PROPERTY MANAGEMENT AGREEMENT
This PROPERTY MANAGEMENT AGREEMENT (the “Agreement”) is effective as of November 23, 2019 (the “Effective Date”) by and among Vermont Huts Association Ltd., a Vermont non-profit Corporation, with a place of business at 51 Main St., Stowe, VT, 05672 (the “Property Manager”) and Vermont Ventures LLC, (the “Property Owner”) the owner(s) of Shrek’s Cabin located near 1137 Tweed River Drive Stockbridge, VT, which is more particularly described in Exhibit A attached hereto and incorporated herein (the “Hut”) and (each individually a “Party” or collectively the “Parties”).
WHEREAS, the Property Manager, is in the business of advertising, booking, and maintaining short-term rentals for tenants (the “Guests”); and
WHEREAS, the Property Owner, agrees to allow short-term rentals of the Huts and desires to engage the Property Manager to provide certain services to the extent agreed to in Exhibit B.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- Short-term Rental. “Short-term rental” means a furnished house, condominium, or other dwelling room or self-contained dwelling unit rented to the transient, traveling, or vacationing public for a period of fewer than 30 consecutive days and for more than 14 days per calendar year.
Commencement and Termination.
- The Term of this Agreement shall begin on the Effective Date and shall continue for three (3) years therefrom, unless sooner terminated as provided herein. The Property Owner and the Property Manager may elect to extend this Agreement beyond the Term set forth above by mutual written agreement.
- This Agreement may be terminated immediately by either party on prior written notice to the other party upon the occurrence of (i) a material breach by the other party of any covenant, duty or undertaking herein, which material breach continues without cure for a period of fifteen (15) days after written notice of such breach from the non-breaching party to the breaching party, or (ii) a party becomes insolvent, is unable to pay its debts as they mature or is the subject of a petition in bankruptcy, whether voluntary or involuntary, or of any other proceeding under bankruptcy, insolvency or similar laws; or makes an assignment for the benefit of creditors; or is named in, or its property is subject to a suit for appointment of a receiver; or is dissolved or liquidated.
- In addition to the foregoing, either party may terminate this Agreement at-will and without cause by providing ninety (90) days’ prior written notice to the other party.
- The termination of this Agreement for any reason shall not release either party hereto from any liability which at said time has already accrued to the other Party hereto, nor affect in any way the survival of any right, duty or obligation of the parties, which shall continue indefinitely after such termination or as otherwise specifically provided in this Agreement.
Fees and Management.
- Property Manager and Property Owner shall manage, operate, and/or maintain the Short-Term Rental of the Hut(s), with responsibilities described in Exhibit B, in a commercially reasonable manner for the Guests, and subject to (a) applicable governmental requirements, and (b) the terms and provisions of this Agreement.
- Property Owner shall pay to Property Manager 10 percent for each rental based on the maintenance checklist and fee schedule set forth in Exhibit B.
- Employees, Independent Contractors, and Volunteers of the Property Manager. The Property Manager may employ, directly or through third party contractors, employees, independent contractors, and/or volunteers to enable the Property Manager to manage, operate, and/or maintain the Huts. All matters pertaining to the supervision of such employees, independent contractors, and volunteers shall be the responsibility of the Property Manager. Property Owner agrees that all such employees, independent contractors, and volunteers shall have the necessary permissions and rights to enter the property and maintain the property for the purposes of fulfilling the obligations of this Agreement.
- The Rental Agreement between VT Huts and Guests. The Property Manager shall use commercially reasonable efforts to obtain and maintain accurate records of Guests.
- Compliance with any and all laws.
- The Property Manager and Property Owner agree that there shall be no intentional discrimination against or segregation of any person or group of person on account of age, race, color, religion, creed, handicap, sex, or national origin in the rental of the Hut(s), nor shall the Party’s knowingly permit any such practice or practices of discrimination or segregation with respect to the selection, location, number, or occupancy of the Guests.
- Property Owner shall be added as an additional insured under Property Manager’s general liability policy.
- The Property Owner is advised to keep in force their own adequate insurance against physical damage and against liability for loss, damage, or injury to property or persons that might arise out of the occupancy, management, operation, or maintenance of the Hut(s).
- Limitation on Liability. UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL PROPERTY MANAGER, ITS AFFILIATES OR ITS SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF PROPERTY MANAGER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST PROPERTY OWNER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH PROPERTY OWNERS’S IMPLEMENTATION OF ANY RECOMMENDATIONS BY PROPERTY MANAGER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE SERVICES PROVIDED BY THE PROJECT MANAGER. IN THE EVENT OF ANY LIABILITY INCURRED BY PROPERTY MANAGER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF PROPERTY MANAGER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY PROPERTY MANAGER FROM PROPERTY OWNER FOR THE PAST 12 MONTHS.
- The Property Owner will defend, indemnify and hold harmless the Property Manager, and its current and former officers, directors, employees, agents, and their respective successors, heirs and assigns, from and against any and all claims, damages, liabilities, losses and expenses (including reasonable attorneys’ fees and expenses of litigation) which may arise out of the Short-Term Rental of the Hut(s).
- The Property Manager will promptly advise the Property Owner of any claim, damage, liability, loss, or expense for which it will seek to invoke its rights under this Section 6 and reasonably cooperate with the Property Owner in the defense and/or settlement thereof (at the Property Owner’s reasonable expense). The Property Owner will have the right to control the defense or settlement of any claim, except that the Property Manager shall have the right to participate in such defense at its own cost and expense.
- Independent Contractor. Relationship between the Property Owner and the Property Manager. The Property Owner and the Property Manager do not intend to form a joint venture, partnership, or similar relationship. Instead, the parties intend that the Property Manager shall act solely in the capacity of an independent contractor for the Property Owner. Nothing in this Agreement shall cause the Property Manager and the Property Owner to be joint venturers or partners of each other, and neither shall have the power to bind or obligate the other party by virtue of this Agreement, except as expressly provided in this Agreement. Nothing in this Agreement shall deprive or otherwise affect the right of the parties to this Agreement to own, invest in, manage or operate, or to conduct business activities that compete with the business of Vermont Huts.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof. All previous agreements or arrangements (if any) between the Parties, written or oral, relating to the subject matter hereof are hereby canceled and superseded. This Agreement may not be modified except in writing signed by both Parties.
- Headings are inserted for convenience and shall not affect the meaning or interpretation of this Agreement.
- Assignment. Neither Party may assign or delegate any right or obligation hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, and either Party may assign some or all of its rights and/or obligations hereunder without such consent to any successor in connection with a merger, or reorganization or in connection with the sale of its stock or assets or an identifiable part of its business; and provided further that in the case of such assignment, the assignor shall guarantee performance of the provisions and obligations hereunder of the assignee. Any attempted assignment or delegation in violation hereof shall be void.
- Waiver of Default. No waiver of any default hereunder by either Party or any failure to enforce any right hereunder shall be deemed to constitute a waiver of any subsequent default with respect to the same or any other provision or obligation hereof. No waiver shall be effective unless made in writing with specific references to the relevant provision(s) of this Agreement and signed by a duly-authorized representative of the party granting the waiver.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Vermont, without regard to its conflict of laws principles. Any suit or action in connection with this Agreement must be brought in the state or federal courts in Vermont, as appropriate. The Parties consent to the jurisdiction of such courts and agree to accept service of process by mail.
- Force Majeure. If either party is prevented from performing any obligation or provision hereunder by reason of fire, explosion, strike, labor dispute, casualty, accident, lack or failure of transportation facilities, flood, war, civil commotion, acts of God, and law, order or decree of any governmental agency or any other cause beyond the reasonable control of such Party, such Party shall be excused from performance hereunder to the extent and for the duration of such prevention, provided it first notifies the other Party in writing of such prevention.
- Publicity. The Parties agree to keep this Agreement confidential; provided, however, that nothing contained herein shall prevent a Party from complying with applicable law requiring disclosure of information relating hereto.
- Costs of Negotiating Agreement. Each Party shall bear its own costs and expenses related to negotiating and executing this Agreement.
- Independent Contractors. Nothing in this Agreement shall constitute either Party as the partner or agent of the other and neither Party shall attempt to bind the other to performance or observance or obligations (financial or otherwise) to any third party.
- Severability. If any provision hereof shall be held to be illegal or unenforceable, the remainder of this Agreement shall remain in full force and effect.