Exhibit 10.4
FORM OF
THIRD PARTY PROPERTY MANAGEMENT
AND LEASING AGREEMENT
THIS THIRD PARTY PROPERTY MANAGEMENT AND LEASING (Agreement) is made and
entered into as of the day of , 2005 by and between BERKELEY PROPERTY
MANAGEMENT, LLC, a Delaware Limited Liability company with offices in Grass
Valley, California (Manager), a wholly owned subsidiary of BERKELEY TRUST
ADVISORS, LLC, The Berkeley REIT Advisor and __________________________ (Third
Party Manager).
W I T N E S S E T H:
WHEREAS, Manager has entered into a contractual obligation with Berkeley
REIT to lease and manage real estate properties on behalf of Berkeley REIT; and
WHEREAS, Manager intends to retain Third Party Manager to manage and
coordinate the leasing of the herein described specific real estate properties
owned by Berkeley REIT under the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, do
hereby agree as follows:
ARTICLE I.
DEFINITIONS
Except as otherwise specified or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Agreement, and the definitions of such terms are equally applicable both to
the singular and plural forms thereof:
1.1 Affiliate means a person who is (i) in the case of an individual, any
relative of such person, (ii) any officer, director, trustee, partner, Third
Party Manager, employee or holder of ten percent (10%) or more of any class of
the voting securities of or equity interest in such person; (iii) any
corporation, partnership, limited liability company, trust or other entity
controlling, controlled by or under common control with such person; or (iv) any
officer, director, trustee, partner, Third Party Manager, employee or holder of
ten percent (10%) or more of the outstanding voting securities of any
corporation, partnership, limited liability company, trust or other entity
controlling, controlled by or under common control with such person. For
purposes of this definition, the term controls, is controlled by, or is under
common control with shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of an entity,
whether through the ownership of voting rights, by contract or otherwise.
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1.2 Gross Revenues means all amounts actually collected as rents or other
charges for the use and occupancy of the Properties, but shall exclude interest
and other investment income of Manager and proceeds received by Manager for a
sale, exchange, condemnation, eminent domain taking, casualty or other
disposition of assets of Manager.
1.3 Improvements means buildings, structures, equipment from time to time
located on the Properties and all parking and common areas located on the
Properties.
1.4 Lease means, unless the context otherwise requires, any lease or
sublease made by Manager as landlord or by its predecessor.
1.5 Management Fees has the meaning set forth in Section 4.1(a) hereof.
1.6 Net Asset Value means the excess of (i) the aggregate of the Fair
Market Value of all the Properties (excluding vacant properties) owned by
Manager (whether wholly owned or partial investment through a joint venture
partnership or other co-ownership arrangement), over (ii) the aggregate
outstanding debt of Manager (excluding debt having maturities of one year of
less).
1.7 Manager means Berkeley Property Management, LLC, a Delaware Limited
Liability company with offices in Grass Valley, California , a wholly owned
subsidiary of Berkeley Trust Advisors, LLC, The Berkeley REIT Advisor.
1.8 Ownership Agreements has the meaning set forth in Section 2.4(k)
hereof.
1.9 Properties means all real estate properties described in Paragraph 2.2
of this agreement.
1.10 Third Party Property Manager means any entity other than Manager or
an Affiliate of Manager that has been retained by Manager to perform and carry
out at one or more of the Properties the property management services described
in Section 2.4 hereof, but shall exclude persons, entities or independent
contractors retained or hired by Third Party Manager to perform facility
management or other services or tasks at a particular Property, the costs for
which are passed through to and ultimately paid by the tenant at such Property.
ARTICLE II.
APPOINTMENT OF THIRD PARTY MANAGER; SERVICES TO BE PERFORMED
2.1 Appointment of Third Party Manager. Manager hereby engages and retains
Third Party Manager as property manager and as tenant coordinating agent of the
specific Properties names herein in Paragraph 2.2, and Third Party Manager
hereby accepts such appointment on the terms and conditions hereinafter set
forth, it being understood that this Agreement shall cause Third Party Manager
to be, at law, manager's agent upon the terms contained herein.
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2.2 Property(ies) To Be Managed. The property(ies) that are the subject of
this agreement is (are) described as follows:
1.______________________________________(Name, address, location, # units)
2.______________________________________(Name, address, location, # units)
3.______________________________________(Name, address, location, # units)
4.______________________________________(Name, address, location, # units)
2.3 General Duties. Third Party Manager shall devote its best efforts to
performing its duties hereunder to administer, promote, manage, operate,
maintain, improve and lease the Properties in a diligent, careful and vigilant
manner in coordination with Third Party Manager. The services of Third Party
Manager are to be of scope and quality not less than those generally performed
by third party property managers of other similar properties in the area. Third
Party Manager shall make available to Manager the full benefit of the judgment,
experience and advice of the members of Third Party Manager's organization and
staff with respect to the policies to be pursued by Manager relating to the
management, operation and leasing of the Properties. .
2.3 Specific Duties as Property Third Party Manager. Third Party Manager's
duties as property manager of the Properties shall include the following:
(a) Lease Obligations. Third Party Manager shall perform all duties
of the landlord under all leases insofar as such duties relate to operation,
maintenance, and day-to-day management. Third Party Manager shall also provide
or cause to be provided, at Managers expense, all services normally provided to
tenants of like premises, including where applicable and without limitation,
gas, electricity or other utilities required to be furnished to tenants under
leases, normal repairs and maintenance, and cleaning and janitorial service.
Third Party Manager shall arrange for and supervise the performance of all
installations and improvements in space leased to any tenant which are either
expressly required under the terms of the lease of such space or which are
customarily provided to tenants.
(b) Maintenance. Third Party Manager shall cause the Properties to
be maintained in the same manner as similar properties in the area. Third Party
Manager's duties and supervision in this respect shall include, without
limitation, cleaning of the interior and the exterior of the Improvements and
the public common areas on the Properties and the making and supervision of
repairs, alterations, and decoration of the Improvements, subject to and in
strict compliance with this Agreement and the Leases. Construction activities
undertaken by the Third Party Manager, if any, will be limited to activities
related to the management, operation, maintenance, and leasing of the Property
(e.g., repairs, renovations, and leasehold improvements).
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(c) Leasing Functions. Third Party Manager shall coordinate the
leasing of the Properties and shall negotiate and use its best efforts to secure
executed leases from qualified tenants, and to execute same on behalf of
Manager, if requested, for available space in the Properties, such leases to be
in form and on terms approved by Manager and Third Party Manager, and to bring
about complete leasing of the Properties. Third Party Manager shall be
responsible for the hiring of all leasing agents, as necessary for the leasing
of the Properties, and to otherwise oversee and manage the leasing process on
behalf of the Manager.
(d) Notice of Violations. Third Party Manager shall forward to
Manager promptly upon receipt all notices of violation or other notices from any
governmental authority, and board of fire underwriters or any insurance company,
and shall make such recommendations regarding compliance with such notice as
shall be appropriate.
(e) Personnel. Any personnel hired by Third Party Manager to
maintain, operate and lease the Property shall be the employees or independent
contractors of Third Party Manager and not of Manager. Third Party Manager shall
use due care in the selection and supervision of such employees or independent
contractors. Third Party Manager shall be responsible for the preparation of and
shall timely file all payroll tax reports and timely make payments of all
withholding and other payroll taxes with respect to each employee.
(f) Utilities and Supplies. Third Party Manager shall enter into or
renew contracts for electricity, gas, steam, landscaping, fuel, oil, maintenance
and other services as are customarily furnished or rendered in connection with
the operation of similar rental property in the area.
(g) Expenses. Third Party Manager shall analyze all bills received
for services, work and supplies in connection with the maintaining and operating
the Properties, pay all such bills, and, if requested by Manager, pay, when due,
utility and water charges, sewer rent and assessments, and any other amount
payable in respect to the Properties. All bills shall be paid by Third Party
Manager within the time required to obtain discounts, if any. Manager may from
time to time request that Third Party Manager forward certain bills to Manager
promptly after receipt, and Third Party Manager shall comply with any such
request. It is understood that the payment of real property taxes and assessment
and insurance premiums will be paid out of the Account (as hereinafter defined)
by Third Party Manager. All expenses shall be billed at net cost (i.e., less all
rebates, commissions, discounts and allowances, however designed).
(h) Monies Collected. Third Party Manager shall collect all rent and
other monies from tenants and any sums otherwise due Manager with respect to the
Properties in the ordinary course of business. In collecting such monies, Third
Party Manager shall inform tenants of the Properties that all remittances are to
be in the form of a check or money order. Manager authorizes Third Party Manager
to request, demand, collect and receipt for all such rent and other monies and
to institute legal proceedings in the name of Manager for the collection thereof
and for the dispossession of any tenant in default under its Lease.
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(i) Banking Accommodations. Third Party Manager shall establish and
maintain a separate checking account (the Account) for funds relating to the
Properties. All monies deposited from time to time in the Account shall be
deemed to be trust funds and shall be and remain the property of Manager and
shall be withdrawn and disbursed by Third Party Manager for the account of
Manager only as expressly permitted by this Agreement for the purposes of
performing the obligations of Third Party Manager hereunder. No monies collected
by Third Party Manager on Managers behalf shall be commingled with funds of
Third Party Manager. The Account shall be maintained, and monies shall be
deposited therein and withdrawn there from, in accordance with the following:
(i) All sums received from rents and other income from the
Properties shall be promptly deposited by Third Party Manager in the
Account. Third Party Manager shall have the right to designate two
or more persons who shall be authorized to draw against the Account,
but only for purposes authorized by this Agreement.
(ii) All sums due to Third Party Manager hereunder, whether
for compensation, reimbursement for expenditures, or otherwise, as
herein provided, shall be a charge against the operating revenues of
the Properties and shall be paid and/or withdrawn by Third Party
Manager from the Account prior to the making of any other
disbursements there from.
(iii) By the 30th day of the first month following each
calendar quarter, Third Party Manager shall forward to Manager net
operating proceeds from the preceding quarter, retaining at all
times, however a reserve of $5,000, in addition to any amounts
otherwise provided in the budget.
(j) Tenant Complaints. Third Party Manager shall maintain
business-like relations with the tenants of the Properties.
(k) Ownership Agreements. Third Party Manager has received copies of
agreements of limited partnership, joint venture partnership agreements and
operating agreements of Manager and its Affiliates (the Ownership Agreements)
and is familiar with the terms thereof. Third Party Manager shall use reasonable
care to avoid any act or omission which, in the performance of its duties
hereunder, shall in any way conflict with the terms of the Ownership Agreements.
(l) Signs. Third Party Manager shall place and remove, or cause to
be placed and removed, such signs upon the Properties as Third Party Manager
deems appropriate, subject, however, to the terms and conditions of the Leases
and to any applicable ordinances and regulations.
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2.5 Approval of Leases, Contracts, Etc. In fulfilling its duties to the
Manager, Third Party Manager may and hereby is authorized to enter into any
leases, contracts or agreements on behalf of the Manager in the ordinary course
of the management, operation, maintenance and leasing of the Property.
2.6 Accounting, Records and Reports.
(a) Records. Third Party Manager shall maintain all office records
and books of account and shall record therein, and keep copies of, each invoice
received from services, work and supplies ordered in connection with the
maintenance and operation of the Properties. Such records shall be maintained on
a double entry basis. Manager and persons designated by Manager shall at all
reasonable time have access to and the right to audit and make independent
examinations of such records, books and accounts and all vouchers, files and all
other material pertaining to the Properties and this Agreement, all of which
Third Party Manager agrees to keep safe, available and separate from any records
not pertaining to the Properties, at a place recommended by Third Party Manager
and approved by Manager.
(b) Quarterly Reports. On or before the 30th day of the first month
following each calendar quarter for which such report or statement is prepared
and during the term of this Agreement, Third Party Manager shall prepare and
submit to Manager the following reports and statements:
(i) Rental collection record;
(ii) Quarterly operating statement;
(iii) Copy of cash disbursements ledger entries for such
period, if requested;
(iv) Copy of cash receipts ledger entries for such period, if
requested;
(v) The original copies of all contracts entered into by Third
Party Manager on behalf of Manager during such period, if requested;
and
(vi) Copy of ledger entries for such period relating to
security deposits maintained by Third Party Manager, if requested.
(c) Budgets and Leasing Plans. Not later than November 15 of each
calendar year, Third Party Manager shall prepare and submit to Manager for its
approval an operating budget and a marketing and leasing plan on the Properties
for the calendar year immediately following such submission. The budget and
leasing plan shall be in the form of the budget and plan approved by Manager
prior to the date thereof. As often as reasonably necessary during the period
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covered by any such budget, Third Party Manager may submit to Manager for its
approval an updated budget or plan incorporating such changes as shall be
necessary to reflect cost over-runs and the like during such period. If Manager
does not disapprove any such budget within 30 days after receipt thereof by
Manager, such budget shall be deemed approved. If Manager shall disapprove any
such budget or plan, it shall so notify Third Party Manager within said 30-day
period and explain the reasons therefor. Third Party Manager will not incur any
costs other than those estimated in any budget except for:
(i) tenant improvements and real estate commissions required
under a Lease;
(ii) maintenance or repair costs under $5,000;
(iii) costs incurred in emergency situations in which action
is immediately necessary for the preservation or safety of the
Property, or for the safety of occupant or other person (or to avoid
the suspension of any necessary service of the Property);
(iv) expenditures for real estate taxes and assessment; and
(v) maintenance supplies calling for an aggregate purchase
price less than $25,000.
(d) Returns Required by Law. Third Party Manager shall execute and
file when due all forms, reports, and returns required by law relating to the
employment of its personnel.
(e) Notices. Promptly after receipt, Third Party Manager shall
deliver to Manager all notices, from any tenant, or any governmental authority,
that are not a routine nature. Third Party Managers shall also report
expeditiously to Manager notice of any extensive damage to any part of the
Properties.
ARTICLE III.
THIRD PARTY MANAGER'S COMPENSATION
3.1 Property Management and Leasing.
(a) Management Fees. Commencing on the date hereof, Manager shall
pay Third Party Manager for the property management and leasing services
described in Article II hereof fees payable monthly (Management Fees) in an
amount equal to 4% of the annual gross rental revenues generated by the
property(ies) described in Section 2.2 hereof. Said Management Fee includes all
costs and expenses incurred by Third Party Manager in performing its duties
hereunder including its administrative and overhead cost, but shall not include
direct expenses incurred as a result of property ownership and operation
described in Section 2.3(g). Third Party Manager's compensation under this
Section 3.1 shall apply to all renewals, extensions or expansions of Leases
which Third Party Manager has originally negotiated.
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(b) Other Management Fee Matters. For planning and coordinating the
construction of any tenant finish along with Third Party Manager or any
architect, contractor or other authorized person, the payment for which shall be
the responsibility of the tenant, Third Party Manager shall be entitled to
receive from any such tenant an amount equal to up to 5% of the amount as
remitted by the tenant to Third Party Manager or to a representative of Third
Party Manager in payment for such construction.
3.2 Initial Lease-Up Fee. In addition to the compensation paid to Third
Party Manager under Section 3.1 above, Third Party Manager shall be entitled to
receive a separate fee for the one-time initial rent-up or leasing-up of newly
constructed Improvements in an amount not to exceed the fee customarily charged
in arms length transactions by others rendering similar services in the same
geographic area for similar properties as determined by a survey of brokers and
agents in such area. For this purpose, a total rehabilitation shall be included
in the term newly constructed.
3.3 Audit Adjustment. If any audit of the records, books or accounts
relating to the Properties discloses an overpayment or underpayment of
Management Fees, Manager or Third Party Manager shall promptly pay to the other
party the amount of such overpayment or underpayment, as the case may be. If
such audit discloses an overpayment of Management Fees for any fiscal year of
more than the correct Management Fees for such fiscal year, Third Party Manager
shall bear the cost of such audit.
ARTICLE IV.
INSURANCE AND INDEMNIFICATION
4.1 Insurance to be Carried.
(a) Third Party Manager shall obtain and keep in full force and
effect insurance on the Properties against such hazards as Manager and Third
Party Manager shall deem appropriate, but in any event insurance sufficient to
comply with the Leases and the Ownership Agreements shall be maintained. All
liability policies shall provide sufficient insurance satisfactory to both
Manager and Third Party Manager and shall contain waivers of subrogation for the
benefit of Third Party Manager.
(b) Third Party Manager shall obtain and keep in full force and
effect, in accordance with the laws of the state in which each Property is
located, employers liability insurance applicable to and covering all employees
of Third Party Manager at the Properties and all persons engaged in the
performance of any work required hereunder, and Third Party Manager shall
furnish Manager certificates of insurers naming Manager as a co-insured and
evidencing that such insurance is in effect. If any work under this Agreement is
subcontracted as permitted herein, Third Party Manager shall include in each
subcontract a provision that the subcontractor shall also furnish Manager with
such a certificate.
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4.2 Cooperation with Insurers. Third Party Manager shall cooperate with
and provide reasonable access to the Properties to representatives of insurance
companies and insurance brokers or agents with respect to insurance which is in
effect or for which application has been made. Third Party Manager shall use its
best efforts to comply with all requirements of insurers.
4.3 Accidents and Claims. Third Party Manager shall promptly investigate
and shall report in detail to Manager all accidents, claims for damage relating
to the ownership, operation or maintenance of the Properties, and any damage or
destruction to the Properties and the estimated costs of repair thereof, and
shall prepare for approval by Manager all reports required by an insurance
company in connection with any such accident, claim, damage, or destruction.
Such reports shall be given to Manager promptly and any report not so given
within 10 days after the occurrence of any such accident, claim, damage or
destruction shall be noted in the monthly report delivered to Manager pursuant
to Section 2.6(b). Third Party Manager is authorized to settle any claim against
an insurance company arising out of any policy and, in connection with such
claim, to execute proofs of loss and adjustments of loss and to collect and
receipt for loss proceeds.
4.4 Indemnification. Third Party Manager shall hold Manager harmless from
and indemnify and defend Manager against any and all claims or liability for any
injury or damage to any person or property whatsoever for which Third Party
Manager is responsible occurring in, on, or about the Properties, including,
without limitation, the Improvements when such injury or damage shall be caused
by the negligence of Third Party Manager, its agents, servants, or employees,
except to the extent that Manager recovers insurance proceeds with respect to
such matter. Manager will indemnify and hold Third Party Manager harmless
against all liability for injury to persons and damage to property caused by
Managers negligence and which did not result from the negligence or misconduct
of Third Party Manager, except to the extent Third Party Manager recovers
insurance proceeds with respect to such matter.
ARTICLE V.
TERM, TERMINATION
5.1 Term. This Agreement shall commence on the date first above written
and shall continue until terminated in accordance with the earliest to occur of
the following:
(a) One year from the date of the commencement of the term hereof.
However, this Agreement will be automatically extended for an additional
one-year period at the end of each year unless Manager or Third Party Manager
gives sixty (60) days written notice of its intention to terminate the
Agreement; or
(b) Immediately upon the occurrence of any of the following:
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(i) A decree or order is rendered by a court having
jurisdiction (A) adjudging Third Party Manager as bankrupt or
insolvent, or (B) approving as properly filed a petition seeking
reorganization, readjustment, arrangement, composition or similar
relief for Third Party Manager under the federal bankruptcy laws or
any similar applicable law or practice, or (C) appointing a receiver
or liquidator or trustee or assignee in bankruptcy or insolvency of
Third Party Manager or a substantial part of the property of Third
Party Manager, or for the winding up or liquidation of its affairs,
or
(ii) Third Party Manager (A) institutes proceedings to be
adjudicated a voluntary bankrupt or an insolvent, (B) consents to
the filing of a bankruptcy proceeding against it, (C) files a
petition or answer or consent seeking reorganization, readjustment,
arrangement, composition or relief under any similar applicable law
or practice, (D) consents to the filing of any such petition, or to
the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency for it or for a substantial part of its
property, (E) makes an assignment for the benefit of creditors, (F),
is unable to or admits in writing its inability to pay its debts
generally as they become due unless such inability shall be the
fault of Manager, or (G) takes corporate or other action in
furtherance of any of the aforesaid purposes.
Upon termination, the obligations of the parties hereto shall cease,
provided that Third Party Manager shall comply with the provisions hereof
applicable in the event of termination and shall be entitled to receive all
compensation which may be due Third Party Manager hereunder up to the date of
such termination, and provided, further, that if this Agreement terminates
pursuant to clause (b) above, Manager shall have other remedies as may be
available at law or in equity.
5.2 Third Party Managers Obligations after Termination. Upon the
termination of this Agreement, Third Party Manager shall have the following
duties:
(a) Third Party Manager shall deliver to Manager, or its designee,
all books and records with respect to the Properties.
(b) Third Party Manager shall transfer and assign to Manager, or its
designee, all service contracts and personal property relating to or used in the
operation and maintenance of the Properties, except personal property paid for
and owned by Third Party Manager. Third Party Manager shall also, for a period
of sixty (60) days immediately following the date of such termination, make
itself available to consult with and advise Manager, or its designee, regarding
the operation, maintenance and leasing of the Properties.
(c) Third Party Manager shall render to Manager an accounting of all
funds of Manager in its possession and shall deliver to Manager a statement of
Management Fees claimed to be due Third Party Manager and shall cause funds of
Manager held by Third Party Manager relating to the Properties to be paid to
Manager or its designee.
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ARTICLE VI.
MISCELLANEOUS
6.1 Notices. All notices, approvals, consents and other communications
hereunder shall be in writing, and, except when receipt is required to start the
running of a period of time, shall be deemed given when delivered in person or
on the fifth day after its mailing by either party by registered or certified
United States mail, postage prepaid and return receipt requested, to the other
party, at the addresses set forth after their respect name below or at such
different addresses as either party shall have theretofore advised the other
party in writing in accordance with this Section 7.1.
Manager: BERKELEY PROPERTY MANAGEMENT, LLC
Attention: Property Manager
0000 Xxxxxx Xxx
Xxxxx Xxxxxx, XX 00000
Third Party
Manager: NAME AND ADDRESS OF THIRD PARTY MANAGER
6.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
6.3 Assignment. Third Party Manager may delegate partially or in full its
duties and rights under this Agreement but only with the prior written consent
of Manager. Except as provided in the immediately preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns.
6.4 No Waiver. The failure of Manager to seek redress for violation or to
insist upon the strict performance of any covenant or condition of this
Agreement shall not constitute a waiver thereof for the future.
6.5 Amendments. This Agreement may be amended only by an instrument in
writing signed by the party against whom enforcement of the amendment is sought.
6.6 Headings. The headings of the various subdivisions of this Agreement
are for reference only and shall not define or limit any of the terms or
provisions hereof.
6.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
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6.8 Entire Agreement. This Agreement contains the entire understanding and
all agreements between Manager and Third Party Manager respecting the management
of the Properties. There are no representations, agreements, arrangements or
understandings, oral or written, between Manager and Third Party Manager
relating to the management of the Properties that are not fully expressed
herein.
6.9 Disputes. If there shall be a dispute between Manager and Third Party
Manager relating to this Agreement resulting in litigation, the prevailing party
in such litigation shall be entitled to recover from the other party to such
litigation such amount as the court shall fix as reasonable attorneys fees.
6.10 Activities of Third Party Manager. The obligations of Third Party
Manager pursuant to the terms and provisions of this Agreement shall not be
construed to preclude Third Party Manager from engaging in other activities or
business ventures, whether or not such other activities or ventures are in
competition with the Manager or the business of Manager.
6.11 Independent Contractor. Third Party Manager and Manager shall not be
construed as joint venturers or partners of each other pursuant to this
Agreement and neither shall have the power to bind or obligate the other except
as set forth herein. In all respects, the status of Manger to Manager under this
Agreement is that of an independent contractor.
IN WITNESS WHEREOF, the parties have executed this Property Management,
Leasing and Asset Management Agreement as of the date first above written.
MANAGER:
Berkeley Property Management, LLC
By: _______________________________
Name: _______________________________
Title: _______________________________
THIRD PARTY MANAGER:
By: _______________________________
Name: _______________________________
Title: _______________________________
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