Joint Appendix — Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council

Supreme Court brief1988

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Text

No. 86-1461

)

Iu The

Supreme Court of the United S

October Term, 1986

THE EDWARD J. DEBARTOLO CORP.,

Petitwner,

FLORIDA GULF COAST BUILDING AND

CONSTRUCTION TRADES COUNCIL,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JOINT APPENDIX

Lawrence M. C omen Crances Frito Laurence Goto

Martrew K. Dens Solicitor General 815 16th St., N.W.

Fox Ano Grove, Cxarrerzo Department of Wash., D.C. 20006

233 South Wacker Drive mg P (202) 637-5390

Sears Tower—Suite 7818 , D.C. 20530 Attorney for the

Mlincie 60606 anderen Plorde Gulf Coast

Attorneys for ‘he Genera! Counsel! Construction Trades

Eowaro J. DeBarrow Nationa) Labor Council

Core Relations Board

Wash., D.C. 20570

Attorneys for the

National Labor

Relations Roard

PETITION FOR CERTIORARI FILED MARCH 11, 1987

CERTIORARI GRANTED JUNE 8, 1987

Pandick Technologies, Inc., Chicago @ (312) 236-0200

Page

Chronological List of Relevant Docket Entries...... 1A

Charge Against Labor Organization ............. 3A

Complaint and Notice of Hearing................ 6A

PR CREOEON Se oeseoseceesédcoenssectéooes 17A

Ce 19A

Joint Exhibit 1 - Sample Standard Lease

re 28A

Joint Exhibit 2- Lease By and Between Eastlake

Square Associates and HJ. Wilson

Dit ede seasececocenees 65A

Joint Exhibit 3- The Handbill................ 4A

Joint Exhibit 5- Plot Plan....... ........... 86A

Joint Exhibit 6 — Letter dated December 20, 1979.. 87A

The following opinions, decisions, judgments, and

orders have been omitted in printing this joint appen-

dix because they appear on the following pages in the

appendix to the printed Petition for Certiorari :

Opinion Below of the United States Court of Appeals

for the Elewenth Circuit ..............0eceeees 1A

Opinion Below of the Nationa! Labor Relations

TTT? CTT TTT TTT TTT 38A

Judgment of the United States Court of Appeals for

PE, cccceeo bess coesscoeseseses 47A

Pn ~ ocsasecuebecaseocceces 49A

Order Extending Time To File Petition For Writ Of

ER ee es 51A

CHRONOLOGICAL LIST OF RELEVANT

DOCKET ENTRIES

December 17,1979 Charge, filed

February 4, 1980 Complaint and Notice of Hearing,

dated

February 4, 1980 Union’s Answer, dated

February 7, 1980 Regional Director’s Order Setting

Date, Time and Place of Hearing,

dated

March 20, 1980 Regional! Director’s Order Reschedul-

ing Hearing, dated

April 2, 1980 Stipulation of Facts entered into by

the Parties, dated

May 22, 1980 Board’s Order Approving Stipula-

tion and Transferring Proceeding

to the Board, dated

September 30,1980 Decision and Order issued by the

National Labor Relations Board

October 7, 1980 Board’s Order Correcting Decision

and Order, dated

October 20, 1981 Decision of the United States Court

of Appeals for the Fourth Circuit,

dated

January 26, 1982 Order of the the United States

Court of Appeals for the Fourth

Circuit denying rehearing en banc,

filed

April 23, 1982 Petition for Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit, filed

June 28, 1982

October 12, 1982

June 24, 1983

January 15, 1985

March 18, 1985

August 11, 1986

November 12, 1986

November 24, 1986

January 28, 1987

March 11, 1987

June 8, 1987

United States Supreme Court

Order requesting Supplemental

Memoranda regarding the question

of mootness, dated

Petition for a Writ of Certiorari

granted

Decision of the United States

Supreme Court, dated

Supplemental Decision and Order

of the National Labor Relations

Board, filed

Petition for Review of Board’s

Order to the United States Court

of Appeals for the Eleventh Circuit,

filed

Decision of the United States Court

of Appeals for the Eleventh Circuit,

dated

Order of the the United States

Court of Appeals for the Eleventh

Circuit denying rehearing en banc,

filed

Judgment of the the United States

Court of Appeals for the Eleventh

Circuit, issued

Order of the United States

Supreme Court extending time to

file Petition for Writ of Certiorari

Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit, filed

Petition for a Writ of Certiorari

granted

UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

CHARGE AGAINST LABOR ORGANIZATION

OR ITS AGENTS

INSTRUCTIONS: File an original and 3 copies of this

charge and an additional copy for each organization, each

local and each individual named in item 1 with the NLRB

director for the region in which the alleged unfair

labor practice occurred or is occurring.

Do Not Write in This Space

Case No. 12-CC-1062

Date Filed 12/17/79

1. LABOR ORGANIZATION OR ITS AGENTS

AGAINST WHICH CHARGE IS BROUGHT

-a. Name Florida Gulf Coast Building Trades Coun-

cil, AFL-CIO

b. Union Representative to Contact J. G. Cain

c. Phone No. 621-6451 224-0174

d. Address (Street, city, State and ZIP code) 3505

Central Avenue Tampa, Florida 33603

e. The above-named organization(s) or its agents has

(have) engaged in and is (are) engaging in unfair labor

practices within the meaning of section 8(b), subsection (s)

(4) (i) (ii) (B) of the National Labor Relations Act, and

these unfair labor practices are unfair labor practices af-

fecting commerce within the meaning of the Act.

9. Basis of the Charge (Be specific as to facts, names,

addresses, plants involved, dates, places, etc.) Since on or

about December 13, 1979, and continuing to date, the above-

named labor organization has engaged in, or induced or en-

couraged any individual employed by any person engaged

in commerce or in an industry affecting commerce to en-

gage in, a strike or refusal in the course of his employ-

ment to use, manufacture, process, transport, or otherwise

handle or work on any goods, articles, materials, or com-

modities, or to perform any services; and it has threatened,

coerced, or restrained, persons engaged in commerce or in

an industry affecting commerce, where in either case,

an object was to force or require any person to cease us-

ing, selling, handling, transporting, or otherwise dealing

in the products of any other producer, processer, or manu-

facturer, or to cease doing business with any other person.

3. Name of Employer The Edward J. DeBartolo

Corp.

4 Phone No. 621-7575

5. Location of Plant Involved (Street, city, State and

ZIP code) 5701 East Hillsborough Avenue, Tampa, Flor-

ida 33610

6. Employer Representative to Contact Harold E.

Skipper

7. Type of Establishment (Factory, mine, wholesaler,

etc.) Shopping Mall

8. Identify Principal Product or Service Shopping

Mall

9. No.of Workers Employed 25

10. Full Name of Party Filing Charge The Edward

J. DeBartolo Corp.

11. Address of Party Filing Charge (Street, city, State

and ZIP code) 5701 East Hillsborough Avenue, Tampa,

Florida 33610

12. Telephone No. 621-7575

13. DECLARATION

I declare that I have read the above charge and that

the statements therein are true to the best of my know!l-

edge and belief.

By /s/ Mark E. Levitt

(Signature of representative or person

making charge)

Mark E. Levitt

Hogg, Allen, Ryce, Norton & Blue

First Florida Tower

Suite 2712

Tampa, Florida 33602

Address

Attorney

(Title or office, if any)

229-1341

(Telephone number)

12/17/79

(Date)

Willfully False Statements on This Charge Can Be

Punished by Fine and Imprisonment (U.S. Code,

Title 18, Section 1601)

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

REGION 12

Case 12-CC-1062

FLORIDA GULF COAST BUILDING TRADES

COUNCIL, AFL-CIO

and

THE EDWARD J. DeBARTOLO CORP.

COMPLAINT AND NOTICE OF HEARING

(Dated February 4, 1980)

It having been charged by The Edward J. DeBartolo

Corp. (herein called DeBartolo), that Florida Gulf Coast

Building Trades Council (herein called Respondent) has

been engaging in and is engaging in certain unfair labor

practices affecting commerce as set forth and defined in

the National Labor Relations Act, as amended, 29 U.S.C.

Sec. 151, et seq. (herein called the Act), the General Coun-

sel of the National Labor Relations Board (herein called

the Board), on behalf of the. Roard, by the undersigned

Regional Director for Region 12, pursuant to Section 10(b)

of the Act, and Section 102.15 of the Board’s Rules and

Regulations, Series 8, as amended, hereby issues this Com-

plaint and Notice of Hearing and alleges as follows:

The charge was filed by DeBartolo on December 17,

1979, and a copy thereof was duly served upon Respondent

by registered mail on or about the same date.

(a) DeBartolo is an Ohio corporation with an office and

place of business located in Tampa, Florida, where it is

engaged in the leasing of space and management of shopping

center malls, including East Lake Square Mall, located

Tampa, Florida.

(b) During the past 12 months, a representative period of

ume, DeBartolo derived in excess of $100,000 gross revenue, of

which in excess of $25,000 was derived from Employers, which

im turn meet other than a solely indirect standard for asseruon

of the Board’s jumsdicton.

herein, an Employer engaged in commerce within the meaning

of Section 2(6) and (7) of the Act.

(a) H. J. High Construction Company (herein High) is a

Florida corporation with an office and place of business located

in Orlando, Florida, where it is engaged as a genera! contractor

in the building and construction industry at jobsites throughout

the State of Florida.

(b) During the past 12 months, a representative period of

tume, High has performed services at its Flonda construction

sites, valued in excess of $50,000 for various Employers,

including Wilson's, which in turn meet a direct jumsdictional

standard of the Board.

an Employer engaged in commerce within the meaning of

Section 2(6) and (7) of the Act.

(a) H. J. Wilson Co., Inc. (herein Wilson's) is a Louits-

iama corporation with an office and place of business

located in Tampa, Florida, where it is engaged in the busi-

ness of operating retail department stores.

(b) During the past 12 months, a representative pe-

riod of time, Wilson’s hes received revenues in excess of

$500,000, and in addition has received at its Tampa, Florida

facilities, goods valued in excess of $5,000 shipped to it

directly from points located outside the State of Florida.

terial herein, an Employer engaged in commerce within

the meaning of Section 2(6) and (7) of the Act.

Respondent is, and has been at all times material here-

in, a labor organization within the meaning of Section 2(5)

of the Act.

At all times material herein, the tenant Employers

of East Lake Square Mall, and each of them, have been and

are now, persons engaged in commerce or in an industry

affecting commerce, within the meaning of Section 8(b) (4)

of the Act.

(a) At all times material herein, and specifically

since on or about December 13, 1979, Respondent has had

a primary labor dispute with High involving the pay-

ment to its employees of alleged substandard wages and

fringe benefits, in its construction of a retail store for

Wilson's in East Lake Square Mall.

(b) At no time material herein has Respondent had

any primary labor dispute with DeBartolo, Wilson’s or

the tenant Employers of East Lake Square Mal].

(a) Between the approximate dates of December 13,

1979 and January 4, 1980, Respondent, in furtherance of its

primary labor dispute with High as described in paragraph

7, subparagraph (a) above, has threatened, coerced or re-

strained, and is threatening, coercing or restraining, various

tenant Employers who are engaged in business at East

Lake Square Mall, and who lease space from DeBartolo in

East Lake Square Mall, by handbilling the general public

not to do business with the above-described tenant Em-

ployers because High allegedly pays substandard wages

and fringe benefits to its employees constructing a retail

store for Wilson's in East Lake Square Mall.

(b) An object of the acts and conduct of Pespondent

set forth in paragraph 8, subparagraph (a) above, was and

is, to force or require the aforesaid tenant Employers in

East Lake Square Mall, and other persons engaged in

commerce or an industry affecting commerce, to cease us-

ing, handling, transporting, or otherwise dealing in prod-

ucts and/or services of, and to cease doing business with

DeBartolo, in order to force DeBartolo and/or Wilson's not

to do business with High.

By the acts and conduct set forth in subparagraph

8(a) above, and by each of said acts, and for the object set

forth in subparagraph 8(b) above, Respondent did engage

in unfair labor practices in violation of Section 8(b) (4)

(ii) (B) and Section 2(6) and (7) of the Act.

10.

The acts of Respondent described in paragraph 8 above,

occurring in connection with the operations of the Em-

The acts of Respondent described above constitute

unfair labor practices affecting commerce within the mean-

ing of Section 8(b) (4) (ii) (B) and Section 2(6) and (7) of

the Act.

PLEASE TAKE NOTICE that on a date and time and

place to be later designated, a hearing will be conducted

before a duly designated Administrative Law Judge of the

National Labor Relations Board on the allegations set forth

in the above complaint, at which time and place you will

have the right to appear in person, or otherwise, and give

testimony. Form NLRB 4668, Summary of Standard Pro-

cedures in Formal Hearings Held Before the National Labor

Relations Board in Unfair Labor Practice Proceedings is

attached.

You are further notified that, pursuant to Section

102.20 and 102.21 of the Board’s Rules and Regulations,

Respondent shall file with the undersigned Regional Di-

rector, an original and four copies of an answer to said

complaint within 10 days from the service thereof, and

that unless it does so, all of the allegations of the com-

plaint shall be deemed to be admitted to be true and may

be so found by the Board. Respondent shall immediately

serve a copy of the answer, as required by the above sec-

tions of the Rules on each of the other parties.

DATED AT Tampa, Florida, this 4th day of February

1980.

/s/ Harold A. Boire

Harold A. Boire

Regional Director

National Labor Relations Board

Region 12

706 Federal Building

500 Zack Street

P. O. Box 3322

Tampa, Florida 33601

(SEAL)

SUMMARY OF STANDARD PROCEDURES IN FORMAL

HEARINGS HELD BEFORE THE NATIONAL LABOR

RELATIONS BOARD IN UNFAIR LABOR PRACTICE

PROCEEDINGS PURSUANT TO SECTION 10 OF THE

NATIONAL LABOR RELATIONS ACT, AS AMENDED

The hearing will be conducted by an Administrative

Law Judge of the National Labor Relations Board who will

preside at the hearing as an independent, impartial trier

of the facts and the law whose decision in due time will

be served on the parties. The offices of the Administra-

tive Law Judges are located in Washington, D. C., and San

Francisco, California.

At the date, hour, and place for which the hearing is

set, the Administrative Law Judge, upon the joint request

of the parties, will conduct a “prehearing” conference, prior

to or shortly after the opening of the hearing, to assure

that the issues are sharp and clearcut; or the Administra-

tive Law Judge may independently conduct such a con-

ference. The Administrative Law Judge will preside at

such conference, but may, if the occasion arises, permit

l2a

the parties to engage in private discussions. The con-

ference will not necessarily be recorded, but it may weil

be that the labors of the conference will be evinced in the

ultimate record, for example, in the form of statements of

position, stipulations, and concessions. Except under un-

usual circumstances, the Administrative Law Judge con-

ducting the prehearing conference wil] be the one who

will conduct the hearing; and it is expected that the formal

hearing will commence or be resumed immediately upon

completion of the prehearing conference. No prejudice

will result to any party unwilling to participate in or make

stipulations or concessions during any prehearing con-

ference.

(This is not to be construed as preventing the parties

from meeting earlier for similar purposes. To the contrary,

the parties are encouraged to meet prior to the time set for

hearing in an effort to narrow the issues.)

Parties may be represented by an attorney or other

representative and present evidence relevant to the issues.

An official reporter will make the only official transcript

of the proceedings, and all citations in briefs and argu-

ments must refer to the official record. The Board will

not certify any transcript other than the official transcript

for use in any court litigation. Proposed corrections of the

transcript should be submitted, either by way of stipula-

tion or motion, 2o the Administrative Law Judge for ap-

proval.

All matter that is spoken in the hearing room while

the hearing is in session will be recorded by the official

reporter unless the Administrative Law Judge specifically

directs off-the-record discussion. In the event that any

party wishes to make off-the-record statements, a request

to go off the record should be directed to the Administra-

tive Law Judge and not to the official reporter.

All exhibits offered in evidence shal] be in duplicate.

Copies of exhibits should be supplied to the Administrative

Law Judge and other parties at the time the exhibits are

offered in evidence. If a copy of any exhibit is not avail-

able at the time the original is received, it will be the

responsibility of the party offering such exhibit to submit

the copy to the Administrative Law Judge before the close

of hearing. In the event such copy is not submitted, and

the filing thereof has not for good reason shown been

waived by the Administrative Law Judge, any ruling re-

ceiving the exhibit may be rescinded and the exhibit

Judge who will fix the time for such filing.

Attention of the parties is called to the following re-

quirements laid down in Section 102.42 of the Board's Rules

and Regulations, Series 8, as amended, with respect to the

office of Administrative Law Judges, the Deputy Chief

charge of

Administrative Law Judge in such office) at

least 3 days prior to the expiration of time fixed for the

submission of such documents. Notice of request for such

extension of time must be served simultaneously on all

other parties, and proof of such service furnished to the

Chief Administrative Law Judge or Deputy Chief Ad-

ministrative Law Judge, as the case may be. All briefs

or proposed findings filed with the Administrative Law

Judge must be submitted in triplicate, and may be in

and will cause a copy thereof to be served on each of the

parties. Upon filing of this decision, the Board will enter

an order transferring this case to itself, and will serve

copies of that order, setting forth the date of such transfer,

om all parties. At that point, the Administrative Law

Judge's official connection with the case wil] cease

The procedure to be followed before the Board from

that point forward, with respect to the filing of exceptions

to the Administrative Law Judge's decision, the submission

of supporting briefs, requests for oral argument before the

Board, and related matters, is set forth in the Board's Rules

and Regulations, particularly in Section 102.46 and fol-

15a

lowing sections. A summary of the more pertinent of these

provisions will be served on the parties together with the

order transferring the case to the Board.

Adjustments or settlements consistent with the policies

of the Act reduce government expenditures and promote

amity in labor relations. If adjustment appears possible,

the Administrative Law Judge may suggest discussions be-

tween the parties or, upon request, will afford reasonable

opportunity during the hearing for such discussions.

NATIONAL LABOR RELATIONS BOARD

NOTICE

Case No. 12-CC-1062

The issuance of thé notice of formal hearing in this

case does not mean that the matter cannot be disposed of

by agreement of the parties. On the contrary, it is the

policy of this office to encourage voluntary adjustments.

The examiner or attorney assigned to the case will be

pleased to receive and to act promptly upon your sug-

gestions or comments to this end. An agreement between

the parties, approved by the Regional Director, would serve

to cancel the hearing.

However, unless otherwise specifically ordered, the

hearing will be held at the date, hour, and place indicated.

Postponements will not be granted unless good and suf-

ficient grounds are shown and the following requirements

are met:

(1) The request must be in writing. An original and

two copies must be served on the Regional Di-

rector;

(2) Grounds therefor must be set forth in detail;

l6a

(3) Alternative dates for any rescheduled hearing must

be given;

(4) The positions of all other parties must be ascer-

tained in advance by the requesting party and set

forth in the request; and

(5) Copies must be simultaneously served on all other

parties (listed below), and that fact must be noted

on the request.

Except under the most extreme conditions, no request

for postponement will be granted during the three days

immediately preceding the date of hearing.

Florida Gulf Coast Building

Trades Council, AFL-CIO

3505 Central Avenue

Tampa, FL 33603

Mark F. Kelly, Esquire

341 Plant Avenue

Tampa, Florida 33606

The Edward J. DeBartolo Corp.

5701 East Hillsborough Ave.

Tampa, Florida 33610

Mark E. Levitt, Esquire

Hogg, Allen, Ryce, Norton & Blue

First Florida Tower, Suite 2712

Tampa, Florida 33602

ce: Marc Jelovchan

Atlanta Reporting Service

P. O. Box 33

Neptune Beach, FL 32233

17a

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

REGION 12

Case No. 12-CC-1062

FLORIDA GULF COAST BUILDING

TRADES COUNCIL, AFL-CIO,

Respondent,

and

THE EDWARD J. DrEBARTOLO CORP.,

| Employer.

ANSWER

(Dated February 4, 1980)

The Florida Gulf Coast Building Trades Council, AFL-

CIO, the Respondent in the above-styled matter, answers

the complaint pursuant to §102.20 of the Board’s Rules

and Regulations:

The Respondent admits the allegations contained with-

in the paragraphs of the complaint numbered 1, 2(a),

2(b), 2(c), 3(a), 3(b), 3(c), 4(a), 4(b), 4(c), 5, amd 7(a).

The Respondent is without knowledge as to the alle-

gations contained within the paragraph of the complaint

numbered 6, with the exception that the Respondent admits

that various premises located at Eastlake Square Mall are

occupied by tenants but the Respondent is without knowl-

edge as to whether such tenants are employers within

18a

the meaning of §2(2) of the Act and it is without knowl-

edge as to whether such tenants are persons engaged in

commerce or in an industry affecting commerce within

the meaning of §§ 2(6) and 2(7) of the Act.

The Respondent denies the allegations contained with-

in the paragraphs of the complaint numbered 7(b), 8(a),

8(b), 9, 10, and 11.

/s/ Richard H. Frank

Richard H. Frank,

Law Offices of Frank, Chamblee

& Kelly, PA.

341 Plant Avenue

Tampa, Florida 33606

(813) 251-0555

Attorneys for Respondent

(Certificate of Service Omitted in Printing)

19a

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

REGION 12

Case 12-CC-1062

FLORIDA GULF COAST BUILDING

TRADES COUNCIL, AFL-CIO

and

THE EDWARD J. DgEBARTOLO CORPORATION

STIPULATION OF FACTS

(Dated April 2, 1980)

Comes now Florida Gulf Coast Building Trades Coun-

cil, AFL-CIO, Respondent; The Edward J. DeBartolo Cor-

poration, the Charging Party; and Counsel for the General

Counsel, being all the parties to this proceeding, and hereby

petition the Board, in order to effectuate the purposes

of the Act and to avoid unnecessary costs and delay, to

exercise its powers under Section 102.50 of the Rules and

Regulations of the National Labor Relations Board, Series

8, as amended, to transfer to and continue this proceeding

before the Board and to accept this Stipulation of Facts.

The parties agree that the charge, complaint, answer,

the instant “Stipulation of Facts”, and Exhibits attached

thereto, constitute the entire record in the case, and that

no oral testimony is necessary or desired by any of the

parties. The parties further stipulate that they waive

a hearing before an Administrative Law Judge, the mak-

ing of findings of facts and conclusions of law by an

20a

Administrative Law Judge and the issuance of an Adminis-

trative Law Judge's Decision, and desire to submit this case for

findings of facts, conclusions of law, and a Decision and Order

directly by the Board. The parties do not waive any rights to

which they may be entitled after the issuance of Decision and

Order of the Board.

In the event the Board accepts this Supulation of Facts and

transfers this proceeding to the Board, the partes request that

the Board set a reasonable period of time for filing of briefs

and/or proposed findings of fact and conclusions of law.

The instant charge was filed on December 17, 1979, by the

Edward J. DeBartolo Corporation (herein DeBartolo), and a

copy thereof was duly served upon Respondent Flonda Gulf

Coast Building Trades Council ( herein the Union) on or about

the same date.

DeBartolo is an Ohio corporation with an office and place

of business located in Tampa. Florida, where it is engaged in

the leasing of space and management of shopping center malls,

including East Lake Square Mall, located in Tampa. Flonda.

DeBartolo has nothing to do with the operation or management

of any of the retail stores in the Mall, including Wilson's and

Belk’s, apart from those matters set forth in the applicable

lease, property management or maintenance agreements. Dur-

ing the past twelve months, a representative period of time.

DeBartolo derived in excess of $100,000 gross revenue, of

which in excess of $25,000 was derived from Employ-

2la

ers, which in turn meet other than a solely indirect standard for

asseruon of the Board's junsdicuon. DeBartolo is now, and has

been at all times material herein, an employer engaged in

commerce within the meaning of Section 2(6) and (7) of the

Act

H. J. Wilson Co., Inc. (herein Wilson's) is a Louisiana

corporation with an office and place cf business located in

Tampa, Florida, where it is engaged in the business of oper-

a representative period of ume, Wilson's has received im excess

of $500,000 in revenues, and in addition has received at its

Tampa, Florida, facilities goods valued in excess of $5,000

shipped to it directly from points located outside the State of

Florida. Wilson's is now, and has been at all umes matenal

herein, an employer engaged in commerce within the meaning

of Section 2(6) and (7) of the Act.

Belk Lindsey of Tampa, Inc. (herein Belk’s) is a Flonda

corporation with an office and a place of business located in

Tampe, Florida, where it is engaged im the business of oper-

a representative penod of ume, Belk’s has received in excess of

$500,000 in revenues, and in addition has received at its

Tampa. Flonda facilities, goods valued in excess of $50,000

shipped to it directly from points located outside the State of

Florida. Belk’s is now, and has been at all umes maternal

here:n, an employer engaged in commerce within the meaning

of Section 2(6) and (7) of the Act.

22a

H. J. High Construction Company (herein High) is

a Florida corporation with an office and place of business

located in Orlando, Florida, where it is engaged as a gen-

eral contractor in the building and construction industry

at jobsites throughout the State of Florida. During the

past twelve months, a representative period of time, High

has performed services at its Florida jobsites, valued in

excess of $50,000 for various employers, including Wilson’s,

which in turn meet a direct jurisdictional standard of

the Board. High is now, and has been at all times mate-

rial herein, an employer engaged in commerce within the

meaning of Section 2(6) and (7) of the Act.

Respondent Union is, and has been at all times mate-

rial herein, a labor organization within the meaning of

Section 2(5) of the Act.

At all times material herein, East Lake Square Mall,

located in Tampa, Florida, has been an cperating shopping

center mall, owned and operated by DeBartolo through

its subsidiary, Eastlake Square Associates. At no time

germane to this Complaint has DeBartolo operated a retail

store at East Lake Square Mall, nor does DeBartolo own

any of the property on which the Belk’s is located. East

Lake Square Mall has approximately 85 tenant employers

which, at all times material herein, have leased space

in which to operate their respective stores from DeBartolo.

At all times material herein, said tenant employers have

been, and are now, perrons engaged in commerce or in

an industry affecting commerce, within the meaning of

Section 8(b)(4) of the Act. Wilson's is a tenant of

as well as working conditions and other matters dealing

with labor relations. Copy of a sample standard lease

agreement is attached as Joint Exhibit 1.

Square Mall. Pursuant to the terms of the lease, Wilson's

Wilson’s has contracted with High, a general contractor,

to build its department store. High has empicyed its own

emplo; ees, as well as contracted with various sub-contrac-

tors to build Wilson’s Department Store. High is not

a tenant of DeBartolo, does not engage in the operation

of retail stores and does not have a contract to lease

or purchase any property in or adjacent to the East Lake

Square Mall. Apart from any provisions contained in

Joint Exhibit 2, neither DeBartolo, nor any tenant, nor

Belk’s had or has anything to do with the selection of

High by Wilson’s or of Sub-contractors by High, nor do

they or any of them in any way control, dictate or sug-

gest the wages, hours or working conditions paid by High

11.

At no time germane to this Complaint has Wilson's

operated a retail store at East Lake Square Mall.

12.

Neither DeBartolo, nor any tenant other than Wilson's,

nor Belk’s, has any contract or business relationship of

any type with High. No tenant nor Belk’s has any con-

tract or business relationship with Wilson's.

Between the dates of December 13, 1979, and January

4, 1980, Respondent Union handbilled at the entrances to

East Lake Square Mall (copy of handbill attached as Joint

Exhibit 3). The handbilling ceased only because of an

Order of the Circuit Court of the 13th Judicial Circuit.

Hillsborough County, Florida, enjoining such activity [copy

of Order attached as Joint Exhibit 4).

15.

Joint Exhibit 5 is a plot plan of East Lake Square Mall.

The handbilling took place at all four entrances to the

25a

Mall which are identified by the letter “X” on Joint Ex-

hibit 5. The four entrances are all located on the private

property of DeBartolo but are utilized as means of ingress

and egress to the retail stores located in the Mail.

16.

On December 20, 1979, Charging Party, by and through

its attorney, sent a letter to Mark F. Kelly, attorney for

Respondent, relating to Respondent’s handbilling activity.

[A copy of said letter is attached hereto as Joint Exhibit

6.] Respondent received this letter in due course. There-

after, Respondent refused to agree to alter its activity in

accordance therewith and continued to handbill in the

same fashion as it had done since December 13, 1979.

17.

If it were not for the fact that High was and is per-

forming construction work on the Wilson's store, Respon-

dent would have no dipute with DeBartolo, Belk’s or any

tenant in the Mall and would have no cause to handbill

at East Lake Square Mal).

18.

At all times material herein Belk’s has maintained

and operated a retail establishment within Hillsborough

County, Florida, which is more particularly located at East

Lake Square Mall. That retail establishment is located

on land which Belk’s owns. That land is comprised of

approximately 10.72 acres of property within a larger par-

cel of property o.herwise known as East Lake Square Mall.

The property owned by Belk’s includes the land upon

which the store structure stands and the adjacent side-

walks and parking area.

DeBartolo is that Belk’s pays DeBartolo for maintenance

store with DeBartolo. Belk’s pays no money or thing of

re-

lationship with any of them, except as provided in any

ously distributed at the mal] entrances. The handbilling

by the O's on plot plan, attached as Joint Exhibit 5). The

handbilling ceased only because of an Order of the Circuit

Court of the Thirteenth Judicial Circuit, Hillsborough

County, Florida, enjoining such activity [copy of said Order

attached as Joint Exhibit 7).

27a

Neither DeBartolo, Belk’s nor any tenant has the abil-

ity to remove High as the general contractor on the con-

struction project of the Wilson's store at East Lake Square

Mall.

The parties stipulate that the sole issue to be decided

by the Board in this case is whether or not Respondent

Union violated Section 8(b)(4)(B) of the Act by en-

gaging in the handbilling activity detailed above.

This stipulation is made without prejudice to any ob-

jection that any party may have as to the materiality or

relevance of any fact stated herein.

Counsel for the General Counsel moves to amend the

Complaint to conform to the facts recited above.

Florida Gulf Coast Building Trades

Council, AFL-CIO

Dated: 4/2/80 By: /s/ Richard H. Frank

Attorney for Florida Gulf Coast

Building Trades Council, AFL-

CIO, Respondent

The Edward J. DeBartolo Corpora-

tion

Dated: 4/2/80 By: /s/ Mark E. Levitt

Attorney for the Edward J. De-

Bartolo Corporation, Charging

Party

The General Counsel

Dated: 4/2/80 By: /s/ Steven L. Sommers

Counsel for the General Counsel

G2352586 wxas SS<28e 74

poe BEER

pS EEEEEES

29a

ARTICLE Il] —Minimum Rent

Lessee shall pay to Lessor as Minimum Rent for the

Demised Premises the sum of

Dollars ($ ___) per annum in equal monthly installments

of — Dollars ($___.) each,

all in advance, on the first day of every calendar month during

the term hereof. If the term of this Lease shall commence on a

day other than the first day of the month, Lessee shall pay

Minimum Rent equal to one-thirtieth (1/30th) of the monthly

Minimum Rent multiplied by the number of rental days of such

fractional month. In the event any installment of Minimum

Rent or other charges accruing under the Lease shall become

overdue, a “Late Charge” of five cents (5¢) per each dollar so

overdue may be charged by Lessor for the purpose of defraying

the expense incident to handling such delinquent payment.

If the Shopping Center shall at any time during the term of

this Lease, contain in excess of department stores,

the Minimum Rent herein provided for shall automaucally be

increased ten percent ( 10%) upon the date each additional!

department store in excess of 60,000 square feet opens for

business.

ARTICLE IV —Percentage Rent

1. In addition to the payment of Minimum Rent, Lessee

shall pay to Lessor for each Lease Year of the term hereof as

Percentage Rent, an amount, if any, equal to ____ percent

(—_.%) of Adjusted Gross Sales made at. im, on or from the

Demuised Premises during such Lease Year in excess of

(hereinafter referred to as “Percentage Break

Point”). In the event of a Partial Lease Year, the Percentage

Rent will be an amount, if any, equal to ____ percent (____)

of Adjusted Gross Sales made at, in. on or from the Demised

Premises during such Partial Lease Year in excess of the

3la

Percentage Break Point which shall be proportionately reduced

based upon the period of time contained in such Partial Lease

Year. The Percentage Break Point for such Partial Lease Year

shall be determined by multiplying the Percentage Break Point

for the first lease Year by a fraction the numerator of which

shall be the number of days contained in such Partial Lease

Year and the denominator of which shall be 365 days.

2. “Adjusted Gross Sales”, as used herein, shal] mean the

amount of gross sales, income, receipts, revenues and charges

of, in connection with and for all merchandise, services or other

operauons or businesses sold or rendered at, in, on or from the

Demised Premises by Lessee or any subtenants, licensees or

concessionaires, whether for cash or on a charge, credit or time

basis, without reserve or deduction for inability or failure to

collect, including, but not limited to, such sales and services (a)

where orders originate and/or are accepted by Lessee in the

Demised Premises but delivery or performance thereof is made

from or at any place other than the Demised Premises; (b)

pursuant to mail, telegraph, telephone or other similar orders

received or filled at or in the Demised Premises; (c) by means

of mechanical and other vending machines in the Demised

Premises; (d) which Lessee in the normal and customary

course of business would credit or attribute to its business upon

the Demised Premises or any part or parts thereof, adjusted by

the deduction, if onginally included in gross sales or exclusion,

as the case may be, from gross sales of the following, provided

that separate records are maintained for such deductions or

exclusions: (a) amounts of refunds, allowances made on

merchandise claimed to be defective or unsatisfactory or dis-

counts to customers. provided that if such refunds, allowances

or discounts are in the form of credits to customer, such credits

shall be included in gross sales when used; (b) exchanges of

merchandise between stores of Lessee where such exchanges

are made solely for the operation of Lessee's business and not

for the purposes of consummating a sale which has been made

32a

at, in, on or from the Demised Premises and/or for the purpose

of depriving Lessor of the benefit of such sale which otherwise

would have been made at, in, on or from the Demised

Premises; (c) returns to shippers and manufacturers for credit;

(d) sale of trade fixtures or store operating equipment after use

thereof in the conduct of Lessee’s business in the Demised

Premises; (¢) all sums and credits received in settlement of

claims for loss or damage to merchandise; and (f) amount of

any excise or sales tax levied upon retail sales and payable over

to the appropnate governmental authority provided that speci-

fic record is made at the time of each sale of the amount of sales

tax, and the amount thereof is expressly charged to the

customer.

3. Percentage Rent for each Lease Year shall become due

and payable either thirty (30) days after the last day of each

Lease Year or on the |Sth day of the month immediately

following the month during which said Adjusted Gross Sales

exceeds the Percentage Break Point for such Lease Year and

thereafter shall be paid monthly on all additional Adjusted

Gross Sales made during the remainder of such Lease Year,

whichever occurs first. Percentage Rent for a Partial Lease

Year shall become due and payable thirty (30) days after the

last day of such Partial Lease Year. Lessee, or Lessee’s store

manager or designated representauve shall submit to Lessor’s

mall manager at the Shopping Center, on or before the Sth day

of each month of each Lease Year or Partial Lease Year, a

written unaudited statement showing Lessee's gross sales, item-

ized deductions and exclusions for the preceding calendar

month, signed by Lessee, or Lessee’s store manager or desig-

nated representative. In addition to the foregoing, Lessee shal!

submit to Lessor, on or before the 30th day following the end of

each Lease Year and Partial Lease Year, a written audited

statement showing Lessee’s gross sales, itemized deductions and

exclusions for the preceding Lease Year or Partial Lease Year.

signed by Lessee and cerufied under oath to be complete and

ions for the preceding three (3) calendar months, signed by

Lessee and certified under oath to be complete and correct.

Lessor shall not request such statements more than four (4)

times during any Lease Year or Partial Lease Year. If Lessee

shall fail to prepare and deliver any such statement of gross

sales required herein, Lessor, in addition to other nights or

remedies it may have and upon ten (10) days notice to Lessee,

Lessee, and Lessee shall pay on demand all expenses of such

audit and of the preparation of any such statements and all

sums, if any, as may be shown by such audit to be due as

Percentage Rent.

4. Lessee shall keep upon the Demised Premises or at its

pnncipal office, books and records in accordance with generally

accepted accounung pmncipies consistently applied in which

shall be recorded Adjusted Gross Sales for the Demised

Premises. The books and records of account shall also include

al) federal, state and local tax returns and all pertinent orginal

sales records of Lessee relating to Lessee’s sales. Pertinent

onginal sales records shall be separately maintained for the

Demuised Premises and shall include: (a) daily dated cash

senally numbered sales slips; (c) the orginals of all mail orders

at and to the Demised Premises; (d) the onginal records of all

telephone orders at and to the Demised Premises; (¢) settle-

ment report sheets of transactions with subtenants, con-

cessionaires and licensees; (f) the onginal records showing that

OO gA=_— La,

34a

merchandise returned by customers was purchased at the

Demised Premises by such customers; (g) memorandum

receipts or other records of merchandise taken out on approval:

(hb) Lessee’s bank accounts [separate bank account(s) shall be

maintained for receipts from the Demised Premises and no

receipts and/or refunds from any other source shall be depos-

ited in such account(s)}; (i) daily and/or weekly transaction

reports, and (j) such other sales records, if any, which would

normally be examined by an independent accountant pursuant

to accepted auditing standards in performing an audit of

Lessee’s sales. Such books and records shall be open to the

imspection of Lessor and Lessor’s duly authorized agents at all

reasonable umes, dumng business hours, at any ume dunng the

term of this Lease and for a period of at least one (1) year after

the termination of this Lease. If Lessor should make an audit

of Lessee’s records and Lessee’s gross sales statement should be

found to be understated by more than two percent (2%) in any

Lease Year, then Lessee, in addition to paying the Percentage

Rent due, if any, for such understa.ement, shall pay to Lessor

the cost of audit. The cost of such audit shall be determined on

a ume and expense basis and the rate per hour shall not exceed

that charged for similar personnel by a national firm of

independent Cerufied Public Accountants.

5. If Lessee shall fail to pay Percentage Rent in an amount

equal to at least twenty-five percent (25%) of the annual

Minimum Rent payable pursuant to Armicie III of this Lease in

at least one (1) of the first five (5) Lease Years of the term of

this Lease, then Lessor may elect to terminate this Lease by

notice to Lessee given within six (6) months after the end of the

fifth Lease Year and this Lease shail terminate and be null and

void ninety (90) days after delivery of such notice; provided,

however, Lessee may render such notice of termination inoper-

auve if Lessee shall, within thirty ( 30) days after receipt of such

notice, agree in wntng to increase the Minimum Rent payable

for the sixth Lease Year and each Lease Year thereafter to an

35a

amount equal to one hundred twenty-five percent (125%) of

the Minimum Rent payabie for the sixth Lease Year and each

Lease Year thereafter.

ARTICLE Vil—Lessee’s Work and Approval of Lessee’s

Pians and Specifications

1. Promptly after Lessor notifies Lessee that the shell of

the Demised Premises is ready for commencement of Lessee’s

work, Lessee shal] commence and thereafter complete with due

diligence its construction work and imstallanon of fixtures in

accordance with its construction obliganons set forth in Exhibit

“A”. Part Il, “Lessee’s Work Done at Lessee’s Expense”,

annexed hereto and im accordance with its Preliminary Plans

and Specificanons and its Working Plans and Specifications, as

provided for herein. If Lessee shall neglect. fail or refuse to

commence its work as aforesaid and thereafter neglects. fails or

refuses to diligently proceed with and complete its work, then

Lessor, in addiuon to other nghts or remedies it may have and.

after thirty (30) days nouce to Lessee, may (a) complete

Lessee’s work at Lessee’s expense and thereupon commence the

term of this Lease, (b) commence the term of this Lease and all

of Lessee’s payment obligations hereunder, norwithstanding the

incompiletion of Lessee’s work, or (c) declare wus Lease

cancelled and of no further force and effect.

2. Lessee may, but only with the consent of Lessor, enter

the Demuised Premuses for preliminary work pmor to the com-

pletion of Lessor’s work, provided that Lesssee’s work shall be

done in such manner so as not to interfere with the compienon

of Lessor’s work, and provided also that Lessee’s work does not

interfere with any of Lessor’s labor agreements.

3. Lessee shall furnish to Lessor all certificates and

approvals with respect to work done by Lessee or on Lessee’s

behalf that may be required from an authonrty for the issuance

36a

of a certificate of occupancy and Lessor shall have no responsi-

bility or liability whatsoever for any loss or damage to any

fixtures or equipment installed or left in the Demised Premises

and Lessee’s entry on and occupancy of the Demised Premises

Prior to the commencement of this Lease shall be governed by

and subject to all the provisions, covenants and conditions of

this Lease other than those requiring the payment of Minimum

Rent and ower charges, except utility charges.

4. Lessee shall furnish Preliminary Plans and Specifica-

uons incorporating Lessee’s construction obligations under Ex-

hibit “A” for Lessor’s prior approval within fifteen (15) days

after Lessor’s architects provide Lessee with an Outline Plan for

the Demised Premises. Within thirty (30) days after approval

by Lessor of Lessee’s Preliminary Plans and Specifications,

Lessee shall submit Working Plans and Specifications for

Lessor’s review and prior approval. The approval by Lessor of

the Preliminary Plans and Specifications and the Working

Plans and Specifications shall not constitute the assumption of

any liability on the part of Lessor for their compliance or

conformity with applicable building codes and the requirements

of this Lease or for their accuracy, and Lessee shall be solely

responsible for such plans and specifications.

5. Lessee may erect illuminated signs on the interior mall

front of the Demised Premises and shal! maintain said signs in

a good state of repair and save Lessor harmless from any loss,

cost or damage as a result of the erection, maintenance.

existence or removal of the same: and shal! repair any damage

which may have been caused by the erection, existence, mainte-

nance or removal of such signs. All signs shall be in accordance

with Lessor’s Sign Specifications, a copy of which will be

attached to the Outline Plan and shall be approved in writing

by Lessor. Upon vacating the Demised Premises, Lessee shall

remove all signs and repair all damage caused by such removal.

37a

ARTICLE VUlI—Use of Premises

1. Lessee shall operate its business in the Demised

Premises during the term of this Lease under the name

and the Demised Premises shall

be occupied and used for the purpose of

and for no other purpose.

2. Lessee shal] not abandon or leave vacant the Demised

Premises, shail not permit, license, or suffer the occupancy of

any other party in the Demised Premises and shall:

(a) Keep the Demised Premises continuously and

uninterruptediy open for business at least from 10:00 a.m.

to 9:30 p.m. Monday through Saturday and during such

hours on Sunday that at least one (1) department store in

the Shopping Center and fifty percent (50%) of the other

tenants in Lessor’s parcel are open for business, unless

prevented from doing so by strikes, fire, casualty or other

causes beyond Lessee’s control.

(b) Conduct no auction, fire or bankruptcy sales or

similar practice.

Premises nor in any way obstruct the malls or sidewalks

adjacent thereto and store all trash and refuse in appropri-

ate containers within the Demised Premises and attend to

the daily disposal thereof in the manner designated by

Lessor. Lessee shail not burn any trash or rubbish in or

about the Demised Premises or anywhere else within the

confines of the Shopping Center. Lessee shall not operate

a garbage grinder without Lessor’s pnor consent. If Lessor

elects to provide refuse compactor service in the Shopping

Center, Lessee shall use said service exclusively for dis-

38a

posal of all waste. In the event compactor service is not

provided, Lessee shall use a refuse disposal service ap-

proved by Lessor.

(d) Load or unload all merchandise, supplies, fix-

tures, equipment and furniture and cause the collection of

rubbish only through the rear service door or doors of the

Demised Premises. No deliveries of any kind shall be

made through the front entrance.

(e) Keep the Demised Premises in a careful, safe,

clean and proper manner; and not permit any rubbish or

refuse of any nature emanating from the Demised Prem-

ises to accumulate in the mall areas or rear delivery area.

(f) Not solicit business in the Common Areas or

distribute any handbills or other advertising matter in the

Common Areas.

(g) Prevent the Demised Premises from being used in

any way which will injure the reputation of the same or of

the Shopping Center of which it is a part or from being

used in any way which may be a nuisance, annoyance,

inconvenience or damage to the other tenants or occupants

of the Shopping Center, including, without limiting the

generality of the foregoing, the operation of any in-

strument or apparatus or equipment or the carrying on of

any trade or occupation which emits an odor discernible

outside of the Demised Premises and which may be

deemed offensive in the nature or noise by the playing of

any musical instrument or radio or television or the use of a

microphone, loud speaker, electrical equipment or other

equipment which may be heard outside of the Demised

Premises.

(h) Display or affix no sign, advertising, placard,

name, trademark, insignia, decal, advertising matter or any

39a

other item or items on any exterior door, wall or window or

within any display window space in the Demised Premises

or within five (5) feet of the front of the Demised Premises

in the case of an open storefront, or within any entrance to

the Demised Premises. Lessor shall have the right, without

notice to Lessee and without any liability for damage to

the Demised Premises reasonably caused thereby, to re-

move any items displayed or affixed in violation of the

foregoing provisions.

(i) Abide by all reasonable rules and regulations

established by Lessor, from time to time, with respect to

the common areas, facilities, improvements and sidewalks.

3. Upon the commencement of the term of this Lease,

Lessee shall proceed with due dispatch and diligence to open

for business in the Demised Premises and shall thereafter

conunuously, actively and diligently operate its said business on

the whole of the Demised Premises, in a high grade and

reputable manner maintaining in the Demised Premises an

adequate staff of employees and a full and complete stock of

merchandise, during business hours throughout the term of this

Lease unless prevented from so doing by fire, strikes or other

contingencies beyond the control of Lessee. If Lessee fails to

open for business within thirty (30) days after the com-

mencement of the term or fails to thereafter keep the Demised

Premises open each business day during the hours specified

herein, then Lessee shall pay as rent during each day the

Demised Premises are not open or in which such hours are not

maintained an amount equa! to one hundred twenty-five per-

cent (125%) of the Minimum Rent determined on a per diem

basis pursuant to Article III. Said amount shall be in addition

to other charges due under this Lease and shall represent the

agreed liquidated damages to Lessor as the exact amount of

damages to Lessor cannot be ascertained with certainty. The

right to receive such liquidated damages shall be in addition to

all other nghts or remedies Lessor may have.

40a

4. Lessee shall not use, occupy, suffer or permit the

Demised Premises or any part thereof to be used or occupied

for any purpose contrary to law or the rules or regulations of

any public authority or the requirements of amy insurance

underwriters or rating bureaus or in any manner so as to

increase the cost of insurance to Lessor over and above the

normal cost of such insurance for the use above permitted for

the type and location of the building of which the Demised

Premises are a part. Lessee shall, on demand, reimburse Lessor

for all extra premiums caused by Lessee’s use of the Demised

Premises, whether or not Lessor has consented to such use.

Nothing contained herein shall permit a use other than the use

hereinbefore provided. Lessee shall promptly comply with all

present and future laws, regulations or rules of any county,

state, federal and other governmental authority and any bureau

and department thereof, and of the National Board of Fire

Underwriters or any other body exercising similar function

which may be applicable to the Demised Premises, including

the making of any required structural changes thereto. If

Lessee shall install any electrical equipment that overloads the

lines in the Demised Premises, Lessee shall make whatever

changes are necessary to comply with the requirements of the

insurance underwnriters and governmental authorities having

jurisdiction thereover.

ARTICLE IX — Merchants Association

Lessee shall become a member of any Merchants associ-

ation formed by the tenants of the Shopping Center and

approved by Lessor, abide by all rules and regulations estab-

lished by said Merchants Association and maintain such

membership. Lessee shall cooperate in any Merchants Associ-

ation’s Shopping Center wide sales and promotions and adver-

tise annually in at least four (4) Shopping Center wide

Merchants Association newspaper sections or advertisements as

from time to time determined by the Board of Directors of the

- ee ee

4la

Merchants Association. The minimum size of such advertise-

ments shall be either one-eighth (1/8) page in a full-sized

newspaper section, or one-fourth (1/4) of a page of a tabloid

size advertisement. In addition to the foregoing, Lessee shall

pay as its share of the cost of the activities conducted by the

Merchants Association the sum of twenty-five cents (25¢) per

year for each square foot of Floor Area contained in the

Demised Premises, hereinafter referred to as “Merchants Asso-

ciation Payment”, payable in advance in quarter annual in-

stallments, plus a nonrecurring fee of twenty-five cents (25¢)

for each square foot of Floor Area contained in the Demised

Premises as an initial membership fee in such Merchants

Association. Commencing with the second Lease Year (or first

Lease Year in the event of a Partial Lease Year), and each

Lease Year thereafter, the Merchants Association Payment

shall be adjusted upward or downward in the manner set forth

below, but never less than the above amount. The amount of

the Merchants Association Payment for each Lease Year,

commencing with the second Lease Year (or first Lease Year in

the event of a Partial Lease Year), shall be determined as

follows: Using the All Items portion of the “Consumer Price

Index for All Urban Consumers” (1967100), published by

the Bureau of Labor Statistics of the United States Department

of Labor, applicable on the date of this Lease as the denomina-

tor and the index number for the first month of each Lease

Year thereafter as the numerator and multiplying said resulting

fracuon times the above stated Merchants Association Pay-

ment. In the event that the Bureau of Labor Statistics shall

change the base penod, the new index numbers shall be

substituted for the old index numbers in making the above

computation. In the event such Consumer Price Index of the

Bureau of Labor Statistics of the United States Department of

Labor is discontinued, Lessor shall select another index pub-

lished by a department or agency of the United States Govern-

ment to be substituted for the pnor index, with any appropriate

adjustment required because of the predecessor index. This

42a

procedure shall continue until such time as no such index is so

published, at which time Lessor shall reasonably substitute an

index prepared by any appropriate government, corporation or

other entity.

ARTICLE XII—Common Areas

. Lessor hereby grants to Lessee, during the term of this

. a nonexclusive use of the Common Areas for pedestrian

and vehicular traffic. The Common Areas shall be subject to

the exclusive control and management of Lessor and to such

rules and regulations as Lessor may, from time to time, adopt

and Lessor reserves the right to change the areas, locations and

arrangement of parking areas and other Common Areas; to

enter into, modify and terminate easements and other agree-

ments pertaining to the maintenance and use of the parking

areas and other Common Areas; to close any or all portions of

the Common Areas to such extent as may, in the opinion of

Lessor’s counsel, be legally sufficient to prevent a dedication

thereof or the accrual of any rights to amy person or to the

public therein; to close temporarily, if necessary, any part of the

Common Areas in order to discourage noncustomer parking:

and to make changes, additions, deletions, alterations or im-

provements in and to such Common Areas, provided that there

shall be no unreasonable obstruction of Lessee’s right of ingress

to or egress from the Demised Premises.

2. Lessor shall operate, maintain and repair the Common

Areas in such manner as Lessor shall in its sole discretion

determine. For these services Lessee shall pay its proportionate

share of the cost and expense to Lessor of operating, maintain-

ing and repairing the Common Areas (hereinafter referred to

as “Common Area Maintenance Costs”) during the term of this

Lease, including any period during which Lessee shall transact

business in the Demised Premises prior to the commencement

43a

of the term of this Lease. For the purposes of this Article, the

term “Common Area Maintenance Costs” shall mean all sums

incurred in connection with the operation, maintenance and

repair of the Common Areas, and shall include, but not be

limited to, the costs and expenses of [the following subpara-

graphs (a) through (j) are for definition only and are not to be

construed so as to impose any obligations on Lessor]:

(a) snow, ice, garbage and trash removal; maintenance,

repair and replacement of all parking lot surfaces,

service areas and courts, including cleaning, sweeping,

painting, striping and repaving; maintenance, repair

and replacement of sidewalks, curbs, guardrails,

bumpers, fences, screens, flagpoles, bicycle racks,

Shopping Center identification signs, directional signs,

traffic signals, and other traffic markers and signs;

(b) maintenance, repair and replacement of the (i) storm

and sanitary drainage systems, including disposal

plants and lift stations and retention ponds or basins;

(ii) irrigation systems; (iii) electrical, gas, water and

telephone systems; (iv) lighting systems (including

bulbs, poles and fixtures); (v) emergency water and

sprinkler systems; (vi) other utlity systems; (vi)

heating, ventilating and air conditioning systems; and

( viii) security systems, including any utility charges in

connection with any of the foregoing systems;

cing of flowers, shrubbery, plants, trees and other

landscaping;

(d) maintenance, repair and replacement of all portions of

the buildings, both interior and exterior, on Lessor’s

Parcel (excluding the Demised Premises and premises

leased to other tenants), including, but not limited to,

(e)

(f)

44a

floors, floor coverings, ceilings, walls, roofs and roof

flashings, canopies, skylights, signs, planters, benches,

fountains, elevators, escalators and stairs, fire exits,

doors and hardware, windows, glass and glazing:

premiums or contributions for insurance, including,

without limitation, liability insurance for personal

injury, death and property damage; insurance against

liability for defamation and claims of false arrest

occurring in and about the Common Areas; work-

man’s compensation; broad form all peril insurance

covering the Common Areas in the Shopping Center

which may include flood insurance, earthquake insur-

ance, boiler insurance and/or rent insurance [for the

purposes of this provision of subparagraph (e), Com-

mon Areas shall be deemed .to include the Demised

Premises and premises leased to other tenants]; _

maintenance, repair and acquisition cost (rental fees

and/or purchase price or in lieu of purchase price, the

annual depreciation allocable thereto) of all security

devices, machinery and equipment used in the oper-

ation and maintenance of the Common Areas, and all

personal property taxes and other charges incurred in

connection with such security devices, machinery and

equipment;

(g) all license and permit fees, and all parking surcharges

that may result from any environmental or other laws.

rules, regulations, guidelines or orders; the cost of

obtaining and operating public transportation or

shuttle bus systems as used in connection with bring-

ing customers to the Shopping Center or if required by

any environmental or other laws, rules, regulations,

guidelines or orders;

(h) the cost of installation and operation of music pro-

gram services and loudspeaker systems;

45a

(i) personnel, including, without limitation, security and

maintenance people on the Shopping Center, the mail

manager and assistant mall manager, secretaries and

mall management bookeepers (including, without

limitation, the payroll taxes and employee benefits of

such personnel); and

(j) Lessor’s administrative costs in an amount equal to

fifteen percent (15%) of the total Common Area

Maintenance Costs.

Notwithstanding the foregoing provisions, Common Area

Maintenance Costs shall not imclude:

(a) depreciation (other than depreciation as above speci-

fied );

(b) costs of repairing and replacing to the extent that

proceeds of insurance or.condemnation awards are

received therefor, and

Common Areas beyond their onginal condition or

utility as they may be put from ume to ume by Lessor.

In calculating Lessee’s proportionate share of the Common

Area Maintenance Costs, the contributions, if any, paid by

department stores and “variety or specialty stores” to Lessor

towards Common Area Maintenance Costs shall be subtracted

from Common Area Maintenance Costs before determination

of Lessee’s proportionate share thereof. For the purposes of

this Lease, a “variety or specialty store’ is an occupant which

leases or occupies 15,000 square feet or more of building space

in the Shopping Center. If Lessor from time to time acquires, or

makes available, additional land for parking or other common

area purposes, then Common Areas shall include such addition-

al land.

3. Lessee’s proportionate share of the Common Area

Maintenance Costs shall be computed by multiplying the total

46a

amount of the Common Area Maintenance Costs each year by

a fraction, the numerator of which shall be the Floor Area of

the Demised Premises and the denominator of which shall be

the average of the total square feet of all building space open

for business in Lessor’s Parcel (excluding all building space

leased to department stores and “variety or specialty stores”)

on the first day of each month of the calendar year in which

such cost was incurred.

Lessee’s proportionate share of Common Area Mainte-

nance Costs for each full calendar year and partial calendar

year shall be paid in monthly installments on the first day of

each calendar month, in advance, in an amount estimated by

Lessor from time to time, hereinafter referred to as “Common

Area Maintenance Payment”. Subsequent to the end of each

full calendar year or partial calendar year, Lessor shall noufy

Lessee of Lessee’s proportionate share of Common Area

Maintenance Costs for such full calendar year or partual

calendar year. Lessor shall] include in such notice, a certifica-

tion of the Common Area Maintenance Costs by an independ-

ent Certified Public Accounting firm designated by Lessor, and

such certification shall be deemed conclusive as to the actual

amount of Common Area Maintenance Costs. The fee for such

ceruficaion of Common Area Maintenance Costs shall be

included in the Common Area Maintenance Costs. If the

Common Area Maintenance Payment paid by Lessee pursuant

to this Article for any full or partial calendar year shall be less

than the actual amount due from Lessee for such year as shown

on such notice, Lessee shall pay to Lessor the difference

between che amount paid by Lessee and the actual amount due.

within ten (10) days after receipt of such notice. If the total

amount paid by Lesese for any full or partial calendar year

shall exceed the actuai amount due from Lessee for such full or

partial calendar year, such excess shall be credited against the

next Common Area Maintenance Payment due from Lessee to

Lessor pursuant to this Article. If the date that the term of this

47a

Lease commences or the date Lessee opens for business in the

Demised Premises, whichever date shall first occur, ( hereinafter

referred to as “Effective Date”) is a day other than the first day

of the calendar year, or if the term of this Lease shall end on a

day other than the last day of the calendar year, then Lessee’s

proportionate share of Common Area Maintenance Costs shall

be billed and adjusted on the basis of such fraction of a

calendar year. If the Effective Date occurs in the calendar year

during which the Shopping Center initially opens for business,

then the Common Area Maintenance Costs for such partial

calendar year shall be reduced by a fraction, the numerator of

which shall be the number of days from the Effective Date

through the following December 31 and the denominator of

which shall be the number of days from the date the Shopping

Center opened for business through the following December

3 Ist.

4. Lessor shall protect, indemnify and save harmless

Lessee against and from all claims, loss, cost, damage or

expense arising out of or from any accident or other occurrence

on that portion of the Common Areas located on Lessor’s

Parcel, except for the willful acts or negligence of Lessee, its

agents, subtenants, employees, contractors or assignees.

5. Lessor shall provide public liability insurance (either

through the purchase of insurance or a funded self-insurance

plan) on that portion of the Common Areas located on Lessor’s

Parcel providing coverage of not less than Five Hundred

Thousand Dollars ($500,000) against liability for injury to or

death of any one person and One Million Dollars ($1,000,000 )

for any one occurrence, or in lieu of the foregoing a combined

single bond of at least One Million Dollars ($1,000,000).

6. Lessee shall cause it and its employees to park only in

the outer areas of the parking lot or such places as provided and

designated by Lessor for employee parking. Within ten (10)

days after the request by Lessor, Lessee shall deliver to Lessor a

48a

list of Lessee’s and its employees’ automobiles which such list

shall set forth the description of and the state automobile

license numbers assigned to such automobiles. Thereafter,

Lessee shall advise Lessor of any changes, additions or dele-

tions in such list. If any automobile appearing on said list is

parked in any area of the Shopping Center other than the area

designated by Lessor at any time after Lessor has given notice

to Lessee or Lessee’s store manager that the same automobile

has previously been parked in violation of this provision, then

Lessee shall pay to Lessor the sum of Ten Dollars ($10) per

day for each such automobile for each day (or part thereof) it

is parked in violation of this provision. Lessee shall pay such

sum to Lessor within ten (10) days after receipt of notice from

Lessor.

ARTICLE XVIII — Utilities

1. Lessee shall contract for, in its own name, and shall pay

before delinquency, for all utility services rendered or furnished

to the Demised Premises, including heat, water, gas, electricity,

fire protection, sewer rental, sewage treatment facilities and the

like, together with all taxes levied or other charges on such

utilities. If Lessor shall supply any such services, or if any such

services are required to be paid for by Lessor under a master

meter, Lessee shall purchase same from Lessor at charges not in

excess of the charges for the service in question made by any

public utility corporation or governmental agency supplying

such utilities in the area plus an additional ten percent ( 10%)

for Lessor’s overhead costs. Any such charges for service

supplied by Lessor shall be due and payable within ten (10)

days after billings therefor are rendered to Lessee. In no event

shall Lessor be liable for the quality, quantity, failure or

interruption of such service to the Demised Premises.

2. Lessor may, with notice to Lessee, or without notice in

the case of an emergency, cut off and discontinue gas, water,

49a

electricity and any or all other utilities whenever such dis-

continuance is necessary in order to make repairs or alterations.

No such action by Lessor shall be construed as an eviction or

disturbance of possession or as an election by Lessor to

terminate this Lease, nor shall Lessor be in any way responsible

or liable for such action.

ARTICLE XXV—Quiet Enjoyment

Lessor agrees that if Lessee pays the Minimum and

Percentage Rent and other charges herein provided and shall

perform all of the covenants and agreements herein stipulated

to be performed on Lessee’s part, Lessee shall, at all times

during said term, have the peaceable and quiet enjoyment and

possession of the Demised Premises without any manner of

hindrance from Lessor or any persons lawfully claiming

through Lessor, except as to such portion of the Demised

Premises as shall be taken under the power of eminent domain.

ARTICLE XXVIII—Changes and Additions to Shopping

Center

1. Lessor shall have the exclusive nght to use all or any

part of the roof over the Demised Premises and exterior walls

of the Demised Premises for any purpose; to erect in connection

with the construction thereof temporary scaffolds and other aids

to construction on the extenor of the Demised Premises,

provided that access to the Demised Premises shall not be

denied; and to install, maintain, use, repair and replace pipes,

ducts, conduits and wires leading through the Demised Prem-

ises and serving other parts of the Shopping Center in locations

which will not materially interfere with Lessee’s use thereof. In

addition to the foregoing, Lessor may make any use it desires of

the side and rear walls of the Demised Premises, provided that

50a

there shall be no encroachment upon the interior of the

Demised Premises. Lessor hereby reserves the right at any time

to make alterations or additions to, and to build additional

stories on, the building in which the Demised Premises are

contained and to build adjoining the same. Lessor also reserves

the right to construct other buildings or improvements in the

Shopping Center from time to time and to make alterations

thereof or additions thereto and to build additional stories on

such building or buildings and to incorporate additional land

into Lessor’s Parcel and build thereon and to construct deck or

elevated parking facilities.

2. If at amy time (a) Lessor is required by any laws,

ordinances, rules or regulations of any governmental agency

having jurisdiction over the Shopping Center to provide addi-

uonal parking in Lessor’s Parcel, or (b) Lessor proposes to

increase the total.rentable building space within the Shopping

Center which would require additional parking in the Shopping

Center, Lessor may elect to provide such additional parking by

constructing deck or elevated parking facilities, hereinafter

referred to as “Deck Parking”. In the event Lessor so elects,

Lessee shal] pay its proportionate share of the capital expense

of providing such Deck Parking. Lessee’s proportionate share

shall be determined by (a) multiplying the total capital expense

of providing such Deck Parking by a fraction, the numerator of

which shall be the Floor Area of the Demised Premises and the

denominator of which shall be the total rentable building space

in Lessor’s Parcel, either existing, or proposed by Lessor, as the

case may be, at the ume of providing such Deck Parking; and

(b) multuplying the figure derived as aforesaid by a fraction.

the numerator of which is the number of full calendar months

remaining in the term of this Lease, and the denominator of

which shall be the number of months required to amortize the

permanent financing obtained by Lessor to finance the capital

expense of providing such Deck Parking. Lessee shall pay its

Proporuonate share of the capital expense of providing such

Sla

Deck Parking in equal monthly installments on the first day of

every calendar month during the remaining term hereof, plus

interest thereon at the rate of nine percent (9%) per annum.

ARTICLE XXXIV —Relationship of Parties

Nothing contained in this Lease shall be deemed or

construed by the parties hereto or by any third party to create

the relationship of principal and agent or of partnership or of

joint venture or of any association whatsoever between Lessor

and Lessee, it being expressly understood and agreed the:

neither the computation of rent nor any other provisions

contained in this Lease nor any act or acts of the parties hereto

shall be deemed to create any relationship between Lessor and

Lessee other than the relationship of landlord and tenant.

EXHIBIT “A”

ALTAMONTE MALL

Construction Exhibit For Shell & Allowance Lease In A

Two Story Structure ( Upper & Lower Levels).

Descriptiou of Landlord ( Lessor’s and/or Developer) and

Tenant ( Lessee’s) work as follows:

PART I—LANDLORD’S WORK DONE AT LANDLORD'S

EXPENSE

A. STRUCTURE: The Landlord will provide a multi-

level shell structure constructed in accordance with local

building codes.

1. LOWER LEVEL FLOOR: Slab on grade, hard

troweled finished concrete surface. The Tenant

should pay close attention to “open” floor slab areas

indicated on Landlord’s Blockout Plan of leased

52a

area. These “open” areas were provided by Land-

lord so that Tenant may complete the toilet in-

stallation according to local code requirements. Do-

wels and keyway shall be provided in these “open”

areas by Landlord. (See Page 5 of Exhibit “A”)

UPPER LEVEL FLOOR: Consists of structural

framing system and concrete fill with hard troweled

finished concrete surface. (See Page 5 of Exhibit

. COLUMNS: Both upper and lower levels, unprimed

structural steel shapes.

OVERHEAD STRUCTURE. Cemrain areas of the

upper level and roof structures have been over-

designed to facilitate installation of condensing and

combination roof top units. These areas are in-

dicated in plan view on Landlord’s Blackout Plan.

All Tenant Unit locations subject to Landlord’s final

approval.

ROOF: Shall be insulated built-up roof of a twenty

(20) year bonded type with a .15 U Factor.

- WALLS AND PARTITIONS:

Exterior walls shall be of masonry or such other

matenals selected by Landlord.

Exterior walls of shell construction are exposed

when in Tenant areas.

Interior walls between tenants and/or between ten-

ant and corridor shall be exposed wood or metal

studs or masonry at Landlord's option. Firewalls

shall be provided as required by code.

A minimum 3’-0’ x 7’-0” hollow metal door and

frame with Landlord’s standard hardware shal] be

provided at service/exit corridors at locations desig-

nated by Landlord.

53a

C. FLOORS:. Upper and lower levels, troweled concrete.

See PART I—ITEM A—STRUCTURE.

D. CEILINGS: Upper and lower level areas will be left

exposed to the structural systems overhead.

E. UTILITIES; VENTILATION AND EXHAUST AIR:

If Lessor elects to provide any such utilities, the follow-

ing utilities shall be located approximately 6” within the

demised premises at locations designated by Landlord:

PYF P&P FP

Domestic water

Sprinkler supply line

Sanitary sewer ( below floor for upper level tenants )

Electricity (empty conduit only)

Telephone (empty conduit only)

Fresh air ductwork for ventilation shall be supplied

to lower level tenant spaces to satisfy a maximum

rate equal to o.l. cfm/square foot. Ductwork for

fresh air supply shall be within the tenant space or

within the adjoining service/exit corridors. Location

and method of supplying fresh air will be deter-

mined by Landlord.

Exhaust air ductwork will be available for each

lower level tenant space to satisfy a maximum

exhaust rate of 0.1. cfm/square foot. Ductwork shall

be within the tenant space or within the adjoining

service/exit corridors. Location and method of

exhausting air will be determined by Landlord.

PART I1— TENANT’S WORK DONE AT TENANT'S EX-

EXPENSE

The Tenant’s work shall conform to all applicable

governing codes and shall include, but not be limited to the

following:

S4a

Tenant to construct and equip the demised premises in

accordance with the following, the requirements of the

Tenant Handbook, and complete plans and specifications

approved in writing by the Landlord prior to com-

mencement of said construction as provided for in this

Lease. The Tenant must follow the provisions of the

Landlord’s Tenant Handbook in the submission of prelimi-

nary and complete construction plans to the Landlord

Tenant Handbook will be supplied to Tenant with Land-

lord’s Blockout Plan.

A. STRUCTURE:

1. LOWER LEVEL FLOOR: Should Tenant desire to

locate toilet in areas other than that designated, the

Tenant shail fill in the “open” area and remove

existing concrete and replace with minimum 4”

thick, 3000 psi concrete—23 day—reinforced with

#3 bars #12” c/o each way. Any cutting and

patching of this lower level slab requires written

approval by Landlord before Tenant begins work.

2. UPPER LEVEL FLOOR: System is designed to

support a total allowable live load (including part-

tions) of 95 pounds per square foot. No allowance

shall be made for reductions allowed by code. The

Tenant is required to make all floor penetrations to

facilitate his installations. All upper floor pene-

trations must be clearly shown on Tenant’s plans for

Landlord’s approval. All Floor penetrations shall be

completely filled-in to seal the floor to prevent odors

or liquid from penetrating the floor.

3. OVERHEAD STRUCTURE: Should the over-

designed areas provided by Landlord not satisfy

Tenant’s requirements, structural modifications can

be made at Tenant’s expense, subject to Landlord's

approval. Lower level Tenants are allowed a mis-

55a

cellaneous loading equivalent to 5 pounds per

square foot on the upper level floor system.

4. ROOF: All Tenant required penetrations of the

roofing system shall be held to a minimum. Tenant

shall employ a licensed Roofing Contractor to repair

and complete all penetrations of the roofing system.

Tenant shall provide all openings, reinforcing, curbs,

flashings, etc.

. WALLS AND PARTITIONS:

1. Where masonry does not occur, the Landlord will

provide only the studs (wood or metal) for the

partitions separating one Tenant from another.

Each Tenant must furnish and install 5/8” firerated

gypsumboard, taped, bedded, airtight against the

deck above, on his side of all common dividing

partutions.

2. Walls may or may not coincide with column center-

lines; columns being thicker than the walls will

extend into the Tenant’s areas. All treatments,

finishes, or furring desired by Tenant shall be by

Tenant at Tenant's expense.

3. No deduction in leased area is allowed for columns.

4. Local codes require all demising partitions to be

constructed having a one hour rating. Interior

partitions shall be constructed of non-combustible

materials in accordance with applicable sections of

the code. If non-combustible wood is permitted, al!

material shall bear the Underwriter’s Laboratones

stamp indicating material is Treated And Labied

Combusuble matenal of any nature Wil] Not be

permitted above finished ceilings.

5. The storefront area will be left open between the

Tenant’s common dividing partitions and mall fin-

S6a

ished floor to the under side of the common cornice

soffit. The Tenant shall be responsible for construct-

ing a complete storefront the full width and height

(including corners, if applicable). Swinging doors

not permitted to swing beyond building line. No

C. FLOORS:

Expansion joints are installed as a necessary function

of this structure. These joints do not occur in all

Tenant spaces and those spaces in which they occur

shall be clearly identified. The expansion joint shall

be a complete installation by the Landlord, and it

shall be the Tenant's responsibility to install finish

floor covering material to this joint in a workmanlike

manner.

Sanitary cleanouts are installed as a necessary func-

tion of the sanitary sewer system. These cleanouts

do not occur in all Tenant spaces and those spaces in

which they occur shall be clearly identified. The

cleanouts shall be a complete installation by the

Landlord, and it shall be the Tenant’s responsibility

to imstall finish floor covering material to these

cleanouts in a workmanlike manner.

D. CEILINGS:

All interior finishes beyond the exposed structural

systems will be by Tenant at Tenant’s expense.

Certain pipes, conduits, ducts, and utilities are pass-

ing through tenant spaces and are supported by the

overhead structure. These items service other Ten-

ants and building areas and are engineered to

guarantee the Tenant a minimum ceiling height of

10’-0".

57a

3. In addition to the certain pipes, conduits, ducts, etc.

covered under item 2 above, lower level tenants

agree and recognize that the upper level tenants will

have certain pipes, conduits or other related items

located in the ceiling space of the lower ievel tenants

leased space. Lower level tenants further agree and

recognize that upper level tenants have the nght to

install the above mentioned pipes, conduits or other

related items from within the lower level tenants

space.

The lower level tenant shall cooperate with the

upper level tenant for the installation of these items.

In the event the lower level tenant’s space is “near-

ing completion”, “completed” and/or “opened for

business”, the upper level tenant shall simplify his

installation problems by “initial design”, “re-

design” or install his items at the hours and times as

he and the lower level tenant can agree on.

In the event the tenants cannot agree to a reasonable

solution, Landlord shall arbitrate and the Landlord’s

judgment shall be final.

4. All pipes, conduits ane other related items that

upper level tenants install in the ceiling space of the

lower level tenants shall be run tight to the structural

steel members in order to provide the lower level

tenant maximum working space for the installation

of his pipes, conduits, ducts, ceilings and/or other