Hast and Company Property Management agreement with MHA and TCH

AGREEMENT made and entered into this ____day of December 2004, by and between Mapleton, LLC (MLLC), a Colorado Limited Liability Corporation (the Owner) and Mapleton Home Association (“MHA”) a 501c3 non-profit corporation and HAST & COMPANY, a Colorado corporation (“Agent”).

IN CONSIDERATION of the covenants herein contained, the parties agree as follows:

1. MLLC and MHA hereby employ Agent, as an independent contractor, exclusively to manage the leased property known as The Mapleton Mobile Home Park, 2635 Mapleton Ave., Boulder, Colorado 80304. MHA has been assigned the oversight of the management of the Park by MLLC, whose sole member is Thistle Community Housing, and, unless specifically directed otherwise in this agreement or in subsequent written direction to Agent from both MLLC and MHA, Agent shall provide the services hereunder set forth under the direction of MHA.. Such contract, upon the terms hereinafter set forth, shall extend for a period of one (1) year beginning on the 9th day of December, 2004, and ending on the 31st day of December, 2005, and hereinafter for yearly periods from January 1st to December 31st, unless on or before sixty (60) days prior to the expiration of any such renewal period either party hereto shall notify the other in writing that it elects to terminate this Agreement, in which case this Agreement shall be thereby terminated on said last mentioned date.

2. Agent agrees to perform all of its duties with diligence and in accordance with the standards of professional property management in the County of Boulder, Colorado. On or before the 15th day of each month, Agent shall send, in form satisfactory to MHA, with copies to MLLC:

1. Agent’s reporting format will conform with any established lender and MLLC requirements for the property. Agent shall also maintain adequate books and records concerning the operation and maintenance of the Premises and make all payments due in connection therewith as they arise, including without limitation mortgage and ground lease fee and rental payments due to MLLC, taxes, and the compensation to Agent as specified in this agreement, providing that adequate funds are available. Agent shall not be obligated to advance Agent’s funds to the MHA account for this purpose. Agent shall allow MHA or MHA’s accountants, attorneys and agents, the right to examine or inspect the books and records relating to operation of the Premises at any time during business hours upon written notice to Agent.

To give Agent the following authority, and powers (all or any of which may be exercised in the name of MHA) and agrees to assume all expenses in connection therewith:

a. To advertise the Premises or any part thereof, to display signs thereon and to rent the same; to cause references of prospective tenants to be investigated; to sign leases for terms not in excess of one year without prior approval of MHA and MLLC, and to renew and /or cancel existing leases and prepare and execute new leases, in conjunction with MLLC who is responsible for maintaining the Affordability Agreement, provided, however, that Agent may collect from tenants all or any of the following; a late rent administration charge, a nonnegotiable check charge, a credit report fee, and a subleasing administrative charge; to terminate tenancies and to sign and serve such notices as are deemed needful by Agent; to institute and prosecute actions to evict tenants and to recover possession of the Premises; to sue for and recover rent; and, when expedient, to settle, compromise and release such actions or suits or reinstate such tenancies provided, however, that no such action shall be undertaken without the prior approval of MHA.

b. To hire, contract for, discharge and supervise all labor or employees required for the operation and maintenance of the Premises. Except for independent contractors, all employees working on the property will be bonded employees of Agent and all such employee cost will be paid by the Agent. Agent will be reimbursed for total payroll burden by MHA. The payroll burden will include: FICA, FUTA, SUTA, Worker’s Compensation, Vacation and Sick pay, Uniforms, Pagers, Group Insurance and Mileage. No such employees, however, shall be employed without the prior written approval of MHA. Agent will not hire any Resident Manger or Resident Maintenance Person without prior approval from the MHA Management Committee.

c. To monitor, inspect premises and to alert MHA in writing of any long-term issues or concerns. To make or cause to be made to the Premises repairs, alterations, replacements and improvements, and to purchase supplies for the same and to purchase operating supplies. Prior approval, however, of MHA shall be secured by Agent on all matters involving variances from the approved budget in excess of $500.00 for any one item, except for monthly or recurring operating expenses and/or emergency repairs in excess of the maximum if, in the opinion of Agent, such repairs are necessary to protect the Premises or to maintain services to the tenants as called for by their leases. The MHA Board and the MLLC Board shall review and approve in advance all replacements and/or projects which will costs in excess of $5,000 or any replacement or projects when a maximum of $10,000 dollars in costs has been reached in one year regardless of their individual limits, unless such expenses were already approved in the annual operating budget for the property.

d. To collect rents and/or assessments and other items due or to become due and give receipts therefore and to deposit all funds collected hereunder in Agent’s custodial account.

e. To refund or retain, and account for, in accordance with law, tenant’s security deposits at the expiration of leases and, with Agent’s discretion or as required by law, to pay interest thereon.

f. To contract, at MHA’s request, in the name of MHA and MLLC, with insurance companies and through brokers for fire insurance with extended coverage in an amount of not less than ninety percent (90%) of the current replacement value of the Premises and for such other insurance as is normally carried, including public liability insurance, insuring M LLC, MHA and Agent against all damages resulting to persons or property in or about the Premises. The limit of liability under said liability insurance policy shall be designated by MHA and MLLC, but shall not be less than $1,000,000.00 general liability coverage. No such contract for insurance shall be entered into without prior approval of MHA and MLLC. Whether or not MHA and MLLC opts to have Agent place such insurance, MHA and MLLC agrees to carry in place the public liability insurance as described above during the term of this Agreement. Agent will also be responsible to contract, on behalf of MHA, for Directors and Officers insurance to cover the board of MHA.

a. To make contracts for electricity, gas, water, fuel, waste removal or rubbish hauling, rental equipment and such other services as Agent may deem necessary, in the furtherance of its duties hereunder.

Within thirty (30) days after closing, a revised budget shall be created and approved by both MHA and MLLC.

a. To maintain courteous and businesslike relations with residents, whose service requests shall be received, considered and recorded in systematic fashion, and responded to promptly and efficiently. Requests or complaints which are deemed extraordinary by Agent shall, after thorough investigation, be reported to MHA with appropriate recommendations.

a. To prepare and maintain accurate payroll time sheets for all personnel. Prepare payroll checks on a timely basis and disburse same to all property personnel.

a. Agent’s staff will attend a monthly meeting attended by Chairs of the Management, Finance, Site Committees and the MHA Executive Board, and MLLC. In addition, Agent will:

3. Administer the maintenance budget and projects that fall under the spending cap agreed to by all parties, consult with the MHA for maintenance issues beyond the spending cap, and consult with the MHA Finance Committee regarding the capital reserve budget

6. Notify MHA of any significant risk, either financial or procedural, based on enforcing the rules and regulations for Mapleton Mobile Home Park with copies sent to the Owner.

7. Present suggestions for property improvements or anticipated expenses due to such suggestions

8. Mediate problems beyond the normal application of the Park Rules and Regulations with the oversight of the Management Committee

10. Attend 13 meetings a year with the MHA. Any meetings beyond these 13 will incur extra expense. Any additional meetings required by the MLLC will be paid for by the MLLC.

· MHA’s expenses as requested (which are to be accounted for under separate line item in the budget and expense reports)

a. To provide to MHA and MLLC no later than 45 days prior to the fiscal year end, comprehensive operating, capital and reserve budgets for the subsequent 12 months operating year. Said operating budget will be reviewed by the MHA Management Committee and the capital and reserve budget to be reviewed by MHA Finance Committee, and both budgets to be reviewed and approved by MLLC and MHA Board of Directors. In the absence of instructions to the contrary, these budgets will become operative on the first calendar day of the operating year.

1. MHA agrees to promptly supply Agent, upon demand, any funds needed to pay operating expenses incurred in the performance of the Agreement. If the custodial account established for operation of the Premises does not contain sufficient funds for one or more disbursements, Agent may, after notifying MHA and MLLC of such insufficiency, defer making any disbursement until MHA has furnished the funds necessary for such disbursement. Agent may disburse funds for Agent’s fees or Agent’s other receivables from charges billed to the account ahead of any other disbursements due.

2. Agent agrees to provide to MHA at the commencement of this agreement all necessary and appropriate documents that assisted Agent in managing the Premises previously including, but not limited to prior period accounting records, copies of building plans, and copies of any contracts pertaining to the operation of the Premises if approved by the City of Boulder as the prior owner of the property.

3. MHA and MLLC agree to provide to Agent at the commencement of this agreement all necessary and appropriate documents to assist Agent in managing the Premises including, but not limited to MHA’s Tax identification number.

1. Agent agrees to provide to MLLC at the commencement of this agreement and on a continuing basis, copies of leases and lease correspondence pertaining to the operation of the Premises , and facilitate, at MHA’s request, the preparation of all forms and reports necessary for MLLC to fulfill the Affordability and Lender requirements.

1. MHA agrees not to hire or attempt to hire any employee of Agent directly involved with day-to-day management of the Premises during the time this Agreement is in effect and for a period of one year after termination of this Agreement, with the exception of the Resident Manager and Resident Maintenance Person who may be hired by MHA, if the Agreement with the Agent is not renewed.

2. Agent shall maintain a separate bank account(s) with US Bank with the exception of the Operating Account which will be maintained in a bank or financial institution whose deposits are insured by the Federal Deposit Insurance corporation, in a manner to indicate the custodial nature thereof, for the deposit of the monies and to draw thereon for any payments to be made by Agent to discharge any liabilities or obligations incurred pursuant to this Agreement. Normal operating expenses of the Property will be paid from Agent’s Custodial Account, which will be promptly reimbursed by MHA as needed. Agent will attend monthly meetings that include representative s of MHA’s Management, Finance and Executive Board as well as the MLLC.

3. Agent agrees not to collect or charge any undisclosed fees, rebates, or discounts. Any fees, rebates or discounts which are received shall be credited to the property.

4. Agent shall prepare for execution and filing all forms, reports, and returns required by law in connection with unemployment insurance, workmen’s compensation, temporary disability insurance benefits, EEOC Claims, COBRA, I9’s, social security and other similar requirements now in effect or hereafter imposed, and also pre-employment requirements relating to the employment of personnel.

a. The complaint or appeal may be submitted in writing to MLLC's CLT Committee by way of MLLC's staff representative, currently the Thistle CLT staff

i. Acknowledge receipt of the complaint within three business days, in writing (at the MLLC’s discretion.)

ii. The MLLC board or designated Committee, currently the Thistle CLT Committee, will discuss the issue at their next regularly scheduled meeting.

iii. The designated Committee will provide a written response within five business days of the meeting.

a. If the response provided by MLLC is not satisfactory, the parties in the dispute, plus the Resident Manager, Property manager and/or Chair of the Management Committee as needed or appropriate, will participate in mediation.

b. If mediation fails to resolve the issue, the parties will submit to binding arbitration using standards mutually agreed upon.

1. Agent shall be responsible for its conduct, in accordance with the laws of this state, and will keep in force sufficient liability and errors and omissions insurance in an amount not less than $1,000,000.

a. Agent will provide MHA and MLLC with a Certificate of Insurance stating that it has in force both public liability and worker’s compensation coverage for the term or successive terms of this Agreement..

1. Agent agrees to indemnify, defend, and hold harmless MHA and MLLC from all claims, actions or suits of whatever nature arising from an action or omission performed or omitted fraudulently by Agent or in bad faith or which constitutes wanton or willful misconduct or negligence. Agent agrees to promptly notify MHA and MLLC in writing of any such actual or pending claim or action.

2. Agent does not assume and is given no responsibility for compliance of any building on the Premises or any equipment therein with the requirements of any statute, ordinance, law or regulation of any government body or of any public authority or official thereof having jurisdiction, except to notify MHA and MLLC promptly or forward to MHA and MLLC promptly any complaints, warnings, notices or summonses received by it relating to such matters.

3. MHA and MLLC agree to indemnify, defend and save the Agent harmless for all suits in connection with the Property and from any liability incurred as a result of Agent’s entering into this Agreement or performing its obligations under this Agreement, for damage to property and injuries to or death of any employee or other person whomsoever, and carry at its own expense public liability, naming the MHA, MLLC and the Agent adequate to protect their interests and in form, substance, and amounts reasonably satisfactory to the Agent, and furnish to the Agent certificates evidencing the existence of such insurance. Unless the MHA Board shall provide such insurance and furnish such certificates within thirty (30) days from the date of this agreement, the Agent may, but shall not be obligated to, place said insurance and charge the cost thereof to the account of MHA.

A. MHA and MLLC agree to pay all expenses incurred by the Agent including, without limitation, attorney’s fees for counsel employed to represent the Agent or MHA and MLLC in any proceeding or suit involving an alleged violation by the Agent or MHA and MLLC, or both, of any constitutional provision, statute, ordinance, law or regulation of any governmental body pertaining to environmental protection, fair housing, or fair employment including, without limitation, those prohibiting or making illegal discrimination on the basis of race, creed, color, religion, or national origin or genetic characteristics in the sale, of other disposition of housing or any services rendered in connection therewith or in connection with employment practices (unless, in either case, the Agent is finally adjudicated to have personally and not in a representative capacity violated such constitutional provision, statute, ordinance law, or regulation), but nothing herein contained shall require the Agent to employ counsel to represent MHA in any such proceeding or suit.

B. MHA and MLLC agree to indemnify, defend and hold the Agent harmless from all claims, investigations and suits with respect to any alleged or actual violation of state or federal labor laws. MHA’s and MLLC’s obligation under this paragraph 16 shall include the payment of all settlements, judgments, damages, liquidated damages, penalties, forfeitures, back pay awards, court costs, litigation expense and attorney’s fees.

1. In the event it is alleged or charged that any building on the Premises or any equipment therein or any act or failure to act by MHA and MLLC with respect to the Premises or the sale, rental or other disposition thereof fails to comply with, or is in violation of, any of the requirements of any constitutional provision, statute, ordinance, law, or regulation of any governmental body or any order or ruling of any public authority or official thereof having or claiming to have jurisdiction thereover, and Agent, in its sole and absolute discretion, considers that the action or position of MHA and MLLC with respect thereto may result in damage or liability to Agent, Agent shall have the right to cancel this Agreement at any time by written notice to MHA and MLLC of its election to do so, which cancellation shall be effective upon the service of such notice. Such notice may be served personally or by registered mail, on or to MHA and MLLC at the address designated, and if served by mail shall be deemed to have been served when deposited in the mails. Such cancellation shall not terminate any liability or obligation of MHA and MLLC to Agent for any payment, reimbursement or other sum of money then due and payable to Agent hereunder.

1. MHA agrees to pay Agent each month in which this Agreement remains in full force and effect, for management a base fee of $2,000 per month or six percent (6%) of the monthly gross receipts from the operation of the property, whichever is the greater amount. Gross receipts shall be defined herein as the aggregate amount of all receipts (determined on a cash accounting basis) from the operation of the Premises, including, but not limited to, rents, expense recovery, security deposit forfeitures, vending income and insurance proceeds for rental interruption, but excluding Grants and other non-operating income. In addition, Agent shall pass through to the property all cost for copying, painting, postage and misc. office supplies as well as one half of all late fees collected.

2. Either party to this Agreement may cancel the Agreement at any time if the other party is in default defined hereunder as a failure to keep, preserve, or perform any material covenant, agreement, term, or provision hereof; and if such default is not cured within five (5) days after written notice in the case of monetary default, and/or if such default is not cured within thirty (30) days after written notice in the case of monetary default, and if such default is not cured within thirty (30) days after written notice in the case of any other default. Such notice may be served personally or by registered mail, on or to MHA and MLLC at the address designated, and if served by mail shall be deemed to have been served when deposited in the mails. This Agreement may be cancelled by MHA and MLLC without cause before the termination date specified in Paragraph One on not less than sixty (60) days prior written notice to Agent provided that the termination of this Agreement falls after the first twelve months of the Agreement. Agent agrees to cooperate with any newly hired other Agent if this contract is terminated. It is expected that a transition period of up to 60 days may be needed to effectively transfer the account. Such notice may be served personally or by registered mail, on or to Agent at the address designated, and if served by mail shall be deemed to have been served when deposited in the mails.

A. In the event Agent terminates this Agreement due to default by MHA and MLLC, MHA and MLLC shall be obligated to pay any sums payable to Agent prior to such termination.

B. All sums due Agent upon termination may be paid out of Agent’s custodial account to the extent funds are available. Upon termination, MHA and MLLC shall remain bound by all contracts which Agent has entered into with third parties pertaining to the premises and the management there of. Termination hereof shall not release MHA and MLLC from any proper obligations to Agent. Within Thirty days after termination, Agent shall render a final accounting to MHA and MLLC and forward all necessary documents, including leases held by Agent to MHA and MLLC, as appropriate.

1. MHA and MLLC expressly withhold from Agent any power or authority to make any structural changes in any building or equipment therein, or to incur any expense chargeable to MHA and/or MLLC other than expenses related to exercising the express powers above vested in Agent without MHA’s and MLLC’s prior written permission.

2. This Agreement may not be modified, altered, or amended in any manner except by an agreement in writing duly executed by the parties hereto.

3. The waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach thereof.

4. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors or assigns, provided, however, that no assignments by Agent shall be made without prior written consent of MHA and MLLC. If MHA defaults, provisions in the Master Land Lease provide that MLLC shall have the right to assume all rights and responsibilities under this agreement.

1. Agent agrees to facilitate the Management Committee in their learning of: the reading of financial statements, Pro Formas, budgets, and management laws, rules, regulations and standards for Mapleton Mobile Home Park during regularly scheduled monthly meetings of said committee at no additional fee.

2. Agent agrees to follow the MHA grievance procedure found in the Management Plan, in the event of grievances between: resident and the Agent; between MHA and Agent; between Agent and MLLC. Binding arbitration will use the standards of the American Arbitration Association or as mutually agreed upon.

In Witness Whereof, the parties hereto have duly executed this Agreement as of the day and year first written above.

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