Exhibit 10.19
PROPERTY MANAGEMENT AGREEMENT
BOULDER CREEK APARTMENTS
THIS AGREEMENT is made and entered into this 29th day of May 2003, by and
between BC-GFS Boulder Creek LLC (hereinafter referred to as the "OWNER") and
American Management Services Northwest LLC, d/b/a Pinnacle, (hereinafter
referred to as "Pinnacle").
SECTION 1
APPOINTMENT OF MANAGING AGENT
1.1 APPOINTMENT AND ACCEPTANCE: Owner hereby engages Pinnacle as its sole
and exclusive property manager to lease and manage the property described in
Section 1.2 upon the terms and conditions provided herein. Pinnacle accepts the
engagement and agrees to furnish the services of its organization in accordance
with the terms and provisions contained herein.
1.2 DESCRIPTION OF PROJECT: The property to be managed by Pinnacle under
this Agreement (the "Project") is known as Boulder Creek Apartments, and is
located at 0000 XX Xxxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxx 00000, consisting of
the land, buildings and other improvements constituting a 000-xxxx xxxxxxxxx
xxxxxxx.
1.3 TERM: The initial term of this Agreement shall be for a period of one
year (the "Initial Term") commencing on the 29th day of May, 2003 to the 30th
day of June 2003. This Agreement shall be automatically renewed for periods of
one (1) month, unless this Agreement is terminated as provided in Section 18
herein. The closing date shall be the date the Owner takes title to the Project.
1.4 MANAGEMENT OFFICE: Owner shall provide adequate space on the Project
for a management office, exclusively for the use of Pinnacle to conduct the
business of the management of the Project. Owner shall pay all reasonable
expenses related to such office as provided in the Plan (defined below),
including, but not limited to, furnishings, equipment, postage, office supplies,
electricity, other utilities, and telephone services.
1.5 APARTMENT FOR ON-SITE STAFF: Owner shall provide suitable apartment
unit(s) within the Project for the use of the resident manager and such
assistant managers or maintenance personnel as Pinnacle and Owner may deem
reasonable under the circumstances and as provided in the Plan. Pinnacle, with
the approval of Owner, shall be entitled to provide such on-site staff
(employees) with such rental and utility concessions (reductions in rent or
utility charges) as Pinnacle and the Owner may deem necessary and appropriate
under the circumstances.
1.6 BUDGET AND BUSINESS PLAN: Owner and Pinnacle have established a
budget and business plan for operation and management of the Project (the
"Plan"). The Plan shall act as a general guide for the management of the Project
by Pinnacle, and shall be updated and revised annually to reflect changes in
conditions and actual Project operation and submitted to Owner for Owner's
approval. Any expenditure in excess of $5,000.00 not specifically set
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forth in the Plan shall require Owner's advance approval, except as provided in
Section 4.2 hereof. Owner agrees that the Plan is a budgeting tool only and does
not constitute a guarantee of actual operating performance. The preliminary
annual budget will be provided to Owner by October 1st and will be attached
hereto as Exhibit A, with the final budget due to Owner by November 1st. The
Plan shall include, at a minimum, the following:
A. MINIMUM LEASING GUIDELINES established jointly by Owner and
Pinnacle, setting forth target rental rates and premiums for each
unit type and amenity package, together with maximum leasing
incentive allowances for promotional purposes. In no event will
Pinnacle execute any lease (or any renewal or extension thereof) on
terms which vary from the minimum leasing guidelines without
notification to Owner.
B. CAPITAL IMPROVEMENT PLAN: Owner and Pinnacle have set forth a
plan for implementing initial capital improvements to upgrade the
rental units and correct maintenance items addressed during Owner and
Pinnacle's pre-acquisition inspection of the property (if
applicable). Should the capital plan fall within industry standards
for normal property management duties, Pinnacle shall be responsible
for obtaining bids, coordinating and scheduling the work at the
property. A minimum of three (3) complete bids will be obtained for
each Improvement Plan line item of more than $10,000.
SECTION 2
BANK ACCOUNTS
2.1 BANK ACCOUNTS:
(a) Operating Account. Pinnacle will deposit all rents and other funds
collected from the operation of the Project in a non-interest-bearing
account established for the Project (the "Operating Account") in a
financial institution approved by Owner. Any such rents and other funds
received by Pinnacle on or before 2:00 p.m. on a Business Day shall be
deposited on that same day. Any such rents or other funds received after
2:00 p.m. or on a day that is not a Business Day shall be deposited on the
next Business Day. Such account shall be in the name of the Owner and shall
have such withdrawal restrictions as Owner's may require. Owner will be
given written notice of the account number and location of the Operating
Account. In accordance with Article 7, Pinnacle will pay out of the
Operating Account the operating expenses of the Project and any other
payments relating to the Project required by the terms of this Agreement or
set forth in the Approved Annual Business Plan. If more than one account is
required to operate the Project, each account will have a distinct name.
Owner hereby authorizes the ability to transfer funds electronically from
said Operating Account for mortgage payment and owner distribution.
(b) Security Deposit Account. If required by Owner or law, tenant
security deposits will be deposited by Pinnacle in a separate
non-interest-bearing account established in
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the name of Owner and at a financial institution approved by Owner. Except
to the extent prohibited by law or tenants' leases, all interest earned on
this account will be distributed to Owner on a monthly basis. Pinnacle
agrees to handle all tenant security deposits in accordance with all
applicable laws and regulations and in compliance with the leases of the
Project.
(c) Change of Banks. Owner may direct Pinnacle to change any depository
bank or depository arrangement. Except with the prior written approval of
Owner, Pinnacle shall not change any depository bank or arrangement or
other banking relationship or procedure.
(d) Access to Account. Owner will have access to any and all funds in the
accounts described in Sections 2.1(a) and 2.1(b). Pinnacle's authority to
draw against such accounts may be terminated at any time by Owner without
notice to Pinnacle. No borrowing authority shall be permitted on any
accounts established on behalf of Owner. All funds in such accounts shall
be the exclusive Project of Owner. Only such personnel specifically
designated by Pinnacle and approved by Owner shall have access to such
accounts. All of Pinnacle's personnel who have access to such accounts
shall be bonded and insured to the benefit of Owner against theft or fraud.
No accounts maintained pursuant to this Agreement shall contain funds from
any source other than the Project. Refer to Exhibit D for a list of
Pinnacle employees, which are authorized signatories on the accounts
described in this Section 2.1.
2.2 INITIAL DEPOSIT TO SECURITY DEPOSIT ACCOUNTS: Immediately upon
commencement of this Agreement, Owner shall remit to Pinnacle such amounts as
may be necessary in order to fully fund all required tenant trust accounts.
2.3 INITIAL DEPOSIT FOR RESERVES: Immediately upon commencement of this
Agreement, Owner shall remit to Pinnacle a sum to be deposited in the Operating
Account as an initial deposit representing the estimated disbursements to be
made in the first month following the commencement of this Agreement, plus an
adequate contingency reserve. The initial deposit may be funded from the first
month's rental receipts, at the option of Owner. Owner agrees to maintain such
contingency reserve at all times in the operating account so as to enable
Pinnacle to pay the obligations of Owner under this Agreement as they become
due. Owner and Pinnacle shall review the amount of the contingency reserve from
time to time and shall agree in writing upon a new contingency reserve when such
is required.
2.4 PINNACLE'S OBLIGATION TO ADVANCE PAYMENTS: All purchases and other
obligations incurred in connection with the operation of the Project shall be
the sole cost and expense of Owner. All such purchases shall be made by Pinnacle
solely on behalf of Owner and not as a principal. Pinnacle shall be under no
duty to utilize or apply Pinnacle's own funds for the payment of any such debt
or obligation.
2.5 INTEREST ON OPERATING AND SECURITY DEPOSIT ACCOUNTS: N/A
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SECTION 3
COLLECTION OF RENTS AND OTHER RECEIPTS
3.1 AUTHORITY OF PINNACLE: Pinnacle shall collect (and give receipts for,
if necessary) all rents, charges and other amounts received in connection with
the management and operation of the Project. All security deposits (excluding
non-reimbursable cleaning fees and the like) shall be deposited into the trust
account described in Section 2.1 above. All other receipts shall be deposited
into the operating account. Pinnacle shall not accept rent or other deposits in
the form of cash. Under no circumstances shall Pinnacle be liable to Owner for
any uncollected rents, other income or bad debt resulting from operations,
except those matters covered by section 11.5 herein.
3.2 SPECIAL CHARGES: Pinnacle shall deposit into the operating account
charges paid by tenants for the late payment of rent, returned or non-negotiable
checks, and payments for credit report fees.
SECTION 4
DISBURSEMENT FROM OPERATING ACCOUNTS
4.1 OPERATING EXPENSES: From the operating account, Pinnacle is
authorized to pay or to reimburse Pinnacle for all expenses and costs of
operating the Project set forth in the Plan and for all other sums due Pinnacle
under this Agreement, including Pinnacle's compensation which is described and
set forth in Section 15 hereof, in accordance with the Plan. Owner has sole
responsibility for the timely payment of all authorized expenses of the Project.
Upon 30 days notice by Pinnacle to Owner that Pinnacle has used its own funds to
pay authorized Project expenses, Owner shall reimburse Pinnacle.
4.2 EXTRAORDINARY EXPENSES: Unless specifically provided for in the Plan,
no single expenditure made for general maintenance or one-time contract service
in excess of $5,000.00 shall be allowable without prior written approval of
Owner. Pinnacle is required to submit a minimum of three (3) written bids for
all expenditures over $10,000.00. However, in the event of an emergency, owner
authorizes Pinnacle to authorize any reasonable expenditure which is necessary
or required because of danger to life or property, or which is immediately
necessary for the preservation and safety of the Project or the safety of the
tenants and occupants thereof, or if required to avoid the suspension of any
necessary service to the Project, or to comply with any applicable federal,
state, or local laws, regulations, or ordinances. Pinnacle shall, however,
before the end of the next business day, notify Owner in detail, concerning such
expenditures.
4.3 SPECIFIC EXPENSES TO BE PAID BY PINNACLE ON OWNER'S BEHALF: Pinnacle
shall pay from the Project operating account, in accordance with the business
plan or as otherwise directed by Owner, all utility and maintenance charges; all
real property taxes and assessments; all premiums for liability and casualty
insurance; all monthly payments upon
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underlying secured real property debt; Pinnacle's fees; all other operating and
rental expenses set forth herein; postage, copying, long distance charges and
other expenses directly associated with the property; the costs and expense of
uniforms for employees (where applicable) and the costs and expenses directly
associated with the training of Project employees. See Exhibit E for a schedule
of fees, which shall be paid from the operating account.
4.4 EXPENSES TO BE PAID DIRECTLY BY OWNER: In addition to income taxes
and gross receipt taxes (if any) incurred as a result of the operation of the
Project, Owner shall pay directly the following: N/A
4.5 FEES FOR LEGAL ADVICE: Owner shall pay reasonable expenses incurred
by Pinnacle in obtaining legal advice regarding compliance with any law
affecting the Project or activities related to the operation of the Project
within the budget established in the business plan. Pinnacle shall obtain the
prior consent of Owner for legal services expended in excess of the amounts set
forth in the business plan. If any expenditure for legal services also benefits
others for whom Pinnacle acts as a property manager, Owner's obligation shall be
limited to Owner's pro rata portion of such expense for legal services.
4.6 NET PROCEEDS: To the extent that funds are available, and after
maintaining a cash contingency reserve amount as specified in Section 2.3,
Pinnacle shall transmit net cash proceeds to Owner at least monthly at a time
specified by Owner. Such periodic cash payments shall be remitted to the
following address or transmitted via electronic wire transfer to designated bank
account to be specified at a later date:
GFS Equity Management LLC
c/x Xxxxxxx Financial Services
0000 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
4.7 PRIORITY OF PAYMENT: Should collected funds (excluding security
deposits deposited into trust accounts) be insufficient to satisfy the current
debts and obligations of the Project, such debts and obligations shall be paid
in the following order: First: third-party debt service payments, ground lease
payments, real estate taxes, personal property taxes, betterment assessments and
any other charges and liabilities which could become a lien against or result in
a forfeiture of the Property; Second: Project payroll, including state and
federal payroll taxes; Third: insurance premiums due in connection with
insurance maintained in accordance with Section 12; Fourth: charges by utility
companies (including, but not limited to, gas electric, water, sewer, garbage
and cable television); Fifth: bills and charges, if any, incurred by Manager for
Manager's services provided to Owner exclusive of the Management Fee and any
other fees due to Manager hereunder (if any); Sixth: the Management Fee;
Seventh: other bills and charges of third parties, and any and all claims and
demands of third parties and liabilities to third parties relating to the
Property or the operation thereof which Owner in its discretion determines to
pay from the Operating Account. Where the terms of any loan security agreement
with Owner conflict with the terms of this section, the terms of such loan
security
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agreement shall control, provide, the Owner has notified Agent of the existence
of any such condition.
SECTION 5
FINANCIAL AND OTHER REPORTS
5.1 REPORTS: By the 10th business day of each month, Pinnacle shall
furnish to Owner a statement of receipts and disbursements from the operation of
the Project during the prior calendar or fiscal month. In addition, Pinnacle
shall, on a mutually acceptable schedule and at Owner's request, prepare and
submit to Owner such other reports as Owner shall specify and as may be required
pursuant to the terms of any of Owner's lenders, including, but not limited to
the following:
a.) Weekly occupancy, leasing status and traffic reports.
b.) Monthly market comparable rent survey.
c.) Monthly bank reconciliation's.
d.) Monthly financial operating reports to include balance sheet,
aged payables, aged receivables, check register and rent roll.
5.2 OWNER'S RIGHT TO AUDIT: Owner shall have the right to request
periodic audits of all applicable accounts managed by Pinnacle and the cost of
such audits shall be paid by Owner, as an expense of the Project. Such audits
may be made during normal business hours posted at the property with advance
notice by Owner. Per Owner request, Agent will engage an independent third party
firm to audit the annual records, as well as prepare partnership tax returns at
the expense of the property. Pinnacle cannot be held liable for the work product
performed by the auditor.
SECTION 6
ADVERTISING
6.1 ADVERTISING: Pinnacle is authorized to advertise the Project and
vacant units within the Project for rent and employment, using periodicals,
signs, plans, brochures or displays, or such other means as Pinnacle may deem
proper and advisable. Pinnacle is authorized to place signs on the Project
advertising that units are available for rent, provided such signs comply with
applicable laws. The cost of such advertising shall be paid out of the operating
account, in accordance with the advertising budget or as approved by Owner. All
advertising shall make clear that Pinnacle is the manager and is not the Owner
of the Project. Pinnacle shall have the right to publish advertisements that
share space with other properties managed by Pinnacle. Provided, that the costs
of such advertising shall be prorated among the various projects.
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SECTION 7
LEASING AND RENTING
7.1 PINNACLE'S AUTHORITY TO LEASE PROJECT: Pinnacle shall use its best
efforts to keep the Project rented by procuring tenants for the Project.
Pinnacle is authorized to negotiate, prepare and execute all rental agreements,
including all renewals and extensions of rental agreements, and to cancel and
modify existing rental agreements subject to the Plan. Pinnacle shall execute
all rental agreements as agent for the Owner. All costs of leasing shall be paid
out of the operating account, in accordance with the leasing budget or as
approved by Owner. No rental agreement shall be for a period in excess of one
(1) year without the written approval of Owner. The form of the rental agreement
shall be agreed upon by Owner and Pinnacle, and be acceptable to the lender for
the Project.
7.2 NO OTHER RENTAL AGENT: During the term of this Agreement, Owner shall
not authorize any other person, firm or corporation to negotiate or act as
leasing or rental agent with respect to any leases for commercial or residential
space in the Project. Owner agrees to promptly forward all inquiries about
leases or rental agreements to Pinnacle.
7.3 RENTAL RATES: In accordance with the provisions of the Plan or as
otherwise directed by Owner, Pinnacle may establish and set or revise all rents,
fees or other deposits, and all other charges chargeable with respect to the
Project. Pinnacle shall be authorized to promote the occupancy of the Project by
granting rental concessions and other promotional bonuses to prospective and
current tenants, after first consulting with Owner as to the nature, quantity
and duration of such rental concessions and promotional bonuses.
7.4 ENFORCEMENT OF RENTAL AGREEMENTS: Pinnacle is authorized to
institute, in Owner's name or in the name of Pinnacle, all legal actions or
proceedings for the enforcement of any rental term, for the collection of rent
or other income due to the Project, or for the eviction or dispossession of
tenants or other persons from the Project. Pinnacle is authorized to sign and
serve such notices as Pinnacle and Owner deem necessary for the enforcement of
rental agreements, including the collection of rent and other income. Pinnacle
may settle, compromise and release such legal actions or suits or to reinstate
such tenancies without the prior consent of Owner, if such settlement,
compromise, or release shall involve an amount in controversy of One Thousand
Dollars ($1,000), or less. Where the amount in controversy is in excess of One
Thousand Dollars ($1,000), Pinnacle shall first obtain the authorization of
Owner (written or oral) before entering into any compromise, settlement, or
release of such legal action. Any moneys for such settlements paid out by
Pinnacle shall be an operating expense of the Project. Reasonable attorney's
fees, filing fees, court costs and other necessary expenditures incurred in the
connection with such action shall be paid out of the Project operating account
or shall be reimbursed directly to Pinnacle by Owner. All funds recovered by
tenants shall be deposited into the Project operating account. Unless otherwise
directed by Owner, Pinnacle may select the attorney or attorneys to handle any
and all such litigation.
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SECTION 8
PROJECT EMPLOYEES
8.1 PINNACLE'S AUTHORITY TO HIRE: Pinnacle is authorized to hire,
supervise, discharge and pay all servants, employees, contractors or other
personnel necessary to be employed in the management, maintenance and operation
of the Project so long as all payroll and related expenditures for such
personnel are within the Plan guidelines. All employees performing services
directly for the Project (excluding off-site property manager) shall be deemed
to be employees of Pinnacle. When requested by Owner, Pinnacle shall consult
with Owner in decisions relating to the hiring, promotion and termination of
Project employees.
8.2 OWNER TO REIMBURSE EMPLOYEE EXPENSES: All wages, fringe benefits, and
all other forms of compensation payable to, or for the benefit of, employees of
the Project (but not to property managers not employed directly by the Project)
and all local, state and federal taxes and assessments (including, but not
limited to, payments to and administration of fringe benefits, Worker's
Compensation, Social Security taxes and Unemployment Insurance) incident to the
employment of all such personnel, shall be treated as an operating expense of
the Project and shall be paid by Pinnacle from Owner's funds, from the Project
operating account subject to the Plan. Such payments shall also include all
awards of back pay and overtime compensation which may be awarded to any project
employee in any legal proceeding, or in settlement of any action or claim which
has been asserted by any such employee. Exhibit B sets forth the name of: (a)
the senior executive personnel of Pinnacle who will be responsible for the
performance of Pinnacle's duties under this Agreement (the "Executive
Personnel"); and (b) Pinnacle's on-site building manager (the "Building
Manager"). Any change in the Executive Personnel or Building Manager shall be
subject to Owner's approval. Attached hereto as Exhibit C is a schedule (the
"Reimbursable Employee Expense Schedule") that sets forth: (a) a list of
Pinnacle's employees (including the Building Manager) who shall be employed
on-site in the direct management and operation of the Project; (b) the
respective titles and salary of each such employee; (c) the length of time that
each such employee has been employed by Pinnacle; (d) whether each such employee
works full or part-time (and if they work part-time, the number of hours they
work per week); (e) the cost of salary and wages that may be charged to the
Project for each such employee; and (f) whether each such employee is bonded or
covered under Pinnacle's comprehensive crime insurance policy. The Reimbursable
Employee Expense Schedule shall also identify any employees of Pinnacle who are
not located at the Project but whose salaries may be charged to the Project pro
rata based upon services actually rendered by such employees directly to the
Project (in which event the Reimbursable Employee Expense Schedule shall set
forth the salaries of such offsite employees and the maximum percentage thereof
that may be charged to the Project). In no event shall Pinnacle be entitled to
charge to the Project any employee-related expenses: (i) that relate to general
or supervising management personnel, accountants or auditors; (ii) for which a
separate fee is charged by Pinnacle pursuant to this Agreement or otherwise; or
(iii) that are not specifically set forth on the approved Reimbursable Employee
Expense Schedule. The expenses chargeable to the Project pursuant to the
Reimbursable Employee Expense Schedule may be modified from time to time only as
part of the a Plan or as otherwise agreed upon by Owner and Pinnacle in writing.
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8.3 PINNACLE'S AUTHORITY TO FILE RETURNS: Pinnacle shall do and perform
all acts required of an employer with respect to the Project and shall execute
and file all tax and other returns required under the applicable federal, state
and local laws, regulations and/or ordinances governing employment, and all
other statements and reports pertaining to labor employed in connection with the
Project and under any similar federal or state law now or hereafter in force. In
connection with such filings, Owner shall, upon request, promptly execute and
deliver to Pinnacle all necessary powers of attorney, notices of appointment and
the like. Owner shall be responsible for all amounts required to be paid under
the foregoing laws, and Pinnacle shall pay the same from the operating account.
8.4 WORKER'S COMPENSATION INSURANCE/TAXES: Pinnacle shall, at Owner's
expense, maintain and administer a Worker's Compensation Insurance program
covering all liability of Pinnacle and the Project under established worker's
compensation laws and all other Federal and State labor laws, whether such laws
provide that such insurance shall be obtained from a third party carrier or from
a state fund and whether such payments shall be denominated as insurance
premiums or taxes.
SECTION 9
OPERATIONS, MAINTENANCE AND REPAIR
9.1 PERFORMANCE OF REPAIRS: Pinnacle is authorized to make or cause to be
made, through Project employees, Pinnacle's employees, or through contracted
services, all ordinary repairs and replacements reasonably necessary to preserve
the Project in its present condition and for the operating efficiency of the
Project, and all alterations required to comply with rental agreement
requirements, government regulations or insurance requirements. In accordance
with the operating budget (the Plan) or as otherwise directed by Owner, Pinnacle
is also authorized to decorate the Project and the individual apartment units
and to purchase or rent, on Owner's behalf, all equipment, tools, appliances,
materials, supplies, uniforms and other items necessary for the management,
maintenance or operation of the Project. Such maintenance and decorating
expenses shall be paid out of the operating accounts.
9.2 FEES FOR WORK PERFORMED BY PINNACLE'S EMPLOYEES: With Owner's prior
approval, Pinnacle may cause repairs and replacement work to be performed by
employees for Pinnacle. Owner shall pay to Pinnacle a reasonable fee for such
services based upon the then current hourly charges made and assessed by
Pinnacle for the performance of such services. Such charges shall be
approximately equal to Pinnacle's direct and indirect expenses associated with
the employment of such person. Such charges shall be reasonable and shall not be
more than charges made by qualified independent contractors performing similar
work, under similar circumstances, in the same geographical area as the Project.
9.3 CONTRACTS, UTILITIES AND SERVICES: Pinnacle is authorized to
negotiate contracts for non-recurring items of expense, not to exceed $5,000.00.
Pinnacle shall enter into agreements for all necessary repairs, maintenance,
minor alterations, and utility
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services, and make contracts on Owner's behalf for electricity, gas, telephone,
fuel, water and such other services required for the operation of the Project,
in accordance with the Plan. All utility deposits shall be the Owner's
responsibility, except that Pinnacle may pay the same from the operating
accounts if directed to do so.
9.4 LIMITATIONS ON CONTRACTS: Each such contract or agreement shall: (a)
be in the name of the Project, (b) not be more than twelve months without
Owner's prior written consent, (c) shall not contain any automatic renewal
provisions for periods of more than thirty (30) days, (d) be assignable, at
Owner's option, to Owner or Owner's nominee, (e) include a provision of
cancellation thereof by Owner or Pinnacle upon not more than thirty (30) days
written notice (if available), and (f) shall require that all contractors
provide evidence of sufficient insurance. If this agreement is terminated
pursuant to Section 18, Pinnacle shall, at Owner's option, assign to Owner or
Owner's nominee all contracts and agreements pertaining to the Project. Pinnacle
shall then notify Owner if any such contracting entity is either a subsidiary,
affiliate, or has any other relationship whatsoever to Pinnacle.
9.5 PROPERTY TAX APPEALS: At the direction of, and with the approval of,
the Owner, Pinnacle shall engage a tax appeal professional to annually review
the tax assessment for possible abatement.
SECTION 10
RELATIONSHIP OF PINNACLE TO OWNER
Pinnacle is engaged independently in the business of property management
and acts hereunder as an independent contractor. Pinnacle shall act in a
fiduciary capacity with respect to the protection of and accounting for the
Owner's assets and shall serve the Owner's assets and shall serve the Owner's
interests at all time. Nothing contained in this Agreement shall be construed as
creating a partnership, joint venture, or any other relationship between the
parties to this Agreement, or as requiring Pinnacle to bear any portion of
losses arising out of or connected with the ownership or operation of the
Project. Pinnacle shall not, at any time during the term of this Agreement, be
considered to be a direct or indirect employee of Owner. Except as provided
herein, neither party shall have the power to bind or obligate the other party.
Except as specifically set forth in this Agreement, Pinnacle shall not act as
the agent of Owner; and, except as provided in this Agreement, Owner shall not
act as the principal of Pinnacle.
SECTION 11
INDEMNIFICATION AND BONDING
11.1 Pinnacle shall indemnify, hold harmless, protect and defend (with
counsel approved by Owner) the Owner from and against all loss, costs, expenses
and damages ("Damages") in any manner related to, arising out of or resulting
from:
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(a) any acts of Pinnacle or Pinnacle's agents, servants or employees
beyond the scope of its authority under this Agreement; or
(b) any negligence, willful misconduct of Pinnacle or Pinnacle's agents,
servants or employees.
If the circumstances or events described above are covered by Owner's
commercial general liability insurance, then Pinnacle's obligations under this
Section 11.1 shall apply only to the extent Owner's Damages are not fully paid
by Owner's commercial general liability insurance. Notwithstanding any other
provisions of this Agreement to the contrary, Pinnacle's obligations under this
Section 11.1 shall survive the expiration, termination or cancellation of this
Agreement.
11.2 Subject to Section 26.4, Owner shall protect, defend, indemnify and
hold harmless Pinnacle from and against any and all Damages arising out of the
performance by Pinnacle of its obligations and duties hereunder in accordance
with the terms hereof with respect to the Project; provided, however, that Owner
does not hereby agree, and shall not be obligated, to so indemnify Pinnacle from
any Damages arising out of any act or omission of Pinnacle or any of its agents,
officers, employees or representatives, which act or omission constitutes
negligence, willful misconduct, or is outside the scope of Pinnacle's authority
as provided herein
11.3 INDEMNIFICATION FOR VIOLATION OF LAW. Owner shall indemnify, defend
and save Pinnacle harmless from any and all claims, proceedings or liabilities
as well as all costs and expenses thereof, (including, but not limited to, fines
penalties, and reasonable attorneys fees) involving an alleged or actual
violation by Owner of any statute, rule or regulation pertaining to the
premises, property, the management or the operation of the Project, except to
the extent that such claim, proceeding or liability resulted from the negligence
or willful misconduct of Pinnacle.
SECTION 12
INSURANCE
12.1 OWNER'S INSURANCE AND RIGHTS. Manager, as an operating expense of the
Property payable from the Operating Account, will obtain and keep in force, in
the name of the Owner, adequate property and commercial liability insurance
covering Owner as primary insured and, with respect to liability insurance,
Manager as additional insured. Manager shall provide Owner with copies of
policies or certificates of insurance relating to the Property. Such insurance
may be blanketed with other insurance carried by Manager or any affiliate of
Manager, in which case a pro rata share of the premiums will be chargeable to
the Property as an operating expense. The Parties intend that Owner's general
liability insurance shall be primary in responding to all premises liability
claims. Nothing herein will be construed as indemnifying Manager or its
employees, contractors or agents against any act or omission for which insurance
protection is not available or is not required hereunder to be carried by Owner
and procured by Manager; neither is the foregoing intended to affect the general
requirement of this Agreement that the Property will be managed, operated and
maintained in a safe condition and in a proper and careful manner. Owner will
furnish whatever information is reasonably requested by
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Manager for the purpose of placement of insurance coverages and will aid and
cooperate in every reasonable way with respect to such insurance and any claim
or loss thereunder. Owner will cooperate with Manager and Owner's insurance
carrier on loss control inspections, responding to recommendations and other
safety issues.
12.2 MANAGER'S INSURANCE. Manager will maintain (as an operating expense
of the Property with respect to on-site employees only) Workers' Compensation
and similar insurance as required by law. Manager may maintain, at Manager's
expense, Commercial General Liability Insurance. Manager will maintain the
following insurance at its own expense (not chargeable to the Property):
i. Automobile Liability - As to any vehicle owned, non-owned
or hired by Manager, used in connection with the Project,
$1,000,000 covering losses due to the insurer's liability
for bodily injury or property damage.
ii. Medical Expenses - $5,000 per person per accident.
iii. Uninsured/Underinsured Motorists' Coverage for any owned
car - $1,000,000.
iv. Comprehensive crime (including Employee Dishonesty)
insurance with limits and terms acceptable to Owner or a
fidelity bond acceptable to Owner.
v. Excess Liability Coverage - $5,000,000.
The minimum A.M. Best's rating of each insurer is A-IX. Manager will furnish
Owner with certificates of insurance simultaneously with the execution of this
Agreement and whenever coverage is renewed or replaced, evidencing the aforesaid
coverage, which will include provisions to the effect that Owner will be given
at least 30 days' prior written notice of cancellation or non-renewal of or any
material change in any of the aforesaid policies. Owner will be named as an
additional insured with respect to all insurance policies required under (b) and
(d) above and as loss payee as respects (c) above. All liability policies shall
contain endorsements that (i) delete any employee exclusion on personal injury
coverage, (ii) include employees as additional insureds and (iii) contain
cross-liability, waiver of subrogation and such other provisions as Owner may
reasonably require.
12.3 CONTRACTORS' AND SUBCONTRACTORS' INSURANCE. Pinnacle will require
that all parties performing work on or with respect to the Project, including,
contractors, subcontractors and service vendors, provide evidence of insurance
coverage at such parties' expense, in the following minimum amounts:
(a) Workers' Compensation - Statutory amount.
(b) Employer's Liability - $500,000 each accident; $500,000
disease-policy limit; $500,000 disease - each employee.
12
(c) Automobile Liability - $1,000,000 covering losses due to the
insurer's liability for bodily injury or Project damage.
(d) Medical Expenses - $5,000 per person per accident.
(e) Uninsured/Underinsured Motorists' Coverage- $1,000,000.
(f) Commercial General Liability: Bodily injury and Project damage -
$1,000,000 combined single limit with Contractual Liability coverage.
(g) Excess Liability Coverage - $5,000,000 or such greater amount as
is needed for the specific job.
(h) Transit Coverage - As needed for the specific job.
The minimum A.M. Best's rating of each insurer is A-IX. Pinnacle must obtain
Owner's written permission to waive any of the above requirements. Higher
amounts may be required by Owner if the work to be performed is deemed by Owner
to be hazardous. Pinnacle will obtain and keep on file a certificate of
insurance which shows that each such party is so insured. Owner will be named as
an additional insured with respect to Contractors' and Subcontractors' Auto
Liability, Commercial General Liability and Excess Liability policies. Pinnacle
will receive from vendors evidence of indemnification and hold harmless
provisions in favor of Owner and Pinnacle.
12.4 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the
following provision may be effective without invalidating or making it
impossible to obtain insurance, Pinnacle and Owner agree that with respect to
any hazard, liability, casualty or other loss or claim which is covered by
insurance then being carried by either Owner or Pinnacle: (a) the party carrying
such insurance and suffering such loss releases the other party of and from any
and all claims with respect to such loss to the extent of the insurance proceeds
paid with respect thereto and specifically excepting from such release any
deductible required to be paid therewith; and (b) their respective insurance
companies shall have no right of subrogation against the other or their
respective agents, contractors, employees, licensees or invitees on account
thereof.
SECTION 13
PINNACLE ASSUMES NO LIABILITY
Pinnacle assumes no liability whatsoever for any acts or omissions of Owner or
any previous owners of the Project, or any previous property managers or other
agents of either Owner or Pinnacle. Pinnacle assumes no liability for any
failure of or default by any tenant in the payment of any rent or other charges
due Owner or in the performance of any obligations owed by any tenant to Owner
pursuant to any rental agreement or otherwise unless solely caused by willful
misconduct of Pinnacle. Nor does Pinnacle assume any liability for previously
unknown violations of environmental or other regulations which may become known
during the period this Agreement is in effect. Any such environmental violations
or hazards discovered by Pinnacle
13
shall be brought to the attention of Owner in writing and Owner shall be
responsible for such violations or hazards. Pinnacle also assumes no liability
for any failure of computer hardware, software of miscellaneous computer systems
to accurately process data (including, but not limited to, calculating,
comparing, and sequencing).
SECTION 14
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
14.1 ASSIGNMENT: Pinnacle may, from time to time, assign its rights and
obligations under the terms and provision of this Agreement to a subsidiary of
Pinnacle, which shall be duly licensed and otherwise capable of performing the
services of Pinnacle under the terms and provisions of this Agreement with the
prior written consent of Owner.
14.2 NOVATION: In the event of such assignment, notice shall be given to
Owner, and upon Owner's receipt of such notice, Owner shall look solely to the
assignee for the performance of all obligations of Pinnacle under the terms and
provisions of this Agreement.
SECTION 15
PINNACLE'S COMPENSATION AND EXPENSES
15.1 COMPENSATION: As compensation for the services provided by Pinnacle
under this Agreement (and exclusive of reimbursement of expense to which
Pinnacle is entitled hereunder), Owner shall pay Pinnacle the following
compensation:
15.2 FOR MANAGEMENT SERVICES: Three and One-Half percent (3.5%) of the
total monthly gross receipts from the Project. Such compensation shall be
payable during the next succeeding month for the monthly gross receipts for the
current month. Payments due Pinnacle for periods of less than a calendar month
shall be prorated over the number of days for which compensation is due.
A. The term "gross receipts" shall be deemed to include all rents
and other income and charges from the normal operation of the
Project, including, but not limited to, rents, parking fees, net
laundry income, forfeited security deposits, pet deposits, other
fees, and other miscellaneous income. Gross receipts shall not
be deemed to include interest on reserve accounts, interest on
other depository accounts and income arising out of the sale of
real property or the settlement of fire or other casualty losses
and items of a similar nature.
15.3 ACTS OF GOD: In the event of a casualty loss due to Acts of God
and/or other insurance claims such as, without limitation, hurricanes,
tornadoes, earthquakes, fires or floods, where the Project lender allows
restoration of damage to the Project, if Owner engages Pinnacle
14
to oversee such restoration work under a separate written agreement, Owner
agrees to pay Pinnacle five percent (5%) of the total cost of the reconstruction
project for overseeing the project to completion provided that said fee is
reimbursed in its entirety under the provisions of Owner's insurance policy.
15.4 CONSTRUCTION MANAGEMENT SERVICES: If Owner engages Pinnacle to
oversee Project Improvements, over and above routine maintenance, such
improvements shall be performed under a separate written agreement. Owner agrees
to pay Pinnacle five percent (5%) of the total cost of the improvements for
overseeing the improvement project to completion
15.5 FOR OTHER ITEMS OF MUTUAL AGREEMENT: Should Owner wish Pinnacle to
perform services which are not otherwise governed by the terms and provisions of
this Agreement, the parties shall meet to discuss and to agree upon the
additional compensation to be paid by Owner to Pinnacle for such additional
services.
15.6 INTEREST ON UNPAID SUMS: Any sums due Pinnacle under any provision of
this Agreement, and not paid within thirty (30) days after such sums have become
due, shall bear interest at the rate of twelve percent (12%) per annum.
SECTION 16
STRUCTURAL CHANGES
Owner expressly withholds from Pinnacle any power or authority to make any
structural changes in any building, or to make any other major alterations or
additions in or to any such building or to any equipment in any such building,
or to incur any expense chargeable to Owner other than expenses related to
exercising the express powers vested in Pinnacle through this Agreement, without
the prior written consent of Owner. However, such emergency repairs as may be
required because of danger to life or property, or which are immediately
necessary for the preservation and safety of the Project or the safety of the
tenants and occupants thereof, or required to avoid the suspension of any
necessary service to the Project, or to comply with any applicable federal state
or local laws, regulations or ordinances, shall be authorized pursuant to
section 4.2 of this Agreement, and Pinnacle shall notify Owner appropriately.
SECTION 17
BUILDING COMPLIANCE
Pinnacle does not assume and is given no responsibility for compliance of
the Project or any building thereon or any equipment therein with the
requirements of any building codes or with any statute, ordinance, law or
regulation of any governmental body or of any public authority or official
thereof having jurisdiction, except to notify Owner promptly or forward to Owner
promptly any complaints, warnings, notices or summons received by Pinnacle
relating to such matters. Owner authorizes Pinnacle to disclose the Ownership of
the Project(s) to any such officials and agrees to indemnify and hold Pinnacle
its representative, servants, and employees
15
harmless of and from all loss, cost, expense and liability whatsoever which may
be imposed by reason of any present or future violation or alleged violation of
such laws, ordinances, statutes or regulations; provided, indemnity shall not be
applicable if Pinnacle has actual knowledge of any such violation or alleged
violation but fails to give notice to Owner, as provided under the terms and
provisions of this Agreement.
SECTION 18
TERMINATION
18.1 TERMINATION BY EITHER PARTY: This Agreement may be terminated by
either Owner or Pinnacle, with or without cause, anytime during or after the end
of the initial term by giving not less than thirty (30) days advanced written
notice to the other party.
18.2 TERMINATION FOR CAUSE: Notwithstanding the foregoing, this Agreement
shall terminate in any event, and all obligations of the parties hereunder shall
cease (except as to liabilities or obligations which have accrued or arisen
prior to such termination, or which accrue pursuant to Section 18.3 as a result
of such termination, and obligations to insure and indemnify), upon the
occurrence of any of the following events:
A. BREACH OF AGREEMENT: Ten (10) days after the receipt of notice
by either party to the other specifying in detail a material breach of this
Agreement, if such breach has not been cured within said ten (10) day
period; or if such breach is of a nature that it cannot be cured within
said ten (10) day period but can be cured within a reasonable time
thereafter, if efforts to cure such breach has not commenced and/or such
efforts are not proceeding and being continued diligently both during and
after such ten (10) day period prior to the breach being cured. However,
the breach of any obligation of either party hereunder to pay any moneys to
the other party under the terms of this Agreement shall be deemed to be
curable within ten (10) days. Termination of this Agreement shall be
Owner's sole remedy for claims of breach of contract.
B. EXCESSIVE DAMAGE: Upon the destruction of or substantial damage
to the Project by any cause, or the taking of all or a substantial portion
of the Project by eminent domain, in either case making it impossible or
impracticable to continue operation of the Project.
C. SALE OF PROJECT: In the event of the sale of the Project, this
Agreement shall terminate upon the giving of not less than thirty (30) days
written notice by Owner to Pinnacle.
D. DEFAULT: Immediately upon the occurrence of any of the following
events shall constitute an event of default by the party in respect of
which such even occurs:
16
1. the failure of either party to pay any amounts required to
be paid by it hereunder or to perform any of its obligations
hereunder for a period of ten (10) days after the date on which
notice of the failure has been given to the defaulting party by the
other party;
2. the filing of a voluntary petition in bankruptcy or
insolvency or a petition for reorganization under any bankruptcy or
similar creditor relief law;
3. the consent to an involuntary petition in bankruptcy or the
failure by such party to vacate, within sixty (60) days from the date
of entry thereof, any order approving an involuntary petition;
4. the entering of an order, judgment or decree by any court
of competent jurisdiction, on the application of a creditor,
adjudicating such party as bankrupt or involvement or approving a
petition seeking reorganization or appointing a receiver, trustee,
conservator or liquidator of all or a substantial part of such
party's assets, if such order, judgment or decree shall continue
unstayed and in effect for a period of one hundred twenty (120)
consecutive days;
5. the failure to fulfill any of the other covenants,
undertakings, obligations or conditions set forth in this Agreement
and the continuance of any such default for a period of ten (10) days
after written notice of said failure; and
6. theft, fraud, or other knowing or intentional misconduct by
Pinnacle or its employees or agents.
18.3 TERMINATION COMPENSATION: Any amounts accruing to Pinnacle prior to
such termination shall be due and payable when a final accounting, as set forth
in Section 18.6, is delivered in a form reasonably satisfactory to Owner. To the
extent that funds are available, and in any event prior to the disbursement of
payments (other than underlying mortgage obligations) to Owner, such sums shall
be payable from the operating accounts. Any amounts due in excess of the funds
available from the operating account shall be paid by Owner to Pinnacle upon
demand.
18.4 OWNER RESPONSIBLE FOR PAYMENTS: Upon termination of or withdrawal
from this Agreement, Owner shall assume the obligations of any contract or
outstanding xxxx executed by Pinnacle under this Agreement for and on behalf of
Owner, if such xxxx was incurred by Pinnacle in accordance with the Plan or as
otherwise approved by Owner. In addition, Owner shall indemnify Pinnacle against
any obligations or liabilities which Pinnacle may have properly incurred on
Owner's behalf under this Agreement.
18.5 ACCOUNTS: UNPAID BILLS: Pinnacle shall deliver to Owner, within
thirty (30) days (or sooner if required by law) after this Agreement is
terminated, any balance of unobligated moneys due Owner and tenant security
deposits which were held by Pinnacle with respect to the Project, as well as an
accounting, reflecting the balance of income and expenses
17
with respect to the Project, as of the date of termination or withdrawal, and
all records, contracts, leases, receipts for deposits, and other papers or
documents which pertain to the Project. All remaining (previously considered
obligated) funds will be provided within ninety (90) days along with a final
accounting to include a detail of any invoices paid by checks which were voided
in order to close the operating or security deposit account in a timely manner.
Bills previously incurred but not yet invoiced shall be the responsibility of
and sent directly to Owner.
18.6 FINAL ACCOUNTING: Since all records, contracts, leases, rental
agreements, receipts for deposits, unpaid bills, and other papers and documents
which pertain to the Project are deemed to be the property of the Owner, they
are to be delivered to Owner, upon the effective date of such termination,
Pinnacle may retain temporary possession of such records as may be necessary in
order to comply with the provisions of Section 18.5 and/or law. Without limiting
the foregoing, after termination of this Agreement, Manager shall have the right
to retain copies and/or originals of records relating to the Property to the
extent required by and in accordance with Oregon law.
18.7 NON-INTERFERENCE WITH PINNACLE'S BUSINESS: Owner agrees that for a
period of six (6) months after termination of this Agreement, Owner will under
no circumstances hire any of Pinnacle's employees of special talent, or privy to
Pinnacle's confidential business information, or who have contributed notably to
the good will of Pinnacle's business or any broker, salesman or leasing agent to
perform any services which are in the scope of Pinnacle's business. In the event
of an actual or threatened breach of this covenant by Owner, Pinnacle shall be
entitled to an injunction restraining Owner from committing, or continuing to
commit, any such breach. Nothing herein stated shall be construed as prohibiting
Pinnacle from pursuing any other remedies available to Pinnacle for such breach
and threatened breach, including recovery of damages from Owner. On-site
employees are exempt from the provisions of this paragraph.
SECTION 19
REPRESENTATIONS
19.1 OWNER'S REPRESENTATIONS AND WARRANTIES: Owner represents and warrants
as follows: (a) Owner has the full power and authority to enter into this
Agreement, and the person executing this Agreement is authorized to do so; (b)
there are no written or oral agreements affecting the Project other than the
tenant leases or rental agreements, copies of which have been furnished to
Pinnacle; (c) all permits for the operation of the Project has been secured and
are current; and (d) Owner is not aware of any violation of any building or
construction statute, ordinance, or regulation that will affect the operation of
the Project.
19.2 PINNACLE'S REPRESENTATIONS AND WARRANTIES: Pinnacle represents and
warrants as follows: (a) the officers of Pinnacle have the full power and
authority to enter into this Agreement; (b) there are not written or oral
agreements by Pinnacle that will be breached by, or agreements in conflict with,
Pinnacle's performance under this Agreement; and (c) where necessary, Pinnacle
will be duly licensed and able to perform all of the duties under
18
this Agreement at the effective date of this Agreement and shall comply with and
abide by all laws, rules, regulations, and ordinances pertaining thereto.
SECTION 20
HEADINGS
All headings and subheadings employed within this Agreement are inserted
only for convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
SECTION 21
FORCE MAJEURE
Any delays in the performance of any obligation of Pinnacle under this
Agreement shall be excused to the extent that such delays are caused by wars,
national emergencies, natural disasters, strikes, labor disputes, utility
failures, governmental regulations, riots, adverse weather, and other similar
causes not within the control of Pinnacle, and any time periods required for
performance shall be extended accordingly.
SECTION 22
COMPLETE AGREEMENT
This Agreement, including any specified attachments, constitutes the entire
agreement between Owner and Pinnacle with respect to the management and
operation of the Project and supersedes and replaces any and all previous
management agreements entered into and/or negotiated between Owner and Pinnacle
relating to the Project covered by this Agreement. No change to this Agreement
shall be valid unless made by supplemental written agreement executed and
approved by Owner and Pinnacle. Except as otherwise provided herein, any and all
amendments, additions or deletions to this Agreement shall be null and void
unless approved by Owner and Pinnacle in writing. Each party to this Agreement
hereby acknowledges and agrees that the other party has made no warranties,
representations, covenants or agreements, express or implied, to such party,
other than those expressly set forth herein, and that each party, entering into
and executing this Agreement has relied upon no warranties, representations,
covenants or agreements, express or implied, to such party, other than those
expressly set forth herein, or as set forth in an exhibit or appendix to this
Agreement.
SECTION 23
RIGHTS CUMULATIVE: NO WAIVER
No right or remedy herein conferred upon or reserved to either of the
parties to this Agreement is intended to be exclusive of any other right or
remedy, and each and every right and
19
remedy shall be cumulative and in addition to any other right or remedy given
under this Agreement or now or hereafter legally existing upon the occurrence of
an event of default under this Agreement. The failure of either party to this
Agreement to insist at any time upon the strict observance or performance of any
of the provisions of this Agreement, or to exercise any right or remedy as
provided in this Agreement, shall not impair any such right or remedy or be
construed as a waiver or relinquishment of such right or remedy with respect to
subsequent defaults. Every right and remedy given by this Agreement to the
parties to it may be exercised from time to time and as often as may be deemed
expedient by those parties.
SECTION 24
APPLICABLE LAW AND LITIGATION
24.1 INTERPRETATION: The execution, interpretation and performance of this
Agreement shall in all respects be controlled and governed by the laws of the
State of the location of the Project. If any part of this Agreement shall be
declared invalid or unenforceable, Pinnacle or Owner shall have the option to
terminate this Agreement by giving written notice to the other party.
24.2 LITIGATION: In the event that either party shall bring an action to
enforce or to interpret the terms and provisions of this Agreement, the
substantially prevailing party in such action shall be entitled to receive court
costs and the reasonable fees and expenses of attorneys and certified public
accountants.
SECTION 25
NOTICES
Any notices, demands, consents and reports necessary or provided for under
this Agreement shall be in writing and shall be delivered by hand, by nationally
recognized overnight express delivery service (all charges prepaid) for next day
delivery or by U.S. registered or certified mail, return receipt requested (all
postage prepaid) and shall be addressed as follows, or at such other address as
Owner and Pinnacle individually may specify hereafter in writing:
Pinnacle: PINNACLE REALTY MANAGEMENT COMPANY
0000 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Pinnacle Pinnacle Realty Management Company
Attn: Xxxxxxx X. Xxxxxxxx, Principal Broker
000 XX Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
20
OWNER: BC - GFS BOULDER CREEK LLC
c/o Goodman Financial Services, Inc.
0000 Xxxxxxx Xxx, #000
Xxxxxxx, XX 00000
With copies to: BC-GFS II LLC
c/o Boston Capital Corporation
Xxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx
Any notice or other communication sent or provided above shall be deemed given
(i) on the date of delivery, if by hand or (ii) on the date mailed, if sent by
overnight express delivery service or U.S. registered or certified mail notice
shall be deemed received on the date of receipt by the addressee or the date
receipt would have been effectuated if delivery were not refused. Each party
hereto may designate a new Notice Address by written notice to the other parties
in accordance with this Section 25. The inability to deliver a notice because of
a change of address of which proper notice was not given shall be deemed a
refusal of such notice.
SECTION 26
26.1 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS. This Agreement shall
be binding upon the parties hereto and their respective personal
representatives, heirs, administrators, executors, successors and assigns.
26.2 AGREEMENT IN COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be considered an original and all shall
constitute one and the same Agreement, binding upon all of the parties hereto,
notwithstanding that all of the parties may not be signatories to the same
counterpart.
26.3 TIME PERIODS. In the event the time for performance of any obligation
hereunder expires on a day other than a Business Day, the time for performance
shall be extended to the next day that is a Business Day.
26.4 EXCULPATION. Pinnacle, and all persons claiming by, through or under
Pinnacle, shall look solely to Owner's interest in the Project for the
satisfaction of any claim now existing or hereafter arising or accruing against
the Owner, and in no event shall Owner be liable for any deficiency.
26.5 CONFIDENTIALITY. Pinnacle and its employees and agents agree to keep
all information related to the Property and Owner confidential, except to the
extent necessary to carry out Pinnacle's obligations under this Agreement or as
may be required by law.
26.5 PINNACLE'S AGREEMENT TO NOT COMPETE. During the term of this
Agreement, Pinnacle shall notify Owner, in writing, of the existence of any
property
21
management services it provides to other clients within a three (3) mile radius
of the Project. Such notice to be given within a reasonable period of time and
to include the name of the Project and the effective date of management.
Pinnacle further agrees to not utilize the services of the same Investment
Manager for the Project on any other client of Pinnacle's properties within a
one-quarter mile radius of the Project.
IN WITNESS WHEREOF, the parties hereto have affixed and caused to be
affixed their respective signatures as of the day and year first written above.
OWNER: AMERICAN MANAGEMENT SERVICES
NORTHWEST LLC
BC-GFS BOULDER CREEK LLC, a Delaware By: /s/ Xxxx Xxxxxxxxx
limited liability company -----------------------
Xxxx Xxxxxxxxx
Its: Manager
By: BC-GFS II LLC, a Delaware limited Date:
liability company, its sole Member and ---------------------
Manager
By: GFS Equity Management LLC, a
Washington limited liability
company, its Manager
By: /s/ Xxxx X. Xxxxxxx, Manager
----------------------------
Xxxx X. Xxxxxxx, Manager
Date:
----------------------
00
XXXXXXX XXXXX APARTMENTS
EXHIBIT A
PRELIMINARY BUDGET
BOULDER CREEK APARTMENTS
EXHIBIT B
EXECUTIVE PERSONNEL
NORTHWEST REGION PRESIDENT: Xxxx Xxxxxxx
INVESTMENT MANAGERS OF RECORD: Xxxxx Xxxxx
NORTHWEST ACCOUNTING MANAGER: Xxxxxxxx XxXxxx
BOULDER CREEK APARTMENTS
EXHIBIT C
REIMBURSABLE EMPLOYEE EXPENSE SCHEDULE
Within 30 days of the commencement of this Agreement, Exhibit C will be provided
for ownership review and approval.
BOULDER CREEK APARTMENTS
EXHIBIT D
AUTHORIZED SIGNERS ON CLIENTS' TRUST ACCOUNTS
BOULDER CREEK APARTMENTS
EXHIBIT E
THE FOLLOWING FEES AND CHARGES MAY BE PAID FROM THE PROJECT'S OPERATING ACCOUNT.
