Its:
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