LESSARD PROPERTY MANAGEMENT SERVICES, INC. RESIDENTIAL PROPERTY MANAGEMENT AGREEMENT (Exhibit A to Assignment of Contract Rights and Obligations)
EXHIBIT
10.3
XXXXXXX
PROPERTY MANAGEMENT SERVICES,
INC.
RESIDENTIAL
PROPERTY MANAGEMENT
AGREEMENT
(Exhibit
A to Assignment of Contract Rights and Obligations)
This
agreement made as of the 27th day
of September,
2001,
by and between Xxxxx Xxxxxxx
(hereinafter referred to as the "Owner"), and Xxxxxxx Property Management
Services, IDC. (hereinafter
referred to as the "Agent").
1. APPOINTMENT
AND ACCEPTANCE, Owner hereby
appoints Agent as exclusive agent
for the management of the property
described in Section 2 of this agreement. Agent
accepts the appointment subject to
the terms and conditions set forth in this agreement.
2. DESCRIPTION
OF PROJECT. The property to
be managed by the Agent under this agreement
(hereinafter referred to as
the "Project") is a development consisting of buildings
and other
improvements The Project is further described as
follows:
NAME:
Xxxxx Xxxxxxx
OWNER'
S
ADDRESS:
00
Xxxxxxxxx Xx.
Xxxxxxxxx,
XX 00000
OWNER'S
PHONE: (000) 000-0000
PROPERTY
LOCATION:
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00
Xxxxxxx Xx, Xxxxx.
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mgmt.
acct # 171001
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000
Xxxxxx Xx, Xxxxx
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mgmt.
acct # 171002
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132-1.34
Cedar St, Spfld..
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mgmt.
acct #
171006
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00-00
Xxxxxxxxx Xx, Xxxxx,
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xxxx.
acct # 171007
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000-000
Xxxxxxx Xx, Xxxxx.
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mgmt
acct # 171008
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00-00
Xxxxxx Xx, Xxxxx.
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mgmt
acct # 171009
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00
Xxxxxx Xx, Xxxxx.
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mgmt.
acct # 171010
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00
Xxxxx Xx, X.Xxxxx.
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mgmt.
acct # 171012
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00-00
Xxxxxx Xx, Xxx.Xxxxxxx
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mgmt
acct # 171013
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00
Xxxxxxx Xx, Xxxxxxxxxxxx.
acct
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mgmt
acct #
171014
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00
Xxxxxxx Xx, Xxxxxxxxxxxx.
acct
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mgmt
acct # 171015
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00
Xxxxxxx Xx, Xxxxxxxx
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mgmt.
acct # 171016
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00
Xxxxxxx Xx, Xxxxxxxx
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mgmt
acct # 311001
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00-00
Xxxxxxx
Xx, Xxxxxxxx
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mgmt
acct # 312001
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192
School St, Chicopee
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mgmt
acct # 313001
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000
Xxxxx Xxxxxx, Xxxxxxxx
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NO,
OF DWELLING UNITS:
MANAGEMENT
ACCOUNT NUMBER: #171
3. RENTALS. The
Agent will offer
for rent and will use diligence to rent the dwelling units. Incident thereto,
the following
provisions will apply:
a The
Agent will take
and process applications for rentals and maintain a current list of prospective
tenants.
b. The
Agent will prepare all
dwelling leases and rental agreements, and will execute the same in its name,
identifying itself thereon as Agent for Owner.
c The
Agent will keep
the books and accounts of the operation of the property in accordance with good
accounting
practices.
4. COLLECTION
OF RENTS AND
OTHER RECEIPTS. The Agent will collect and deposit rents in accordance
with the
terms of each lease or rental agreement. All funds collected by the Agent
shall
be deposited by the Agent promptly in a bank account of the Agent
in an institution
whose deposits are insured by an agency of the United States of America;
this account shall be used exclusively
by the Agent for funds of
Owners Management Account #171.
5. ENFORCEMENT
OF LEASES OR
RENTAL AGREEMENTS. The Agent will take reasonable steps to secure full
compliance of each tenant with the terms of his lease or rental agreement.
The
Agent will lawfully terminate any tenancy when, in the Agents judgment, sufficient
cause
(including, but not limited to, nonpayment of rent) for such termination
occurs
under the terms of the tenants lease or rental agreement For this purpose,
the
Agent is authorized to consult with legal counsel of its choice to bring actions for evictions
and to
execute notices to vacate and judicial pleading incident to such actions.
Attorney's fees and other necessary costs incurred in connection with such
action will be paid out of the Management Account as Project expenses of Owner.
Notwithstanding
anything herein to the contrary, the Agent shall have the power to terminate
and accept
termination of tenancies, settle, compromise and release claims against tenants;
reinstate leases; give consents provided for in leases or rental agreements
and take all
lawful action to evict tenants.
6. MAINTENANCE:
Owner is
responsible for all his own maintenance with the exception of emergency
situations and after hours calls.
6.1 Owner
employs his own maintenance person who is not an employee or under the control of
the Agent.
6
2 Owner agrees to indemnify and defend the
Agent against any and all actions arising from
the activities of
the Owner's own employees.
6
3 Owner
may from time to time hire the Agent for specific repairs.
6
4 Notwithstanding any of the foregoing
provisions, the prior approval of the Owner will be requited for any
expenditure, which exceeds Five Hundred Dollars, $500.00 in any one instance,
for labor, materials, or otherwise in connection with the
maintenance and
repair of the Project, except for recurring expenses within the limits of
the
operating budget or for emergency repairs involving manifest danger to persons
or property or required to avoid suspension of any necessary services to
the
Project.
6.5 It
is further agreed that Owner will pay to Agent a surcharge in the amount
of fifteen percent
(15%) of
the charge for supplies and independent contractors.
7. UTILITIES,
SERVICES & MAINTENANCE
AGREEMENTS, Agent: will, on behalf
of and for Owner, make
arrangements for water, electricity, gas, fuel, oil and sewage
on the same basis as set forth
for Maintenance & Repair.
8. EMPLOYEES.
Agent will determine the
number, qualifications, and duties of personnel
to be employees in the
management of the Project. All such employees will
be deemed employees of the Agent,
not the Owner, unless they are the same, and will
be hired, paid, supervised and
discharged by the Agent. The compensation, including payroll taxes
and fringe
benefits of all employees will be within the Agent's sole
discretion.
9. DISBURSEMENTS
FROM MANAGEMENT
ACCOUNT From the funds received and
deposited by Agent in the Management
Account, Agent will make the disbursements
explicitly or reasonably
implicitly authorized by this Agreement when due
and payable. The Management Account
must maintain a $500,00 minimum balance.
In the event that the balance
in the Management Account falls below $500.00
or at any time is insufficient
to pay disbursements due, Agent will inform Owner
thereof and Owner will remit to
Agent sufficient funds to cover the deficiency. In
no event will Agent be required to
advance its own monies to pay disbursements. Agent
is explicitly authorized to pay
itself any management or other fees due it which are
payable regardless of other amounts
and accounts due and payable at the time.
10. EMERGENCY
ANSWERING SERVICE. Agent
agrees to maintain a 24-hour emergency
answering service at no
additional cost to Owner. However, in the event an
emergency maintenance call is
necessary, Owner agrees to pay Agent the then current
hourly rate for emergency
personnel dispatched after normal business hours. For
purposes of this Agreement, normal
business hours are from 8:00 am. to 5:00 p.m.,
Monday through Friday, excluding
holidays All charges are door to door.
11.
AGENT'S
COMPENSATION. The compensation
which the Agent shall be entitled to receive for management
services
performed under this Agreement shall be a fee in the amount of eight percent
(8%) of collected rent or $100.00 per Project, whichever is greater Condominium
units ate a flat $45.00 Per month each. The Owner shall pay such fee to the
Agent monthly, not
later than the thirtieth (30th)
day of each month, unless otherwise
agreed by the
parties hereto, It is further understood that a one time $100.00 set up fee
shall be assessed on each new Project.
12.
COMMISSION. Owner agrees to pay to
Agent, as a commission, an amount equal to one full month's rent
for each tenancy
secured. Such fee to be paid to Agent from Management Account,
upon occupancy of
tenant in said Unit Such commission to be recorded on monthly
statement.
13. INDEMNIFICATION,
Agent will not be
liable to Owner, occupants, licensees, invitees
or trespassers and Owner will
indemnify and defend Agent against and hold Agent
harmless of and from:
13.1 Any
and all damages, costs and expenses,
including but not limited to, reasonable
attorney's fees sustained or
incurred for injury to any person or property
in, about or in connection with
the Project, from any cause whatsoever
unless such injury shall be
caused by Agent's own actual gross negligence.
13.2 Any
and all damages, penalties, costs
and/or expenses, statutory or otherwise,
for all acts reasonably
performed by Agent pursuant to Owner's instructions,
regardless of whether such
actions are later viewed as grossly or
willfully or wantonly
negligent.
13.3 Determining
the existence or
non-existence of lead paint or toxic substances
upon the Project in
conformity with Massachusetts General Laws.
Agent hereby advises and directs
Owner to review with Owner's counsel,
Owner's statutory obligation in
the event that the presence of a toxic
substance and/or lead paint is
discovered upon the Project.
13
4 Any and all
damages, costs, penalties and expenses, including but not limited
to reasonable attorney's fees,
sustained or incurred by Agent as a result of the presence of or the threatened
release of a toxic substance and/or lead paint upon
the Project or
damages occasioned to anyone residing or who resided or presented themselves
upon the Reject from the ingestion of or exposure to any toxic substance
and/or
lead paint or pain and
suffering caused thereby including pain and suffering and loss of consortium claims by
persons related to
the injured party.
13.5 Any
and all
loss which Agent may incur, including but not limited to, reasonable attorney's
fees, as a result of the past, present or future existence of conditions
on the
Project, which may amount to violations of the state sanitary
code, building code
or local ordinances. Agent agrees to notify Owner of its actual knowledge
of any
violations so that Owner may maintain the premises
in compliance with
the aforesaid Owner agrees to correct said conditions
in a good and
workmanlike manner and to maintain the premises in compliance
with said
regulations.
14. TERM
OF AGREEMENT. This Agreement shall
continue from the date of this Agreement
until either the Owner or the
Agent terminates it, effective the last day of any
month, by written notice to the
other party, received thirty (30) days prior to the said
date of termination, subject,
however, to the following conditions:
14.1 In
the
event that a petition in bankruptcy is filed by or against Owner or any of the principals
of Owner or by
Agent or any of the principals of Agent,
or in the event that any of the
foregoing makes an assignment for the benefit of creditors
or takes
advantage of any insolvency act, the other party may terminate this Agreement
forthwith provided that written notice of such is given.
14.2 If
Agent
fails to observe or perform any provision, covenant or obligation of this Agreement to
be observed or
performed by Agent, where such failure continues for
thirty (30) days
after the receipt by the Agent of written notice thereof
from the Owner;
the Owner shall have the right to terminate this Agreement upon an additional
thirty (30) days written notice to Agent.
14
3 If Owner
fails to observe or perform any provision, covenant or obligation of this Agreement to
be observed or
performed by Owner, where such failure continues for thirty (30) days after
written notice thereof from Agent; Agent shall
have the right to
terminate this Agreement at the end of said thirty (30) days without further
obligation to Owner excepting lapse in insurance or failure
to fund the
Management Account in a timely
manner
which shall be cause for
immediate termination.
15.
INSURANCE Owner shall
maintain a complete program of insurance protection relating to the ownership
and operation
of the Project. Said policy of insurance will name Agent as a named
insured and shall
contain liability limits of no less than $500,000 Per incident
of personal
injury. A copy of said policy will be provided to Agent, on an annual
basis, by Owner, In
the event that Owner fails to procure said insurance, Agent is hereby
authorized, but not obligated to do so and pay the costs thereof from the
Management Account. Should Owner insurance lapse for any reason, this contract
shall be void for
the entire period of said lapse.
16.FORCE
MAJEURE. The provisions of this
paragraph shall be applicable if there shall occur, during
the term of this
Agreement, any strike, lookout, or labor dispute; inability to obtain labor
or
materials or reasonable substitute thereof; inability in obtaining fuel,
electricity, services or supplies from the sources from which they are normally
obtained or from reasonably comparable substitute sources; or act of God,
governmental restriction, regulation, or control, enemy or hostile governmental
action, civil commotion,
insurrection, revolution, sabotage, or fire or other casualty or any other condition
or cause beyond the
reasonable control of Agent. If Agent shall, as the result of any such event,
fail reasonably to perform any obligation required hereunder, then such
obligation shall be reasonably performed as soon as practicable after such event abates.
17.
ARBITRATION. Except for actions
seeking only injunctive relief, all disputes and controversies arising out
of or
in connection with this Agreement shall be submitted to arbitration according
to the
following procedure:
17.1 Either
party may demand
arbitration in writing The demand shall include a statement of the
matter in
controversy.
17
2 The parties agree to hold the
arbitration hearings in Springfield,
Massachusetts.
17.3 In
all cases where less than Fifty
Thousand Dollars ($50,000.00) is in dispute:
The arbitration shall be held
on thirty (30) days notice. During said
thirty (30) day period, the parties
shall cooperate with each other by providing
each other all documents and
other tangible evidence which is reasonably
relevant to the matter in
dispute Any failure or refusal of a party
to comply with a discovery request
under the provisions of this section
shall be taken into evidence by
the arbitrator and the effect thereof considered
by that arbitrator in forming
an award, including, but not limited
to, denying an award or portions
thereof. One arbitrator shallpreside
over the arbitration
proceedings. The Arbitration Committee of the
American Arbitration Association
shall appoint an arbitrator within thirty
(30) days of receiving the
written submission Such arbitrator shall be
an attorney with no less than ten
(10) years experience in commercial transactions
except that no attorney who
has represented any party to this Agreement
shall be appointed as an
arbitrator and each party to this Agreement
reserves the right to object
to the appointment of any such arbitrator.
17.4 In
all cases where Fifty Thousand
Dollars ($50,000 00) or more is in dispute:
The arbitration hearing shall,
be held on sixty (60) days written notice.
During said sixty (60) day
period, the parties shall cooperate with each
other by providing each other all
documents and other tangible evidence
which is reasonably relevant to
the matter in dispute. Upon no less
than ten (10) days notice each
party shall make witnesses available to the
other for deposition under
oath Any failure or refusal of a xxxxx to comply
with a discovery request under
the provisions of this section shall be
taken into evidence by the arbitrator
and the effect thereof considered by
that arbitrator in framing an award,
including, but not limited to, denying
an award or positions thereof
One arbitrator shall preside over the arbitration
proceedings. The Arbitration
Committee of the American Arbitration
Association shall appoint an
arbitrator within thirty (30) days of
receiving the written
submission Such arbitrator shall be an attorney with
no less than ten (10) years
experience in commercial transactions except
that no attorney who has
represented any party to this Agreement shall
be appointed as an arbitrator and
each party to this Agreement reserves
the right to object to the
appointment of any such arbitrator.
17.5 The
commercial arbitration rules of the
American Arbitration Association are
hereby incorporated by reference.
Notwithstanding any provision of those
rules or any other rule or law,
punitive damages are not recoverable against
any party to this Contract. The
arbitrators) is not empowered to grant damages in any
form or amount in
excess of the payments required under this Contract.
17.6 The
arbitration hearing shall be
concluded within thirty (30) days unless otherwise
ordered by the arbitrator, and
the award thereon shall be made within
thirty (30) days and shall be
final and binding on all parties. Subject
to the requirement for the
payment of attorney fees in accordance with
Paragraph 17.9 of this Agreement,
Judgment on such award may be entered
in any court in Massachusetts
having jurisdiction if the amount awarded
or any portion thereof
(including interest or fees) remains unpaid after
Ten (10) Days from the date of the
award.
17.7 This
arbitration provision shall be a
complete defense to any suit, action or proceeding
brought under, or in
connection with, this Agreement. This arbitration
provision shall survive the
termination or expiration of this Agreement.
17,6 Nothing
in this arbitration provision
shall give the arbitrator any authority to
alter, change, amend, modify, add to
or subtract from any provision of this
Agreement.
17.9 Any
award made
by the arbitrator shall include a requirement that the losing xxxxx pay the
prevailing party's reasonable expenses, including reasonable legal fees incurred
in the prosecution of the arbitration (including, if greater
than the hourly
charges, any contingent fee), except that if a party is
awarded less than
Fifty (50%) Percent of the amount originally claimed by that party as due,
then
no award of expenses or attorney fees shall be made.
17.10 Any
award made by the
arbitrator shall include an award of interest at the rate of no less than
Twelve (12%)
Percent from the date the amount awarded or any portion
thereof was
due.
18
STANDARD APPLICABLE TO
AGENT Agent's actions under this Agreement or in connection with the
operation and management of the Project otherwise, shall be measured by Agent's
actual knowledge at the time Agent decided to act or not act Owner understands and
agrees that Agent
is not an insurer or guarantor of the Project and that Agent has
not and does not
promise Owner that there will be any return or profit from the Project.
19.
GENERAL.
19.1 This
Agreement shall be
enforced under, governed by and construed in accordance with the laws of
the
Commonwealthof
Massachusetts.
Any provision
which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to
the extent of such prohibition or unenforceability without
invalidating
the remaining
provisions hereof and
any such prohibition
or
unenforceability in any jurisdiction shall not invalidate or tender
unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law,
Agent and Owner hereby waive any provision of law
which renders any
provision hereof prohibited or unenforceable in any
respect..
19.2 No
term or
provision of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument of equal formality signed by
duly authorized
officers of the parties hereof.
19
3 No waiver of
any breach of any provision of this Agreement shall constitute
a waiver of any subsequent
breach of the same or any other provision of this Agreement
and no
waiver shall be effective unless made in writing.
19.4 This
Agreement embodies the entire
understanding of the parties and there are no further or other
agreements or
understandings, written or oral, in effect
between the parties relating to
the subject matter hereof.The division
of this Agreement into
paragraphs and sections is only a matter of convenience
for reference and shall not
define or limit any of the terms or provisions
hereof Any term used in the
singular shall be deemed to include
the plural when the context of
its use is so required. The fact that the
working of this Agreement has been
provided by one party or the other shall
not be taken into consideration in
the construction or interpretation of this
Agreement.
19.5 Each
of Owner and Agent hereby
represents to the other that it is authorized
to enter into this Agreement
and that the individual signing this Agreement in its behalf
is likewise
fully authorized to do so.shall not be taken
into consideration in
the construction or interpretation of this Agreement.
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20.
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LAWN
CARE AND SNOW REMOVAL
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Does
the
Owner want Xxxxxxx Property Management, Inc. to effectuate lawn care at the
property?
YES
NO
X
Does
the
Owner want Xxxxxxx Property Management, Inc. to effectuate snow removal at
the
property?
YES
NO
X
/s/Xxxx
X. Xxxxxxx
By: Xxxx
X. Xxxxxxx
President
/s/Xxxxx
Xxxxxxx
By: Owner
###-##-####
Owner’s
SSN or TAX ID #
