Exhibit 10.16
PROPERTY MANAGEMENT AGREEMENT
FOR
SPICEWOOD SPRINGS APARTMENTS
JACKSONVILLE, FLORIDA
(i)
TABLE OF CONTENTS
PAGE
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ARTICLE 1. RETENTION OF MANAGER; GENERAL DEFINITIONS 7
1.1 Retention of Manager 7
1.2 General Definitions 7
ARTICLE 2. MANAGER'S RESPONSIBILITIES 9
2.1 General Responsibilities 9
2.2 Manager's Personnel; Independent Contractor. 9
2.3 Executive Personnel; Building Manager 10
2.4 Schedule of Employees 10
2.5 Compliance with Laws, Licenses, Mortgages, Etc. 11
2.6 Security 12
2.7 Energy Management 12
2.8 Annual Business Plan. 12
2.9 Service Contracts. 13
2.10 Collection of Rents and Other Income 13
2.11 Competitive Bidding 13
2.12 Repairs 14
2.13 Leases. 14
2.14 Notices to Owner 15
ARTICLE 3. INSURANCE AND CLAIMS 16
3.1 Owner's Insurance and Rights 16
3.2 Manager's Insurance 16
3.3 Indemnification. 17
3.4 Contractors' and Subcontractors' Insurance 18
3.5 Waiver of Subrogation 19
3.6 Service Contracts 19
3.7 Claims 19
ARTICLE 4. FINANCIAL REPORTING AND RECORD KEEPING 19
4.1 Financial Controls 19
4.2 Financial Reports: General Requirements 19
4.3 Monthly Statements 20
4.4 Supporting Documentation 20
4.5 Annual Financial Reports 21
4.6 Transfer of Funds 21
4.7 Owner's Property 21
4.8 Books and Records 21
(ii)
ARTICLE 5. OWNER'S RIGHT TO AUDIT 22
5.1 Right to Audit 22
ARTICLE 6. BANK ACCOUNTS 22
6.1 Operating Account 22
6.2 Security Deposit Account 23
6.3 Change of Banks 23
6.4 Access to Account 23
ARTICLE 7. PAYMENT OF EXPENSES 23
7.1 Costs Eligible for Payment from Operating Account 23
7.2 Non-Reimbursable Costs 24
ARTICLE 8. INSUFFICIENT GROSS INCOME 25
8.1 Priorities 25
8.2 Statement of Unpaid Items 26
8.3 Segregation of Accounts 26
8.4 Cash Flow Forecasting 26
8.5 Manager Not Obligated to Fund 26
ARTICLE 9. SALE OR FINANCING OF PROPERTY 27
9.1 Cooperation with Broker 27
9.2 No Sales/Brokerage Commissions 27
ARTICLE 10. COOPERATION 27
10.1 Cooperation 27
ARTICLE 11. COMPENSATION 27
11.1 Compensation 27
ARTICLE 12. TERMINATION 29
12.1 Termination 29
12.2 Termination Without Notice. 29
12.3 Final Accounting 30
12.4 Obligation to Vacate: Orderly Transition 30
ARTICLE 13. SUBSIDIARIES AND AFFILIATES 30
13.1 Subsidiaries and Affiliates 30
ARTICLE 14. NOTICES 31
14.1 Notices. 31
ARTICLE 15. CERTAIN REPRESENTATIONS AND COVENANTS 31
15.1 Manager Representations 31
15.2 Non-Competition 32
(iii)
ARTICLE 16. MISCELLANEOUS 32
16.1 Word Meanings 32
16.2 Assignment 32
16.3 Binding Provisions 32
16.4 Applicable Law 32
16.5 Separability of Provisions 32
16.6 Section Titles 33
16.7 Further Assurances 33
16.8 Entire Agreement 33
16.9 Waiver 33
16.10 Agreement in Counterparts 33
16.11 Attorneys' Fees 33
16.12 Time Periods 34
16.13 Modification of Agreement 34
16.14 Time of the Essence 34
16.15 Construction of Agreement 34
16.16 Consent and Approvals 34
16.17 Use of Owner's Name Prohibited 34
16.18 Exculpation 34
16.19 Confidentiality 34
16.20 No Joint Venture 34
Exhibits
A Reporting Package (Section 1.2)
B Executive Personnel and Building Manager (Section 2.3)
C Reimbursable Employee Expense Schedule (Section 2.4)
D Annual Business Plan (Section 2.8)
E List of Service Contracts (Section 2.9)
F Affiliates of Manager (Section 13.1)
G Competing Property In Which Manager has an Interest (Sections 4.4,
15.1, 15.2, Part III, PARA5)
G-1 Manager's Other Properties (Section 15.1)
H Monthly Statements (Section 4.3)
(iv)
PROPERTY MANAGEMENT AGREEMENT
This
Property Management Agreement is made and entered into as of this 29th
day of May, 2003, by and between BC-BAINBRIDGE SPICEWOOD LLC, a Delaware limited
liability company (the "OWNER") and BAINBRIDGE MANAGEMENT JACKSONVILLE LLC, a
Florida limited liability company (the "MANAGER").
BACKGROUND
A. Owner owns the Property (defined below).
B. Manager is skilled and experienced in the management, operation,
leasing and supervision in properties similar to the Property in the geographic
area where the Property is located.
C. Owner desires to engage Manager as an independent contractor on the
terms and conditions set forth below and Manager desires to accept such
engagement.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Owner and Manager agree as follows:
THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
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PART I - BASIC DATA
The following defined terms shall have the meaning set forth below:
"COMMENCEMENT DATE" - May 29, 2003.
"MANAGEMENT FEE PERCENTAGE" - 3.5%
"MANAGER'S NOTICE ADDRESS" -
Bainbridge Management Jacksonville LLC
c/o The Bainbridge Companies
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
"OWNER'S NOTICE ADDRESS"
BC-Bainbridge Spicewood LLC
c/o The Bainbridge Companies
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with copies to:
BC-Bainbridge LLC
c/o Boston Capital Corporation
One Boston Place - Suite 2100
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
and
▇▇▇▇▇▇▇ Procter LLP
Exchange Place
Boston,
Massachusetts 02109-2881
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
"PROPERTY" - that certain property consisting of the multi-family apartment
complex known as Spicewood Springs Apartments located in the City of
Jacksonville, County of ▇▇▇▇▇, State of Florida, together with all personal
property of Owner attached thereto, located thereon or used in connection
therewith.
THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
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PART II - STANDARD TERMS
ARTICLE 1. RETENTION OF MANAGER; GENERAL DEFINITIONS
1.1 RETENTION OF MANAGER. Owner hereby retains Manager to perform the
services described below in accordance with the terms and conditions of this
Agreement, utilizing trained, experienced personnel and employing professional
real estate management practices and techniques. Manager accepts the
relationship of trust and confidence established between it and Owner by this
Agreement and covenants to use its best skill and prudent business judgment in
furthering the interests of Owner. Manager will act in a fiduciary capacity for
the benefit of Owner with respect to the proper protection of and accounting for
the Property. Manager's duties and responsibilities will commence on the
Commencement Date and shall continue until the expiration or earlier termination
of this Agreement in accordance with Article 12.
1.2 GENERAL DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"AFFILIATE OF MANAGER" shall mean any person or entity which (i) is a
director, officer, partner, member or trustee of Manager, or in which Manager or
any Manager Owner is a director, officer, partner, member or trustee, (ii) has
any direct or indirect legal or beneficial interest in Manager, or in which
Manager or any Manager Owner has any direct or indirect legal or beneficial
interest, or (iii) directly or indirectly controls, is controlled by or is under
common control with Manager.
"AGREEMENT" shall mean this
Property Management Agreement, which consists
of Part I and Part II and such other Parts as may be attached hereto and
executed by Owner and Manager, including all Schedules and Exhibits hereto, all
as amended from time to time in accordance with the terms hereof.
"ANNUAL BUSINESS PLAN" shall mean the annual business plan to be prepared
by Manager and approved by Owner in accordance with SECTION 2.9.
"APPROVED ANNUAL BUSINESS PLAN" shall mean, at any time, the Annual
Business Plan as then approved by Owner in accordance with SECTION 2.9.
"BOOKS AND RECORDS" shall have the meaning set forth in SECTION 4.8.
"BUILDING MANAGER" shall have the meaning set forth in SECTION 2.3.
"BUSINESS DAY" shall mean every day that is not a Saturday, Sunday or day
on which banks in
Massachusetts or the state in which the Property is located
are required by law or executive action to be closed for the transaction of
normal banking business.
"CHART OF ACCOUNTS" shall mean the form of chart of accounts approved by
Owner, a copy of which is included in the Reporting Package, as the same may be
modified or replaced as required by Owner from time to time.
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"COMPETING PROPERTY" shall have the meaning set forth in SECTION 15.1.
"CONSTRUCTION BUDGET" shall have the meaning set forth in SECTION
2.8(b)(v).
"DAMAGES" shall mean all claims, actions, suits, proceedings, judgments,
damages, fines, penalties, losses and expenses, including reasonable attorneys'
fees, consultants' and expert witness fees and court costs, including any such
costs incurred in any bankruptcy or other legal or administrative proceeding.
"EXECUTIVE PERSONNEL" shall have the meaning set forth in SECTION 2.3.
"FINAL ACCOUNTING" shall have the meaning set forth in SECTION 12.3.
"GAAP" shall mean generally accepted accounting principles consistently
applied.
"INSURANCE REQUIREMENTS" shall mean all requirements of any insurance
policy covering the Property or the use thereof, all requirements of the issuer
of any such policy, and all requirements, orders, rules or regulations of the
National Board of Fire Underwriters (or similar agencies) applicable to the
Property.
"INVESTOR" shall have the meaning set forth in that certain Limited
Liability Company Agreement of Owner dated as of May ___, 2003.
"LEGAL REQUIREMENTS" shall mean all federal, state and municipal laws,
rules or regulations applicable to the Property or the operation, occupancy,
leasing, maintenance and repair thereof.
"LICENSES" shall mean all permits, certificates, licenses, approvals,
consents and other entitlements required for the operation, occupancy, leasing,
maintenance and repair of the Property.
"MANAGER" shall have the meaning set forth in the introductory paragraph.
"MANAGEMENT FEE" shall mean the product of (x) the Management Fee
Percentage times (y) all Rents actually collected for each month during the term
of this Agreement.
"MANAGEMENT FEE PERCENTAGE" shall have the meaning set forth in Part I.
"MANAGER OWNER" shall mean any person or entity that owns, directly or
indirectly, 25% or more of the legal or beneficial ownership interests in
Manager.
"MONTHLY STATEMENT" shall have the meaning set forth in SECTION 4.3.
"OPERATING ACCOUNT" shall have the meaning set forth in SECTION 6.1.
"OPERATING BUDGET" shall have the meaning set forth in SECTION 2.9(b).
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"OWNER" shall have the meaning set forth in the introductory paragraph.
"OWNER RELATED ENTITIES" shall mean Owner, its direct and indirect legal
and beneficial owners, and all officers, directors, trustees, employees,
advisors and agents of Owner and all of Owner's direct and indirect legal and
beneficial owners.
"PROJECT" shall have the meaning set forth in SECTION 2.8(a).
"REIMBURSABLE EMPLOYEE EXPENSE SCHEDULE" shall have the meaning set forth
in SECTION 2.4.
"RENTS" shall have the meaning set forth in SECTION 11.1.
"REPORTING PACKAGE" shall mean the sample reports prepared by Manager and
attached hereto as EXHIBIT A, as modified or supplemented as required by Owner
from time to time in accordance with SECTION 4.2(e).
"SERVICE CONTRACTS" shall have the meaning set forth in SECTION 2.10.
ARTICLE 2. MANAGER'S RESPONSIBILITIES
2.1 GENERAL RESPONSIBILITIES. Subject to the provisions of this
Agreement, Manager shall manage, operate and maintain the Property in a
first-class manner and in accordance with the Approved Annual Business Plan.
Manager shall perform its duties hereunder: (a) in accordance with the terms of
this Agreement; (b) in compliance with all applicable laws, rules and
regulations, including the Legal Requirements; and (c) in accordance with the
standards and practices of prudent and qualified managers that manage properties
similar to the Property on behalf of institutional owners or investors.
2.2 MANAGER'S PERSONNEL; INDEPENDENT CONTRACTOR.
(a) Manager shall have in its employ at all times a sufficient
number of capable employees to enable it to properly, adequately, safely
and economically manage, operate, maintain and account for the Property and
otherwise perform its obligations hereunder in accordance with the terms of
this Agreement and Approved Annual Business Plan. Owner acknowledges that
Manager may employ personnel either directly or through its affiliate,
Bainbridge Communities Management, Inc. ("Manager's Affiliate"), but
Manager shall be directly responsible for all employees for all purposes of
this Agreement.
(b) All matters relating to the employment, supervision,
compensation, promotion and discharge of such employees are the
responsibility of Manager (with respect to which Manager shall exercise
reasonable care); Manager (or Manager's Affiliate, as applicable) is in all
respects the employer of such employees. Manager (or Manager's Affiliate,
as applicable) shall negotiate with any union lawfully entitled to
represent such employees and may execute in its own name, and not as agent
for Owner,
9
collective bargaining agreements or labor contracts resulting therefrom.
Manager and represents that it and Manager's Affiliate are and will
continue to be equal opportunity employers and that they will advertise as
such. This Agreement is not one of agency by Manager for Owner, but one
with Manager engaged independently in the business of managing properties
as an independent contractor. All employment arrangements are therefore
solely Manager's responsibility and Owner shall not have any liability with
respect thereto. Except as set forth in SECTION 2.4 below, nothing
contained herein shall be deemed to permit Manager to charge Owner, or to
use the income of the Property to pay, for the services of Manager's
employees.
(c) Manager and Manager's Affiliate shall fully comply with all
applicable laws, rules, regulations and orders relating to worker's
compensation, social security, unemployment insurance, wages, hours,
working conditions and other matters pertaining to their respective
personnel. Manager shall indemnify, defend and hold harmless the Owner
Related Entities from and against all Damages arising out of or relating to
Manager's failure to comply with this SECTION 2.2. Manager's
indemnification obligations under this SECTION 2.2(c) shall survive the
termination or expiration of this Agreement.
(d) Manager shall be solely responsible for its personnel in the
event of the termination of this Agreement.
2.3 EXECUTIVE PERSONNEL; BUILDING MANAGER. EXHIBIT B sets forth the
name of: (a) the senior executive personnel of Manager and/or Manager's
Affiliate who will be responsible for the performance of Manager's duties under
this Agreement (the "EXECUTIVE PERSONNEL"); and (b) the on-site building manager
employed by Manager or Manager's Affiliate (the "BUILDING MANAGER"). Any change
in the Executive Personnel or Building Manager shall be subject to Owner's prior
approval.
2.4 SCHEDULE OF EMPLOYEES. Attached hereto as EXHIBIT C is a schedule
(the "REIMBURSABLE EMPLOYEE EXPENSE SCHEDULE") that sets forth: (a) a list of
Manager's or Manager's Affiliate's employees (including the Building Manager)
who shall be employed on-site in the direct management and operation of the
Property; (b) the respective titles and salary of each such employee; (c) the
length of time that each such employee has been employed by Manager or Manager's
Affiliate; (d) whether each such employee works full or part-time (and if they
work part-time, the number of hours they work per week); (e) the cost of salary
and wages that may be charged to the Property for each such employee; and (f)
whether each such employee is bonded or covered under Manager's or Manager's
Affiliate's comprehensive crime insurance policy. The Reimbursable Employee
Expense Schedule shall also identify any employees of Manager or Manager's
Affiliate who are not located at the Property but whose salaries may be charged
to the Property pro rata based upon services actually rendered by such employees
directly to the Property (in which event the Reimbursable Employee Expense
Schedule shall set forth the salaries of such offsite employees and the maximum
percentage thereof that may be charged to the Property). In no event shall
Manager be entitled to charge to the Property any employee-related expenses: (i)
that relate to general or supervising management personnel,
10
accountants or auditors; (ii) for which a separate fee is charged by Manager
pursuant to this Agreement or otherwise; or (iii) that are not specifically set
forth on the approved Reimbursable Employee Expense Schedule. The expenses
chargeable to the Property pursuant to the Reimbursable Employee Expense
Schedule may be modified from time to time only as part of the Approved Annual
Business Plan or as otherwise agreed upon by Owner and Manager in writing.
2.5 COMPLIANCE WITH LAWS, LICENSES, MORTGAGES, ETC.
(a) Manager will be responsible (at Owner's expense) for compliance
with the Legal Requirements and Insurance Requirements. Manager, with the
prior approval of Owner (and at Owner's expense), will promptly remedy any
violation of any such requirements, provided that in the case of emergency,
or imminent threat to the health, safety or welfare of tenants or any other
person, or if so ordered by a governmental authority, Manager shall
promptly remedy such violation, provided sufficient funds are available,
and notify Owner as soon as practical, and in any event no later than the
end of the next Business Day. Manager shall notify Owner and recommend any
repairs or changes to the Property or operation thereof which will be
required under proposed changes in laws, ordinances and regulations.
Notwithstanding the foregoing, Manager shall obtain Owner's prior written
approval before engaging any legal counsel or commencing or appearing in
any legal proceeding on behalf of Owner.
(b) Manager shall, at Owner's expense, obtain and maintain all
Licenses. Manager shall provide Owner with copies of all completed initial
or renewal License applications for Owner's prior approval and signature,
if necessary, not less than thirty (30) days prior to the date such
applications are due. All Licenses shall be obtained in Owner's name.
(c) Except as otherwise specifically directed by Owner, Manager
will be responsible (at Owner's expense) for compliance with all contracts
and agreements relating to the Property, including any ground lease, space
lease, covenant, condition and restriction, reciprocal easement agreement,
and mortgage, deed of trust or other security instruments affecting the
Property, provided that Manager has copies of such agreements.
(d) Manager shall, at Manager's individual, non-reimbursable
expense, maintain its legal existence and good standing and obtain and
maintain in effect all licenses and permits necessary or desirable to carry
out its duties hereunder.
(e) Manager shall, at Owner's expense, make commercially reasonable
efforts to ensure that all employees and/or contractors who perform work at
or for the Property have all required Licenses and comply with all Legal
Requirements.
(f) The Manager shall, at Owner's expense, implement and maintain
an ongoing environmental auditing program reasonably satisfactory to Owner
and any lender to Owner pursuant to which it shall conduct periodic
investigations regarding the compliance of activities at the Property with
applicable environmental laws, and the
11
existence of and potential for contamination. The results of such
environmental audit shall be provided to the Owner. Without limiting the
foregoing, Manager shall be responsible for maintaining and ensuring
compliance with all operations and maintenance manuals, programs and
procedures with respect to all customary environmental issues, including
but not limited to, mold, lead paint and asbestos, if any.
2.6 SECURITY. Subject to the Approved Annual Business Plan, Manager
shall, at Owner's expense, maintain or cause to be maintained a security program
adequate for the needs of the Property. Manager shall promptly notify Owner of
any incidents or conditions which reflect on or affect the adequacy of the
security provisions for the Property, and shall make recommendations to Owner
with respect to security matters.
2.7 ENERGY MANAGEMENT. Subject to the Approved Annual Business Plan,
Manager shall exercise best efforts to provide appropriate energy management and
shall utilize utility conservation techniques.
2.8 [Intentionally Omitted.]
2.9 ANNUAL BUSINESS PLAN.
(a) On or before November 15th of each year during the term of this
Agreement, Manager shall prepare and submit to Owner for Owner's prior
approval an annual business and leasing plan in accordance with the
requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by
Owner from time to time) (the "ANNUAL BUSINESS PLAN"). The Annual Business
Plan shall be a comprehensive plan for the management, operation, leasing,
repair, maintenance and promotion of the Property and for the other matters
set forth on EXHIBIT D. Manager shall consult the Owner concerning the
proposed Annual Business Plan and shall promptly incorporate therein such
changes as Owner may direct. The Annual Business Plan, and all budgets
contained therein, shall be in a form consistent with the Reporting
Package.
(b) Manager shall: (i) perform its duties hereunder in accordance
with the Approved Annual Business Plan; and (ii) use all reasonable efforts
to ensure that the actual costs of maintaining and operating the Property
do not exceed the operating budget (the "OPERATING BUDGET") which is a part
of the Approved Annual Business Plan either in total or in any one
accounting category. All actual expenses must be charged to the proper
account on a basis consistent with the Operating Budget classifications and
Reporting Package. Except in case of emergencies which could reasonably
pose a threat of injury to persons or property, in which event Manager
shall inform Owner of such emergency within two (2) business days, no
expense may be reclassified except as needed to correct an inadvertent
error. Manager will secure Owner's prior approval for any expenditure that
will result in a variance of the greater of $5,000 or 5% of the annual
budgeted amount in any one accounting line item of the Operating Budget. In
addition, Manager shall obtain Owner's prior approval for any expenditure
in excess of $5,000, regardless of whether such expenditure is set forth in
the Approved Annual Business Plan.
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(c) Owner shall have the right to require changes in the Approved
Annual Business Plan from time to time; provided, however, that Owner shall
provide Manager with at least fifteen (15) days' notice of such changes.
2.10 SERVICE CONTRACTS.
(a) To the extent permitted by the Approved Annual Business Plan
(so that, among other things, the expense thereof does not exceed the
corresponding amount set forth in the Operating Budget), and subject to
SECTION 2.12, Manager (without the prior consent of Owner, provided that
the form of the contract has been approved by Owner) shall negotiate and
enter into bona fide contracts with parties that are not Affiliates of
Manager for terms no longer than one (1) year for electricity, gas, fuel,
water, telephone, window cleaning, ash or rubbish hauling, vermin
extermination, janitorial services, landscape maintenance and such other
maintenance services for the Property as Manager shall reasonably determine
to be advisable ("SERVICE CONTRACTS"). All Service Contracts: (i) shall be
in the name of Owner, (ii) shall be freely assignable, at Owner's option,
to Owner's nominee and (iii) shall be terminable by Owner, at Owner's
election, upon no more than thirty (30) days' notice without penalty or
premium. Each Service Contract shall provide that the service provider
thereunder must obtain the insurance described in SECTION 3.4 hereof and
must provide satisfactory evidence of such insurance to Manager. Unless
Owner specifically waives such requirement, all Service Contracts shall be
subject to bid every three (3) years or more frequently if deemed necessary
by Owner. Notwithstanding the foregoing, Manager shall not, without the
prior written consent of Owner, enter into any Service Contract unless
provided for in the Approved Annual Business Plan.
(b) EXHIBIT E lists all Service Contracts in existence as of the
date of this Agreement and, for each such contract, accurately sets forth
the contract date, the name of the service provider, the nature of the
service and the length and economic terms of the contract. Manager shall
promptly update EXHIBIT E so that it at all times contains an accurate and
complete description of Service Contracts affecting the Property.
2.11 COLLECTION OF RENTS AND OTHER INCOME. Subject to SECTION 2.13(b),
Manager will use diligent efforts to collect all rents and other charges which
may become due at any time from any tenant or from others in connection with or
for the use of the Property and will use its best efforts to ensure tenants'
compliance with their respective leases. Manager will collect and identify any
income from miscellaneous services provided to tenants or the public from
parking income, furniture rental, cleaning services, tenant storage and
coin-operated machines of all types. All rents and other monies collected will
be deposited in the Operating Account. Manager will not write off any income
items without Owner's prior approval.
2.12 COMPETITIVE BIDDING. All contracts for repairs, capital
improvements, goods and services will be awarded at no higher than prevailing
market rates and, as to amounts exceeding $5,000, will (unless otherwise
required or permitted by Owner) be awarded on the basis of competitive bidding
conducted in a manner satisfactory to Owner and in accordance with the
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Approved Annual Business Plan.
2.13 REPAIRS. Manager shall, at Owner's expense, make all ordinary and
extraordinary repairs, decorations and alterations of the Property, subject to
the limits of the Approved Annual Business Plan. Manager shall not make
expenditures for capital improvements unless the same are specifically set forth
in the Approved Annual Business Plan or are otherwise approved by Owner. Manager
may not make expenditures for any repair which exceed $5,000 unless approved by
Owner or specifically set forth in the Approved Annual Business Plan; provided,
however, Manager may make expenditures for repairs without Owner's prior
approval if it is necessary to prevent imminent damage to the Property or the
health or safety of any person on or about the Property or if Owner is
threatened with immediate criminal or civil liability. Owner must be informed of
any such expenditures as quickly as possible, and in any event not later than
the end of the next Business Day.
2.14 LEASES.
(a) Manager shall use all reasonable efforts to cause the Property
to be fully leased to desirable tenants in accordance with the Approved
Annual Business Plan and, in connection, therewith, shall:
(i) consult with Owner with respect to the rental rates and
renewal rates of units at the Property in preparation of the
Approved Annual Business Plan;
(ii) use all reasonable efforts to obtain and keep desirable
tenants for the Property in accordance with the Approved Annual
Business Plan;
(iii) assist and cooperate with any leasing agent engaged by
Owner and with other licensed real estate brokers that may have
clients interested in leasing units at the Property;
(iv) provide the full range of pro-active tenant services
customarily provided to tenants of first class buildings similar to
the Property, including: (1) regularly scheduled meetings with
tenants using designated tenant representatives as deemed
necessary; (2) prompt responses to all tenant complaints, inquiries
and requests; (3) periodic inspections of the Property; and (4)
maintenance of a tenant log that sets forth tenant complaints and
concerns and tracks the manner in which such complaints and
concerns are resolved;
(v) subject to SECTION 2.13(b) below, use all reasonable
efforts to duly and punctually observe and perform on Owner's
behalf and, subject to the Approved Annual Business Plan, at
Owner's expense, all of Owner's obligations under all leases, and
to preserve and keep unimpaired the rights of Owner and the
obligations of tenants under such leases; and
(vi) subject to SECTION 2.13(b) below, promptly enforce the
obligations
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of tenants under leases and the obligations of contractors,
suppliers and similar third parties providing services or goods to
the Property.
(b) Without the consent of Owner, Manager: (i) shall not receive or
collect any rents for more than one month in advance; (ii) shall not waive,
excuse, condone, discount, set-off, compromise or in any manner release or
discharge any tenant (or any guarantor under any guaranty of any lease)
from its obligations under its lease (or such guaranty); (iii) shall not
cancel, terminate or consent to the surrender of any lease; (iv) shall not
commence any action, suit or proceedings for the collection of rent, for
ejectment or for the dispossession of any tenant or exercise any right of
recapture provided in any lease; (v) shall not modify or in any way alter
the provisions of any lease; (vi) shall not relocate any tenant within the
Property; (vii) shall not consent to any modification of the express
purposes for which any tenant's premises have been leased; (viii) shall not
consent to any subletting of any part of the Property, to any assignment of
any lease by any tenant thereunder, or to any assignment or further
subletting of any sublease; (ix) shall not permit any person to occupy
space at the Property without a lease entered into in accordance with the
terms of this Agreement; and (x) shall not retain any legal counsel or
collection agency to act on behalf of Owner or Manager in connection with
any lease of space at the Property. Notwithstanding the foregoing, if the
Property consists of residential apartments, Manager may, without Owner's
prior consent, enter into, modify, terminate and enforce residential
leases, provided that all such actions shall be consistent with the
Approved Annual Business Plan.
(c) Unless otherwise approved by Owner, all leases shall be: (i) on
a standard form of lease approved by Owner; (ii) prepared in accordance
with leasing guidelines approved by Owner; and (iii) executed by Manager,
as agent for Owner.
(d) Intentionally omitted.
2.15 NOTICES TO OWNER. Manager shall promptly notify Owner in writing if
Manager becomes aware of any of the following:
(a) (intentionally omitted);
(b) any default or alleged default by Owner under any lease;
(c) any litigation or potential litigation affecting the Property
or Owner, or any litigation affecting Manager that could reasonably be
expected to have a material and adverse effect on Manager;
(d) any casualty, loss, injury, claim or other event relating to
the Property that might result in a claim under any applicable insurance
policies;
(e) any actual or threatened condemnation of the Property or any
portion thereof;
15
(f) any violation of any Legal Requirements or Insurance
Requirements, or any violation of same which is alleged in writing or
orally by the authority with jurisdiction thereover;
(g) any involuntary lien filed against the Property; and
(h) any material increases or decreases in costs, expenses or
income not reflected in the Approved Annual Business Plan.
2.16 PROPERTY TAX APPEALS. At the direction of, with the prior approval
of, and at the expense of the Owner, Manager shall engage a tax appeal
professional to annually review the tax assessment for the Property in order to
determine whether to appeal such assessment and request an abatement.
2.17 NO OTHER FEES. Notwithstanding anything to the contrary contained
in this Agreement, Manager shall not be entitled to any leasing commission,
construction management fee or other form of compensation, other than the
Management Fee, by reason of the leasing, supervisory or other services
performed by Manager under this Agreement.
ARTICLE 3. INSURANCE AND CLAIMS
3.1 OWNER'S INSURANCE AND RIGHTS. Manager, as an operating expense of
the Property payable from the Operating Account, will obtain and keep in force
adequate property and commercial liability insurance covering Owner as primary
insured and, with respect to liability insurance, Manager as additional insured,
and otherwise in accordance with any loan documents related to any financing to
which Owner or the Property is subject. Manager shall provide Owner with copies
of policies or certificates of insurance relating to the Property. Such
insurance may be blanketed with other insurance carried by Manager or any
Affiliate of Manager, in which case a pro rata share of the premiums will be
chargeable to the Property as an operating expense. Manager or Manager's insurer
will have the exclusive right (chargeable, at Owner's option, as an operating
expense of the Property) to conduct the defense of any claim, demand or suit
arising out of the ownership, operation or management of the Property. Nothing
herein will be construed as indemnifying Manager or its employees, contractors
or agents against any act or omission for which insurance protection is not
available or is not required hereunder to be carried by Owner and procured by
Manager; neither is the foregoing intended to affect the general requirement of
this Agreement that the Property will be managed, operated and maintained in a
safe condition and in a proper and careful manner. Owner will furnish whatever
information is reasonably requested by Manager for the purpose of placement of
insurance coverages and will aid and cooperate in every reasonable way with
respect to such insurance and any claim or loss thereunder. Owner will cooperate
with Manager and Manager's insurance carrier on loss control inspections,
responding to recommendations and other safety issues.
3.2 MANAGER'S INSURANCE. Manager will maintain (as an operating expense
of the Property with respect to on-site employees only) Workers' Compensation
and similar insurance as required by law. Manager may maintain, at Manager's
expense, Commercial General Liability Insurance. Manager will maintain the
following insurance at its own expense (not
16
chargeable to the Property):
(a) Employer's Liability - $500,000 each accident; $500,000 disease
- policy limit; $500,000 disease - each employee.
(b) Automobile Liability - As to any vehicle owned, non-owned or
hired by Manager, $1,000,000 covering losses due to the insurer's liability
for bodily injury or property damage.
(c) Medical Expenses - $5,000 per person per accident.
(d) Uninsured/Underinsured Motorists' Coverage for any owned car -
$1,000,000.
(e) Comprehensive crime (including Employee Dishonesty) insurance
with limits and terms acceptable to Owner or a fidelity bond acceptable to
Owner.
(f) Excess Liability Coverage - $5,000,000.
The minimum A.M. Best's rating of each insurer is A-IX. Manager will
furnish Owner with certificates of insurance simultaneously with the execution
of this Agreement and whenever coverage is renewed or replaced, evidencing the
aforesaid coverages, which will include provisions to the effect that Owner will
be given at least 30 days' prior written notice of cancellation or non-renewal
of or any material change in any of the aforesaid policies. Owner, and any
lender of Owner, if applicable, will be named as an additional insured with
respect to all insurance policies required under (b) and (d) above and as loss
payee as respects (c) above. All liability policies shall contain endorsements
that (i) delete any employee exclusion on personal injury coverage, (ii) include
employees as additional insureds and (iii) contain cross-liability, waiver of
subrogation and such other provisions as Owner may reasonably require. Such
insurance shall also include broad form contractual liability insurance insuring
all of Manager's indemnification obligations under this Agreement.
3.3 INDEMNIFICATION.
(a) Manager shall indemnify, hold harmless, protect and defend
(with counsel approved by Owner) the Owner Related Entities from and
against all Damages in any manner related to, arising out of or resulting
from:
(i) any failure of Manager or Manager's agents, servants or
employees to perform their obligations under this Agreement;
(ii) any acts of Manager or Manager's agents, servants or
employees which such person does not reasonably believe is within
the scope of its authority under this Agreement; or
(iii) any negligence, willful misconduct or other wrongful
acts or
17
omissions of Manager or Manager's agents, servants or employees.
If the circumstances or events described in clauses (i) through (iii) are
covered by Owner's commercial general liability insurance, then Manager's
obligations under this SECTION 3.3 shall apply only to the extent Owner's
Damages are not fully paid by Owner's commercial general liability insurance.
Notwithstanding any other provisions of this Agreement to the contrary,
Manager's obligations under this SECTION 3.3 shall survive the expiration,
termination or cancellation of this Agreement.
(b) Subject to SECTION 16.18, Owner shall protect, defend,
indemnify and hold harmless Manager from and against any and all Damages
arising out of the performance by Manager of its obligations and duties
hereunder in accordance with the terms hereof with respect to the Property;
provided, however, that Owner does not hereby agree, and shall not be
obligated, to so indemnify Manager from any Damages arising out of any act
or omission of Manager or any of its agents, officers, employees or
representatives, which act or omission constitutes negligence, willful
misconduct, is in breach of this Agreement or is outside the scope of
Manager's authority as provided herein or any Damages for which Manager is
covered by insurance, or for which Manager would be covered by insurance if
it maintained the insurance required by this Agreement.
3.4 CONTRACTORS' AND SUBCONTRACTORS' INSURANCE. Manager will require
that all parties performing work on or with respect to the Property, including,
contractors, subcontractors and service vendors, maintain insurance coverage at
such parties' expense, in the following minimum amounts:
(a) Workers' Compensation - Statutory amount.
(b) Employer's Liability - $500,000 each accident; $500,000
disease-policy limit; $500,000 disease - each employee.
(c) Automobile Liability - $1,000,000 covering losses due to the
insurer's liability for bodily injury or property damage.
(d) Medical Expenses - $5,000 per person per accident.
(e) Uninsured/Underinsured Motorists' Coverage- $1,000,000.
(f) Commercial General Liability: Bodily injury and property damage
- $1,000,000 combined single limit with Contractual Liability coverage.
(g) Excess Liability Coverage - $5,000,000 or such greater amount
as is needed for the specific job.
(h) Transit Coverage - As needed for the specific job.
The minimum A.M. Best's rating of each insurer is A-IX. Manager must obtain
18
Owner's written permission to waive any of the above requirements. Higher
amounts may be required by Owner if the work to be performed is deemed by Owner
to be hazardous. Manager will obtain and keep on file a certificate of insurance
which shows that each such party is so insured. Owner, and any lender of Owner,
if applicable, will be named as an additional insured with respect to
Contractors' and Subcontractors' Auto Liability, Commercial General Liability
and Excess Liability policies. Manager must obtain indemnification and hold
harmless provisions in favor of Owner and Manager.
3.5 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the
following provision may be effective without invalidating or making it
impossible to obtain insurance, Manager and Owner agree that with respect to any
hazard, liability, casualty or other loss or claim which is covered by insurance
then being carried by either Owner or Manager: (a) the party carrying such
insurance and suffering such loss releases the other party of and from any and
all claims with respect to such loss to the extent of the insurance proceeds
paid with respect thereto and specifically excepting from such release any
deductible required to be paid therewith; and (b) their respective insurance
companies shall have no right of subrogation against the other or their
respective agents, contractors, employees, licensees or invitees on account
thereof.
3.6 SERVICE CONTRACTS. Manager shall use all reasonable efforts to
include in all Service Contracts provisions requiring the service provider to
indemnify, defend (with counsel approved by Owner), protect and hold harmless
the Owner Related Entities from all Damages in any manner arising from or
related to the acts or omissions of such service provider or its employees,
agents or contractors.
3.7 CLAIMS. Manager shall promptly investigate and make a full and
timely report to Owner of any casualty, accident, injury or other similar matter
affecting the Property. Manager shall also file such reports in a timely manner
to the applicable insurance carriers in accordance with the terms and conditions
of the relevant policies. Manager shall cooperate with and assist Owner and the
applicable insurance carrier in connection with the investigation and processing
of insurance claims affecting the Property.
ARTICLE 4. FINANCIAL REPORTING AND RECORD KEEPING
4.1 FINANCIAL CONTROLS. Manager will ensure such control over
accounting and financial transactions as is reasonably required to protect
Owner's assets from theft, negligence or fraudulent activity on the part of
Manager's employees or other agents. Uninsured losses arising from theft,
negligence or fraud of Manager, its employees or agents are to be borne by
Manager in its individual capacity and not as an operating expense of the
Property.
4.2 FINANCIAL REPORTS: GENERAL REQUIREMENTS. All financial reports
provided by Manager shall be subject to the following requirements:
(a) All such reports shall comply with the terms of this Agreement,
the Reporting Package and the Approved Annual Business Plan and shall be in
such medium (e.g., computer disks or hard copy) as Owner may require;
19
(b) Manager will maintain, on a system and in a manner approved by
Owner, current data on rent rolls and financial and operating information
in order to enable Owner to maintain its financial systems and database;
(c) Unless Owner otherwise agrees, all reports shall be prepared in
accordance with GAAP;
(d) All such reports shall be certified by Manager's chief
financial officer or controller; and
(e) In the event of any conflict between the reporting requirements
set forth in this Agreement and those required by the Reporting Package or
the Approved Annual Business Plan, the Reporting Package or Approved Annual
Business Plan, as applicable, shall control. Owner may, upon not less than
sixty (60) days' notice to Manager, make changes in or additions to the
Reporting Package.
4.3 MONTHLY STATEMENTS. On or before the fifteenth (15th) day of each
month, Manager shall provide Owner with a monthly statement setting forth the
information required by EXHIBIT H (as well as any additional information that
may be required by the Reporting Package or the Approved Annual Business Plan)
(the "MONTHLY STATEMENT").
4.4 SUPPORTING DOCUMENTATION. As additional support to the Monthly
Statements, Manager will, at Owner's request, provide copies of the following:
(a) A current leasing summary and detailed leasing activity report;
(b) An occupancy/leasing recap, including occupancy by unit type,
actual versus budget occupancy, and economic occupancy;
(c) Detailed cash receipts and disbursements journals;
(d) General ledgers;
(e) Invoices for capital expenditures and nonrecurring items;
(f) Journal entries;
(g) Paid bills;
(h) Detailed trial balance (if available);
(i) Supporting documentation for payroll, payroll taxes and
employee benefits;
(j) Supporting schedules for balance sheet accounts;
(k) A review and analysis of all recovery income accruals;
20
(l) All bank statements and reconciliations;
(m) An aged accounts receivable listing and detailed allowance for
doubtful accounts, with an explanation of all significant delinquencies and
status of collection efforts and recommendations for write-off or reserves
where appropriate;
(n) An accounts payable listing;
(o) A rent roll; and
(p) A summary of any comparable projects within the competitive
market in which the Property is located for which Manager or any Affiliate
of Manager provides leasing or management services or in which Manager or
any Affiliate of Manager has a direct or indirect legal, economic or
beneficial interest, except for those projects (if any) set forth on
EXHIBIT G.
4.5 ANNUAL FINANCIAL REPORTS. Manager shall cooperate with Owner's
accountants in the preparation of financial statements and any related
management letters or similar reporting or regulatory requirements applicable to
Owner. Such financial statements and management letters are to be issued within
sixty (60) days after the end of each calendar year or on such other schedule as
Owner may reasonably require. At Owner's request and expense, Manager will
engage an independent third party firm to audit the annual records and prepare
partnership tax returns.
4.6 TRANSFER OF FUNDS. On or before the fifth (5th) day of every month,
Manager will remit to Owner all cash balances derived from the rents or
otherwise arising from the ownership, use or operation of the Property or the
provision of services at the Property, after deducting (a) an amount agreed to
by Owner for the Property's working capital, and (b) known expenditures that
will be paid between that date and the fifteenth (15th) day of the same month,
provided that the same are consistent with the approved Operating Budget. The
amount so remitted will be delivered to Owner, independent of required financial
reports, in the most expeditious manner possible as directed by Owner. The
schedule for the transfer of funds and the balance permitted to remain in the
Operating Account may be changed from time to time by written instructions from
Owner. At Owner's option, the final monthly remittance will be net of the
Management Fee.
4.7 OWNER'S PROPERTY. All books, records, computer disks containing
Property information, invoices and other documents received and/or maintained by
Manager pursuant to this Agreement are and will remain the property of Owner,
and shall be made available to Owner at any time with reasonable notice. Manager
may retain a copy of such information but it shall be kept confidential.
4.8 BOOKS AND RECORDS. Manager shall maintain separate and accurate
books, records, files and accounts for the Property (collectively, the "BOOKS
AND RECORDS") in a good and orderly fashion. The Books and Records shall be the
exclusive property of Owner, shall be kept at the Property or at Manager's
Notice Address (or such other location as Owner may
21
approve) and shall include the following:
(a) Tenant files, including executed leases, lease abstracts, lease
amendments, original insurance certificates, correspondence, and current
rent rolls;
(b) Maintenance and repair files;
(c) Accounting books and records and supporting documentation;
(d) Construction files, competitive bid records, including site
plans, as-built drawings, tenant space plans, construction specifications,
and capital improvements schedules and information;
(e) Operation files, including HVAC maintenance schedules,
warranties, and operation manuals;
(f) Service contracts, including cleaning, maintenance,
landscaping, snow removal, trash removal, etc.;
(g) Permits and licenses ( including certificates of occupancy for
all tenant spaces);
(h) Copies of insurance policies or certificates; and
(i) Such other information relating to the Property as Owner
requests from time to time.
ARTICLE 5. OWNER'S RIGHT TO AUDIT
5.1 RIGHT TO AUDIT. Owner will at all times and without notification
have the right to conduct audits and examinations of, and to make copies of, the
Books and Records, no matter where such Books and Records are located. Such
right may be exercised through any agent or employee of Owner, or any certified
public accountant designated by Owner. Owner will also have the right to perform
any and all additional audit tests relating to Manager's activities either at
the Property or at any office of the Manager. Should Owner discover either
weaknesses in internal control or errors in record keeping, Manager will correct
such discrepancies promptly upon Owner's request and will inform Owner, in
writing, of the action taken to correct such audit discrepancies. All audits
conducted by Owner will be at the sole expense of Owner.
ARTICLE 6. BANK ACCOUNTS
6.1 OPERATING ACCOUNT. Manager will deposit all rents and other funds
collected from the operation of the Property in an interest-bearing account
established for the Property (the "OPERATING ACCOUNT") in a financial
institution approved by Owner. Any such rents and other funds received by
Manager on or before 2:00 p.m. on a Business Day shall be deposited on that same
day. Any such rents or other funds received after 2:00 p.m. or on a day that is
not a
22
Business Day shall be deposited on the next Business Day. Such account shall be
in the name of the Owner and shall have such withdrawal restrictions as Owner's
may require. Owner will be given written notice of the account number and
location of the Operating Account. In accordance with ARTICLE 7, Manager will
pay out of the Operating Account the operating expenses of the Property and any
other payments relating to the Property required or permitted by the terms of
this Agreement or set forth in the Approved Annual Business Plan. If more than
one account is required to operate the Property, each account will have a
distinct name.
6.2 SECURITY DEPOSIT ACCOUNT. If required by Owner or law, tenant
security deposits will be deposited by Manager in a separate interest-bearing
account established in the name of Owner and at a financial institution approved
by Owner. Except to the extent prohibited by law or tenants' leases, all
interest earned on this account will be distributed to Owner on a monthly basis
as specified by SECTION 4.6. Manager agrees to handle all tenant security
deposits in accordance with all applicable laws and regulations and in
compliance with the leases of the Property.
6.3 CHANGE OF BANKS. Owner may direct Manager to change any depository
bank or depository arrangement. Except with the prior written approval of Owner,
Manager shall not change any depository bank or arrangement or other banking
relationship or procedure.
6.4 ACCESS TO ACCOUNT. Owner will have access to any and all funds in
the accounts described in SECTIONS 6.1 and 6.2. Manager's authority to draw
against such accounts may be terminated at any time by Owner without notice to
Manager. No borrowing authority shall be permitted on any accounts established
on behalf of Owner. All funds in such accounts shall be the exclusive property
of Owner. Only such personnel specifically designated by Manager and approved by
Owner shall have access to such accounts. All of Manager's personnel who have
access to such accounts shall be bonded and insured to the benefit of Owner
against theft or fraud. No accounts maintained pursuant to this Agreement shall
contain funds from any source other than the Property, and no such accounts
shall be commingled with the funds of Manager or any other person.
ARTICLE 7. PAYMENT OF EXPENSES
7.1 COSTS ELIGIBLE FOR PAYMENT FROM OPERATING ACCOUNT. Subject to the
limitations of ARTICLE 2 (including SECTIONS 2.9 (b) AND 2.13), SECTION 7.2 and
the Approved Annual Business Plan, and except as otherwise directed by Owner,
the following expenses, to the extent incurred in accordance with this Agreement
and the Approved Annual Business Plan, shall be paid by Manager directly from
the Operating Account:
(a) Third-party debt service, payments due under any ground lease,
real estate taxes, personal property taxes, betterment assessments and
similar governmental charges properly due with respect to the Property;
(b) Costs of insurance maintained in accordance with SECTION 3.1;
(c) Costs to correct any violation of any Legal Requirements or
Insurance
23
Requirements;
(d) Actual costs of making all repairs, decorations and alterations
and performing all maintenance and preventive maintenance with respect to
the Property;
(e) Cost of collection of delinquent rentals collected through a
collection agency which has been approved by Owner;
(f) Reasonable legal fees and expenses of attorneys incurred in the
ordinary course of business in collecting delinquent receivables;
(g) Cost of capital expenditures;
(h) Leasing commissions and consultant fees payable to third
parties approved by Owner;
(i) Amounts due under Service Contracts and cost of utilities
(other than costs for which any tenant is directly responsible to the
utility company);
(j) Cost of advertising approved by Owner;
(k) Cost of printed forms and supplies required for use at the
Property;
(l) Cost of printed checks for each account required by Owner;
(m) Cost of salary and wages (but not bonus payments, incentive
compensation or other additional payments unless approved by Owner),
payroll taxes, insurance, worker's compensation and other benefits, all
only as specifically set forth on the approved Reimbursable Employee
Expense Schedule, but only to the extent that such costs relate to the
period of such employees' employment in connection with the Property;
(n) The Management Fee; and
(o) Any other expenses included in the Approved Annual Business
Plan.
7.2 NON-REIMBURSABLE COSTS. Notwithstanding anything to the contrary in
this Agreement, the following expenses or costs incurred by or on behalf of
Manager in connection with the Property will be at the sole cost and expense of
Manager and will not be reimbursed by Owner from the Operating Account or
otherwise, and Manager will indemnify and hold harmless the Owner Related
Entities from all liability for the same:
(a) Cost of salary and wages, payroll taxes, insurance, worker's
compensation and other benefits of Manager's management, accounting and
office personnel not reimbursable under SECTION 7.1(m);
(b) General accounting and reporting services which are within the
scope of
24
Manager's responsibilities to Owner under this Agreement;
(c) Cost of forms, papers, ledgers and other supplies, equipment,
copying and telephone of any kind used in Manager's office at any location
other than the Property;
(d) Cost of electronic data processing equipment, or any pro rata
charge therefor, whether or not located at the Property, or for data
processing provided by computer service companies;
(e) Political or charitable contributions;
(f) Cost of advances made to employees and cost of travel by
Manager's employees or agents to and from the Property;
(g) Costs attributable to negligence, misconduct or fraud on the
part of Manager, Manager's associates or Manager's employees or agents, or
arising from Manager's breach under this Agreement, including theft of
assets by Manager's employees, contractors or other agents; penalties or
loss of discount due to delay in payment of bills or invoices; overpayment
or duplicate payment of invoices arising from either fraud or error;
overpayment of labor costs arising from either fraud or error; a sum equal
to the value of any form of payment from purveyors of goods or services to
any of Manager's employees, contractors or agents arising from the purchase
of goods or services relating to the Property; and unauthorized use of
facilities by Manager's employees, contractors or agents;
(h) Cost of comprehensive crime insurance or fidelity bonds
purchased by Manager for its own account;
(i) Training expenses except for on-site employees;
(j) Employment and employment agency fees except for on-site
employees;
(k) Advertising expenses of Manager not directly related to the
Property; and
(l) Dues of Manager or any of its employees in professional
organizations or the cost of any of Manager's employees participating in
industry conventions, meetings or other functions.
ARTICLE 8. INSUFFICIENT GROSS INCOME
8.1 PRIORITIES. Manager shall promptly notify Owner if at any time the
gross income from the Property is or is expected to be insufficient to pay the
bills, charges and liabilities which may be incurred with respect to the
Property. In such event, unless Owner otherwise notifies Manager in writing,
expenses will be paid out of the Operating Account in the following order of
priority:
25
(a) FIRST: third-party debt service payments, ground lease
payments, real estate taxes, personal property taxes, betterment
assessments and any other charges and liabilities which could become a lien
against or result in a forfeiture of the Property;
(b) SECOND: cost of salary and wages, payroll taxes, insurance,
worker's compensation and other benefits of Manager's management,
accounting and office personnel reimbursable under SECTION 7.1(m) as
specifically set forth on the approved Reimbursable Employee Expense
Schedule;
(c) THIRD: insurance premiums due in connection with insurance
maintained in accordance with SECTION 3.1;
(d) FOURTH: bills and charges for utilities;
(e) FIFTH: other bills and charges of third parties, and any and
all claims and demands of third parties and liabilities to third parties
relating to the Property or the operation thereof which Owner in its
discretion determines to pay from the Operating Account;
(f) SIXTH: bills and charges, if any, incurred by Manager for
Manager's services provided to Owner exclusive of the Management Fee and
any other fees due to Manager hereunder (if any); and
(g) SEVENTH: the Management Fee and other fees due Manager
hereunder (if any).
8.2 STATEMENT OF UNPAID ITEMS. Each month, after Manager has paid, to
the extent of available gross income, all bills and charges based upon the
ordered priorities set forth in SECTION 8.1, Manager will submit to Owner an
accounts payable listing that sets forth all remaining unpaid bills and their
due dates.
8.3 SEGREGATION OF ACCOUNTS. If, pursuant to this Agreement, Manager
will manage more than one property, Manager will segregate the income and
expenses of each property so that, unless Owner directs Manager otherwise in
writing, gross income from each property will be applied only to the bills and
charges from such property.
8.4 CASH FLOW FORECASTING. Manager will prepare a detailed cash flow
analysis sufficient to provide Owner with a forecast of account deficits. Such
forecasts will be updated monthly, or more frequently as dictated by field
conditions or as directed by Owner.
8.5 MANAGER NOT OBLIGATED TO FUND. In no event shall Manager have any
obligation to advance any of its own funds in connection with the performance of
its obligations hereunder unless expressly so provided herein. Unless Owner
otherwise agrees in writing, Owner shall not be responsible for any interest on
funds advanced by Manager on Owner's behalf.
26
ARTICLE 9. SALE OR FINANCING OF PROPERTY
9.1 COOPERATION WITH BROKER. If Owner executes a listing agreement or
other brokerage agreement with a broker (other than Manager) or an agreement
directly with a principal for the sale or financing of the Property, or any
other agreement relating to the transfer of ownership of the Property, Manager
will cooperate with such broker or principal to the end that the respective
activities of Manager and such broker or principal will be carried on without
friction and without interference with tenants and occupants. In connection with
any such sale, financing, or other transfer, Manager will:
(a) (intentionally omitted);
(b) use all reasonable efforts to research and confirm the accuracy
of any representations and warranties regarding the Property that are made
by Owner;
(c) execute such consents, assignments, manager estoppels, and
other documents as Owner may reasonably request;
(d) provide such other services as Owner may reasonably require;
and
(e) permit the broker to show the Property (and any principal to
view same) during reasonable business hours.
9.2 NO SALES/BROKERAGE COMMISSIONS. Manager hereby acknowledges and
agrees that, unless it has been engaged by Owner pursuant to a separate written
agreement signed by Owner, Manager has not been engaged hereunder to represent
Owner in connection with any current or future sale, financing or other transfer
of the Property and has no authority to represent Owner in connection therewith
or right to any fee, commission or other form of compensation in connection with
sales, financings, or other transfers, provided Manager, as part of its services
hereunder, agrees to cooperate with Owner in consummating such activities as set
forth in SECTION 9.1.
ARTICLE 10. COOPERATION
10.1 COOPERATION. Should any claims, demands, suits or other legal
proceedings be made or instituted by any person against or affecting Owner which
arise out of any of the matters relating to this Agreement or otherwise, Manager
shall notify Owner promptly and in no event more than five (5) business days
after becoming aware of same and Manager shall give Owner all pertinent
information possessed by Manager and reasonable assistance in the defense or
other disposition thereof.
ARTICLE 11. COMPENSATION
11.1 COMPENSATION. Owner shall pay Manager, and Manager shall accept as
full compensation for Manager's service in managing the Property in accordance
with this Agreement, the Management Fee. Manager will have no right to receive a
Management Fee
27
after the expiration or earlier termination of this Agreement except for fees
earned through the termination date based on Rents received by or on behalf of
Owner before such expiration or earlier termination. Final payment to Manager
shall not be due until a Final Accounting as set forth in SECTION 12.3 is
delivered in a form reasonably acceptable to Owner and Manager's obligations
under SECTION 12.4 are satisfied. The Management Fee for any partial month shall
be prorated based upon the number of days in such month.
"RENTS" for the purpose of the Management Fee computation will consist of
all amounts actually received in cash for the benefit of Owner from rental of
space in the Property or provision of services to tenants of the Property,
including vending machine collections and other forms of miscellaneous income
relating to the leasing of the Property, except that Rents shall NOT include:
(1) Security deposits (unless such deposits have been applied as rental
income upon termination of a lease), utility deposits or other
refundable sums;
(2) Funds received from tenants as reimbursement for utility expenses
paid by Owner;
(3) Rents paid in advance (including additional rent payments such as
real estate taxes and common area maintenance charges) until the
month in which such payments are applied as rental;
(4) Any interest or investment income;
(5) Any proceeds from a financing, refinancing, sale, exchange or
condemnation of all or any portion of the Property or any other
real or personal property associated therewith;
(6) The proceeds of any insurance, including rental loss or business
interruption insurance, and any other amounts paid to Owner on
account of fire or other casualty;
(7) Capital contributions or loans made to Owner;
(8) Any trade discounts and/or rebates received in connection with the
operation and maintenance of the Property or purchase of personal
property associated therewith; and
(9) Any amounts received by or on behalf of Owner before the
Commencement Date.
Rents shall be adjusted from time to time to reflect any amounts received
as income from tenants which are subsequently reimbursed or credited to tenants
due to adjustments, and the Management Fee collected on account of such amounts
shall be adjusted accordingly. Subject to SECTION 8.1, Manager will pay the
Management Fee monthly from the Operating Account. The
28
Management Fee for each month will be paid no earlier than the fifteenth (15th)
day of such month. If sufficient funds are not available in the Operating
Account with thirty (30) days of when the monthly Management Fee is due, Manager
shall invoice Owner for payment.
ARTICLE 12. TERMINATION
12.1 TERMINATION. The term of this Agreement will be for a period of one
(1) year and will be renewed automatically for successive periods of one (1)
year each, unless written notice of non-renewal is given by Owner to Manager at
least thirty (30) days prior to the end of the then-existing term, or by Manager
to Owner at least sixty (60) days prior to the end of the then-existing term.
Notwithstanding the foregoing, and in addition to the provisions of SECTION
12.2, Owner may terminate this Agreement: (a) for cause, immediately upon notice
at any time, or (b) after the first year of the term of this Agreement, without
cause, by giving Manager at least thirty (30) days' prior notice in writing;
provided, however, that if Owner terminates pursuant to this SECTION 12.1(b) and
Owner enters into a
property management agreement for the Property with an
entity owned and/or controlled by an affiliate of Investor within ninety (90)
days of such termination, then Owner shall at such time pay a termination fee to
Manager in the amount of $275,000. Manager shall have the right to terminate
this Agreement: (i) upon thirty (30) days written notice to Owner in the event
that an affiliate of Owner terminates its
property management agreement with
Manager for Oaks at Timuquana Apartments or Bay Pointe Apartments in
Jacksonville, Florida; or (ii) after the first year of the term of this
Agreement, without cause, by giving Owner at least ninety (90) days' prior
notice in writing.
12.2 TERMINATION WITHOUT NOTICE.
(a) Without limitation of Owner's rights under SECTION 12.1, upon
the occurrence of any one or more of the following events, at the sole
election of Owner and without further notice to Manager, this Agreement
will be deemed terminated: (i) dissolution or termination of the legal
existence of Manager, whether by merger, consolidation or otherwise; (ii)
termination or suspension of Manager's real estate brokerage license, if
such license is required as a condition to the performance of Manager's
duties hereunder; (iii) death or incapacity of Manager, if an individual;
(iv) death or incapacity of any individual general partner of Manager, if a
partnership; (v) cessation on Manager's part to do business; (vi) failure
of Manager to deal properly with and account for Owner's funds; or (vii)
the filing of proceedings by or against Manager or any general partner or
parent corporation of Manager for bankruptcy, insolvency, reorganization or
other relief of debtors, or any assignment for the benefit of the creditors
of Manager, unless such proceedings are involuntary and are dismissed or
discharged within sixty (60) days.
(b) Without limiting Owner's rights under SECTION 12.1 or
SUBSECTION (a) above, at Owner's sole election and without further notice
to Manager, this Agreement shall terminate upon the occurrence of the
following events with respect to the Property: (i) the sale or conveyance
of the Property, whether by foreclosure, sale by deed-in-lieu of
29
foreclosure, the assignment of Owner's ownership interest to any purchaser,
lender or its designee, or otherwise; (ii) condemnation of the Property or
such substantial portion of the Property that Owner determines that the
remainder cannot be operated in a commercially reasonable manner; or (iii)
the destruction of all of the improvements comprising such Property or such
a substantial portion thereof that Owner determines that the remainder
thereof cannot continue to be operated in a commercially reasonable manner,
and Owner determines in its sole discretion not to rebuild the Property.
12.3 FINAL ACCOUNTING. Upon termination of this Agreement, Manager will
deliver to Owner the following with respect to the Property ("Final
Accounting"):
(a) A final accounting, reflecting the balance of income and
expenses of the Property as of the date of termination or withdrawal, to be
delivered within thirty (30) days after such termination;
(b) Any balance of any monies of Owner, prepaid rent or tenant
security deposits, or both, held by Manager with respect to the Property,
to be delivered immediately upon such termination; and
(c) The Books and Records and all other records, contracts, leases,
tenant correspondence, files, receipts for deposits, unpaid bills and other
papers, documents or computer disks or information which pertain in any way
to the Property, to be delivered immediately upon such termination.
12.4 OBLIGATION TO VACATE: ORDERLY TRANSITION. Upon termination of this
Agreement, Manager promptly will vacate any office space provided by Owner for
the location of Manager's personnel, and will restore any such office space to
the same condition that it was in at the time such space was first provided to
Manager, or to such better condition as may have existed at any time during the
term of this Agreement, reasonable wear and tear excepted. Upon termination of
this Agreement, Manager will cooperate in all respects in order to effect an
orderly transition of the management functions to a new manager. Manager's
obligations under SECTION 12.3 and this SECTION 12.4 will survive termination of
this Agreement.
ARTICLE 13. SUBSIDIARIES AND AFFILIATES
13.1 SUBSIDIARIES AND AFFILIATES. Manager has set forth on EXHIBIT F
hereto all Affiliates of Manager which may compete in the state in which the
Property is located as at the date of this Agreement. Manager will promptly
notify Owner of any changes or additions to the information set forth on EXHIBIT
F. Any contract or lease of any kind whatsoever between Manager and any
Affiliate of Manager with respect to the Property will be subject to the prior
written approval of Owner, which approval may be withheld at Owner's sole
discretion.
30
ARTICLE 14. NOTICES
14.1 NOTICES.
(a) All notices given hereunder shall be in writing and shall be
delivered by hand, by nationally recognized overnight express delivery
service (all charges prepaid) for next day delivery or by U.S. registered
or certified mail, return receipt requested (all postage prepaid),
addressed to Owner or Manager at Owner's Notice Address or Manager's Notice
Address, respectively.
(b) Any notice or other communication sent or provided above shall
be deemed given (i) on the date of delivery, if by hand or (ii) on the date
mailed, if sent by overnight express delivery service or U.S. registered or
certified mail. Such notice shall be deemed received on the date of receipt
by the addressee or the date receipt would have been effectuated if
delivery were not refused. Each party hereto may designate a new Notice
Address by written notice to the other parties in accordance with this
SECTION 14.1. The inability to deliver a notice because of a change of
address of which proper notice was not given shall be deemed a refusal of
such notice.
ARTICLE 15. CERTAIN REPRESENTATIONS AND COVENANTS
15.1 MANAGER REPRESENTATIONS. Manager hereby represents and warrants to
Owner as follows:
(a) Manager has all licenses, permits, authorizations and approvals
necessary to allow it to enter into this Agreement and perform its duties
hereunder;
(b) Neither Manager nor, to the best of Manager's knowledge, after
reasonable inquiry, any of its employees, has been convicted of robbery,
extortion, embezzlement, fraud, grand larceny, burglary, arson, a felony
drug offense, murder, rape, kidnapping, perjury, assault with intent to
kill, a violation of the Employee Retirement Income Security Act of 1974 or
any other felonies; and
(c) Except as disclosed on EXHIBIT G, neither Manager nor any
Affiliate of Manager is engaged in connection with or has an interest in,
directly or indirectly, whether as an owner, ground lessee, ground lessor,
manager, leasing agent, partner, shareholder, beneficiary, trustee, option
holder, lender or otherwise, any property that is: (i) multi-family
residential apartments; and (ii) located within a one-quarter (1/4) mile
radius of the Property (a "COMPETING PROPERTY"). EXHIBIT G accurately sets
forth the nature of the interest of Manager or any Affiliate of Manager in
any Competing Property. Notwithstanding the foregoing, Manager shall
provide Owner with a list, which list shall be updated by Manager from time
to time in the event of any changes, of any property which Manager or any
Affiliate of Manager is engaged in connection with or has an interest in,
directly or indirectly, whether as an owner, ground lessee, ground lessor,
manager, leasing agent, partner, shareholder, beneficiary, trustee, option
holder, lender or otherwise, that is: (i) multi-family residential
apartments; and (ii) located within a five
31
mile radius of the Property ("MANAGER'S OTHER PROPERTIES"). Attached as
EXHIBIT G-1 is a list of Manager's Other Properties as of the date hereof.
15.2 NON-COMPETITION. Except for those properties (if any) set forth on
EXHIBIT G, Manager agrees that, during the term of this Agreement, neither
Manager nor any Affiliate of Manager shall be engaged or interested, directly or
indirectly, whether as an owner, ground lessee, ground lessor, manager, leasing
agent, partner, shareholder, beneficiary, trustee, option holder, lender or
otherwise, in any Competing Property. Manager acknowledges and agrees that the
foregoing covenant: (a) is a necessary and reasonable protection of Owner's
interest in the Property; (b) will not prevent Manager from earning a
livelihood; and (c) may be enforced by injunction.
ARTICLE 16. MISCELLANEOUS
16.1 WORD MEANINGS. Words such as "herein," "hereinafter," "hereof" and
"hereunder" when used in reference to this Agreement, refer to this Agreement as
a whole and not merely to a subdivision in which such words appear, unless the
context otherwise requires. The singular shall include the plural and the
masculine gender shall include the feminine and neuter, and vice versa, unless
the context otherwise requires. The word "including" shall not be restrictive
and shall be interpreted as if followed by the words "without limitation."
16.2 ASSIGNMENT. Without Owner's prior consent, which Owner may withhold
in its absolute discretion, Manager shall not transfer, assign, subcontract or
delegate its duties under this Agreement, and any attempted transfer,
assignment, subcontract or delegation without such consent shall be of no force
or effect. The services of Manager hereunder are personal in nature.
16.3 BINDING PROVISIONS. Subject to SECTION 16.2, the covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the heirs, legal representatives, successors and assigns of the respective
parties hereto.
16.4 APPLICABLE LAW. The interpretation, construction and enforceability
of this Agreement shall be governed in all respects by the laws of the state in
which the Property is located without regard to any choice of law principles.
Any legal proceedings arising out of any of the transactions or obligations
contemplated by this Agreement may be brought in the state courts of The
Commonwealth of
Massachusetts or the United States District Court for the
District of
Massachusetts. The parties hereto irrevocably and unconditionally:
(a) submit to the jurisdiction of such courts and agree to take any and all
future action necessary to submit to such jurisdiction; (b) waive any objection
which they may now or hereafter have to the venue of any suit, action or
proceeding brought in such courts; and (c) waive any claim that any such suit,
action or proceeding brought in such court has been brought in an inconvenient
forum.
16.5 SEPARABILITY OF PROVISIONS. The parties hereto intend and believe
that each provision in this Agreement comports with all applicable local, state
and federal laws and judicial decisions. If any provision in this Agreement is,
however, found by a court of law to be in violation of any applicable local,
state, or federal law, statute, ordinance, administrative or judicial decision,
or public policy, or if in any other respect such a court declares any such
32
provision to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that, consistent with and with a
view towards preserving the economic and legal arrangements among the parties
hereto as expressed in this Agreement, such provision shall be given force and
effect to the fullest possible extent, and that the remainder of this Agreement
shall be construed as if such illegal, invalid, unlawful, void, or unenforceable
provision were not contained herein, and that the rights, obligations, and
interests of the parties under the remainder of this Agreement shall continue in
full force and effect. Each provision of this Agreement shall be considered
separable and if for any reason any provision or provisions herein are
determined to be invalid, unenforceable or illegal under any existing or future
law, such invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
16.6 SECTION TITLES. Section titles are for descriptive purposes only
and shall not control or alter the meaning of this Agreement as set forth in the
text.
16.7 FURTHER ASSURANCES. Manager and Owner shall execute and deliver
such further instruments and do such further acts and things as may reasonably
be required to carry out the intent and purposes of this Agreement.
16.8 ENTIRE AGREEMENT. This Agreement and the Schedules and Exhibits
attached hereto constitute the entire agreement between the parties hereto with
respect to the transactions contemplated herein, and supersede all prior
understandings or agreements between the parties. All Exhibits and Schedules are
incorporated herein by reference and constitute a part of this Agreement.
16.9 WAIVER. The failure by any party hereto to insist upon or to
enforce any of its rights shall not constitute a waiver thereof, and nothing
shall constitute a waiver of such party's right to insist upon strict compliance
with the provisions hereof. No delay in exercising any right, power or remedy
created hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or remedy by any such party preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. No waiver by any party hereto to any breach of or default in any term or
condition of this Agreement shall constitute a waiver of or assent to any
succeeding breach of or default in the same or any other term or condition
hereof. Each party hereto may waive the benefit of any provision or condition
for its benefit contained in this Agreement, but only if such waiver is
evidenced by a writing signed by such party.
16.10 AGREEMENT IN COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall be considered an original and all
shall constitute one and the same Agreement, binding upon all of the parties
hereto, notwithstanding that all of the parties may not be signatories to the
same counterpart.
16.11 ATTORNEYS' FEES. In the event of a judicial or administrative
proceeding or action by one party against the other party with respect to the
interpretation or enforcement of this Agreement, the prevailing party shall be
entitled to recover reasonable costs and expenses including, without limitation,
reasonable attorneys' fees and expenses, whether at the
33
investigative, pretrial, trial or appellate level, and whether in any
arbitration or bankruptcy proceeding. The prevailing party shall be determined
based upon an assessment of which party's major arguments or positions
prevailed.
16.12 TIME PERIODS. In the event the time for performance of any
obligation hereunder expires on a day other than a Business Day, the time for
performance shall be extended to the next day which is a Business Day.
16.13 MODIFICATION OF AGREEMENT. No modification of this Agreement shall
be deemed effective unless in writing and signed by all of the parties hereto.
16.14 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
16.15 CONSTRUCTION OF AGREEMENT. This Agreement shall not be construed
more strictly against one party than against the other merely by virtue of the
fact that it may have been prepared primarily by counsel for one of the parties.
No provision of this Agreement shall run to the benefit of or be enforceable by
any party other than the parties hereto and their permitted successors or
assigns.
16.16 CONSENT AND APPROVALS. Owner's consents or approvals may be given
only in writing and only by representatives of Owner from time to time
designated in writing by Owner.
16.17 USE OF OWNER'S NAME PROHIBITED. Without Owner's prior approval,
which Owner may withhold in its absolute discretion, Manager will not use the
name of Owner or any Owner Related Entity, or any derivation thereof, in any
manner whatsoever.
16.18 EXCULPATION. Manager, and all persons claiming by, through or under
Manager, shall look solely to Owner's interest in the Property for the
satisfaction of any claim now existing or hereafter arising or accruing against
the Owner, and in no event shall (a) Owner be liable for any deficiency or (b)
any other Owner Related Entity ever have any liability hereunder.
16.19 CONFIDENTIALITY. Manager and its employees and agents agree to keep
all information related to the Property and Owner confidential, except to the
extent necessary to carry out Manager's obligations under this Agreement or as
may be required by law.
16.20 NO JOINT VENTURE. Nothing in this Agreement or in the performance
of any obligations hereunder shall be deemed to create any partnership, joint
venture or similar relationship between Owner and Manager.
[Remainder of page intentionally blank]
34
Executed as an instrument under seal as of the day and year first written
above.
OWNER:
BC-BAINBRIDGE SPICEWOOD LLC, a Delaware
limited liability company
By: BC-Bainbridge LLC, a Delaware limited
liability company, its Manager
By: Bainbridge Jacksonville LLC, a Florida
limited liability company, its Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, its Manager
MANAGER:
BAINBRIDGE MANAGEMENT JACKSONVILLE LLC,
a Florida limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, its Manager
35
PART III - MANAGER AS LEASING AGENT
Owner and Manager further agree as follows, with the terms of this PART III
being deemed to supersede any inconsistent terms contained in PART II:
1. Owner hereby retains Manager as Owner's exclusive leasing agent in
connection with the Property. Manager represents and warrants to Owner that
Manager has all licenses and similar qualifications necessary to the performance
of its leasing services hereunder.
2. The names of the individuals who shall have primary responsibility for
Manager's leasing services hereunder are set forth on the schedule hereto
entitled "LEASING AGENT" (the "LEASING AGENTS").
3. In addition to its duties under PART II of this Agreement, Manager shall
use its best efforts to lease space at the Property to desirable tenants at the
highest possible net effective rents and otherwise in accordance with the
Approved Annual Business Plan. Manager shall perform its leasing
responsibilities hereunder in accordance with the standards and practices of
prudent and qualified leasing agents that act as leasing agents for properties
similar to the Property on behalf of institutional owners or investors. Without
limiting the generality of the foregoing, Manager's responsibilities as leasing
agent shall include the following: (a) subject to the provisions of the Approved
Annual Business Plan or as otherwise approved by Owner, Manager shall, at
Owner's expense, conduct such advertising, marketing and promotion of the
Property as is necessary for the successful leasing of the Property; (b) Manager
shall diligently investigate and pursue all prospective tenants and shall
conduct such canvassing and other solicitations as are necessary in connection
with the leasing of the Property; (c) Manager shall participate, at the
direction of Owner, in lease negotiations; and (d) Manager shall investigate the
creditworthiness and desirability of all proposed tenants and shall prepare a
lease and tenant credit analysis for each proposed lease.
4. Manager shall always give priority to the leasing of space at the
Property that is at least equal to the priority given by Manager to any property
listed on EXHIBIT G or any other Competing Property. Manager shall under no
circumstances induce tenants of the Property to move to space at any property
listed on EXHIBIT G or any other Competing Property.
5. Notwithstanding anything to the contrary in this Agreement, unless
otherwise approved by Owner: (a) Manager shall not negotiate with any
prospective tenant for the lease of space at the Property at a net effective
rent below that provided for in the Approved Annual Business Plan; (b) all
leases of space at the Property shall be on a standard form of lease approved by
Owner; and (d) all leases shall be consistent with the Approved Annual Business
Plan.
6. Other than the Management Fee, Manager shall not receive any
compensation for its leasing services.
7. If Owner is contacted directly by any prospective tenant of the
Property, Owner shall refer such tenant to Manager.
36
OWNER:
BC-BAINBRIDGE SPICEWOOD LLC, a Delaware
limited liability company
By: BC-Bainbridge LLC, a Delaware limited
liability company, its Manager
By: Bainbridge Jacksonville LLC, a Florida
limited liability company, its Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, its Manager
MANAGER:
BAINBRIDGE MANAGEMENT JACKSONVILLE LLC,
a Florida limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, its Manager
37
EXHIBIT A
REPORTING PACKAGE
A
EXHIBIT B
EXECUTIVE PERSONNEL AND BUILDING MANAGER
B
EXHIBIT C
REIMBURSABLE EMPLOYEE EXPENSE SCHEDULE
C
EXHIBIT D
ANNUAL BUSINESS PLAN
D
EXHIBIT E
LIST OF SERVICE CONTRACTS
E
EXHIBIT F
AFFILIATES OF MANAGER
F
EXHIBIT G
COMPETING PROPERTY IN WHICH MANAGER HAS AN INTEREST
G
EXHIBIT G-1
MANAGER'S OTHER PROPERTIES
G-1
EXHIBIT H
MONTHLY STATEMENTS
The following documentation will be furnished to the Owner within ten (10) days
after the end of the calendar month in a format acceptable to Owner:
Transmittal letter which highlights key operational, leasing and financial
matters including comments on the financial and physical condition of the
Property. Included in the letter should be a brief discussion of any income or
expense line item with a negative variance for the month of greater than 5%.
Balance sheet prepared on an accrual basis reflecting the operating results of
the Property.
Income and expense statements prepared on an accrual basis reflecting the
operating results of the Property. Statement should contain actual and budget
current month and cumulative year-to-date figures along with a variance column.
Current rent roll for the Property. Rent roll should include tenant name,
suite/apartment number, vacant suites, security deposits, prepaid rent, lease
expiration and other information specified by Owner.
A status report on capital improvements, tenant improvements and lease
commissions including an analysis of expenditures to date, costs to complete and
expected completion date.
A calculation of the Property Management Fee.
A cash flow statement reconciling from net income to net cash flow on a monthly
and year-to-date basis and a statement showing the calculation of the monthly
transfer of funds to the Owner pursuant to Section 4.6 of the
Property
Management Agreement.
If the Property has commercial or retail tenants, include a calculation of lease
commissions paid during the month.
If the Property includes retail users, include a report of tenant sales and
percentage rent with a comparison against last year.
H