EXHIBIT 10.35
PROPERTY MANAGEMENT AGREEMENT
THIS PROPERTY MANAGEMENT AGREEMENT (this "Agreement") is entered into as
of December 20, 2001 among Eighteen SAC Self-Storage Corporation, a Nevada
corporation, with its principal place of business at 000 Xxxxx Xxxxxxx Xxxx
Xxxxx, Xxxx, XX 00000 ("Owner"), and the property managers identified on Exhibit
A attached hereto and incorporated herein by reference (each such property
manager is respectively referred to herein as "U-Haul").
RECITALS
A. Owner owns the real property and self-storage related improvements
thereon located at the street addresses identified on Exhibit A hereto
(hereinafter, collectively the "Property").
B. Owner intends that the Property be rented on a space-by-space
retail basis to corporations, partnerships, individuals and/or other entities
for use as self-storage facilities.
C. Owner desires that U-Haul manage the Property and U-Haul desires to act
as the property manager for the Property, all in accordance with the terms and
conditions of this Agreement and as more specifically designated on Exhibit A
hereto.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Owner and U-Haul hereby agree as follows.
1. Employment.
(a) Owner hereby retains U-Haul, and U-Haul agrees to act as manager of
the Property upon the terms and conditions hereinafter set forth.
(b) Owner acknowledges that U-Haul, and/or U-Haul affiliates, is in the
business of managing self-storage facilities, both for its own account and for
the account of others. It is hereby expressly agreed that notwithstanding this
Agreement, U-Haul and such affiliates may continue to engage in such activities,
may manage facilities other than those presently managed by U-Haul and its
affiliates (whether or not such other facilities may be in direct or indirect
competition with Owner) and may in the future engage in other business which may
compete directly or indirectly with activities of Owner.
(c) In the performance of their respective duties under this Agreement,
each U-Haul property manager shall occupy the position of an independent
contractor with respect to Owner. Nothing contained herein shall be construed as
making the parties
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hereto (or any of them) partners or joint venturors, nor (except as expressly
otherwise provided for herein) construed as making U-Haul an agent or employee
of Owner or of any other U-Haul property manager hereunder.
2. Duties and Authority of U-Haul.
(a) GENERAL DUTIES AND AUTHORITY. Subject only to the restrictions and
limitations provided in paragraphs (o) and (p) of this Section 2 and the right
of Owner to terminate this Agreement as provided in Section 6 hereof, U-Haul
shall have the sole and exclusive authority to fully manage the Property and
supervise and direct the business and affairs associated or related to the daily
operation thereof, and, to that end on behalf of Owner, to execute such
documents and instruments as, in the sole judgment of U-Haul, are reasonably
necessary or advisable under the circumstances in order to fulfill U-Haul's
duties hereunder. Such duties and authority shall include, without limitation,
those set forth below.
(b) RENTING OF THE PROPERTY. U-Haul shall establish policies and
procedures for the marketing activities for the Property, and may advertise the
Property through such media as U-Haul deems advisable, including, without
limitation, advertising with the Yellow Pages. U-Haul shall have the sole
discretion, which discretion shall be exercised in good faith, to establish the
terms and conditions of occupancy by the tenants of the Property, and U-Haul is
hereby authorized to enter into rental agreements on behalf and for the account
of Owner with such tenants and to collect rent from such tenants. U-Haul may
jointly advertise the Property with other properties owned or managed by U-Haul,
and in that event, U-Haul shall reasonably allocate the cost of such advertising
among such properties.
(c) REPAIR, MAINTENANCE AND IMPROVEMENTS. U-Haul shall make, execute,
supervise and have control over the making and executing of all decisions
concerning the acquisition of furniture, fixtures and supplies for the Property,
and may purchase, lease or otherwise acquire the same on behalf of Owner. U-Haul
shall make and execute, or supervise and have control over the making and
executing of all decisions concerning the maintenance, repair, and landscaping
of the Property. U-Haul shall, on behalf of Owner, negotiate and contract for
and supervise the installation of all capital improvements related to the
Property; provided, however, that U-Haul agrees to secure the prior written
approval of Owner on all such expenditures in excess of $5,000.00 for any one
item, except monthly or recurring operating charges and/or emergency repairs if
in the opinion of U-Haul such emergency-related expenditures are necessary to
protect the Property from damage or to maintain services to the tenants as
called for in their respective leases.
(d) PERSONNEL. U-Haul shall select all vendors, suppliers, contractors,
subcontractors and employees with respect to the Property and shall hire,
discharge and supervise all labor and employees required for the operation and
maintenance of the
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Property. Any employees so hired shall be employees of U-Haul, and shall be
carried on the payroll of U-Haul. Employees may include, but will not be limited
to, on-site resident managers, on-site assistant managers, and relief managers
located, rendering services, or performing activities on the Property in
connection with its operation and management. The cost of employing such persons
shall not exceed prevailing rates for comparable persons performing the same or
similar services with respect to real estate similar to the Property.
(e) AGREEMENTS. U-Haul shall negotiate and execute on behalf of Owner such
agreements which U-Haul deems necessary or advisable for the furnishing of
utilities, services, concessions and supplies, for the maintenance, repair and
operation of the Property and such other agreements which may benefit the
Property or be incidental to the matters for which U-Haul is responsible
hereunder.
(f) OTHER DECISIONS. U-Haul shall make all decisions in connection
with the daily operation of the Property.
(g) REGULATIONS AND PERMITS. U-Haul shall comply in all material respects
with any statute, ordinance, law, rule, regulation or order of any governmental
or regulatory body, having jurisdiction over the Property, respecting the use of
the Property or the maintenance or operation thereof. U-Haul shall apply for and
attempt to obtain and maintain, on behalf of Owner, all licenses and permits
required or advisable (in the sole judgment of U-Haul) in connection with the
management and operation of the Property.
(h) RECORDS AND REPORTS OF DISBURSEMENTS AND COLLECTIONS. U-Haul shall
establish, supervise, direct and maintain the operation of a system of record
keeping and bookkeeping with respect to all receipts and disbursements in
connection with the management and operation of the Property. The books, records
and accounts shall be maintained at the U-Haul office or at such other location
as U-Haul shall determine, and shall be available and open to examination and
audit quarterly by Owner, its representatives, any mortgagee of the Property,
and such mortgagee's representative. On or before thirty (30) days after the
close of each quarter, U-Haul shall cause to be prepared and delivered to Owner,
a monthly statement of receipts, expenses and charges, together with a statement
of the disbursements made by U-Haul during such period on Owner's behalf.
(i) [Reserved].
(j) COLLECTION. U-Haul shall be responsible for the billing and collection
of all accounts receivable and for payment of all accounts payable with respect
to the Property and shall be responsible for establishing policies and
procedures to minimize the amount of bad debts.
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(k) LEGAL ACTIONS. U-Haul shall cause to be instituted, on behalf and in
the name of Owner, any and all legal actions or proceedings U-Haul deems
necessary or advisable to collect charges, rent or other income due to Owner
with respect to the Property and to oust or dispossess tenants or other persons
unlawfully in possession under any lease, license concession agreement or
otherwise, and to collect damages for breach thereof or default thereunder by
such tenant, licensee, concessionaire or occupant.
(l) INSURANCE. U-Haul shall use its best efforts to assure that there is
obtained and maintained in force, fire, comprehensive liability and other
insurance policies in amounts generally carried with respect to similar
facilities. U-Haul may in its discretion obtain employee theft or similar
insurance in amounts and with such deductibles as U-Haul deems appropriate.
U-Haul shall promptly provide Owner with such certificates of insurance as Owner
may reasonably request in writing, evidencing such insurance coverage.
(m) TAXES. During the term of this Agreement, U-Haul shall pay from
Owner's funds, prior to delinquency, all real estate taxes, personal property
taxes, and all other taxes assessed to, or levied upon, the Property. If
required by the holder of any note secured by the Property, U-Haul will set
aside, from Owner's funds, a reserve from each month's rent and other income
collected, in an amount required by said holder for purposes of payment of real
property taxes.
(n) [RESERVED].
(o) LIMITATIONS ON U-HAUL AUTHORITY. Notwithstanding anything to the
contrary set forth in this Section 2, U-Haul shall not, without obtaining the
prior written consent of Owner, (i) rent storage space in the Property by
written lease or agreement for a stated term in excess of one year, (ii) alter
the building or other structures of the Property in any material manner; (iii)
make any other agreements which exceed a term of one year and are not terminable
on thirty day's notice at the will of Owner, without penalty, payment or
surcharge; (iv) act in violation of any law; or (v) act in violation of any duty
or responsibility of Owner under any mortgage loan secured by the Property.
(p) SHARED EXPENSES. Owner acknowledges that certain economies may be
achieved with respect to certain expenses to be incurred by U-Haul on behalf of
Owner hereunder if materials, supplies, insurance or services are purchased by
U-Haul in quantity for use not only in connection with the Property but in
connection with other properties owned or managed by U-Haul or its affiliates.
U-Haul shall have the right to purchase such materials, supplies, insurance
and/or services in its own name and charge Owner a pro rata allocable share of
the cost of the foregoing; provided, however, that the pro rata cost of such
purchase to Owner shall not result in expenses greater than would otherwise be
incurred at competitive prices and terms available in the area where the
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Property is located; and provided further, U-Haul shall give Owner access to
records so Owner may review any such expenses incurred.
(q) DEPOSIT OF GROSS REVENUES. All Gross Revenues (as hereinafter
defined) shall be remitted by U-Haul (or its parent company) on a daily basis to
a bank account and U-Haul shall maintain such records and systems as are
necessary or appropriate to enable U-Haul to clearly identify the amount of
Gross Revenue generated by each Property on a daily basis.
3. Duties of Owner.
Owner hereby agrees to cooperate with U-Haul in the performance of
U-Haul's duties under this Agreement and to that end, upon the request of
U-Haul, to provide, at such rental charges, if any, as are deemed appropriate,
reasonable office space for U-Haul employees on the premises of the Property and
to give U-Haul access to all files, books and records of Owner relevant to the
Property. Owner shall not unreasonably withhold or delay any consent or
authorization to U-Haul required or appropriate under this Agreement.
4. Compensation of U-Haul.
(a) MANAGEMENT FEE. Owner shall pay to U-Haul as the full amount due for
the services herein provided a fee (the "Management Fee") equal to six percent
(6%) of the "Gross Revenue" derived from or connected with the Property so
managed by U-Haul hereunder. The term "Gross Revenue" shall mean all receipts
(excluding security deposits unless and until Owner recognizes the same as
income) of Owner (whether or not received by U-Haul on behalf or for the account
of Owner) arising from the operation of the Property, including without
limitation, rental payments of lessees of space in the Property, vending machine
or concessionaire revenues, maintenance charges, if any, paid by the tenants of
the Property in addition to basic rent, parking fees, if any, and all monies
whether or not otherwise described herein paid for the use of the Property.
"Gross Revenue" shall be determined on a cash basis. The Management Fee shall be
paid promptly at the end of each calendar quarter and shall be calculated on the
basis of the "Gross Revenue" of such preceding quarter. The Management Fee shall
be paid to each U-Haul property manager herein identified based on the Gross
Revenue of each respective Property for which such property manager is
responsible as set forth on Exhibit A hereto. Each property manager agrees that
its monthly Management Fee shall be subordinate to that month's principal
balance and interest payment on any first lien position mortgage loan on the
Property.
It is understood and agreed that the Management Fee will not be reduced by
the cost to Owner of those employees and independent contractors engaged by or
for Owner, including but not limited to the categories of personnel specifically
referred to in Section
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2(d). Except as provided in this Section 4, it is further understood and agreed
that U-Haul shall not be entitled to additional compensation of any kind in
connection with the performance by it of its duties under this Agreement.
(b) REIMBURSEMENT OF CERTAIN EXPENSES. In addition to the Management Fee
described above, U-Haul shall be entitled to reimbursement from Owner, on a
quarterly basis, for all out-of-pocket expenses incurred by U-Haul hereunder in
connection with the management and operation of the Property, including, without
limitation, taxes, insurance, operational expenses, overhead, litigation and
dispute resolution related expenses, capital improvement expenses, and costs of
sales.
5. Use of Trademarks, Service Marks and Related Items.
Owner acknowledges the significant value of the "U-Haul" name in the
operations of Owner's property and it is therefore understood and agreed that
the name, trademark and service xxxx, "U-Haul", and related marks, slogans,
caricatures, designs and other trade or service items shall be utilized for the
non-exclusive benefit of Owner in the rental and operation of the Property, and
in comparable operations elsewhere. It is further understood and agreed that
this name and all such marks, slogans, caricatures, designs and other trade or
service items shall remain and be at all times the property of U-Haul and its
affiliates, and that, except during the term hereof and as expressly provided
herein, Owner shall have no right whatsoever therein. Owner agrees that during
the term of this agreement the sign faces at the property will have the name
"U-Haul." The U-Haul sign faces will be paid for by Owner. Upon termination of
this agreement at any time for any reason, all such use by and for the benefit
of Owner of any such name, xxxx, slogan, caricature, design or other trade or
service item in connection with the Property shall, in any event, be terminated
and any signs bearing any of the foregoing shall be removed from view and no
longer used by Owner. In addition, upon termination of this Agreement at any
time for any reason, Owner shall not enter into any new leases of Property using
the U-Haul lease form or use other forms prepared by U-Haul. It is understood
and agreed that U-Haul will use and shall be unrestricted in its use of such
name, xxxx, slogan, caricature, design or other trade or service item in the
management and operation of other storage facilities both during and after the
expiration or termination of the term of this Agreement.
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6. Termination.
Owner or U-Haul may terminate this Agreement with or without cause by
giving not less than thirty days' written notice to the other party pursuant to
Section 11 hereof. In addition, if Owner fails to pay U-Haul any amounts owed
under this Agreement when due, U-Haul may terminate this Agreement by giving
Owner not less than ten days written notice pursuant to Section 11 hereof.
Notwithstanding the foregoing, however, U-Haul shall not resign as property
manager of the Property until a nationally recognized and reputable successor
property manager is available and prepared to assume property management
responsibilities with respect to the Property in question Upon termination of
this Agreement, U-Haul shall promptly return to Owner all monies, books, records
and other materials held by U-Haul for or on behalf of Owner. In addition, if
U-Haul has contracted to advertise the Property in the Yellow Pages, Owner
shall, at the option of U-Haul, continue to be responsible for the cost of such
advertisement and shall either (i) pay U-Haul the remaining amount due under
such contract in a lump sum; or (ii) pay U-Haul monthly for the amount due under
such contract.
7. Indemnification.
Owner hereby agrees to indemnify and hold each of U-Haul, all persons and
companies affiliated with U-Haul, and all officers, shareholders, directors,
employees and agents of U-Haul and of any affiliated companies or persons
(collectively, the "Indemnified Persons") harmless from any and all costs,
expenses, attorneys' fees, suits, liabilities, judgments, damages, and claims in
connection with the management of the Property (including the loss of use
thereof following any damage, injury or destruction), arising from any cause
except for the willful misconduct or gross negligence on the part of the
Indemnified Persons. In addition, no Indemnified Person shall be liable for any
error of judgment or for any mistake of fact or law, or for anything which it
may do or refrain from doing hereafter, except in cases of willful misconduct or
gross negligence. U-Haul hereby agrees to indemnify and hold Owner harmless from
any and all costs, expenses, attorneys' fees, suits, liabilities, judgments,
damages and claims in connection with the management of the Property arising
from the willful misconduct of, gross negligence of, or breach of this Agreement
by the Indemnified Persons. In addition, U-Haul shall not be liable to Owner for
the acts or omissions of U-Haul's officers, shareholders, directors, employees,
and agents except for U-Haul's own gross negligence or willful misconduct.
8. Assignment.
This Agreement may be assigned by Owner in connection with any mortgage
loan on the Property, whether pursuant to a conditional or unconditional,
absolute assignment. U-Haul shall have the right to assign this Agreement to an
affiliate or a wholly or
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majority owned subsidiary; provided, however, any such assignee must assume all
obligations of U-Haul hereunder, Owner's rights hereunder will be enforceable
against any such assignee and U-Haul shall not be released from its liabilities
hereunder unless Owner shall expressly agree thereto in writing.
9. Headings.
The headings contained herein are for convenience of reference only and
are not intended to define, limit or describe the scope or intent of any
provision of this Agreement.
10. Governing Law.
The validity of this Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties shall be governed by the
internal laws of the State of Arizona.
11. Notices.
Any notice required or permitted herein shall be in writing and shall be
personally delivered or mailed first class postage prepaid or delivered by an
overnight delivery service to the respective addresses of the parties set forth
below their signatures on the signature page thereof, or to such other address
as any party may give to the other in writing. Any notice required by this
Agreement will be deemed to have been given when personally served or one day
after delivery to an overnight delivery service or five days after deposit in
the first class mail.
12. Severability.
Should any term or provision hereof be deemed invalid, void or
unenforceable either in its entirety or in a particular application, the
remainder of this Agreement shall nonetheless remain in full force and effect
and, if the subject term or provision is deemed to be invalid, void or
unenforceable only with respect to a particular application, such term or
provision shall remain in full force and effect with respect to all other
applications.
13. Successors.
This Agreement shall be binding upon and inure to the benefit of the
respective parties hereto and their permitted assigns and successors in
interest.
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14. Attorneys' Fees.
If it shall become necessary for any party hereto to engage attorneys to
institute legal action for the purpose of enforcing their respective rights
hereunder or for the purpose of defending legal action brought by the other
party hereto, the party or parties prevailing in such litigation shall be
entitled to receive all costs, expenses and fees (including reasonable
attorneys' fees) incurred by it in such litigation (including appeals).
15. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
16. Scope of Property Manager Responsibility.
The duties, obligations and liability of each property manager identified
herein shall extend only so far as to relate to the Property for which such
property manager is managing located in the domicile state of such property
manager, as more specifically described on Exhibit A hereto, and no individual
property manager hereunder shall be liable for the acts or omissions of any
other property manager hereunder. Each property manager shall use its best
efforts to assist Owner in fulfilling Owner's obligations arising under any loan
to Owner that is secured by the Property, including but not limited to preparing
and providing financial and accounting reports, and maintaining the Property.
Each property manager agrees that it will perform its obligations hereunder
according to reasonable industry standards, in good faith, and in a commercially
reasonable manner. U-Haul agrees that, in discharging its duties hereunder, it
will not have any relationship with any of its affiliates that would be less
favorable to Owner than would reasonably be available in a transaction with an
unaffiliated party.
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IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the
date first above written.
"Owner":
Eighteen SAC Self-Storage Corporation,
a Nevada corporation
By: _______________________________
Xxxx X. Xxxxx, President
"U-Haul":
U-Haul Co. of Nevada, Inc.
By: _______________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of California, Inc.
By: _______________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of Utah, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of Arizona, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
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U-Haul Co. of Texas, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of Rhode Island, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of New York, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of Pennsylvania, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of New Jersey, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of Colorado, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
U-Haul Co. of Massachusetts, Inc.
By: ________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
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Exhibit A
CENTERS NAME ADDRESS CITY STATE
------- ---- ------- ---- -----
706086 U-HAUL CTR DBL DIAMOND RANCH 00000 X XXXXXXXX XXXXXX XXXX XX
000000 U-HAUL CENTER MIRAMAR 0000 XXXXXX XXXX XXX XXXXX XX
000000 U-HAUL CTR SALT LK 00 XXXX 0000 XXXXX XXXX XXXX XXXX XX
000000 U-HAUL CENTER KYRENE ROAD 0000 X XXXXXXXX XXXX XXXXXXXX XX
000000 U-HAUL CENTER DENTON 000 XXXXX X-00 X XXXXXX XX
000000 X-XXXX XXXXXX XXX XXXX 0000 XXX XXXX XXXXX XX
000000 U-HAUL CTR ALIEF 00000 XXXXXXXX XXXX XXXXXXX XXXXX XX
000000 U-HAUL N BROADWAY 000 X XXXXXXXX XXXX XXXXXXXXXX XX
000000 U-HAUL BRONX PARK 0000 XXXXX XXXXXX XX XXXXX XX
000000 U-HAUL MACARTHUR ROAD 0000 XXXXXXXXX XXXX XXXXXXXXX XX
000000 U-HAUL CINNAMINSON 0000 XXXXX 000 XXXXXXXXXXX XX
000000 U-HAUL PALM SPRINGS 00000 XXXXX XXXX XXXXXXXXX XXXX XX
000000 U-HAUL CENTER S HAVANA 000 X XXXXXX XXXXXX XXXXX XX
000000 U-HAUL CENTRAL SQ 000 XXXX XX XXXXXXXXX XX
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