1. Exclusive Appointment.
The Owner appoints the Agent, and the Agent accepts appointment, on the terms and conditions herein provided, as the exclusive managing agent of the land and building erected thereon, located at the Building. In order to facilitate efficient operation, the Owner shall inform the Agent with regard to standards to be kept, and shall furnish the Agent with a copy of the Offering Plan (to the extent in Owner’s possession), Declaration and By-laws, and House Rules (the “Governing Documents”), as the case may be, with all amendments thereto, a copy of the audited financial statements for the Building for the past three years, and a complete set of the plans and specifications for the Building (to the extent Owner can obtain them), job descriptions for each of the staff if applicable, all reports concerning asbestos or lead based paint in the Building, and any agreements, if available, between Shareholders/Unit Owners and the Owner.
2. Management Duties.
During the term of this Agreement, the Agent shall perform the following services:
a. Utilizing the Daisy Supers & Porters Program, cause the Building to be maintained in such condition as may be deemed reasonably advisable by the Owner, including interior and exterior cleaning, and facilitate repairs and alterations of the Building to be made, including, but not limited to, electrical, plumbing, steam fitting, carpentry, masonry, elevator, decorating and such other incidental alterations, subject to the limitations contained in this Agreement. Ordinary repairs or alteration involving an expenditure of over $5,000.00 for any one item shall be made only with prior written approval of the Owner, except for emergency repairs, i.e., those immediately necessary for the preservation or safety of the Building or for the safety of Shareholders/Unit Owners, tenants, other occupants or other persons or required to avoid suspension of any necessary service in the Building, which may be made by the Agent irrespective of the cost thereof, without the prior approval of the Owner, in which case Agent shall promptly notify Owner of the repair, provided that prior to obtaining Owner’s approval Agent shall only perform so much of the work as is required to be done so as to abate the emergency and Agent shall obtain Owner’s approval for the non-emergency portions of such repairs. Agent shall make available additional Daisy Super & Porter resources at $75 per hour, with a minimum call-out period of two (2) hours.
b. As used in this sub-paragraph, the term “supervise” means to serve as construction administrator, project administrator or otherwise as full Owner’s representative on a project along with Owner’s architect or engineer. At the Owner’s request, Agent shall assist Owner in soliciting multiple bids from appropriate vendors, professionals and contractors for any construction, alteration and/or repair projects. Agent shall receive a fee of 3% to supervise any project with an aggregate cost of $25,000.00 or more.
c. Recommend and, with the approval of the Owner, cause all such reasonable acts and things to be done in or about the Building as shall be necessary or desirable to comply with any and all orders or violations affecting the Building, placed thereon by any federal, state, or municipal authority having jurisdiction, and orders of the New York Board of Fire Underwriters, the New York Fire Insurance Exchange or other similar body, except that if failure promptly to comply with any such order or violation would, or might, expose the Owner or the Agent to criminal liability, the Agent may cause such order or violation to be complied with after consulting the president, vice president, or treasurer of the Owner (in the order given, if possible), or if such officer shall not be available to the Agent, after consultation with the Owner's attorneys. The Agent shall notify the Owner promptly after receipt by the Agent in writing of any order or violation, as aforesaid.
d. Enter into contracts on behalf of Owner for electricity, gas, steam, air-conditioning, water treatment, elevator, telephone, window cleaning, vermin extermination and other services or such of them as shall be advisable for the Building.
e. Manage the Building’s communications with its Shareholders/Unit Owners, tenants, sublessees and other residents, including notices to shareholders/Unit Owners and residents, requisition requests, posting of documents, maintenance request, “permission to enter,” etc. Agent shall reasonably administer, collect and maintain all records pertaining to Owner, including but not limited to, the names, addresses, all telephone numbers, and email addresses of the Shareholders/Unit Owners and residents.
f. Purchase all supplies in accordance with the approved-upon budget, which shall be necessary to properly maintain and operate the Building, make such contracts and purchases in either the Owner's or the Agent's name, as the Agent shall elect, and credit to the Owner any discounts or commissions obtained for purchases or otherwise (except any insurance and other commissions payable to the Agent under the terms of this Agreement).
g. Review all bills received for services, work and supplies and other expenditures incurred by or on behalf of Owner in connection with maintaining and operating the Building, pay or cause to be paid (with Treasurer or other Officer’s approval) from the funds of the Owner all such bills and other expenses (including mortgage payments, if any), real estate taxes, utilities, insurance premiums, water charges, sewer rent, assessments, and other taxes assessed against the Owner or the Building as and when the same shall become due and payable, if Owner's funds are available for timely payment.
h. Accept applications and references from all prospective purchasers and tenants, obtain credit reports relating to prospective purchasers and tenants of space being sold or leased by the unit owner, and preside over the closings of the transfers of all stock and proprietary leases appurtenant to apartments in the Building, whether owned by the unit owner or otherwise. The Agent shall receive an additional fee of $500 for such services from such unit owner.
i. Cause the supervision, with the assistance of the superintendent, the moving in and out of residents and tenants and, as far as reasonably possible, arrange the dates thereof so that there shall be a minimum of disturbance to the operation of the Building and inconvenience to other residents and tenants.
j. Bill, or cause to be billed, and collect maintenance charges (rents) or common charges and other charges and assessments payable to the Owner by all Unit Owners, tenants and licensees and use commercially reasonable efforts to collect such maintenance charges or common charges and other charges, but Agent shall have no liability or responsibility for any failure to collect any delinquent amounts. Any checks processed by Agent will incur a $25 processing fee per instance, to be paid for by the Unit Owner.
k. Attend to all complaints received from Unit Owners and tenants in a timely and professional manner. Agent shall bring such complaints to Owner’s attention. Agent shall maintain a record of all written complaints received from Unit Owners and residents and Agent’s response thereto, including the date of the complaint and response, status of complaint, and copies of all written correspondence.
l. Maintain bookkeeping records (including payroll) and supply Owner’s accountant with all financial and other data to enable the preparation of all tax returns to be filed on behalf of the Owners (except quarterly payroll tax returns shall be prepared and filed by Agent). Assist the Owner’s accountant, Owner’s finance committee (if any) and Treasurer with the preparation of annual reports, monthly financial statements and budgets.
m. On or about the fifteenth (15th) day of each month, render or cause to be rendered detailed monthly management reports for the preceding month in electronic format to the Owner, and, if requested by Owner, to Owner’s accountant, and, unless otherwise directed, all members of the Owner’s Board of Directors or Managers, as the case may be, which report shall include copies of all receipts and disbursements made on Owner’s behalf, investments and income therefrom, paid bills, bank reconciliation and bank statements, arrears, and receivables for the preceding calendar month and year to date made on behalf of and for the account of the Owner.
n. Cause to be set up and kept in good order, reports, records and books consistent with the customary records and books kept by Agent for other condominium buildings (other than books of account maintained by the Owner's accountants) for the Owner, and maintain orderly files containing maintenance or common charge records, alteration agreements, plans and permits for apartment alterations, insurance policies, leases and subleases, if any, correspondence, receipted bills and vouchers, check books, minute books and all other documents and papers pertaining to the Building or the operation thereof, and the same shall be and shall at all times remain the property of the Owner, and the Agent shall upon request of the Owner make the same available to the Owner, the Owner's officers, accountants, attorneys or other representatives and shall deliver up the same to the Owner or its aforesaid agents on demand from the Owner, provided that Agent shall have the right to retain copies of each thereof. Agent shall keep all records and documents pertaining to Owner, whether pursuant to this paragraph, or any other paragraph of this Agreement, in digital format available at all times to Owner and upon termination of Agent’s services, Agent shall deliver all records and documents in digital format along with any hard copies maintained by Agent.
o. Provide information and otherwise cooperate reasonably with the Owner's accountants in regard to the annual audit of the books of account of the Owner, including the annual report of the operations of the Owner for the year then ended. A copy of each such annual report shall be sent by the Agent to each Shareholder/Unit Owner. The annual certified financial statement of the Owner will not be prepared by the Agent; such statement will be prepared by an independent certified public accountant engaged by the Owner, at Owner's expense.
p. Reasonably cooperate and assist the Owner's accountants in regard to the preparation and filing on behalf of the Owner of federal, state, city and other income and other tax returns required by any governmental authority.
q. Prepare and submit annually to the Owner, an operating budget setting forth the anticipated income and expenses of the Owner for the ensuing fiscal year, a comparison of said budget to the income and expenses of the preceding and current years and any required explanations with respect thereto. Upon Owner’s approval of the budget, Agent shall be authorized to operate and manage the Building in accordance with such budget, subject to the terms of this Agreement. Agent shall provide Owner with monthly reports which includes analysis based upon the prior year’s costs, this year’s costs and budgeted costs.
r. Agent will cause one representative of its organization to attend one (1) annual meeting of Unit Owners. The Agent also shall prepare, send and circulate notice and agenda of such meeting.
s. When the books of tentative assessed valuation of the City of New York are opened for public inspection in each year, ascertain the assessment of the land and building and report such assessment to the Owner.
t. In the event a Unit Owner wishes to alter his/her apartment, the Agent will process his/her application and forward such application to the Owner or, at the Owner's direction, to the Owner's engineer; subject to the Owner’s consent, retain on behalf of Owner an engineer to review plans and specifications; coordinate with the Owner's superintendent and with the Unit Owner undertaking the alteration, for the use of Building services and equipment, if necessary. The Agent shall, subject to Owner’s consent, retain Owner’s engineer to be responsible for supervising the actual alterations by Shareholders/Unit Owners and for verifying that the alterations are performed in accordance with the proposed plans submitted to the Owner, that all necessary permits or approvals are obtained, and are performed in accordance with applicable New York City fire, health, building and other similar laws and codes relating to construction or alterations. The Agent shall receive an additional fee of $500 for such services from such unit owner.
u. Agent shall maintain a 24-hour telephone number and/or email address for reporting of and promptly responding to notices of emergency conditions at the Building.
v. For the fee of $175 per hour, provide Advisory Services to the Owner, at Owner’s election, for rendering of services not articulated above.
3. General Authority.
The Owner authorizes the Agent, for the Owner's account and on its behalf, to perform any act or do anything necessary or desirable in order to carry out the Agent's agreements contained in Paragraph 2 hereof and the Agent is given such general authority and powers as may be necessary or advisable to carry out the spirit and intent of such agreements. The foregoing shall not be deemed to impose any obligations on Agent beyond those expressly set forth in this Agreement. Everything done by the Agent under the provisions of this Agreement shall be done as agent of the Owner, and all obligations or expenses incurred thereunder (for which the Agent is not compensated as provided in Paragraph 7 hereof) shall be at the expense of the Owner.
Any payments made by the Agent hereunder shall be made out of such funds as the Agent may from time to time hold for the account of the Owner, and funds to be, or as may be, provided by the Owner. The Agent shall not be obliged to make any advance for the account of the Owner or to pay any amount except out of funds held or provided as aforesaid, nor shall the Agent be obliged to incur any extraordinary liability or obligation for the Owner unless the Owner shall furnish the Agent with the necessary funds for the discharge thereof. If the Agent shall voluntarily advance for the Owner's account any amount for the payment of any obligation or necessary expense connected with the maintenance or operation of the building or otherwise, the Owner shall reimburse the Agent on demand. Owner hereby indemnifies and holds Agent harmless against any outstanding invoices which Agent may have incurred pursuant to the terms of this Agreement on behalf of Owner.
5. Separation of Owner’s Monies.
All funds collected by the Agent for the account of the Owner shall be deposited in such bank or trust company in the City of New York in an interest-bearing general deposit account. All such funds shall be held in a special account maintained by Agent in the name of and for the benefit of the Owner, and will not be commingled with Agent’s funds or other funds collected by the Agent, as agent for others. The Agent shall be under no liability or responsibility for any loss resulting from the insolvency of such depository. The Agent shall not invest any of the funds of Owner unless otherwise directed in writing by Owner. The Agent shall not be liable for any losses suffered in connection with such investment. Any banking fees, or charges, in connection with such account or investment shall be paid out of the funds. Bank statements and other financial records maintained by the Agent relating to the Owner’s affairs shall be available for inspection by Owner and/or its designated representative at all reasonable times and upon reasonable notice. All bank accounts opened by Agent for the performance of its obligations hereunder shall be corporate accounts of Owner with such authorized signatories as the Owner’s Board of Directors or Managers shall determine.
6. Insurance and Indemnification.
The Owner will at all times carry liability insurance (with limits acceptable to the Agent in its reasonable judgment, but in no event less than $5,000,000.00 for each accident or occurrence), worker's compensation and employer's liability insurance, will include the Agent as an additional insured under the liability policy and will, prior to the commencement of each such policy, deliver a copy of such liability policy to the Agent or a certificate evidencing the same. The Owner and Shareholders/Unit Owners shall not look to the Agent for indemnity for any loss or damage to the Building or any unit therein and the Owner shall obtain waivers of subrogation against the Agent under Owner's property and liability policies. The Owner agrees to reimburse the Agent upon demand for any monies which the Agent is required to pay out for any reason whatsoever in connection with the foregoing provisions of this paragraph. Agent assumes no liability whatsoever for any acts or omissions of Owner or the Board of Directors or Managers, or Officers of Owner, or any previous boards or officers or previous owners of the Building, or any previous management or other agent of either. It is expressly understood and agreed that the provisions of this Section 6 shall survive the termination of this Agreement, but this shall not be construed to mean that the Owner's liability does not survive as to other provisions of this Agreement.
Owner shall indemnify, defend and hold Agent and its shareholders, directors, officers, members and employees harmless from and against any and all losses, costs, damages, claims, suits, actions, damages, fines, penalties and/or expenses, including without limitation reasonable attorneys’ fees and disbursements (collectively, “Claims”) arising out of or related to: (i) any condition in or about the Building, or injury to property or person in, about or in connection with the Building, or elsewhere when Agent is carrying out the provisions of this Agreement, or pursuant to the directions of Owner, from any cause whatsoever; or (ii) any act performed by Agent under this Agreement or pursuant to the directions of Owner; or (iii) any act or omission of Owner in breach of this Agreement, including, but not limited, to those arising from the failure of Owner to deliver or cause to be delivered to Agent, all books and records in the possession of prior agents of Owner necessary for Agent to carry out its duties under this Agreement, provided that the foregoing indemnity shall not apply to any Claim arising out of Agent’s or its employees’ intentional wrongdoing, willful misconduct, illegal conduct, gross negligence, or actions outside of the scope of this Agreement. Notice of any Claim and/or action or proceeding instituted against Agent or of any facts that could give rise to a Claim shall be promptly given to Owner. Agent, at its option, may undertake, conduct and control through counsel of its choice, at Agent’s own the expense, the settlement or defense of any such action or proceeding.
During the term of this Agreement, the Agent will maintain, at its sole cost, (i) comprehensive commercial general and umbrella liability insurance issued by an insurance company reasonably satisfactory to Owner with limits of not less than $5,000,000.00 per occurrence and in the aggregate, and which insurance shall be secondary to the similar insurance maintained by Owner, including blanket contractual liability insurance against claims for bodily injury, death and property damage; (ii) fidelity/crime insurance in an amount of not less than $1,000,000 per occurrence and in the aggregate; (iii) cyber-crime coverage in an amount of not less than $1,000,000.00 per occurrence and in the aggregate; and (iv) workers compensation and employers liability insurance with statutory limits covering Agent’s employees.
The Agent shall indemnify and hold harmless Owner, its officers, directors, and shareholders/unit owners from any loss or damage and expenses, including reasonable attorneys fees and costs, caused by the gross negligence, intentional tortious acts, willful misconduct or intentional failure to act under the terms of this Agreement of Agent, its shareholders, officers, directors or employees, and for any damages caused by Agent’s handling of Owner’s finances and/or the business of managing the Building by Agent or any of Agent’s employees or representatives, provided the indemnification obligations herein shall not cover any claims resulting from Owner’s negligence, willful misconduct or failure to comply with its obligations under this Agreement. It is expressly understood and agreed that the indemnification provisions of this paragraph shall survive the termination of this Agreement. Owner acknowledges that all building staff workers are employees of Owner and not of Agent.
7. Agent's Compensation.
The Owner shall pay to the Agent a monthly fee in the amount set forth on the short form agreement (see paragraph 3, “Services & Fees”) to which these Terms and Conditions are attached (“Compensation”) as Compensation for its management services. Such Compensation shall be payable monthly in advance on the first day of each month this Agreement is in effect. In addition to the Compensation, Agent shall also be entitled to collect the following amounts:
a. Nothing contained in this Agreement shall prevent the Agent from collecting fees from a Unit Owner or tenant for any services rendered by the Agent to and at the request of such Shareholder/Unit Owner or tenant which is outside the scope of this Agreement and unrelated to Agent’s services hereunder or such Unit Owner or tenant’s status as a Unit Owner or tenant, provided such additional services do not adversely impact Owner or otherwise detract Agent from performing the services set forth herein on behalf of Owner.
b. In addition to the foregoing, Agent shall be entitled to receive as additional compensation those amounts set forth on the short form agreement (see paragraph 3, “Services & Fees”) to which these Terms and Conditions are attached in consideration for those additional services.
c. The payment by Agent for work over which Agent has no supervisory duty, shall not be deemed to imply Agent’s approval of such work.
d. In the event that the Agent shall be required under any law or any governmental agency to collect sales taxes on any fees payable to the Agent hereunder, the amount of any such sales tax shall be charged to and payable by Owner and remitted to the taxing authority by Agent, which hereby indemnifies and agrees to hold the Agent, its’ officers, directors and employees harmless from and against any and all claim for the collection of sales taxes that any predecessor of the Agent may have been responsible to collect and remit to the taxing authority.
8. Non-Solicitation of Agent’s Employees/Consultants.
During Owners’ engagement with Agent and for twelve (12) months thereafter, neither Owner, nor any of Owner’s employees shall: (i) directly or indirectly, in any manner contact, divert, retain or influence, or attempt to divert or influence any of Agent’s personnel (which shall include without limitation employees and independent contractors) (“Personnel”) for purposes of providing employment to such personnel, or otherwise directly or indirectly employ such Personnel, or (ii) engage in any business as an owner with any such Personnel of Agent in connection with any venture or business that competes with Agent’s business as then being conducted. For purposes of this paragraph, Personnel shall include any person who was an employee, independent contractor or consultant of Agent in the twelve (12) months preceding any engagement or venture described in this Paragraph. The restriction set forth in this sub-paragraph does not apply if Owner or Owner’s employee did not have actual notice that such person was an employee, independent contractor or consultant of Agent.
9. Intentionally deleted
10. Duration of Term; Termination.
This Agreement shall take effect upon signing, and shall continue in force for the initial term set forth in the short form agreement to which these Terms and Conditions are attached. Thereafter, it shall continue in full force and effect on a month-to-month basis. Notwithstanding the foregoing, this Agreement may be terminated by either Party at the end of any calendar month, on no less than thirty (30) days’ prior notice in writing from one Party to the other, for any reason. After the first thirty-six months this Agreement is in effect, Agent may increase the monthly Compensation described in Section 7 above, as of the first day of a month occurring after not less than sixty (60) days’ written notice of such increase, provided that such increase may not result in an aggregate increase of more than 3% for any twelve-month period. Promptly following the last effective day of the term of this Agreement or any renewal thereof, Agent shall deliver to the Owner or its designee the all of the Owner’s funds, leases, files, books and records and other instruments relating to the Building or the Owner that may be in the possession of the Agent, and the parties shall account to each other with respect to all uncompleted business. The Owner shall provide the Agent with reasonable assurances against any outstanding invoices that the Agent may have incurred pursuant to the terms of this Agreement on behalf of the Owner, and Owner’s liability therefore shall survive any termination of this Agreement. Notwithstanding the foregoing, Agent may withhold funds for sixty (60) days after the end of the month in which this Agreement is terminated, to the extent Agent deems reasonably necessary in order to pay bills on Owner’s account previously incurred but not yet invoiced and to close accounts. Agent shall deliver to Owner, within sixty (60) days after the end of the month in which this Agreement is terminated, any balance of monies due to Owner which were held by Agent with respect to the Building.
11. Compliance With Laws.
If the Owner shall fail or refuse to comply with or abide by any rule, order, determination, ordinance or law of any federal, state or municipal authority having jurisdiction over the property, the Agent, upon giving three (3) days’ prior notice in writing to the Owner, may terminate this Agreement.
For the purposes of this Agreement, all notices and directions shall be written and delivered to the parties addresses set forth in the preamble of this Agreement by hand delivery or by overnight mail or by a national overnight courier service or by registered mail or certified mail, and shall be deemed to be given on the date on which such notice shall be delivered, if by hand or overnight delivery, or three (3) days after being sent if by other means. Either party may designate a substitute address or addresses by notice to the other party.
In the event a) a petition in bankruptcy is filed by or against either the Owner or the Agent; b) either Owner or Agent files a voluntary petition for bankruptcy; c) either Owner or Agent makes an assignment for the benefit of creditors; or d) either Owner or Agent takes advantage of any insolvency act, the other Party hereto may forthwith terminate this Agreement immediately upon written notice.
14. Binding Effect; Integration; No Assignment.
This Agreement shall bind and apply to any successor of either party hereto. This Agreement may not be assigned by either Party hereto, and Agent may not assign or sub-contract its obligations hereunder to any third-party. This Agreement represents the entire understanding and agreement between the Parties as the matters addressed hereunder and supersedes all prior negotiations, understandings, communications, proposals, and representations concerning the subject matter, whether oral or in writing. Each party acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by or on behalf of any party that are not incorporated in this Agreement and no other agreement or promise not contained in this Agreement shall be binding or enforceable.
The parties agree that the Supreme Court of the State of New York, New York County shall be the exclusive jurisdiction and venue to hear any dispute or claim that arises out of or is relative to the terms of this Agreement. The parties hereto agree that the County of New York shall be deemed to be their proper county for venue in any such action.
16. No Modification.
No waiver, change, modification, amendment or discharge of any provisions of this Agreement shall be of any force or effect unless set forth in a written document and accepted or otherwise assented to in writing on behalf of each Party by a duly authorized individual.
17. No Waiver of Default.
The waiver by a Party of any default under this Agreement or of any breach of any covenant, agreement or condition contained herein shall not be construed to constitute a waiver of any other default or breach hereof whether similar or otherwise.