Reso 2020-052 - Laserfiche WebLink

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be under no obligation to pay any bill if there are insufficient funds in the Operating Account. Notwithstanding the foregoing, if Manager advances any funds in payment of an expense authorized by Owner, Manager may reimburse itself from the Operating Account or Owner shall reimburse Manager within fifteen (15) days after Owner's receipt of itemized invoices or bills thereof. 6.5 No Default Due to Lack of Funds. If Manager is unable to perform any of its agreements or covenants under this Agreement because of the failure on the part of Owner to provide the funds pursuant to Section 6.4, such failure of performance on the part of Manager shall not be deemed a default on the part of Manager and shall not give rise to any right of termination, damages, or any other remedy against Manager, unless the failure to provide the funds is due to the occurrence of a breach of this Agreement by Manager or fraud by Manager. 6.6 Books and Records. Manager shall keep full and accurate books of account and such other records as are necessary to reflect the results of the operation of the Facility. For this purpose, Owner agrees it will make available to Manager, or Manager's representatives, all books and records in Owner's possession relating to the Facility, including contract documents, invoices, and construction records. All books and records for the Facility shall be located at the Facility. 6.7 Reports to Owner. Manager will deliver, or will cause to be delivered, to Owner the following forecasts and statements: (a) within twenty (20) days after the end of each calendar month, a profit and loss statement (on an accrual basis) showing the results of operation of the Facility for such month and for the year to date (it being understood that such monthly statements will not reflect any Incentive Management Fees paid to Manager); and (b) within sixty (60) days after the end of each Operating Year (June 301h), a profit and loss statement showing the results of operation of the Facility for such year (it being understood and agreed that such annual statement will reflect the annual Base Management Fee paid to Manager), calculated as provided in Article 5. 6.8 Accounting Firm and Annual Financial Audit. Manager shall, if requested by Owner and at Owner's expense, hire an independent certified public accounting firm selected by Owner to audit the financial statements required under this Agreement. All fees and charges of the accounting firm shall be an expense of the Facility, provided, however, if any such audit discloses that the financial statements provided by Manager overstated Net Operating Income by more than five percent (5%) for the Operating Period, the expense of such audit shall be borne by Manager. 6.9 Manager Accounting Software; Other Personal Property Owned by Manager. The parties acknowledge and understand that the accounting software used at the Facility is owned by Manager, and Owner shall have no rights or interests in such software. Upon the Management Agreement Between June 1, 2020 City of San Leandro and American Golf Corporation Page 18 of 28