1
EXHIBIT 10.8
AMENDED AND RESTATED MANAGEMENT AGREEMENT
BY AND BETWEEN
IRVINE APARTMENT COMMUNITIES, L.P.
A DELAWARE LIMITED PARTNERSHIP
AS "OWNER"
AND
IRVINE APARTMENT MANAGEMENT COMPANY,
A CALIFORNIA GENERAL PARTNERSHIP
AS "MANAGER"
DATED AS OF JANUARY 1, 2000
2
TABLE OF CONTENTS
ARTICLE I
EXCLUSIVE AGENCY
ARTICLE II
TERM OF AGREEMENT
ARTICLE III
TERMINATION
PAGE
3.1 Termination With Notice For Cause............................................2
3.2 Termination Without Notice For Cause.........................................2
3.3 Termination Following Sale of the Project; Dissolution or
Liquidation of Owner.........................................................3
3.4 Final Accounting.............................................................3
3.5 Continued Obligations of Owner...............................................4
ARTICLE IV
BUDGETS, ACCOUNTING AND REPORTING
4.1 Budget.......................................................................4
4.2 Operation in Accordance With Budget..........................................5
4.3 Books of Account.............................................................6
4.4 Financial Reports............................................................7
4.5 Supporting Documentation.....................................................7
4.6 Changes in Manager's Operations Manual.......................................7
ARTICLE V
OWNER'S RIGHT TO AUDIT
5.1 Owner's Right to Audit.......................................................7
ARTICLE VI
LEASING ACTIVITIES
6.1 Manager's Leasing Obligations................................................8
-i-
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VII
MANAGEMENT OF PROJECT
7.1 Duties of Manager; Standards.................................................9
ARTICLE VIII
BANK ACCOUNTS
8.1 Revenue Account.............................................................13
8.2 Operating Account...........................................................13
8.3 Security Deposit Account....................................................14
8.4 Change of Banks.............................................................14
8.5 Maintaining Project Funds in Insured Accounts...............................14
ARTICLE IX
INSURANCE AND INDEMNIFICATION
9.1 Insurance Types.............................................................14
9.2 Evidence of Insurance.......................................................15
9.3 Damages.....................................................................15
9.4 Workers' Compensation Insurance.............................................15
9.5 Comprehensive or Commercial General Liability Insurance.....................16
9.6 Automobile Liability Insurance..............................................16
9.7 Comprehensive Crime Insurance...............................................16
9.8 All Risk Insurance..........................................................16
9.9 Manager's Obligations.......................................................17
9.10 Waiver of Subrogation.......................................................17
9.11 Claims Procedures...........................................................17
9.12 Insurance Audit; Refunds....................................................17
9.13 Owner's Election to Insure..................................................17
ARTICLE X
COMPENSATION OF MANAGER
10.1 Management Fee..............................................................18
-ii-
4
TABLE OF CONTENTS
(CONTINUED)
ARTICLE XI
PAYMENT OF EXPENSES
PAGE
11.1 Costs Eligible for Payment from Operating Account...........................18
11.2 Non-Reimbursable Costs......................................................20
ARTICLE XII
GENERAL PROVISIONS
12.1 Independent Contractor......................................................21
12.2 Notices.....................................................................21
12.3 Brokers.....................................................................21
12.4 Attorneys' Fees.............................................................21
12.5 Assignment..................................................................21
12.6 Amendments..................................................................22
12.7 Licensing...................................................................22
12.8 Entire Agreement............................................................22
12.9 Counterparts................................................................22
12.10 Governing Law...............................................................22
12.11 Third-Party Disputes........................................................22
12.12 Fiduciary Relationship......................................................22
12.13 Gifts.......................................................................23
12.14 Confidentiality.............................................................23
12.15 Subordination to Mortgages..................................................23
12.16 Hazardous Wastes............................................................23
12.17 Regulatory Compliance.......................................................26
12.18 Approvals...................................................................26
12.19 Proposition 65 Compliance...................................................26
12.20 Indemnifications............................................................27
-iii-
5
EXHIBIT A - DESCRIPTION OF THE PROJECT
EXHIBIT B - MINIMUM INSURANCE REQUIREMENTS FOR OUTSIDE
CONTRACTORS NOT CLASSIFIED AS CLASS I
EXHIBIT C - MINIMUM INSURANCE REQUIREMENTS FOR CLASS I
OUTSIDE CONTRACTORS
EXHIBIT D - CLASS I CONTRACTORS
6
SCHEDULE OF DEFINED TERMS
The terms listed below are defined in the Sections of this Agreement referenced
below.
"Affiliate"...................................................Section 3.1
"Anti-Discrimination Policy"...............................Section 7.1(o)
"Approved Budget"..........................................Section 4.1(c)
"Budget Year"..............................................Section 4.1(d)
"Claim"......................................................Section 9.11
"Class I Contractors"......................................Section 9.1(a)
"Class I Work".............................................Section 9.1(a)
"Commencement Date".............................................Article 2
"Contractors"..............................................Section 9.1(a)
"Contracts"............................................Section 7.1(d)(ii)
"Control".....................................................Section 3.1
"Covered Personnel"........................................Section 7.1(o)
"Deposit Account".............................................Section 8.3
"Designated Units ...........................................Section 10.1
"Gift"......................................................Section 12.13
"Hazardous Wastes"........................................Section 12.16.2
"HMCP"....................................................Section 12.16.1
"Losses"....................................................Section 12.20
"Management Fee".............................................Section 10.1
"On Site Personnel"...........................................Section 9.4
"Operating Account"...........................................Section 8.2
7
"Original Management Agreement".................................Recital B
"Pro Rata Amount" ...........................................Section 10.1
"Project".......................................................Recital A
"Proposition 65"............................................Section 12.19
"Public Official"...........................................Section 12.13
"Regulatory Agreement"......................................Section 12.17
"Revenue Account".............................................Section 8.1
"Term"..........................................................Article 2
8
AMENDED AND RESTATED MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT AGREEMENT (the "AGREEMENT")
is made and entered into as of January 1, 2000, by and between IRVINE APARTMENT
COMMUNITIES, L.P., a Delaware limited partnership ("OWNER") and IRVINE APARTMENT
MANAGEMENT COMPANY, a California general partnership ("MANAGER").
RECITAL
WHEREAS, Owner and Manager are parties to that certain Management
Agreement dated as of April 1, 1998 (the "ORIGINAL MANAGEMENT AGREEMENT").
WHEREAS, pursuant to the Original Management Agreement, IAC
appointed Manager as its agent to lease, manage and operate the Projects (as
hereafter defined).
WHEREAS, IAC and Manager desire to amend and restate the Original
Management Agreement in its entirety, to provide for the leasing, management and
operation of the Projects from and after the date of this Agreement, and to
provide for certain other matters, all as more particularly described in this
Agreement, which amendment and restatement will be effective as of January 1,
2000 (the "EFFECTIVE DATE").
NOW, THEREFORE, with reference to and in reliance on the
foregoing Recitals, which Recitals are hereby incorporated into this Agreement,
and in consideration of the respective covenants and agreements of the parties
set forth herein, the parties hereby amend and restate in its entirety the
Original Management Agreement effective as of the Effective Date:
ARTICLE I
EXCLUSIVE AGENCY
Owner hereby grants to Manager the sole and exclusive right to
lease, rent and manage (i) all of the projects described in Exhibit A attached
hereto; and (ii) at Owner's election to be exercised in its sole and absolute
discretion, any other apartment project hereafter acquired, completed or
constructed by Owner during the term of this Agreement (individually, a
"PROJECT" and collectively, the "PROJECTS"). Exhibit A shall be amended from
time to time to reflect any Project hereafter covered by this Agreement pursuant
to clause (ii). Manager acknowledges that other than with respect to the
Projects listed on Exhibit A, Owner may appoint another Person to act as
property manager of any apartment project now or hereafter owned by Owner.
Manager hereby accepts such appointment, upon the terms set forth herein. The
Original Management Agreement shall govern the rights, obligations and
liabilities of the parties prior to the Effective Date.
9
ARTICLE II
TERM OF AGREEMENT
The term (the "TERM") of this Agreement shall commence on January
1, 2000 (the "COMMENCEMENT DATE") and shall terminate on March 31, 2001, unless
sooner terminated as provided in ARTICLE 3 below.
ARTICLE III
TERMINATION
3.1 TERMINATION WITH NOTICE FOR CAUSE. Owner may terminate this
Agreement "FOR CAUSE" (as defined below) by the delivery of written notice of
such termination to Manager. The acts or omissions of Manager which shall
entitle Owner to terminate this Agreement "FOR CAUSE" shall include: (a) failure
to operate or lease the Projects in an independent manner in the best interest
of Owner without favoritism to any other property in which Manager or any
Affiliate (as defined below) of Manager has any direct or indirect interest; (b)
failure to operate or lease a Project in accordance with the standards presently
in effect with respect to the operation and leasing of such Project; (c) failure
to operate or lease a Project at a level of quality at least equal to any other
property of a type similar to such Project located in Orange County or San Diego
County, California (as applicable) in which Owner or any of Owner's subsidiary
or affiliated companies has any direct or indirect interest; (d) failure to
provide accurate and timely reporting of financial and other information as
required by this Agreement; or (e) failure to cure any other breach of this
Agreement by Manager within the time period specified herein. Any termination
pursuant to this SECTION 3.1 shall be effective upon the expiration of ten (10)
days following the giving of such notice of termination to Manager, unless
Manager cures the specified failure within such ten (10) day period, or,
alternatively, if such failure is not capable of cure within ten (10) days,
unless Manager, within ten (10) days following the giving of such notice, shall
have initiated all necessary and appropriate action to cure such failure and
continues such action diligently to completion; provided, however, that in no
event shall such cure period exceed a total of sixty (60) consecutive days. For
purposes of this Agreement, "AFFILIATE" shall mean (i) any general partner of
Manager and any person or entity (other than Owner, The Irvine Company and their
subsidiary or affiliated companies) which directly, or indirectly through one or
more intermediaries, Controls, is Controlled by or is under common Control (as
such terms are defined below) with a general partner of Manager; (ii) any
director or executive officer of Manager or a general partner of Manager; or
(iii) any person or entity holding an ownership interest in Manager or a general
partner of Manager. For purposes of this Agreement, the term "Control" shall
mean either (a) ownership of fifty percent (50%) or more of the beneficial
interest or the voting power of the appropriate entity, or (b) the power to
direct or cause the direction of the management policies of such entity, by
contract or otherwise.
3.2 TERMINATION WITHOUT NOTICE FOR CAUSE.
(a) In addition to Owner's rights set forth in SECTION 3.1, Owner
may terminate this Agreement, without notice, upon the occurrence of any of the
following: (i) dissolution or
2
10
termination of Manager or any managing general partner of Manager by merger,
consolidation or otherwise; (ii) the sale, pledge or other disposition or
transfer of more than forty percent (40%) of the interests of any managing
general partner of Manager to persons or entities other than the current owners
thereof; (iii) the termination or suspension of Manager's real estate brokerage
license, if such license is legally required as a condition to manage or lease
the Project in accordance with the terms hereof; (iv) the cessation on the part
of Manager or on the part of any managing general partner of Manager to continue
to do business; (v) the failure of Manager to deal properly with and account for
trust funds or the bank accounts established hereunder; (vi) the commission of
any fraud, misrepresentation, breach of fiduciary duty or willful misconduct in
connection with the performance of Manager's duties under this Agreement; or
(vii) the bankruptcy, insolvency, reorganization or reconstitution of Manager or
any managing general partner of Manager or any assignment for the benefit of the
creditors of Manager or any managing general partner of Manager.
3.3 TERMINATION FOLLOWING SALE OF THE PROJECT; DISSOLUTION OR
LIQUIDATION OF OWNER. In the event Owner sells, conveys, effects a tax-deferred
exchange of or otherwise transfers any or all of the Projects or Owner dissolves
or liquidates, Owner may elect, but shall have no obligation, to terminate this
Agreement with respect to the Project or Projects to be transferred (or with
respect to all of the Projects in the event of a dissolution or liquidation) by
written notice to Manager, with such termination to be effective concurrently
with such event.
3.4 FINAL ACCOUNTING. Upon termination or expiration of this
Agreement for any reason, Manager shall deliver to Owner with respect to each
Project as to which the termination is effective, the following:
(a) a final accounting, setting forth the balance of income and
expenses of such Project as of the date of termination, to be delivered within
sixty (60) days after such termination, and an interim accounting, in the form
set forth in SECTION 4.4, for the thirty (30) day period immediately following
the date of termination;
(b) any balance of funds of Owner or tenant security deposits
applicable to such Project, to be delivered immediately;
(c) all records, contracts, leases, receipts for deposits, unpaid
bills, keys, paid invoices, tenant correspondence files and other papers or
documents which pertain to such Project, to be delivered immediately. Manager
may, at its expense, retain copies of any of the foregoing documents (excluding
keys) for its records;
(d) copies of all policies of insurance required to be maintained
in accordance with ARTICLE 9 hereof; and
(e) whenever received by Manager, all refunds or return of
deposits attributable to Workers' Compensation Insurance paid for by Owner
pursuant to the terms of this Agreement.
Manager's obligations under this SECTION 3.4 shall survive the termination or
expiration of this Agreement.
3
11
3.5 CONTINUED OBLIGATIONS OF OWNER.
(a) Upon the termination or expiration of this Agreement for any
reason, Owner shall, subject to the limitations contained in this Agreement,
remain obligated to Manager for any unpaid Management Fee (as defined below)
earned by Manager pursuant to SECTION 10.1 through the date of termination and
for all reimbursements due to Manager pursuant to this Agreement (offset,
however, by (i) the amount of any damages incurred by Owner as the result of any
defaults by Manager under this Agreement, including, without limitation, the
reasonable expenses of Owner incurred in curing such default, and (ii) any other
amounts due to Owner from Manager). Owner agrees to defend, indemnify and hold
Manager free and harmless against any and all Losses (as defined below) arising
from the acts of Owner or any successor to Manager under the Contracts (as
defined below) following the date of termination as provided in SECTION 7.1(m)
of this Agreement.
(b) In the event Owner terminates this Agreement (i) by reason of
a sale or other conveyance of any or all of the Projects; or (ii) by reason of a
dissolution or liquidation of Owner as described in SECTION 3.3, Owner shall pay
to Manager any unpaid portion of the Management Fee earned with respect to each
Project for which a Notice of Termination is given as of the date of
termination, as well as any other expenses payable to Manager hereunder as of
such date, and no further sums shall be due Manager from Owner.
(c) If Manager is entitled to a Management Fee or any sums
following a termination of this Agreement, Owner shall pay to Manager, within
twenty (20) days after the effective date of such termination, an amount equal
to the Management Fee due Manager, pro-rated to the date of termination, less
any amounts which may be due Owner from Manager and the amount of any damages
incurred by Owner as the result of any defaults by Manager under this Agreement
including, without limitation, the reasonable expenses of Owner incurred in
curing such default.
Owner's obligations under this SECTION 3.5 shall survive termination and
expiration of this Agreement.
ARTICLE IV
BUDGETS, ACCOUNTING AND REPORTING
4.1 BUDGET.
(a) An Approved Budget (as hereafter defined) has been developed
for each of the Projects for the first Budget Year (as hereafter defined).
Beginning with the Budget Year commencing July 1, 2000, Manager shall prepare
and submit to Owner, for Owner's approval, a proposed budget for each Project,
in form reasonably acceptable to Owner, for the promotion, operation, repair and
maintenance of the Project for each forthcoming Budget Year. Manager shall use
its best efforts to minimize the cost to Owner of goods and services supplied to
all Projects (including the utilization of competitive bids, where possible)
without adversely affecting the physical condition, standards of maintenance or
operations of the Projects, taken individually and as a whole. Owner
acknowledges, however, that certain line items to be
4
12
included in the proposed budget (e.g., property taxes and charges imposed by
public utility companies) are beyond Manager's control. Each proposed budget
shall be delivered to Owner no later than one hundred twenty (120) days prior to
the end of the Budget Year preceding the Budget Year for which the proposed
budget is to be effective or as otherwise instructed in writing by Owner,
provided that for the Budget Year ending June 30, 2000, the Approved Budgets
previously approved by Owner under the terms of the Original Management
Agreement shall be used. Notwithstanding the foregoing, Owner shall have the
right, from time to time, upon written notice to Manager, to reasonably modify
Manager's duties under this SECTION 4.1(a).
(b) Such proposed budget shall include a proposed marketing and
staffing plan, leasing parameters and an estimated capital budget, with all line
items classified in accordance with a chart of accounts approved by Owner. Each
proposed budget shall include a current year forecast of operating revenues and
expenses for the Project for which the proposed budget has been prepared.
(c) For each Project, Owner shall approve, or specify an
alternative to, the proposed budget or any individual line item set forth
therein in its sole and absolute discretion. Owner shall, on or before the
commencement of each Budget Year, at its option, either give written notice of
its approval of the proposed budget or give written notice of an alternative
budget. Each budget, as approved or otherwise specified by Owner in writing,
shall be referred to herein as the "APPROVED BUDGET." Notwithstanding the
foregoing, Owner shall have the right, from time to time, upon written notice to
Manager, to modify any Approved Budget for any Budget Year.
(d) As used herein, "BUDGET YEAR" shall mean the twelve (12)
month period elected by Owner from time to time in its discretion. Until
otherwise elected by Owner, on behalf of Owner, "BUDGET YEAR" shall mean the
fiscal year beginning on July 1st and ending on the following June 30th. In the
event Owner elects to change the Budget Year at any time during the Term,
Manager shall revise the Approved Budget for each affected Project in accordance
with the provisions of this SECTION 4.1 to reflect such change, and Manager
shall cooperate with Owner as necessary to accommodate the change in the Budget
Year.
4.2 OPERATION IN ACCORDANCE WITH BUDGET. Manager shall use its
best efforts to insure that the actual costs of maintaining and operating each
Project do not exceed the amounts agreed upon in the Approved Budget with
respect to such Project, either in total or with respect to any individual line
item. Any change to an Approved Budget shall be subject to the prior written
approval of Owner which approval may be withheld in Owner's sole discretion. All
expenses must be charged to the proper account on the Approved Budget and no
expense may be classified or reclassified for the purpose of avoiding an excess
in the annual budgeted amount of any accounting category. If Manager advances
for Owner's account any amount for the payment of any expenses of Manager, that
Owner shall reimburse Manager therefor only if: (a) such expenses are for items
on the Approved Budget and (b) Manager has submitted appropriate details of such
expenses, including, without limitation, paid invoices without Manager's markup.
During any Budget Year, Manager shall not, without the prior written approval of
Owner: (a) disburse any amounts attributable to items not reflected in the
Approved Budget which exceed, in the aggregate, Five Thousand Dollars ($5,000),
except in the case of an emergency
5
13
situation threatening imminent injury to persons, damage to property or
interruption of essential services to tenants, or (b) make any expenditure which
in Manager's reasonable judgment will cause, on an annual basis, either the
total Approved Budget to be exceeded or the amounts allocated to the following
categories: Payroll and Related Expenditures, General and Administrative
Expense, Advertising and Promotion, Turnover, Maintenance Buildings, Maintenance
Grounds, Maintenance Non-Recurring, Utilities and Capital Expenses
(collectively, the "MAJOR CATEGORIES") to be exceeded; provided, however,
Manager shall be entitled to make expenditures which exceed individual line
items included within the Major Categories by an amount not to exceed the
greater of (i) ten percent (10%) of the budgeted amount for such line item, or
(ii) Ten Thousand Dollars, so long as neither the total budgeted amount for the
applicable Major Category nor the total Approved Budget is exceeded.
4.3 BOOKS OF ACCOUNT. Manager shall maintain adequate and
separate books and records for each Project with entries supported by supporting
documentation sufficient to allow Owner or its agents to ascertain their
accuracy. Such books and records shall be made available to Owner and its agents
in connection with independent financial audits of Owner, as well as audits by
any governmental authority, including, without limitation, the Internal Revenue
Service, the Franchise Tax Board and the appropriate County Assessor's
Office(s). Manager shall maintain and safeguard such books and records at
Manager's office or at such other location as may be agreed upon in writing.
Manager shall ensure such control over accounting and financial transactions as
is reasonably necessary to protect Owner's assets from theft, error or
fraudulent activity by Manager's employees. Unless any losses arising from any
such occurrences are covered by any of the insurance policies required to be
maintained hereunder, Manager shall bear all monetary losses arising from such
occurrences, including, without limitation, the following:
(a) Theft of assets by Manager's principals, officers, employees
or Affiliates;
(b) Late charges, penalties or interest due to delay in payment
of invoices, bills or other like charges, for any reason other than the failure
of Owner to deposit funds in the Operating Account (as defined below) in a
timely manner. Such late charges, penalties or interest shall be borne by
Manager and paid directly by Manager;
(c) Overpayment or duplicate payment of invoices arising from
either fraud or negligence;
(d) Overpayment of labor costs arising from either fraud or
negligence;
(e) A sum equal to the value of any form of payment or property
from suppliers to Manager's employees arising from the purchase of goods or
services for the Project(s), excluding, however, gifts of nominal value received
in the ordinary course of business and in compliance with SECTION 12.13;
(f) Unauthorized use of facilities in any Project by Manager's
employees; and
(g) Amounts paid to Affiliates of Manager in excess of amounts
determined by competitive bids unless the contracts or payments to the
Affiliates of Manager were approved by Owner.
6
14
4.4 FINANCIAL REPORTS. No later than the third (3rd) business day
of each calendar month, Manager shall furnish to Owner with respect to each
Project, in such form as Owner may require, a report of all transactions
occurring during the preceding month. Manager shall deliver to Owner no later
than the tenth (10th) day of each calendar month, in such form as Owner may
require, a statement of income and expenses for each Project for the preceding
month and a balance sheet for each such Project, each prepared on a cash and
accrual basis according to generally accepted accounting principles and
accompanied by supporting summaries of adjusting journal entities, bank
reconciliations applicable to the most recent statements prepared by the banks
handling Project funds, an analysis of prepaid rent (if any), a schedule of all
expenses and amounts billed by Manager to Owner and all amounts reimbursed by
Owner to Manager, and such other financial statements or reports as Owner may
require. Manager shall notify Owner, in writing, on a monthly basis, of all
rental arrearages that in its judgment are properly written off as
uncollectible.
4.5 SUPPORTING DOCUMENTATION. As additional supporting
documentation for the monthly financial statements required under SECTION 4.4,
unless otherwise directed by Owner, Manager shall make available, at Manager's
office, the following:
(a) all bank statements and bank deposit slips;
(b) detailed cash receipts and disbursement records;
(c) detailed trial balance for receivables and payables and
billed and unbilled revenue items;
(d) paid invoices;
(e) supporting documentation for payroll, payroll taxes and
employee benefits;
(f) appropriate details of accrued expenses and property records;
and
(g) information necessary for preparation of Owner's tax returns,
including a description of and a statement of amounts expended in connection
with repairs, capital improvements, taxes, lease summaries and professional
fees.
4.6 CHANGES IN MANAGER'S OPERATIONS MANUAL. Within thirty days
following the end of each calendar quarter, Manager shall deliver to Owner
copies of any changes which have been made in Manager's Operations Manual during
the last preceding calendar quarter.
ARTICLE V
OWNER'S RIGHT TO AUDIT
5.1 OWNER'S RIGHT TO AUDIT. At Owner's request, Manager shall
engage a certified public accountant to audit all books, records and files
maintained by Manager for Owner with respect to the Projects in accordance with
the audit guidelines previously or hereafter delivered by Owner within ninety
(90) days after the end of the fiscal year, which audit
7
15
will be certified to Owner and Manager. Compensation for such auditor's services
will be paid out of the Operating Account as an expense of the Projects (and
shall be reasonably allocated by Manager among the Projects). Owner shall have
the right to revise such audit guidelines from time to time upon written notice
to Manager. Should the certified public accountant discover either weaknesses in
internal control or errors in recordkeeping, Manager shall correct such
discrepancies either upon discovery or within a reasonable period of time
thereafter. Manager shall inform Owner in writing of the action taken to correct
any audit discrepancies.
ARTICLE VI
LEASING ACTIVITIES
6.1 MANAGER'S LEASING OBLIGATIONS. Subject to the direction of
Owner, Manager shall use its best efforts to lease the Projects in accordance
with the Approved Budgets and rental rates, shall act in a fiduciary capacity
with respect to Owner and shall deal at arm's length with all third parties,
including, without limitation, Affiliates. Without limiting the generality of
the foregoing, Manager's leasing obligations shall include the following:
(a) Manager shall diligently undertake the rental of all
residential units within the Projects which are or may become vacant during the
Term. Manager shall establish controls so that ample time is available to renew
leases or obtain new tenants and shall use its best efforts to avoid vacancies
and loss of income.
(b) In leasing any portion of a Project, Manager shall utilize
only a standard lease form approved by Owner, with no modifications thereto.
Manager shall require each prospective tenant to submit financial information
sufficient to allow Manager to verify the ability of such prospective tenant to
perform its obligations under its lease.
(c) Manager is hereby authorized, during the Term as agent for
Owner, to execute residential lease agreements in the form of the then approved
standard lease form, provided that Manager shall comply with all terms and
provisions hereof, including, without limitation, the leasing guidelines
previously or hereafter delivered by Owner (the "LEASING GUIDELINES"). Owner
shall have the right to revise such Leasing Guidelines from time to time upon
written notice to Manager. In no event shall any lease executed by Manager
provide for a lease term in excess of twelve (12) months, without Owner's prior
written consent. The rental rates established or approved by Owner shall
hereinafter be referred to as the "RENTAL SCHEDULE."
(d) Manager shall schedule monthly meetings with Owner in order
to review all advertising and promotional materials for each Project, which
materials shall be subject to Owner's approval and shall comply with all
applicable laws, ordinances and regulations, including, without limitation, any
policies or procedures which may be established by Owner and communicated in
writing to Manager. The cost of all advertising and promotional procedures and
advertising campaigns shall be within the limits set forth for such expenses in
the Approved Budget for the related Project or as otherwise approved by Owner in
writing from time to time.
8
16
ARTICLE VII
MANAGEMENT OF PROJECT
7.1 DUTIES OF MANAGER; STANDARDS. Manager shall manage, operate
and maintain each Project in accordance with the general standards set forth in
this ARTICLE 7, the guidelines, policies and procedures issued by Owner from
time to time (including, without limitation, the HMCP, as defined below) and
Manager's Operations Manual for such Project, in the form delivered to Owner
from time to time. Owner will provide Manager with any additional documentation
reasonably necessary to establish Manager's authority to act as required
hereunder. Without limiting the generality of the foregoing, Manager's functions
hereunder shall include the following:
(a) Manager shall manage each Project in an efficient and
businesslike manner consistent with the standards currently in effect for such
Project, having due regard for the age and physical condition of such Project.
In addition, Manager shall operate each Project so as to maintain the good name
and reputation of Owner in the community in which such Project is located.
Manager shall perform all services in a diligent and professional manner in
accordance with recognized standards of the property management industry and in
compliance with such standards and practices as are prevalent in the geographic
area where the Project is located. Manager shall act in a fiduciary capacity
with respect to the proper protection of and accounting for Owner's assets, in
an independent manner with all third parties and in the best interests of Owner
at all times.
(b) Manager shall use its best efforts to collect all rents and
other charges which may become due at any time from any tenant of a Project, or
from others for services provided in connection with or for the use of a Project
or any portion thereof. Manager shall collect and identify any income due Owner
from miscellaneous services provided to tenants or the public, including,
without limitation, parking income, tenant storage, and coin-operated washers,
dryers and other machines of all types. All funds received by Manager for or on
behalf of Owner shall be deposited in a bank designated by Owner in the Revenue
Account (as defined below).
(c) Manager shall, at Owner's expense, maintain and make or cause
to be made such ordinary repairs as Manager may deem advisable or necessary,
subject to and within the limitations of the Approved Budget for each Project
and of this Agreement.
(d) Manager shall, at Owner's expense and at Owner's direction,
make or cause to be made such capital improvements to a Project pursuant to
plans and specifications approved by Owner, as are included in the Approved
Budget for such Project or are otherwise approved by Owner, as well as all
remodeling and refurbishing of tenant premises as approved by Owner in
connection with the requirements of tenant leases. Manager shall make
recommendations, select contractors and follow such bid procedures as are
required by Owner in writing from time to time and shall supervise all such work
to obtain compliance with contract requirements and applicable law.
(i) Manager shall, at Owner's expense, contract for those
utilities and provide, or cause to be provided, other building
operation, landscaping and
9
17
maintenance services Manager or Owner shall deem advisable,
subject to and within the limitations of the Approved
Budget for each Project and this Agreement. Manager shall not
enter into any contracts with any Affiliate without the prior
written consent of Owner. In the event Manager or an Affiliate is
then managing other projects similar to the Projects, whether or
not any of such other projects are owned in whole or in part by
Owner, Manager shall, if possible and subject to the provisions
of this SUBSECTION 7.1(d)(ii), use its best efforts to utilize
the same individuals or entities under such service contracts as
are performing similar services for Manager or an Affiliate in
connection with such other projects, if such a procedure would
result in cost savings to Owner. All contractors performing work
on a Project shall comply with, and shall have incorporated in
its contracts, the provisions for OSHA Compliance and Safety and
Fire Requirements previously or hereafter delivered to Manager by
Owner. Manager shall use all reasonable diligence in evaluating,
selecting and supervising all contractors retained by Manager to
perform the services set forth herein. Subject to the provisions
of ARTICLE 4, Manager hereby agrees that it shall use its best
efforts to utilize any group or bulk purchasing opportunities
made available to Manager by Owner. Subject to the provisions of
ARTICLE 4, Manager shall, at Owner's expense, purchase and keep
the Projects furnished with all necessary supplies. The cost of
such supplies shall be charged to Owner at net cost and Owner
shall be credited with all rebates, refunds, allowances and
discounts allowed to Manager.
(ii) All contracts entered into by Manager with respect to a
Project pursuant to this SECTION 7.1(d) (collectively, the
"CONTRACTS") shall, unless Owner otherwise consents in writing,
be on a standard form approved by Owner in writing and shall
include a provision for early termination in the event of a sale,
conveyance or exchange of such Project by Owner or the
dissolution or liquidation of Owner (as described in SECTION 3.3
hereof) if Owner or the transferee elects to terminate such
Contract, a provision for early termination in the event this
Agreement is terminated by Owner pursuant to SECTION 3.2(h), and
a provision obligating the other contracting party to continue to
perform under its Contract in the event (a) this Agreement is
terminated for any reason and Owner elects to take an assignment
of such Contract and require the other contracting party to
continue its performance thereunder directly on behalf of Owner,
or (b) of a sale, conveyance or exchange of such Project by Owner
or of the dissolution or liquidation of Owner if, in any case,
the transferee elects to take an assignment of such Contract and
require the other contracting party to continue its performance
thereunder directly on behalf of such transferee. Subject to this
SUBSECTION 7.1(d)(iii), Manager shall be responsible for the
negotiation of all such Contracts and all such Contracts shall be
executed by Manager on its own behalf and not as agent for Owner;
provided, however, that as between Owner and Manager, Owner shall
be responsible for all expenses associated with any such
Contract, so long as such expenses are incurred in compliance
with the Approved Budget and the terms of this Agreement. Manager
shall not enter into any Contract which would cause, on an annual
basis, either the total Approved Budget or the amounts allocated
to Major Categories to exceed the limits set forth in SECTION 4.2
hereof.
10
18
Promptly upon the execution thereof, Manager shall deliver to
Owner one fully executed original of any Contract.
(e) Intentionally deleted.
(f) Manager shall operate, in accordance with a budget approved
by Owner, Owner's Information Center and Owner's corporate housing program.
(g) If requested by Owner in writing, which request shall specify
the applicable amounts due and payable, Manager shall pay from the Operating
Account all bills for payments due under mortgages and ground leases with
respect to the Projects, all real estate, personal property and improvement
taxes and assessments due with respect to the Projects and insurance premiums
for insurance coverage carried by Owner with respect to the Projects. In such
event, all such expenses shall be included in the Approved Budget for the
related Project. Owner shall be responsible for prosecuting the appeal of any
property tax assessment for each Project and the payment of all costs incurred
in connection therewith.
(h) Subject to the other provisions of this Agreement, at Owner's
expense, Manager shall be responsible for compliance with all federal, state and
municipal laws, ordinances, regulations and orders related to the leasing, use,
operation, repair and maintenance of each Project, including, without
limitation, compliance with all state or federal fair housing laws, rules and
regulations, with the rules, regulations or orders of the local Board of Fire
Underwriters or other similar body and with the Americans with Disabilities Act.
Manager shall promptly notify Owner of any violation of any such law, ordinance,
rule, regulation or order, and, with the approval of Owner, promptly remedy any
such violation which comes to its attention, at Owner's expense. Expenses
incurred in so complying and in correcting any such violation shall be included
in the Approved Budget for such Project or otherwise approved in advance by
Owner in writing, except in the case of an emergency threatening imminent
personal injury or property damage or a situation which, in the absence of
immediate action, could subject Owner to civil or criminal penalties, in which
event Manager shall use its best efforts to notify Owner of such violation and
corrective action so taken. Manager shall familiarize itself with the terms of
and be responsible for avoiding any violations of the requirements of Owner set
forth in any development agreement, ground lease, tenant lease, mortgage, deed
of trust or other instrument affecting each Project and delivered to Manager by
Owner, including, without limitation, subject to the provisions of SECTION 12.17
hereof, any regulatory agreement, declaration of covenants, conditions and
restrictions or similar document affecting a Project that imposes any
requirements regarding permitted income levels of Project tenants or other
restrictions imposed by applicable governmental agencies in connection with any
revenue bond or similar financing applicable to such Project, and shall
otherwise comply with any written instructions of Owner with respect thereto.
Manager shall furnish to Owner, upon receipt by Manager, each notice or order
affecting any Project, including, without limitation, any notice from any taxing
or other governmental authority and notice of violation of any requirement or
order issued by any Board of Fire Underwriters or other similar body against
such Project or Owner, any notice of default or otherwise from the holder of any
mortgage or deed of trust or any notice of renewal, termination or cancellation
of any insurance policy. Manager, however, shall not take any action under this
SECTION 7.1(f) in the event Owner notifies Manager, in writing, that Owner is
contesting or intends to contest such notice, order or requirement,
11
19
provided that Manager shall be subject to no liability resulting from Manager's
failure to take such action during the pendency of such contest. Notwithstanding
the foregoing, however, Manager's responsibilities under this SECTION 7.1(f)
shall not extend to matters requiring the expenditure of Owner's funds but
disapproved in writing by Owner.
(i) Manager shall, at Owner's expense, arrange for the obtaining
and renewal of all business licenses affecting each Project; provided, however,
that the cost of obtaining or renewing any broker's or similar business license
required to be obtained by Manager in order to fulfill its obligations under
this Agreement shall be borne solely by Manager.
(j) Manager shall, at Owner's expense, engage counsel and cause
such legal proceedings to be instituted and prosecuted in an expeditious manner
as may be necessary to enforce payment of rent and compliance with leases or to
dispossess tenants. Manager shall use legal counsel approved by Owner to
institute such actions and all settlement negotiations involving claims in
excess of Three Thousand Five Hundred Dollars ($3,500) shall be subject to the
prior approval of Owner. Attorneys' fees and costs so incurred shall be borne by
Owner and shall be submitted to Owner for approval prior to payment, unless the
cost is already reflected in the Approved Budget for the applicable Project or
unless payment is due under a contract previously approved by Owner.
(k) Manager shall employ at all times a sufficient number of
capable employees to enable it to manage, operate and maintain the Projects
properly, adequately, safely and economically. Except as expressly provided in
SECTION 7.1 to the contrary, all matters pertaining to the employment,
supervision, compensation, promotion and discharge of such employees shall be
the responsibility of Manager. Manager will negotiate with any union lawfully
entitled to represent such employees and shall execute in its own name, and not
as agent for Owner, collective bargaining agreements or labor contracts
resulting therefrom. At least once per year Manager shall train its employees in
the compliance with the HMCP, all state or federal fair housing laws, rules and
regulations and in the reduction of general liability risks. Owner shall not
have any liability with respect to any employment arrangements with employees
employed in connection with the management of any Project, and all employment
arrangements shall expressly so provide. Manager shall comply with the Americans
With Disabilities Act and all applicable governmental requirements relating to
workers' compensation, social security, unemployment insurance, hours of labor,
wages, working conditions, equal employment laws and regulations and other
employer-employee related matters.
(l) If requested by Owner in connection with the submission of
any proposed Budget, Manager shall notify Owner of the identities, job titles
and salaries of the on-site employees to be responsible for the direct
management of each Project. Manager shall notify Owner in advance of any
staffing changes relating to the on-site employees responsible for the direct
management of each Project or the off-site employees responsible for the
handling of the relationship between Owner and Manager and Manager shall
cooperate with Owner in addressing Owner's concerns in connection with such
staffing changes. Manager shall require coverage of all employees by fidelity
bond or coverage under Manager's comprehensive crime insurance policy, each in
amounts required by Owner. Manager shall identify to Owner the job description
of employees whose salaries Manager will initially charge to a Project for
direct
12
20
services rendered to such Project. All employee salaries and positions shall be
consistent with the Approved Budget for the related Project.
(m) Manager shall be responsible for administering the
enforcement of all Project parking rules and regulations established by Owner
and furnished in writing to Manager.
(n) Manager hereby agrees to cooperate with any financial
institution or other lender designated by Owner to provide financing for any
Project and consents to the assignment by Owner, individually and as agent for
Owner, of this Agreement as security for any loan to Owner from such lender.
Manager further agrees to cooperate with brokers and prospective purchasers
designated by Owner in connection with the sale, conveyance or exchange of any
Project.
(o) Manager has delivered a copy of the Anti-Discrimination
Policy (as defined below) to all Covered Personnel and has obtained a written
acknowledgment from each such employee, in form and substance acceptable to
Owner, certifying that they have read and understand the Anti-Discrimination
Policy and agree to abide by its terms. For any new Covered Personnel after the
date hereof, Manager shall deliver a copy of the Anti-Discrimination Policy to
such new Covered Personnel and obtain the written acknowledgement described in
the preceding sentence for each such new employee. Manager shall maintain and
safeguard the Anti-Discrimination Policy and the original written
acknowledgments relating thereto with the books and records for each Project as
provided in this Agreement. As used herein, the term "COVERED PERSONNEL" shall
mean (i) all of Manager's personnel now or hereafter involved in the leasing of
a Project, whether such employees are on- or off-site personnel, and (ii) all of
Manager's personnel now or hereafter employed on-site at a Project. As used
herein, the term "ANTI-DISCRIMINATION POLICY" shall mean a written
anti-discrimination policy prepared by Manager and approved by Owner.
(p) Manager shall maintain frequently and update on a periodic
basis but in no event less than once per year, a complete inventory of all of
Owner's personal property located at each Project site. Manager shall deliver a
copy of such inventory to Owner prior to the commencement of each Budget Year or
more frequently as requested by Owner.
ARTICLE VIII
BANK ACCOUNTS
8.1 REVENUE ACCOUNT. Manager shall deposit all funds collected
from the operation of each Project, from whatever source, in a special account
in a bank approved by Owner (interest bearing, if possible) (individually the
"REVENUE ACCOUNT" and collectively the "REVENUE ACCOUNTS") for such Project in
the name of Owner or as Owner may designate. Manager shall have no authority to
withdraw funds from the Revenue Account. Manager shall instruct the bank to hold
such funds in trust for Owner.
8.2 OPERATING ACCOUNT. Owner shall establish one or more bank
accounts, including, without limitation a principal account for the projects
(the "OPERATING ACCOUNT") which shall be used for the payment of all costs and
expenses to be borne by Owner hereunder.
13
21
Manager shall have the authority to withdraw funds from the Operating Account to
fulfill its obligations under this Agreement, but shall otherwise have no right,
title or interest in such funds. Manager shall in no event allow any funds
withdrawn from the Operating Account to be commingled with any other funds or
bank accounts of Manager. Following written notification from Manager of
projected cash requirements for the Project, which notices shall be delivered to
Owner not more often than once per week, Owner shall maintain in the Operating
Account an amount sufficient to pay all budgeted expenses for the Projects for
each month in a timely manner. Manager shall pay from the Operating Account the
operating expenses of the Projects and any other required payments applicable to
the Projects, as set forth in this Agreement.
8.3 SECURITY DEPOSIT ACCOUNT. If applicable law requires a
segregated account for tenant security deposits, Manager will open a separate
interest bearing account (the "DEPOSIT ACCOUNT") for each Project in Owner's
name at a bank approved by Owner, and shall instruct the bank to hold the funds
in trust for Owner. Manager shall maintain the Deposit Account, if required, in
accordance with applicable law and shall otherwise comply in all respects with
CALIFORNIA CIVIL CODE SECTION 1950.5. Manager shall use the Deposit Account only
to maintain security deposits for the related Project. Manager shall maintain
detailed records of all security deposits and allow Owner or its designees
access to such records.
8.4 CHANGE OF BANKS. Owner may direct Manager, in writing, to
change a depository bank or any depository arrangements, provided that any costs
or expenses associated with such change shall be paid by Owner.
8.5 MAINTAINING PROJECT FUNDS IN INSURED ACCOUNTS. Accounts
holding project funds (up to or exceeding $100,000) must be in institutions
under the control of, and whose deposits are reinsured by, the Federal Deposit
Insurance Corporation, National Credit Union Association, or other U.S.
government insurance corporations. Manager shall determine that the financial
institution has a rating consistent at all times with current minimally
acceptable ratings as established and published by Government National Mortgage
Association (GNMA). The Manager shall monitor the institution's ratings no less
than on a quarterly basis, and change institutions when necessary. The Manager
must document the ratings of the institution where the funds are deposited and
maintain the documentation in the administrative record for three years,
including the current year.
ARTICLE IX
INSURANCE AND INDEMNIFICATION
9.1 INSURANCE TYPES.
(a) Manager shall not commence any work under this Agreement
until it obtains all insurance required to be obtained by Manager hereunder.
Manager will not permit any other party with whom it may contract to perform
services on a Project site (hereinafter the "CONTRACTORS") to commence work
under the applicable Contract until the insurance requirements and
indemnification provisions for Contractors who are not Class I Contractors (as
defined below) described in EXHIBIT B attached hereto and by this reference
incorporated herein, or the insurance requirements and indemnification
provisions for Class I Contractors described in
14
22
EXHIBIT C attached hereto, as applicable, have been complied with by the
applicable Contractor and incorporated into the applicable Contract. As used
herein, "CLASS I CONTRACTORS" shall mean the Contractors performing any of the
work or services (the "CLASS I WORK") described in EXHIBIT D attached hereto and
such other Contractors as may be designated as Class I Contractors by Owner from
time to time. In the event any Contractor is performing work or services which
are both Class I Work and work or services which would not be considered Class I
Work, such Contractor shall be deemed to be a Class I Contractor with respect to
all of the work or services which it performs.
(b) All insurance described under this ARTICLE 9 which is to be
carried by Manager will be maintained by Manager with insurance carriers
licensed and approved to do business in California, having a general
policyholders' rating of not less than an "A" and a financial rating of not less
than "X" in the most current Best's Key Rating Guide. In no event shall such
insurance be terminated or otherwise allowed to lapse prior to termination of
this Agreement or such longer period as may be specified herein, unless such
terminated or lapsed insurance is immediately replaced by substitute insurance
meeting the requirements of this ARTICLE 9. Manager may provide the insurance
described in this ARTICLE 9, in whole or in part, through a policy or policies
covering other liabilities and projects of Manager.
9.2 EVIDENCE OF INSURANCE. As evidence of Manager's specified
insurance coverage, Owner shall accept certificates and endorsements issued by
Manager's insurance carrier acceptable to Owner showing such policies in force
for the specified period. Owner retains the right to review the actual insurance
policies upon its request. Such evidence shall be delivered to Owner prior to
commencement of work. Each policy and certificate shall be subject to approval
by Owner (such approval not to be unreasonably withheld), and shall provide that
such policy shall not be subject to material alteration or cancellation without
thirty (30) days' notice in writing to be delivered by registered mail to Owner.
Should any policy expire or be cancelled prior to the expiration or earlier
termination of this Agreement, and Manager fails immediately to procure other
insurance as specified herein, Owner reserve the right, but shall have no
obligation, to procure such insurance and to deduct the cost thereof from any
sum due Manager under the terms of this Agreement. Manager shall permit Owner to
inspect such evidence of insurance as Manager obtains from its Contractors.
9.3 DAMAGES. Nothing contained in this ARTICLE 9 is to be
construed as limiting the extent of Manager's responsibility for the payment of
damages resulting from Manager's operations under this Agreement nor shall
anything contained herein be deemed to place any responsibility on Owner for
ensuring that the insurance required hereunder is sufficient for the conduct of
Manager's business.
9.4 WORKERS' COMPENSATION INSURANCE. Manager shall obtain and
maintain full Workers' Compensation Insurance, including Employer's Liability,
at a minimum limit of One Million Dollars ($1,000,000) or current limit carried,
whichever is greater, for all personnel whom it employs in carrying out
Manager's obligations under this Agreement, including an endorsement evidencing
waiver of subrogation by the insurance carrier with respect to Owner. Such
insurance shall be in substantial accordance with the requirements of the most
current and applicable State Workers' Compensation Insurance Laws in effect from
time to time. Owner shall bear the cost of such insurance attributable to and
covering Manager's On-Site Personnel
15
23
(as defined below) and Manager shall bear the cost of such insurance
attributable to and covering any other personnel who perform services in
connection with any of the Projects but who are not On-Site Personnel. The cost
of such insurance attributable to On- Site Personnel shall not exceed the amount
set forth in the applicable Approved Budget, as such amount may be increased as
a result of any audit by the insurer. For the purposes of this Agreement, the
term "ON-SITE PERSONNEL" shall be deemed to include only those employees of
Manager who are located on a Project site on a full time basis or who are
located on a Project site on a part-time basis but who provide direct services
to a Project, such as landscaping, maintenance and the like. In no event shall
"ON-SITE PERSONNEL" include Manager's general administrative or supervisory
employees who provide services to more than one project.
9.5 COMPREHENSIVE OR COMMERCIAL GENERAL LIABILITY INSURANCE.
Manager shall, at Owner's expense, obtain and maintain Comprehensive or
Commercial General Liability Insurance on an "occurrence" basis, with acceptable
deductibles and with a combined single limit for bodily injury and property
damage of Five Million Dollars ($5,000,000), covering Operations, Independent
Contractors, Products and Completed Operations, Contractual Liability, Broad
Form Property Damage (including completed operations), claims and lawsuits by
one insured against another insured, Personal Injury and Explosion, Collapse and
Underground Hazards (X,C,U), which insurance shall name Manager as an additional
insured. The limits of liability of the insurance coverage specified in this
SECTION 9.5 may be provided by any combination of primary and excess liability
insurance policies. If excess risks are involved, greater limits of liability
may be required by Owner.
9.6 AUTOMOBILE LIABILITY INSURANCE. Manager shall obtain and
maintain owned, hired and non-owned automobile liability insurance covering all
use of all automobiles, trucks and other motor vehicles utilized by Manager in
connection with the performance of its obligations hereunder, with a combined
single limit for bodily injury and property damage of Five Million Dollars
($5,000,000) or current limit carried, whichever is greater. Owner shall bear
the cost of such insurance attributable to and covering Manager's On-Site
Personnel and Manager shall bear the cost of such insurance attributable to and
covering any other personnel of Manager who perform services in connection with
the Project but who are not On-Site Personnel. The cost of such insurance
attributable to On-Site Personnel shall not exceed the amount set forth in the
applicable Approved Budget.
9.7 COMPREHENSIVE CRIME INSURANCE. Manager shall, at Manager's
expense, obtain and maintain either a policy of comprehensive crime insurance or
a fidelity bond, at Manager's option, in an amount not less than Two Hundred
Fifty Thousand Dollars ($250,000) per occurrence for any of Manager's employees
who may handle funds or property in connection with a Project and to provide
coverage to protect Owner.
9.8 ALL RISK INSURANCE. Owner shall, at Owner's expense, obtain
and maintain "All Risk" Insurance covering loss or damage to each Project, with
such deductibles as Owner shall determine in its sole discretion. Owner shall
also maintain Comprehensive or Commercial General Liability Insurance, with such
deductibles or self insured retention as Owner shall determine in its sole
discretion, with a combined single limit for bodily injury and property damage
of Five Million Dollars ($5,000,000), and which insurance shall name Manager as
an additional insured. Owner shall, at Manager's written request to be made not
more than
16
24
annually, deliver to Manager a certificate issued by Owner's insurance carrier
showing such Comprehensive or Commercial General Liability Insurance to be in
force.
9.9 MANAGER'S OBLIGATIONS. Manager shall:
(a) Comply with Owner's accident reporting procedures, which may
be modified from time to time upon written notice to Manager;
(b) Notify Owner immediately upon learning of any material loss,
damage or injury occurring on a Project;
(c) Not take any action (such as an admission of liability) which
might bar Owner from obtaining any protection afforded by any insurance policy
of Owner or which might prejudice Owner in defending a claim based on any loss,
damage or injury; and
(d) Cooperate with Owner in the disposition of claims, including
furnishing all available information to Owner and Owner's insurers.
Owner shall have the exclusive right, at its option, to conduct the defense of
any claim, demand or suit within limits prescribed by the policy or policies of
insurance.
9.10 WAIVER OF SUBROGATION. Owner and Manager hereby waive all
rights against each other for damages caused by fire and other perils and risks
to the extent covered by Manager's policies of insurance or Owner's "All Risk"
Insurance.
9.11 CLAIMS PROCEDURES. In the event an incident occurs or any
legal action or other claim (a "CLAIM") is asserted by a third party against
Owner and/or Manager, as the result of an alleged injury or loss sustained
within a Project during the Term, Manager shall, promptly after receipt of
actual knowledge of such Claim, submit a report to Owner in accordance with
Owner's incident reporting procedures. Upon receipt of such information,
together with any filed pleadings, Owner shall submit such information to its
insurer and/or claims adjusting firm for the purpose of initiating investigation
and disposition of the Claim. All costs of the foregoing investigation,
settlement and defense, and any judgments and other costs related to any such
Claim, shall be allocated between Owner and Manager in accordance with the
indemnification provisions contained in Section 12.20.
9.12 INSURANCE AUDIT; REFUNDS. Any insurance charges, including,
without limitation, Workers' Compensation Insurance, which are submitted to
Owner by Manager shall be subject to audit by Owner. Any insurance dividends
earned or returned premiums applicable to the policies required to be carried
hereunder at Owner's expense, including, without limitation, Workers'
Compensation Insurance, shall be refunded by Manager to Owner immediately upon
receipt thereof, and any such refunds shall be accompanied by supporting
documentation evidencing the refunded amounts.
9.13 OWNER'S ELECTION TO INSURE. Owner reserves the right, but
shall have no obligation, to procure the insurance, or any portion thereof, for
which Manager is herein responsible and which is described in this ARTICLE 9.
Owner shall notify Manager if Owner
17
25
exercises its right, whereupon Manager's responsibility to carry such
duplicative insurance shall cease and the sums paid by Owner to Manager
hereunder shall be equitably adjusted by the parties to reflect any resulting
cost saving to Manager. Owner further reserves the right at any time, with
thirty (30) days' prior notice to Manager, to require that Manager resume the
maintenance of any insurance for which Owner has elected to become responsible
pursuant to this SECTION 9.13; and in such event, the sums paid to Manager by
Owner shall increase to the extent of any previously agreed and implemented
reduction as aforesaid attributable to Owner's prior assumption of the
particular insurance coverage.
ARTICLE X
COMPENSATION OF MANAGER
10.1 MANAGEMENT FEE. As compensation for the performance of its
obligations hereunder, Manager shall be paid a monthly management fee
("MANAGEMENT FEE") equal to Thirty Dollars ($30) multiplied by the number of
"DESIGNATED UNITS" (as defined below) subject to this Agreement during the
applicable calendar month, plus a "PRO RATA AMOUNT" (as defined below) for each
Designated Unit that is subject to this Agreement during a portion of such
calendar month. As used herein: (a) the term "DESIGNATED UNITS" means the units
in the Projects listed on EXHIBIT A, as EXHIBIT A may be amended from time to
time by Owner's delivery of written notice to Manager specifying additional
units that will be subject to this Agreement, such notice to be delivered no
later than fifteen (15) buisness days prior to the date (as specified in Owner's
notice) on which Manager is to begin management of such units and (b) the term
"PRO RATA AMOUNT" means Thirty Dollars ($30) multiplied by a fraction, the
denominator of which is 30 and the numerator of which is the number of days in
any partial calendar month that the applicable Designated Unit was subject to
this Agreement.
ARTICLE XI
PAYMENT OF EXPENSES
11.1 COSTS ELIGIBLE FOR PAYMENT FROM OPERATING ACCOUNT. Manager
shall pay all expenses incurred in connection with the operation, maintenance
and repair of each Project, to the extent, and only to the extent, included in
the Approved Budget for such Project directly from the Operating Account,
subject to the conditions set forth in Article 7, including the following:
(a) costs of the gross salary and wages or proportionate shares
thereof, payroll taxes, employee's health insurance, workers' compensation,
termination benefits payable pursuant to California law and other benefits of
Manager's employees who are located on-site, including temporary employees
performing on-site services in connection with such Project (and including,
without limitation, any accrued benefits owed by Manager to any On-site
Personnel upon termination of this Agreement), and are required to manage,
operate and maintain such Project properly, adequately, safely and economically,
in accordance with this Agreement,
18
26
provided that such costs are provided for in the Approved Budget for such
Project. Manager shall not be entitled to pay such employees in advance;
(b) costs incurred to correct the violation of any governmental
requirement relating to the leasing, use, repair and maintenance of the Project,
or relating to the rules, regulations or orders of the local Board of Fire
Underwriters or other similar body, if such costs are not incurred as the result
of Manager's negligence or willful misconduct;
(c) actual and reasonable costs of all repairs, decorations and
alterations, if such cost is not the result of Manager's negligence or willful
misconduct;
(d) all costs incurred in connection with all service agreements
approved by Owner;
(e) all costs of collection of delinquent rents collected by a
collection agency approved in advance by Owner;
(f) all legal fees of attorneys approved (or designated as
provided in SECTION 7.1(j)) by Owner in advance of retention, if Owner has
approved the specific amount of such attorneys' fees in advance of payment;
(g) the cost of capital expenditures;
(h) with the prior written approval of Owner, the cost of cash
registers, adding machines and other equipment of such type and use (including
any and all electronic data processing equipment) located at the Project site
and owned or leased by Owner;
(i) the cost of utilities;
(j) the cost of advertising approved by Owner;
(k) the cost of the insurance policies required to be maintained
by Manager at Owner's expense pursuant to ARTICLE 9;
(l) the cost applicable to the items set forth in SECTION 7.1(g),
to the extent Owner has requested that Manager pay such items;
(m) if approved in advance by Owner, the cost of travel by
Manager's On-Site Personnel incurred in connection with the performance of
Manager's obligations hereunder, exclusive of daily commuting expenses to and
from the Project;
(n) the Management Fee;
(o) emergency expenses incurred pursuant to SECTION 4.2 hereof;
and
(p) such other amounts as may be approved in advance by Owner.
19
27
11.2 NON-REIMBURSABLE COSTS. The following expenses or costs
incurred by or on behalf of Manager in connection with the management and
leasing of the Projects shall be at the sole cost and expense of Manager and
shall not be reimbursed by Owner:
(a) cost of gross salary and wages, payroll taxes, insurance,
workers' compensation and other benefits of Manager's office and other off-site
personnel (including any stock options granted to off-site personnel);
(b) general accounting and reporting services within the
reasonable scope of Manager's responsibility to Owner;
(c) the cost of printed checks for each bank account required to
be maintained hereunder;
(d) cost of printed forms, papers, ledgers and other supplies and
equipment not located at the Project sites;
(e) cost of electronic data processing hardware and software,
including repair and maintenance expenses related thereto, located at Manager's
office and used for preparation of reports, information and returns to be
prepared by Manager under the terms of this Agreement;
(f) cost of electronic data processing provided by computer
service companies for preparation of reports, information and returns to be
prepared by Manager under the terms of this Agreement;
(g) cost of daily commuting expenses incurred by Manager's
employees to and from the Projects;
(h) cost of transferring Manager's employees to the Project,
unless such cost is approved in advance by Owner;
(i) vacation and other benefits earned by Manager's employees
which are transferred to a Project, which benefits are earned by such employees
prior to the date of such transfer;
(j) costs charged by Manager to Owner unless such costs have been
approved in advance by Owner;
(k) costs charged by any Affiliate of Manager under any
subcontract unless such costs have been approved in advance by Owner;
(l) costs attributable to losses arising from negligence, fraud,
willful misconduct or misrepresentation on the part of Manager or Manager's
employees;
(m) cost of workers' compensation insurance with respect to
Manager's personnel performing services in connection with the Projects (other
than On-Site Personnel);
20
28
(n) cost of the comprehensive crime insurance or fidelity bond
required pursuant to SECTION 9.7; and
(o) unless required by Owner, the cost of comprehensive crime
insurance or other fidelity bond or other insurance purchased by Manager for its
own account.
ARTICLE XII
GENERAL PROVISIONS
12.1 INDEPENDENT CONTRACTOR. It is expressly understood and
agreed that Manager will act as an independent contractor in the performance of
its duties and responsibilities set forth in this Agreement. No provisions
hereunder shall be intended to create a partnership or a joint venture between
Owner and Manager with respect to any Project or otherwise; and neither party
shall have the power to bind or obligate the other party, except as expressly
set forth in this Agreement.
12.2 NOTICES. All notices, demands and reports provided for in
this Agreement shall be in writing and shall be personally served or sent by
certified mail, postage prepaid and return receipt requested, to the parties at
its respective addresses for notice set forth following its signatures to this
Agreement or to such other address as either may provide to the other by written
notice. For purposes of this Agreement, notices shall be deemed to have been
"given" upon personal delivery thereof or two (2) business days after having
been deposited in the United States mail, postage prepaid and properly
addressed.
12.3 BROKERS. If Owner executes a listing agreement for the sale
of a Project, Manager shall cooperate with such broker to permit the broker to
exhibit such Project during reasonable business hours, provided that such broker
has secured Manager's permission in advance, and shall cooperate with
prospective purchasers of the Project. At Owner's request, Manager's duties
shall also include, but shall not be limited to, using diligent efforts to
obtain tenant estoppel certificates from tenants then leasing residential units
within the Project.
12.4 ATTORNEYS' FEES. In any judicial action between the parties
to enforce any of the provisions of this Agreement or any right of any party
under this Agreement, regardless of whether such action or proceeding is
prosecuted to judgment and in addition to any other remedy, the unsuccessful
party shall pay to the prevailing party all costs and expenses, including
reasonable attorneys' fees and expenses (including fees and charges attributable
to legal assistants or other non-attorney personnel performing services under
the supervision of an attorney), incurred by the prevailing party.
12.5 ASSIGNMENT. Manager may not voluntarily or involuntarily,
directly or indirectly, sell, assign, hypothecate, pledge or otherwise transfer
or dispose of all or any portion of its interest in this Agreement to any third
party without the prior written consent of Owner, which may be withheld in
Owner's sole and absolute discretion. Any such attempted sale, assignment,
hypothecation, pledge or other transfer without such consent shall be void.
Owner shall be entitled to assign or otherwise transfer or dispose of all or any
portion of its interest under this Agreement at any time without the consent of
Manager and upon any such assignment
21
29
or transfer Owner shall be released from all obligations hereunder (other than
those obligations which have accrued as of the date of such assignment or
transfer), any obligations to be performed hereunder after the date of such
assignment or transfer and any continuing indemnification obligations hereunder.
In addition to the foregoing, Owner assign, pledge, hypothecate or otherwise
grant a security interest in and to all of its rights under this Agreement as
may from time to time be required by any lender as security for a loan by such
lender to Owner.
12.6 AMENDMENTS. Except as otherwise provided herein, all
amendments to this Agreement shall be in writing and executed by Owner and
Manager.
12.7 LICENSING. Manager represents and warrants that it is, and,
as necessary, its employees are, and Manager covenants and agrees that at all
times throughout the Term it and, as necessary, its employees shall be, fully
qualified and licensed, to the extent required by law, to manage real property
and perform all of the obligations of Manager hereunder. Manager agrees to take,
and to cause its employees to take, any and all action necessary to retain all
licenses required to carry out its duties hereunder and otherwise to comply with
all such laws now or hereafter in effect.
12.8 ENTIRE AGREEMENT. This Agreement and the Exhibits attached
hereto and made a part hereof comprise the entire agreement of the parties with
respect to the matters described in this Agreement and such Exhibits. The
Exhibits attached to this Agreement are incorporated into this Agreement as
though set forth herein in full.
12.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
12.10 GOVERNING LAW. This Agreement is executed and shall be
governed by and construed in accordance with the laws of the State of
California.
12.11 THIRD-PARTY DISPUTES. Should any claim, demand, action or
other legal proceeding arising out of matters covered by this Agreement be made
or instituted by any third party against a party to this Agreement, the other
party to this Agreement shall furnish such information and reasonable assistance
in defending such proceeding as may be reasonably requested by the party against
whom such proceeding is brought. The requesting party shall pay the reasonable
and customary expenses incurred by the other party in complying with any such
request.
12.12 FIDUCIARY RELATIONSHIP. Manager shall at all times act as a
fiduciary of Owner in connection with its duties, responsibilities and actions
pursuant to this Agreement. Without limiting the generality of the foregoing,
Manager shall disclose in advance any affiliation of Manager or an Affiliate
with any vendor rendering services or supplying materials to any Project. Any
contract with such a vendor shall be entered into on an arm's length basis and
for fair market value, and Manager shall receive prior written approval of any
such contract from Owner. Manager shall disclose to Owner any
conflict-of-interest which may arise in connection (a) with Manager's
negotiations with prospective tenants or vendors of a Project, or
22
30
(b) as a result of Manager's or an Affiliate's management of other projects,
changes in Manager's or Affiliate's structure or as a result of other
potentially conflicting actions taken by Manager.
12.13 GIFTS. Manager agrees not to accept any "GIFT" from vendors
employed in connection with any Project, other than gratuities of nominal value
received in the ordinary course of business. Manager shall not, on Owner's or
Owner's behalf or in connection with the services being rendered under this
Agreement, provide any "GIFT" to or otherwise entertain any "PUBLIC OFFICIAL" or
any other person required under California law to file a Statement of Economic
Interest. The term "PUBLIC OFFICIAL" means every member, officer, employee or
consultant of a state or local agency. The term "GIFT", as used herein, includes
any service or merchandise of any kind, discounts on merchandise or services,
meals and other entertainment expenses and all other transfers of cash or any
other item of value. Under no circumstances shall Owner be deemed to have waived
the provisions of this Section as to a specific gift unless the waiver is in
writing and signed by two (2) authorized officers of Owner.
12.14 CONFIDENTIALITY. Except as provided in this SECTION 12.14
or unless otherwise approved by Owner in writing, Manager shall treat this
Agreement as confidential and shall not disclose the contents of this Agreement
to any party. Manager shall hold confidential any information which Manager
receives in connection with the performance of its obligations hereunder and
which concerns Owner or Owner's operations or business or the Projects and shall
not disclose all or any portion of such information to any third party, except
for such disclosures as are necessary to perform Manager's obligations
hereunder, as are approved by Owner in writing or as are required by law, any
governmental agency or any proposed lender or mortgagee of a Project.
12.15 SUBORDINATION TO MORTGAGES. Manager acknowledges and agrees
that (i) it has no right, title or interest in any of the Projects, and (ii) its
rights hereunder are expressly subordinate to the right, title and interest of
the holder of any mortgage or deed of trust encumbering each Project, whether
the lien of such mortgage or deed of trust attaches to such Project before or
after the execution or effectiveness of this Agreement. Manager agrees to
acknowledge any assignment by Owner of the income generated by any Project to
any lender as security for a loan by such lender to Owner. In the event that a
Project is transferred as a result of a foreclosure of any mortgage or deed of
trust covering such Project or pursuant to a deed in lieu of foreclosure,
Manager may, at its sole option, at any time thereafter, terminate this
Agreement with respect to such Project by written notice of termination to the
then owner of the Project.
12.16 HAZARDOUS WASTES.
12.16.1 Owner has developed a Hazardous Materials Compliance
Program ("HMCP") which outlines Manager's responsibilities with respect to
Hazardous Wastes (as defined below) at each Project. The HMCP is set forth in a
Manual that Owner will furnish to Manager. Manager shall take all steps
necessary or appropriate to carry out the HMCP, as it may be amended from time
to time. Such steps shall include the following:
23
31
(a) surveying existing and prospective maintenance contractors
with respect to existing and intended uses of Hazardous Wastes on or about the
Project;
(b) ensuring that spills or dumping of Hazardous Wastes that
occur on the Project are reported to agencies and cleaned up in accordance with
applicable regulatory requirements;
(c) informing Owner: (i) immediately of any spills or dumping of
Hazardous Wastes that occur on the Project; and (ii) in regular monthly reports
of any other incidents involving Hazardous Wastes affecting the Project;
(d) providing tenants with notice and disclosure forms provided
by Owner with respect to Hazardous Wastes or asbestos affecting the Project;
(e) implementing any asbestos management program established by
Owner for the Project; and
(f) establishing and maintaining a recordkeeping system for
information concerning Hazardous Wastes on the Project.
12.16.2 Manager agrees that it shall not place or cause or permit
to be placed on any Project, other than in the ordinary course of performing its
obligations under this Agreement and in compliance with applicable law, any
hazardous or toxic wastes or substances, as such terms are defined during the
period up to and including the end of the Term by Federal, State or municipal
statutes or regulations promulgated thereunder (collectively, "HAZARDOUS
WASTES"). In the event Manager discovers the existence of any Hazardous Wastes
on any Project, Manager shall immediately notify Owner. If such Hazardous Wastes
were placed or permitted to be placed on a Project by Manager, Manager shall, at
its cost, diligently arrange for and complete the immediate removal thereof in
accordance with the terms of this Agreement. Except as expressly provided herein
to the contrary, Manager shall not be responsible for any Hazardous Wastes
present on any Project prior to the date hereof, unless deposited thereon by
Manager; provided, however, Manager shall immediately notify Owner of any notice
received by Manager from any governmental authority of any actual or threatened
violation of any applicable laws, regulations or ordinances governing the use,
storage or disposal of any Hazardous Wastes and shall cooperate with Owner in
responding to such notice and correcting or contesting any alleged violation.
12.16.3 Without limiting the generality of anything contained in
SECTION 12.16.2, if, as a result of any act or failure to act on a Project by
Manager or its employees, agents, representatives or consultants, the presence,
use or on-site or off-site disposal or transport of Hazardous Waste on, to,
under, from or about such Project results in any spills or releases, any injury
to any person or any injury or damage to such Project, or if Manager, Owner, or
any governmental entity reasonably suspects that any such spills, injury or
damage has occurred or is likely to occur, Manager shall promptly and at its
sole cost: (a) notify Owner; (b) if such spill, injury or damage has occurred,
obtain all permits and approvals necessary to remove such Hazardous Waste or
otherwise remedy any suspected problem; (c) if such spill, injury or damage has
occurred, remove such Hazardous Wastes and remedy any associated problems to the
reasonable satisfaction of Owner, in accordance with applicable legal
24
32
requirements and good business practices; and (d) if such spill, injury or
damage is likely to occur, take all measures reasonably necessary to prevent
such spill, injury or damage.
12.16.4 If any Hazardous Waste comes to be located on a Project
during the Term as a result of illegal or unauthorized disposal or dumping by
any person, Manager shall promptly upon discovery of the Hazardous Waste: (a)
notify Owner; and (b) at Owner's cost, take all measures reasonably necessary to
secure the site to prevent further disposal or dumping.
12.16.5 If, as a result of work on a Project by Manager or its
employees, agents, representatives or consultants, the presence, use or on-site
or off-site disposal or transport of Hazardous Material on, to, under, from or
about such Project results in any spills or releases affecting persons or
property off-site, or any injury or damage to the environment or to any other
real or personal property wherever situated, or if Manager, Owner or any other
governmental entity reasonably suspects that any such spill, injury or damage
has occurred or is likely to occur, Manager shall promptly and at its sole cost:
(a) notify Owner if applicable; (b) obtain all permits and approvals necessary
to remove such Hazardous Waste or otherwise remedy any suspected problem; and
(c) remove such Hazardous Waste and remedy any associated problems to the
reasonable satisfaction of Owner, in accordance with applicable legal
requirements and good business practices.
12.16.6 Manager shall be responsible for providing its employees,
agents, consultants, governmental entities and the public with any notices or
disclosures concerning Hazardous Waste associated with each Project required to
be delivered by Manager under any applicable laws, including, without
limitation, any notices or disclosures concerning Hazardous Waste which Manager
has received from Owner. Owner shall have the right to review such notices and
disclosures prior to its distribution or submission by Manager and shall have
the right, but not the obligation, to prescribe the form and content of any such
notices or disclosures as long as the form and content prescribed by Owner
complies with all applicable laws relating to such notices or disclosures. Owner
shall provide Manager with any notices or disclosures concerning Hazardous Waste
associated with the Project required to be delivered by Owner under any
applicable laws.
12.16.7 Manager shall not, and shall ensure that all employees,
agents and consultants of Manager do not, cause or permit any
asbestos-containing material to be brought upon or incorporated into any
Project, unless: (a) such materials are specifically authorized and approved by
Owner; or (b) no substitute is available at a reasonable cost and Manager
obtains Owner's prior written approval.
12.16.8 Manager shall immediately notify Owner in writing of any
circumstances or incident known to Manager involving Hazardous Waste that may
affect any Project or that may give rise to liability on the part of Owner or
Manager. Promptly upon receipt or submission thereof, Manager shall provide
Owner with true, correct, complete and legible copies of all notices,
complaints, orders, reports, citations, listings, disclosure forms and
correspondence received or submitted by Manager with respect to any Hazardous
Waste associated with the Project.
25
33
12.16.9 Manager shall ensure that all of its employees, agents
and consultants comply with all of the terms of this SECTION 12.16. Manager
shall monitor all such persons to ensure such compliance.
12.17 REGULATORY COMPLIANCE. In the event that a Project is
encumbered at any time during the Term by a local, state or federal regulatory
or other agreement or similar declaration of restrictions ("REGULATORY
AGREEMENT") containing any leasing or other restrictions related to any
tax-exempt revenue bonds or similar instruments issued in connection with the
financing of such Project or related to affordable housing requirements, Owner
shall deliver to Manager a copy of such Regulatory Agreement, together with any
documents related thereto, and a copy of Owner's Bond Compliance Manual. Owner
represents to Manager that: (a) the information in the Bond Compliance Manual
conforms, in all material respects, with the provisions of the Regulatory
Agreement and the provisions of other related documents which are summarized
therein, and (b) as of the date hereof, Owner has received no notices of default
or similar communications with respect to the Regulatory Agreement nor, to the
best of its knowledge, does there exist any occurrence which, with the giving of
notice or the passage of time, or both, would constitute an event of default
thereunder. Neither Owner makes warranty or representation whatsoever that the
Bond Compliance Manual reflects all terms and provisions of the Regulatory
Agreement and the documents relating thereto. Manager shall be responsible for
avoiding any violations of the terms of the Regulatory Agreement, including,
without limitation, restrictions governing the permitted income levels of such
Project's tenants and reporting requirements to applicable entities, including
the Internal Revenue Service; however, Manager shall not be responsible for any
violations of the provisions of the Regulatory Agreement as of the Commencement
Date and, in fulfilling its obligations hereunder, Manager shall be entitled to
rely upon the Monthly Summary of Income and Rent Restrictions delivered to
Manager by Owner from time to time, setting forth, among other things,
permissible tenant income levels. Owner agrees to cooperate with Manager in
interpreting the terms and conditions of the Regulatory Agreement and to respond
promptly to Manager's requests for clarification of any of the terms thereof or
additional information with respect thereto.
12.18 APPROVALS. All requests for approvals by Owner must be
directed by Manager to Owner.
12.19 PROPOSITION 65 COMPLIANCE. Manager shall, at all times and
at Owner's expense, comply with any program or policy of Owner relating to
compliance by Owner with the terms of SECTION 25249.5 ET SEQ. of the California
Health and Safety Code and all rules and regulations promulgated pursuant
thereto, as such statute, rules and regulations may hereafter be amended
(collectively, "PROPOSITION 65"). Owner shall indemnify, defend and hold Manager
harmless from and against any and all Losses incurred by Manager in connection
with Manager's compliance with any such program or policy of Owner. In addition,
and without limiting the generality of the foregoing, Manager shall, promptly
upon receipt of knowledge thereof, notify Owner of the existence on the Project
site of any "HAZARDOUS SUBSTANCE" (as defined under Proposition 65), notice of
the existence of which has not been given to tenants of the Project. Manager
shall, at all times, and at its sole cost and expense, comply with the
requirements of Proposition 65 which apply to Manager in its capacity as a
manager of real property and with which Manager would not otherwise be obligated
to comply pursuant to this SECTION 12.19.
26
34
12.20 INDEMNIFICATIONS. Manager shall defend, indemnify and hold
Owner, and its officers, directors, agents, servants, employees, divisions,
subsidiaries, partners, shareholders, affiliated companies, successors and
assigns (the "OWNER INDEMNITEES") harmless from and against any and all loss,
claim, damage, fines, penalties, disbursements, actions, causes of action, cost,
expense, (including, without limitation, reasonable attorneys' fees and costs)
and every other liability whatsoever (collectively, "LOSSES") arising out of or
incurred directly or indirectly by reason of (1) Manager's failure or alleged
failure to perform its obligations under any Contract, unless such failure or
alleged failure directly arises from Owner's failure to maintain funds in the
Operating Account in accordance with SECTION 8.2 hereof or otherwise arises
directly from Owner's or Owner's failure to perform its obligations hereunder;
(2) loss or damage to Owner's or Owner's property or any claim, suit or judgment
brought by or on behalf of any person or persons for damage, loss, liability or
expense due to, but not limited to, bodily injury or property damage sustained
by such person or persons, which arises out of, is occasioned by or is in any
way attributable to the negligence or willful misconduct of Manager or its
employees or otherwise attributable to Manager's negligence in selecting or
supervising any of its agents, any Contractor and/or any other person or entity
supplying service or performing work in connection with the operation of any
Project, or the breach of any of Manager's obligations hereunder, except to the
extent any such Loss is caused by the negligence or willful misconduct of Owner
Indemnitee; (3) the payment of any cost or expense from the Operating Account,
or the incurrence by Manager of any obligation to pay any cost or expense,
except in accordance with a current Approved Budget or otherwise in accordance
with SECTION 4.2 AND SECTION 11.1; (4) the investigation, preparation for,
service as a witness in or defense of any action or proceeding, whether actually
commenced or threatened, or in removal or remediation of any Hazardous Wastes
on, under, from or about a Project, to the extent arising out of or relating to,
directly or indirectly, Manager's breach of any of the terms of SECTION 12.16;
(5) any violation by Manager of any term, condition or restriction set forth in
any Regulatory Agreement applicable to a Project, unless such violation arises
out of Manager's reliance on a written interpretation or instruction from Owner;
or (6) Manager's fraud, gross negligence or willful misconduct or other failure
to perform its obligations hereunder. This indemnity shall survive expiration or
termination of this Agreement.
Owner shall defend, indemnify and hold Manager harmless from and
against any and all Losses arising out of, or incurred directly or indirectly as
a result of, (1) Owner's failure or alleged failure to perform, from and after
the date of assumption, its obligations under any Contract assumed by Owner on
the termination of this Agreement; (2) any claims asserted against Manager by
any of Owner's former employees prior to the initial formation of Manager
whether or not employed by Manager, to the extent such claim is alleged and
determined by a court of competent jurisdiction to result solely from Owner's
acts in terminating the employment of the employee bringing such action; (3) any
loss or damage to Manager's property or any claim, suit or judgment brought by
or on behalf of any person or persons for damage, loss, liability or expense due
to, but not limited to, bodily injury or property damage sustained by such
person or persons if and to the extent such Loss arises out of, is occasioned by
or is in any way attributable to the condition of any Project or otherwise
results from an occurrence beyond Manager's reasonable control not involving a
breach by Manager of any of its duties or obligations hereunder or the
negligence or willful misconduct of Manager or its employees; and (4)
investigation, preparation for, service as a witness in or defense of any action
or proceeding, whether actually commenced or threatened, or in removal or
remediation of any Hazardous
27
35
Wastes on, under, from or about a Project, except to the extent arising out of
or relating to, directly or indirectly, to Manager's breach of any of the terms
of SECTION 12.16. This indemnity shall survive expiration or termination of this
Agreement.
28
36
IN WITNESS WHEREOF, Owner and Manager have executed this
Management Agreement as of the day and year first above written.
MANAGER:
IRVINE APARTMENT MANAGEMENT COMPANY,
a California general partnership
By: APARTMENT MANAGEMENT COMPANY, LLC,
a Delaware limited liability company,
its general partner
By: IRVINE APARTMENT COMMUNITIES, L.P.,
a Delaware limited partnership,
its sole member
By: Irvine Apartment Communities, LLC
a Delaware limited liability company
its general partner
By:
-------------------------------------------
Xxx Xxxxxxx
Its Executive Vice President
By:
-------------------------------------------
Xxxxxxxx Xxxxxx
Its President
By: WESTERN NATIONAL SECURITIES, d/b/a WESTERN NATIONAL PROPERTY
MANAGEMENT,
a California corporation,
its managing general partner
By:
-------------------------------------------------
Xxxxxxx Xxxxx
Chief Executive Officer
Address for Notice:
c/o Apartment Management Company, LLC
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
29
37
OWNER:
IRVINE APARTMENT COMMUNITIES, L.P.,
a Delaware limited partnership,
its general partner
By: Irvine Apartment Communities, LLC
a Delaware limited liability company
its general partner
By:
-------------------------------------------
Xxxxx Xxxxx
Its Executive Vice President
By:
-------------------------------------------
Xxxxxx Xxxxxxx
Its Assistant Secretary
Address for Notice:
Irvine Apartment Communities, LLC
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Vice President
30
38
EXHIBIT A
DESCRIPTION OF THE PROJECTS
Attached hereto
A-1
39
IRVINE APARTMENT COMMUNITIES
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-----------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRE
------------------------------------------------------------------------------------------------------------------------------------
AMHERST COURT 6/91 37 Studio A 476 17,612 6.35 25.5
100 Xxxxxxx Xxxxx 00 Studio B 542 7,588
Xxxxxx, XX 00000 9 Studio C 559 5,031
(000) 000-0000 4 Studio D 595 2,380
(000) 000-0000 FAX 23 1/1 E 730 16,790
14 1/1 F 769 10,766
42 2/2 G 921 38,682
19 2/2 H 973 18,487
--- --- -------
Total 162 724 117,336
------------------------------------------------------------------------------------------------------------------------------------
ARCADIA AT STONECREST VILLAGE 1/1/99 42 1/1 Jr 670 28,140 13.50 24.9
0000 Xxxx Xxxxxx Xxxxxx 25 1/1 775 19,375
Xxx Xxxxx, XX 00000 20 1/1DA 827 16,540
(000) 000-0000 309 1/1 836 258,324
(000) 000-0000 FAX 28 1/1DA 857 23,996
15 1/1+Loft 886 13,290
45 2/2DM 1,002 45,090
8 2/2 DA 1,062 8,496
28 2/2 1,121 31,388
24 2/2 DM 1,140 27,360
16 2/2+Den 1,230 19,680
28 2/2+Loft 1,371 38,388
27 3/2 C/DA 1,487 40,149
--- ----- -------
Total 336 1,697 570,216
------------------------------------------------------------------------------------------------------------------------------------
XXXX ISLAND VILLAS AND MARINA Oct-99 39 1/1 775 30,225 12.20 12.7
000 Xxxx Xxxxxx Xxxx 10 1/1+Loft 887 8,870
Xxxxxxx Xxxx, XX 00000 52 2/2 1,070 55,640
(000) 000-0000 10 2/2+Loft 1,242 12,420
(000) 000-0000 FAX 10 2/2 TH 1,166 11,660
24 2/2+Den 1,283 30,792
10 2/2TH+Den 1,373 13,730
--- ----- -------
Total 155 1,054 163,337
------------------------------------------------------------------------------------------------------------------------------------
BAYPOINTE 10/96 46 1/1 777 35,742 17.3 17.3
0000 Xxxxxxxxx Xxxxx 26 1/1 834 21,684
Xxxxxxx Xxxxx, XX 00000 00 0/0 Xxxx 000 19,000
(000) 000-0000 26 2/2 1,236 32,136
(000) 000-0000 FAX 26 2/2 1,065 27,690
78 2/2 1,074 83,772
78 2/2 1,168 91,104
--- ----- -------
Total 300 1,037 311,128
------------------------------------------------------------------------------------------------------------------------------------
BAYPORT 8/71 72 1/1 775 55,800 4.90 21.2
0000 Xxx Xxxxxxx Xxxxx Xxxx 32 2/2 1,075 34,400
--- ----- -------
Xxxxxx xxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 FAX
Total 104 867 90,200
------------------------------------------------------------------------------------------------------------------------------------
BAYVIEW 7/71 40 2/2 1,075 43,000 4.48 14.3
0000 Xxxxxxxxxx Xxxxxx 24 3/2 1,285 30,840
--- ----- -------
Xxxxxx xxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 FAX
Total 64 1,154 73,840
------------------------------------------------------------------------------------------------------------------------------------
BAYWOOD (Phase I) 4/73 80 1/1 790 63,200 28.22 13.7
0 Xxxxxxx Xxxxx (Phase II) 6/84 244 2/2 1,095 267,180
Xxxxxxx Xxxxx, XX 00000 44 3/2 1,305 57,420
(000) 000-0000 00 0/0 0/0 XX 1,355 13,550
(000) 000-0000 FAX 00 0/0 0/0 XX 1,525 15,250
--- ----- -------
Total 388 1,074 416,600
------------------------------------------------------------------------------------------------------------------------------------
BERKELEY COURT Phase I 1/86 46 1/1 652 29,992 5.20 29.2
000 Xxxxxxxx Xxxxxx Phase II 2/86 46 2/2 945 43,470
Xxxxxx, XX 00000 00 0/0 XX 000 59,940
--- ----- -------
(000) 000-0000
(000) 000-0000 FAX
Total 152 878 133,402
------------------------------------------------------------------------------------------------------------------------------------
BRITTANY I AT OAKCREEK Phase I Nov-98 30 1/1 626 18,780 15.90 24.7
100 Saint Xxxxxxx 75 1/1 689 51,675
Xxxxxx, XX 00000 3 1/1 697 2,091
(000) 000-0000 00 0/0 XX 000 20,618
(000) 000-0000 FAX 38 1/1 799 30,362
28 2/2 964 26,992
57 2/2 DM 962 54,834
50 2/2 1,067 53,350
40 2/2 DM 1,091 43,640
6 1/1+Loft 1,021 6,126
20 1/2+Den TH 1,178 23,560
00 0/0 XX 0,000 00,000
00 0/0 XX 1,233 12,330
--- ----- -------
Total 393 907 356,428
------------------------------------------------------------------------------------------------------------------------------------
A-2
00
XXXXXX XXXXXXXXX XXXXXXXXXXX
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-----------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRE
------------------------------------------------------------------------------------------------------------------------------------
CEDAR CREEK 6/85 24 1/1 646 15,504 10.00 17.6
0000 Xxxxx Xxxxxxx, #00 88 2/1 797 70,136
Xxxxxx, XX 00000 64 2/2 891 57,024
--- ----- -------
(000) 000-0000
(000) 000-0000 FAX
Total 176 811 142,664
------------------------------------------------------------------------------------------------------------------------------------
COLUMBIA COURT 9/84 16 1/1 649 10,384 2.34 24.8
00-000 Xxxxxx 22 2/2 Dual 927 20,394
Xxxxxx, XX 00000 20 2/2 932 18,640
--- ----- -------
(000) 000-0000
(000) 000-0000 FAX
Total 58 852 49,418
------------------------------------------------------------------------------------------------------------------------------------
CORNELL COURT 10/84 32 1/1 649 20,768 5.10 21.4
105 Cornell 00 0/0 0/0 XX 000 39,818
Xxxxxx, XX 00000 34 3/2 TH 1,083 36,822
--- ----- -------
(000) 000-0000
(000) 000-0000 FAX
Total 109 894 97,408
------------------------------------------------------------------------------------------------------------------------------------
CROSS CREEK 6/85 104 2/2 891 92,664 7.00 19.4
00 Xxxxx Xxxx, #0 32 3/2 1,080 34,560
--- ----- -------
Xxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 FAX
Total 136 935 127,224
------------------------------------------------------------------------------------------------------------------------------------
DARTMOUTH COURT 7/86 42 Junior 558 23,436 11.60 25.3
1100 Stanford 42 1/1 802 33,684
Xxxxxx, XX 00000 42 2/2 C 977 41,034
(000) 000-0000 42 2/2 D 986 41,412
(000) 000-0000 FAX 126 2/2 E 984 123,984
--- ----- -------
Total 294 896 263,550
------------------------------------------------------------------------------------------------------------------------------------
DEERFIELD (Phase I) 3/75 48 Studio 570 27,360 15.19 19
3 Bearpaw (Phase II) 12/83 40 1/1 750 30,000
Xxxxxx, XX 00000 16 1/1 800 12,800
(000) 000-0000 76 2/1 900 68,400
(000) 000-0000 FAX 76 2/2 925 70,300
7 2/2 1,100 7,700
25 3/2 1,115 27,875
--- ----- -------
Total 288 849 244,435
------------------------------------------------------------------------------------------------------------------------------------
HARVARD COURT 5/86 32 1/1 646 20,672 6.10 18.4
000 Xxxxxxxx Xxxxxx 80 2/2 898 71,840
--- ----- -------
Xxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 FAX
Total 112 826 92,512
------------------------------------------------------------------------------------------------------------------------------------
THE HAMPTONS AT CUPERTINO 02/98 130 1/1 736 95,680 12.50 27.4
00000 Xxxxxxxxxx Xxx. 75 2/2 1,061 79,575
Xxxxxxxxx, XX 00000 75 2/2 966 72,450
(000) 000-0000 15 3/2 1,275 19,125
(000) 000-0000 FAX 15 3/2 1,206 18,090
00 0/0 XX 0,000 00,000
00 0/0 XX 1,386 16,632
--- ----- -------
Total 342 947 323,872
------------------------------------------------------------------------------------------------------------------------------------
MARINER SQUARE 8/69 28 1/1 850 23,800 6.51 17.5
0000 Xxxxxx Xxxxxx 16 2/2 1,135 18,160
Xxxxxxx Xxxxx, XX 00000 14 2/2 1,150 16,100
(000) 000-0000 30 2/2 Den 1,160 34,800
(000) 000-0000 FAX 00 0/0 0/0 XX 0,000 00,000
0 0/0 0/0 XX 1,280 8,960
--- ----- -------
Total 114 1,104 125,855
------------------------------------------------------------------------------------------------------------------------------------
NEWPORT NORTH 12/86 62 1/1 (AI) 687 42,594 36.40 15.7
2 Milano 62 1/1 Loft 818 50,716
Xxxxxxx Xxxxx. XX 00000 24 1/1 (AIII) 687 16,488
(000) 000-0000 48 1/1 (B) 681 32,688
(000) 000-0000 FAX 80 2/2 (F) 926 74,080
136 2/2 Dual 1,091 148,376
000 0/0 0/0 XX 0,000 000,000
00 0/0 0/0 XX 1,203 52,932
--- ----- -------
Total 570 947 539,968
------------------------------------------------------------------------------------------------------------------------------------
NEWPORT RIDGE 5/95 99 1/1 1 747 73,953 24.37 21.0
0 Xxxxx Xxx Xxxx 54 1/1 2 800 43,200
Xxxxxxx Xxxxx, XX 00000 14 1/1 3 920 12,880
(000) 000-0000 36 2/2 4 994 35,784
(000) 000-0000 FAX 36 2/2 4A 1,043 37,548
72 2/2 5 1,092 78,624
36 2/2 5A 1,120 40,320
52 2/2 6 1,058 55,016
104 2/2 6A 1,077 112,008
9 2/2 7 1,091 9,819
--- ----- -------
Total 512 975 499,152
------------------------------------------------------------------------------------------------------------------------------------
A-3
00
XXXXXX XXXXXXXXX XXXXXXXXXXX
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-----------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRE
------------------------------------------------------------------------------------------------------------------------------------
NORTHWOOD PARK 3/85 32 1/1 668 21,376 10.70 15.7
146 Roosevelt 88 2/2 972 85,536
Xxxxxx, XX 00000 32 2/2 D Mst 1,046 33,472
(000) 000-0000 16 3/2 1,135 18,160
--- ----- -------
(000) 000-0000 FAX
Total 168 944 158,544
------------------------------------------------------------------------------------------------------------------------------------
NORTHWOOD PLACE 6/86 64 1/1 (A) 740 47,360 37.10 16.3
1300 Xxxxx 80 1/1 (A-I 742 59,360
Xxxxxx, XX 00000 40 1/1 (B) 757 30,280
(000) 000-0000 40 2/2 (C) 992 39,680
(000) 000-0000 FAX 16 2/2 (C-I) 994 15,904
48 2/2 (C-II) 1,025 49,200
120 2/2 (D) 998 119,760
72 2/2 (E) 993 71,496
16 2/2 (E-I) 1,042 16,672
000 0/0 0/0 XX (X) 1,173 126,684
--- ------ --------
Total 604 954 576,396
------------------------------------------------------------------------------------------------------------------------------------
ONE PARK PLACE 32 1/1 554 17,728 2.35 10.2
18600 Jamboree 28 1/1 765 21,420
Xxxxxx, XX 00000 20 1/1 782 15,640
(000) 000-0000 16 1/1 829 13,264
(000) 000-0000 FAX 24 2/2 DM 1,015 24,360
76 2/2 DM 1,093 83,068
15 3/2 1,214 18,210
5 2/2 1,072 5,360
--- ----- -------
Total 216 922 199,050
------------------------------------------------------------------------------------------------------------------------------------
ORCHARD PARK 12/82 5 2/1 Hand 935 4,675 3.80 15.8
50 Tarocco, #301 43 2/1 1/2 TH 926 39,818
Xxxxxx, XX 00000 0 0/0 0/0 XX 1,052 6,312
(000) 000-0000 6 4/2 1/2 TH 1,241 7,446
--- ----- -------
(000) 000-0000 FAX
Total 60 971 58,251
------------------------------------------------------------------------------------------------------------------------------------
PARK WEST (Phase I) 9/70 209 1/1 750 156,750 52.74 16.7
0000 Xxxxxxxx Xxxx (Phase II) 11/71 100 2/1 A 975 97,500
Xxxxxx, XX 00000 (Phase III) 10/72 140 2/1 D 1,000 140,000
(000) 000-0000 140 2/2 C 1,050 147,000
(000) 000-0000 FAX 125 2/2 B 1,075 134,375
166 3/2 1,250 207,500
--- ----- -------
Total 880 1,004 883,125
------------------------------------------------------------------------------------------------------------------------------------
THE PARKLANDS 11/83 20 1/1 671 13,420 7.09 17.1
1 Monroe, #11 42 2/1 774 32,508
Xxxxxx, XX 00000 45 2/1 824 37,080
(000) 000-0000 6 2/1 Hand 801 4,806
(000) 000-0000 FAX 8 3/2 1,031 8,248
--- ----- -------
Total 121 794 96,062
------------------------------------------------------------------------------------------------------------------------------------
PARKWOOD 3/74 96 1/1 700 67,200 14.60 20.3
00000 Xxxxxx Xxxxxx 76 2/1 900 68,400
Xxxxxx, XX 00000 80 2/2 950 76,000
(000) 000-0000 44 3/2 1,150 50,600
--- ----- -------
(000) 000-0000 FAX
Total 296 886 262,200
------------------------------------------------------------------------------------------------------------------------------------
PROMONTORY POINT VILLAS 7/74 106 1/1 750-940 (see pg. 9) 31.76 16.4
000 Xxxxxxxxxx Xxxxx Xxxx 84 1/1 Loft 70-1,050
Xxxxxxx Xxxxx, XX 00000 270 2/2 160-1,185
(000) 000-0000 60 2/2 Loft 125-1,490
(000) 000-0000 FAX
---
Total 520 1,056 549,320
------------------------------------------------------------------------------------------------------------------------------------
RANCHO ALISAL 10/87 36 1/1 777 27,972 19.10 18.6
00000 Xxxxxxxxxx Xx., #000 Exp. 3/91 6 1/1 706 4,236
Xxxxxx, XX 00000 90 2/2 Dual 925 83,250
(000) 000-0000 160 2/2 1,005 160,800
(000) 000-0000 FAX 64 3/2 1,063 68,032
--- ----- -------
Total 356 967 344,290
------------------------------------------------------------------------------------------------------------------------------------
A-4
00
XXXXXX XXXXXXXXX XXXXXXXXXXX
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-------------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRES
------------------------------------------------------------------------------------------------------------------------------------
RANCHO MADERAS 5/89 24 Junior 585 14,040 14.60 18.2
00000 Xxxxxxxx Xxx 24 1/1 718 17,232
Xxxxxx, XX 00000 86 2/2 965 82,990
(000) 000-0000 000 0/0 0/0 XX 1,027 135,564
--- ----- -------
(000) 000-0000 FAX
Total 266 939 249,826
------------------------------------------------------------------------------------------------------------------------------------
RANCHO MARIPOSA 9/91 52 Studio A 550 28,600 10.00 23.8
00000 Xxxxxx Xxxx 32 1/1 B 750 24,000
Xxxxxx, XX 00000 11 1/1 C1 870 9,570
(000) 000-0000 22 1/1 C2 790 17,380
(000) 000-0000 FAX 55 2/2 D 990 54,450
66 2/2 E 1,058 69,828
--- ----- -------
Total 238 856 203,828
------------------------------------------------------------------------------------------------------------------------------------
RANCHO MONTEREY 3/95 90 1/1 1 700 63,000 18.02 24.2
000 Xxxxxxxx Xxxxx 30 1/1 1A 772 23,160
Xxxxxx, XX 00000 26 1/1 2 733 19,058
(000) 000-0000 28 2/2 3 969 27,132
(000) 000-0000 FAX 28 2/2 3A 969 27,132
84 2/2 4 1,018 85,512
60 2/2 5 1,031 61,860
90 2/2 6 1,108 99,720
--- ----- -------
Total 436 933 406,574
------------------------------------------------------------------------------------------------------------------------------------
RANCHO SAN XXXXXXX 8/76 24 Junior 600 14,400 17.21 21.4
20 Pergola 132 1/1 750 99,000
Xxxxxx, XX 00000 000 0/0 Xxx 000 98,280
(000) 000-0000 40 2/2 A 1,050 42,000
(000) 000-0000 FAX 44 2/2 G 1,052 46,288
24 2/2 Den 1,235 29,640
--- ----- -------
Total 368 896 329,608
------------------------------------------------------------------------------------------------------------------------------------
A-5
00
XXXXXX XXXXXXXXX XXXXXXXXXXX
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-------------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRES
------------------------------------------------------------------------------------------------------------------------------------
RANCHO SANTA FE 11/97 15 2/2 Flat A 985 14,775 18.50 17.1
0000 Xxxxxx Xxxx 26 2/2 Flat B 1,044 27,144
Xxxxxx, XX 00000 9 2/2 Flat B1 1,012 9,108
(000) 000-0000 00 0/0 Xxxx X0 000 19,660
(000) 000-0000 FAX 00 0/0 Xxxx X 0,000 00,000
00 0/0 Xxxx X 1,082 32,460
55 3/2 Flat E 1,214 66,770
55 3/2 Flat F 1,242 68,310
19 2/2 Flat G 1,106 21,014
00 0/0 Xxxx X 0,000 00,000
00 0/0 XX J 1,190 22,610
19 2/2 Flat K 1,065 20,235
--- ------ -------
Total 316 1,121 354,254
------------------------------------------------------------------------------------------------------------------------------------
RANCHO TIERRA 4/89 72 2/2 935 67,320 15.50 16.3
00000 Xxxxxx Xxxx, #000 144 2/2 Dual 1,035 149,040
Xxxxxx, XX 00000 00 0/0 0/0 XX 1,205 43,380
--- ------ -------
(000) 000-0000
(000) 000-0000 FAX
Total 252 1,031 259,740
------------------------------------------------------------------------------------------------------------------------------------
SAN XXXXX XXXXX 6/89 90 2/2 A 967 87,030 21.40 16.5
00 Xxxxxx Xxxxx 000 2/2 Dual B 973 128,436
Xxxxxx, XX 00000 00 0/0 0/0 XX C 1,191 78,606
(000) 000-0000 00 0/0 0/0 XX X 1,303 85,998
--- ------ -------
(000) 000-0000 FAX
Total 354 1,074 380,070
------------------------------------------------------------------------------------------------------------------------------------
SANTA XXXXX 11/96 13 2/2 975 12,675 12.70 17.9
800 Santa Xxxxx 54 2/2 1,000 54,000
Xxxxxx, XX 00000 26 2/2 1,061 27,586
(000) 000-0000 26 2/2 1,073 27,898
(000) 000-0000 FAX 54 3/3 1,230 66,420
54 3/3 1,239 66,906
--- ------ -------
Total 227 1,125 255,485
------------------------------------------------------------------------------------------------------------------------------------
SAN XXXX XXXXX 2/87 32 1/1 697 22,304 13.20 18.8
1 San Xxxx 16 1/1 760 12,160
Xxxxxx, XX 00000 00 0/0 Xxxx 000 14,208
(000) 000-0000 46 2/2 981 45,126
(000) 000-0000 52 2/2 Dual 922 47,944
46 2/2 Loft 1,129 51,934
40 3/2 1,054 42,160
--- ------ -------
Total 248 951 235,836
------------------------------------------------------------------------------------------------------------------------------------
SAN XXXXX XXXXX 8/88 68 1/1 676 45,968 24.00 17.8
101 Veneto 192 2/2 926 177,792
Xxxxxx, XX 00000 112 2/2 Dual 953 106,736
(000) 000-0000 00 0/0 0/0 XX 1,161 62,694
--- ------ -------
(000) 000-0000 FAX
Total 426 923 393,190
------------------------------------------------------------------------------------------------------------------------------------
SAN MARINO VILLA 10/86 41 1/1 676 27,716 11.40 17.5
403 San Marino 44 2/2 937 41,228
Xxxxxx, XX 00000 83 2/2 Dual 953 79,099
(000) 000-0000 32 3/2 1,161 37,152
--- ------ -------
(000) 000-0000 FAX
Total 200 926 185,195
------------------------------------------------------------------------------------------------------------------------------------
SAN XXXXX XXXXX 11/90 65 Studio A 476 30,940 11.40 24.8
100 Cantata 22 Studio B 537 11,814
Xxxxxx, XX 00000 16 Studio C 595 9,520
(000) 000-0000 34 1/1 D 711 24,174
(000) 000-0000 FAX 23 1/1 E 724 16,652
19 1/1 F 747 14,193
69 2/2 G 904 62,376
35 2/2 H 973 34,055
--- ---- -------
Total 283 720 203,724
------------------------------------------------------------------------------------------------------------------------------------
SAN PAULO 5/93 44 1/1 A 660 29,040 15.10 25.3
100 Duranzo 84 1/1 B 690 57,960
Xxxxxx, XX 00000 24 2/2 Dual C 1,040 24,960
(000) 000-0000 22 2/2 D 1,020 22,440
(000) 000-0000 FAX 48 2/2 Dual E 1,090 52,320
24 2/2 F 1,100 26,400
38 2/2 1/2 Dual TH I 1,180 44,840
38 2/2 1/2 TH II 1,155 43,890
30 3/2 1/2 TH III 1,315 39,450
30 3/2 1/2 TH IV 1,365 40,950
--- ------ -------
Total 382 1,001 382,250
------------------------------------------------------------------------------------------------------------------------------------
A-6
00
XXXXXX XXXXXXXXX XXXXXXXXXXX
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-------------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRES
------------------------------------------------------------------------------------------------------------------------------------
SAN XXXX XXXXX (Phase I) 12/86 28 1/1 673 18,844 13.40 18.5
1011 San Remo (Phase II) 1/88 28 1/1 Loft 870 24,360
Xxxxxx, XX 00000 112 2/2 983 110,096
(000) 000-0000 44 2/2 Dual 976 42,944
(000) 000-0000 36 2/2 Dm/Loft 1,180 42,480
--- ------ -------
Total 248 963 238,724
------------------------------------------------------------------------------------------------------------------------------------
SANTA XXXXX 2/95 59 1/1 1 757 44,663 15.90 24.2
000 Xxxxx Xxxxxx 45 1/1 2 798 35,910
Xxxxxx, XX 00000 16 1/1 3 950 15,200
(000) 000-0000 30 2/2 4 995 29,850
(000) 000-0000 FAX 30 2/2 4A 1,044 31,320
90 2/2 5 1,081 97,290
108 2/2 6 1,057 114,156
--- ------ --------
Total 378 975 368,389
------------------------------------------------------------------------------------------------------------------------------------
SANTA XXXX Phase I 2/95 79 1/1 1 655 51,745 14.70 25
500 CARDIFF 51 1/1 2 737 37,587
Xxxxxx, XX 00000 51 2/2 3 933 47,583
(000) 000-0000 85 2/2 4 1,001 85,085
(000) 000-0000 FAX 102 2/2 5 1,053 107,406
--- ------ --------
Total 368 895 329,406
Phase II 10/97 47 2/2 Flat 1 1,059 49,773 12.10 17.1
44 2/2.5 TH 2 1,205 53,020
00 0/0 Xxxx 0X 1,110 24,420
22 2/2 Flat 3B 1,150 25,300
10 3/2.5 TH 4 1,377 13,770
62 3/2.5 TH 5 1,434 88,908
--- ------ -------
Total 207 1,233 255,191
Total Project 575
------------------------------------------------------------------------------------------------------------------------------------
SIERRA VISTA 12/91 34 Studio A 490 16,660 12.80 23.9
0000 Xxxxxxxx Xxx 34 Studio B 515 17,510
Xxxxxx, XX 00000 34 1/1 C 640 21,760
(000) 000-0000 34 1/1 Den D 895 30,430
(000) 000-0000 34 1/1 Den E 930 31,620
68 2/2 Dual F 1,040 70,720
68 2/2 G 1,060 72,080
--- ------ -------
Total 306 852 260,780
------------------------------------------------------------------------------------------------------------------------------------
SONOMA AT OAKCREEK Aug-98 6 2/2 1,008 6,048 9.90 19.8
700 Sonoma 12 2/2 1,109 13,308
Xxxxxx, XX 00000 12 2/2 1,066 12,792
(000) 000-0000 12 2/2 1,176 14,112
(000) 000-0000 FAX 20 2/2 1,106 22,120
20 2/2 1,187 23,740
20 2/2 1/2 1,193 23,860
20 2/2 1,155 23,100
20 2/2 1,073 21,460
10 2/2 1,164 11,640
22 3/2 1,223 26,906
12 3/2 1,337 16,044
10 3/2 1,227 12,270
--- ------ -------
Total 196 1,160 227,400
------------------------------------------------------------------------------------------------------------------------------------
STANFORD COURT 5/85 80 1/1 646 51,680 15.35 20.8
400 Stanford 104 2/1 797 82,888
Xxxxxx, XX 00000 136 2/2 891 121,176
--- ---- --------
(000) 000-0000
(000) 000-0000 FAX
Total 320 799 255,744
------------------------------------------------------------------------------------------------------------------------------------
THE COLONY AT FASHION ISLAND Est. 8/97 12 1/1 1,008 12,096 6.40 38.3
5100 Colony Plaza 39 1/1 Den 1,087 42,393
Xxxxxxx Xxxxx, XX 00000 83 2/2 1,273 105,659
(000) 000-0000 41 2/2 1,358 55,678
(000) 000-0000 FAX 70 2/2 Den 1,539 107,730
--- ------ --------
Total 245 1,321 323,556
------------------------------------------------------------------------------------------------------------------------------------
A-7
00
XXXXXX XXXXXXXXX XXXXXXXXXXX
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-------------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRES
------------------------------------------------------------------------------------------------------------------------------------
TURTLE ROCK CANYON 2/91 30 1/1 E 776 23,280 15.70 13.8
000 Xxxxxxxxxxx Xxxxx 51 2/2 A 965 49,215
Xxxxxx, XX 00000 68 2/2 Dual B 1,017 69,156
(000) 000-0000 00 0/0 0/0 XX C 1,167 53,682
(000) 000-0000 FAX 00 0/0 0/0 XX X 1,223 26,906
--- ------ -------
Total 217 1,024 222,239
------------------------------------------------------------------------------------------------------------------------------------
TURTLE ROCK VISTA (Phase I) 2/76 12 1/1 760 9,120 15.55 16.2
0 Xxxxxxxx Xxxxx (Phase II) 8/77 24 1/1 798 19,152
Xxxxxx, XX 00000 52 2/1 1,026 53,352
(000) 000-0000 60 2/2 1,120 67,200
(000) 000-0000 FAX 60 3/2 1,327 79,620
00 0/0 0/0 XX 0,000 00,000
00 0/0 0/0 XX 1,455 34,920
--- ------ -------
Total 252 1,155 291,024
------------------------------------------------------------------------------------------------------------------------------------
TWELVE TWENTY ONE OCEAN AVENUE Oct-99 29 1/2 +Den 2,282 66,178 N/A N/A
0000 Xxxxx Xxxxxx 84 2/2 1,569 131,796
Xxxxx Xxxxxx, XX 00000 5 2/2 1,763 8,815
(000) 000-0000 2 2/2+Den 1,915 3,830
- ------ ------
(000) 000-0000 FAX
Total 120 1,755 210,619
------------------------------------------------------------------------------------------------------------------------------------
VILLA CORONADO 12/94 105 1/1 1 700 73,500 20.80 24.7
100 Ambazar 35 1/1 1A 772 27,020
Xxxxxx, XX 00000 33 1/1 2 733 24,189
(000) 000-0000 66 2/2 3 969 63,954
(000) 000-0000 FAX 99 2/2 4 1,018 100,782
70 2/2 5 1,031 72,170
105 2/2 6 1,108 116,340
--- ------ --------
Total 513 932 477,955
------------------------------------------------------------------------------------------------------------------------------------
VILLAS OF RENAISSANCE, THE Apr-91 50 Studio 493 24,650 14.00 65.9
0000 Xxxxx Xxxxxxx 85 1/1 717 60,945
Xxx Xxxxx, XX 00000 85 1/1 710 60,350
(000) 000-0000 85 1/1 758 64,430
(000) 000-0000 FAX 00 0/0 Xxx 000 24,492
16 1/1 725 11,600
86 2/2 957 82,302
104 2/2 1040 108,160
156 2/2 1060 165,360
42 2/2 Loft 1204 50,568
74 2/2 1146 84,804
50 2/2 Den 1200 60,000
64 3/2 1348 86,272
--- ---- -------
923 958 883,933
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX XXXX 1/85 24 1/1 (I) 649 15,576 10.39 18.9
97 Hearthstone 24 1/1 (II) 625 15,000
Xxxxxx, XX 00000 44 2/2 (III) 927 40,788
(000) 000-0000 76 2/2 (IV) 932 70,832
(000) 000-0000 FAX 28 3/2 (V) 1,071 29,988
--- ------ -------
Total 196 878 172,184
------------------------------------------------------------------------------------------------------------------------------------
WINDWOOD XXXXX 12/83 80 1/1 747 59,760 13.90 17.8
2 Flagstone, #121 138 2/1 919 126,822
Xxxxxx, XX 00000 6 3/2 Hand 1,139 6,834
(000) 000-0000 18 3/2 Loft 1,258 22,644
(000) 000-0000 FAX 6 4/3 TH 1,420 8,520
- ------ ------
Total 248 906 224,580
------------------------------------------------------------------------------------------------------------------------------------
WOODBRIDGE OAKS 10/83 48 2/1 868 41,664 7.30 16.4
1 Knollglen 00 0/0 0/0 XX 000 43,536
Xxxxxx, XX 00000 00 0/0 0/0 XX 1,248 14,976
(000) 000-0000 00 0/0 0/0 XX 1,414 16,968
--- ------ -------
(000) 000-0000 FAX
Total 120 976 117,144
------------------------------------------------------------------------------------------------------------------------------------
WOODBRIDGE PINES 12/76 104 1/1 745 77,480 10.75 20.5
115 Pinestone 104 2/2 965 100,360
Xxxxxx, XX 00000 12 3/2 1,175 14,100
--- ------ -------
(000) 000-0000
(000) 000-0000 FAX
Total 220 872 191,940
------------------------------------------------------------------------------------------------------------------------------------
A-8
00
XXXXXX XXXXXXXXX XXXXXXXXXXX
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-------------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRES
------------------------------------------------------------------------------------------------------------------------------------
WOODBRIDGE VILLAS 7/82 88 1/1 705 62,040 12.48 20.7
00 Xxxxxxx Xxx, #00 90 2/1 853 76,770
Xxxxxx, XX 00000 11 2/2 1,094 12,034
(000) 000-0000 00 0/0 0/0 XX 1,004 36,144
(000) 000-0000 FAX 00 0/0 0/0 XX 1,033 12,396
15 3/2 1,105 16,575
6 4/2 TH 1,275 7,650
--- ------ ------
Total 258 867 223,609
------------------------------------------------------------------------------------------------------------------------------------
WOODBRIDGE WILLOWS 11/84 72 1/1 783 56,376 11.70 17.1
344 Knollglen 72 2/1 900 64,800
Xxxxxx, XX 00000 40 2/2 967 38,680
(000) 000-0000 16 3/2 1,181 18,896
--- ------ -------
(000) 000-0000 FAX
Total 200 894 178,752
------------------------------------------------------------------------------------------------------------------------------------
GRAND TOTAL: 17,944 17,158,532
====== ==========
AVERAGE SQUARE FEET: 956
===
A-9
47
THE IRVINE COMPANY
PROJECT LIST AS OF JANUARY 1, 2000
------------------------------------------------------------------------------------------------------------------------------------
DENSITY
-----------------------
DATE # OF UNIT SQUARE TOTAL DU PER
PROJECT OPENED UNITS TYPE FOOTAGE ACRES ACRES
------------------------------------------------------------------------------------------------------------------------------------
NEWPORT BLUFFS Village II Nov-99 30 1/1 626 18,780
100 Vilaggio 60 1/1 689 41,340
Xxxxxxx Xxxxx, XX 00000 20 1/1 793 15,860
(000) 000-0000 30 1/1 799 23,970
(000) 000-0000 FAX 8 1/1+Loft 1,045 8,360
15 2/2 945 14,175
45 2/2 DM 957 43,065
40 2/2 1,067 42,680
45 2/2 DM 1,079 48,555
24 1/2+Den TH 1,152 27,648
00 0/0 XX 0,000 00,000
00 0/0 XX 1,193 16,702
10 2/2 TH 1,119 11,190
--- ----- -------
351 923 324,015
Village III Xxx-00 00 0/0 0/0 XX DA 1,103 35,296
00 0/0 XX XX 0,000 00,000
00 0/0 0/0 XX DA 1,317 65,850
14 0/0 0/0 XX XX 0,000 00,000
00 0/0 0/0 XX DA 1,354 18,956
14 0/0 0/0 XX XX 0,000 00,000
00 0/0 0/0 XX DA 1,395 19,530
18 3/2 1/2 TH DA 1,395 25,110
--- ----- -------
188 1,299 244,238
Total Project 539 57.70 9.3
------------------------------------------------------------------------------------------------------------------------------------
A-10
48
EXHIBIT B
MINIMUM INSURANCE REQUIREMENTS
FOR
OUTSIDE CONTRACTORS
NOT CLASSIFIED AS CLASS I
1. Commencement of Work. No Contractor shall commence any work on
any Project site until it obtains all insurance required to be obtained by such
Contractor under this EXHIBIT B. No Contractor will permit any of its
subcontractors to commence work on the Project site under the applicable
subcontract until all insurance requirements specified in this EXHIBIT B have
been complied with by such subcontractors.
2. Maintenance of Insurance. All insurance described under this
EXHIBIT B shall be maintained by the applicable Contractor at its expense with
insurance carriers licensed and approved to do business in California and, in
the case of liability insurance, the carrier must be listed in Best's Key Rating
Guide. In no event shall such insurance be terminated or otherwise allowed to
lapse prior to termination or expiration of the applicable Contract.
3. Commercial General Liability Insurance. Unless Owner otherwise
agrees in writing, each Contractor shall maintain Commercial General Liability
insurance on an "occurrence" basis, without a deductible, with a combined single
limit for bodily injury and property damage of Three Hundred Thousand Dollars
($300,000) or current limit carried, whichever is greater.
4. Automobile Liability Insurance. Each Contractor shall maintain
automobile liability insurance covering all use of all automobiles, trucks and
other motor vehicles utilized by such Contractor in connection with the work
with a combined single limit for bodily injury and property damage of Three
Hundred Thousand Dollars ($300,000) or current limit carried, whichever is
greater.
5. Workers' Compensation Insurance. Each Contractor shall
maintain full Workers' Compensation Insurance for all persons whom it employs in
carrying out the work under the applicable Contract. Such insurance shall be in
strict accordance with the requirements of the most current and applicable
California State Workers' Compensation Laws.
6. Additional Insured. Owner, the respective officers, directors,
agents, servants, employees, divisions, subsidiaries, partners, shareholders and
affiliated companies and Manager and its officers, directors, agents, employees,
shareholders, subsidiaries and partners shall be included as additional insureds
on a primary basis under the coverage specified in SECTION 3 of this EXHIBIT B,
but only with respect to legal liability or claims caused by, arising out of or
resulting from the acts or omissions of the named insured or of others performed
on behalf of the named insured.
7. Evidence of Insurance. As evidence of specified insurance
coverage, Manager shall, in lieu of actual policies, be provided certificates
and/or endorsements showing such policies in force for the specified period.
Such evidence shall be delivered to Manager
B-1
49
promptly following the execution of the applicable Contract or prior to
commencement of work on a Project site, whichever first occurs. Each policy and
certificate/endorsement shall be subject to approval by Manager and shall
provide that such policy shall not be subject to material alteration or
cancellation without thirty (30) days' notice in writing to be delivered to
Manager. Should any such policy expire or be canceled before termination or
expiration of the applicable Contract and the Contractor fails immediately to
procure other insurance as specified, Manager shall have the right, but not the
obligation, to procure such insurance and to deduct the cost thereof from any
sum due the Contractor under its Contract. Each Contractor shall permit Manager
to inspect such evidence of insurance as such Contractor obtains from its
subcontractors.
8. Damages. Nothing contained in these insurance requirements
shall be construed as limiting the extent of any Contractor's responsibility for
payment of damages resulting from its operations under its Contract, nor shall
anything contained herein be deemed to place any responsibility on Owner or
Manager for ensuring that the insurance required hereunder is sufficient for the
operation of any Contractor's business.
9. Indemnification. Each Contractor shall, to the fullest extent
permitted by law, indemnify, defend, protect and hold harmless Manager, Owner,
Irvine Apartment Communities LLC and The Irvine Company, and all of their
respective officers, directors, agents, employees, members, divisions,
subsidiaries, affiliated companies, partners and shareholders, and all of their
respective heirs, executors, administrators, successors and assigns
(collectively, the "Indemnified Parties") from and against each and all of the
following:
a. Any claims, demands, debts, causes of action, liabilities,
losses, damages, costs, expenses (including actual attorneys' fees),
awards, court costs, penalties, fines, judgments or administrative
orders (collectively, the "Claims"), resulting from or arising out of
(i) the performance of the work under the Contract (the "Work"), (ii)
breach of the obligations of Contractor under the Contract documents
including, but not limited to, defective work or violations of or a
failure to comply with any safety order, rule or regulation, (iii) any
and all liens, stop notices and charges of every type, nature, kind or
description that may at any time be filed or claimed against all or
any portion of the Project or the Indemnified Parties as a consequence
of acts or omissions of Contractor, Contractor's agents, servants,
employees, subcontractors, or any or all of them, and/or (iv) any
other act or omission with respect to the Work by Contractor, its
subcontractors, anyone directly or indirectly employed by any of them
or anyone for whose acts they may be liable, attributable to death,
bodily injury, sickness, disease or injury to or destruction of
tangible property, or loss of use thereof. Contractor shall be
obligated under this indemnity regardless of any active or passive
negligence or strict liability of any Indemnified Party, it being the
intention of the parties that Contractor is providing a "Type I"
indemnity under California Law; provided, however, Contractor shall
not be obligated to indemnify any Indemnified Party for any Claim
found by a court of competent jurisdiction to have been caused by the
sole negligence or willful misconduct of such Indemnified Party. Such
obligation shall not be construed as to negate, abridge or otherwise
reduce any other right or obligation of indemnity that would otherwise
exist under the Contract documents and/or under the law as to any
party described in this
B-2
50
section. Payment of any claim by the applicable Indemnified Party
shall not be a condition precedent under this indemnity.
b. Any Claims arising out of or in connection with any claim by
or any act or omission of any employee of Contractor, any of its
subcontractors, or anyone employed directly or indirectly by any of
them or for whose acts they may be liable, including, without
limitation, any workers' compensation claims, equal employment
opportunity claims, withholding claims or social security claims.
The forgoing indemnification provisions shall survive the
termination or expiration of the Contract and shall not be limited in any way by
the amount or type of insurance obtained by the Indemnified Parties, Contractor
or any subcontractor of Contractor.
B-3
51
EXHIBIT C
MINIMUM INSURANCE REQUIREMENTS
FOR
CLASS I OUTSIDE CONTRACTORS
1. Commencement of Work. No Contractor shall commence any work on
any Project site until it obtains all insurance required to be obtained by such
Contractor under this EXHIBIT C. No Contractor will permit any of its
subcontractors to commence work on the Project site under the applicable
subcontract until all insurance requirements specified in this EXHIBIT C have
been complied with by such subcontractors.
2. Maintenance of Insurance. All insurance described under this
EXHIBIT C shall be maintained by the applicable Contractor at its expense with
insurance carriers licensed and approved to do business in California and, in
the case of liability insurance, the carrier must have a rating level of not
less than "A-" and financial size rating of not less than "VI" in the most
current Best's Key Rating Guide (unless specifically waived in writing by
Owner). In no event shall such insurance be terminated or otherwise allowed to
lapse prior to termination or expiration of the applicable Contract or such
longer period as may be specified herein. Any Contractor may provide the
insurance described in this EXHIBIT C, in whole or in part, through a policy or
policies covering other liabilities and projects of such Contractor provided,
however, that any such policy or policies shall: (i) allocate to the Project the
full amount of insurance required hereunder, and (ii) contain, permit or
otherwise unconditionally authorize the waiver contained in SECTION 9 of this
EXHIBIT C.
3. Commercial General Liability Insurance. Unless Owner otherwise
agrees in writing, each Contractor shall maintain Commercial General Liability
insurance on an "occurrence" basis, with a maximum deductible of Ten Thousand
Dollars ($10,000), with a combined single limit for bodily injury and property
damage of One Million Dollars ($1,000,000) or current limit carried, whichever
is greater, covering Operations, Independent Contractors, Products and Completed
Operations, Contractual Liability specifically covering the indemnification
contained in SECTION 10 of this EXHIBIT C, Broad Form Property Damage, claims
and lawsuits by one insured against another insured, Personal Injury, and
Explosion, Collapse and Underground Hazards.
4. Automobile Liability Insurance. Each Contractor shall maintain
owned, hired and non-owned, automobile liability insurance covering all use of
all automobiles, trucks and other motor vehicles utilized by such Contractor in
connection with the work with a combined single limit for bodily injury and
property damage of One Million Dollars ($1,000,000) or current limit carried,
whichever is greater.
5. Workers' Compensation Insurance. Each Contractor shall
maintain full Workers' Compensation Insurance, including Employer's Liability
with a minimum limit of Five Hundred Thousand Dollars ($500,000), for all
persons whom it employs in carrying out the work
C-1
52
under the applicable Contract, including a waiver of subrogation by the
insurance carrier with respect to Owner and Manager. Such insurance shall be in
strict accordance with the requirements of the most current and applicable
California State Workers' Compensation Laws.
6. Additional Insured. Owner, its officers, directors, agents,
servants, employees, divisions, subsidiaries, partners, shareholders and
affiliated companies, and Manager and its officers, directors, agents,
employees, shareholders, subsidiaries and partners shall be included as
additional insureds on a primary basis under the coverages specified in SECTIONS
3 and 4 of this EXHIBIT C, but only with respect to legal liability or claims
caused by, arising out of or resulting from the acts or omissions of the named
insured or of others performed on behalf of the named insured.
7. Evidence of Insurance. As evidence of specified insurance
coverage, Manager shall, in lieu of actual policies, be provided certificates
and/or endorsements showing such policies in force for the specified period.
Such evidence shall be delivered to Manager promptly following the execution of
the applicable Contract or prior to commencement of work on a Project site,
whichever first occurs. Each policy and certificate/endorsement shall be subject
to approval by Manager and shall provide that such policy shall not be subject
to material alteration or cancellation without thirty (30) days' notice in
writing to be delivered to Manager. Should any such policy expire or be canceled
before termination or expiration of the applicable Contract and the Contractor
fails immediately to procure other insurance as specified, Manager shall have
the right, but not the obligation, to procure such insurance and to deduct the
cost thereof from any sum due the Contractor under its Contract. Each Contractor
shall permit Manager to inspect such evidence of insurance as such Contractor
obtains from its subcontractors.
8. Damages. Nothing contained in these insurance requirements
shall be construed as limiting the extent of any Contractor's responsibility for
payment of damages resulting from its operations under its Contract, nor shall
anything contained herein be deemed to place any responsibility on Owner or
Manager for ensuring that the insurance required hereunder is sufficient for the
operation of any Contractor's business.
9. Waiver Of Subrogation. Each Contractor and each of its
subcontractors shall waive all rights against Owner and Manager, and each other
for any claims for damages or injuries to the extent covered by such
Contractor's and applicable subcontractor's policies of insurance.
10. Indemnification. Each Contractor shall, to the fullest extent
permitted by law, indemnify, defend, protect and hold harmless Manager, Owner,
Irvine Apartment Communities LLC and The Irvine Company, and all of their
respective officers, directors, agents, employees, members, divisions,
subsidiaries, affiliated companies, partners and shareholders, and all of their
respective heirs, executors, administrators, successors and assigns
(collectively, the "Indemnified Parties") from and against each and all of the
following:
C-2
53
a. Any claims, demands, debts, causes of action, liabilities,
losses, damages, costs, expenses (including actual attorneys' fees),
awards, court costs, penalties, fines, judgments or administrative
orders (collectively, the "Claims"), resulting from or arising out of
(i) the performance of the work under the Contract (the "Work"), (ii)
breach of the obligations of Contractor under the Contract documents
including, but not limited to, defective work or violations of or a
failure to comply with any safety order, rule or regulation, (iii) any
and all liens, stop notices and charges of every type, nature, kind or
description that may at any time be filed or claimed against all or any
portion of the Project or the Indemnified Parties as a consequence of
acts or omissions of Contractor, Contractor's agents, servants,
employees, subcontractors, or any or all of them, and/or (iv) any other
act or omission with respect to the Work by Contractor, its
subcontractors, anyone directly or indirectly employed by any of them or
anyone for whose acts they may be liable, attributable to death, bodily
injury, sickness, disease or injury to or destruction of tangible
property, or loss of use thereof. Contractor shall be obligated under
this indemnity regardless of any active or passive negligence or strict
liability of any Indemnified Party, it being the intention of the
parties that Contractor is providing a "Type I" indemnity under
California Law; provided, however, Contractor shall not be obligated to
indemnify any Indemnified Party for any Claim found by a court of
competent jurisdiction to have been caused by the sole negligence or
willful misconduct of such Indemnified Party. Such obligation shall not
be construed as to negate, abridge or otherwise reduce any other right
or obligation of indemnity that would otherwise exist under the Contract
documents and/or under the law as to any party described in this
section. Payment of any claim by the applicable Indemnified Party shall
not be a condition precedent under this indemnity.
b. Any Claims arising out of or in connection with any claim by
or any act or omission of any employee of Contractor, any of its
subcontractors, or anyone employed directly or indirectly by any of them
or for whose acts they may be liable, including, without limitation, any
workers' compensation claims, equal employment opportunity claims,
withholding claims or social security claims.
The forgoing indemnification provisions shall survive the
termination or expiration of the Contract and shall not be limited in any way by
the amount or type of insurance obtained by the Indemnified Parties, Contractor
or any subcontractor of Contractor.
C-3
54
EXHIBIT D
CLASS I CONTRACTORS
The term "Class I Contractor" shall be deemed to include the following
contractors performing work on a Project site and any other Contractor
designated by Owner in its reasonable discretion:
Exterior Painting
Hazardous Materials Contractors (contact Owner for special insurance
requirements)
Roofers
Tree Trimmers
D-1
