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.
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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.
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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
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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
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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
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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.
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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
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Stephanie Bibbens, Town Clerk
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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
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EXHIBIT A
PROPERTY
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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.
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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%.
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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.
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