HomeMy WebLinkAboutECHDA14-008 Riverview Apartments Preservation LP Third Amendment THIRD AMENDMENT TO AGREEMENT BETWEEN
RIVERVIEW APARTMENTS PRESERVATION LP
AND
EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY
THIS THIRD AMENDMENT ("Third Amendment") is effective as of the 1st day of February,
2014 by and between Eagle County Housing and Development Authority, by and through its
Board of Commissioners (hereinafter"Manager") and Riverview Apartments Preservation, LP, a
Colorado limited partnership (hereinafter"RAP").
RECITALS
WHEREAS, RAP and Manager entered into an agreement dated thel st day of May, 2010, for
certain Services (the "Original Agreement"); and
WHEREAS, RAP and Manager entered into a First Amendment to the Original Agreement dated
the 28 day of September, 2011, (the "First Amendment"); and
WHEREAS, RAP and Manager entered into a Second Amendment to the Original Agreement
dated the 4th day of February, 2013, (the "Second Amendment"); and
WHEREAS, RAP desires to amend the term of the Original Agreement and Manager is willing
to agree to such amendment and perform under the terms and conditions of the Original
Agreement, the First Amendment, the Second Amendment and this Third Amendment.
THIRD AMENDMENT
NOW THEREFORE, in consideration of the foregoing and the mutual rights and obligations as
set forth below, the parties agree as follows:
1. The Original Agreement shall be amended to extend the term to the 30th day of June,
2015. Notwithstanding the possible expiration or lapse in the term of the Original
Agreement, First Amendment or Second Amendment, the parties desire to maintain
the Original Agreement and any amendments thereto and consider the same to be in
full force and effect subject to the terms of this Third Amendment.
2. Capitalized terms in this Third Amendment will have the same meaning as in the
Original Agreement. To the extent that the terms and provisions of the Third
Amendment conflict with, modify or supplement portions of the Original Agreement,
First Amendment or Second Amendment, the terms and provisions contained in this
Third Amendment shall govern and control the rights and obligations of the parties.
3. Except as expressly altered,modified and changed in this Third Amendment, all
terms and provisions of the Original Agreement, First Amendment and Second
Amendment shall remain in full force and effect, and are hereby ratified and
confirmed in all respects as of the date hereof.
4. This Third Amendment shall be binding on the parties hereto, their heirs, executors,
successors, and assigns.
2
RAP Am Term Final 5/14
•
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to the
Original Agreement effective the day and year first above written.
RIVERVIEW APARTMENTS PRESERVATION
LP
BY AND THROUGH RIVERVIEW
APARTMENTS PRESERVATION LLC, ITS
GENERAL PARTNER
BY AND THROUGH EAGLE COUNTY
HOUSING AND DEVELOPMENT AUTHORITY,
ITS SOLE MEMBER
By:
Jillian H. Ryan, Chairman
Attest:
By:
Teak J. Simonton, Clerk
MANGER:
EAGLE COUNTY HOUSING AND
DEVELOPMENT AUTHORITY
By:
Jill Klo terman, Executive Director
3
RAP Am Tenn Final 5/14
Project Owner's/Management Agents Certification U.S.Department of Housing OMB Approval No.2502-0305
for Multifamily Housing Projects and Urban Development (exp. 11/30/2016)
Identity-of-Interest Office of Housing
for Identit
Y Federal Housing Commissioner
or Independent Management Agents
Public reporting burden for this collection of information is estimated to average 15 minutes per response, including the time for reviewing instructions,
searching existing data sources,gathering and maintaining the data needed,and completing and reviewing the collection of information. This agency may
not conduct or sponsor, and a person is not required to respond to, a collection information unless that collecton displays a v alid OMB control number.
Owners of insured and assisted multifamily housing projects are required by HUD administrative guidelines as found in HUD Handbook 4381.5 REV-2,The
Management Agent Handbook,to submit certain data for review by the local HUD office of approval of a new management agent. These requirements
apply to insured multifamily projects or HUD-held mortgages and subsidized,non-insured projects that are not financed by State Agencies or the Rural
Housing Service Agency.
Project name FHA project number Date(mm/dd/yyyy)
Riverview Apartments
10135641 06/24/2014
City,State Section 8 number
Avon, CO
C099-0038-002
Acting on behalf of Riverview Apts Preservation LP , b. Comply with HUD handbooks,notices or other policy directives that
the Project Owner(Owner),and Eagle Cty Hsg & Dev Auth , relate to the management of the project.
the Management Agent(Agent),we make the following certifications and c. Comply with HUD requirements regarding payment and reasonableness
agreements to the United States Department of Housing and Urban Development of management fees and allocation of management costs between the man-
(HUD)regarding management of the above project. agement fee and the project account.
1. We certify that d. Refrain from purchasing goods or services from entities that have iden-
a. We will comply with HUD requirements and contract obligations,and tity-of-interest with us unless the costs are as low as or lower than arms-
agree that no payments have been made to the owner in return for awarding length, open-market purchases.
the management contract to the agent,and that such payments will not be 4. The Agent agrees to:
made in the future. a. Ensure that all expenses of the project are reasonable and necessary.
b. We have executed or will execute,within 30 days after receiving the b. Exert reasonable effort to maximize project income and to take advantage
approval(s)required by paragraph b below,a Management Agreement for of discounts,rebates and similar money-saving techniques.
this project The Agreement provides/will provide that the Management c. Obtain contracts,materials,supplies and services,including the prepara-
Agent will manage the project for the term and fee described below.Changes tion of the annual audit,on terms most advantageous to the project.
in the fee will be implemented only in accordance with HUD's requirements
(1)Terms of Agreement: d. Credit the project with all discounts,rebates or commissions(including any
sales or property tax relief granted by the State or local government)received.
(a)From: 2/1/2014 — e. Obtain the necessary verbal or written cost estimates and document the
(b)To: b/i1J/LUIS reasons for accepting other than the lowest bid.
(c)Self Renew: Yes No .✓ f. Maintain copies of such documentation and make such documentation
(2)Fees: available for your inspection during normal business hours.
(a) 3.45%of residential income collected; g. Invest project funds that HUD policies require to be invested and take
(b) 0.00 %of commercial income collected; reasonable effort to invest other project funds unless the owner specifically
(c) 3.45%of miscellaneous income collected directs the Agent not to invest those other funds.
(This percentage must not exceed the percentage in(2)(a)above). 5. We certify that the types of insurance policies checked below are in force and
will be maintained to the best of our ability at all times. Fidelity bonds and hazard
(d)Special Fees No ?✓-1 Yes 7 If yes,describe in paragraph 4 insurance policies will name HUD as an additional payee in the event of loss.
of Attachment 1. Note:For any box not checked,attach an explanation as to why you cannot obtain
(3)Calculation of Estimated Yield(See Attachment 1.) that type of insurance. Such situations should be extremely rare.
c. We will disburse management fees from project income only after: a. ti Fidelity bond or employee dishonesty coverage for
(1)We have submitted this Certification to HUD; (1)all principals of the Agent and;
(2)HUD has approved the Agent to manage this project; and (2)all persons who participate directly or indirectly in the management
(3)HUD has approved the management fee(if required). and maintenance of the project and its assets,accounts and records.
d. We understand that no fees may be earned or paid after HUD has Coverage will be at least equal to the project's gross potential income for
terminated the Management Agreement. two(2)months.
e. If HUD notifies me of an excessive management fee,1,the Agent,will b. ./ Hazard insurance coverage in an amount required by the project's
within 30 days of HUD's notice either: Mortgage.
(1)Reduce the compensation to an amount HUD determines to be reason- c. ,/ Public liability coverage with the Agent designated as one of the
able and insured.
(2)Require the administrator to refund to the project all excessive fees 6.The Agent agrees to:
collected,or a. Furnish a response to HUD's management review reports,physical
(3)Appeal HUD's decision and abide by the results of the appeal pro- inspection reports and written inquiries regarding the project's annual
cess,making any required reductions and refunds within 30 days after the financial statements or monthly accounting reports within 30 days after
date of this decision letter on the appeal. receipt of the report or inquiy.
f. If HUD holds the residential management fee yield harmless under the b.Establish and maintain the project's accounts,books and records in
transition provisions of Chapter 3,Section 4 of HUD Handbook 4381.5, accordance with:
(1)We understand that HUD will adjust the management fee percentage (1)HUD's administrative requirements;
each time HUD approves a rent increase. (2)generally accepted accounting principles;and
(2)We agree to be bound by that percentage until the next rent increase (3)in a condition that will facilitate audit.
or until HUD approves a different fee,pursuant to our request. .7. We agree that
2. We will,if the project is subsidized by HUD,select and admit tenants, a. All records related to the operation of the project,regardless of where they
compute tenant rents and assistance payments,recertify tenants and carry out are housed,shall be considered the property of the project.
other subsidy contract administration responsibilities in accordance with HUD
Handbook 4350.3 and other HUD instructions. b. HUD,the General Accounting Office(GAO),and those agencies'repre-
3. We agree to: sentatives may inspect:
a. Comply with this project's Regulatory Agreement,Mortgage&Mortgage
Note,and any Subsidy Contract or Workout/Modification Agreement.
Previous editions are obsolete Page 1 of 4 form HUD-9839-B (06/2003)
ref.Handbook 4381.5&4571.4
1
(1)any records which relate to the project's purchase of goods or services, and its implementing regulations.I,the Agent,understand that this law and
(2)the records of t e Owner and the Agent,and the regulations require the project to make training,employment and con-
(3)the records of mpanies having an identity-of-interest with the tracting opportunities available,to the greatest extent feasible,to lower-
income and the age t. income project area residents and small businesses.
c. The following cla e will be included in any contract entered into with an 12.We certify that we have read and understand HUD's definition of"identity-
identity-of-interest in ividual or business for the provision of goods or of-interest"and that the statement(s)checked and information entered below are
services to the project "Upon request of HUD or(name of owner or Agent), true.(Check box a or boxes b and/or c.)
(name of contractor o supplier)will make available to HUD,at a reasonable a. P1 No identity-of-interest exists among the Owner,the Agent and any
time and place,its rec rds and records of identity-of-interest companies indivi uals or companies that regularly do business with the project.
which relate to goods nd services charged to the project. Records and b. t/I Only individuals and companies listed in Section 1 l a of the
information will be su ficient to permit HUD to determine the services Management Entity Profile have an identity-of-interest with the Agent.
performed,the dates the services were performed,the location at which the c. Only the individuals and companies listed below have an identity-of-
services were performed,the time consumed in providing the services,the interest with the Owner.(Show the name of the individual or company;list
charges made for mat ials,and the per-unit and total charges levied for said the services rendered;and describe the nature of the identity-of-interest
services."The owner grees to request such records within seven(7)days of relationship.Attach additional sheets,if necessary.)
receipt of HUD's requ st to do so.
8. We certify that any anagement Agreement does not contain the type of
"hold harmless"clause pr hibited by HUD.
9. We agree to include t following provisions in the Management Agreement 13.I/We,the Agent,certify&agree:
and to be bound by them:I a. that the Management Entity Profile,dated(mm/dd/yyyy) 06/24/2014,
a. HUD has the right ko terminate the Management Agreement for failure is accurate and current as of the date of this Certification.
to comply with the provisions of this Certification,or other good cause,thirty b. To submit an updated profile whenever there is a significant change in the
days after HUD has mailed the owner a written notice of its desire to organization or operations of the Management Entity.
terminate the Management Agreement. 14.The items identified in HUD Handbook 4381.5 Rev-2 The Management
b. In the event of a default under the Mortgage,Note or Regulatory Agree- Agent Handbook at Sec.2.9"Owner/Management Entity Approval
ment,HUD has the right to terminate the Management Agreement immedi-
ately upon HUD's issr,ance of a notice of termination to the Owner and Submission Requirements"are attached.
Agent.
c. If HUD exercises t is right of termination,I,the Owner,agree to promptly Warnings:
make arrangements fo providing management that is satisfactory to HUD. There are fines and imprisonment—$10,000/5years—for anyone who makes
d. If there is a confli between the Management Agreement&HUD's rights false,fictitious,or fraudulent statements or entries in any matter within the
and requirements,HU 's rights&requirements will prevail. jurisdiction of the Federal Government(18 U.S.0 1001).
e. If the Management Agreement is terminated I,the Agent,will give to the There are fines and imprisonment—$250,000/5years—for anyone who misuses
Owner all of the proje is cash,trust accounts investments and records within rents&proceeds in violation of HUD regulations relative to this project.This
thirty(30)days of th date the Management Agreement is terminated. applies when the mortgage note is in default or when the project is in a
10.I,the Owner,agree to[submit a new Management Certification to HUD before nonsurplus cash position(12 U.S.0 1715z-9).
taking any of the following actions: HUD may seek a"double damages"civil remedy for the use of assets or income
a Authorizing the age t to collect a fee different from the percentages fees in violation of any Regulatory Agreement or any applicable HUD regulations(12
and any special fees specified in Paragraph 1 of this Certification: U.S.0 1715z-4a).
b.Changing the expiation date of the Management Agreement. HUD may seek additional civil money penalties to be paid by the mortgagor
through personal funds for:
c.Renewing the Management Agreement. (1)Violation of an agreement with HUD to use nonproject funds for certain
d.Permitting a new Agent to operate the project. specified purposes as a condition of receiving transfers of physical assets,
e.Permitting a new Agent to collect a fee. flexible subsidy loan,capital improvement loan,modification of mortgage terms
f. Undertaking self-management of the project. or workout.The penalties could be as much as the HUD Secretary's loss at
11.We agree to: foreclosure sale or sale after foreclosure.
a. Comply with all F deral,State,or local laws prohibiting discrimination (2)Certain specific violations of the Regulatory Agreement,the penalties could
against any persons or grounds of race,color,creed,familial status,handi- be as much as$25,000 per occurrence(12 U.S.0 1735f-15).
cap,sex or national or gin,including Title VI of the Civil Rights Act of 1964,
Fair Housing Act,,E cutive Order 11063 and all regulations implementing
those laws.
b. When the head or spouse is otherwise eligible,give families with children
By Project Owner:Name
equal consideration fot admission. y Riverview Apts Preservation LP
c. Give handicapped persons priority for subsidized units that were built Jillian H. Ryan, Chairman, •ard of Commissioners
and equipped specifically for the handicapped. title / /
d. If the project recei es any form of direct Federal financial assistance, A AY
comply with the provi ions of Section 504 of the Rehabilitation Act of 1973, �� �-
as amended,the Age incrimination Act of 1975 and all regulations and signat �
administrative instruc ions implementing these laws.The Agent understands 06/" /2014
that these laws and regulations prohibit discrimination against applicants or date(mm/dd/yyyy)
tenants who are handi apped or of a certain age.
e. Furnish HUD's Office of Fair Housing and Equal Opportunity any reports
and information requitted to monitor the project's compliance with HUD's By Management Agent:Name Eagle Cty Hsg & Dev Author
fair housing and affirmative marketing requirements(including HUD Form Jill Klosterman, Executive Director
949,if applicable).
f. Not discriminate a ainst any employee,applicant for employment or title
contractor because of ace,color,handicap,religion,sex or national origin. 11111114
g. Provide minorities women and socially and economically disadvantaged signature
firms equal opportune to participate in the project's procurement and 06/24/2014
contracting activities.
h. If the project recei'es any form of direct Federal financial assistance, date(mm/dd/yyyy)
comply with Section 31 of the Housing and Urban Development Act of 1968
form HUD-9839-B (06/2003)
Previous editions are obsolete Page 2 of 4 ref.Handbook 4381.5&4571.4
I
Project Name FHA Project Number Date(mm/dd/yyyy)
Riverview Apartments 10135641 06/24/2014
HUD Field Office Use Only(Check all boxes that apply)
An up-front review of the management fee was: Required Not required
The management fees quoted in paragraph la and explained in Attachment 1 of this Certification are approved.
The management fees quoted in Paragraph la and explained in Attachment 1 of this Certification are not approved.
The attached letter,dated(mm/dd/yyyy) ,explains the reasons for this disapproval and sets forth the allowable m anagement fees.
The residential management fee Percentage is held harmless at %.
The residential management fee Yield is capped at$ PUPM.Each time you approve a rent increase,adjust the management fee
Percentage to maintain this yield and enter the information required below.
Effective Date(mm/dd/yyyy) Adjusted Management
of New Fee%* Monthly Rent Potential Collections%Assumed" Fee Percentage
This should be the same date the rent increase is effective.
**95%unless you approve a different percentage.
By Project Manager By Supervisory Project Manager/Hub Director
Signature Date(mm/dd/yyyy) Signature Date(mm/dd/yyyy)
Name Name
Title Title
form HUD-9839-B (06/2003)
Previous editions are obsolete Page 3 of 4 ref.Handbook 4381.5&4571.4
I
Attachment 1—Calcultion of Estimated Yields from Proposed Management Fees
i
Project Name: FHA Project No.: Date:
RivervLew Apartments 10135641 06/24/2014
1. Residential Fee 2. Commercial Fee(Describe commercial space,how it is used and what
services management provides.)
a. Monthly residential nt potential(from Part A
of the most recent l UD-approved Rent Schedule $ 103,708.00
I
b. Line la times 0.95* $ 98,522.60
i
c. Percentage fee 3.45 %
l
d. Monthly residential fe yield(Line lb times 1c) $ 3,399.03
e. Total number of residential units(include
rent-free units.) 72 units
f. Residential fee yiedc per unit per month
(Line ld divided by 1e.) $ 47.21 PUPM
}
* Note:Generally colt ctions must be estimated at 95%of gross potential. a. Monthly commercial rent potential(from Part E
If you use a lower p rcentage,attach an explanation for the collections of the most recent HUD approved Rent
HUD-approved Ren percentage used.Make sure that any assumption Schedule) $
of a lower collection base does not compensate the agent for services
for which a special f e will be paid. b. Percentage fee %
c. Commercial fee yield(Line 2a times 2b) $
3. Miscellaneous Fee
a. Percentage fee(not to exceed the residential income fee percentage in Line 1c) %
b. List any miscellanedus income on which HUD allows a fee to be taken,but on which you have agreed a fee will not be paid.
c. List any miscellaneous income on which HUD allows a fee to be taken and on which AFEE will be paid.
Laundry and Vending Income, Late Fee Income, Damage Fees
}
4. Special Fees
Show dollar amount(s),purpose(s)and time period(s)covered.Describe performance standards and target dates for accomplishmetrnf special tasks.(Attach
additional sheets,if needed.)
I
i
form HUD-9839-B (06/2003)
Previous editions are obsolete Page 4 of 4 ref.Handbook 4381.5&4571.4
