EXHIBIT 10.23
PROPERTY MANAGEMENT AND LEASING AGREEMENT
(SOLANA LAND)
THIS PROPERTY MANAGEMENT AND LEASING AGREEMENT (the "Agreement") is
made as of the 27th day of June, 2003, by and between XXXXXXX PARTNERS-SOLANA
LAND, L. P., a Texas limited partnership (hereinafter referred to as "Owner"),
and XXXXXXX PROPERTIES-SOLANA SERVICES, L.P., a Texas limited partnership
(hereinafter referred to as "Manager"), with respect to the following:
WHEREAS, Owner owns the land and improvements commonly known as Solana
Land located in Westlake, Texas, and more particularly described on Schedule 1
attached hereto (the "Project"); and
WHEREAS, Owner desires to engage Manager to manage, operate and lease
the Project, and Manager desires to accept such engagement upon the terms set
forth herein, it being understood that the Solana Marriott Hotel is not located
on the Project and is not subject to this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises and covenants contained herein, Owner and Manager hereby agree
as follows:
ARTICLE I.
EXCLUSIVE AGENCY
Owner hereby appoints Manager as the sole and exclusive leasing agent,
rental agent and manager of the Project and Manager hereby accepts such
appointment, upon the terms set forth herein.
ARTICLE II.
TERM OF AGREEMENT
The term of this Agreement (the "Term") shall commence on the closing
date of the initial public offering of the common stock of Xxxxxxx Properties,
Inc., a Maryland corporation, and shall continue until the expiration or earlier
termination of that certain Noncompetition Agreement by and between Xxxxxxx
Properties, Inc. and Xxxxxx X. Xxxxxxx, III dated as of June 27, 2003 (the
"Noncompetition Agreement").
This Agreement may be terminated prior to the expiration of the Term
only upon the occurrence of one of the events set forth in Section 11.1 below.
ARTICLE III.
ANNUAL PLAN
Annual Plan. On or before November 1 of each calendar year during the Term,
Manager shall prepare and submit to Owner for its approval a proposed annual
plan for the promotion, operation, leasing, repair and maintenance of the
Project for each calendar year (the "Proposed Annual Plan"). For purposes of
this Agreement, a "Fiscal Year" shall mean a calendar year
beginning on the first day of January and ending on the last day of December.
The Annual Plan for the remaining portion of Fiscal Year 2003 is attached hereto
as Exhibit "A".
Each Proposed Annual Plan shall include, among other matters:
(a) an "Operating Budget" which shall set forth, among
other matters, anticipated cash income and expenditures and reserve additions
for such Fiscal Year;
(b) a "Capital Budget" which shall set forth, among other
matters, anticipated and proposed capital expenditures for such year and the
source of funds in respect thereto;
(c) a "Reimbursement Schedule" of anticipated
reimbursements as contemplated by this Agreement;
(d) a "Leasing Plan" which shall include, among other
matters, a statement of the space that Manager projects to be leased during such
year, the projected minimum rent to be obtained for such space and the other
financial provisions of such projected leases (including free-rent periods, rent
abatements, contributions towards taxes and expenses and escalation provisions);
(e) a "Capital Expense Timeline" setting forth
anticipated estimated capital advances by Owner to Manager;
(f) a "Contingency Reserve" estimating funds necessary to
cover any reasonably anticipated capital and operating expenditures in excess of
the Annual Plan;
(g) an allocation of employment of personnel among
Manager (either directly or through subcontracts) and Owner; and
(h) a summary of any other significant activity Manager
expects to undertake during such Fiscal Year.
Approval of Proposed Annual Plan. Within in thirty (30) days of Owner's receipt
of the Proposed Annual Plan, Owner shall deliver to Manager in writing its
approval or disapproval of all matters contained in the Proposed Annual Plan for
the succeeding year. Any disapproval by Owner of a Proposed Annual Plan shall
include a reasonably detailed explanation of the reasons for such disapproval.
If Owner disapproves of any Proposed Annual Plan, Manager shall submit to Owner
a revised annual plan within twenty (20) days of its receipt of Owner's written
disapproval. Manager shall make a good faith effort to have such revised annual
plan satisfy each of the objections set forth in Owner's written disapproval.
Upon written approval of a proposed or revised annual plan by Owner, such plan
shall thereafter be the "Annual Plan" for the succeeding year for the purposes
of this Agreement; provided, however, that if Owner and Manager cannot agree
upon an Annual Plan or certain aspects thereof prior to January 1 of the
succeeding year, the Annual Plan from the prior year shall govern to the extent
of such disputed items (with appropriate adjustments based on increases or
decreases in the yearly Consumer Price Index as published each January by the
U.S. Department of Labor, Bureau of Labor Statistics and the actual amount of
expenses not within the control of Owner or Manager such as real property taxes
and personal property taxes). The parties acknowledge and agree that each
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Annual Plan shall provide sufficient funds for Manager to operate the Project in
a manner consistent with that for the operation of similar first-class office
buildings in Dallas, Texas.
Amendments to Annual Plan. Manager shall submit to Owner any proposed revisions
in the Annual Plan, all of which shall be subject to Owner's approval. Any
approved changes will be reflected in an amended Annual Plan which shall be
applicable for the remainder of the applicable Fiscal Year. However, nothing in
this Section 3.4 shall be construed as releasing Manager from its obligation to
manage the Project in accordance with the Annual Plan.
Obligation and Authority to Implement Annual Plan. Once approved, Manager shall
implement the Annual Plan, and shall be authorized without the need of further
approvals to make the expenditures and incur the obligations provided for in
such Annual Plan.
Performance Within Annual Plan. Manager shall use reasonable diligence and
employ commercially reasonable efforts to ensure that the actual costs of
maintaining and operating the Project shall not exceed the Annual Plan either in
total or in any accounting category. All expenses must be charged to the proper
account on either the operating budget or capital budget reflected in the Annual
Plan, and no expense may be classified or reclassified for the purpose of
avoiding an excess in the annual budgeted amount of an accounting category.
Pursuant to Section 6.5 below, Manager shall obtain Owner's prior written
consent to any expenditure which costs (i) in excess of 5% for any line item in
the budgets included in the Annual Plan, or (ii) $25,000, whichever is less, and
is not reasonably contemplated in the Annual Plan.
ARTICLE IV.
ACCOUNTING
Books and Records. Manager shall maintain adequate and separate books and
records for the Project on behalf of Owner, with sufficient supporting
documentation to ensure that all entries in the books and records are accurate
and complete. Such books and records shall be maintained by Manager at Owner's
address stated herein or at such other location as may be mutually agreed upon
in writing, except such documents used in the day-to-day operation of the
Project by Manager in the performance of its obligations hereunder which may be
maintained at the Project for the benefit of Owner. Manager shall exercise such
control over accounting and financial transactions as is reasonably required to
protect Owner's assets from theft, error or fraudulent activity on the part of
Manager's associates or employees. Losses arising from such instances are to be
borne by Manager.
Accounting, Reports and Financial Statements. Manager shall perform such
accounting and financial reporting services regarding the Project which is
normally provided with respect to first-class office buildings in the area and
any additional accounting and financial reporting services which are required
pursuant to the documents and agreements governing Owner's lending relationships
("Loan Compliance Requirements"). Without limiting the generality of the
foregoing, Manager shall, by the twentieth (20th) day of each month, prepare and
provide to Owner monthly operating reports for the immediately preceding month
(each, a "Monthly Report"), including, (i) an unaudited year-to-date financial
statement; (ii) statement of net operating income, (iii) summary of all lease
activity, (iv) a balance sheet, (v) a calculation of the Management Fee (as
defined below), (vi) a comparison of monthly and year-to-date actual
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income and expense with the operating budget in the Annual Plan and, (vii) on a
quarterly basis only, an analysis of any significant variances between budgeted
and actual amounts. If requested by Owner, Manager shall also, within ninety
(90) days after the end of any Fiscal Year, prepare and provide to Owner annual
financial statements and, at Owner's cost and expense, cause such statements to
be audited. Upon request by Owner, Manager shall prepare and supply to Owner
periodic cash flow forecasts. Manager shall also provide to Owner coordination
for external and internal audits, tax planning and compliance in a manner and
form mutually agreeable by Owner and Manager, and Manager shall provide
additional information reasonably required by individual partners of Owner for
their financial statement purposes for an amount equal to the cost of obtaining
such work.
Copies of Documentation. Manager shall maintain, and make available to Owner
upon reasonable notice at the place of business maintained by Manager the
following:
(a) All bank statements, bank deposit slips and bank
reconciliations,
(b) Cash receipts and disbursement records,
(c) Trial balance,
(d) Paid invoices,
(e) Summaries of adjusting journal entries, and
(f) Supporting documentation for payroll, payroll taxes
and employee benefits.
ARTICLE V.
LEASING ACTIVITIES
Manager shall be the exclusive leasing agent of the Project, and shall
perform all leasing functions relating to the Project. As provided in Article IX
hereof, Manager shall be paid for such leasing activities in conformity with
Schedule 5 to this Agreement, which amounts shall be in addition to the
compensation otherwise payable to Manager hereunder. Without limiting the
generality of the foregoing, Manager's leasing function includes the following:
Leasing. Manager shall use commercially reasonable efforts to lease all space in
the Project which is now vacant, becomes vacant or is projected to become vacant
during the Term, subject to the limitations imposed by the Annual Plan, and
Manager's responsibilities shall include lease negotiation coordination, tenant
improvement coordination, governmental liaison, opening activities, tenant
liaison, facilitating tenant move-in and similar activities. Manager may, in its
sole discretion, engage the services of other outside cooperating real estate
brokers to lease space in the Project on behalf of Owner and who shall be paid
by Owner such commissions as may be included in the Annual Plan or are otherwise
established by Owner and Manager from time to time. Manager shall, so far as
possible, procure references from prospective tenants, investigate such
references and use its best judgment in the selection of prospective tenants.
Where appropriate, upon the occurrence of a vacancy or a projected vacancy,
Manager will prepare and disseminate adequate rental listings. After a vacancy
is listed, Manager will cooperate with
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brokers in an effort to aid in successfully filling the vacancy. Manager shall
establish procedures to ensure that ample time is available to renew existing
leases or obtain new tenants in an effort to minimize vacancies and loss of
income.
Lease Negotiations. Owner shall refer all inquiries concerning the rental of
space in the Project to Manager. All negotiations with prospective tenants shall
be conducted by Manager or under its direction. All leases shall be prepared by
Manager in the name of Owner and shall be in accordance with such leasing
guidelines as Owner and Manager shall agree upon from time to time. Manager
shall secure Owner's prior written approval before entering into any lease that
is not in compliance with the leasing plan set forth in the Annual Plan. All
leases shall be presented to and executed by Owner. Manager shall duly and
punctually comply with all the obligations of Owner under all leases with
tenants of space in the Project, but solely on behalf of Owner and at Owner's
expense.
Advertising and Promotion. Manager shall prepare all advertising and promotional
materials for the Project, which materials shall be used only after Owner's
approval and shall comply with all applicable laws, ordinances and regulations.
The costs of all advertising and promotional materials shall be at Owner's sole
cost and expense and shall either be in accordance with the Approved Operating
Budget or otherwise approved by Owner in writing.
Rates. Rental rates for space in the Project shall be established by Owner.
Manager shall, promptly following the execution of this Agreement and from time
to time thereafter, provide market information and general office space rental
rate surveys and make recommendations to Owner with respect to rental rates.
Lender Approval. Manager shall assist Owner, as requested, in obtaining any
approvals of proposed leases for the Project, the tenants and the terms thereof
which may be required from the Project's lenders, including senior financing,
mezzanine level financing or preferred equity (each, a "Lender" and
collectively, "Lenders") in accordance with the terms of the applicable loan
documents.
ARTICLE VI.
MANAGEMENT OF PROJECT
Manager shall manage, operate and maintain the Project in accordance
with the general standards applicable to other first-class office buildings in
the area and in accordance with Loan Compliance Requirements. Without limiting
the generality of the foregoing, Manager's functions hereunder shall include the
following:
Manager Orientation. Manager has informed itself with respect to the layout,
construction, location, character, plan and operation of the lighting, heating,
plumbing, ventilating and elevator systems and any other mechanical equipment
and systems in the Project, and is familiar therewith, and shall be responsible
for enforcement of all warranties and guaranties pertaining to the equipment of
the Project, provided Owner has made available copies of all such warranties or
guarantees to Manager.
General Management Duties. Manager shall manage the Project in an efficient and
businesslike manner having due regard for the age and physical condition of the
Project. Manager, through
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its employees, independent contractors and subcontractors, shall supply complete
operational services for the Project, provided that the nature and costs of such
services are included in the then current Approved Budgets, and provided further
that the cost of such services are comparable with general prevailing market
conditions. Notwithstanding anything contained in this Agreement to the contrary
and as reasonably requested by Owner, Manager shall perform its obligations
under this Agreement in a manner which does not cause Owner to violate any of
its obligations under Owner's organizational documents or any loan documents
with Lenders; provided, however, (i) that Owner shall make all such
documentation available to Manager for its review; and (ii) that such requests
shall not materially increase Manager's obligations or its non-reimbursable
expenses under this Agreement.
Subcontracting for Services. Manager shall be entitled to subcontract with
Xxxxxxx Properties Services, Inc., a Maryland corporation, a wholly-owned
subsidiary of Manager, or another affiliate of Manager (a "Subcontractor"), to
perform or cause to be provided any of the services required of Manager
hereunder; provided, however, that no such subcontract shall relieve Manager
from its obligations to Owner under this Agreement. All payments made by Manager
to a Subcontractor pursuant to any such subcontract shall be reimburseable by
Owner in accordance with the Annual Plan and the terms hereof.
Rent Collection. Subject to the Loan Compliance Requirements and any "Cash
Management System" (as hereinafter defined), Manager shall use diligent efforts
to collect for the account of Owner all rents and other charges which may become
due at any time from any tenant or from others for services provided in
connection with or for the use of the Project or any portion thereof, and as
directed by Owner, shall institute collection and legal proceedings in the name
of Owner for the collection thereof and for the dispossession of tenants and
other persons from the Project. All attorneys' fees (including charges and
disbursements incurred by counsel) and other third party out-of-pocket costs
incurred in connection with such proceedings shall be borne by Owner. Manager
shall collect and identify any income due Owner from miscellaneous services
provided to tenants or the public including, but not limited to, parking income,
tenant storage, and coin operated machines of all types. Notwithstanding the
foregoing, Manager shall collect rents and deposit same or cause rents to be
collected and deposited in the manner required by the Loan Compliance
Requirements.
Repairs and Maintenance. Manager shall, in the name of and at the expense of
Owner, make or cause to be made on behalf of Owner such ordinary maintenance,
repairs and alterations as Manager may deem advisable or necessary, subject to
and within the limitations of the Operating Budget. Such duties shall include,
without limitation, interior and exterior cleaning, painting, plumbing,
carpentry, engineering, landscaping and such other normal maintenance and repair
work as may be necessary or desirable. However, unless contained in the Annual
Plan, Manager shall secure Owner's prior written approval before making or
authorizing any expenditure which costs (i) in excess of 5% for any line item in
the budgets included in the Annual Plan, or (ii) $25,000, whichever is less, and
is not reasonably contemplated in the Annual Plan; provided, however, that
Manager may make expenditures in excess of the foregoing restrictions in the
event of an emergency if, in the opinion of Manager, such repairs are necessary
to (a) protect the Project, (b) maintain services to tenants as called for in
their leases, (c) avoid property damage to the Project or any improvements
benefiting or appurtenant thereto, and (d) avoid personal injury or death to
persons at or around the Project. Manager shall promptly advise Owner's
designated
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representative regarding any expenditures for such emergency repairs by
notifying a person designated by Owner for such purpose. The authority provided
to Manager in this Section 6.5 shall not extend to expenditures of the type
described in Section 6.6 below or to expenses to refurbish, rehabilitate or
remodel areas covered by new leases. The latter expenditures are subject to the
prior approval of Owner at the time of execution of new leases. Manager shall
promptly inform Owner of major increases in repair and maintenance costs not
reflected in the Annual Plan.
Capital Improvements; Tenant Improvements; Manager or its designee shall be
engaged by Owner as the exclusive developer in connection with any development,
capital improvement project or significant tenant improvement project pursuant
to a mutually acceptable development agreement. Such development agreement shall
be on substantially the same terms and conditions set forth in the term sheet
attached hereto as Schedule 6. Notwithstanding the foregoing, Manager shall, in
the name of and at the expense of Owner, make or cause to be made such capital
improvements to the Project as are included in the Capital Budget or are
otherwise approved by Owner, as well as all remodeling and refurbishing of
tenant premises as approved by Owner in connection with new leases. Manager
shall make recommendations, select contractors and follow bid procedures as
required, from time to time, by Owner and shall supervise all such work to
ensure compliance with contract requirements and applicable law; provided,
however, that contractors selected by Manager pursuant to this Section 6.6 shall
be limited to those included on a list of contractors which has been
pre-approved by Owner. For all such capital improvement projects, development
work or tenant improvement projects, Manager shall be paid a coordination fee as
set forth on Schedule 2 attached hereto.
Service Contracts. Manager shall, in the name of and at the expense of Owner,
contract for those utilities and other building operation and maintenance
services Manager shall deem advisable; provided that no service contract shall
be for a term exceeding one year without the prior written approval of Owner,
and the cost of all such services shall be included in the Operating Budget or
otherwise approved in writing in advance by Owner. Further, at the time of
execution of any service contract, the cost of the services to be provided under
such contract shall be comparable with general prevailing market conditions.
Manager shall, at the Owner's expense, purchase and keep the Project furnished
with all necessary supplies. All expenses shall be charged to Owner at net cost,
and Owner shall be credited with all rebates, refunds, allowances and discounts
allowed to Manager. No service contracts with any affiliate of Manager or any
affiliate of any of the members of Owner shall be entered into except in
accordance with the Loan Compliance Requirements and this Agreement.
Tax and Mortgage Payments. If requested by Owner, Manager shall obtain, verify
and pay from Project Income (as defined below) all bills for payments due under
all mortgages, real estate, personal property and improvement assessments with
respect to the Project and Owner's personal property located therein. In such
event, all such expenses shall be included in the Operating Budget.
Insurance. Manager shall, at Owner's cost and expense, obtain and maintain
insurance with respect to the Project in customary levels and in accordance with
the Annual Plan, which may be provided through an umbrella policy. Manager shall
also cooperate with Owner's insurance
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carrier in the processing of claims and defense and settlement of lawsuits with
respect to the Project.
Writeoffs and Abandonments. Manager shall obtain the approval of Owner for the
writeoff, abandonment or reduction of any amounts otherwise due Owner from
Project operations.
Lockbox and Cash Management Arrangements. Manager shall cooperate with Owner and
the Lenders with respect to any lock box or cash management arrangements
established by Owner and any Lender (a "Cash Management System"). All payments
required to be made by Manager under this Agreement for taxes, insurance,
operating expenses, capital expenditures and other expenses relating to the
Project shall be subject to the terms and provisions of any such Cash Management
System. At Owner's direction, Manager shall coordinate with the Lenders to cause
all remaining funds, after all required payments and reserves are made pursuant
to any Cash Management System, to be deposited into one or more Project Accounts
(as defined below) established by Manager for the benefit of Owner pursuant to
Section 8.1 below.
Monitoring Accounts. Manager shall monitor, through computer access to the
extent available, all Project Accounts and other accounts established by Manager
on behalf of Owner and/or required by any Lender. In the event Manager
determines at any time that funds in such accounts are insufficient for such
purposes, Manager shall immediately inform Owner of such insufficiency and
provide Owner with a statement of outstanding amounts currently due. Unless
otherwise required by the Loan Compliance Requirements or any Cash Management
System, all funds received by Manager for or on behalf of Owner (less any sums
properly deducted by Manager pursuant to any of the provisions of this Agreement
and the Annual Plan) shall be deposited in the appropriate Project Account
maintained by Manager for the deposit of funds of Owner and not mingled with the
funds of Manager or any other project.
Return of Excess Funds in Project Account. Subject to the terms of any Cash
Management System and the Loan Compliance Requirements, on each date that
Manager provides Owner with a Monthly Report, Manager shall also remit to Owner
all funds, if any, that are available in the Project Accounts, after deducting
the Management Fee, Leasing Commissions (as defined below) and/or reimbursements
due to Manager and any Contingency Reserve or other amounts agreed to from time
to time by Owner and Manager.
ARTICLE VII.
METHODS OF OPERATION
Contracting. All service contracts permitted to be entered into pursuant to
Section 6.7 above, all contracts for capital improvements and all contracts for
the refurbishing and modeling of tenant spaces which (a) cover expenditures
included within the Annual Plan or expenditures which are otherwise approved in
advance by Owner or (b) which are approved in advance by Owner or otherwise meet
criteria established by Owner for such contracts, shall be executed by Manager
as agent for Owner. Without relieving it of its obligations hereunder, pursuant
to Section 6.3 above, Manager shall be entitled, in its discretion and at its
cost, to enter in its own name into such subcontracts with third parties or
affiliates to perform any of the management functions which are the subject of
this Agreement as it may determine. All other contracts with respect to the
Project and all tenant leases shall be executed by Owner. Upon any termination
of this
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Agreement, Manager shall, if requested by Owner, assign all assignable contracts
executed by Manager to Owner.
Compliance With Laws. Subject to the other provisions of this Agreement, Manager
shall be responsible for operating and maintaining the Project in compliance
with known federal, state and municipal laws, ordinances, regulations and orders
relative to the leasing, use, operation, repair and maintenance of the Project
and with the rules, regulations or orders of the local Board of Fire
Underwriters or other similar body (collectively, the "Legal Requirements") and
in accordance with the Loan Compliance Requirements. At Owner's expense, Manager
shall promptly remedy any violation of any Legal Requirements or Loan Compliance
Requirements which comes to its attention, and further agrees, at Owner's
expense, to promptly provide to Owner written notice of any known actual,
alleged or threatened violation of or failure to comply with any Legal
Requirement or Loan Compliance Requirement. Expenses incurred in so complying
and in correcting any such violation shall be included in the Annual Plan or
otherwise approved in advance by Owner. Subject to the following sentence,
Manager shall also be responsible for compliance with all terms and conditions
contained in any ground lease or space lease or security instrument affecting
the Project and for remedying any breach thereof. Notwithstanding the foregoing,
however, Manager's responsibilities under this Section 7.2 shall not extend to
matters (i) caused by Owner's gross negligence or willful misconduct, or (ii) as
to which the expenditure of Owner's funds is required but disapproved by Owner.
Manager shall assist Owner in Owner's efforts to comply with Federal, State or
other governmental energy conservation laws, regulations, rules, etc., and, in
addition, shall cooperate with Owner to implement such energy conservation
programs as Owner may desire to implement from time to time.
Bonding. All employees of Manager who handle or are responsible for Owner's
funds shall, if requested by Owner, be covered by a fidelity bond. The amount of
such bond shall be determined by Owner and the premium therefor shall be an
operating expense of the Project.
Legal Proceedings. Manager shall, at Owner's request and expense, engage counsel
and cause such legal proceedings to be instituted as may be necessary to enforce
payment of rent and compliance with leases or to dispossess tenants. Manager
shall use Owner's legal counsel or other legal counsel approved by Owner to
institute such actions, and all compromises shall be subject to the prior
approval of Owner. Attorneys' fees and costs so incurred shall be expenses of
the Project but shall be submitted to Owner for approval prior to payment.
Manager shall deliver copies of all written notices or other documentation
evidencing actual or threatened lawsuits to Owner promptly upon receipt by
Manager.
Employment of Personnel. 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 and maintain the Project; provided,
however, that Manager may cause Owner to directly employ the personnel listed on
Schedule 3 under the heading "Owner's Employees", which personnel shall operate
under the supervision and direction of Manager. The remaining personnel on
Schedule 3 shall also be under the supervision and direction of Manager. Manager
may, in its discretion, cause additional or fewer on-site employees to be
employed either by Owner, Manager or a subcontractor for the benefit of the
Project as it deems necessary or appropriate in order to manage the Project in a
first-class manner consistent with comparable projects in the
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area; provided, however, that employment of any additional on-site employees for
which no provision has been made in the Annual Plan must have the prior written
consent of Owner. All matters pertaining to the employment, supervision,
compensation, promotion and discharge of such employees, as well as union
negotiation and compliance with laws and regulations dealing with employee
matters, shall be coordinated by Manager; provided, however, that Owner shall
have the right to request that any particular employee be prohibited from
working at or for the benefit of the Project. The wages, salaries and other
compensation paid to employees of the Project, and to others who perform special
services for the benefit of the Project, shall be paid in accordance with
Article IX hereof. This Agreement is not one of employment of Manager by Owner,
but one with Manager engaged as an independent contractor in the business of
property management. In the event that any expenses are attributable in part to
the Project and in part to other properties owned and managed by Manager, such
expenses shall be prorated by Manager as appropriate from time to time and in a
manner agreeable to Owner and Manager. Upon request by Owner, Manager will
submit to Owner a report of all such prorations.
Services to Existing Tenants. At Owner's expense, Manager shall perform services
for tenants of the Project which are normally provided to tenants of other first
class buildings in the area or which are specifically requested by Owner.
Manager shall use commercially reasonable efforts to render such services to
tenants of the Project in an effort to minimize any cost to Owner and in a
manner that is consistent with the standards set forth in this Agreement.
ARTICLE VIII.
FINANCIAL MATTERS
Bank Accounts. In coordination with Lenders and in compliance with the terms of
any Cash Management System, Manager (on behalf of Owner) shall establish an
operating trust account or accounts for the Project at such bank(s), under such
designation(s) and with such authorized signatures as Owner may approve from
time to time (each, a "Project Account") and, subject to the Loan Compliance
Requirements and any Cash Management System, all funds collected from the
operation of the Project, shall be deposited in the appropriate Project
Account(s), to be held in trust in such Project Account(s) for the benefit of
Owner, after all required disbursements and payments are made pursuant to any
Cash Management System and the Loan Compliance Requirements. All expenses of the
Project, including Management Fees, Leasing Commissions and reimbursements to be
paid to Manager, to the extent not already made pursuant to the Cash Management
System, shall be paid by Manager from the Project Account(s). If required by
law, Owner, any Cash Management System, or the Loan Compliance Requirements, a
separate account(s) for tenant security deposits shall be established in the
same manner as provided in the preceding sentence and shall be maintained as
required by law, any Cash Management System, Owner or the Loan Compliance
Requirements. Owner may require Manager to change banks, change accounts, change
account designations and make disbursements or distributions of Project funds
from time to time, and Manager shall promptly comply with all such directions
from Owner.
Audits. Owner reserves the right to audit all books and records maintained by
Manager with respect to the Project. All audits shall be at Owner's cost, shall
be conducted by appointment during normal business hours and shall be conducted
at Manager's office where such books and
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records are located. An audit may be conducted by Owner's employees or by
independent persons engaged by Owner. Any discrepancies noted in any audit shall
be promptly corrected.
ARTICLE IX.
COMPENSATION OF MANAGER
Compensation. For its services hereunder, Manager shall be paid a monthly Base
Management Fee, a monthly Incentive Management Fee and other compensation as
specified in Schedule 2 attached hereto (collectively, the "Management Fee").
For the purposes of this Agreement, "Project Income" means all Rent and all
Other Income actually collected from Project operations during such month,
"Rent" shall mean all amounts collected from Project tenants other than (i)
security and other tenant deposits (other than as applied to pay rent or
additional rent) and (ii) rents paid in advance by tenants, except the portion
of any such advance payment applied to the rent due for the current month,
"Other Income" shall mean all income from the Project which shall include,
without duplication, operating expense reimbursements, fees, amounts paid for
after hours or excess utilities and/or air conditioning service, amounts paid
for special services rendered to tenants and vending machine rental charges, but
shall not include Rent, amounts received by Owner or tenants in settlement of
insurance claims, costs and fees recovered in litigation (except amounts
allocable to past due rent or additional rent), refunds or returns of taxes
paid, amounts paid under construction contracts, or proceeds from any sale or
financing of the Project or any portion thereof, "Net Cash Flow" shall mean (a)
Owner's Project Income plus any amounts released from reserves that were
originally funded from Project Income or Net Capital Proceeds realized by Owner
during the Term, less (b) funds used to pay operating expenses associated with
such portion of the Project (including Base Management Fees), funds used to pay
or establish reserves, debt service payments (including principal and interest),
funds used for capital repairs and replacements. Net Cash Flow shall not include
capital contributions, partner loans, or Net Capital Proceeds, "Net Capital
Proceeds" shall mean the net proceeds of a Capital Event realized by an Owner
after (a) payment of all expenses payable to unaffiliated third parties
associated with such Capital Event, (b) repayment of all indebtedness related to
such portion of the Project involved with the Capital Event (including partner
loans), and (c) an allowance is made for reasonable cash reserves. With respect
to a Capital Event involving the Project (or any portion thereof), Net Capital
Proceeds shall be calculated after the return of capital contributions made
toward the pre-development and improvement of such land, and "Capital Event"
shall mean (a) a sale, transfer, exchange or other disposition of the Project or
any portion thereof, (b) a financing or refinancing of indebtedness related to
the Project, and (c) a condemnation, recovery of damage award and insurance
proceeds (to the extent not used to improve or repair such portion of the
Project).
Employee Compensation. The wages, salaries and other compensation paid to
employees who will be employed for the benefit of the Project, and to others who
perform special services for the benefit of the Project, to the extent not
otherwise paid through a Cash Management System, shall be paid by Owner from a
Project Account pursuant to this Section 9.2.
(a) All wages, salaries and other compensation paid to
employees of the Project, including, but not be limited to, unemployment
insurance, social security, worker's compensation, employee benefit packages and
other charges imposed by a governmental authority or provided for in a union
agreement, shall (a) as to employees of Manager or any
11
Subcontractor, be reimbursed by Owner to Manager (or directly to the applicable
Subcontractor, if requested by Manager) without profit or xxxx-up, and (b) as to
employees of Owner, be paid directly by Owner. Manager shall coordinate all
disbursements and deposits for all compensation and other amounts payable with
respect to persons employed in connection with the operation of the Project from
an appropriate Project Account. Manager shall maintain complete payroll records
for all employees.
(b) In addition to the employment of employees set forth
on Schedule 3, Manager may, in its discretion, from time to time employ
personnel of its general operations to perform direct special services for the
benefit of the Project; provided, however, that Manager shall obtain the prior
approval of Owner for the employment of such special personnel, except in
emergency situations or when timing requirements do not allow for such prior
approval. Owner shall reimburse Manager for such direct services rendered by
special personnel in an amount commensurate with normal and customary charges
for such services by similarly qualified persons. Persons whose compensation may
not be charged to Owner for services rendered to the Project includes the
general asset management personnel of Manager who are not on-site of the
Project.
Reimbursable Expenses, Office, and Other Services. Owner shall reimburse Manager
for all direct out-of-pocket expenses incurred by or on behalf of Manager in
connection with this Agreement without profit or xxxx-up, which expenses shall
be reflected in the Annual Plan, and shall include, but not be limited to,
normal office expenses and business and travel expenses associated with
operating an on-site business office. Further, Owner shall provide for the use
of Manager a furnished management office in the Project, to be utilized directly
for the benefit of the Project, together with high speed internet service,
e-mail, telephone service, office janitorial service, printed form and customary
office supplies and equipment (such as computers, photocopying equipment and
calculators). The method of finishing and equipping such office, and the total
cost thereof, shall be determined by Owner from time to time based upon the
recommendations of Manager.
Non-Reimbursable Expenses. Except as otherwise set forth on Schedule 2, the
following expenses or costs incurred by or on behalf of Manager in connection
with this Agreement shall be at the sole cost and expense of Manager and shall
not be reimbursed by Owner:
(c) Cost of gross salary and wages, payments of all
taxes, insurance, worker's compensation and other benefits of Manager's office
personnel not employed on site of the Project and not employed as special
personnel as provided in Section 9.2(b) above. Such personnel include those
identified on Schedule 4 hereof.
(d) General accounting and reporting services which are
considered to be within the reasonable scope of the Manager's responsibility
under this Agreement.
(e) Cost of advances made to employees and the cost of
local travel by Manager's employees or associates to and from the Project.
(f) Cost attributable to losses arising from negligence
or fraud on the part of Manager, Manager's associates or Manager's employees.
12
Payment of Expenses. Payment or reimbursement of the amounts described in
Sections 9.1 through 9.3 above shall be as follows:
(g) The monthly Management Fee payable pursuant to
Section 9.1 above shall be calculated and paid concurrently with Manager's
submission of its monthly accounting to Owner and, upon submission of such
accounting, Manager may pay such fee from Project operating funds then in its
possession or control or in a Project Account.
(h) Employee expenses and out of pocket expenses pursuant
to Sections 9.2 and 9.3 shall be reimbursed to Manager at the time incurred by
Manager and Manager may reimburse such expenses from time to time from Project
operating funds under its possession or control or in a Project Account. A
detailed summary of such reimbursable expenses shall be included on Manager's
monthly accounting to Owner.
ARTICLE X.
INSURANCE AND INDEMNIFICATION.
Indemnity and Hold Harmless. Owner agrees to:
(a) Hold and save Manager free and harmless from any
damage or injuries to persons or property by reason of any cause whatsoever
either in and about the Project or elsewhere when Manager is carrying out the
provisions of this Agreement or acting under the express or implied directions
of Owner.
(b) Reimburse Manager upon demand for any moneys which
Manager is required to pay out for any reason whatsoever, under this Agreement
or in connection with, or as an expense in defense of any claim, civil or
criminal action, proceeding, charge or prosecution made, instituted or
maintained against Manager or Owner and Manager, jointly or severally, affecting
or due to the condition or use of the Project or acts or omissions of Manager or
employees of Owner or Manager, or arising out of or based upon any law,
regulation, requirement, contract, or award relating to the hours of employment,
working conditions, wages or compensation of employees or former employees.
(c) Defend promptly and diligently, at Owner's expense,
any claim, action or proceeding brought against Manager or Manager and Owner
jointly or severally arising out of or connected with any of the foregoing, and
to hold harmless and fully indemnify Manager from any judgment, loss or
settlement on account thereof.
The foregoing agreement of Owner shall expressly extend to any liabilities,
claims and costs of defense arising out of or resulting from failure or refusal
of Owner to authorize compliance with any law, rule, order or determination of
any governmental authority with respect to the Project, where such matter is
promptly brought to Owner's attention by Manager, and Owner declines to comply
with the same. Nothing contained herein, however, shall relieve Manager of
responsibility to Owner for Manager's gross negligence or willful misconduct,
unless such gross negligence or willful misconduct is covered by Owner's
insurance. The provisions of this Section 10.1 shall survive the expiration or
termination of this Agreement.
Insurance.
13
(d) Owner's Insurance. Owner agrees to carry public
liability, elevator liability and contractual liability insurance (specifically
insuring the indemnity provisions contained in Section 10.1 above), and such
other insurance as the parties agree to be necessary or desirable for the
protection of the interests of Owner and Manager, which may be provided through
an umbrella policy, in each such policy of insurance, Owner shall designate
Manager as a party insured with Owner and the carrier and the amount of coverage
in each policy shall be mutually agreed upon by Owner and Manager. A certificate
of each policy issued by the carrier shall be delivered promptly to Manager by
Owner. All policies shall provide for 30 days' written notice to Manager and
Owner prior to cancellation, non-renewal or material amendment.
(e) Manager's Insurance. If requested by Owner at any
time during the Term, Manager (as a reimbursable expense under this Agreement)
and any independent contractors employed by Manager (at such contractor's
expense) shall maintain in full force and effect commercial general liability,
workers' compensation, employer's liability and such other insurance as Owner
may reasonably require with such limits as are customary for managers of similar
first class projects in the area.
Conditions. Owner's obligations under Sections 10.1 and 10.2 are upon the
condition that Manager:
(f) Notifies Owner within five (5) business days after
Manager receives notice of any such loss, damage or injury.
(g) Takes no action (such as admission of liability)
which might bar Owner from obtaining any protection afforded by any policy Owner
may hold or which might prejudice Owner in its defense to a claim based on such
loss, damage or injury.
(h) Agrees that Owner shall have the exclusive right, at
its option, to conduct the defense to any claim, demand or suit within limits
prescribed by the policy or policies of insurance.
(i) Cooperates with Owner in disposition of claims,
including furnishing all available information to Owner's carrier.
(j) Recognizes that the foregoing shall not affect the
general requirement of this Agreement that the Project shall be managed,
operated and maintained in a safe condition and in a proper and careful manner.
Insurance Provisions. Owner shall include, in its hazard policy covering the
Project, personal property, fixtures and equipment located thereon, and Manager
shall include in any fire policies for its furniture, furnishings or fixtures
situated at the Project, appropriate clauses pursuant to which the respective
insurance carriers shall waive all rights of subrogation with respect to losses
payable under such policies. If such clauses are available and obtained in the
respective insurance policies of Owner and Manager, each of Owner and Manager
waive any claim against the other covered by their respective aforementioned
policies of insurance.
Third Party Insurance. If requested by Owner, Manager shall require that all
contractors and service companies operating in or on the Project maintain such
worker's compensation,
14
employer's liability and comprehensive general liability insurance as may be
reasonably required by Owner, including any special coverage required by Owner
in connection with hazardous operations.
ARTICLE XI.
TERMINATION OF AGREEMENT
Termination. Notwithstanding the provisions of Article II hereof, this Agreement
may be terminated prior to the expiration of the Term upon any of the following
events:
(a) Manager may resign at any time, for any reason or no
reason, upon giving Owner at least ninety (90) days prior written notice; or,
(b) Upon thirty (30) days prior written notice, Owner may
terminate this Agreement upon closing of a sale, transfer or exchange by Owner
(including foreclosure) of Owner's entire interest in the Project or it's right
to collect the income therefrom, unless the transferee elects prior to such
closing and by written notice consented to by Manager, to assume the obligations
of Owner pursuant to this Agreement accruing subsequent to such closing;
(c) Upon thirty (30) days prior written notice to
Manager, Owner may terminate this Agreement at any time for "cause," as such
term is hereafter defined, provided that, with respect to any cause for
termination pursuant to subsections (i) or (ii) below which is reasonably
susceptible of cure, Owner shall not be entitled to terminate for such cause
unless (1) Manager shall fail, after Owner gives Manager written notice of the
existence of such cause for termination hereof, to cure the cause for
termination promptly, and in any event within ninety (90) days after such
written notice, or (2) if the cure for such cause for termination would
reasonably require more than ninety (90) days to complete (except that there
shall be no opportunity to cure a cause for termination described in subsection
(iii) below) Manager shall fail to commence to cure such cause for termination
promptly, and in any event within said ninety (90) day period and thereafter
diligently prosecute the same to completion. The term "cause" as used herein in
connection with the termination of this Agreement shall mean (i) the failure by
Manager (in the reasonable opinion of Owner) to comply with a material provision
of this Agreement, (ii) the failure by Manager (in the reasonable opinion of
Owner) to exercise prudent managerial skill and efficiency in the management of
the Project which has a material adverse impact on Owner, (iii) fraud,
intentional misrepresentation, or breach of trust or the intentional breach of a
material provision of this Agreement by Manager, (iv) any action taken by or
against Manager pursuant to any statute pertaining to bankruptcy or insolvency
or the reorganization of Manager (unless, in the case of an involuntary case
filed against Manager, the same is dismissed within one hundred twenty (120)
days), the making by Manager of any general assignment for the benefit of
creditors; the appointment of a trustee or receiver to take possession of all or
any portion of Manager's assets or of Manager's interest in this Agreement,
where possession is not restored to Manager within one hundred twenty (120)
days; or the attachment, execution or other judicial seizure of all or any
portion of Manager's interest in this Agreement, where such seizure is not
discharged within one hundred twenty (120) days or (v) an assignment of this
Agreement by Manager that is not permitted by Section 12.4 hereof. If the
parties dispute whether "cause" exists for purposes of this Section 11.1(c),
the parties shall initiate the dispute resolution provisions contained in
Section 12.13 below. During any such pending dispute, Manager shall
15
remain fully responsible for its obligations and duties hereunder and all
Management Fees shall continue to be paid to Manager until the effective date of
the termination of this Agreement.
Obligations Upon Termination. Upon the termination of this Agreement by any
means:
(d) Owner shall remain bound by all contracts entered
into by Manager in the name of Owner within the limitations contained in this
Agreement and the Annual Plan, and shall remain obligated to Manager for all
Management Fees earned by Manager through the date of termination and for all
reimbursements due to Manager pursuant to this Agreement. Upon termination of
this Agreement, the determination of Net Cash Flow and Net Capital Proceeds (if
applicable), as such determination relates to the calculation of any Incentive
Management Fees, shall not be decreased by the amount held in any reserves that
are funded from Project Income earned during the term (and not theretofore
released).
(e) Manager shall remain obligated:
(i) To render to Owner a final accounting of
income and expenses of the Project as provided in this Agreement through the
effective date of such termination.
(ii) To deliver to Owner all income and all
security deposits from the Project in Manager's possession after reimbursement
of all expenses and payment of all management fees which Manager is entitled to
receive from such funds.
(iii) To deliver to Owner all keys, records,
contracts, leases, receipts, unpaid bills and other documents relative to the
Project and in Manager's possession at date of termination.
(iv) Assign to Owner all of its rights and
obligations in any contracts entered into in accordance with the terms of this
Agreement, and Owner (or its designee) shall assume all of the obligations
thereunder.
ARTICLE XII.
GENERAL PROVISIONS
Independent Contractor. It is expressly understood and agreed that Manager will
act as an agent for Owner and as an independent contractor in the performance of
this Agreement.
Notices. Any notice which must or may be given under this Agreement or by law
shall, except as otherwise provided, be in writing and shall be deemed to have
been given (i) when physically received by personal delivery (which shall
include the confirmed receipt of a telecopied facsimile transmission), or (ii)
three business days after being deposited in the United States certified or
registered mail, return receipt requested, postage prepaid, or (iii) one
business day after being deposited with a nationally known commercial courier
service providing next day delivery service (such as Federal Express). All
notices shall be addressed and delivered to the addresses set forth on the
signature page of this Agreement, or to such other addresses which may be
provided by any party hereto to the other in writing.
16
Attorneys' Fees. If suit or action is instituted in connection with any
controversy arising out of this Agreement, the prevailing party shall be
entitled to recover, in addition to costs, such sum as the court may adjudge
reasonable as attorneys' fees in such suit or action and on any appeal from any
judgment or decree entered therein.
Assignment. This Agreement and the rights and obligations hereunder, shall not
be assignable by either party hereto without the written consent of the other;
provided, however, that the foregoing shall not extend to assignments by Manager
to any affiliate of Xxxxxxx Properties, Inc., assignments required by any
insurance carrier in any matter relating to subrogation or an assignment by
Owner in connection with a sale of the Project; provided, further, that Manager
may subcontract with affiliates of Manager and/or third parties to assist in
carrying out its duties hereunder as set forth in this Agreement.
Amendments. Except as otherwise provided herein, all amendments to this
Agreement shall be in writing and executed by the party to be charged.
Integration. This Agreement, and the Schedules attached hereto and made a part
hereof, supersede and take the place of any and all previous management
agreements entered into between the parties hereto relating to the Project.
Governing Law. This Agreement is executed with respect to a project located in
the State of California and shall be governed by and construed in accordance
with the laws of such state.
Cooperation. Should any claim, demand, action or other legal proceeding arising
out of matters covered by this Agreement be made or instituted by any third
party against a party to this Agreement, the other party to this Agreement shall
furnish such information and reasonable assistance in defending such proceeding
as may be requested by the party against whom such proceeding is brought.
Waiver of Rights. The failure of Owner or Manager to seek redress for violation,
or to insist upon the strict performance of any covenant, agreement, provision
or condition of this Agreement, shall not constitute a waiver of the terms of
such covenant, agreement, provision or condition at any subsequent time, or of
the terms of any other covenant, agreement, provision or condition contained in
this Agreement.
Successors and Assigns. This Agreement and each of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns.
Non-Discrimination. There shall be no discrimination against or segregation of,
any person, or group of persons on account of race, color, creed, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Project, nor shall Owner, Manager or any person
claiming under or through them, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees
or vendees of the land.
Subordination. This Agreement, and any and all rights of Manager hereunder, are
and shall be subject and subordinate to any financing (whether senior financing,
mezzanine level financing,
17
or preferred equity) respecting the Project (or any portion thereof), including
financings with affiliates of Manager (but excluding financings with affiliates
of Owner) (collectively, the "Property Financings"), and any ground or master
lease with respect to the Project or any portion thereof, including any such
leases with affiliates of Manager (but excluding any such leases with affiliates
of Owner) (collectively, "Leases"), and all renewals, extensions, modifications,
consolidations and replacements thereof, and to each and every advance made or
hereafter to be made under any such Property Financings or Leases. This section
shall be self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Manager shall promptly execute,
acknowledge and deliver any instrument that Owner, the landlord under any of the
Leases or the holder of any such Property Financings or the trustee or
beneficiary of any deed of trust or any of their respective successors in
interest may reasonably request to evidence such subordination. At any time and
from time to time, upon not less than ten (10) business days prior notice from
Manager or Owner, Manager shall furnish to Owner, or a designee thereof, an
estoppel certifying that this Agreement is unmodified and in full force and
effect (or that this Agreement is in full force and effect as modified and
setting forth the modifications), the date to which Manager has been paid
hereunder, that to the knowledge of the certifying party, no default or an event
of default has occurred and is continuing or, if a default or an event of
default shall exist, specifying in reasonable detail the nature thereof and the
steps being taken to remedy the same, and such additional information as the
requesting party may reasonably request. Any subordination or estoppel furnished
pursuant to this Section 12.12 may be relied upon by Owner, and its affiliates,
lenders, and any prospective landlord or lender of the applicable Project.
Manager shall not unreasonably withhold its consent to any amendment to this
Agreement reasonably required by such lender or lessor, provided that such
amendment does not (i) increase Manager's financial obligations hereunder, or
(ii) have a material adverse effect upon Manager's rights hereunder, or (iii)
materially increase Manager's non-economic obligations hereunder.
Dispute Resolution. The parties hereby agree that, in order to obtain prompt and
expeditious resolution of any disputes under this Agreement, each claim, dispute
or controversy of whatever nature, arising out of, in connection with, or in
relation to the interpretation, performance or breach of this Agreement (or any
other agreement contemplated by or related to this Agreement or any other
agreement between the parties), including without limitation any claim based on
contract, tort or statute, or the arbitrability of any claim hereunder (an
"Arbitrable Claim"), shall be settled by final and binding arbitration conducted
in Los Angeles, California. The arbitrability of any Arbitrable Claims under
this Agreement shall be resolved in accordance with a two-step dispute
resolution process administered by Judicial Arbitration & Mediation Services,
Inc. ("JAMS") involving, first, mediation before a retired judge from the JAMS
panel, followed, if necessary, by final and binding arbitration before the same,
or if requested by either party, another JAMS panelist. Such dispute resolution
process shall be confidential and shall be conducted in accordance with
California Evidence Code Section 1119.
(i) Mediation. In the event any Arbitrable Claim
is not resolved by an informal negotiation between the parties within
fifteen (15) days after either party receives written notice that a
Arbitrable Claim exists, the matter shall be referred to the Los
Angeles, California office of JAMS, or any other office agreed to by
the parties, for an informal, non-binding mediation consisting of one
or more conferences between the parties in which a retired judge will
seek to guide the parties to a resolution of the
18
Arbitrable Claims. The parties shall select a mutually acceptable
neutral arbitrator from among the JAMS panel of mediators. In the event
the parties cannot agree on a mediator, the Administrator of JAMS will
appoint a mediator. The mediation process shall continue until the
earliest to occur of the following: (i) the Arbitrable Claims are
resolved, (ii) the mediator makes a finding that there is no
possibility of resolution through mediation, or (iii) thirty (30) days
have elapsed since the Arbitrable Claim was first scheduled for
mediation.
(ii) Arbitration. Should any Arbitrable Claims
remain after the completion of the mediation process described above,
the parties agree to submit all remaining Arbitrable Claims to final
and binding arbitration administered by JAMS in accordance with the
then existing JAMS Arbitration Rules. Neither party nor the arbitrator
shall disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of all parties. Except as
provided herein, the California Arbitration Act shall govern the
interpretation, enforcement and all proceedings pursuant to this
subsection. The arbitrator is without jurisdiction to apply any
substantive law other than the laws selected or otherwise expressly
provided in this Agreement. The arbitrator shall render an award and a
written, reasoned opinion in support thereof. Such award may include
reasonable attorneys' fees to the prevailing party. Judgment upon the
award may be entered in any court having jurisdiction thereof.
(iii) Costs. The parties shall bear their
respective costs incurred in connection with the procedures described
in this Section 12.13, except that the parties shall equally share the
fees and expenses of the mediator or arbitrator and the costs of the
facility for the hearing.
(iv) Survivability. This dispute resolution
process shall survive the termination of this Agreement. The parties
expressly acknowledge that by signing this Agreement, they are giving
up their respective right to a jury trial.
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IN WITNESS WHEREOF, Owner and Manager have executed this
Property Management and Leasing Agreement as of the day and year first above
written.
"MANAGER"
XXXXXXX PROPERTIES-SOLANA SERVICES, L.P.
a Texas limited partnership
By: MP-Solana Services GP, LLC
a California limited liability company
Its General Partner
By: Xxxxxxx Properties Services, Inc.
a Maryland corporation
Its Sole Member
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
President
NOTICE ADDRESS FOR MANAGER
c/x Xxxxxxx Properties, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx III
Xxxx Lammas
21
"OWNER"
XXXXXXX PARTNERS-SOLANA LAND, L. P.
a Texas limited partnership
By: Xxxxxxx Partners-Solana Land GP, LLC
a Delaware limited liability company
Its General Partner
By: Xxxxxxx Partners-Solana Land Business Trust
a Delaware business trust
Its sole member and manager
By: /s/ Xxxxxx X. Xxxxxxx III
-------------------------
Xxxxxx X. Xxxxxxx III
Managing Trustee
NOTICE ADDRESS FOR OWNER
c/x Xxxxxxx Properties, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx III
Xxxx Lammas
22
SCHEDULE 1
LEGAL DESCRIPTION
Schedule 1-1
SCHEDULE 2
In addition to the expense reimbursements set forth in the Property
Management and Leasing Agreement, Owner agrees to pay to Manager the Management
Fees and Leasing Commissions set forth below for all of the services required of
Manager pursuant to this Agreement.
1. Base Management Fee.
(a) Prior to Stabilization. Prior to the date upon which
ninety percent (90%) of the rentable square footage of the Project is leased and
occupied (the "Stabilization Date"), Owner shall pay Manager a monthly fee equal
to the greater of (i) three percent (3%) of Manager's out-of-pocket expenses
relating to the Project which are reimbursable under the Agreement by Owner, and
(ii) the Manager's overhead expenses associated with the Project.
Notwithstanding the foregoing, between the date upon which the Project is
substantially completed and the Stabilization Date, the minimum amount payable
by Owner under this Agreement on an annualized basis shall be $.40 per rentable
square foot per year.
(b) After Stabilization. After the Stabilization Date,
Owner shall pay Manager an annual fee (payable on a monthly basis) equal to
three percent (3.00%) of the Project Income (excluding any Project Income
attributable to portions of the Project separately managed by third parties).
2. Incentive Management Fee. Owner shall pay Manager an annual
fee (payable on a monthly basis) equal to five percent (5%) of the Net Cash Flow
and Net Capital Proceeds from the Project which, if distributed to the partners
of Owner, would not result in a breach or default under any Property Financings
or other material agreements with unaffiliated third parties (other than
affiliates of Manager) relating to the Property to which Owner is a party, and
would not otherwise violate any applicable law.
3. Leasing Commission. Owner shall pay leasing commissions to
Manager in amount in accordance with the Leasing Commission Schedule attached
hereto as Schedule 5 (collectively, "Leasing Commissions").
4. Capital Improvements Coordination Fee. In connection with any
significant development project or capital improvement project (other than
tenant improvement projects) which is supervised or administered by Manager, and
not otherwise subject to a separate development agreement with an affiliate of
Manager, Manager shall be paid a coordination fee equal to three percent (3%) of
the total cost of the work.
5. Tenant Improvements Coordination Fee. In connection with any
tenant improvement project which is supervised or administered by Manager,
Manager shall be paid a coordination fee equal to the greater of (i) three
percent (3%) of the total cost of the work, and (ii) the coordination fee, or
similar arrangement, allocated in the terms of the underlying lease.
In the event of the termination of this Agreement as provided in Article XI
hereof, the compensation of Manager shall be prorated as of the effective date
of such termination.
Schedule 2-1
SCHEDULE 3
(SCHEDULE OF EMPLOYEES)
1. OWNER'S EMPLOYEES
President (benefits and bonuses set forth in the President's employment
agreement with the Owner will be borne by Manager)
Vice President
Property Manager
Project Accountant
Executive Assistant
Executive Secretary
Data Processing Clerk
Receptionist
2. MANAGER'S EMPLOYEES
Senior Vice President, Regional Leasing and Marketing
Schedule 3-1
SCHEDULE 4
(NON-REIMBURSABLE PERSONNEL)
Senior Executives
Controller
Assistant Controller
Project Accounting Manager
Project Accountant
Off-Site Secretaries and Receptionists
Schedule 4-1
SCHEDULE 5
(SCHEDULE OF LEASING COMMISSIONS)
Subject to the terms of the Property Management and Leasing Agreement
to which this Schedule 5 is attached, Owner agrees to pay to Manager leasing
commissions as follows:
1. Commission Rate. Owner shall pay commissions to Manager in
accordance with this commission schedule (this "Schedule") for leases of any
space in the Project as follows: (i) four percent (4%) of the total Minimum Base
Rent for the first five years of the lease term, (ii) two percent (2%) of the
total Minimum Base Rent for the sixth through tenth years of the lease term, and
(iii) one percent (1%) of the total Minimum Base Rent for the eleventh through
fifteenth years of the lease term. In the event the lease term is in excess of
fifteen years, no commission shall be paid on said excess term. Notwithstanding
the provisions of this Paragraph 1 to the contrary, in the event an existing
tenant enters into a new lease for space in the Project, Manager shall receive a
commission of four percent (4%) of the total Minimum Base Rent for the first
five years of the new lease term, two percent (2%) of the total Minimum Base
Rent for the sixth through tenth years of the new lease term, and no commission
for any additional years of the new lease term. In the event a prospective
tenant executes a lease for space in the Project, but does not actually pay rent
for such space for reasons unrelated to any default of Owner, Manager shall not
be entitled to any commission with respect to such lease, and shall refund to
Owner any commissions paid with respect thereto.
2. Computation of Commissions. Commissions shall be computed in
accordance with the above rates based upon the "Minimum Base Rent" set forth in
the lease, as follows:
(a) The term "Minimum Base Rent" shall mean the fixed
minimum annual rent for any given year (which includes Landlord's stipulated
base operating expenses and taxes and also includes any rent due for must-take
space in years in which rent on such space is due) provided in the lease for
office space or commercial plaza space, excluding any and all other additional
rent (such as, but not limited to, operating expense escalations, tax
escalations, payments for tenant improvements in excess of building standing
provided by Landlord, percentage rent, cost-of-living escalation or parking).
(b) Minimum Base Rent shall be reduced by the net cost to
Owner of any rental concessions of any kind, including but not limited to,
tenant improvements in excess of building standard, free rent, parking
concessions, lease buy-outs, tax or operating expense concessions.
(c) If a rental concession is made by Owner allowing
tenant not to pay rent for an initial portion of the lease term, then the
commission shall be determined as follows: First, there shall be calculated the
average Minimum Base Rent for the entire term of the lease period on a straight
line basis (the "Average Minimum Rent"), which shall be the product of (i) the
aggregate Minimum Base Rent payable by the tenant during the term of the lease,
divided by the number of months in the term of the lease, (ii) multiplied by
twelve (12). Second, commissions shall be payable in accordance with the terms
of Paragraph 1 above except that for purposes of
Schedule 5-1
calculating the commissions pursuant to Paragraph 1 the Average Minimum Rent
shall be used in lieu of the Minimum Base Rent.
3. Other Broker Commissions.
(a) If a licensed real estate broker other than Manager,
or a broker affiliated or associated with Manager, is the broker of record of
any lease in the Project, Owner will pay such other broker a commission in
accordance with Paragraph 1 above.
(b) With respect to any lease entered into by Owner for
the Project prior to the termination of this Agreement, where Owner pays a
commission to such other broker referred to in Paragraph 3 (a) above of this
Schedule, then Manager shall be entitled to a commission only in the amount of
50% of the commission Manager otherwise would have been entitled to pursuant to
this Schedule; provided, however, in no event shall the aggregate commissions
paid by Owner to all brokers (including Manager) for any such lease exceed one
hundred fifty percent (150%) of a full commission as computed in accordance with
this Schedule without the express written consent of Owner.
4. Options to Extend or Renew the Term
(a) In the event a tenant exercises an option or right of
first refusal contained in the lease to renew or extend the original term of the
lease, Owner shall pay Manager a commission on the Minimum Base Rent during the
renewal or extension period in accordance with Paragraph 1 above, computed as if
such renewal or extension term were part of the initial term of the lease;
provided, however, that Manager shall receive a commission of four percent (4%)
for the first five years of the renewal or extension term, two percent (2%) for
the sixth through tenth years of the renewal or extension term, and no
commission for any additional years of the renewal or extension term.
(b) In the event a tenant leases additional space
pursuant to an option or right of first refusal contained in its lease, Owner
shall pay to Manager a commission on the Minimum Base Rent for such additional
space in accordance with Paragraph 1 above, computed as if the tenant had been
obligated to lease such additional space under the original lease. To
illustrate, assume that a tenant entered into a lease with a twenty-year term
with an option to lease additional space at any time during the term of the
lease for the balance of the term of the lease. Assume that the tenant exercised
the option to lease the additional space commencing the fourth year of the term
of the lease. Manager would be entitled to a commission of 4% of the annual
additional Minimum Base Rent for the first two years (i.e., the 4th and 5th
years), 2% of the additional annual Minimum Base Rent for following five years
(i.e., the 6th through 10th years), and 1% of the additional annual Minimum Base
Rent for the next five years (i.e., the 11th through 15th years).
(c) Commissions pursuant to Paragraph 4(a) and (b),
above, attributable to options exercised after the original occupancy by tenant
shall be deemed payable upon exercise of the option. In the case of options
exercised prior to the occupancy, such commissions shall be due and payable in
the same manner as if the option had been exercised on the date the lease was
executed.
Schedule 5-2
5. Cancellation Clauses. Where the tenant, or the Owner, has the
right to cancel a lease prior to the expiration date, Manager shall initially be
paid a commission based on the aggregate Minimum Base Rent for the uncancellable
portion of the term, plus any cancellation penalty or fee payable by tenant
pursuant to the lease. If, thereafter, the lease is not cancelled by the tenant
or if the right of cancellation is exercised by Owner only, Manager shall be
paid the balance of the commission based on the aggregate Minimum Base Rent for
the remaining portion of the lease term, less the cancellation fee or penalty
computed as if there had been no right of cancellation in the lease. A lease
shall not be deemed cancelled within the meaning of this paragraph unless the
tenant is not obligated to pay rent.
6. Time of Payment. Except as otherwise provided, commissions
earned by Manager (or any other broker) pursuant to this Agreement are payable
as follows:
(a) One-half upon execution of the lease by tenant and
Owner; and
(b) One-half upon occupancy by tenant, but in no event
later than ninety (90) days after the date the lease is signed by Owner and
tenant.
Schedule 5-3
SCHEDULE 6
(DEVELOPMENT AGREEMENT TERM SHEET)
1. Parties: Owner and Developer ("Developer" shall mean Manager or any
affiliate thereof)
2. Term:
a. Owner and Developer shall enter into a Development Agreement
upon mutual agreement of both parties. The Development
Agreement shall terminate upon the termination or expiration
of the restrictions under that certain Noncompetition
Agreement by and between Xxxxxxx Properties, Inc. and Xxxxxx
X. Xxxxxxx, III dated as of June___, 2003 (the "Term"), unless
the Term is extended at Owner's election to allow for the
completion of the development of the Project.
b. Owner shall have the right, at any time, to terminate the
Development Agreement for cause effective immediately upon
notice.
c. If Owner terminates or suspends the work on the development or
construction of the Project, Owner shall have the right to
suspend the Development Agreement.
d. If for any reason the management agreement for the Project
terminates prior to the expiration of the Term, Owner shall
have the right to terminate (without cause) the Development
Agreement upon thirty (30) days prior written notice to
Developer.
3. Third Party Consents. The effectiveness of the Development Agreement
shall be subject to any consents required under any applicable lease or
debt financing affecting the applicable Project.
4. Developer's Duties:
a. Developer's General Duties. Owner shall engage Developer as an
independent contractor, with the powers and duties of
arranging, supervising, coordinating and carrying out all
services necessary for the development of the Project in
accordance with the "Plans" and "Project Budget" (each as
hereinafter defined). Development costs will be funded by
Owner to Developer or its designee in accordance with the
terms of the Development Agreement. Developer shall cause the
Project to be completed in accordance with the Plans and the
terms of the construction contracts, and for an amount not to
exceed the Project Budget. Developer shall ensure the Project
is completed in accordance with the Project Development
Schedule. If and to the extent total Development Costs exceed
the Project Budget, Developer shall pay and shall not be
reimbursed for such excess up to an amount not to exceed the
Developer's Fee.
Schedule 6-1
b. Developer's Specific Obligations and Duties. The obligations
and duties of Developer shall include, without limitation, the
following:
1. To cause the Project (and the construction of same)
to comply continually with all applicable laws and
governmental requirements;
2. To establish operating procedures and a system of
records and accounts suitable for all accounting
functions and record keeping during construction
satisfactory to Owner;
3. To administer and monitor the performance under all
construction contracts and other agreements relating
to the development of the Project and the monthly
reporting of the status of permitting, design and
construction, and the financial status of the
development, including estimated costs of developing
and constructing the Project in relation to the
Project Budget and other applicable budgets;
4. To the extent not otherwise in place as of the
commencement of the Term, negotiate and submit to
Owner, for Owner's review and approval, any and all
contracts and agreements with (a) contractors and
subcontractors (collectively, the "Contractors"), and
(b) engineers, architects and other consultants and
professionals (collectively, the "Consultants"),
employed in connection with the development of the
Project. The Contractors and Consultants shall be
selected and engaged by Developer, subject to Owner's
approval;
5. To manage and coordinate the Contractors and
Consultants, and monitor their compliance with their
respective contracts or agreement;
6. To prepare and continuously maintain and update (or
cause to be prepared, maintained and updated)
detailed budgets for the costs of the development of
the Project for Owner's review and approval (as
approved by Owner, the "Project Budget"), together
with estimates of anticipated Project revenues and
expenses (the "Project Proformas");
7. To prepare and continuously maintain and update (or
cause to be prepared, maintained and updated) a
detailed project development schedule for Owner's
review and approval (as approved by Owner, the
"Project Schedule");
8. To the extent not otherwise in place as of the
commencement of the Term, prepare and continuously
maintain and update (or cause to be prepared,
maintained and updated) all plans and specifications
necessary for the development of the Project, which
shall be submitted for the review and approval of
Owner (as approved by Owner, the "Plans");
9. With the assistance and cooperation of the
appropriate Contractors and Consultants, to perform
cost analyses, value engineering and
Schedule 6-2
constructibility reviews and evaluate design
alternatives and, based on such review and analyses,
make suggestions to Owner on proposed changes to the
Plans and the proposed development;
10. To review and make a recommendation to Owner with
respect to payment of all applications for payment
under the construction contracts and other agreements
relating to the development of the Project and, if
approved by Owner, make payments of any and all
bills, invoices or other matters calling for payment
by Developer or Owner or for the Owner's account in
connection with the development of the Project;
11. To periodically prepare and/or assemble all necessary
documentation and information for submission to
Owner's construction lender to request payment;
12. To collect and assemble all Contractors' and
Consultants' sworn statements and lien waivers
relating to work for which a payment is to be made or
has been previously made. Conditional lien waivers
may be provided for work to be paid from a current
application for payment or disbursement request.
However, unconditional lien waivers must be provided
for all work for which payments have previously been
made. All such statements and waivers shall be
provided as required by Owner's lender(s) and in
accordance with applicable law;
13. To perform all functions and duties of Developer
under the agreements with the Consultants and
Contractors and other contracts and agreements
related to the development of the Project, including,
without limitation, the administration of all change
orders and the processing of all applications for
payment, all of which functions and duties shall be
consistent with the Developer's roles and
responsibilities as described herein;
14. To make recommendations and render assistance for the
development and administration of an effective labor
relations program for, and the avoidance of labor
disputes during, the construction of the Project;
15. To coordinate with the architects and any inspecting
engineer employed by Owner in the performance of
periodic inspections of the Project in order to
confirm that the materials furnished and work
performed are in accordance with the Project Budget
and the Plans (as may be modified by Owner from time
to time), and that the work on the Project is
progressing in accordance with the Project Schedule;
16. To stop the work and cause the correction of any
defect in the materials or workmanship furnished by
any Contractor or of any failure by any Contractor to
perform its obligations under its construction
contract and to immediately inform Owner of any
instances of faulty materials and/or workmanship;
Schedule 6-3
17. To make available to Owner, upon request, the
identities of and copies of contracts with all
Contractors and Consultants and any other person
supplying labor or materials for the development of
the Project;
18. To the extent not in place as of the commencement of
the Term, Developer shall negotiate on behalf of
Owner for Owner's review and approval all necessary
agreements with and consents of governmental and
public entities relating to access, traffic, zoning,
street vacation, railroad crossings and other design
and construction issues, and use diligent good faith
efforts to obtain on behalf of Owner all necessary
licenses, approvals and permits required to construct
and operate the Project, including, without
limitation, all building permits, zoning, storm water
and other variances, approvals required under
documents affecting the Project including recorded
covenants, and approvals required in connection with
the relocation, access or use of utilities;
19. To collaborate with Owner to develop and implement a
program for the leasing and marketing of the Project;
20. To assist Owner with the preparation of standard
lease forms including all necessary exhibits
pertaining to tenant improvements, building rules and
regulations, and standard services provided to
tenants of the Project. Developer shall make
recommendations to Owner regarding rental rate
structures, guidelines for lease options and tenant
concessions and other policies and practices with
respect to leasing;
21. To prepare (or engage other professionals to prepare)
for Owner's review and approval, all necessary
advertising and promotional materials for the
Project;
22. To supervise and coordinate the construction of all
initial tenant improvements (whether Owner funded or
tenant funded) unless otherwise agreed to by Owner;
and
23. To perform or cause to be performed all other
services customarily performed by developers of
similar projects or necessary to complete the
development of the Project as contemplated by the
Plans.
c. Performance of Duties. Developer shall act with prudence and
diligence in performing its duties and responsibilities under
the Development Agreement and in good faith in the best
interests of Owner. Owner acknowledges that Developer is not
an architect or engineer, and all architectural and
engineering services for the Project shall be performed by
separate professionals engaged by Developer as needed.
5. Completion Guarantee. Up to the amount of the Developer's Fees,
Developer shall unconditionally guarantee to Owner (a) the lien free
construction and completion of the development of the Project in
accordance with the Plans, the Project Schedule and the
Schedule 6-4
Project Budget, and (b) the payment without demand, and without right
to reimbursement therefor, of all development, construction and related
costs of the Project incurred for any reason whatsoever in excess of
the Project Budget.
6. Scope of Project. Owner shall have the right at any time and from time
to time to change or modify the scope or nature of the development of
the Project or may elect to terminate or suspend the development of the
Project altogether.
7. Compensation:
a. Pre-Construction. Prior to the first date upon which
construction of the Project pursuant to any of the
construction contracts commences (the "Construction Date"),
Owner shall pay Developer a monthly fee (the "Pre-Construction
Fee") equal the greater of (i) three percent (3%) of
Developer's out-of-pocket expenses relating to the Project
which are reimbursable under the Development Agreement by
Owner, and (ii) the Developer's overhead expenses associated
with the Project.
b. During Construction. Owner shall pay Developer an aggregate
amount equal to three percent (3%) of the hard and soft costs
incurred by Owner in connection with the development of the
Project as set forth in the Project Budget, excluding all
costs associated with acquiring Owner's interest in the
underlying land (the "Developer's Fee"). Payment of the
Developer's Fee shall be made on a monthly basis in accordance
with the completion of work in relation to the Project Budget.
c. Pre-leasing commissions. Owner shall pay leasing commissions
to Developer in amount as is customary for developers
performing similar leasing services for similar buildings in
the market, and only to the extent Developer acts as Owner's
agent with respect to pre-leasing work performed by Developer
and such work is not otherwise performed by the manager of the
Project.
8. Reimbursable Expenses: Owner shall reimburse Developer for the actual
direct costs and expenses incurred by Developer while performing its
duties under a Development Agreement without profit or markup, subject
to Owner's prior written approval or as expressly contemplated in the
Project Budget. Subject to Section 8(a) above, Developer shall not be
entitled to reimbursement of overhead or off-site expenses (except
disbursements or purchases made specifically for the benefit of the
Project) including, without limitation, payroll for employees who are
not working at the Project.
9. Bonds. Developer shall cause each Contractor to procure performance and
payment bonds as required by Owner.
10. Dispute Resolution: Standard arbitration/mediation provision.
11. Assignment: The Development Agreement shall not be assignable by
Developer, except to an affiliate of Xxxxxxx Properties, Inc.; provided
that such affiliate employs substantially the same personnel as
Developer and provided further that such affiliate has the skill and
expertise to fulfill Developer's obligations as contemplated herein.
Upon any non-permitted assignment, Owner shall have the immediate right
to terminate.
Schedule 6-5
12. Insurance: Developer shall, at Owner's cost and expense, maintain
customary levels of insurance with respect to the development of each
property, including builder's all-risk coverage, which may be provided
through an umbrella policy.
Schedule 6-6
EXHIBIT "A"
2003 ANNUAL PLAN
A-l
