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Juda, Eskew & Associates

Terms of Service 

for

 Engagement Agreement

The following terms are incorporated by reference into and are a part of the terms of the Engagement Agreement of Juda, Eskew & Associates (the “Firm”).

Capitalized terms not defined in this Terms of Service have the meaning given to them in the Engagement Agreement. Please refer to the Engagement Agreement (the “Agreement”), and references to the Agreement include these Terms of Service.

  1. Certain Other Service Terms
    1. Online Portal: The Firm will maintain an online portal with access to payment ledger accounts, financials statements, paid invoices, bank statements, budgets, and other schedules, which the Firm will use reasonable efforts to make accessible 24 hours per day 365 days per year (excluding downtime for standard maintenance and for force majeure events) by board members / management. In the event the Firm uses a preferred third party vendor in the future to provide the online portal, the Association will sign all required documentation and provide necessary information for this change to a third party vendor.
    2. Accounts Receivable / Owner Payments: The Firm will provide services to allow unit owners to make maintenance or special assessment payments via Lock Box, Electronic Funds Transfer / Autopay, or Online Payments. 
    3. Delinquency Oversight: On a twice-monthly basis, after the mid-month close and last day of the month cutoffs (unless directed otherwise by the Association), the Firm will mail (via US Postal Service) first request delinquency letters and follow-up with second request letters at the end of the month, subject to an additional fee set forth in Table A of the Agreement.  Additionally, the Firm will track and apply late charges and/or interest based on the Association’s applicable policies. The Firm will turn the account over to the Association’s attorney, based on the timing policy set by the Association’s Board of Directors.
    4. Account Payable: On a bi-weekly basis, the Firm will transmit invoices for approval by the Association’s Board of Directors or Manager, as its policy so reasonably dictates, on the agreed upon issue date, which will be set at the beginning of each calendar month for that month, as long as the Association has timely uploaded all of their invoices to the Firm’s website at least 24 hours prior to the intended issue date. As applicable, the Firm will issue any required 1099 statements at year end to vendors paid through this accounts payable process. The Association authorizes the Firm to initiate automatic transfers between the Association’s accounts as needed to perform the services under the Agreement.
    5. Financial Management Reporting: By the 25th day of the following calendar month, the Firm will prepare compiled and accurate financial statements for the preceding calendar month on an accrual basis, which have been custom designed, on a line-by-line basis to coincide with the categories of the Association’s budget.
      1. The Firm will prepare the following additional reports as well: Balance Sheet, Statement of Revenues and Expenses Actual Compared to Budget – to include monthly and year to date variance, Detailed General Ledger, and Journals. The Firm will execute reclassifications requests once per quarter – more frequent requests for non-Firm errors will be subject to additional fees (see Table A in the Agreement for fee amounts).
      2. For all condominiums, at the written request of the Association and with its assistance, the Firm will file annual financials with the DBPR to comply with any such requirement to file under Florida Statutes. 
      3. The monthly financial statements will be prepared by the Firm with information supplied by the Association, but the Firm will not be auditing, reviewing, nor making an opinion on the financial statements of the Association. In addition, the Firm will be omitting the statement of cash flows and additional notes and disclosures that may be required if prepared by an independent C.P.A. firm. 

An audited or reviewed financial statement may be required by an independent C.P.A. firm based on the Association’s financial reporting requirements, which would include these disclosures. The Firm is not an independent C.P.A. firm but rather is a limited liability company organized to provide periodic accounting and bookkeeping services for Associations that would otherwise be maintained by such Associations, and other services not required to be performed by an independent C.P.A. firm. 

  1. Budget: The Firm will consult once a year with the Board of Directors and/or the Manager to assist in the preparation of the Association’s annual operating budget. This will include worksheets detailing the actual expenses and projection of expenses through the end of each year as related to the budgeted figures. It will also include schedules updating the balances in the reserves for replacements and repairs based on the Association’s estimates. 
  2. Customer Service Support: The Firm will provide customer service support to the Association’s Board of Directors and unit owners between the hours of 9:00 a.m. and 5:00 p.m. ET, Monday through Friday, via in-office meetings, calls, and/or emails regarding maintenance balances. Except for National / Bank holidays, the day after Thanksgiving, the day after the observation date for Christmas and the day before or after the observation date for July 4th.
    1. Board of Directors will receive responses from their dedicated AP, AR, and Accounting representatives within 1.5 business days.
    2. Unit owners shall be supported by our customer service representatives and receive responses within 3 business days.
  3. Meeting Attendance: An accountant from the Firm will attend i) the Association’s Annual Budget Meeting and ii) any meeting where a special assessment will be voted upon as part of the Association’s service (via Zoom or a similar program) between the hours of 9:00 a.m. and 5:00 p.m. ET, Monday through Friday. To have a representative attend a meeting outside of normal business hours, join a meeting in-person, or be present at any additional meetings will trigger additional fees set forth in Table A of the Agreement. To have a Director from the Firm attend either the above listed meetings or any additional meetings will also trigger additional fees as set forth in Table A of the Agreement.
  4. Unit Sales / Refinances: The Firm will complete all estoppel and HUD forms for the buyers and seller of the units within the Association. There will be no charge to the Association subject to regulatory change. All costs will be invoiced to the Title Company or attorney making the request. 
  5. Out of Scope Services: Any services requested by the Association and provided by the Firm which are not expressly listed in the body of the Agreement will be subject to the fees listed in Table A of the Agreement or documented by a separate work order quote. The Firm is under no obligation to perform any services not expressly described and agreed to in the Agreement and the Firm will specifically not perform the following services:
    1. The Firm will not review, audit, or offer an opinion or any form of assurance on any account, financial report or statement, or budget projection.
    2. If the Association is interested in having the Firm prepare Federal and State tax returns, that requires a separate agreement and is specifically excluded from the engagement agreement. 
    3. The Firm does not facilitate unit owner records inspections – all files will be available online for the Association’s Management/Board Members to handle. 
    4. The Firm will not make any management decisions for the Association, its Manager or its Board of Directors.
    5. The Firm will not be a signer on the Association’s bank accounts.
    6. The Firm will not advise the Association as to any investments.
  1. Dispute Resolution and Other Legal Matters
    1. Non-Binding Mediation: If any dispute arises between the parties to the Agreement, the parties agree first to try in good faith to settle the dispute through non-binding mediation to be held in Broward County, Florida. The costs of mediation shall be shared equally by the parties. 
    2. Jurisdiction and venue: If non-binding mediation is unsuccessful or for any reason such non-binding mediation is not conducted, each party irrevocably submits to the exclusive jurisdiction of any State or Federal court sitting in Broward County, Florida over any suit, action or proceeding arising out of or relating to the Agreement or the engagement. Each party irrevocably waives, to the fullest extent permitted by law, any objection it may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. Each party agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon such judgment.
    3. WAIVER OF JURY TRIAL: EACH OF THE PARTIES IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) RELATING TO OR ARISING OUT OF THE AGREEMENT OR THE ENGAGEMENT.
    4. Governing Law: The Agreement, and the rights and obligations of the parties under the Agreement or otherwise related to the engagement, shall be governed by and construed in accordance with the laws of the State of Florida.
    5. Indemnification: The Association agrees to indemnify and hold harmless the Firm, its members, managers, agents and employees (the “Indemnified Persons”) from and against any losses, claims, damages, or liabilities relating to or arising out of the Firm’s engagement under the Agreement (collectively, “Losses”), except for any Losses resulting from the willful misconduct, bad faith or gross negligence of any Indemnified Person, as determined by a final judgment of a court of competent jurisdiction. The Association agrees that it will reimburse any Indemnified Person for all reasonable expenses and costs (including reasonable attorney’s fees) as the same are incurred in connection with investigating, preparing or defending any action or claim, whether or not the Indemnified Person is named as a party to an action, proceeding or investigation; provided, however, if it is determined that such Indemnified Person is not entitled to reimbursement hereunder, such Indemnified Person shall promptly repay to the Association all advanced amounts. The provisions of this section shall be in addition to any rights that an Indemnified Person may have at common law or otherwise.
    6. Contribution: If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Association and the Firm shall contribute to the Losses involved in such proportion as is appropriate to reflect the relative benefits received (or anticipated to be received) by the Association, on the one hand, and by the Firm and/or any other Indemnified Person, on the other hand, with respect to the engagement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of the Association, on the one hand, and of the Firm and/or any other Indemnified Person, on the other hand; provided, however, that in no event shall the amounts to be contributed by the Firm exceed the fees actually received by the Firm during the preceding 12 months of the engagement with the Association.
    7. Limitation of Liability: The Association agrees that neither the Firm nor any other Indemnified Person shall have any liability to the Association or any person asserting claims on behalf or in right of the Association in connection with or as a result of the Agreement or the engagement or any matter referred to in the Agreement or the engagement, except to the extent that any Losses incurred by the Association are finally determined by a court of competent jurisdiction (without right of appeal) to have resulted primarily and directly from the willful misconduct, bad faith or gross negligence of any Indemnified Person in performing the services that are the subject of the Agreement or the engagement. In no event shall any Indemnified Person be deemed grossly negligent to the extent such person is acting in accordance with or in reliance on the direction or authority of the Association. 
    8. Limitation of damages: In no event shall any Indemnified Person be liable for lost profits, consequential damages, special damages, incidental damages, punitive damages or similar items in connection with any matter relating to the engagement or the Firm or the Agreement. 
    9. limitation of recovery: Notwithstanding anything to the contrary in the Agreement or otherwise, in no event shall the aggregate liability of all Indemnified Persons in connection with any matter relating to the engagement of the Firm or the Agreement, exceed the amount of the fees actually paid to the Firm pursuant to the Agreement over the preceding 12 months.
    10. Service Warranty: The Firm will perform its services with reasonable care in a diligent and competent manner. The Firm’s sole obligation in the event of an alleged default will be to correct any nonconformance with this warranty, provided that the Association complies with the notice requirements set forth in Section 2.f. (the Firm’s Default) of the Agreement. THIS WARRANTY IS THE FIRM’S ONLY WARRANTY CONCERNING THE SERVICES AND ANY DELIVERABLE, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED.
    11. Effect of Termination: The provisions in this Section 2 of the Terms of Service are intended to survive any termination of the Agreement. 
    12. Entire Agreement: The Agreement contains the entire agreement and understanding between the parties to the Agreement and supersedes any prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter of the Agreement. 
    13. Amendment: No modification, amendment or waiver of any of the provisions of the Agreement shall be effective unless in writing specifically referring to the Agreement and signed by each of the parties to the Agreement. 
    14. Third Party Beneficiaries: Nothing in the Agreement, express or implied, is intended to confer or does confer on any person or entity, other than the parties to the Agreement, the Indemnified Persons and each of their respective successors, heirs and permitted assigns, any rights or remedies (directly or indirectly as a third-party beneficiary or otherwise) under or by reason of the Agreement or as a result of the services to be rendered by the Firm under the Agreement.
    15. Severability: The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of any other provision of the Agreement, which shall remain in full force and effect pursuant to the terms of the Agreement.
    16. Assignment: No party to the Agreement may assign or delegate any of its rights or obligations under the Agreement without the written notice to the other party to the Agreement.  All covenants and agreements contained in the Agreement shall bind and inure to the benefit of the respective successors and assigns of the parties to the Agreement.
    17. Independent Contractor: The Firm is an independent contractor and not a partner, affiliate, joint venturer, agent or fiduciary of the Association.
    18. No Legal or Tax Advice: The Firm does not provide legal or tax advice in connection with this engagement. The Association acknowledges and agrees that it will exclusively rely upon its own legal and tax advisors.
    19. Counterparts: The Agreement may be executed in counterparts, all of which together shall be considered a single instrument. A signature to the Agreement transmitted electronically is as effective as if an original signature.
    20. Headings: The headings in the Agreement are for convenience only and shall not affect the construction of the Agreement.