HomeMy WebLinkAbout20143993.tiff PROPERTY MANAGEMENT AGREEMENT
THIS PROPERTY MANAGEMENT AGREEMENT("Agreement") is made and entered into
as of December 29,2014 by and between Weld County,Colorado("Owner"),and Cassidy Turley Commercial Real
Estate Services, a Missouri Corporation ("Manager" also referred to herein as "Contract Professional" and
"Contractor").
RECITALS:
WHEREAS, Owner owns certain real property with improvements thereon located at 822 Its Street,
Greeley,CO 80631 ("Property").
WHEREAS,Owner desires to employ Manager as the exclusive property manager for the Property during
the term of this Agreement, and Manager desires to accept such responsibilities and duties, in accordance with the
terms of this Agreement.
NOW,THEREFORE, in consideration of the mutual covenants herein contained,the Owner and Manager
agree as follows:
ARTICLE I
TERM
1.1 Term. The initial term of this Agreement shall begin at 12:00 a.m. (midnight) on
December 29, 2014 ("Commencement Date") and end at 11:59 p.m. on December 28, 2015 ("Initial
Term"), unless sooner terminated in accordance with this Agreement. Upon the expiration of the Initial
Term, this Agreement shall automatically be renewed and extended for successive one (1)year terms, at
the rate of compensation set forth in ARTICLE IX. Both of the parties to this Agreement understand and
agree that the laws of the State of Colorado prohibit County from entering into Agreements which
financially bind the County for periods longer than one year. Therefore, within the thirty (30) days
preceding the anniversary date of this Agreement,County shall notify Contract Professional if it wishes to
renew this Contract.
ARTICLE II
APPOINTMENT AND RESPONSIBILITIES OF MANAGER
2.1 Appointment. Owner hereby appoints and engages Manager as the exclusive property
manager for the Property, and Manager hereby accepts such appointment and engagement. Manager, on
behalf of Owner, shall implement, or cause to be implemented,the decisions of Owner and shall conduct
the ordinary and usual business affairs of Owner for the Property as provided for in this Agreement.
2.2 Personnel. Manager shall hire, supervise, and discharge all employees and personnel
necessary for the management of the Property. All matters pertaining to the selection, direction,
employment, supervision, compensation, promotion and discharge of such personnel are the sole
responsibility of Manager. All such personnel shall be the employees or independent contractors of
Manager(or an affiliate of Manager)not of Owner.
2.3 Schedule of Personnel and Reimbursement. Manager shall provide to Owner a
schedule of personnel ("Property Personnel") in substantially the format of Exhibit A, attached hereto
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and made a part hereof, to be subject to Manager's exclusive control and employed in the management of
the Property. Owner acknowledges that, from time to time, it may be necessary or appropriate for
employees whose compensation is reimbursed by Owner pursuant to this Agreement to engage in activities
generally related to Manager's business but not directly related to the services performed at the Property
pursuant to this Agreement, including but not limited to personal development, personnel management,
professional management training,and business development,and Owner consents to such activities.
2.4 Books and Records. Manager shall maintain at its principal office, or at the Property,
complete and separate books, records, and documents relating to the management of the Property,
including, without limitation, all contracts, leases, amendments, extensions and other agreements relating
to contracts and leases, files, correspondence with tenants and prospective tenants, computations of rental
adjustments, maintenance and preventive maintenance programs, schedules and logs, tenant finish,
construction and capital improvement records, inventories of personal property and equipment,
correspondence with vendors,job descriptions, correspondence with federal, state,county, and municipal
authorities, brochures, and accounts held or maintained by Manager (collectively, "Books and
Records"). Owner shall have the right to examine, audit, and make copies of Books and Records, which
may be available at Manager's principal office, at the Property, or stored electronically, as the case may
be, upon reasonable notice and during normal business hours, at Owner's sole cost. Upon giving Owner
thirty (30) days prior written notice, Manager, at its election, may electronically store invoices, records,
and statements, and may bill and pay bills electronically; in such event, Manager will not be required to
maintain and/or store "hardcopies" of the foregoing information stored electronically. To the extent
required by law, the Contractor agrees that any duly authorized representative of County, including the
County Auditor,shall have access to and the right to examine and audit any books,documents, papers and
records of Contractor, involving all matters and/or transactions related to this Agreement.The Contractor
agrees to maintain these documents for three years from the date of the last payment received.
2.5 Leases and Agreements Affecting Property. Consistent with the duties conferred on the
Manager herein, Manager shall, as reasonably practicable, at Owner's expense: (a) perform all of
Owner's obligations as landlord under leases for premises at the Property ("Leases") and Owner's '
obligations as a party to all other agreements (provided Manager has received a copy) directly affecting
the management of the Property; (b) enforce all tenant obligations under Leases; and (c) enforce all
obligations of other third parties under other agreements(provided Manager has received a copy) directly
affecting the management of the Property.
2.6 Collection. Manager shall exercise its best efforts to collect rents, revenue and other
charges payable by tenants under the terms of Leases or by other third parties pursuant to other
agreements directly affecting the management of the Property. Manager is authorized to request,
demand, collect and receive all such rent, revenues and other charges payable, but Manager does not
guarantee the payment or collection of any such rent, revenues or other charges. Manager may, with the
prior written approval of Owner, in the name of and at the expense of Owner, retain legal counsel to
institute legal actions or proceedings for: (a)the collection of rent or other charges payable by tenants;(b)
the lawful dispossession of tenants or other persons from the Property; and (c) the enforcement of other
provisions of the Leases or agreements. Manager shall not, without prior written approval from Owner,
terminate any lease, lock out a tenant, or institute legal actions or proceedings. Except as otherwise
provided in this Agreement, all funds collected by Manager shall be deposited into and held in the
Operating Account established in accordance with ARTICLE VI, below, until such funds are required to
be disbursed pursuant to the terms of this Agreement. Notwithstanding anything to the contrary herein, if
Manager is required to participate in litigation regarding the Property (excluding litigation caused by the
negligent acts of Manager), such as answering discovery, assembling documents, attending depositions,
appearing in Court, then Manager shall be paid by Owner at the rate of$200.00 per hour for any time
expended regarding said litigation.
2.7 Contracts and Supplies.
(a) Manager shall enter into contracts with independent contractors, suppliers, and
vendors on behalf of Owner, which contracts are required in the ordinary business of managing and
operating the Property, and which contracts may include, without limitation, contracts for electricity, gas,
water, telephone, cleaning, elevator maintenance and repair, fire monitoring, landscaping, security,
maintenance, pest control and other services as set forth in the Approved Budget (as defined below).
Owner agrees that Manager will utilize Manager's standard service contracts unless Owner, or an
independent contractor, supplier, or vendor, require Manager to utilize another contract form. To the
extent agreed to by the independent contractor, supplier, or vendor, all such contracts shall: (i) be signed
by Manager as agent for Owner; (ii) include a provision for cancellation thereof by Owner or Manager
upon not less than thirty (30) days' prior written notice, without penalty or premium, unless such
provision is waived by Owner; and (iii) require that all contractors provide written evidence of the
insurance set forth below in a format required by Manager unless waived by Owner. Notwithstanding the
above, if any such service contract provides for an aggregate cost in excess of$5,000,or is not terminable
at any time upon not more than thirty (30) days' prior written notice, Manager shall submit such contract
to Owner for prior written approval prior to Manager's execution or renewal of such contract, unless such
contract was specifically identified in the Approved Budget or an emergency exists. Owner may ask
Manager to bid service contracts every three years(or annually)to as many as three providers.
(b) Manager shall coordinate the purchase of all supplies, tools, and equipment that
are necessary and proper to manage and operate the Property and to make all expenditures for such
supplies, tools, and equipment in accordance with the Approved Budget. Manager shall use
commercially reasonable efforts to secure for the benefit of Owner any discount, rebate, commission, or
other consideration available in connection with any purchase or agreement entered into hereunder.
(c) Manager shall not enter into any contract,agreement or other arrangement for the
furnishing of goods or services to Owner or to the Property with any officer, employee, principal,
shareholder or affiliate of Manager, unless such relationship has first been disclosed to and approved by
Owner. An entity shall be deemed an "affiliate" of Manager if it controls, is controlled by, or is under
common control with Manager or any officer, employee, principal or shareholder of Manager holds a
position of similar authority with such entity.
2.8 Repairs and Maintenance.
(a) Manager shall, at Owner's expense, perform or cause to be performed all
necessary or desirable repairs, maintenance, cleaning, painting and decorating, alterations, replacements
and improvements in and to the Property as are customarily made in connection with the operation of
properties of the kind, size, and quality of the Property, including the administration of a preventative
maintenance program for all mechanical, electrical and plumbing systems and equipment; provided,
however, in the absence of Owner's approval, Manager shall not make alterations, additions or
improvements not within the Approved Budget. Notwithstanding the foregoing, Manager may, without
Owner's prior approval and without regard to the Approved Budget, make emergency repairs: (i)
involving conditions presenting a danger to life or property; (ii) that are immediately necessary for the
preservation or the safety of the Property or the tenants of the Property; or(iii) that are required to avoid
the suspension of any necessary service to the Property; provided, however, that Manager shall give
written notice to Owner of any such emergency repairs for which prior approval is not required as soon as
practicable following the date such emergency repair is made.
(b) Manager does not assume and is given no responsibility for the Property's
compliance with building codes, statutes, ordinances, laws, or regulations (including environmental
protection laws), except to notify Owner promptly of any complaints, warnings, notices, or summonses
received by Manager relating to such matters. Owner represents that to the best of Owner's knowledge
the Property complies with all applicable legal requirements. Owner authorizes Manager to disclose the
ownership of the Property to any governmental officials having authority to enforce legal requirements
with respect to the Property.
2.9 Capital and Tenant Improvements.
(a) In accordance with the Approved Budget, or upon written request of Owner,
Manager shall, at Owner's expense, make, or cause to be made, all required capital improvements,
replacements or repairs to the Property; provided, however, that if Manager is required to perform
extraordinary services in connection with such improvements, repairs, or replacements that exceed
services customarily rendered by managing agents of properties similar to the Property, Manager shall
notify Owner of the nature of the extraordinary services and Manager shall be paid the Construction
Management Fee set forth below in ARTICLE IX. Notwithstanding any of the foregoing, the parties
agree that Manager has no right of exclusivity with regard to the provision of construction management
services, and Owner may hire any third party to provide such services, in which case Manager agrees to
coordinate and cooperate with such third party. If any tenant in the Property requests services in addition
to those required by the terms of such tenant's lease,Manager may(in Manager's sole discretion)perform
the requested services. Manager may, in Manager's sole discretion, enter into an agreement with any
such tenant pursuant to which Manager shall provide such services and the charges for such services will
be collected by Manager separately from the payments due under the said tenant's lease, and Manager
shall retain such payments with no monies owed to Owner regarding the same.
(b) With respect to the purchase and installation of any capital item or the making of
any capital repair, Manager shall recommend that Owner purchase such items or make such repairs in the
Approved Budget submitted by Manager to Owner pursuant to Section 5.1 and at such other times as
Manager determines such purchase or repair is necessary or desirable. Owner may arrange to purchase
and install such capital item or make such capital repair itself or may authorize Manager to do so,subject
to the terms of this Agreement.
(c) Unless Owner specifically waives such requirements, all new and replacement
capital items and all capital repairs, in each case in excess of$25,000, shall be awarded on the basis of
competitive bidding, solicited in the following manner: (i) a minimum of two (2) written bids will be
obtained for each purchase or repair in excess of$25,000 and a minimum of three(3) written bids will be
obtained for each purchase or repair in excess of $50,000; (ii) each bid shall be solicited on a form
prepared by Manager and approved by Owner to ensure uniformity in bid quotes; (iii) Manager shall
provide Owner with bid responses accompanied by Manager's recommendations regarding the
recommended bid; and (iv) Owner shall be free to accept or reject any and all bids. Owner will
communicate to Manager in writing its acceptance or rejection of bids within a reasonable amount of
time. Owner may pay for capital expenses from its own resources or may authorize payment by Manager
out of the Operating Account.
(d) Any capital or facility improvement requested by tenant for their leased space
must gain Owner approval and by paid for by tenant.
2.10 Payment of Bills Related to Property. Manager agrees to pay all bills, by a payment
method of Manager's discretion, which are related to the Property and received by Manager, promptly
and when due and in such manner as to attempt to prevent any liens or judgments from being filed or
perfected against the Owner and the Property as hereinafter provided, to the extent that funds are
available from Operating Account(as defined below),or from other funds provided by Owner to Manager
for the management, operation, and repair of the Property and the systems therein, provided that the
invoices are received in sufficient time so as to ensure prompt payment.
2.11 Compliance with Laws. Manager shall comply, or cause Owner to comply, with all
Laws reasonably known to Manager, and to the extent commercially reasonable, at Owner's expense,
with all laws, ordinances, rules, regulations and requirements of all Federal, state, and municipal
governments, or any other body exercising functions similar to those of any of the foregoing that may be
applicable to the Property and its operation (collectively"Laws").
2.12 Compliance with Property Documents. Manager shall familiarize itself with all
Property Documents (herein defined) directly affecting the management of the Property and provided by
Owner to Manager. "Property Documents" shall include all leases, recorded covenants, conditions and
restrictions, restrictive agreements and other similar documents directly affecting the management of the
Property, all insurance requirements and any other document provided by Owner to Manager relating to
the Property. Manager shall use commercially reasonable efforts to comply with all Property Documents
and use commercially reasonable efforts to avoid causing Owner or the Property to be in violation of the
Property Documents.
2.13 License. Manager shall obtain and maintain any licenses, permits or other govemmental
consents required in order for Manager to operate its business and perform its duties hereunder at
Manager's sole cost and expense, but all licenses, permits or other governmental consents required in
connection with the Property shall be at Owner's expense.
2.14 Notices of Default and Violations. Manager shall handle complaints and requests from
tenants at the Property and shall notify Owner of any major complaint or defaults related to the Leases.
Manager shall also notify (which notice shall be accompanied by copies of any supporting
documentation) of any notice of violation of any Laws received by Manager, any defect in or repair
requirement of the Property known to Manager, any notice received by Manager concerning the use or
release of hazardous or toxic materials at the Property, and any notice received by Manager alleging a
default by Owner or Manager under the Leases, a service, supply or labor contract, a ground lease, a
mortgage or any other agreement directly affecting the management of the Property.
2.15 Notices of Claim of Injury or Damage. Manager shall report to Owner all accidents,
claims for damages relating to the ownership, operation, or maintenance of the Property, and any damage
or destruction to the Property, and shall prepare for approval by Owner all reports required by an
insurance company in connection with any such accident, claim, damage or destruction. Manager must
obtain approval of Owner prior to the settling of any and all claims.
2.16 Leasing. Manager shall not be entitled to any commission or other compensation in
connection with the leasing of the Property, including, without limitation, lease extensions or expansions,
except as may be specifically set forth in a separate written agreement between Owner and Manager.
Manager agrees to assist and cooperate with any leasing agent employed by Owner to lease premises
located at the Property. Notwithstanding anything herein to the contrary, if Owner requires Manager to
provide assistance in the due diligence process during a potential sale or refinance of the Property,
Manager shall be entitled to an additional fee equal to the previous month's Management Fee as outlined
in Article IX for each such potential or actual sale or refinance.
2.17 Hazardous Materials.
Owner represents to its best knowledge and information that there are no Hazardous Materials in, on, or
about the Property. Manager agrees to notify Owner if it becomes aware of any violation of any laws
regarding hazardous materials, hazardous substance, any pollutants, mold, or contaminants as such are
defined in federal, state, or local law ("Hazardous Materials"). Owner acknowledges that Manager is
not an environmental engineer or consultant and does not have any special knowledge of any Laws
regarding Hazardous Materials; that Manager's duties under this Section 2.17 are limited to the quality of
reasonable commercial care and diligence customarily applied to property managers; and that Manager
shall have no liability with respect to the presence of Hazardous Materials in or about the Property or for
the Property's compliance with Hazardous Materials laws. Therefore, with respect to any environmental
conditions or issues pertaining to Hazardous Materials at the Property, Owner agrees that Manager and
Manager's officers, directors, members, partners, shareholders, employees, and agents are not and shall
not: (i) be deemed "operators" of the Property or of any tenant operations therein or thereon; or (ii)
"generators" or "transporters" (or have any comparable legal status) for purposes of any Laws regarding
Hazardous Materials. Furthermore, unless agreed to in a separate written document signed by Owner and
Manager, Manager shall not be responsible for the storage, transportation, disposal, abatement, cleanup,
or removal of Hazardous Materials on, in or at the Property. Owner agrees to notify Manager if Owner
becomes aware of the presence of any Hazardous Materials on, in, or at the Property, and Owner and
Manager shall cooperate in creating and implementing a response to the presence of such Hazardous
Materials, including how and when to notify existing and potential tenants. In the event that Manager is
required by any Laws to notify existing and potential tenants of the presence of such Hazardous
Materials, Owner authorizes Manager to disclose such information to such parties. In the event that such
disclosure is not required by any Laws, Manager shall not disclose such information without the prior
approval of Owner.
2.18 Duty of Care. Manager acknowledges that it has the duty to use reasonable care, in the
performance of its work hereunder for the benefit of Owner. In this regard, notwithstanding anything to
the contrary herein, Owner acknowledges that no obligation of Manager set forth in this Agreement shall
make Manager liable for any damages suffered by Owner as a result of any breach or other failure to
perform committed by any architect, contractor, construction manager or other party engaged to work at
the Property or provide services or equipment related to the Property.
ARTICLE III
OWNER'S EXPENSES
3.1 Expenses. All reasonable and associated expenses (including IT and the cost of all
accounting and book keeping software including purchasing, licensing, and updating) incurred by
Manager in the performance of its obligations under this Agreement that are described as reimbursable in
this Agreement shall be reimbursed by Owner as direct building operating expenses. Manager shall have
the right to survey the IT structure/systems of Owner and upgrade the same based on performance
minimums, all at Owner's expense, so that Manager can provide the reports/services as required by this
Agreement. All maintenance and operating expenses, including expenses of repairs, replacements, public
services, utilities, taxes, sewer, water, license and inspection fees including supplemental preventive
maintenance and service software, insurance, legal,accounting, lease administration license fees, copying
costs, messenger and overnight delivery charges, telephone and cell phone charges, uniform costs,
signage costs,costs of supplies, and such other similar costs and charges, reasonably incurred by Manager
in connection with the management and operation of the Property, and annual audit expenses all
constitute expenses to be paid by Manager, on behalf of Owner and at Owner's expense, in accordance
with ARTICLE VI, from the Operating Account (herein defined). All such expenses and reimbursables
shall be paid by Manager with funds drawn from the Operating Account.
3.2 Employees' Salaries. Owner agrees to reimburse Manager for the gross cost of the
salaries, wages and other compensation of the Property Personnel specifically identified on Exhibit A
(attached hereto) at such compensation levels as are provided for on Exhibit A ("Employees' Salaries"),
and such reimbursement shall include, but not limited to, associated payroll taxes, insurance, workers'
compensation, life, disability, medical and health insurance, pension plans, retirement plans, accrued
vacation and customary severance pay, if any, due to such employees upon termination and any and all
costs related to any claims by terminated employees, including, but not limited to, reasonable legal fees,
social security taxes, F.I.C.A., unemployment and other employment taxes, and other benefits afforded
Manager's employees. Upon submission to Owner of Manager's invoice for the Employees' Salaries,
Manager shall be entitled to immediately withdraw the amounts invoiced from the Operating Account
through an ACH Electronic Funds Transfer or other such electronic payment method. Employees'
Salaries shall be subject to annual increases and bonuses that are approved by Owner in the Approved
Budget, which is no event shall be less than 4% per year. the percentage Owner grants to Owner's own
employees. Owner shall not owe Manager for any accrued vacation liability of Manager's employees as
of initial start date of this Agreement.
3.3 Management Office. If Manager deems it necessary, Owner shall provide adequate
space at the Property for a management office. Owner shall pay all expenses related to such office,
including, but not limited to, furnishings, equipment, computers, postage and office supplies, electricity,
Internet,connectivity, and other utilities, and telephone.
ARTICLE IV
MANAGER'S EXPENSES
4.1 Expenses. Manager shall pay all expenses that are expressly payable by Manager or not
reimbursable hereunder, including, without limitation, the following: (a)cost of the insurance required to
be carried by Manager pursuant to Section 7.2(f); (b) cost of gross salary and wages, payroll taxes,
insurance, workers' compensation, and other benefits of Manager's personnel not identified in Exhibit A;
(c)training expenses,unless approved by Owner; and (d)employment fees, unless approved by Owner.
4.2 Advances. Manager shall not be obligated to make any advance to or for the account of
Owner, or to pay any sum with respect to the operation or maintenance of the Property, from Manager's
own funds.
ARTICLE V
BUDGETS AND REPORTS
5.1 Annual Budget. Within sixty (60) days following the Commencement Date, Manager
shall prepare and provide for Owner's written or electronic approval a proposed annual budget covering
the period from the Commencement Date through the end of the then-current calendar year. Thereafter,
at least sixty (60) days prior to the beginning of each calendar year, Manager shall prepare and submit to
Owner for Owner's written or electronic approval a proposed annual budget for the next year of operation
of the Property. Manager shall submit the annual budget in a form reasonably acceptable to Owner. The
annual budget submitted by Manager and approved (written or electronic) by Owner shall be referred to
herein as the "Approved Budget." No changes shall be made to the Approved Budget or any line item
therein without Owner's prior written approval. If the proposed budget submitted by Manager has not
been approved by Owner by the beginning of the calendar year, Manager shall operate the Property in
accordance with the last Approved Budget, increased by five percent (5%) until otherwise notified by
Owner. Manager shall not be deemed to have made any guarantee, warranty or representation whatsoever
in connection with the Approved Budget or with respect to the performance of the Property, and Owner
acknowledges that the Approved Budget and any other projections previously or hereafter prepared by
Manager are intended only to be reasonable estimates and that, notwithstanding Manager's best efforts to
operate the Property in accordance with the Approved Budget, actual results may vary due to
unanticipated events and circumstances occurring after the preparation of the Approved Budget or other
projection.
5.2 Reports. On or before the 20" of each month, Manager shall prepare and submit to
Owner the reports which shall include balance sheet, general ledger, income statement with variance
notes, rent roll, aged delinquencies, cash receipts, receivables ledger, check register, bank reconciliation,
and bank statement which are industry standard operating reports for commercial real estate properties or
other reports as required by Owner. Non-property specific reporting services would necessitate additional
charges to accommodate this added work. Such reports could include property inspection reports, status
of capital improvement work, repair and maintenance programs, litigation reports, insurance reports and
other information reasonably required by Owner. The format of all such reports shall be subject to the
reasonable approval of Owner. Notwithstanding anything contained to the contrary, should Owner
require Manager to make any substantial changes to the reporting requirements or the accounting software
that is used by Manager, then Owner and Manager shall mutually agree upon an appropriate fee for this
added scope of work.
ARTICLE VI
BANK ACCOUNTS AND DISBURSEMENT OF FUNDS
6.1 Operating Accounts. All rents and other revenue received from the operation of the
Property by Manager from any source shall be deposited at such bank as designated by Owner (in the
absence of which, such account shall be opened at an institution at Manager's discretion,) and in a
separate, segregated operating account ("Operating Account") that has been established by Manager.
The Operating Account shall be in the Owner's name (with the Owner's Federal Tax Identification
Number) utilized by Manager for the payment of all expenses authorized hereunder to be paid by
Manager. A separate payment clearing account ("Clearing Account") may be opened, at Manager's
discretion, under the Cassidy Turley Fiduciary's Tax Identification Number, as agent to the Owner, in
order to facilitate electronic payment disbursements. Owner shall maintain in the Operating Account
sufficient funds for the payment of the various costs and expenses associated with the Property, and to
cover the checks drawn on such account. If Owner fails to fund the Operating Account as provided in this
Section 6.1, then Manager shall be excused from performing the services or any other duties under this
Agreement to the extent of such failure.
6.2 Security Deposit Account. Notwithstanding the foregoing, if a separate, segregated
security deposit account ("Security Deposit Account") is required by Law or the terms of any of the
Leases or mortgages, all security deposits received by Manager shall be deposited into the Security
Deposit Account. No interest shall be paid to any tenant with respect to any security deposit unless
required by Law or the terms of the Leases, and then only to the extent so required. All funds in the
Security Deposit Account shall be deposited, maintained, paid out as provided herein and in compliance
with all applicable Laws and in accordance with the terms of any applicable Leases.
6.3 Maintenance of Accounts. Manager shall deposit all monies received from the
operation of the Property in the Operating Account or the Security Deposit Account (collectively, the
"Accounts"), as required herein, and shall not commingle such monies with funds of Manager or any
other party or project. Any interest earned on the Account shall be Owner's. All funds deposited in the
Accounts are the property of Owner held in trust for Owner by Manager. Unless otherwise prohibited by
law, the Accounts shall be subject to the control of both Manager and Owner only, both of whom shall
have access to the funds in the accounts and be permitted to draw checks thereon. Notwithstanding any
provision in this Agreement to the contrary, Manager shall have no liability for the loss of Owner's funds
contained in any bank accounts relating to the Property, including, without limitation, the Accounts, due
to the insolvency of the bank or financial institution in which the bank accounts are maintained (whether
or not the sums in such bank accounts exceed the maximum amount of federal or other deposit insurance)
or due to the seizure thereof, by right of setoff or otherwise, by such bank or financial institution, or any
creditor of Owner in connection with claims of such parties against Owner.
6.4 Shortfall. If the funds collected by Manager from the operation of the Property are not
sufficient to pay the expenses or make the reimbursements required herein, Manager shall submit to
Owner a statement showing such shortfall and identifying the bills and charges requiring payment, and
Owner shall advance funds sufficient to pay the same to the Operating Account.
ARTICLE VII
INSURANCE AND INDEMNIFICATION
7.1 Owner Insurance. Owner,at its expense,shall maintain and keep in force: (a) "all risk"
property insurance insuring the Property; and (b) a commercial general liability insurance policy written
on an occurrence-form basis, with limits of not less than $2,000,000 per occurrence and $3,000,000
aggregate, with respect to the Property and its operations. Limits may be met through the use of an
Umbrella policy. Owner's insurance shall include Manager as an additional insured with respect to work
performed within the scope of Manager's duties hereunder, and, to the extent permitted by the insurer,
such policy shall not be cancelled without at least thirty (30) days' prior written notice to Manager.
Owner's insurance shall be primary with respect to bodily injury, personal injury and property damage
claims covered by both Owner's and Manager's commercial general liability insurance policies carried
pursuant to Section 7.1 and Section 7.2. Owner shall furnish, or cause to be furnished to Manager,
certificates of insurance and endorsements evidencing the foregoing insurance.
7.2 Manager Insurance. Manager, at its expense, shall maintain and keep in force, the
following insurance in the following minimum amounts:
(a) Commercial general liability insurance policy written on an occurrence form
basis with limits of not less than $1,000,000 per occurrence and a $2,000,000 aggregate. Such insurance
shall include Owner as an additional insured when required by Owner;
(b) Workers' compensation insurance covering all employees of Manager employed
on or about the Property, in an amount sufficient to provide the statutory benefits as required by the laws
of the jurisdiction in which the Property is located;
(c) Employer's Liability: In jurisdictions where employer's liability insurance is
required: $500,000 or such other higher limits imposed in accordance with the requirement of the Laws of
the jurisdictions where the Property is located;
(d) Errors and omissions coverage with a per claim limit of liability of not less than
$1,000,000; and
(e) Manager's on-site employees handling funds of Owner shall be insured by an
employee fidelity insurance policy. Such policy shall provide coverage for employee dishonesty and
criminal acts of no less than$1,000,000.
(t) Upon request, Manager shall furnish, or cause to be furnished to Owner,
certificates of insurance and endorsements evidencing the foregoing insurance. To the extent permitted
by the insurer, Manager's errors and omissions and commercial general liability policies shall not be
cancelled without at least thirty(30)days' prior written notice to Owner.
7.3 Contractor's Insurance. Unless the Owner agrees otherwise, then Manager shall
require that all contractors performing work at the Property shall maintain insurance coverage at such
contractors' expense. At a minimum, such insurance shall include the following:
(a) Workers' compensation and all other insurance pertaining to employees as
required by governmental requirements in an amount sufficient to provide the statutory benefits as
required by the Laws of the jurisdiction in which the Property is located;
(b) Primary commercial general liability and automobile liability insurance covering
owned, hired and non-owned vehicles with liability limits of not less than $1,000,000, coverage for each
occurrence or in such greater amount as Owner may direct, and an excess liability policy of$2,000,000.
The insurance referred to in this Section 7.3 shall, without additional cost to Owner or Manager, include
Owner and Manager as an additional insured. Higher coverage may be required if the work to be
performed is sufficiently hazardous, Manager shall obtain and keep on file for each such contractor a
certificate of insurance that shows that the contractor is so insured; and
(c) Such additional coverage as Owner may reasonably direct.
(d) Each contractor's respective insurance carriers shall waive all rights of subrogation
against Owner and Manager with respect to losses payable under such policies. Manager shall obtain
insurance certificates from each contractor as required under Section 7.3.
7.4 Certificates of Insurance. If any contract or tenant Leases requires that such party
maintain any insurance coverage, Manager shall obtain insurance certificates annually, or more frequently
as required pursuant to the applicable Leases or contracts, from each such party and review the
certificates for compliance with such Leases or contract terms.
73 Cooperation with Insurance Carriers. Manager shall cooperate with and provide
reasonable access to the Property to agents of any and all insurance companies who may, from time to
time,be involved with the issuance of insurance policies or with inspections of the Property in connection
with insurance policies then in force. Manager agrees to use all commercially reasonable efforts to
comply with any and all requirements of such insurance companies or their agents, and agrees to exercise
due care not to use the Property or permit the same to be used for any purpose which would make void or
voidable any such insurance policies, and shall not keep or knowingly allow to be kept on the Property
any material,machinery,equipment, substance or other things which may make void or voidable any such
insurance policies.
7.6 Claims. Manager shall investigate and report to the Owner and the applicable insurer all
known claims,actions, or proceedings relating to the ownership,operation, and maintenance of the Property
and any damage or destruction to the Property of which Manager becomes aware.
7.7 Compliance With Insurance Policies. Manager shall use commercially reasonable efforts
to comply with any insurance policy held by Owner and of which Manager has received any written notice
or record with respect to the Property so as to avoid any loss insured thereunder from being uncollectible.
7.8 Mutual Waivers. Owner, on behalf of itself and its insurers, waives its rights of recovery
against Manager or any person who holds a direct or indirect ownership interest in Manager and their
respective officers, directors, members, partners, shareholders, employees, agents, and the successors and
assigns of each of them, for damages sustained by Owner as a result of any damage to the Property or
damage to property of others or bodily injury or death arising from any risk or peril to the extent covered or
coverable by any insurance policy actually carried by or required to be carried by Owner pursuant to the
terms of this Agreement, and Owner agrees that no party shall have any such right of recovery by way of
subrogation or assignment. Manager, on behalf of itself and its insurers, waives its rights of recovery
against Owner or any person who holds a direct or indirect ownership interest in Owner and their respective
officers, directors, members, partners, shareholders, employees, agents, and the successors and assigns of
each of them, for damages sustained by Manager as a result of any damage to its property or damage to
property of others or bodily injury or death arising from any risk or peril to the extent covered or coverable
by any insurance policy actually carried by or required to be carried by Manager pursuant to the terms of
this Agreement, and Manager agrees that no party shall have any such right of recovery by way of
subrogation or assignment. Owner and Manager shall each notify their respective insurance carriers of the
mutual waivers herein contained and shall cause their respective insurance policies required hereunder to be
endorsed, if necessary, to prevent any invalidation of coverage as a result of the mutual waivers herein
contained. Owner and Manager hereby waive all claims for incidental, consequential and punitive
damages related to the Agreement.
7.9 Indemnification.
(a) Indemnity by Owner. To the extent permitted by law, Owner shall indemnify,
defend, hold and save Manager, it officers, directors, members, partners, shareholders, employees and the
successors and assigns of each of them (each, a "Manager Indemnified Party") free and harmless from
and against any and all claims, demands, causes of action, suits, liabilities, damages, losses,judgments,
costs and expenses of any kind or nature whatsoever (including reasonable attorneys' fees and costs),
which Manager or any Manager Indemnified Party may suffer or incur, in connection with the Property
or the performance by Manager of any of its duties and obligations under this Agreement.
(b) Indemnity by Manager. To the extent permitted by law, Manager shall
indemnify, defend, hold and save Owner, its officers, directors, members, partners, shareholders,
employees and the successors and assigns of each of them (each, a "Owner Indemnified Party") free and
harmless from and against any and all claims, demands, causes of action, suits, liabilities, damages,
losses,judgments, costs and expenses of any kind or nature whatsoever (including reasonable attorneys'
fees and costs),which Owner or any Owner Indemnified Party may suffer or incur in connection with or
arising from the gross negligence or willful misconduct of the Manager or any Manager Indemnified
Party in the performance of its duties and obligations under this Agreement.
(c) Relationship to Insurance. In no event shall the indemnification provisions of
this Agreement diminish, affect, impede or impair, in any manner whatsoever, the benefits to which any
party may be entitled under any insurance policy required by this Agreement or otherwise, or under the
terms of any waiver of subrogation contained therein.
(d) Survival. It is expressly understood and agreed that the foregoing provisions of
this ARTICLE VII shall survive any expiration or termination of this Agreement to the extent the
circumstances creating a liability covered hereby arose prior to such expiration or termination.
7.10 Limitation of Liability. Each party's, its Affiliates' and its and their contractors' and
licensors' liability for actual damages (whether a claim therefore is based on warranty, contract, tort
(including negligence or strict liability), statute or otherwise) and claims arising in relation to any
performance or nonperformance of Services under this Agreement shall be limited to $2,000,000.00 (the
"Cap"). Notwithstanding anything to the contrary herein, a Claim cannot be made unless it exceeds
$10,000.00 (each claim must stand on its own and cannot be combined with other claims. Both parties
acknowledge and agree that any such payment by the other party shall be the final remedy in the event of
an exhaustion of all other remedies hereunder and such remedy shall not be deemed or alleged by the
other party to have failed of its essential purpose. The limitations or exculpation of liability set forth in
this Section are not applicable to the failure of Owner to make payments due Manager under this
Agreement.
ARTICLE VIIIGOV ERNMENTAL IMMUNITY. NO TERM OR CONDITION OF THIS
CONTRACT SHALL BE CONSTRUED OR INTERPRETED AS A WAIVER,EXPRESS OR
IMPLIED,OF ANY OF THE IMMUNITIES,RIGHTS,BENEFITS,PROTECTIONS OR
OTHER PROVISIONS,OF THE COLORADO GOVERNMENTAL IMMUNITY ACT§§24-10-
101 ET SEQ.,AS APPLICABLE NOW OR HEREAFTER AMENDED.
TERM OF AGREEMENT
8.1 Termination Without Cause. Owner or Manager may terminate this Agreement
without cause at any time upon thirty(30)days' prior written notice to the other party.
8.2 Termination For Cause. Notwithstanding the stated term hereof, this Agreement may
be terminated by either party hereto for cause. The termination shall be effective immediately upon
delivery of written notice to Owner or Manager by the other party, as the case may be. As used herein,
"for cause" shall mean and refer to:
(a) The default by either party in the performance of any of its material obligations
hereunder without attempting to diligently and continuously commence curing such default within ten
(10) days of receipt by the non performing party of notice of such default(or if such default is of a nature
that it cannot be cured within ten (10) days, then the Agreement may be terminated if the non-performing
party shall fail to commence the curing of such default within such ten (10)day period or shall thereafter
fail to prosecute the curing thereof to completion with due diligence); or
(b) If Manager or Owner shall file a voluntary petition in bankruptcy, or shall be
adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization,
arrangement, composition, liquidation, dissolution or similar relief for itself under the present or any
future federal bankruptcy act or any other present or future applicable federal, state or other statute or law
relative to bankruptcy, insolvency or other relief for debtors, or under any regulation promulgated
thereunder; or
(c) If a court of competent jurisdiction shall enter an order, judgment, or decree
approving a petition filed against Manager or Owner seeking any reorganization, arrangement,
composition, liquidation, dissolution or similar relief under the present or any future federal bankruptcy
act or any other present or future applicable federal, state or other statute or law relating to bankruptcy,
insolvency, or other relief for debtors,and such party shall acquiesce in the entry of such order,judgment,
or decree or such order,judgment or decree shall remain unvacated and unstayed for an aggregate of sixty
(60) days (whether or not consecutive) from the date of entry thereof, or any trustee, receiver,
conservator, or liquidator of such party or of all or any substantial part of such party's property shall be
appointed without the consent or acquiescence of such party and such appointment shall remain
unvacated and unstayed for an aggregate of sixty(60)days(whether or not consecutive); or
(d) If Manager or Owner shall become insolvent or admit in writing its inability to
pay its debts as they mature or is generally not paying its debts as they mature or makes an assignment for
the benefit of creditors; or
(c) Owner sells, transfers or otherwise conveys its interest in the Property, or upon
termination of Owner's right to collect the rents from the Property by foreclosure, transfer in lieu thereof
or other exercise of a lender's remedies.
8.3 Duties Upon Termination. Upon termination of this Agreement for any reason,
Manager shall cooperate with Owner to accomplish an orderly transfer of the operation and management
of the Property to a party designated by Owner and deliver to Owner(and to any other party as designated
by Owner)the following with respect to the Property:
(a) A final accounting, reflecting the balance of income and expenses on the
Property as of the date of termination to be delivered within thirty(30)days after such termination;
(b) Any balance or monies of Owner and tenant security deposits held by Manager
with respect to the Property to be delivered upon such termination;
(c) All original books and records, contracts, leases, receipts for deposits, unpaid
bills, on and offsite inventory, data for all information related to the Property in Manager's computer
database (or computer diskettes which may be accessed without the use of a special codeword or
password) and other papers or documents which pertain to the Property to be delivered upon the
termination;
(d) All payments, invoices, notices or other communication or delivery received by
Manager with respect to the Property.
8.4 Owner's Duties Upon Termination. Owner shall assume: (a) all obligations and
commitments for goods and services authorized herein and made prior to termination; and (b)
responsibility for payment of all unpaid bills approved or authorized by Owner and received by Owner.
8.5 Manager's Compensation Upon Termination. Notwithstanding anything to the
contrary herein, in the event of expiration or termination of this Agreement for any reason, Manager shall
be entitled to receive all compensation and reimbursement due through the date of such expiration or
termination.
8.6 Obligations of Parties Generally. Upon any termination of this Agreement, the
obligations of the parties hereto shall thereafter cease with respect to the Property, except that neither
Owner nor Manager shall be relieved of its obligations hereunder through the date of termination or to the
extent any such obligations survive the termination in accordance with the terms hereof (e.g.
indemnification). Moreover, the termination of this Agreement shall be without prejudice to any other
right or remedy that either party hereto may have pursuant to this Agreement,at law or in equity.
ARTICLE IX
COMPENSATION
9.1 Management Fee. Owner agrees to pay Manager a management fee ("Management
Fee") during the term hereof in the amount of the greater of$2,700.00 per month or Three Percent(3%)
of Gross Monthly Collected Receipts (as defined below)and Manager agrees to accept such Management
Fee as compensation for the services to be rendered hereunder. The Management Fee shall be payable
monthly. Manager shall be entitled to immediately withdraw the amounts invoiced from the Operating
Account through an ACH Electronic Funds Transfer or other such electronic payment method. In the
event the Commencement Date, or expiration or termination date, occurs on a day other than on the first
or last day of a month, respectively, the Management Fee shall be prorated in accordance with the actual
gross receipts received during the month prior to such applicable Commencement Date, expiration or
termination, as the case may be. Notwithstanding anything to the contrary herein, in addition to the
Management Fee stated hereinabove, the Owner shall pay Manager a one-time set-up fee of$1,200.00
within thirty (30) days of the Commencement Date for Manager providing the necessary work at the
commencement of this Agreement as required by this Agreement.
9.2 "Gross Monthly Collected Receipts." "Gross Monthly Collected Receipts" means
all revenues and receipts of every kind and nature derived from the operation of the Property and actually
collected by Manager or Owner during a specified period, calculated on a cash basis, including, without
limitation, base rent, percentage rent, additional rent, rent adjustments, calculation of rent receipts for
square footage occupied by Owner (based on average per square foot gross rent paid by other tenants in
the building), lease buyouts accepted by Owner, utility charges, license fees, service charges, free rent,
sundry income and cancellation fees, all other forms of miscellaneous income, and proceeds of rent
interruption insurance including revenues received by Owner for parking operations operated separately
and independently from the Property pursuant to a ground lease, management agreement, operating or
similar agreement with a person other than Manager. and calculation of rent receipts for space occupied
by Owner and based on average gross rent paid by other tenants in the building, excluding only: (a)
security deposits, or other deposits, (until such deposits are applied to rents); (b) interest on monies in
bank accounts for the operation of the Property; (c) proceeds from the sale or financing of the Property;
(d) insurance proceeds received from any insurance policies pertaining to physical loss or damage to the
Property; (e) rent paid more than thirty (30) days in advance of the due date, until the month in which
such payments are to apply as rental income; (f) lump sum amounts from tenants for tenant
improvements; (g) proceeds of loans or capital contributions from Owner; (h) amounts received on
account of abatement, reduction, or refund of taxes; (i) any taxes on rents paid by tenants; (j) any trade
discounts and rebates received in connection with the purchase of personal property;and(k) any amounts
attributable to repayment of loans by Owner to any tenant for which a separate loan amortization schedule
is provided.
Construction Management Fee. Should Owner request Manager to perform construction management
services, Manager shall be paid for such services as follows: (i) zero percent (0%)of the first $10,000.00
of the total construction costs; and (ii) five percent (5%) of construction costs between $10,001.00 and
$500,000.00; and (iii) four percent (4%) of construction costs above $500,000.00 ("Construction
Management Fee"). The term "construction cost" as used herein shall mean the actual cost of
construction of improvements, including, without limitation, outside engineers' and outside architects'
fees and other soft costs, whether paid by the Owner or any tenant. The Construction Management Fee
payable to Manager hereunder shall be payable in full upon substantial completion of the construction
work.
ARTICLE X
NOTICES
10.1 Notices. Whenever any notice, demand or request is required or permitted under this
Agreement, such notice, demand or request shall be in writing and shall be deemed to have been properly
given if addressed as set forth below and: (a) if hand delivered, when delivered; (b) if mailed by United
States Registered or Certified Mail (postage prepaid, return receipt requested, addressed as set forth
below) upon receipt or refusal of receipt; (c) if by a nationally recognized overnight delivery service(e.g.,
Federal Express, UPS Next Day Air, or other reliable express courier service from whom proof of
delivery is available),on the next business day after delivery to such express courier service; or(d) if sent
via facsimile, on the day of transmission(as confirmed by the sender's facsimile equipment):
If to Manager: Cassidy Turley
1515 Arapahoe, Suite 1200
Denver, CO 80202
Attention: Alex Fox
Telephone No.: 303.312.4232
with a copy to: Cassidy Turley Commercial Real Estate Services, Inc.
7700 Forsyth,9'h Floor
St. Louis, MO 63105
Attn: Marla Maloney
If to Owner: Weld County Buildings &Grounds
Attn: Toby Taylor
P.O. Box 758
1105 H Street
Greeley, CO 80631
Fax No.: (970)304-6532
Telephone No.: (970)304-6531
Owner and Manager may at any time designate changes to their respective notice addresses, effective five
(5)days after the delivery of written notice thereof.
ARTICLE XI
MISCELLANEOUS
11.1 Entire Agreement. This Agreement (together with the attached Exhibit(s)) is the entire
agreement between the parties with respect to the subject matter hereof, and it is a complete integration of
any and all representations and agreements existing between Owner and Manager and supersedes all prior
oral or written representations and agreements between them. Neither party shall be deemed to be the
drafter of this Agreement, and therefore no presumption for or against the drafter shall be applicable in
interpreting or enforcing this Agreement. The parties acknowledge that their respective legal counsel
participated in the preparation of this Agreement.
11.2 Modification. No modification, change, or amendment of this Agreement shall be
binding unless in writing and signed by both parties.
11.3 Severability. If any provision of this Agreement or application to any party or
circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable
to any extent, the remainder of this Agreement or the application of such provision to such person or
circumstances, other than those as to which it is so determined invalid or unenforceable, shall not be
affected thereby, and each provision hereof shall be valid and shall be enforced to the fullest extent
permitted by law.
11.4 No Waiver. The failure of Owner or Manager to seek redress for violation, or to insist
upon the strict performance of any covenant, agreement, provision or condition of this Agreement shall
not constitute a waiver thereof, and Owner and Manager shall have all remedies provided herein and by
applicable law with respect to the same or any subsequent act which would have originally constituted a
violation. No waiver of any provision hereof shall be binding unless in writing and signed by the party
waiving such provision.
11.5 Applicable Law. This Agreement shall be construed and enforced in accordance with
the laws of the state where the Property is located,and the parties hereto submit to personal jurisdiction in
such state for the enforcement of the provisions of this Agreement and waive any and all rights to object
to such jurisdiction for purposes of litigation to enforce this Agreement. Venue shall be in the state court
where the Property is located.
11.6 Authority Limited. Neither Owner nor Manager shall have the power to bind or
obligate the other except as expressly set forth in this Agreement.
11.7 Manager. The term "Manager" as used in this Agreement shall include any corporate
subsidiaries or affiliates of Manager named herein who perform services in, on, or about the Property in
connection with this Agreement. Notwithstanding the foregoing, in no event shall any direct or indirect
officer, director, member, partner, shareholder, employees, or agent (a "Special Party") of Manager be
personally liable for any of the obligations of Manager under this Agreement except to the extent, if any,
provided in a separate agreement now or hereafter executed and delivered by such Special Party.
11.8 Relationship; Limited Agency. Nothing herein contained shall constitute or be construed
to be or create a partnership or joint venture between Owner and Manager and Manager is and shall remain
an independent contractor in connection herewith. Manager shall act solely as the agent of Owner in the
performance of its duties and obligations under this Agreement with respect to the Property. Nothing
herein shall deprive or otherwise affect the right of either party to own, invest in, manage, or operate
property,or to conduct business activities which are competitive with the business of the Property.
11.9 Successors and Assigns. This Agreement shall be binding upon, and shall inure to the
benefit of the parties hereto and their respective successors and assigns. This Agreement may be assigned
to any entity controlled by Manager or Manager's ultimate parent, without Owner's prior written consent
(but with no less than thirty (30) days prior written notice to Owner). This Agreement may be assigned
by Owner with thirty(30) days prior written notice to Manager.
11.10 No Third-Party Beneficiaries. This Agreement is intended for the exclusive benefit of
the parties hereto and, except as otherwise expressly provided herein, shall not be for the benefit of, and
shall not create any rights in,or be enforceable by,any other person or entity.
11.11 Rights Cumulative. Except as otherwise expressly provided herein, no remedy
conferred upon a party to this Agreement is intended to be exclusive of any other remedy provided or
permitted herein or by law or in equity, but each shall be cumulative and shall be in addition to every
other remedy provided herein or now or hereafter existing at law or in equity.
Confidentiality. Except to the extent necessary to carry out its obligations hereunder, Manager shall treat
as confidential and shall not disclose any information with respect to the Property, without the prior
written consent of Owner. Confidential information does not include information which: (a) is or
becomes generally available to the public other than as a result of a disclosure by the receiving party in
breach of this Agreement; (b) was available to the receiving party on a non-confidential basis prior to its
disclosure by the other party; (c) must be disclosed pursuant to applicable law or regulation or in
connection with the pursuit or defense of a claim; (d) is independently developed by the receiving party
without the use of confidential information provided by the other party; (e)was available to Manager on a
non-confidential basis prior to its disclosure by Owner; or(f) becomes available to the receiving party on
a non-confidential basis from a source other than the disclosing party, provided that such source is not
known to the receiving party to be bound by a confidentiality agreement with the other party. Confidential
financial information of Contractor should be transmitted separately from the main bid submittal, clearly
denoting in red on the financial information at the top the word, "CONFIDENTIAL." However,
Contractor is advised that as a public entity, Weld County must comply with the provisions of C.R.S. 24-
72-201, et seq., with regard to public records, and cannot guarantee the confidentiality of all documents.
Contractor agrees to keep confidential all of County's confidential information.
11.12
11.13 Further Acts. Owner and Manager shall execute such other documents and perform
such other acts as may be reasonably necessary and/or helpful to carry out the purposes of this
Agreement.
11.14 Authority. Each individual signing this Agreement on behalf of a legal entity represents
that he or she holds the office and/or position in such legal entity respectively indicated hereinafter for
him or her, and has full right and power and has been duly and legally authorized to act on behalf of such
legal entity in executing and entering into this Agreement.
11.15 Manager Assumes No Liability. Manager assumes no liability whatsoever for any acts
or omissions of Owner, or any previous owners of the Property, or any previous management or other
agent of Owner or other owner. Manager assumes no liability for any failure of or default by any tenant
in the payment of any rent or other charges due Owner or in the performance of any obligations owed by
any tenant to Owner pursuant to any Leases or otherwise. Manager assumes no liability for previously
unknown violations of environmental or other regulations that may become known during or subsequent
to the term of this Agreement.
11.16 Agreement Not to Hire Employees. Owner acknowledges that Manager's salaried
employees are essential to Manager's core business of providing management services and are familiar
with Manager's operating procedures and other information proprietary to Manager. Therefore, Owner
agrees not to, and shall not, solicit for employment, hire, make any agreement with, or permit the
employment (including employment by any successor to Manager) in any real estate management service
operation with Weld County Buildings and Grounds,of any person who is or has been Manager's salaried
employee within the earlier of one (1)year after such employee terminates employment with Manager or
within one (I)year after the expiration or termination of the Agreement. If Owner breaches this Section
11.16, the Owner and Manager agree that the legal remedies available to Manager will be inadequate,and
the Manager will be entitled to seek appropriate equitable remedies, which include, but are not limited to,
Temporary Restraining Order, Preliminary Injunction, or Permanent Injunction from a Court to enforce
this Section, but may have in law or equity. This Section 11.16 shall survive the expiration and/or
termination of this Agreement.
11.17 Signs. Owner agrees to allow Manager to place one or more signs on or about the
Property stating that Manager is the management agent for the Property, provided that the signs and
location thereof shall be subject to Owner's prior approval,which shall not be unreasonably withheld.
11.18 Counterparts. This Agreement may be executed in several counterparts, each of which
shall be an original of this Agreement but all of which, taken together, shall constitute one and the same
agreement. Signatures transmitted by facsimile or e-mail (via PDF format) shall be acceptable for
purposes of execution of this Agreement.
11.19 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.
11.20 Force Majeure. Notwithstanding anything contained to the contrary, neither party
hereto shall be required to perform any term, condition or covenant of this Agreement as long as such
performance is delayed or prevented by Force Majeure, which shall mean Acts of God, strikes, lockouts,
material or labor restrictions by any governmental authority, civil riot, floods and any other cause not
reasonably within the control of such party and which, by the exercise of due diligence, such party is
unable, wholly or in part, to prevent or overcome. Notwithstanding anything herein to the contrary, the
foregoing shall not excuse either party from the payment of any monies due pursuant to the terms of this
Agreement.
11.21 Fund Availability. Financial obligations of the County payable after the
current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and
otherwise made available. Execution of this Agreement by County does not create an obligation
on the part of County to expend funds not otherwise appropriated in each succeeding year.
Notwithstanding anything to the contrary contained in this Agreement, County shall have no
obligations under this Agreement after, nor shall any payments be made to Contract Professional
in respect of any period after December 31 of any year, without an appropriation therefore by
County in accordance with a budget adopted by the Board of County Commissioners in
compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government
Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution,
Article X, Sec.20)
11.22 Independent Contractor. Contractor agrees that it is an independent Contractor and that
Contractor's officers, agents or employees will not become employees of County, nor entitled to any
employee benefits from County as a result of the execution of this Agreement. Contractor shall perform
its duties hereunder as an independent Contractor. Contractor shall be solely responsible for its acts and
those of its agents and employees for all acts performed pursuant to this Agreement. Contractor, its
employees and agents are not entitled to unemployment insurance or workers' compensation benefits
through County and County shall not pay for or otherwise provide such coverage for Contractor or any of
its agents or employees.
11.23 Warranty_ Contractor warrants that the services performed under this Agreement
will be performed in a manner consistent with the standards governing such services and the
provisions of this Agreement. Contractor further represents and warrants that all services shall be
performed by qualified personnel in a professional and workmanlike manner, consistent with
industry standards, and that all services will conform to applicable specifications.
11.24 Board of County Commissioners of Weld County Approval. This Agreement shall not
be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or
its designee.
11.25 Public Contracts for Services C.R.S. §8-17.5-101. Contractor certifies, warrants, and
agrees that it does not knowingly employ or contract with an illegal alien who will perform work under
this contract. Contractor will confirm the employment eligibility of all employees who are newly hired
for employment in the United States to perform work under this Agreement, through participation in the
E-Verify program or the State of Colorado program established pursuant to C.R.S. §8-17.5-102(5)(c).
Contractor shall not knowingly employ or contract with an illegal alien to perform work under this
Agreement or enter into a contract with a subcontractor that fails to certify with Contractor that the
subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this
Agreement. Contractor shall not use E-Verify Program or State of Colorado program procedures to
undertake pre-employment screening or job applicants while this Agreement is being performed. If
Contractor obtains actual knowledge that a subcontractor performing work under the public contract for
services knowingly employs or contracts with an illegal alien Contractor shall notify the subcontractor
and County within three(3)days that Contractor has actual knowledge that a subcontractor is employing
or contracting with an illegal alien and shall terminate the subcontract if a subcontractor does not stop
employing or contracting with the illegal alien within three (3) days of receiving notice. Contractor shall
not terminate the contract if within three days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal alien. Contractor shall comply
with reasonable requests made in the course of an investigation, undertaken pursuant to C.R.S. §8-17.5-
102(5), by the Colorado Department of Labor and Employment. If Contractor participates in the State of
Colorado program. Contractor shall. within twenty days after hiring an new employee to perform work
under the contract, affirm that Contractor has examined the legal work status of such employee, retained
IIle copies of the documents. and not altered or talsilied the identification documents for such employees.
Contractor shall deliver to County. a written notarized affirmation that it has examined the legal work
status of such employee, and shall comply with all of the other requirements of the State of Colorado
program. If Contractor fails to comply with any requirement of this provision or of C.K.S. 8-17.5-101 et
seq..County, may terminate this Agreement for breach,and if so terminated, Contractor shall be liable for
actual damages as allowed per this Agreement.
Except where exempted by federal law and except as provided in C.R.S. § 24-76.5-103(3), ii'Contractor
receives federal or state funds under the contract. Contractor must confirm that any individual natural
person eighteen OS)years of age or older is lawfully present in the United States pursuant to C.K.S. § 24-
76.5-103(4). if such individual applies for public benefits provided under the contract. If Contractor
operates as a sole proprietor, it hereby swears or affirms under penalty of'perjury that it: (a) is a citizen of
the United Stales or is otherwise lawfully present in the United Slates pursuant to federal law. (b) shall
produce one of the forms of identification required by C.K.S. § 24-76.5-10 I,et seq.. and (e) shall produce
one of the lOrnts of identification required by C.R.S. § 24-76.5-103 prior to the effective date of the
contract.
11.25 Employee Financial Interest/Conflict of Interest—C.R.S. §§24-18-201 et seq.and §24-
50-507. The signatories to this Agreement state that to their knowledge, no employee of Weld County
has any personal or beneficial interest whatsoever in the service or property which is the subject matter of
this Agreement.
IN WITNESS WHEREOF. Owner and Manager have caused this Agreement to be executed as of the
elate first above written.
OWNER: Weld County Board of_.Commi sci nnera •
rr itical body
iCar►ie. ouglas Rademacher
Title: Chair (12/31/2014)
MANAGER: CO�S� jv.r\ek.A CONWY l-TC.ka 161L0A1.1tItit".n(6
a_tic , P°`
�Nitrite: Marla Maloney )
Title: Executive i\iana!_iiig Director
EXHIBIT A
SCHEDULE OF PROPERTY PERSONNEL
This schedule is to be updated and submitted for Owner's approval prior to the employment of personnel
for the Property. These allocations and salaries are reviewed annually and maybe adjusted based on
market demand for management and engineering personnel so as to remain competitive per the Approved
Budget.
Property Management Employees Annual Total
$15,000.00 Annual Salary Reimbursement to be reimbursed monthly at$1,250.00.
Engineering Employees
If Cassidy Turley engineering employees are used, they will be billed to the property based on the
following rate,plus travel costs:
Tier II—Engineer-$55.00/hr.
HVAC Trained,General Maintenance
Overtime wages will be billed at 1.5 times the hourly rate. Mileage will be charged back to the property
at the IRS standard mileage rates for the use of a car for business, currently $57.5 cents per mile as of
January I, 2015. The costs above do not reflect truck charges, if applicable. Above costs are subject to
adjustment, with advance notice to Owner or as otherwise approved in the Approved Budget.
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