M A N A G E M E N T A G R E E M E N T
OWNER: Secured Investment Resources Fund,
L.P., III
AGENT: Maxus Properties, Inc.
PREMISES: Bicycle Club Apartments
0000 X. Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
BEGINNING: January 1, 2001
ENDING: January 1, 2006
IN CONSIDERATION of the covenants herein contained, SECURED INVESTMENT
RESOURCES FUND, L.P., III (hereinafter called "Owner") and MAXUS PROPERTIES,
INC. (hereinafter called "Agent") agree as follows:
1. Owner hereby employs Agent exclusively to rent and manage the property
known as the Bicycle Club Apartments (hereinafter referred to as the "Premises")
upon the terms and conditions hereinafter set forth, for a term of five (5)
years beginning on January 1, 2001, and ending on January 1, 2006, and
thereafter for yearly periods from time-to-time, unless on or before thirty (30)
days prior to the date last above-mentioned or on or before thirty (30) days
prior to the expiration of any such renewal period, either party hereto shall
notify the other in writing that it elects to terminate this Agreement, in which
case this Agreement shall be thereby terminated on said last mentioned date.
(See also: Paragraph 6.3 below.)
2. AGENT AGREES:
2.1 To accept the management of the Premises, to the extent, for the period,
and upon the terms herein provided and agrees to furnish the services of its
organization for the rental operation and management of the Premises.
2.2 To prepare a monthly statement of receipts and disbursements and to
remit, on a monthly basis, the net cash flow generated by the Premises after
payment of all operating expenses, debt service, and escrow payments, if
applicable, to the following party:
Secured Investment Resources Fund, L.P., III
c/o Xxxxx X. Xxxxxxx
000 Xxxxxx Xxxx
X.X. Xxx 00000
Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
In the event total monthly disbursements are in excess of total monthly
receipts, Owner shall promptly provide funds to cover such shortfalls. Nothing
contained herein shall obligate Agent to advance its own funds on behalf of
Owner to cover any shortfalls.
2.3 To cause all employees of Agent who handle or are responsible for the
safekeeping of any monies of Owner to be covered by a fidelity bond in an amount
and with a company determined by Agent.
3. OWNER AGREES:
To give Agent the following authority and powers (all or any of which may be
exercised in the name of Owner) and agrees to assume all expenses in connection
therewith:
3.1 To advertise the Premises or any part thereof; to display signs thereon
and to rent the same; to cause references of prospective tenants to be
investigated; to sign leases for terms not in excess of one (1) year and to
renew and/or cancel the existing leases and prepare and execute the new
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leases without additional charge to Owner; provided; however, that Agent may
collect from tenant all or any of the following: a late rent administrative
charge, a non-negotiable check charge, credit report fee, a sub-leasing
administrative charge, and/or broker's commission and need not account for such
charges and/or commissions to Owner; to terminate tenancies and to sign and
serve such notices as are deemed needful by Agent; to institute and prosecute
actions to oust tenants and to recover possession of the Premises; to xxx for
and recover rent; and, when expedient, to settle, compromise, and release such
actions or suits, or reinstate such tenancies. Owner shall reimburse Agent for
all expenses of litigation, including attorneys' fees, filing fees, and court
costs, which Agent does not recover from tenants. Agent may select the attorney
of its choice to handle such litigation.
3.2 To hire, discharge, and pay all managers, engineers, janitors, and other
employees; to make or cause to be made all ordinary repairs and replacements
necessary to preserve the Premises in its present condition and for the
operating efficiency thereof, and all alterations required to comply with lease
requirements, and to do decorating on the Premises; to negotiate contracts for
non-recurring items not exceeding $5,000.00, and to enter into agreements for
all necessary repairs, maintenance, minor alterations, and utility services; and
to purchase supplies and pay bills. Agent shall secure the approval of Owner for
items, except monthly or recurring operating charges and emergency repairs in
excess of the maximum, if, in the opinion of Agent, such repairs are necessary
to protect the property from damage or to maintain services to the tenants as
called for by their tenancy.
3.3 To collect rents and/or assessments and other items due or to become due
and give receipts therefor, and to deposit all funds collected hereunder in
Agent's custodial account.
3.4 Agent agrees to collect all tenant security deposits. Owner instructs
Agent to deposit all security deposits in the general operating accounts of the
property. Agent is not to segregate the security deposits into a separate
account or into an escrow account.
3.5 To execute and file all returns and other instruments, and do and perform
all acts required of Owner as an employer with respect to the Premises under the
Federal Insurance Contributions Acts, the Federal Unemployment Tax Act, and
Subtitle C of the Internal Revenue Code of 1954, with respect to wages paid by
Agent on behalf of Owner and under any similar federal and state law now or
hereafter in force (and in connection therewith, Owner agrees upon request to
promptly execute and deliver to Agent all necessary powers of attorney, notices
of appointment, and the like).
3.6 Agent shall not be required to advance any monies for the care or
management of the Premises, and Owner agrees to advance all monies necessary
therefor. If Agent shall elect to advance any money in connection with the
property, Owner agrees to reimburse Agent forthwith and hereby authorizes Agent
to deduct such advances from any monies due Owner. Agent, shall, upon
instruction from Owner, impound reserves each month for the payment of real
estate taxes, insurance, or any other special expenditure.
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4. OWNER FURTHER AGREES:
4.1 To indemnify, defend and save Agent harmless from all suits in connection
with the Premises and from liability for damage to the property and injuries to
or death of any employee or other person whomsoever, and to carry at its own
expense public liability, elevator liability (if elevators are part of the
equipment of the Premises), and worker's compensation insurance naming Owner and
Agent, adequate to protect their interests in form, substance, and amounts
reasonably satisfactory to Agent, and to furnish to Agent certificates
evidencing the existence of such insurance. Unless Owner shall provide such
insurance and furnish such certificate within thirty (30) days from the date of
this Agreement, Agent may, but shall not be obligated to, place said insurance
and charge the cost thereof to the account of Owner. All such insurance policies
shall provide that Agent shall receive thirty (30) days' written notice prior to
cancellation of the policy.
4.2 To pay all expenses incurred by Agent, including, but not limited
to, reasonable attorneys' fees and Agent's costs and time in connection with any
claim, proceeding, or suit involving an alleged violation by Agent or Owner, or
both, of any law pertaining to fair employment, fair credit reporting,
environmental protection, rent control, taxes, or fair housing, including, but
not limited to, any law prohibiting, or making illegal, discrimination on the
basis of race, sex, creed, color, religion, national origin, or mental or
physical handicap; provided, however, that Owner shall not be responsible to
Agent for any such expenses in the event Agent is finally adjudicated to have
personally, and not in a representative capacity, violated any such law. Nothing
contained herein shall obligate Agent to employ counsel to represent Owner in
any such proceeding or suit, and Owner may elect to employ counsel to represent
Owner in any such proceeding or suit. Owner also agrees to pay reasonable
expenses (or an apportioned amount of such expenses where other employers of
Agent also benefit from the expenditure) incurred by Agent in obtaining legal
advice regarding compliance with any law affecting the Premises or activities
related thereto.
4.3 To indemnify, defend, and save Agent harmless from all claims,
investigations, and suits, or from actions or failures to act of Owner, with
respect to any alleged or actual violation of state or federal labor laws, it
being expressly agreed and understood that as between Owner and Agent, all
persons employed in connection with the Premises are employees of Owner, not
Agent. However, it shall be the responsibility of Agent to comply with all
applicable state or federal labor laws. Owner's obligation under this Paragraph
4.3 shall include the payment of all settlements, judgments, damages, liquidated
damages, penalties, forfeitures, back pay awards, court costs, litigation
expense, and attorneys' fees.
4.4 To give adequate advance written notice to Agent if Owner desires that
Agent make payment out of the proceeds from the Premises, or mortgage
indebtedness, general taxes, special assessments, or fire, steam boiler, or any
other insurance premiums. In no event shall Agent be required to advance its own
money in payment of any such indebtedness, taxes, assessments, or premiums.
5. OWNER AGREES TO PAY AGENT EACH MONTH:
5.1 MANAGEMENT: Owner agrees to pay Agent for the ordinary management of the
Premises Five Percent (5.0%) of the monthly gross receipts from the operation of
the Premises, during the period this Agreement remains in full force and effect.
Gross receipts are all amounts
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received from the operation of the Premises, including, but not limited to,
rents, parking fees, deposits, laundry income, and fees.
5.2 OTHER ITEMS OF MUTUAL AGREEMENT: In the event Owner requests, and Agent
agrees, to perform services outside the scope of ordinary management of the
Premises, the parties will agree to a fee and payment structure for these
services prior to commencement of the work.
6. IT IS MUTUALLY AGREED THAT:
6.1 Owner expressly withholds from Agent any power or authority to make any
structural changes in any building, or to make any other major alterations or
additions in or to any such building or equipment therein, or to incur any
expense chargeable to Owner, other than expenses related to exercising the
express powers above-vested in Agent without the prior written direction of an
authorized representative of Owner. Agent is granted the authority to make
structural changes or major alterations, if such actions are required because of
danger to life or which are immediately necessary for the preservation and
safety of the Premises, or the safety of the occupants thereof, or are required
to avoid the suspension of any necessary service to the Premises.
6.2 Agent does not assume and is given no responsibility for compliance of
any building on the Premises or any equipment therein with the requirements of
any statute, ordinance, law, or regulation of any governmental body or of any
public authority or official thereof having jurisdiction, except to notify Owner
promptly, or forward to Owner promptly, any complaints, warnings, notices, or
summonses received by it relating to such matters. Owner represents that to the
best of its knowledge the Premises and such equipment comply with all such
requirements, and authorizes Agent, its representatives, servants, and
employees, of and from all loss, cost, expense, and liability whatsoever which
may be imposed on them, or any of them, by reason of any present or future
violation, or alleged violation, of such laws, ordinances, statutes, or
regulations.
6.3 In the event it is alleged or charged that any building on the Premises
or any equipment therein, or any act or failure to act by Owner, with respect to
the Premises, or the sale, rental, or other disposition thereof, fails to comply
with, or is in violation of, any of the requirements of a constitutional
provision, statute, ordinance, law, or regulation of any governmental body, or
any order or ruling of any public authority or official thereof having or
claiming to have jurisdiction thereover, and Agent, in its sole and absolute
discretion, considers that the action or position of Owner, or registered
managing Agent with respect thereto, may result in damage or liability to Agent,
Agent shall have the right to cancel this Agreement at any time by written
notice to Owner of its election so to do, which cancellation shall be effective
upon the service of such notice. Such notice may be served personally or by
registered mail, on or to the person named to receive Owner's monthly statement
at the address designated for such person as provided in Paragraph 2.2 above,
and if service by mail, it shall be deemed to have been served when deposited in
the U.S. Mail. Such cancellation shall not release the indemnities of Owner set
forth in Paragraph 4 and 6.2 above, and shall not terminate any liability or
obligation of Owner to Agent for any payment, reimbursement, or other sum of
money then due and payable to Agent hereunder.
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7. This Agreement may be canceled by Owner before the termination date
specified in Paragraph 1 on not less than thirty (30) days' prior written notice
to Agent.
8. Owner shall pay or reimburse Agent for any sums of money due it under this
Agreement for service for actions prior to termination, notwithstanding any
termination of this Agreement. All provisions of this Agreement that require
Owner to have insured or to defend, reimburse, or indemnify Agent (including,
but not limited to, Paragraphs 4.1, 4.2, and 4.3) shall survive any termination,
and if Agent is or becomes involved in any proceeding or litigation by reason of
having been Owner's agent, such provisions shall apply as if this Agreement were
still in effect. The parties understand and agree that Agent may withhold funds
for thirty (30) days after the end of the month in which the Agreement is
terminated to pay bills previously incurred but not yet invoiced and to close
accounts.
This Agreement shall be binding upon the successors and assigns of Agent, and
upon the successors and assigns of Owner.
IN WITNESS THEREOF, the parties hereto have affixed or caused to be affixed
their respective signatures effective this 1st day of January, 2001.
OWNER: SECURED INVESTMENT RESOURCES
FUND, L.P. III
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Vice President
Xxxxxxx Resources, Ltd.
The General Partner of
Secured Investment Resources Fund, L.P., III
AGENT: MAXUS PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
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