Yes, again international standards are customary. The incentive fee is often linked to a stand-aside clause. The incentive fee is paid to the operator in case the investor has previously received a specified minimum or fixed amount.
The usual standard imposed on an operator is to achieve long-term profitability while maintaining brand standards. Although operators are usually granted a broad authority by the owners, review or approval by the owners can be compulsory in certain major areas, such as the annual operating and capital expenditure budgets.
As mentioned above, HMAs often provide that if, during a certain period, the performance of the operator does not meet certain predefined criteria usually set by reference to the performance of other comparable hotels in the same geographic area, the owner has the right to terminate the HMA.
Long-term profitability with maintenance of the brand standards is a common requirement.
Contractual performance standards vary between operators, type of hotel, etc. HMAs may require operators to run hotels consistent with appropriate class standards (such as first class or tourist class), comparably to similar hotels in the area, and/or to the physical, operational, service, quality levels of other operator-managed hotels under the brand. Generally, HMAs don't contain KPIs, SLAs, or specific standards because fee structures align owner and operator interests. Financial standards are often based on operating profits versus a threshold or compared to a competitive set of similar hotels. HMAs may also require operators to exercise reasonable care, skill, diligence, use their best efforts, and/or comply with local laws.
The standard is negotiated in the HMA and will be commensurate to brands of the same standard in the country.
The standard is to manage the hotel in line with the legal regulations and the standard agreed between the parties.
Contractual performance standards vary between operators, types of hotel, etc. Generally speaking, HMAs will provide for a performance test but do not usually contain KPIs, SLAs or specific standards because fee structures often mean owner and operator interests are aligned.
Contractual performance standards vary between operators, type of hotel etc. Generally, the operator must operate the hotel in compliance with standard operating procedures.
The standard is negotiated in the HMA and commonly benchmarked against hotel brands of similar quality and price and with a similar market focus in Hong Kong.
Some HMAs contain KPIs or some other form of service level requirements; however, in most cases none of these are used since the fee structure ensures that the interests of the parties are aligned.
The standard depends on the level of the hotel. Branded operators usually provide their own standards.
The standard is normally to operate the hotel in line with the standards of other hotels in the same class in Japan. Most operators will hold themselves out as independent contractors, and accordingly any fiduciary duties owed to the owner should be set out in the HMA.
The standard is negotiated in the HMA, and is generally for the hotel to be operated similarly to hotels of the same class in the market, with the same degree of care as other prudent operators, and, where agreed by the operator, with the aim of maximizing long-term profitability.
Contractual performance standards vary between operators, type of hotels, etc.
Contractual performance standards vary between operators, type of hotel etc. The operator is usually obliged to operate the hotel in accordance with a certain brand, brand standards and a certain hotel classification.
The parties often agree in the HMA that the operator must operate the hotel in compliance with its operational manual and standard operating procedures. Performance clauses are also commonly used and, in some instances, detailed description of the relevant concept is included in the HMA.
The standard is to manage the hotel in line with the legal regulations and the standard agreed between the parties.
Contractual performance standards vary between operators, type of hotel etc. Generally speaking, HMAs do not usually contain KPIs, SLAs or specific standards because fee structures often mean owner and operator interests are aligned.
Contractual performance standards vary between operators, type of hotel etc. Some HMAs do not contain specific standards (because fee structures often mean owner and operator interests are aligned), while others impose the operations standards of the brand.
A standard usually needs to be negotiated into the HMA – it may be possible to negotiate that of a similar operator, eg luxury hotels in the country.
The standard is diligent professional performance, and performance tests are set in the HMA (together with a termination right for failure to meet such tests).
The standard is usually negotiated in the HMA, but generally will be to operate to the standard of comparable hotels in the market and with the aim to maximize profits, while taking into account other factors.
Standards usually needs to be negotiated into the HMA – it may be possible to negotiate that of a similar operator, eg luxury hotels in the country.
Contractual performance standards vary between operators, type of hotel etc. Generally speaking, HMAs do not usually contain KPIs, SLAs or specific standards as fee structures often mean owner and operator's interests are aligned.
Contractual performance standards vary among operators, type of hotels, etc., but are typically fairly general, such as "acting as a reasonable and prudent operator," "with a view toward maximizing long-term profitability and value of the hotel," "operation and management as a world class luxury hotel," etc.
Australia
Are Hotel Management Agreements (HMAs) common in the jurisdiction?
Yes. HMAs are a common owner/operator structure used in Australia.
If not HMAs, what are the alternatives / what is commonly used?
Other alternative approaches are:
- Franchise agreements – operators enter into franchise agreements with well-known domestic or international hotel chains under which the chain provides a business system, services and licenses the use of the brand and other IP of the hotel chain. The property at which the hotel is operated may be owned by the operator or another party (which may be an entity related to the franchisor). The fee structures may vary and may be made up of a number of components, including royalties for the use of IP, other fixed charges, fees for services and/or fees based on revenue/performance of the hotel business.
- Leases – owners lease the underlying asset to an operator on a long-term basis (under which a fixed lease payment is payable), and the operator operates the hotel business autonomously, or occupies the hotel under the lease, with the HMA regulating the operation of the Hotel.
Is it common or usual for the HMA to be governed by (i) local laws; (ii) the laws of one of the parties' country of incorporation; or (iii) an alternative jurisdiction?
HMAs are typically governed by Australian law. Australia is regarded as a relatively stable legal jurisdiction, such that the sovereign risk and legal risks associated with use of Australia law are limited.
Are there any significant or unusual points to note in respect of tax on HMA payments in the jurisdiction?
HMA payments made to the operator by the owner, and/or any rental payments under a lease of the Hotel property are subject to the Australian Goods and Services Tax (GST).
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Australia
Is there a standard contract period of an HMA?
The duration of HMAs depends in part on the bargaining position of the operator – for major operators, terms of 20+ years are not uncommon. The duration also depends on the nature of the assets, with landmark assets often attracting longer terms.
Is the term usually fixed? Are early exit or similar options included (contractual or implied)?
The term is usually fixed.
It is increasingly common to integrate early exit mechanisms where operators underperform for a sustained period. This is in addition to standard early termination rights, such as for an insolvency event (eg liquidation, receivership, statutory winding up) or where a third party brings any claim or commences proceeding relating to the owner's title to the hotel or land.
Is it usual to include fees / liquidated damages for early termination?
Exit fees for early termination for convenience (ie without cause) or on sale of the property by the owner, and excluding termination in the case of manager default, are common. The level of termination fees/liquidated can vary depending on a number of commercial factors (eg location, type of hotel, market position of brand) and the reason for early termination (ie for convenience vs where the property is sold).
What is the usual position in respect of renewal?
It is common to have renewal periods that are subject to agreement between the parties; options that are exercisable unilaterally are less common. Renewal periods vary depending on the operator and are driven by their own operational needs. Renewal periods as part of an HMA are often negotiated as part of any agreed future capital improvement program for the hotel asset.
Australia
Is there a standard fee structure for HMAs (eg base + incentive)?
HMA fee structures typically comprise a percentage of gross annual revenue (base fees), and a sliding scale percentage of the adjusted gross operating profit, where the operator meets profitability thresholds (incentive fee). The fee structure will depend on various factors including the extent to which the operator or the hotel owner contribute to capital and operational costs of the hotel over the term of the HMA.
What other fees and charges are there (such as royalties, accounting, marketing, license fees, etc.)?
Depending on the parties and type of hotel, marketing contributions and/or fees for use of services such as accounting, software, reservation networks or intellectual property (including branding) may be payable.
Are owners typically required to set aside funds for fixtures and fittings?
Yes. Owners are typically required to make furniture, fitting and equipment (FF&E) contributions for general repairs and maintenance of the hotel, and any other budgeted capital expenditures.
Australia
What is the usual standard imposed on an operator in respect of the operation of the hotel?
Commonly, the standard imposed on the operator is that the operator will use the skill, effort, care and expertise reasonably expected of a prudent operator of hotels with regard to the brand and brand standards of the hotel operator. KPIs and other prescriptive standards are less common, although the inclusion of such standards varies depending on the operator and the consequences flowing from failures to achieve such standards, the operator and the asset.
What performance measures are commonly used in the jurisdiction?
Common performance measures are generally related to performance against an agreed budget and/or Revenue Per Available Room (RevPAR) relative to a set of similar competitors.
These measures are often linked to termination rights for failures to meet these standards.
Is an operator or owner guarantee common in the jurisdiction?
The inclusion of guarantees depends on the identity and structure of operator and owner, including the financial position and assets held by them.
What is the usual position in respect of employees? With whom does the liability for the employees sit?
Commonly, the owner of the hotel employs the employees and the employees take directions under the supervision of the operator. In these circumstances, the hotel owner is liable with respect to:
- minimum wage obligations, work, health and safety (WHS) and discrimination law compliance;
- any penalties, damages, compensation or other order arising of unfair dismissal; and
- vicariously liability for the acts and omissions of employees.
For everyday management, owners usually give operators permission to direct and control its employees.
In some cases, the general manager, and possibly other key employees (eg executive chef), will be employed by the hotel operator.
Is it usual to have a non-compete clause, eg that no other property with that brand can open within a certain radius?
Yes, based on a geographic radius.
Who is responsible for insurance?
The owner is typically responsible for obtaining insurance for:
- the property;
- business interruption;
- workers compensation for employees employed by the owner; and
- items owned by the owner or people other than the operator.
The operator is typically responsible for the following insurances:
- public liability;
- workers compensation for employees employed by the operator;
- motor vehicle;
- employee fidelity; and
- other operating risks it is customary to insure against in the operation of hotels.
Does the HMA give rights in real estate in the jurisdiction?
No, provided that the HMA does not operate as a lease or give rise to a leasehold interest.
Does the HMA need to be recorded against the property, if this is possible in the jurisdiction?
No.
However, where an HMA is not recorded against the property (for example, via a caveatable interest and caveat registered against the title to the property), operators will need to ensure they properly secure their operating rights in the event the hotel property is sold.
Where financing is taken, is it standard to obtain a Non-Disturbance Agreement (NDA) as part of a management or lease agreement?
Yes. The terms of NDAs vary depending on the parties.
What other agreements usually sit alongside an HMA in the jurisdiction?
There may be other associated agreements depending on the operator, which can include:
- IP licensing agreements;
- services agreements for the provision of services (eg accounting, software licensing, access to reservation networks);
- individual employment contracts for the general manager of the operator;
- supply agreements; and
- mortgagee step-in right deeds (on behalf of the owner).
Australia
What are the standard rights / restrictions in respect of transfer / sale of the hotel?
The rights and restrictions applicable to the transfer/sale of the hotel depend on the operator and the asset. For major operators and/or landmark assets, the consent of the operator is commonly required for the hotel to be sold or transferred. Otherwise, the owner is usually permitted to transfer or sell the hotel without the consent of the operator.
When a managed hotel is sold (either asset or share deal), is it usual in the jurisdiction that either the Operator's consent is required for the sale, or that the hotel may only be sold if the HMA transfers with the hotel?
Both. In relation to the requirement for the consent of the operator, see above – it depends on the operator and the asset; however, commonly with marquee hotels operated by international hotel operators, their consent is usually required, and commonly provided if the purchaser agrees to be bound by the HMA following the sale of the hotel.
Whether this is the case with other operators, or if the owner can sell the hotel property with vacant possession will depend on the terms of the HMA.
For taxation reasons, hotels are commonly sold with the HMAs in place, even if these can be terminated after settlement. Taxation advice should be sought as part of any hotel acquisition or disposal.
Do HMAs commonly include a right of first refusal for the operator to purchase the hotel?
It depends on the operator and the asset. Some operators also own hotels and therefore like to have a first right of refusal, while other organizations that are simply operators do not seek such a right.
Is it usual to include provisions which enable the sale of the property with vacant possession ie without the brand?
As above, these depends on the terms of the HMA and the operator. There are different tax consequences arising if the hotel property is sold with vacant possession and taxation advice should be sought as part of any hotel disposal.
Australia
