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ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") is made and
entered into effective as of February 26, 1999, by and between Regency Realty
Corporation, a Florida corporation, ("the Company") and SCGroup Incorporated, a
Texas corporation ("SCGroup").
WHEREAS, the Company wishes to purchase from SCGroup certain
administrative services designed to assist the Company in the cost-efficient
management of the Company's administrative and business affairs in the manner
and pursuant to terms and conditions as more specifically described herein; and
WHEREAS, SCGroup desires to provide or cause to be provided those
services requested by the Company under such terms and conditions; and
WHEREAS, SCGroup will perform similar administrative services for other
entities (collectively "SCGroup Clients") which may vary from time to time.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Services
1.1 Scope of Services. The specific services to be provided by
SCGroup to the Company (each a "Service" and collectively the "Services") shall
be listed in Schedule A. Schedule E provides a description of the manner and
extent to which each Service will be provided. The scope of Services provided by
SCGroup may be expanded, reduced or otherwise modified during the Initial Term
(as defined in Section 3) or any Renewal Term (as defined in Section 3) upon
prior written agreement of the parties. Unless otherwise agreed, the Company
shall provide SCGroup with written notice at least 30 days prior to any
requested change in the scope of Services. In addition, the parties shall review
the scope of Services annually and shall complete such review and agree upon any
resulting scope changes for the upcoming calendar year not later than November
30 of the then current year. In either event, Schedules A and E shall be amended
to reflect any agreed upon changes in the scope of Services.
1.2 Performance of Services. SCGroup covenants that it will
perform or cause to be performed the Services in a timely, efficient and
workmanlike manner. SCGroup further covenants that it will maintain or contract
for a sufficient staff of trained personnel to enable it to perform the Services
hereunder. SCGroup may delegate and subcontract some or all of its obligations
under this Agreement to one or more third parties. If SCGroup does so, it will
remain responsible for the performance of all obligations performed by such
subcontractors to the same extent as if such obligations were performed by
SCGroup employees.
1.3 Access, Information, Cooperation and Assistance. The
Company will provide SCGroup with all access, Company information, cooperation
and assistance necessary for SCGroup to perform the Services in accordance with
this Agreement. The Company will cooperate with SCGroup to institute changes
expected to result in reduced and more efficient resource usage.
1.4 Changes in Scope of Service. Subject to appropriate
undertakings of confidentiality by SCGroup, the Company shall notify SCGroup
upon occurrence of any of the following: (i) the Company proposes to acquire any
new property or properties; (ii) the Company proposes to enter into any business
combination or acquire any significant assets of another person or entity, (iii)
the Company proposes to establish any new subsidiary corporation, partnership,
joint venture, business trust or other entity; (iv) the Company proposes to
conduct operations or business in any state or other jurisdiction in which the
Company is not qualified to transact business; or (v) the Company proposes to
take any other action which may significantly increase the scope of Services to
be provided by SCGroup hereunder. Upon receipt of such notice by SCGroup, the
parties shall negotiate in good faith the scope of such Services and the charges
payable therefor (if additional Services are required). Any such charges shall
be payable by the Company as provided in Section 2.4.
Section 2. Charges.
2.1 Charges. The charges to be paid by the Company to SCGroup
for the Services then being performed or to be performed by SCGroup shall be
listed in Schedule B ("Charges"). These charges shall remain in effect
throughout the initial or applicable Renewal Term of this agreement. If the
scope of Services is changed during the annual review process or at any other
time, the parties shall negotiate in good faith and agree in advance on any
resulting changes in the Charges to be paid to SCGroup by the Company in the
subsequent Renewal Term. Schedule B shall be amended to reflect any agreed upon
changes in the Charges.
2.2 Retained Expenses. The Company shall retain financial
responsibility for those functions and expense items shown as retained expenses
in Schedule D. The Company will be billed directly by third parties for such
services. The Company agrees to pay such expenses timely and in the ordinary
course of business.
2.3 Pass-Through Expenses. Pass-through expenses are listed in
Schedule C. Unless otherwise agreed by the parties, pass-through expenses will
be paid by the Company directly. SCGroup will promptly provide the Company with
the original third-party invoice for such expenses together with a statement
that SCGroup has reviewed and validated the invoiced charges. SCGroup will
highlight any charges that appear to be inappropriate and will work with the
Company to reconcile all bills with the third-party suppliers.
2.4 Payment for Services. SCGroup shall invoice the Company,
at the end of each calendar month, the amount agreed to from time to time
pursuant to Section 2.1 for the applicable Service. Such amount shall be payable
in full within 20 days of receipt of such invoice by the Company. Any past due
amounts shall be subject to a .834% per month (10% per annum) (or the maximum
rate allowable by law, whichever is less) late payment fee.
2.5 Taxes.
(a) Each party will pay any real estate or personal property
taxes on property its owns or leases, franchise and privilege taxes on
its business, and taxes based on its net income or gross receipts.
(b) SCGroup will pay all sales, use, excise, value-added,
services, consumption, and other taxes and duties payable by SCGroup on
any goods or services used or consumed by SCGroup in providing the
Services where the tax is imposed on SCGroup's acquisition or use of
such goods or services and the amount of tax is measured by SCGroup's
costs in acquiring such goods or services.
(c) In the case of any sales, use, excise, value-added,
services, consumption, or other tax during the term of this Agreement
that is assessed on the provision of the Services as a whole, or on any
particular hardware, software, or Services received by the Company from
SCGroup, the Companies will pay such taxes.
(d) The Parties agree to fully cooperate with each other to
enable each to more accurately determine its own tax liability and to
minimize such liability to the extent legally permissible.
Section 3. Term. The initial term of this Agreement shall commence on
the date hereof and, unless terminated earlier in accordance with Section 10,
shall end on December 31, 1999 (the "Initial Term"). Absent written notice of
non-renewal as provided in this Section 3, this Agreement shall be automatically
renewed for successive one-year terms (each, a "Renewal Term") upon the
expiration of the Initial Term and each Renewal Term. Notice of non-renewal, if
given, shall be given in writing by either party as early as is practicable.
Notice of non-renewal by the Company will be timely provided if it is given no
later than ten (10) calendar days after renewal terms are presented.
Section 4. Audit of Services. At any time during regular business hours
and as often as reasonably requested by the Company's officers, SCGroup shall
permit the Company or its authorized representatives to examine and make copies
and abstracts from the records and books of SCGroup for the purpose of auditing
the performance and charges of SCGroup under the terms of this Agreement;
provided, that all costs and expenses of such inspection shall be borne by the
Company.
Section 5. Company Data. Data obtained by SCGroup from the Company in
connection with the performance of any Services ("Company Data") is and shall
remain the exclusive property of the Company. SCGroup is authorized to have
access to and make use of the Company Data as necessary and appropriate for the
performance by or for SCGroup of its obligations under this Agreement. Upon the
termination or expiration of this Agreement, SCGroup will return to the Company
all Company Data then in its possession. SCGroup will not use Company Data for
any purpose other than for providing the Services.
Section 6. Confidentiality. Except as otherwise provided in this
Agreement, SCGroup agrees that all information communicated to it by the
Company, whether before or after the effective date of this Agreement, will be
received in strict confidence, will be used only for purposes of this Agreement,
and will not be disclosed by SCGroup without the prior written consent of the
Company. SCGroup agrees to use the same means it uses to protect its own
Confidential Information, but in any event not less than reasonable means, to
prevent the disclosure of such information to outside parties. However, SCGroup
will not be prevented from disclosing information to its counsel or regular
public accountants, or from disclosing information which belongs to such party,
or is (a) already known by the recipient party without an obligation of
confidentiality; (b) publicly known or becomes publicly known through no
unauthorized act of the recipient party; (c) rightfully received from a third
party; (d) independently developed without use of the other party's confidential
information; (e) disclosed without similar restrictions to a third party by the
party owning the confidential information; or (f) required to be disclosed
pursuant to a requirement of a governmental agency or legal requirement if
SCGroup provides the Company with notice of this requirement prior to
disclosure.
Section 7. Service Levels.
7.1 Establishment of Service Levels. Schedule E contains the
scope of services and service levels agreed to by the parties. To the extent any
desired service level is determined by the parties to be unattainable using
commercially reasonable efforts, SCGroup will identify the level of service
which is reasonably attainable, the modifications or changes necessary to attain
the higher service level and the costs associated with such modifications or
changes. Following the initial one year period, the parties will meet as
required to evaluate and revise the service levels to the extent appropriate.
SCGroup will measure the quality and quantity of the Services actually
delivered. The data obtained by SCGroup will be reviewed and verified by the
parties and will be one of the bases for evaluating and possibly revising
Schedule E. All such revisions must be agreed to by the Company and SCGroup. If
requested, the Company will provide copies of relevant information in its
possession to SCGroup to assist in any review or revision of the service levels.
7.2 Failure to Attain Service Levels. If SCGroup fails to
attain any service level, SCGroup will (i) promptly investigate the cause of the
problem; (ii) prepare a report identifying the cause of the problem and
recommending solutions; and (iii) use commercially reasonable efforts to correct
the problem and to begin meeting the service levels as soon as practicable.
Section 8. Prevention of Performance. SCGroup shall not be determined
to be in violation of this Agreement if it is prevented from performing any
Services hereunder, in whole or in part, by the acts or omissions of the Company
or a third party or for any other reason beyond its reasonable control,
including without limitation acts of God, nature or public enemy, war, civil
disturbance, labor dispute, failure or fluctuation in electrical power, heat,
light, air conditioning or telecommunication service, or limitations of law,
regulations or rules of the Federal, state or local government or of any agency
thereof.
Section 9. Software and Other Intellectual Property.
9.1 Company Software. The Company's ownership, license or other right or
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title to computer software used by the Company ("Company Software") will remain
the Company's property and SCGroup will have no ownership interest or other
right in such Company Software due to this Agreement or the services provided
hereunder, except as provided in this Section. The Company grant to SCGroup,
without charge, the limited nonexclusive nontransferable right to access Company
Software during the term of this Agreement for the purpose of, and to the extent
necessary for, performing the Services.
9.2 SCGroup Software. Software owned by or licensed to SCGroup
which is used by SCGroup in providing the Services (collectively, "SCGroup
Software") is and will remain SCGroup's property and the Company will have no
ownership interest or other right in such SCGroup Software.
9.3 Intellectual Property Rights. If, in the course of
providing Services under this Agreement, the Company requests and SCGroup agrees
to develop any Software, process, document or other material to the
specification of the Company, not being SCGroup Software or an enhancement
thereto, and the Company pays all of the Charges associated with such
development ("Work Product"), then the copyright or other intellectual property
rights and all legal and beneficial rights therein shall belong to the Company.
SCGroup hereby assigns to the Company all right, title and interest that arises
in SCGroup with respect to such Work Product, including all intellectual
property rights related thereto, and SCGroup agrees to take all reasonable steps
and execute all documents necessary to perfect title to such Work Product in the
Company. SCGroup shall be permitted to access and use such Software, process,
document or other material to the extent necessary for the provision of the
Services to the Company.
9.4 SCGroup Ownership Rights. Except as provided for in
Section 9.3 above, all copyright or intellectual property rights in any
Software, process, document or other material created by SCGroup, its employees
or agents and all legal and beneficial rights therein shall belong to SCGroup.
Section 10. Termination.
10.1 Termination for Cause. Either party may terminate this
Agreement, in whole or in part, by giving written notice to the other party, if
such other party materially breaches any of its duties or obligations set forth
herein and fails to cure such breach within thirty (30) days of written notice
of such breach. If less than all Services are terminated, the parties will
equitably adjust the Charges to be paid by the Company hereunder for the
remaining Services.
10.2 Terminate for Insolvency. In the event that either party
(a) files for bankruptcy; (b) becomes or is declared insolvent, or is the
subject of any proceedings related to its liquidation, insolvency or the
appointment of a receiver or similar officer for it; (c) makes an assignment for
the benefit of all or substantially all of its creditors; or (d) enters into an
agreement for the composition, extension, or readjustment of substantially all
of its obligations, then the other party may terminate this Agreement at any
time upon notice to the other party.
10.3 Termination. The Company may terminate this Agreement by
giving written notice to SCGroup at least ten (10) calendar days prior to the
effective date, if the Company decides to cancel the insurance policy which is
the subject of this Agreement.
Section 11. Disclaimer and Limitation of Liability and Intellectual
Property Claims Between Parties.
11.1 DISCLAIMER. EXCEPT AS SPECIFICALLY STATED IN THIS
AGREEMENT, NEITHER SCGROUP NOR THE COMPANIES MAKES ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE
MERCHANTABILITY, SUITABILITY, ORIGINALITY, TITLE, FITNESS FOR A PARTICULAR USE
OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY HARDWARE, SOFTWARE,
SERVICES OR OTHER ITEMS PROVIDED UNDER THIS AGREEMENT.
11.2 LIMITATION OF LIABILITY. IN NO EVENT WILL A PARTY BE
LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Additionally,
the total liability of the parties under or in connection with this Agreement
will be limited to the total charges paid by the Company to SCGroup during the
12 months preceding the event which is the subject of the claim (the "Liability
Cap"); provided, however, the Liability Cap will not apply with respect to (i)
damages occasioned by the willful misconduct or gross negligence of a party,
(ii) claims that are the subject of the indemnification provisions set forth
herein, or (iii) the failure to pay Charges due and owing to SCGroup under this
Agreement.
Section 12. Indemnification.
12.1 This section left intentionally blank.
12.2 By SCGroup. SCGroup shall indemnify, defend and hold the
Company, its trustees, officers and employees harmless from and against all
damages, losses and reasonable out-of-pocket expenses (including fees) caused by
or arising out of any willful misconduct or gross negligence by SCGroup in the
performance of its obligations under this Agreement.
12.3 Remedy. Except as otherwise provided in subsection 12.2
hereof, the Company's remedy on account of the failure of SCGroup to render the
Services as and when required hereunder shall be to terminate this Agreement
and/or to seek damages, but in no event shall such damages exceed the cap set
forth in 11.2.
Section 13. Relationship of the Parties.
13.1 Independent Contractor Status. SCGroup is an Independent
Contractor. This Agreement will not be construed as creating any partnership,
agency relationship or other form of legal association that would impose
liability upon one party for the other party?s actions or failure to act. Nor
will this Agreement be construed as providing either party with the right, power
or authority (express or implied) to create any duty for, or obligation of, the
other party.
13.2 Responsibility for Employees. Each party will be
responsible for the management, direction and control of its employees and other
agents. All SCGroup employees used in performing SCGroup's obligations under
this contract shall be employed solely and exclusively by SCGroup, and all
Company employees used in performing the Company's obligations under this
Agreement shall be employed solely and exclusively by the Company. Thus, SCGroup
and the Company shall not be considered a joint or single employer of any
employee.
13.3 SCGroup Control of Services. Except where this Agreement
expressly provides that SCGroup will perform certain identified Services as
agent for the Company, the Services will be under the control, management and
supervision of SCGroup.
Section 14. Notices.
14.1 Manner of Delivery. Each notice, demand, request,
consent, report, approval or communication (each a "Notice") which is or may
be required to be given by either party to the other party in connection with
this Agreement and the transactions contemplated hereby, shall be in writing,
and given by telecopy, personal delivery, receipted delivery service, or by
certified mail, return receipt requested, prepaid and properly addressed to
the party to be served.
14.2 Addresses. Notices shall be addressed as follows:
If to the Company:
Regency Realty Corporation
121 West Forsyth Street
Suite 200
Jacksonville, FL 32202
Attention: Bruce M. Johnson
If to SCGroup:
SCGroup Incorporated
7777 Market Center Avenue
El Paso, Texas 79912
Attention: J. Robert Hutchison
14.3 Effective Date of Notice. Notices shall be effective on
the date sent via telecopy, the date delivered personally or by receipted
delivery service, or three (3) days after the date mailed.
14.4 Change of Address. Each party may designate by notice to
the others in writing, given in the foregoing manner, a new address to which
any notice may thereafter be so given, served or sent.
Section 15. Entire Agreement. This Agreement, together with the
Exhibits hereto, constitutes and sets forth the entire agreement and
understanding of the parties pertaining to the subject matter hereof, and no
prior or contemporaneous written or oral agreements, understandings,
undertakings, negotiations, promises, discussions, warranties or covenants not
specifically referred to or contained herein or attached hereto shall be valid
and enforceable. No supplement, modification, termination in whole or in part,
or waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provision hereof (whether or not similar), nor shall any such waiver
constitute a continuing waiver unless otherwise expressly provided.
Section 16. Priority. If there is any apparent conflict or
inconsistency between the provisions set forth in this Agreement, and the
provisions set forth in any schedule, exhibit, attachment or supplement
attached hereto, to the extent possible such provisions will be interpreted in
a manner so as to make them consistent. If it is not possible to interpret
such provisions consistently, the provisions set forth in the body of this
Agreement will prevail.
Section 17. No Third Party Beneficiaries. The parties do not intend,
nor will any clause of this Agreement be interpreted to create, for any
third party any obligation to or benefit from the Company or SCGroup.
Section 18. Survival. All provisions of this Agreement which
contemplate performance or observance following the expiration or earlier
termination of this Agreement, will survive any such expiration or earlier
termination. Additionally, all provisions of this Agreement will survive the
expiration or earlier termination of this Agreement to the fullest extent
necessary to give the parties the full benefit of the bargain expressed
herein.
Section 19. Consents and Approvals. Where agreement, approval,
permission, acceptance, consent or similar action by either party is required
by any provision of this Agreement, such action will not be unreasonably
delayed, conditioned or withheld.
Section 20. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, each of their respective
successors and permitted assigns, but may not be assigned by either party
without the prior written consent of the other party, and no other persons
shall have or derive any right, benefit or obligation hereunder.
Section 21. Headings. The headings and titles of the various
paragraphs of this Agreement are inserted merely for the purpose of
convenience, and do not expressly or by implication limit, define, extend or
affect the meaning or interpretation of this Agreement or the specific terms
or text of the paragraph so designated.
Section 22. Governing Law. This Agreement shall be governed in
all respects, whether as to validity, construction, capacity, performance
or otherwise, by the laws of the State of Texas.
Section 23. Severability. If any provision of this Agreement shall be
held invalid by a court with jurisdiction over the parties to this Agreement,
then and in that event such provision shall be deleted from the Agreement,
which shall then be construed to give effect to the remaining provisions
thereof. If any one or more of the provisions contained in this Agreement or
in any other instrument referred to herein shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, then in that event, to
the maximum extent permitted by law, such invalidity, illegality or
enforceability shall not affect any other provisions of this Agreement or any
other such instrument.
Section 24. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which taken together shall be considered one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
REGENCY REALTY CORPORATION
By:
Bruce M. Johnson
Managing Director/Chief Financial Officer
SCGROUP INCORPORATED
By:
Paul E. Szurek
Managing Director