PABLO TORRES RESIDENTIAL PROPERTY MANAGEMENT AGREEMENT
Exhibit
10.2
XXXXX
XXXXXX
This
agreement made as of the 29th day of
October 2008 by and between Xxxxxxxx Real Estate Services, Inc.
(hereinafter referred to as the "Owner"), and Xxxxx Xxxxxx. (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:
Xxxxxxxx Real Estate Services, Inc.
OWNER' S
ADDRESS:
OWNER'S
PHONE:
PROPERTY
LOCATION:
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00-00
Xxxxxxx Xx. Xxxxxxxx, XX
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mgmt.
acct # 00001
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NO, OF
DWELLING UNITS:
MANAGEMENT
ACCOUNT NUMBER: 1
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 #1.
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:
Agent is responsible for all his own maintenance with the exception of emergency
situations and after hours calls.
6.1 Agent
employs his own maintenance person who is not an employee or under the control
of the Owner.
6.2 Agent
agrees to indemnify and defend the Owner against any and all actions arising
from the activities of the Agent’s own employees.
6.3 Agent
may from time to time hire the Owner 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.
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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 and the demand shall include
a statement of the matter in controversy.
17
2 The parties agree to hold the arbitration hearings in Las Vegas
Nevada.
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.
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.
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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.
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 Xxxxx Xxxxxx to effectuate lawn care at the property?
YES
NO X
Does the
Owner want Xxxxx Xxxxxx to effectuate snow removal at the property?
YES
NO X
Accepted
and Agreed as of the first date above.
XXXXX
XXXXXX (“Agent”)
Signed:
/s/Xxxxx Xxxxxx
XXXXXXXX
REAL ESTATE SERVICES, INC. (“Owner”)
By: /s/
Xxxxx Xxxxxx
President
