TENANCY IN COMMON AGREEMENT

BETWEEN

                                              TONY GONZALEZ

                                                  (“OWNER A”)

    AND

                                              IVONNE PRADA

                                       (“OWNER B”)

 

 

 

 

 

 

 

 

 

 

 

TENANCY-IN-COMMON AGREEMENT

THIS TENANCY-IN-COMMON AGREEMENT (this “Agreement”) is entered into this

         Day of January, ——, by and between Tony Gonzalez, a married man in his individual capacity (“Gonzalez”), and Ivonne Prada, a married woman in her individual capacity (“Prada”) collectively referred to as “Owners” and individually as “Owner”.

R E C I T A L S

WHEREAS, the Owners desire to purchase and own as tenants-in-common that certain real property located at 990 Camonta, Las Vegas, NV 89108 (APN # XXX-XX-XXX-XX) (the “Property”); and

WHEREAS, on or about November 19, 2018, the parties have previously procured the right to purchase the Property pursuant to a certain Residential Purchase Agreement and the corresponding counteroffers (collectively, the “RPA”), a copy of which is attached hereto as Exhibit A, which has a purchase price of Four Hundred Twenty-Six Thousand and 00/100 Dollars ($426,000.00) (the “Purchase Price”); and

WHEREAS, the Owners desire to enter into this Agreement for the purpose of providing for the common ownership and management of the Property.

NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree that the above recitals are true and correct and are incorporated herein by this reference, and further agree as follows:

1. PURCHASE PRICE.

 At the Closing (as defined in the RPA), Gonzalez shall be responsible to contribute the sum of One Hundred Ten Thousand Dollars ($110,000.00) towards the Purchase Price, plus ninety three-percent (93%) of any Excess Costs (the “Gonzalez Contribution Amount”). At the Closing, Prada shall be responsible to contribute Eight Thousand Five Hundred Twenty ($8,520.00) towards the Purchase Price, plus seven-percent (7%) of any Excess Costs (the “Prada Contribution Amount”). As used hereinabove, the term “Excess Costs” shall mean the amount, if any, by which the Gonzalez Contribution Amount and Prada Contribution Amount are insufficient to cover all costs and expenses required to be paid in order for the Closing to occur. The full Gonzalez Contribution and Prada Contribution shall be paid into escrow at least one (1) business day prior to the Closing to the escrow opened to handle the RPA (the “Purchase Escrow”), which payment shall be a condition precedent to the Owner’s rights under this Agreement.

• PURCHASE LOAN.

Gonzalez and Prada shall jointly apply for a loan in connection with the purchase of the Property, with the target of obtaining financing equal to at least eighty- percent (80%) of the Purchase Price (the “Loan”). Both Gonzalez and Prada shall be listed as borrowers on the Loan and shall sign such documents as may be reasonably required to obtain the Loan.

• COMMON OWNERSHIP.

At Closing of the Purchase Escrow, title to the Property shall be vested as follows: “Tony Gonzalez, a married man as his sole and separate property as  to an undivided ninety three (93%) tenant in common interest and Ivonne Prada, a married woman as her sole and separate property as to an undivided seven (7%) tenant in common interest.

4. MANAGEMENT.

1. Generally. The Owner vested with the sole authority to manage and maintain the Property shall be called the “Managing Owner”). The Managing Member’s responsibilities shall include:
2. ensuring that all expenses and other necessary payments required to properly maintain the Property are timely made, including, but not limited to, the monthly Loan payments and other Property Expenses;
3.  shall ensure that, at all times, the Property is maintained in a first class condition;
4.  shall timely report to and provide all requested backup information to the other Owners; and
5. shall timely undertake all reasonable efforts necessary to lease the Property and otherwise generate income from the Property.

• Initial Managing Owner. Subject to the provision of Section 4(d) below, Prada shall have sole authority to manage and maintain the Property according to the terms and provisions set forth in this Agreement.

• Major Decisions. Notwithstanding anything to the contrary in Section 4(b), Prada shall obtain Gonzalez’s prior written approval prior to:

 (a) entering into or modifying any lease or other agreement which conveys the right to use the Property;

 (b) entering into any agreement relating to the Property which: (i) requires a lump sum payment in excess of Five Thousand Dollars ($5,000.00), or (ii) which requires periodic payments, where: (y) any of the periodic payments exceed the sum of Five Thousand Dollars ($5,000.00), or (z) the total of all periodic payments required by such agreement in any given twelve (12) month period exceeds Ten Thousand Dollars ($10,000.00); (c) selling or otherwise disposing of all or any portion of  the Property; (d) constructing improvements on or to the Property; (e) remodeling any existing improvements on the Property; (f) incurring any indebtedness to be secured by all or any portion of the Property or for which Gonzalez will be responsible to repay; or (g) creating any easements or other encumbrances on, against, or effecting the Property.

• Removal. Upon a violation of any of the restrictions and/or obligations set forth in Section 4(c), upon any other breach by Prada, or upon the sale by Prada of all or any portion of her interest in the Property, Prada’s sole authority to manage and maintain the Property shall, upon written notice by Gonzalez, terminate and Gonzalez shall, from that point forward, have sole authority to manage and maintain the Property.

5. OPERATING CAPITAL AND EXPENSES

1. Property Expenses. Except as is set forth in Section 1, each Owners shall pay [….] Percent (…….%) of all costs and expenses related to the Property, including without limitation, all monthly Loan payments, taxes, insurance (including without limitation an insurance policy that insures the Property and also provides liability coverage for both Owners in an amount not less than $500,000.00), assessments, HOA dues (if any), utilities, management fees, marketing costs, closing costs, title insurance, costs incurred to lease, rent, or sell the Property (including without limitation all real estate broker commissions, title insurance fees,

escrow fees, and other closing costs), legal and accounting fees, costs to repair the Property, capital improvements, and all other costs related to the maintenance, ownership, and disposition of the Property (collectively, the “Property Expenses”).

1. Regular Property Expenses. In the event that the Managing Owner determines, from time to time, that additional capital from the Owners is required for ordinary and routine Property Expenses (including all Property Expenses other than those described in Section 5(a) (ii)) (each a “Capital Call”) to operate, improve, or otherwise manage the Property, the Managing Owner shall notify all Owners, in writing, of the Capital Call, including a detailed breakdown of the same (a “Capital Call Notice”). Each Owner shall deposit into the joint bank account set up by Owners (the “Bank Account”). Gonzalez shall deposit ninety three Percent (93%) and Prada shall deposit seven Percent (7%) of the Capital Call within ten (10) days after receipt of a Capital Call Notice.

1. Large Capital Improvements. No Capital Call in excess of Five Thousand Dollars ($5,000.00) in any given ninety (90) day period (each, a “Large Capital Call”) shall be allowed without the unanimous vote of all Owners. Upon the affirmative vote of all Owners, Gonzalez shall deposit Ninety three Percent (93%) and Prada shall deposit Seven Percent (7%) of the Large Capital Call into the Bank Account within ten (10) days after the affirmative vote approving such Large Capital Call.

1. Emergency Advances. Should either Owner determine that an “emergency condition” exists, that owner shall first attempt to contact the other Owner to see if an agreement can be reached on the best way to handle the emergency condition. If the Owner is unable to reach the other Owner and action must be taken in order to avoid or prevent additional harm, such Owner shall be entitled to make such advances (an “Emergency Expense”) as are reasonably necessary to properly address the emergency condition. An “emergency condition” shall exist when there is an immediate threat of significant harm to the Property, or an immediately and real threat of physical harm to anyone residing in or visiting the Property. If an Emergency Expense is made, the Owner making the Emergency Expense shall, as soon as is reasonably practical, notify the other Owner, in writing, of the background of the Emergency Expense and a detailed breakdown of all monies expended as part of the Emergency Expense, including receipts and other documentation associated with the Emergency Expense (the “Emergency Expense Notice”). Unless the Emergency Expense is being challenged by the other Owner, the other Owner shall deposit into the Bank Account either Ninety three Percent (93%) or Seven Percent (7%) of the Emergency Expense within ten (10) days after receipt of the Emergency Expense Notice.

• Monthly Payment. On or before the first day of each calendar month (provided that if the first day of any month is a weekend or a legal holiday, such payment shall be due on the preceding business day), each Owner shall deposit into the Bank Account, an amount equal to either Ninety three Percent (93%) or Seven Percent (7%) of the monthly Loan payment (each such payment, a “Monthly Payment”). The Monthly Payment shall be paid in advance, with the first Monthly Payment being due and payable (as may be prorated) at the Closing. The Owners shall make their first post-Closing Monthly Payment on or before the first day of the calendar month following the month in which the Closing occurs.

• Failure to Make a Required Payment. If either Owner fails to make any Monthly Payment, Capital Call, Large Capital Call, or Emergency Expense payment (unless  such Owner is contesting the validity of the Emergency Expense) (collectively a “Missed Payment”) by the date on which said Missed Payment is due, then such Owner shall be in default of this Agreement and such Owner shall, in addition to any other remedies available at law or in equity, pay to the other Owner a late fee equal to $100.00, plus the actual costs and expenses incurred as a result of the failure by such Owner to make the Missed Payment, plus interest at the rate of eighteen percent (18%) per annum from the due date of such Missed Payment until such time as the Missed Payment is paid to the non-defaulting Owner. The failure by a non-defaulting Owner to enforce any of the provisions of this Section 5(c) with respect to any given Missed Payment shall not constitute a waiver of that Owner’s right to enforce all of the terms of this Section 5(c) in relation to any subsequent Missed Payment.

• Rental Profits from Property; Distributions from Bank Account. All revenue and/or income generated by the Property shall be placed in the Bank Account, shall be properly accounted for by the Managing Owner, and unless agreed upon by the affirmative vote of all Owners, shall be used solely to pay those Property Expenses identified in Section 5(a)(i). In the event that the Owners mutually agree that the amount of money in the Bank Account is more than enough to cover the upcoming Monthly Payment and other Property Expenses, and if the Owners mutually agree upon an amount of money to be distributed from the Bank Account (each a “Distribution”), the agreed-upon Distribution will be made to the Owners and shall be paid in the following order:

1. First, all Distributions shall be paid to Gonzalez until such time as the Gonzalez Contribution Amount identified in Section 1 has been fully repaid; then

1. Second, all Distribution shall be paid to Prada until such time as the Prada Contribution Amount identified in Section 1 has been fully repaid; then

1. Third, all Distributions shall be paid Ninety three percent (93%) to Gonzalez and Seven Percent (7%) to Prada.

Notwithstanding anything to the contrary above, if Gonzalez owes Prada any money based upon one or more Missed Payments, all Distributions which would have been paid to Gonzalez will be automatically released to Prada until such time as the total amount due and owing by Gonzalez has been repaid to Prada. Likewise, if Prada owes Gonzalez any money based upon one or more Missed Payments, all Distributions which would have been paid to Prada will be automatically released to Gonzalez until such time as the total amount due and owing by Prada has been repaid to Gonzalez

6. TRANSFER OF PROPERTY.

1. Sale of 100% of Property. Gonzalez shall have the right at any time, and in Gonzalez’s sole and absolute discretion, to market and sell the entire Property, including not only his own tenant-in-common interest in the Property, but also Prada’s entire tenant-in- common interest. Prada acknowledges Gonzalez’s right to force the sale of the entire Property, and agrees to cooperate with the sale of the Property, including her Seven Percent (7%) tenant-in common interest in the Property.

 Upon the sale of the entire Property, after paying for all necessary expenses and closing costs related to the sale, the remaining proceeds shall be split as follows:

1. The first One Hundred Ten Thousand Dollars and 00/100 Dollars ($110,000.00) shall be paid to Gonzalez (the “Gonzalez Contribution Reimbursement”).

1. After the payment of the Gonzalez Contribution Reimbursement, all remaining proceeds shall be evenly split between Gonzalez and Prada.

Notwithstanding anything to the contrary in Section 6 above, if Gonzalez owes Prada any money based upon one or more Missed Payments, all monies which would have been paid to Gonzalez will be automatically released to Prada until such time as the total amount due and owing by Gonzalez has been repaid to Prada. Likewise, if Prada owes Gonzalez any money based upon one or more Missed Payments, all monies which would have been paid to Prada will be automatically released to Gonzalez until such time as the total amount due and owing by Prada has been repaid to Gonzalez.

• Sale of Property. Either Owner shall have the right to sell, exchange or otherwise transfer its interest in the Property, or any part thereof, after having first offered to sell said interest to the other Owner in accordance with the following procedure:

1. The interest in the Property which the transferring Owner intends to sell, exchange or otherwise transfer (whether such interest includes all or a portion of the Owner’s interest) (the “Offered Property”) shall first be offered in writing to the other Owner at a stated price (a “ROFR Offer”). The other Owner shall have a period of thirty

(30) days after receipt of the ROFR Offer in which to accept or reject said offer in writing.

1. In the event the non-transferring Owner accepts the offer, then the non-transferring Owner shall purchase the Offered Property on the terms set forth in the ROFR Offer within sixty (60) days after the acceptance of the ROFR Offer. All costs and expenses associated with such sale, including title insurance premiums and reasonable closing costs, shall be paid solely by the transferring Owner.

1. In the event the non-transferring Owner rejects the offer, then the transferring Owner shall be free to sell the Offered Property on the terms set forth in the ROFR Offer and on no other terms. In the event the transferring Owner fails to consummate the sale within five (5) months of the ROFR Offer, then the transferring Owner’s right to sell the Offered Property shall automatically expire and the transferring Owner shall be required to go through the process outlined in this Section 6(b) prior to selling the Offered Property.

1. Any sale to a third party shall be conditioned upon the new Owner agreeing in writing to be bound by the obligations set forth in this Agreement and otherwise agreeing to succeed to the transferring Owner’s rights and responsibilities as set forth in this Agreement.

• Notwithstanding anything to the contrary stated herein, Prada may not sell her interest in the Property without the written consent of Gonzalez, which consent may be given or withheld in the sole discretion of Gonzalez.

• INDEMNIFICATION 

Each Tenant in Common hereby agrees to indemnify, protect, defend and hold the other Tenant in Common free and harmless from all costs, liabilities, tax consequences and expenses (for example, taxes, interest and any penalties), including, without limitation, attorneys’ fees and costs, which may result from any Tenant in Common so notifying the Commissioner in violation of this Agreement or otherwise taking a contrary position on any tax return, report or other document.

• NO AGENCY 

 No Tenant in Common is authorized to act as agent for, to act on behalf of, or to do any act that will bind, any other Tenant in Common, or to incur any obligations with respect to the Property.

• CO-TENANT’S OBLIGATIONS.

 The Tenants in Common each agree to perform such acts as may be reasonably necessary to carry out the terms and conditions of this Agreement, including, without limitation.

1. FUTURE CONTROL OF THE PROPERTY

The Tenants in Common each agree that the owner with the lowest investment shall not have any control of the property.

1. REMOVAL FROM THE AGREEMENT

In the event that Gonzalez wishes to remove Prada from this Agreement, Gonzalez will be required to provide 7 days written notice to the other Prada.

The Owner with the highest investment shall also bear the responsibility of returning Prada’s original investment, in this example the amount will be $8,520.00.

1. DISPUTE RESOLUTION
2. If any dispute arises between the Owners related to this Agreement, it shall be resolved by mediation between and among the parties with the help of a mutually agreed-upon mediator.
3. Any costs and fees incurred other than attorney fees associated with the mediation shall be shared equally by the owners.
4. In the event that a dispute cannot be resolved through binding mediation, the Owners agree to submit to binding arbitration in [NAME OF STATE], under the rules of the American Arbitration Association.
5. Judgment upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so. The prevailing Owner shall be entitled to recover its costs and reasonable attorney’s fees.
6. NO ENCUMBRANCES.

Except as otherwise provided in this Agreement, no Owner shall encumber or place a lien on the Property or that Owner’s Interest in the Property without the written consent of the other Owner, which consent may be given or withheld in the sole and absolute discretion of the other Owner.

1. DEFAULT.

Except as is otherwise provided for hereinafter in this Section 11, in the event of a default by any Owner of any of the terms of this Agreement, the non-defaulting Owner shall have all rights and remedies available to it at law or in equity.

1. Solely with respect to a violation of Section 6, in the event of a transfer made in violation of Section 6, the Owner violating Section 6 (the “Defaulting Owner”) shall pay to the non-Default Owner liquidated damages in the amount of Fifty Thousand Dollars ($50,000.00). The Owners each acknowledge that a violation of Section 6 or Section 10 would cause the non-Defaulting Owner to incur damages, the amount of which is extremely difficult to ascertain in advance with any degree of certainty. As such, the Owners have identified and agreed in advance that the damages are likely to be somewhere around Fifty Thousand Dollars ($50,000.00) and the payment of such amount does not constitute a penalty but rather the Owner’s best estimate of the damages and loss the non-Defaulting Owner will incur in the event of a breach by the Defaulting Owner of Section 6.

1. STATUS OF RELATIONSHIP.

The Owners acknowledge that it is their intention to hold the Property as tenants in common and that they have expressly elected not to become partners and that neither this Agreement nor any provision of this Agreement shall be interpreted to impose a partnership relationship at either law or equity on the parties. Accordingly, no Owner shall have any liability for the debt or obligation of any other Owner.

1. NOTICE.

 Any notice required or desired to be given under this Agreement shall be deemed given, if in writing and hand delivered or sent by United States certified mail, to the other party at the address shown for said party below:

Tony Gonzalez

13700 Main Street

Venice, CA 90291

Ivonne Prada

410 Main St.#2900

Miami, FL 33132

1. RIGHT TO PARTITION.

Each Owner waives the right of partition for a period of one year following the Closing. Thereafter, each Owner will have any legal or equitable right that it may have, or may in the future acquire, to bring or maintain any action for partition with respect to the Property.

1. COUNTERPARTS.

 This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together will constitute one and the same instrument.

1. GOVERNING LAW; VENUE.

This Agreement shall be governed by the laws of the State of Nevada without regard to its conflicts of laws principles. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and exclusive venue in, the state or federal courts in Clark County, State of Nevada.

• SUCCESSORS.

This Agreement shall continue in full force and effect and shall bind and inure to the benefit of the Owners and their respective heirs, executors, administrators, personal representatives, successors and assigns until the sale by the Owners of the Property.

• NEW OWNERS.

 This Agreement and the rights and obligations of Prada hereunder shall run with the land for so long as Gonzalez owns an interest in the Property. Without waiving any of the provision set forth in Section 6, in the event that all or any portion of Prada’s interest in the Property is sold or otherwise transferred, such new Owners shall automatically be bound to this Agreement regardless of whether they sign agreeing to be bound by it.

• SEVERABILITY.

The unenforceability or invalidity of any provision or provisions of this Agreement as to any person or circumstances shall not render that provision, nor any other provision hereof, unenforceable or invalid as to any other person or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable.

• ATTORNEYS’ FEES.

 If any Owner is required to retain legal counsel in order to enforce this Agreement against an Owner who has breached this Agreement, with or without the commencement of a formal legal action, the prevailing Owner shall have the right to collect from the breaching Owner its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.

• WAIVER OF JURY TRIAL.

EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES THAT SUCH PARTY IS KNOWINGLY AND VOLUNTARILY WAIVING SUCH PARTY’S RIGHT TO DEMAND TRIAL BY JURY.

• FURTHER ASSURANCES.

The Owners will execute, acknowledge and deliver such further instruments and do such further acts and things as may be required to carry out the intent and purpose of this Agreement.

• CAPTIONS.

Captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any of the provisions thereof.

• NO THIRD PARTY BENEFICIARIES.

No person other than the Owners are intended beneficiaries of this Agreement, and none of the provisions of this Agreement shall be for the benefit of or be enforceable by any other person, creditor of any Owner, or any other third party.

IN WITNESS WHEREOF, the parties have executed this Tenancy In Common Agreement as of the date first above written.

Tony Gonzalezan individual   _________________________

Ivonne Prada,an individual                         _____________________