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HomeMy WebLinkAboutC01-249 Property Management Agreement with Eagle RiverviewPROPERTY MANAGEMENT AGREEMENT THIS AGREEMENT, entered into in Colorado, this 25° day of 2001, by and between EAGLE RIVERVIEW AFFORDBLE HOUSING CORPORA ICT. a Colorado non - profit corporation (hereinafter called "Owner ")and the Board of County Commissioners for Eagle County (hereinafter called "County "). WHERLr ",S, Owner is the owner of the property described as ":ot 1, Block 2, Eagle -Vail oubdivision Filing No. 2, County of Eagle, State of �:olorado, commonly known as "Riverview Apartments," and also commonly known as 39169 U.S. Highway 6/24, Avon, Colorado, consisting of a five building complex comprising 73 apartment units and associated service and recreational facilities ( "Premises "); and WHEREAS, the Owner is issuing approximately $5,750,000 principal amount of its Multifamily Housing Project Revenue Bonds, Series 1999A, and approximately $1,550,000 principal amount of its Multifamily Housing Project Subordinate Revenue Bonds, Series 1999B and 1999C, in order to finance the cost of a multifamily residential rental project (the "Project ") in Eagle County, Colorado, pursuant to a Trust Indenture dated as of July 1, 1999, between the Owner and The Bank of Cherry Creek, N.A., as Trustee (the "Indenture "); and WHEREAS, the Premises is operated under a Housing Assistance Payments contract with the United States Housing and Urban Development Department ( "HUD ") pursuant to Section 8 of the United States Housing Act of 1937 ( "Section 811); and WHEREAS, Community Development Block Grant funds in the amount $600,000 received by Eagle County pursuant to its contract with the State of Colorado Department of Local Affairs ("CDBG contract ") will be used by the County to purchase certain of the Subordinate Revenue Bonds for the purpose of providing funds to Owner for certain rehabilitation of the Premises; -and WHEREAS, Owner owns and operates the Premises pursuant to the Project Agreement dated July 1, 1999, with Eagle County, Colorado ( "Project Agreement "); and WHEREAS, pursuant to Section 5.10 of the Indenture, the Owner agrees to have the project managed by competent professionals; and WHEREAS, County has the personnel and resources necessary to competently and professionally manage the multifamily residential apartment complex; and WHEREAS, County has familiarized itself with the Premises, including its physical condition and operations under Section 8; and WHEREAS, pursuant to the Indenture,.Owner wishes to obtain the benefits of County's expertise in the field of real estate management by relinquishing to County control and discretion in-the operation, direction, management and supervision of the Premises subject to the terms and provisions of this Agreement, and County for a fee agrees to assume said control and discretion in the operation, management and supervision of the lands and premises on behalf of Owner. G:\Paralegal \Contracts\Riverview County Management.wpd NOW, THEREFORE, in consideration of the mutual covenants herein contained and of other good and valuable consideration, the parties hereto agree as follows: ARTICLE 1 APPOINTMENT Owner hereby contracts with County to manage, operate, direct and supervise the Premises or, °ehalf of Owner and to provide services as require& under Article 6 of this Agreement. In accepting this appointment, County acknowledges that this agreement is subordinate to and County is subject to the terms and conditions of the Housing Assistance Payments contract and the Project Agreement, copies of which having been reviewed by County. In accepting this appointment, County acknowledges that it has reviewed and is bound to the terms and conditions of the CDBG contract as if Owner were the "contractor" and County were a "subcontractor" thereunder. ARTICLE 2 TERM Subject to and upon the terms and conditions set forth herein, or in any exhibit or addendum hereto, this Agreement shall commence on October 1, 2001, and shall continue in force, ending at 11:59 p.m. on September 31, 2002, subject, however, to the termination provisions in Article 13. ARTICLE 3 RELATIONSHIP All actions by County in performing its duties and providing services pursuant to this Agreement shall be for the account of the Owner. With the exception of the exclusions outlined in Article 11, Owner agrees to be responsible for all costs, expenses and disbursements incurred by County, consistent with Section 7.2, in providing management and operational services hereunder, such as, for example, but not limited to, contracts for landscaping or maintenance services and orders for supplies and equipment. ARTICLE 4 DELEGATION AND ASSIGNABILITY County shall have the right to delegate its responsibilities under this Agreement to employees of County or to engage independent contractors for performance of any part of the services to be provided hereunder. Neither the Owner, nor the County, shall assign all or any part of this Agreement without the prior written consent of the other parties to this Agreement. G:\Paralegal \Contracts\Riverview County Management.wpd ARTICLE 5 PROVISIONS REQUIRED BY HUD 5.1. HUD has the right to terminate this Agreement for failure to comply with the provisions of the Project Owner's /Management Agent's Certification for Multifamily Housing Projects for Identity -of- Interest or Independent Management Agents, or other good cause, thirty (30) days after HUD has mailed the Owner a written notice of its desire to terminate this Agreement. 5.2. In the event of a default under the Deeds of Trust, Security Agreements, Indenture, or HUD Housing Assistance Payments contract or successor thereto, HUD has the right to terminate this Agreement immediately upon HUD's issuance of a notice of termination to the Owner and County. 5.3. If HUD exercises this right of termination, the Owner agrees to promptly make arrangements for providing management that is satisfactory to HUD. 5.4. If there is a conflict between this Agreement and HUD's rights and requirements, HUD's rights and requirements will prevail. 5.5. If this Agreement is terminated, County will give to the Owner all of the project's cash, trust accounts, investments and records within thirty (30) days of the date the Management Agreement is terminated. In the event this Agreement is terminated pursuant to any provision stated in this Article 5, Owner shall not be deemed in default of any provision of this Agreement. ARTICLE 6 SERVICES OF COUNTY 6.1 Management and Operation. The County shall manage, operate and maintain the Premises in a manner normally associated with the management and operation of a reasonable quality apartment project and in a manner reflective of the standards set forth by the real estate management industry. County shall act in a fiduciary capacity with respect to the proper protection of and accounting for Owner's assets. 6.2 Employees. The County shall have in its employ at all times a sufficient number of capable employees to enable it to properly and safely manage, operate and maintain the Premises. The salaries of all such employees, except those employees specified in Paragraph 11.2(a), shall be paid from the Operating Fund established under the Indenture consistent with budget thereunder. All matters pertaining to the employment, supervision, compensation, promotion and discharge of such employees are the responsibility of the County. 6.3 Budgets. County shall prepare and submit to Owner a proposed Operating Budget and a proposed Capital Budget for the management and operation of the Premises for the forthcoming calendar year by October 15 of each year. Owner shall consider the proposed budgets, consult with the County, and agree on an approved Operating Budget and an approved Capital Budget for the forthcoming calendar year as provided for in Article V of the Indenture. The approved budgets shall serve as a guideline to the County in maintaining and operating the Premises, and County agrees, subject to the provisions of Article 7, to use diligence and to employ all reasonable efforts in order to G :\Paralegal \Contracts\Riverview County Management.wpd C C effect that the actual cost of maintaining and operating the Premises shall not exceed the Approved Budget pertaining thereto. 6.4 Collection of Receivables. County shall use reasonable and diligent efforts -- including collection suits and proceedings, but subject to Owner's pricy approval -- to collect promptly all rents (including laundry income and all other income) and other charges which may become due at any time from any tenant or from others for services provided in connection with or for the ust 7)f the Premises or any ;aortion thereof. County shall collect and identif -,- any income due Owner from ,miscellaneous services provided to tenants or the public, including, but not limited to, cleaning income, tenant storage and coin operated machines of all types (e.g., vending machines, pay telephones, etc.). All monies so collected shall be deposited daily in the Revenue Fund established under the Indenture. In connection with such suit's or proceedings, only legal counsel designated by Owner shall be retained. All legal expenses incurred in bringing such approved suit or proceeding shall be submitted to Owner for its approval. County shall not write off any income items without prior approval of Owner. 6.5 Leasing. County shall be responsible for the leasing of the Premises. County shall have the specific authority to negotiate leases and rental agreements in connection with amendments, renewals, extensions, modification or cancellation of existing leases and preparation of new leases, consistent with Section 8 and the Housing Assistance Payments contract with HUD, and any successor contract or other low and moderate income guidelines approved by Owner from time to time. County shall make every reasonable effort to obtain and keep desirable tenants for the Premises and perform whatever services may be required in connection with the above mentioned negotiations, including the establishment, implementation and coordination of a marketing plan. 6.6 Repairs, Decoration, Alterations. County will cause Premises to be maintained and repaired in accordance with state and local codes in a condition acceptable to Owner. Without limiting the generality of the foregoing, County shall institute and supervise all ordinary and extraordinary repairs, decorations and alterations, including the administration of a preventive maintenance program for all mechanical, electrical and plumbing systems and equipment. Subject to Section 7.8 of this Agreement, County shall be responsible for arranging all remodeling and alteration work including obtaining bids and proposals, obtaining tenant approval, invoicing tenants for reimbursement, collecting same and making payment from the Operating Account for the work done after the initial construction and tenant occupancy of the Premises. Notwithstanding the generality of the foregoing, except for developing the Capital Budget, County shall not be responsible for instituting or supervising major construction and rehabilitation projects except as may be provided in a separate agreement with Owner. 6.7 Operating Activities. County shall institute and supervise all operational activities of the Premises, such as, but not limited to, the following: (a) Supervision of the security on behalf of the Owner; (b) Responsibility and supervision of maintenance, repair and G :\Paralegal \Contracts\Riverview County Management.wpd C111 C, replacement of landscaping; (c) Responsibility and supervision of a preventive maintenance program; (d) Responsibility and supervision for any necessary maintenance or repairs to the Premises; and (e) Any other activity incidental to the normal operation of an apar +Went project. 6.8 Property Taxes and Loan Payments. The County shall make payment from Owner's funds for property taxes and debt service on any security affecting the Premises as provided in the Indenture. 6.9 Compliance. County has reviewed and shall be responsible for operational compliance with all terms and conditions in the Indenture and the Deeds of Trust (First, Second and Third), Security Agreements, and Assignments of Rents and Leases, all dated as of July 1, 1999, and shall cooperate with Owner in complying with the provisions of such documents. However, County must be made aware in writing by Owner or Trustee of any conditions in any future lease, mortgage, deed of trust or other security instrument affecting the Premises. County shall not be required to make any payment on account thereof unless requested by Owner as provided above. In no event shall the County incur any liability to the holder of any such security instrument. In addition, County shall operate and maintain the Project in accordance with environmental laws pursuant to Section 5.17 of the Indenture. County also has reviewed and shall be responsible for operational compliance with all terms and conditions of the Housing Assistance Payments contract and the Project Agreement, and shall cooperate with Owner in complying with the provisions of such documents. County also has reviewed and shall be responsible for operational compliance with the CDBG contract as if Owner were the "contractor" therein, and shall cooperate with Owner in complying with the provisions thereof. 6.10 Payment of Expenses. County shall pay all operating expenses other than expenses paid through its own account from the Operating Fund established under the Indenture for authorized expenditures. 6.11 Payroll. County shall prepare and pay all payrolls from the Operating Fund and maintain comprehensive payroll records. 6.12 Bank Relationship. County shall handle all operational banking matters related to its contractual responsibility. Owner shall designate which bank(s) or financial institutions County shall use in discharging this responsibility. 6.13 Property Inspection. County shall conduct periodic comprehensive inspections of the Premises and report periodically to the Owner in writing with any recommendation. 6.14 Maintenance of Records. County shall maintain complete and identifiable records, and files on all matters pertaining to the Premises. Such records, and records and financial reports pursuant to Section 6.18' shall be available to the Owner, Bond Trustee or any holder of bonds under the Indenture during business hours upon two (2) days of written notice. G :\Paralegal \Contracts\Riverview County Management.wpd C- C 6.15 County Availability. County shall maintain 24 -hour availability for emergencies. 6.16 Tenant Relations. County shall administer a tenant relations program with maintains a high visibility of management presence and service among tenants. 6.17 Owner Communications. County shall be available for communication with Owner and will keep Owner advised of items affecting the Premises. County shall attend Owner's Board of Directors meetings as and when invited. Withi~ five (5) days after County receives a certified or registered letter from anj tenant, a copy will be sent to Owner. 6.18 Financial Reports. Financial reporting and record keeping: (a) County, in the conduct of its responsibilities to Owner, shall maintain adequate and separate books and records for the Premises in accordance with generally accepted accounting principles, which shall be supported by sufficient documentation to ascertain that said entries are properly and accurately recorded. Such books and records shall be maintained by County at a location acceptable to Owner. County shall maintain such control over accounting and financial transactions as is reasonably required to protect Owner's assets from theft, error or fraudulent activity. (b) County shall adopt a Chart of Accounts (a system of classification of accounting entries) as generally utilized in the residential property management industry. (c) The County shall furnish operating reports for the Premises of all transactions occurring from the first day of the prior month to the last day of the prior month. There reports are to be received by Owner no later than 30 calendar days after the end of the above described accounting period and must show all collections, delinquencies, uncollectible items, vacancies, security deposit account activity, and other matters pertaining to the management, operation, and maintenance of the Premises during the month. The reports shall include a comparison of monthly and year -to -date actual income and expense with the Approved Operating Budget for the Premises. In addition, the County shall remit to Owner all unexpended funds which it has previously requisitioned from the Operating Fund and which are not being held for payment to third parties as of the 25th of the reporting month. The County's fee shall be requisitioned by County from the Operating Fund only after payment of all operating and maintenance expenses then due and payable, but before remittance of the unexpended funds to Owner; such requisition by County shall certify that all operating and maintenance expenses then due and payable have been paid. (d) County shall timely provide to HUD and Colorado Department of Local Affairs, or their respective agents, reports required by the terms of Section 8, the Housing Assistance Payments contract, the CDBG contract, and any subsequent low and moderate income housing programs. Copies of such reports shall be transmitted to Owner simultaneously. (e) County shall timely provide to the Indenture Trustee reports required by section 5.16 of the Indenture. Copies of such reports shall be transmitted to Owner simultaneously. G :\Paralegal \Contracts\Riverview County Management.wpd C (f) Supporting Documentation. As additional support to the monthly financial statement, County shall make available to the Owner, upon request, copies or originals of the following: 1. All bank statements, bank deposit slips and bank reconciliations; 2. Detailed cash receipts and disbursements records; 3. Detailed trial balarces; 4. Paid invoices; 5. Summaries of adjusting journal entries; and 6. Supporting documentation for payroll, payroll taxes and employee benefits. (g) County shall maintain necessary liaison with Owner's accountant. 6.19 Tenant Security Deposits. Security deposits shall be kept by County in a bank or financial institution approved by Owner, and in accordance with laws applicable to tenant security deposits. County shall maintain detailed records of all security deposits and such records will be open for inspection by Owner's employees or appointees. 6.20 Books, Cards, Etc. All books, cards, registers, receipts, documents, disks, tapes and any other papers or electronic records connected with the operation are the sole property of Owner, and County will not publish, transmit or release said information to any party without the prior consent of Owner. 6.21 Reports. County shall timely provide to the trustee reports required under the indenture. Copies of such reports shall be simultaneously submitted to Owner. ARTICLE 7 COUNTY'S AUTHORITY 7.1 County's Authority. County's authority is expressly limited to the provisions provided herein or as may be amended in writing from time to time by Owner and mutually agreed to in writing. 7.2 Approved Operating Budget. Owner's approval of the approved Operating Budget shall constitute for County to expend money from the Operating Fund under the Indenture in order to operate and manage the Premises, and County may do so without further approval as long as County does not exceed the aggregate amount set for in the Approved Budget for any calendar quarter. The expenditures in excess of the approved Operating Budget which do not cumulatively vary more than fifteen percent (15 %) from said approved budget in any fiscal quarter may be made upon filing with the Trustee a requisition for additional operating expenses which further specifies the percentage variance from the original approved operating budget. In accordance with the Indenture, a cumulative budget variance in any calendar quarter may not be incurred without further consent as specified in the Indenture. In the event that a management consultant is called in as a result of expenditure variances G :\Paralegal \Contracts\Riverview County Management.wpd C11 C) above twenty percent (20%), then the management consultant shall formulate a revised approved operating budget and approved varia --ice, if any, therefrom. 7.3 Approved Capital Budget. Owner's approval of the approved Capital Budget shall not constitute an authorization for County to expend any money. Any capital expenditure must be specifically authorized by the Owner. With respect to the purchase and installation of major items of new or replacement equipment, County shall recommend that Owner purchase the items when County believes such purchase to be necessary or desirable. Owner may arrange to :lrchase and install the same itself or may authority County to do so subject o prescribed supervision and specification requireac:nts and conditions. Unless Owner specifically waives such requirements, either by memorandum or as en amendment to this Agreement, all capital equipment, new or replacement, with a cost to obtain and install exceeding $5000 shall be awarded on the basis of competitive bidding when appropriate. 7.4 Contracts. County may enter into contracts for maintaining, repairing or servicing the property and any of the constituent parts of the property subject to the approved Operating Budget. 7.5 Compliance with Laws. It is the intent of the Owner that the Premises be operated in full compliance with federal, state and municipal laws, ordinances, regulations and orders relative to the use, operation, repair and maintenance of the Premises and with the rules, regulations or orders of the local Board of Fire Underwriters or other similar body. County shall promptly endeavor to remedy any violation or potential violation of any such law, ordinance, rule, regulation or order which comes to its attention and shall promptly report any violation or potential violation and proposed action to be taken to Owner. 7.6 Expenses Regarding Violations. Expenses incurred in remedying violations of the kind referred to in Article 7.5 may be paid from the Operating Fund provided such expenses do not exceed One Thousand and no /100 Dollars ($1000.00) in any one instance. When more than such amount is required or if the violation is one for which the Owner might be subject to penalty, County shall transmit notice of such violation to the Owner to assure that prompt arrangements may be made to remedy the violation. 7.7 Emergency. In case of emergency, County may make expenditures for repairs which exceed budget or prior approvals from Owner without prior written approval if it is necessary to prevent damage or injury. Owner must be informed of any such expenditures within the next five (5) business days. 7.8 Structural Changes. The Owner expressly withholds from the County any power or authority to make any structural changes in any building or to make any other major alterations or additions in or to any such building or equipment therein, or to incur any expense chargeable to the Owner other than expenses related to exercising the express powers above vested in the County without the prior written direction of the Owner. 7.9 Competent Employees. County is specifically authorized and directed by Owner to employ and supervise competent employees to adequately and reasonably maintain and protect the Premises. The personnel to be employed, the number of personnel and their compensation shall be subject to the approval of the Owner as part of the approved Operating Budget. All expenses incurred by County in employing such staff shall be paid by Owner as provided in Article 11.3 (c) . G :\Paralegal \Contracts\Riverview County Management.wpd ARTICLE 8 INSURANCE 8.1 Owner to Obtain Adequate Insurance. County will obtain on Owner's behalf, insurance in Owner's name and at Owner's expense, insuring against physical damage, liability for loss against business interruption, and damage or injury to property or persons of third persons which may arise out of the occupancy, management, operation or maintenance of the Premises. Coverage terms and amJiznts must be approved by Owner. Additionally, Coun.,,r shall: (a) notify Owner with twenty -four (24) hours after County receives notice of any such loss, damage or injury; (b) take no action (such as admission of liability) which might bar Owner from obtaining any protection afforded by any policy Owner may hold or which might prejudice Owner in its defense to a claim based on such loss, damage or injury; and (c) agree that Owner shall have the exclusive right, at its option to conduct the defense to any claim, demand or suit within limits prescribed by the policy or policies of insurance. 8.2 Information Furnished. The County shall furnish whatever information is requested by Owner for the purpose of establishing the placement of insurance coverages and shall aid and cooperate in every reasonable way with respect to such insurance and any loss thereunder. Owner shall include in its hazard policy covering the Premises, personal property, fixtures and equipment located thereon. County shall make recommendations regarding the amounts and types of insurance to be carried by the Owner but the Owner shall make the final determination of the amounts of insurance, the types of coverage, the insuring companies and the agencies writing such insurance. 8.4 Subcontractor's Insurance. County shall require that subcontractors brought onto the Premises have insurance coverage at the subcontractor's expense, in the minimum coverages and coverage limits set forth in paragraph 8.2 hereof. The County shall obtain and keep on file a Certificate of Insurance which shows that the subcontractor is so insured. ARTICLE 9 OWNER'S RIGHT TO AUDIT 9.1 Owner's Right to Audit. Owner reserves the right for Owner's employees or others appointed by Owner, to conduct examinations, without notification, of the books and records maintained for Owner by County no matter where books and records are located. Owner also reserves the right to perform any and all additional audit tests relating to County's activities; either at the Premises, or at any office of the County, provided such audit tests are related to those activities performed by County for Owner. 9.2 Government Right to Audit. County is subject to audit by HUD and the state of Colorado pursuant to the Housing Assistance Payments contract and the CDBG contract, and County will cooperate in any such audit. 9.3 Correction of Discrepancies. Should Owner's employees or appointees, or HUD or the State of Colorado Department of Local Affairs, discover either G :\Paralegal \Contracts\Riverview County Management.wpd C G weakness in internal control or errors in record keeping, County shall correct such discrepancies either upon discovery or within a reasonable period of time. County shall inform Owner in writing of the action taken to correct such audit discrepancies. Any and all such audits conducted either by Owner's employees or appointees will be at the sole expense of Owner. ARTICLE 10 BANK ACCOUNTS 10.1 Operating Account; Trust: Revenue Fund and Trust Operating Fund. The County shall deposit daily all rents and other funds collected from the operation of the Premises, or from the Trustee, for the purpose of paying operating expenses, including any and all advance funds, in a bank approved by Owner. All revenues for the Premises promptly shall be transmitted to the Trustee for the Revenue Fund in the name of Eagle Riverview Affordable Housing Corporation. Deposits from the Trust Revenue Fund to the Trust Operating Fund shall be made as provided in the Indenture. From the Trust Operating Fund, County shall pay the operating expenses of the Premises and any other payments relative to the Premises as required by the terms of this Agreement and shall main. 10.2 Security Deposits. County shall keep and maintain security deposits in a separate account pursuant to Article 6.19 herein. 10.3 Change of Banks. Owner may direct the County to change a depository bank or the depository arrangements for its respective Premises. 10.4 Access to Accounts. Owner shall be permitted access through additional signature cards if requested. ARTICLE 11 PAYMENT OF EXPENSES 11.1 Expenses Paid From Operating Fund. The following costs are to be paid directly from the Operating Fund under the Indenture. (a) Any and all costs necessary to the management, operation, leasing and maintenance of the Premises which are covered within the approved budgetary guidelines as outlined in Articles 6 and 7. (b) Any other costs approved in writing by Owner to County. 11.2 Expenses Paid By County Through Its Own Account. The following costs are to be paid by County from its own account. (a) Costs of the gross salary and compensation for the operations accounting personnel who are associated directly or indirectly with the management of the Premises. Said costs shall include gross salaries and bonuses, payroll taxes, insurance, workmen's compensation and other employee benefits. (b) The costs of salary and compensation for training personnel. (c) All operations accounting expenses incurred by County in the execution of County's responsibilities pursuant to the terms of this G:\Paralegal \Contracts\Riverview County Management.wpd Agreement, the initial set -up and continuing costs of the electronic data processing, and the computer service costs of the monthly operating report, including both the summary and detailed account, with the exception of the following, which shall be paid by the Owner: (1) Cost of all non - standard printed forms, notices, checks, invoices, purchase orders, reports; envelopes, etc. required for compliance with the terms and conditions of this Agreement, or as may be requested by Owner; (2) The cost of all audits required by the terms of this Agreement. (d) All costs related to management office expenses, except for the following items which shall be paid by the Owner: (1) All printed and non - standard office supplies; (2) All long distance telephone costs related to operation and maintenance of the Premises; (3) A personal computer shall be purchased to be used by the on- site property management; and (4) A current apartment management software package. 11.3 Expenses Paid By Owner. The following costs are to be paid by Owner from the Operating Fund upon submittal to Owner by County of a regular billing accompanied by documentation which reasonably supports said billing: (a) The cost of all reasonable travel and entertainment expenses incurred by County and approved by Owner, either through budgetary approval or by specific written approval of Owner, including local automobile mileage except for costs associated with travel to the property by County; (b) All costs specifically excluded in Article 11.2(c) and (d); (c) Except for the employees referred to in Article 11.2(a) and (b), the Owner shall pay for or reimburse County for the allocable salary, including payroll taxes, workmen's compensation, fidelity bonds, and all employee benefits, of the following on -site personnel and any additional personnel approved or requested by Owner: Resident Manager and Maintenance personnel as required on the Premises; (d) Management fee pursuant to Article 19; and (e) All capital expenditures referred to in Article 6 and 7 and all remodeling and alteration expenditures authorized by Owner. 11.4 Office of County. The County reserves and is granted the right to maintain an office in the complex of a size reasonably related to the operation of the Premises. The County shall not be required to pay for heat, light, or rent for the premises occupied as its office. ARTICLE 12 G :\Paralegal \Contracts\Riverview County Management.wpd INSUFFICIENT INCOME 12.1 If ate, any time the gross income (or cash in the Operatin:? Fund) from the Premises shall not be sufficient to pay the bills and charges which may by incurred with respect to the Premises, the County shall notify Owner immediately upon first projection or awareness of a cash shortage or pending cash shortage and Owner and County shall jointly determine payment priority. County shall not be obligated to pay said expenses and charges from its own account. After County has paid, to the extent of available fu-,,Ids, all bills and charge, ='based upon the ordered priorities set jointly by Owner and County, County shG=: submit to Owner a statement of all remaining unpaid bills. Owner shall immediately and without delay make all reasonable efforts to provide sufficient monies to pay any unpaid expenses before they become delinquent. ARTICLE 13 13.1 Termination for Cause. Owner may terminate this contract upon fifteen (15) days written notice with cause. Cause shall be defined as the occurrence of any of the following events: (a) (i) the filing of a voluntary petition in bankruptcy; (ii) being adjudicated a bankrupt or insolvent; (iii) filing of any merger petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state; (iv) County seeking, consenting to, or acquiescing in the appointment of any trustee, receiver, conservator or liquidator'of County, or of all or any substantial part of its properties (the terms "acquiescing," as used herein, shall be deemed to include but not be limited to the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law); (v) a court of competent jurisdiction entering an order, judgment or decree approving a petition filed against County seeking any reorganization arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief of debtors, whether federal or state, and County either consents to or acquiesces (as hereinabove defined) in the entry of such order, judgment or decree, or such order, judgement or decree shall remain unvacated or unstayed for an aggregate of sixty (60) days from the date of entry thereof; or (vi) the appointment of a trustee, receiver, conservator or liquidator of County of all or any substantial part of its properties without the consent of or acquiescence of County which remains unvacated or unstayed for an aggregate of sixty (60) days; (b) (i) County fails to perform any of its services in the manner or within the time required herein; or, (ii) County commits or permits a breach of or default in any of its duties, liabilities or obligations hereunder; or (c) County's termination pursuant to implementation of the recommendations of the management consultant in accordance with G :\Paralegal \Contracts\Riverview County Management.wpd Section 5.16 or any other provision of the Indenture. (d) HUD's termination of this Agreement for those reasons stated in Article 5 herein. 13.2 Termination for Bond Defeasance. The Agreement may be terminated by the Corporation upon ninety (90) days written notice if the Eagle County exercises its option to defease the bonds in accordance with Section 14.02 of the Indenture. 13.3 County's Right ?_o Compensation: Final Accounting. If this Agreeme °i., is terminated by any party as provided above, it is further agreed: (a) Notwithstanding any other provision herein to the contrary, the County's right to compensation shall cease as of the effective date set forth in the notice of termination, except that County shall be entitled to all monies owed to County by Owner up to the effective date of termination. (b) That County's powers and authority under this Agreement shall cease and terminate at the effective date set in the notice of termination and County shall in no event make any expenditure in excess of that shown on the Approved Operating or Capital Budget unless authorized in writing by the Owner to be charged. (c) Final Accounting. County shall deliver to Owner the following with respect to the Premises: (1) A final accounting after termination of this Agreement, reflecting the balance of income and expenses on the Premises as of the effective date of termination to be delivered within fifteen (15) days after such termination. (2) Any balance or monies of Owner held by County with respect to the Premises, shall be delivered immediately after such effective termination date and thereafter promptly after same are received by County. (3) All records, software, contracts, leases, receipts for deposits, unpaid bills and other papers or documents which pertain to the Premises also shall be delivered immediately upon such effective termination date. ARTICLE 14 COOPERATION Should any claims, demands, suits or other legal proceedings be made or instituted by any person against Owner which arise out of any of the matters relating to the Agreement, the County shall give Owner all pertinent information and reasonable assistance in the defense or other disposition thereof, at the sole expense of Owner. This obligation of County shall survive the termination or expiration of this Agreement. Upon termination of this Agreement, County will give to Owner all books, cards, registers, receipts, documents, tapes, disks and other information with respect to the Project and the management thereof which County has in its G:\Paralegal \Contracts\Riverview County Management.wpd Cl c possession and shall cooperate, as recruested by Owner, in the transition to a new Manager of the Project. ARTICLE 15 COUNTY'S LIABILITY 15.1 Except as otherwise stated herein, County shall not in the performance of this Agreement, be liable to Owner or to any other person for any act or omission of any agent or employee of ( -,mer or County, or its subsidiaries or affiliates, unless the same results from negligence or willful misconduct of the County, its officers, employees or agents. 15.2 Notwithstanding any other provisions of this Agreement, in no event shall Owner make any claim against County, or its affiliates or subsidiaries on account of any alleged errors of judgment made in good faith in connection with the operation of the Premises hereunder by County or the performance of any advisory or technical services provided by or arranged by the County. 15.3 Owner shall not object to any expenditures made by County in good faith in the course of its management of the Premises or in settlement of any claim arising out of the operation of the Premises unless such expenditure is specifically prohibited by this Agreement. ARTICLE 16 REPRESENTATION 16.1 Owner hereby represents that in entering into this Agreement, Owner understands that no guaranty is made or implied by County, or any of its affiliated companies as to the future financial success of the Premises. ARTICLE 17 REASONABLE CONSENT 17.1 Whenever in this Agreement the consent or approval of County or Owner is required, such consent or approval shall not be unreasonably withheld. ARTICLE 18 NOTICES 18.1 All notices, demands, consents and reports provided for in this Agreement shall be in writing and shall be given to the appropriate Owner or County at the address .set forth below or at such other address as they may specify hereafter in writing: COUNTY: The Eagle County Attorney's Office P.O. Box 850 Eagle, Colorado 81631 -0850 OWNER: Eagle Riverview Affordable Housing Corporation P.O. Box 1171 G:\Paralegal \Contracts\Riverview County Management.wpd Eagle, CO 81631 Such notice or other communication may be mailed b; United States mail, postage prepaid, and may be deposited in a United States Post Office or a depository for the receipt of mail regularly maintained by the post office. Such notices, demands, consents and reports may also be delivered by hand, or by any other method or means permitted by law. Notice delivered by mail shall be deemed given the third business day after deposit in the United States mail; notice delivered by facsimile shall be accompanied by mailing a copy within one day after transmission and shall then b, deemed given the first business day after confirmed delivery. ARTICLE 19 COMPENSATION 19.1 By the 25t' day of each month, the County shall receive remuneration for its services in managing the Premises for such month as follows: (1) A Fixed Fee in the amount of $2,000.00 per month (prorated for the first month); and (2) A Variable Fee in the amount of four percent (4 %) of the gross collected income from the Premises per month in excess of $50,000; however, in no event shall the amount of the Variable Fee exceed the amount of the Fixed Fee; and in no event shall the sum of fees in (1) and this (2) exceed four percent (4 %) of the gross monthly collected income. Gross receipts for these purposes are all amounts received from the operation of the Premises including, but not limited to, rents, parking fees, security deposit forfeitures (but not security deposits), laundry income, and fees. To the extent that rental income from the income from the property in any month is not sufficient to pay the property management fee due under this Agreement, such fee shall accrue without interest until rental income is available, at which time accrued portions of the fee shall be then due and payable. ARTICLE 20 MISCELLANEOUS 20.1 Construction. The plural may include the singular and the singular may include the plural and this Agreement shall be interpreted in this regard as the context may require. 20.2 Amendment. Except as otherwise herein provided, any and all amendments, additions or deletions to this Agreement shall be null and void unless approved by the parties affected thereby in writing. 20.3 Headings. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement. 20.4 Complete Agreement. This Agreement supersedes and takes the place of G:\Paralegal \Contracts\Riverview County Management.wpd any and all previous negotiations, representations, and oral agreements between she parties hereto. 20.5 Waiver. The waiver of any of the terms and conditions of this Agreement on any occasion or occasions shall not be deemed as waiver of such terms and conditions on any future occasion. 20.6 Binding Nature. This Agreement shall be binding upon and inure to the benefit of Owner, each of his successors and /or permitted assigns, and shall be bind�rq upon and inure to the benefit of County, and its permitted assigns. 20.7 Stece Law. This Agreement shall be construed, interpr =:ted and applied in accordance with and shall be governed by, the laws applicable in the State of Colorado. 20.8 Rebates. County agrees it will not collect or charge any undisclosed fee, rebate or discount, and if any such should be received by County, these will be credited to the account of the Owner. 20.9 Divisibility. In the event any Article or Section of this Agreement is deemed illegal or unlawful, said Article or Section shall be struck from this Agreement and all other Articles and Sections shall remain valid and in full effect. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year above written. Witness: ) By ATTEST: By: Clerk to County C x G :\Paralegal \Contracts\Riverview County Management.wpd EAGLE RIVERVIEW AFFORDABLE HOUSING CORPORATION N&VI MANAGER: BOARD OF COUNTY COMMISSIONERS FOR EAGLE COUNTY