MANAGEMENT AGREEMENT
This Agreement is made this 1st day of November
1995, by and between Xxxxxxxxx'x Wharf
Baltimore, 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 located at 0000
Xxxx Xxxxxx, Xxxxxxxxx, XX, consisting of
the land, building, and other improvements
described as 128 units of residential
rental 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 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.
1.5 APARTMENT FOR ON-SITE STAFF
Owner shall provide a suitable
apartment(s) on the Premises, if deemed
appropriate by mutual consent of both
parties, for the use of an on-site manager
and/or a resident janitor and their
families, rent free, except that such
resident staff shall pay for heat and
utilities in the same manner as other
tenants. The specific apartment(s) shall
be the Owner's choice.
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
Baltimore L.P. Apartments 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 $135,000 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
$50,000 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, an administrative
charge and/or commission for subleasing.
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 the
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) in
accordance with the approved budget, 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)
4% 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 rents and other
income and charges from the normal
operation of the Premises, including, but
not limited to, rents, parking fees,
laundry income, forfeited security
deposits, pet 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. Gross
receipts shall NOT be deemed to include
the value of units provided to on-site
staff nor income arising out of the sale
of real property or settlement of fire or
other casualty losses and items of a
similar nature.
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 the
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 building and its been secured and are
current; that the building 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 building 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 structural
changes in any building, or to make any
other major alterations or additions in or
to any such building or to any equipment
to any such building, 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 Baltimore 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
Baltimore, 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
