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EXHIBIT 10.37
MANAGEMENT AGREEMENT
This Agreement is made this 28th day of June, 1996, by and between Casa Del Mar
Associates Limited Partnership ("CDMA LP")(the "Owner") and Preferred
Retirement Communities, Inc. ("PRC ")(the "Agent").
SECTION 1 APPOINTMENT OF MANAGING AGENT
1.1 APPOINTMENT AND ACCEPTANCE
Owner hereby appoints Agent as sole and exclusive Agent of Owner to lease and
manage the property described in paragraph 1.2 upon the terms and conditions
provided herein. Agent accepts the appointment and agrees to furnish the
services of its organization for the leasing and management of the Premises; and
Owner agrees to pay all expenses in connection with those services, except as
otherwise provided for herein.
1.2 DESCRIPTION OF PREMISES
The property to be managed by Agent under this Agreement is known as Casa Del
Mar consisting of the land, buildings, and other improvements located at ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ (the "Premises").
1.3 TERM
The term of this Agreement (the "Initial Term") shall be one year, commencing
July 13, 1996 and ending July 12, 1997, and thereafter shall be automatically
renewed for additional one year terms unless terminated as provided in Section
21 herein.
1.4 MANAGEMENT OFFICE
Owner shall provide adequate space on the premises for a management office.
Owner shall pay all expenses related to such office, including, but not limited
to, furnishings, equipment, postage and office supplies, electricity and other
utilities, and telephone.
SECTION 2 BANK ACCOUNTS
2.1 OPERATING AND RESERVE ACCOUNTS
Agent shall maintain an account or accounts known collectively as the Operating
and Reserve Account, for the deposit of receipts collected as described herein,
in a bank or other institution whose deposits are insured by the Federal Deposit
Insurance Corporation ("FDIC"). The Operating and Reserve Account may be
maintained by Agent as part of a cash concentration system provided that the
funds of the Premises are separately accounted for and the balance of the
Operating and Reserve Account will not exceed a level that is fully insured by
FDIC. Such depository shall be selected by the Agent. However, Agent shall not
be held liable in the event of bankruptcy or failure of a depository. Funds
from the Premises in the Operating
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and Reserve Account shall remain the property of Owner subject to disbursement
of expenses by Agent as described in this Agreement. The Operating and Reserve
Account shall be interest bearing with interest credited to Owner monthly or
promptly after the end of the term of any investment.
2.1.1 CONTINGENCY RESERVE
Agent shall be entitled to maintain a reasonable amount as a contingency reserve
out of the receipts from the Premises. Owner agrees to maintain the contingency
reserve stated above at all times in the Operating and Reserve Account to enable
Agent to pay the obligations of Owner under this Agreement as they become due.
Owner and Agent shall review the amount of the contingency reserve from time to
time and shall agree in writing on the amount of the contingency reserve amount
if required by either party.
2.2 SECURITY DEPOSIT ACCOUNTS
Agent shall, if required by law, maintain one or more a separate interest-
bearing accounts for tenant security deposits known collectively as the Security
Deposit Account. The Security Deposit Account shall be maintained in accordance
with applicable state or local laws, if any, and shall be maintained in an
institution in which the Security Deposit Account is insured by the FDIC and
which Security Deposit Account balances shall not exceed levels which are fully
insured by FDIC (See Section 3.3).
2.3 FIDELITY BOND
The Agent will furnish, at its own expense, a fidelity bond in a principal sum
which is at least equal to the gross potential income for two months and which
bond shall insure and protect Owner against misappropriation of Premises funds
by the Agent and its off-site employees. The Agent shall secure a bond of like
kind with regard to on-site personnel, the cost of which shall be paid for by
Owner. The bond covering on-site personnel must be in compliance with
mortgagee, state and federal requirements applicable to the Premises. Other
terms and conditions of the bonds, and the surety thereon, will be subject to
the approval of the Owner.
SECTION 3 COLLECTION OF RENTS AND OTHER RECEIPTS
3.1 AGENT'S AUTHORITY
Agent shall collect (and give receipts for, if necessary) all rents, charges,
special charges and other amounts receivable on Owner's account in connection
with the management and operation of the Premises. Such receipts (except
tenants' security deposits, which shall be handled as specified in paragraphs
2.2 and 3.3 hereof) shall be deposited in the Operating and Reserve Account
maintained by Agent for the Premises.
3.2 SPECIAL CHARGES
If permitted by applicable law, Agent may collect from tenants, on Owner's
behalf, any or all of the following: an administrative charge for late payment
of rent, a charge for returned or non-negotiable checks, a credit-report fee.
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3.3 SECURITY DEPOSITS
Agent shall collect, deposit and disburse tenants' security deposits in
accordance with the terms of each tenant's lease. Agent shall pay tenants
interest upon such security deposits only if, and to the extent, required by law
to do so; otherwise, any interest earned on tenant security deposits is to be
credited to Owner and deposited in the Operating and Reserve Account monthly, or
promptly after the end of the term of any investment. Agent shall comply with
all applicable state or local laws concerning the responsibility for security
deposits and interest, if any (See Section 2.2).
SECTION 4 DISBURSEMENTS FROM OPERATING AND RESERVE ACCOUNT
4.1 OPERATING EXPENSES
From the Operating and Reserve Account, Agent is hereby authorized to pay or
reimburse itself for all expenses and costs of operating the Premises and for
all other sums due Agent under this Agreement, including Agent's compensation
under section 17.
4.2 DEBT SERVICE
Owner shall give Agent advance written notice of at least ten (10) days if Owner
desires Agent to make any additional monthly or recurring payments (such as
mortgage indebtedness, general taxes, or special assessments, or fire, steam
boiler, or other insurance premiums) out of the proceeds from the Premises. If
Owner notifies Agent to make such payments after the beginning of the term of
this Agreement, Agent shall have the authority to name a new contingency reserve
amount pursuant to paragraph 2.1.1 of this Agreement, and Owner shall maintain
this new contingency reserve amount at all times in the Operating and Reserve
Account.
4.3 NET PROCEEDS
To the extent that funds are available for any given month, and after
maintaining the contingency reserve amount as specified in paragraph 2.1.1,
Agent shall transmit cash balances to Owner monthly by the 20th day of the
succeeding month. Such periodic cash balances shall be remitted to the
following person at the following address:
Casa Del Mar, Inc, as general partner for
Casa Del Mar Associates Limited Partnership
▇▇▇▇ ▇ ▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
SECTION 5 AGENT NOT REQUIRED TO ADVANCE FUNDS
In the event that the balance in the Operating and Reserve Account is, or is
expected to become, at any time insufficient to pay disbursements due and
payable under paragraphs 4.1 and 4.2 above, the Agent will inform the Owner of
that fact sufficiently in advance, and Owner shall, immediately upon notice,
remit to Agent sufficient funds to cover the deficiency and replenish the
contingency reserve. In no event shall Agent be required to advance any monies
to Owner, to the Security Deposit Account, or to the Operating and Reserve
Account.
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If Agent elects to advance any money in connection with the Premises to pay any
expenses for Owner, such advance shall be considered a loan subject to repayment
with interest. Owner hereby agrees to reimburse Agent for such advances,
including interest at the rate of two percent (2%) over the floating Chase
Manhattan Bank prime rate as in effect from time to time during the period of
the loan, and authorizes Agent to deduct such amounts from any monies due Owner.
SECTION 6 BUDGET AND FINANCIAL AND OTHER REPORTS
6.1 APPROVED BUDGET
Agent shall prepare and submit to Owner for Owner's approval a proposed
Operating Budget for the marketing, operation, repair, maintenance and
improvement of the Premises for each calendar year. The proposed budget for
each calendar year shall be delivered to Owner no later than the immediately
preceding November 15, of such calendar year, and Owner shall promptly review
the proposed budget and discuss revisions, if any, with Agent. In all events
Owner shall approve such budget, using a form of budget analysis satisfactory
to Agent, no later than December 15 of such year. (Such budget, when approved
by Owner, is herein referred to as the "Approved Budget".) In the event that
Owner fails to approve the budget, Agent may terminate this Management Agreement
pursuant to Section 21.2(b). An Approved Budget shall not be revised without
the prior consent of the Owner.
6.2 REPORTS
By the 20th day of each month, Agent shall furnish Owner with a statement of
income and expenses from the operation of the Premises during the previous
month. In addition, Agent shall, on a mutually acceptable schedule, prepare and
submit to Owner such other reports as are agreed on by both parties.
6.3 OWNER'S RIGHT TO AUDIT AND INSPECT RECORDS
Owner shall have the right to request periodic audits of all applicable accounts
managed by Agent, and the cost of such audit(s) shall be paid by Owner. Owner
shall also have the right to inspect Agent's records pertaining to the Premises
during normal business hours upon reasonable advance notification.
SECTION 7 ADVERTISING
Consistent with the Approved Budget and the Owner's direction Agent is
authorized to advertise the Premises or portions thereof for rent, using
periodicals, signs, plans, brochures, or displays, or such other means as Agent
may deem proper and advisable. Agent is authorized to place signs on the
Premises advertising the Premises for rent. The cost of such advertising shall
be paid out of the Operating and Reserve Account. All advertising shall make
clear that Agent is the manager and NOT the Owner of the Premises.
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SECTION 8 LEASING AND RENTING
8.1 AGENT'S AUTHORITY TO LEASE PREMISES
Agent shall use all reasonable efforts to keep the Premises rented by procuring
tenants for the Premises. Agent is authorized to negotiate, prepare, and
execute all leases, including all renewals and extensions of leases, and to
cancel and modify existing leases, Agent shall execute all leases as agent for
the Owner. All costs of leasing shall be paid out of the Operating and Reserve
Account. No lease shall be in excess of fourteen (14) months without written
approval by Owner. The form of the lease shall be agreed upon by Owner and
Agent and shall be approved initially as part of the budget approval process
under Section 6.1 and thereafter approved by Owner, if Agent desires to amend
the form of lease.
8.2 NO OTHER RENTAL AGENT
During the term of this Agreement Owner shall not authorize any other person,
firm, or corporation to negotiate or act as leasing or rental agent with respect
to any leases for space in the Premises. Owner agrees to promptly forward all
inquiries about leases to Agent.
8.3 RENTAL RATES
Subject to Owner direction as set forth in the Approved Budget, Agent is
authorized to change or revise all rents, tenant charges, or deposits, and any
other charges chargeable with respect to the Premises.
8.4 ENFORCEMENT OF LEASES
Agent is authorized to institute, in Owner's name, all legal actions or
proceedings for the enforcement of any lease provision, for the collection of
rent or other income from the Premises, or for any evicting or dispossessing of
tenants or other persons from the Premises. Agent is authorized to sign and
serve such notices as Agent deems necessary for lease enforcement, including the
collection of rent or other income. Agent is authorized, when expedient, to
settle, compromise, and release such legal actions or suit or reinstate such
tenancies. Any monies for such settlements paid out by Agent shall not exceed
$2,500 without prior approval by Owner. Attorney's fees, filing fees, court
costs, and other necessary expenses incurred in connection with such actions and
not recovered from tenants shall be paid out of the Operating and Reserve
Account or reimbursed directly to Agent by Owner. Agent may select the attorney
of its choice to handle such litigation.
SECTION 9 EMPLOYEES
9.1 AGENT'S AUTHORITY TO HIRE
Agent is authorized to hire, supervise, discharge, and pay all servants,
employees, contractors, or other personnel necessary to be employed in the
management, maintenance, and operation of the Premises. All such employees
shall be employees of the Agent, or Agent's affiliate.
9.2 OWNER PAYS EMPLOYEES' EXPENSES
All wages and fringe benefits payable to Agent's or its affiliates' employees
hired pursuant to paragraph 9.1 above, and all local, state and federal taxes
and assessments (including but not limited to Social Security taxes,
unemployment insurance, and worker's compensation insurance) incident to the
employment of such personnel, including any recruiting and
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relocation costs, shall be paid by Agent out of the Operating and Reserve
Account and shall be treated as operating expenses. Such expenses shall not
include supervisory or accounting personnel costs for Agent's off-site
management and support personnel.
9.3 AGENT'S AUTHORITY TO FILE RETURNS
Agent shall do and perform all acts required of an employer with respect to the
Premises and shall execute and file all payroll tax and other returns required
under the applicable federal, state and local laws, regulations and/or
ordinances governing employment, and all other statements and reports pertaining
to labor employed in connection with the Premises and under any similar federal
or state law now or hereafter in force. Owner shall be responsible for all
amounts required to be paid under the foregoing laws, and Agent shall pay the
same from the Operating and Reserve Account.
9.4 WORKER'S COMPENSATION INSURANCE
Agent shall, at Owner's expense, maintain worker's compensation insurance
covering all liability of the Agent as employer of the employees at the Premises
under established worker's compensation laws. Agent shall provide Owner with a
certificate evidencing such coverage and providing thirty (30) days notice of
cancellation and/or non-renewal. A copy of the insurance policy will be
furnished to Owner upon request.
SECTION 10 EXPENSES AND NECESSARY APPROVALS
10.1 ORDINARY EXPENSES
Consistent with the Approved Budget, and subject to Section 10.3, Agent is
authorized to make or cause to be made, through contracted services or
otherwise, capital expenditures, all ordinary repairs and replacements
reasonably necessary to preserve the Premises, and all alterations required to
comply with lease requirements, governmental regulations or insurance
requirements. Agent is also authorized to decorate the Premises and to purchase
or rent, on Owner's behalf, all equipment, tools, appliances, materials,
supplies, uniforms and other items necessary for the management, maintenance or
operation of the Premises. Such expenses shall be paid out of the Operating and
Reserve Account.
10.1.1 CONTRACTOR INSURANCE
Agent shall require all contractors performing work on the Premises to carry
comprehensive general liability coverage for $1,000,000 combined single limit
including products, completed operations and contractual liability, for bodily
injury and property damage, and automobile liability for $1,000,000 combined
single limit for all owned, hired and non-owned vehicles as well as worker's
compensation coverage for statutory limits. Evidence of coverage is to be
secured through a certificate of insurance, naming the Owner and Agent as an
additional insureds. The certificate must provide thirty (30) days' notice of
cancellation and/or non-renewal. The Owner may require higher limits based on
the nature of the work to be performed and amount of the contract. Agent shall
have the right to waive this provision when in its discretion it is in the best
interest of the Premises to hire a contractor without such coverage.
10.2 APPROVAL FOR UNBUDGETED EXPENSES
For unbudgeted items, the expense to be incurred for any one item, maintenance,
alteration,
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refurbishing or repair shall not exceed the sum of $25,000, unless such expense
is specifically authorized by Owner, or is incurred under such circumstances as
Agent shall reasonably deem to be an emergency. In an emergency where repairs
are immediately necessary for the preservation and safety of the Premises, or to
avoid the suspension of any essential service to the Premises, or to avoid
danger to life or property, or to comply with federal, state or local law, such
emergency repairs shall be made by Agent at Owner's expense without prior
approval. Owner shall be notified as soon as reasonably possible after any such
repair. Agent shall obtain Owner's approval prior to: (i) retaining
consultants and lawyers to perform unusual or extraordinary services (see
Section 16.2) for the Premises; (ii) incurring expenses for the services of
Agent's (or Agent's affiliate's) in-house professional staff including "Buyers
Access"; (iii) utilizing the services of Agent's employees on both the Premises
and other properties and allocating the cost of such employees pro rata to the
Premises.
10.3 SPECIAL APPROVAL IF NEGATIVE CASH FLOW
In the event that the Premises has a negative cash flow (after payment of debt
service and maintenance of reserves) which requires that the Premises obtain a
special funding of cash or other financial guarantees by Owner or Owner's
affiliate to enable the Premises to meet its financial obligations and expenses
in the ordinary course, and notwithstanding Section 10.1, Agent must obtain
Owners' approval prior to incurring or paying (i) debt service, taxes, and
capital improvements or (ii) any single expenditure exceeding $5,000. This
advance approval shall no longer be required at such time as the Premises
achieves a positive cash flow (after payment of debt service and maintenance of
reserves) for three consecutive months, at which time the Agent's conduct shall
be governed by the provisions of this Agreement exclusive of this Section 10.3,
including but not limited to Section 10.1.
SECTION 11 CONTRACTS, UTILITIES AND SERVICES
Agent is authorized to negotiate contracts for nonrecurring items of expense,
which have not been previously budgeted and which do not exceed $25,000, and to
enter into agreements in Owner's name for all necessary repairs, maintenance,
minor alterations and utility services. Contracts for nonrecurring items of
expense which have not been previously budgeted and which exceed $25,000 shall
be approved by Owner before they are executed. Agent shall, in Owner's name and
at Owner's expense, make contracts on Owner's behalf for all utilities and
services including, without limitation, electricity, gas, telephone, fuel or
water, and such other services as Agent shall deem necessary or prudent for the
operation of the Premises. All utility deposits shall be Owner's
responsibility, except that Agent may pay same from the Operating and Reserve
Account at Owner's request.
SECTION 12 RELATIONSHIP OF AGENT TO OWNER
The relationship of the parties to this Agreement shall be that of Principal and
Agent, and all duties to be performed by Agent under this Agreement shall be for
and on behalf of Owner, in Owner's name and for Owner's account. In taking any
action under this Agreement, Agent shall be acting only as Agent for Owner, and
nothing in this Agreement shall be construed as creating a partnership, joint
venture, or any other relationship between the parties to this Agreement except
that of Principal and Agent, or as requiring Agent to bear any portion of
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losses arising out of or connected with the ownership or operation of the
Premises. Agent shall not at any time during the period of this Agreement be
considered a direct employee of Owner. Neither party shall have the power to
bind or obligate the other except as expressly set forth in this Agreement,
except that Agent is authorized to act with such additional authority and power
as may be necessary to carry out the spirit and intent of this Agreement.
SECTION 13 SAVE HARMLESS
Owner shall indemnify, defend and save harmless Agent and its officers,
directors, employees, agents, affiliates, contractors and each of them from all
loss, damage, cost, expense (including reasonable attorneys' fees and costs),
liability or claims for (a) personal injury or property damage incurred or
occurring in, on or about the Premises, (b) Agent's performance of services that
are within the scope of Agent's authority under this Agreement and (c) any
breach by Owner of Owner's representations, warranties or covenants set forth
in this Agreement. Such indemnification shall not extend to situations where
the Agent is adjudicated guilty of gross negligence or wilful misconduct. Agent
shall indemnify, defend and save harmless Owner and its officers, directors,
employees, agents, affiliates, contractors and each of them from all loss,
damage, cost, expense (including reasonable attorneys' fees and costs),
liability or claims arising out of Agent's adjudicated gross negligence or
intentional misconduct. Such indemnification shall not extend to situations
where the Owner is adjudicated guilty of gross negligence or wilful misconduct.
SECTION 14 INSURANCE AND TAXES
14.1 INSURANCE
Owner shall obtain and keep in force adequate insurance against physical damage
(e.g., fire with extended coverage endorsement, boiler and machinery, etc.) and
against liability for loss, damage, or injury to property or persons which might
arise out of the occupancy, management, operation, or maintenance of the
Premises. Any deductible required under such insurance policies shall be at
Owner's expense. Automobile liability shall be maintained by Owner at Owner
expense for $1,000,000 combined single limit for all owned, hired and non-owned
vehicles. Agent shall be covered as an additional insured on all liability
insurance maintained with respect to the Premises. Liability insurance shall be
adequate to protect the interests of both Owner and Agent and in form,
substance, and amounts reasonably satisfactory to Owner and Agent. Owner agrees
to furnish Agent with certificates evidencing such insurance or with duplicate
copies of such policies within ten (10) days of the execution of this Agreement.
If Owner fails to do so, Agent may, but shall not be obligated to, place said
insurance and charge the cost thereof to the Operating and Reserve Account.
Said policies shall provide that notice of default or cancellation shall be sent
to Agent as well as Owner and shall require a minimum of thirty (30) days
written notice to Agent before any cancellation or non-renewal of said policies.
14.2 TAXES
Owner shall be responsible for monitoring all real estate and personal property
taxes for the Premises (unless the Owner otherwise directs the Agent) and for
conducting any tax appeals to appropriate authorities. Agent shall promptly
forward all tax bills and notices to Owner but
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Agent shall account for, administer and pay all tax invoices and escrows
pursuant to the Approved Budget unless otherwise directed by Owner.
SECTION 15 AGENT ASSUMES NO LIABILITY
Agent assumes no liability whatsoever for any acts or omissions of Owner, or any
previous owners of the Premises, or any previous management or other agent of
either. Agent assumes no liability for any failure of or default by any tenant
in the payment of any rent or other charges due Owner or in the performance of
any obligations owed by any tenant to Owner pursuant to any lease or otherwise.
Nor does Agent assume any liability for previously unknown violations of
environmental or other regulations which may become known during the period this
Agreement is in effect. Any such regulatory violations or hazards discovered by
Agent shall be brought to the attention of Owner in writing, and Owner shall
promptly cure them.
SECTION 16 OWNER RESPONSIBLE FOR EXPENSES OF LITIGATION
16.1 LEGAL CLAIMS
Owner shall pay all expenses incurred by Agent, including, but not limited to,
reasonable attorneys' fees and Agent's out-of-pocket costs, and any liability,
fines, penalties or the like, in connection with any claim, proceeding, or suit
involving an alleged violation by Agent or Owner, or both, of any law pertaining
to fair employment, fair credit reporting, environmental protection, rent
control, taxes or fair housing, including, but not limited to, any law
prohibiting or making illegal discrimination on the basis of race, sex, creed,
color, religion, national origin, family status, age, or mental or physical
handicap, provided, however, that Owner shall not be responsible to Agent for
any such expenses in the event Agent is finally adjudged to have personally, and
not in a representative capacity, violated any such law. Nothing contained in
this Agreement shall obligate Agent to employ legal counsel to represent Owner
in any such proceeding or suit.
16.2 FEES FOR LEGAL ADVICE
Owner shall pay reasonable expenses incurred by Agent in obtaining legal advice
in the ordinary course of business regarding compliance with any law affecting
the Premises or activities related to them. Provided, however, that if the cost
of obtaining such legal advice is reasonably anticipated to exceed $2,500, Agent
shall obtain Owner's approval to obtain such legal services in advance.
SECTION 17 AGENT'S COMPENSATION AND EXPENSES
As compensation for the services provided by Agent under this Agreement (and
exclusive of reimbursement of expenses to which Agent is entitled hereunder),
Owner shall pay Agent as follows:six percent (6 %) of the monthly gross
receipts from the Premises, four percent (4%) payable by the 10th day of the
succeeding month for the duration of this Agreement, and two percent (2%)
payable by the 10th day of the month following the end of the fiscal year,
subject to the provisions of the first mortgage agreement. Payments due Agent
for periods of less than a calendar month shall be prorated over the number of
days for which
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compensation is due. The percentage amount set forth in above shall be based
upon the total gross receipts from the Premises during the preceding month. The
term "gross receipts" shall be deemed to include all rents and other income and
charges from the normal operation of the Premises, including, but not limited
to, rents, rent loss insurance, parking fees, laundry income, interest income
and other miscellaneous income including excess interest on security deposits
(see Section 3.3) as well as forfeited security deposits, rent loss insurance,
pet deposits, other fees and deposits. Gross receipts shall NOT be deemed to
include income arising out of the sale of real property or the settlement of
fire or other casualty losses and items of a similar nature.
SECTION 18 REPRESENTATIONS
Owner and Agent represent and warrant that they have full power and authority to
enter this Agreement.
SECTION 19 STRUCTURAL CHANGES
Owner expressly withholds from Agent any power or authority to make any
structural changes in any building, or to make any other major alterations or
additions in or to any such building or to any equipment in any such building,
or to incur any expense chargeable to Owner other than expenses related to
exercising the express powers vested in Agent through this Agreement, without
the prior written consent of Owner.
However, such emergency repairs as may be required because of danger to life or
property, or which are immediately necessary for the preservation and safety of
the tenants and occupants thereof, or required to avoid the suspension of any
necessary service to the Premises, or to comply with any applicable federal,
state, or local laws, regulations, or ordinances, shall be authorized pursuant
to paragraph 10.2 of this Agreement, and Agent shall notify Owner appropriately.
SECTION 20 BUILDING COMPLIANCE
Agent does not assume, and unless given explicitly by Owner, has no
responsibility for compliance of the Premises or any building thereon or any
equipment therein with the requirements of any building codes or with any
statute, ordinance, law, or regulation of any governmental body or to any public
authority or official thereof having jurisdiction, except to notify Owner
promptly or forward to Owner promptly any complaints, warnings, notices or
summonses received by Agent relating to such matters. Owner represents that to
the best of Owner's knowledge, the Premises and all such equipment comply with
all such requirements, and Owner authorizes Agent to disclose the ownership of
the Premises to any such officials and agrees to indemnify and hold Agent, its
officers, directors, employees, agents, affiliates, contractors and each of them
harmless of and from all loss, cost, expense and liability whatsoever which may
be imposed by reason of any present or future violation or alleged violation of
such laws, ordinances, statues or regulations.
SECTION 21 TERMINATION
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21.1 NORMAL TERMINATION BY EITHER PARTY
This Agreement shall terminate at the end of the term as provided in paragraph
1.3 upon the giving of thirty (30) days' written notice prior to the end of said
initial term or additional term.
21.2 TERMINATION FOR CAUSE, EXCESSIVE DAMAGE OR SALE
Notwithstanding the foregoing, this Agreement shall terminate in any event, and
all obligations of the parties hereunder shall cease (except as to liabilities
or obligations which have accrued or arisen prior to such termination, or which
accrue pursuant to paragraph 21.3 as a result of such termination, and
obligations to insure and indemnify), upon the occurrence of any of the
following events:
(a) BREACH OF AGREEMENT - Thirty (30) days after the receipt of notice by either
party to the other specifying in detail a material breach of this Agreement, if
such breach has not been cured within said thirty (30) day period; or if such
breach is of a nature that it cannot be cured within said thirty (30) day period
but can be cured within a reasonable time thereafter, if efforts to cure such
breach have not commenced and/or such efforts are not proceeding and being
continued diligently both during and after such thirty (30) day period prior to
the breach being cured. HOWEVER, the breach of any obligation of either party
hereunder to pay any monies to the other party under the terms of this Agreement
shall be deemed to be curable within thirty (30) days.
(b) FAILURE TO ACT, ETC. - In the event that any insurance required of Owner is
not maintained without any lapse, or it is alleged or charged that the Premises,
or any portion thereof, or any act or failure to act by Owner, its agent and
employees with respect to the Premises, fails to comply with any law or
regulation, or any order or ruling of any public authority, and Agent, in its
sole discretion, considers that the action or position of Owner or its
representatives with respect thereto may result in damage or liability to Agent,
or disciplinary proceeding with respect to Agent's license, or in the event
Owner fails to approve the budget under Section 6.1, Agent shall have the right
to terminate this Agreement at any time by written notice to Owner of its
election to do so, which termination shall be effective upon the service of such
notice. Such termination shall not release the indemnities set forth herein.
(c) SALE - Upon (i) a transfer of the Project to an individual or entity other
than an affiliate of Owner, (ii) transfer of all of NHP's general partner
interest in the Owner to an individual or entity other than an affiliate of NHP,
or (iii) transfer of all of the partnership interests in the Owner to an
individual or entity other than an affiliate of Owner.
(d) EXCESSIVE DAMAGE - Upon the destruction of or substantial damage to the
Premises by any cause, or the taking of all or a substantial portion of the
Premises by eminent domain, in either case making it impossible or impracticable
to continue operation of the Premises.
21.3 OWNER RESPONSIBLE FOR PAYMENTS
Upon termination of or withdrawal from this Agreement, Owner shall remain liable
for the obligations of any contract or outstanding ▇▇▇▇ executed by Agent under
this Agreement for and on behalf of Owner and responsible for payment of all
unpaid bills. In addition, Owner shall furnish Agent security, in an amount
satisfactory to Agent, against any obligations or liabilities which Agent may
have properly incurred on Owner's behalf under this Agreement.
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Agent may withhold funds for sixty (60) days after the end of the month in which
this Agreement is terminated, in order to pay bills previously incurred but not
yet invoiced and to close accounts. Agent shall deliver to Owner, within sixty
(60) days after the end of the month in which this Agreement is terminated, any
balance of monies due Owner or of tenant security deposits, or both, which were
held by Agent with respect to the Premises, as well as a final accounting
reflecting the balance of income and expenses with respect to the Premises as of
the date of termination or withdrawal, and all records, contracts, leases,
receipts for deposits, and other papers or documents which pertain to the
Premises.
SECTION 22 INDEMNIFICATION SURVIVES TERMINATION
All representations and warranties of the parties contained herein shall survive
the termination of this Agreement. All provisions of this Agreement that
require Owner to have insured or to defend, reimburse, or indemnify Agent shall
survive any termination; and if Agent is or becomes involved in any proceeding
or litigation by reason of having been Owner's Agent, such provisions shall
apply as if this Agreement were still in effect.
SECTION 23 HEADINGS
All headings and subheadings employed within this Agreement are inserted only
for convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
SECTION 24 FORCE MAJEURE
Any delays in the performance of any obligation of Agent or Owner under this
Agreement shall be excused to the extent that such delays are caused by wars,
national emergencies, natural disasters, strikes, labor disputes, utility
failures, governmental regulations, riots, adverse weather, and other similar
causes not within the control of Agent or Owner, and any time periods required
for performance shall be extended accordingly.
SECTION 25 COMPLETE AGREEMENT
This Agreement, including any specified attachments, constitutes the entire
agreement between Owner and Agent with respect to the management and operation
of the Premises and supersedes and replaces any and all previous management
agreements oral or written entered into and/or negotiated between Owner and
Agent relating to the Premises covered by this Agreement. No change to this
Agreement shall be valid unless made by supplemental written agreement executed
and approved by Owner and Agent. Except as otherwise provided herein, any and
all amendments, additions or deletions to this Agreement shall be null and void
unless approved by Owner and Agent in writing. Each party to this Agreement
hereby acknowledges and agrees that the other party has made no warranties,
representations, covenants or agreements, express or implied, to such party,
other than those expressly set forth herein, and that each party, in entering
into and executing this Agreement, has relied upon no warranties,
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PAGE 13
representations, covenants or agreements, express or implied, to such party,
other than those expressly set forth herein.
SECTION 26 RIGHTS CUMULATIVE: NO WAIVER
No right or remedy herein conferred upon or reserved to either of the parties to
this Agreement is intended to be exclusive of any other right or remedy, and
each and every right and remedy shall be cumulative and in addition to any other
right or remedy given under this Agreement or now or hereafter legally existing
upon the occurrence of an event of default under this Agreement. The failure of
either party to this Agreement to insist at any time upon the strict observance
or performance of any of the provisions of this Agreement, or to exercise any
right or remedy as provided in this Agreement, shall not impair any such right
or remedy or be construed as a waiver or relinquishment of such right or remedy
with respect to subsequent defaults. Every right and remedy given by this
Agreement to the parties to it may be exercised from time to time and as often
as may be deemed expedient by those parties.
SECTION 27 APPLICABLE LAW AND PARTIAL INVALIDITY
The execution, interpretation and performance of this Agreement shall in all
respects be controlled and governed by the laws of the State of Florida.
SECTION 28 NOTICES
Any notices, demands, consents and reports necessary or provided for under this
Agreement shall be deemed received (i) three (3) days after the date of
mailing, if sent by registered or certified mail, postage prepaid, with return
receipt requested; (ii) when delivered, if delivered personally; (iii) when
transmitted, if sent by facsimile if a confirmation of transmission is produced
by the sending machine (and a copy of such facsimile is promptly sent by another
means specified in this Section 28) ; or (iv) on the first business day
following the date of sending, if sent by overnight U.S. Postal Service mail or
other nationally recognized overnight courier service, in each case to the
parties at the following address (or such other address as a party shall have
specified by notice given in accordance with this Section 28):
To Owner:
c/o Casa Del Mar , Inc
as general partner of Casa Del Mar Associates Limited Partnership
▇▇▇▇ ▇. ▇▇. ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
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PAGE 14
To Agent:
Preferred Retirement Communities, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
SECTION 29 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto and their respective
personal representatives, heirs, administrators, executors, successors and
assigns.
[signatures on next page]
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15
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have affixed or caused to be affixed
their respective signatures this 28th day of June, 1996.
OWNER:
CASA DEL MAR ASSOCIATES LIMITED PARTNERSHIP,
a Florida limited partnership
By: CASA DEL MAR, INC., a Florida corporation
General Partner
By: --------------------------------------------
Signature
--------------------------------------------
Print Name
--------------------------------------------
Title
Witness: --------------------------------------------
AGENT:
Preferred Retirement Communities, Inc.
By: --------------------------------------------
Signature
--------------------------------------------
Print Name
--------------------------------------------
Title
Witness: --------------------------------------------
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