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THIS AGREEMENT made the 1st day of October, 2018.
THE OWNERS, STRATA PLAN LMS 3764 a strata corporation, existing under the laws of the Province of British Columbia located at 6885 – 184th Street, Surrey, BC V3S 9G1 and known as ‘Creekside’
(the “ Strata Corporation”)
NAI GODDARD & SMITH REALTY, a corporation existing under the laws of the Province of British Columbia, located at 5718 Glover Road, Langley, B.C., V3A 4H8
IN CONSIDERATION of the sum of $2 paid by each of the parties to the other (the receipt of which is acknowledged by each party), the mutual covenants contained in this Agreement and other good and valuable consideration, the parties agree with each other as follows:
The terms used in this Agreement shall have ascribed to them the definitions contained in the Strata Property Act of British Columbia, as amended (the "Act").
2. Appointment of Manager
The Strata Corporation appoints the Manager to be the Manager of the property shown on the strata plan for the Strata Corporation (the "Property") and to be its sole and exclusive representative and managing agent to manage the Property and the affairs of the Strata Corporation, subject to the Act and the terms and conditions in this Agreement, for a period of one year, commencing on October 1st, 2018,with respect to the Strata Corporation, and for the purposes thereof, in the name of the Strata Corporation, to act for it and on its behalf in the carrying out of such contracts and agreements in the name of the Strata Corporation, to act for it and on its behalf in the carrying out the duties of the Manager, including the right to enter into such contracts and agreements in the name of the Strata Corporation as may be necessary in the performance of such duties
3. Acceptance of appointment
Subject to paragraph 4 of this Agreement, the Manager accepts such appointment and agrees to manage the Property and affairs of the Strata Corporation on behalf of the Strata Corporation in a faithful, diligent and honest manner in accordance with the terms and conditions in this Agreement and the provisions of the Act. The Manager confirms that it, and any individual assigned to the Strata Corporation, at all times, be licensed to provide Strata Management service, as licensed under the Real Estate Services Act.
4. Strata Plan and By-laws
The Manager acknowledges that it is familiar with the terms of the strata plan of LMS 3764 (the “Strata Plan”) and the by-laws of the Strata Corporation registered pursuant to the Act (the "By-laws").
5. Manager's covenants
The Manager in the performance of its duties shall:
to the extent it is so able to do, enforce the terms of the Strata Plan, By-laws and rules of the Strata Corporation and any amendments thereto which presently exist or which may be made and notified to the Manager in writing, unless otherwise directed by the section executive of the Strata Corporation (the "Executive") and any legal expenses incurred therewith shall be paid by the Strata Corporation;
promptly communicate to all owners the text and importance of any further by-laws or rules;
advise and consult with the Executive with respect to any further by-laws and rules which in the opinion of the Manager ought to be established to further the harmonious and satisfactory operation of the Property for the common benefit of the owners;
use its best endeavours to prepare and keep current the Strata Corporation's records from information supplied by the Executive;
collect and receive in trust for the Strata Corporation all moneys payable by the owners, pursuant to the Strata Plan and By-laws of the Strata Corporation and others pursuant to any lease or legal obligations of the Strata Corporation and to deposit same in a trust account(s) administered by the Manager. The Manager will at all times have the exclusive right of signing, drawing, and negotiating all cheques, drafts, bills of exchange and under-taking on behalf of the Strata Corporation for the purpose of:
making payments of all accounts properly incurred by or on behalf of the Strata Corporation;
maintaining an Operating Trust Account and Contingency Reserve Fund with monthly contributions and transfers pursuant to the Bylaws of the Strata Corporation, and any other Trust Account if deemed necessary from time to time by the Strata Corporation;
arranging and paying for, out of the funds of the Strata Corporation, insurance to be obtained and maintained by the Strata Corporation in accordance with the provisions of the Act and By-laws provided that such insurance is available to the Strata Corporation from insurance companies authorised to do business in British Columbia and provided, however, that the Manager shall not be liable for any claim which is due to failure to effect or maintain adequate insurance;
repairing and maintaining or causing to be repaired and maintained, the common areas of the Property which require repair and maintenance by the Strata Corporation in accordance with the provisions of the Act and the Strata Plan and By-laws, and, without limiting the generality of the foregoing, such repair and maintenance shall include, without limitation, caring for all lawns and landscaped areas, removing snow, cleaning and maintaining the common elements including lockers, parking areas, lobby and common rooms, keeping all fire, plumbing, gas and electrical services in good working order and providing all necessary supplies including lighting, cleaning and stationary required, providing for the recycling, removal and disposal of garbage, and maintaining such staff as may be required to efficiently carry out the terms and conditions in this Agreement; and
reimbursing the Manager for all services provided pursuant to this Agreement; including expenses incurred by the Manager such as: photocopies, audit fees, legal seals, postage and other similar costs incurred on behalf of the Strata Corporation.
keeping accurate accounts of the financial transactions involved in the management of the Property and affairs of the Strata Corporation and render to the Executive statements of income and expenditures as required by the Act, with respect thereto at agreed upon periods, and keep such accounts open for inspection by the Executive at all reasonable times;
handle as agent, all claims which the Strata Corporation is required under the Strata Plan and By-laws to adjust with respect to any policy or policies of insurance, subject to the approval of the Executive for all damage settlements over $1,000.00;
negotiate, subject to the approval of the Executive, all leases of those parts of the common elements permitted to be leased under the Strata Plan and By-laws;
be empowered to hire as agent, at the Strata Corporation's expense, supervise and dismiss as may be necessary from time to time, all persons required, subject to any budgetary limitation imposed by the Strata Corporation, for the proper operation and maintenance of the Property and its equipment including, without limitation, where necessary and desirable a maintenance person and stationary engineer. All such persons shall be bonded under blanket fidelity insurance policies arranged by the Manager at the Strata Corporation's expense. The Executive may, by a majority vote, request the cessation of service of any on-site maintenance employee, within four weeks of such majority vote;
if so requested, attend up to 12 meetings each calendar year including one (1) Annual General Meeting of the Strata Corporation each year at a times to be deemed acceptable by the Manager, with a duration to a maximum of two hours per meeting; attendance at additional meetings, or those lasting longer than two hours shall be charged out at a rate of $125.00 per hour plus GST;
generally do and perform and where desirable contract, either in its own name as agent, or the Strata Corporation's name, for all things desirable or necessary for the proper and efficient management of the Property and to perform every other act in or about the Property to carry out the intent of this Agreement provided, however, that the Manager shall not authorise any work, repairs, alterations or redecoration estimated to cost in excess of $1,000.00 for any one item without first obtaining the Executive's approval to proceed with such work, except that if such work is urgently required to be done and failure to do such work could in the Manager's opinion result in a hazardous situation which could cause personal injury or damage to the Property or equipment or contents or which could impair the value of the Strata Corporation's investment at a time when the Strata Corporation or its duly authorised representatives cannot be reasonably located for the purpose of giving approval for such work or if failure to do such work might expose either the Strata Corporation or the Manager or both, to the imposition of penalties, fines, imprisonment or any other liability, then the Manager is authorised to proceed with any such work as in its absolute discretion reasonably determines to be urgently necessary for the protection and preservation of the Property or its equipment or contents or the Strata Corporation's investment or to protect the Strata Corporation or the Manager from exposure to fines, penalties, imprisonment or any other liability;
with respect to the Manager's authorised activities, the Manager acknowledges that promissory notes may only be arranged with the prior consent and agreement of Executive;
the Strata Corporation acknowledges that any and all fees charged by the Manager for requested forms, information certificates, and photocopies are in accordance with the prescribed schedule contained within the Strata Act.
6. Officers of Strata Corporation
The duties of the Manager shall not include the duties of the officers of the Strata Corporation set forth in the By-laws, except as specifically otherwise provided in this Agreement.
7. Performance of work and services
The Manager may not engage any affiliated or associated firm or corporation to perform any work or services for the Strata Corporation unless authorized by the Strata Corporation to do so, after disclosure by the Manager of the nature and extent of its affiliation or association.
8. Preparation of statements
The Manager shall assist the Executive to prepare an estimated budget for the coming fiscal year setting forth by categories the Manager's best estimate of all expenses of the operation of the Property for the coming fiscal year. On the request of the Executive or whenever in the opinion of the Manager any changes from the expenditures forecast in the annual budget makes it desirable to do so, the Manager will submit to the Executive a supplementary budget covering the expenses of the Corporation for the operation of the Property for the remaining portion of the current fiscal year. The Manager will make itself available for consultation with the Executive for the purpose of establishing or revising the common expenses to be paid by the owners under the provisions of the Strata Plan and By-laws.
All accounting practices are in accordance with the Act, Real Estate Services Act, and administered on an Accrual Basis.
The Manager will provide to the Executive operating statements and balance sheets on a cash basis.
The Manager will provide a summary to the Executive on a monthly basis within thirty (30) days of the accounting period covered by the summary of all moneys deposited to the bank account maintained for the Strata Corporation and of all disbursements, showing the bank balance at month's end.
The Manager will provide to the Executive a monthly aged statement of common element receivables.
9. Availability of Manager
The Manager will at all times keep the Executive advised of the telephone number or numbers at which the agent of the Manager may be reached at any time during normal business hours together with the night telephone number of at least one representative of the Manager for emergency purposes.
With respect to infractions of the Strata Plan, By-laws or rules, the Manager shall deal in the first instance with minor emergencies and infractions and shall promptly report to the Executive any major emergency or any persistent, flagrant or serious violation of the Strata Plan, By-laws or rules.
It is agreed by the parties that the Manager shall in its discretion determine whether or not any emergency exists and whether or not any such infraction or emergency is of a minor or major nature.
11. Strata Corporation covenants
The Strata Corporation agrees to:
pay to the Manager, monthly, during the term of this Agreement, for its managerial services fees equal to the sum of $ for 68 units, per month plus the Goods and Services Tax (GST). Such remuneration shall be payable on the first day of each calendar month and may be retained by the Manager out of moneys collected by it. The amount of such fees shall be reviewed at one-year intervals, on each anniversary of the date of this Agreement and included for ratification within the Annual Operating budget and approved by all the Owners at each Annual General Meeting. Any fee increases will be negotiated between the Strata Corporation and the Manager;
reimburse the Manager promptly for any moneys which the Manager may elect to advance for the account of the Section Strata Corporation provided that nothing in this Agreement shall be construed to obligate the Manager to make any such advance;
except in the case of negligence on the part of the Manager or those for whom it is in law responsible indemnify the Manager from any and all claims arising out of the Manager's acting in performance of its duties under this Agreement or from any cause whatsoever connected with the Property and the affairs of the Strata Corporation, and to defend at the expense of the Strata Corporation all suits which may be brought against the Manager on account thereof, provided that nothing contained in this paragraph shall release the Manager from any liability to the Strata Corporation in respect of a breach of any of the Manager's covenants, save and except that the Manager shall not be liable for default in its performance of its duties under this Agreement occasioned by the failure of the Strata Corporation to adequately fund or instruct the Manager;
indemnify and save harmless the Manager at the Strata Corporation's expense, against all actions or suits arising out of consultation, research or investigations that they may undertake on behalf of the Strata Corporation from time to time at the request of the Executive or in fulfilling the terms of this Agreement; provided that, the Manager will, in the case of negligence on its part or on the part of those for whom it is in law responsible, indemnify the Strata Corporation from any liability that may arise as a result of its negligence or the negligence of those whom it is in law responsible;
deliver to the Manager copies of all by-laws and rules made by the Strata Corporation or the owners, and notify the Manager as to the date and place of all meetings of the Executive and all meetings of the Strata Corporation;
permit the Manager to have the sole and exclusive right to the use of the management office at the Property, if such exists, during the term of this Agreement, at no cost to the Manager;
deliver, at the expense of the Strata Corporation, any plans, drawings, specifications and architectural or engineering assistance which may be necessary or desirable to enable the Manager to discharge its duties pursuant to this Agreement;
take out or authorise the Manager to arrange for comprehensive liability insurance on the Property to a limit of not less than $2,000,000 inclusive and further that the Manager shall be named as an insured party along with the Strata Corporation as their interest may appear in any such policy or policies which shall provide protection against any claims for personal injury, death, or property damage or loss for which either the Strata Corporation or the Manager might be held responsible and liable as a result of their respective obligations, and the Strata Corporation further agrees to provide the Manager with a certificate of insurance in respect of any such policy which shall include an undertaking that the insurer will provide the Manager with at least ten days' prior to written notice of cancellation or of any material change in the provisions of any such policy;
agree to pay additional remuneration to the Manager for any services rendered by the Manager in negotiating with any persons, organizations, or agency on behalf of or in concert with the Strata Corporation for any persons whose services are required pursuant to paragraphs 5(1)(e)(iii), (j) and (l) of this Agreement, the amount of such remuneration to be determined by the Manager having regard to the extent and value of the services rendered. In the event of a strike or lockout the Manager shall be entitled to additional compensation for any payroll and other out-of-pocket expenses reasonably incurred by it in operating or maintaining the Property through the use of any of its employees, whose administrative or supervisory services would otherwise be provided for within the fees specified in paragraphs (5-1-e-iii), (5-1-e-iv), (5-1-i), (5-1-j) and (5-1-k), to replace or fulfil the duties of the property employees who are on strike or subject to a lockout, such personnel services to be authorised and approved by the Section Executive;
not withstanding anything to the contrary, under no circumstances shall the Manager be liable to the Strata Corporation for the value, cost or amount of any loss or damage to the Property or any contents against which the Strata Corporation is insured and thereby entitled to indemnification from its insurer(s);
advise the Manager in writing from time to time as required of the names of those officers, directors or other representatives who are authorised to act for the Strata Corporation whenever the Manager is required under the terms of this Agreement to consult with the Strata Corporation or to obtain the Strata Corporation's approval before proceeding with any work, act or actions;
reimburse the Manager for the Strata Corporation’s proportionate share of the cost to conduct an annual Review Engagement and Audit as required under the Real Estate Services Act;
12. Obligations of Manager
Not withstanding anything to the contrary, the Manager shall not be required to perform any duty which by the terms of the Act, Strata Plan or By-laws may not be delegated by the Strata Corporation or the Executive, and the Manager shall at no time be obligated or required to incur any financial obligation or do anything hereunder at its cost but, all expenses incurred by the Manager in pursuance of its obligations shall be at the cost of the Section Strata Corporation and shall be paid out of funds belonging to the Section Strata Corporation.
13. Termination by Manager
The Manager may, at its option, terminate this Agreement by giving sixty (60) days' notice in writing to the Strata Corporation, and on termination of this Agreement all obligations of the Manager shall cease and the Strata Corporation shall pay to the Manager any moneys due to it up to the date of such termination of this Agreement. In addition, this Agreement shall terminate on terms of the government of the Act and the provisions hereof with respect to termination shall apply.
14. Termination by Strata Corporation
The Section Strata Corporation may terminate this Agreement on giving sixty (60) days' notice in writing to the Manager provided the Owners authorise such termination by ¾ Vote Resolution passed at a General Meeting of the Strata Corporation.
15. Surrender of documents
The Manager shall surrender to the Strata Corporation upon termination of this Agreement all contracts, records, files and other information which may be pertinent to the continuing operation of the Property subject to the proviso that the Strata Corporation shall reimburse the Manager for any reasonable costs in connection with the reproduction of documents and information which the Manager, acting reasonably, is of the opinion that it should retain to support or verify its action during the currency of this Agreement.
16. Manager's right to represent Strata Corporation in legal procedures
The Strata Corporation authorizes the Manager to hire legal counsel as set forth in the Act to provide advice and, if authorized by the Strata Corporation, to sue and recover all sums due to the Strata Corporation, and to sue for the recover possession of any of the Property or assets of the Strata Corporation. For such purposes, the Strata Corporation appoints the Manager as its attorney and/or permits the Manager to hire an attorney in the name of the Strata Corporation.
17. Payment of GST
Unless otherwise provided in this Agreement, all amounts payable by the Strata Corporation to the Manager for services provided hereunder (the "Fees") shall be exclusive of any Goods and Services Tax (GST) payable thereon and the Strata Corporation shall, in addition to the Fees payable, pay to the Manager all amounts of the GST imposed on the Manager with respect to the Fees.
18. Agent for the Strata Corporation
The Manager and the Strata Corporation acknowledge that the Manager shall undertake its duties as agent of the Strata Corporation
All notices required or permitted to be given under this Agreement shall be
to the Strata Corporation if signed by or on behalf of the party so giving notice and delivered in person or by prepaid courier, or mailed by prepaid registered post, to the Strata Corporation at the address for service set out in the Strata Plan or at such other address as the Strata Corporation may from time to time designate by written notice pursuant to this Agreement;
to the Manager if signed by or on behalf of the party so giving notice and delivered in person or by prepaid courier or mailed by prepaid registered post, to the Manager at: 5718 Glover Road, Langley, BC V3A 4H8, or such other address as the Manager may from time to time designate by written notice pursuant to this Agreement.
All such notices shall be deemed to have been received on the date of delivery or on the second business day next following the date of such mailing.
20. Execution of documents
The parties shall make, do and execute or cause to be made, done and executed all such further things, acts, deeds, documents, covenants and assurances as may be necessary or reasonably required to carry out the intended purpose of this Agreement.
21. Entire agreement
This Agreement embodies the entire agreement of the parties with regard to the matters herein, and no other agreement shall be deemed to exist except as entered into in writing by both parties to this Agreement.
This Agreement and every term, covenant and condition shall enure to the benefit of and be binding on the parties and their respective successors and assigns.
23. Governing law
This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia.
Unless the parties exercise their rights of termination, as set forth in Clauses 14 and 15 herein, or unless the parties execute an Addendum to this Agreement extending the term or changing, amending or adding other items of the Agreement, the term of this Agreement will be reviewed on an annual basis at the Annual General Meeting of the Strata Corporation (AGM).
25. Privacy Act Legislation
Subject to paragraph 4 of this Agreement, the Manager agrees that:
Any personal information disclosed in association with this Agreement, including the names, addresses and personal information of owners, will be used only for the purposes of carrying out this Agreement and will not be disclosed to any person other than an employee of the Manager; and
on completion of this Agreement such personal information will be destroyed.
IN WITNESS WHEREOF the parties have duly executed this Agreement on the date first written above.
Executed by THE OWNERS, STRATA
PLAN LMS 3764
By its authorized Signatories: Per: _____________________________________
Executed by NAI GODDARD & SMITH
By its authorized Signatories: Per: ____________________________________
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