Manager’s Services. During the Term, Manager shall provide the following Services: (a) Manager shall (subject to availability of funds from Property Owners sufficient to do so) coordinate, over-see and manage all aspects of the management and day-to-day operations of the Properties, in compliance with the Budget and Operating Plan, including, without limitation, the following: (i) Preparing, reviewing and commenting upon the Budget and Operating Plan, setting forth (A) the goals and objectives for the administration of each Property, (B) the strategies and tactics for achieving those goals and objectives and for maximizing the revenues, profits and cash flow from the Properties, and (C) the budget for each Property. (ii) If a Property Owner is obligated to or otherwise undertakes any alterations or improvements to a leased premises (including tenant improvements) or makes other capital improvements to any Property, then Manager shall monitor and manage such construction activities. Manager shall review and forward to the applicable Property Owner all space planning layouts, drawings, plans and specifications pertaining to such construction, together with a recommendation as to approval thereof by the applicable Property Owner. In connection with the foregoing, Manager shall be responsible for, in accordance with the Budget and Operating Plan (including any permitted variance hereunder) or as otherwise approved by the applicable Property Owner: (A) hiring and monitoring one or more duly licensed and/or qualified professionals, who shall be approved by the applicable Property Owner in its reasonable discretion; (B) procuring and negotiating any contracts or other agreements, including amendments thereto, for the construction at a Property or the installation of or the furnishing of any supplies, materials, utilities, machinery, or equipment required for the applicable Property; (C) refining cost projections set forth in the Budget and Operating Plan, and proposing any appropriate amendments thereto for Property Owners' consideration; (D) monitoring and supervising all independent contractors, suppliers, consultants and entities (collectively, the "Contractors") engaged with the approval of the Property Owners for any construction at a Property or any other activity within the scope of this Agreement; (E) confirming each Contractor (including subcontractors) is maintaining adequate insurance as otherwise required by the Operating Plan or by Property Owners from time to time; (F) obtaining all necessary receipts, releases, waivers discharges and assurances necessary to keep each Property free from mechanics' and materialmen's or similar liens and claims affecting such Property, all of which documentation shall be in such form as required by the Property Owners and shall be obtained at the applicable Property Owner's expense; and (G) preparing and submitting to the applicable Property Owner, for such Property Owner's approval, all proposed master covenants, conditions and restrictions and other related documents affecting its Property or any portion thereof which are to be recorded against such Property or any portion thereof, if any. Notwithstanding anything to the contrary, Manager shall not have any liability for the design or construction means, methods, techniques, sequences and procedures employed by any architect, design professional or general contractor or subcontractor in the performance of its contract, and shall not be responsible for, or have any liability for, the failure of any such architect, design professional, general contractor or subcontractor to carry out its work. Furthermore, Manager shall not have control over or charge of acts or omissions of any Property Owner, any architect, design professional or any contractor or subcontractor, or their agents or employees, or any other Persons performing portions of the design work or construction not directly overseen by Manager. However, the foregoing does not relieve Manager of its obligations to provide construction monitoring and supervisory services as set forth in this Agreement in a good and professional manner in accordance with industry standards for property managers monitoring and supervising construction projects of similar size, scope and quality. (b) Subject to the availability of funds therefor and to the extent within the control of Manager, take all proper and necessary actions reasonably required to cause Property Owners at all times to perform and comply with the provisions (including, without limitation, any provisions requiring the expenditure of funds by Property Owners) of any loan commitment, agreement, mortgage, lease, or other contract, instrument or agreement to which any Property Owner is a party or which affects any Property or the operation thereof of which Manager has knowledge; (c) Without limiting the obligations of Manager under other provisions of this Agreement, Manager will have the following additional specific duties with respect to the Properties, subject to availability of funds therefor: (i) Manager shall promptly notify Property Owners of any of the following in any way relating to any Property promptly following Manager's receipt thereof: (A) written notice of any claim of liability; (B) material written complaints from any Contractor, sub-contractor, or other party involved in providing or assisting with any construction at a Property; written notice of any default under any Loan Document secured by a Property or any other material contract; any summons or other legal process; (C) any material damage to, or threatened condemnation, or acquisition in lieu of condemnation, of, a Property or any portion thereof; and (D) any actual or alleged personal injury or material property damage. Manager shall promptly notify the appropriate Property Owner of any material default or alleged material default by any party under any leases for space at a Property of which Manager is aware, as well as any other material information particular to a Property including, without limitation, from any city where a Property is located. (ii) Manager shall take all diligent actions to enforce in all material respects the terms of any and all contracts and to request, demand, collect and receive all rent and other payments (including, without limitation taxes, expense reimbursements and miscellaneous sources of income) due from tenants and any other amounts due regarding any Property, and promptly deposit such amounts into the applicable Operating Account. To the extent tenant leases affecting any Property so require, Manager shall timely make or verify any calculations that are required to determine the amount of rent and other payments (including without limitation taxes, expense reimbursements, common area expense charges and miscellaneous services of income) due from tenants and, where required, shall give timely notice thereof to tenants. Subject to the terms and provisions of this Agreement, Manager shall perform all obligations of the landlord under the tenant leases affecting the Properties within its control, and coordinate all relations and communications with the tenants, including, without limitation, annual or more frequent (as applicable) reconciliations of expenses. Manager will promptly and diligently enforce Property Owners' rights under tenant leases, including taking the following actions where appropriate and when authorized by Property Owners: (A) terminating tenancies; (B) signing and serving notices; (C) instituting and prosecuting actions, and evicting tenants; (D) recovering rents and other sums due by legal proceedings; and (E) settling, compromising and releasing such actions or suits or reinstituting such tenancies. Property Owners shall designate counsel for and control of all legal action affecting the Properties, which counsel shall be retained by Manager on behalf of Owner for such purpose. The cost of such counsel shall be advanced by the applicable Property Owner; (iii) Manager shall exercise diligent efforts to cause the Properties and all operations of Property Owners to comply at all times in all material respects with (A) all applicable governmental statutes, laws, rules, regulations, ordinances, codes and orders (collectively, "Laws"), including without limitation, all land use, zoning, subdivision, marketing, offering, environmental and worker safety laws relating thereto and (B) all covenants, conditions, restrictions, limitations and requirements, and all related development and entitlement agreements, which relate to any Property or any Property Owner or which are imposed by or in connection with any law, insurance policy or contract, lease, mortgage or other Loan Document, contract, restriction or covenant, or the entitlement documents of which Manager has knowledge (collectively, the "Requirements"). Manager shall promptly notify Property Owners if it becomes aware of any material failure or reasonable suspicion of material failure to comply with the Laws or the Requirements; (iv) Manager shall make periodic inspections of the Properties including without limitation the tenant spaces and common areas, to determine necessary and appropriate repairs, maintenance and replacement, and shall supervise and perform all such maintenance, repairs and replacements, except to the extent any such repair, maintenance or replacement is the responsibility of any tenant under its lease of any portion of a Property (in which case Manager shall use diligent efforts to cause the applicable tenant to perform such repairs, maintenance and replacement) so that such Property's condition is at all times at least as good as that of similar quality retail shopping centers or mixed use center (as applicable) located in the regions where the Properties are located, taking into account age and condition of the applicable Properties as of the date hereof. Manager shall maintain businesslike relationships with tenants and shall receive, catalog and use reasonable efforts to respond timely to all tenant complaints, accidents and requests for services. Manager shall keep systematic up to date records showing the action(s) taken with respect to each complaint or request. Manager may adopt and from time to time modify the rules and regulations of the Properties intended to govern the day-to-day activities of the tenants, but only to the extent that such rules and regulations do not conflict with the provisions of this Agreement, or the terms of the leases at the particular Property. Manager shall ensure that all tenants are informed with respect to such rules, regulations and notices as may be promulgated by Property Owners or Manager. (v) Manager shall obtain prior written approval from Property Owners for any expenditure for repairs, improvements or work in excess of the limitation contained in the Approval Guidelines, unless the item is an item specifically called for by the Budget, or is emergency repairs and such repairs are necessary to: (A) prevent additional damage or a materially greater total expenditure; (B) protect the applicable Property from damage or to maintain necessary services or conditions; and (C) protect the safety of occupants of applicable Property or their belongings, in which case prompt verbal notice shall suffice. Manager shall notify Property Owners in writing, in detail, of all such emergency repairs as soon as reasonably practicable following the making of the repairs and shall provide to Property Owners invoices reflecting the cost of such repairs. Manager shall endeavor to use Contractors pre-approved by Property Owners for all such emergency repairs; (vi) Except to the extent such matters are the responsibility of the applicable tenants under space leases of portions of a Property (in which case Manager shall oversee and use diligent efforts to cause the implementation of such responsibilities by the applicable tenant), and subject to the availability of funds therefor in accordance with the terms hereof, Manager will arrange for all utilities, services, equipment and supplies necessary for the management, operation, maintenance and servicing of the Properties. Except to the extent maintained in the names of such tenants, all utilities contracts shall be in the name of the applicable Property Owner, with all notices to be addressed to such Property Owner, in care of Manager, at Manager's address. Except to the extent maintained in the names of such tenants, all utility deposits shall be in the applicable Property Owner's name, and Manager will use diligent efforts to obtain deposit reductions and refunds. All utility deposit refunds shall be remitted directly to the applicable Property Owner; (vii) Manager will promptly recommend from time to time the advisability of contesting either the validity or the amount of personal and real property taxes, if Manager deems such a contest appropriate. Manager shall pay all such taxes unless Property Owners direct Manager otherwise or Property Owners fail to provide sufficient funds to do so; (viii) Manager will fully cooperate with Property Owners and Property Owners' representatives, including leasing agents, tax consultants, brokers involved in the sale of the Properties, any potential purchaser of one or more of the Properties, appraisers, and counsel with the view that such representatives shall be able to perform their duties efficiently and without interference. Such parties shall be allowed to visit any Property and inspect the same at such times as Property Owners may request. If requested by Property Owners, Manager shall also use diligent efforts to procure estoppel certificates from tenants of the Properties on forms approved by Property Owners. In the event Property Owners elect to sell the one or more of the Properties, Manager shall coordinate the marketing and sale of such Property or Properties, providing advice to Property Owners with respect to disposition valuation and strategy, and subject to Property Owners' approval, retaining an agent to represent Property Owners in such sale; (ix) Manager shall employ, at all times, a sufficient number of capable employees as Manager reasonably determines is appropriate for Manager to perform its obligations hereunder. All employees of Manager will be employed at the sole cost of Manager, without reimbursement, except as otherwise specifically provided in Section 4 and Section 6(a) hereof. Employees who handle or who are responsible for funds belonging to Property Owners shall be bonded by a fidelity bond or covered by crime/fidelity insurance in an amount equal to that provided in Section 12(b) of this Agreement issued by a company reasonably approved by Property Owners. All matters pertaining to the employment, supervision, compensation, promotion, and discharge of such employees are the responsibility of Manager, who is, in all respects, the employer of such employees. To the extent Manager, its designee, or any subcontractor negotiates with any union lawfully entitled to represent any such employees, it shall do so in its own name, and shall execute any collective bargaining agreements or labor contracts resulting therefrom in its own name, and not as an agent for Property Owners. Manager shall fully comply with all applicable laws and regulations related to workers' compensation, social security, ERISA, and other applicable pension matters, unemployment insurance, hours of labor, wages, working conditions, and other employer-employee related subjects. Manager represents that it is and will continue to be an equal opportunity employer. This Agreement is not one of agency, but one with Manager independently engaged in the business of performing management and operation of properties on its own behalf as an independent contractor. All employment arrangements are therefore solely its concern, and Property Owners shall have no liability with respect thereto. Property Owners' responsibility for reimbursement shall be limited to certain out of pocket costs and expenses incurred or accrued during the Term in accordance with Section 6 hereof, and Property Owners shall not have any liability to any party for any unpaid, unfunded, or accrued liabilities under any pension, profit sharing or other plan covering the employees of Manager. Manager does hereby indemnify and hold Pro
Appears in 1 contract
Sources: Property Management Agreement (Strategic Realty Trust, Inc.)
Manager’s Services. During the Term, Manager shall provide the following Services:
(a) Manager shall (subject to availability of funds from Property Owners sufficient to do so) coordinate, over-see and manage all aspects of the management and day-to-day operations of the Properties, in compliance with the Budget and Operating Plan, including, without limitation, the following:
(i) Preparing, reviewing and commenting upon the Budget and Operating Plan, setting forth (A) the goals and objectives for the administration of each Property, (B) the strategies and tactics for achieving those goals and objectives and for maximizing the revenues, profits and cash flow from the Properties, and (C) the budget for each Property.
(ii) If a Property Owner is obligated to or otherwise undertakes any alterations or improvements to a leased premises (including tenant improvements) or makes other capital improvements to any Property, then Manager shall monitor and manage such construction activities. Manager shall review and forward to the applicable Property Owner all space planning layouts, drawings, plans and specifications pertaining to such construction, together with a recommendation as to approval thereof by the applicable Property Owner. In connection with the foregoing, Manager shall be responsible for, in accordance with the Budget and Operating Plan (including any permitted variance hereunder) or as otherwise approved by the applicable Property Owner: (A) hiring and monitoring one or more duly licensed and/or qualified professionals, who shall be approved by the applicable Property Owner in its reasonable discretion; (B) procuring and negotiating any contracts or other agreements, including amendments thereto, for the construction at a Property or the installation of or the furnishing of any supplies, materials, utilities, machinery, or equipment required for the applicable Property; (C) refining cost projections set forth in the Budget and Operating Plan, and proposing any appropriate amendments thereto for Property Owners' ’ consideration; (D) monitoring and supervising all independent contractors, suppliers, consultants and entities (collectively, the "“Contractors"”) engaged with the approval of the Property Owners for any construction at a Property or any other activity within the scope of this Agreement; (E) confirming each Contractor (including subcontractors) is maintaining adequate insurance as otherwise required by the Operating Plan or by Property Owners from time to time; (F) obtaining all necessary receipts, releases, waivers discharges and assurances necessary to keep each Property free from mechanics' ’ and materialmen's ’s or similar liens and claims affecting such Property, all of which documentation shall be in such form as required by the Property Owners and shall be obtained at the applicable Property Owner's ’s expense; and (G) preparing and submitting to the applicable Property Owner, for such Property Owner's ’s approval, all proposed master covenants, conditions and restrictions and other related documents affecting its Property or any portion thereof which are to be recorded against such Property or any portion thereof, if any. Notwithstanding anything to the contrary, Manager shall not have any liability for the design or construction means, methods, techniques, sequences and procedures employed by any architect, design professional or general contractor or subcontractor in the performance of its contract, and shall not be responsible for, or have any liability for, the failure of any such architect, design professional, general contractor or subcontractor to carry out its work. Furthermore, Manager shall not have control over or charge of acts or omissions of any Property Owner, any architect, design professional or any contractor or subcontractor, or their agents or employees, or any other Persons performing portions of the design work or construction not directly overseen by Manager. However, the foregoing does not relieve Manager of its obligations to provide construction monitoring and supervisory services as set forth in this Agreement in a good and professional manner in accordance with industry standards for property managers monitoring and supervising construction projects of similar size, scope and quality.
(b) Subject to the availability of funds therefor and to the extent within the control of Manager, take all proper and necessary actions reasonably required to cause Property Owners at all times to perform and comply with the provisions (including, without limitation, any provisions requiring the expenditure of funds by Property Owners) of any loan commitment, agreement, mortgage, lease, or other contract, instrument or agreement to which any Property Owner is a party or which affects any Property or the operation thereof of which Manager has knowledge;
(c) Without limiting the obligations of Manager under other provisions of this Agreement, Manager will have the following additional specific duties with respect to the Properties, subject to availability of funds therefor:
(i) Manager shall promptly notify Property Owners of any of the following in any way relating to any Property promptly following Manager's ’s receipt thereof: (A) written notice of any claim of liability; (B) material written complaints from any Contractor, sub-contractor, or other party involved in providing or assisting with any construction at a Property; written notice of any default under any Loan Document secured by a Property or any other material contract; any summons or other legal process; (C) any material damage to, or threatened condemnation, or acquisition in lieu of condemnation, of, a Property or any portion thereof; and (D) any actual or alleged personal injury or material property damage. Manager shall promptly notify the appropriate Property Owner of any material default or alleged material default by any party under any leases for space at a Property of which Manager is aware, as well as any other material information particular to a Property including, without limitation, from any city where a Property is located.
(ii) Manager shall take all diligent actions to enforce in all material respects the terms of any and all contracts and to request, demand, collect and receive all rent and other payments (including, without limitation taxes, expense reimbursements and miscellaneous sources of income) due from tenants and any other amounts due regarding any Property, and promptly deposit such amounts into the applicable Operating Account. To the extent tenant leases affecting any Property so require, Manager shall timely make or verify any calculations that are required to determine the amount of rent and other payments (including without limitation taxes, expense reimbursements, common area expense charges and miscellaneous services of income) due from tenants and, where required, shall give timely notice thereof to tenants. Subject to the terms and provisions of this Agreement, Manager shall perform all obligations of the landlord under the tenant leases affecting the Properties within its control, and coordinate all relations and communications with the tenants, including, without limitation, annual or more frequent (as applicable) reconciliations of expenses. Manager will promptly and diligently enforce Property Owners' ’ rights under tenant leases, including taking the following actions where appropriate and when authorized by Property Owners: (A) terminating tenancies; (B) signing and serving notices; (C) instituting and prosecuting actions, and evicting tenants; (D) recovering rents and other sums due by legal proceedings; and (E) settling, compromising and releasing such actions or suits or reinstituting such tenancies. Property Owners shall designate counsel for and control of all legal action affecting the Properties, which counsel shall be retained by Manager on behalf of Owner for such purpose. The cost of such counsel shall be advanced by the applicable Property Owner;
(iii) Manager shall exercise diligent efforts to cause the Properties and all operations of Property Owners to comply at all times in all material respects with (A) all applicable governmental statutes, laws, rules, regulations, ordinances, codes and orders (collectively, "“Laws"”), including without limitation, all land use, zoning, subdivision, marketing, offering, environmental and worker safety laws relating thereto and (B) all covenants, conditions, restrictions, limitations and requirements, and all related development and entitlement agreements, which relate to any Property or any Property Owner or which are imposed by or in connection with any law, insurance policy or contract, lease, mortgage or other Loan Document, contract, restriction or covenant, or the entitlement documents of which Manager has knowledge (collectively, the "“Requirements"”). Manager shall promptly notify Property Owners if it becomes aware of any material failure or reasonable suspicion of material failure to comply with the Laws or the Requirements;
(iv) Manager shall make periodic inspections of the Properties including without limitation the tenant spaces and common areas, to determine necessary and appropriate repairs, maintenance and replacement, and shall supervise and perform all such maintenance, repairs and replacements, except to the extent any such repair, maintenance or replacement is the responsibility of any tenant under its lease of any portion of a Property (in which case Manager shall use diligent efforts to cause the applicable tenant to perform such repairs, maintenance and replacement) so that such Property's ’s condition is at all times at least as good as that of similar quality retail shopping centers or mixed use center (as applicable) located in the regions where the Properties are located, taking into account age and condition of the applicable Properties as of the date hereof. Manager shall maintain businesslike relationships with tenants and shall receive, catalog and use reasonable efforts to respond timely to all tenant complaints, accidents and requests for services. Manager shall keep systematic up to date records showing the action(s) taken with respect to each complaint or request. Manager may adopt and from time to time modify the rules and regulations of the Properties intended to govern the day-to-day activities of the tenants, but only to the extent that such rules and regulations do not conflict with the provisions of this Agreement, or the terms of the leases at the particular Property. Manager shall ensure that all tenants are informed with respect to such rules, regulations and notices as may be promulgated by Property Owners or Manager.
(v) Manager shall obtain prior written approval from Property Owners for any expenditure for repairs, improvements or work in excess of the limitation contained in the Approval Guidelines, unless the item is an item specifically called for by the Budget, or is emergency repairs and such repairs are necessary to: (A) prevent additional damage or a materially greater total expenditure; (B) protect the applicable Property from damage or to maintain necessary services or conditions; and (C) protect the safety of occupants of applicable Property or their belongings, in which case prompt verbal notice shall suffice. Manager shall notify Property Owners in writing, in detail, of all such emergency repairs as soon as reasonably practicable following the making of the repairs and shall provide to Property Owners invoices reflecting the cost of such repairs. Manager shall endeavor to use Contractors pre-approved by Property Owners for all such emergency repairs;
(vi) Except to the extent such matters are the responsibility of the applicable tenants under space leases of portions of a Property (in which case Manager shall oversee and use diligent efforts to cause the implementation of such responsibilities by the applicable tenant), and subject to the availability of funds therefor in accordance with the terms hereof, Manager will arrange for all utilities, services, equipment and supplies necessary for the management, operation, maintenance and servicing of the Properties. Except to the extent maintained in the names of such tenants, all utilities contracts shall be in the name of the applicable Property Owner, with all notices to be addressed to such Property Owner, in care of Manager, at Manager's ’s address. Except to the extent maintained in the names of such tenants, all utility deposits shall be in the applicable Property Owner's ’s name, and Manager will use diligent efforts to obtain deposit reductions and refunds. All utility deposit refunds shall be remitted directly to the applicable Property Owner;
(vii) Manager will promptly recommend from time to time the advisability of contesting either the validity or the amount of personal and real property taxes, if Manager deems such a contest appropriate. Manager shall pay all such taxes unless Property Owners direct Manager otherwise or Property Owners fail to provide sufficient funds to do so;
(viii) Manager will fully cooperate with Property Owners and Property Owners' ’ representatives, including leasing agents, tax consultants, brokers involved in the sale of the Properties, any potential purchaser of one or more of the Properties, appraisers, and counsel with the view that such representatives shall be able to perform their duties efficiently and without interference. Such parties shall be allowed to visit any Property and inspect the same at such times as Property Owners may request. If requested by Property Owners, Manager shall also use diligent efforts to procure estoppel certificates from tenants of the Properties on forms approved by Property Owners. In the event Property Owners elect to sell the one or more of the Properties, Manager shall coordinate the marketing and sale of such Property or Properties, providing advice to Property Owners with respect to disposition valuation and strategy, and subject to Property Owners' ’ approval, retaining an agent to represent Property Owners in such sale;
(ix) Manager shall employ, at all times, a sufficient number of capable employees as Manager reasonably determines is appropriate for Manager to perform its obligations hereunder. All employees of Manager will be employed at the sole cost of Manager, without reimbursement, except as otherwise specifically provided in Section 4 and Section 6(a) hereof. Employees who handle or who are responsible for funds belonging to Property Owners shall be bonded by a fidelity bond or covered by crime/fidelity insurance in an amount equal to that provided in Section 12(b) of this Agreement issued by a company reasonably approved by Property Owners. All matters pertaining to the employment, supervision, compensation, promotion, and discharge of such employees are the responsibility of Manager, who is, in all respects, the employer of such employees. To the extent Manager, its designee, or any subcontractor negotiates with any union lawfully entitled to represent any such employees, it shall do so in its own name, and shall execute any collective bargaining agreements or labor contracts resulting therefrom in its own name, and not as an agent for Property Owners. Manager shall fully comply with all applicable laws and regulations related to workers' ’ compensation, social security, ERISA, and other applicable pension matters, unemployment insurance, hours of labor, wages, working conditions, and other employer-employee related subjects. Manager represents that it is and will continue to be an equal opportunity employer. This Agreement is not one of agency, but one with Manager independently engaged in the business of performing management and operation of properties on its own behalf as an independent contractor. All employment arrangements are therefore solely its concern, and Property Owners shall have no liability with respect thereto. Property Owners' ’ responsibility for reimbursement shall be limited to certain out of pocket costs and expenses incurred or accrued during the Term in accordance with Section 6 hereof, and Property Owners shall not have any liability to any party for any unpaid, unfunded, or accrued liabilities under any pension, profit sharing or other plan covering the employees of Manager. Manager does hereby indemnify and hold Pro
Appears in 1 contract
Sources: Property Management Agreement (Strategic Realty Trust, Inc.)
Manager’s Services. During the Term, Manager shall provide the following Services:
(a) Manager shall (subject to availability of funds from Property Owners sufficient to do so) coordinate, over-see and manage all aspects of the management and day-to-day operations of the Properties, in compliance with the Budget and Operating Plan, including, without limitation, the following:
(i) Preparing, reviewing and commenting upon the Budget and Operating Plan, setting forth (A) the goals and objectives for the administration of each Property, (B) the strategies and tactics for achieving those goals and objectives and for maximizing the revenues, profits and cash flow from the Properties, and (C) the budget for each Property.
(ii) If a Property Owner is obligated to or otherwise undertakes any alterations or improvements to a leased premises (including tenant improvements) or makes other capital improvements to any Property, then Manager shall monitor and manage such construction activities. Manager shall review and forward to the applicable Property Owner all space planning layouts, drawings, plans and specifications pertaining to such construction, together with a recommendation as to approval thereof by the applicable Property Owner. In connection with the foregoing, Manager shall be responsible for, in accordance with the Budget and Operating Plan (including any permitted variance hereunder) or as otherwise approved by the applicable Property Owner: (A) hiring and monitoring one or more duly licensed and/or qualified professionals, who shall be approved by the applicable Property Owner in its reasonable discretion; (B) procuring and negotiating any contracts or other agreements, including amendments thereto, for the construction at a Property or the installation of or the furnishing of any supplies, materials, utilities, machinery, or equipment required for the applicable Property; (C) refining cost projections set forth in the Budget and Operating Plan, and proposing any appropriate amendments thereto for Property Owners' consideration; (D) monitoring and supervising all independent contractors, suppliers, consultants and entities (collectively, the "Contractors") engaged with the approval of the Property Owners for any construction at a Property or any other activity within the scope of this Agreement; (E) confirming each Contractor (including subcontractors) is maintaining adequate insurance as otherwise required by the Operating Plan or by Property Owners from time to time; (F) obtaining all necessary receipts, releases, waivers discharges and assurances necessary to keep each Property free from mechanics' and materialmen's or similar liens and claims affecting such Property, all of which documentation shall be in such form as required by the Property Owners and shall be obtained at the applicable Property Owner's expense; and (G) preparing and submitting to the applicable Property Owner, for such Property Owner's approval, all proposed master covenants, conditions and restrictions and other related documents affecting its Property or any portion thereof which are to be recorded against such Property or any portion thereof, if any. Notwithstanding anything to the contrary, Manager shall not have any liability for the design or construction means, methods, techniques, sequences and procedures employed by any architect, design professional or general contractor or subcontractor in the performance of its contract, and shall not be responsible for, or have any liability for, the failure of any such architect, design professional, general contractor or subcontractor to carry out its work. Furthermore, Manager shall not have control over or charge of acts or omissions of any Property Owner, any architect, design professional or any contractor or subcontractor, or their agents or employees, or any other Persons performing portions of the design work or construction not directly overseen by Manager. However, the foregoing does not relieve Manager of its obligations to provide construction monitoring and supervisory services as set forth in this Agreement in a good and professional manner in accordance with industry standards for property managers monitoring and supervising construction projects of similar size, scope and quality.
(b) Subject to the availability of funds therefor and to the extent within the control of Manager, take all proper and necessary actions reasonably required to cause Property Owners at all times to perform and comply with the provisions (including, without limitation, any provisions requiring the expenditure of funds by Property Owners) of any loan commitment, agreement, mortgage, lease, or other contract, instrument or agreement to which any Property Owner is a party or which affects any Property or the operation thereof of which Manager has knowledge;
(c) Without limiting the obligations of Manager under other provisions of this Agreement, Manager will have the following additional specific duties with respect to the Properties, subject to availability of funds therefor:
(i) Manager shall promptly notify Property Owners of any of the following in any way relating to any Property promptly following Manager's receipt thereof: (A) written notice of any claim of liability; (B) material written complaints from any Contractor, sub-contractor, or other party involved in providing or assisting with any construction at a Property; written notice of any default under any Loan Document secured by a Property or any other material contract; any summons or other legal process; (C) any material damage to, or threatened condemnation, or acquisition in lieu of condemnation, of, a Property or any portion thereof; and (D) any actual or alleged personal injury or material property damage. Manager shall promptly notify the appropriate Property Owner of any material default or alleged material default by any party under any leases for space at a Property of which Manager is aware, as well as any other material information particular to a Property including, without limitation, from any city where a Property is located.
(ii) Manager shall take all diligent actions to enforce in all material respects the terms of any and all contracts and to request, demand, collect and receive all rent and other payments (including, without limitation taxes, expense reimbursements and miscellaneous sources of income) due from tenants and any other amounts due regarding any Property, and promptly deposit such amounts into the applicable Operating Account. To the extent tenant leases affecting any Property so require, Manager shall timely make or verify any calculations that are required to determine the amount of rent and other payments (including without limitation taxes, expense reimbursements, common area expense charges and miscellaneous services of income) due from tenants and, where required, shall give timely notice thereof to tenants. Subject to the terms and provisions of this Agreement, Manager shall perform all obligations of the landlord under the tenant leases affecting the Properties within its control, and coordinate all relations and communications with the tenants, including, without limitation, annual or more frequent (as applicable) reconciliations of expenses. Manager will promptly and diligently enforce Property Owners' rights under tenant leases, including taking the following actions where appropriate and when authorized by Property Owners: (A) terminating tenancies; (B) signing and serving notices; (C) instituting and prosecuting actions, and evicting tenants; (D) recovering rents and other sums due by legal proceedings; and (E) settling, compromising and releasing such actions or suits or reinstituting such tenancies. Property Owners shall designate counsel for and control of all legal action affecting the Properties, which counsel shall be retained by Manager on behalf of Owner for such purpose. The cost of such counsel shall be advanced by the applicable Property Owner;
(iii) Manager shall exercise diligent efforts to cause the Properties and all operations of Property Owners to comply at all times in all material respects with (A) all applicable governmental statutes, laws, rules, regulations, ordinances, codes and orders (collectively, "Laws"), including without limitation, all land use, zoning, subdivision, marketing, offering, environmental and worker safety laws relating thereto and (B) all covenants, conditions, restrictions, limitations and requirements, and all related development and entitlement agreements, which relate to any Property or any Property Owner or which are imposed by or in connection with any law, insurance policy or contract, lease, mortgage or other Loan Document, contract, restriction or covenant, or the entitlement documents of which Manager has knowledge (collectively, the "Requirements"). Manager shall promptly notify Property Owners if it becomes aware of any material failure or reasonable suspicion of material failure to comply with the Laws or the Requirements;
(iv) Manager shall make periodic inspections of the Properties including without limitation the tenant spaces and common areas, to determine necessary and appropriate repairs, maintenance and replacement, and shall supervise and perform all such maintenance, repairs and replacements, except to the extent any such repair, maintenance or replacement is the responsibility of any tenant under its lease of any portion of a Property (in which case Manager shall use diligent efforts to cause the applicable tenant to perform such repairs, maintenance and replacement) so that such Property's condition is at all times at least as good as that of similar quality retail shopping centers or mixed use center (as applicable) located in the regions where the Properties are located, taking into account age and condition of the applicable Properties as of the date hereof. Manager shall maintain businesslike relationships with tenants and shall receive, catalog and use reasonable efforts to respond timely to all tenant complaints, accidents and requests for services. Manager shall keep systematic up to date records showing the action(s) taken with respect to each complaint or request. Manager may adopt and from time to time modify the rules and regulations of the Properties intended to govern the day-to-day activities of the tenants, but only to the extent that such rules and regulations do not conflict with the provisions of this Agreement, or the terms of the leases at the particular Property. Manager shall ensure that all tenants are informed with respect to such rules, regulations and notices as may be promulgated by Property Owners or Manager.
(v) Manager shall obtain prior written approval from Property Owners for any expenditure for repairs, improvements or work in excess of the limitation contained in the Approval Guidelines, unless the item is an item specifically called for by the Budget, or is emergency repairs and such repairs are necessary to: (A) prevent additional damage or a materially greater total expenditure; (B) protect the applicable Property from damage or to maintain necessary services or conditions; and (C) protect the safety of occupants of applicable Property or their belongings, in which case prompt verbal notice shall suffice. Manager shall notify Property Owners in writing, in detail, of all such emergency repairs as soon as reasonably practicable following the making of the repairs and shall provide to Property Owners invoices reflecting the cost of such repairs. Manager shall endeavor to use Contractors pre-approved by Property Owners for all such emergency repairs;
(vi) Except to the extent such matters are the responsibility of the applicable tenants under space leases of portions of a Property (in which case Manager shall oversee and use diligent efforts to cause the implementation of such responsibilities by the applicable tenant), and subject to the availability of funds therefor in accordance with the terms hereof, Manager will arrange for all utilities, services, equipment and supplies necessary for the management, operation, maintenance and servicing of the Properties. Except to the extent maintained in the names of such tenants, all utilities contracts shall be in the name of the applicable Property Owner, with all notices to be addressed to such Property Owner, in care of Manager, at Manager's address. Except to the extent maintained in the names of such tenants, all utility deposits shall be in the applicable Property Owner's name, and Manager will use diligent efforts to obtain deposit reductions and refunds. All utility deposit refunds shall be remitted directly to the applicable Property Owner;
(vii) Manager will promptly recommend from time to time the advisability of contesting either the validity or the amount of personal and real property taxes, if Manager deems such a contest appropriate. Manager shall pay all such taxes unless Property Owners direct Manager otherwise or Property Owners fail to provide sufficient funds to do so;
(viii) Manager will fully cooperate with Property Owners and Property Owners' representatives, including leasing agents, tax consultants, brokers involved in the sale of the Properties, any potential purchaser of one or more of the Properties, appraisers, and counsel with the view that such representatives shall be able to perform their duties efficiently and without interference. Such parties shall be allowed to visit any Property and inspect the same at such times as Property Owners may request. If requested by Property Owners, Manager shall also use diligent efforts to procure estoppel certificates from tenants of the Properties on forms approved by Property Owners. In the event Property Owners elect to sell the one or more of the Properties, Manager shall coordinate the marketing and sale of such Property or Properties, providing advice to Property Owners with respect to disposition valuation and strategy, and subject to Property Owners' approval, retaining an agent to represent Property Owners in such sale;
(ix) Manager shall employ, at all times, a sufficient number of capable employees as Manager reasonably determines is appropriate for Manager to perform its obligations hereunder. All employees of Manager will be employed at the sole cost of Manager, without reimbursement, except as otherwise specifically provided in Section 4 and Section 6(a) hereof. Employees who handle or who are responsible for funds belonging to Property Owners shall be bonded by a fidelity bond or covered by crime/fidelity insurance in an amount equal to that provided in Section 12(b) of this Agreement issued by a company reasonably approved by Property Owners. All matters pertaining to the employment, supervision, compensation, promotion, and discharge of such employees are the responsibility of Manager, who is, in all respects, the employer of such employees. To the extent Manager, its designee, or any subcontractor negotiates with any union lawfully entitled to represent any such employees, it shall do so in its own name, and shall execute any collective bargaining agreements or labor contracts resulting therefrom in its own name, and not as an agent for Property Owners. Manager shall fully comply with all applicable laws and regulations related to workers' compensation, social security, ERISA, and other applicable pension matters, unemployment insurance, hours of labor, wages, working conditions, and other employer-employee related subjects. Manager represents that it is and will continue to be an equal opportunity employer. This Agreement is not one of agency, but one with Manager independently engaged in the business of performing management and operation of properties on its own behalf as an independent contractor. All employment arrangements are therefore solely its concern, and Property Owners shall have no liability with respect thereto. Property Owners' responsibility for reimbursement shall be limited to certain out of pocket costs and expenses incurred or accrued during the Term in accordance with Section 6 hereof, and Property Owners shall not have any liability to any party for any unpaid, unfunded, or accrued liabilities under any pension, profit sharing or other plan covering the employees of Manager. Manager does hereby indemnify and hold Pro
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Sources: Property Management Agreement (Strategic Realty Trust, Inc.)