OWNER: BICYCLE CLUB, L.L.C.
M
A N A G E M E N T A G R E E M E N T
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OWNER:
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BICYCLE
CLUB, L.L.C.
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AGENT:
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MAXUS
PROPERTIES, INC.
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PREMISES:
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BICYCLE
CLUB APARTMENTS
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BEGINNING:
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July
5, 2005
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ENDING:
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August
4, 2010
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IN
CONSIDERATION
of the
covenants herein contained, BICYCLE CLUB, L.L.C. (hereinafter called
"Owner@),
and
MAXUS PROPERTIES, INC. (hereinafter called AAgent@),
agree
as follows:
1. The
Owner
hereby
employs the Agent
exclusively to rent and manage the property known as Bicycle Club Apartments
(hereinafter the APremises@)
upon
the terms and conditions hereinafter set forth, for a term of five (5) years,
commencing on July 5, 2005, and terminating on August 4, 2010, and thereafter
for monthly periods from time-to-time, unless on or before thirty (30) days
prior to the date last above-mentioned, or on or before thirty (30) days
prior
to the expiration of any such renewal period, either party hereto shall notify
the other in writing that it elects to terminate this Agreement, in which
case
this Agreement shall be thereby terminated on said last mentioned date. (See
also Paragraph 6.3 below.)
2. THE
AGENT
AGREES:
2.1 To
accept the
management of the Premises, to the extent, for the period, and upon the terms
herein provided, and agrees to furnish the services of its organization for
the
rental operation and management of the Premises.
2.2 To
prepare a monthly statement of receipts and disbursements and to remit, on
a
monthly basis, the net cash flow generated by the Premises after payment
of all
operating expenses, debt service and escrow payments if applicable, to the
following party:
Bicycle
Club, LLC
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In
the
event total monthly disbursements are in excess of total monthly receipts,
the
Owner
shall
promptly provide funds to cover such shortfalls. Nothing contained herein
shall
obligate the Agent
to
advance its own funds on behalf of the Owner
to cover
any shortfalls.
2.3 To
cause all
employees of the Agent
who
handle or are responsible for the safekeeping of any monies of the Owner
to be
covered by a fidelity bond in an amount and with a company determined by
the
Agent.
3. THE
OWNER
AGREES:
To
give
the Agent
the
following authority and powers (all or any of which may be exercised in the
name
of the Owner
and
agrees to assume all expenses in connection therewith:
3.1 To
advertise
the Premises or any part thereof; to display signs thereon and to rent the
same;
to cause references of prospective tenants to be investigated; to sign leases
for terms not in excess of one (1) year and to renew and/or cancel the existing
leases and prepare and execute the new leases without additional charge to
the
Owner;
provided, however, that the Agent
may
collect from tenant all or any of the following: a late rent administrative
charge, a non-negotiable check charge, credit report fee, a sub-leasing
administrative charge, and/or broker's commission and need not account for
such
charges and/or commission to the Owner;
to
terminate tenancies and to sign and
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serve
such notices as are deemed needful by the Agent;
to
institute and prosecute actions to oust tenants and to recover possession
of the
Premises; to ▇▇▇ for and recover rent; and, when expedient, to settle,
compromise, and release such actions or suits, or reinstate such tenancies.
Owner
shall
reimburse Agent
for all
expenses of litigation including attorneys' fees, filing fees, and court
costs
which Agent
does not
recover from tenants. Agent
may
select the attorney of its choice to handle such litigation.
3.2 To
hire,
discharge, and pay all managers, engineers, janitors, and other employees;
to
make or cause to be made all ordinary repairs and replacements necessary
to
preserve the Premises in its present condition and for the operating efficiency
thereof, and all alterations required to comply with lease requirements,
and to
do decorating on the Premises; to negotiate contracts for non-recurring items
not exceeding $5,000.00, and to enter into agreements for all necessary repairs,
maintenance, minor alterations, and utility services; and to purchase supplies
and pay bills. Agent
shall
secure the approval of the Owner
for
items, except monthly or recurring operating charges and emergency repairs
in
excess of the maximum, if, in the opinion of the Agent,
such
repairs are necessary to protect the property from damage or to maintain
services to the tenants as called for by their tenancy.
3.3 To
collect rents and/or assessments and other items due or to become due and
give
receipts therefore and to deposit all funds collected hereunder in the
Agent's
custodial account.
3.4 Agent
agrees
to collect all tenant security deposits. Owner
instructs Agent
to
deposit all security deposits in the general operating account of the property.
Agent
is not
to segregate the security deposits into a separate account or into an escrow
account.
3.5 To
execute
and file all returns and other instruments and do and perform all acts required
of the Owner
as an
employer with respect to the Premises under the Federal Insurance Contributions
Acts, the Federal Unemployment Tax Act and Subtitle C of the Internal Revenue
Code of 1954 with respect to wages paid by the Agent
on
behalf of the Owner
and
under any similar federal and state law now or hereafter in force (and in
connection therewith, the Owner
agrees
upon request to promptly execute and deliver to the Agent
all
necessary powers of attorney, notices of appointment, and the
like).
3.6 The
Agent
shall
not be required to advance any monies for the care or management of said
property, and the Owner
agrees
to advance all monies necessary therefore. If the Agent
shall
elect to advance any money in connection with the property, the Owner
agrees
to reimburse the Agent
forthwith and hereby authorizes the Agent
to
deduct such advances from any monies due the Owner.
The
Agent,
shall,
upon instruction from the Owner,
impound
reserves each month for the payment of real estate taxes, insurance, or any
other special expenditure.
4. THE
OWNER
FURTHER
AGREES:
4.1 To
indemnify,
defend, and save the Agent
harmless
from all suits in connection with the Premises and from liability for damage
to
property and injuries to or death of any employee or other person whomsoever,
and to carry at his (its) own expense public liability, elevator liability
(if
elevators are part of the equipment of the Premises), and workmen's compensation
insurance naming
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the
Owner
and
Agent,
adequate to protect their interests in form, substance, and amounts reasonably
satisfactory to the Agent,
and to
furnish to the Agent
certificates evidencing the existence of such insurance. Unless the Owner
shall
provide such insurance and furnish such certificate within thirty (30) days
from
the date of this Agreement, the Agent
may, but
shall not be obligated to, place said insurance and charge the cost thereof
to
the account of the Owner.
All
such insurance policies shall provide that the Agent
shall
receive thirty (30) days' written notice prior to cancellation of the
policy.
4.2 To
pay
all expenses incurred by the Agent,
including, but not limited to, reasonable attorneys' fees and Agent's
costs
and time in connection with any claim, proceeding, or suit involving an alleged
violation by the Agent
or the
Owner,
or
both, of any law pertaining to fair employment, fair credit reporting,
environmental protection, rent control, taxes, or fair housing, including,
but
not limited to, any law prohibiting or making illegal, discrimination on
the
basis of race, sex, creed, color, religion, national origin, or mental or
physical handicap; provided, however, that the Owner
shall
not be responsible to the Agent
for any
such expenses in the event the Agent
is
finally adjudicated to have personally, and not in a representative capacity,
violated any such law. Nothing contained herein shall obligate the Agent
to
employ counsel to represent the Owner
in any
such proceeding or suit, and the Owner
may
elect to employ counsel to represent the Owner
in any
such proceeding or suit. The Owner
also
agrees to pay reasonable expenses (or an apportioned amount of such expenses
where other employers of Agent
also
benefit from the expenditure) incurred by the Agent
in
obtaining legal advice regarding compliance with any law affecting the premises
or activities related thereto.
4.3 To
indemnify,
defend, and save the Agent
harmless
from all claims, investigations, and suits, or from actions or failures to
act
of the Owner,
with
respect to any alleged or actual violation of state or federal labor laws,
it
being expressly agreed and understood that as between the Owner
and the
Agent,
all
persons employed in connection with the Premises are employees of the
Owner,
not the
Agent.
However, it shall be the responsibility of the Agent
to
comply with all applicable state or federal labor laws. The Owner's
obligation under this paragraph 4.3 shall include the payment of all
settlements, judgments, damages, liquidated damages, penalties, forfeitures,
back pay awards, court costs, litigation expenses, and attorneys'
fees.
4.4 To
give
adequate advance written notice to the Agent
if the
Owner
desires
that the Agent
make
payment, out of the proceeds from the premises, or mortgage indebtedness,
general taxes, special assessments, or fire, steam boiler, or any other
insurance premiums. In no event shall the Agent
be
required to advance its own money in payment of any such indebtedness, taxes,
assessments, or premiums.
5. THE
OWNER
AGREES
TO PAY THE AGENT
EACH
MONTH:
5.1 MANAGEMENT:
Owner
agrees
to pay Agent
for the
ordinary management of the Premises: FIVE
PERCENT (5%)
of the
monthly gross receipts from the operation of the Premises during the period
this
Agreement remains in full force and effect. Gross receipts are all amounts
received from the operation of the Premises including, but not limited to,
rents, parking fees, deposits, laundry income, and fees.
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5.2 OTHER
ITEMS OF MUTUAL AGREEMENT: In the event
Owner
requests
and Agent
agrees
to perform services outside the scope of ordinary management of the Premises,
the parties will agree to a fee and payment structure for these services
prior
to commencement of the work.
6. IT
IS
MUTUALLY AGREED THAT:
6.1 The
Owner
expressly withholds from the Agent
any
power or authority to make any structural changes in any building or to make
any
other major alterations or additions in or to any such building or equipment
therein, or to incur any expense chargeable to Owner
other
than expenses related to exercising the express powers above vested in
Agent
without
the prior written direction of an authorized representative of Owner.
Agent
is
granted the authority to make structural changes or major alterations if
such
actions are required because of danger to life or which are immediately
necessary for the preservation and safety of the Premises or the safety of
the
occupants thereof or are required to avoid the suspension of any necessary
service to the Premises.
6.2 The
Agent
does not
assume and is given no responsibility for compliance of any building on the
Premises or any equipment therein with the requirements of any statute,
ordinance, law, or regulation of any governmental body or of any public
authority or official thereof having jurisdiction, except to notify the
Owner
promptly
or forward to the Owner
promptly
any complaints, warnings, notices, or summonses received by it relating to
such
matters. The Owner
represents that to the best of his (its) knowledge the Premises and such
equipment comply with all such requirements and authorizes the Agent,
its
representatives, servants, and employees, of and from all loss, cost, expense,
and liability whatsoever which may be imposed on them or any of them by reason
of any present or future violation or alleged violation of such laws,
ordinances, statutes, or regulations.
6.3 In
the
event it is alleged or charged that any building on the Premises or any
equipment therein or any act or failure to act by the Owner
with
respect to the Premises or the sale, rental, or other disposition thereof
fails
to comply with, or is in violation of, any of the requirements of a
constitutional provision, statute, ordinance, law, or regulation of any
governmental body or any order or ruling of any public authority or official
thereof having or claiming to have jurisdiction thereover, and the Agent,
in its
sole and absolute discretion, considers that the action or position of the
Owner
or
registered managing Agent
with
respect thereto may result in damage or liability to the Agent,
the
Agent
shall
have the right to cancel this Agreement at any time by written notice to
the
Owner
of its
election so to do, which cancellation shall be effective upon the service
of
such notice. Such notice may be served personally or by registered mail,
on or
to the person named to receive the Agent's
monthly
statement at the address designated for such person as provided in Paragraph
2.2
above, and if service by mail shall be deemed to have been served when deposited
in the U.S. Mail. Such cancellation shall not release the indemnities of
the
Owner
set
forth in Paragraph 4 and 6.2 above and shall not terminate any liability
or
obligation of the Owner
to the
Agent
for any
payment, reimbursement, or other sum of money then due and payable to the
Agent
hereunder.
7. This
Agreement may be canceled by Owner
before
the termination date specified in Paragraph 1, without payment of penalty,
premium or other termination fee, on not less than thirty (30) days' prior
written notice to the Agent.
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8. The
Owner
shall
pay or reimburse the Agent
for any
sums of money due it under this Agreement for service for actions prior to
termination, notwithstanding any termination of this Agreement. All provisions
of this Agreement that require the Owner
to have
insured or to defend, reimburse, or indemnify the Agent
(including, but not limited to, Paragraphs 4.1, 4.2, and 4.3) shall survive
any
termination and, if Agent
is or
becomes involved in any proceeding or litigation by reason of having been
the
Owner's
agent,
such provisions shall apply as if this Agreement were still in effect. The
parties understand and agree that the Agent
may
withhold funds for thirty (30) days after the end of the month in which the
Agreement is terminated to pay bills previously incurred but not yet invoiced
and to close accounts.
This
Agreement shall be binding upon the successors and assigns of the Agent
and
their successors and assigns of the Owner.
IN
WITNESS THEREOF,
the
parties hereto have affixed or caused to be affixed their respective signatures
effective this 5th
day of
July,
2005.
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OWNER:
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BICYCLE
CLUB, L.L.C.
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By:
Maxus Realty Trust, Inc., Manager
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By: /s/
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Vice
President
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AGENT:
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MAXUS
PROPERTIES, INC.
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By: /s/
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CEO
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