PRIMARY PROPERTY
MANAGEMENT AGREEMENT
This Agreement is made this 18th day of May, 1998 between Xxxxxxxxx'x Wharf
Baltimore L.P. ("Owner") and Xxxx Financial Incorporated ("Agent").
1. Appointment and Acceptance. The Owner appoints the Agent as exclusive agent
for the property described in Section 2 of this Agreement, and the Agent accepts
the appointment subject to the terms and conditions set forth in this Agreement.
2. Description of Project. The property to be managed by the Agent under this
Agreement (the "Project") is a housing development consisting of the land,
buildings and other improvements.
The Project is further described as follows:
NAME: Xxxxxxxxx'x Wharf
LOCATION: 0000 Xxxx Xx., Xxxxxxxxx, XX
NO. OF DWELLINGS: 128 Apartment Units
38 Room Inn
152 Space Parking Garage
3. Marketing. The Agent will carry out marketing in accordance with the approved
marketing plan.
4. Rentals. The Agent will offer for rent and will rent the dwelling units.
Incident thereto, the following provisions will apply:
A. The Agent will set up and maintain a Management Office to service
the Project, or make other arrangements acceptable to the Owner.
B. The Agent will follow an approved marketing plan as agreed to by the
Owner and the Agent.
C. The Agent will show the premises to prospective tenants.
D. The Agent will take and process applications for rentals during
normal business hours and at other times as may be required by the
Owner. The Agent agrees to review each prospective applicant and
related applicant data prior to the acceptance or rejection of said
applicant.
E. The Agent will prepare all dwelling leases and will execute the same
in its name, identifying itself thereon as Agent for the Owner.
(Dwelling leases will be in a form approved by the Owner, but
individual dwelling leases need not be submitted for the approval of
the Owner).
F. The Owner will furnish the Agent with any approved rent schedule and
any other charges for facilities and services.
G. The Agent will maintain and submit financial records and accounts of
the operation of the property.
H. The Agent will maintain a current list of acceptable prospective
tenants in accordance with the provisions of any approved marketing
plan and will handle all arrangements necessary to assure full
occupancy.
5. Collection of rents and Other Receipts. The Agent will collect and deposit
rents in accordance with the terms of each tenants lease. All funds collected by
the Agent shall be deposited promptly by the Agent in a bank account in an
institution whose deposits are insured by an agency of the United States of
America; this account shall be used exclusively by the Agent for funds of this
project and be known as the Rental Agency account.
All security deposit funds received by the Agent shall be deposited in a
separate interest bearing escrow account insured by an agency of the United
States of America in accordance with the Laws of the State of Maryland.
6. Enforcement of Leases. The Agent will secure full compliance of each tenant
with the terms of his lease.
The Agent will lawfully terminate any tenancy when, in the Agents
judgment, sufficient cause (including, but not limited to, non payment of rent)
for such termination occurs under the term of the tenant's lease. For this
purpose, the Agent is authorized to consult with legal counsel of its choice to
bring actions for evictions, and to execute notices to vacate and judicial
pleadings incident to such actions. Attorneys fees other necessary costs
incurred in connection with such actions will be paid from the Rental Agency
Account as project expenses. Notwithstanding anything herein to the contrary,
the Agent agrees to review each prospective termination with the Owner prior to
commencement of the termination process. In the event of a dispute between the
Agent and the Owner with respect to enforcement of lessee (Paragraph 6), the
Agent and Owner agree to mediation.
7. Maintenance and Repair. The Agent will cause the Project to be maintained and
repaired, in accordance with state and local codes, in a condition at all times
acceptable to the Owner, including but not limited to cleaning, painting,
decorating, plumbing, carpentry, grounds care and such other maintenance and
repair work as may be necessary. Incident thereto the following provisions will
apply:
A. Special attention will be given to preventative maintenance.
B. The Agent is authorized to purchase all materials, equipment, tools,
appliances, supplies, and services necessary for proper maintenance
and repair in accordance with the budget established with the Owner.
C. Notwithstanding any of the foregoing provisions, the prior approval of
the Owner for any expenditure which exceeds $1,500 in any one instance for
labor, materials and otherwise for maintenance in connection within the
maintenance and repair of the Project; except for recurring expenses within the
limits of and already included in the operating budget or for emergency repairs
involving manifest danger to persons or property, or required to avoid
suspension of any necessary service to the Project. In the latter event, the
Agent will inform the Owner of the facts as promptly as possible.
D. The Agent shall take such action as may be necessary to comply with any
and all orders or requirements affecting the premises, municipal authority
having jurisdiction thereof, as well as authorities of the Board of Fire
Underwriters or other similar bodies; the Agent is nonetheless subject to the
same limitation contained in Paragraph C. of this section in connection with the
making of repairs and alterations. The Agent shall not take any action under
this Paragraph D so long as the Primary Manager is contesting, or has affirmed
his intention to contest, any such order or requirement.
8. Utilities & Services. The Primary Manager, unless the Agent is authorized in
writing, will make arrangements for water , electricity, gas fuel, oil, sewage
and trash disposal, pest extermination, decorating and laundry facilities. The
Primary Manager, unless the Agent is authorized in writing, will make such
contracts as may be necessary to secure utilities and services.
9. Disbursements from Rental Agency Account.
A. From the funds collected and deposited by the Agent in the Rental
Agency Account, pursuant to Section 5. above, the Agent will make
the following disbursements promptly when payable:
(1) Compensation payable to the Agent pursuant to Section 18.
below for its service hereunder and reimbursement to the
Agent for compensation payable to the employees, specified in
Section 18. below, and for the taxes and assessments payable
to local, state and federal governments in connection with
the employment of such personnel.
(2) The single aggregate payment required to be made monthly by
the Owner to the Mortgagee, including the amounts due under
the mortgage for principal amortization, interest, mortgage
insurance
premiums, ground rents, taxes and assessments, fire and
other hazards, and insurance premiums and the amount
specified (or an amount agreed upon) for allocation to the
Reserve for Replacement escrow.
(3) All sums otherwise due and payable by the Owner as expenses
of the Project, authorized to be incurred by the Agent under
the terms of this Agreement.
B. Except for the disbursements mentioned in Section 9.A(1)-(3) above,
funds will be disbursed or transferred from the Rental Agency
Account only as the Owner may from time to time direct in writing.
C. In the event that the balance in the Rental Agency Account is at any
time insufficient to pay disbursements due, the Agent will within
thirty days inform the Owner of the fact, and the Owner will then
remit to the Agent sufficient funds to cover the deficiency. In no
event will the Agent be required to use its funds to pay such
disbursements.
10. Budgets. Annual operating budgets for the project will exist, as approved by
the Owner; the Agent will use best efforts to see that each type of operating
expense itemized in the budget will not exceed the annual amount authorized by
the approved budget. In addition to preparation and submission of a recommended
operating budget for the initial fiscal year, the Agent will prepare a
recommended operating budget for each subsequent fiscal year and will submit the
same to the Owner at least sixty (60) days before the beginning of each new
fiscal year. The Owner will promptly inform the Agent, of changes, if any,
incorporated in the annual budget, and the Agent will keep the Owner informed of
any anticipated deviation from the receipts or disbursements stated in the
approved budget.
11. Records and Reports. In addition to any other requirements specified in this
Agreement, the Agent will have the following responsibilities with respect to
records and reports:
A. The Agent will establish and maintain a comprehensive system of records,
books and accounts.
B. Within twenty (20) days following the end of each fiscal year of the
project, the Owner shall be furnished with all information necessary to
prepare for an audit of the financial statements of the project including
an examination of the books, records and detailed itemized statement of
all income and expenditures. Owner and/or its designated certified public
accounts shall have access to accounting records at the Agent's home
office to perform the annual audit.
C. By the fifteenth (15) day of each month, the Agent will furnish the Owner
with a balance sheet, statement of receipts and disbursements for the
previous month, schedules of accounts receivable and payables, and
reconciled bank statements for the Rental Agency Account and Deposit
Account as of the end of the previous month, and any other documentation
reasonably requested by the Owner.
12. Bids, Discounts, Rebates, etc. The Agent will obtain contracts, materials,
supplies, utilities, and services on the most advantageous terms to the Project.
It is required to solicit bids in writing for all costs greater than $2,000 for
those items that can be obtained from more than one source. The Agent will
secure and credit to the Owner, and not receive or retain for itself, all
discounts, rebates, or commissions obtainable with respect to purchases, service
contracts, and or all other transactions regarding the Project.
13. Emergency Answering Services. The Agent will provide emergency telephone and
repair capability on a twenty-four (24) hour basis.
14. Insurance. The Owner shall direct the Agent top purchase insurance coverage
for the premises and the operations thereof, then, within ten (10) days of such
direction, the Owner shall provide written notice to the Agent as to the
company, coverage, policy limits, and the named insured that are to be included
in such insurance. The Agent will pay all insurance premiums from the Operating
Account, which premiums will be treated as operating expenses. The Owner agrees
that such coverage shall include, as a minimum, Commercial General Liability
coverage written on an assurance form, having limits of liability of not less
than $1,000,000 each occurrence and $2,000,000 general aggregate. The Agent
shall be designated on any and all such policies as an additional insured. In
addition, Agent shall purchase fidelity insurance in the amount of $1,000,000
with a comp[any satisfactory to it with respect to all such employees of Agent
who are responsible for or are involved in the collection of safekeeping of
receipts or other funds hereunder received by Agent; the cost of such coverage
shall not be included as an operating expense.
15. Compliance with Government Orders. The Agent will take such action as may be
necessary to comply promptly with any and all government orders or other
requirements affecting the Project, whether imposed by federal, state, county or
municipal authority, subject, however, to the limitation stated in Section 7.D.
with respect to repairs. The Agent shall, however, take no such action so long
as the Owner is contesting, or has affirmed his intentions to contest, any such
order or requirement. The Agent will notify the Owner, in writing, of all
notices of such governmental orders or other requirements within seventy-two
(72) hours of the time of their receipt.
16. Nondiscrimination. In the performance of its obligations under this
Agreement, the Agent will comply with the provisions of any federal, state or
local law prohibiting the discrimination in housing on the grounds of race,
color, creed, sex, familial status, handicap or national origin.
17. Employees. The number, qualifications, and duties of personnel to be
employed in the management of the Project, including an on-site General Manager,
an Assistant Property Manager/Leasing Agent, Resident Superintendent, or their
maintenance, bookkeeping, management and clerical employees will be determined
by the Owner and the Agent in accordance with the approved budget. All such
employees will be deemed employees of the Agent, not the Owner (unless they are
the same), and will be hired, paid, supervised and discharged by the Agent,
subject to the following conditions:
A. The compensation, including payroll taxes and fringe benefits, of all
employees will be within the Agent's sole discretion, provided that
minimum wage standards are met.
B. The Owner will reimburse the Agent for compensation, including fringe
benefits, Payable to all full and part time on-site personnel and for all local,
state and federal taxes and assessments (including but not limited to Social
Security taxes, unemployment insurance, and workmen's compensation insurance)
incident to the employment of such personnel. Such reimbursement will be paid
from the Rental Agency Account and will be treated as a Project expense.
Part-time maintenance and administrative employee compensation properly
attributable to the Project shall be paid from the Rental Account.
18. Agent's Compensation. The annual compensation which the Agent shall be
entitled to receive for management services performed under this Agreement shall
be a fee in the amount equivalent to 4% percent of total rent collections. Such
fees shall be paid by the Owner to the Agent monthly, no later than the
fifteenth (15) day of each month, unless otherwise agreed by the parties hereto.
If any apartment is unrentable due to lead paint, casualty loss or requires
rehabilitation resulting in failure to pass required inspections, Agent will be
allowed to include the apartments approved monthly rent as collected income.
This is for the purpose of calculating the management fee only.
19. Indemnity. The Owner will indemnify, defend and hold the Agent harmless from
all liabilities, including all loss,, costs, and expenses, arising from the
premises, including the Owner's acts or omissions, and including all acts or
omissions of the Agent in the performance of his duties as described in this
Agreement.
20. Terms of Agreement. This Agreement shall be in force beginning on the 1st
day of July, 1998 and will expire on the earlier of June 30, 2006 or the date of
the disposition of the property. Owner may terminate this Agreement for cause
immediately upon written notice to Agent. Cause is defined as fraud, negligence,
or misconduct or breach of an expressed provision of this Agreement. This
Agreement shall be terminable by the Lender as noted in the Indemnity Deed of
Trust dated February 27, 1996. This Agreement shall also be subject to
termination upon any of the following conditions: A. In the event a petition in
bankruptcy is filed by or against the Agent or Owner, or
in the event that either of the aforementioned makes an assignment for the
benefit of creditors or takes advantage of any solvency act, the other
party may terminate this Agreement provided that prompt written notice of
such termination is given.
B. Upon the termination, the Agent will submit to the Owner any financial
statements requested by the Owner. After the Agent and the Owner have
accounted to each other, with respect to all matters outstanding as of the
termination date, the Owner will furnish the Agent security, in the form
and principal amount satisfactory to the Agent, against any obligations or
liabilities which the Agent may properly have incurred on behalf of the
Owner hereunder.
C. The Agent is prohibited from making a tender offer to the limited partners
of Historic Preservation Properties 1990 L.P. Tax Credit Fund or any of
its affiliated entities without prior written permission.
D. If this Agreement is terminated during any of the first twenty four (24)
months, the Agent is entitled to an amount equal to the fee that would be
collected in one year (12 mos.) as liquidated damages. Said damages are
payable at termination provided that the Agent is not retained by the new
owner in the case of a sale.
21. Sub Agent. The Agent has the right, with the prior written consent of the
Owner, to engage a sub agent to perform its duties and responsibilities under
this Agreement.
22. Interpretive Provision. This Agreement constitutes the entire Agreement
between the Owner and the Agent with respect to the management and operation of
the Project, and no change will be valid unless made by supplemental written
agreement, executed and approved in the same manner as this Agreement.
23. Notices. Any notice under this Agreement shall be given by mailing such
notice to the address(es) indicated below, by certified mail return receipt
requested or by hand delivery, or to such other address as the parties shall
specify in writing provided in the manner described in this paragraph.
If to Owner:
Xxxxxxxxx'x Wharf Baltimore L.P.
c/o Gunn Financial Incorporated
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 If to Agent:
Xxxx Financial Incorporated
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
IN WITNESS WHEREOF, their principal parties have, by their duly authorized
officers, executed this Agreement on the date first above written.
OWNER: AGENT:
By: _______________________ By: ______________________
Title: _______________________ Title: ______________________
PRIMARY MARINA
MANAGEMENT AGREEMENT
This Agreement is made this 18th day of May, 1998 between Xxxxxxxxx'x Wharf
Marina L.P. ("Owner") and Xxxx Financial Incorporated ("Agent").
1. Appointment and Acceptance. The Owner appoints the Agent as exclusive agent
for the property described in Section 2 of this Agreement, and the Agent accepts
the appointment subject to the terms and conditions set forth in this Agreement.
2. Description of Project. The property to be managed by the Agent under this
Agreement (the "Project") is a housing development consisting of the land,
buildings and other improvements.
The Project is further described as follows:
NAME: Xxxxxxxxx'x Wharf Marina
LOCATION: 0000 Xxxx Xx., Xxxxxxxxx, XX
NO. OF DWELLINGS: 256 slip marina and Fastlands containing approx.
two acres providing parking for the Inn and Marina.
3. Marketing. The Agent will carry out marketing in accordance with the approved
marketing plan.
4. Rentals. The Agent will offer for rent and will rent the dwelling units.
Incident thereto, the following provisions will apply:
A. The Agent will set up and maintain a Management Office to service
the Project, or make other arrangements acceptable to the Owner.
B. The Agent will follow an approved marketing plan as agreed to by the
Owner and the Agent.
C. The Agent will show the premises to prospective tenants.
D. The Agent will take and process applications for rentals during
normal business hours and at other times as may be required by the
Owner. The Agent agrees to review each prospective applicant and
related applicant data prior to the acceptance or rejection of said
applicant.
E. The Agent will prepare all dwelling leases and will execute the same
in its name, identifying itself thereon as Agent for the Owner.
(Dwelling leases will be in a form approved by the Owner, but
individual dwelling leases need not be submitted for the approval of
the Owner).
F. The Owner will furnish the Agent with any approved rent schedule and
any other charges for facilities and services.
G. The Agent will maintain and submit financial records and accounts of
the operation of the property.
H. The Agent will maintain a current list of acceptable prospective
tenants in accordance with the provisions of any approved marketing
plan and will handle all arrangements necessary to assure full
occupancy.
5. Collection of rents and Other Receipts. The Agent will collect and deposit
rents in accordance with the terms of each tenants lease. All funds collected by
the Agent shall be deposited promptly by the Agent in a bank account in an
institution whose deposits are insured by an agency of the United States of
America; this account shall be used exclusively by the Agent for funds of this
project and be known as the Rental Agency account.
All security deposit funds received by the Agent shall be deposited in a
separate interest bearing escrow account insured by an agency of the United
States of America in accordance with the Laws of the State of Maryland.
6. Enforcement of Leases. The Agent will secure full compliance of each tenant
with the terms of his lease.
The Agent will lawfully terminate any tenancy when, in the Agents
judgment, sufficient cause (including, but not limited to, non payment of rent)
for such termination occurs under the term of the tenant's lease. For this
purpose, the Agent is authorized to consult with legal counsel of its choice to
bring actions for evictions, and to execute notices to vacate and judicial
pleadings incident to such actions. Attorneys fees other necessary costs
incurred in connection with such actions will be paid from the Rental Agency
Account as project expenses. Notwithstanding anything herein to the contrary,
the Agent agrees to review each prospective termination with the Owner prior to
commencement of the termination process. In the event of a dispute between the
Agent and the Owner with respect to enforcement of lessee (Paragraph 6), the
Agent and Owner agree to mediation.
7. Maintenance and Repair. The Agent will cause the Project to be maintained and
repaired, in accordance with state and local codes, in a condition at all times
acceptable to the Owner, including but not limited to cleaning, painting,
decorating, plumbing, carpentry, grounds care and such other maintenance and
repair work as may be necessary. Incident thereto the following provisions will
apply:
A. Special attention will be given to preventative maintenance.
B. The Agent is authorized to purchase all materials, equipment, tools,
appliances, supplies, and services necessary for proper maintenance
and repair in accordance with the budget established with the Owner.
C. Notwithstanding any of the foregoing provisions, the prior approval of
the Owner for any expenditure which exceeds $1,500 in any one instance for
labor, materials and otherwise for maintenance in connection within the
maintenance and repair of the Project; except for recurring expenses within the
limits of and already included in the operating budget or for emergency repairs
involving manifest danger to persons or property, or required to avoid
suspension of any necessary service to the Project. In the latter event, the
Agent will inform the Owner of the facts as promptly as possible.
D. The Agent shall take such action as may be necessary to comply with any
and all orders or requirements affecting the premises, municipal authority
having jurisdiction thereof, as well as authorities of the Board of Fire
Underwriters or other similar bodies; the Agent is nonetheless subject to the
same limitation contained in Paragraph C. of this section in connection with the
making of repairs and alterations. The Agent shall not take any action under
this Paragraph D so long as the Primary Manager is contesting, or has affirmed
his intention to contest, any such order or requirement.
8. Utilities & Services. The Primary Manager, unless the Agent is authorized in
writing, will make arrangements for water , electricity, gas fuel, oil, sewage
and trash disposal, pest extermination, decorating and laundry facilities. The
Primary Manager, unless the Agent is authorized in writing, will make such
contracts as may be necessary to secure utilities and services.
9. Disbursements from Rental Agency Account.
A. From the funds collected and deposited by the Agent in the Rental
Agency Account, pursuant to Section 5. above, the Agent will make
the following disbursements promptly when payable:
(1) Compensation payable to the Agent pursuant to Section 18.
below for its service hereunder and reimbursement to the
Agent for compensation payable to the employees, specified in
Section 18. below, and for the taxes and assessments payable
to local, state and federal governments in connection with
the employment of such personnel.
(2) The single aggregate payment required to be made monthly by
the Owner to the Mortgagee, including the amounts due under
the mortgage for principal amortization, interest, mortgage
insurance
premiums, ground rents, taxes and assessments, fire and
other hazards, and insurance premiums and the amount
specified (or an amount agreed upon) for allocation to the
Reserve for Replacement escrow.
(3) All sums otherwise due and payable by the Owner as expenses
of the Project, authorized to be incurred by the Agent under
the terms of this Agreement.
B. Except for the disbursements mentioned in Section 9.A(1)-(3) above,
funds will be disbursed or transferred from the Rental Agency
Account only as the Owner may from time to time direct in writing.
C. In the event that the balance in the Rental Agency Account is at any
time insufficient to pay disbursements due, the Agent will within
thirty days inform the Owner of the fact, and the Owner will then
remit to the Agent sufficient funds to cover the deficiency. In no
event will the Agent be required to use its funds to pay such
disbursements.
10. Budgets. Annual operating budgets for the project will exist, as approved by
the Owner; the Agent will use best efforts to see that each type of operating
expense itemized in the budget will not exceed the annual amount authorized by
the approved budget. In addition to preparation and submission of a recommended
operating budget for the initial fiscal year, the Agent will prepare a
recommended operating budget for each subsequent fiscal year and will submit the
same to the Owner at least sixty (60) days before the beginning of each new
fiscal year. The Owner will promptly inform the Agent, of changes, if any,
incorporated in the annual budget, and the Agent will keep the Owner informed of
any anticipated deviation from the receipts or disbursements stated in the
approved budget.
11. Records and Reports. In addition to any other requirements specified in this
Agreement, the Agent will have the following responsibilities with respect to
records and reports:
A. The Agent will establish and maintain a comprehensive system of records,
books and accounts.
B. Within twenty (20) days following the end of each fiscal year of the
project, the Owner shall be furnished with all information necessary to
prepare for an audit of the financial statements of the project including
an examination of the books, records and detailed itemized statement of
all income and expenditures. Owner and/or its designated certified public
accounts shall have access to accounting records at the Agent's home
office to perform the annual audit.
C. By the fifteenth (15) day of each month, the Agent will furnish the Owner
with a balance sheet, statement of receipts and disbursements for the
previous month, schedules of accounts receivable and payables, reconciled
bank statements for the Rental Agency Account and Deposit Account as of
the end of the previous month, and any other documentation reasonably
requested by the Owner.
12. Bids, Discounts, Rebates, etc. The Agent will obtain contracts, materials,
supplies, utilities, and services on the most advantageous terms to the Project.
It is required to solicit bids in writing for all costs greater than $2,000 for
those items that can be obtained from more than one source. The Agent will
secure and credit to the Owner, and not receive or retain for itself, all
discounts, rebates, or commissions obtainable with respect to purchases, service
contracts, and or all other transactions regarding the Project.
13. Emergency Answering Services. The Agent will provide emergency telephone and
repair capability on a twenty-four (24) hour basis.
14. Insurance. The Owner shall direct the Agent top purchase insurance coverage
for the premises and the operations thereof, then, within ten (10) days of such
direction, the Owner shall provide written notice to the Agent as to the
company, coverage, policy limits, and the named insured that are to be included
in such insurance. The Agent will pay all insurance premiums from the Operating
Account, which premiums will be treated as operating expenses. The Owner agrees
that such coverage shall include, as a minimum, Commercial General Liability
coverage written on an assurance form, having limits of liability of not less
than $1,000,000 each occurrence and $2,000,000 general aggregate. The Agent
shall be designated on any and all such policies as an additional insured. In
addition, Agent shall purchase fidelity insurance in the amount of $1,000,000
with a comp[any satisfactory to it with respect to all such employees of Agent
who are responsible for or are involved in the collection of safekeeping of
receipts or other funds hereunder received by Agent; the cost of such coverage
shall not be included as an operating expense.
15. Compliance with Government Orders. The Agent will take such action as may be
necessary to comply promptly with any and all government orders or other
requirements affecting the Project, whether imposed by federal, state, county or
municipal authority, subject, however, to the limitation stated in Section 7.D.
with respect to repairs. The Agent shall, however, take no such action so long
as the Owner is contesting, or has affirmed his intentions to contest, any such
order or requirement. The Agent will notify the Owner, in writing, of all
notices of such governmental orders or other requirements within seventy-two
(72) hours of the time of their receipt.
16. Nondiscrimination. In the performance of its obligations under this
Agreement, the Agent will comply with the provisions of any federal, state or
local law prohibiting the discrimination in housing on the grounds of race,
color, creed, sex, familial status, handicap or national origin.
17. Employees. The number, qualifications, and duties of personnel to be
employed in the management of the Project, including an on-site General Manager,
an Assistant Property Manager/Leasing Agent, Resident Superintendent, or their
maintenance, bookkeeping, management and clerical employees will be determined
by the Owner and the Agent in accordance with the approved budget. All such
employees will be deemed employees of the Agent, not the Owner (unless they are
the same), and will be hired, paid, supervised and discharged by the Agent,
subject to the following conditions:
A. The compensation, including payroll taxes and fringe benefits, of all
employees will be within the Agent's sole discretion, provided that
minimum wage standards are met.
B. The Owner will reimburse the Agent for compensation, including fringe
benefits, Payable to all full and part time on-site personnel and for all local,
state and federal taxes and assessments (including but not limited to Social
Security taxes, unemployment insurance, and workmen's compensation insurance)
incident to the employment of such personnel. Such reimbursement will be paid
from the Rental Agency Account and will be treated as a Project expense.
Part-time maintenance and administrative employee compensation properly
attributable to the Project shall be paid from the Rental Account.
18. Agent's Compensation. The annual compensation which the Agent shall be
entitled to receive for management services performed under this Agreement shall
be a fee in the amount equivalent to 4% percent of total rent collections. Such
fees shall be paid by the Owner to the Agent monthly, no later than the
fifteenth (15) day of each month, unless otherwise agreed by the parties hereto.
If any apartment is unrentable due to lead paint, casualty loss or requires
rehabilitation resulting in failure to pass required inspections, Agent will be
allowed to include the apartments approved monthly rent as collected income.
This is for the purpose of calculating the management fee only.
19. Indemnity. The Owner will indemnify, defend and hold the Agent harmless from
all liabilities, including all loss,, costs, and expenses, arising from the
premises, including the Owner's acts or omissions, and including all acts or
omissions of the Agent in the performance of his duties as described in this
Agreement.
20. Terms of Agreement. This Agreement shall be in force beginning on the 1st
day of July, 1998 and will expire on the earlier of June 30, 2006 or the date of
the disposition of the property. Owner may terminate this Agreement for cause
immediately upon written notice to Agent. Cause is defined as fraud, negligence,
or misconduct or breach of an expressed provision of this Agreement. This
Agreement shall also be subject to termination upon any of the following
conditions:
A. In the event a petition in bankruptcy is filed by or against the Agent
or Owner, or in the event that either of the aforementioned makes an assignment
for the benefit of creditors or takes advantage of any solvency act, the other
party may terminate this Agreement provided that prompt written notice of such
termination is given.
B. Upon the termination, the Agent will submit to the Owner any financial
statements requested by the Owner. After the Agent and the Owner have
accounted to each other, with respect to all matters outstanding as of the
termination date, the Owner will furnish the Agent security, in the form
and principal amount satisfactory to the Agent, against any obligations or
liabilities which the Agent may properly have incurred on behalf of the
Owner hereunder.
C. The Agent is prohibited from making a tender offer to the limited partners
of Historic Preservation Properties 1990 L.P. Tax Credit Fund or any of
its affiliated entities without prior written permission.
D. If this Agreement is terminated during any of the first twenty four (24)
months, the Agent is entitled to an amount equal to the fee that would be
collected in one year (12 mos.) as liquidated damages. Said damages are
payable at termination provided that the Agent is not retained by the new
owner in the case of a sale.
21. Sub Agent. The Agent has the right, with the prior written consent of the
Owner, to engage a sub agent to perform its duties and responsibilities under
this Agreement.
22. Interpretive Provision. This Agreement constitutes the entire Agreement
between the Owner and the Agent with respect to the management and operation of
the Project, and no change will be valid unless made by supplemental written
agreement, executed and approved in the same manner as this Agreement.
23. Notices. Any notice under this Agreement shall be given by mailing such
notice to the address(es) indicated below, by certified mail return receipt
requested or by hand delivery, or to such other address as the parties shall
specify in writing provided in the manner described in this paragraph:
If to Owner:
Xxxxxxxxx'x Wharf Xxxxxx L.P.
c/o Gunn Financial Incorporated
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
If to Agent:
Xxxx Financial Incorporated
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
IN WITNESS WHEREOF, their principal parties have, by their duly authorized
officers, executed this Agreement on the date first above written.
OWNER: AGENT:
By: _______________________ By: ______________________
Title: _______________________ Title: ______________________
