EXHIBIT 10.1
MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement") is made and entered into
as of the 25th day of March, 1997 between M&P Partners Limited Partnership, a
Massachusetts limited partnership ("Managing Agent"), and the parties identified
on the signature page of this Agreement as owner (collectively, "Owner").
WHEREAS, Owner is the owner of those premises described on Exhibit A,
attached hereto and made a part hereof (collectively, the "Managed Premises");
and
WHEREAS, Owner desires to retain Managing Agent, and Managing Agent is
willing to serve, as managing agent with respect to the Managed Premises, all
upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained, Owner and Managing Agent hereby agree as follows:
1. Employment. Subject to the terms and conditions hereinafter set
forth, Owner hereby employs Managing Agent with respect to the Managed Premises.
2. Duties.
(a) Managing Agent hereby accepts such employment as managing
agent and agrees to devote such time, attention and effort as may be
appropriate to operate and manage the Managed Premises in a diligent,
orderly and efficient manner. Any or all services may be performed or
goods purchased by Managing Agent under arrangements jointly with or
for other properties owned or managed by Managing Agent and the costs
shall be reasonably apportioned. Managing Agent may employ personnel
who are assigned to work exclusively at the Managed Premises or partly
at the Managed Premises and other buildings owned and/or managed by
Managing Agent. The properly apportioned costs of such personnel shall
be reimbursed by Owner, in addition to the Fee, but only to the extent
that such personnel shall be on-site employees.
(b) Without limitation, Managing Agent agrees to perform the
following specific duties:
(i) To seek tenants for the Managed Premises in
accordance with the rental schedule established by Owner and
to negotiate leases including renewals thereof and to lease in
Owner's name space on a lease form approved by the Owner, only
to tenants, at
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rentals, and for periods of occupancy all as are approved in
each case by Owner. To employ appropriate means in order that
the availability of rental space is made known to potential
tenants; provided, however, that such means shall not include
the employment of brokers unless otherwise agreed by Owner.
The legal expenses of negotiating such leases and leasing such
space shall be approved and paid by Owner.
(ii) To collect all rents and other income from the
Managed Premises and to give receipts therefor, both on behalf
of Owner, and deposit such funds in such banks and such
accounts as are named, from time to time, by Owner, in agency
accounts for and under the name of Owner. Managing Agent shall
be empowered to sign disbursement checks on these accounts.
(iii) To make contracts for and to supervise any
repairs and/or alterations to the Managed Premises, including
tenant improvements and decoration of rental space, as may be
approved by Owner.
(iv) For Owner's account and, with respect to on-site
employees only, at its expense, to hire, supervise and
discharge employees as required for the efficient operation
and maintenance of the Managed Premises.
(v) To obtain, at Owner's expense, appropriate
insurance for the Managed Premises protecting Owner and
Managing Agent while acting on behalf of Owner against all
normally insurable risks relating to the Managed Premises and
complying with the requirements of Owner's mortgagee, if any,
and, upon approval thereof, to cause the same to be provided
and maintained by all tenants with respect to the Managed
Premises to the extent required by the terms of such tenants'
leases.
(vi) To promptly notify Owner and Owner's insurance
carriers, as required by the applicable policies, of any
casualty or injury to person or property at the Managed
Premises, and complete customary reports in connection
therewith.
(vii) To procure seasonably all supplies and other
materials necessary for the proper operation of the Managed
Premises, at Owner's expense.
(viii) To pay promptly from rental receipts, other
income derived from the Managed Premises, or other monies made
available by Owner for such purpose, all costs incurred in the
operation of the Managed Premises which are expenses of Owner
hereunder, including wages or other payments for services
rendered, invoices for supplies or other items
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furnished in relation to the Managed Premises, and pay over
forthwith the balance of such rental receipts, income and
monies to Owner or as Owner shall from time to time direct.
(In the event that the sum of the expenses to operate and the
compensation due the Managing Agent exceed gross receipts in
any month and no excess funds from prior months are available
for payment of such excess, Owner shall pay promptly the
amount of the deficiency thereof to Managing Agent upon
receipt of statements therefor.)
(ix) To advise Owner promptly of any material
developments in the operation of the Managed Premises that
might affect the profitable operation of the Managed Premises.
(x) To establish, in Owner's name and with Owner's
approval, reasonable rules and regulations for tenants of the
Managed Premises.
(xi) At the direction of Owner and with counsel
selected by Owner, to institute or defend, as the case may be,
any and all legal actions or proceedings (in the name of Owner
if necessary) relating to operation of the Managed Premises.
(xii) To maintain the books and records of Owner
reflecting the management and operation of the Managed
Premises, making available for reasonable inspection and
examination by Owner or its representatives, all books,
records and other financial data relating to the Managed
Premises.
(xiii) To prepare and deliver seasonably to tenants
of the Managed Premises such statements of expenses or other
information as shall be required on the landlord's part to be
delivered to such tenants for computation of rent, additional
rent, or any other reason.
(xiv) To aid, assist and cooperate with Owner in
matters relating to taxes and assessments and insurance loss
adjustments and notify the Owner of any tax increase or
special assessments relating to the Managed Premises.
(xv) To provide such emergency services as may be
required for the efficient management and operation of the
Managed Premises on a 24-hour basis.
(xvi) To enter into contracts for utilities
(including, without limitation, water, fuel, electricity and
telephone) and for building services (including, without
limitation, cleaning of windows,
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common areas and tenant space, ash, rubbish and garbage
hauling, snow plowing, landscaping, carpet cleaning and vermin
extermination), and for other services as are appropriate to
first class office space.
(xvii) To seek the lowest competitive price
commensurate with desired quality for all items purchased or
services contracted by it under this Agreement.
(xviii) To take such action generally consistent with
the provisions of this Agreement, as Owner might with respect
to the Managed Premises if personally present.
3. Authority. Owner gives to Managing Agent the authority and powers to
perform the foregoing duties on behalf of Owner subject, however, to Owner's
approval as specified. Owner further authorizes Managing Agent to incur such
reasonable expenses, specifically contemplated in Section 2, on behalf of Owner
as are necessary in the performance of those duties.
4. Special Authority of Agent. In addition to, and not in limitation
of, the duties and authority of Managing Agent contained herein, Managing Agent
shall perform the following duties, but only with Owner's prior approval in each
case:
(a) Terminate tenancies and sign and serve in the name of
Owner such notices therefor as may be required for the proper
management of the Managed Premises.
(b) With counsel selected by Owner, and at Owner's expense,
institute and prosecute actions to evict tenants and recover possession
of rental space, and recover rents and other sums due; and when
expedient, settle, compromise and release such actions or suits or
reinstate such tenancies.
5. Compensation.
(a) In consideration of the services to be rendered by the
Managing Agent hereunder, the Owner agrees to pay and the Managing
Agent agrees to accept as its sole compensation a management fee (the
"Fee") equal to three percent (3%) of the gross collected rents
actually received by Owner from the Managed Premises, such gross rents
to include all fixed rents, percentage rents, additional rents,
operating expense and tax escalations, and any other charges paid to
Owner in connection with occupancy of the Managed Premises, but
excluding any amounts collected from tenants to reimburse Owner for the
cost of capital improvements or for expenses incurred in curing any
tenant default or in enforcing any remedy against any tenant.
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(b) The Fee shall be due and payable monthly, in arrears.
(c) Notwithstanding anything herein to the contrary, Owner
shall reimburse Managing Agent for reasonable travel expenses incurred
when traveling to and from the Managed Premises while performing its
duties in accordance with this Agreement.
(d) Managing Agent shall also receive the amount of any lump
sum reimbursables paid by tenants of the Managed Premises to the extent
amounts paid exceed costs incurred by Owner for work performed with
respect thereto.
(e) Managing Agent shall be entitled to no other additional
compensation, whether in the form of commission, bonus or the like for
its services under this Agreement. Except as otherwise specifically
provided herein with respect to payment by Owner of legal fees,
accounting fees, salaries, wages, fees and charges of parties hired by
the Managing Agent on behalf of Owner to perform operating and
maintenance functions in the Managed Premises, and the like, if
Managing Agent hires third parties to perform services required to be
performed hereunder by Managing Agent without additional charge to
Owner, Managing Agent shall (except to the extent the same are
reasonably attributable to an emergency at the Managed Premises) be
responsible for the charges of such third parties. Managing Agent shall
not, however, hire any third party without Owner's prior written
consent, which consent shall not be unreasonably withheld. In addition,
Managing Agent shall, at its expense, assume Owner's obligations under
the contracts and agreements listed as Exhibit B, attached hereto and
made a part hereof.
6. Contracts. Managing Agent shall not, without the prior consent of
Owner, enter into any contracts on behalf of Owner which extend beyond the then
current term of this Agreement.
7. Term of Agreement. 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 Managing Agent to the other.
8. Termination or Expiration. Upon termination or expiration of this
Agreement for any reason whatsoever, Managing Agent shall promptly turn over to
Owner all books, papers, funds, records, keys and other items relating to the
management and operation of the Managed Premises, including, without limitation,
all leases in the possession of the Managing Agent and shall render to Owner a
final accounting through the date of termination.
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9. Assignment of Rights and Obligations.
(a) Without Owner's prior written consent, Managing Agent
shall not sell, transfer, assign or otherwise dispose of or mortgage,
hypothecate or otherwise encumber or permit or suffer any encumbrance
of all or any part of its rights and obligations hereunder, and any
transfer, encumbrance or other disposition of an interest herein made
or attempted in violation of this paragraph shall be void and
ineffective, and shall not be binding upon Owner.
(b) Owner, without Managing Agent's consent, may assign its
rights and obligations hereunder to any mortgagee with respect to, or
successor owner of, the Managed Premises, but not otherwise.
(c) Consistent with the foregoing paragraphs (a) and (b), the
terms "Owner" and "Managing Agent" as used in this Agreement shall mean
the original parties hereto and their respective mortgagees,
successors, assigns, heirs and legal representatives.
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 Managing Agent obtain a fiduciary policy of insurance.
11. Indemnification.
(a) Owner agrees to defend, indemnify and hold harmless
Managing Agent from and against all costs, claims, expenses and
liabilities (including reasonable attorneys' fees) arising out of
Managing Agent's performance of its duties in accordance with this
Agreement including, without limitation, injury or damage to persons or
property occurring in, on or about the Managed Premises and violations
or alleged violations of any law, ordinance, regulation or order of any
governmental authority regarding the Managed Premises except any
injury, damage or violation resulting from Managing Agent's default
hereunder, or from Managing Agent's fraud, gross negligence or willful
misconduct in the performance of its duties hereunder.
(b) Owner agrees that required insurance shall include, at
Owner's expense, public liability and workmen's compensation insurance
upon the following terms and conditions:
(i) policies shall be so written as to protect the
Managing Agent in the manner and to the same extent as the
Owner.
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(ii) Workmen's compensation policies shall be written
to comply with applicable legal requirements.
(iii) The public liability insurance shall be written
in limits of not less than One Million Dollars ($1,000,000)
per occurrence for bodily injury and Five Hundred Thousand
Dollars ($500,000) per occurrence for
property damage.
(iv) Such public liability insurance shall include
the standard extensions of liability coverage as may be
mutually agreed upon from time to time, and shall name both
parties and their respective employees as additional insureds.
12. 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 400 Centre Street, Newton, Massachusetts 02158, or to any such address that
either party may hereinafter designate.
13. Limitation of Liability. No partner of Owner or Managing Agent
shall be personally liable hereunder, all such liability being limited in the
case of Owner to the interest of Owner in the Managed Premises and in the case
of Managing Agent, to its interest hereunder.
14. 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.
15. Independent Contractor. This Agreement is not one of general agency
by Managing Agent for Owner, but one with Managing Agent engaged as an
independent contractor. Nothing in this Agreement is intended to create a joint
venture, partnership, tenancy-in-common or other similar relationship between
Owner and Managing Agent for any purposes whatsoever.
16. Law Governing. This Agreement shall be governed by and in
accordance with the laws of The Commonwealth of Massachusetts.
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Executed as a sealed instrument as of the date above first written.
MANAGING AGENT:
M&P PARTNERS LIMITED PARTNERSHIP
By: HRPT Advisors, Inc.,
its general partner
By:/s/David J. Hegarty
Its President
OWNER:
HUB REALTY FUNDING, INC.
By:/s/David J. Hegarty
Its President
HUB REALTY RICHLAND, INC.
By:/s/David J. Hegarty
Its President
HUB REALTY IV, INC.
By:/s/David J. Hegarty
Its President
HUB REALTY III, INC.
By:/s/David J. Hegarty
Its President
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HUB REALTY COLLEGE PARK, I, LLC
By: HUB Management, Inc.
By:/s/David J. Hegarty
Its President
HUB REALTY KANSAS CITY, INC.
By:/s/David J. Hegarty
Its President
HUB REALTY BUFFALO, INC.
By:/s/David J. Hegarty
Its President
HUB REALTY SAN DIEGO I, INC.
By:/s/David J. Hegarty
Its President
EPA GOLDEN, L.P.
By: Hub Realty Golden, Inc., general
partner
By:/s/David J. Hegarty
Its President
HUB ACQUISITION TRUST
By:/s/David J. Hegarty
Its President
EXHIBIT A
Managed Premises
Attached to this Exhibit A in the original document are property
descriptions for properties leased to the U.S.
Government in the following locations:
1. Phoenix, AZ: Midtowne II and Bella Vista Place
2. Kearney Mesa, CA: Aero Drive
3. Houston, TX (Harris County)
4. Petersburg, AK
5. Safford, AZ
6. Sante Fe, NM
7. Buffalo, NY
8. Gauthersburg, MD
9. Albuquerque, NM
10. Savannah, GA
11. Cheyenne, WY
12. College Park, MD
13. Tucson, AZ
14. Washington, D.C. (625 Indiana Ave.)
15. Washington, D.C. (20 Mass. Ave.)
16. Golden, CO
17. Germantown, MD
18. Falls Church, VA
19. Oxon Hill, MD
20. San Diego, CA (DEA)
21. San Diego, CA (DFAS)
22. Oklahoma City, OK
23. Falling Waters, WY
24. Kansas City, MO
25. Kansas City, KS
26. Richland, WA
26. Los Angeles, CA (MEPS)
EXHIBIT B
Assumed Contracts
Property Management Agreement, dated as of June 16, 1994, between GovProp
Funding, L.P. and Rosecliff Realty Inc., as amended.
Property Management Agreement, dated as of February 7, 1995, between Rosecliff
Realty Richland Inc. and Rosecliff Realty Inc. (Richland, WA).
Property Management Agreement, dated as of July 27, 1995, between Rosecliff
Realty College Park I, LLC and Rosecliff Realty Inc. (College Park, MD).
Property Management Agreement, dated as of October 13, 1995, between Rosecliff
Realty Kansas City, Inc., and Rosecliff Realty Inc. (Kansas City, MO).
Property Management Agreement, dated as of September 7, 1995, between Rosecliff
Realty III, Inc. and Rosecliff Realty Inc. (Oklahoma City, OK).
Property Management Agreement, dated as of September 7, 1995, between Rosecliff
Realty IV, Inc. and Rosecliff Realty Inc. (Falling Waters, WV).
Property Management Agreement, dated as of March 13, 1996, between Rosecliff
Realty Buffalo, Inc. and Rosecliff Realty Inc. (Buffalo, NY).
Property Management Agreement, dated as of December 23, 1995, between Roseview
San Diego Limited Partnership and Rosecliff Realty Inc. (San Diego, CA (DEA)),
as amended.
Property Management Agreement, dated as of July 19, 1996 between Rose Group LLC
and Rosecliff Realty Inc. (San Diego, CA (DFAS)).
Development & Management Agreement, dated as of August 22, 1996, between
Imperial Industrial Group and Rose Group LLC (San Diego, CA (DFAS)).