EXHIBIT 10.2
PARKING OPERATION MANAGEMENT AGREEMENT
THIS PARKING OPERATION MANAGEMENT AGREEMENT (this "Agreement") is
entered into as of the 1st day of January 1998, by and between the persons
identified as "Owner" on the signature page to this Agreement ("Owner"), and
GARAGE MANAGEMENT, INC., a Delaware corporation ("Contractor").
In consideration of the covenants herein contained, Owner and
Contractor hereby agree as follows:
1. Scope of Engagement. Owner hereby engages Contractor to provide
professional parking management of the parking garages and/or areas at the
premises described on Exhibit A to this Agreement (the "Managed Premises").
2. Term. The term of this Agreement shall begin on the date hereof and,
unless sooner terminated as herein provided, shall end on that date which is
thirty (30) days following written notice of termination given by either Owner
or Contractor to the other. This Agreement may be terminated with respect to
less than all of the properties comprising the Managed Premises.
3. Independent Contractor. Contractor shall perform all of the services
as an independent contractor and not as an agent of Owner. Owner shall reserve
the right to instruct Contractor in writing through Contractor's agent or
supervisor regarding the extent of the services and the results to be
accomplished thereby; provided, however, Contractor shall have sole control,
supervision, direction, and responsibility over its employees and the manner of
providing the services. Except as set forth in this Agreement, Contractor shall
have no authority to take any action on behalf of Owner without the express
written consent of Owner.
4. Operation of the Managed Premises. For its operation of the Managed
Premises, Contractor agrees to the following:
(a) The Managed Premises are primarily for the convenient use and
benefit of tenants and guests of the adjacent building(s) and
will at all times be available to building tenants and guests
(during the hours of operation) subject to Owner's right to
designate special usage from time to time.
(b) The Managed Premises will be operated in a manner consistent
with that of first-class garages and/or areas in the area in
which the Managed Premises are located. Accordingly,
Contractor will staff the operation with good, experienced,
professional
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management. Contractor will operate the Managed Premises
efficiently and properly through proper utilization of space,
manpower and direction.
(c) The Managed Premises will be open for parking as directed by
Owner.
(d) The Managed Premises will be maintained in a neat and clean
condition, and will comply with all city, state and federal
laws, rules or regulations, including, without limitation, any
regulations or guidelines adopted for operation of the Managed
Premises by Owner.
(e) Contractor will issue permits to only those tenants designated
by Owner and collect parking fees from those tenants in a
manner directed by and acceptable to Owner.
(f) Contractor will make recommendations, subject to Owner's
approval, for operation of the Managed Premises including a
system of tags, tickets or other methods best designed to
indicate the number of vehicles using the Managed Premises and
recommend parking rates for the Managed Premises.
(g) All rates will be subject to the prior approval of Owner.
(h) No signs will be erected in or about the Managed Premises
without prior approval of Owner.
(i) Contractor shall purchase on behalf of Owner all federal,
state, and local licenses required by law to be obtained for
the operation of the Managed Premises.
(j) Contractor shall supervise the proper and efficient parking in
the Managed Premises of the cars of members of the general
public; collect parking fees from such transient parkers in
accordance with rates and policies as established by Owner;
issue, collect and keep safe all parking tickets received from
such transient parkers; and prepare and maintain accurate
reports and records on a daily basis of all such transient
parking operations. In this connection, Contractor
acknowledges that the primary intent for use of the Managed
Premises is to serve employees, patrons, and visitors of the
buildings.
(k) Contractor shall supervise and control continuous daily
policing of the Managed Premises and equipment; establish
controls to prevent vandalism, theft, arson, damage to parked
cars, and to the Managed Premises and equipment; maintain the
Managed Premises as required to prevent unreasonable
accumulation of debris, dust, oil, dirt, slicks, and loss of
security.
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(l) Prior to September 1st of each year, Contractor will provide
Owner a budget for the ensuing year in a form reasonably
satisfactory to Owner.
(m) Contractor shall comply with all applicable city, county,
state, and federal laws and regulations and obtain all
necessary licenses, bonds and permits applicable for the
Managed Premises.
5. Costs Reimbursement.
(a) Owner shall pay Contractor an amount equal to the actual costs
reasonably incurred and actually paid by Contractor in
furnishing services under this Agreement. Costs incurred in
furnishing services may include the following:
(i) On-The-Job Payroll Costs. All wages and salaries for
on-site personnel employed by Contractor to fulfill
its obligations under this Agreement.
(ii) Payroll Taxes and Other Direct Costs. All payroll
taxes, whether federal, state, or local.
(iii) Cost of Materials, Supplies and Equipment. The actual
cost of materials, supplies, and equipment used by
Contractor in the performance of duties hereunder;
provided, however, that, any materials and supplies
or equipment so purchased shall be mutually agreed
upon by Owner and Contractor prior to such purchase.
(iv) Other Items. Contractor shall contract for and
purchase on authorization of Owner and at Owner's
expense any other services and commodities necessary
in the operation and maintenance of the Managed
Premises, as well as for the making of all repairs,
alterations, and decorations with respect thereto,
including, without limitation, sweeping of the
Managed Premises and gutters of the adjacent streets
weekly; provided, however, that Contractor shall not
contract for any repair or alteration, without the
prior approval of Owner.
(b) Payments to Contractor. As full and complete payment for
services provided by Contractor under this Agreement, Owner
will pay Contractor a monthly management fee of three percent
(3%) of gross parking receipts for such month.
(c) Payments. Payments of the charges of all items listed in this
Section 5, and all disbursements which are
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required under this Agreement, including the compensation of
Contractor herein set forth, shall be made by Owner to
Contractor within fifteen (15) days after the end of the month
or upon receipt or the xxxx of expense as submitted by
Contractor, whichever is later.
6. Parking Revenues.
(a) All parking revenues shall belong to Owner subject to
the following:
(i) Contractor will keep books of accounts and records in
accordance with generally accepted accounting
principles to properly reflect all parking revenues
with disbursements received and made in connection
with the operation of the Managed Premises. Such
books of accounts and records shall, at all times,
during regular business hours, be open to the
inspection of Owner or any of its duly appointed
agents at such place as Contractor customarily
maintains the same.
(ii) On or before the 10th day of each month, Contractor
will submit to Owner a monthly operating statement
for the previous month. All operating statements will
be certified as true and correct by an officer of
Contractor. Such statements shall show the status of
collections and expenditures and shall be supported
by vouchers, canceled parking tickets, validation
book slips, checks, duplicate invoices, and similar
documentation shall be kept at the Managed Premises
or at Contractor's principal place of business, and
shall at all times during the regular business hours
be open to Owner for inspection or any of its duly
appointed agents. Canceled parking tickets shall be
retained by Contractor for a period of thirty (30)
days following the end of the month in which they are
used. Contractor shall be permitted to destroy the
tickets at that time, unless Owner shall have made
written request for the retention of specific tickets
prior to the expiration of said thirty (30) days.
(b) Contractor will, at the direction of Owner:
(i) give Owner a check daily in the amount of the
receipts collected the previous day; or
(ii) deposit daily all revenues from the Managed Premises
to an account in the name of Owner at a bank
designated by Owner, which revenues will be
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the property of and for the exclusive use of Owner.
Contractor will make all necessary disbursements
required for the operation of the Managed Premises
including, but not limited to, wages, payroll taxes
and benefits, supplies, uniforms, operating repairs,
cleaning, telephone, bookkeeping and accounting,
accidents and other claims and expenses and other
normal and usual operating costs. At the end of each
month, Contractor will be paid within fifteen (15)
days of receipt of the xxxx.
(c) Contractor will reimburse Owner for Contractor theft,
embezzlement or other loss of gross parking receipts by
Contractor's employees or agents.
(d) In order to control insurance costs, damage to parked vehicles
not parked by Contractor employees, when such damage is under,
Three Hundred Fifty Dollars ($350), may be paid from parking
revenues. Contractor will coordinate claims relating to loss
or damage to vehicles. Damage caused to cars by Contractor's
employees will be the sole responsibility of Contractor.
7. Insurance. At all times during the term of this Agreement,
Contractor shall carry insurance coverage naming Owner as an additional insured
for the term of this Agreement and shall provide proof of such coverage upon the
execution of this Agreement and at such times as Owner shall request. This
insurance shall be maintained with an insurance company or companies
satisfactory to Owner and qualified to do business in the jurisdiction in which
the Managed Premises are located. Such insurance coverage shall include the
following:
(a) Worker's Compensation Insurance covering all employees subject
to statutory benefits and including employer's liability
coverage with a limit of at least $100,000.
(b) Comprehensive general liability insurance with limits of not
less than $1,000,000 covering the Managed Premises and
operations, blanket contractual, garage liability and personal
injury.
(c) Garagekeeper's legal liability insurance covering exposure
from fire and explosion, theft of an entire car, riot and
civil commotion, malicious mischief and vandalism.
(d) Fidelity bond of $25,000 for Contractor's employees to cover
reimbursement to Owner for Contractor's employee theft,
embezzlement or other loss of gross parking receipts by
Contractor's employees.
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All such insurance will be for the protection of Owner, and Owner will be named
as an additional insured. Policies or certificates evidencing all insurance
shall be furnished to Owner and the certificates or policies shall contain an
endorsement requiring the insurance carrier to provide not less than thirty (30)
days' written notice to the additional insured in the event of cancellation or
material change. All of the foregoing insurance policies shall be considered as
primary and any policies held or obtained by Owner shall be considered as excess
and noncontributory. It is understood and agreed that Owner is responsible for
providing and maintaining appropriate insurance coverage on the Managed Premises
structures.
8. Indemnification. Contractor shall defend, indemnify and hold
harmless Owner and its contractors, licensees, agents, servants, employees,
guests, invitees, or visitors, from any and all actions, costs, claims, demands,
losses and expenses, damages and liabilities of every kind and nature whatsoever
whether direct, indirect or consequential (including, but not limited, to
attorney's and consultant's fees and other expenses of litigation or
arbitration) arising from or by reason of third party claims based, in whole or
part, on any breach or alleged breach of any Contractor's obligations, a
negligent act or omission or alleged negligent act or omission of Contractor
arising under this Agreement, including, but not limited to, property damage,
personal injury, death or contractual liabilities; provided, however, that the
foregoing provision shall not be construed to make Contractor liable for any
actions, costs, claims, demands, losses, expenses, damages or liabilities
resulting from injuries to third parties caused by the negligence of Owner, or
any of its officers, licensees, agents, servants, employees or visitors.
9. Waiver of Subrogation. Each of the parties releases the other and
waives any claim for recovery for loss or damage to persons or to the property
on or about the Managed Premises, arising out of or incident to fire, lightning
or other perils included in the standard fire insurance extended endorsement
coverage. Each party hereby agrees to obtain the appropriate consent of their
respective insurers, if necessary, with respect to this waiver of subrogation;
provided, however, that this paragraph shall not be construed as to in any way
affect the rights of either party to recover under insurance policies insuring
any matters covered by this waiver.
10. Fidelity Bond. Owner, at Owner's expense, may require that
employees of Managing Agent who handle or are responsible for Owner's money to
be bonded by a fidelity bond in an amount sufficient in Owner's determination to
cover any loss which may occur in the management and operation of the Managed
Premises or that Contractor obtain a fiduciary policy of insurance.
11. Employees.
(a) Contractor will employ, discharge and supervise all persons
necessary for operation of the Managed Premises
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including, without limitation, managers, attendants, cashiers
or other personnel necessary for the efficient operation of
the Managed Premises.
(b) All personnel will be employees of Contractor and not Owner.
(c) Contractor shall give notice to Owner prior to any changes in
personnel or duty assignment except when such changes are made
in response to an emergency situation in which case Contractor
shall give notice of such changes immediately thereafter.
(d) All personnel will comply with Owner's dress and appearance
code which Owner will establish and may at Owner's discretion
change with ninety (90) days' notice.
(e) Owner shall at all times have the right to accept or reject
individual Contractor personnel. Contractor will not remove
personnel acceptable to Owner without Owner's express
approval. Such approval will not unreasonably be withheld.
12. Uniforms and Badges. Contractor shall outfit all employees with
uniforms satisfactory to Owner. The cost of such uniforms and cleaning thereof
shall be at Owner's expense.
13. Right to Audit Books and Records. Upon Owner's request, either
Owner's accountants or an independent accounting firm shall have the right to
audit and inspect those portions of Contractor's books and records that pertain
to the costs incurred in furnishing services under this Agreement.
14. Notices. Whenever notice is to be sent pursuant to this Agreement
to either party to this Agreement, it is expressly understood that same shall be
sent postage prepaid, certified mail, return receipt requested to either party
at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to any such address that
either party may hereinafter designate.
15. Termination or Expiration. Upon termination or expiration of this
Agreement with respect to any of the Managed Premises for any reason whatsoever,
Contractor shall promptly turn over to Owner all books, papers, funds, records,
keys and other items relating to the management and operation of such Managed
Premises and shall render to Owner a final accounting with respect thereto
through the date of termination.
16. Limitation of Liability.
(a) No officer, director, trustee or partner of Owner shall be
personally liable hereunder, all such liability being limited
in the case of Owner to the interest of
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Owner in the Managed Premises and in the case of Contractor,
to its interest hereunder.
(b) The Declarations of Trust establishing some of Owner, a copy
of which, together with all amendments thereto (the
"Declarations"), is duly filed with the Department of
Assessments and Taxation of the State of Maryland, provides
that the names of such Owner refers to the trustees under such
Declarations collectively as trustees, but not individually or
personally, and that no trustee, officer, shareholder,
employee or agent of such Owner shall be held to any personal
liability, jointly or severally, for any obligation of, or
claim against, such Owner. All persons dealing with such
Owner, in any way, shall look only to the respective assets of
such Owner for the payment of any sum or the performance of
any obligation of such Owner. In any event, all liability of
such Owner hereunder is limited to the interest of such Owner
in the Managed Premises.
(c) It is the intention of the parties hereto that each Owner be
liable hereunder only with respect to the Managed Premises
owned by such Owner and that each Owner be solely responsible
for liabilities incurred with respect only to its properties
and receive all income therefrom.
17. Modification of Agreement. This Agreement may not be modified,
altered or amended in manner except by an amendment in writing, duly executed by
the parties hereto. Additional properties may be added to the scope of this
Agreement by substituting for Exhibit A to this Agreement a revised Exhibit A
including such property or properties, provided that such replacement Exhibit A
shall be initialed by Owner and Contractor.
18. Law Governing. This Agreement shall be governed by and in
accordance with the laws of The Commonwealth of Massachusetts.
19. Effective Date. The "Effective Date" of this Agreement shall be,
with respect to any property listed on Exhibit A, the later to occur of January
1, 1998 and the date on which such property shall be added to Exhibit A.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date above first written.
OWNERS:
HUB PROPERTIES TRUST:
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, its President
MANAGER:
GARAGE MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, its President
Exhibit A
Managed Premises
Owner Property Address
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Hub Properties Trust 0000 00xx Xxxxxx
Xxxxxxxxxx, XX
