COMMERCIAL PROPERTY MANAGEMENT AGREEMENT WITH: HORIZON REAL ESTATE GROUP
Exhibit 6.6
COMMERCIAL PROPERTY MANAGEMENT AGREEMENT WITH:
HORIZON REAL ESTATE GROUP
3003 0000x XXXXXX XXXXX, XXXXX 000
XXXXX, XX 00000
FOR THE FOLLOWING PROPERTIES:
1. FIRST CENTER SOUTH
3051 & 0000 00xx Xx.
X. Xxxxx, XX 00000
2. PIONEER CENTER
13th Ave. S. & 0xx Xx. X
Xxxx Xxxxx, XX 00000
TABLE OF CONTENTS
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Article I EXCLUSIVE AGENCY |
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Section 1.1 |
Appointment |
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Article II TERM OF AGREEMENT |
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Section 2.1 |
Initial Term: Option to Renew |
4 | |||
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Section 2.2 |
Owner Rights Regarding Termination |
5 | |||
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Section 2.3 |
Manager Rights Regarding Termination |
5 | |||
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Section 2.4 |
Force Majeure; Cure Rights |
6 | |||
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Section 2.5 |
Continuing Obligations Upon Termination |
6 | |||
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Section 2.6 |
No Leasing Obligations |
6 | |||
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Article III BUSINESS PLAN, BUDGET AND ACCOUNTING |
7 | ||||
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Section 3.1 |
Preparation of Budget |
7 | |||
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Section 3.2 |
Accounting |
7 | |||
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Section 3.3 |
Books and Records |
7 | |||
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Section 3.4 |
Reports to Owner |
7 | |||
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Section 3.5 |
Financial Information |
7 | |||
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Section 3.6 |
Method of Accounting |
8 | |||
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Article IV MANAGEMENT OF PROJECT |
8 | ||||
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Section 4.1 |
General Duties and Responsibilities |
8 | |||
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Section 4.2 |
Construction |
9 | |||
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Section 4.3 |
Limitation of Authority |
9 | |||
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Article V METHODS OF OPERATION |
9 | ||||
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Section 5.1 |
Contracts |
9 | |||
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Section 5.2 |
Compliance with Laws |
10 | |||
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Section 5.3 |
Licenses and Permits |
10 | |||
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Section 5.4 |
Hazardous Materials |
10 | |||
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Section 5.5 |
Employees |
11 | |||
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Section 5.6 |
Legal Counsel |
11 | |||
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Article VI INFORMATION TO BE PROVIDED BY OWNER |
11 | ||||
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Section 6.1 |
Information |
11 | |||
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Article VII FINANCIAL MATTERS |
11 | ||||
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Section 7.1 |
Bank Accounts |
11 | |||
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Section 7.2 |
Audits |
12 | |||
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Section 7.3 |
CAM Charges and Real Estate Taxes |
12 | |||
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Article VIII INSURANCE AND INDEMNIFICATION |
12 | ||||
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Section 8.1 |
Indemnity and Subrogation |
12 | |||
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Section 8.2 |
Project Insurance |
13 | |||
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Section 8.3 |
Manager’s Responsibilities |
15 | |||
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Section 8.4 |
Employee Insurance |
15 |
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Article IX COMPENSATION OF MANAGER |
16 | |
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Section 9.1 |
Management Fee |
16 |
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Section 9.2 |
Additional Compensation |
16 |
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Section 9.3 |
Employee Compensation |
16 |
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Section 9.4 |
Out-of-Pocket Expenses |
16 |
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Section 9.5 |
Method of Payment |
16 |
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A1iicle X GENERAL PROVISIONS |
17 | |
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Section 10.1 |
Independent Contractor |
17 |
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Section 10.2 |
Notices |
17 |
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Section 10.3 |
Attorney’s Fees |
17 |
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Section 10.4 |
Assignments |
17 |
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Section 10.5 |
Amendments |
17 |
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Section 10.6 |
Entire Agreement |
18 |
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Section 10.7 |
Governing Law; Venue |
18 |
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Section 10.8 |
Cooperation and Assistance |
18 |
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Section 10.9 |
Waiver |
18 |
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Section 10.10 |
Severability |
18 |
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Section 10.11 |
No Obligation to Third Party |
18 |
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Section 10.12 |
Captions |
18 |
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Section 10.13 |
Time of Essence |
18 |
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Section 10.14 |
Counterparts |
18 |
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Section 10.15 |
Non-Discrimination |
19 |
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Section 10.16 |
Certain Interpretative Matters |
19 |
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EXHIBIT “A” |
DESCRIPTION OF PROJECT |
20 |
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EXHIBIT “B” |
INFORMATION TO BE PROVIDED BY OWNER |
20 |
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EXHIBIT “C” |
MANAGEMENT FEE |
21 |
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EXHIBIT “D” |
CONSTRUCTION MANAGEMENT FEES |
21 |
COMMERCIAL PROPERTY MANAGEMENT AGREEMENT
THIS COMMERCIAL PROPERTY MANAGEMENT AGREEMENT (the Agreement) is dated as of January 1, 2013, and is entered into by and between Dakota UPREIT Limited Partnership (Owner), and Horizon Real Estate Group North Dakota Limited Liability Company (Manager).
BACKGROUND
A. Owner owns that certain real estate projects improved with buildings and related parking facilities and common areas commonly known as First Center South and Pioneer Center which is more particularly described on Exhibit A of this Agreement and hereinafter referred to as the Project.
B. Owner desires to engage Manager as Owner’s exclusive agent to manage and operate the Project, and Manager desires to accept such engagement upon the terms set forth herein.
C. This Agreement shall be subject and subordinate to any deed of trust encumbering the Project and, at the option of the beneficiary of any such deed of trust or any transferee of title to the Project by virtue of foreclosure of the lien of such deed of trust, Manager shall attorn to and recognize such beneficiary or transferee as the successor to Owner of the Project, and Manager shall thereupon continue to perform Manager’s covenants hereunder.
STATEMENT OF AGREEMENT
In consideration of the foregoing recitals and the mutual promises and covenants contained herein, Owner and Manager agree as follows:
ARTICLE I
EXCLUSIVE AGENCY
Section 1.1 Appointment. Owner hereby appoints Manager as the manager of the Project and Manager hereby accepts such appointment, upon the terms, covenants and conditions set forth herein.
ARTICLE II
TERM OF AGREEMENT
Section 2.1 Initial Term: Option to Renew. Except as provided in Section 2.2 below, the term of this Agreement for all management activities shall commence on January 1, 2013. The term of this Agreement shall continue through and including December 31, 2013. Owner shall thereafter have successive option rights to extend the term of this Agreement for consecutive, additional periods of one (1) year each. Each such renewal of this Agreement shall be automatic unless either party provides written notice to the other of its election to terminate this Agreement not less than ninety (90) days prior to the initial term or succeeding option term, as the case may be.
Section 2.2 Owner Rights Regarding Termination. Notwithstanding the provisions of Section 2.1 above, this Agreement shall terminate upon the happening of any of the following:
(a) Closing of the sale or exchange by Owner of the Project or Owner’s rights to collect the income therefrom, unless the transferee elects prior to such closing and by written notice to Manager to
assume the obligations of Owner pursuant to this Agreement accruing subsequent to such closing, and Manager consents to such assumption. If less than the entire Project is sold or exchanged, such termination shall apply only to the portions sold or exchanged.
(b) The fifteenth (15th) day after written notice from Owner to Manager to terminate this Agreement and remove Manager for just cause. For purposes of this Section 2.2(b), just cause shall mean any one or more of the following: (i) Managers negligence, willful misconduct, fraud or misappropriation of funds; (ii) Managers failure to promptly and in good faith comply with Owner’s reasonable instructions or directions in connection with the Project; or (iii) Managers failure to carry out its duties hereunder or its material breach of this Agreement, including any violation by Manager, of applicable law.
(c) Immediately upon the dissolution of Manager; the filing by or against Manager of a petition seeking the adjudication of Manager as a bankrupt; the appointment of a receiver to take possession of Managers assets or any substantial portion thereof; or any assignment by Manager for the benefit of its creditors. ·
(d) Without cause with sixty (60) days prior written notice to Manager.
Section 2.3 Manager Rights Regarding Termination.
(a) Notwithstanding the provisions of Section 2.1 above, this Agreement shall terminate upon the happening of any of the following:
(i) The fifteenth (15th) day after written notice from Manager to Owner to terminate this Agreement for just cause. For purposes of this Section 2.3(b)(i), just cause shall mean any one or more of the following occurrences adversely affecting the ability of Manager to perform its duties or imposing a risk of liability on Manager: any finding that all or any portion of the Project, or any sale, rental or other disposition thereof, or any act or failure to act by Owner, does not comply with, or is in violation of, the requirements of any law, rule, regulation, statute, ordinance or requirement of any governmental entity or authority; Owner’s failure to provide Manager with information, documents, signatures, authorizations, or any other item required that may be necessary or appropriate for Manager to carry out its duties under this Agreement or Owner’s failure to provide to Manager sufficient funds, as needed, to pay all fees and expenses of Manager to be paid pursuant to this Agreement and all costs and expenses of the Project to be paid by Manager on behalf of Owner pursuant to this Agreement.
(ii) Immediately upon the dissolution of Owner; the filing by or against Owner of a petition seeking the adjudication of Owner as a bankrupt; the appointment of a receiver to take possession of. the Project or any substantial portion of Owner’s assets; or any assignment by Owner for the benefit of creditors.
(iii) Without cause with sixty (60) days prior written notice to Owner.
Section 2.4 Force Majeure; Cure Rights.
(a) The obligations of Owner and of Manager under this Agreement (except the obligation of Owner to provide funds to Manager for the timely payment of fees and expenses of Manager and expenses of the Project to be paid by Manager on behalf of Owner pursuant to this Agreement) shall be excused for that period of time that Owner or Manager, as applicable, cannot fulfill such obligations by reason of delays beyond its control, including without limitation acts of God, inclement weather, war, insurrection, labor strikes, inability to obtain necessary materials or supplies, inability to obtain necessary permits, licenses or approvals, or any other event commonly included within the definition of force majeure.
(b) Notwithstanding the provisions of Sections 2.2(b) and 2.3 above, in the event of written notice of termination for just cause, this Agreement shall not terminate if the party receiving such notice cures the alleged breach (other than willful misconduct or fraud, neither of which shall be subject to cure) within the fifteen (15) day notice period (or, for any nonmonetary breach which cannot be cured within such fifteen (15) day period, provided that the defaulting party commences such cure within the 15-day period and thereafter diligently and continuously prosecutes such cure to completion).
Section 2.5 Continuing Obligations Upon Termination. Upon the termination of this Agreement by any means (but subject to Owner’s rights of set off for any claims of Owner under section 2.2(b)):
(a) Owner shall remain bound by all contracts entered into by Manager in the name of Owner within the limitations contained in this Agreement and hereby agrees and acknowledges that it shall remain obligated to the Manager for all management fees earned by the Manager through the date of termination and for all reimbursements due to the Manager pursuant to this Agreement.
(b) Manager shall remain obligated:
(i) To render to Owner a final accounting of income and expenses of the Project as provided in this Agreement.
(ii) To deliver to Owner all income and all security deposits from the Project which have been entrusted to Manager and not previously refunded after reimbursement of all expenses and payment of all management fees which Manager is entitled to receive.
(iii) To deliver to Owner all keys, books and records, contracts, leases, receipts, unpaid bills and other documents relative to the Project which are in Managers possession or have otherwise been entrusted to Manager and have not been previously returned.
(iv) To use reasonable efforts and to cooperate with Owner (and at no additional cost to Owner) to cause an orderly transition of the management of the Project without detriment to the rights of Owner or to the continued management of the Project.
Section 2.6 Leasing Obligations. Manager shall have first leasing and/or marketing rights, however, manager may, with the approval of the owner, contract with real estate brokers to provide leasing services to the Project.
ARTICLE III
BUDGET AND ACCOUNTING
Section 3.1 Preparation of Budget. Manager shall prepare and submit to Owner a proposed budget for the operation, repair and maintenance of the Project for the forthcoming fiscal year. The proposed budget for 2013 has been delivered to manager by owner. The 2014 fiscal year budget shall be delivered to Owner by no later than December 15, 2013. Thereafter, each subsequent business plan and proposed annual budget shall be delivered to Owner by no later than December 15 of the then immediately preceding year. Owner will consider each proposed budget and will consult with Manager in the period prior to the commencement of the forthcoming fiscal year in order to agree upon an Approved Budget.
Section 3.2 Accounting. Manager shall use diligence and employ reasonable efforts to assure that the actual costs of managing, maintaining and operating the Project does not exceed the Approved Budget. During the fiscal year Manager shall inform Owner of any material increases in costs and expenses that were not reflected in the Approved Budget and shall secure Owner’s prior approval for any expenditure that will result in an increase of whichever of the following is greater (herein considered a material increase): in excess of ten percent (10%) of the annual budgeted amount in any one accounting category of the Approved Budget or $5,000.00.
Section 3.3 Books and Records. Manager shall, maintain accurate books and records for the Project, in accordance with generally accepted accounting principles, consistently applied, with complete 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 its address stated herein or at such other location as may be mutually agreed upon in writing. Manager shall take all necessary and prudent steps to exercise such control over accounting and financial transactions so as to protect Owner’s assets from theft or fraudulent activity on the part of Managers employees.
Section 3.4 Reports to Owner. Manager shall, provide to owner the reports and at the time described in Exhibit E. In addition, Manager shall remit to Owner all unexpended funds, after deducting the management fees and reimbursements due to Manager and a reserve for contingencies in the amount set forth in the Approved Budget or as may be otherwise agreed to from time to time by Owner and Manager, along with such accounting.
Section 3.5 Financial Information. Manager shall maintain, and supply to Owner upon written request, copies of:
(a) All bank statements, bank deposit slips and bank reconciliations;
(b) Detailed cash receipts and disbursement records;
(c) Paid invoices;
(d) Summaries of adjusting journal entries; and
(e) Any other information on the Project in Managers possession requested by Owner.
Section 3.6 Method of Accounting. All financial statements and reports required hereunder will be prepared on a cash basis in accordance with generally accepted accounting principles, consistently applied.
ARTICLE IV
MANAGEMENT OF PROJECT
Section 4.1 General Duties and Responsibilities. Manager shall manage, operate and maintain the Project in accordance with generally accepted principles of sound property management using all due diligence and prudence in performing its duties and otherwise in accordance with the general standards set forth in this Article IV. Without limiting the generality of the foregoing, Managers functions hereunder shall include the following:
(a) Manager shall use reasonable efforts to collect 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.
(b) Manager shall, in the name of and at the expense of Owner, make or cause to be made such ordinary repairs and alterations as Manager may deem advisable or necessary to the improvements on the Project, subject to and within the limitations of the Approved Budget; provided, however, that Manager shall not expend more than Five Thousand Dollars ($5,000) for any one item of repair or alteration without Owner’s prior written approval, except emergency repairs if, in the reasonable opinion of the Manager, such repairs are necessary to protect the Project from further damage or to maintain services to tenants as called for in their leases. The authority provided to Manager in this paragraph shall not extend to capital improvements or the associated tenant finish, refurbishing and rehabilitation or remodeling areas covered by new leases. The latter expenditures are subject to the Owner’s prior approval which shall be given at the time of the execution of new leases. Manager shall promptly inform Owner of material increases (as defined herein) in repair and maintenance costs not reflected in the Approved Budget.
(c) Manager shall, in the name of and at the expense of Owner, contract for those utilities, and other building operation and maintenance services and parking facility management that Manager shall deem advisable; provided that all service contracts shall be for a term cancelable upon thirty (30) days advance notice without penalty, with the exception of alarm monitoring contracts, without prior written approval of Owner and the cost of all such services shall be included in the Approved Budget or otherwise approved in writing in advance by Owner. Manager shall at Owner’s expense, purchase and keep the Project furnished with all reasonably necessary supplies. All services provided to the Project by parties other than Manager shall be provided pursuant to valid, bona fide contracts entered into on an arms-length basis and after competitive bidding conducted by Manager. Manager shall disclose to Owner any and all affiliations between Manager or Managers affiliates, employees or owners, and other actual or prospective service providers, and their affiliates, employees or owners. If Manager makes no such disclosure as to any such service provider, Manager shall be deemed to have represented and warranted that no such affiliation exists.
(d) Manager shall pay at the expense of Owner, from the account or accounts provided for in Section 7.1 below or from funds otherwise provided by Owner, expenses of the Project, including without limitation real and personal property taxes, mortgage payments, payments due under service contracts, utilities, materials and supplies necessary for the operation of the Project, and such other expenses as may be incurred in connection with the operation and management of the Project in the ordinary course of business or as set forth under this Agreement.
Section 4.2 Construction. Manager shall manage all construction activity at the Project, including tenant finish work, repairs, maintenance and capital improvements and Manager shall assure work is
complete in a workmanlike manner in keeping with an strip mall of the same class as the Project. Such work shall be completed in accordance with plans and specifications approved by Owner.
Section 4.3 Limitation of Authority. Notwithstanding any provision in this Agreement to the contrary, Manager shall not without the prior approval of Owner:
(a) Enter into any agreement to lease, convey or otherwise transfer or pledge or encumber the Project or any other property or asset of Owner;
(b) Institute or defend lawsuits except as otherwise provided herein or other legal proceedings on behalf of Owner;
(c) Pledge the credit of Owner (except for purchases made in the ordinary course of operating the Project or as otherwise contemplated pursuant to this Agreement); or
(d) Borrow money or execute any promissory note or deed of trust, security agreement, guaranty or other encumbrance in the name of or on behalf of Owner.
ARTICLE V
METHODS OF OPERATION
Section 5.1 Contracts. All service contracts, and (to the extent they are within the scope of Managers duties under this Agreement) all contracts for capital improvements and all contracts for the improvement, refurbishing or remodeling of tenant spaces (Contracts) which (a) cover expenditures included within the Approved Budget, or, are required by any approved lease, or, are otherwise approved in advance by Owner, and (b) may be with affiliates of Manager, and (c) meet the criteria set forth hereunder for such Contracts or are approved in advance by Owner or otherwise meet criteria established by Owner for such Contracts, shall be executed by Manager in the name of, and as agent for Owner. Any or all such Contracts shall be subject to Owner’s prior approval. If required, any or all Contracts shall be executed by Owner. All Contracts shall be with such contractors and service providers as Manager may select from time to time. Upon any termination of this Agreement, to the extent necessary, Manager shall assign all Contracts executed by Manager to Owner. Owner will provide Manager with any additional documentation reasonably necessary to establish Managers authority to act as required hereunder. Upon termination of this Agreement, Owner agrees to specifically assume Contracts that are in the name of Manager. Notwithstanding anything to the contrary contained in this Section 5.1, all contracts entered into by Manager or presented to Owner by Manager shall be subject to the requirements of Section 4.1(c).
Section 5.2 Compliance with Laws. Subject to the other provisions of this Agreement, at Owner’s expense, Manager shall use reasonable efforts to cause the Project to comply with federal, state and municipal laws, all known ordinances, regulations and orders relative to the 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. Manager shall use reasonable efforts to remedy the violation of any such law, ordinance, rule, regulation or order of which it has actual knowledge and which violation occurs after the date hereof, at Owner’s expense. Expenses incurred in so complying and in correcting any such violation shall be included in the Approved Budget or otherwise approved in advance by Owner. At Owner’s expense, and if requested in writing by Owner, Manager shall comply with all terms and conditions contained in any
ground lease, mortgage, deed of trust or other security instruments affecting the Project of which Manager has actual knowledge and for remedying any breach thereof. Notwithstanding the foregoing, however, Managers responsibilities under this Section shall not extend to matters as to which the expenditure of Owner’s funds is required but disapproved by Owner or such funds are not made available by Owner.
Section 5.3 Licenses and Permits. Manager shall apply for and obtain and maintain in the name and at the expense of Owner all licenses and permits required of Owner or Manager in connection with the management and operation of the Project. Owner agrees to execute and deliver any and all applications and other documents and to otherwise cooperate to the fullest extent with Manager in applying for, obtaining and maintaining such licenses and permits.
Section 5.4 Hazardous Materials. Owner acknowledges and understands that Manager is not qualified to evaluate the presence or absence of hazardous or toxic substances waste, materials, electromagnetic fields or radioactive materials upon, within, above or beneath the Project, compliance with hazardous materials or waste laws, rules and regulations; or the clean-up or remediation of hazardous materials spills or contamination. Accordingly, notwithstanding the provisions of Section 5.2 above, Managers obligations to Owner with respect to the presence of hazardous or toxic substances, waste, materials, electromagnetic fields or radioactive materials upon, within, above or beneath the Project (hereinafter collectively Hazardous Materials) and/or with the compliance and enforcement of federal, state and local laws, rules, regulations, ordinances, and requirements relating to Hazardous Materials (hereinafter collectively Hazardous Materials Laws) shall be subject to, conditioned upon, and limited by the following:
(a) In no event will the Manager make an independent determination as to the presence or absence of Hazardous Materials or whether the Project or any particular tenant space is in violation or compliance with any Hazardous Materials Laws. The Managers sole responsibility shall be to act, at the direction of the Owner or Owner’s environmental consultant, to (i) undertake, on the Owner’s behalf and at the Owner’s expense, necessary actions for the Owner to comply with Hazardous Materials Laws in accordance with the environmental recommendations contained in the environmental assessment report, and/or (ii) seek, on the Owner’s behalf and at the Owner’s expense, to enforce a tenants compliance with any Hazardous Materials Laws in accordance with the environmental consultants recommendations contained in the environmental assessment repo11.
(b) The Manager shall have absolutely no responsibility or obligation with respect to the clean-up and remediation of any spill or contamination of any Hazardous Materials upon, beneath or within all or any portion of the Project, not caused by Manager, its contractors, employees, agents or invitees.
Section 5.5 Employees. Manager shall have in its employ or under separate contract at all times a sufficient number of capable employees enabling it to properly, adequately, safely and economically manage, operate and maintain the Project. All matters pertaining to the employment, supervision, compensation, promotion and discharge of such employees, as well as union negotiations and compliance with laws and regulations dealing with employee matters, are the responsibility of the Manager, which is in all respects the employer of such employees. In the event that any expenses, including wages are attributable in part to the Project and in part to other properties managed by Manager, such expenses shall be prorated and apportioned between the respective properties on a reasonable basis. All employees of Manager who handle or are responsible for Owner’s funds shall be covered by a fidelity bond. The amount of such bond shall be reasonably determined by Owner and the premium therefore shall be a cost of the Owner.
Section 5.6 Legal Counsel. Manager shall, upon prior approval by Owner and at Owner’s request and expense, engage counsel and cause legal proceedings to be instituted as may be necessary to enforce payment of rent and compliance with provisions of tenant leases, or to dispossess tenants. Manager shall use legal counsel selected and/or retained by Owner to assist as necessary in contract preparation and negotiation, to provide legal advice in connection with management issues at the Property, and to institute legal proceedings. All compromises, settlements, or legal proceedings shall be subject to the prior approval of Owner. Attorneys fees and costs incurred in any of the foregoing shall be expenses of the Project. Owner and Manager shall agree upon a reasonable projection for the attorneys fees and costs in the Approved Budget.
ARTICLE VI
INFORMATION TO BE PROVIDED BY OWNER
Section 6.1 Information. Within five (5) business days after execution and delivery of this Agreement, to extent available to Owner, Owner shall provide to Manager all information listed in Exhibit B attached hereto and incorporated herein by reference, for Managers use in connection with the fulfillment of its duties under this Agreement. At all times during the term of this Agreement, Owner shall provide to Manager such other or updated information as Owner may obtain with respect to the Project; shall cooperate with Manager in providing additional information or responding to questions Manager may have with respect to the ownership and prior operation of the Project; and shall assist and/or cooperate with Manager in all reasonable means respecting Managers fulfillment of its obligations under this Agreement. In no event shall Owner withhold from Manager any material information respecting the use or condition of the Project, any contracts, debts, liens or liabilities encumbering or affecting the Project, or any other information which could reasonably and materially affect the fulfillment of Managers duties under this Agreement.
ARTICLE VII
FINANCIAL MATTERS
Section 7.1 Bank Accounts. Manager shall establish an operating account or accounts for the Project in the name of Owner. All funds collected from the operation of the Project that Manager receives shall be deposited in the account(s) so established and all expenses of the Project shall be disbursed from such account(s). If required by law or by Owner, 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 or Owner. Owner will provide whatever signing authority is necessary for Manager to fulfill its obligations under this Agreement.
Section 7.2 Audits. Owner reserves the right upon five (5) days prior written notice, to audit all books and records maintained by Manager with respect to the Project. Except as provided below, all audits shall be at Owner’s cost and expenses, shall be conducted during normal business hours and shall be conducted at Managers office where such books and records are located. Any audit may be conducted by Owner’s agents or employees or by independent persons engaged by Owner provided that such parties are not a competitor to Manager. Any discrepancies noted in any audit shall be promptly corrected. In the event it is determined that the books and records have not been adequately maintained by Manager, as required hereunder, or if such audit reveals that Owner has been materially overcharged for Managers services, then Manager shall be obligated to refund the amount of such overcharge to Owner and pay for the pro rata share of the cost of the audit which deals with the specific overcharge, with the pro rata share not to exceed $1,000.00.
Section 7.3 CAM Charges and Real Estate Taxes. Manager shall establish procedures necessary to provide an accounting of common area maintenance costs and payment of those costs by tenants. CAM costs are defined in the Tenant lease agreements and includes the management fee described in Exhibit C. Annually an accounting and prorating of the income and expenses shall be provided to the Owner and the Tenants. Manager shall be responsible to collect the CAM charges and annually make the necessary adjustment to the monthly fee paid by the tenant as additional rent by the tenant.
ARTICLE VIII
INSURANCE AND INDEMNIFICATION
Section 8.1 Indemnity and Subrogation
(a) Subject to Section 8.1(e), Owner shall indemnify, defend (using counsel acceptable to Manager) and hold harmless Manager and its affiliates and each of their respective officers, directors, employees, stockholders, partners, agents, lenders, representatives, and contractors, and each of their respective successors and assigns, from and against any and all liabilities, obligations, claims, losses, causes of action, suits, proceedings, awards, judgments, settlements, demands, damages, costs, expenses, fines, penalties, deficiencies, taxes and fees, (including without limitation the fees, expenses, disbursements and investigation costs of attorneys and consultants) arising directly or indirectly out of or resulting in any way from or in connection with the Project, the proper management of the Project by the Manager, or the proper performance or proper exercise by the proper Manager of the duties, obligations, powers, or authorities herein, or hereafter granted to the Manager, except for those actions and omissions of Manager in relation to which the Manager agrees to indemnify Owner pursuant to Section 8.1 (b).
(b) Subject to Section 8.1(e), Manager agrees to indemnify and hold the Owner and its affiliates and each of their respective employees, officers, directors, and agents harmless from and against any and all costs, expenses, attorneys fees, suits, liabilities, damages, or claim for damages, in any way arising out of (i) any negligent acts or omissions or intentional misconduct of Manager, its agents or employees contractors or invitees, (ii) any failure of Manager to promptly perform in any material respect any of its obligations under this Agreement, provided such failure was not caused by Owner or by events beyond the reasonable control of Manger, and Owner has furnished to Manager sufficient funds to perform such obligations; or (iii) any acts of Manager beyond the scope of Managers authority hereunder.
(c) Indemnified Party and Indemnitor shall mean the Manager and Owner, respectively, as to Section 8.1 (a) and shall mean the Owner and Manager, respectively, as to Section 8.1(b). If any action or proceeding is brought against the Indemnified Party with respect to which indemnity may be sought under this Section 8.1, the Indemnitor, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel and payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and to participate in the defense thereof, but the Indemnitor shall not be required to pay the fees and expenses of such separate counsel unless such separate counsel is employed with the written approval and consent of the Indemnitor.
(d) The indemnities in this Section 8.1 shall survive the expiration or termination of this Agreement.
(e) Anything in this Agreement to the contrary notwithstanding, Owner and Manager hereby waive and release each other of and from any and all right of recovery, claim, action or cause of action against each other, their agents, officers and employees, for any loss or damage that may occur to the property, improvements to the Project, or personal property within the Project, by reason of fire or the elements, or other casualty, regardless of cause or origin including negligence of Owner or Manager and their agents, officers and employees; to the extent the same is insured against under insurance policies carried by Owner or Manager (or required to be carried by Manager hereunder); however, Owner’s waiver shall not include any deductible amounts on insurance policies carried by Owner, nor extend to acts of the type described in clauses (i), (ii) and (iii) of Section 8.l(b). Owner and Manager agree to obtain a waiver of subrogation from the respective insurance companies which have issued policies of insurance covering all risk of direct physical loss and to have the insurance policies endorsed, if necessary, to prevent the invalidation of the insurance coverage by reason of the mutual waivers.
(f) For the purposes of Section 8.1(b), 8.1(f), the term Owner shall be construed as meaning Owner, Asset Manager, and their respective affiliates, directors, officers, employees, agents, and representatives.
Section 8.2 Project Insurance.
(a) Owner shall carry property damage insurance, or builders risk insurance, where applicable, to cover physical loss or damage to the Project from fire and extended coverage perils, including vandalism and malicious mischief and comprehensive general liability insurance with respect to the Project covering third party bodily injury, property damage, and personal injury. All such insurance shall be in such amounts and with such insurers as Owner may determine and, with respect to any such liability coverage, shall include by endorsement Manager as an additional insured thereunder. If requested by Owner, Manager shall obtain such insurance, at Owner’s cost and subject to Owner’s approval thereof. Manager shall comply with all the warranties, terms and conditions of such insurance. Manager shall notify Owner in writing within forty eight (48) hours after the Manager receives notice of any loss, damage, or injury and shall not take any action which knowingly might prejudice Owner in its defense to a claim based on such loss, damage, or injury.
(b) Manager shall maintain the following employee insurance coverage:
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INSURANCE |
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MINIMUM STANDARDS |
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Workers’ Compensation |
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Coverage A: |
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Minimum limits required by Statute (with proof of compliance as acceptable to Owner) |
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Coverage B: |
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$500,000 Bodily Injury by Accident (Each Accident) |
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$500,000 Bodily Injury by Disease (Policy Limit) |
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$500,000 Bodily Injury by Disease (Each Employee) |
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INSURANCE |
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MINIMUM STANDARDS |
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Automobile, Single Limit |
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$1,000,000 Any Auto (hired/owned and non owned) |
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Bodily Injury and Property Damage |
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Uninsured Motorists |
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As required by Statute |
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Fidelity Bond/Crime/ |
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Greater than two (2) months’ gross income from the Property with maximum deductible of $10,000 |
All insurance required hereunder shall be in force as of the date hereof, except as specifically set forth in the following sentence. Manager shall furnish Owner, at the time of execution of this Agreement, with certificates of insurance evidencing its insurance coverage as required under Section 8.2(b), together with all exclusions and endorsements relating to the Project, and provided, however, that Manager may deliver to Owner, on a date not later than 30 days after the date hereof, evidence that Owner will be given at least thirty (30) days prior written notice of cancellation or material change in coverage. All such policies, except for workers compensation for Managers employees directly involved with the operation of the Property shall be at Managers sole cost. In cases where Owner and Manager maintain insurance policies that duplicate coverage, then Owner’s policies shall provide primary coverage.
(c) Contractors’ and Subcontractors’ Insurance. Manager shall require that each contractor and subcontractor hired to perform work at the Project to maintain insurance against risk of physical damage to personal property belonging to it in amounts sufficient to replace such personal prope11y in the event of loss, and insurance coverage at such contractors and subcontractors expense, in the following minimum amounts:
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INSURANCE |
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MINIMUM STANDARDS |
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Workers’ Compensation |
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As required by law |
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Employer’s Liability |
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$ |
1,000,000 |
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Comprehensive General Liability* |
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$ |
1,000,000 |
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Comprehensive Auto Liability* |
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$ |
1,000,000 |
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*These coverages shall be primary and will respond to any allegation, claim, loss, damage, demand or judgment, or other causes of action arising out of work done at the Project by the contractor or subcontractor on behalf of Owner and Manager. Owner and Manager shall be named as additional insureds on such policies. The policies shall be written on an on occurrence basis.
Owner may require additional coverage if the work to be performed is, in Owner’s judgment, sufficiently hazardous. Before any work can begin, each contractor or subcontractor will submit Certificates of Insurance and Endorsements in form and substance satisfactory to Owner as evidence of the coverages required. Each certificate will provide for (i) cross liability or severability of interests for the benefit of the additional Insureds, and (ii) if Contractors insurance is provided by means of a so called blanket policy, the aggregate must apply per project or per location. Each certificate will bear an endorsement requiring thirty (30) days prior written notice of cancellation, material alteration or non-renewal. All such policies shall be issued by insurers with the Best rating of A or higher.
Section 8.3 Managers’ Responsibilities. Manager agrees to:
(a) If requested by Owner in writing and at Owner’s sole cost and expense, Manager shall obtain and maintain insurance with respect to the Project.
(b) Notify Owner within three (3) business days after Manager receives notice of any loss, damage or injury at or arising from the Project.
(c) Take no action (such as admission of liability) which knowingly bars Owner from obtaining any protection afforded by any policy Owner may hold or which prejudices Owner in its defense to a claim based on such loss, damage, or injury.
(d) Cooperate with Owner in disposition of claims, including furnishing all available information to Owner’s insurer or representative.
Section 8.4 Employee Insurance. If requested in writing by Owner, Manager shall require that all contractors and service companies operating in or on the Project maintain such workers compensation, employers liability and comprehensive general liability insurance as may be required by Owner, including any special coverage required by law or Owner in connection with hazardous operation.
ARTICLE IX
COMPENSATION OF MANAGER
Section 9.1 Management Fee. For its services hereunder, Manager shall be paid a monthly management fee in an amount equal to, and in accordance with, the schedule set forth in Exhibit C attached hereto and made a part hereof.
Section 9.2 Additional Compensation. In addition to the monthly management fee provided for in Section 9.1 hereof, Manager shall be entitled to construction management fees for work in the project which has been approved by Owner with respect to non-routine capital improvements based on the schedule set forth in Exhibit D attached hereto and incorporated herein which shall be paid to Manager, in connection with construction work at the Project.
Section 9.3 Employee Compensation.
(a) Manager shall include in the proposed budget (see paragraph 3.1) for the Project a schedule setting forth employee wages and benefits that are reimbursable under this Agreement. All such expenses shall be subject to adjustment from time to time during the term of this Agreement as reflected in each Approved Budget. Manager shall identify its employees whose wages may from time to time be charged pro rata to the Project for direct services rendered to the Project. In the event that employees of Manager other than those identified from time to time perform services for the Project, an appropriate portion of such employees compensation and benefits and the expenses related thereto shall be included within the coverage of this paragraph.
(b) Manager shall make disbursements and deposits for all compensation and other amounts payable with respect to persons employed by Manager in the operation of the Project, or performing special
services from time to time at the request of Owner. The amounts so payable shall include, but not be limited to, unemployment insurance, social security, workers compensation and other charges imposed by a governmental authority or provided for in a union agreement. Manager shall maintain complete payroll records. All payroll costs, including, but not limited to, those enumerated herein, shall be included in a gross wage per home agreed by owner.
Section 9.4 Out-of-Pocket Expenses. Subject to the approved budget, Manager shall be entitled to reimbursement of all actual, verifiable and reasonable out of pocket costs and expenses, incurred by Manager in operating the Project. Costs associated with maintaining and operating a Management Office, including, but not limited to, office staff, telephone charges, office equipment, office supplies, data processing or accounting costs in connection with preparation of budgets and reports, incurred by Manager in performing its duties pursuant to this Agreement, shall be paid by Manager.
Section 9.5 Method of Payment. Payment of reimbursement of the amounts described in Sections 9.1 through 9.4 above shall be as follows:
(a) The management fee shall be calculated and paid monthly and such amounts shall be shown in Managers submission of its quarterly accounting to Owner. Manager may pay such fees and compensation from Project operating funds then in its possession or control.
(b) Additional Compensation, Employee Compensation and Out-Of-Pocket Expenses pursuant to Sections 9.2, 9.3 and 9.4 shall be reimbursed to Manager at the time incmTed by Manager and Manager may reimburse such costs and expenses from time to time from Project operating funds under its possession or control. A detailed summary of such reimbursable costs and expenses shall be included on Managers quarterly accounting to Owner.
(c) In the event there shall not be Project operating funds available to pay/or reimburse the fees and/or costs and expenses or other amounts due hereunder to Manager and all amounts due hereunder, Owner hereby assumes responsibility for the same and agrees to promptly pay such amounts to Manager.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Independent Contractor. It is expressly understood and agreed that Manager as an agent of the Owner, will act as an independent contractor in the performance of this Agreement. The parties hereby agree that nothing in the Agreement shall be intended or construed to create an employer employee relationship, a partnership or a joint venture with respect to the Project or otherwise.
Section 10.2 Notices. All notices, demands, reports or other communications required or desired to be given hereunder shall be in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid to the patties at their respective addresses for notice (set forth below their respective signatures), or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, and (c) by telecopier (with answer back acknowledged and so long as the original of said telecopy is mailed the next day). A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; or forty eight (48) hours
after having been deposited in the United States mail postage prepaid and properly addressed or upon receipt with respect to notices sent via overnight delivery service or telecopy.
Section 10.3 Attorneys’ Fees. In connection with any controversy arising out of this Agreement, the prevailing party shall be entitled to recover, in addition to costs, damages or other relief, its reasonable attorneys fees and costs incurred.
Section 10.4 Assignments. 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 required by: (a) any insurance carrier in any matter relating to subrogation, or (b) Manager in order to assign this Agreement to any entity which it controls, is controlled by or with which it is under common control provided such assignment does not result in a change in the personnel responsible for performing managers obligations hereunder. Nothing contained in this Section 10.4 shall be deemed a waiver of Owner’s right to sell, transfer, convey or encumber title to the Project without the consent of Manager.
Section 10.5 Amendments. Except as otherwise provided herein, all amendments to this Agreement shall be in writing and executed by both parties.
Section 10.6 Entire Agreement. This Agreement and the Exhibits and any Riders attached hereto and made part hereof, comprise the entire agreement of the parties with respect to the matters contained herein, and supersedes all prior agreements. The parties acknowledge that there are no representations, warranties, agreements, arrangements or understandings with respect to the subject matter hereof other than as expressly set forth in this Agreement.
Section 10.7 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri.
Section 10.8 Cooperation and Assistance. Owner and Manager agree to execute such documents and provide such further assurances as may be reasonably necessary for each to fulfill their respective duties and obligations under this Agreement. 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 xxxxx to this Agreement shall furnish such information and reasonable assistance in defending such proceeding as may be requested by the xxxxx against whom such proceeding is brought.
Section 10.9 Waiver. No consent or waiver, express or implied, by any party to or of any breach or default by the other party in the performance by such other party of the obligations thereof under this Agreement shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party under this Agreement. Failure on the part of either xxxxx to raise any claim(s) with respect to any act or failure to act of the other party or to declare the other xxxxx in default, irrespective of how long such failure continues, shall not constitute a waiver by such xxxxx of the rights thereof under this Agreement.
Section 10.10 Severability. It is the intention of the parties that if any such provision is held to be legal, invalid or unenforceable, there will be added in lieu thereof a provision as similar in terms to such provision as is possible and be legal, valid and enforceable.
Section 10.11 No Obligation to Third Party. Except as otherwise set forth in this Agreement, the execution and delivery of this Agreement shall not be deemed to infer any rights upon, or obligate either of the parties hereto to, any person or entity other than each other.
Section 10.12 Captions. The captions appearing at the commencement of the sections hereof are descriptive only and for convenience and reference. Should there be any conflict between any such captions in the section and the text in the section, the text and not such caption shall control and govern in the construction of this Agreement.
Section 10.13 Time of Essence. Time is of the essence with respect to all of the terms, provisions, rights and obligations contained in this Agreement.
Section 10.14 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
Section 10.15 Non-Discrimination. Owner and Manager each mutually agree that there shall be no illegal discrimination against or segregation of any person or of a group of persons on account of race, color, religion, creed, sex, sexual orientation, or national origin in leasing, transferring, use, occupancy of enjoyment of the Project, nor shall Owner or Manager knowingly permit any such practice or practices of discrimination or segregation with respect to the selection, location, use or occupancy of tenants at the Project.
Section 10.16 Certain Interpretative Matters. No provision of this Agreement will be interpreted in favor of, or against, any of the parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof.
IN WITNESS WHEREOF, this Commercial Prope1iy Management Agreement has been executed by Manager and Owner by their respective duly authorized officers as of the day and year first written above.
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OWNER: |
MANAGER: | |||||
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Dakota UPREIT Limited Partnership |
Horizon Real Estate Group, a North Dakota | |||||
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a North Dakota limited partnership |
Limited Liability Company | |||||
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By: |
By: | |||||
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Its General Partner |
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/s/ Xxx Xxxxxxx |
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/s/ Xxxx Vippond | ||||
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Name: |
Xxx Xxxxxxx |
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Name: |
Xxxx Vippond | |
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Title: |
Executive Vice President |
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Title: |
Managing Partner | |
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Notice Address: |
Notice Address: | |||||
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Dakota UPREIT Limited Partnership |
Horizon Real Estate Group | |||||
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3003 0000x Xxxxxx Xxxxx, Xxxxx 000 |
0000 00xx Xxxxxx Xxxxx, Xxxxx 000 | |||||
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Xxxxx, XX 00000 |
Xxxxx, XX 00000 | |||||
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Attention: Xxx Xxxxxxx |
Attention: Xxxx Xxxxxx | |||||
EXHIBIT A
DESCRIPTION OF PROJECTS
First Center South: A retail strip mall containing approximately 103,860 square feet of space comprised of retail suites in Fargo, North Dakota.
Pioneer Center: A retail strip mall containing approximately 175,491 square feet of space comprised of retail and office suites in West Fargo, North Dakota.
EXHIBIT B
INFORMATION TO BE PROVIDED BY OWNER
1. Current Preliminary Title Report
2. All Environmental Assessment Reports
3. All ADA Compliance Reports
4. Tenant files including:
All leases, amendments and modifications
All credit information of tenants
All information on tenant uses, including hazardous materials uses
All tenant insurance certificates required under leases
5. As built plans and specifications for all improvements to the Project, that are in the possession of the owner, including plans and specifications for all tenant improvements and alterations and computer aided design (CAD) drawings for all rentable areas of the Project.
6. All maintenance and service contracts currently in effect at the Project. 7. Latest tax bills, insurance bills, mortgage and/or ground rent statements, and other Project and common area expense xxxxxxxx.
7. Revenue and expense records of the Project, including tenant delinquency aging, security deposit accounting, and all accounts payable.
8. Insurance policies and endorsements therefore carried by Owner by the Project.
9. All other documents, records and reports in Owner’s possession or control reasonably requested by Manager or reasonably believed by Owner as necessary or appropriate for Managers carrying out of its duties under this Agreement.
EXHIBIT C
MANAGEMENT FEE
Commencing upon the commencement of the term of this Agreement, Manager shall be paid a monthly management fee of five percent (5%) of the gross receipts derived from the Project during the preceding calendar month (or portion thereof applicable from the commencement of the term of this Agreement through and including the expiration or earlier termination of this Agreement).
The term gross receipts for all purposes under this Agreement shall be defined as: (i) receipts from the leasing of rentable space in the Project; (ii) receipts from lease rental escalations, late charges and/or cancellation fees; (iii) receipts from concessions granted or services provided at the Project (including, but not limited to, parking lot collections, if any); (iv) other miscellaneous operating receipts; (v) proceeds from rent or business interruption insurance; and (vi) any percentage rents collected.
The term gross receipts for all purposes under this Agreement shall be defined to exclude: (i) tenants security deposits until the same are forfeited by the person making such deposits; (ii) property damage insurance proceeds; (iii) any award or payment made by any governmental authority in connection with the exercise of any right of eminent domain: and (iv) receipts from tenants for reimbursable operating expenses;
EXHIBIT D
CONSTRUCTION MANAGEMENT FEES
The fees shall be defined based upon the amount of work completed on the property.
The fees shall be determined at the time of the lease, which will include fit-up improvements paid by the owner, and are agreed upon and based on the work completed on the property.
EXHIBIT E
REPORTING REQUIREMENTS
Monthly:
1) Aged Accounts Receivable
2) Tenant Rent Roll
3) Description of material increases in costs and expenses above approved budget.
4) Balance Sheet and Income Statement
5) Financial Statements
Quarterly:
1) Manger Visit Report
Annually:
1) Operating Budget (By October 3151
2) Business plan
3) Capital Improvement Recommendations
4) CAM Reconciliation
Periodically:
1) Site Deficiency Report
