ASSIGNMENT OF CONTRACT RIGHTS AND OBLIGATIONS
Exhibit
10.6
Assignment
dated June 30, 2004 between Xxxxx Xxxxxxx ("Assignor") and Moixa III, Inc.,
a
Nevada Corporation ("Assignee").
WHEREAS,
Assignor is a party to that certain agreement dated September 27, 2001,
captioned "Xxxxxxx Property Management Services, Inc. Residential Property
Management Agreement," a copy of which is attached hereto as Exhibit
A;
WHEREAS,
Assignor has reorganized the ownership of one of the properties under management
by Xxxxxxx Property Management Services, Inc. ("Xxxxxxx") so that such property
is now owned by Assignee, and now desires to transfer the rights and obligations
under Xxxxxxx'x agreement (Exhibit A) to the Assignee as well; and
WHEREAS,
Assignee would like to receive an assignment of both the rights and obligations
of Xxxxxxx'x Agreement (Exhibit A);
NOW
THEREFORE, in consideration of the mutual promises and agreements set forth
herein, and other valuable consideration, the receipt and sufficiency of which
both parties hereby acknowledge, the parties agree as follows:
1. Assignor
hereby assigns its rights and obligations under Xxxxxxx'x Agreement (as set
forth in Exhibit A) to the following limited extent: the assignment of rights
and obligations shall apply only to the apartment house located at 00-00 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx. Assignor shall retain all other rights and
obligations not specifically pertaining to the apartment house at 00-00 Xxxxxxx
Xxxxxx.
2. Assignee
hereby agrees to receive and honor the foregoing assigned rights and
obligations.
3. Said
assignment is expressly conditioned on Xxxxxxx'x written approval and consent
of
same.
4. Once
Xxxxxxx approves and consents to this assignment, Assignor shall be released
from and held harmless from all liability or obligations assigned by this
Assignment, and shall have no further legal responsibility for them. Likewise,
upon Xxxxxxx'x approval and consent, Assignor releases and holds harmless
Assignee and Xxxxxxx from all liability or obligations to Assignee, and waives
all further claims arising from or related to the rights assigned
herein.
1
IN
WITNESS WHEREOF, the parties have signed this agreement below.
| MOIXA III, INC. (Assignee) | Assignor | ||
| /s/ Xxxxx Xxxxxxx | /s/ Xxxxx Xxxxxxx | ||
|
Xxxxx Xxxxxxx President
|
Xxxxx Xxxxxxx in his individual capacity
|
On
behalf of
Xxxxxxx Property Management Services, Inc., I am authorized to approve and
consent to the foregoing assignment, effective as of the date first appearing
above.
XXXXXXX
PROPERTY MANAGEMENT
SERVICES,
INC.
/s/Xxxx
X. Xxxxxxx
By:
Xxxx
X. Xxxxxxx
President
2
EXHIBIT
A
XXXXXXX
PROPERTY MANAGEMENT SERVICES, INC.
RESIDENTIAL
PROPERTY MANAGEMENT AGREEMENT
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:
00
Xxxxxxx Xx,
Xxxxx.
mgmt.
acct # 171001
000
Xxxxxx Xx,
Xxxxx mgmt.
acct # 171002
132-1.34
Cedar St,
Spfld..
mgmt.
acct #
171006
00-00
Xxxxxxxxx Xx,
Xxxxx,
xxxx.
acct # 171007
000-000
Xxxxxxx Xx,
Xxxxx. mgmt
acct
# 171008
00-00
Xxxxxx Xx,
Xxxxx.
mgmt
acct
# 171009
00
Xxxxxx
Xx,
Xxxxx.
mgmt.
acct # 171010
00
Xxxxx
Xx, X.
Xxxxx.
mgmt.
acct # 171012
00-00
Xxxxxx Xx, Ind.
Orchard
mgmt
acct
# 171013
00
Xxxxxxx Xx, Xxxxxxxx mgmt.
acct
mgmt
acct
#
171014
00
Xxxxxxx Xx, Xxxxxxxx mgmt.
acct
mgmt
acct
# 171015
00
Xxxxxxx Xx,
Xxxxxxxx
mgmt.
acct # 171016
00
Xxxxxxx Xx,
Xxxxxxxx
mgmt
acct
# 311001
00-00
Xxxxxxx Xx,
Xxxxxxxx
mgmt
acct
# 312001
NO,
OF
DWELLING UNITS:
MANAGEMENT
ACCOUNT NUMBER: #171
3
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 #000-000-000.
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.
4
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.
5
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.
6
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 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.
17.4 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.
7
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 Commonwealth of 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.
8
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.
| 20. |
LAWN
CARE AND SNOW REMOVAL
|
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
9
