COMMUNITY ASSOCIATION MANAGEMENT AGREEMENT

Transcription

1 COMMUNITY ASSOCIATION MANAGEMENT AGREEMENT This Community Association Management Agreement (the Agreement ) is made and entered into as of this day of, 20 by and between Trident Real Estate, Inc. ("Manager"), and Soleil at Fontainebleau Condominium Association, Inc located at 9721 Fontainebleau Boulevard Miami, FL (the Association ). The Manager and the Association are hereinafter collectively referred to as the Parties unless otherwise specified. RECITALS A. Association manages that certain parcel of real property together with the buildings and improvements thereon erected, known generally as Soleil at Fontainebleau Condominium Association, Inc and having the street addresses 9721 Fontainebleau Boulevard Miami, FL (the Association Property ); B. Manager is presently engaged and experienced in and has all licenses, permits and authorizations required for the operation, maintenance, and management of properties similar in nature to that of the Association Property; and C. Association desires to engage Manager as an independent contractor to operate, maintain and manage the Association Property, and Manager desires to accept such engagement, all subject to the terms and conditions of this Agreement; In consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree this Agreement is subject to the following terms and conditions, and by accepting this Agreement or any part thereof, the Parties agree and accept all of the following terms and conditions: TERM This Agreement shall become effective on, 20 and shall continue in full force and effect for 1 year thereafter unless otherwise terminated as provided herein. This Agreement shall automatically renew for additional one-year terms on the same covenants and conditions as are herein contained, unless either party hereto has given written notice of said party s election not to renew this Agreement and said notice is received by the nonterminating party at least 90 days prior to the conclusion of the term hereof or any renewal thereof. This Agreement shall be otherwise terminable only on the conditions and in the manner provided for herein.

2 SCOPE OF WORK The Association hereby engages the Manager exclusive of all other community association managers or management companies during the term of this Agreement, and the Manager agrees to manage the Association known as Soleil at Fontainebleau Condominium Association, Inc and Association Property located at 9721 Fontainebleau Boulevard Miami, FL The Association fully understands that the Manager functions as an agent of the Association as directed by the Association Board of Directors. The Manager reports to and takes direction from the Board of Directors who directly supervise the work of the Manager in the performance of the following duties: Manager will collect all monthly assessments, special assessments, and all other monies due from the members, and under the Association s authorization, request, demand, collect, and receive any and all charges or rents that may at any time be or become due to the Association and to take such action in the name of the Association by way of legal process or otherwise as may be required for the collection of delinquent monthly assessments. Such costs, legal and otherwise incurred shall be for the benefit of the Association, the costs of same to be borne by the Association without deduction from the Management Fee. The Manager shall be in charge of all collections. The manner of and extent of his efforts such as the decision to institute a lawsuit or to file a lien against a unit owner shall be at the sole discretion of the Association acting through its Board of Directors or legal counsel. All monies collected by the manager shall, upon receipt, be deposited in a mutually agreed upon bank account in the name of the Association. Management of Association finances, including assisting in the collection of delinquent accounts as that process is directed by the Board of Directors. This includes working with Association counsel and providing assistance in any foreclosure litigation in furtherance of the collections process. Assist in the selection and negotiation of all vendors, service, and repair contracts. The Manager may from time to time provide a list of contractors, vendors or service providers that are known to provide the needed services for the convenience of the Association. The Manager by providing such list makes no recommendation as to the suitability of the contractor or the work they will perform, and does not guarantee same. Subject to any limitations imposed by Association in this Agreement or otherwise, Manager shall cause the buildings, appurtenances and grounds of the Association Property to be maintained in accordance with standards acceptable to Association. Such maintenance includes but is not be limited to: (1) performing (or causing to be performed) interior and exterior (including parking area) cleaning, painting, decorating, plumbing, steam fitting, carpentry, roofing, maintenance of heating,

3 ventilating and air conditioning systems and such other normal maintenance and repair work as may be necessary; (2) investigating all necessary preventative maintenance programs, submitting to Association recommendations and proposals for such programs and performing such necessary preventive maintenance as shall be approved by Association; (3) purchasing supplies, materials and services; (4) subject to the prior written approval of Association, executing contracts in the name of Association for utilities, vermin extermination, cleaning service and other necessary and advisable services; (5) paying all bills in connection with such activities from the Operating Account (as defined in Section 2.20) and (6) regularly inspecting the physical condition of the Association Property to observe and log, among other things, the janitorial crews, exterior lighting and security at the Association Property. Manager shall employ, train and supervise such employees as are necessary for the operation, maintenance and management of the Association Property and discharge (or cause to be discharged) all persons unnecessary or undesirable to the operation, maintenance and management of the Association Property subject, in each instance, to the prior written approval of Association. Manager shall have in its employ at all times a sufficient number of capable employees to enable it to properly, adequately, safely and economically manage, operate and maintain the Association Property. All matters pertaining to the employment of such employees are the responsibility of Manager, who shall in all respects be the employer of such employees. At no time shall the employees of Manager and/or independent contractors and/or their employees be considered employees of Association. Manager shall fully comply with all local, state and federal labor and tax laws and regulations, including, but not limited to, workers compensation, social security, unemployment insurance, hours of labor, wages, working conditions and other employer-employee related subjects. Manager shall be responsible for the preparation of and shall timely make payments of all withholding and other payroll taxes with respect to its employees. This Agreement is not one of employment between Manager for Association, but one with Manager engaged independently in the business of managing the Association Property as an independent contractor. Assist the Association s Board of Directors in maintaining all required policies of insurance, and coverages at the amounts required by law, and as directed by the Board of Directors. Work in conjunction with the Association s accountant to provide all financial information needed by the Accountant for any and all legally required financial reporting and annual tax filings. Manager will supervise and instruct and all management employees working on the Association Property. Manager will hire and supervise on-site Association staff, including but not limited to maintenance, janitorial, security, valet, and all other

4 personnel in their daily responsibilities and obligations. Purchase all supplies and materials required at the Association s expense. Any expense over $1,000 to be approved by the Association in writing. Any emergency repairs immediately necessary for the preservation and safety of life and property or required to avoid suspension of any necessary service to the Association may be made by the Manager, irrespective of the cost limitation imposed by this paragraph, and the Manager will, if at all possible, confer as soon as practicable with the Association regarding every such expenditure. Failure of the Association to approve any expense for needed supplies or repairs absolves the Manager of any liability should the failure to approve the expense result in and damage to the Association property, unit owner property, or any other property or person. Assure that all Association contracts are performed as required by the Association s vendors, contractors and service providers, and report to the Board of Directors any failure to meet obligations by any service providers, contractors or vendors the Manager learns of. All official records relating to the Association Property shall be maintained at all times either at the Association Property or at the Records Location agreed upon by the Parties in writing. All such records shall be maintained in accordance with the law. Manager shall not dispose of any books or records relating to the Association Property, except upon receipt for the written approval of Association. Manager shall maintain such control over accounting and financial transactions as is required to protect Association s assets from theft, error or fraudulent activity. All official records and any other papers or the information contained therein which are in any manner connected with the operation of the Association Property are the sole property of Association and shall be delivered to Association at any time upon Association s request. Coordinate the enforcement of the Association s governing documents against Association Members that violate the provisions of same, taking direction from the Board of Directors as to the manner of enforcement. Prepare all meeting notices of all membership and Board of Directors Meetings. Provide draft minutes of all membership and Board of Directors meeting for approval. Have a representative present at any meeting of the Board of Directors or Membership of the Association as Directed by the Board of Directors. Maintain an updated roster of members. Respond in writing, within a reasonable time, to all written requests or complaints from members of the Association. A copy of each response will be provided to the

5 Board of Directors. Unless the Board of Directors has previously directed Manager as to Association policy with respect to the type of complaint received, or unless circumstances require an immediate response, all requests and complaints will be forwarded to the Board of Directors as soon as practicable upon receipt to allow the Board of Directors to direct the Manager as to the response desired. Prepare an annual operating budget and supporting documentation in coordination with Association s accountant, and the Board of Directors or any committee selected for that purpose, and submit same to the Association for review and approval not less than sixty (60) days prior to the end of the Association s fiscal year. Operate the Association Property according to the overall plan of the Association consistent with the direction of the Board of Directors and the approved budget. The Manager shall make every reasonable effort to see that all members are informed with respect to such rules, regulations and notices as may be promulgated by the Association. The Manager shall be expected to perform such other acts and deeds as are reasonable, necessary and proper in the discharge of its duties under this agreement. The Manager shall not be obligated to make any advance to or for the account of the Association, or to pay any sum, except out of funds provided by the Association and held by Manager for that specific purpose. Otherwise, the Manager shall not be obligated to incur any liability or obligation for the account of the Association, without a guarantee from the Association that the necessary funds for the discharge of same will be provided. OPTIONAL: At the Association s request, Manager can provide a handyman to perform minor repairs on the Association Property of the kind and nature that do not require or obligate the Association to acquire a permit from the local municipal government. Such services will be provided at an additional expense to the Association billed per hour as described herein. TERMINATION The Association may terminate this Agreement for cause, including, without limitation, any failure by Manager to observe or perform any or all of the covenants and provisions of this Agreement, and then only after giving the Manager notice of the breach of obligations and 60 days to cure the breach. The Manager may terminate this Agreement, with or without cause, upon 30 days prior written notice delivered to the Association. In the event a petition for bankruptcy is filed by or against either of the Parties, or in the event that either shall make an assignment for the benefit of creditors or take advantage of any insolvency act, either party hereto may forthwith terminate this Agreement upon

6 written notice to the other. Notwithstanding the receipt for notice from either Party terminating this Agreement, the Parties agree to use their best efforts in the management and operation of the Association Property and the performance of this Agreement until the effective date of the termination of this Agreement. RESPONSIBILITIES UPON TERMINATION Upon termination of this Agreement, Manager shall within 20 business days of the effective date of termination, deliver the following to the Association, or the Association s appointed agent: A final accounting reflecting the balance for income and expenses for the Association Property as of the date of termination; All files, official records or documents of any kind All Association Property in the Manager s possession. INSURANCE The Association shall maintain in full force and effect at all times the following insurance coverages: (a) Commercial general liability in broad form, and in such amount as Association may require from time to time, including, but not limited to, coverage for: (i) Liability arising out of the hazards of management of the Association Property, the utilization of independent contractors, and Association s or Manager s assumption of liabilities under any contract. All liability policies shall be maintained in the name of Association and shall contain a written provision providing Association, Manager and any other party designated by Association, not less than thirty (30) days prior written notice by certified mail, return receipt requested, of cancellation or reduction in coverage of said policies. All liability polices shall name Manager, any mortgagee or ground lessor of the Association Property or any other party designated by Association as an additional insured. (b) Property Insurance on All Risks covering all real and personal property owned by Association in an amount not less than the full insurable replacement value (foundations and uncovered portions excluded). (c) Such other insurance, including, but not limited to, flood, earthquake, directors and officers liability, hazard, collapse and/or sinkhole coverages as may be desirable or requested by Association, or required by law.

7 (d) Worker s Compensation as required by law in statutory amounts and Employers Liability coverages with limits of liability of not less then $500,000; and (e) Fidelity Bond coverages on a blanket basis covering Manager and all those of its employees who have access to or are responsible for the handling of Association s funds or tenant security deposits in such reasonable amount and having such deductible as shall be determined from time to time by Association. ACCOUNTS & LOCKBOX Association shall maintain an operating account or accounts in such banks as may be selected by the Manager, which accounts shall be in the name of, and the property of, Association and shall be solely for the deposit of monies belonging to Association and not for deposit of monies of Manager or others, and shall require for withdrawal of monies therefrom the authorized signature of Association (the Operating Account ). Manager shall set up and Association is obligated to use a payables lockbox system of assessment collection using a payables lockbox purveyor of the Manager s choice. USE OF COUNSEL AND OTHER PROFESSIONALS If assistance of any attorneys, architects, accountants, engineers or other professionals is necessary for any reason, Manager shall obtain such assistance from only such professionals as may have been approved by Association (which approval shall include the approval of all fee arrangements) after having first secured Association s authority for such specific engagement. Except in legal, administrative or other adversary proceedings as between Manager and Association, Manager shall cooperate with all other persons employed by Association in connection with the Association Property including, without limitation, Association s accountants in regard to the preparation and filing by Association of Federal, State, City or local municipal income or other tax returns or reports required by any governmental authority. INDEMNIFICATION Association shall indemnify and hold harmless Manager, its principals, officers, directors, agents and employees from and against any and all liability, claims, demands, reasonable expenses and fees, fines, suits, losses and causes of action of any and every kind or nature arising from or in any way connected with (a) any acts of Manager, its officers, agents or employees, outside the scope of Manager s authority as agent of Association, or (b) the breach of this Agreement by Manager, its officers, agents or employees. Manager shall defend, indemnify and hold harmless Association, its officers, agents and employees from and against any and all liability, claims, demands, expenses, fees, fines, suits, losses and causes of action of any and every kind or nature, arising from or in any way connected with (a) any acts of Manager, its officers, agents or employees, outside the scope

8 of the authority of Manager, or (b) the negligence, misconduct or breach of this Agreement by Manager or its officers, agents or employees. In addition, Manager shall indemnify and hold harmless Association from and against any damages, costs, claims or expenses arising from or in connection with any salary or pension liabilities which accrued during the term hereof to the extent Manager was responsible for the same (except to the extent such liabilities accrued as a result of the failure of Association to make payments pursuant to this Agreement). The mutual obligation to indemnify above shall include the payment of reasonable attorneys fees and investigation costs, as well as other reasonable costs and expenses incurred by the indemnified party in connection with such claim. At the option of, and upon receipt of notice from the indemnified party, the indemnifying party shall promptly and diligently defend any such claim, demand, action or proceeding. This section shall survive the termination of this Agreement. Manager shall deliver prompt written notice to the Association of the existence of any claim for which Manager is requiring Association s indemnification pursuant to the terms of this section, and Association shall deliver prompt written notice to Manager of the existence of any claim for which Association is requiring Association s indemnification pursuant to the terms of this section. COMPENSATION Association agrees to pay to Manager and Manager agrees to accept, as full and complete consideration for all undertakings herein provided or contemplated, the following compensation: (a) The Management Fee due to the Manager for each one-year term is $47,880.00, said shall increase by 4% upon the commencement of any renewal term. Association shall pay Manager one-twelfth (1/12th) of the Management Fee each month for its services in managing the Association Property during the immediately preceding month in accordance with the terms and conditions of this Agreement. Such payment shall be made by automatic bank payment on the monthly due date. There shall be an 18% per annum late charge applied to any invoice not paid within thirty (30) days of issuance due monthly. Further, Manager in its sole discretion shall have the right to suspend services after thirty (30) days of non-payment until such time as payment of all outstanding amounts owed by Association to Manager is received by Manager. (b) Association shall pay as an expense of operation of the Association Property only the following specific expenses: Cost of all printed forms, notices, checks, invoices, purchase orders, stationery, envelopes, etc. for the exclusive use of the Association Property, required for compliance with the terms of this Agreement or requested by Association; Cost of electronic data processing and related computer service costs for reports not

9 required by this Agreement, but specifically requested in writing by Association; Long Distance telephone costs related to the operation and maintenance of the Association Property; postage, delivery and photocopying costs related to the operation and maintenance of the Association Property; Mailing expenses, including the costs of envelopes, stationary and postage; and Unless otherwise specifically provided herein, all other office expenses of any nature or kind shall be the sole responsibility of Manager. (c) The Management Fee described above is exclusive of any and all rental management services required by the Association. Should the Association require Manager to manage units that the Association rents in the ordinary course of business, or should the association collect rents from unit tenants as part of its collections program, the Manager shall be paid 10% of all collected funds on the Association s behalf in addition to the Management Fee paid by the Association. (d) The Management Fee described above is exclusive of the selection and use of the Manager Handyman as described above. Use of the Manager Handyman will be billed to the Association monthly on a per hour basis for services rendered in the immediately preceding month. The Handyman will charged at a rate of $35 per hour subject to modification at the Manager s discretion with at least 30 days written notice to the Association. (e) During the term of this Agreement the Association may enter into litigation against third parties as a Plaintiff or Defendant. If it becomes necessary for the Manager to provide any services other than the provision of official records as directed by the Association, Manager may at it s option charge the Association a $75 per hour legal coordination fee for the appearance of its employees or agents at any deposition, trial, legal proceeding, or assistance in responses to discovery requests. Such legal coordination fee will be billed monthly in addition to the Management Fee. (f) The Parties acknowledge that at some time during the term of this Agreement the Association may require assistance with any major projects other than the normal day-today operations. Manager may be called upon to perform extraordinary services for the Association beyond the scope of their management function contracted under this Agreement. One of these extraordinary services is to assist and support insurance adjusters in the preparation of the Association s claims for coverage under property insurance policies. Manager agrees to provide extraordinary support services to the insurance adjusters handling the Association s claims in the event of hurricane or other Acts of God, or any major projects other than the normal day-to-day operations which will likely require intensive use of human and other resources beyond those normally dedicated by Manager under their contracted management function. The Parties acknowledge and recognize that Manager s available human and other resources will be heavily in demand during occurrences such as hurricane and other Acts of God, or any major projects other than the

10 normal day-to-day operations and that Manager will use its best efforts to promptly assist and support the insurance adjusters in their preparation of the Association s insurance claims. The Parties agree that the aforesaid extraordinary services required by the Association from Manager in the event of hurricane or other Acts of God, or any major projects other than the normal day-to-day operations shall be compensated on the basis of five percent (5%) of the value of the claim and/or contracts entered into (reconstruction, painting, etc.). This five percent (5%) fee is in addition to the contracted monthly management fee. The compensation payable to Manager pursuant to this Section may be paid by Manager to itself from the Operating Account and shall constitute the only compensation payable by Association, or any other party, to Manager for the services rendered by Manager or to be rendered by Manager pursuant to this Agreement or otherwise in connection with the operation, maintenance and management of the Association Property. All office expenses, salaries or any other costs or obligations incurred by Manager in the performance of its duties hereunder shall be borne solely by Manager. No payments shall be made from the Operating Account as compensation pursuant to this Section, or otherwise, except as authorized in writing by Association. NOTICES Any and all notices required or which either party herein may desire shall be given by certified or registered mail, postage prepaid, return receipt requested, or by recognized overnight courier, such as Federal Express or Airborne Express, and shall be deemed to be given on the third business day following the date for posting in a United States Post office or branch post office or one day after delivery to the overnight courier, and shall be addressed to Association s notice address or Manager s notice address. Either party may designate a different address or addresses for communications intended for it. RELATIONSHIP Notwithstanding anything to the contrary contained herein, Manager shall be an independent contractor performing management functions for Association but shall, at all times, be subject to the provisions of this Agreement with respect to managerial decisions. All records maintained by Manager with respect to the operation, leasing or maintenance of the Association Property shall, at all times, be and constitute the property of Association and shall be surrendered to Association in accordance with the terms hereof, without charge or expense. Nothing herein shall create an agency coupled with an interest. INSUFFICIENT INCOME If at any time the cash in the Operating Account from the Association Property shall not

11 be sufficient to pay the bills and charges which may be incurred with respect to the Association Property, Manager shall notify Association immediately of such condition or the potential of such condition. The Manager is not liable to the Association for the inability to make payments to vendors, or others, on the Association s behalf because of insufficient funds. COMPLIANCE WITH EQUAL OPPORTUNITY LAW AND REGULATIONS During the term of this Agreement, Manager and anyone authorized to act for Manager shall comply with the provisions of Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063; titles VI and VIII of the Civil Rights act of 1964 and where applicable, Executive Order 11246, as amended, and all applicable state and local laws. Neither Association, Manager nor anyone authorized to act for such parties shall, in the rental, lease or sale, in the provision of services or any other manner, discriminate against any person on the grounds of race, color, creed, religion, sex, national origin, or any other basis prohibited by law. AMENDMENT This Agreement contains the entire agreement of the parties and any attempt to change or modify the terms hereof shall be null and void, unless approved and agreed to in writing by Association and Manager. All prior agreements and understandings are hereby agreed to be null and void. STATE AND LAW This Agreement shall be construed, interpreted and applied in accordance with, and shall be governed by, the laws applicable in the jurisdiction where the Association Property is located. ASSIGNMENT Manager shall not assign this Agreement or any right hereunder without the prior written consent of the Association. The transfer of a majority interest of the voting stock or general partnership interests in Manager or any material change in the individuals having operating responsibility for Manager shall be deemed an assignment of this Agreement. CONSTRUCTION The plural may include the singular and the singular may include the plural and this Agreement shall be interpreted in this regard as the context may require. WAIVER The waiver of any terms and conditions of this Agreement on any occasion or occasions shall not be deemed as a waiver of such on any future occasions.

12 DIVISIBILITY In the event any article, section or paragraph of this Agreement is deemed illegal or unlawful, the same shall be struck from this Agreement and all other articles, sections or paragraphs shall remain valid and in full effect. JURY TRIAL WAIVER & ATTORNEYS FEES Association and Manager hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other in respect of any matter arising out of or in connection with this Agreement. In the event it becomes necessary to institute legal action to enforce the terms of the Agreement, the prevailing party shall be entitled to recover reasonable legal costs and attorney s fees. MANAGEMENT EMPLOYEES It is understood that the Association will not hire directly or indirectly any employees hired by Manager, should this Agreement be terminated, for a period of one year from date of termination. This would include any employee hired by a subsequent management company or manager, working or assigned to the Association Property or for the Association. Should the Association wish to utilize any employee previously on Manager s payroll, directly or indirectly, within one year from the date of termination of this Agreement, Association agrees to pay Manager a one-time charge of twenty five thousand ($25,000.00) per employee. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Soleil at Fontainebleau Condominium Association, Inc. Trident Real Estate, Inc. By: Title: Jason Schoenholtz Title: Director