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HomeMy WebLinkAbout6.A.(2) Comml Property Management Agreement for Redev Retail~~-~ COMMERCIAL PROPERTY MANAGEMENT AND LEASING AGREEMENT (2009-2010) This Agreement, made this 1St day of February, 2009, between CITY OF SOUTH BEND REDEVELOPMENT COMMISSION ("Owner"), and ROBERT BRADLEY ASSOCIATES, LLC, d/b/a CB RICHAKD ELLIS BRADLEY whose address is 202 S. Michigan Street, Suite 200, P.O. Box 540, South Bend, Indiana 46624-0540, an Indiana limited liability company, ("Agent"). APPOINTMENT AND ACCEPTANCE. The Owner appoints the Agent for the management of the Property described in Section 2 of this Agreement, and the Agent accepts the appointment, subject to the terms and conditions set forth in this Agreement. DESCRIPTION OF PROPERTY. The Properties are all located in South Bend and described as follows: I 1 ;" }.~~~t ~t%~~~ ~~~ `~t~°c:~t ..__ ~~'~~~ ~~c Street t. ~z~~~t~~~~ l~ct<lil 118-131 South Michigan Street -Leighton Plaza Garage Retail/Redevelopment Retail Leighton Plaza Courtyard located at 130 South Main St1•eet DEFINITIONS. As used in this Agreement: ``Agent" means Robert Bradley Associates, LLC d/b/a CB Richard Ellis South Bend. b. "Operating Account"' means the account described in Section 8 hereof. c. "Owner' means City of South Bend Redevelopment Commission d. "Principal Parties" means the Owner and the Agent. e. "Property" means the Property described in Section 2 hereof. £ "Property Expense" means an expense paid by the Agent from the Operating Account. 4. BASIC INFORMATION. "The Owner has furnished the Agent, to the best of the Owner's ability, ~~~ith a complete set of plans and specifications of the Proper, copies of all guaranties and warranties pertinent to the Property and its construction, fixtures and eduipment, financial statements. accounting records, leases, service contracts, insurance policies and any and all pertinent related documents related thereto. With the aid of this infonllation, discussion with the Owner. and inspection of the Property, the Agent has familiarized it self with the character, location, construction, layout, plan and operation of the Property, including but not limited to the electrical, heating, plumbing, air conditioning and ventilation systems an all other mechanical equipment. MUTUALLY AGREED RESPONSIBILITIES AND AUTHORITY. a. The Owner expressly withholds from the Agent without prior direction of the Owner any power or authority to make any structural changes in the Property or to make any major alterations or additions in or to the buildings or equipment therein, or to incur any expenses chargeable to the Owner or the Property other than expense related to exercising the express powers herein vested in the Agent; provided. however that the Agent may make emergency repairs, required because of danger to life or property, or to avoid suspension of any necessary service to the property. b. The Agent by virtue of its role as agent hereunder shall have no ownership interest of any kind in the Property. The Agent does not assume and is not give responsibility for compliance of the Property or any buildings or equipment therein with the requirements of any statute, ordinance, law or regulation but shall forward to the Owner promptly any complaints, warnings, notices or summonses received by it relating to such matters. The Owner represents and warrants that the Property, its buildings, land, equipment all other parts and portions thereof and procedures related thereto are currently and will continue to be, throughout the term of the Agreement and all renews and extensions thereof, in full and complete compliance with all applicable statutes, ordinances, laws, and regulations of every kind and nature, including but not limited to those pertaining to environmental protection, safety, zoning, accessibility for persons with disabilities, employment, housing opportunity, and fair credit reporting. The Owner authorizes the Agent to disclose the ownership of the Property to any governmental officials. The Owner agrees to indemnify and hold harmless the Agent, its representatives. servants and employees of and from all loss, cost. expenses and liability whatsoever, including but not limited to attorneys fees and all costs of defense which may be imposed on or incurred by them or any f them by reason of any past, present or future violation or alleged violation of such statutes. ordinances, laws or regulations unless such violations occur solely by the direct and affirmative act of the Agent. In the event it is alleged that the Property or any building or equipment therein or any act or failure to act by the Owner with respect to the Property or the sale, rental or other disposition thereof fails to comply with or is in violation of any statute, ordinance, law or regulation of any governmental body. or of any order of any public authority or official, and the sole and absolute discretion, considers that the action or position of the Owner with respect thereto may result in damage or liability to the Agent, the Agent shall have the right to terminate this Agreement by written notice to the Owner of its election to do so, which termination shall become effective thirty (30) days from the date of such notice, unless the Owner takes action prior to the expiration of such thirty (30) day period which the Agent in its sole discretion determines cures the potential for its damage or liability; provided, however, if the Agent in its sole and absolute discretion determines that due to the continued effectiveness of the Agreement it is exposed to potential damage, liability or claims or to circumstances which could prejudice its standing and reputation, the Agreement shall be, and the notice shall so state that it is, terminated upon the service of the notice. The notice may be served personally or by certified mail on or to the Owner if served by mail shall be deemed to have been served when deposited in the United States mails by certified mail. d. Owner agrees that while engaged with Agent or at any time thereafter not to use for Owner"s benefit or to disclose to any other person, partnership, association, venture, company or corporation, any confidential or trade information of Agent. Confidential and trade information for purposes of this Agreement shall include Agent's business information not readily available to the public which (a) is technical in nature such as, but not limited to methods, know-how. procedures, printed materials, computer programs, written documentation. manuals, forms and similar items: or (b) is of a business nature such as, but not limited to, lists of customers or clients, referral sources, customer or client data and information, accounting and financial information, personnel information, purchasing information, marketing techniques and similar items. Owner agrees, during the term of this Agreement and for a period of one (1) year thereafter, not to interfere with or attempt to impair the relationship between Agent and any employee of Agent, nor will Owner directly or indirectly. solicit. entice, hire or otherwise induce or cause an employee of Agent to terminate or change such employee's relationship with Agent or attempt to do any such things without prior written consent of Agent. f. Owner agrees that any breach of these covenants by Owner will irreparably harm Agent. if Owner breaches or threatens such breach, Agent shall be entitled in injunctive relief. In all events of breach by Owner or of litigation related to this Agreement, including without limitation that for injunctive relief, in which Agent in any way prevails, Agent shall be entitled to recovery of all costs and expenses, including attorneys' fees. 6. MARKETING. The Agent will assist the Owner with marketing activities of the Property, with all marketing and advertising expenses being Property expenses. LEASING. The Agent will serve as the Owner's exclusive marketing and leasing agent and will offer for lease and will rent the commercial units, parking spaces, commercial space and other rental facilities and concessions in the Property in accordance with the following provisions: The Agent will follow the tenant selection policy prescribed by the Owner; provided, however, that the Agent will not discriminate in the performance of any services rendered hereunder because of the race, color, religion, sex familial status, handicap, age or national origin of the prospective tenant. b. The Agent will show the premises to prospective tenants. The agent will solicit, receive and process applications for leases and will develop and maintain a current list of prospective tenants. d. The Agent will collect security deposits in accordance with the terms of each tenant"s lease and their requirements of applicable state law. Agent will deliver security deposit to Owner up receipt. Upon tenant move out. Agent shall provide Owner with a detailed move out inspection along with recommendation of release of security deposit within fifteen (15) days of move out. Agent will keep a list of said security deposits. The list will be included in the monthly financial report. The Agent will maintain on file offices of the Agent certificates of insurance carried by the tenants in the Property, which may be a requirement of the leases between the Owner and the tenant. 8. COLLEC"1`ION OF RENT AND OTHER RECEIPTS; OPERATING ACCOUNT. The Agent will collect rents. charges, and other amounts due fi-om tenants (except for security deposits referred to in Section 7.d.) promptly when such amounts become due and shall deposit all such amounts in a separate account with a bank or other financial institution whose deposits are insured by an agency of the United States Government (the ``Operating Account''). The Operating Account shall be maintained by the Agent for the Owner and its funds shall not be commingled with funds of the Agent. "I~he Agent may withdraw from the Operating Account all disbursements for purposes which this Agreement designates as Property Expenses. 9. ENFORCEMENT OF LEASES. The Agent will secure full compliance by each tenant with the terms of his leas a~1d ~~i11 emphasize voluntary compliance so that involuntary termination of tenancies may be avoided whenever possible consistent with sound management. Nevertheless, subject to procedures prescribed the Owner and with the Owner's consent the Agent may lawfully terminate any tenancy with, in the Agent's judgment, sufficient cause of such termination exists under the terms of the tenant's lease. For this purpose, and after receiving approval from the Owner. the Agent is authorized to consult with the Owner's legal counsel to bring actions for eviction and to execute notices to vacate incident to such actions; provided, however, the Agent shall keep the Owner informed of such actions. Attorney fees and other necessary costs incurred are Property Expenses. The Agent will provide notices to Tenants of default on a timely basis and provide Owner with copies of all such notices. 10. MAINTENANCE AND REPAIR. a. Notwithstanding any of the foregoing provisions, the prior approval of the Owner will be required for any expenditure which exceeds Two Thousand Five Hundred Dollars (~"'.~t')~).O{~) in any once instance for labor, materials, or otherwise in connection with the maintenance and repair of the Property, except for recurrent expenses with the limits of the Operating Budget or for emergency repairs required because of danger to persons or property or to avoid suspension of any necessary service to the Property. In the event of an emergency, the Agent will attempt to contact the Owner as promptly as possible and consult with the Owner to determine fizrther action. 11. UTILITIES AND SERVICE. The Agent will arrange for service to the Property including but not limited to water, electricity, gas, sewage, trash removal, vermin extermination, the plowing of snow and the treatment of ice, landscaping, sweeping, litter control and all related services and will enter into contracts necessary to secure such utilities and services. All expenses therefore are Property Expenses. 12. ON-SITE PERSONNEL. All on-site personnel are employees of the Agent, who will hire, pay. supervise and discharge them. 13. DISBURSEMENT FROM THE OPERATING ACCOUNT. The Agent shall disburse monthly from the Operating Account payment for all Property Expenses due and payable as Property Expenses: provided, however, that the Agent shall under no circumstances be obligated or required to expend or advance its own funds for any purpose on behalf of the Owner or the Property whether or not such expenses are designated herein as Property Expenses. The Agent shall disburse any funds in excess of Ten Thousand Dollars ($10,000.00) after Operating Expenses are paid. 14. BUDGETS. The Agent will prepare a recommended annual operating budget for each fiscal year which begins during the term of this Agreement and will submit the proposed budget to the Owner on or before the first day of December of each year following the first full year of this Agreement. The Owner will review, revise as necessary, and approve the annual operating budget for the Property on or before the first day of each fiscal year which begins during the term of this Agreement. The fiscal year shall be from January 1 through December 31. The Agent is authorized to make expenditures of Property Expenses with the amounts set forth within the categories established in the annual operating budget. All such expenses are Property Expenses and will be paid by or reimbursed to the Agent from the Operating Account pursuant to this Agreement. Variations from the annual operating budget will be reported to the Owner. 15. FINANCIAL RECORDS AND REPORTS. The Agent will have the following responsibilities with respect to financial records and reports of the Property: a. The Agent will establish and maintain a comprehensive system of records, books and accounts in a manner satisfactory to the Owner and subject to applicable state law. All records, books and accounts will be subject to examination at reasonable hours by the Owner. b. With respect to each fiscal year ending during the term of the Agreement, the Agent will cause an annual financial report of the Property be prepared by a certified public accountant or other person acceptable to the Owner, based upon the preparer"s examination of the books and records of the Owner and the Agent The report will be certified by the preparer and will be submitted to the Owner within sixty (60) days after the end of the fiscal year. Compensation for the preparer's services and expenses is Property Expense. c. By the twentieth (20`") day of each month, the Agent will furnish the Owner with a statement of receipts and disbursements during the previous month. a schedule of accounts receivable and payable, and reconciled bank statements for the Operating Account and security deposit account as of the end of the previous month. Each report will contain a discussion of pertinent activity and any significant variances from the annual operating budget and the need of the Owner's consideration of a revision of the budgeted expenses. 16. BIDS. DISCOUNTS. REBATES, ETC. The Agent will obtain contracts, materials, supplies, utilities and services by the most appropriate means under the circumstance. The Agent may solicit bids, either formal or informal, for items that can be obtained from more than one source. All such expenses are Property Expenses. 17. TENANT-MANAGEMENT REI ATIONS The Agent will maintain good faith commlulications with the tenants of the Property to the end that problems affectin;~ the Property and it s tenants may be avoided or solved on a mutually satisfactory basis. 18. INSURANCE. The Owner will inform the Agent of the insurance to be carried with respect to the Property and its operations, and the Agent will cause such insurance to be placed and kept in effect at all times. Insurance premiums are a Property Expense. Insurance will be placed with the companies, on conditions, in amounts, and with beneficial interests acceptable to the Owner and in conformity with the Mortgage; provided, however, that public liability coverage shall be in form, substance and amounts acceptable to the Agent as well as the Owner and the Mortgagee and will name the Agent as an additional insured. The Agent will investigate and report to the Owner about all accidents, claims and potential claims for damages relating to the Property and will cooperate with the Owner's insurers in connection therewith. 19. AGENT'S BOND. The Agent agrccs that during the entire term of this Agreement that Agent will carry, at the Agents ole cost and expense, fidelity insurance coverage with sureties in the amount of not less than $100,000.00 and that Agent will provide Owner with a copy of Agent's certificate evidencing said insurance coverage. Agent will investigate and report to the Owner about all accidents, claims and potential claims for damages relating to the Property and will cooperate with Owner"s insurers in connection therewith. 20. SAVE HARMLESS AND INDIMINIFICATION. Owner Agrees: a. To indemnify, defend and save the Agent harmless from all suits in connection with the property and from liability for damage to property and injuries to or death related to the Property, except for activities arising out of Agent's willful misconduct or gross negligence, unless conduct or gross negligence was a result of Owner's instruction or direction, in which event Owner shall indemnify Agent. b. To pay all expenses incurred by the agent. including, without limitation, attorney's fees for counsel employed to represent the Agent or the Owner in any proceeding or suit involving the alleged violation by the Agent or the Owner. or both of any constitutional provision, statute, ordinance, law or regulation of any governmental body pertaining to fair employment, Federal Fair Credit Reporting Act, environmental protection of fair housing, including with limitation. those prohibiting or making illegal discrimination on the basis of race. creed, color, religion or national origin in the sale. rental or other disposition of the Property or any services rendered in connection therewith (unless the Agent is finally adjudicated to have personally and not in a representative capacity violated such constitutional provision. statute ordinance. law or regulation), but nothing herein contained shall require the Agent to employ counsel to represent the Owner in any such proceeding or suit. The Owner shall indemnify, defend and save the Agent harmless from all claims, investigations and suites with respect to any alleged or actual violation of state or federal laws, except for activities arising out of the Agenf s willful misconduct or gross negligence was a result of Owner's instruction or direction, in which event Owner shall indemnify Agent. Owner's obligation under this paragraph 20c. shall include the payment of all settlements.. judgments, damages, liquidated damages, penalties, forfeitures, back pay awards, court costs, litigation expenses and attorney's fees. d. To give adequate advance written notice to the Agent if payment of mortgage indebtedness, general taxes or special assessments or the placing of tire, steam boiler or any other insurance is desired. e. The Owner agrees to indemnify the Agent as to any liability imposed upon the Agent by virtue of Agent" s actions with respect to the Property, except for activities arising out Agents willful misconduct or gross negligence, unless such conduct or gross negligence was a result of Owner's instruction or direction which event Owner shall indemnity Agent. 21. AGENT'S COMPENSATION. All forms of compensation to Agent are Property Expenses. The Agent will be compensated for its services under this agreement by a monthly management fee. Such fee will be payable not later then the fifth (5`'') day of each month for the preceding month. On the first day of each succeeding month during the term of the Agreement the monthly management feel shall be as follows: 11 % East t~'ayne `~tr~:ei _ '~~'ayne Strcet <~L~~t«.L lec,~t~~il ini~nthl~ ~~~<~~1<~g~t~l~r~t e~: ~~i11 be a r~~~i~~im«n~ o{~"f~~ti~~a E-Iralydrecl I)~al#~~~°~ 1`~?€It~.(IO} air 5`~h of grt~ss reven~~s ~€~Il~et~~I ~~I~ieh~ee~• is grc~iter. 118-131 South Michigan Street -Leighton Plaza Garage Retail Redevelopment Retail Shops monthly fee ~yill be a minimum of Six Hundred Twenty Five Dollars (5625.00) or ~°/~ of gross revenues collected whichever is greater. • Leighton Plaza Courtyard located at 130 South Main Street monthly fee will be a flat fee of Sevent~~-Five Dollars (575.44). In addition to the monthly management fee, the Agent will be compensated for the following services. a. All expenses for maintenance. repair and work order processing (including any inspections by maintenance staff) are Property Expenses and are invoiced bi-~yeekly and are due ~yithin seven business days. Maintenance rates are listed in "Exhibit A" of this Agreement. For coordination of modernization, rehabilitation, and construction the Agent shall be paid Five percent (5.0%) of the cost in excess of Two Thousand Five Hundred Dollars ($2,500.00) provided, however, that if the Owner retains the services of a rehabilitation coordinator, the Agent shall receive a fee of Two and One Half percent (2.5%) of the cost in excess of Two Thousand Five Hundred Dollars ($2,500.00). c. For coordination of fire restoration efforts, the Agent shall be paid a fee of Five (5.0%) of the cost in excess of Two Thousand Five Hundred Dollars ($2,500.00) of the cost of such restoration; provided, however, that if the Owner retains the services of a fire restoration coordinator, the Agent shall receive a fee of Two and One I [alf percent (2.5%) of the cost in excess of Two Thousand Five I Iundred Dollars ($2,500.00). d. For leasing, the Agent shall be paid one half (I /2) of the amount of its commission upon lease execution and one half (12) upon lease commencement. The leasing services rendered by the Agent shall be compensated by commissions as follows: New Ieases and expansions: eight percent (8%) of the gross rental income scheduled over the original term of the lease for any new lease or expansion negotiated by Agent. Co-brokered transactions: ten percent (10%) of the gross rental income scheduled over the original term of the lease for any new lease or expansion co-brokered. Renewals, expansions and extensions: three and on-half percent (3.5%) of the gross rental income collected during the term of any extension of anv lease negotiated by Agent. 4. If a prospective tenant fails to consummate a lease the Owner receives a defaulted deposit from the prospective tenant, then the Agent shall receive one-half of the defaulted deposit, not to exceed the amount of commission otherwise payable. The Owner shall have no filrther obligation to the Agent for any commission the The Owner agrees that it anv part of the Property is leased within one (1) year after the expiration of the term of this Agreement to any person, firm or corporation ~~ith whom during the term of this Agreement the Agent had negotiations about leasing within the Property, the Owner shall pay the Agent commission in accordance ~~~ith Section 21e. 22. REIMBURSABLE EXPENSF.,S. Reimbursable expenses shall include actual expenditures made or authorized by the Agent as Property Expenses pursuant to this Agreement. Reimbursable expenses are payable from the Operating Account by the Agent or by the Owner directly to the Agent. Under no circumstances is the Agent obligated to advance its own funds for Property Expenses or otherwise. If for any reason funds are not available in the Operating Account to pay a reimbursable expense by the last business day of each month in which such expense was incurred, the Owner shall immediately reimburse the Agent in full for such expense. Reimbursable Expenses shall include, in addition to other expenses described herein as Property Expenses, the follow items: a. Long distance calls, faxes, copies and fees paid for the negotiating or conduction of business for the Property or for the Owner and for securing the approval of authorities having jurisdiction over the Property. b. Handling, shipping, mailing and reproduction of materials related to the Property, and entertainment expenses incurred in connection with the Property, providing such entertainment expenses have been approved in advance by the Owner. Mileage when traveling in connection with the Property (billed at the then current governmental rate) and overtime work requiring higher than regular rates. d. Electronic data processin~~ ser~~ice and rental of electronic data processing equipment when used in connection with additional services on the Property site. Fees charged by third parties for rental lock boxes and wire transfers of Property funds. 23. TERM OF AGREEMENT-. This Agreement shall be in effect for a period of one (l) year b~i.~inlilli~_ i~11 l)i' <113i~~;: ?~'k; ~ i~ !~ iI! l~~l>iL1bli-~. ~~~}~~, eiliC~ ~nCIIT14,? c)(1 t~t~ 3I"day t~f-Ja~aEz~~a~~_ =~,~;t~. 7-his agreement ma_y be renewed by the Owner for Successive one-year periods by providing Agent with written notice. 24. INTERPRETIVE PROVISIONS This Agreement constitutes the entire agreement between the Owner and the Agent with respect to the management and operation of the Property, and no amendment or modification will be valid unless made by supplemental ~i-itten agreement. executed and signed by both parties herein. b. This Agreement may be executed in several counterparts, each of which shall constitute a complete original agreement, which may be introduced in evidence or used for any other purpose without reproduction of any of the other counterparts. Termination of the Agreement in any marnler shall not operate to release the indemnities of the Owner set forth in Sections Sb and 20 herein and shall not operate to terminate any liability or obligation of the Owner to the Agent for any payment, reimbursement or other sum of money due and payable to the Agent hereunder. d. This Agreement shall be binding upon the successors and assigns of the Agent and the heirs, administrators, executors, successors and assigns of the Owner. e. If either party defaults or breaches this Agreement, which default or breach is not cured within a reasonable time after receipt of notice from the other party to cure, then in addition to any other remedy to which it may be entitled the prevailing party shall be entitled to recover all costs including reasonable attorney fees it incurs in the enforcement of its rights herew~dcr. £ This Agreement is entered into and shall be interpreted and enforced according to the laws of the State of Indiana. (Re~~taif~c~er of~~age ir~ter~tiorrally left blank) IN WITNESS WHEREOF, the Owner and the Agent have executed this Agreement on the date first above written. OWNER: AGENT: CITY OF SOUTH BEND ROBERT BRADLEY ASSOCIATES, LLC REDEVELOPMENT COMMISSION d/b/a CB RICI-LARD ELLIS BRADLEY an Indiana limited liability Company By: By: ~ Bra ley J. T acker Its: Its: Managing hector Date: Uate: 3 ~ O "Exhibit A" Hourly Maintenance Rates $38.85 Janitorial Weed pulling Grounds trash pick up $49.65 Carpentry Painting Snow Shoveling $53.50 Electrical Plumbing $65.00 $67.80 Overtime Maintenance Rates $58.27 Janitorial Weed pulling Grounds trash pick up $ 74.48 Carpentry Painting Snow Shoveling $80.25 Electrical Plumbing $97.50 $101.70 *Note: I he above rates are suhject to review and change at am time, alter prior written notice to Owner. Overtime rates will apply should work be required outside of normal business hours.