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REI/ Property Managment Agreement /JAMES BLDG PROPERTY MANAGEMENT AGREEMENT THIS AGREEMENT, between The City of Cannel Redevelopment Commission ("CRC"), and REI Real Estate Services, LLC, an Indiana limited liability company ("Manager"), WITNESSETH: WHEREAS, CRC owns and/or has the right to use, possess, operate, and/or maintain certain property located Carmel, Indiana, as more particularly depicted and described on EXHIBIT A, together with the exterior elements and real estate surrounding such property(collectively, the "Property"); and WHEREAS, Manager is in the business of operating and maintaining real estate similar to the Property; and WHEREAS, CRC desires to retain Manager to provide property management services to the Property upon the terms and conditions as hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto, CRC and Manager hereby agree as follows: I. APPOINTMENT OF MANAGER CRC hereby appoints and engages Manager as Agent to supervise and direct the operation of the Property during the entire Term (as hereinafter defined). 2. TERM OF AGREEMENT This Agreement shall become effective on January 1, 2013 (the "Effective Date"), and shall continue in full force and effect until December 31, 2013, unless sooner terminated in accordance with its terms. This Agreement shall be automatically renewed for a one year renewal term at the expiration of such preceding term unless one party notifies the other, in writing, within 60 days prior to the renewal date, that it elects not to renew. The initial term of this Agreement, together with any extension terms, is the "Term". 3. POWER AND DUTIES OF MANAGER Manager shall have the authority to execute contracts on behalf of CRC for ordinary repairs, maintenance, and operation of the Property, including the types of contracts listed in the schedule attached hereto as SCHEDULE 2 (the "Property Contracts"). Notwithstanding the foregoing, Manager agrees to secure CRC's prior approval on all contracts requiring expenditures in excess of 51,000 for any one item or series of related items with the same vendor, that are not contained in the Annual Budget (as hereinafter defined), except for any expenditures resulting from emergency repairs deemed necessary by Manager. For the purpose of this Agreement, an "emergency" shall be defined as any situation in which failure on the part of Manager to act promptly would reasonably be expected to cause injury to person or appreciable property damage. Manager will make all reasonable efforts to obtain the approval of CRC before making any emergency expenditure. Manager, in the name of and on behalf of CRC, shall also provide the following services for CRC: a) PROPERTY MANAGEMENT I) At the expense of CRC, make, or have made under its supervision, all minor repairs, replacements, alteration, additions, improvements, and decorations necessary to preserve, in good condition and repair and at the optimum operating efficiency, the Property; 2) Perform daily janitorial maintenance, including, without limitation, trash hauling and removal, of the Property, and empty any dumpsters located on the Property; 3) Perform preventative maintenance functions described in Schedule3 attached hereto and present recommendations to CRC regarding improvements to the Property; 4) At the expense of CRC, make, or have made under its supervision, all extraordinary maintenance, repairs, and replacements necessary to preserve the Property in good condition and repair and at the optimum operating efficiency; 5) Provide adequate security for the Property; 6) Provide, operate, and maintain keys and/or keycard access for the Property, and coordinate the same with all users of the Property of which Manager has written notice from CRC; 7) Purchase, at CRC's expense, materials and supplies required for the Services (as hereinafter defined); 8) Coordinate performance of the Services with any manager of the parking garage located on or adjacent to the Property identified by CRC to Manager; 9) Manager shall make all payments required and in accordance with the approved Annual Budget. CRC shall transfer the necessary funds to a -2- bank account to be maintained by Manager. CRC shall transfer equal monthly payments based on the then-current Annual Budget(the "Monthly Payments") to fund the monthly operating expenses. The Monthly Payments shall be due on the first day of each month during the Term; provided that a Monthly Payment shall not be deemed late if paid within ten days thereafter. Within 30 days after the end of each Fiscal Year (as hereinafter defined), Manager shall deliver to CRC a reconciliation of: (i) the actual costs incurred by Manager; and (ii) all payments by CRC to Manager; during such Fiscal Year (the "Reconciliation"). If such actual costs are less than the aggregate of such payments by CRC, then, concurrently with delivery of the Reconciliation, Manager shall pay to CRC the amount by which such aggregate exceeds such actual costs. If such actual costs are more than such aggregate, then, in accordance with CRC's ordinary review and approval process, CRC shall pay to Manager the amount by which such actual costs exceed such aggregate; 10) Maintain complete accounting (including, without limitation, allocations on any basis reasonably requested by CRC) of all expenses: (i) incurred by Manager pursuant to this Agreement; or (ii) otherwise reported to Manager by CRC; and 11) Report to CRC regularly according to the schedule attached hereto as SCHEDULE 4 and report promptly to CRC any conditions relative to the Property requiring the immediate attention of CRC. Notwithstanding anything stated in this Subsection to the contrary, CRC and Manager intend that Manager's duties shall be substantially similar in scope and standard as those provided by Manager at the Property prior to the Effective Date, including, without limitation, that Manager shall have no or limited maintenance or operating obligations with respect to certain theater equipment located in or on the Property. b) OWNER SERVICE REQUESTS. Provide general maintenance services to CRC of the Property according to the schedule attached hereto as SCHEDULE 5. The items listed in this Section, together with the Property Contracts and the Additional Services (as hereinafter defined), are the "Services". Manager shall be responsible for hiring any necessary subcontractors, with approval by CRC, which approval shall not be unreasonably withheld. CRC and Manager shall cooperate in good faith to determine the types and levels of insurance to be held by each subcontractor hired by Manager in connection with this Agreement (the "Required Subcontractor Insurance"). Manager shall require each subcontractor hired by Manager to maintain the Required Subcontractor Insurance. If CRC incurs damages as the result -3- of the actions or omissions of a subcontractor hired by Manager in connection with this Agreement, then Manager shall have no liability for the same so long as such subcontractor maintained the Required Subcontractor Insurance, unless such damages would be covered by the insurance required to be can-ied by Manager hereunder, in which case Manager shall be liable only to the extent of such insurance. Manager shall be responsible and liable for the actions and omissions of any such subcontractor(s) hired by Manager in connection with this Agreement. CRC hereby designates Les Olds, as Executive Director of CRC (the "Executive Director"), and any other person designated by the Executive Director, to act on CRC's behalf in connection with any approvals or requests pursuant to this Agreement. CRC may revoke, replace, or condition such designations at any time upon notice to Manager. 4. INSURANCE AND INDEMNIFICATION a) MANAGER'S INSURANCE COVERAGE. At CRC's request, Manager shall, at Manager's expense, provide all the following insurance coverage throughout the Term and shall deliver to CRC certificates of insurance evidencing the following coverage: I) Worker's Compensation and Occupational Disease Insurance for all employees of Manager in accordance with applicable law, and Employers' Liability Insurance, with limits of liability of at $1,000,000. 2) Comprehensive General Liability, Bodily Injury and Property Damage Insurance, including: Blanket Contractual Liability, Personal Injury, Products Completed Operations, Broad Form Property Damage and Independent Contractor. The limits of liability shall not be less than $5,000,000 combined single-limit for Bodily Injury and Property Damage. 3) Automobile insurance, to include all motor vehicles owned, hired, leased or used on the job subject to limits of not less than $1,000,000 combined single-limit or Bodily Injury and Property Damage. b) OWNER'S INSURANCE COVERAGE. CRC shall, at CRC's expense, provide the following insurance coverage throughout the Term and shall deliver to Manager, within 30 days written request by Manager, certificates of insurance evidencing the following coverage: 1) Worker's Compensation and Occupational Disease Insurance for all employees of CRC in accordance with applicable law, and Employers' Liability Insurance, with limits of liability of at least $1,000,000. 2) Comprehensive General Liability, Bodily Injury and Property Damage Insurance, including: Blanket Contractual Liability, Personal Injury, -4- Products Completed Operations, Broad Form Property Damage and Independent Contractors with respect to the Property. The limits of liability shall not be less than $5,000,000 combined single-limit for Bodily Injury and Property Damage. This policy shall name Manager as an additional insured and shall be issued as a primary policy with other insurance carried by Manager being excess and noncontributing. c) NOTICE OF CANCELLATION. All policies of insurance in this Section must contain provisions which disallow cancellation or reduction in coverage prior to the other party being given a thirty (30) day written notice of the proposed cancellation or reduction in coverage. d) INDEMNIFICATION. Manager shall indemnify and save CRC, and CRC's representatives and officers, employees, and agents, harmless from all costs, losses, expenses, damages, attorneys' fees, and their costs, including all costs of defense, which any of them may incur with respect to: (i) Manager's gross negligence or intentional misconduct; or (ii) the failure, neglect, or refusal of Manager to faithfully perform any obligation under this Agreement. CRC shall indemnify and save Manager, and Manager's representatives and officers, employees, and agents, harmless from all costs, losses, expenses, damages, attorneys' fees, and their costs, including all costs of defense, which any of them may incur with respect to: (i) CRC's gross negligence or intentional misconduct; or (ii) the failure, neglect, or refusal of CRC to faithfully perform any obligation under this Agreement. It is expressly understood and agreed that the foregoing provisions shall survive the termination of this Agreement. 5. COMPENSATION In consideration of the performance by Manager of its duties hereunder, CRC shall pay to Manager the compensation set forth in the fee schedule attached hereto as SCHEDULE 1. The compensation set forth in SCHEDULE 1 shall not include any of the following costs or expenses: a) All fees and permits relating to inspections required by governmental agencies or insurance companies. b) Maintenance services performed and paid or payable to third parties. c) Any other operating costs of the Property including but not limited to cleaning services, landscaping, construction and alterations, rent collections, and security. -5- 6. EMPLOYEES Manager shall hire, pay, supervise and discharge all employees and personnel necessary for the performance of the Services. Manager will fully comply with all applicable laws and regulations relating to Worker's Compensation, Social Security, Unemployment Compensation, and hours of labor, wages and other employer-employee related matters. Manager represents that it is, and will continue to be, an Equal Opportunity Employer. All employees and contractors hired by Manager: (i) are (and shall be considered for all purposes to be) the employees and contractors of Manager; and (ii) are not (and shall not be considered for any purpose to be) the employees or contractors of CRC or the City of Carmel, Indiana (the "City"). Accordingly, CRC and the City shall have no obligations or liabilities with respect to such employees and contractors, who shall look exclusively to Manager to discharge all obligations and duties as their employer or principal. The City may require: (i) background checks for any or all employees or contractors hired by Manager; (ii) random or periodic drug testing for all such employees and contractors; and (iii) Manager to terminate any employee or contractor for cause (including, without limitation, for: (A) failing a drug test; or (B) a material violation of the standards for employment that are comparable in scope and content to standards and/or policies for employment that are maintained by the City); and any contracts for employment of such employees or contractors shall include consents to the implementation of such requirements. CRC agrees that during the period of 90 days following termination of this Agreement, including any extension hereof, it will not employ any person provided by Manager for the performance of this Agreement, nor will it knowingly permit or allow any firm, corporation or individual that might be engaged to furnish services of the kind furnished by the Manager to employ at the Property any person provided by Manager for the performance of this Agreement. 7. ADDITIONAL SERVICES Subject to prior approval by CRC, Manager shall be compensated for providing any additional services not specifically covered by this Agreement including, but not limited to, the supervision of capital expenditures (the "Additional Services"), on a negotiated fee basis. 8. TERMINATION This Agreement may be terminated for cause by either party upon 30 days' prior written notice. In the event Manager terminates this Agreement for cause, or CRC terminates this Agreement for any reason other than cause, Manager shall be entitled to receive as liquidated damages from CRC an amount equal to the minimum fees that were due and payable to Manager pursuant to SCHEDULE 1 for the preceding three months. CRC hereby acknowledges that Manager will suffer damages on account of such termination -6- and that the aforementioned liquidated damages fairly approximate the damages to be suffered by Manager. Manager hereby agrees to cooperate with CRC following such notice of termination. In the event of termination of this Agreement by either party whether with or without cause, the parties hereto shall provide each to the other the following described items prior to the termination date, unless another date is expressly specified below: a) Manager shall provide to CRC on or before the date of termination the original executed copies of all contracts executed by Manager on behalf of CRC pursuant to this Agreement. b) Manager shall provide to CRC within 30 days after the date of termination copies of all preventive maintenance check lists and inspections for the Property through the date of termination. c) Prior to the termination date, CRC shall make payment to Manager of any and all amounts due Manager pursuant to this Agreement. 9. BUDGETS On or before October I of each year during the Term, Manager shall submit to CRC for its review and approval, which approval shall not be withheld unreasonably, the annual operating budget (the "Annual Budget") of: (a) the amounts described in Subsection 3(a)(9) to be received by CRC; (b) the Services; (c) all amounts to be paid by CRC to Manager hereunder; and (d) any other items reasonably requested by CRC; provided that CRC and Manager acknowledge that the Annual Budget for the year that begins on the Effective Date and ends on the following December 31 (the "Fiscal Year") has been submitted and approved. Within 30 days after CRC receives an Annual Budget, CRC shall deliver to Manager written notice that it approves or rejects such Annual Budget; provided that, if CRC rejects all or any part of such Annual Budget, then such notice shall: (a) specify the line items that CRC is rejecting; and (b) include the specific basis for such rejection. If CRC has notified Manager that it rejects such Annual Budget, then, during the 60 days following CRC's rejection, CRC and Manager shall work diligently to reach an agreement on such Annual Budget; provided that, if CRC and Manager remain in disagreement as of the 30th day of such 60-day period, then CRC shall determine the amounts for the line items with respect to which there is disagreement. 10. RECORDS Within 90 days after the end of each Fiscal Year during the Term, Manager shall submit to CRC a variance report of actual revenues and expenses for such Fiscal Year against the approved Annual Budget for such Fiscal Year (the "Reconciliation"). Throughout the Tenn, and for three years thereafter, Manager shall keep complete and accurate Reconciliations and records of all transactions related to this Agreement (the "Records"). -7- CRC or its agents may, at any time during normal business hours upon giving reasonable notice to Manager, inspect and copy the Records. CRC's rights under this Section shall be subject to reasonable disclosure limitations to protect the confidentiality of Manager's methodologies, processes, and/or proprietary information; provided that Manager hereby acknowledges CRC's obligations under Indiana's Access to Public Records Act, as the same may be amended, modified, or renamed from time-to-time. 11. NOTICES Any notice required or permitted hereunder shall be in writing and shall be deemed to be delivered when deposited with the United States Mail, postage prepaid, certified mail, return receipt requested addressed to the parties as follows: IF TO CRC: IF TO MANAGER: The City of Cannel REl Real Estate Services, LLC Redevelopment Commission 11711 N. Pennsylvania, Suite 200 30 W. Main Street, Suite 220 Cannel, Indiana 46032 Cannel, Indiana 46032 Attn: Tina M. Shute Attn: Les Olds (317) 573-6050 12. MISCELLANEOUS a) APPLICABLE LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Indiana. b) RELATIONSHIP. Nothing contained in this Agreement shall be construed to create a relationship of employer and employee between Manager and CRC, it being the intent of the parties hereto that the relationship created hereby is, in fact and intent, that of an attorney-if-fact and independent contractor. The parties agree that Manager is an independent contractor of CRC. Nothing contained herein shall be deemed to constitute CRC and Manager as partners or joint venturers. c) ATTORNEYS' FEES. hi the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees. d) ASSIGNMENT. Manager shall not assign or transfer, in whole or in part, this Agreement or Manager's obligations hereunder, without the prior written consent of CRC. e) NONDISCRIMINATION. In connection with the performance of this Agreement, Manager shall not discriminate against any employee, applicant for employment, and/or other person in the subcontracting and/or performance of this Agreement with respect to hire, tenure, terms, conditions, or privileges of -8- employment or any matter directly or indirectly related to employment, because of race, age, color, religion, sex, disability, national origin, or ancestry. No notice or cure period shall apply with respect to the obligation of Manager under this Subsection, and a default under this Subsection shall be an immediate event of default. f) AUTHORITY. The undersigned persons executing this Agreement on behalf of CRC and Manager represent and certify that: (i) they fully are empowered and duly are authorized by all necessary action of CRC and Manager, respectively, to execute and deliver this Agreement; (ii) they have full capacity, power, and authority to enter into and carry out this Agreement; and (iii) the execution, delivery, and performance of this Agreement duly have been authorized by CRC and Manager, respectively. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this 1st day of January, 2013. THE CITY OF CARMEL REI REAL ESTATE SERVICES, LLC REDEVELOPMENT COMMISSION an Indiana limited liability company By: ,. By: 4_44 wer Les Olis, Executive Director Michael W. Wells, President -9- EXHIBIT A Depiction and/or Description of the Property -10- i61 I r lil1 h x y� -sky ._ ® ® £ �] F, ti w �I —�Ar,mp r: kgn+, a r:fi ' I ll M , K FI .11 y. 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SCHEDULE Schedule of Fees CRC agrees to pay the following fees to Manager: A monthly Property Management Fee for supervising and directing the operation of the Property (SCHEDULES 2 and 4) as follows: January 2013 - December 2013 $_5,000_/month Cost of salary and benefits of those REI employees associated with the building will be paid for in accordance with the Approved Operating Budget. Such fees will cover maintenance services performed in conjunction with Schedules 2, 3, and 5 for services provided between the hours of 7:00 AM and 5:00 PM Monday through Friday, except holidays. Overtime will be billed at $65 per hour. All service calls will have a 1 hour minimum. -11- SCHEDULE 2 Property Management Alarm Monitoring Elevator Maintenance Fire/Life Safety Inspections — Maintenance HVAC Maintenance Janitorial Service Mat Service Landscape Maintenance Pest Control Security Snow Removal Trash Removal and Recycling Window Washing -12- SCHEDULE 3 Preventative Maintenance Prouram Hours: Monday through Friday, 8 a.ni. to 5 pan., except Holidays. 1. Frequency: Once per Week Provide documented log of HVAC equipment and verify proper operation, inspection, and general maintenance to the property. Services to include minor plumbing and electrical repairs, lamping and ballast replacement, minor wall repairs, replacing ceiling tile, etc. 2. Frequency: Once per Month a. Fire extinguishers - inspect pressure gauge for normal charge, verify seal, tag and nozzle intact, date and initial tag. b. Inspect and clean all mechanical and electrical rooms. c. Perform visual roof inspection (services to include minor roof patching and caulking of parapet caps). d. Verify proper operation of emergency and exit lights (service to include lamp, ballast, and battery replacement). e. Verify proper operation of all time clocks and outside lighting (service to include clock adjustment and relamping ground lights only). f. Perform elevator SES test. 3. Frequency: Four Times per Year a. Domestic Hot Water Heaters — set to maintain 120 degree water at furthest sink; document volt and ampere readings; flush heater; inspect for leaks; inspect wiring; verify operation of relief valve. b. Air Handling Units: 1) Fans - inspect temperature control cabinets and external controls; verify integrity and proper operation of all electrical controls and circuitry; 2) Motors - inspect electrical wiring and connection at motor and starter; tighten as required; document ampere readings. c. Perform inspection and general maintenance to all occupied areas (services to include minor electrical repairs, lamping and ballast replacement, minor wall repairs, replace ceiling tiles, etc.). d. Test and inspection of 25% of fire/life safety system. -13- 4. Frequency: Two Times Per Year a. Rest Room Exhaust Fan: I) Fan - lube fan bearings, inspect v-belt and sheaves for wear, alignment and verify all hardware taut; 2) Motor - inspect electrical connections; clean motor of foreign matter, clean air vents; record amperes. b. Air Handling Units: I) Change all filters; inspect cooling coils for cleanliness and leaks; 2) Lubricate fan bearings; verify proper alignment; note sheave condition; adjust v-belt for proper tension; clean condensate pan as required; install anti-clog tablets in pan; verify proper operation of condensate drain; verify all hardware taut on inlet guide valves; record Delta T. c. Accommodate State of Indiana elevator inspector. d. Perform test of all audible fire/life safety system horns; oversee/coordinate with contractor (after hours). 5. Frequency: Once per Year Lubricate all motor bearings on equipment specified in contract. a. Coordinate annual fire extinguisher test/inspections with outside contractor. b. Oversee/coordinate outside contractor with annual sprinkler system test and inspections. NOTE: Manager will provide all lubricants required for the normal maintenance functions and frequencies specified. The contract price does not include any other materials or special calls. All additional .service calls, parts and materials will be charged for at the current billing rate. Manager shall not be responsible for damages resulting from any failures which may occur in the electrical service in the building or in either water supply or drain systems, or damages resulting from acts of God or any other cause beyond Manager's control. -14- SCHEDULE 4 • Reports to be Provided to CRC Preventative Maintenance Inspection Logs As Requested Tenant Service Call Reports As Requested Annual Operating Expense Budget (Fiscal Year) Annually Capital Budget Annually Annual Operating Expense Reconciliation (Fiscal Year) Annually Balance Sheet As Requested Summary Income Statement Monthly Income Statement Monthly Operating Expense Variance Report Monthly Explanation of Variance Monthly Purchase Journal and Cash Disbursement Report As Requested Cash Flow Report As Requested Bank Reconciliation Monthly -15- • SCHEDULE 5 CRC Service Calls Manager shall respond to maintenance service requests from CRC, to include: a) service calls for major structural and foundation issues; b) HVAC service calls; c) change light bulbs, ceiling tiles, etc., and d) miscellaneous service requests such as plumbing issues, electrical issues, etc. performed by maintenance technician or contractor. -16-