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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/19/1999 - RESOLUTION NO. 21 ADOPTING THE PROPERTY MANAGEMENT AGENDA ITEM SUMMARY ITEM NUMBER: 6 DATE: October 19, 1999 ID FORT COLLINS CITY COUNCIL STAFF: John Fischbach SUBJECT: Resolution No.21 Adopting the Property Management Agreement between the Fort Collins Housing Authority(FCHA) and the Fort Collins Housing Corporation(FCHC). RECOMMENDATION: Staff recommends approval of this Agreement,which sets forth the operating relationship between the Fort Collins Housing Authority and the Fort Collins Housing Corporation. EXECUTIVE SUMMARY: In this Agreement,FCHA agrees to manage FCHC's 260 low-income housing units in accordance with the terms and conditions of the Agreement. (The Agreement is attached as Exhibit"A"to the Resolution.) The Agreement specifically outlines the budgetary expectations for both FCHA and 18 FCHC. The Agreement establishes a monthly service charge due to the FCHA of$27,463 for services as outlined in the Agreement. Since 1985, FCHC has contracted with FCHA to oversee all property management services for FCHC's housing units. These units help significantly in filling low and moderate income housing gaps throughout the community. On October 1, 1999 the FCHC Board unanimously approved this Agreement. RESOLUTION NO. 21 • OF THE BOARD OF COMMISSIONERS OF THE FORT COLLINS HOUSING AUTHORITY ADOPTING A PROPERTY MANAGEMENT AGREEMENT BETWEEN THE FORT COLLINS HOUSING AUTHORITY AND THE FORT COLLINS HOUSING CORPORATION WHEREAS, the Fort Collins Housing Corporation ("FCHC") is a Colorado non-profit corporation organized and existing for the primary purpose of fostering low and moderate housing pursuant to 42 U.S.C. Section 1401, et seq.; and WHEREAS, in furtherance of its purpose, FCHC has acquired and currently owns approximately 260 units of real property and leases them as low and moderate income housing;and WHEREAS, the Fort Collins Housing Authority ("FCHA") is a governmental entity organized and existing as a housing authority pursuant to the Colorado Housing Authority's law (C.R.S. Section 29-4-201, et seq.);and WHEREAS,FCHA has as one of its purposes,as well,to provide low income and moderate income housing to residents of the City of Fort Collins; and WHEREAS, since 1985, FCHC has contracted with FCHA to provide it with property . management services,for compensation,to operate FCHC's properties as low and moderate income housing; and WHEREAS,the parties' most recent property management agreement has expired; and WHEREAS,FCHC and FCHA wish to continue this contractual relationship by entering into the "Property Management Agreement" which is attached hereto as Exhibit "A" and incorporated herein by reference (the "Agreement"). NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE FORT COLLINS HOUSING AUTHORITY that the Agreement is hereby approved and the Chair of the Board, is hereby authorized to execute the Agreement on behalf of FCHA. Passed and adopted at a regular meeting of the Board of Commissioners of the Fort Collins Housing Authority,held this 19th day of October,A.D. 1999. Chairperson ATTEST: Secretary PROPERTY MANAGEMENT AGREEMENT THIS AGREEMENT is made and entered into this day of 1999 by and between the Fort Collins Housing Corporation, a Colorado non-profit corporation (hereinafter referred to as "the Corporation"), and the Fort Collins Housing Authority, a Colorado quasi- municipal corporation(hereinafter referred to as "the Authority"). WITNESSETH: WHEREAS,the Corporation is a Colorado non-profit corporation organized and existing for the primary purpose of fostering low and moderate income housing pursuant to 42 U.S.C. Section 1401, et seq.; and WHEREAS,in furtherance of its purpose,the Corporation has acquired and currently owns the real properties which are described on Exhibit"A"attached hereto and incorporated by reference (hereinafter referred to collectively as "the Properties"); and WHEREAS, the Authority is a governmental entity organized and existing as a housing authority pursuant to the Colorado Housing Authorities Law(C.R.S.Section 29-4-201,et seq.);and WHEREAS,the Authority has as one of its purposes,as well,the providing of low income and moderate income housing to residents of the City of Fort Collins; and WHEREAS,since 1985,the Corporation has contracted with the Authority to provide it with property management services, for compensation, to operate the Properties as low and moderate income housing; and WHEREAS, the parties most recent management agreement has expired; and WHEREAS,the Corporation and the Authority wish to continue this contractual relationship; and WHEREAS, the parties therefore enter into this Agreement to set forth the terms and conditions pursuant to which the Authority will continue to manage the Properties for the Corporation. NOW, THEREFORE,in consideration of the mutual promises contained herein, and other good and valuable consideration,the receipt and adequacy of which are hereby acknowledged,the parties hereto agree as follows: 1. Appointment as Agent. The Corporation hereby appoints the Authority, and the Authority hereby accepts appointment, on the terms and conditions hereinafter provided, as the Corporation's exclusive agent to manage,rent, lease and operate the Properties. 1 • 2. Term of Agreement. The obligations of the parties under this Agreement shall be perpetual in duration and shall not expire unless terminated as provided in paragraph 5.A., 6 or 7 below. 3. Responsibilities of the Authority. The Corporation gives the Authority all the authority and power needed by the Authority to exercise the following responsibilities on behalf and in the name of the Corporation and the Corporation agrees to assume and pay and/or reimburse the Authority for all expenses in connection therewith,and the Authority agrees to accept such authority and power in performing these responsibilities: A. to prepare a management plan for the Corporation which includes an operating budget, on-site staffings and market analysis along with recommendations, which plan shall be approved by the Corporation; B. to cause to be hired, paid and supervised all persons necessary to be employed in order to properly maintain and operate the Properties who,in each instance,shall be the Authority's and not the Corporation's employee and assume all responsibilities and perform all acts required of the Authority as an employer with respect to such persons; C. to cause the Properties to be maintained in such conditions as may be deemed advisable by the Corporation, normal wear and tear excepted, and cause routine repairs and incidental alterations to the Properties to be made, including, but not limited to,electrical,plumbing,carpentry,masonry and any other routine repairs and incidental alterations as may be required in the course of ordinary maintenance and care of the Properties; provided, however, any repair or alteration involving an expenditure in excess of Five Thousand Dollars($5,000.00) for any one item shall be made only with the prior written approval of the Corporation, except that emergency repairs (i.e., those immediately necessary for the preservation or safety of the Properties or for the safety of the tenants of the Properties or other persons,or required to avoid the suspension of any necessary service in or to the Properties)may be made by the Authority regardless of the cost thereof,without the prior approval of the Corporation if the Authority makes an attempt to communicate with the Corporation in order to obtain such approval if to do so would be reasonable under the circumstances; D. to recommend and, with the approval of the Corporation, cause all such acts and things to be done in or about the Properties as shall be necessary or desirable to comply with any and all orders or notice of violations affecting the Properties placed thereon by any federal, state, county or municipal authority having jurisdiction, except that if failure to promptly comply with any such order or violation would or might expose the Corporation or the Authority to criminal liability, the Authority may cause such order or notice of violation to be complied with without the prior approval of the Corporation if the Authority makes an attempt to communicate with the Corporation to obtain such approval if to do so would be reasonable under the i2 circumstances, it being understood that the Authority shall notify the Corporation promptly after receipt of any order or notice of violation; E. to enter into all necessary or desirable service contracts in respect to the repair and operation of the Properties, including,without limitation, contracts for electricity, gas,air conditioning,equipment maintenance,water treatment,telephone,janitorial, landscaping,'window cleaning, rubbish removal, snow removal, fuel oil, security, vermin extermination, and architects' and engineers' services required for the planning and supervision of alterations and/or improvements made or proposed to be made to the Properties; provided, however, that any such contract having a term longer than one(1)year or requiring an annual payment in excess of Five Thousand Dollars ($5,000.00)must first be approved in writing by the Corporation; F. to purchase all equipment and supplies which may be necessary to properly maintain and operate the Properties; G. to review all bills received for services, labor, equipment and supplies ordered in connection with maintaining and operating the Properties and to pay or cause to be paid all such bills from funds furnished by the Corporation; H. to determine the proper insurance coverage for the Properties as well as for the Corporation and the Authority in regard to the Properties and the operation thereof, and cause such insurance to be obtained and/or maintained (if obtainable), at the Corporation's expense,in such amounts and through such carriers as the Corporation shall designate and approve; I. To cause all employees of the Authority who handle or who are responsible for safekeeping of any monies of the Corporation to be covered by a fidelity bond in favor of the Corporation in the amount of Fifty Thousand Dollars ($50,000.00); J. to list, offer for lease,lease and renew existing leases for space in the Properties on terms to be determined by the Corporation, and cooperate with any other brokers with whom the Authority,in its discretion,may list space in the Properties for rent; provided,however,that the commission payable to any such broker shall not exceed the commission rate then generally prevailing in the community; K. to supervise the moving in and out of tenants and subtenants and arrange the dates thereof so that there shall be a minimum of disturbance to the operation of the Properties and of inconvenience to other tenants; L. to bill, or cause to be billed, tenants for rent and other charges; M. to use its best efforts to collect or cause to be collected rent and other charges and, if directed by the Corporation, to serve notices upon tenants to quit and surrender space occupied by them; 3 N. to sue on behalf of the Corporation,for rent and other charges which may at any time be or become due from any tenant,and institute summary and/or judicial proceedings to recover possession of space in the Properties; and, when expedient, to settle, compromise and release such actions or suits; O. to handle tenants' security deposits and to comply with applicable state and local laws concerning the Corporation's responsibility for security deposits and interest thereon, if any; P. to maintain in a manner customary and consistent with generally accepted accounting principals or with any accounting methods approved by the United States Department of Housing and Urban Development,a system of accounts to which shall be entered fully and accurately each and every financial transaction with respect to the operation of the Properties and to prepare and render to the Corporation monthly statements of operation and such other reports as may be reasonably requested by the Corporation; Q. to keep the Corporation informed of the financial status and physical condition of the Properties and other items that the Corporation should reasonably be made aware of; R. to consider, and when reasonable and consistent with the Corporation's lease obligations, attend to complaints of tenants; S. to cause to be prepared and filed all necessary forms relating to the maintenance and operation of the Properties required by any federal, state, county or municipal authority having jurisdiction; T. to set up and maintain orderly files containing rent records,insurance policies,leases and subleases,correspondence,receipted bills and vouchers,and all other documents and papers pertaining to the Properties and their operation and maintenance, such records to be and at all times to remain the property of the Corporation, and the Authority shall upon request of the Corporation make the records available to the Corporation, and the Corporation's accountants and attorneys; U. to cooperate with the Corporation's accountants and auditors in regard to the Corporation's annual audit,to any other periodic audits of the Corporation's books of account, and to the preparation of percentage and escalation rent statements to be delivered to tenants; V. to cooperate with the Corporation's accountants in regard to the preparation and filing on behalf of the Corporation of federal,state,city and any other income tax and other filings required by any governmental authority; W. to,when the books of assessed valuations of the taxing authority having jurisdiction over the Properties are opened for public inspection in each year, ascertain the assessment of the Properties, report such assessments to the Corporation and, if • 4 requested by the Corporation, cooperate with the Corporation's attorneys and other designated representatives in the preparation of applications for any needed correction of the assessed valuation; X. to generally do all things reasonably deemed necessary or desirable for the proper management of the Properties; and Y. to perform, on the Corporation's behalf, any lawful act and everything lawful and necessary or desirable in order to carry out the Authority's obligations contained in this Agreement,it being expressly understood and agreed that everything done by the Authority under the provisions of this Agreement shall be done as the agent of the Corporation, and any and all obligations, costs and expenses incurred by the Authority in performance of its obligations under this Agreement shall be borne by the Corporation and not by the Authority; provided, however, that it is expressly understood and agreed that the Authority shall not be compensated, except as provided in paragraph 5. below, for (i) the costs incurred by the Authority in maintaining its own office staff;and(ii)its general overhead costs and expenses that any payments made by the Authority hereunder shall be made out of such funds as the Authority may from time to time hold for account of the Corporation or as may be provided by the Corporation,and the Authority shall not be obligated to make any advance to, or for the account of, the Corporation or to pay any amount except out of the funds held or provided aforesaid nor shall the Authority be obligated to incur any extraordinary liability or obligation unless the Corporation shall furnish the Authority with the necessary funds for the payment thereof. 4. Banking. All funds of the Corporation in the possession of the Authority shall be held by the Authority for the Corporation,in trust,and shall be deposited by the Authority in Bank One of Fort Collins, or such other bank as the Corporation shall designate, in one or more special accounts maintained by the Authority in the name of the Corporation. Such funds shall not be commingled with the Authority's own funds and shall remain on deposit until disbursed in accordance with the terms of this Agreement. The Authority shall regularly furnish the Corporation with true and complete copies of all statements issued by the bank with respect to all such bank accounts after their receipt by the Authority and upon request by the Corporation. 5. Compensation. The Corporation agrees to pay to the Authority,during the term of this Agreement, the following amounts: A. A monthly payment of Twenty Seven Thousand Four Hundred Sixty Three Dollars ($27,463.00) due and payable in advance on the first day of each month during the term of this Agreement. This monthly payment amount may be adjusted by the Authority at any time by giving the Corporation written notice at least one month before the date of the monthly payment for which the adjustment is to take effect. Upon receiving such notice,the Corporation shall have fifteen (15) days thereafter in which to notify the Authority in writing that the Corporation does not agree to the adjustment. If the Corporation so notifies the Authority, this Agreement shall 5 automatically terminate three (3) months after the payment date on which the payment adjustment was to take effect and,during such three(3)month period,the Corporation shall continue to be obligated to make the monthly payment then in effect under this paragraph. If, however, the Corporation does not so notify the Authority, the adjusted payment shall go into effect as stated in the Authority's notice. B. Within thirty(30)days after receiving a written billing from the Authority for such, the Corporation shall reimburse the Authority for all of its actual costs and expenses incurred in providing its management services to the Corporation for the Properties as provided in this Agreement and for which it is entitled to reimbursement under this Agreement. 6. Termination for Breach. The Corporation and the Authority may both terminate this Agreement upon a material breach by the other party of any term or condition of this Agreement if such breach continues for an unreasonable period of time, but in any event if the breach is continued for a period of sixty(60)days after receipt by the breaching party from the non-breaching party of a written notice of such breach. Notwithstanding any provision contained herein to the contrary,in no event shall the Corporation or the Authority terminate this Agreement if the party at fault proceeds,after receiving said notice,with due diligence to correct or rectify the material breach regardless of the duration of such breach. Termination of this Agreement shall not,however,be the sole remedy of either party and any exercise of this right to terminate shall not preclude the pursuit of any other remedy available in law or equity to the non-breaching party. • 7. Early Termination. At any time and for any reason, the Corporation and the Authority may each terminate this Agreement upon giving the other party at least one hundred eighty days(180)prior written notice of such termination. Written notice shall state the specific date upon which such termination shall be effective. 8. Force Maleure. Notwithstanding anything contained herein to the contrary, it is agreed that in the event and to the extent that fire,flood,earthquake,natural catastrophe,explosion, accident,war,illegality, act of God,or any other cause beyond the control of either party hereto,or strikes or labor troubles (whether or not within the power of the party affected to settle the same) prevents or delays performance by either party to this Agreement, such party shall be relieved of the consequences thereof without liability,so long as and to the extent that performance is prevented by such cause;provided,however,that such party shall exercise due diligence in its efforts to resume performance within a reasonable period of time. 9. Cooperation of the Parties. To facilitate the Authority's performance under this Agreement,the Corporation agrees to provide to the Authority its full cooperation and assistance and that of its officers, agents and employees. 10. Controlling Law and Enforceability. This Agreement shall be construed in accordance with the laws ofthe State of Colorado. In addition,the parties hereto recognize that there are legal constraints imposed upon the Authority by the constitutions,statutes,rules and regulations 6 of the State of Colorado and the United States and imposed upon it by the Fort Collins City Charter and Code, and that, subject to such constraints, the parties intend to carry out the terms and conditions of this Agreement. Notwithstanding any other provision of this Agreement to the contrary,in no event shall either party hereto exercise any power or take any action which shall be prohibited by applicable law. Whenever possible, each provision of this Agreement shall be interpreted in such a manner so as to be effective and valid under applicable law. 11. Indemnity. The Corporation agrees to indemnify and hold harmless the Authority, and its officers and employees, for and against all liabilities,claims and demands which arise from any negligent act or omission of the Corporation,or of its officers and employees. In addition,the Corporation agrees to indemnify the Authority and its officers and employees, from all costs and expenses related to defending such liabilities, claims and demands, including but not limited to, litigation costs and reasonable attorneys fees whether or not such liabilities,claims and demands are groundless, frivolous, false or fraudulent. The Authority agrees, to the extent permitted by law, to indemnify and hold harmless the Corporation,and its officers and employees,for and against all liabilities,claims and demands which arise from any negligent act or omission of the Authority,or of its officers and employees,provided that such acts or omissions of the Authority's officer and employees occur during the performance of their duties,within the scope of their employment, and were not wilful and wanton. In addition, the Authority agrees to indemnify the Corporation and its officers and employees,from all costs and expenses related to defending such liabilities, claims and demands including, but not limited to, litigation costs and reasonable attorneys fees whether or not such liabilities,claims and demands are groundless,frivolous,false or fraudulent. However,the Authority and the Corporation acknowledge and agree that all such liabilities,claims and demands shall be subject to any notice requirements, -- defenses,immunities,and limitations to liability the Authority and its officers and employees may have under the Colorado Governmental Immunity Act(C.R.S.Section 24-10-101,et seq)and to any other defenses,immunities and limitations to liability available to the Authority,and its officers and employees,under the law. 12. Assignment. This Agreement shall not be assigned by either of the parties hereto without the prior written consent of the other party. 13. Default. Each and every term of this Agreement shall be deemed to be a material element of the Agreement. In the event that either party shall fail to perform according to any term of this Agreement,such party may be declared in default. In the event that a party has been declared in default hereof,such defaulting party shall be given written notice specifying such default and shall be allowed a period of thirty(30)days in which to cure said default. In the event the default remains uncorrected within such notice period,the party declaring the default may elect to:(a)terminate this Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or(c) avail itself of any other remedy at law,in equity or that is permitted under this Agreement. 14. Notices. Other than invoice billings which may be sent by first class mail,whenever written notice is required or permitted to be given hereunder by one party to the other, it shall be 7 given effect by hand delivery or by mailing the same by certified mail,return receipt requested,to the party to whom given. Notices shall be addressed as follows: If to the Corporation: With a copy to: If to the Authority: With a copy to: Either party hereto may at any time designate a different person or address for the purpose of receiving notice by so informing the other party in writing. Notice by certified mail shall be deemed effective upon actual receipt thereof or three(3)days after being deposited in the United States mail, whichever first occurs. 15. Waiver. No waiver by either of the parties hereto of any of the terms and conditions of this Agreement shall be deemed to be or shall be construed as a waiver of any other term or condition of this Agreement, nor shall a waiver of any breach of this Agreement be deemed to constitute a waiver of any subsequent breach of the same provision of this Agreement. 16. Construction. This Agreement shall be construed according to its fair meaning and as if it was prepared by both of the parties hereto and shall be deemed to be and contain the entire agreement between the parties hereto. There shall be deemed to be no other terms, conditions, promises, understandings, statements or representations, expressed or implied, concerning this Agreement,unless set forth in writing and signed by both of the parties. Paragraph headings of this Agreement are for convenience of reference only and shall in no way define, limit or prescribe the scope of intent of any provision of this Agreement. 17. Severability. If anyprovision ofthis Agreement,orthe application of suchprovision to any person,entity or circumstance,shall be held invalid,the remainder of this Agreement,or the application of such provision to persons, entities or circumstances other than those in which it was held invalid, shall not be affected. 18. Relationship of Parties. The parties hereto enter into this Agreement as separate and independent entities and each shall maintain such status throughout the term of this Agreement. 19. Attorneys Fees. In the event that either of the parties hereto shall default in any of their covenants or obligations contained herein so as to require the other party to this Agreement not in default to commence legal or equitable action against the defaulting party, the defaulting party 8 expressly agrees to pay all of the non-defaulting party's reasonable expenses in said litigation, including a reasonable sum for attorney's fees. 20. No Third Party Beneficiaries. This Agreement is made for the sole and exclusive benefit of the Corporation and the Authority and is not made for the benefit of any third party. 21 Binding Effect. This Agreement shall be bind upon and inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF,the parties have executed this Agreement the date and year first above written. FORT COLLINS HOUSING CORPORATION, a Colorado non-profit corporation By: President ATTEST: Secretary 9 FORT COLLINS HOUSING AUTHORITY, a Colorado quasi-municipal corporation By: Ray Martinez, Chairperson ATTEST: By: John F. Fischbach, Secretary 10