EL CONQUISTADOR RESORT AND COUNTRY CLUB
CONDOMINIUM UNIT
MANAGEMENT AND RENTAL AGREEMENT
This Agreement, made and entered into this day of 1994, by and
between EL CONQUISTADOR PARTNERSHIP, L.P. (hereinafter referred to as "Agent")
at El Conquistador Resort and Country Club, Fajardo, Puerto Rico (the
"Resort") and:
Name: Mr.__________________________ and Mrs._______________________
Home Phone No._____________________ Office Phone No._______________
Taxpayer Identification No. ____________________________ Social
Security No.________________ Address:________________________________________
_____________________________________________________________________________
Apartment Number:_________ Room number(s)__________ Las Casitas I Resort
Condominium (hereinafter referred to as the "Owner").
WHEREAS, the Owner is the owner of the condominium apartment unit
identified as Apartment_________ (the "Unit"), forming part of Las Casitas
Resort Condominium Regime I, and
WHEREAS, Agent is the owner of the Resort; and
WHEREAS, the Owner wishes to engage the services of the Agent to manage
the Unit and to offer the Unit for rental under the terms and conditions set
forth below, and
WHEREAS, the Agent is willing to accept such engagement on the terms
stated herein;
NOW THEREFORE, in consideration of the terms and conditions and the
mutual covenants herein set forth, the parties agree as follows:
1. APPOINTMENT OF AGENT:
The Owner hereby appoints the Agent as its sole and exclusive
agent for the term indicated herein, to offer and rent the Unit as a hotel
accommodation for transient guests, and to perform certain maintenance and
housekeeping functions on the Unit, to the extent and in the manner indicated
herein. Agent hereby accepts such appointment and agrees to offer the Unit for
rental as a hotel accommodation in the Resort on the terms and subject to the
conditions set forth herein, and agrees to provide maintenance services to the
Unit, as indicated herein.
2. TERM:
The term of this agreement shall be twelve (12) consecutive months
commencing on _________________, 19______ and terminating on ________________,
19_____, (said initial twelve (12) month term and each subsequent renewal
thereof, shall hereinafter be referred to as the "Term"). This Agreement shall
be automatically renewed for consecutive twelve month periods at the end of the
initial Term and, thereafter, at the end of each renewal Term, unless either
party shall notify the other in writing not less than four months prior to the
termination of the then current Term, of its intention not to renew the same, in
which case this Agreement shall terminate upon the expiration of the then
current Term.
3. AUTHORITY TO RENT:
The Owner authorizes the Agent to offer the Unit for rent to transient
guests and to execute and deliver throughout the Term, rental agreements with
such transient guests on such terms as the Agent shall determine in its sole
discretion to be necessary or appropriate. The Agent is further authorized to
demand, receive
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and collect all rental payments generated by the Unit and apply and distribute
the same in the manner indicated herein.
The Agent is authorized to maintain at the Unit an inventory of point
of sale merchandise items including items of the type customarily found in room
mini-bars in first-class hotels, and to carry out the sale of such merchandise
in the Unit. The Owner shall not share in the proceeds of any such sale nor in
the sale of any other merchandise item or service.
4. RENTAL RATES:
The Owner agrees that Agent will have full discretion in fixing and
charging rates for the rental of the Unit and in determining which hotel room or
condominium unit is rented when occupancy of the Resort is less than 100%
occupied.
5. POSTED RATES:
The Agent shall from time to time determine the rates at which the Unit
will be offered for rent (the Posted Rates) and shall advise the Owner of such
rates. "Posted Rates", is a hospitality industry term which denotes the highest
rate at which a room or facility will be rented to "walk-in" guests. It also
serves as the base rate from which discounts will be granted to establish
"commercial rates", "group rates" and similar incentive rates. Due to the resort
nature of Las Casitas I Resort Condominium, the Agent expects that a substantial
amount of rentals will be at group or other incentives rates. The Owner
expressly authorizes the Agent to offer discounts from the Posted Rates at its
sole discretion, and expressly waives notice of such discounts. The
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Owner acknowledges that any such discounts will reduce the rentals the Owner may
receive for his Unit. The Owner acknowledges that the Agent has made no
commitment that the Unit will in fact be rented at any particular time or for
any particular consideration. The Agent shall endeavor to give the Owner thirty
(30) days prior written notice of any permanent changes in the Posted Rates for
the Unit.
6. ADVERTISING AND PROMOTION:
The Agent shall advertise and promote the Resort and the rental of the
Unit and all other units and hotel rooms within the Resort, in such manner, and
upon such terms and conditions as the Agent shall determine in its sole
judgement. The Agent shall have the right and authority to perform any and all
acts which Agent in its sole discretion determines are necessary or appropriate
to promote, operate, and maintain the Resort as a first class resort and country
club, and shall have the continuing right to institute controls, operating
procedures, and regulations which in its sole discretion, it determines
necessary or desirable. The Agent shall retain such personnel, employees, agents
and contractors as in its sole discretion it deems necessary or desirable to
perform its functions hereunder.
7. RESERVATION OF UNIT; ACCESS TO UNIT:
The Agent shall maintain a reservation system through which all
reservations for the Unit shall be processed. The Owner agrees not to enter the
Unit or to permit any person, such as a family member, repairman, Owner's guest
or others to enter the Unit,
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unless such entry is during the confirmed times of Owner's Occupancy. If the
Owner desires to enter or permit others to enter the Unit during times other
than those of confirmed Owner's Occupancy, he must have the prior written
approval of the Agent to do so.
8. ACCOUNTING:
The Agent shall process all rental transactions relating to the Unit.
The Agent shall submit to the Owner on a monthly basis, a Unit Rental Statement,
containing in reasonable detail the rental activities and maintenance services
rendered to the Unit during the preceding month. The Owner shall have thirty
(30) days from date of receipt of said statement, to notify the Agent, in
writing, of any claims, errors or discrepancies pertaining to such statement.
Failure of the Owner to so notify the Agent within the aforemen-tioned thirty
(30) days term, shall constitute a waiver of any claim he may have in reference
thereof.
9. COLLECTIONS:
The Agent shall ▇▇▇▇ for and shall collect all rents arising from the
rental of the Unit during the Term hereof. Agent shall bear the cost of all
uncollectible rental fees, as well as all credit card discounts.
10. COMPENSATION TO AGENT:
The Owner shall pay to the Agent a commission (the Agent's Commission)
for the services to be rendered hereunder, of an amount equal to 50% of all Net
Rentals generated by the Unit during the Term hereof. Such commission shall be
payable monthly not later
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than on the tenth day of each month. For purposes hereof, Net Rentals shall mean
the aggregate of all Gross Rental Income generated by the Unit each month during
the Term hereof, less the following deductions (the "Operational Charges"):
(a) A marketing and administrative charge payable to the Agent equal to
15% of the Gross Rental Income generated by the Unit during each month,
(b) Travel agency and/or tour operator commission charge equal to the
actual expense of travel agent's or tour operator's commissions incurred each
month in the rental of the Unit, but not to exceed an amount equal to 5% of the
aggregate Gross Rental Income generated by the Unit during the same period,
(c) Electricity expense incurred by the Unit each month,
(d) Water and sewer expense incurred by the Unit each month,
(e) Cable T.V. charges incurred by the Unit each month,
(f) Regular monthly regime maintenance fee ("Regime Maintenance Fee")
assessed on the Unit, excluding any special assessments for paint, extraordinary
repairs, replacement of capital common assets and insurance,
(g) Repair and maintenance expense of household appliances and
furniture of the Unit in an amount not to exceed $400, as actually incurred each
month, but excluding the replacement of any furniture, lamps, rugs, curtains or
major electrical, plumbing or other appliances. The annual fees of the
Preventive Maintenance Plan Agreement
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shall be deemed an Operational Charge.
(h) Expenses incurred each month in the replacement of glass, silver,
china and other minor household items of the Unit,
(i) A guest amenity charge of five dollars per day, per guest occupying
the Unit during each month, to contribute towards the cost of complimentary
food, beverage and other gratuitous services offered by the Agent to guests
staying at the Unit, and
(j) housekeeping charges ("Housekeeping Charges"), as indicated on
Exhibit A.
(k) Annual premium of the home-owners policy referenced in Section
29(e) of this Agreement shall be deemed an Operation Charge up to the sum of
$520.00.
Gross Rental Income and Gross Rentals shall refer to the total
aggregate rentals generated by the Unit for the period in question, but shall
exclude any occupancy or room tax, and any other revenue generated from any
occupant of the Unit for the sale of products and services.
The deduction of Operational Charges from Gross Rentals is solely for
purposes of calculating the Agent's Commission, and the Agent shall not be
liable for, nor is it assuming any obligation of paying such expenses, other
than from rentals generated by the Unit which might be available for such
payment.
11. DISTRIBUTION OF RENTALS, PAYMENT OF OPERATIONAL CHARGES:
The Agent shall collect all Gross Rentals generated by the
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Unit during the Term hereof. Owner hereby irrevocably empowers and directs the
Agent to (i) pay the Operational Charges out of Gross Rentals, (ii) calculate
the Agent's Commission and pay the same to Agent, and (iii) remit the balance of
Net Rentals to Owner (the Owner's Share"). The Agent will make every effort to
ensure that payment of the Owner's Share will be made to the Owner no later than
thirty (30) days after the end of the preceding month.
12. UTILITY BILLS, REPAIRS:
The Owner shall be responsible for the timely payment of all utility
bills of the Unit and repairs to items therein during the Term hereof. The Agent
will pay such charges on behalf of Owner solely from funds generated by the
rental of the Unit or from funds in the Owner's account with Agent and only if
the Unit has generated sufficient rental income during each particular month to
cover such expenses. The Owner hereby authorizes the Agent to retain from the
Gross Rentals of the Unit, the amounts necessary for the payment of the
marketing and administrative fee, travel agency and tour operator's commissions,
monthly electricity service, water and sewer service, cable TV service,
replacement of glass, silver, china and other minor household items, maintenance
or repair items of the interior of the Unit, provided however, that any
maintenance repair item in excess of $400.00 for labor and materials shall be
considered an extraordinary maintenance repair item requiring prior approval
from Owner, and Housekeeping Charges. Notwithstanding the aforesaid, Owner
recognizes that he is solely and primarily responsible for the payment of all
utility charges,
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Regime Maintenance Fee, repairs, and other Operational Charges and that, failure
of the Agent to withhold such funds and/or to effect such payments shall not
result in any liability whatsoever to the Agent or release Owner of its
obligation with respect thereto.
13. REGIME MAINTENANCE FEES:
The Owner authorizes the Agent to retain from the Gross Rentals of the
Unit amounts sufficient to pay the monthly Regime Maintenance Fee pertaining to
the Unit. Owner recognizes that he is solely responsible for the payment of
Regime Maintenance Fees, and failure of the Agent to withhold such funds, or the
insuffi-ciency of funds from rental operations shall not relieve the Owner from
its obligation to make such payment. The Agent will pay such charge on behalf of
Owner solely from funds generated by the rental of the Unit or from funds
available in the Owner's account with Agent and only if the Unit has generated
sufficient rental income during each particular month to cover such expense.
If at any time the Agent ceases to be the Management Agent for Las
Casitas I Resort Condominium, then the Unit's regular monthly Regime Maintenance
Fees shall not be deemed an Operational Charge for purposes of calculating the
Agent's Commission.
14. AMENITY CHARGE/HOUSEKEEPING CHARGE/TRAVEL AGENCY AND TOUR OPERATORS
COMMISSIONS:
(a) The Agent shall impose an "Amenity Charge" of five dollars per day
for each guest renting the Unit, to contribute towards any complimentary food,
beverage or other complimentary amenity offered to such guest. No charge shall
be imposed in the
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case of complimentary promotional occupancy.
(b) The Agent shall impose a Housekeeping Charge on each Unit as
outlined in Exhibit "A", for each day the Unit is rented to a guest. Such charge
shall be satisfied out of Gross Rentals of the Unit. The Agent shall satisfy
such expense on behalf of the Owner solely from funds generated by the rental of
the Unit.
The Owner shall not be required to request daily housekeeping
services during the period of Owner's Occupancy. However, the Owner agrees to
pay at the end of each Owner's Occupancy period the special Housekeeping Charge
specified in Exhibit "A", which will be billed to the Owner's account at the end
of each period of Owner's Occupancy either by Owner or its invitees.
(c) A Travel Agency and Tour Operators Commission charge shall be
imposed monthly on all commissionable Gross Rentals generated by the Unit during
such period, at a 5% rate. Once a year Agent shall adjust the aggregate Travel
Agency and Tour Operator commission charges to reflect the actual commission
expense incurred during the year, provided that such expense shall not exceed 5%
of all Gross Rentals generated by the Unit during that period. Any accrued
overcharge shall be reimbursed to Owner with the following payment of the
Owner's Share.
15. AVAILABILITY OF UNIT AND OWNER'S OCCUPANCY:
The Unit must be made available by Owner for rental by the Agent for
during at least eleven months each year. The Unit must be made available at
least twenty three (23) weeks out of the
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twenty five (25) high season weeks which extend from December 15 to April 30
each year. The Unit must be made available for rental specifically during
Christmas Week, Easter Week, the months of February and March of each year, and
such other time not to exceed 15 additional days as the Agent may determine from
time to time and notified in writing to the Owner not less than 120 days prior
to such additional term. The Owner may retain the use, or assign the use of the
Unit to his own guests or invitees on a reserved basis during an aggregate of 30
days during each Term. The Owner shall notify the Agent in writing at least 30
days in advance of the particular dates the Owner wishes to use his Unit for
purpose of Owner's Occupancy. The times requested by Owner shall be reserved by
Agent subject to availability as set forth in Section 16. Agent shall confirm to
Owner whether the dates requested by Owner are available.
As provided for in the Regulations adopted under the Puerto Rico
Tourism Act of 1993, the Owner may also use his Unit on sporadic days, without
prior reservation, up to a maximum of 60 days per year, provided that the Owner
pays a reduced rent to cover operational expenses of the rental program. In
order for the Owner to use his Unit without prior reservation, the Owner must
call the Agent not earlier than at 11:00 a.m. on the particular day in which the
Owner wishes to use his Unit. If the Unit has not been previously reserved for a
transient guest at the time of such call, the Owner may then request the Agent
to keep the same available for his use on that date.
In order for the Owner to use his Unit at any time other than during
the 30 day reserved Owner's Occupancy period, or during the 60 day maximum
sporadic, non-reserved use period, the Owner must
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pay the Agent the regular rental rate then in effect for his Unit.
For purposes herein, Owner's Occupancy period shall refer to the thirty
(30) days reserved use period as well as the sporadic, non-reserved use period.
16. RESERVATION COMMITMENTS:
The Owner authorizes the Agent to accept reservations for the Unit any
time during the Term except for excluded dates previously reserved for Owner's
Occupancy during the thirty (30) day reserved used period. Reservations accepted
by Agent shall be binding on the Owner. All instructions not to rent the Unit
submitted by the Owner consistent with this Agreement will be acknowledged in
writing by Agent, subject to existing reservations confirmed to guests. Both the
Owner and the Agent shall use their best efforts to avoid reservations
conflicts. If, through an error of Agent, a guest is occupying the Unit on dates
previously reserved by the Owner and confirmed in writing by the Agent, and if
substitute accommodations are available when the error is discovered, such
substitute accommodations shall be provided to the Owner free of occupancy
charges. Owner will be required to accept such substitute accommodations and
will not be permitted to force removal of occupant of his Unit. Agent shall have
no liability or responsibility to Owner other than as aforesaid.
17. CHECK-IN BY OWNER:
During the periods of Owner Occupancy, the Owner or Owner's invitee
shall comply with the standard check-in and check-out procedures established by
the Agent for Resort guests and guest
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renters of all other units. Failure to do so will result in a late departure
fee, which will be billed to the Owner's account, plus all expenses incurred by
the Agent in accommodating a renter that has a confirmed reservation for the
Unit.
18. PROMOTIONAL USE:
The Owner authorizes the use of the Unit by the Agent free of rent for
a period of seven (7) nights during each Term of this Agreement, to be used by
the Agent for the complimentary lodging of persons that have or could have an
impact on the operational success of the Resort. The frequency of the use of the
Unit for promotional purposes will be selected by the Agent in a fair and
equitable manner in order to ensure, to the extent possible, substantially even
distribution of such promotional usage among similar condominium units
participating in the Agent's rental program. The Owner will be informed of use
of the Unit for promotional purposes on the monthly statement. The Owner shall
not be responsible for the Housekeeping Charge associated with the promotional
use of the Unit.
19. PUERTO RICO TAXES:
The Owner shall be solely responsible to file for and to qualify for
any tax incentives that might be afforded under the provisions of the Puerto
Rico Tourism Development Act of 1993, or other statute that may be approved in
the future granting similar benefits. Likewise, the Owner shall be required to
abide by the requirements of such Act and of the Regulations adopted thereunder,
in order that his Unit continues to qualify under such Act and
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Regulations, as a condohotel unit during the Term.
The Owner recognizes, agrees and understands, that the whole or a part
of the rental income from his Unit may be subject to Puerto Rico income
taxation. The Owner also recognizes that if he is not a bonafide resident of
Puerto Rico such tax, if required, will be collected through withholding at the
source from the total rental amounts payable to Owner. In such event, the Owner
expressly authorizes the Agent to withhold Puerto Rico taxes from the rentals
payable to him, at the applicable rate established by Puerto Rico law and to pay
to the Puerto Rico Secretary of the Treasury the withheld amounts at the time
and in the manner required by law and regulation. The Owner recognizes that
under current Puerto Rico law, non-resident Owners who are United States
citizens, and certain non resident alien Owners, will be under the obligation to
file annual Puerto Rico income tax returns. Depending upon their personal tax
circumstances, such individuals may either have an additional Puerto Rico tax
liability over and above the amount of tax withheld from the rentals, or be
entitled to a full or partial refund of the amount withheld. The Owner expressly
recognizes that the filing of any Puerto Rico income tax return due, or payment
of any additional Puerto Rico tax due over and above the amount withheld from
the rentals payable to Owner, is entirely outside the scope of this Agreement,
and that the Agent shall not be deemed to be the Owner's representative or agent
for these or any other purpose related to Puerto Rico taxation other than the
actual withholding of tax from the rentals payable to
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Owner in the case of non-resident owners. The Owner understands that he is
solely and exclusively responsible for meeting his Puerto Rico tax obligations.
The Agent will provide the Owner a tax withheld form annually, reasonably prior
to the statutory date for filing income tax returns, the 15th of April.
20. REPORTS TO GOVERNMENT AGENCIES:
The Owner herewith authorizes the Agent to submit to the Tourism
Company and the Treasury Department of the Commonwealth of Puerto Rico a written
statement(s) indicating the Owner's name, social security number, address, the
date the Unit was acquired, the date the Unit joined the rental program, the
date the Unit was withdrawn from the rental program, the number of days the Unit
was reserved and used by the Owner and the number of days the Owner used the
Unit without prior reservation, and the gross proceeds paid by Agent to the
Owner, as well as any other information required under the 1993 Puerto Rico
Tourism Development Act, the regulations approved thereunder, as well as under
any other applicable statute, rule or ordinance. The Agent shall send a copy of
the aforesaid statement to the Owner.
21. OCCUPANCY TAXES, CREDIT CARD DISCOUNTS:
All occupancy and room taxes shall be charged and collected by Agent in
addition to the Gross Rentals and such taxes shall be retained by Agent to be
paid to the Treasury Department of the Commonwealth of Puerto Rico. Occupancy
and room taxes shall not be deemed part of the Gross Rentals. Owner shall not be
liable for the payment of occupancy or room taxes.
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Credit card discounts and service charges shall be for the account of
Agent and shall not be deemed an Operational Charge.
22. TELEPHONE FACILITIES:
The Agent shall provide a telephone in each living/sitting room and in
each bedroom of the Unit which shall be connected to the Resort's telephone
switchboard. All phone charges incurred by a guest of the Unit shall be billed
and collected by the Agent and shall not be part of the Gross Rentals of the
Unit. Upon the termination of this Agreement, the Resort shall remove such
telephone equipment from the Unit.
23. CABLE TV FACILITIES:
The Owner shall provide cable TV service connection in each bedroom.
Each bedroom must have a TV set with a TV stand as indicated on Exhibit "C"
hereto. The Owner shall be liable for payment of Cable TV service charges,
except for pay per view services. Cable TV charges shall be included as an
Operational Charge.
24. INVENTORIES:
The Agent, in order to assist the Owner in the promotion and rental of
the Unit, and maintain quality standards shall:
(a) conduct as often as Agent considers appropriate but not
less than twice during the Term of this agreement an
inventory of all major furnishings and equipment;
(b) inspect the general condition of the Unit; and
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(c) provide the Owner with the inventory report, a statement
as to the condition of the Unit, and written
recommendations for improvements or repairs.
25. MAINTENANCE OF UNIT:
The Owner agrees to maintain the Unit at a par with quality standards
established by the Agent for the Resort in accordance with the standard list
included with this Agreement. The Owner hereby agrees to effect any
recommendation or improvement to the Unit or the contents thereof which, in the
sole opinion of the Agent, is deemed necessary to meet the quality standards
referred to above. The Owner agrees not to modify in any way the interior of the
Unit nor to substitute any furnishings or equipment therein, without prior
written consent from the Agent. The Owner further agrees that the storage closet
within the Unit may be used by Agent during the Term, to store cleaning supplies
and equipment, linen, bath supplies and inventory of household items. In the
event that the Unit is not kept up to acceptable standards, the Agent reserves
the right to have it removed from the rental program. When such determination is
made, the Agent will notify the Owner in writing. The Owner will have thirty
(30) days from notification to correct or authorize the Agent to correct the
deficiencies in the Unit at the expense of the Owner. Upon correction of the
deficiencies at the Owner's expense, the Unit will be placed back into the
rental program. After the thirty (30) days period, if the Unit has not been
placed up to standards, the Agent may proceed to cancel this Agreement.
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26. MAINTENANCE AGREEMENT:
To assure the quality and maintenance of the items, equipment and
furnishings of the Unit, an annual maintenance agreement is mandatory for Units
in the rental program (copy of the maintenance agreement is attached hereto as
Exhibit "B").
The Owner shall maintain the Unit (including furnishings), in first
class condition, and agrees to maintain a complete set of kitchen utensils,
glasses, dishes, and flatware and other equipment, as specified in the "Rental
Properties Basic Equipment List" (copy attached as Exhibit "C"), based upon the
number of rooms in the Unit. The Agent may replace missing and unserviceable
items and charge Owner's account for such costs, except that no more than
$150.00 will be expended during any month without first notifying the Owner. The
cost of such replacements shall be deemed an Operation Charge as provided for
herein. In the event that a sufficient supply of basic equipment is not present,
the Unit will be deemed not to meet the acceptable standards of the Agent and
shall be removed from the rental program.
27. CLEANING OF UNIT:
As part of the Housekeeping Charge the Agent shall undertake such
general interior house cleaning of the Unit, including window washing, as the
Agent deems necessary.
28. REBATES:
The Owner agrees that the Agent may offer a renter up to one hundred
percent (100%) rebate per night, in the event of failure of a major appliance
which cannot be repaired or replaced, or a
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temporary disconnection of any utility, due to non-payment of such service or
otherwise. The Owner agrees that the guest may be transferred to another
available comparable accommodation, if such rebate is unacceptable to the guest.
Owner authorizes the Agent to make, at Owner's expense and without Owner's prior
approval, any emergency repairs up to $400.00 in the event of the failure of the
cooling system or of any major appliance, or in the event of disruption of
essential utility services to the Unit during any period the Unit is rented. The
Agent is authorized to correct any such problems. Such emergency repairs up to
the sum of $400.00 shall be deemed an Operational Charge.
29. INDEMNITY AND HOLD-HARMLESS:
(a) Owner shall at all times during the term of this Agreement, at its
own cost and expense, indemnify and save, protect and keep the
Agent, its employees or agents, harmless against any and all
liability, cost, damage, expense and fine, whatsoever, which may
arise or be claimed by any person for any loss or damage to any
property or injury to or death of any person, arising from any
willful or negligent act of the Owner.
(b) In the event any claim, suit or proceeding shall be brought
against Agent or any of its agents, servants and employees as the
result of or based on any liability, loss, damage or injury, or
death arising from the willful or negligent act of the Owner, its
employees or agents (other than of the Agent), Owner shall assume
the payment
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of any and all costs, expenses, settlements or judgments amounts
which may be made or recovered against the Agent on account
thereof, including Agent's reasonable attorney's fees and
disbursements. In addition, in all proceedings against Agent, not
based on Owner's willful acts or negligence, Owner shall cooperate
with Agent in the defense of the case.
(c) Agent assumes no liability nor shall it be responsible for the
loss or damage to any property of the Owner, whether or not
located at the Unit, including losses due to theft, robbery or
mysterious disappearance.
(d) The Agent and its agents or employees shall not be liable for any
loss or damage to the Unit or to equipment, furnishings or
apparatus thereto or for any injury, death or loss to the Owner,
members of his family, employees or invitees, except for injuries,
death or loss arising from or caused by Agent's willful acts and
gross negligence. Agent shall not be liable for any damage to the
Unit or contents thereof or injury to the Owner, members of his
family, employees or invitees, resulting from any accident or
occurrence in or upon the Unit or the building of which it is a
part, including but not limited to claims for damages, resulting
from:
(i) negligent or willful action or omission of renters
occupants or their guests;
(ii) injury done or occasioned by wind, rain or other
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elements;
(iii) theft, vandalism, fire, flood or acts of God; or (iv)
the physical condition of the Unit.
(e) Owner shall be responsible for procuring and maintaining at his
own cost and expense, a home-owners insurance policy, covering the
Unit and Owner's property inside the Unit and third party
liability insurance as a rental property, in a minimum amount of
$500,000.00. Said policy shall contain a stipulation that Owner's
insurer will provide a thirty (30) day written notice of
cancellation of insurance to Agent. Such policies shall be carried
by solvent and responsible insurance companies licensed to do
business in the Commonwealth of Puerto Rico. At the commencement
of the term hereof Owner shall deliver to Agent a Certificate(s)
issued and executed by Owner's insurer and evidencing the
insurance coverage required hereunder. In addition, Owner shall
deliver to Agent renewal policies or certificates thereof not
later than thirty (30) days prior to the expiration of any
policies which Owner is required to carry hereunder. Such policies
shall contain a waiver of subrogation clause in favor of the
Agent. Owner shall be responsible for paying the premium of the
home-owners insurance policy at its inception and at the time of
renewal. Owner will submit to the Agent a copy of the invoice for
such premium duly marked paid, to be credited as an
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Operational Charge. The Agent will credit such charge on an
installment basis at its discretion.
(f) Agent shall maintain at its own cost and expense public liability
insurance covering the risk of any loss, cost or expense arising
from any accident, injury or death arising or occurring within the
Unit, except during the term of Owner's Occupancy, and the common
areas of Las Casitas Resort Condominium or the Resort, as a
consequen-ce of Agent's negligence or liability, in amount not
less than $10,000,000 in the aggregate and $5,000,000 per
occurrence. Agent shall cause its insurance carrier to issue a
certificate of insurance naming Owner as additional insured.
Notwithstanding the aforesaid, all insurance adjustments for
losses shall be carried out solely by the Agent.
30. SALE OF UNIT:
In the event that the Owner sells his Unit, this Agreement shall stay
in effect for the balance of the then current Term and any effective renewal
thereof. Owner shall notify Agent in writing when the Unit is made available for
sale, whether listed with a real estate agent or for sale by Owner. The Unit
cannot be shown for sale during any period during which the Unit is occupied by
a guest. The Unit may be showed for sale at other times, provided the Owner
obtains the written authorization of the Agent, indicating the times and dates
when the Unit may be shown. Owner and/or his rental real estate agent shall sign
out the Unit key and
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return the same from and to the Agent's front desk or Unit Management Office.
Agent is authorized by the Owner to notify the Tourism Company and the Treasury
Department of the Commonwealth of Puerto Rico, of the sale of all Units
subject to the Rental Program.
31. DEFAULTS:
In the event Owner fails to comply with any of the terms and conditions
of this Agreement, the Agent may, upon written notice to Owner, suspend the
rental of the Unit for a specified period of time, for contact and
clarifications with Owner, or shall have the right, upon written notice to
Owner, to immediately terminate this Agreement. If Owner continually fails or
refuses to comply with its obligations hereunder, the Agent may, upon written
notice to Owner, immediately terminate this Agreement.
32. TERMINATION:
The Agent may terminate this Agreement at any time in its sole
discretion for any reason by giving thirty (30) days prior written notice to the
Owner of its intention to terminate, whereupon this Agreement shall terminate on
the date set forth in such notice. Upon termination of this Agreement, the Agent
is required to notify the Tourism Company and the Treasury Department that the
Unit is no longer part of the Agent's rental program.
33. ENTIRE AGREEMENT:
This Agreement constitutes the entire agreement between Owner and the
Agent, there being no understanding other than those written and specified
herein. This rental agreement supersedes
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all prior rental agreements between Owner and the Agent.
34. NOTICES:
All notices shall be in writing and shall be deemed given two business
days after mailed to the party's address stated herein, postage prepaid, return
receipt requested, or upon personal delivery or sent by telecopier answer back
confirmed, or overnight carrier:
(a) Notice to Agent shall be sent as follows:
El Conquistador Resort & Country Club
▇▇▇▇▇▇▇▇ Hospitality Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director
with copy to:
▇▇▇▇▇▇▇▇ Hospitality Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
(b) Notice to Owner shall be sent to the address shown on
the preamble to this Agreement.
35. MISCELLANEOUS:
(a) The Agent, its stockholders, partners or their affiliates are the
current managers of the Resort and may manage, own or build other hotels,
resorts, condominiums, or transient guest facilities, which may compete with the
Resort, and with the rental of the Unit and other units within the Resort. The
Agent has engaged the services of ▇▇▇▇▇▇▇▇ Hospitality Group Inc. ("WHG"), to
manage the Resort and to manage its rental program for Las Casitas
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Resort Condominium. Owner will accept performance hereunder by WHG and any
subsequent manager of the Resort.
(b) The Agent, its stockholders, partners or their affiliates may
contract with the Resort as vendors, purchasers, contractors,
suppliers and purveyor of goods or services.
(c) The Agent, its stockholders, partners or affiliates reserve the
right to construct additional hotel rooms in the Resort and
additional condominium units which will compete with the Unit and
with all other units and rooms in the Resort, without such
construction constituting a violation of the terms hereof.
36. GOVERNING LAW:
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Puerto Rico.
37. SUCCESSORS.
The provisions of this Agreement shall inure to the benefit of and
shall bind the successors and assigns of the respective parties hereto.
38. ASSIGNMENT:
The Agent may assign this contract to any party or successor in
interest of Agent. The Owner may not assign this contract except in connection
with the sale of the Unit as provided for herein.
39. WAIVER OF TRIAL BY JURY:
Except as may be prohibited by law, neither party hereto shall
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seek jury trial on any lawsuit, proceeding or counterclaim based upon or arising
from this Agreement.
40. PARTIAL INVALIDITY:
If any term of this Agreement is held invalid or unenforceable, the
remainder of this Agreement or the application of such term to circumstances
other than those as to which it is held invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
EL CONQUISTADOR PARTNERSHIP
L.P.
---------------------------- --------------------------
By OWNER
--------------------------
CO-OWNER
The Owner represents and warrants that he/she / / is / / is not, a bonafide
resident of Puerto Rico for tax purposes.
---------------------------
Owner
---------------------------
Co-Owner
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