Common use of Service and Supply Contracts Clause in Contracts

Service and Supply Contracts. (a) Manager shall directly select, supervise and engage all independent contractors, suppliers and vendors, in the operation, repair, maintenance and servicing of the Property, including but not limited to those necessary for the supplying of electricity, gas, steam, water, telephone, cleaning, fuel, oil, elevator maintenance, vermin extermination, trash removal, security and other services deemed necessary or advisable by Manager for the operation of the Property. Notwithstanding the foregoing, but subject to the provisions of Section 2.4 above regarding emergency expenditures, any such contract that (i) requires annual payment(s) which total in excess of $5,000, or (ii) has a term of more than one (1) year (as expressly approved by Owner in writing), or (iii) is with an affiliate of Manager or any individual directly related to any employee of Manager, or (iv) would cause any line item of the approved budget, other than for utilities or an expense deferred for one month, to be exceeded shall require the prior written consent of Owner. Together with Manager's request for consent to any such service contract, Manager shall deliver to Owner a copy of the proposed contract, a statement of the relationship, if any, between Manager (or the person or persons in control of Manager) and the party which will supply such goods or services under the proposed contract, supporting analysis, if any, and competitive bid documentation. (b) In connection with its selection and supervision of contractors, suppliers and other entities pursuant to this Section, Manager, among its other duties, will (i) use its reasonable best efforts in selecting parties to perform work or to provide labor, goods, utilities or services to or at the Property so as to employ only such parties having the expertise and reputation of being fully capable and reliable in efficiently and fully performing their respective obligations under any contract with Manager, and fully performing consistent with the obligations set forth in this Section; (ii) subject to the emergency provisions of Section 2.4 hereof, negotiate and, when approved by Owner or consistent with the approved Budget, enter into agreements relating to the operation, repair, maintenance, service and/or promotion of the Property; (iii) directly supervise and inspect the performance under all contracts and agreements, including without limitation, the supervision, inspection and observation of all servicing, cleaning, security, maintenance, repair, decorating or alteration work at the Property during the progress thereof, and the final inspection of the completed work and the approval or disapproval (as appropriate) of all bills submitted for payment. In connection with the foregoing, Manager shall obtain all necessary receipts, releases, waivers, discharges and assurances necessary to keep, and will use its best efforts to keep, the Property free from mechanics' and materialmen's liens and other claims, all of which documentation shall be in such form as required by Owner. Manager shall timely pay all bills of such contractors, suppliers and entities properly approved by Owner, but such bills shall be at the expense of the Property and shall be paid by Manager from the Disbursement Account described in Section 2.8(b) below. (c) All service contracts shall, unless expressly approved in writing by Owner: (i) include a provision for cancellation thereof (without penalty) by Owner on not more than thirty (30) days' written notice, (ii) require that all contractors provide evidence of insurance specified in Section 5.8 of this Agreement, (iii) include a provision requiring the contractor to indemnify Owner and Manager for willful misconduct, negligence and all actions in excess of the authority granted to the contractor under the terms of its contract with Manager and (iv) include, unless waived by Owner, a provision requiring the contractor to either obtain all appropriate waivers in the approved format as provided under applicable State law, or file a bond for the discharge of any mechanics' lien filed against the Property by contractors or subcontractors, in connection with work to be performed under the terms of the contract. Unless Owner specifically waives such requirement in writing, all service contracts (other than those entered into for emergency purposes) providing for annual payments in excess of $5,000 shall be subject to bid under the procedure as specified below. (d) Except for contracts for emergency services or for rate-regulated utility service, all contracts for repairs, capital improvements, goods and services exceeding $5,000 shall, unless such requirement is waived in writing by Owner, be awarded on the basis of competitive bidding, solicited in the following manner: (i) A minimum of two (2) written bids shall be obtained for each purchase up to $10,000. Purchases over $10,000 will require a minimum of three (3) bids. (ii) Each bid will be solicited in a form prescribed by Owner so that bids will be comparable. (iii) Manager may accept the low bid without prior approval from Owner if the expenditure is for an item included within the approved budget and if the amount of such bid will not cause a material variance in any accounting category of the approved budget. (iv) Subject to Manager's rights under (iii) above, Owner shall be free to accept or reject any and all bids in its sole and absolute discretion. (v) Unless such requirement is waived in writing by Owner, each contract for purchases exceeding $10,000 shall be rebid annually in conjunction with the preparation of the proposed annual budget. (e) When taking bids or issuing purchasing orders, Manager shall use its reasonable best efforts to secure for, and credit to Owner any discounts, commissions or rebates obtainable as a result of such purchases. (f) Unless otherwise directed by Owner, Manager shall include in all contracts and agreements which Manager is empowered to execute on behalf of Owner, pursuant to powers granted in this Agreement or pursuant to other authorization by Owner, substantially the following provision: "The liability of Owner shall be limited solely to the lesser of (a) $1,000,000 or (b) Owner's then equity interest , if any, in the Property, and only such equity interest of Owner, if any, in the Property, shall be liable for the payment and discharge of any obligations imposed upon Owner hereunder, and Owner is hereby released and relieved of any other obligations hereunder."

Service and Supply Contracts. (a) Manager shall directly select, supervise and engage in Owner’s name in its capacity as agent of Owner, all independent contractors, suppliers and vendors, in the operation, repair, maintenance and servicing of the PropertyProperties, including but not limited to those necessary for the supplying of electricity, gas, steam, water, telephone, cleaning, fuel, oil, elevator maintenance, vermin extermination, trash removal, security and other services deemed necessary or advisable by Manager for the operation of the PropertyProperties. Notwithstanding the foregoing, but subject to the provisions of Section 2.4 above regarding emergency expenditures, any such contract that (i) requires total annual payment(s) which total in excess of $5,00010,000, and which expense is not included in the approved Budget for the applicable Property or which would cause the applicable Budget line item to be exceeded by more than five percent (5%) of the total line item, or (ii) has a term of more than one (1) year (except as expressly approved by Owner in writing), or (iii) is with an affiliate of Manager or any individual directly related to any employee of Manager, or (iv) would cause any line item of the approved budget, other than for utilities or an expense deferred for one month, to be exceeded shall require the prior written consent of Owner. Together with Manager's ’s request for consent to any such service contract, Manager shall deliver to Owner a copy of the proposed contract, a statement of the relationship, if any, between Manager (or the person or persons in control of Manager) and the party which will supply such goods or services under the proposed contract, and supporting analysis, if any, and competitive bid documentation. (b) In connection with its selection and supervision of contractors, suppliers and other entities pursuant to this Section, Manager, among its other duties, will (i) use its reasonable best efforts in selecting parties to perform work or to provide labor, goods, utilities or services to or at the Property so as to employ only such parties having the expertise and reputation of being fully capable and reliable in efficiently and fully performing their respective obligations under any contract with Manager, and fully performing consistent with the obligations set forth in this Section; (ii) subject to the emergency provisions of Section 2.4 hereof, negotiate and, when approved by Owner or consistent with the approved Budget, enter into agreements relating to the operation, repair, maintenance, service and/or promotion of the Property; (iii) directly supervise and inspect the performance under all contracts and agreements, including without limitation, the supervision, inspection and observation of all servicing, cleaning, security, maintenance, repair, decorating or alteration work at the Property during the progress thereof, and the final inspection of the completed work and the approval or disapproval (as appropriate) of all bills submitted for payment. In connection with the foregoing, Manager shall obtain all necessary receipts, releases, waivers, discharges and assurances necessary to keep, and will use its best efforts to keep, the Property free from mechanics' and materialmen's liens and other claims, all of which documentation shall be in such form as required by Owner. Manager shall timely pay all bills of such contractors, suppliers and entities properly approved by OwnerOwner or other expenditures entered into pursuant to the applicable Budget, but such bills shall be at the expense of the applicable Property and shall be paid by Manager from the Disbursement Operating Account described in Section 2.8(b) belowfor such Property. (cb) All service contracts shall, unless expressly approved in writing by Owner: (i) be in the name of Owner and signed by Manager as agent for Owner, (ii) include a provision for cancellation thereof (without penalty) by Owner on not more than thirty (30) days' ’ written notice, (iiiii) require that all contractors provide evidence of insurance specified in Section 5.8 4.3 of this Agreement, (iiiiv) require that all contractors provide Manager with at least thirty (30) days’ prior notice of cancellation of any required insurance coverage or reduction of insurance coverage below required limits, and (v) include a provision requiring the contractor to indemnify Owner and Manager for any and all claims arising from the contractor’s negligence, willful misconduct, negligence misconduct and all actions in excess of the authority granted to the contractor under the terms of its contract with Manager and the applicable contract. (ivc) include, unless waived by Owner, a provision requiring the contractor to either obtain all appropriate waivers in the approved format as provided under applicable State law, or file a bond for the discharge of any mechanics' lien filed against the Property by contractors or subcontractors, in connection with work to be performed under the terms of the contract. Unless Owner specifically waives such requirement in writing, all service contracts (other than those entered into for emergency purposespurposes and those for rate-regulated utility service) providing for annual payments in excess of $5,000 10,000 shall be subject to bid under the procedure as specified below. (d) Except for contracts for emergency services or for rate-regulated utility service, all contracts for repairs, capital improvements, goods and services exceeding $5,000 shall, unless such requirement is waived in writing by Owner, be awarded on the basis of competitive bidding, solicited in the following manner: (i) A minimum of two (2) written bids shall be obtained for each purchase in excess of $10,000 up to $10,00025,000. Purchases over $10,000 25,000 will require a minimum of three (3) bids. (ii) Each bid will be solicited in a form prescribed or approved by Owner so that bids will be comparable. (iii) Manager may accept the low bid without prior approval from Owner if the expenditure is for an item included within the applicable approved budget Budget and if the amount of such bid will not cause a material variance in any accounting category Budget line item of the such approved budgetBudget. (iv) Subject to Manager's rights ’s authority under subclause (iiic)(iii) above, Owner shall be free to accept or reject any and all bids in its sole and absolute discretion. (v) Unless such requirement is waived in writing by Owner, each contract for purchases exceeding $10,000 shall be rebid annually in conjunction with the preparation of the proposed annual budget. (ed) When taking bids or issuing purchasing purchase orders, Manager shall use its reasonable best efforts to secure for, and credit to Owner any discounts, commissions or rebates obtainable as a result of such purchases. (fe) Unless otherwise directed by OwnerIf Owner negotiates and signs service contracts with or issues purchase orders to third party contractors who provide goods and/or services for the operation, Manager shall include in all contracts repair, maintenance and agreements which Manager is empowered servicing of any Property (and nothing herein requires Owner to execute on behalf of Ownerdo so), pursuant to powers granted in this Agreement or pursuant to other authorization by Owner, substantially the following provision: "The liability of then Owner shall be limited solely require in such contracts or purchase orders that each third party contractor (i) include Manager as an additional insured under the contractor’s commercial general liability and automotive liability insurance policies to the lesser of same extent that Owner is given additional insured protection, (aii) $1,000,000 or (b) Owner's then equity interest , if any, include Manager in the Propertylist of parties indemnified by contractor under the contract or purchase order, and only (iii) otherwise provide Manager with the same insurance and indemnification benefits as are provided Owner under the contract (in relation to the services provided by the contractor to such equity interest of Owner, if any, in the Property, shall be liable for the payment and discharge of any obligations imposed upon Owner hereunder, and Owner is hereby released and relieved of any other obligations hereunder)."