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EXHIBIT 10.5
PROPERTY MANAGEMENT AGREEMENT
THIS PROPERTY MANAGEMENT AGREEMENT is made as of the 18th day of March,
1997, between IMAGINATIVE INVESTMENTS, INC. a Florida limited corporation and
its successors/assigns (herein "Owner"), and THE SOUTHEAST COMPANIES OF TAMPA
BAY, INC., a Florida corporation (herein "Manager").
WITNESSETH
In consideration of the mutual covenants herein contained, the Owner
and Manager hereby agree as follows:
1. Employment of Manager. Owner hereby employs Manager (as an
independent contractor and not as agent) to act as sole and exclusive Manager in
the management, leasing and operation of the property known as the United Bank
and Trust Center, 48,303 rentable square feet, MOL, being situated on 140,000
square feet of land, MOL, and addressed at 000 0xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx, 00000 (herein "Project") and the Manager accepts such employment on the
terms and conditions hereinafter set forth.
2. Term. This Agreement shall take effect April 1, 1997 and shall
continue in full force and effect for a term of one (1) year therefrom, ending
the last day of the twelfth (12th) full calendar month thereafter, and
self-renewing from year-to-year thereafter; provided, however, that the same
shall be subject to earlier termination as provided for herein.
3. Duties of Manager.
a. Manager hereby accepts such appointment for and in
consideration of the compensation hereinafter provided and agrees to devote its
time, attention, skill, experience and best efforts to the management, leasing,
operation and supervision of the Project. Such services to be performed by
Manager under this Agreement shall include the following:
(1) Prepare an annual operating budget within 45 days
of the end of each year, which will include (i) a breakdown of all operating
expenses, (ii) a rent roll in form approved by Owner which includes a list of
all rentable areas subject to leases and lists all currently vacant space, (iii)
review and updating of standard lease forms, (iv) review and recommendations of
all insurance policies.
(2) To make repairs and perform all maintenance
necessary or desirable with respect to the Project.
(3) To comply fully with all federal, state, local
and municipal laws, ordinances, rules, regulations and orders relative to the
use, repair, and maintenance of the Project and with all rules, regulations,
directives and orders of the local board of fire underwriters or similar bodies.
Manager agrees to notify Owner within twenty-four (24) hours of obtaining notice
of such violations.
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(4) To administer and supervise existing service
contracts; or make new contracts as necessary. Owner may direct Manager to make
payment on its behalf of all real estate taxes, ground lease or other property
rentals, mortgage interest and amortization, insurance premiums on insurance
which Owner may obtain for the Project and other similar costs as Owner may
direct.
(5) To purchase all supplies and equipment which may
be necessary in order to properly maintain and operate the Project, including
supplies and equipment to be used or consumed in connection with any of the
services furnished under any of the provisions of this Agreement. Repairs,
replacements, supplies or equipment costs which exceed monthly budgeted amounts
in accordance with Paragraph 3.a.(1) hereof shall first be approved by Owner.
(6) To pay all bills for work and supplies and
equipment ordered in connection with the maintenance and operations of the
Project, after ascertaining the correctness thereof. Any rebate or discount
obtained by Manager shall be deducted from the amount of any xxxx paid by
Manager or to be paid by Owner.
(7) To ask for, demand, collect, receive and receipt
for any and all rents and other charges which may at any time be or become due
to Owner or Manager from any tenant or other person in respect to the Project or
any part thereof.
(8) To administer leases.
(9) To remove any lien or encumbrance upon the
Project created as a result of performance or nonperformance by Manager of its
obligations hereunder, as promptly as possible consistent with law, and to keep
Owner fully and promptly advised as to all matters coming to the attention of
Manager which might cause a breach of this Agreement or of Owner's obligations
under any leases to others, to the extent Manager has knowledge of the contents
of such.
(10) To employ all persons necessary to manage,
supervise, maintain and operate the Project.
(11) To prepare and file all returns and other
documents required under the Federal Insurance Contributions Act and the Federal
Unemployment Tax Act, or any similar federal or state legislation, and all
withholding tax returns required for employees of Manager. Manager shall pay all
amounts required to be paid under the Federal Insurance Contributions Act and
the Federal Unemployment Tax Act, or any similar federal or state legislation.
(12) To prepare and submit to Owner on a quarterly
basis, and more frequently if required by any mortgagee of the Project, either
cash or accrual basis property management accounting statements (as directed by
Owner) consisting of actual revenues and expenses and as compared to the budgets
prepared in accordance with Paragraph 3.a(1) hereof.
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b. Any of the services to be performed under the Agreement may
be performed directly by employees of Manager or Manager may, in the exercise of
its sound good faith discretion, contract the same with third-party contractors,
for which the use of affiliates or otherwise related entities of Manager are
hereby specifically approved, provided the same provide such services at
competitive costs and prices. It is understood, however, that any such contracts
will be in the name of the Manager, which will be solely responsible for
administering and supervising such contracts.
Notwithstanding that Manager's authority in respect to any of the matters
covered herein is limited by the necessity of getting the consent or
authorization of Owner as required herein, Manager will, nevertheless, be
expected to initiate, by calling the same to the attention of Owner, and change
or improvements which it believes would, if adopted, result in the improved
general operation of the Project.
4. Additional Services. Manager, to the extent required of Owner under
the terms of any and all lease agreements with tenants, to the extent requested
by Owner or to the extent not otherwise provided by third-party contract as
referenced in Paragraph 3 hereof, will at competitive costs and prices for the
level of service being provided:
a. Furnish all cleaning, xxxxxx, security and janitorial
service in the Project;
b. Operate and maintain all of Owner's equipment and systems
in the Project including, but not limited to, elevators, plumbing, heating, air
conditioning and wiring;
c. Furnish routine maintenance and repair of the Project and
make alterations and decorations therein to which tenants are entitled under
their leases or which Owner may request or which are required in order to comply
with any orders or violations placed or filed against any part of the Project by
any federal, state or municipal authority having jurisdiction or to comply with
any order of any board of fire underwriters or similar body.
d. Furnish to tenants at tenant's expense, alteration,
decoration, maintenance and other services beyond those required by lease, at
appropriate prices.
5. Independent Contractor. Notwithstanding anything herein to the
contrary, it is the intention of the parties hereto that the Manager shall be an
independent contractor with regard to any and all acts and operations performed
and conducted by it under and pursuant to the terms hereof. In such capacity,
Manager shall be solely and directly responsible for its performance hereunder
including all management decisions made by it in the course of its performance
under this Agreement. Manager will not be treated as a employee of Owner with
respect to its services under this Agreement for federal tax purposes.
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6. Insurance.
a. Owner, at its cost and expense, agrees to take out and
maintain in effect comprehensive general public liability insurance, including
but not limited to bodily injury liability, property damage liability, personal
injury liability with respect to the Project, naming as insured parties the
Owner, Manager and if necessary, such other parties as Owner may direct. Said
insurance coverage shall be in primary amount of Two Million Dollars
($2,000,000) in respect of bodily injury or death to any number of persons in
any one occurrence, and in an equal amount for property damage. It is understood
and agreed, however, that Manager shall obtain and maintain such insurance as
will fully protect Manager from any and all claims under any Workers
Compensation laws, or other employer's liability laws. Pursuant to such, Manager
shall indemnify and hold Owner harmless against loss resulting from any injury
to or damage to the property or any employee of Manager due to the performance
or nonperformance by Manager of its obligations under this Agreement hereunder
to the extent such loss is not insured pursuant to this Paragraph.
b. Manager and Owner agree to provide each other with
respective certificates evidencing such required insurance coverage within
thirty (30) days after the commencement date under this Agreement and promptly
upon each renewal of such insurance. Manager further shall promptly notify Owner
of any fire or other serious damage or injury for reporting purposes pursuant to
such insurance.
(1) Notwithstanding anything to the contrary
contained herein, it is understood and agreed, however, that to the extent not
insured pursuant to the first paragraph of this Paragraph 7, Owner shall not be
under any obligations to provide Manager with insurance coverage for and/or
indemnify and save harmless Manager with respect to any damages, claims, costs,
penalties and suits occasioned by Manager's violation of laws or legal
requirements, bad faith and/or conduct constituting a breach of this Agreement.
(2) All policies carried by either Owner and Manager
in respect to the Project or its operation shall contain appropriate clauses
waiving the right of subrogation as against Owner and Manager.
Owner and Manager do hereby waive any claims that
either may have against the other for loss or damage resulting from perils
covered by standard forms of fire, extended coverage, special extended coverage
(all risk) and boiler and machinery insurance, to the extent that insurance
payments thereof are made, under such policies as shall be in effect from time
to time in the State of Florida, it being expressly understood that this waiver
is intended to extend to all such loss or damage whether or not the same is
caused by the fault or neglect of either Owner or Manager.
7. Compensation of Property Manager. As full compensation and
reimbursement for performing the services provided for herein, Owner agrees to
pay Manager:
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a. As a Management Fee:
A base monthly fee of $964.00 plus an amount equal to three
percent (3%) of the Gross Revenues of the Project to also be paid monthly and
based on collections. Gross Revenues of the Project as used herein shall mean
all rentals and other fees received by or credited to Owner, from any source
with respect to the Project, for each calendar year, including, but not limited
to the following:
(1) forfeited deposits of tenants;
(2) lease cancellation fees payable only as said fees
are collected by Owner;
(3) late charges and interest on rentals;
(4) increased rentals based upon a price index, sales
volume or other escalation provisions;
(5) rentals for, or reimbursement of, operating
expenses, including but not limited to real estate taxes;
(6) additional rentals based upon coverage,
percentage or other similar rental provisions;
(7) any other rental adjustments or consideration in
the nature of rental;
(8) rental value and business interruption insurance
proceeds received by Borrower; and
(9) parking revenues.
b. As reimbursement:
(1) An amount equal to the total cost of all other
obligations and expenses incurred by Manager in the performance of the terms of
this Agreement; and
(2) Routine advertising and legal fees in connection
with services performed under Paragraph 5 hereof.
(3) Manager's signage costs as first approved by
Owner.
Reimbursement shall not be made for matters involving violations of laws,
ordinances, orders, rules and/or regulations where failure to comply with the
same is a direct result of Manager's negligence.
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c. Manager will use its good faith efforts to limit the cost
to Owner of reimbursable expenditures described in Paragraph 8.c. above.
8. Recordkeeping.
a. Manager will keep or cause to be kept, at its own expense,
full and detailed accounts and records in accordance with accepted accounting
principles consistently applied and sufficient to enable the receipts and
disbursements with respect to the services rendered by Manager hereunder to be
ascertained and distinguished from any other receipts or disbursements of
Manager. The system for the keeping of such accounts and records shall be as
established by Manager and such accounts and records shall be open for audit and
inspection by Owner or by independent certified public accountants designated by
Owner, or any regulatory body or agency having jurisdiction, at all reasonable
times. In the event independent certified public accountants shall be designated
by Owner for such purpose at any time, or from time to time, the charges of such
accountants for services rendered by them shall be for the account of Owner and,
if paid by Manager shall be considered to be part of the costs to be reimbursed
to Manager hereunder.
b. Manager will render to Owner quarterly statements as to
receipts and disbursements incurred by Manager in rendering services under this
Agreement.
c. Such quarterly statements shall be rendered not later than
the thirtieth (30th) day of January, April, July and October of each year
throughout the entire period of this Agreement.
9. Notices
a. Except as herein otherwise specifically required, notices,
demands, requests and communications which may be sent or are required shall be
deemed to have been properly given, served, or sent:
(1) if intended for Manager, by mailing by certified or
registered mail, return receipt requested, with postage prepaid, addressed to
Manager at:
THE SOUTHEAST COMPANIES OF TAMPA BAY, INC.
c/o Xxxxx X. Xxxxxxx, Vice President
X.X. Xxx 000
000 Xxxxxx Xxxxxx X.
Xx. Xxxxxxxxxx, XX 00000-0000
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(2) if intended for Owner, by mailing a certified or
registered mail, return receipt requested, with postage prepaid, addressed to
Owner at:
IMAGINATIVE INVESTMENTS, INC.
Xxxx X. Xxxxxx, President
000 0xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
b. Either party may designate by notice aforesaid a new
address to which any notice, demand, request or communication may thereafter be
given or sent. Except as otherwise herein specifically required, each such
notice, demand, request or communication which shall be so mailed by certified
or registered mail, return receipt requested in the manner aforesaid shall be
deemed sufficiently given, served or sent for all purposes hereunder at the time
such notice, demand, request or communication shall be receipted for by the
other party.
10. Termination.
a. This Agreement shall continue in full force and effect
after the stated termination date as defined in Paragraph 2 from year to year
unless either party hereto shall serve written notice of cancellation at least
sixty (60) days prior to the stated termination date hereof personally or by
registered mail at the address hereinbefore mentioned, in which event this
Agreement shall terminate as of said termination date.
b. Anything herein to the contrary notwithstanding, in the
event (i) this Agreement is transferred by Owner due to foreclosure of Owner's
interest in the Project or a transfer in lieu thereof, or (ii) Owner transfers,
sells or otherwise assigns its interest in the Project to an unrelated,
non-controlled group or entity, either party hereto may terminate this Agreement
upon not less that fifteen (15) days notice served in the manner hereinbefore
set forth.
c. In the event a petition in bankruptcy is filed by or
against any general partner of the Owner, or Manager, or in the event that any
of party shall make an assignment for the benefit of creditors or take advantage
of any insolvency act, either party hereto may forthwith terminate this
Agreement upon not less than fifteen (15) days notice served in the manner
hereinbefore set forth.
d. In the event of a breach of the terms and provisions of
this Agreement by either party, the other party may terminate this Agreement
upon not less than fifteen (15) days written notice served in the manner
hereinbefore set forth. Unintentional errors and action taken in good faith or
upon information believed to be true and accurate, although later proven untrue
or inaccurate, by either party shall not constitute grounds for termination
pursuant to this Paragraph.
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e. Upon and after the termination of this Agreement in any of
the manners herein provided, Manager shall make a full accounting to Owner
(financial and otherwise) of its actions under this Agreement including a
breakdown of income and expenses for the Project through the date of termination
and turn over to Owner all monies held by Manager, as well as books, records and
other documentation maintained by Manager in accordance herewith.
11. Applicable Law: Implied Covenants. This Agreement shall be
interpreted in accordance with the laws of the State of Florida and no
presumption shall be deemed to exist in favor of or against either party as a
result of the negotiation and/or preparation of this Agreement; and no inference
or covenant shall be implied as against either party hereto, the full
contractual obligations and covenants of each party being herein fully set forth
and expressed.
12. Assignment. This Agreement shall be fully assignable and shall be
binding upon the parties, their heirs, legal representatives, successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WITNESSES: "Owner"
IMAGINATIVE INVESTMENTS, INC.
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By: Xxxx X. Xxxxxx
Its: President
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"Manager"
THE SOUTHWEST COMPANIES OF
TAMPA BAY, INC.
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-------------------------------- By: Xxxxx X. Xxxxxxx
Its: Vice President
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