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HomeMy WebLinkAboutC05-177 ASW Properties Colorado C_o5"'-/77 fD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT FOR THE RESALE OF HOMES AT MILLER RANCH THIS AMENDMENT is made and entered into thisei: day of May, 2005, between the County of Eagle, State of Colorado ("County"), and ASW Properties Colorado, LLC ("Consultant"). :'ounty and ASW Realty Partners entered into an Agreement feX Professional Services for the Resale of Homes at Miller Ranch dated April 26, 2005 ("Original Agreement") see Exhibit "A" attached hereto and incorporated herein by this reference. ASW Realty Partners wishes to amend its entity name in the original agreement to ASW Properties Colorado, LLC. In consideration of the terms and conditions of the Original Agreement, the sufficiency of which is hereby acknowledged, County and Consultant agree that this Amendment shall replace and supersede that portion of the Original Agreement as stated hereunder. Any reference to ASW Realty Partners shall be deleted in its entirety and replaced with ASW Properties Colorado, LLC. County and Consultant agree that, except as expressly altered, modified and changed in this Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect, and hereby are ratified and confirmed in all respects as of the date hereof. If any conflict exists between the provisions of this Amendment and the Original Agreement, the provisions ofthis Amendment shall control. This Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. IN WITNESS WHEREOF, the parties have executed this Amendment on the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, by and oug. its BOARD OF COUNTY COM ERS Board of County Commissioners 1 CONSULTANT: By: 2 ep6-/1>q; 10 PROFESSIONAL SERVICES AGREEMENT FOR THE RESALE OF HOMES AT MILLER RANCH This Professional Service Agreement for Jhe Resale of Homes at Miller Ranch ("Agreement") dated as this :J.f,P day of ~(I.L , 2005, is between the County of Eagle, State of Colorado, a body corporat and politIC, by and through Its Board of County Commissioners ("County"), and ASW Realty Partners, a licensed real estate brokerage firm authorized to conduct business in Colorado ("Consultant") WHEREAS, County wishes to designate its staff duties associated with the resale of units at the Miller Ranch Housing complex as set forth in the current Miller Ranch Housing Guidelines ("Guidelines") and Deed Restriction Agreement for the Occupancy and Resale of Miller Ranch Housing ("Deed Restriction") and as more particularly outlined in Section 1 . 1 hereunder; WHEREAS, Consultant has represented that it has the licensure, experience and knowledge in the subject matter necessary to carry out those staff duties and services outlined in Section 1.1 hereunder; WHEREAS, County wishes to hire Consultant to perform the tasks associated with such services outline in Section 1.1 hereunder; WHEREAS, County and Consultant intend by this Agreement to set forth the scope of the responsibilities of the Consultant in connection with the services and related terms and conditions to govern the relationship between Consultant and County in connection with the services. Aqreement Therefore, based upon the representations by Consultant set forth in the foregoing recitals, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: 1. Services Provided: 1.1 The Consultant will provide the following real estate consulting services ("Services") to County: Perform all staff duties and functions necessary to coordinate and execute the resale of units at the Miller Ranch Housing complex according to and as more particularly set forth in the current Guidelines and Deed Restriction, copies of which are attached and incorporated herein. These functions shall include, but not be limited to, the following: a. Execute a listing agreement with a prospective seller in a form as set forth in the Guidelines and acceptable to County. b. Determine, after consultation with the County housing staff as necessary, the EXHIBIT ~ ~A" :is .D 19 the Maximum Sales Price, qualifications of proposed purchasers, and other applicable provisions concerning the sale. c. Advertise the unit for sale and show the unit to prospective purchasers as set forth in the then current Guidelines. d. Prioritize the bids received and conduct lotteries among qualified buyers as necessary according to the criteria of the then current Guidelines. e. Obtain a sale/purchase agreement with the successful, qualified purchaser in a form as set forth in the Guidelines and acceptable to County. f. Obtain executed documents acknowledging the purchaser's agreement to be bound by both the Deed Restriction and Guidelines. g. Perform other duties necessary, as a transaction-broker, to successfully close a unit in accordance with the resale procedures set forth in the Deed Restriction and Guidelines. h. Perform other duties as requested and agreed to by both parties. 1.2 The Consultant agrees that Consultant will not enter into any consulting arrangements with third parties that will conflict in any manner with the Services. 1.3 The Consultant will provide the Services hereunder in Eagle, Colorado or elsewhere as may be mutually agreed. 2. Term of Agreement: 2.1 This Agreement shall, subject to the provisions of Section 2.2 hereof, continue in full force and effect until December 31, 2005, commencing with the effective date of this Agreement. This Agreement may be extended beyond the time referred to in this Section 2.1 on terms and conditions as may be mutually agreed between the parties hereto. 2.2 This Agreement may be terminated by either party for any other reason at any time, with or without cause, and without penalty whatsoever therefore. 2.3 I n the event of any termination of this Agreement, Consultant shall be compensated as set forth in Section 4 herein. 3. Independent Contractor: 3.1 With respect to the provision of the Services hereunder, Consultant acknowledges that Consultant is an independent contractor providing services to County. Consultant shall perform the County staff duties as set forth in the resale procedures of the Guidelines as its designee. Notwithstanding such designation, nothing in this Agreement shall be deemed to make Consultant an agent, employee, partner or representative of County. Moreover, this Agreement creates no entitlement to participate in any of the Employee Benefit Plans of County including insurance, paid vacation and recognized holidays. 3.2 The Consultant shall not have the authori1y to, and will not, make any commitments or enter into any agreement with any party on behalf of County without the written consent of a senior management representative of County. 3.3 The Consultant will maintain the appropriate real estate licensure, liability insurance, unemployment insurance and workman's compensation insurance on its behalf, as necessary. 4. Remuneration: 4.1 For the Services provided hereunder, Consultant shall be entitled to the Sales Fee of two percent (2%) of the actual sales price as set forth in the most current Guidelines. Particularly, Consultant shall be paid a one-half percent (112%) fee by Seller at the time of listing, which shall be applied towards advertising and other necessary administrative costs. Upon closing, Consultant shall be paid an additional one and one-half percent (1 %%) from the funds held for the Seller. In the event Seller fails to perform under the listing contract, rejects all offers at maximum price in cash or cash-equivalent terms, or should withdraw the listing after advertising has commended, Consultant shall be entitled to retain the full one-half percent fee. In the event that the seller withdraws for failure of any bids to be received at maximum price or with acceptable terms, the advertising and necessary administrative costs incurred by Consultant shall be deducted from the one-half percent fee, with the balance returned to Owner. 4.2 No other fees or expenses are anticipated or will be paid for by County or Seller except those set forth in 4.1 above. All fees shall be paid by the Seller directly at the time of listing and closing and County shall not be responsible for Seller's failure to do so. 4.3 The remuneration provisions of 4.1 shall be clearly set forth in the sale/purchase agreement used by Consultant in the resale of units at the Miller Ranch Housing Complex. 4.4 If this Agreement is terminated by either party while a sale is pending, Consultant's remuneration shall be prorated in an amount mutually agreed to by the parties. 5. Indemnification: 5.1 Within the limits allowed by law, Consultant shall indemnify County for, and hold and defend the County and its officials, boards, officers, principals and employees, harmless from, all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the acts or omissions of, or representations by, the Consultant in the performance of this Agreement. This indemnification shall not apply to claims by third parties against the County to the extent that the County is liable to such third party for such claim without regard to the involvement of the Consultant. 6. Consultant's Professional Level of Care: 6.1 Consultant shall be responsible for the completeness and accuracy of the Services, including all supporting data and other documents prepared or compiled in performance of the Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved the Services shall not relieve Consultant of any of its responsibilities. Consultant shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to consultants, with respect to similar services, in this area at this time. 6.2 Consultant shall comply with all Colorado laws and regulations applicable to the Services, including but not limited to, the disclosure and other requirements of brokerage relationships as set forth in C.R.S. 912-61-801 et. seq. 7. Notices: 7.1 Any notice to be given by any party to the other shall be in writing and shall be deemed to have been duly given if delivered personally, by facsimile transmission or if sent by prepaid first class mail, and for the purposes aforesaid, the addresses of the parties are as follows: (a) Eagle County Housing Department 500 Broadway PO Box 179 Eagle, CO 81631 Tel: (970) 328-8770 Fax: (970) 328-8787 With a copy to: Eagle County Attorney's Office 500 Broadway PO Box 850 Eagle, CO 81631 Tel: (970) 328-8685 Fax: (970) 328-8699 (b) ASW Realty Partners 401 Paseo De Peralta Sante Fe, NM 87501 Tel: (505) 820-1818 Fax: (505) 820-1919 (c) Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. 8. Jurisdiction and Confidentiality: 8.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. 8.2 The Consultant and County acknowledge that, during the term of this Agreement and in the course of the Consultant rendering the Services, the Consultant may acquire knowledge of the business operations of County and other aspects of the business affairs of County that are not generally known and the Consultant shall not disclose, use, publish or otherwise reveal, either directly or through another, to any person, firm or corporation, any knowledge, information or facts concerning any of the past or then business operations, pricing or sales data of County and shall retain all knowledge and information which he has acquired as the result of this Agreement in trust in a fiduciary capacity for the sole benefit of County, its successors and assigns during the term of this Agreement, and for a period of five (5) years following termination of this Agreement. 9. Miscellaneous: 9.1 This Agreement constitutes the entire Agreement between the parties related to its subject matter. It supersedes all prior proposals, agreements and understandings. 9.2 This Agreement is personal to the Consultant and may not be assigned by Consultant. 9.3 This Agreement does not and shall not be deemed to confer upon or grant to any 1hd party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, by and through its ATTEST: BOARD OF COUNTY COMMISSIONERS . . (~:ii~\ ~ ~ ~....(.'.'; 'd'>;CYJJ. J,J r: . ,'" '" / . t By' . \ '"nt' , :;Ie . . Clerk to the Board of ":5;;'~~;;::p~,,1 Am M. Menconi, Chairman County Commissioners ","~ ASW Realty Partners /~'1 / , ;; By: f / fJ;~ U s, Director of Sales and .