APARTMENT MANAGEMENT AGREEMENT
THIS AGREEMENT is made as of November 7, 2003, between
S.V.G. PROPERTIES, L.P., ("Owner") whose address is 000 Xxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxxxx, 00000, Spring Village
Holdings, Inc. as General Partner and Property Manager (the
"General Partner") and H. Xxxxx Xxxxxxx, Inc., a Management
Consultant Corporation ("Management/Consultant") whose address is
000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx, 00000
WHEREAS, Owner owns the Property commonly known as Spring
Village Apartments located at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxxxxxx, 00000.
WHERE AS, Owner and Management/Consultant entered into a Housing
Management Agreement on August 1, 1992 pursuant to which
Management/Consultant manages the Property. Such agreement was
effectively terminated upon the refinancing of the Property using
proceeds of a new first mortgage from New York Community Bank
(NYCB). Pursuant to the agreements with NYCB including the First
Mortgage and Security Agreement, such mortgage shall become
immediately due and payable at the option of NYCB if (i) the
control, management, or operation of the Property, or any part
thereof, is transferred to any individual or entity other than
Spring Village Holdings, Inc., the Corporate General Partner, or
(ii) the control of Spring Village Holdings, Inc. is transferred
to any individual or other entity other than Xxxxxxx Holdings,
Inc., or (iii) the control of Xxxxxxx is transferred to any
individual or entity other than Xxxxx X. Xxxxxxx.
WHEREAS, Xxxxx X. Xxxxxxx is the President and Chief
Operating Officer of H. Xxxxx Xxxxxxx, Inc.
WHEREAS, Due to such facts, Spring Village Holdings, Inc. on
behalf of Owner desires to continue to engage
Management/Consultant to manage, rent and operate the Property,
and Management/Consultant desires to accept such engagement, as
provided herein.
WHEREAS, Spring Village Holdings, Inc. is the General
Partner and Property manager and as such desires to subcontract
the management of the Property to Management/Consultant.
NOW, THEREFORE, in consideration of the mutual covenants
herein, Owner, Spring Village Holdings, Inc. and
Management/Consultant agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. This Article 1 contains definitions of certain
terms used in this Agreements, as set forth below:
A. Maximum Lease Term: Twelve (12) Months
B. Maximum Contract Amount: $10,000.00
C. Management Fee: Five percent
(5%) of Gross Income
D. Key Person: Xxxxx X. Xxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Office: (856) 667-0600
ARTICLE 2
ENGAGEMENT OF MANAGEMENT/CONSULTANT
2.1 Engagement: Owner engages Management/Consultant to manage and
rent the Property on the terms in this Agreement, and
Management/Consultant agrees to perform such service on such
terms.
2.2 Status of Management/Consultant: Limitation on Authority.
Management/Consultant shall act under this Agreement as an
independent contractor and not as Owner's agent.
Management/Consultant shall not have the right, power or
authority to enter into agreements or incur liability on behalf
of Owner except as expressly set forth herein. Any action taken
by Management/Consultant which is not expressly permitted by this
Agreement shall not bind Owner.
ARTICLE 3
DUTIES OF MANAGER
3.1 Standard of Performance. Management/Consultant will perform
its duties in a diligent, careful and professional manner to
maximize all potential revenues to Owner and to minimize expenses
and losses to Owner. The services of the Management/Consultant
are to be of a scope and quality not less than those generally
performed by first class, professional management/consultants of
properties similar in type and quality to the Property and
located in the same market area as the Property. The
Management/Consultants will make available to the Owner the full
benefit of the judgment, experience and advice of the members of
the Management/Consultant's organization. Management/Consultant
will at all time act in good faith, in a commercially reasonable
manner and in a fiduciary capacity with respect to the proper
protection of and accounting for Owner's assets, provided
however, that Management/Consultant may operate other competing
projects.
3.2 Specific Duties of Management/Consultant. Without limiting
the obligations of Management/Consultant under other provisions
of this Agreement, Management/Consultant will have the following
specific duties:
A. Orientation. Management/Consultant acknowledges receipt
of certain books and records for the Property, the personal
property on the Property belonging to the Owner, and the
originals or copies of the Property Documents. Within thirty (30)
days after the date of the Agreement, Management/Consultant will
furnish Owner a complete list of all books, records and personal
property regarding the Property and any Property Documents then
known to Management/Consultant.
B. Collection of Monies; Enforcement of Rights.
Management/Consultant will collect all rent and other payments
due from tenants in the Property and any other sums due Owner
regarding the Property. To the extent tenant leases affecting the
Property so require, Management/Consultant shall timely make or
verify any calculations that are required to determine the amount
of rent due from tenants. Management/Consultant will promptly and
diligently enforce Owner's rights under any tenant leases
affecting the Property, including without limitation taking the
following actions where appropriate: (i) terminating tenancies,
(ii) signing and serving such notices as are deemed necessary by
Management/Consultant, (iii) instituting and prosecuting actions,
and evicting tenants, and (iv) recovering rents and other sums
due by legal proceedings. The legal expenses incurred by
Management/Consultant in connection with the enforcement by
Management/Consultant of Owner's rights under such tenant leases
shall be paid by Owner to Management/Consultant.
C. Leasing. Management/Consultant will lease to desirable
tenants the units in the Property that from time to time may be
vacant upon terms and conditions satisfactory to Owner and
pursuant to Owner's written leasing guidelines if any.
Management/Consultant is hereby authorized to execute, deliver
and renew leases on behalf of Owner pursuant to Owner's written
leasing guidelines. Without Owner's prior written consent,
Management/Consultant will not enter into any lease for a term
exceeding the Maximum Lease Term set forth in Article 1.
D. Property Documents. Unless notified otherwise by Owner,
Management/Consultant will pay all sums from Owner's Account from
time to time due from the Owner of the Property under and
otherwise comply with the obligations of such Owner under any
mortgages, deeds of trust, leases, easements, restriction,
service contracts and other agreements now or hereafter affecting
the Property (the "Property Documents") under written
instructions from Owner.
E. Maintenance. Management/Consultant will maintain and
repair the Property as required by the Property Documents and in
accordance with standards acceptable to Owner, which standards
may be conditioned upon submission of such maintenance and
repairs to a competitive bidding process at Owners expense,
except to the extent the same has been provided in the Budget (as
described in Section 4.3) and except as to emergency repairs
undertaken pursuant to Section 4.5B. In addition to complying
with such other instructions that Owner may hereafter provide
concerning Management/Consultant's duties to maintain and repair
the Property, Management/Consultant shall (i) supervise its
employees and any third parties engaged to provide upkeep or
repairs to the Property, (ii) require that all contracts with
third parties providing labor, services or materials for the
maintenance or repair of the Property, and all subcontracts for
such items, contain provisions protecting Owner, in accordance
with local procedures, against mechanics' and materialmen's or
similar liens against the Property, and requiring ten percent
(10%) retainage under major construction/rehabilitation contracts
until at least thirty (30) days after completion of the work,
(iii) inspect all work performed in connection with the upkeep or
repair of the Property, and (iv) review all invoices and/or draw
requests submitted in connection with any such work and submit
the same to Owner for its approval in time to take advantage of
any discounts available for prompt payment.
F. Services. Management/Consultant will make arrangements
for all utilities,- services, equipment and supplies necessary or
desirable for the management, operation, maintenance and
servicing of the Property. All utilities contracts shall be in
the name of Owner, with all notices to be addressed to Owner, in
care of Management/Consultant, at Management/Consultant's
address.
G. Taxes. Management/Consultant will promptly send to Owner
upon receipt all notices regarding taxes and recommend from time
to time the advisability of contesting either the validity or the
amount of the taxes on the Property. Management/Consultant shall
pay such taxes for Owner with Owner's funds.
H. Maintenance of Insurance. If requested by Owner,
Management/Consultant will obtain and maintain (i) property
insurance against "All Risk" of direct physical loss or damage to
the Property in the amount of the full replacement value of the
Property as determined by Owner; (ii) comprehensive general
liability insurance (on an occurrence basis) as to the Property
in an amount of at least One Million Dollars ($1,000,000) per
occurrence. Such insurance shall be placed with a company or
companies acceptable to Owner, shall be in form and substance
satisfactory to Owner, and shall include the Owner and
Management/Consultant as a named insured. The copies thereof (and
all renewals) shall be delivered to Owner.
I. Compliance With Laws. Management/Consultant will take
such action as may be necessary to comply with any and all laws
applicable to the Property and Management/Consultant's employees
and with all orders regarding the Property of the Board of Fire
Underwriters or other similar bodies.
J. Employees. Management/Consultant will investigate, hire,
train, pay at Owner's expense, supervise and discharge the
personnel necessary to maintain and operate the Property
including, without limitation, an on-site property manager. If
such personnel are agents or employees of Management/Consultant
or a designated subcontractor, then Management/Consultant has the
right to be reimbursed hereunder. Owner shall have no right to
supervise or direct such agents or employees.
Management/Consultant will also maintain during the entire term
of this Agreement worker's compensation insurance on all
employees to the extent required by applicable law and automobile
liability insurance with bodily injury limits of not less than
One Hundred Thousand Dollars ($100,000) per person and Three
Hundred Thousand Dollars ($300,000) per occurrence and property
damage limits of not less than One Hundred Thousand Dollars
($100,000) per occurrence. The cost of the insurance required
under this Section 3.2J shall be an operating expense
reimbursable to Management/Consultant. Management/Consultant
assumes all responsibility for timely compliance with all
applicable laws regarding such employees, including by not
limited to, FLSA, OSHA, Federal withholding tax laws, FICA, and
Federal and State unemployment insurance laws.
K. Notices. Management/Consultant will promptly notify Owner
of any of the following in any way relating to the Property:
notice of any claim of violation of any governmental or legal
requirements, any notice of any claim of liability, any summons
or other legal process, any material damage, any actual or
alleged personal injury or property damage, and any other
material information. Management/Consultant will fully cooperate
with Owner in all legal and arbitration proceedings relating to
the Property.
L. Advertising. Management/Consultant will advertise space
in the Property through the use of renting signs, newspaper ads,
and other forms of appropriate advertising. All advertising
expenses will be an operating expense of the Property under the
Budget.
M. New Tenants. Management/Consultant will prepare the
Property (or portions thereof for occupancy by new tenants and
will coordinate the plans of such tenants for moving their
personal effects into the Property or out of the same, with a
primary view toward scheduling such movements so as to minimize
lost rental income.
N. Other Services. Management/Consultant will, without
additional charge, perform any other services normally performed
in managing properties similar to the Property or as may be
reasonably requested by Owner, whether or not specifically
enumerated herein, specifically including, without limitation,
the performance of any services normally provided in the locality
of the Property to tenants of like properties.
3.3 (A) Contracts. Management/Consultant will not execute or
otherwise enter into or bind Owner as to any contract or
agreement without receiving the prior written consent of Owner,
provided, however, that Management/Consultant may enter into
contracts on behalf of O wrier in the ordinary course of the
management of the Property for the acquisition of utility,
maintenance and other services and for the furnishing of services
to tenants of the Property if the expense to be incurred under
any such contract is set forth in the most recent Budget approved
by Owner and, whether payable in installments or a lump sum, is
not in excess of the Maximum Contract Amount.
Management/Consultant must follow the below listed Contract
Guidelines before entering into any contract, except for
utilities and other services for which only one supplier is
available. All utility contracts will be in the name of Owner.
Management/Consultant shall not hold itself out as having the
authority to approve any contract or agreement without the prior
approval of Owner except as provided above.
3.4 Use of Property. Management/Consultant will not permit the
use of the Property for any purpose which might impair any policy
of insurance on the Property or which might render any loss
insured thereunder uncollectible or which would be in violation
of any applicable law. Management/Consultant will operate and
maintain the Property according to the highest standards
achievable consistent with Owner's authorization.
Management/Consultant will use its best efforts to secure
compliance by tenants with their respective leases.
3.5 Management Account. Management/Consultant will deposit all
funds collected relating to the Property in the operating account
of S.V.G. Properties, L.P. Management/Consultant will not
commingle any funds collected relating to the Property with any
other funds. All sums collected by Management/Consultant relating
to the Property and all sums placed in the Account will be held
in trust for Owner. Management/Consultant may draw on the Account
only to pay the following matters in the following order of
priority: li) first, operating expenses permitted by Sections 5.1
and 4.2, (ii) second, the Management Fee described in Section
5.1, and (iii) finally, all the amounts payable to Owner.
3.6 Security Deposits. All security deposits collected by
Management/Consultant shall be handled in accordance with PA laws
governing same. Management/Consultant shall maintain accurate
records of all security deposits, including the amount of each
security deposit, the party from whom each security deposit is
collected, and the date(s) upon which Management/Consultant
collected each security deposit. Management/Consultant shall keep
an accurate record of all refunds.
3.7 Indemnity. Management/Consultant indemnifies and agrees to
hold harmless Owner and its directors, officers, shareholders,
employees, agents, partners, and representatives and their
respective successors, heirs, legal representatives and assigns
(collectively, the "Owner Indemnitees", which term shall not be
construed to include Management/Consultant) against any claims,
losses, and expenses (including but not limited to attorneys'
fees and expenses) which may be made against or incurred by any
one or more of the Owner Indemnitees arising out of (i) any
failure by any one or more of Management/Consultants, its
directors, officers, shareholders, employees, agents and
representatives (collectively the "Management/Consultant
Indemnitees") or any of Management/Consultant's subcontractors to
perform promptly any obligation under this Agreement or any
Property Documents, provided such failure is not caused by events
beyond the reasonable control of Management/Consultant, or by
Owner's failure after written request of Management/Consultant to
furnished any funds necessary in addition to those in the
Management Account and those available from collections from the
Property to enable Management/Consultant to perform such
obligation; (ii) any acts of any one or more of the
Management/Consultant Indemnitees or any of
Management/Consultant's subcontractors beyond the scope of
Management/Consultant's authority; and (iii) any malfeasance,
nonfeasance or gross negligence of any of the
Management/Consultant Indemnities or any of
Management/Consultant's subcontractors. Owner indemnifies and
agrees to hold harmless the Management/Consultant Indemnitees
against any claims, losses, and expenses (including but not
limited to attorneys' fees and expenses) which may be made
against or incurred by any one or more of the Management/
Consultant Indemnitees arising out of (i) any failure by any of
the Owner Indemnitees to perform promptly any obligation under
this Agreement, provided such failure is not caused by events
beyond the reasonable control of the Owner Indemnitees; and (ii)
any malfeasance, nonfeasance or negligence of any of the Owner
Indemnitees. The foregoing indemnities shall survive any
expiration or termination of this Agreement as to any such claims
arising before expiration or termination of this Agreement.
ARTICLE 4
ACCOUNTING, RECORDS, REPORTS
4.1 Records. Management/Consultant shall maintain a comprehensive
system of office records, books and accounts, correspondence,
contracts and documents which shall belong to Owner. Owner and
others designated by Owner shall at all times have access to such
records, books, accounts, correspondence, contracts and documents
and to all vouchers, files and all other material pertaining to
the Property and this Agreement, all of which
Management/Consultant agrees to keep safe, available and separate
from any records not having to do with the Property. Owner shall
have the right to conduct a review and/or audit of such records,
books, accounts, correspondence, contracts and documents at its
own expense, and Management/Consultant agrees that Owner and
Owner's auditors will have full and complete access to and
cooperation from Management/Consultant's officers, staff and
other employees in connection with any such review and/or audit.
4.2 Monthly Reports. On or before the thirtieth (30th) day of
each calendar month during the term of this Agreement,
Management/Consultant shall deliver to Owner the statements
pertaining to the Property, prepared on an accrual basis.
Management/Consultant shall also include with the foregoing, upon
Owner's request, copies of paid invoices indicating date paid,
amount paid and check number, a list of unpaid bills and accrued
expenses, and a payroll list showing the occupation of and wages
paid to all employees hired by Management/Consultant for the
purpose of performing its duties under this Agreement.
4.3 Budgets. Within ninety (90) days after the date of this
Agreement and on or before November 30 of each year during the
term of this Agreement, Management/Consultant shall deliver to
Owner an itemized statement ("Budget") of the estimated receipts
and disbursements for the remainder of the current calendar year,
and the next calendar year. Each Budget shall break down
estimated receipts and disbursements on a month-by-month basis.
Owner will approve or disapprove each Budget within a reasonable
time after the receipt of same, and Management/Consultant will
make any changes in the Budget requested by Owner.
4.4 Payment of Expenses. Notwithstanding any contrary provision
of this Agreement, Management/Consultant shall be obligated to
make payments required under this Agreement only to the extent of
funds derived from the Property or provided by Owner.
Management/Consultant shall give Owner prompt notice of any
expenses for the payment of which Management/Consultant does not
have sufficient funds from collections and the Trust Account.
Spring Village Holdings, Inc. shall pay or reimburse
Management/Consultant for all expenses properly incurred by
Management/Consultant under this Agreement and approved by Owner
to the extent Owner's approval is required by this Agreement
except expenses for:
A. Office equipment and supplies other than used exclusively
for the Property;
B. Any overhead expense of Management/Consultant incurred in
its general offices other than $1,000.00 per month which shall be
allowed for general partnership administration and any services
provided to the General Partner;
C. Expenses for bookkeeping, reporting, and electronic data
processing services;
D. Compensation of executive and supervisory personnel of
Management/ Consultant;
E. Compensation and expenses applicable to time spent on
matters other than the Property; and
F. Compensation of any personnel other than personnel
permanently located at, and fully dedicated to the Property.
4.5 Expenditure Authorization.
A. General Prohibition. Approval of a budget shall not
constitute authorization for Management/Consultant to expend any
money except as set forth herein.
B. Expenses Per Budget. To the extent set forth in the most
recent budget approved by Owner, and without further consent of
Owner, Management/Consultant will (i) pay all utilities and other
expenses incurred in the ordinary course of managing the Property
and (ii) supervise and purchase, or arrange for the purchase, in
an economical manner, all of the inventories, provisions,
supplies and operation equipment that in the normal course of
business are necessary and proper to maintain and operate the
Property. Owner shall be credited with the full amount of any
discount or commission obtained by Management/Consultant in
connection with any such purchase.
C. Major Budget Categories. Major Budget Categories are
listed as follows: See attached sample
D. Emergencies. Notwithstanding the foregoing, if emergency
action is necessary to prevent damage to the Property or danger
to persons, Management/Consultant may incur such expenses as are
reasonably necessary without the prior written approval of Owner
to protect the Property or persons. Any such expenditure shall be
incurred only in concert with prompt telephonic notification by
Management/Consultant to Owner.
ARTICLE 5
COMPENSATION
5.1 Compensation for Services. Owner will pay
Management/Consultant as compensation for its services hereunder
the amount (the "Management Fee") indicated in Article 1 hereof.
The term "Gross Rental Income" as used in this Agreement means
gross income billed by Owner or by Management/Consultant related
to the Property in any month, but excluding (i) capital gains,
(ii) payments in the nature of indemnification or compensation
for loss, damage or liability sustained, (iii) all purchase
discounts, (iv) any expense reimbursement from tenants, (v) any
sums which, under normal accounting practice, are attributable to
capital, and (vi) all other receipts of whatever kind and nature.
Such Management Fee is intended to compensate the manager for:
(i) its general and overhead expense, (ii) all compensation and
expenses of personnel employed by Management/Consultant which are
not reimbursable as expense under Section 4.4, and (iii) all
other expenses incurred by Management/Consultant which are not
reimbursable under Section 4.4. Management/Consultant will not be
entitled to any leasing commissions.
5.2 Payment of Management/Consultant's Compensation. The amount
of compensation due to Management/Consultant each month shall be
reflected in the monthly reports required to be submitted to
Owner under --Section 4.2. Any amount which Owner may dispute
shall not be payable until the dispute has been resolved. Owner
may from time to time require an audit of Management/Consultant's
computation of the Management Fee, and the parties shall promptly
make adjustment for any variances shown by the audit. The cost of
such audit shall be borne by Owner.
ARTICLE 6
TERM
6.1 Term. This Agreement shall commence on January 1, 2004 and
shall have an initial term of seven (7) years unless sooner
terminated for cause, as set forth in Article 6.4 below.
Thereafter, it shall continue on a month-to-month basis until
terminated according to Article 6.3 or Article 6.4 below.
6.2 Sale of Property. This Agreement shall automatically
terminate upon the consummation of any sale or other disposition
of the Property by Owner.
6.3 Termination Without Cause. The General Partner may terminate
this Agreement upon thirty (30) days prior written notice to
Management/Consultant if any governmental entity which has
control or supervision of General Partner mandates through
statute, act, amend or regulatory publication, that all contracts
must be terminated, repudiated, altered or amended. Otherwise,
General Partner or Management/Consultant may terminate this
agreement without cause by giving at least ninety- (90) days
written notice to the other party. Provided, however, this
agreement may not be terminated until Management/Consultant and
Xxxxx X. Xxxxxxx have no remaining obligation or liability
related to the agreement with New York Community Bank, all
amounts due and owing to the Management /Consultant or Xxxxx X
Xxxxxxx have been paid, and any ownership interest of Xxxxx X.
Xxxxxxx or H. Xxxxx Xxxxxxx, Inc. shall have been purchased at
fair market value as provided for in the limited partnership
agreement.
6.4 Termination For Cause. The General Partner may terminate
this Agreement at any time, effective in thirty (30) days upon
written notice to Management/Consultant if (i)
Management/Consultant defaults in its obligations under this
Agreement; and the default is not cured within thirty (30) days
after receipt by Management/Consultant of written notice thereof
setting forth the default; (ii) a petition for relief in
bankruptcy or reorganization or arrangement is filed by or
against Management/Consultant or any affiliate of
Management/Consultant; (iii) there is a significant decline in
tenant occupancy of or collections from the Property which has
occurred as a result of inadequate performance by the
Management/Consultant; or (iv) Management/Consultant causes or
suffers to be caused waste to the Property. Provided, however,
this agreement may not be terminated until Management/Consultant
and Xxxxx X. Xxxxxxx have no remaining obligation or liability
related to the agreement with New York Community Bank, all
amounts due and owing to the Management /Consultant or Xxxxx X
Xxxxxxx have been paid, and any ownership interest of Xxxxx X.
Xxxxxxx or H. Xxxxx Xxxxxxx, Inc. shall have been purchased at
fair market value as provided for in the limited partnership
agreement. Management/Consultant may terminate this Agreement,
effective immediately upon notice to Owner, if Owner defaults in
its obligations under this Agreement and the default is not cured
within thirty (30) days after receipt by Owner of written notice
thereof setting forth the default, or upon an amendment of this
Agreement made pursuant to the second sentence of Section 8.6.
6.5 Effect of Termination. The termination of this Agreement
shall not affect any right, obligation or liability that has
accrued under this Agreement on or before the effective date of
such termination. Upon termination of this Agreement for any
reason, Management/Consultant will cooperate with General Partner
in an effort to achieve an efficient transition and will, before
receiving final payment of any fees, deliver to General Partner
or to such person or persons as General Partner may direct all
Property Documents, books, records and accounts, rent rolls,
insurance policies, files and other materials related to the
Property, including without limitation any bank account signature
cards or other documentation required to transfer sole control
over the Management Account to General Partner or its designee.
Within fifteen (15) days after the termination of this Agreement,
Management/ Consultant will deliver a final accounting to Owner
reflecting all income and expenses of the Property as of the date
of termination.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF MANAGER
To induce Owner to enter into this Agreement,
Management/Consultant makes the following representations and
warranties, which shall survive the execution and termination of
this Agreement:
7.1 Organization. Management/Consultant is duly organized to
properly manage the Property.
7.2 Manner of Performance. Management/Consultant has sufficient
staff and other resources to carry out its duties under this
Agreement in a prompt, efficient and diligent manner. The Key
Person designated in Article 1 hereof shall be the primary person
responsible for performing the duties of Management/Consultant
hereunder during the term hereof.
7.3 Authorization. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary action
on the part of Management/Consultant.
7.4 Validity. This Agreement constitutes a legal, valid and
binding agreement of the Management/Consultant enforceable
against Management/Consultant in accordance with its terms except
as limited by bankruptcy, insolvency, receivership and similar
laws of general application.
7.5 Conflicts of Interest. Except as previously disclosed in
writing to Owner, Management/Consultant has no real or apparent
conflict of interest pertaining to this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 Owner's Rights. Nothing in this Agreement shall be deemed to
limit Owner's right to do anything regarding the Property which
an Owner of the Property would otherwise be entitled to do,
including but not limited to the right to enter upon the
Property, to inspect the Property, to perform any repair or
maintenance thereof, and to do anything required of
Management/Consultant hereunder if Management/Consultant fails to
do so in a timely manner.
8.2 No Personal Liability. Management/Consultant will look solely
to Owner's interest in the Property for recovery of any judgment
against Owner relating to this Agreement, and Owner, its
employees, officers, directors, shareholders, agents, partners,
and representatives shall not be personally liable for anything
related to this Agreement. This Section 8.2 shall survive the
expiration or termination of this Agreement.
8.3 Nature of Relationship. Management/Consultant shall be
responsible for all of its employees, the supervision of all
persons performing services regarding the Property, and for
determining the manner of performance of all services for which
Management/Consultant is responsible hereunder.
8.4 No Third Party Beneficiaries. No provision of this Agreement
shall inure to the benefit of any third party.
8.5 Notices. Except as provided in Section 4.5D as to
emergencies, all notices and communications required hereunder
shall be in writing and shall be personally delivered or sent by
registered or certified mail, return receipt requested, addressed
to the applicable party at the address set forth for such party
on page 1 of this Agreement, or to such address as either party
may from time to time specify by notice to the other. Notices
shall be effective on the date of delivery or, if delivery is not
accepted, on the earlier of the date that delivery is refused or
three (3) days after the date the notice is mailed.
8.6 Amendments. This Agreement may not be amended except by
further agreement in writing executed by each party to be bound
thereby.
8.7 Exhibits. All exhibits to this Agreement are intended to be
attached to this Agreement and, whether or not so attached, are
incorporated herein by reference as if set forth in full. Any
addenda attached to this Agreement are incorporated herein by
reference.
8.8 Laws. The term "laws" as used in this Agreement means all
applicable constitutional provisions, statutes, ordinances, codes
and rules and regulations of any governmental body having
jurisdiction over the Property of the parties to this Agreement.
8.9 No Implied Waivers. No failure or delay by Owner in
exercising any right or remedy under this Agreement and no course
of dealing between Owner and Management/Consultant shall operate
as a waiver of any such right or remedy nor shall any single or
partial exercise of any right or remedy by Owner under this
Agreement preclude any other or further exercise of such right or
remedy. The rights and remedies available to Owner are cumulative
and not exclusive of any other rights and remedies provided by
law or equity.
8.10 Severability. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under all applicable laws. However, if any provision of
this Agreement is invalid under any applicable law, such
provision shall be ineffective only to the extent of such
invalidity without invalidating the remaining provisions of this
Agreement.
8.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey
and the laws of the United States applicable to transactions in
New Jersey.
8.12 Benefit and Assignment. Subject to Section 6.2, this
Agreement shall be binding upon Owner, General Partner, and
Management/Consultant and their respective successors and assigns
and shall inure to the benefit of Owner, its successors and
assigns. Management/Consultant may not assign or transfer any of
its rights or obligations under this Agreement without the prior
written consent of Owner, which may be withheld without cause in
Owner's sole discretion.
8.13 Headings. The captions and headings in this Agreement are
for convenience only and shall not affect the construction of any
provision of this Agreement.
8.14 Counterparts. This Agreement may be executed in any number
of counterparts and each shall be considered an original and
collectively shall constitute one Agreement, but in making proof
of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
8.15 Entire Agreement. This Agreement sets forth the entire
Agreement and understanding between the parties regarding the
subject matter of this Agreement and supersedes all prior
agreements and understandings.
8.16 Xxxxxxx'x Compensation. Owner shall be responsible for all
charges for Xxxxxxx'x Compensation insurance and any retroactive
increases in the premium made by the insurance carrier after the
termination of this Agreement.
EXECUTED as of the date first entered above.
OWNER
GENERAL PARTNER
S.V.G. PROPERTIES, L.P. Spring Village Holdings, Inc.
By: ______________________ By:__________________________
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
President of General Partner President
MANAGEMENT/CONSULTANT
H. Xxxxx Xxxxxxx, Inc.
By: _____________________________
Xxxxx X. Xxxxxxx
President
