HomeMy WebLinkAboutC21-296 ERWSD Property Mgmt AgreementDocuSign Envelope ID: A57B5D1E-172A-4F3C-9D15-D2CC903C5471
PROPERTY MANAGEMENT AGREEMENT
BETWEEN
EAGLE RIVER WATER AND SANITATION DISTRICT
AND
EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY
THIS AGREEMENT, entered into on this 8/31/2021 , by and between the EAGLE
RIVER WATER AND SANITATION DISTRICT (hereinafter called "Owner") and the EAGLE
COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a public body corporate and politic
(hereinafter called "Manager").
WHEREAS, Owner owns the property located at 32339 US Highway 6, Edwards, Colorado
consisting of 22 residential units and associated facilities, known as the Stillwater Planned Unit
Development and 8 residential units and associated facilities known as Cattail Flats (collectively the
"Premises"); and
WHEREAS, the Owner desires to have the Premises managed by competent professionals in the
field of housing, real estate, and property management; and
WHEREAS, Manager has the personnel and resources necessary to competently and
professionally manage the Premises and has familiarized itself with the Premises, including its physical
condition; and
WHEREAS, Owner wishes to obtain the benefits of Manager's expertise in the field of real estate
management by delegating to Manager control and discretion in the operation, direction, management
and supervision of the Premises subject to the terms and provisions of this Agreement, and Manager for a
fee agrees to assume said control and discretion in the operation, management and supervision of the
Premises on behalf of Owner.
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 Manager to manage, operate, direct and supervise the Premises on behalf of
Owner and to provide services as required under Article 6 of this Agreement.
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 September 1, 2021 and shall continue through August 31, 2022.
Thereafter, the Agreement will automatically renew annually on September 1 st for the term of one year,
subject, however, to the termination provisions in Article 13.
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ARTICLE 3
RELATIONSHIP
All actions by Manager 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 Manager, consistent with
Section 7.2, in providing management and operational services hereunder, such as, for example, but not
limited to, contracts for maintenance services and orders for supplies and equipment.
ARTICLE 4
DELEGATION AND ASSIGNABILITY
Manager shall have the right to delegate its responsibilities under this Agreement to employees of
Manager or to engage independent contractors for performance of any part of the services to be provided
hereunder. Neither the Owner, nor the Manager, shall assign all or any part of this Agreement without the
prior written consent of the other parties to this Agreement.
ARTICLE 5
SERVICES TO BE PERFORMED BY OWNER
Owner shall be responsible for exterior maintenance, repair and upkeep of the Premises, including, but not
limited to, snow removal, landscaping and mowing. Owner will also manage leasing and collection of
rents as further described herein.
ARTICLE 6
SERVICES OF MANAGER
6.1 Management and Operation. The Manager shall manage, operate and maintain the Premises in a
reasonable manner normally associated with the management and operation of a quality apartment project
and in a manner reflective of the standards set forth by the real estate management industry. Manager
shall act in a fiduciary capacity with respect to the proper protection of and accounting for Owner's
accounts.
6.2 Employees. The Manager shall have in its employ at all times a sufficient number of capable
employees to enable it to properly manage, operate and maintain the Premises. All matters pertaining to
the employment, supervision, compensation, promotion and discharge of such employees are the
responsibility of the Manager.
6.3 Budgets. The approved Operating Budget shall serve as a guideline to the Manager in maintaining
and operating the Premises, and Manager agrees, subject to the provisions of Article 7, to use diligence
and to employ reasonable efforts in order to effect that the actual cost of maintaining and operating the
Premises shall not exceed the approved Operating Budget.
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6.4 Collection of Receivables. Owner will collect rent per its current rent collection model. Manager
shall collect and identify 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, etc.). All monies so collected shall be deposited in the Operating Account.
The Operating Account will be monitored and maintained by both the Owner and the Manager.
6.5 Leasing. Owner will be responsible for leasing the units at the Premises. Owner will share
leasing and lease holder information with Manager to enable Manager to properly oversee the units and
respond to calls placed by tenants.
6.6 Repairs, Maintenance, Alterations. Manager will cause the Premises to be maintained and
repaired in accordance with state and local codes in a condition acceptable to Owner. In doing so,
Manager will respond to emergency maintenance calls and will cause minor repairs to be made, as
necessary. For repairs other than emergency maintenance or for routine maintenance and repairs,
Manager will contract with one of Owner's approved vendors. Without limiting the generality of the
foregoing, Manager shall institute and supervise all ordinary repairs, decorations and alterations,
including the administration of a preventive maintenance program for all mechanical, electrical and
plumbing systems and equipment at the Premises. In the event Manager performs such maintenance,
services will be charged at the rate set forth in Article 19.
Notwithstanding the generality of the foregoing, Manager shall not be responsible for instituting
or supervising major construction and rehabilitation or capital improvement projects except as may be
provided in a separate agreement with Owner.
6.7 Operating Activities. Manager shall institute and supervise all operational activities of the
Premises, such as, but not limited to, the following:
(a) Responsibility and supervision of a preventive maintenance program;
(b) Responsibility and supervision for any necessary maintenance or repairs to the Premises;
and
(c) Any other activity incidental to the normal operation of a similarly situated apartment
project.
6.8 Payment of Expenses. Manager shall pay all operating expenses from the Operating Account.
6.9 Bank Relationship. Manager shall handle all operational banking matters related to its contractual
responsibility. Owner shall designate which bank(s) or financial institutions Manager shall use in
discharging this responsibility. The parties agree that First Bank is the bank designated by Owner.
6.10 Property Inspection. Manager shall conduct periodic comprehensive inspections of the Premises
and report periodically to the Owner in writing with any recommendation.
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6.11 Maintenance of Records. Manager 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
6.14, shall be available to the Owner during business hours upon two (2) days written notice.
6.12 Manager Availability. Manager shall maintain 24-hour availability for emergencies.
6.13 Owner Communications. Manager shall be available for communication with Owner and will
keep Owner advised of items affecting the Premises. Within five (5) days after Manager receives a
certified or registered letter from any tenant, a copy will be sent to Owner.
6.14 Financial Reports.
Financial reporting and record keeping:
(a) Manager, 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 Manager at a location acceptable to
Owner. Manager 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) Manager shall adopt a Chart of Accounts (a system of classification of accounting entries)
as generally utilized in the residential property management industry.
(c) The Manager 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. Such financial reports shall be
provided to Owner on a quarterly basis.
(d) As additional support to the monthly financial statement, Manager 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 balances;
4. Paid invoices;
5. Summaries of adjusting journal entries; and
6. Supporting documentation for payroll, payroll taxes and employee benefits.
(e) Manager shall maintain necessary liaison with Owner's accountant.
6.15 Tenant Security Deposits. Security deposits shall be maintained by Owner.
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6.16 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 Manager
will not publish, transmit or release said information to any party unless required by the Colorado Open
Records Act in which event Manager will provide notice of such disclosure to Owner.
ARTICLE 7
MANAGER'S AUTHORITY
7.1 Manager's Authority_. Manager'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 Operating Budget shall constitute approval
for Manager to expend money from the Operating Account to operate and manage the Premises, and
Manager may do so without further approval as long as Manager does not exceed the aggregate amount
set forth in the approved budget.
7.3 Approved Capital Budget. In the event Manager identifies any capital items at the Premises
requiring attention, then the Manager shall notify the Owner and the parties shall work together to
develop a capital budget ("Capital Budget"). Approval by the Owner's Board of Directors of the Capital
Budget shall constitute an authorization for Manager to expend money for capital expenditures consistent
with the approved Capital Budget.
7.4 Contracts. In the event Manager identifies any items for which a contract may be needed, it will
notify Owner. Owner will make the final determination of whether a contract is required, and will enter
into a contract in a form satisfactory to Owner. Owner will share all contracts related to the Premises with
the Manager.
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. Manager shall use reasonable efforts 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 Account provided such expenses do not exceed one
thousand and no/100 dollars ($1,000.00) in anyone instance. When more than such amount is required or
if the violation is one for which the Owner might be subject to penalty, Manager 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, Manager 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 expenditure as soon as reasonably practical but no later
than within the next five (5) business days.
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7.8 Structural Changes. The Owner expressly withholds from the Manager 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 Manager without the prior written
direction of the Owner.
ARTICLE 8
8.1 Owner to Obtain Adequate Insurance. Owner shall maintain at its expense 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. Owner shall be solely responsible for
determining the amounts and types of insurance to be carried. Manager shall:
(a) notify Owner within twenty-four (24) hours after Manager receives notice of any such
loss, damage or injury; and
(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.
8.2 Information Furnished. The Manager shall furnish whatever information is requested by Owner
relating to the Premises 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. Manager shall have no obligation to separately insure the Premises. Manager will maintain
insurance covering its operations under this Agreement.
8.3 Subcontractor's Insurance. Manager shall require that subcontractors brought onto the Premises
have insurance coverage, specifically including broad form general liability, property damage, and
automotive liability insurance in the minimum amount of three hundred and eighty-seven thousand dollars
($387,000) for bodily injury, death, or damage to property of any person and one million and ninety-three
thousand dollars ($1,093,000) for bodily injury, death, or damage to property of more than one person, or
the maximum amount that may be recovered under the Colorado Governmental Immunity Act, ยง 24-10-
101, et seq., C.R.S., as may be amended in the future. The Manager shall obtain and keep on file a
Certificate of Insurance which shows that the subcontractor is insured.
ARTICLE 9
OWNER'S RIGHT TO AUDIT
9.1 Owner's Right to Audit. Owner reserves the right to conduct examinations, upon two (2) days
written notice, of the books and records maintained for Owner by Manager. Owner also reserves the right
to perform any and all additional audit tests relating to Manager's activities; either at the Premises, or at
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any office of the Manager, provided such audit tests are related to those activities performed by Manager
for Owner.
9.2 Correction of Discrepancies. Should Owner discover errors in record keeping, Manager shall
correct such discrepancies either upon discovery or within a reasonable period of time. Manager shall
inform Owner in writing of the action taken to correct such audit discrepancies. Any and all such audits
conducted by Owner will be at the sole expense of Owner.
ARTICLE 10
BANK ACCOUNTS
10.1 Operating Account. The Manager shall deposit on a regular basis all funds collected from the
operation of the Premises for the purpose of paying operating expenses in a bank approved by Owner.
10.2 Security Deposits. Owner shall keep and maintain security deposits.
10.3 Change of Banks. Owner may direct the Manager 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 Account. The following costs are to be paid directly from the
Operating Account:
(a) Any and all costs necessary to the management, operation, leasing and maintenance of the
Premises that are covered within the approved budgetary guidelines as outlined in Articles 6 and 7.
(b) All operations and accounting expenses incurred by Manager in the execution of
Manager's responsibilities pursuant to the terms of this 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 accounts.
(c) 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; the cost of all audits required by the terms of this Agreement.
(d) Any other costs approved in writing by Owner to Manager.
(e) Compensation to Manager as set forth in Article 19 hereof.
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ARTICLE 12
INSUFFICIENT INCOME
If at any time the gross income (or cash in the Operating Account) from the Premises shall not be
sufficient to pay the bills and charges which may by incurred with respect to the Premises, the Manager
shall notify Owner immediately upon first projection or awareness of a cash shortage or pending cash
shortage and Owner and Manager shall jointly determine payment priority. Manager shall not be
obligated to pay said expenses and charges from its own account. After Manager has paid, to the extent
of available funds, all bills and charges based upon the ordered priorities set jointly by Owner and
Manager, Manager shall 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
TERMINATION
13.1 Termination. Either party may terminate this Agreement, in whole or in part, at any time and for
any reason, with or without cause, and without penalty therefor with seven (7) calendar days' prior written
notice to the other party. Upon termination of this Agreement, Owner shall pay Manager for Services
satisfactorily performed to the date of termination. In the event of termination as set forth herein,
Manager's powers and authority under this Agreement shall cease and terminate at the effective date set
in the notice of termination and Manager shall deliver to Owner the following with respect to the
Premises: (1) a final accounting 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; and (2) any
balance or monies of Owner held by Manager with respect to the Premises; and (3) all records, contracts,
leases, receipts for deposits, unpaid bills and other papers or documents which pertain to the Premises.
ARTICLE 14
COOPERATION
14.1 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 Manager 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 Manager shall survive the termination or expiration of this
Agreement.
14.2 Upon termination of this Agreement, Manager 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 Manager has in its possession and shall cooperate, as requested by Owner, in the transition
to a new manager of the Premises.
14.3 Owner shall cooperate in good faith and shall timely respond to requests for information,
approvals or otherwise from Manager in connection with this Agreement
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ARTICLE 15
MANAGER'S LIABILITY
15.1 Except as otherwise stated herein, Manager shall not in the performance of this Agreement, be
liable to Owner or to any other person including Owner's tenants for any act or omission of any agent or
employee of Owner or Manager, or its subsidiaries or affiliates, unless the same results from gross
negligence or willful misconduct of the Manager, its officers or employees.
15.2 Notwithstanding any other provisions of this Agreement, in no event shall Owner make any claim
against Manager, or its affiliates or subsidiaries on account of any alleged errors of judgment made in
good faith and consistent with the standard of care for Manager in connection with the operation of the
Premises hereunder by Manager or the performance of any advisory or technical services provided by or
arranged by the Manager.
15.3 Owner shall not object to any expenditure made by Manager in good faith and consistent with the
standard of care for Manager 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.
15.4 Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any
governmental immunity that may be available by law to either party and their respective officials,
employees, contractors, or agents, or any other person acting on their behalf, and, in particular,
governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act,
Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
ARTICLE 16
REPRESENTATION
Owner hereby represents that in entering into this Agreement, Owner understands that no guarantee is
made or implied by Manager, or any of its affiliated companies as to the future financial success of the
Premises.
ARTICLE 17
REASONABLE CONSENT
Whenever in this Agreement the consent or approval of Manager or Owner is required, such consent or
approval shall not be unreasonably withheld.
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ARTICLE 18
NOTICRS
All notices, demands, consents and reports provided for in this Agreement shall be in writing and shall be
given to the appropriate Owner or Manager at the address set forth below or at such other address as they
may specify hereafter in writing:
MANAGER: Eagle County Housing and Development Authority
PO Box 850
Eagle, CO 81631
Attn: Kimberly Williams, Executive Director
Email: kim.williams@eaglecounty.us
with a copy to: Eagle County Attorney's Office
P.O. Box 850
Eagle, Colorado 81631-0850
atty@eaglecounty.us
OWNER: Eagle River Water and Sanitation District
846 Forest Road
Vail, CO 81657
Email: cnunley@erwsd.org
Such notice or other communication may be by electronic mail or may be mailed by 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.
ARTICLE 19
COMPENSATION
Manager shall be paid a flat fee of $1,000 per unit per year of this Agreement, or a total of $30,000,
payable in twelve equal monthly installments of $2,500 (the "Property Management Fee"). Owner shall
pay Manager by the 251 day of each month during the Term hereof. The Property Management Fee may
be increased from time to time upon mutual written agreement of the parties. Maintenance services
performed by Manager will be performed at a rate of eighty dollars ($80) per hour. In the event that
maintenance item is not after hours or an emergency and a third party contractor can perform the
maintenance work at a less expensive rate, Manager will attempt to engage a contractor to perform the
work in the best interests of the Premises.
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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 any and all previous
negotiations, representations, and oral agreements between the 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
its successors and/or permitted assigns, and shall be binding upon and inure to the benefit of Manager,
and its permitted assigns. There shall be no third party beneficiaries to this Agreement.
20.7 State Law and Venue. This Agreement shall be construed, interpreted and applied in accordance
with and shall be governed by, the laws applicable in the State of Colorado. Venue for any dispute arising
from or related to this Agreement shall be in the courts of Eagle County, Colorado.
20.8 Rebates. Manager agrees it will not collect or charge any undisclosed fee, rebate or discount, and
if any such should be received by Manager, 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.
20.10 Independent Contractor. This Agreement constitutes an agreement for performance of the
Services by Manager as an independent contractor and not as an employee of Owner. Nothing contained
in this Agreement shall be deemed to create a relationship of employer -employee, master -servant,
partnership, joint venture or any other relationship between Manager and Owner except that of
independent contractor.
20.11 Counterparts. This Agreement maybe executed in two or more counterparts, each of which shall
be deemed an original, but all of which shall constitute one and the same instrument. The parties approve
the use of electronic signatures for execution of this Agreement. All use of electronic signatures shall be
governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121
20.12 Annual Appropriation. Pursuant to Article X, Section 20 of the Colorado Constitution and Section
29-1-110, C.R.S., the Owner's obligations hereunder are subject to the annual appropriation of funds
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necessary for the performance thereof, which appropriations will be made in the sole discretion of the
Owner's Board of Directors.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year above
written.
DocuSigned by:
By: Nom's
583641296A894AF...
David Norris Director of Financ
MANAGER:
EAGLE COUNTY HOUSING AND
DEVELOPMENT AUTHORITY
By: FDocuSigned by:
l a ct t w
Matt Scherr, Chair 81UBM718EO473...
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