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MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") made and entered into this 1st
day of ______, 199_, by and between __________________________, a(n) ___________
limited partnership ("Owner"), and LEXFORD PROPERTIES, INC. ("Manager") relating
to an apartment complex of similar name (the "Property").
W I T N E S S E T H:
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Owner desires to employ Manager in the management and operation of the
Property by turning over to Manager all control and discretion in the operation,
direction, management and supervision of the Property, and Manager desires to
assume such control and discretion upon the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants herein contained, Owner and Manager agree as follows:
ARTICLE I
DEFINITIONS
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The following terms shall have the following meanings when used in this
Agreement:
1.01. BUDGET. A composite of (i) an Operations Budget, which shall be an
estimate of revenues and expenditures for the operation of the Property during a
Fiscal Year, including a schedule of expected apartment rentals (excluding
security deposits) for the period in question and a schedule of expected special
repairs and maintenance projects, and (ii) a Capital Budget, which shall be an
estimate of capital replacements, substitutions of, and additions to, the
Property for a Fiscal Year.
1.02. DEPOSITORY. A national or state bank qualified to engage in the
banking or trust business designated by Manager and approved by Owner.
1.03. FEE. The MANAGEMENT FEE payable each month by Owner to Manager
hereunder shall be an amount equal to five percent (5%) of the Gross Receipts of
the Property; or a minimum sum of $N/A per month, effective N/A, whichever is
greater. The BOOKKEEPING FEE for general bookkeeping, recording of receipts and
disbursements, check writing and bank account reconciliations, preparation of
monthly statements of cash receipts and disbursements and other required
bookkeeping functions shall be Three Hundred Fifty Dollars ($350.00) per month.
Manager may, at its option, from time to time (but not more often than annually)
adjust the Bookkeeping Fee in order to reflect any increase in the cost of
living index from the date of this agreement through the date of such
adjustment. Any such adjustment shall be effective on a prospective basis, only.
The PERFORMANCE FEE shall be Two Dollars ($2.00) per apartment for each month in
which the Manager collects not less than ninety-six percent (96%) of the
potential gross revenue by the end of such month. Model apartments, the on-site
office and the discounted value of Property Employees apartments, shall be
considered included in the collected gross revenue at their current market value
for purposes of determining the percentage collected. The Owner agrees that the
above payments due to Manager can and shall be deducted from collected rental
receipts.
1.04. FISCAL YEAR. The year beginning January 1st and ending December 31st,
which is the fiscal year established by Owner for the Property.
1.05. GROSS RECEIPTS. The entire amount of all receipts, determined on a
cash basis, from tenant rentals collected pursuant to tenant leases for each
month during the term hereof, provided, however, that there shall be excluded
from tenant rentals any tenant security deposits received from tenants.
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1.06. PROPERTY EMPLOYEES. Those persons employed by Manager, and/or by an
affiliate of Manager, as a management staff (i.e. Manager, Assistant Managers,
Leasing Agents, Maintenance Personnel, and other personnel necessary to be
employed in order to maintain and operate the property).
1.07. TERM. The term of this Agreement shall commence on the date hereof
and shall, subject to the provisions hereof, expire five (5) years from the date
hereof (the "Original Term"); provided, however, that Owner may terminate this
Agreement at any time pursuant to Section 7.05. Such term shall automatically be
extended for additional terms of one (1) year commencing on the expiration of
the Original Term (each additional term hereinafter referred to as an
"Additional Term"), subject to Section 7.05, unless Owner has given notice to
Manager thirty (30) days prior to such commencement thereof that there shall be
no Additional Term.
ARTICLE II
DUTIES AND RIGHTS OF MANAGER
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2.01. APPOINTMENT OF MANAGER. During the term of this Agreement, Manager
agrees, for and in consideration of the compensation hereinafter provided, and
Owner hereby grants to Manager the sole and exclusive right, to supervise and
direct the management and operation of the Property. Everything performed by
Manager under this Agreement shall be done as agent of Owner.
2.02. GENERAL OPERATION. Manager shall operate the Property in the same
manner as is customary and usual in the operation of comparable facilities, and
shall provide such services as are customarily provided by operators of
apartment properties of comparable class and standing consistent with the
Property's facilities. In addition to the other obligations of Manager set forth
herein, Manager shall render the following services and perform the following
duties for Owner in a faithful, diligent and efficient manner: (a) coordinate
the plans of tenants for moving their personal effects into the Property or out
of it, with a view toward scheduling such movements so that there shall be a
minimum of inconvenience to other tenants; (b) maintain business like relations
with tenants whose service requests shall be received, considered and recorded
in systematic fashion in order to show the action taken with respect to each;
(c) use its best efforts to (i) collect all monthly rents due from tenants and
rent from users or lessees of other non-dwelling facilities on the Property, if
any; (ii) request, demand, collect, receive and receipt for any and all charges
or rents which become due to Owner, and (iii) take such legal action, at Owner's
expense, as may be necessary or desirable to evict tenants delinquent in payment
of monthly rental, other charges (security deposits, late charges, etc.); (d)
use its best efforts at all times during the term of this Agreement to operate
and maintain the Property according to the highest standards achievable
consistent with the operation of comparable quality units; (e) advertise when
necessary, at Owner's expense, the availability for rental for the Property
units and display "for rent" or other similar signs upon the Property, it being
understood that Manager may install one or more signs on or about the Property
stating that same is under management of Manager and may use in a tasteful
manner Manager's name and logo in any display advertising which may be done on
behalf of the Property; and (f) sign, renew and cancel tenant leases for the
Property, in compliance with standards established by Owner to bona fide
individuals, for monthly rentals established from time to time by Owner, based
on Manager's recommendations; provided, however, that Property Employees, as a
condition of employment, may occupy apartment units on a month-to-month basis
with or without an executed tenant lease.
2.03. BUDGET.
(a) Manager shall submit for Owner's approval no later than forty-five (45)
days prior to the beginning of each successive Fiscal Year the Budget for the
ensuing Fiscal Year. The Budget shall be approved by Owner fifteen (15) days
after receipt, and in the event Owner fails to approve or disapprove the Budget
within such period, the Budget shall be deemed to be approved. In the event
Owner disapproves the Budget, Owner and Manager shall jointly prepare the Budget
as soon as may be reasonably practicable. Until a new Budget is approved,
Manager shall operate on the Budget approved for the prior Fiscal Year, with the
exception of expenses for personnel which must be increased based on
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existing competitive conditions and expenses relating to taxes, insurance and
utilities. The Budget shall reflect the schedule of monthly rents proposed for
the new Fiscal Year; it shall also constitute a major control under which
Manager shall operate, and there shall be no substantial variances therefrom
except for the variations which have complied with Section 2.06(a).
Consequently, no expenses may be incurred or commitments made by Manager in
connection with the maintenance and operation of the Property which exceed the
amounts allocated to the total expenses for the period in question in the
approved Budget by more than ten percent (10%) without the prior written consent
of Owner; provided, however, that the foregoing limitation with respect to
incurring any expense not covered by the Budget shall not apply to expenses
relating to taxes, insurance or utilities. Manager makes no guaranty, warranty,
or representation whatsoever in connection with the accuracy of any Budget, and
Owner agrees that they are intended as good faith estimates only.
(b) In the event there shall be a substantial variance between the results
of operations for any month and the estimated results of operations for such
month as set forth in the Budget, Manager shall, upon request, furnish to Owner
within twenty (20) days after the expiration of such month, a written
explanation as to why the variance occurred.
2.04. MANAGER AND OTHER PERSONNEL. Manager, and/or an affiliate of Manager,
shall employ, discharge, and supervise all on-site employees or contractors
required for the efficient operation and maintenance of the Property. All
on-site personnel, except independent contractors and employees of independent
contractors, shall be employees of Manager, and/or an affiliate of Manager.
Manager, and/or an affiliate of Manager, shall pay all salaries of such on-site
employees. Owner shall reimburse Manager, and/or an affiliate of Manager,
monthly for the total aggregate compensation, including salary and fringe
benefits, payable with respect to the Property employees and any temporary
employees. The term "fringe benefits" as used herein, shall mean and include the
employer's contribution to a defined contribution plan and of FICA, unemployment
compensation and other employment taxes, worker's compensation, group life and
accident and health insurance premiums and disability.
If requested by Manager, Owner shall provide an apartment to a Property
Employee on a discounted basis.
2.05. CONTRACTS AND SUPPLIES.
(a) Manager shall, in the name of, and on behalf of, Owner and at Owner's
expense, consummate arrangements with concessionaires, licensees, tenants or
other intended users of the facilities of the Property, shall enter into
contracts for the furnishing to the Property of electricity, gas, water,
telephone, cleaning, vermin extermination, furnace and air-conditioning
maintenance, pest control, and any other utilities, services and concessions
which are provided in connection with the maintenance and operation of an
apartment property in accordance with standards comparable to those prevailing
in other apartment properties, and shall place purchase orders for such
equipment, tools, appliances, materials and supplies as are necessary to
properly maintain the Property.
(b) Notwithstanding subsection (a), Manager is expressly authorized in
connection with the management of the Property to acquire goods from, or utilize
services of, firms and persons, who contract with Manager through various
vendor, marketing and licensing agreements through the Lexford Preferred Vendor
Program and to receive reasonable commission income therefrom, provided that the
terms and conditions of such dealings are as favorable as could be reasonably
obtained from third parties offering similar goods and services of similar
quality and reliability. Manager shall disclose to Owner all financial
information relative to such agreements pursuant to Article V.
2.06. ALTERATIONS, REPAIRS AND MAINTENANCE.
(a) Manager shall make or install, or cause to be made and installed, or do
or cause to be done at Owner's expense and in the name of Owner, all necessary
or desirable repairs, interior and exterior cleaning, painting and decorating,
plumbing, alterations, replacements, improvements and other normal maintenance
and repair work on and to the Property as are customarily made by Manager in the
operation of apartment properties; provided, however, that no unbudgeted
expenditure in excess of $1,000 per item or a total of $5,000 annually may be
made for such purposes without the prior approval of Owner, unless emergency
repairs involving manifest danger to life or property are immediately necessary
for the preservation of the safety of the Property, or for the safety of the
tenants, or are required
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to avoid the suspension of any necessary service to the Property, or are
required to comply with local codes or laws in which event such expenditures may
be made by Manager without the prior approval of Owner and irrespective of the
cost limitations imposed by this Section 2.06.
(b) In accordance with the terms of the Budget or upon written demand
and/or approval (except in the case of emergency) of Owner, Manager shall, at
Owner's expense, from time to time during the term hereof, make all required
capital replacements or repairs to the Property. Any extraordinary supervisory
cost of Manager's or an affiliate of Manager's employees shall be paid for by
Owner pursuant to Section 3.03. In regard to sums necessary to cover costs of
such capital replacements or repairs, Manager shall first use any excess funds
held pursuant to Section 4.05 and then from funds furnished by Owner.
2.07. LICENSES AND PERMITS. Manager shall apply for, obtain and maintain,
in the name and at the expense of, Owner, all licenses and permits (including
deposits and bonds) required of Owner or Manager in connection with the
management and operation of the Property. Owner agrees to execute and deliver
any and all applications and other documents and to otherwise cooperate to the
fullest extent with Manager in applying for, obtaining and maintaining such
licenses and permits.
2.08. COMPLIANCE WITH LAWS. Manager, at Owner's expense, shall use its best
efforts to cause all such acts and things to be done in and about the Property
as Owner and/or Manager shall deem necessary, and Owner covenants throughout the
term of this Agreement, at its expense, to comply with all laws, regulations and
requirements of any federal, state or municipal government, having jurisdiction
respecting the use or manner of use of the Property or the maintenance or
operation thereof.
2.09. LEGAL PROCEEDINGS. Manager shall institute, in its own name or in the
name of Owner, but in any event at the expense of Owner, any and all legal
actions or proceedings which Manager deems reasonable to collect charges, rent
or other income from the Property, or to dispossess tenants or other persons in
possession, or to cancel or terminate any lease, license, or concession
agreement for the breach thereof, or default thereunder, by the tenant, licensee
or concessionaire.
2.10. DEBTS OF OWNER. In the performance of its duties as Manager, Manager
shall act solely as the agent of Owner. All debts and liabilities to third
persons incurred by Manager in the course of its operation and management of the
Property, shall be the debts and liabilities of Owner only, and Manager shall
not be liable for any such debts or liabilities, except to the extent Manager
has exceeded its authority hereunder.
ARTICLE III
FEES
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3.01. PAYMENT OF FEE. Owner shall pay to Manager, during the term hereof,
the Management Fee, Bookkeeping Fee and Performance Fee for the current month on
or before the last day of such month.
3.02. PLACE OF PAYMENT. All sums payable by Owner to Manager hereunder
shall be payable to Manager at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxx
00000-0000, unless Manager shall, from time to time, specify a different address
in writing.
3.03. COMPENSATION FOR ADDITIONAL SERVICES. In the event that Owner
requests Manager to perform any services relating to (i) the restoration of the
Property following fire or other damage or destruction, (ii) any major capital
improvements program, or (iii) leasing activities for the Property, then Manager
shall undertake such services for such fees as may be agreed upon by the
parties.
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3.04. COMPUTER IMPLEMENTATION. Owner shall pay to Manager, at the time of
conversion from the manual system to the computerized system, a fee of $500.00
for set up and training on the computer system, if the conversion has not been
previously accomplished. Manager shall loan Property the necessary software, at
its own expense, as long as this Agreement is in effect. Hardware will be
furnished at Owner's expense and will remain the possession of the Property.
Annual maintenance contracts for the computer software and hardware will be at
Owner's expense.
ARTICLE IV
PROCEDURE FOR HANDLING RECEIPTS & OPERATING CAPITAL
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4.01. BANK DEPOSITS. All monies received by Manager for, or on behalf of,
Owner shall be deposited by Manager with the Depository. Manager shall maintain
accounts for such funds consistent with the system of accounting of the
Property. All funds on deposit shall be and shall remain under the sole and
exclusive control of Manager, subject to the provisions hereof. All monies of
Owner held by Manager pursuant to the terms hereof shall be held by Manager in
trust for the benefit of Owner to be held and disbursed as herein provided.
4.02. SECURITY DEPOSIT ACCOUNT. All tenant security deposits shall be
deposited in the Operating Account and shall be disbursed in accordance with the
applicable lease agreements pursuant to which such deposits have been made. In
the event that applicable law requires that tenant security deposits be held in
a separate account, such account shall be established by Manager as approved by
Owner.
4.03. DISBURSEMENT OF DEPOSITS. Manager shall disburse and pay all funds on
deposit on behalf of, and in the name of, Owner in such amounts and at such
times as the same are required in connection with the ownership, maintenance and
operation of the Property on account of all taxes, assessments and charges of
every kind imposed by any governmental authority having jurisdiction over the
Property, and all costs and expenses of maintaining, operating, and supervising
the operation of the Property, including, but not limited to, salaries, fringe
benefits and expenses of the Property Employees, insurance premiums, debt
services, capital expenditures, legal and accounting fees and the cost and
expense of utilities, services and concessions. Owner agrees to reimburse
Manager for any costs of Manager's advertising staff that are allocable to the
placement and/or creation of advertising for the Property, subject to Owner's
approval, which will not be unreasonably withheld. Manager shall properly
utilize all escrows and reserves established for their intended purposes and not
use operating funds in lieu thereof other than as an advance to be promptly
reimbursed.
4.04. WORKING CAPITAL. In addition to the funds derived from the operation
of the Property, Owner shall furnish and maintain in the operating accounts in
such bank or banks such other funds as may be necessary to discharge financial
commitments required to efficiently operate the Property, to meet all payrolls
and satisfy, before delinquency, all accounts payable. Manager shall have no
responsibility or obligation with respect to the furnishing of such funds.
4.05. EXCESS FUNDS.
(a) Any excess operating funds shall be transferred at the written request
of Owner to a bank account opened and maintained solely by Owner, provided that
Manager shall not be required to make any such transfer if the transfer would
reduce the balance of operating funds below those funds reasonably required to
pay ongoing or anticipated operating expenses for one month; provided that
Manager may maintain sufficient reserves to pay, when due, non- monthly
recurring expenses such as real estate taxes and insurance premiums.
(b) Unless directed to transfer excess operating funds by Owner pursuant to
subparagraph (a) above, Manager shall use its best efforts to keep any excess
operating funds, including security deposits, in an interest-bearing account.
All interest and income earned on deposits and investments shall constitute a
part of Gross Receipts.
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4.06. AUTHORIZED SIGNATORIES. Any persons from time-to-time designated by
Manager shall be authorized signatories on all bank accounts established by
Manager hereunder and shall have authority to make disbursements from such
accounts. Funds may be withdrawn from all bank accounts established by Manager
in accordance with this Article IV, only upon the signature of two individuals
who have been granted that authority by Manager and funds may not be withdrawn
from such accounts by Owner unless Manager is in default hereunder. All persons
who are authorized signatories or who in any way handle funds for the Property
shall be bonded in the minimum amount of $500,000. Any expense relating to such
bond for on-site employees shall be borne by Owner and for off-site employees,
by Manager.
ARTICLE V
ACCOUNTING
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5.01. BOOKS AND RECORDS. Manager shall keep, on an accrual basis, on behalf
of Owner, or shall supervise and direct the keeping of a comprehensive system of
office records, books and accounts pertaining to the Property. Such records
shall be subject to examination at the office where they are maintained by Owner
or its authorized agents, attorneys and accountants at all reasonable hours.
5.02. PERIODIC STATEMENTS AND AUDITS.
(a) On or before fifteen (15) days following the end of each calendar
month, Manager shall deliver, or cause to be delivered, to Owner (i) an income
and expense statement showing the results of operation of the Property for the
preceding calendar month and the Fiscal year to date; (ii) a comparison of
income and expenses to the Budget; and (iii) cash balances for savings and
operating accounts as of the last day of such month. Manager shall, at its
option, (i) preserve all invoices for a period of four (4) years or (ii) at the
expiration of each Fiscal Year, deliver all invoices to Owner. Such statements
and computations shall be prepared from the books of account of the Property.
(b) Within forty-five (45) days after the end of such Fiscal Year, Manager
will also deliver, or cause to be delivered, to Owner, an income and expense
statement as of Fiscal Year end, and the results of operation of the Property
during the preceding Fiscal Year.
ARTICLE VI
GENERAL COVENANTS OF OWNER AND MANAGER
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6.01. OPERATING EXPENSES. Owner shall be solely liable for the costs and
expenses of maintaining and operating the Property, and shall pay, or Manager
shall pay on Owner's behalf from Property funds, all such costs and expenses,
including, without limitation the salaries of all Property Employees.
6.02. OWNER'S RIGHT OF INSPECTION AND REVIEW. Owner and its accountants,
attorneys and agents shall have the right to enter upon any part of the Property
at all reasonable times during the term of this Agreement for the purpose of
examining or inspecting the Property or examining or making extracts of books
and records of the Property, but any inspection shall be done with as little
disruption to the business of the Property as possible. Books and records of the
Property shall be kept, beginning the date hereof, at the Property or at the
location where any central accounting and bookkeeping services are performed by
Manager but at all times shall be the property of Owner.
6.03. HOLD HARMLESS. Except for the grossly negligent acts or omissions of
Manager and/or any employee or agent of Manager, and/or an affiliate of Manager,
Owner agrees to hold and save Manager or an affiliate of Manager free and
harmless for any error of judgment and from any and all claims for damage for
bodily injury and for damage to, or destruction of, property arising from any
cause either in and about the Property or elsewhere when Manager is carrying out
the provisions of this Agreement or acting under the express or implied
directions of Owner, including the
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loss of use of such property following and resulting from such damage or
destruction. Owner's indemnification of Manager as provided herein shall survive
the expiration or earlier termination of this Agreement.
6.04. COVENANTS CONCERNING PAYMENT OF OPERATING EXPENSES. Owner covenants
to pay all sums for operating expenses in excess of Gross Receipts required to
operate the Property upon written notice and demand from Manager within thirty
(30) days after receipt of written notice. Owner further recognizes that the
Property may be operated in conjunction with other phases and costs may be
allocated or shared between such phases on a more efficient and less expensive
method of operation. In such regard, Owner consents to the equitable allocation
of costs and/or the sharing of any expenses in an effort to save costs and
operate the Property in a more efficient manner.
ARTICLE VII
DEFAULTS AND TERMINATION RIGHTS
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7.01. DEFAULT BY MANAGER. Manager shall be deemed to be in default
hereunder in the event Manager shall materially fail to keep, observe or perform
any material covenant, agreement, term or provision of this Agreement to be
kept, observed or performed by Manager, and such default shall continue for a
period of thirty (30) days after notice thereof by Owner to Manager, or if such
default cannot be cured within thirty (30) days, then such additional period as
shall be reasonable, provided Manager is capable of curing same and has
proceeded to cure such default.
7.02. REMEDIES OF OWNER. Upon the occurrence of an event of default by
Manager as specified in Section 7.01 hereof, Owner shall be entitled to
terminate this Agreement, and upon any such termination, Owner shall have the
right to pursue any remedy it may have at law or in equity, it being expressly
understood that although Owner shall have no further obligation to pay any Fee
due hereunder, Manager shall remain liable for any losses suffered as a result
of Manager's default and the resulting termination of this Agreement. Upon such
termination, Manager shall deliver to Owner any funds, books and records of
Owner then in the possession or control of Manager.
7.03. DEFAULTS BY OWNER. Owner shall be deemed to be in default hereunder
in the event Owner shall fail to keep, observe or perform any material covenant,
agreement, term or provision of this Agreement to be kept, observed or performed
by Owner, and such default shall continue for a period of thirty (30) days after
notice thereof by Manager to Owner, or if such default cannot be cured within
thirty (30) days, then such additional period as shall be reasonable, provided
that Owner is capable of curing same and has proceeded to cure such default.
7.04. REMEDIES OF MANAGER. Upon the occurrence of an event of default by
Owner as specified in Section 7.03 hereof, Manager shall be entitled to
terminate this Agreement, and upon any such termination by Manager pursuant to
this Section 7.04, Manager shall have the right to pursue any remedy it may have
at law or in equity, except that Owner shall continue to be obligated to pay and
perform all of its obligations which have accrued as of the date of termination
and provided further that the Fee payable under Section 3.01 shall continue to
be paid through the date of termination.
7.05. TERMINATION WITHOUT CAUSE. Notwithstanding any provision of this
Agreement to the contrary, Manager may terminate this Agreement at any time
without liability therefor by giving thirty (30) days written notice thereof to
Owner. Notwithstanding any provision of this Agreement to the contrary, Owner
may terminate this Agreement without cause, prior to the expiration of its
stated term, only upon payment to Manager of the damages incurred by Manager as
a consequence of such premature termination. The parties acknowledge that the
actual damages incurred by Manager as a consequence of a termination by Owner
without cause or a termination by Manager upon the occurrence of an event of
default hereunder by Owner would be difficult or impossible to calculate with
precision, and, therefore, the parties stipulate and agree that such damages
shall be measured by (a) multiplying the compensation payable to Manager for the
first full calendar month under the Original Term of this Agreement by sixty
(60) (or in the case of any Additional Term, by twelve (12)) and (b) reducing
the resulting amount (but not below zero) by the amount
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of all compensation actually paid to Manager pursuant to this Agreement since
the commencement of such term. The parties intend the foregoing calculation to
constitute a measure of liquidated damages, and not a penalty.
7.06. EXPIRATION OF TERM. Upon the expiration of the Original Term or any
Additional Term hereof pursuant to Section 1.07 hereof, unless sooner terminated
pursuant to Section 7.03, 7.05, 9.09 or 9.12, Manager shall deliver to Owner all
funds, including tenant security deposits, books and records of Owner then in
possession or control of Manager, save and except such sums as are then due and
owing to Manager hereunder.
ARTICLE VIII
INSURANCE
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8.01. OWNER'S INSURANCE COVERAGE. Manager shall cause to be procured and
maintained, to the extent requested by Owner, insurance coverage with regard to
the Property. Manager shall promptly investigate and make a full written report
as to all accidents or claims for damage relating to the ownership, operating
and maintenance of the Property, including any damage or destruction to the
Property and the estimated cost of repair, and shall cooperate and make any and
all reports required by any insurance company in connection therewith. All
general public liability and other liability policies carried by or for Owner
shall name Owner and Manager as co-insureds.
8.02. MANAGER'S INSURANCE COVERAGE. Pursuant to the provisions of Section
4.03, Manager shall provide and maintain, so long as this Agreement is in force,
worker's compensation, or similar insurance coverage, in full compliance with
all applicable state and federal laws and regulations covering all employees of
Manager, and/or an affiliate of Manager, performing work with respect to the
Property operations.
8.03. SUBROGATION AND INDEMNITY OR DEDUCTIBLE PROVISIONS.
(a) Any insurance which is procured and maintained which in any way is
related to the Property or the authorized activities connected therewith, is for
the sole benefit of the party securing such insurance and others named as
insureds and Manager and Owner hereby release the other from all rights of
recovery under or through subrogation or otherwise for any loss or damage to the
extent recovery is made from insurance. Any insurance which is procured and
maintained by Manager insuring the interest and property of Owner and others may
contain indemnity or deductible provisions and the cost of such provisions shall
be borne by the Owner.
(b) Owner and Manager hereby waive against the other any and all claims and
demands of whatsoever nature for damages, loss or injury to the other's property
in, upon or about the Property, except for claims and demands arising out of the
gross negligence of willful misconduct of Owner, Manager, Manager's affiliate,
or either of their respective agents, employees, officers or contractors.
(c) Owner shall indemnify and hold harmless Manager and Manager's agents,
officers, employees, and employees of Manager affiliates, from any and all
losses, costs, damage or expenses resulting or arising from the effecting and
maintaining, or the failure to procure and maintain, any insurance coverage
other than that specifically required by Owner, in writing, or as set forth
herein to be maintained by Manager.
ARTICLE IX
MISCELLANEOUS PROVISIONS
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9.01. GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Ohio regardless of where
the Property is located.
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9.02. NOTICES. Owner shall designate one person as Owner's representative
in all dealings with Manager, who shall, until further notice, be the person
whose name is indicated beneath Owner's address set forth on the signature page
hereof. Any notice or communication hereunder must be in writing, and may be
given by registered or certified mail, and if given by registered or certified
mail, same shall be deemed to have been given and received when a registered or
certified letter containing such notice, properly addressed, with postage
prepaid, is deposited in the United States mail; and if given otherwise than by
registered mail, it shall be deemed to have been given when delivered to and
received by the party to whom it is addressed. Such notices or communications
shall be given to the parties hereto at the addresses set forth opposite the
names of the respective parties on the signature page hereof. Any party hereto
may, at any time, by giving ten (10) days written notice to the other party
hereto, designate any other address in substitution of the foregoing address to
which such notice or communication shall be given.
9.03. SEVERABILITY. If any term, covenant or condition of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or such other
documents, or the application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term, covenant or condition of this
Agreement or such other documents shall be valid and shall be enforced to the
fullest extent permitted by law.
9.04. NO JOINT VENTURE OR PARTNERSHIP. Owner and Manager hereby agree that
nothing contained herein or in any document executed in connection herewith
shall be construed as making Manager and Owner joint venturers or partners. In
no event shall Manager have any obligation or liability whatsoever with respect
to any debts, obligations or liabilities of Owner.
9.05. MODIFICATION/TERMINATION. This Agreement terminates any and all prior
management agreements between Owner and Manager relating to the Property, and
any amendment, modification, termination or release hereof may be effected only
by a written instrument executed by Manager and Owner.
9.06. ATTORNEYS' FEES. Should either party employ an attorney or attorneys
to enforce any of the provisions hereof or to protect its interest in any manner
arising under this Agreement, or to recover damages for the breach of this
Agreement, the non-prevailing party in any action (the finality of which is not
legally contested) agrees to pay to the prevailing party all reasonable costs,
damages and expenses, including attorneys' fees, expended or incurred in
connection therewith.
9.07. TOTAL AGREEMENT. This Agreement is a total and complete integration
of any and all undertakings existing between Manager and Owner and supersedes
any prior oral or written agreements, promises or representations between them.
9.08. APPROVALS AND CONSENTS. If any provision hereof requires the approval
or consent of Owner or Manager to any act or omission, such approval or consent
shall not be unreasonably withheld or delayed.
9.09. CASUALTY. In the event that the Property, or any portion thereof, is
substantially or totally damaged or destroyed by fire, tornado, windstorm, floor
or other casualty during the term of this Agreement, Manager or Owner may
terminate this Agreement upon giving the other party written notice of
termination on or before the date which is thirty (30) days after the date of
such casualty. In the event of termination pursuant to this Section 9.09,
neither party hereto shall have any further liability hereunder.
9.10. COMPETITIVE PROPERTIES. Manager may, individually or with others,
engage or possess an interest in any other properties and ventures of every
nature and description, including but not limited to, the ownership, financing,
leasing, operation, management, brokerage, development and sale of real property
and apartment properties other than the Property, whether or not such other
ventures or properties are competitive with the Property, and Owner shall not
have any right to the income or profits derived therefrom.
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9.11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their permitted successors
and assigns. Either Manager or Owner may assign this Agreement upon obtaining
the other party's prior written consent; provided, however, that Manager shall
be permitted to collaterally assign this Agreement to its lender.
9.12. SALE OF THE PROPERTY. In the event the Property is sold, conveyed or
transferred during the term hereof, Owner may assign this Agreement to the
purchaser of the Property, subject to obtaining Manager's prior written consent.
In the event of any termination of this Agreement by Owner as a result of a bona
fide sale of the Property without the prior written consent of Manager, Owner
shall pay to Manager a termination fee equal to the amount due pursuant to
Section 7.05 to the extent that, as a result of the payment of such fee,
distributions to limited partners of Owner are not thereby reduced.
9.13 DUPLICATE ORIGINALS; COUNTERPARTS. This Agreement may be executed in
any number of duplicate originals and each duplicate original shall be deemed to
be an original. This Agreement may be executed in several counterparts, each of
which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Management
Agreement as of the day and year first above written.
ADDRESS: OWNER:
0000 Xxxxxxxxx Xxxxxxx ________________________________
Xxxxxxxxxxxx, Xxxx 00000
By: ________________________________
ATTN: Xxxx X. Xxxxx, Vice President Managing General Partner
By: ________________________________
Xxxx X. Xxxxx, Vice President
ADDRESS: MANAGER:
0000 Xxxxxxxx Xxxxxxx
Xxxxx 000 BY: LEXFORD PROPERTIES, INC.
Xxxxxx, XX 00000
ATTN: Xxx Xxxxxx, President BY: ________________________________
Xxx Xxxxxx, President
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