ex10-1.htm


     

    
 

    Exhibit
10.1

     

    


     

    AGENCY
AGREEMENT

     

    This Agency Agreement made as of this
10th day
of November, 2009 by and between GRANDE ROTUNDA, LLC
(hereinafter referred to as the “Owner”) and HEKEMIAN DEVELOPMENT RESOURCES,
LLC (hereinafter the “Agent”) both having an address
at 505 Main Street, Hackensack, New Jersey 07601.

     

    WHEREAS, The Owner is the owner of the
office and retail property located at 711 West 40th
Street in Baltimore, Maryland (the “Property”); and

     

    WHEREAS, the Owner is about to or has
commenced the Project for the redevelopment of the Property in accordance with
the plans approved by the Owner; and

     

    WHEREAS, Owner wishes to retain the
Agent to advise it in all phases of the Project and to act on behalf of the
Owner, as Owner shall so direct, in connection with the Architect, Engineer, and
Contractors hereinafter defined; and

     

    WHEREAS, Agent is willing to undertake
such responsibilities as are hereinafter set forth in accordance with the terms
and conditions contained in this Agreement; and

     

    NOW THEREFORE, for One ($1.00) Dollar
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, to the terms contained herein the Owner and Agent agree
as follows:

     

    
      	
               
      

            	
              1.

            	
              DEFINITIONS:

            


    

     

    
      	
               
      

            	
              (a)

            	
              Approved Plans:
      The plans and specifications prepared by the Design Team as same may be
      modified from time to time with the prior approval of the Owner with
      respect to material changes to the site plan and to gross leasable area of
      any building.

            


    

     

    (b)           Architect: Design
Collective, Inc.

     

    
      	
               
      

            	
              (c)

            	
              Architect's
      Agreement: Dated November 28, 2007, and attached hereto as Exhibit
    A.

            


    

     

    (d)           Buildings: The
buildings identified on the Approved Plans.

     

    (e)           Engineer: STV,
Inc.

     

    
      	
               
      

            	
              (f)

            	
              Contractor: A
      Contractor is defined to include the general contractor and all site
      contractors, building contractors and subcontractors retained by the Owner
      in connection with the Project.

            


    

     


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    (g)           Design Team: The
Architect and Engineer(s).

     

    
      
        	
                 
      

              	
                (h)

              	
                Development
      Costs:   “Development
      Costs” shall
      mean the aggregate amount actually expended by Owner for the construction
      of the Project, excluding the acquisition costs of the Property and all
      soft costs expended for architectural and other professional fees, but not
      to exceed $136,000,000 (the amount reflected in the pro forma construction
      cost schedule dated February 2007 submitted to the Owner) unless the Owner
      has approved a change in the Project Scope which increases the scope and
      size of the Project, in which event the maximum amount of $136,000,000
      shall be increased to the extent and in the amount approved by the Owner
      in connection with any such change in Project Scope, it being confirmed
      that no such change in Project Scope has been approved by the Owner since
      February 2007. The term "Development Costs" shall be utilized for the
      determination of Agent's Fee and not the ultimate costs of the
      Project.

              


      

       

      
        	
                 
      

              	
                (i)

              	
                Development
      Scope:   Two hundred ninety-seven (297) apartment
      units, forty-four (44) residential condominium units (to be constructed by
      a third party), 205,331 square feet of new retail space, including a Giant
      Supermarket shell building, redevelopment and repositioning of the
      existing retail within the property, a hotel (to be constructed by a third
      party), 1504 above and below ground parking and a plaza level deck with
      amenities and all site work and Buildings as depicted on the (as set forth
      in the pro forma dated February
2007).

              


      

       

    

    (j)           Lender:  To
be designated by Owner, in its sole discretion.

     

    
      	
               
      

            	
              (k)

            	
              Owner's
      Representative:  Donald Barney. If Donald Barney is not
      available, the Owner's Representative shall be Ronald Artinian or such
      other party that Owner designates as the Owner's
      Representative.

            


    

     

    
      	
               
      

            	
              (l)

            	
              Project:  Project
      is defined as all approvals and redevelopment of the Property including
      the construction of all improvements, in accordance with the Approved
      Plans in effect as of the date
hereof.

            


    

     

    
      	
               
      

            	
              (m)

            	
              Project
      Personnel:  Project Personnel shall be deemed to be all
      architectural and engineering firms (in addition to the Architect and
      Engineer), surveyors, traffic consultants, environmental consultants,
      security personnel, marketing and public relations specialists and
      lobbyists and any other personnel as are determined by the Agent to be
      reasonably necessary for the timely completion of the Project, so long as
      retaining such personnel is consistent with this Agreement and any other
      written agreement approved by the
Owner.

            


    

     

    
      	
               
      

            	
              (n)

            	
              Property:  The
      Property consisting of the Rotunda Center owned by Owner in Baltimore,
      Maryland.

            


    

     

    
      	
               
      

            	
              (o)

            	
              Soft
      Costs:  Soft Costs are all fees and expenses paid for
      architectural, engineering, accountants, attorneys and other professional
      fees.

            


    

     


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (p)

            	
              Site
      Plan:  The plan prepared by STV, Inc. approved by the
      City of Baltimore as the same may be modified from time to time with the
      prior approval of the Owner with respect to material changes to the
      building layout.

            


    

     

    
      	
              2.

            	
              PROJECT
      SCOPE:  The Agent
      on behalf of Owner shall undertake the following (the “Project
      Scope:) in
      accordance with this Agreement and Owner's instructions based on the
      Approved Plans:

            


    

     

    
      	
               
      

            	
              (a)

            	
              Research
      development options through studying various conceptual plans, existing
      zoning and comprehensive zoning;

            


    

     

    
      	
               
      

            	
              (b)

            	
              Negotiation
      of all requisite contracts for the Project subject to the approval of
      Owner and Owner's designated legal counsel, for all contracts which exceed
      the dollar amount set forth in Paragraph 3(o)
  hereof;

            


    

     

    
      	
               
      

            	
              (c)

            	
              Obtaining
      of all approvals for the Project;

            


    

     

    
      	
               
      

            	
              (d)

            	
              Phased
      demolition of the Project, in accordance with the Project
      Plan;

            


    

     

    
      	
               
      

            	
              (e)

            	
              Construction
      of the Project, in accordance with the Approved Plans and the Site
      Plan;

            


    

     

    
      	
               
      

            	
              (f)

            	
              Oversight
      of existing and new lease negotiations with tenants and any
      brokers;

            


    

     

    
      	
               
      

            	
              (g)

            	
              Coordination
      of existing tenant relocations within the
  Project;

            


    

     

    
      	
               
      

            	
              (h)

            	
              Review
      all bidding of contracts for the Project and recommendations to the Owner
      for the hiring of Contractors;

            


    

     

    
      	
               
      

            	
              (i)

            	
              Negotiation
      of all requisite contracts for the improvements, subject to the approval
      of Owner and Owner's legal counsel, for all contracts which exceed the
      dollar amount set forth in Paragraph
3(o);

            


    

     

    (j)           Liaison
between Contractor(s) and Design Team:

    (1)           Review
progress and scheduling;

    
      	
               
      

            	
              (2)

            	
              Review
      change orders, subject to approval of the Owner and Design
      Team;

            


    

    (3)           Coordinate
requests for information with the Design Team;

    (4)           Coordinate
requests for clarifications with the Design Team;

    
      	
               
      

            	
              (5)

            	
              Oversee
      approvals of submittals and Shop drawings with the Design
      Team;

            


    

    (6)           Oversee
construction scheduling as Owner's representative; and

    (7)           Oversee
Project closeout with the Design Team.

     

    (k)           Coordination
with Owner's Lender:

    
      	
               
      

            	
              (1)

            	
              Process
      draw requests to Lender pursuant to a written draw request, provided that
      the Architect has previously approved such
draw.

            


    

     


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (l)

            	
              Exclusions:
      The following are excluded from Agent's scope of
  services:

            


    

    
      	
               
      

            	
              (1)

            	
              Means
      and Methods of Construction;

            


    

    
      	
               
      

            	
              (2)

            	
              Defects
      or deficiencies in the work of the Contractors or delays in any of the
      work performed;

            


    

    
      	
               
      

            	
              (3)

            	
              Errors
      and/or omissions of the Design
Team;

            


    

    
      	
               
      

            	
              (4)

            	
              Cost
      overruns;

            


    

    
      	
               
      

            	
              (5)

            	
              Oversight
      of various trades subcontractors;

            


    

    
      	
               
      

            	
              (6)

            	
              Arbitration
      or litigation preparation and arbitration or court appearances on behalf
      of Owner; and

            


    

    
      	
               
      

            	
              (7)

            	
              Brokerage
      Services.

            


    

     

    
      	
              3.

            	
              SCOPE
      OF SERVICES:  So long as
      Agent's actions are consistent with this Agreement and any other written
      agreement which the Owner has formally approved in writing, the Agent
      shall be responsible to perform the following in a timely manner, on
      behalf of Owner and at Owner's expense and subject to the provision of
      Paragraph 5 thereof:

            


    

     

    
      	
               
      

            	
              (a)

            	
              Engage
      the Design Team, Contractors, consultants, on-site staff and such other
      personnel as Agent deems commercially reasonable and necessary in order to
      complete the Project;

            


    

     

    
      	
               
      

            	
              (b)

            	
              Recommend
      to Owner the hiring of Project Personnel as the Agent deems appropriate
      for the Project;

            


    

     

    
      	
               
      

            	
              (c)

            	
              Recommend
      to Owner the retaining of marketing and public relations consultants
      and/or firms, lobbyists and such other consultants of Owner and Agent deem
      necessary to complete and lease up the
Project;

            


    

     

    
      	
               
      

            	
              (d)

            	
              Undertake
      the necessary actions to implement the Project
  Scope;

            


    

     

    
      	
               
      

            	
              (e)

            	
              Use
      commercially reasonable efforts to assist in negotiating fair and complete
      agreements with Contractors and material suppliers and to obtain
      satisfactory performance from each of the Project Personnel, subject to
      Owner's approval and the approval of Owner's legal counsel as designated
      by Owner and further subject to Paragraph
3(o);

            


    

     

    
      	
               
      

            	
              (f)

            	
              Monitor
      construction costs and provide the Owner with reports on actual costs for
      the Project and estimates for the Project completion as the same are
      adjusted from time to time;

            


    

     

    
      	
               
      

            	
              (g)

            	
              Administer
      the contracts of the Project for compliance with the terms and conditions
      of each contract;

            


    

     

    
      	
               
      

            	
              (h)

            	
              At
      the direction of the Design Team, require additional inspections and
      testing of the work, and reject work which does not conform to the
      requirements of the Approved Plans and the Site
  Plan;

            


    

     


    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (i)

            	
              Solicit
      bids from all prospective contractors and material suppliers and assist
      the Owner in the determination of the most qualified and cost efficient
      Contractor or material suppliers;

            


    

     

    
      	
               
      

            	
              (j)

            	
              Coordinate
      with the Design Team to obtain final approvals for the Project and verify
      that interim inspections are performed in order to obtain such
      certificates of occupancies as may be required by applicable governmental
      authorities having jurisdiction over the
  Project;

            


    

     

    
      	
               
      

            	
              (k)

            	
              Maintain
      a copy of all plans, specifications, contracts, invoices and financial
      matters related to the Project and supply a copy thereof to Owner and upon
      the completion of the Project, Agent shall provide a complete copy of the
      foregoing to the Owner upon Owner's
request;

            


    

     

    
      	
               
      

            	
              (l)

            	
              Use
      commercially reasonable efforts to secure lien waivers from Contractors
      and material suppliers;

            


    

     

    
      	
               
      

            	
              (m)

            	
              Submit
      to Owner, for Owner's prior approval, any change order whose cost may
      reasonably be anticipated to exceed Fifty Thousand ($50,000) Dollars to
      the Owner;

            


    

     

    
      	
               
      

            	
              (n)

            	
              When
      the aggregate cost of all change orders for any phase of the Project
      exceeds seven (7%) percent of the Development Costs allocated to such
      phase, Agent shall report all change orders to Owner's Representative and
      thereafter, provide Owner's Representative with a monthly status report
      relative to the construction of the
Project;

            


    

     

    
      	
               
      

            	
              (o)

            	
              Submit
      to Owner, for Owner's prior approval, any individual contract whose cost
      may reasonably be anticipated to exceed One Hundred Thousand ($100,000)
      Dollars.

            


    

     

    
      	
              4.

            	
              OWNER'S
      RESPONSIBILITIES:  In order
      for Agent to undertake its duties pursuant to this Agreement, the Owner
      shall be responsible to perform the following, in a timely
      manner:

            


    

     

    (a)           Provide
Agent with all plans and intended goals for the Project;

     

    (b)           Respond
to all inquiries and/or requests by Agent;

     

    
      	
               
      

            	
              (c)

            	
              Based
      upon the reasonable recommendations of the Agent, to purchase and provide
      written evidence it has obtained the appropriate type and amount of
      insurance, including, but not limited to builders all risk insurance for
      the Project pursuant to which the Agent is named as an additional
      insured;

            


    

     

    
      	
               
      

            	
              (d)

            	
              Following
      the approval of work by the Architect, the Design Team and the Lender
      where applicable of the requisition for such work, Owner shall pay all
      Project bills and invoices necessary to comply with contract obligations
      for all Contractors, Project Personnel and Fees due
  Agent;

            


    

     


    
      
         


      

      
        5

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (e)

            	
              Pay
      all Project bills, invoices and
Fee.

            


    

     

    
      	
               
      

            	
              5.

            	
              AGENT
      FEES.

            


    

     

    5.1.           Subject
to the terms of this Paragraph 5, Owner shall pay Agent a fee for Agent's
services pursuant to this Agreement (the "Fee") in an amount equal to six and
three-eights percent (6 3/8%) of the lesser of (i) actual Development Costs; or
(ii) the Guaranteed Maximum Price (“GMP”). Owner
agrees to pay $3,000,000.00 of the Fee for services rendered by Agent in
connection with the Project of which amount $1,000,000.00 has heretofore been
paid by Owner to Agent.  The remaining $2,000,000.00 shall be paid
upon the execution of this Agreement. The payment of $3,000,000.00 is in
recognition of the following:

     

    
      	
               
      

            	
              (1)

            	
              All
      services rendered by Agent up to the date of this
    Agreement;

            


    

     

    
      	
               
      

            	
              (2)

            	
              Any
      and all future contacts and meetings with governmental authorities
      relating to the Project Scope;

            


    

     

    
      	
               
      

            	
              (3)

            	
              Any
      and all future dealings with the Architect, Engineer and attorneys engaged
      in obtaining the necessary government approvals up to and including the
      obtaining of Project building permits. Thereafter, Agent shall not be
      entitled to receive any additional portion of the Fee, except as provided
      in Subparagraphs 5.2, 5.3 and 5.4
hereof.

            


    

     

    5.2.           In
the event the Owner determines in writing to proceed with the entirety of the
Project as the sole Owner, the balance of the Fee shall be paid as hereinafter
provided. If the Project Scope and / or Scope of Services is increased, the Fee
shall be increased by an amount to be agreed upon in writing by Owner and Agent.
If the Project Scope and / or Scope of Services is reduced, the Fee shall be
reduced in an amount agreed upon in writing by the Owner and Agent. The balance
of the Fee shall be paid in the following manner:

     

    
      	
               
      

            	
              (1)

            	
              Upon
      Owner's written direction to Agent to obtain a building permit for any of
      the apartments, retail space or the garage and the issuance of a building
      permit therefore, fifty (50%) percent of the
      Fee as modified if there is a change in project scope, less $3,000,000.00
      shall be due and payable. Example: If there has been no change in the
      Project Scope at time of
      issuance of the building permit, Agent shall be paid ($136,000,000
      X .06375 / 2= $4,335,000 - less $3,000,000)
  $1,335,000

            


    

     

    
      	
               
      

            	
              (2)

            	
              Balance
      of fifty (50%) percent of the
      Fee shall thereafter be paid in monthly installments, based upon the
      percentage of completion of the Project as reflected In the general
      contractor's requisition and approved by the Architect, less a hold back
      of ten (10%) percent, in accordance with the following formula,
      wherein:

            


    

     


    
      
         


      

      
        6

        
          

        

      

      
         


      

    


    "C" is
Architect's certification of percentage of completion of entire
Project

    "H" is
one-half of the amount of the Fee

    "I" is
the amount of the monthly installments

    "P" is
that portion of the second half of the Fee which has been previously
paid

     

    (C x H x
90%) - P = I

    
       

    

    
      	
               
      

            	
              (3)

            	
              The
      ten percent (10%) hold-back portion of the Fee shall be paid within thirty
      (30) days after issuance of an unconditional certificate of occupancy for
      the entire Project (or equivalent jurisdictional approval) (the `CO").
      Notwithstanding anything herein to the contrary, the total fee shall not
      exceed 6 3/8% of the actual Development Cost. If at any time, it is
      determined that actual Development Cost will be less than $136,000,000,
      the schedule for payment of the balance of the Fee shall be reduced to
      insure that the aforementioned ten (10%) percent hold-back shall be held
      back until issuance of CO.

            


    

     

    5.3.           In
the event that the Owner never determines in writing to proceed with the entire Project as the sole
Owner, the amount set forth in Paragraph 5.1 shall constitute full
payment to the Agent except under the conditions and circumstances set forth in
this Subparagraph 5.3. Nevertheless, the Owner and Agent, acknowledge that the
Agent may be called upon to render additional services, but the scope and value
of such services is difficult to determine at the present time. Accordingly, at
such time as the Owner determines what the future of the Project may be, and
what the role of the Owner and Agent respectively may be in the Project, the
Owner and Agent shall then endeavor in good faith to enter into an agreement for
a future role for the Agent and as to the amount of compensation to be paid to
the Agent in such future role, provided however, that unless Owner and Agent
agree in writing to the contrary, in no event shall Agent's total compensation,
if any, exceed_ the Fee which Agent would receive pursuant to the provisions of
Subparagraph 5.2 and Owner should have no obligation to pay an additional fee
absent a written agreement providing for such additional fee.

     

    5.4.           In
the event Owner elects to discontinue the Project, Agent shall cease work on the
Project, except for work directed at securing a grandfathering exception for the
Project from the Leeds or similar ordinance that the City of Baltimore is
currently considering. Any additional work prior to the determination to
commence the entire Project is includable within the scope of the $3,000,000.00
in fees paid to date. However, with respect to a redesign of the Project, Agent
will make a presentation to the Owner regarding the redesign work, including the
proposed costs thereof, as well as a separate proposed fee for Agent's
additional work,' but Owner shall have no obligation to pay an additional fee
absent a written agreement expressly providing for such additional
fee.

     


    
      
         


      

      
        7

        
          

        

      

      
         


      

    


    


     

    
      	
               
      

            	
              6.

            	
              INDEMNIFICATION:

            


    

     

    
      	
               
      

            	
              (a)

            	
              The
      parties acknowledge that Agent is acting in an agency capacity on behalf
      of the Owner in accordance with this Agreement and in such capacity Agent
      shall have the right to undertake such action on behalf of the Owner, but
      only in strict accordance with this Agreement, subject, however, to
      modification of such authority by written Agreement between the Owner and
      the Agent. In connection with such agency, the Owner covenants and agrees
      that it shall indemnify, defend and hold harmless the Agent as well as the
      Agent's officers, employees, agents, attorneys and members (hereinafter
      referred to collectively as the “Agent
      Indemnified Parties” and
      individually as an “Agent
      Indemnified Party”)
      from and against any and all losses, damages, expenses or
      liabilities of any kind or nature and from any suits, claims, or demands,
      including reasonable counsel fees incurred in investigating or defending
      such claim, suffered by any of them if caused by, relating to, arising out
      of, resulting from, or in any way connected with the Agent's actions
      contemplated herein; provided, however, the Owner shall not be obligated
      to indemnify, defend and hold harmless an Agent Indemnified Party, if the
      loss, damage, expense or liability was caused by or resulted from an Agent
      Indemnified Party's: (I) own gross negligence; (2) willful misconduct; (3)
      a material breach of the terms of this Agreement; and (4) any act or
      omission which exceeds the authority granted to the Agent by the terms of
      this Agreement which results in monetary loss to the Owner. In case any
      action shall be brought against an Agent Indemnified Party based upon any
      of the above and in respect to which indemnity may be sought against the
      Owner, the Agent Indemnified Party against whom such action was brought,
      shall promptly notify the Owner in writing, and the Owner shall assume the
      defense thereof, including the retainer of counsel selected by the Owner
      and reasonably satisfactory to said Agent Indemnified Party and the
      payment of all costs incurred in connection therewith. Owner shall retain
      the exclusive right to negotiate and consent to any
      settlement.

            


    

     

    
      	
               
      

            	
              (b)

            	
              The
      Agent covenants and agrees that it shall indemnify, defend and hold
      harmless the Owner as well as the Owner's officers, employees, agents,
      attorneys and members (hereinafter referred to collectively as the “Owner
      Indemnified Parties” and individually
      as an “Owner
      Indemnified Party”) from
      and against any and all losses, damages, expenses or liabilities of any
      kind or nature and from any suits, claims, or demands, including
      reasonable counsel fees incurred investigating or defending such claim,
      suffered by any of them if caused by, relating to, arising out of,
      resulting from, or in any way connected with the Agent's material breach
      of the terms and conditions of this Agreement, its gross negligence or
      willful misconduct, or any act or omission which exceeds the authority
      granted to the Agent by the terms of this agreement which results in
      monetary loss to the Owner, however, the Agent shall not be obligated to
      indemnify, defend and hold harmless an Owner indemnified Party if the
      loss, damage, expense or liability was caused by or resulted from an Owner
      Indemnified Party's (1) own negligence; (2) willful misconduct; (3)
      material breach f the terms of this Agreement; and (4) any act or omission
      arising out of the Owner's obligations hereunder. In case any action shall
      be brought against an Owner Indemnified Party based upon any of the above
      and in respect to which indemnity may he sought against the Agent, the
      Owner Indemnified Party against whom such action shall be brought, shall
      promptly notify the Agent in writing, and the Agent shall assume the
      defense thereof, including the retainer of counsel selected by the Agent
      and reasonably satisfactory to the Owner, and the payment of all costs
      incurred in connection therewith. Agent shall retain the exclusive right
      to negotiate and consent to any settlement wherein Agent is paying the
      settlement amount.

            


    

     


    
      
         


      

      
        8

        
          

        

      

      
         


      

    


    


     

    
      	
              7.

            	
              TERMINATION
      BY THE OWNER FOR CAUSE:  Should the
      Agent fail in the performance of its duties hereunder (excepting delays
      occasioned by strikes, floods, fires, accidents, the negligence of the
      Owner and other natural disasters which are beyond the control of the
      Agent), the Owner shall notify the Agent in writing of the Owner's intent
      to declare the Agent in default under this Agreement. Within twenty (20)
      days from the date Owner sends this notice to Agent, Agent shall cure the
      default or, if such default cannot reasonably be cured during such twenty
      (20) day period, Agent shall commence curing and diligently prosecute
      curing the default until such default is cured. Failure by the Agent to
      cure or diligently prosecute curing the default within such twenty (20)
      day period shall constitute a material breach of this Agreement on the
      part of the Agent. In such event, the Owner shall have the right to
      terminate this Agreement. In such case, the Owner shall pay the Agent the
      unpaid balance of the amount due Agent to be paid under this Agreement as
      of the date of termination hereof and neither party shall be further
      obligated to the other and there should be no obligation or Liability
      going forward.

            


    

     

    
      	
              8.

            	
              TERMINATION
      BY AGENT: The Agent may
      terminate this Agreement only if the Owner shall fail to pay the Fee in
      accordance with the terms of this Agreement, or as set forth in Paragraph
      9 below.

            


    

     

    
      	
              9.

            	
              SUSPENSION
      OF WORK:  Should
      Owner desire to suspend the Project, then the Owner must notify Agent in
      writing of its desire to suspend the Project. If Owner suspends
      construction of the Project for a period of ninety (90) consecutive days,
      Agent may upon written notice to the Owner state that it is seeking
      additional compensation for expenses caused by such suspension. Within 15
      days of receipt of such notice, Owner may at its option either (a) agree
      to accept a claim for additional compensation; or (b) permit Agent to
      terminate this Agreement without additional compensation. For the purposes
      of this Agreement, the period of suspension shall commence on the date
      when Owner gives notice to the Agent that suspension has commenced. In the
      event the Project is suspended for any reason by the Owner, then only the
      Owner shall be liable for any claims by Contractors and the Design Team
      for suspension of the Project and the Owner shall indemnify the Agent for
      all claims made by the foregoing pursuant to Paragraph 6 of this
      Agreement.

            


    

     

    


     


    
      
         


      

      
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              10.

            	
              ENTIRE
      AGREEMENT:  This
      Agreement contains the final and entire agreement between the parties
      hereto and each shall not be bound by any terms, conditions, statements,
      warranties or representations, oral or written, not contained herein. All
      understandings and agreements heretofore made between the parties are
      merged in this Agreement, which alone fully and completely expresses the
      agreement of the parties and which may not be changed, modified or
      terminated except by a written instrument signed by the parties or their
      respective counsel.

            


    

     

    
      	
              11.

            	
              CHOICE
      OF LAW:  This
      Agreement shall be interpreted in accordance with the laws and enforced in
      the Courts of the State of New Jersey without regard to principles of
      conflicts of laws. Any disputes shall be litigated in the Superior Court
      of New Jersey, Bergen County.

            


    

     

    
      	
              12.

            	
              COUNTERPARTS:  This
      Agreement may be executed in any number of counterparts,
      each of which counterparts shall be deemed to be an original and all of
      which counterparts shall constitute the same Agreement, at such time as
      each party shall have executed and delivered to the other at least one (1)
      copy of this Agreement.

            


    

     

    
      	
              13.

            	
              BINDING
      EFFECT:  This
      Agreement shall be binding upon and shall inure to the benefit of Owner
      and Agent and their respective successors and permitted
      assigns.

            


    

     

    
      	
              14.

            	
              NOTICES:  All
      notices, requests, consents and other communications hereunder shall be in
      writing and shall be either: (i) mailed in a United States Post Office
      depository by certified mail, return receipt requested, postage prepaid;
      or (ii) delivered by an overnight courier delivery service, with a receipt
      provided therefore and charges prepaid, addressed to the parties at the
      address set forth above and notices shall be deemed given on the date of
      receipt or refusal.

            


    

     

    
      	
              15.

            	
              PREPARATION
      OF AGREEMENT.  This
      Agreement shall not be construed more strongly against either party
      regardless of who is responsible for its
  preparation.

            


    

     

    [signature
lines appear on following page]

     


    
      
         


      

      
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    In
witness whereof, the parties have executed this Agreement as of the date set
forth above.

     

    
      	
              OWNER:

            	 
      	
              AGENT:

            
	
               

              GRANDE
      ROTUNDA, LLC

               

            	 
      	 
      
	
                   By:  FIRST
      REAL ESTATE INVESTMENT TRUST OF NEW JERSEY, Managing
Member

            	 
      	
              HEKEMIAN
      DEVELOPMENT RESOURCES, LLC

            
	 
      	 
      	 
      
	
                       
         By: /s/ Donald
      Barney                       
          
                                                  

            	 
      	
              By:
      /s/ Bryan
      Hekemian                                                                                                                      

            
	
                             
          Donald Barney, President

            	 
      	
                     Bryan
      Hekemian, Managing Member

            


    

    


     

    


     

    


     

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