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MANAGEMENT AGREEMENT
THIS AGREEMENT, made in City, State as of ___________ 200_ by and
between Management Company Name Here, hereinafter sometimes referred to
as “MGMTCO”, a corporation of the State of ____________________, having its
o f fi c e s a t C o m p l e t e M a n a g e m e n t C o m p a n y A d d r e s s H e r e
, and the Community Legal Name Here, a corporation of the State of
.
WITNESSETH:
WHEREAS Community Legal Name Here,
Hereinafter referred to as the “Association”, exists principally for the purpose of
the performance of various functions pertaining to the maintenance and
administration of certain real property and improvements thereto described in a
certain Declaration of Covenants, Conditions and Restrictions, executed by
_____________________________
and recorded among the Land Records of County, State in Liber ______ at Folio
____ and
WHEREAS among these functions is management of the common areas
and community facilities of the real property and improvements described in
said Declaration; hereinafter collectively referred to as the “Property”, and
WHEREAS the Association is desirous of employing Management
Company Name Here as Agent for said purpose and
WHEREAS Management Company Name Here is desirous of accepting
such employment under the terms and conditions hereinafter set forth,
NOW, THEREFORE, in consideration of the foregoing and other terms and
conditions hereinafter set forth, the parties hereto hereby mutually agree as
follows:
I.
EXCLUSIVE AGENT. The Association hereby employs Management
Company Name Here and MGMTCO hereby accepts employment as exclusive
managing agent under the terms and conditions set forth herein. Association
shall, at its own expense, provide to MGMTCO a bona fide, fully recorded set of
the Association’s governing documents for MGMTCO’s permanent records.
MGMTCO shall familiarize itself with these governing documents and will act
accordingly.
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II.
SERVICES. MGMTCO shall render services and perform duties as follows:
(a) Developer Liaison. Ascertain the general condition of such of the
common areas of the Property as have been conveyed to or are otherwise
available for the use by the Association (including any community facilities)
and establish liaison with the Declarant or any successor thereto and such
other parties as may be necessary in order to facilitate completion of any
necessary corrective work upon said areas.
(b) Maintenance. Cause the common areas and community facilities of
the Property which have been conveyed to the Association, and any other
property or improvements pertaining to the Property otherwise required to
be maintained or available for use by the Association, to be maintained
according to and on the basis of such annual operating budgets, job
standards, and plan and schedule of operation as previously approved by
the Board of Directors of the Association, including but not limited to
exterior cleaning, painting and decorating, plumbing, steamfitting,
carpentry and repair work and such other normal maintenance and repair
work as may be necessary, subject to any limitations imposed in writing by
the Board of Directors of the Association.
(c) Spending Limitations. Except as may be expressly provided herein
or specifically authorized in any operating budget or plan of operation of
the Board of Directors of the Association, the expenses incurred for any
one item of repair or replacement shall not exceed the sum of one
thousand five hundred dollars ($1500.00) unless specifically authorized in
writing by the Board of Directors of the Association; provided, further, that
pursuant to this authority MGMTCO in any event shall not incur liabilities
(direct or contingent) which will at any time exceed the aggregate of three
thousand dollars ($3000.00), or any contractual liability maturing more than
one (1) year from the creation thereof, without first obtaining the written
approval of said Board of Directors. The foregoing cost limitations shall not
apply in the case of emergency repairs necessary, in the judgment of
MGMTCO, to preserve the property of the Association and the safety of the
Members of the Association, or which involve manifest danger to life and
property or which are required to avoid the suspension of any necessary
services. It is understood and agreed that MGMTCO will, to the extent
practicable, confer immediately with thei Board of Directors of the
Association regarding any expenditure made pursuant to this emergency
repair authority shall not exceed the sum of five thousand dollars
($5000.00) unless specifically authorized in writing by the Board of
Directors.
(d) Inspections. It is further understood and agreed that, pursuant to
the general maintenance and repair authority conferred by this Paragraph,
MGMTCO will undertake regular weekly inspections of said common areas
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and community facilities and shall include the results of said inspections,
with accompanying recommendations and action taken, if any, in the
monthly management report furnished the Board in accordance with
Paragraph (1) below. Upon request from the Board of Directors of the
Association, MGMTCO will inform the Members of the Association of rules,
regulations, and notices arising from the exercise of the authority conferred
by this Paragraph and affecting said common areas and community
facilities.
(e) Governmental Compliance. Take such action as may be necessary
to comply promptly with any and all orders or requirements, of which
proper notice is given, which affect the common areas or community
facilities and are placed thereon by any federal, state, county or municipal
authority having jurisdiction thereover, subject to the limitations set forth in
Paragraph (c) above concerning the making of repairs; provided, however,
that in the event the Association is contesting or has affirmed an intention
to contest (and afforded proper notice thereof) any said order or
requirement, no such action will be taken under this Paragraph except as
may be expressly authorized by the Board of Directors of the Association.
MGMTCO will promptly notify the Board of Directors of the Association of
any said order or requirements and any actions taken pursuant to this
paragraph.
(f) Contracting Authority. Make contracts with respect to the common
areas and community facilities for necessary water, sewer, natural gas,
electricity and other necessary utility services, cleaning, vermin
extermination, swimming pool operation and maintenance, trash and snow
removal, landscaping and lawn maintenance, and for all other such
services relating to the functions to be performed by MGMTCO under this
Agreement as may be deemed advisable by MGMTCO; provided, however,
that all such contracts shall be made in the name of the Association and be
subject to approval by the Board of Directors of the Association. It is
understood and agreed that MGMTCO, to the best of its ability and in
accordance with sound contracting practices, shall endeavor to provide
the Board with a minimum of three (3) bids on all contracts in excess of
seven hundred fifty dollars ($750.00) with the exception of those made for
necessary utility services (i.e. water, sewer, gas and electricity), provided
that in all other respects the provisions of this Paragraph shall apply to
such contracts. This authority shall include the placing of orders for such
materials and supplies as are necessary to properly maintain the common
areas or as may be otherwise necessary in connection with the services to
be provided by MGMTCO under this Agreement (excluding MGMTCO
overhead), and shall include responsibility to monitor contractor
performance. All such contracts and orders shall be subject to the
limitations set forth in Paragraph (c) above. In negotiating contracts or
issuing purchase orders pursuant to this Paragraph, MGMTCO will at all
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times act in a manner consistent with its duty as Agent for the Association,
and will credit to the Association all discounts, credits, commissions or
rebates reasonably obtainable as a result of such purchases.
(g) Insurance. Cause to be placed and kept in force, as authorized by
the Board of Directors of the Association, and in accordance with the ByLaws thereof, all forms of insurance pertaining to all common areas and
community facilities adequate to protect the Association and its Members,
including, but not limited to, public liability insurance, and fire and
extended coverage insurance; provided, however, that under no
circumstance shall MGMTCO have any responsibility for the placement or
purchase of any individual lot owner’s insurance or other insurance solely
for the benefit of individual lot owners. The particular companies, particular
amounts and particular beneficial interests of any insurance coverage
placed pursuant to this Paragraph shall be subject to the approval of Board
of Directors of the Association. MGMTCO shall promptly investigate and
make full written reports to the Board of Directors of the Association as to
all accidents or claims for damage relating to the management, operation
and maintenance of the common areas and community facilities, including
the estimated costs of repair or replacement, and shall cooperate and
make any and all reports required by any insurance company in
connection therewith.
(h) Unit Maintenance. Provide for periodic exterior maintenance upon
the units included in the Property as may be required by the provisions of
the above Declaration and By-Laws or as may be otherwise agreed among
the Members of the Association and/or formally adopted as a common
expense of the Association (e.g. periodic painting of exterior painted
building surfaces), on the basis of annual operating budgets, job standards
and plan and schedule of operation previously approved by the Board of
Directors of the Association, and in accordance with the authority and
subject to the limitations set forth in Paragraph (c) and (f) above.
(i) Collect Assessments. Collect all assessments due from Members of
the Association. This authority shall include authority to initiate legal action
in the name of the Association to collect delinquent assessments due the
Association as set forth in the above Declaration and By-Laws; including
preparation and filing of statements of lien; provided, however, that such
legal action or lien statements shall not be initiated without the express
authorization of the Board of Directors of the Association. MGMTCO is
hereby authorized to provide notification to and demand payment of
Members from whom delinquent assessments are due in accordance with
such delinquency procedures as may be approved by the Board of
Directors of the Association; provided, further, that the Board shall have the
right to approve on a collective basis the form and manner of such
notification and demand. MGMTCO shall furnish the Board of Directors of
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the Association with an itemized list of delinquent accounts on a monthly
basis in accordance with the provisions of Paragraph (1) below. Nothing
contained herein shall be construed to obligate MGMTCO to pay any
delinquent assessments which may, from time to time, be due. For
purposes of this Paragraph, “Assessments” refers to annual or other sums
established by the Board of Directors of the Association which the
Members are bound to pay as their share of the common expenses of the
Association pursuant to the above Declaration and By-Laws, or as
otherwise agreed by the Members, or such special or emergency
assessments as may, from time to time, be levied by the Association, and
may include such interest thereon or costs of collection thereof as may be
provided for by said Declaration and By-Laws or otherwise established by
the Board of Directors of the Association.
(j) Bank Deposits. Deposit in a bank whose deposits are insured by
the Federal Deposit Insurance Corporation or other entity acceptable to the
Board of Directors of the Association, the funds collected pursuant to
Paragraph (i) above; plus any miscellaneous income of the Association
accruing to MGMTCO under any provision of this Agreement, including
interest income pursuant to Paragraph (k) below; provided that no such
funds will be commingled with funds accruing to MGMTCO from any other
source, including other clients. Notwithstanding the above, it is understood
and agreed by the parties hereto that in the event MGMTCO should wish to
establish a special account for the commingled deposit of funds of its
clients, the Board of Directors of the Association may authorize MGMTCO
to deposit funds collected pursuant to this Agreement in a sub-account of
said special account subject to all other terms and conditions set forth
herein; provided, however, that nothing contained herein shall be construed
to obligate MGMTCO or the Board of Directors of the Association to any
such action. MGMTCO shall have the authority to draw upon said special
account or sub-account for payments to be made by MGMTCO to
discharge liabilities or obligations incurred pursuant to this Agreement;
provided, however, that such payments shall be disbursed only as
otherwise provided herein.
(k) Disburse Funds. Disburse on a regular basis from funds deposited
pursuant to Paragraph (j) above all compensation due and payable to
independent contractors hired pursuant to the authority contained herein
and all premiums for the payment of insurance placed pursuant to the
authority contained herein, and any other sums otherwise due and payable
by the Association as operating expenses authorized to be incurred under
the terms of this Agreement or otherwise, including compensation to
MGMTCO as hereinafter provided. Any remaining balance of said funds not
otherwise disbursed pursuant to this Paragraph may be disbursed from
time to time or transferred only as specifically authorized by the Board of
Directors of the Association in writing. It is understood and agreed by the
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parties hereto that MGMTCO in the course of prudent management of
funds accruing pursuant to this Agreement, may, from time to time,
recommend to the Board particular dispositions of said excess balances,
such as temporary deposit in special interest-bearing accounts, or other
short-term investments; such disposition, however, to occur only upon the
express authorization of the Board.
(l)
Reports.
below:
Render regular reports to the Association as set forth
Monthly (to be rendered no later than the fifteenth (15th) of each
succeeding month).
(1) Balance Sheet (listing of Association assets, liabilities and
equities);
(2) Income/Expense Statement (showing all income and itemized
expenses, including comparison with annual operating
budget);
(3) Disbursement Listing (including payee, invoice number, invoice
date, date paid, number and amount of corresponding
payment check and amount charged);
(4) Delinquency Report (including months delinquent, amount due,
and action taken, if any);
(5) Prepay Report (including months prepaid and amount by
homeowner); and
(6) Management Report (including currently pending management
actions, correspondence, and results of inspections undertaken
pursuant to Paragraph (c) above).
Quarterly (to be rendered no later than the twentieth (20th) of the month
following the close of each calendar quarter).
(1)Homeowners List (homeowners’ names; address; tenants’
name, if any; and assessment levels).
It is understood by the parties that the format of particular reports may
evolve over time, however, the above information as a minimum will be provided
in each case. In addition, MGMTCO shall render to the Association such special
financial reports as may, from time to time, be requested by the Board of
Directors and which are reasonable under the circumstances, and such other
reports as may be otherwise provided for herein.
(m) Assessment Certificates. Upon request, MGMTCO shall furnish
Assessment Certificates as set forth in the above Declaration and By-Laws,
provided, however, that MGMTCO shall be paid a fee by the requesting
Association Member, according to the schedule in Attachment A-Expense
Reimbursement Schedule, and shall also furnish any member of the Association,
on request, with copies of the Declaration, the Articles of Incorporation and the
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By-Laws of the Association, for a reasonable charge for duplication; the
foregoing sums shall be paid by the requesting Association Member to
MGMTCO separate and apart from any compensation otherwise provided
MGMTCO pursuant to this Agreement.
(n) Accounting Records. Maintain a comprehensive system of office
records, books and accounts in a manner sufficient to adequately protect the
interest of the Association. The records and books of account of the Association
shall be maintained on an accrual accounting basis, and shall be kept separate
from any other records or books maintained by MGMTCO for the account of
other clients of MGMTCO. The records and books of account of the Association
shall be made available for inspection and audit by the Board of Directors of the
Association or their duly authorized representatives, at all reasonable hours, and
to any member of the Association by appointment. MGMTCO shall cooperate to
the extent required by the Board of Directors in the preparation, by a Certified
Public Accountant designated by the Board, of a complete annual financial
report based upon examination of the Association’s books and records,
including those maintained by MGMTCO pursuant to this Agreement, provided
that the Association shall bear the fees and expenses of said Certified Public
Accountant. Upon request of the Board, MGMTCO will undertake distribution of
an annual financial statement to the members of the Association, provided that
the expenses of said distribution shall be paid by the Association pursuant to
the provisions of Article III below.
(o) Budget. Prepare, after consultation with the Board of Directors of
the Association or appropriate officer or committee thereof, an annual operating
budget for each annual assessment period taking into account the general
condition of the common areas and community facilities, historical costs,
existing contracts or contractors and current inflationary trends and qualitative
budget assumptions based upon the existing level of services and including
reasonable reserves for repair and replacement. The budget is to be prepared
in a format consistent with the classification of the accounts of the Association
and furnished together with a suggested plan of operation outlining the major
points in the budget and justifying particular estimates in all important respects,
said budget and operating plan to be furnished the Board of Directors of the
Association at least forty-five (45) days prior to the commencement of the annual
period for which prepared. The budget shall provide for sufficient estimates, on
a consistent periodic basis, to permit comparison to and analysis of deviations
from the reports furnished the Association, pursuant to Paragraph (l), of the
actual results of operations and actual financial condition of the Association, in
accordance with generally accepted accounting practices consistently applied.
(p) Owner Complaints. Receive, investigate and dispose of service
requests and related complaints of the members of the Association, and
record said requests or complaints along with an indication of the action
taken, if any; provided, however, that said requests or complaints, if
considered by MGMTCO to be of sufficient magnitude or in the event they
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are incapable of resolution by MGMTCO shall, after thorough investigation,
be reported to the Board of Directors of the Association, together with
recommendations, if appropriate. Nothing contained herein shall be
construed to obligate MGMTCO in connection with service requests or
complaints pertaining to individual lots or dwellings except as may relate to
exterior maintenance or repairs undertaken pursuant to the provisions of
Paragraph (h) above or otherwise relating to MGMTCO’s foregoing
responsibilities under this Agreement or as specifically provided herein.
(q) Performance Standard. Operate and maintain the common areas
and community facilities at all times in accordance with the highest
standard achievable consistent with the terms of this Agreement and the
overall plan of operation of the Association, and perform all other acts and
duties as are reasonably necessary and proper to the discharge, by
MGMTCO, of its duties under this Agreement.
(r) Meeting Attendance. MGMTCO hereby agrees, notwithstanding any
authority as may be otherwise conferred herein, to confer freely and fully
with the Board of Directors of the Association in the performance of its
duties as set forth herein and to make every effort to attend meetings of
said Directors as reasonably requested, provided, however, that MGMTCO
shall attend a maximum of fourteen (14) such meetings per year of the
Board or committees thereof. For attendance at additional meetings
beyond said maximum, MGMTCO may charge a fee to be separate from
and in addition to the compensation otherwise provided MGMTCO by the
Association pursuant to Article VII hereof. Meeting of Directors subject to
the above maximum of fourteen (14) meetings is hereby defined as any
meeting commencing before 9:00 a.m. or after 5:00 p.m. Monday through
Friday. Nothing contained in this section of the Agreement shall obligate
any employee of MGMTCO to attend meetings of Directors scheduled on
Friday night, Saturday or Sunday of any week. In the event that said
meetings of Directors last more than three hours or beyond 10:30 p.m.,
whichever occurs first, the Association agrees to pay MGMTCO the hourly
rate of forty-five dollars ($45.00) for each employee of MGMTCO attending
said meeting beyond the above time limit. It is understood and agreed by
the parties that said hourly rate will be charged for each hour, or fraction
thereof, beyond the time limit and that this charge is intended to
compensate the employee for excessive work hours. Notwithstanding the
foregoing, MGMTCO shall meet and confer with the Board on matters of an
emergency nature at any reasonable time for no such additional fee.
(s) Litigation. MGMTCO shall assist the Association and their legal
counsel in any litigation brought by or against the Association to the extent
such litigation shall relate to the services provided by MGMTCO under the
terms of this Agreement, provided, however, that such assistance in
litigation shall be limited to ten (10) manhours per month. In the event that
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the litigation assistance extends beyond ten (10) manhours per month, the
Association agrees to reimburse MGMTCO at the hourly rate specified on
Schedule A-Schedule of Reimbursable Expenses.
III.
REIMBURSABLE EXPENSES. Everything done by MGMTCO pursuant to
the provisions of this Agreement shall be done as Agent of the Association
and, except as otherwise specifically provided herein, all obligations or
expenses of MGMTCO incurred or paid pursuant to this Agreement shall
be obligations and expenses of the Association, including miscellaneous
costs specifically incurred by MGMTCO for the Association such as
postage for general mailing of notices, budgets, etc. to members of the
Association, or duplicating costs for the same but excluding overhead
expenses of MGMTCO. For purposes of this Agreement, overhead
expenses of MGMTCO include salaries of MGMTCO employees, office
supplies, accounting costs incurred in furtherance of the provisions of
Article II above, miscellaneous correspondence costs, including
correspondence pertaining to specific delinquencies (but excluding
postage costs of registered mail pertaining to the same which shall be an
expense of the Association), telephone costs, and other such expenses of
the officers and employees of MGMTCO. Legal fees and expenses
incurred for the direct benefit of the Association, including those
specifically incurred pursuant to Paragraph (i) of Article II above, shall be
paid by the Association. “Attachment A-Reimbursable Expense Schedule”
which lists certain expenses and fees for services provided by MGMTCO
which are agreed to be reimbursable to MGMTCO from the Association, is
attached and incorporated into this Agreement.
IV.
COMMON AREA AUTHORITY. It is understood and agreed by the parties
hereto that, except as otherwise specifically provided herein, the authorities
and duties conferred upon MGMTCO under this Agreement are confined to
the common areas and community facilities of the Property, and do not and
shall not include supervision and management of individual lots or
dwellings except as specifically provided herein or as requested by the
Board of Directors of the Association and agreed to in writing by MGMTCO.
V.
BOARD REPRESENTATIVE. It shall be the duty of the Board of Directors
of the Association to appoint one member of said Board as Liaison with
MGMTCO in its capacity as Agent under this Agreement. MGMTCO shall
be advised in writing of the identity of said liaison officer and all
communications with MGMTCO relating to Agreement shall, to the extent
practicable, be made by or delivered to said liaison officer.
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VI.
BONDING AND INSURANCE. Those employees of MGMTCO who handle
or are responsible for the handling of funds of the Association shall, at the
expense of MGMTCO, be bonded by an Employee Dishonesty Bond in the
amount of $300,000. In addition, notwithstanding any other provision of this
Agreement, MGMTCO hereby agrees to cause to be placed and kept in
force $1,000,000 of general liability insurance for damage to property and
bodily injury.
VII. MANAGEMENT FEES.
As compensation for the services performed
under this Agreement, the Association will pay MGMTCO the sum of
___________________ dollars and ______________ cents ($
) per home per
month; provided that the compensation paid MGMTCO pursuant to this Article
VII shall be computed on the basis of the total number of lots for which the
Association is earning Assessment income as of the _________ day of each
month.
In the event that the total compensation due to MGMTCO as calculated
above is less than ______________________ dollars per month, a minimum
management fee of ______________________ dollars shall be paid to MGMTCO
by the Association until such time as the compensation based upon the number
of lots described above exceeds this minimum.
VIII. TERMINATION.
(a) Term of Agreement. Unless terminated as otherwise provided herein,
this Agreement shall be in effect from ___________________ to and including
___________________.
(b) Renewal. Unless terminated pursuant to this Article, the parties may
renew this Agreement at the end of the above term for successive one (1) year
terms under such terms and conditions as may hereafter by agreed, provided
that in the event either party shall intend not to so renew the Agreement at the
end of the above term, said party shall give notice of said intention to the other
in writing at least ninety (90) days prior to the end of said term.
(c) Termination Provision. If at any time during the term of this Agreement
the Association feels that MGMTCO is not properly performing its duties in
accordance with the terms of this Agreement and standard of managers of
similar properties, the Association shall give MGMTCO a written notice stating in
detail the specific complaints. MGMTCO shall have sixty (60) days from receipt
of such notice to correct the specific complaints. If said complaints are not
corrected to the aforesaid standard, then the Association may terminate this
Agreement upon thirty (30) days written notice without penalty. If MGMTCO shall
have remedied said complaint(s) within the sixty (60) day notice period, or, if
such complaint(s) cannot be remedied within such sixty (60) day period but
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MGMTCO shall have commenced the remedy of such complaint(s) and is
diligently pursuing completion of the same, the Association shall have no right to
terminate this Agreement pursuant to this Article. In the event that MGMTCO
wishes to terminate this Agreement, it must provide the Association with a
minimum of ninety (90) days written notice to afford the Association the time to
locate a successor to MGMTCO.
All notices sent to the parties under this Article shall be served by certified
mail with return receipt requested.
(d) Bankruptcy. In the event a Petition in Bankruptcy is filed by or against
either party, or in the event that either party shall make an assignment for the
benefit of creditors or take advantage of any insolvency act, the other party
hereto may terminate this Agreement upon notice to the insolvent party.
(e) Transition. Upon any termination pursuant to this Article, the parties
shall account to each other with respect to all matters outstanding as of the date
of termination, and the Association shall furnish MGMTCO reasonably
satisfactory security against any outstanding obligations or liabilities which
MGMTCO may have incurred pursuant to the provisions of the Agreement.
MGMTCO shall provide Owner Reports, Delinquency Reports and Vendor
Information in advance of the termination date at the request of the Association
to assist in the management transition. Within thirty (30) days after the
termination date, MGMTCO will turn over to the Association or its duly appointed
representative, the existing records and files of the Association. The Association,
or its duly appointed representative, shall acknowledge in writing the receipt of
said records and files.
MGMTCO shall not be compensated or reimbursed for providing the
records relating to the Association, except that the Association shall pay for the
cost of reproducing any records previously provided to the Association by
MGMTCO, but which MGMTCO deems necessary to retain for its records
following the termination date of this Agreement.
Regarding the storage of computer data in electronic form, the parties
hereby agree that such electronic storage media shall belong to MGMTCO and
be retained by them. The Association shall own or have rights to all printed data
necessary for the continuation of Association operations.
IX.
MGTCO INITIALS EMPLOYEES’ NON-COMPETE CLAUSE. Association
hereby agrees not to hire or employ, either as a direct employee of the
Association or as a contractor, any employee of MGMTCO for a period of
eighteen (18) months following the termination of this Agreement,
regardless of the reasons for such termination, without the express written
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consent of MGMTCO. Further, the Association acknowledges that it is
hereby advised that each employee of MGMTCO has a written Employment
Agreement between themselves and MGMTCO that prohibits said
employee from competing with MGMTCO in providing management
services, either directly or indirectly, to MGMTCO managed Clients and
Communities during the term of their employment with MGMTCO or for a
period of eighteen (18) months following the employee’s termination of
employment with MGMTCO. The Association hereby agrees not to make
any attempt to circumvent the intent of either this paragraph or the
MGMTCO Employment Agreement, said intent being to prohibit a
MGMTCO employee or former MGMTCO employee from providing any
type of management services to the Association, directly or indirectly, on
his/her own behalf or on behalf of others, either during the term of this
Agreement or for a period of eighteen (18) months following the termination
of this Agreement.
X.
HOLD HARMLESS.
Except for acts of willful misconduct or gross
negligence, the Association agrees to save and hold MGMTCO, its
representatives, agents and employees, harmless from damages or injuries
to persons or property resulting from any cause whatsoever in, on or about
the common areas or community facilities or elsewhere when MGMTCO is
carrying out the provisions of this Agreement or acting under the express
or implied direction of the Board of Directors of the Association.
(a) Reimbursement of Costs.
Subject to the limitations above, the
Association agrees to reimburse MGMTCO upon demand for any monies
which MGMTCO is required to pay out in connection with, or as an expenses
in defense of, any claim, civil or criminal action, proceeding, charge or
prosecution made, instituted or maintained against MGMTCO, or MGMTCO
and the Association jointly, affecting or due to the condition or use of the
common areas or community facilities, or acts or omissions of employees of
the Association or of MGMTCO, or arising out of or based upon any law,
regulation, requirement, contract or award relating to the hiring of employees,
the hours of employment, working conditions, wages and/or compensation of
employees or former employees of the Association; provided, however, that
the foregoing provisions shall not apply in the event of damage or injuries
suffered as a result of negligence or willful misconduct on the part of
MGMTCO, its agents, or employees.
(b)Defense of Claim. Subject to the same limitations, the Association
agrees to defend promptly and diligently at its own expense any claim, action
or proceeding against MGMTCO or against MGMTCO and the Association
jointly which arises out of or is connected with any of the foregoing and the
Association further agrees to fully indemnify MGMTCO from any judgment,
loss or settlement on account thereof; provided, however, that the foregoing
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indemnity provision shall not apply to any settlement of any cause entered into
by MGMTCO without the prior written consent of the Board of Directors of the
Association. The provisions of this Article IX shall survive the termination of this
Agreement as to any actions, causes, proceedings or claims as stated above.
XI.
ARBITRATION. In the event of any dispute, disagreement or difference
with respect to the interpretation of any term or provision of this Agreement
not resolvable by the parties hereto and which, in the judgment of either
party, materially affects or impairs its ability to perform under this
Agreement, either party may, upon written notice to the other, demand that
such dispute, disagreement or difference be submitted to Arbitration. The
dispute shall thereupon be promptly submitted to arbitration before three
arbitrators (unless MGMTCO and the Association agree to one arbitrator)
designated by the American Arbitration Association and shall be
conducted in accordance with the rules and procedures promulgated by
said American Arbitration Association. The arbitrators designated and
acting pursuant to this Article shall have no power to depart from or
change any of the provisions thereof except as otherwise provided herein.
MGMTCO and the Association shall continue with the performance of their
duties and obligations under this Agreement during the period of such
arbitration.
The determination of the arbitrator(s) (or the majority in the event of
arbitration before three arbitrators) shall be binding upon both parties. In the
event that a material breach is alleged and the arbitrator(s) determines that the
offending party has committed a material breach of this Agreement, then such
finding shall furnish the aggrieved party the right to terminate the Agreement
thirty (30) days after the final determination of the arbitrator(s) and the offending
party shall bear all costs and expenses incurred in the arbitration, provided that
such termination shall otherwise proceed as provided in Article VIII hereof. In the
event that a material breach is alleged but the arbitrator(s) does not so
determine, the aggrieved party shall bear all costs and expenses incurred in
arbitration. Notwithstanding the above, in any case the arbitrator(s) may make a
determination as to the allocation of costs and expenses of arbitration.
XII. APPLICABLE LAW. This Agreement shall be construed in accordance
with the laws of the State of
and shall bind and inure to the benefit
of the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assigned by MGMTCO except with
the prior written consent of the Board of Directors of the Association. This
Agreement shall constitute the entire agreement between the parties hereto, and
no variance or modification thereof shall be valid or enforceable, except by
written supplement hereto, executed and approved in the same manner as this
Agreement. For the convenience of the parties, this Agreement has been
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executed in several counterparts, which are in all respects similar and each of
which shall be deemed to be complete in itself so that any one may be
introduced in evidence or used for any other purpose without the production of
the other counterparts.
XIII. SEVERABILITY.
The invalidity, illegality, or unenforceability of any
provision of this Agreement, pursuant to judicial decree, shall not affect the
validity of enforceability of any other provision of this Agreement which shall
remain in full force and effect.
XIV. TITLES. Titles and headings have been provided in this Agreement for the
ease of the reader. They are in no way intended to change the meaning or
intent of the actual terms and provisions of this Agreement and cannot be
used or interpreted to change the meaning of any such term or provision.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
Management Company Name Here
Attest: __________________________ By: ______________________________
__________________________________
(Community name)
Attest: __________________________ By: ______________________________
President
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Management Company Name Here
2014 ATTACHMENT A-Schedule of Reimbursable Expenses
The following will be additional expense items reimbursed to MGTCO INITIALS
as services and fees not covered by the management fee as described more
fully in the “MANAGEMENT AGREEMENT”.
ITEM:
COST:
Copy Charge
$0.15 per copy
Postage-mass mailing
Actual cost
Mailing Labels
$0.10 per label
Bulk Rate Mailings (handling and
sorting)
$0.10 per item + postage
Mass Owner Emails
$0.15 per email
Excess Mass Mailings (more than 3
physical mailings per year)
$0.10 per item + postage
Pool Pass Distribution
$1.25 p/home – entire community
$2.25 per home--individuals
Opening New Bank or Investment
Accounts (over 3 accounts)
$25.00 each new account
Monthly Maintenance and Account
Reconciliation for Additional Bank
Accounts (over 3 accounts, excluding
CD’s)
$10.00 per month
Insurance Claim Handling
$125.00 per hour
Major Maintenance or Repair Project
Supervision (over $5,000)
10% of project cost
Court Time
$125.00 (3 hour minimum)
Charges added to individual homeowners for services performed:
Certified Delinquency Correspondence
$15.00 each
Delinquent Homeowner Title Research,
Lien Preparation Filing & Release
$150.00 each
Request for Notice of Foreclosure Sale
Form
$100.00 each
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Assessment Certificate
$35.00 each
FHA/FNMA or Veterans Administration
Certification Letters
$35.00 each
Resale Certificate
$250.00 each
Returned Check Charge
$20.00 each
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