This RIGHT OF FIRST REFUSAL AGREEMENT (this “Agreement”), is made by and among SUMMIT SNOW REMOVAL LLC, formerly known as LONSDALE SERVICES LLC, a California Limited Liability Company (the “Company”) or its assigns, and you, the client (the “Client”).
RECITALS
A. The Company operates a snow removal business located in Mono County, California.
B. The Client controls, whether by ownership or management, property, the address of which has been previously provided to the Company (the “Property”).
C. The Company desires to provide snow removal services (the “Services”) for the Client.
D. The Client desires to hire the Company to provide the Services and to grant the Company a Right of First Refusal to provide the Services in the future.
E. The parties desire to set forth the terms of the Right of First Refusal granted by the Client to the Company.
NOW, THEREFORE, the parties agree as follows:
SECTION 1. GRANT OF RIGHT.
1.1 Grant of Right of First Refusal. The Client grants to the Company, or it’s assigns, the right of first refusal (the “Right of First Refusal”) to provide any and all snow removal services, whether by manpower or equipment, for the Client at the Property. In doing so, the Client grants the Company exclusive rights to remove snow from the Property.
SECTION 2. TERM.
2.1 Term of Right. The term of the Right of First Refusal shall commence on the date of this Agreement and end ten and a half (10.5) years thereafter.
SECTION 3. RESERVED.
SECTION 4. RESERVED.
SECTION 5. MANNER OF EXERCISING RIGHT.
5.1 Refusal Right Trigger. Prior to (a) soliciting any offer for Services at the Property; or (b) accepting any offer for Services at the Property, the Client shall notify the Company of such interest in Services. The Company may exercise the Refusal Right by indicating to the Client, in any form that provides actual notice to the Client, of its desire to exercise its Right within three (3) business days after the Company has received the Client’s notice. In the event the Company does not exercise the Right of First Refusal, the Client may solicit an offer for Services from a different snow removal business to ensure it receives Services on that one occasion. However, any subsequent interest in Services must again be presented to the Company to allow it to exercise its Right for so long as this Agreement remains in effect.
SECTION 6. PRICE.
6.1 Price of Services. As of the date of this Agreement, the Company agrees to provide the Services at following rate(s) previously provided to the Client (the previously-stated prices collectively referred to as the “Price”).
6.2 Price Increases. The Company shall not increase the Price more than ten percent (10%) annually and will inform the Client of the Price increase, if one were to occur, prior to performing the Services.
SECTION 7. MANNER OF PERFORMANCE. Upon exercising the Right of First Refusal, the Company agrees to the following:
7.1 Response Time. The Company shall begin performing the Services at the Property within ten (10) calendar days of exercising the Right of First Refusal.
7.2 Labor Deployed. The Company shall deploy at least one employee to perform the Services at the Property until the requested Services are completed. The company’s employee(s) shall work at the Property no less than six (6) hours per day and shall work all business day(s) until the requested Services are completed.
SECTION 8. PAYMENT.
8.1 Invoicing. The Company shall invoice the Client weekly until the Services are completed. The invoice shall be delivered by email to the email address previously provided to the Company:
8.2 Method of Payment.
The Client may pay any invoice by credit card or check.
(a) If the Client elects to pay an invoice by credit card, it may do so by following the payment instructions on the invoice sent to the email address provided above.
(b) If the Client elects to pay an invoice by check, it may pay the full amount invoiced less the invoice line item indicating the “Credit Card Processing Fee,” which is typically three percent (3%) of the invoice total. For example, if the invoice total is one hundred three dollars ($103.00), which includes a three-dollar ($3.00) credit card processing fee representative of three percent (3%) of the invoice total, the Client may submit payment in the amount of one hundred dollars ($100.00) to the Company ($103.00 invoice – $3.00 credit card processing fee = $100.00 check payment).
8.3 Timing of Payment.
The Client shall pay invoices on the following schedule(s):
(a) If the Client elects to pay an invoice by credit card, payment is due within five (5) business days of receiving the invoice.
(b) If the Client elects to pay an invoice by check, a representative of the Company will pick up the check from the Client’s principal place of business on the Friday immediately following the date of the invoice
8.4 Penalty for Late Payment. If the Client does not pay the Company according to the provisions of Section 8.1 through 8.3, the Company will remove all labor and equipment from the Property until payment is made. In addition, the Client shall incur a late payment penalty equal to five percent (5%) of the invoice total for each week that the invoice is not paid in full. This amount shall be compounding.
SECTION 9. TERMINATION.
9.1 Rights of Parties to Terminate. This Agreement may be terminated:
(a) By the Company, if the Client has breached any of its obligations under this Agreement in any material respect;
(b) By the Client, if the Company has breached any of its obligations under this Agreement in any material respect;
(c) By the mutual consent of the Company and Client.
9.2 Effect of Termination. If either the Company or the Client decides to terminate this Agreement pursuant to Section 9.1, such party will give written notice to the other party to this Agreement of such decision. In the event of a termination of this Agreement, the parties to this Agreement will be released from all liabilities and obligations arising under this Agreement with respect to the matters contemplated by this Agreement, other than for damages arising from a breach of this Agreement.
SECTION 10. RESERVED.
SECTION 11. MISCELLANEOUS PROVISIONS
11.1 Waiver of Compliance. Any failure of any party to comply with any obligation, covenant, agreement, or condition in this Agreement may be waived by the party entitled to the performance of such obligation, covenant, or agreement or by the party who has the benefit of such condition, but such waiver or failure to insist on strict compliance with such obligation, covenant, agreement, or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
11.2 Assignment. This Agreement and any of the rights, interests, or obligations under this Agreement may be assigned by the Company, without prior written consent of the Client.
11.3 Successors.Each and all covenants, terms, provisions, and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns, including upon any sale or transfer that may occur related to the Property or the Client’s business.
11.4 Facsimile Signatures. Facsimile or email transmission of any signed original document, and retransmission of any signed facsimile or email transmission, will be the same as delivery of an original. At the request of any party, the parties will confirm facsimile or email transmitted signatures by signing an original document.
11.5 Further Assurances. Each party agrees (a) to execute and deliver such other documents and (b) to do and perform such other acts and things, as any other party may reasonably request, to carry out the intent and accomplish the purposes of this Agreement.
11.6 Attorney Fees. If any arbitration, suit, or action is instituted to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this Agreement, the party prevailing on an issue will be entitled to recover with respect to such issue, in addition to costs, reasonable attorney fees incurred in the preparation, prosecution, or defense of such arbitration, suit, or action as determined by the arbitrator or trial court, and if any appeal is taken from such decision, reasonable attorney fees as determined on appeal.
11.7 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings and agreements among the parties with respect to such subject matter.