EXHIBIT 10.14
ADMINISTRATION CONTRACT
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between
UNITED INVESTORS PARK OWNERS' ASSOCIATION,
a Kansas not-for-profit corporation
and
▇▇▇▇▇▇▇ & ▇▇▇▇ PROPERTY MANAGEMENT DIVISION,
a division of ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc.,
a Delaware corporation
March 1, 1998
TABLE OF CONTENTS
Page
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1. Engagement of Manager ................................. 1
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2. Term .................................................. 1
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2.1 Automatic Extension............................. 1
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2.2 Termination For Cause........................... 2
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2.3 Termination Without Cause....................... 2
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2.4 Procedure on Termination........................ 2
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2.4.1........................................... 3
2.4.2........................................... 3
2.4.3........................................... 3
2.4.4........................................... 3
2.5 Termination Rights.............................. 3
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3. Manager's Duties....................................... 4
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3.1 Annual Budget................................... 4
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3.3 Personnel Employment............................ 4
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3.4 Service Contracts............................... 4
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3.5 Purchases....................................... 5
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3.6 Maintenance..................................... 5
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3.6.1........................................... 5
3.6.1.1......................................... 5
3.6.1.3......................................... 5
3.6.1.4......................................... 5
3.6.1.5......................................... 6
3.6.1.6......................................... 6
3.6.1.7......................................... 6
3.6.1.8......................................... 6
3.6.1.9......................................... 6
3.6.1.10........................................ 6
3.6.1.11........................................ 6
3.6.1.12........................................ 6
3.6.1.13........................................ 6
3.7 Owner's Right to Terminate/Appoint Manager...... 6
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3.7.1........................................... 6
3.7.2........................................... 7
3.8 Legal Compliance................................ 7
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3.9 Bank Account.................................... 7
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3.10 Collections..................................... 7
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3.11 Compliance with Contracts....................... 7
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4. Accounting and Distribution of Moneys.................. 8
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4.1 Monthly Statements.............................. 8
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4.2 Annual Statements............................... 8
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4.3 Other Reports................................... 8
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4.4 Payment of Funds to Owner....................... 8
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5. Compensation of Manager................................ 8
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5.1 Management Fee.................................. 9
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6. Insurance.............................................. 9
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6.1 Fidelity Coverage............................... 10
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7. Owner's Right to Inspect............................... 10
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8. Indemnification........................................ 10
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9. Miscellaneous.......................................... 10
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9.1 Notices......................................... 10
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9.2 Assignment...................................... 11
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9.3 Construction.................................... 11
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9.4 Entire Agreement................................ 11
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9.5 Binding Effect.................................. 12
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9.6 Governing Law................................... 12
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EXECUTION BY OWNER.......................................... 12
EXECUTION BY MANAGER........................................ 12
Exhibit "A" Property
Exhibit "B" Personnel and Salaries
Exhibit "C" Voluntary Encumbrances
Exhibit "D" Management Fees
Exhibit "E" Affiliate
Exhibit "F" Grounds
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CONTRACT
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THIS AGREEMENT is made effective the 1st day of March, 1998, between
United Investors Park Owners Association, Inc., a Kansas not-for-profit
corporation (the "Owner") and ▇▇▇▇▇▇▇ & ▇▇▇▇ Property Management Division, a
division of ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc., a Delaware corporation (the
"Manager").
W I T N E S S E T H :
WHEREAS, the Owner is an association whose members consist solely of
owners of property located in United Investors Park (the "Members"), all as more
particularly described on Exhibit "A" attached hereto (the "Property");
WHEREAS, the Manager is experienced in the operation, management and
supervision of office buildings and other commercial real estate; and
WHEREAS, the Owner desires to obtain the services of the Manager and
the Manager desires to make its services available to the Owner to manage the
Common Areas of the Property on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the Owner and the Manager agree as follows:
1. Engagement of Manager. The Owner hereby engages the Manager and the
Manager hereby accepts such engagement as the sole and exclusive manager of the
Common Areas of the Property. Subject to the terms of this Agreement, the
Manager will have control over the management, maintenance, and operation of the
Common Areas of the Property, including but not limited to the Grounds, which
shall be defined herein as that portion of the Property consisting of the Common
Areas and Common Facilities, as more specifically set forth and defined in
Exhibit F attached hereto and incorporated by reference herein. Anything herein
to the contrary notwithstanding, the Manager for all purposes will be deemed an
independent contractor within the meaning of the Internal Revenue Code of 1986,
as amended (the "Code"), and will not be deemed the servant, agent or employee
of the Owner.
2. Term. Unless extended or sooner terminated as herein provided, the
original term of this Agreement will be for thirty-six (36) months, commencing
March 1, 1998 (the "Commencement Date") and ending April 30, 2001 (the
"Expiration Date").
2.1 Automatic Extension. The term of this Agreement will be automatically
extended for successive periods of twelve (12) months each, unless
either party hereto notifies the other, in writing, at least ninety
(90) days prior to the scheduled expiration of the initial term or any
successive term, of its election to terminate this Agreement. If
extended, all terms and conditions set forth herein shall apply for
such extended term.
2.2 Termination For Cause. This Agreement may be terminated, as to all
Property or any specific Property, on the occurrence of any of the
following events: (a) the transfer of ownership of such Property by
the Owner; (b) the taking of all or a substantial portion of such
Property through condemnation proceedings by any governmental
authority; (c) the substantial damage or destruction of such Property
by fire or other casualty and the election by the Owner not to rebuild
or restore such Property; (d) the default by the Manager in the
performance of the Manager's obligations hereunder; or (e) the default
by the Owner in the performance of the Owner's obligations hereunder.
On the occurrence of the events described at subparagraphs (a) through
(c) above, the Owner and the Manager will have the mutual option to
terminate this Agreement by delivery of written notice stating an
effective date of termination of not less than ten (10) and no more
than sixty (60) days from the date of delivery of such notice. On the
occurrence of the events described at subparagraph (d) or (e) above,
the nondefaulting party will serve written notice of default to the
party claimed to be in default. If such default continues for ten (10)
days after delivery of written notice specifying such default, then
this Agreement, at the option of the nondefaulting party, may be
terminated effective on the date of delivery of written notice at any
time thereafter; provided, however, that if such default is cured
within said ten (10) day period or if such default cannot be cured
within said ten (10) days but the defaulting party has commenced and
is diligently prosecuting the action necessary to cure such default,
then this Agreement will continue as if such default had not occurred.
Notwithstanding any termination of this Agreement resulting from the
occurrence of the events described at subparagraphs (d) and (e) above,
the respective rights granted to the Owner and Manager hereunder are
cumulative of every other right or remedy which the Owner and Manager
respectively might otherwise have at law or in equity and the exercise
of any right or remedy will not prejudice the concurrent or subsequent
exercise of other rights or remedies.
2.3 Termination Without Cause. The Owner may, at any time during the
term of this Agreement, terminate this Agreement without cause, as to
all the Property or as to any specific Property, by giving written
notice to the Manager stating an effective date of termination of not
less than sixty (60) days from the date of delivery of such notice.
Within ten (10) days after the effective date of termination of all or
and portion of this Agreement, the Owner will pay to the Manager a
cancellation fee in an amount equal to twenty-five percent (25%) of
the Management Fee (as hereafter defined) payable under Paragraph 5.1
of this Agreement with respect to each such terminated Property, which
would have otherwise been payable for the period between the effective
date of such termination and the scheduled expiration date of the
initial term or of any last occurring scheduled expiration date of any
successive term of this Agreement, which has extended pursuant to
Paragraph 2.1.
2.4 Procedure on Termination. Within ten (10) days after the effective
date of termination of all or any portion of this Agreement, the
Manager will:
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2.4.1 Deliver to the Owner all records and files in the possession of
the Manager pertaining to the management, maintenance,
operation, leasing, marketing and use of each of the Property
included in the termination notice, together with any other
personal property of the Owner in the possession of the Manager;
2.4.2 Render final statements to the Owner for all collections and
expenses resulting from the management and operation of each of
the Property included in the termination notice since the last
monthly financial statements, prepared in accordance with this
Agreement;
2.4.3 Deliver to the Owner for each parcel of the Property included in
the termination notice: (a) a complete inventory of all
tangible personal property on site at each such Property on the
termination date; (b) a schedule of all contracts, conditional
sale contracts, other agreements (the "Property Contracts") and
any other intangible personal property rights used in, or
affecting, the operation, management or maintenance of such
Property (collectively the "Intangible Property"); and (c) a
schedule, which includes an explanation in reasonable detail,
that identifies: (i) any deficiencies in the Intangible
Property; and (ii) any liability or obligation that will affect
such Property after the termination date and that the Manager
requests that the Owner specifically assume; and
2.4.4 With respect to each of the Property included in the termination
notice: (a) deliver to the Owner the original of all Property
Contracts and any other license, permit, authorization or
certificate existing in connection with such Property (the
"Permits"); and (b) on request of the Owner, and to the extent
assignable, assign all Property Contracts, the Permits, and any
other Intangible Property relating to the operation,
maintenance, leasing and marketing of such Property, to those
parties as the Owner directs in writing.
2.5 Termination Rights. Except as provided in Paragraphs 2.3 and 2.4
hereof, on the effective date of termination of all or any portion of
this Agreement, the Owner and the Manager will be released from
further performance hereunder with respect to each of the Property
included in the termination notice, except that the Owner will
continue to be obligated to pay to the Manager those commissions
previously earned by the Manager pursuant to Paragraph 5, at the times
set forth therein.
3. Manager's Duties. Throughout the term of this Agreement, the Manager will
use the Manager's best efforts and due diligence in managing the Common Areas of
the Property in accordance with the written policies and programs approved from
time to time by the Owner. In pursuance of the foregoing, the Manager will
perform the following services:
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3.1 Annual Budget. The Manager will, within one hundred twenty (120)
days after the date hereof and within thirty (30) days prior to the
end of each calendar year thereafter, submit a preliminary budget
which reflects on a monthly basis the estimated receipts,
disbursements, operational expenditures and capital expenditures for
the ensuing calendar year and which will include: (a) a schedule
projecting amounts to be collected as Maintenance Charges from owners
of the Property; (b) a schedule of amounts which the Manager estimates
will be spent for salaries, repairs, maintenance, replacements and
capital improvements; and (c) any other item reasonably requested by
the Owner. The preliminary budget will be submitted in writing to the
Owner for approval and the Owner will have the right to make any
changes thereto and finalize the budget in form satisfactory to the
Owner in the Owner's sole discretion (hereafter the "Annual Budget").
The Owner will inform the Manager of any change to the preliminary
budget submitted by the Manager before commencement of the period
covered by the Annual Budget and the Annual Budget shall constitute
the standard pursuant to which the Manager will operate the Common
Areas of the Property during the ensuing calendar year. The Manager
will thereafter prepare and deliver to the Owner prior to the
beginning of each quarter during the ensuing year any changes in the
information and estimates contained in the Annual Budget necessary to
reflect current conditions. At the sole option of the Owner, the
Annual Budget, as amended, will thereafter constitute the standard
pursuant to which the Manager will operate the Common Areas of the
Property. The Manager will not, without the prior written consent of
the Owner, incur any non-utility expense in the operation, maintenance
and management of the Common Areas of the Property which would, if
annualized, exceed by five percent (5%) or more any single annualized
amount allocated to the particular classification of expense in the
Annual Budget.
3.3 Personnel Employment. On the basis of the schedule of staffing
standards and wage rate projections set forth on Exhibit "B" attached
hereto or, if different, those approved by the Owner in the Annual
Budget, the Manager will hire, pay, supervise and discharge the
personnel necessary to maintain and operate the Property. All such
employees will be employees of the Manager and not the Owner, however,
all salaries, wages and other compensation of personnel so employed by
the Manager, including medical and health insurance, pension plans,
social security, taxes, workmen's compensation insurance and similar
salary and benefit expenses, will be expenses of the Common Areas of
the Property and payable by the Owner. Notwithstanding the preceding,
all salary and benefit expenses of executives or principal officers of
the Manager who are not permanently assigned to the Common Areas of
the Property on a full time basis will not be a cost of the Common
Areas of the Property.
3.4 Service Contracts. Subject to expenditure limitations set forth in
the approved Annual Budget, the Manager will negotiate and enter into
contracts in the name of
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and at the expense of the Owner for janitorial, maintenance,
landscaping, security, water, electricity, gas, fuel, oil, telephone,
vermin extermination, trash removal and other services required to
operate, maintain and manage the Common Areas of the Property. Any
proposed service contracts containing a duration in excess of twelve
(12) months must be approved in advance, in writing by Owner.
3.5 Purchases. Subject to the expenditure limitations set forth in the
approved Annual Budget, the Manager will purchase on behalf of and at
the expense of the Owner all necessary supplies, equipment and
materials which may be required from time to time to operate and
maintain the Common Areas of the Property. When issuing purchase
orders, the Manager will at all times act in the best interest of the
Owner and will secure for the benefit of the Owner any discounts,
commissions or rebates obtainable as a result of such purchases.
3.6 Maintenance. Subject to expenditure limitations in the approved
Annual Budget, the Manager will, at the expense of the Owner,
maintain, repair, replace and renew the Common Area and Common
Facilities in a clean, sightly, safe and first-class condition
("Common Area Maintenance"). Maintenance, to the extent not performed
by a governmental authority or Owner, shall, unless Owner directs
otherwise, include, but shall not be limited to: (i) the repair,
replacement, renewal and cleaning of all lighting fixtures, signs,
entrance monuments and markers, traffic control signals and signs;
(ii) the mowing, watering, fertilizing, weeding, replanting and
replacing of landscaping; and (iii) the maintenance of liability and
casualty insurance on and with respect to, and the payment of and
ability to protest ad valorem taxes assessed on, the Common Area and
Common Facilities. Notwithstanding the foregoing, maintenance of the
land within public utility easements shall be for the purpose of
keeping such land in a clean and sightly condition. The Manger, only
at Owner's specific written direction, may repair or reconstruct
public or private streets within the Common Area.
3.6.1 The Manager shall perform the following functions:
3.6.1.1 the Common Area Maintenance;
3.6.1.2 the calculation of the cost of Common Area
Maintenance;
3.6.1.3 the calculation and rendition to the Members of
statements for the appropriate part of the
Common Area Maintenance Obligation;
3.6.1.4 the collection of the Common Area Maintenance
Charges and the disbursement thereof to pay the
cost of Common Area Maintenance, as provided
for in The Declaration of Protective Covenants
and Restrictions of United Investors Park
Owners' Association dated March 6, 1996, as
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amended, which is hereby incorporated by
reference as if fully set forth again ;
3.6.1.5 the maintenance of income and expense records;
3.6.1.6 the preparation and submission to Owner of a
recommended budget;
3.6.1.7 the preparation and submission to Owner of
monthly receipt and expenditure records;
3.6.1.8 the selection of personnel to maintain the
Common Areas and Common Facilities;
3.6.1.9 the preparation and filing of governmental
returns and instruments;
3.6.1.10 the negotiation and execution of contracts for
services to the Common Areas and Common
Facilities;
3.6.1.11 the maintenance of appropriate insurance
coverage;
3.6.1.12 the collection and removal of trash and rubbish
for both Owners and Common Area; and
3.6.1.13 all other general duties and responsibilities
fairly related to the foregoing functions and
the duties and responsibilities of the
Association set forth in Articles 10 and 11 of
this Declarations of Protective Covenants and
Restrictions of United Investors Park Owners'
Association, as amended.
3.7 Owner's Right to Terminate/Appoint Manager. If, in the opinion of the
Owner, the Property Manager, or its agent or agents, shall fail to
perform the Maintenance Obligation as aforesaid, the Owner shall give
written notice to the Manager specifying the manner in which the
Manager has failed to so perform. If such failure has not been
corrected within thirty (30) days after such notice, or if such work,
if it cannot be completed within such thirty (30) day period, has not
been commenced within such period and thereafter diligently prosecuted
to completion, the Owner may:
3.7.1 Elect to terminate the employment of the Manger or any
independent contractor engaged by the Manager to perform Common
Area Maintenance as set forth in paragraphs 3.6.1 and 3.6.2
herein, in which Event Owner shall have the right to appoint a
new Manager; or
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3.7.2 Enter upon the Parcel and perform such Common Area Maintenance
as set forth in paragraphs 3.6.1 and 3.6.2 herein.
3.8 Legal Compliance. The Manager will use its best efforts to take such
action as might be necessary to comply with all statutes, ordinances,
laws, rules, regulations and orders affecting or issued in connection
with the Common Areas of the Property by any governmental authority
having jurisdiction thereof and will secure and maintain any and all
appropriate licenses and permits with respect thereto; such compliance
shall include, without limitation, compliance with all applicable
provisions of The Americans With Disabilities Act of 1990, as amended,
and similar laws.
3.9 Bank Account. The Manager will establish and maintain, on behalf of
the Owner, a separate bank account or bank accounts (the "Bank
Accounts") in such number as may, from time to time, be approved by
the Owner and in a manner to indicate the custodial nature thereof on
deposit with banking institutions approved, from time to time by the
Owner, with withdrawal therefrom to be by signature of either the
Manager or the Owner or such other individual as the Owner might
designate. The Manager will deposit therein all monies furnished by
the Owner as working funds and all monies collected and received from
the operation of the Property, including Maintenance Charge fees
collected from tenants of the Property. The Manager will pay therefrom
all amounts authorized by this Agreement, including the Management Fee
and commissions described in Paragraph 5 hereof, and any other charges
or items of expense which the Owner directs to be paid in writing.
3.10 Collections. The Manager will collect and deposit into the bank
accounts established in accordance with Paragraph 3.8, all Maintenance
Charges paid by tenants and other charges due from tenants of the
Property, arising out of or resulting from the operation of the Common
Areas of the Property. The Manager will maintain businesslike
relations with tenants of the Property and all tenant requests will be
received, logged and resolved in a systematic fashion. Complaints of a
serious nature will, after thorough investigation, be reported to the
Owner with appropriate recommendation. The Manager will institute (in
its own name or in the name of the Owner) any necessary legal actions
or proceedings to collect Maintenance Charges or other income arising
from the operation of the Common Areas of the Property; provided,
however, the Manager will not permit such legal proceedings to
terminate any lease or dispossess the occupancy rights of any tenant
or user of the Property, or any portion thereof, without the prior
written consent of the Owner.
3.11 Compliance with Contracts. The Manager will cause the Common Areas
of the Property to comply with all of the terms, conditions and
obligations contained in any lease or other agreement executed by or
on behalf of the Owner which relates to the Common Areas of the
Property. The Owner will notify the Manager in
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writing of the existence of any such lease or other agreement, but the
Manager will be deemed to have notice of any such document prepared or
negotiated by the Manager. Manager and Owner acknowledge that only
those parcels of the Property identified on Exhibit "C" attached
hereto are currently subject to a mortgage lien or similar voluntary
encumbrance (the "Mortgages"), all as more particularly described on
Exhibit "C"; Owner agrees to amend Exhibit "C", from time to time, in
the event any change in the preceding status of the Property occurs.
Owner represents to the Manager that except as specifically described
on Exhibit "C", as amended, none of the Mortgages imposes any
obligation on the Manager beyond the scope of the Manager's duties
under this Agreement.
4. Accounting and Distribution of Monies. The Manager will keep full and
adequate books of account and such other records as might be appropriate to
reflect the results of operation of the Common Areas of the Property. Such books
and records will be organized and will be maintained in a manner reasonably
acceptable to the Owner. The Owner (and any person designated by Owner) will
have access to such records and accounts at all reasonable times. The Manager
will render statements in form and content acceptable to the Owner and will
make payments to the Owner as follows:
4.1 Monthly Statements. The Manager will deliver to the Owner (and any
persons designated by the Owner) within ten (10) days after the end of
each month a detailed balance sheet and a detailed income statement
reflecting receipts and disbursements arising from the operations of
the Common Areas of the Property for the preceding calendar month (the
"Monthly Statements").
4.2 Annual Statements. The Manager will deliver to the Owner (and to any
persons designated by the Owner) within fifteen (15) days after the
end of each calendar year, a detailed statement of Gross Revenues
(hereafter defined), of disbursements arising from the operations of
the Common Areas of the Property for such calendar year and a detailed
statement for such calendar year of all capital expenditures made by
the Manager for the account of the Owner.
4.3 Other Reports. The Manager will deliver to the Owner (and any
persons designated by the Owner) at the Owner's expense, any other
statements or reports reasonably requested by the Owner.
4.4 Payment of Funds to Owner. Upon written request of Owner, Manager
shall pay or disburse to Owner all funds in the Bank Accounts in
excess of those reasonably required to meet all of the current
operations and reserves of the Common Areas of the Property, as
reflected by the approved Annual Budget and the most recent Monthly
Statements.
5. Compensation of Manager. As compensation for all services to be rendered
by the Manager during the term of this Agreement, the Owner will pay the Manager
the following fees:
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5.1 Management Fee. For so long as this Agreement remains in effect for
the Common Areas of the Property, the Manager shall, in return for its
services hereunder, receive the management fees in the amounts more
particularly described with respect to the Common Areas of the
Property (such management fees are with respect to the Common Areas of
the Property sometimes herein called a "Management Fee") on Exhibit
"D" attached hereto. Payment of all Management Fees will be made in
arrears, payable on the first business day of each subsequent calendar
month. If all or any portion of the term of this Agreement commences
on other than the first day of any month or calendar year or
terminates on other than the last day of any month or calendar year,
the Management Fee for the year and month in which such date occurs
will be prorated based on a thirty (30) day month and a three hundred
sixty (360) day year.
6. Insurance. The Owner will, at the Owner's expense, obtain and keep in
force adequate insurance against physical damage (e.g. fire and extended
coverage, structures and machinery, etc.) and against liability for loss, damage
or injury to property or persons which might arise out of the occupancy,
management, operation or maintenance of the Common Areas of the Property, all in
such amounts and coverage limits as Owner deems appropriate. The Manager will be
named as an additional insured in all liability insurance maintained with
respect to the Common Areas of the Property, and Owner will provide Manager with
evidence of such insurance upon request. The Owner will save, defend and hold
the Manager harmless from any liability on account of such insured loss, damage
or injury, provided that the Manager: (a) notifies the Owner within twenty-four
(24) hours after the Manager receives notice of any such loss, damage or injury;
(b) takes no action (such as an admission of liability) which might bar the
Owner from obtaining any protection afforded by any policy the Owner may hold or
which might prejudice the Owner in the defense of a claim based on such loss,
damage or injury; and (c) agrees that the Owner will have the exclusive right,
at the Owner's option, to conduct the defense of any claim, demand or suit
within the limitations prescribed by the policy or policies of insurance. The
Manager will furnish such information as might reasonably be requested by the
Owner for the purpose of establishing insurance coverage and will aid and
cooperate in every reasonable way with respect to such insurance and any loss
thereunder. Manager shall secure and maintain with one or more companies,
reasonably satisfactory to Owner, professional liability, worker's compensation
and employer's liability insurance covering all employees of Manager in
accordance with state law. Manager shall provide non-owned or hired automobile
liability insurance with bodily injury limits of not less than Three Million
Dollars ($3,000,000.00) per person and Three Million Dollars ($3,000,000.00) per
accident and property damage limits of not less than Three Million Dollars
($3,000,00.00) per event. Manager shall furnish satisfactory evidence of the
foregoing insurance to Owner within ten (10) days after written request for
same, and any policies maintained by Manager shall name Owner as an additional
insured and provide for thirty (30) days' written notice to Owner prior to any
cancellation of same. The Owner and the Manager hereby waive in favor of the
other any cause of action which either might have against the other on account
of any loss or damage which is insured against, to the extent of such insurance,
under any insurance policy which names either the Manager or the Owner as a
named or additional insured.
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6.1 Fidelity Coverage. In addition to the insurance coverage required
under Paragraph 6, the Manager agrees to obtain and maintain a
fidelity bond or employee dishonesty insurance coverage covering all
employees of Manager performing any cash collection, handling or
management functions or other similar duties in connection with this
Agreement, with such coverage to be in an amount of not less than
$2,000,000.00 and from insurance companies approved by Owner. Manager
agrees to provide to Owner upon request, such certificates or other
evidence of existence of such policies during the term of this
Agreement.
7. Owner's Right to Inspect. The Owner and the Owner's accountants,
attorneys and agents will have the right to enter upon any part of the Common
Areas of the Property at any time for the purpose of examining or inspecting the
same or examining or making extracts from books and records of the Common Areas
of the Property or for any purpose which the Owner, in the Owner's discretion,
deems necessary or advisable.
8. Indemnification. The Owner agrees to indemnify the Manager from damages
for injuries to persons or property resulting from or arising out of any action
or inaction of the Manager relating to the operation of the Common Areas of the
Property in accordance with this Agreement and the physical premises thereof,
including, without limitation, claims relating to exposure to any PCB
transformers or other hazardous materials at the Property and, at the Owner's
cost and expense, to defend any action or proceeding against the Manager arising
therefrom, provided that the Manager shall have fully and faithfully performed
all of the Manager's duties hereunder. Notwithstanding the foregoing, the Owner
will not be required to indemnify the Manager against damages suffered as a
result of gross negligence or willful misconduct on the part of the Manager or
the Manager's agents or employees in connection with the operations of the
Common Areas of the Property or the premises thereof, including, without
limitation, any actual violations by the Manager or the Manager's agents or
employees of laws or regulations regarding brokerage disputes (including Real
Estate Commission fines, penalties or other sanctions) fair employment, fair
credit reporting, workplace safety or labor relations. Manager agrees to
indemnify and hold Owner harmless from any loss or actual damages suffered as a
result of any such gross negligence or willful misconduct. The indemnifications
provided under this paragraph shall survive any termination of this Agreement.
9. Miscellaneous. The Owner and the Manager further agree as follows:
9.1 Notices. All notices provided for herein will be in writing and
delivered by hand, by overnight courier, by telecopier or sent by
registered or certified mail, addressed as follows:
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Owner: United Investors Park Owners' Association
Attention: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Manager: ▇▇▇▇▇▇▇ & ▇▇▇▇ Property Management Division
▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc.
Attention: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as is designated from time to time in writing by those
entitled to receive notice. Any notice so addressed or mailed shall be deemed
given five (5) days after deposit in the United States mail, and if telecopied
or delivered by hand, shall be deemed given when delivered, and if delivered by
overnight courier, shall be deemed to be given on the business day immediately
following the day on the day on which it was sent or delivered.
9.2 Assignment. Neither this Agreement nor any of the Manager's rights
or obligations hereunder can be transferred voluntarily, by operation
of law or otherwise, without the prior written consent of the Owner,
which consent will not be unreasonably withheld. It is specifically
understood that the Owner has placed great reliance on the experience,
skill and abilities of the Manager in the execution of this Agreement
and the same is intended to be a contract for the individual services
of the Manager.
9.3 Construction. If any term or provision of this Agreement or the
application thereof to any person or circumstances is determined, to
any extent, to be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or
circumstances other than those as to which the same is held invalid or
unenforceable, will not be affected thereby, and each term and
provision of this Agreement will be valid and enforceable to the
fullest extent permitted by law. This Agreement is intended to be
interpreted, construed and enforced in accordance with the internal
laws of the state in which the Property in question is located. This
Agreement may be executed in any number of counterparts, each of which
will be deemed an original and all of which will constitute one
instrument.
9.4 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter herein
contained and no modification hereof will be effective unless made by
a supplemental written agreement executed
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by all the parties hereto.
9.5 Binding Effect. This Agreement will be binding on the parties and
their respective successors, legal representatives and permitted
assigns.
9.6 Governing Law. This Agreement shall be governed and interpreted
according to the laws of the State of Kansas. The District Court of
▇▇▇▇▇▇▇ County, Kansas and the United States District Court for the
District of Kansas are appropriate venues.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement effective as of the date first above written.
UNITED INVESTORS PARK
OWNERS' ASSOCIATION,
a Kansas not-for-profit corporation
By:
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Its: Treasurer
("Owner")
▇▇▇▇▇▇▇ & ▇▇▇▇
PROPERTY MANAGEMENT DIVISION,
a division of ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc.,
a Delaware corporation
By:
----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Executive Vice President and
Chief Operating Officer
("Manager")
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EXHIBIT "A"
PROPERTY
--------
================================================================================
LEGAL DESCRIPTION: COMMONLY KNOWN AS: PART/PARCELS:
----------------------------------------------------------------------------------------------------------------------------
1. All of ▇▇▇▇ ▇, ▇, ▇, ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Includes the Common Areas, Common
7, UNITED INVESTORS PARK, Facilities, and Grounds of the Property,
SECOND PLAT, a subdivision of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as defined hereinabove and in Exhibit "F".
land now in Overland Park,
▇▇▇▇▇▇▇ County, Kansas, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
according to the recorded plat
thereof.
================================================================================
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EXHIBIT "B"
PERSONNEL AND SALARIES
----------------------
================================================================================
APPROXIMATE ANNUAL
PROPERTY: PERSONNEL BASE SALARY/BURDEN
================================================================================
1. The Common Areas and Common Property Manager $12,000.00
Facilities of all of ▇▇▇▇ ▇, ▇, ▇,
▇, ▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PARK,
SECOND PLAT, a subdivision of land
now in Overland Park, ▇▇▇▇▇▇▇
County, Kansas, according to the
recorded plat thereof.
================================================================================
14
EXHIBIT "C"
VOLUNTARY ENCUMBRANCES
----------------------
NONE
15
EXHIBIT "D"
MANAGEMENT FEES
---------------
================================================================================
PROPERTY MANAGEMENT FEE COMMENT
--------------------------------------------------------------------------------------------------
1. The Common Areas and Common $500.00 per month All Management Fees will be paid in
Facilities of All of Lots 2, 3, arrears.
4, 5, 6, and 7, UNITED
INVESTORS PARK, SECOND PLAT, a
subdivision of land now in
Overland Park, ▇▇▇▇▇▇▇ County,
Kansas, according to the
recorded plat thereof.
================================================================================
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EXHIBIT "E"
AFFILIATE
---------
The term "Affiliate" means: (i) any individual, corporation, association,
partnership, joint venture, trust, estate, limited liability company or other
entity (hereafter "Person") who directly or indirectly owns, controls or holds
power to vote 20% or greater of the outstanding voting securities of Owner
("Corporate Parent"); (ii) any Person in whom Owner directly or indirectly owns,
controls or holds the power to vote 20% or greater of that Person's outstanding
voting securities; (iii) any Person in whom a Corporate Parent directly or
indirectly owns, controls or holds the power to vote 20% or greater of that
Person's outstanding voting securities; (iv) any Person who directly or
indirectly owns or controls 20% or greater of the income interests of Owner who
is not a corporation (a "Parent Entity"); (v) any Person who is not a
corporation and in whom (x) Owner directly or indirectly owns or controls 20% or
greater of the income interests of that Person, and (y) that Owner also directly
or indirectly owns, controls or holds not less than 20% of the management
authority over the affairs of that Person; and (vi) any Person who is not a
corporation and in whom (x) a Parent Entity directly or indirectly owns or
controls 20% or greater of the income interests of that Person, and (y) that
Parent Entity also directly or indirectly owns, controls or holds not less than
20% of the management authority over the affairs of that Person. For purposes
of this definition of Affiliate, "Owner" shall mean United Investors Park
Owners' Association, a Kansas not-for-profit corporation, and its successors and
assigns.
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EXHIBIT "F"
GROUNDS
-------
The Grounds, as used hereinabove, shall consist of the Common Areas and Common
Facilities, as more fully described below.
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