Traditional Property Management and Brokerage Agreement
This “TRADITIONAL” RESIDENTIAL PROPERTY MANAGEMENT AND BROKERAGE AGREEMENT (the “Agreement,” or “PMA”), is entered into as of the Effective Date as indicated on the Signature Page as defined below (the “Effective Date”), by and among the Owner(s) as indicated on the Signature Page as defined below (the “Owner”) and HOME365 PROPERTY MANAGEMENT, as defined in Exhibit A (“Property Manager”) by and through its authorized agent as stated in Exhibit A (the “Broker” or the “Agent”), together with Home365 signature page (the “Signature Page”), attached hereto and incorporated by this reference herein, for the management of the property or properties as indicated on the Signature Page (the “Property” or “Properties”). In consideration of the mutual covenants, promises and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree, confirm and reaffirm the following:
Any notice, demand, or communication required or permitted to be given by any provision of this Agreement, or is given in connection with this Agreement, shall be in writing, and shall be deemed to have been sufficiently given or served if (i) sent by overnight courier; (ii) mailed by certified first-class mail, postage prepaid, return receipt requested; (iii) sent by e-mail transmission, or (iv) sent by facsimile. The parties hereto agree that all such notices shall be delivered to the addresses specified below, or in the Signature Page, provided that any party may change its address by giving written notice to the other parties to that effect, per this Section I.
If to Owner(s):
See Signature Page.
If to Property Manager:
800 New Holland Ave, 2nd Floor Rear, Lancaster, PA 17602
A written notice shall be effective on the date that such notice is sent, mailed, or faxed, whichever is sooner. No objection shall be made by any party as to the manner of delivery of any notice if actual receipt is acknowledged in writing by an authorized agent of the opposing party.
2. EMPLOYMENT OF MANAGING BROKER/DESIGNATED PROPERTY MANAGER.
A. Employment and Acceptance. Owner employs Property Manager as the sole exclusive agent of Owner to lease and manage the Property which includes listing the Property for lease and securing a tenant (each a “Tenant”), upon the terms and conditions provided herein. Property Manager accepts the employment and shall furnish the services provided for in this Agreement (the “Services”). Owner shall pay all of the expenses in connection with this service described herein. Owner understands and agrees that Services will be performed through one or more authorized agents, and any reference to Property Manager in this Agreement includes such authorized agents.
B. Relationship of Property Manager to Owner. The relationship of the Parties to this Agreement shall be that of principal and agent. Except as expressly agreed herein, all duties to be performed by Property Manager under this Agreement shall be on behalf of Owner, in Owner’s name, and for Owner’s account. In taking any action under this Agreement, Property Manager shall be acting only as agent for Owner, and nothing in this Agreement shall be construed as creating a partnership, joint venture or any other relationship between the Parties or as requiring Property Manager to bear any portion of losses arising out of or connected with the ownership or operation of the Property. Property Manager shall not at any time during the period of this Agreement be considered a direct employee of Owner. Property Manager, under this Agreement, shall not be responsible for delays in the performance of any obligation unless there is an intentional delay caused by Property Manager or its agents and employees.
C. Term. The term of this Agreement shall be for an initial period of 1 (One) years (the “initial term”) as stated in the Signature Page. Unless earlier terminated as provided in This Agreement 19, or converted to Property Manager’s OneRate agreement, the Agreement will automatically renew annually for successive periods of one (1) year each.
D. PROPERTY MANAGER COMPENSATION AND EXPENSES. As compensation for the Services rendered by Property Manager under this Agreement (and exclusive of reimbursement of the expenses to which Property Manager is entitled hereunder), Owner shall pay Property Manager as follows:
(1) Management Services. Property Manager shall be paid as indicated in the Signature Page. (“Rent” or “Rents”) Payments due to the Property Manager for periods of less than the scheduled rental periods shall be prorated. If the Property is vacant and until the Property is leased, a vacant property fee shall be paid to the Property Manager in the following amount: $0.00 per month of vacancy.
(2) Leasing Fee. For the procurement of a Tenant(s) for whom a lease (the “Lease”) is signed, Property Manager shall be paid 50% of the monthly Rent.
(3) Referral Commission. Owner also authorizes payment of an MLS referral commission to the referring broker not to exceed $250.00. Owner shall pay the commission within thirty (30) days of the commencement of the Lease. Owner understands and agrees that such commission will be paid to any real estate broker (including Property Manager leasing staff) who brings a qualified Tenant that results in a signed Lease.
(4) Lease Renewals. For Lease renewals, Broker shall be paid a renewal fee of $200.00.
(5) Advertising. Owner agrees to pay in advance for any and all advertisements placed on Owner’s behalf. The minimum advertising fee is $150.00. Unless specified by Owner in writing, Owner agrees that all advertising (including choice of media) shall be made in the Property Manager’s sole discretion.
(6) Interest on Unpaid Sums. Any sums due to Property Manager under the terms of this Agreement, and not paid within 30 days after such sums have become due, shall bear interest at the rate of 10.00% per annum.
(7) Extraordinary Services. An hourly fee of $30.00 per hour shall be paid to Property Manager for all necessary or requested tasks, not considered regular management duties. These include attendance at eviction or other court proceedings, HOA meetings, HOA compliance hearings (including Ombudsman hearings), or any other related activity not considered regular management duties.
(8) Termination Fees. Additional fees may be due upon Termination of this Agreement as set forth herein.
(9) Collection Fees. If Property Manager institutes any action for the collection of amounts due and payable hereunder, Owner shall pay, in addition to the amounts due and payable under this Agreement, all reasonable costs and attorney’s fees incurred by Property Manager in connection with collecting under this Agreement.
(10) Termination through Property Sale. Owner agrees that if it or any of its Affiliates offers any of the Properties covered by this Agreement for sale or other disposition or transfer, it will hire Broker to act as seller’s exclusive broker and listing agent on behalf of Owner at a standard real estate broker’s commission for such properties, and without precluding Property Manager or its Affiliates from acting as buyer’s broker in a dual representation. Should Property Manager not be appointed on an exclusive basis then Owner shall pay Property Manager, a fee of one three quarters of one percent (0.75%) of the Property’s sales price including any carryback amount, in addition to any other broker or listing fees it may agree with the Property Manager. For this additional fee, the Property Manager will provide necessary financial, banking, reporting, and repair and maintenance documents, as well as inspection and insurance information if any, rent roll, and accommodate and assist with showings. The fee owed by the seller to the Property Manager shall be part of the closing statement and shall be paid as a condition to the closing of escrow.
E. BANK ACCOUNTS
(1) Trust Accounts. Property Manager shall establish a separate Trust Account, apart from any company or corporate account, for the deposit of collected receipts in an institution whose deposits are insured by the federal government. Property Manager shall select such a depository in its sole discretion. Designated funds relating to the Property in the Trust Account remain the property of Owner subject to disbursement of expenses by Property Manager as described in this Agreement. Property Manager will retain any interest accrued on this account.
(2) Initial Deposit and Reserve. Immediately upon commencement of this Agreement, Owner shall remit to Property Manager the sum of [$200.00] per Property, as a reserve. Owner shall maintain the reserve stated above at all times in the Trust Account to enable Property Manager to pay the obligations of Owner under this Agreement as they become due. Property Manager shall notify Owner if additional reserve funds are required.
(3) Property Manager is not required to advance funds.To decrease the time of vacancy of any Property, and for other business and marketing considerations to the mutual benefit of the Parties, Property Manager shall be entitled in its sole and absolute discretion to determine the Tenant’s obligations regarding a Security Deposit, including without limitation, the amount of the Security Deposit, the timing of the payment of a Security Deposit, and/or not requiring a Tenant to provide a Security Deposit at all, but instead to pay increased Rent, and other options that Property Manager may develop from time to time. If it alters the Security Deposit obligation of Tenant in any way, Property Manager shall be entitled to any excess payment, which will usually be via higher Rent. In cases where a Security Deposit is not required, Property Manager’s decision shall neither reduce nor waive the Tenant’s obligations to pay for any damages resulting from any breach of the Lease by the Tenant, nor shall it otherwise impair the Property Manager’s obligations under this Agreement or local law. However, in exchange for this promise of reimbursement, Property Manager’s total limit of liability under this paragraph shall be limited to one month’s Base Rent, and without that cap, Property Manager would not accept this reimbursement obligation. However, if this Agreement is terminated for any reason, Property Manager’s reimbursement obligation shall cease, but Owner may, as negotiated by the Lease, in its sole discretion, give written demand to Tenant to place the full Security Deposit.
(4) Security Deposit Trust Account. If any Security Deposit is collected from a Tenant (“Security Deposit “) Property Manager shall deposit it into Property’s Manager’s Security Deposit Trust Account and disburse it in accordance with NRS Chapter 118A. Any interest earned on a Security Deposit shall be retained by Property Manager.
F. COLLECTION OF RENTS AND OTHER RECEIPTS
(1) Property Manager’s Authority. Except as expressly provided in this Agreement, including under sub-sections (3) & (4) below, Property Manager shall collect all Rents, charges and other amounts receivable on Owner’s account in connection with the management and operation of the Property, and shall be deposit those in the Trust Account.
(2) Special Charges. If permitted by applicable law, Property Manager may collect from Tenant and retain any and or all, but not limited to the following: an administrative charge for late payment of Rent, a charge for returned or non-negotiated checks, interest, a rental application fee and any other fees as determined by Property Manager. Late fees will be retained by Property Manager.
(3) Disclosure regarding Security Deposit Requirements. To decrease the time of vacancy of any Property, and for other business and marketing considerations to the mutual benefit of the Parties, Property Manager shall be entitled in its sole and absolute discretion to determine the Tenant’s obligations regarding a Security Deposit, including without limitation, the amount of the Security Deposit, the timing of the payment of a Security Deposit, and/or not requiring a Tenant to provide a Security Deposit at all, but instead to pay increased Rent, and other options that Property Manager may develop from time to time. If it alters the Security Deposit obligation of Tenant in any way, Property Manager shall be entitled to any excess payment, which will usually be via higher Rent. In cases where a Security Deposit is not required, Property Manager’s decision shall neither reduce nor waive the Tenant’s obligations to pay for any damages resulting from any breach of the Lease by the Tenant, nor shall it otherwise impair the Property Manager’s obligations under this Agreement or local law. However, in exchange for this promise of reimbursement, Property Manager’s total limit of liability under this paragraph shall be limited to one month’s Base Rent, and without that cap, Property Manager would not accept this reimbursement obligation. However, if this Agreement is terminated for any reason, Property Manager’s reimbursement obligation shall cease, but Owner may, as negotiated by the Lease, in its sole discretion, give written demand to Tenant to place the full Security Deposit.
(4) Other Charges May Be Assessed to Tenant and Retained by Property Manager. From time to time in Property Manager’s sole discretion, it may charge Tenant for optional services or products e.g., Internet access, security monitoring, appliance reporting, and remote access, “smart home” features, and others as technology and Tenants’ requests develop over time. Property Manager may include charges for such services or products in the Lease as part of Rent or Additional Rent, or separately in an agreement with Tenant, and may brand the same under Property Manager’s name or a different name altogether. In all such instances, Owner grants Property Manager or its Affiliate, in their sole discretion, the right to offer, provide, and charge for such services and products as they see fit. No portion of any amount collected by Property Manager shall belong to Owner, and all such amounts shall belong solely to Property Manager and/or its Affiliate, and specifically, no amount collected under this paragraph by Property Manager or its Affiliate shall alter or increase the Rent Guarantee amount agreed to by the Parties.
G. DISBURSEMENTS OF RENTS AND OTHER RECEIPTS
(1) Operating Expenses. From the Trust Account, Property Manager is hereby authorized to pay for all expenses and costs of operating the Property and for all other sums due to Property Manager under this Agreement, including Property Manager’s compensation.
(2) Debt Service. If Owner and Property Manager mutually agree in writing, Owner shall give Property Manager advance written notice of at least thirty (30) days to make any additional monthly or recurring payments (such as mortgage indebtedness, general taxes, special assessments or insurancepremiums) out of Owner’s proceeds from the Property. If Owner notifies Property Manager to make such payments after the beginning of the term of this Agreement, Property Manager shall have the authority to name a new contingency reserve amount, and Owner shall maintain this new contingency reserve amount at all times in the Trust Account.
(3) Net Proceeds. To the extent that funds are available and after maintaining the cash contingency reserve amount as set forth above, Property Manager may transmit the cash balances to Owner or as otherwise directed by Owner in writing. Net proceeds are defined as the amount after all costs and expenses are deducted by Property Manager. Property Manager may deduct from the Property’s gross proceeds such reserves and any amounts it, in its sole discretion, needs to be withheld for future expenses or contingencies, including possible vacancy or rent abatement or limitation.
H. FINANCIAL AND OTHER REPORTS
(1) Owner/IRS Relationship. Owner is required to file all required Internal Revenue Service (IRS) forms and meet all IRS requirements. Owner agrees to provide Property Manager with appropriate IRS forms (e.g., W-9) before any funds are disbursed to Owner. Property Manager shall submit appropriate forms as required by the IRS at the conclusion of each calendar year.
(2) Reports. Property Manager will, monthly or as soon thereafter as practicable, furnish Owner with a statement of cash receipts and disbursements from the operation of the Property. In addition, Property Manager will, on a mutually acceptable schedule and an agreed cost, prepare and submit to Owner such other reports as are agreed on by both Parties.
(3) Foreign Investments In Real Property Tax Act (FIRPTA). Pursuant to the Internal Revenue Code 44 Section 1441, the deduction of a withholding tax on all fixed or determinable gross income shall be required of any non-resident alien individual, fiduciary, foreign partnership, or foreign corporation unless exempt under provisions provided under said IRS Section. If Owner is a non-resident alien individual, fiduciary, foreign partnership or foreign corporation, Property Manager will require a written statement pursuant to the controlling IRS Code Section.
(1) Authority. Property Manager is authorized to negotiate, prepare and sign all Leases, including all renewals and extensions of Leases and to cancel and modify existing Leases for Owner. All costs of leasing shall be paid out of the Property Trust Account. Leases are to be written on Property Manager’s standard Lease forms.
(2) Forfeited Holding Fee. Property Manager may collect from a potential Tenant a holding fee, in exchange for an agreement to reserve the Property for Applicant and take the Property off the rental market for a period of time as set forth and governed by a holding fee agreement. In the event the applicant fails to enter into a Lease, and the holding fee is forfeited, it will be retained by Property Manager.
(3) Enforcement of the Leases. Property Manager is authorized to institute, in Owner’s name, all legal actions or proceedings for the enforcement of any Lease term, for the collection of Rent or other income from the Property, or for the eviction or dispossession of the Tenants or other persons from the Property. Property Manager is authorized to sign and serve such notices as Property Manager deems necessary for Lease enforcement, including the collection of Rent or other income. If Property Manager deems it necessary, Property Manager may retain an attorney of Property Manager’s choice (unless Owner objects in writing to Property Manager’s choice). Owner shall pay all attorney’s fees and court costs for such action(s).
a. Management/Maintenance Review. Property Manager shall make management/maintenance reviews of the Property at the time of occupancy, when the Tenant vacates and at such other times as Property Manager feels necessary or advisable and report matters concerning the condition of the Property to Owner. In the event of a vacancy, Property Manager will take reasonable precautions to secure the Property.
b. Owner does authorize Property Manager to install a key box (electronic -OR- mechanical) in connection with the showing of the Property. A mechanical key box is a combination-type box that can be opened by anyone who has access to the combination/code. The MLS requires that a valid working code for a mechanical key box be included in the listing for ease of showing. The code is a confidential field that is not intended to be available to the public. Owner acknowledges that they have been advised that:
The purpose and function of the key box is to permit access to the interior of the Property by all members of local MLS as well as any licensed professionals necessary to facilitate the sale of the Property;
Owner should safeguard Personal Property and valuables located within the Property;
It is not a requirement of the local MLS for an Owner to allow the use of key box;
Where a Tenant occupies the Property, the Tenant’s consent is also required, which shall be obtained by the Owner or the Property Manager;
Owner does authorize Property Manager to issue “One Day Codes” to access the electronic key box installed on the Property. A “One Day Code” is an electronic means to allow access to the key box key compartment. Property Manager shall only issue such codes to licensed professionals. Property Manager further agrees to use all reasonable means to verify the identity of said licensed professionals.
Owner acknowledges that GLVAR, the MLS, Property Manager, or its Listing Agent is not insuring Owner or occupant against theft, loss or vandalism resulting from such access. Owner is responsible for taking such steps as may be necessary to secure and protect the Property during any time that a key box is being used and obtaining appropriate insurance.
J. MULTIPLE LISTING SERVICE (MLS): Owner acknowledges that Property Manager is a participant of the Multiple Listing Service (“MLS”), and therefore that the Properties will be published and disseminated to the MLS participants in accordance to the MLS’s own rules and regulations.
(a) Owner hereby authorizes Property Manager to cooperate with other real estate professionals and to report any information regarding the Lease Agreements, including price, duration, and terms thereof, for publication, dissemination, information, and use by other GR members and MLS participants.
(b) Owner understands and acknowledges that MLS will disseminate the Property’s information to other MLS participants, as well as online websites such realtor.com, and that such information is generally available to the public. Owner recognizes that some of these websites may include a commentary section where consumers may include reviews and comments about the Property, or an automated estimate of the market value of the Property.
K. OWNER OPT OUTS: Owner further understands and acknowledges that MLS will disseminate the Property’s listing information to those MLS brokers and agents (and/or their web vendors) who operate Internet sites, as well as online providers such as realtor.com and that such sites are generally available to the public. Some, but not all, of these websites may include a commentary.
section where consumers may include reviews and comments about the Property in immediate conjunction with the listing (blogging) or provide a link to the comments. In addition, some, but not all, of these websites may display an automated estimate of the market value of the Property in immediate conjunction with the listing or provide a link to the estimate.
L. REASONABLE MAINTENANCE AND REPAIR
(1) Ordinary/Emergency Maintenance Repair. Owner shall be responsible for making or causing to be made, through Property Manager, or otherwise, repairs and replacements reasonably necessary to preserve the Property in a habitable condition, to operate the Property efficiently, and all alterations required to comply with Lease requirements, governmental regulations or insurance requirements. Any cost exceeding $199.00 must be approved by Owner in advance, with the following exceptions (1) in an emergency where repairs are immediately necessary for the preservation and safety of the Property, (2) to avoid the suspension of any essential service to the Property, (3) to avoid danger or life of Property, or (4) to comply with federal, state or local law. Owner hereby expressly authorizes Property Manager to assist in scheduling work to repair or maintain the Property. Both Parties acknowledge that the Property Manager will not receive any additional compensation for this assistance. Both Parties further acknowledge that this authorization is only valid for work that does not require a building permit or does not exceed $10,000.00 every six months.
(2) Smoke Detectors. At Owner’s expense, smoke detectors will be installed on the Property in working condition in accordance with the law prior to the Tenant’s occupancy. During the occupancy, it shall be the Tenant’s responsibility to maintain all smoke detectors. Owner will replace smoke detector equipment as needed.
M. UTILITIES AND SERVICES. Owner shall, in Owner’s name and at Owner’s expense, negotiate for the provision of electricity, gas, or water and such other services as necessary or prudent for the operation of the Property. All utility charges and deposits shall be Owner’s responsibility. Owner authorizes Property Manager to communicate with the respective utility companies and service providers and make changes to services as Property Manager deems necessary during the term of this Agreement.
Should at any time a Tenant fails to maintain utilities and essential services, Owner shall be responsible for any and all related costs.
(1) Owner’s Insurance. Owner shall obtain and keep in force adequate insurance against damage and against liability for loss, damage, or injury to property or persons, which might arise out of the occupancy, management, operation, or maintenance of the Property. Said insurance shall comply with applicable local law. The deductible required under such insurance policies shall be Owner’s expense. Property Manager shall be named as an additional insured on all liability insurance maintained with respect to the Property and provide proof of same within fifteen days (15) of the execution of this Agreement. Liability insurance shall be in form, substance, and amounts reasonably satisfactory to Property Manager, but not less than $500,000 (five hundred thousand dollars). Owner shall provide Property Manager with proof of fire insurance policies in force and shall obtain adequate vandalism coverage for the Property. Owner shall furnish Property Manager with a certificate evidencing fire and liability insurance or with duplicate copies of such policies within fifteen days (15) of the execution of this Agreement. Such policies shall provide that notice of default or cancellation shall be sent to Property Manager as well as Owner and shall require a minimum of thirty (30) days written notice to Property Manager before any cancellation of or changes to such policies.
(2) Tenant’s Insurance. Tenants shall be required to obtain renters insurance.
(3) SAVE HARMLESS. Owner shall indemnify, defend and save Property Manager harmless from any and all loss, investigation, suits, damage, cost, expense (including attorney’s fees) liability or claims incurred or occurring in, on, or about the Property.
(4) BROKER/DESIGNATED PROPERTY MANAGER ASSUMES NO LIABILITY. Property Manager assumes no liability for any damages, losses, or acts of omission by the Tenant. Property Manager assumes no liability for any acts or omissions of Owner or any previous owner or previous brokers. Property Manager assumes no liability for default by any Tenant. Property Manager assumes no liability for violations of environmental or other regulations that may become known during the term of this Agreement. Any such regulatory violations or hazards discovered by Property Manager shall be brought to the attention of Owner, and Owner shall promptly cure them. Property Manager shall not be liable in the event of bankruptcy or failure of the depository bank where Owner’s funds are deposited.
O. OWNER’S RESPONSIBILITY FOR EXPENSES OF LITIGATION.
(1) Litigation and Compliance Expenses. Owner shall pay all fines, penalties, or other expenses in connection with any claim, proceeding or suit involving an alleged violation related to the Property, including but not limited to, any law pertaining to fair employment, fair credit reporting, environmental protection, rent control taxes or fair housing, including illegal discrimination on the basis of race, sex, color, religion, national origin, physical handicap, familial status, elderliness or all other protected classes; provided, however, that Owner shall not be responsible to Property Manager for any such expenses if Property Manager is finally adjudged in a court of law to have itself, and not in a representative capacity, violated any such law, etc. Nothing contained in this Agreement shall obligate Property Manager to employ legal counsel to represent Owner in any such proceeding or suit, ad all costs of such litigation shall be borne solely by Owner.
(2) Fees for Legal Advice. Owner shall pay reasonable expenses incurred by Property Manager in obtaining legal advice regarding compliance with any law affecting the Property. If such expenditure also benefits other principals of Property Manager, Owner shall pay an apportioned amount of such expense.
P. OWNER REPRESENTATIONS
(1) Owner Representations. Owner represents and warrants that Owner has full power and authority to enter into this Agreement; that there are no written or oral agreements affecting the Property other than the Lease; that there are no recorded easements, restrictions, reservations or rights of way which adversely affect the use of the Property for the purposes intended under this Agreement; that the Property is zoned for the intended use; that all permits for the operation of the Property have been secured and are current; that the building and its construction and operation do not violate any applicable statutes, laws, ordinances, rules, regulations, orders or the like; and that the information supplied by Owner is dependable and accurate. OWNER REPRESENTS THAT ANY LOANS, NOTES, MORTGAGES, TAXES, DUES, UTILITIES OR TRUST DEEDS ARE PAID AND ARE CURRENT WITHOUT DEFAULTS; and that any future defaults on any loans, mortgages, dues, utilities or trust deeds will be reported to Property Manager within fourteen (14) business days of Owner’s receipt of Notice of Default (which commences foreclosure proceedings). OWNER FURTHER REPRESENTS THAT NO LIENS OF ANY TYPE (INCLUDING HOA AND OTHER SUPER PRIORITY LIENS) HAVE BEEN RECORDED AGAINST THE PROPERTY. OWNER UNDERSTANDS THAT OFFERING A PROPERTY FOR LEASE WHILE THE PROPERTY IS IN ANY FORECLOSURE PROCEEDINGS, WITHOUT WRITTEN DISCLOSURE, IS A DECEPTIVE TRADE PRACTICE PUNISHABLE BY BOTH A CIVIL FINE AND CRIMINAL PROCEEDINGS.
(2) Multiple Listing Service. No Multiple Listing Service or Association of REALTORS® is a Party to this Agreement and no Multiple Listing Service or Association of REALTORS® sets, controls, recommends, or suggests the amount of compensation for any service rendered according to this Agreement.
(3) COMMON INTEREST COMMUNITY. If the Property is located within a Common Interest Community (CIC), Owner understands and agrees that Property Manager is not involved in and has no control over the CIC. OWNER UNDERSTANDS THAT THE CIC’S DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (CC&RS) MAY RESTRICT THE LEASING OF THE PROPERTY, AND IT IS OWNER’S SOLE RESPONSIBILITY TO DETERMINE WHETHER THE PROPERTY IS SO AFFECTED. Property Manager assumes no liability for any costs associated with a Tenant’s move-out. Property Manager assumes no liability for understanding or complying with the CC&Rs, and has no responsibility for any future amendments or additions to the CC&Rs. Owner remains solely responsible for assessments, violations, and fines/fees payable to the CIC and agrees to reimburse Property Manager for any such assessments, fines, or fees which Property Manager may pay on Owner’s behalf. Any subsequent and separate notice which identifies Property Manager as Owner’s property manager will not affect the terms of this Section.
A. Early Termination. This Agreement may be terminated by Owner before the termination date specified in above by written notice to Property Manager not less than thirty (30) days prior to the termination date specified in such notice, together with a cancellation fee in the amount equal to the management fee that would accrue over the remainder of the stated Term of any existing Lease or this Agreement, whichever is longer. For this purpose, the monthly management fee for the remainder of the stated term of the existing Lease shall be presumed to be the same as that of the last full calendar month prior to service of Owner’s notice of cancellation. In the event Owner directs Property Manager to transfer files and documents to a succeeding management company, Owner will pay Property Manager a transfer fee of $200.00 per Property. This Agreement may be terminated by Property Manager before the termination date specified above upon (thirty) 30 days’ written notice to Owner. Within ten (10) days of the termination date, Owner will pay Property Manager all monies due under this Agreement via certified funds. Should this Agreement be terminated by either Party prior to leasing the Property, Property Manager is entitled to retain the Set-Up Fee, and Owner shall reimburse Property Manager in certified funds for the actual cost of any expenses incurred relative to the Property within ten (10) days of receipt of accounting of said expenses. If this Agreement is terminated prior to leasing the Property, Owner agrees to pay an additional cancellation fee of $250.00 in certified funds.
B. Owner Responsible for Payments. Upon termination of this Agreement, Owner shall assume the obligations of any contract or outstanding costs incurred by Property Manager under this Agreement and/or for the Property. Property Manager may withhold funds for thirty (30) days after the end of the month in which this Agreement is terminated in order to pay bills previously incurred, but not yet invoiced and to close accounts. Property Manager, after paying all debts of the Property and per this Agreement, including all amounts owed to Property manager, shall deliver to Owner, within thirty (30) days after the end of the month in which this Agreement is terminated, any balance of monies due Owner or Security Deposits, or both, which were held by the Property Manager with respect to the Property, as well as a final accounting reflecting the balance of income and expenses with respect to the Property as of the date of termination or withdrawal. If, after termination.
C. Leasing Fee Survives. In addition to the amounts specified in paragraph A of this Section, if Owner terminates this Agreement before the termination date set forth above, or before the Property is leased, and within thirty (30) calendar days of the termination the Property is leased to anyone with whom the Property Manager has had negotiations or to whom the Property was shown prior to the termination, Property Manager shall be paid the Leasing Fee and referral commission set forth above.
D. INDEMNIFICATION SURVIVES TERMINATION. All representations and warranties of the Parties contained herein shall survive the termination of this Agreement. All provisions of this Agreement that require Owner to have insured or to defend, reimburse or indemnify Property Manager shall survive any termination. If Property Manager becomes involved in any proceeding or litigation by reason of having been Owner’s Property Manager, such provisions shall apply as if this Agreement were still in effect.
A. Rights Cumulative; No Waiver. The exercise of any right or remedy provided in this Agreement shall not be an election of remedies, and each right and remedy shall be cumulative. The failure of either Party to this Agreement to insist at any time upon the strict observance or performance of any of the provisions of this Agreement, or to exercise any right or remedy provided in this Agreement, shall not be construed as a waiver of such right or remedy with respect to subsequent defaults. Every right and remedy provided in this Agreement may be exercised from time to time and as often as may be deemed expedient by the Party exercising such right or remedy.
B. Application of Delaware Law;Exclusive Jurisdiction. The Agreement shall be construed and enforced in accordance with and governed by the laws of the state in which the Property is situated and performed entirely within that state, to the exclusion of all others, and without regard to that state’s choice of law doctrines. The Parties agree that any action brought by either one of them, under or concerning this Agreement, including without limitation to interpret or enforce any of its provisions, shall be brought in, and each party agrees to and does hereby only submit to the exclusive jurisdiction and venue of, any state or federal court located in the county of the Property Manager’s office in that state.
C. Headings. All headings and subheadings in this Agreement and in the accompanying List of Provisions are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement.
D. Equal Construction. This Agreement shall be interpreted according to the fair and common meaning of its terms and shall not be construed in favor of, or against, either of the Parties hereto by reason of the extent to which this Agreement or any such provision hereof was drafted by one Party or the other to this Agreement.
E. Waiver, Modification, and Amendment. This Agreement and any ancillary documents part and parcel to them expresses the entire understanding concerning the subject matter hereof and supersedes and terminates any prior oral or written agreements between the Parties concerning the subject matter hereof. Any provision of an Agreement may be amended, and observance of any term of the Agreements may be waived upon written notice by Property Manager. Waiver of any terms or conditions of the Agreements by any Party shall not be construed as a waiver of any subsequent breach or failure of the same Term or condition or a waiver of any other term or condition of any Agreement. The failure of any Party at any time to require performance by any other Party of any provision of an Agreement shall not affect the right of any such Party to require future performance of such provision or any other provision of such Agreement.
F. Attorney’s Fees. After a failed mediation, in any action or proceeding involving a dispute between the Parties arising out of this Agreement, the prevailing Party shall be entitled to receive from the other Party court costs and reasonable attorney’s fees to be determined by the court or mediator.
G. Assignment; Subcontracting. Neither this Agreement nor any duties or obligations hereunder shall be assigned, transferred, or subcontracted by either Party without the prior written approval of either Party, which approval may be withheld in the sole and absolute discretion of the non-assigning Party.
H. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any manner.
I. Publicity. Neither Party shall make any public announcement concerning this Agreement without the advance approval of the other Party. Notwithstanding the preceding, if the Parties are unable to agree on a mutually acceptable announcement, a Party may nevertheless issue a press release if counsel advises that such release is necessary to comply with applicable securities or similar laws.
J. No Waiver. No waiver of any default, breach or failure to perform under this Agreement is not deemed to be a waiver of any subsequent default, breach or failure of performance. In addition, waiver of any default, breach or failure to perform is not construed to be a modification of the terms of this Agreement unless reduced to writing as an amendment to this Agreement.
K. Applicable Law. After a failed mediation, any lawsuit involving this Agreement shall be governed by the laws of the State of Delaware without regard to its choice of law provisions. Any action arising under this Agreement shall be brought in state court in the county where the Property is located, to the bargained-for exclusion, or all others.
L. Complete & Integrated Agreement. There are no terms, conditions, promises, services warranties, or representations between the Parties unless expressly stated herein. This Agreement sets forth the entire agreement between the Parties hereto relating to the subject matters herein and fully supersedes all prior agreements or understanding between the Parties hereto, if any, concerning the subject matter hereof. This Agreement is entered into freely and voluntarily with full knowledge and understanding of the contents thereof. Further, the signers of this Agreement, and each of them, (a) represent that they have had the opportunity to consult with counsel of their choosing before the execution of this Agreement, (b) the contents of this document have been explained to, and (c) that they sign the Agreement with the intent to be fully bound thereby.
M. Successors Bound. This Agreement shall be binding upon the Parties, and each of their respective heirs, executors, administrators, successors, and assigns.
N. Signatures: This Agreement may be signed by the Parties manually or digitally – via facsimile, via electronic signature or via electronic mail (including pdf or any electronic signature complying with the U.S. Federal E-SIGN Act of 2000, e.g.,www.docusign.com), or via a drop-down menu or similar online mechanism where Owner will be asked to accept the condition that is modified by affirming its consent by clicking “I agree” or some similar mechanism. This Agreement may be signed on more than one copy, which, when taken together, each signed copy shall be read as one complete form, and such signature shall be accepted as an original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives.
EXHIBIT A Home365 Property Management includes all of the entities and brokers as listed on its website at www.home365.co.