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HomeMy WebLinkAbout2023-20 A Resolution of the Vail town Council Approving a Property Management Agreement between the Town of Vail and Triumph West Management LLC the Management of the Residences at Main VailRESOLUTION NO.20 SERIES OF 2023 A RESOLUTION OF THE VAIL TOWN COUNCIL APPROVING A PROPERTY MANAGEMENT AGREEMENT BETWEEN THE TOWN OF VAIL AND TRIUMPH WEST MANAGEMENT LLC THE MANAGEMENT OF THE RESIDENCES AT MAIN VAIL WHEREAS, the Town owns a certain for rent, deed restricted apartment project known as the Residences at Main Vail and with a physical address of Vail, Colorado , (the "Property"); WHEREAS, the Town wishes to hire Triumph West Management LLC to manage the Property and Triumph West Management LLC desires to assume all such responsibilities in accordance with the terms and provisions of the Property Management Agreement, attached hereto as Exhibit A, and incorporated herein by this reference (the "Management Agreement"). NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Town Council hereby approves the Management Agreement in substantially the same form attached hereto as Exhibit A. and in a form approved by the Town Attorney, and authorizes the Town Manager to execute the Management Agreement on behalf of the Town. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting a Vail Town � Council held this 16th day of May, 2023. i f , �\ •f •aid, • ATTEST: Steph nie Bibbens, Town Clerk PROPERTY MANAGEMENT AGREEMENT (Residences at Main Vail) This PROPERTY MANAGEMENT AGREEMENT (the "Agreement") is made and entered into this day of , 2023 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipal corporation with an address of 75 South Frontage Road, Vail, CO 81657 (the "Town"), and Triumph West Management, LLC, an independent contractor with an address of , ("Managers') (each a "Party" and collectively the "Parties"). WHEREAS, the Town owns the real property described in Exhibit A, attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, the Town wishes to hire Manager to manage the Property (as defined below) and Manager desires to assume all such responsibilities in accordance with the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: I. SCOPE OF SERVICES A. Manager shall furnish all labor and materials required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are described or reasonably implied from the Scope of Services set forth in Exhibit B, attached hereto and incorporated herein by this reference. B. A change in the Scope of Services shall not be effective unless authorized as an amendment to this Agreement. If Manager proceeds without such written authorization, Manager shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as expressly provided herein, no agent, employee, or representative of the Town is authorized to modify any term of this Agreement, either directly or implied by a course of action. C. The Town's Housing Director or designee shall be the Town's representative with respect to all communications with Manager. When the approval or consent or other action of the Town is called for hereunder, such approval, consent, or action shall be binding on the Town if approved in writing by the Town's Representative; provided, however, that the Town's Representative may not authorize any modifications to this Agreement. D. To enable Manager to fulfill its duties under this Agreement, the Town shall make Unit 1009 available for use as an on -site manager's residence, at the current market rental rate. If Manager does not use this Unit for an on -site manager's residence, the Unit shall not remain vacant, but shall instead return to the pool available to other qualified tenants. 5112/2023 C.IUSERSIEASYPD-1I4PPDATAILOCALITEMPIBCL TECHNOLOGIESIEASYPDF 8I@BCL@BC09DC6DI@BCL@BC09DCBD. DOCX II. TERM AND TERMINATION A. The term of this Agreement shall commence on the Effective Date and shall continue for a period of one year, unless otherwise terminated as provided herein. The Parties may consent to renewal, for up to 2 additional terms, on the same terms as conditions as provided herein. B. Either Party may terminate this Agreement upon 120 days advance written notice. The Town shall pay Manager for all work previously authorized and completed prior to the date of termination. If, however, Manager has substantially or materially breached this Agreement, the Town shall have any remedy or right of set-off available at law and equity. C. Within 30 days of termination for any reason, Manager shall deliver to the Town the following with respect to the Property: a final accounting, reflecting the balance of income and expenses on the Property as of the effective date of termination; any balance or monies of the Town held by Manager with respect to the Property, shall be delivered immediately after such effective termination date and thereafter promptly after same are received by Manager; all records, contracts, leases, receipts for deposits, unpaid bills and other papers or documents which pertain to the Property also shall be delivered immediately upon such effective termination date. COMPENSATION A. Manager shall be entitled to a management fee equal to the sum of 4% of the monthly gross receipts from operation of the Property, with a minimum fee of $5,000 per month, payable monthly. Payments due to Manager for periods less than a calendar month shall be prorated over the number of days for which compensation is due. Manager shall deduct such amounts directly from the Operating Account. B. The term "gross receipts" means all rents and other income and charges from the normal operation of the Property, including without limitation rents, parking fees, "pass through" charges, and other miscellaneous fees or other income received by or credited to the Town. Gross receipts does not include income arising out of the sale of real property or the settlement of fire or other casualty losses or items of similar nature. IV. PROFESSIONAL RESPONSIBILITY A. Manager hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and professional licenses in good standing, required by law. The work performed by Manager shall be in accordance with generally accepted professional practices and the level of competency presently maintained by other practicing professional firms in the same or similar type of work in the applicable community. The work and services to be performed by Manager hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations. 2 5r112/2023 C:IUSERStEASYPD-114PPDATAILOC4LtTEMPtBCL TECHNOLOGIESIEASYPDF 8IQBCL@BC09DC6Dt@BCL@BC09DC6D. DOCX B. The Town's review, approval or acceptance of, or payment for any services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. C. Manager shall have in its employ or contracted at all times a sufficient number of capable staff to enable it to properly and safely manage, operate and maintain the Property. All matters pertaining to the employment, supervision, compensation, promotion and discharge of such staff are the responsibility of Manager. All employees shall be considered employees of Manager and not the Town. Manager shall not enter into any sub -management agreements of any kind without prior written approval of the Town. D. Manager shall at all times comply with all applicable law, including without limitation all current and future federal, state and local statutes, regulations, ordinances and rules relating to: the emission, discharge, release or threatened release of a Hazardous Material into the air, surface water, groundwater or land; the manufacturing, processing, use, generation, treatment, storage, disposal, transportation, handling, removal, remediation or investigation of a Hazardous Material; and the protection of human health, safety or the indoor or outdoor environmental, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"); the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. ("RCRA" ); the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Water Act, 33 U.S.C. § 1251, et seq.; the Clean Air Act; the Federal Water Pollution Control Act; the Occupational Safety and Health Act; all applicable environmental statutes of the State of Colorado; and all other federal, state or local statutes, laws, ordinances, resolutions, codes, rules, regulations, orders or decrees regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, in effect now or anytime hereafter. V. FISCAL RESPONSIBILITIES A. Operating Account. The Town shall initially fund the Operating Account pursuant to the Start-up Budget described in the Scope of Services. Thereafter, Manager shall deposit all rents and other funds collected from the operation of the Property, including any and all advance funds, into the Operating Account. Nothing in this Agreement shall be construed to require Manager to expend or advance Manager's own funds in carrying out Manager's responsibilities hereunder. B. Collection of Receivables. Manager shall use diligent efforts to collect from tenants of the Property, all rents (including without limitation operating costs and other escalation billings and base rent adjustments), remodeling and alteration reimbursements, 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 use of the Property or any portion thereof. Manager shall collect and identify any income due the Town from miscellaneous services provided to tenants or the public, including without limitation parking income, pet fees, utility expenses, tenant storage and coin operated machines of 3 5✓1212023 CAUSERSIEASYPD-1 WPPDATAILOCALITEMAM TECHNOLOGIESWASYPDF 8%@BCL@BC09DC6DI@BCL@BC09DCBD. DOCX all types (e.g. vending machines, etc.). All monies so collected shall be deposited daily in the Operating Account. Manager shall not write off any income items without prior approval of the Town. C. Costs. The following costs shall be paid out of the Operating Account: 1. The cost of all travel expenses incurred by Manager and approved by the Town, either through budgetary approval or by specific written approval of the Town, provided that said travel specifically excludes local vehicle mileage; 2. The salary, including payroll taxes, worker's compensation and all employee benefits, of the on -site manager; 3. Any and all costs necessary to the management, operation, leasing and maintenance of the Property; 4. The pro rata share of the salary and compensation attributable to the Property for Manager and operations accounting personnel who are associated directly or indirectly with the management of the Property as approved by the Town; 5. All operations accounting expenses incurred by Manager in the execution of Manager's responsibilities pursuant to this Agreement; and 6. Management fees. D. Insufficient Funds. If at any time the Operating Account is not sufficient to pay the bills and charges which may be incurred with respect to the Premises, Manager shall notify the Town immediately, and the Town and Manager shall jointly determine payment priority after the payment of management fees and expenses to be reimbursed to Manager. After Manager has paid, to the extent of available gross income, all bills and charges based upon the order agreed upon by the Town and Manager, Manager shall submit to the Town a statement of all remaining unpaid bills. E. Security Deposits. All tenant security deposits shall be deposited by Manager into a separate account established to hold and maintain all security deposits received in connection with the leasing of the Property (the "Security Deposits Account"). Manager shall assume the liability for the Security Deposits Account, including all obligations for return of such security deposits as set forth in the lease agreements with tenants. F. Audit. The Town reserves the right for the Town's employees or others appointed, designated or approved by the Town, to conduct examinations, upon reasonable advance written notice, of the books and records maintained for the Town by Manager no matter where books and records are located. The Town also reserves the right to perform any and all additional audit tests relating to Manager's activities; either at 4 51122023 CIUSERSIEASYPD-10PPDATAILOCALITEMPOCL TECHNOLOGIESIEASYPDF 81@BCL@BC09DC601@BCL@BC09DC6D.DOCX the Property, or at any office of Manager; provided such audit tests are related to those activities performed by Manager for the Town. G. Discrepancies. Should the Town discover either weaknesses in internal control or errors in record keeping, Manager shall correct such discrepancies either upon discovery or within a reasonable period of time. Manager shall inform the Town in writing of the action taken to correct such audit discrepancies. Any and all such audits conducted either by the Town's employees or appointees will be at the sole expense of the Town. VI. INDEPENDENT CONTRACTOR Manager is an independent contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Manager to perform work under the terms of this Agreement shall be, and remain at all times, employees or agents of Manager for all purposes. Manager shall make no representation that it is a Town employee for any purposes. VII. INSURANCE A. Manager agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Manager pursuant to this Agreement. At a minimum, Manager shall procure and maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. 3. Professional liability insurance with minimum limits of $1,000,000 each claim and $2,000,000 general aggregate. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees or its contractors shall be excess and not 5 5✓1212023 C:IUSERSE4SYPD-IOPPDATAILOCALITEMPOCL TECNNOLOGIESIEASYPDF 8QBCL@BC09DC6DI@BCL@BC09DC6D. DOCX contributory insurance to that provided by Manager. Manager shall be solely responsible for any deductible losses under any policy. C. Manager shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. D. The Town shall, at the Town's sole expense, obtain and keep in full force and effect, insurance in commercially reasonable amounts for the Property and all operations thereon. The Town agrees to name Manager as an additional insured on such insurance, at no cost to Manager and to provide Manager with a certificate of insurance evidencing the same. The Town may carry any insurance required by this Agreement under a blanket policy or under a policy containing a self -insured retention. Vill. INDEMNIFICATION Manager agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attomey fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Agreement if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of Manager, any subcontractor of Manager, or any officer, employee, representative, or agent of Manager, or which arise out of a worker's compensation claim of any employee of Manager or of any employee of any subcontractor of Manager. Manager's liability under this indemnification provision shall be to the fullest extent of, but shall not exceed, that amount represented by the degree or percentage of negligence or fault attributable to Manager, any subcontractor of Manager, or any officer, employee, representative, or agent of Manager or of any subcontractor of Manager. IX. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. C. Integration. This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third -party beneficiaries to this Agreement. 6 5✓1212023 C.-kUSERSIEASYPD- IOPPDATAILOCALITEMPIBCL TECNNOLOGIEMEASYPDF 81OBCL@BC09DC6DI@BCL@BC09DC6D. DOCX E. Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre -paid, first class U.S. Mail to the Party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Agreement may only be modified upon written agreement of the Parties. H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees. J. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L. Force Majeure. No Party shall be in breach of this Agreement if such Party's failure to perform any of the duties under this Agreement is due to Force Majeure, which shall be defined as the inability to undertake or perform any of the duties under this Agreement due to acts of God, floods, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government or pandemics. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. ATTEST: TOWN OF VAIL, COLORADO Russell Forrest, Town Manager 7 5/12/2023 C.AUSERSIEASYPD- IL4PPDATAILOCALITEMPWCL TECNNOLOGIESIEASYPDF 81@BCL@BC09DC6008CL@BC09DC6D. DOCX Stephanie Bibbens, Town Clerk 5112/2023 C:IUSERSIEASYPD-114PPDATAILOCALITEMPOCL TECHNOLOGIESIEASYPDF 81 rQBCL@BC09DC6DI@BCL@BC09DC6D,DOCX By: STATE OF COLORADO ) ) ss. COUNTY OF ) MANAGER The foregoing instrument was subscribed, sworn to and acknowledged before me this day of 2023, by as of My commission expires: (SEAL) Notary Public 9 5✓12)2023 C:IUSERSIEASYPD-1{4PPDATAILOC4LITEMPIBCL TECHNOLOGIESIEASYPDP SA@BCL@BC09DC6DI@BCL@BC09DC6D. DOCX EXHIBIT A PROPERTY 10 5/12/2023 C.IUSERSIEASYPD 1WPPDATAILOCALITEMPIBCL TECHNOLOGIESIEASYPDF 81@BCL@BC09DC6D%QBCL@BC09DC6D.DOCX EXHIBIT B SCOPE OF SERVICES A. General. Manager shall provide an experienced team trained to provide all of the necessary management services including without limitation: management; maintenance; cleaning; and accounting. Manager's level of service will be evaluated periodically by the Town. All of the following services shall be provided, at a minimum: Emergency/after hours service 24 hours per day, 7 days per week, 365 days per year. 2. Timely collection of rents. 3. Timely return of security deposits. 4. Enforcement of property rules and regulations. 5. Maintenance of a management and leasing office. 6. Timely lease -up of units, using the lease template furnished by the Town. 7. Compliance with the Fair Housing Act and other applicable laws. 8. Appropriate communication with tenants. 9. Unit turnover inspections and documentation. 10. Incident report documentation 11. Maintenance of grounds. 12. Management of security access for residents, vendors and visitors. 14. Management of parking spaces. 15. Management of pet policy. 16. Posting warnings for rule infractions and other enforcement actions. 17. Attendance at monthly meetings with Town staff to discuss operations, budgets, repairs and maintenance updates. B. Budgets. 1. On or before May 26, 2023, Manager shall provide a proposed operating budget for June 1 through December 31, 2023 (the "Start -Up Budget"). The Town shall approve the Start -Up Budget on or before May 31, 2023. 11 5✓12/2023 C.IUSERSIEASYPD-iWPPDATAILOCALITEMPIBCL TECNNOLOGIESIEASYPDF 8I@BCL@BC09DC6DI@BCL(MBC09DC6D. DOCX 2. Manager shall prepare and submit to the Town a proposed operating budget and a proposed capital budget for the management and operation of the Property for the forthcoming Fiscal Year by September 15 each year. The Town shall consider the proposed budgets, consult with Manager, and agree on an "Approved Operating Budget" and an "Approved Capital Budget" (collectively, the "Approved Budgets") for the Property for the forthcoming budget year by December 31. The Approved Budgets shall serve as a guideline to Manager in maintaining and operating the Property, and Manager agrees to use diligence and to employ all reasonable efforts to effect that the actual cost of maintaining and operating the Property shall not exceed the Approved Budgets. The Approved Capital Budget shall not constitute an authorization for Manager to expend any money for capital; any capital expenditure must be specifically authorized by the Town. C. Additional Costs. Manager shall notify the Town of unanticipated costs and expenses that may exceed budget so that the Town can submit an amended budget for approval. Manager may not take action that would exceed the Annual Approved Operating Budget unless a revised Annual Approved Operating Budget is approved in writing by the Town. D. Repairs and Alterations. Manager shall conduct periodic comprehensive inspections of the Property and report its findings to the Town. Manager shall institute and supervise all ordinary and extraordinary repairs and alterations, including the administration of a preventive maintenance program for all mechanical, electrical and plumbing systems and equipment. Manager shall be responsible for arranging all remodeling and alteration work, after initial lease up, including obtaining bids and proposals, obtaining tenant approval, invoicing tenants for reimbursements, collecting same and making payment for the work done. The Town shall inspect all repairs and alterations for quality assurance and quality control. E. Financial Reports. 1. Manager shall maintain adequate books and records for the Property in accordance with generally accepted accounting principles, which shall be supported by sufficient documentation to ascertain that said entries are accurately recorded. Manager shall maintain such control over accounting and financial transactions as is reasonably required to protect the Town's assets from theft, error or fraudulent activity. 2. Manager shall, within 30 days after the last day of each month, prepare financial statements for the preceding month, including a statement of income, balance sheet, cash flow statement, budget variances, occupancy rates, construction draws and funds remaining in the Operating Account, statement of rental activity, rental rates, detailed cash receipts and disbursement records, detailed trial balances, paid invoices, summaries of adjusting journal entries, and supporting documentation for payroll, payroll taxes and employee benefits, all bank statements, bank deposit slips and bank reconciliations, and further information requested by the Town concerning any budget variances in excess of 5%. 12 5/12/2023 C.IUSERSIEASYPD-114PPDATAILOC4LITEMMBCL TECHNOLOGIES1EASYPDF 8OBCL@BC09DC6DI@BCL@BC09DC6D.DOCX 3. Within 30 days after the last day of each Fiscal Quarter (March, June, September, December), Manager shall prepare a quarterly financial report covering the operation of the Property for such quarter and containing a balance sheet as of the end of such quarter and a statement of unrestricted fund revenue, expenditure and transfers and a statement of cash flows with respect to the Property for such quarter, showing in each case in comparative form the figures for the corresponding quarter of the preceding Fiscal Year, along with any further information requested by the Town conceming any budget variances in excess of 5%. Manager shall maintain a liaison with the Town's Finance Department. F. Capital Repairs. The services performed by Manager hereunder do not include the cost of capital repairs, provided that, if capital repairs are necessary, Manager shall supervise such repairs as necessary. G. Termination of Leases. Manager shall not terminate any lease, lock out any tenant of the apartments, institute any suit for rent or for use and occupancy, or proceedings for recovery of possession, without the prior approval of the Town. In connection with such suits or proceedings, only legal counsel designated by the Town shall be retained. 13 5/12/2023 CAUSERSIEASYPD-10PPDATAILOCALITEMPIBCL TECHNOLOGIESIEASYPDF 94BCL@BC09DC6DI@BCL@BC09DCBD.DOCX