MANAGEMENT AGREEMENT
This Agreement is made this 1st day of November 1995, by
and between Xxxxxxxxx'x Wharf Xxxxxx L.P. (the "Owner")
and Claremont Management Corporation (the "Agent").
Section 1 - APPOINTMENT OF MANAGING AGENT
1.1 APPOINTMENT OF MANAGING ACCEPTANCE
Owner hereby appoints Agent as sole and exclusive
agent of Owner to lease and manage the property
described in paragraph 1.2 upon the terms and
conditions provided herein. Agent accepts the
appointment and agrees to furnish the services of
its organization for the leasing and management of
the Premises; and Owner agrees to pay all expenses
in connection with those services.
1.2 DESCRIPTION OF PREMISE
The property to be managed by Agent under this
Agreement (the "Premises") is known as Xxxxxxxxx'x
Wharf Marina located at 0000 Xxxx Xxxxxx, Xxxxxxxxx,
XX, consisting of the land, and other improvements
described as a 256 slip marina in the state of
Maryland.
1.3 TERM
The terms of the Agreement shall be for an initial
period of 20 months (the "initial term") from the
1st day of November 1995, to including the 30th day
of June 1997; and thereafter shall be automatically
renewed from year to year unless terminated as
provided in sections 21 or 27 herein. Each of said
one-year renewal periods is referred to as a "term
year".
1.4 MANAGEMENT OFFICE
Owner shall provide adequate space on or near the
Premises for a management office. This office can
be shared with other properties. Owner shall pay
all expenses related to such office, including, but
not limited to, furnishings, equipment, postage and
office supplies, electricity and other utilities,
and telephone. All costs to be prorated to
appropriate properties.
Section 2 - Bank Accounts
The various bank accounts established under this
Agreement shall at all times be established in
Owner's name but under Agent's control. Agent's and
Owner's designees shall be the only parties
authorized to draw upon such accounts. No amounts
deposited in any accounts established under this
Agreement shall in any event be commingled with any
other funds of Agent.
2.1 OPERATING (AND/OR) RESERVE ACCOUNT(S)
Agent shall establish a separate account(s) known as
the Xxxxxxxxx'x Wharf Xxxxxx L.P. Operating
(and/or) Reserve Account(s), separate and apart from
Agent's corporate accounts, for the deposit of
receipts collected as described herein, in a bank or
other institution whose deposits are insured by the
federal government. Such depository shall be
selected by the Agent upon the consent of the Owner.
However, Agent shall not be held liable in the event
of bankruptcy or failure of a depository. Funds in
the Operating (and/or) Reserve Account(s) remain the
property of Owner subject to disbursement of
expenses by Agent as described in the Agreement.
2.1.1 INITIAL DEPOSIT AND CONTINGENCY RESERVE
Immediately upon commencement of this Agreement,
Owner shall remit to Agent the sum $5,000 to be
deposited in the Operating (and/or) Reserve
Account(s) as an initial deposit representing the
estimated disbursements to be made in the first
month following the commencement of this Agreement,
plus an additional sum of $5,000 as a contingency
reserve. If this contingency reserve is drawn down,
then they shall be replenished from operations as
soon as economically feasible. Owner and Agent
shall review the amount of the contingency reserve
from time to time and shall agree in writing on a
new contingency reserve amount when such is
required.
2.2 SECURITY DEPOSIT ACCOUNT
Agent shall, if required by law, maintain a separate
interest bearing account for tenant security
deposits and advance rentals. Such account shall be
maintained in accordance with applicable state or
local laws, if any.
2.3 FIDELITY BOND
The Agent will furnish, at its own expense, a
fidelity bond in the principal sum of $1,000,000,
which is at least equal to the gross potential
income for two months and is conditioned to protect
the Owner and the Mortgagee against
misappropriation of funds of the Premises by the
Agent and its employees. The Agent will obtain a
bond of like kind to cover the on-site personnel
expressed in Section 9.1 and it shall be paid for
from Premises income. The other terms and
conditions of the bond, and the surety thereon, will
be subject to approval of the Owner and the
Mortgagee.
Section 3 - COLLECTION OF RENTS AND OTHER RECEIPTS
3.1 AGENT'S AUTHORITY
Agent shall collect (and give receipts for, if
necessary) all rents, charges and other amounts
receivable on Owner's account in connection with the
management and operation of the Premises. Such
receipts (except tenants' security deposits and
advance rentals, which shall be handled as specified
in paragraphs 2.2 and 3.3 hereof; and special
charges, which shall be handled as specified in
paragraph 3.2 hereof) shall be deposited in the
Operating (and/or) Reserve Account(s) maintained by
Agent for the Premises.
3.2 SPECIAL CHARGES
If permitted by applicable law, Agent may collect
from tenants any or all of the following: and
administrative charge for late payment of rent, a
charge for returned or non-negotiable checks, a
credit report fee, and any administrative charges.
3.3 SECURITY DEPOSITS
Agent shall collect, deposit, and disburse tenants'
security deposits in accordance with the terms of
each tenant's lease. Agent shall pay from
operations tenants interest upon such security
deposits only if required by law to do so. Agent
shall comply with all applicable state or local laws
concerning the responsibility for security deposits
and interest, if any.
Section 4 - DISBURSEMENT FROM OPERATING (AND/OR) RESERVE
ACCOUNT(S)
4.1 OPERATING EXPENSES
From the Operating (and/or) Reserve Account(s),
Agent is hereby authorized to pay or reimburse
itself for all expenses and costs of operating the
Premises in accordance with approved annual budget
under Section 6.2, and for all other sums due Agent
under this Agreement, including Agent's compensation
under section 17.
4.2 DEBT SERVICE
Owner shall give Agent advance written notice of at
least 10 days if Owner desires Agent to make any
additional monthly or recurring payments (such as
mortgage indebtedness, general taxes, or special
assessments, or fire, steam boiler, or other
insurance premiums) out of the proceeds from the
Premises. If Owner notifies Agent to make such
payments after the beginning of the term of this
Agreement, Agent shall have the authority to name a
new contingency, and Owner shall maintain this new
contingency reserve amount at all times in the
Operating (and/or) Reserve Account(s).
4.3 NET PROCEEDS
To the extent that funds are available, and after
maintaining the cash contingency reserve amount as
specified in paragraph 2.1.1, Agent shall transmit
cash balances to Owner periodically, as follows.
Such periodic cash balances shall be remitted to the
following person(s), in the percentage(s) specified,
address(es) shown: as directed from time to time by
Owner.
Section 5 - AGENT NOT REQUIRED TO ADVANCE FUNDS
In the event the balance in the Operating (and/or)
Reserve Account(s) is at any time insufficient to
pay disbursements due and payable under paragraphs
4.1, 4.2 and 6.2. Owner shall immediately upon
notice, remit to Agent sufficient funds to cover the
deficiency and replenish the contingency reserve.
In no event shall Agent be required to use its own
funds to pay such disbursements. Nor shall Agent be
required to advance any monies to Owner, to the
Security Deposit Account, or to the Operating
(and/or) Reserve Account(s).
If Agent elects to advance any money in connection
with the Premises to pay any expenses for Owner,
such advances shall be considered a loan subject to
repayment with interest, and Owner hereby agrees to
reimburse Agent, including interest as provided in
paragraph 17.7 and hereby authorizes Agent to deduct
such amounts from any monies due Owner.
Section 6 - FINANCIAL AND OTHER REPORTS
6.1 REPORTING REQUIREMENTS
By the 20th day of each month, Agent will provide to
the Owner the following schedules for the preceding
month, which include, but are not limited to:
balance sheet, income statement with comparisons to
budget, general ledger, rent roll, bank statements
and cash reconciliations, aged listing of accounts
receivables, listing of prepaids, additions to fixed
assets over $500, intercompany reconciliation,
listing of accruals and other prepaids, tenant
security deposit listing, and cash flow statement.
In addition, Agent shall, on a mutually acceptable
schedule, prepare and submit to Owner such other
reports as are agreed on by both parties.
6.2 BUDGETS
Annual operating budgets for the Premises will be
approved by the Owner. Except as permitted under
Section 10.1 below, annual disbursements for each
type of operating expenses itemized in the budget
shall not materially exceed the amount authorized by
the approved budget without prior consent of the
Owner. The Agent will prepare a recommended
operating budget for each fiscal year beginning
during the term of this Agreement, and will submit
the same to the Owner at least forty-five (45) days
before the beginning of the fiscal year. The Owner
will promptly inform the Agent of any changes
incorporated in the approved budget, and the Agent
will keep the Owner informed of any anticipated
deviation from the receipts or disbursements stated
in the approved budget.
6.3 OWNER'S RIGHT TO AUDIT
Owner shall have the right to request periodic
audits of all applicable accounts managed by Agent,
and the cost of such audit(s) shall be paid by
Owner.
6.4 TAX ASSESSMENTS
Agent will inform Owner of changes in the amount of
real or personal property tax assessments and assist
Owner in compiling all necessary information in
connection with any contest or appeal of any
assessments.
Section 7 - ADVERTISING
Agent is authorized to advertise the Premises or
portions thereof for rent using periodicals, signs,
plans, brochures, or displays, or such other means
as Agent may deem proper and advisable and in
accordance with Section 6.2. Agent is authorized to
place signs on the Premises advertising the Premises
for rent, provided such signs comply with applicable
laws. The cost of such advertising shall be paid
out of the Operating (and/or) Reserve Account(s).
All advertising shall make clear that Agent is the
manager and NOT the Owner of the Premises.
Newspaper ads that share space with other properties
managed by the Agent shall be prorated on a
reasonable basis.
Section 8 - LEASING AND RENTING
8.1 AGENT'S AUTHORITY TO LEASE PREMISES
Agent shall use all reasonable efforts to keep the
Premises rented by procuring tenants for the
Premises. Agent is authorized to negotiate,
prepare, and execute all leases, including all
renewals and extensions of leases (and expansions of
space in the Premises, if applicable) and to cancel
and modify existing leases. Agent shall execute all
leases as Agent for the Owner. All costs of leasing
shall be paid out of the Operating (and/or) Reserve
Account(s). No lease shall be in excess of two
year(s) without written approval of Owner. The form
of the lease shall be agreed upon by Owner and
Agent.
8.2 NO OTHER RENTAL AGENT
During the time of this Agreement. Owner shall not
authorize any other person, firm, or corporation to
negotiate or act as leasing or rental agent with
respect to any leases for space in the Premises.
Owner agrees to promptly forward all inquiries about
leases to Agent.
8.3 RENTAL RATES
Agent, with the consent of the Owner, is authorized
to establish and change or revise all rents, fees,
or deposits, and any other charges chargeable with
respect to the Premises.
8.4 ENFORCEMENT OF LEASES
Agent is authorized to institute, in Owner's name,
all legal actions or proceedings for the enforcement
of any lease term, for the collection of rent or
other income from the Premises or for the evicting
or dispossessing of tenants or other persons from
the Premises. Agent is authorized to sign and serve
such notices as Agent deems necessary for lease
enforcement, including the collection of rent or
other income. Agent is authorized, when expedient,
to settle, compromise, and release such legal
actions or suits or reinstate such tenancies. Any
monies for such settlements paid out by Agent shall
not exceed $5,000 without prior approval by Owner.
Attorney's fees, filing fees, court costs, and other
necessary expenses incurred in connection with such
actions and not recovered from tenants shall be paid
out of the Operating (and/or) Reserve Account(s) or
reimbursed directly to Agent by Owner. Agent may
select the attorney of its choice to handle such
litigation upon the advise and consent of Owner.
Section 9 - EMPLOYEES
9.1 AGENT'S AUTHORITY TO HIRE
Agent is authorized to hire, supervise, discharge,
and pay all servants, employees, contractors or
other personnel necessary to be employed in the
management, maintenance, and operation of the
Premises in accordance with approved budget
mentioned in Section 6.2. All employees shall be
deemed employees of the Agent.
9.2 OWNER PAYS EMPLOYEE EXPENSES
All wages and fringe benefits payable to such
employees hired per paragraph 9.1 above, and all
local, state, and federal taxes and assessment
(including but not limited to Social Security taxes,
unemployment insurance and workers' compensation
insurance) incident to the employment of such
personnel, shall be reimbursed to the Agent out of
the Operating (and/or) Reserve Account(s) and shall
be treated as operating expenses.
9.3 AGENT'S AUTHORITY TO FILE RETURNS
Agent shall do and perform all acts required of an
employer with respect to the Premises and shall
execute and file all tax and other returns required
under the applicable federal, state and local laws,
regulations, and/or ordinances governing employment,
and all other statements and reports pertaining to
labor employed in connection with the Premises and
under any similar federal or state law now or
hereafter in force. In connection with such filing,
Owner shall be responsible for all amounts required
to be paid under the foregoing laws, and Agent shall
pay the same from the Operating (and/or) Reserve
Account(s). Any penalties assessed to Owner and
incurred due to the negligence of Agent shall be
paid for by Agent.
9.4 WORKER'S COMPENSATION INSURANCE
Agent shall, at Owner's expense, maintain worker's
compensation insurance covering all liability of the
employer under established worker's compensation
laws.
9.5 HOLD HARMLESS, LABOR LAWS
Agent shall be responsible for compliance with all
applicable state or federal labor laws. Owner shall
indemnify, defend, and save Agent harmless from all
claims, investigations, and suites, or from Owner's
action or failures to act, with respect to any
alleged or actual violation of state or federal
labor laws. Conversely, Agent shall indemnify,
defend and save Owner harmless from all claims,
investigations, and suits, or from Agent's actions
or failure to act with respect to any alleged or
actual violations of state or federal labor laws.
Agent's or Owner's obligation with respect to such
violation(s) shall include payment of all
settlements, judgments, damages, liquidated damages,
penalties, forfeitures, back pay awards, court
costs, litigation expenses, and attorney's fees.
Section 10 - MAINTENANCE AND REPAIR
Agent is authorized to make or cause to be made,
through contracted services or otherwise, all
ordinary repairs and replacements reasonably
necessary to preserve the Premises in its present
condition and for the operating efficiency of the
Premises, and all alterations required to comply
with lease requirements, governmental regulations,
or insurance requirements. Agent is also authorized
to decorate the Premises and to purchase or rent, on
Owner's behalf, all equipment, tools, appliances,
materials, maintenance, or operation of the
Premises. Such maintenance and decorating expenses
shall be made in accordance to approved budget and
shall be paid out of the Operating (and/or) Reserve
Account(s). This section applies except where
decorating and/or maintenance are at tenants'
expense as stipulated in a lease.
10.1 APPROVAL FOR EXCEPTIONAL MAINTENANCE EXPENSE
The expense to be incurred for any one item of
maintenance alteration, refurbishing, or repair
shall not exceed the sum of $5,000 unless such
expense is specifically authorized by Owner or is
incurred under such circumstances as Agent shall
reasonable deem to be an emergency. In an emergency
where repairs are immediately necessary for the
preservation and safety of the Premises, or to avoid
the suspension of any essential service to the
Premises, or to avoid danger to life or property, or
to comply with federal, state, or local law, such
emergency repairs shall be made by Agent at Owner's
expense prior approval.
Section 11 - CONTRACTS, UTILITIES AND SERVICES
Agent is authorized to negotiate contracts for non-
recurring items of expense, not to exceed $5,000,
unless approved by Owner, and to enter into
agreements in Owner's name for all necessary
repairs, maintenance, minor alterations, and utility
services. Agent shall, in Owner's name and at
Owner's expense, make contracts on Owner's behalf
for electricity, gas, telephone, fuel, or water, and
such other services as Agent shall deem necessary or
prudent for the operation of the Premises. All
utility deposits shall be the Owner's
responsibility, except that Agent may pay same from
the Operating (and/or) Reserve Account(s) at Owner's
request.
Section 12 - RELATIONSHIP OF AGENT TO OWNER
The relationship of the parties to this Agreement
shall be that of Principal and Agent, and all duties
to be performed by Agent under this Agreement shall
be for and on behalf of Owner, in Owner's name and
for Owner's account. In taking any under the
Agreement, Agent shall be acting only as Agent for
Owner, and nothing in this Agreement shall be
construed as creating a partnership, joint venture,
or any other relationship between the parties to
this Agreement except that of Principal and Agent,
or as requiring Agent to bear any portion of losses
arising out of or connected with the ownership or
operation of the Premises. Nor shall Agent at any
time during the period of this Agreement to be
considered a direct employee of Owner. Neither
party shall have the owner to bind or obligate the
other except as expressly set forth in this
Agreement except that Agent is authorized to act
with such additional authority and power as may be
necessary to carry out the spirit and intent of this
Agreement.
Section 13 - SAVE HARMLESS
The Owner will indemnify the Agent harmless against
and hold the Agent harmless from and against any
liabilities, damages, costs and expenses (including
reasonable attorney's fees) sustained or incurred
for injury to any person or property in, about, and
in conjunction with the buildings, unless such
injury shall be caused by the Agent's own negligence
or willful misconduct; and any liability, damages,
penalties, costs and expenses (including reasonable
attorney's fees) statutory or otherwise, for all
acts performed by the Agent in accordance with the
terms of this Agreement or pursuant to the
instructions of the Owner, provided, in each of the
foregoing instances, that the Agent promptly advises
the Owner of its receipt of information concerning
any such injury and the amount of any such
liability, damages, penalties, costs and expenses.
The Agent will indemnify the Owner harmless against
and hold the Owner harmless from and against; any
liabilities, damages, costs and expenses (including
reasonable attorney's fees) sustained or incurred
for injury to any person or property in, about, and
in conjunction with the buildings caused by the
Agent's own negligence or willful misconduct; and
any liability, damages, penalties, costs and
expenses (including reasonable attorney's fees)
statutory or otherwise, for all acts performed by
the Agent not in accordance with the terms of this
Agreement or not pursuant to the instructions of the
Owners.
Section 14 - LIABILITY INSURANCE
Owner and Agent shall obtain and keep in force
adequate insurance against physical damage (e.g.
fire with extended coverage endorsement, boiler and
machinery, etc.) and against liability for loss,
damage, or injury to property or persons which might
arise out of the occupancy, management, operation,
or maintenance of the Premises. The amounts and
types of insurance shall be acceptable to both Owner
and Agent, and any deductible required under each
insurance policies shall be Owner's expense. Agent
shall be covered as additional insured on all
liability insurance maintained with respect to the
Premises. Liability insurance shall be adequate to
protect the interest of both Owner and Agent and in
form, substance, and amounts reasonable satisfactory
to Agent. Owner agrees to furnish Agent with
certificates evidencing such insurance or with
duplicate copies of such policies within 10 days of
the execution of this Agreement. If Owner fails to
do so, Agent may but shall not be obligated to place
said insurance and charge the cost thereof to the
Operating (and/or) Reserve Account(s). Said
policies shall provide that notice of default or
cancellation shall be sent to Agent as well as Owner
and shall require a minimum of 30 days written
notice to Agent before any cancellation of or
changes to said policies.
Section 15 - AGENT ASSUMES NO LIABILITY
Agent assumes no liability whatsoever for any acts
or omissions of Owner or any previous owners of the
Premises, or any previous management or other agent
of either. Agent assumes no liability for any
failure of or default by any tenant in the payment
of any rent or other charges due Owner or in the
performance of any obligations owned by any tenant
to Owner pursuant to any lease or otherwise. Nor
does Agent assume any liability for previously
unknown violations or environmental or other
regulations which may become unknown during the
period of this Agreement is in effect. Any such
regulatory violations or hazards discovered by
Agent shall be brought to the attention of the
Owner in writing and Owner shall promptly cure
them.
Section 16 - OWNER RESPONSIBLE FOR ALL EXPENSES OF
LITIGATION
Owner shall reimburse all reasonable expenses
incurred by Agent, including but not limited to,
attorneys' fee and Agent's costs and time, any
liability, fines, penalties or the like, 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 or 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 adjudged to
have personally, and not in a representative
capacity, violated any such law. Nothing contained
in this Agreement shall obligate Agent to employ
legal counsel to represent Owner in any such
proceeding or suit.
16.1 FEES FOR LEGAL ADVICE
Owner shall pay reasonable expenses incurred by
Agent in obtaining legal advice regarding compliance
with any law affecting the Premises or activities
related to them. If such expenditure also benefits
others for whom Agent in this Agreement acts in a
similar capacity, Owner agrees to pay an apportioned
amount of such expense.
Section 17 - AGENT'S COMPENSATION AND EXPENSES
As compensation for the services provided by Agent
under this Agreement (and exclusive of reimbursement
of expenses to which Agent is entitled hereunder).
Owner shall pay Agent as follows:
17.1 FOR MANAGEMENT SERVICES
The greater of (i) $ N/A per month or (ii) 9% of the
total monthly gross receipts from the premises,
payable by the 10th day of the current month for the
duration of this Agreement. Payments due Agent for
Periods of less than a calendar month shall be
prorated over the number of days for which
compensation is due. The percentage amount set
forth in (ii) above shall be based upon the total
gross receipts from the premises during the
preceding month.
The term "gross receipts" shall be deemed to include
all collected slip rents and other income and
charges from the normal operation of the Premises,
including, but not limited to, rents, parking fees,
forfeited security deposits, other fees and
deposits, special charges listed in paragraph 3.2,
or excess interest on security deposits (from
paragraph 3.3), and other miscellaneous income.
17.2 FOR APARTMENT LEASING
N/A.
17.3 FOR COMMERCIAL LEASING
N/A.
17.4 FOR MODERNIZATION (REHABILITATION/CONSTRUCTION)
N/A.
17.5 FOR FIRE RESTORATION
10% of total restoration if Claremont Management
Corporation acts as general contractor.
17.6 FOR OTHER ITEMS OF MUTUAL AGREEMENT
To be determined if situation arises.
17.7 INTEREST ON UNPAID SUMS
Any sums due Agent under any provisions of this
Agreement, and not paid within 30 days after such
sums have become due, shall bear interest at the
rate of Fleet prime rate.
Section 18 - REPRESENTATIONS
Owner represents and warrants: That Owner has full
power and authority to enter this Agreement; that
there are no written or oral agreements affecting
the Premises other than tenant leases, copies of
which have been furnished to Agent; that there are
no recorded easements, restrictions, reservations,
or rights of way which adversely affect the use of
the Premises for the purposes intended under this
Agreement; that to the best of Owner's knowledge,
the property is zoned for the intended use; that all
leasing and other permits for the operation of the
Premises have been secured and are current; that the
land and its been secured and are current; that the
land and its construction and operation do not
violate any applicable statutes, laws, ordinances,
rules regulations, orders, or the like (including,
but not limited to, those pertaining to hazardous or
toxic substances); that the land does not contain
any asbestos, urea, formaldehyde, radon, or other
toxic or hazardous substance; and that no unsafe
conditions exists.
Section 19 - STRUCTURAL CHANGES
Owner expressly withholds from Agent any power or
authority to make any changes in any land, or to
make any other major alterations or additions in or
to any such land or improvements, or to incur any
expense chargeable to Owner other than expenses
related to exercising the express powers vested in
Agent through this Agreement, without the prior
written consent of the following person or his
designee:
Xxxxxxxx Xxxxxxxx
Boston Bay Capital, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
However, such emergency repairs as may be required
because of danger to life or property, or which are
immediately necessary for the preservation and
safety of the Premises or the safety of the tenants
and occupants thereof, or required to avoid the
suspension of any necessary service to the Premises,
or to comply with any applicable federal, state, or
local laws, regulations, or ordinances, shall be
authorized pursuant to paragraph 10.1 of this
Agreement, and Agent shall notify Owner
appropriately.
Section 20 - BUILDING COMPLIANCE
Agent does not assume and is given no responsibility
for compliance of the Premises or any building
thereon or any equipment therein with the
requirements of any building codes or with any
statue, ordinance, law, or regulation or 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 summons
received by Agent relating to such matters. Owner
represents that to the best of Owner's knowledge the
Premises and all such equipment comply with all such
requirements, and Owner authorizes Agent to disclose
the ownership of the Premises to any such officials
and agrees to indemnify and hold Agent, its
representatives, servants, and employees, harmless
of and from all loss, cost, expense, and liability
whatsoever which may be imposed by reason of any
present or future violation or alleged violation of
such laws, ordinances, statues, or regulations.
Section 21 - TERMINATION
21.1 TERMINATION BY EITHER PARTY
This Agreement may be terminated by either Owner or
Agent, with or without cause, at the end of the
initial term or of any following term year upon the
giving of 30 days' written notice prior to the end
of said initial term or following terming year.
21.2 TERMINATION FOR CAUSE
Notwithstanding the foregoing, the Agreement shall
terminate in any event, and all obligations of the
parties hereunder shall cease (except as to
liabilities or obligations which have accrued or
arisen prior to such termination, or which accrue
pursuant to paragraph 21.3 as a result of such
termination, and obligations to insure and
indemnify), upon the occurrence of any of the
following events:
a. BREACH OF AGREEMENT - Thirty (30) days after
the receipt of notice by either party to the other
specifying in detail a material breach of this
Agreement, if such breach has not been cured within
said thirty (30) day period; or if such breach is of
a nature that it cannot be cured within said (30)
day period but can not be cured with a reasonable
time thereafter, if efforts to cure such breach have
not commenced or/and such efforts are not proceeding
and being continued diligently both during and after
such thirty (30) day period prior to the breach
being cured. HOWEVER, the breach of any obligation
of either party hereunder to pay any monies to the
other party under the terms of this Agreement shall
be deemed to be curable within thirty (30) days.
21.2 TERMINATION FOR CAUSE (Cont.)
b. FAILURE TO ACT, ETC. - In the event that any
insurance required of Owner is not
maintained without any lapse, or it is alleged or
charged that the Premises, or any portion thereof,
or any act or failure to act by Owner, its agent and
employees with respect to the Premises, fails to
comply with any law or regulations, or any order or
ruling of any public authority, and Agent, in its
sole discretion, considers that the action or
position of Owner or its representatives with
respect thereto may result in damage or liability to
Agent, or disciplinary proceeding with respect to
Agent's license. Agent shall have the right to
terminate this Agreement at any time by written
notice to Owner of its election to do so, which
termination shall be effective upon the service of
such notice. Such termination shall not release the
indemnities of Owner set forth herein.
c. EXCESSIVE DAMAGE - Upon the destruction of or
substantial damage to the Premises by any cause, or
the taking of all or a substantial portion of the
Premise of the Premises by eminent domain, in either
case making it impossible or impracticable to
continue operation of the Premises.
d. INADEQUATE INSURANCE - If Agent deems that the
liability insurance obtained by Owner per section 14
is not reasonable satisfactory to protect its
interest under this Agreement, and if Owner and
Agent cannot agree as to adequate insurance. Agent
shall have the right to cancel this Agreement upon
the service of notice to Owner.
21.3 TERMINATION COMPENSATION
If (i) Owner terminates this Agreement before the
end of the initial term or any subsequent term year
as provided in paragraph 21.1 above for any reason
other than for a breach by Agent under paragraph
21.2 (a) above, or if (ii) Agent terminates this
Agreement for a breach by Owner under paragraph 21.2
(a) above or pursuant to the provisions of paragraph
21.2 (b) or 21.2 (d) above, then in any such event,
Owner shall be obligated to pay Agent as liquidated
damages an amount equal to the management fee earned
by Agent, as determined under paragraph 17.1 above,
for the calendar month immediately preceding the
month in which the notice of termination is given to
Agent or to Owner, multiplied by the number of
months and/or portions thereof remaining from the
termination date until the end of the initial term
or term year in which the termination occurred.
Such damages, plus any amounts accruing to Agent
prior to such termination, shall be due and payable
upon termination of this Agreement. To the extent
that funds are available, such sums shall be payable
from the Operating (and/or) Reserve Account(s). Any
amount due in excess of the funds available from the
Operating (and/or) Reserve Account(s) shall be paid
by Owner to Agent upon demand.
21.4 OWNER RESPONSIBLE FOR PAYMENTS
Upon Termination or withdrawal from this Agreement,
Owner shall assume the obligations of any contract
or outstanding xxxx executed by Agent under this
Agreement for and on behalf of Owner and
responsibility for payment of all unpaid bills. In
addition, Owner shall furnish Agent security, in an
amount satisfactory to Agent, against any
obligations or liabilities with Agent may have
properly incurred on Owner's behalf under this
Agreement.
Agent may withhold funds for ninety (90) days after
the end of the month in which this Agreement is
terminated, in order to pay bills previously
incurred by not yet invoiced and to close accounts.
Agent shall deliver to Owner, within ninety (90)
days after the end of the month in which this
Agreement is terminated, any balance of monies due
Owner or of tenant security deposits, or both which
were held by Agent with respect to the Premises, as
well as a final accounting reflecting the balance of
income and expenses with respect to the Premises as
of the date of termination or withdrawal, and all
records, contracts, leases, receipts for deposits,
and other papers or documents which pertain to the
Premises.
21.5 SALE OF PREMISES
In the event that the Premises are sold by Owner
during the period of this Agreement, Agent may, upon
agreement with Owner and in accordance with Owner's
partnership agreement, obtain rights of
representation in the sale as stated in a specific
sales agreement to be negotiated separately. Upon
transfer of ownership, this Agreement shall
terminate by mutual consent of Owner and Agent under
the term and conditions set forth below:
The agreement shall automatically terminate
upon sale of premises to a bona fide Third
Party without penalty. A minimum of sixty days
notice is required.
Section 22 - INDEMNIFICATION SURVIVES TERMINATION
All representatives and warranties of the parties
contained herein shall survive the 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, 2.1, 2.3, 5, 8.4, 9.2, 13,
14, 15, 16, 17.7, 20, 21.3 and 21.4) shall survive
any termination; and if Agent is or becomes involved
in any proceedings or litigation by reason of having
been Owner's Agent, such provisions shall apply as
if this Agreement were still in effect.
Section 23 - HEADINGS
All headings and subheadings employed within this
Agreement and in the accompanying List of Provisions
are inserted only for convenience and ease of
reference and are not to be considered in the
construction or interpretation of any provision of
this Agreement.
Section 24 - FORCE MAJEUR
Any delays in the performance of any obligation of
Agent under this Agreement shall be excused to the
extent that such delays are caused by wars, national
emergencies, natural disasters, strikes, labor
disputes, utility failures, governmental
regulations, riots, adverse weather, and other
similar causes not within the control of Agent, and
any time periods required for performance shall be
extended accordingly.
Section 25 - COMPLETE AGREEMENT
This Agreement, including any specified attachments,
constitutes the entire agreement between Owner and
Agent with respect to the management and operation
of the Premises and supersedes and replaces any and
all previous management agreements entered into
or/and negotiated between Owner and Agent relating
to the Premises covered by this Agreement. No
change to this Agreement shall be valid unless made
by supplemental written agreement executed and
approved by Owner and Agent. Except as otherwise
provided herein, any and all amendments, additions,
or deletions to this Agreement shall be null and
void unless approved by Owner and Agent in writing.
Each party to this Agreement hereby acknowledges and
agrees that the other party has made no warranties,
representations, covenants, or agreements, express
or implied, to such party, other than those
expressly set forth herein, and that each party, in
entering into and executing this Agreement, has
relied upon no warranties, representations,
covenants, or agreement, express or implied, to such
party, other than those expressly set forth herein.
Section 26 - RIGHTS CUMULATIVE; NO WAIVER
No right or remedy herein conferred upon or reserved
to either of the parties to this Agreement is
extended to be exclusive of any other right or
remedy, and each and every right and remedy shall be
cumulative and in addition to any other right or
remedy given under this Agreement or now or
thereafter legally existing upon the occurrence of
an event or default under this Agreement. The
failure of either party to this Agreement to insist
at any time upon the strict observance or
performance of any of the provisions of this
Agreement, or to exercise any right or remedy as
provided in this Agreement, shall not impair any
such right or remedy with respect to subsequent
defaults. Every right and remedy given by this
Agreement to the parties to it may be exercised from
time to time and as often as may be deemed expedient
by those parties.
Section 27 - APPLICABLE LAW AND PARTIAL INVALIDITY
The Execution, interpretation, and performance of
this Agreement shall in all respects be controlled
and governed by the laws of the State of
Massachusetts. If any part of this Agreement shall
be declared invalid or unenforceable, Agent shall
have the option to terminate this Agreement by
notice to Owner.
Any notices, demands, consents, and report necessary
or provided for under this Agreement shall be in
writing and shall be addressed as follows, or at
such other address as Owner and Agent individually
may specify hereafter in writing:
Agent: Claremont Management Corporation
Xxxxxxxxxxxx Xxxx XX
Xxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxx, Xx.
Owner: Xxxxxxxxx'x Wharf Xxxxxx L.P.
c/o Boston Bay Capital, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTN: Xxxxxxxx X. Xxxxxxxx
Such notice or other communication may be mailed by
United States registered or certified mail, return
receipt requested, postage prepaid, and may be
deposited in a United States Post Office or a
depository for the receipt of mail regularly
maintained by the post office. Such notices,
demands, consents, and reports may also be delivered
by hand or by any other receipted method or means
permitted by law. For purposes of this Agreement,
notices shall be deemed to have been "given" or
"delivered" upon personal delivery thereof forty-
eight (48) hours after having been deposited in the
United States mails as provided herein.
Section 28 - AGREEMENT BINDING UPON SUCCESSORS AND
ASSIGNS
This Agreement shall be binding the parties hereto
and their respective personal representatives,
heirs, administrators, executors, successors and
assigns.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have affixed
or caused to be affixed their respective signatures this
_________ day of _______________ 1995.
Witnesses: Xxxxxxxxx'x Wharf Xxxxxx,
L.P.
a Delaware Limited Partnership
("Borrower")
By: Xxxxxxxxx'x Wharf
Development Corporation.
a Delaware Corporation,
General Partner of
Xxxxxxxxx'x Wharf
Baltimore, L.P.
__________________________ By:
_________________________________
Xxxxxxxx X. Xxxxxxxx,
President
By: Historic Preservation
Properties 1990 L.P.
TAX CREDIT FUND, a
Delaware L.P., General
Partner of Xxxxxxxxx'x
Wharf Baltimore, L.P.
By: Boston Historic
Partners II L.P., General
Partner of
Historic Preservation Properties
1990 L.P. Tax Credit
Fund
By: Portfolio Advisory
Services II, Inc.
General Partner of BHP
II Advisors L.P.
___________________________ By:
____________________________
Xxxxxxxx
X. Xxxxxxxx, President of
Portfolio
Advisory Services II, Inc.
___________________________ By:
_________________________________
Xxxxxxxx X.
Xxxxxxxx, General Partner of
BHP II Advisors
L.P.
Agent:
Firm: Claremont
Management Corporation
___________________________ By:
_______________________________
Xxxxxxx X. Xxxxx,
Xx., President
