MULTIFAMILY MANAGEMENT AGREEMENT CHIMNEY SQUARE APARTMENTS
CHIMNEY
SQUARE APARTMENTS
This
management Agreement is made as of and effective the first day of October 20th,
2004 by and between XXXX,
Inc, General Partner, d/b/a Chimney Square, a Texas
Limited Partnership (herein called "Owner"), and Univesco, Inc. a Texas
corporation (herein called "Manager").
WHEREAS,
Owner is
the owner of an apartment community known as Chimney Square Apartments
(128
Units)
located
at 0000 Xxxxx 00xx
Xxxxxx,
Xxxxxxx, Xxxxx 00000 (hereinafter collectively referred to as the "Property").
WHEREAS,
Manager
is in the business of operating and managing residential multifamily properties;
and
WHEREAS,
Owner
desires to contract with Manager to obtain Manager's services as an independent
contractor for the general maintenance, staffing, operation and management
of
the Property (and the employment of all personnel employed in connection
therewith) in all respects except as limited herein, including matters relating
to the leasing, the maintenance of the Property, the compliance with rules
and
regulations of all public authorities having jurisdiction over the operation
of
the Property, the maintenance of all records, the billing and collection for
Owner and in Owner's name of all charges to residents, the hiring, training,
utilization and supervision of employees, the preparation and filing of all
required reports, and the maintenance of the Property and the supplies,
equipment, furniture, furnishings and structures associated therewith;
and
WHEREAS,
Manager
desires to perform such management functions as an independent contractor in
accordance with the terms hereof and for the consideration provided
herein.
NOW,
THEREFORE,
for and
in consideration of the premises and for the further consideration recited
herein, Owner and Manager agree as follows:
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1.
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Appointment.
Owner hereby appoints Manager as an independent contractor to act
as the
exclusive manager of the Property, and the Manager accepts such
appointment, subject to the terms and conditions set forth
herein.
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2.
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Term.
This Agreement shall commence on the first day of October 20th
2004 and shall continue until either party gives a thirty (30) day
notice
of cancellation of the agreement. Any such cancellation will be without
payment of penalties or fees.
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3.
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Management
Standards.
Manager
agrees to furnish the services of its organization, to exercise its
best
efforts, and to exercise the highest degree of professional skill
and
competence in managing the Property in order to provide Owner with
the
maximum economic return consistent with proper and prudent
management.
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Duties
of Manager Owner
delegates and Manager assumes, subject to the provisions hereof,
full
control and responsibility for the Property and its operation in
all
respects, including, but not limited to, the following powers, authorities
and responsibilities, each and all of which are hereby delegated
to
Manager by Owner, and each and all of which are hereby assumed and
undertaken by Manager who covenants and agrees to perform the following,
to wit:
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a. Generally
to manage the Property so as to provide residential space to qualified
tenants.
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b.
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To
compile and provide to Owner such monthly, quarterly and annual operating
statements as Owner may request.
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c.
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To
supervise and perform the proper maintenance, repair, equipping and
supply
of the Property.
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d.
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To
hire, discharge, train, supervise, pay and control all personnel
employed
at the Property at such salaries as Manager may determine, and in
such
numbers and of such experience and skill levels as Manager may deem
necessary to provide adequate management of the Property it being
understood and agreed that Owner shall have no control or authority
whatsoever over the employees of Manager employed at the
Property.
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e.
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To
maintain the Property in accordance with all applicable rules and
regulations of public authorities and to maintain the operations
and
physical condition of the Property in good
order.
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f.
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To
prepare and file all required governmental reports, if
any.
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g.
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To
provide and maintain all accounting, bookkeeping and record keeping
relating to the operation of the
Property.
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h.
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To
exercise reasonable efforts to keep the Property fully
occupied.
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i.
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To
institute and maintain a program for tenant billing, to xxxx and
collect
all receivables for the account of Owner in connection with the operation
of the Property, and to immediately turn over all such collected
receivables to Owner. In this regard, it is expressly understood
and
agreed that all funds billed or collected shall be owned and controlled
solely by Owner, and that Manager shall have no claim or entitlement
thereto. Any such funds collected by Manager shall be received and
held by
Manager in trust for the benefit of Owner and shall be turned over
to
Owner with a proper accounting therefor as soon as
practicable.
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j.
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To
maintain accurate, complete and separate records in accordance with
generally accepted accounting standards and procedures,(including
tax
basis accounting,) showing income and expenditures relating to the
operation of the Property and from which accounts payable and accounts
receivable, available cash, and other assets and liabilities pertaining
to
the Property can be readily identified and the amounts thereof determined
at any time. Owner shall have the right at any reasonable time through
its
attorney or accountant or other representative, or in person, to
inspect
the records kept by Manager pertaining to the Property, including,
but not
limited to, all checks, bills, invoices, statements, vouchers, cash
receipts, correspondence and all other dealing with the management
of the
Property; and Owner shall have the further right to, at his own expense,
have an audit made of all account books and records pertaining to
the
management of the Property.
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k.
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To
furnish such information (including occupancy reports) as may be
requested
by Owner from time to time with respect to the financial, physical
or
operational condition of the
Property.
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2
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l.
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To
furnish monthly to Owner a detailed statement of all receipts and
disbursements for each month, such statement to be furnished on or
before
the 2Oth day of each month for the preceding month. Such statements
shall
show the status of collections and shall be supported by canceled
checks,
vouchers, duplicate invoices, and similar documentation covering
all items
of income and expense, which shall be available for inspection by
the
Owner's representatives at all reasonable times. Manager shall also
furnish a monthly operating statement showing the income and expense
for
the month and year to date. Manager shall be under no obligation
to
advance funds on behalf of Owner, but in the event disbursements
are in
excess of proceeds collected, Owner agrees to pay such excess promptly
upon demand.
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m.
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If
such items have not previously been contracted for, to contract on
behalf
of Owner for water, gas, electricity, extermination, telephone service
and
other services and commodities necessary for the operation and maintenance
of the Property; provided, however, that no single contract for any
such
item involving an expenditure or deposit in excess of $5,OOO.OO shall
be
made by Manager without the prior approval of
Owner.
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n.
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To
purchase on behalf of Owner all equipment, tools, materials, supplies
and
uniforms necessary for the maintenance and operation of the
Property.
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5.
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Costs
of Operation All
costs and expenses incurred by Manager in the Performance of Manager's
duties as set forth in Paragraph 4 above shall be considered costs
of
operation of the Property (herein called "Costs of Operation"), for
which
Manager shall be entitled to be fully reimbursed by Owner. Manager
may
submit to Owner monthly estimates of Costs of Operation for the Property
for the month next succeeding the month in which such estimates are
submitted; within five (5) days following Owner's receipt of such
estimates, Owner shall advance to Manager the amount of such estimates
for
application to the Costs of Operation for the month for which such
estimates are submitted. In the event such estimates and advances
made by
Owner pursuant hereto are lower than the actual Costs of Operation
for the
month in question, Owner shall reimburse Manager the amount of such
shortage promptly upon Manager's written request therefor accompanied
by
supporting documentation; if, on the other hand, the amount of such
estimates and advances made by Owner pursuant hereto are in excess
of the
actual Costs of Operation for the month in question, Owner, at Owner's
option, may elect to either:
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a)
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demand
that Manager refund such excess to Owner; or
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b)
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credit
such overage to the advances made pursuant to the next month's estimates
of Costs of Operation. All such shortages and overages shall be adjusted
on and as of the end of each calendar year during the period in which
this
Agreement is in force and effect.
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6.
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Compensation
of Manager.
As compensation for its providing of services hereunder, Manager
shall be
entitled to receive from Owner and Owner shall be obligated to pay
to
Manager a management fee equal to five percent (5%) per month of
the
Property's total monthly income which management fee shall be payable
to
Manager monthly during the term hereof. This management fee shall
be in
addition to the reimbursement of Costs of Operation for which Manager
is
entitled to be reimbursed, it being agreed that such reimbursement
of
Costs of Operation shall not be considered compensation to the Manager
hereunder. In the event Manager performs special services for Owner
not
expressly provided for in this Agreement, Manager shall be entitled
to
receive such additional compensation as may be mutually agreed upon
by
Manager and Owner. All rebates, discounts or commissions collected
by
Manager or credited to the Manager's use which relate to the purchasing
of
supplies or rendering of services for the Property shall be fully
disclosed to Owner and shall be fully credited against the Costs
of
Operation.
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Employees
of Manager.
It
is specifically agreed that all personnel employed in connection
with the
on-site operation of the Property shall be employees of Manager and
not of
Owner, and will be hired, paid, trained, supervised and discharged
by
Manager; although the salaries or wages of all such employees shall
be
considered Costs of Operation for which Manager shall be entitled
to be
reimbursed hereunder, Manager shall be directly responsible for the
servicing of payroll and all payroll withholding taxes and reports
in
connection with such employees.
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8.
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Termination
on Transfer.
Owner shall notify Manager at least thirty (3O) days prior to an
anticipated transfer of title to or an assignment or sublease of
any
leasehold rights pertaining to any property or properties comprising
a
part of the Property. Upon such transfer, this Agreement shall terminate
as to the particular property or properties made subject to such
transfer.
Upon such partial termination, all records in possession of Manager
pertaining to the operation of the properties so terminated shall
be
forthwith delivered to Owner, and all Costs of Operation and collections
pertaining to such transferred properties shall be settled between
Owner
and Manager on and as of the date of such transfer. Manager's right
to
compensation as to such transferred properties shall cease as of
the date
of such termination, but Manager shall be entitled to compensation
on a
prorated basis for services rendered prior to the date of such
termination.
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9.
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Termination
on Dissolution, Bankruptcy or Assignment for the Benefit of Creditors
of
the Manager
This Agreement shall terminate immediately upon the dissolution,
bankruptcy or assignment for the benefit of creditors of the
Manager.
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10.
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Relationship
of Parties and Indemnity
It
is understood and agreed that Manager is an independent contractor,
and is
not an employee, representative or agent for Owner for any purpose
whatsoever. This Agreement shall not constitute or be deemed to constitute
a joint venture or partnership agreement between Owner and Manager.
Manager agrees to indemnify, save, defend and hold Owner harmless
from and
against any and all loss, costs, damages, claims or demands for personal
injury, wrongful death or malpractice (to the extent that any insurance
coverage therefor is insufficient) which may be asserted by third
parties
against Owner at any time by reason of events occurring during the
term of
this Agreement and arising out of or resulting from any undertaking,
act
or neglect of Manager, its agents, employees or any person retained
by
Manager to assist it in the discharge of its duties and obligations
hereunder. In the event any litigation occurs with regard to such
claims,
Owner may, at its expense, retain counsel to participate in such
litigation. It is also understood and agreed that no settlement of
any
such claim shall be made without Owner's permission if Owner may
have any
responsibility for payment thereof.
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11.
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Use
of Property.
Manager shall not at any time use or permit the Property to be used
for
purposes other than a residential multifamily building without the
express
written permission of Owner.
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12.
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Possession
at Termination
Upon expiration or earlier full termination of the Agreement, Manager
shall peaceably vacate and surrender the Property to Owner, shall
cooperate fully with Owner in effecting an orderly transition of
the
business of the Property and shall surrender to Owner all keys, records,
contracts and all other indicia of possession and other records maintained
by Manager in connection with the operation of the
Property.
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13.
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Inspections.
Owner or its agents or representatives shall have the right at all
reasonable times to inspect the Property and all records pertaining
thereto.
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14.
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Notices
All notices required hereunder shall be in writing and shall be deemed
delivered upon delivery, if personally delivered, or if delivered
by mail,
when deposited in the United States certified mail, postage prepaid,
return receipt requested, properly addressed to the receiving party
at the
following addresses:
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Owner
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Manager:
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XXXX,
Inc. General Partner
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Univesco,
Inc.
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0000
Xxxxx Xxxxxx Xxxxxxx
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0000
Xxxxx Xxxxxx Xxxxxxx
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Xxxxx
000
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Xxxxx
000
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Xxxxx,
Xxxxx 00000
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Xxxxx,
Xxxxx 00000
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15.
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16.
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Parties
Bound.
This Agreement shall be binding upon and shall inure to the benefit
of the
parties hereto and their respective successors and
assigns.
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17.
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Legal
Construction.
In
the event any one or more of the provisions contained herein shall
for any
reason be held to be invalid, illegal, or unenforceable in any respect,
the invalidity, illegality or unenforceability shall not affect any
other
provision hereof and this Agreement shall be construed as if such
invalid,
illegal or unenforceable provision had never been contained
herein.
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18.
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Prior
Agreements.
This Agreement constitutes the sole and only agreement of the parties
hereto with respect to the subject matter hereof, and supersedes
any prior
understandings or written or oral agreement between the parties respecting
the within subject matter.
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19.
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Attorney's
Fees.
If
any action at law or in equity, including an action for declaratory
relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees from the other party, which fees may be set by the
court
in the trial of such action or may be enforced in a separate action
brought for that purpose, and which fees shall be in addition to
any other
relief which may be awarded.
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20.
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Time
of Essence
Time is of the essence in the performance of obligations set forth
in this
Agreement.
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21.
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Counterpart
Execution This
Agreement may be executed concurrently 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.
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22.
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Assignment.
Notwithstanding
anything to the contrary neither Manager nor Owner shall have the
right to
assign, in whole or in part, any of their respective rights, duties
and
obligations under this Agreement.
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23.
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Amendment.
This Agreement may not be modified, amended or altered except by
an
agreement in writing signed by Owner and
Manager.
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4
EXECUTED
to be
effective for all purposes as of the date first written
hereinabove.
Owner:
AFRT,
Inc. General Partner
0000
Xxxxx Xxxxxx Xxxxxxx
Xxxxx
000
Xxxxx,
Xxxxx 00000
By: Xxxx Xxxxx
____________________________________
Xxxx.
Xxxxx, President
By:
Univesco, Inc.
____________________________________
Xxxxx
Xxxxx, Secretary
Management
Agreement
by
and between
as
"Owner"
Univesco,
Inc. as "Manager"
Date:
October
20th ,
2004
