MANAGEMENT AGREEMENT
This agreement is entered into this th day of , between
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(Hereafter referred to as "the owner"
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or "the sponsor") and The Forsythe Group, Inc. (Hereafter referred to
as "the agent"). This agreement relates to activities to be performed,
responsibilities to be accepted and authority to be exercised with regard
to the properties to be known as
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Located in :
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In consideration of the terms conditions and covenants hereinafter set
forth, the Owner and the Agent mutually agree as follows:
SECTION 101 DEFINITIONS:
As used in this Agreement the terms below shall have the following definitions
unless context otherwise requires:
101.1 "Project " shall mean the land, improvements, buildings,
appurtenances and equipment thereon described in...
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101.2 "Gross Collections" shall mean all amounts actually collected by
the Agent, as tenant rents, income from commercial space, community
fees and other miscellaneous charges, but excluding
(i) income derived from interest on investments, (ii) discounts and
dividends on insurance, and (iii) security deposits.
101.3 "Lease" shall mean the approved agreement between the Owner and
a Tenant under the terms of which said Tenant is entitled to enjoy
possession of a dwelling unit.
101.4 "Rent" shall mean that monthly amount which a Tenant is obligated
to pay the Owner pursuant to the terms of a Lease.
101.5 "Tenant" shall mean a person occupying a dwelling unit in the
Development pursuant to a Lease.
101.6 "Lender" shall mean the financial institution holding the mortgage
for the Project property.
SECTION 201 APPOINTMENT OF AGENT:
The Owner hereby appoints the Agent, and the Agent hereby accepts appointments,
on the terms and conditions hereinafter
provided, as exclusive management agent of the Project.
SECTION 301 LEFT BLANK ON PURPOSE
SECTION 401 CONFER WITH OWNER, LENDER
The Agent agrees to keep itself informed on the applicable lender policies and
requirements, and, notwithstanding the authority given to the Agent in this
agreement, to confer fully and freely with the Owner, and the lender in the
performance of its duties hereunder.
SECTION 501 MEETING WITH OWNER AND THE AGENT
The Agent agrees to cause an officer of the Agent to attend meetings with the
Owner at any time or times requested by the Owner.
SECTION 601 PERSONNEL OF THE AGENT:
601.1 Employees of Agent. The Agent shall hire the Director, who will
be responsible and report directly to the Agent. Said Director
will perform duties on-site and compensation will be considered an
expense of the Project.
The Agent shall hire in the Owner's name the Director and on-site
personnel necessary for the full and efficient performance of the
Agent's duties under this Agreement. Such employees shall be
physically present on the Project site. No less that one
responsible person(s) for each twenty tenants and/or required by
licensing regulator shall be physically present at the Project at
such times, and in any event, for not less than 24 hours per day,
seven days per week. Compensation for the services of all on-site
employees, including the Director, shall be included as operating
expenses of the Project.
The Agent shall develop a staffing plan which is sensitive to tenant
occupancy and the level of service to be provided. The Agent will be
responsible for developing and implementing orientation and training
for all on-site employees.
601.2 Employment of Residents and Contractors. The Agent shall operate
as an equal opportunity employer in conformity with all related
laws and regulations. Employment practices will not discriminate
based upon sex, race, color, sexual orientation, age, creed,
religion, or national origin.
SECTION 701. SERVICES OF AGENT:
701.01 Services Prior to Resident Occupancy. Prior to occupancy of the
Project, the Agent shall:
(i) furnish the Owner revised estimates of maintenance and
operating expenses accompanied by documentation including
a staffing plan and where appropriate, bids, contracts or
comparable for any and all items so requested by the Owner
or lender;
(ii) develop, and establish such policies and procedures as are
necessary to carry out the Agent's responsibilities under
this Agreement for the effective and efficient operation
of the Project. Such policies and procedures shall provide
the guidelines for on-site staff in the day to day
operation of the Project and shall include but not be
limited to aspects of marketing (e.g., sales practices,
mail list management, referral contact, affirmative fair
housing practices), administration (e.g., tenant
application and move-in, landlord-tenant relations,
rental agreements, bookkeeping, tenant charges, etc.)
personnel,(e.g., job descriptions, hiring, evaluation,
discharge, benefits, etc.) tenant services (e.g.,
housekeeping, laundry, maintenance, food service, ancillary
services, etc.), property management. (e.g., maintenance,
preventive maintenance, general repairs, etc.);
(iii) implement marketing plan.
(iv) retain such marketing, maintenance and managerial personnel
as are necessary for the preliminary marketing and sale of
units;
(v) provide training opportunities to marketing staff;
(vi) establish a bookkeeping and accounting system in
accordance with requirements specified by the owner and
sufficient to document operational income and expenses of
the project covered by the management agreement;
(vii) identify start-up inventory, equipment and supplies and
secure such as approved by the Owner and additionally will
develop a system for ordering and protecting inventory
against loss and waste;
(viii) provide a system for bookkeeping, including payroll,
accounts payable, accounts receivable, general ledger, and
petty cash, such system being designed to generate timely
information regarding cash flow, as well as information
necessary for owner's financial reports.
701.02 Structure and Warranties. the Agent shall obtain from the Owner
a complete set of plans and specifications and copies of all
guarantees and warranties pertinent to construction, fixtures and
equipment. With the aid of this information and inspection by
competent personnel, the Agent shall thoroughly familiarize
itself with the character, location, construction, layout, plan
and operation of the Project and especially of the electrical,
heating, plumbing, air conditioning and ventilating systems, and
all other mechanical equipment.
701.03 Inspection of Development. The Agent shall participate in the
final inspection(s) of the Project to certify the readiness of the
units for occupancy and shall (i) inform the Owner, the Architect,
the Contractor and the lender and insurer of all defects in
material and workmanship discovered within the construction
warranty period; and (ii) monitor the action taken by the
Contractor to correct the defects; and (iii) participate in any
formal inspection held for the purpose of identifying construction
defects.
701.04 Maintenance and Repairs. The Agent shall cause the general
building interior and grounds of the Project to be maintained and
repaired according to standards acceptable to the Owner, lender
and insurer. The Agent shall coordinate with the Owner
responsibility for maintaining in good working order, repairing
and replacing the structural aspects of the building, appurtenances,
capital equipment, and the electrical, heating, plumbing, air
conditioning and ventilating systems, and all other mechanical
equipment. The Agent shall report mechanical, structural,
electrical, plumbing, heating, ventilating or air conditioning
problems to the owner in a timely manner.
701.05 Preventive Maintenance. The Agent shall coordinate with the
Owner to assure the timely accomplishment of preventive
maintenance. The Agent shall cause the buildings, appurtenances,
and equipment of the Project to be maintained and repaired
according to
written procedures and schedules. The Agent shall develop a
preventive maintenance schedule including, but not limited to
periodic inspections of the units; residency commencement and
termination check lists; inventory control; common area
maintenance; equipment monitoring; and monitoring of exterior
maintenance and landscaping on a seasonal basis. The Agent will
develop a schedule for routine painting and replacement as well as
a budget item to fund redecorating as necessary.
701.06 Property Insurance. The Agent will cause to be placed in force,
all forms of insurance needed to adequately protect the Owner and
the Project, including, comprehensive general liability insurance,
fire and extended coverage insurance, burglary, and theft
insurance. The Agent shall promptly investigate and make a full
written report to the Owner within five (5) days of receiving
knowledge of any accident or claim for damage relating to the
ownership, operation and maintenance of the Project, including
any damage or destruction of the Project and the estimated cost
of repair, and shall cooperate and make any and all reports required
by any insurance company in connection therewith.
701.07 Employees of Owner. On the basis of wage rates previously
approved by the Owner, the Agent shall investigate, hire, pay,
supervise and discharge all administrative and general maintenance
personnel.
No less than one responsible person(s) shall be physically
present at the Project not less than 24 hours per day seven days per
week.
All personnel shall in every instance be in the Owner's and not
in the Agent's employ. Compensation for the services of all
employees, as evidenced by certified payroll(s) shall be considered
an operating expense of the Project.
701.08 Notice of Authority. In addition to its authority to manage the
premises as specified herein, the Agent is authorized by the Owner
to accept service of process and to receive and give receipt for
notices and demands. A notice containing such information shall
be posted in a conspicuous place on the premises.
701.09 Service Requests of Tenants. The Agent shall maintain businesslike
relations with Residents whose service requests shall be received,
considered, and recorded on a systematic, written basis to show the
action taken with respect to each such request. Complaints of a
serious nature and all written complaints shall, after thorough
investigation, be reported to the Owner with appropriate
recommendations.
The Agent shall make provisions for delivery of services calls
from Tenants on a 24-hour basis.
701.10 Inspection of Units. As part of the continuing program to secure
full performance by the Residents of all obligations and
maintenance for which they are responsible, the Agent shall make
an annual inspection of all dwelling units and report its findings
in writing to the Owner.
701.11 Review of 0perations. The Agent shall permit the lender and
insurer to conduct on-site evaluations of the performance of any
or all management services which the Agent has agreed to provide
as required by this Agreement and the Management Plan. An
authorized representative of the Agent shall be available during
on-site evaluations. The Agent shall correct any deficiencies
noted in these evaluations within 30 days of the receipt of the
report from the lender.
701.12 Collections and Delinquencies. The Agent shall collect and deposit
in the account established pursuant to Section 1001 hereof all
rents and other charges due from Tenants and all rents or other
payments due the Owner from lessees of other nondwelling areas of
the Project. The Agent agrees, and the Owner hereby authorizes
the Agent, to request, demand, collect, receive, and give receipts
for any and all charges or rents which may at any time be or become
payable to the owner. Rents and other charges shall not be
accepted in cash by the Agent. The Agent agrees to take such
action, including legal action, with respect to delinquencies in
payments due the Owner with an itemized list of all Tenants with
delinquent accounts as of the tenth (1Oth) day of each month on or
before the fifteenth (15th) day of same month.
701.13 Payments and Expenses. From the funds collected and deposited
in the account established pursuant to Section 1001 hereof, the
Agent shall coordinate with the Owner and cause to be disbursed
regularly and punctually the following:
(i) all of the real estate tax and insurance
premium escrow payments required of the Owner, which
payments shall be deemed to be part of the operating
expenses of the Project;
(ii) all of the principal and interest required to be paid to
the lender;
(iii) all remaining operating expenses of the Project including
administrative, operational, franchise fees, maintenance
and utility expenses and vendor payables;
(iv) the fees of The Forsythe Group evolving from the Management
Agreement including the fees of the Agent as provided in
Section 1201.
With the exception of payments provided in this section
and payments for utilities services, the Agent shall make
no disbursements in excess of $15,000 unless specifically
authorized by the Owner, provided that emergency repairs,
involving manifest danger to life and property, or
immediately necessary for the preservation and safety of
the Project, or for the safety of the Tenants, or required
to avoid the suspension of any necessary services to the
Project, may be made by the Agent without regard to the cost
limitation imposed by this Section with the understanding
that the Agent will, if at all possible, confer immediately
with the Owner regarding every such expenditure. The Agent
shall not incur liabilities to the Owner (direct or
contingent) which, in the aggregate, will exceed at any time
$15,000 or which require payment more than one year from the
creation thereof, unless specifically authorized by the
Owner.
701.14 Governmental Orders. The Agent shall take such action as may
be necessary to comply promptly with any and all orders or
requirements affecting the Project placed thereon by any federal,
state, county or municipal authority or other similar bodies. The
Agent shall not take any action under this Section unless the Owner
so directs and shall not take action so long as the Owner is
contesting or had affirmed its intention to contest any such order
or requirement and promptly institutes proceedings contesting any such
order or requirement. The Agent shall promptly, and in no event
later than 48 hours from the time of their
receipt, notify the Owner in writing of all such orders and notices
of requirements.
701.15 Utility Service and Purchases. Subject to the approval of the
Owner, the Agent shall make contracts for garbage and trash removal,
snow removal, and other necessary contracted maintenance services.
The Agent shall secure such equipment, tools, appliances, materials
and supplies as are necessary to maintain and repair the Project
properly. Payment for costs associated with these said activities
and purchases will be included in the Project operating budget.
The Agent shall act at all times in the best interest of the
Owner and shall be under duty to secure for and credit to the
Owner any discounts, commissions or rebates obtainable as a result
of the purchase.
701.16 Records and Reports.
(i) The Agent shall establish and maintain a comprehensive
system of records, books and accounts in a manner
satisfactory to the Owner. All records, books and accounts
will be subject to examination at reasonable hours by any
authorized representative of the Owner, lender or insurer.
(ii) With respect to each fiscal year ending during the term of
this Agreement, the Agent shall cooperate with the Owner to
have an annual financial report prepared by an independent
Certified Public Accountant, Non-audited, based upon the
preparer's examination of the books and records of the
Owner and the Agent. Compensation for the preparer's
services will be considered an operating expense of the
Project.
(iii) The Agent will prepare a semi-annual income statement which
compares actual and budgeted income and expenses for the six
(6) month period and for the "year to date", and will submit
each statement to the Owner within fifteen (15) days after
the end of each six (6) month period ending June and
December.
(vi) The Agent will furnish such information (including
occupancy reports) as may be requested by the Owner or
the lender from time to time with respect to the financial,
physical or operational condition of the
Project.
(v) By the fifteenth (15th) day of each month, the Agent will
furnish the Owner with an itemized list of all rent
delinquencies as of the tenth (1Oth) day of the same month.
(vi) By the fifteenth (15th) day of each month, the Agent will
furnish the Owner with a statement of receipts and
disbursements during the previous month, and with a
schedule af accounts receivable and payable, and reconciled
bank statements for the Account as of the end of the previous
month.
(vii) The Agent shall cooperate with the Owner to, execute and
file all forms, reports and returns required by law in
connection with the employment of personnel, including
unemployment insurance, worker's compensation insurance,
disability benefits, social security and other similar
insurance, benefits and taxes now in effect or hereafter
imposed.
701.17 Operating Budget. At least sixty (60) days before the beginning
of each new fiscal year for the Project, the Agent shall prepare
and submit to the Owner budget, setting forth an itemized statement
of the anticipated receipts and disbursements for the Project.
701.18 Marketing Duties. The Agent shall immediately assume responsibility
for all functions and services as described in the marketing plan
submitted. Such responsibilities shall include but not be limited
to:
(i) development of and due diligence of rent-up occupancy goals;
(ii) development of a month-by-month marketing plan;
(iii) development of a budget for all labor and materials;
(iv) development of marketing policies and procedures;
(v) concept development and production coordination for
collateral materials as well as print and broadcast
advertisement;
(vi) hiring, training and supervision of employed staff and
contract labor;
(vii) informing the Owner of problems requiring adjustment to
the marketing plan or goals;
(viii) maintenance of marketing effort to stabilize occupancy once
the Project is full.
Marketing activities shall be coordinated with on-going
operations once the Project is operational. Activities
shall reflect a broad based effort including community
networking, media use, and print pieces.
701.19 Compliance of Tenants.
(i) The Agent shall at all times during the term of this
Agreement operate and maintain the Project according to
the highest standards achievable. The Agent shall secure
full compliance by the Tenants with the terms and
conditions of their respective leases, rules and
regulations.
(ii) Voluntary compliance shall be emphasized, and the Agent
shall counsel tenants and make referrals to social service
agencies in cases of financial hardship or under other
circumstances deemed appropriated by the Agent, so that
involuntary terminations of tenancy may be avoided to the
maximum extent consistent with sound management of the
Project. The Agent will not, however, tolerate willful
evasion of payment of rent.
(iii) The Agent may lawfully terminate any tenancy when, in the
Agent's judgement, sufficient cause occurs under the terms
of the Tenants's Lease. Statements explaining evictions
shall be filed promptly with the Owner.
(iv) The Agent is authorized to consult with legal counsel
designated by the Owner to bring actions for eviction and to
execute notices to vacate and to commence appropriate
judicial proceedings; provided, however, that the Agent
shall
keep the Owner informed of such actions and shall
follow such instructions as the Owner has prescribed.
Subject to the owner's approval, costs incurred in
connection with such actions shall be considered as
operating expenses.
(v) Tenant applications will be reviewed by the Director who
will make the decisions on acceptance, rejection, and
relocation to another facility based upon tenant's physical
and emotional condition. Agent will carry out their
directions and judgements.
701.2 Qualification of Tenants. The Agent shall require prospective
private pay tenants to complete a confidential financial statement.
As a condition of tenancy, the Agent shall make use of this and other
available information to determine that the prospective tenant has
sufficient income and assets to pay the monthly fees associated
with tenancy.
701.21 Services to Tenants. The Agent shall be responsible for the
effective and efficient provision of tenant services, including the
maintenance of safe and clean common areas and grounds; weekly
housekeeping and laundry service; periodic window washing, carpet
and drapery cleaning; provision of three meals per day, seven days
per week; maintenance of twenty-four hour per day security and
emergency call system; scheduled transportation; recreational
facilities and activities; centrally located mail distribution;
and other contracted services and specified in the Tenant's negotiated
service plan.
The Agent shall insure that systems to delivery all tenant services
are in place, staff hired and trained prior to Project opening.
Recognizing the contribution that quality makes to the successful
long term marketing of the Project, the Agent shall provide
services of consistently high quality, acceptable to the Tenants
and the Owner.
SECTION 801 OTHER ACTS:
The Agent shall perform such other acts and deeds requested by the Owner
as are reasonable, necessary and proper in the discharge of the Agent's
duties under this Agreement.
SECTION 901 LIABILITY OF AGENT
Everything done by the Agent under the provision of this agreement shall
be done as agent of the Owner, and all obligations or expenses incurred
thereunder shall be for the account of and on behalf of the Owner. The
Agent shall not be obliged to make any advance to, or the account of,
the Owner or to pay any sum, except out of the funds held or provided
as aforesaid, nor shall the Agent be obliged to incur any liability or
obligation for the account of the Owner without assurance that the necessary
funds for the discharge thereof will be provided.
SECTION 1001.1 BANK ACCOUNTS:
1001.1 Operating Receipt and Expenses Account. The Agent shall establish
and maintain, in an account, and which is approved by the owner, a
separate account as Agent of the Owner for the deposit of the
monies of the Owner, with authority to draw thereon for any
payments to be made by the Agent to discharge any liabilities or
obligations of the owner incurred in accordance with this Agreement.
This account shall be carried in the name of and designated of
record as
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L.L.C. Operating Receipts and Expense Account". The Agent
shall also establish such other special accounts as may be required
by the Owner or the lender. Any and all interest which may accrue
on deposits contained in any accounts established in accordance
with this paragraph shall be used by the Agent to discharge any
liabilities or obligations of the Owner in the same manner as the
Agent uses other monies of the Owner.
1001.2 Community Fee and Security Deposit Account. The Agent shall
collect, deposit and disburse Tenants' community fee and security
deposits in accordance with the terms of the respective Leases.
Tenants' community fee and security deposit shall be deposited by
the agent in an interest-bearing account, with a bank or other
financial institution whose deposits are insured by the FDIC.
This account shall be carried in the name and be designated of
record as
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Security Deposit Account."
SECTION 1101 STAFF FACILITIES AT PROJECT SITE:
The Owner shall furnish the Director and support staff with suitable
office space and office furniture on the site of the project and with
electricity, heat, water and janitorial service therein. For all operational
staff the Owner shall provide office accommodations as necessary to perform
their assigned functions, as well as safe storage for appropriate personal
belongings and staff dining space furnished with tables and chairs which
allow staff to eat or take breaks in reasonable comfort.
SECTION 1201 COMPENSATION OF AGENT:
The compensation which the agent shall be entitled to receive for all
Project management services performed under this agreement shall be $1,500
per month or 7% of the gross collections of the Project which ever is
greater. This fee shall be computed and paid monthly based upon Gross
collections for the preceding month. Expenses not agreed to be charged
to the project and all of the Agent's overhead expenses will be borne
by the Agent out of its own funds and will not be treated as an operating
expense of the Project.
The Agent shall receive compensation for preliminary management and
marketing services at $1,500 per Month prior to the opening date or as
specified in the plan.
SECTION 1301 NONDISCRIMINATION:
In the performance of its obligations under this Agreement, the Agent
will comply with the provisions of any federal, state, or local law
prohibiting discrimination in housing on the grounds of race, color, sex,
religion, or national origin as stated in POLICIES & PROCEDURES. This
Agreement may be terminated or suspended, in whole or in part, by the
Owner upon the basis of a finding by the Owner that the Agent has not
complied with nondiscrimination provisions.
SECTION 1401 EXPIRATION AND TERMINATION
1401.1 Expiration. Unless sooner terminated pursuant to Section 1401.2,
1401.3, 1401.4, 1401.5 or 1401.6 of this Agreement, the Agreement
shall be in effect from the date of execution hereof until January
1, 2010. This Agreement shall be renewable with the mutual consent
of the Owner and the Agent.
1401.2 Termination by Mutual Consent: This Agreement may be terminated
by the mutual written consent of the Owner and Agent only. Owner
and Agent shall submit their written request to terminate this
Agreement to the lender at least sixty (60) days prior
to the date specified for termination.
1401.3 Termination by Owner for Cause: In the event that the Agent shall
fail to perform any of its duties hereunder or comply with any of
the provisions hereof, the Owner shall notify the Agent, the lender
and the insurer of the Owners intent to terminate this Agreement by
delivering to the Agent
written notice to remedy such default. If such default is not
remedied within thirty (30) days, from the date of notice to the
Agent, the Owner may, with prior written consent from the lender
and the insurer, terminate this Agreement immediately.
1401.4 Termination Because of Bankruptcy: In the event that the Owner
or the Agent shall become insolvent, however defined; shall be
dissolved; shall commit an act of bankruptcy under the United
States Bankruptcy Act (as now or hereafter amended); shall file or
have filed against it, voluntarily or involuntarily, a petition in
bankruptcy or for reorganization or for the adoption of an
arrangement under the United States Bankruptcy Act (as now or
hereafter amended); shall make an assignment of the benefit of
creditors; shall procure, permit or suffer, voluntarily or
involuntarily, the appointment of a receiver or trustee to take
charge of any of the mortgaged property or any other propertied
owned by the Owner or the Agent, voluntarily or involuntarily,
any act, process or proceeding under any insolvency law or the
statute or law providing for the modification or adjustment of
the rights of creditors, either party hereto may immediately
terminate this Agreement without notice to the other party.
1401.5 Accounting Upon Termination. Within ten (10) days after the
termination of this Agreement, the Owner and Agent shall account
to each other with respect to all matters outstanding as of the
date of termination. The Owner shall furnish the Agent security
against any outstanding obligations or liabilities which the
Agent shall turn over to the Owner all records, documents or
other instruments, waiting lists and any and all other files and
papers in its possession pertaining to the Agent's performance
under this Agreement,
SECTION 1501 ASSIGNMENTS:
This Agreement shall inure to the benefit of any constitute a binding
obligation upon the Owner and the Agent, and their respective successors
and assigns, provided that the Agent cannot assign this Agreement or any
of its duties hereunder without the prior written consent of the Owner
and the lender.
SECTION 1601 AMENDMENT:
This Agreement constitutes the entire agreement between the
owner and the Agent, and no amendment or modification thereto shall be valid
and enforceable except by supplemental agreement is executed in writing and
approved by the Owner, the Agent, the lender and insurer.
SECTION 1701 EXECUTION OF COUNTERPARTS:
For the convenience of the parties, this agreement has been executed
in counterpart copies, which are in all respects similar and each of which
shall be deemed to be complete in itself so that any one may be introduced
in evidence or used for any other purpose without the production of the
other counterparts.
SECTION 1801 MISCELLANEOUS:
Wherever used in this Agreement, the singular number shall include the
plural, and the plural shall include the singular; and the use of any
gender shall apply to all genders. The captions and the headings of the
sections of this Agreement are for convenience only and are not to be
used to interpret or define the provisions hereof.
SECTION 1901 WAIVER
No waiver of a breach of any of the agreements or provisions contained
in this Agreement shall be construed to be a waiver of any subsequent
breach of the same or of any other provisions of this Agreement.
SECTION 2001 SEVERABILITY:
If any clauses, sentence, section, paragraph, provision or part of this
Agreement is judged to be invalid or unenforceable, such adjudication
shall not affect or invalidate the remainder of this Agreement, it being
understood and agreed that such invalid or unenforceable clause, sentence,
paragraph, provision or part is and shall be severable from the remainder
of this Agreement.
2101 NOTICE:
Whenever any notice is required to be given herein, Notice shall be deemed
to have been given when sent by certified mail to this Agreement at the
following addresses:
OWNER:
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AGENT:
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SECTION 2101 EXECUTION OF AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
AGENT: The Forsythe Group, Inc. OWNER: Biltmore Group of Louisianan LLC
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BY: By:
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Agent President
AND
By: Joanne M Caldwell-Bayles
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Owner
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