The undersigned property owner or property owner representative (“Owner”) hereby engages Vantage Resort Realty of Maryland, LLC (“Agent”) to act as exclusive rental agent of Owner in accordance with the terms of this Agreement with respect to the property identified below (the “Property”). Owner authorizes Agent to execute Lodging Agreements on behalf of Owner with individuals seeking lodging in Owner’s property (“Guests”) on Lodging Agreement forms provided by Agent and approved by Owner.
TERM
Agent is authorized to execute Lodging Agreements on behalf of Owner with respect to dates of stay beginning on the later of January 1, 2011 or the date of this Agreement, and ending on January 2, 2012. Owner may exclude any days/weeks/months for the available lodging dates. Owner is NOT required to make a available a minimum number of days/weeks/months. Owner may rent and refer as many potential Guests to Agent as Owner desires.
TERMINATION
This Agreement may be cancelled by Owner or Agent upon 60 days prior written notice. All reservations made and confirmed by Agent prior to the effective date of cancellation will be honored by the Owner.
COMMISSIONS
Owner agrees to pay Agent the commission and fees (“Commission”) described below based on the gross amount of revenue derived from each Guest’s reservation or use of the Property, not including any (i) taxes or surcharges imposed by any governmental or regulatory authority or any homeowner association or similar entity, (ii) any administrative or processing fees charged by the Agent for the Agent’s account, (iii) fees related to specific services or amenities provided to Guests, such as fees for linen rentals, or use of a swimming pool or other amenity, or (iv) rebates received by Agent or Owner from suppliers or vendors (“Rental Revenue”). Commission will be deemed earned by Agent once the Agent accepts and confirms a reservation and collects a deposit from a Guest, or provides services directly to a registered guest as described in subparagraph “c” below. Agent’s entitlement to any Commission will not be impaired by any action of Owner including Owner’s refusal to honor any confirmed reservation. Owner also shall be responsible for any reasonable expenses incurred by the Agent in response to Owner’s failure or refusal to honor a confirmed reservation. Owner agrees to pay Agent the following Commissions:
a. Reservation Procured by Agent - Sixteen percent (16%) of Rental Revenue.
b. Reservation Procured by Owner - Ten percent (10%) of Rental Revenue. (This does not apply to a Guest who was previously procured by the Agent.)
c. No Reservation Made Through Agent, but Agent provides check-in/check-out services to Owner’s guests staying at the Property – Owner to pay Agent $75 for each assisted check-in/check-out cycle, regardless of the length of stay.
d. Agent may also charge directly to Guests, and retain for Agent’s account, a reasonable administrative and/or processing fee.
REPAIR AND MAINTENANCE
Agent may conduct minor maintenance repairs and replacement on behalf of Owner at cost and deduct payment for same from Owners monthly revenue, up to Two Hundred Fifty Dollars ($250.00) per item. For all repairs, maintenance and replacement over Two Hundred Fifty Dollars ($250.00) per item, Agent will notify Owner as soon as possible and obtain Owner’s consent prior to proceeding. In the event of an emergency and/or if Owner cannot be reached, Owner consent will not be required and Owner will pay all reasonably incurred costs of repairs/replacement procured by Agent. Agent may pay contractors directly and deduct the amount paid from Owner’s account balance, or require Owner to pay the contractor. If Owner’s account balance is insufficient Owner will pay the contractor directly. Owner will provide all warranty information to Agent so that Agent may seek warranty service when available.
HOUSEKEEPING
All housekeeping expenses directly related to maintaining and cleaning the Property are the responsibility of the Owner, as are the costs of annual carpet, upholstery and window cleaning. Owner authorizes Agent in Owner’s name and at Owner’s expense to make or cause to be made such repairs to Property as Agent may determine reasonable and appropriate.
ACCOUNTING
a. Agent will deposit all funds generated by the Property into a separate bank account or sub-account maintained by Agent for Owner. If Owner has appointed Agent as agent with respect to more than one property, Agent may maintain separate accounts or sub-accounts for each property or a single account for all of Owner’s properties. Agent will disburse funds from the account to Owner on a monthly basis. Disbursements will include all receipts collected in the prior month less Agent’s Commission and less amounts payable by Agent on behalf of Owner as provided in this Agreement, including but not limited to cleaning charges and the cost of repairs and maintenance arranged by Agent. Agent will provide itemized statements with each disbursement payment.
b. Agent will maintain an escrow for all sales taxes and room taxes collected from Guests, and Agent will pay such taxes when due to the applicable taxing authorities as required by law.
c. Agent may retain a balance of not more than Three Hundred Dollars ($300.00) the account that Agent maintains for Owner, for the purpose of paying expenses of Owner when Rental Revenue is insufficient to cover those expenses. Any remaining balances in excess of expenses incurred by Agent but not yet paid will be disbursed to Owner by October 31, 2011.
d. Nothing herein shall limit direct charges from Agent to Guest for items other than use of the Property, or prohibit Agent from generating income from providing additional products or services to Guests. Owner will have no interest in any such additional income of Agent, nor will such additional income be included in Rental Revenue for purposes of calculating Commission or any other purpose.
e. Agent may retain any interest earned on Owner’s funds in Agent’s possession to offset the cost of bookkeeping and administration of such funds.
f. Agent will make reasonable attempts to collect checks and other payment instruments received from Guests, but Agent will not be obligated to pursue litigation in such collection efforts or to use the services of a third party collection agent. Owner may prosecute bad debts at Owner’s sole expense. Owner bears the ultimate risk of non-payment of any check or other payment instrument.
g. If any reservation is cancelled or the Guest is a no-show, and Agent is not able to procure another Guest for the same time period, the deposit will be forfeited by the Guest and will become the property of the Owner, less the amount of the Commission due to the Agent with respect to such deposit (10% or 16%, depending on who procured the reservation). If another Guest is procured for the same time period, or if the Owner elects, prior to check-in date, to use the Property, the deposit less Commission due Agent will be refunded to the Guest. For cancellations within 30 days of the check-in date (i.e. when Guests have paid in full), the forfeited deposit will equal one-half of the gross weekly rental amount collected. For cancellations in excess of 30 days prior to the check-in date, the forfeited deposit will be equal to required initial deposit.
h. If Agent manages more than one property for Owner, Agent may use Rental Revenues from each property of Owner to pay the expenses for that property and for any other property of Owner managed by Agent.
REBATES
a. Agent may offer price reductions to Guests in Agent’s discretion when the Guest is inconvenienced by an equipment failure not caused by the Guest, such as a malfunction with a television, HVAC, plumbing, etc.
b. Such reductions may not exceed twenty percent (20%) of the agreed upon Rental Revenue, prorated daily for each day of inconvenience.
MARKETING
a. Owner authorizes Agent to display a “For Rent” or similar sign on the Property if allowed.
b. Information about the Property and images of the Property may be displayed on Agent’s website(s).
INSURANCE
During the Term of this Agreement, Owner agrees to pay for and keep in effect liability insurance in the minimum amount of Three Hundred Thousand Dollars ($300,000) per occurrence for the Property. Owner agrees that its insurance policies are primary for all occurrences and incidents which happen in or about the Property and authorizes Agent to provide copies of the certificate to third parties upon reasonable demand. Owner will cause Agent to be named as an additional insured whenever possible.
OCCUPANCY
Each Lodging Agreement entered into by Agent on Owner’s behalf in accordance with this Agreement will be honored by Owner whether or not the Owner has been notified of the Lodging Agreement. In the event the Owner desires to use the Property during the Term of this Agreement, Owner must first ask Agent whether the Property is reserved for the desired period. Guest reservations will not be cancelled to accommodate Owner’s desired use of the Property. Owner may consult with Agent directly or by reserving the Property through the owners’ section of Agent’s website.
DAMAGE BY GUESTS.
Agent is not responsible for any damage to the Property by any person other than Agent, including Guest’s, invitees of Guests, and trespassers.
AUTHORIZATION TO TERMINATE LODGING AGREEMENT
Agent may terminate any Lodging Agreement and refund any amounts paid by Guests, in Agent’s discretion, if Agent determines that (i) the Property is unfit for use by Guests or is not up to Agent’s reasonable standards, (ii) the Property is not as represented by Owner, (iii) Guest is in breach of the Lodging Agreement, or (iv) Guest causes Agent concern for the welfare of the Property or Agent’s personnel. If any Lodging Agreement is cancelled after Rental Revenues from the Lodging Agreement have been disbursed to Owner, Owner will refund any amount required by Agent in connection with Agent making any refund to the Guest.
PROPERTY PHOTOS
Agent will hire a professional photographer to photograph the Property for marketing purposes. Agent may deduct Thirty Dollars ($30) from Rental Revenues to help offset the cost of this service. Such photographs become the property of the Agent, although the Agent will provide digital copies to the Owner upon request.
KEYS/PARKING PERMITS/POOL PASSES
a. Owner will provide Agent with at least ten (10) keys to the Property, or Agent will have such keys made and will charge Owner $3.00 per key. Owner also agrees to provide Agent will all necessary parking permits, pool passes or any other additional requirements needed for use of the Property by Guests.
b. Owner will provide Agent with a key for any locked closets, attics, garages and other spaces in the Property if needed for Agent to access utilities/circuit breakers, hot water heaters, etc. for the purpose of making emergency repairs or addressing other emergencies. Such keys will not be given to Guests. If such keys are not provided Owner is authorized to enter such locked areas by force if reasonable under the circumstances and Agent will not be responsible for any damages caused by such entry.
LEGAL REQUIREMENTS
Owner is responsible for ensuring that the Property complies with all present and future applicable laws, rules and regulations, and the bylaws and rules and regulations of any homeowners’ association, including but not limited to those pertaining to zoning, safety, fair housing, and rental licensing. Owner must obtain a copy of the noise ordinance from the Town of Ocean City (Ocean City properties only). Owner will indemnify and hold Agent harmless from any failure of the Property to comply with any such applicable law, rule, bylaw or regulation.
RELEASE OF AGENT LIABILITY
Owner releases Agent from any liability for any loss or damage to the Property resulting from fire, weather, water, breakdown of utilities, vandalism, malicious mischief, theft or other causes other than any intentional damage caused by Agent or Agent’s employees. Agent is not liable for any loss or damage to the Property caused by persons not employed by Agent, even if such persons are admitted to the Property by Agent for the purpose of rendering service in the Property.
UTILITIES AND OTHER COSTS
Owner is responsible for providing all utilities and services to the Property and for paying the cost of ownership of the Property, including but not limited to taxes, water, electricity, gas, basic local telephone service, cable television, condominium fees, trash collection fees, and maintenance fees including lawn care. Owner may install long distance telephone blocking, at Owner’s expense. Agent is not responsible for collecting any long distance or other telephone related charges from Guests.
FORECLOSURE OR TRANSFER
If Agent receives any information of a possible foreclosure or any voluntary or involuntary transfer of the property, Agent may use its discretion in disbursing or retaining of Rental Revenues or removing the Property from the market, including immediate removal with relocation of Guests. Owner will refund any disbursements received from Agent prior to Agent’s knowledge of the foreclosure or transfer, immediately upon request of Agent.
SALE OF PROPERTY
a. If Owner determines to sell the Property, Owner will inform the Agent in writing. Upon any contract being entered into for the sale of the Property, Owner will inform Agent of the settlement date so that Rental Revenues can be pro-rated between Owner and the purchaser. Agent is not required to take the property off of the market unless the Owner specifically advises the Agent to do so.
b. Agent is authorized and requested to release information about the Property to real estate brokers and agents.
c. Sale of the Property will not void any reservations already confirmed for after the closing date. Owner agrees to include in any sales contract a requirement that purchaser of the Property will honor such reservations. Owner shall be responsible for any failure of Owner or the purchaser of the Property to honor such reservations.
d. Sale of the Property will not impair Agent’s entitlement to Commissions with respect to any time period whether before or after the closing.
AGENCY RELATIONSHIP
Agent is an agent of Owner and represents the interests of the Owner in any transaction with Guests. Agent will make copies of Lodging Agreements entered into by Agent on Owner’s behalf available to Owner upon request.
PROMOTIONAL STAYS
Owner authorizes Agent to use the Property for up to five (5) nights during the off-season for charity, marketing and/or guest satisfaction purposes. If the Property is reserved for such use, Agent will pay for any cleaning expenses related to the use. Owner may opt-out of this program by directly emailing Vantage Resort Realty of your request
DISCOUNTS
Agent may at its discretion offer Guests a discount of up to 20% if the Property is not reserved and is available within 30 days of any future check-in date.
GOVERNING LAW; JURISDICTION; VENUE
This Agreement is made in and shall be governed by, construed and enforced in accordance with the laws of the State of Maryland. Each party consents to personal jurisdiction in the Circuit Court for Anne Arundel County, Maryland (location of Agent’s principal office) and in the federal courts for the District of Maryland, and to exclusive venue in such courts.
BINDING EFFECT
This agreement is binding on the parties hereto, their heirs, personal representatives, executors, administrators, successors and assigns.
CONSTRUCTION
If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall continue in effect unless the invalid or unenforceable provision negates the essence of the bargain between the parties or the purpose of this Agreement, in which case either party may cancel and terminate this Agreement without liability to the other except for Commissions earned prior to the date of cancellation.
NATURE OF AGREEMENT
This Agreement is for listing the Property and is not a property management agreement. Agent has only those duties expressly stated in this Agreement.
EFFECTIVENESS CONDITIONED ON INSPECTION OF PROPERTY
The effectiveness of this Agreement is conditioned on Agent’s acceptance of the Property. Upon inspection of the Property, if Agent deems the Property unacceptable, Agent may cancel this Agreement by giving Owner written notice of cancellation.
ATTACHED SCHEDULE
The attached schedule of information about the Property is incorporated into this Agreement.
AUTHORITY OF OWNER
If the person signing this Agreement below on behalf of Owner is not the exclusive owner of the Property, such person represents and warrants that this Agreement has been authorized by all owners of the Property and is binding on all of such owners; and the person signing this Agreement below on behalf of Owner agrees to indemnify and hold Agent harmless from any claim, damage, loss, cost or expense, including attorneys fees, resulting from a breach of such representation and warranty.
