CAMELOT VILLAGE AT HUNTINGTON
AMENDED AND RESTATED MANAGEMENT AGREEMENT
AGREEMENT entered into as of the 30th day of September 1996, by and
between CAMELOT RETIREMENT HOMES, INC., a New York corporation ("Sponsor") with
offices at ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and UVH MANAGEMENT
CORP., a Florida corporation ("Manager"), with offices at ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Manager is a firm providing advisory and management services
to sponsors of senior retirement facilities; and
WHEREAS, Sponsor wishes to employ the management services of Manager in
connection with the operation of a proposed 122-unit assisted living facility to
be located in Huntington, New York on the land described on Schedule "A" of
First American Title Insurance Company Report No. 151-S-1217 ("Project"), and
Manager wishes to supply such services;
NOW, THEREFORE, the parties do hereby agree as follows:
I. RESPONSIBILITIES.
A. On behalf of Sponsor, Manager shall supervise the operation of the
Project.
1. As owner and operator, it is understood that Sponsor shall
establish policies and objectives for the Project.
2. Manager shall provide consultant and management services,
install operating procedures, and oversee the day-to-day
operations, all subject to and in accordance with the budgets,
policies, and guidelines established by Sponsor, from time to
time.
3. Manager shall recruit and train a Chief Administrative Officer
(who shall serve at the pleasure of Manager) and key department
heads for the Project, and, as needed, shall terminate them and
recruit and train their replacements, all of whom shall be
employees of Sponsor.
4. Manager shall supervise the occupancy development, licensing,
equipping, staffing, and start-up of the Project. Manager shall
develop, install, and maintain operating procedures, systems,
and controls in the Project for the purpose of providing an
efficient operation, on a fiscally sound basis, providing
quality services for the benefit of the residents of the
Project. Manager shall provide recommendations for the safety
and insurance programs for Sponsor.
5. Manager shall prepare annual budgets for revenue expense and
cash flow for the Project. The first such budget shall be
prepared prior to the commencement of operations of the Project.
A new budget shall be prepared at least one month prior to the
commencement of each new fiscal year for the Project.
B. FINANCIAL CONTROL. Manager shall establish and operate a system of
financial control for the Project as follows:
1. During the period immediately prior to commencement of operation
of the Project, Manager shall assist in setting up the
bookkeeping system in the administrative offices of the Project,
and in training the Project bookkeeper employed by Sponsor.
Subsequent to occupancy of the Project, the receipts and
disbursements for the Project shall be handled at the site of
the Project by the Project's bookkeeper. Manager shall arrange
for computational services to prepare statements for Sponsor of
revenues and expenses, assets and liabilities, and cash flow.
2. Each month Manager shall arrange for the preparation for Sponsor
of operating ratios and other analytical information for the
Project.
C. INDEMNITY. Manager shall indemnify and hold harmless Sponsor and its
officers, directors, agents and employees from and against all claims, damages,
losses, liabilities and expenses, including reasonable attorney's fees arising
out of or resulting from the performance by Manager of its undertakings under
this Agreement, provided that any such claim, damage, loss, liability or expense
is caused in whole or in part by any negligent act or omission of Manager or
anyone for whose acts or omissions Manager may be liable.
II. SPONSOR'S RESPONSIBILITIES.
A. LEGAL SERVICES. Manager shall not perform or have the responsibility
for the performance of legal services in connection with the
obligations arising hereunder. Sponsor shall obtain legal counsel at
its cost to perform such legal services.
B. AUDITORS. Sponsor shall employ a certified public accountant at
Sponsor's cost to perform annual audits, to prepare tax returns, and
to prepare any other reports required for federal or state
bureaucracies which require certification. While Sponsor's certified
public accountant shall be directly responsible to Sponsor, he shall
be expected to cooperate with and assist Manager in the development
and maintenance of the bookkeeping and financial control systems.
C. COORDINATION. In order to assure proper coordination, Sponsor shall
issue orders concerning the Project through Manager.
D. OPERATING COSTS. Sponsor shall be responsible for all operating
costs, wages, salaries, expenses, fees and losses of the Project.
2
E. INDEMNITY. Sponsor shall indemnify and hold harmless Manager and its
officers, directors, agents and employees from and against all
claims, damages, losses and expenses, including reasonable attorney's
fees arising out of or resulting from the performance of this
Agreement, provided that any such claim, damage, loss or expense is
caused in whole or in part by any negligent act or omission of the
Sponsor, or anyone for whose acts or omissions the Sponsor may be
liable.
III. TERM.
This Agreement shall commence on the 1st day of the 1st month of occupancy
of the Project and shall continue until the end of the sixtieth (60th) month
thereafter, and from month to month thereafter unless terminated pursuant to
paragraph A or B below.
A. TERMINATION ON NOTICE. During the period after the aforesaid sixtieth
(60th) month, either party may terminate this Agreement by giving the
other party written notice of its desire to terminate. In the event
of such notice, termination shall take effect at the end of the sixth
month following the month during which the notice to terminate is
received by the party to whom it is addressed.
(Example: If the termination notice is received on December 2, the
termination will take effect on June 30 of the following year.)
B. TERMINATION FOR CAUSE. This Agreement may be terminated by either
party in the event that the other party files or has a petition or
complaint in receivership or bankruptcy filed against it which has
not been dismissed sixty (60) days of such filing, or in the event
that the other party fails to perform the obligations imposed upon it
under this Agreement. In the event that either party elects to
terminate this Agreement as a result of the occurrence of any event
specified in the preceding sentence, it shall give the other party
written notice, and such termination shall be effective fifteen (15)
days after the mailing thereof unless the grounds for termination
have been remedied by the other party prior to that date.
IV. COMPENSATION.
A. AMOUNT. In consideration of the management services contemplated
hereunder, Sponsor shall pay to Manager a fee equal to the greater of
five percent (5%) of the gross operating income of the Project or
Three Thousand Dollars ($3,000), payable on the last day of each
month, commencing with the first month during which residents occupy
the Project and ending on the last day of the month during which this
Agreement is terminated pursuant to Article III.
B. CERTAIN EXPENSES. Sponsor shall pay Manager the net cost of
reasonable transportation and living expense for principals and
employees of Manager or its outside consultants when traveling in
connection with the performance of the services being performed
pursuant to this Agreement, together with any reasonable
long-distance telephone expense, cost of express shipments, or
similar communication costs.
3
V. GENERAL.
A. INSURANCE SUBROGATION. Each party shall secure at its expense such
liability insurance coverages as are generally available from
responsible insurers covering the operations and the employees of the
Project. No indemnity shall be paid to the other party under this
Agreement where the claim, damage, liability, loss or expense
incurred was or was required to be insured against; and any such
insurance policies obtained by the parties shall contain provisions
waiving any right of subrogation by the insurer of one party against
the other party or its insurer.
B. PROPERTY OF MANAGER. The names "Camelot Retirement Homes" and
"Camelot Village" are owned by Sponsor or its parent company, Phoenix
Lifecare Corp. Ideas and documents, forms, occupancy development
material, computer programs, actuarial statistics, and resident
profile information are to be considered proprietary and will remain
the property of Manager. Sponsor may use such materials and
information in the operation and management of the Project but may
not use such materials or information after termination of this
Agreement for the development of new projects for itself or others
without the written consent of Manager.
C. STATUS OF PARTIES. Manager and Sponsor shall not be considered as
joint venturers or partners of each other, and neither shall have the
power to bind or obligate the other except as set forth in this
Agreement.
D. ADDITIONAL ACTIONS. In order to carry out the intent and spirit of
this Agreement, Sponsor and Manager will do all acts and things
necessary, including the execution of other agreements.
E. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between Manager and Sponsor. Any change or modification of this
Agreement must be in writing and signed by both parties hereto.
F. BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their successors, and assigns.
G. CHOICE OF LAW. This Agreement, its interpretations, validity and
performance shall be governed by the laws of the State of New York
applicable to contracts made in and to be performed in such State.
H. NO PERSONAL LIABILITY. This Agreement has been executed on behalf of
Sponsor and UVH/DC by their respective officers solely in the
representative capacities, and no officer, director, agent, employee
or attorney of Sponsor or UVH/DC shall have any personal liability
hereunder to the other or any person claiming by or through the
other, under any circumstances.
I. CONSENT TO JURISDICTION. The parties consent to the personal
jurisdiction of the Federal Courts located in the State of New York
and of the New York State Supreme Court, and to venue in Nassau
County, New York.
4
J. ASSIGNMENT. Manager may not assign this Agreement without the prior
written consent of Sponsor.
K. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with respect to the management of the Project and amends and
supersedes the Camelot Village at West Hills Management Agreement dated March
18, 1996 between Sponsor and Manager (K/N/A Vanguard Realty and Management
Company, Inc.).
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
CAMELOT RETIREMENT HOMES, INC.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chairman
UVH MANAGEMENT CORP.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
5