2008-12-09PLEASE TURN OFF CELL PHONES & PAGERS IN COUNCIL CHAMBERS. ~
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'^ AGENDA
MOUND HOUSING & REDEVELOPMENT AUTHORITY
REGULAR MEETING
TUESDAY, DECEMBER 9, 2008 7:25 P.M.
Page
1. Open meeting
2. Action approving agenda, with any amendments
3 . Action on interim agreement with Westport Properties for Indian Knoll 1-11
Manor Property Management Services for the period January 1, 2009
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through March 31, 2009
4. Adjourn
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MEMORANDUM
December 4, 2008
To: HRA Boazd Chair and Commissioners
From: Kandis Hanson, City Manager
Catherine Pausche, Finance Director/Treasurer
Re: Westport Properties Management Agreement for the period
January 1, 2009 through March 31, 2009
Westport Properties has provided property management services for Indian Knoll Manor, the
HRA's 50-unit senior housing facility located at 2020 Commerce Boulevard, since 2003.
At the November 25, 2008 HRA meeting, we presented options for management of Indian Knoll
Manor along with the results of the Request for Proposal for Property Management Services.
We have decided that signing another interim agreement with Westport Properties will allow us
to better administer the financial audit and the HUD on-site inspection scheduled for February 2,
2009.
;-- We are requesting your approval of the attached interim management agreement for the period
January 1, 2009 through March 31, 2009.
Please feel free to let Catherine know if you have any questions at (952)472-0633.
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MANAGEMENT AGREEMENT
BETWEEN MOUND HOUSING AND REDEVELOPMENT AUTHORITY
AND WESTPORT PROPERTIES, INC.
THIS AGREEMENT, made by and between Mound Housing and
Redevelopment Authority ("Owner") with offices at Indian Knoll Manor, 2020
Commerce Boulevard Mound, Minnesota 55364, and at City Hall, 5341
Maywood Road, Mound, Minnesota, 55364 and Westport Properties Inc., a
Minnesota corporation ("Agent") with offices at 6715 Penn Avenue South,
Suite 2, Richfield, Minnesota 55423.
WHEREAS, the Housing and Redevelopment Authority of Mound, Mound, MN,
(HRA) entered into a Consolidated Annual Contributions Contract (ACC) No.
C-858, Parts A and B, on January 25, 1996, with the U.S. Department of
Housing and Urban Development (HUD), as amended, which provides
ongoing funding for the maintenance and operation of the HRA's public
housing projects; and
WHEREAS, under Section 5 of Part A of the ACC, the HRA shall develop and
operate all projects covered by the ACC in compliance with all the provisions
of the ACC and all applicable statutes, executive orders, and regulations
issued by HUD, as they shall be amended from time to time, including but
not limited to, those regulations promulgated by HUD at Title 24 of the Code
of Federal Regulations (CFR), which are hereby incorporated herein by
reference as if fully set forth herein; and
WHEREAS, under Section 5 of Part A of the ACC, the HRA shall ensure
compliance with such requirements by any contractor or subcontractor
engaged in the development or operation` of a project covered by this ACC;
In consideration of the covenants herein contained, the parties hereto
agree as follows:
1. Appointment. The Owner hereby appoints the Agent, and the Agent
hereby accepts appointment, on the terms and conditions hereinafter
provided, as the Owner's exclusive agent to manage, and operate the
50-unit apartment building located in Mound, Minnesota, commonly
known as Indian Knoll Apartments, ("Premises").
2.1 Renewal. The term of the Agreement shall be from .7anuary
1, 2009 to March 31, 2009 unless terminated as provided in
sections 2.2 and 7.
2.2 Termination By Either Party. This Agreement may be
terminated by either party during its term by the giving of written
notice to the other party. The Agent must give 60-days notice to
the Owner of such termination. The Owner will use its best efforts
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to give 60-days notice to Agent, but may terminate upon the giving
of 30-days notice.
3. Responsibilities of Agent. The Owner agrees to give the Agent
the following authority and powers (all or any of which may be
exercised in the name of the Owner) and the Owner agrees to
assume all expenses in connection therewith.
To prepare a management plan with the Owner that includes an operating
budget and an on-site staffing analysis along with recommendations, for
approval by Owner;
To cause to be hired, paid and supervised all persons necessary to be
employed in order to properly maintain and operate the Premises who, in
each instance, shall be the Agent's and not the Owner's employees, and
cause to be discharged all persons unnecessary or undesirable;
To cause the Premises to be maintained in such condition as may be
deemed advisable by the Owner, and cause routine repairs and incidental
alterations of the building to be made, including, but not limited to, electrical,
plumbing, heating, carpentry, masonry and any other routine repairs and
incidental alterations as may be required in the course of ordinary
maintenance and care of the Premises. Subject to the requirements of
Minnesota Statutes 469.015 and Mound PHA procurement policy, repairs or
alterations involving an expenditure in excess of One Thousand Dollars
($1,000) for any one item shall be made only with the prior approval of the
Owner, except that emergency repairs, i.e., those immediately necessary for
the preservation of safety of the Premises or for the safety of the Residents
of the Premises or other persons, or required to avoid the suspension of any
necessary service in or to the Premises may be made by the Agent
irrespective of the cost thereof, without the prior approval of the Owner if the
Agent makes a reasonable attempt to communicate with the Owner in order
to obtain such approval;
To recommend, and with the approval of the Owner, cause all such acts
and things to be done in or about the Premises as may be necessary or
desirable to comply with any and all orders or notice of violations affecting
the Premises placed thereon by any federal, state, county or municipal
authority having jurisdiction thereover, except that if failure promptly to
comply with any such order or violation would expose the Owner or the
Agent to criminal liability, the Agent may cause such order or notice of
violation to be complied with or without the prior approval of the Owner if the
Agent makes a reasonable attempt to communicate with the Owner to obtain
such approval, it being understood that the Agent shall notify the Owner
promptly after receipt of any order or notice of violation, as foresaid;
Subject to the requirements of Minnesota Statute 469.015, the Mound
PHA Procurement Policy, and the HUD Capital Funds Program (CFP), to enter
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into all necessary or desirable service contracts in respect to the repair and
operation of the Premises, including without limitation contracts for
electricity, gas, air conditioning, equipment maintenance, water treatment,
janitorial, landscaping, window cleaning, rubbish removal, fuel oil, back-up of
fuel oil; vermin extermination, architects' and engineers' services required
for the planning and supervision of alterations and/or improvements made or
proposed to be made to the Premises, but any such contract having a term
longer than one (1) year or requiring an annual payment in excess of One
Thousand Dollars ($1,000) must be authorized by the Owner;
Subject to the requirements of Minnesota Statute 469.015 and of the
Mound PHA Procurement Policy, to purchase all supplies which shall be
necessary to properly maintain and operate the Premises, and credit to the
Owner any discounts or commissions obtained for purchase, to conduct
solicitation of bids, preparation of bid packages, advertisement of bids, and
tabulation of bids;
To check all bills received for services, work and supplies ordered in
connection with maintaining and operating the Premises and pay or cause all
such bills to be paid, upon authorization and signature of the Owner, from
funds of the Owner;
Insurance coverage for the premises is to be determined by the HRA,
such insurance to be obtained and/or maintained, at the expense of the
Owner;
To cause all employees of the Agent who handle or are responsible for
safekeeping of any money of the Owner to be covered by a fidelity bond in
favor of the Owner in the amount equal to one month's rent for the property
plus the amount of the Mound PHA reserves; and to obtain a criminal
background check for all employees or personnel on contract who have
access to residents units per state law;
To bill, or cause to be billed, residents for monthly rent and to send late
notices according to the Rent Collection Policy;
To maintain, in a manner customary and consistent with generally
accepted accounting principles and with the assistance of a 'fee accountant"
when necessary and with approval by the Owner, a system of accounts to
which shall be entered fully and accurately each and every financial
transaction with respect to the operation of the Premises. To prepare and
render to the Owner, monthly operating statements of operations and such
other reports and in such frequency as specified by Owner;
To keep the Board of Commissioners informed on a monthly basis of the
financial status and physical condition of the Premises and other items that
Owner should reasonably be made aware of;
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To cause to be prepared and 1=lled all necessary forms relating to the
maintenance and operation of the Premises required by any federal, state,
county or municipal authority having jurisdiction thereover;
To set up and maintain, at the Mound HRA office located on 2020
Commerce Boulevard, Mound, Minnesota, orderly files containing records for
income and expenses, insurance policies, leases, correspondence, receipted
bills and vouchers and all other documents and papers pertaining to the
Premises and the operation and maintenance thereof, the same to be and at
all times to remain the property of the Owner, and the Agent shall upon
request of the Owner make same available to the Owner, and the Owner's
accountants and attorneys; and to make all electronic data filing in PIC,
LOCCS, REAC, and other electronic systems as required by HUD, and to
create and submit the PHA Plan annually and complete all reporting as
necessary;
To provide the necessary information to and cooperate with the Owner's
accountants and auditors in regard to the annual audit or any periodic audit
of the books;
To cooperate with Owner's accountants in regard to the preparation and
filing on behalf of federal, state, city and any other filings required by any
governmental authority;
To generally, do all things reasonably deemed necessary or desirable for
the proper management of the Premises according to HUD regulations for
Low Rent Public Housing (LRPH) programs, including maintaining all records
and reporting to HUD; and
To perform, for the Owner's account and on its behalf, any lawful act and
everything lawful and necessary or desirable in order to carry out the Agent's
Agreements contained in this Agreement. It is expressly understood and
agreed that everything done by the Agent under the provisions of this
Agreement shall be done as Agent of the Owner, and any and all obligations,
costs or expenses incurred by the Agent in the performance of its obligations
under this Agreement shall be borne by the Owner and not by the Agent. It
being expressly understood, however, that the Agent shall not be
compensated for (i) the costs incurred by the Agent in maintaining its own
office staff, and (ii) its general overhead. Any payments made by the Agent
hereunder shall be made out of such funds as the Agent may from time to
time hold for the accounts of the Owner or as may be provided by the
Owner. The Agent shall not be obligated to make any advance to, or for the
account of, the Owner or pay any amount except out of funds held or
provided aforesaid nor shall the Agent be obliged to incur any extraordinary
liability or obligation unless the Owner shall furnish the Agent with the
necessary funds for the discharge thereof. If Agent shall elect to advance
any money in connection with the property the Owner agrees to reimburse
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the Agent forthwith and hereby authorizes the Agent to deduct such
advances from any money due the Owner.
4. Banking. All funds of the property in the possession of the Agent
shall beheld by the Agent for the Owner, in trust, and shall be
deposited by Agent in such bank, as the Owner shall designate, in a
special account maintained by the Agent, for the premises. Such
funds shall not be commingled with other funds collected by the
Agent for its own account or as agent for others, or with the
Agent's own funds and shall remain on deposit until disbursed in
accordance with the terms of the agreement. The Agent shall
furnish the Owner with true and complete copies of all statements
issued by the Bank with respect to such bank account regularly
after their receipt by the Agent.
5. Compensation. The Owner agrees to pay the Agent, during the
term of this Agreement each month an amount equal to $850 per
month;
Owner will reimburse Agent for time and expenses incurred by an on-site
resident manager, a certified occupancy specialist, and a maintenance person
for services (all Agent's employees) provided to Owner at Indian Knoll Manor,
according to a budget pre-approved by Owner.
6. Indemnity. The Owner shall indemnify, defend and save the
Agent harmless from and against all claims, losses, costs and
Liabilities arising out of damage to property, or injury to, or death of
persons (including the property and persons of the parties hereto,
and their agents, subcontractors and employees) occasioned by or
in connection with the use, management operation, ownership,
maintenance or control of the Premises; except as to such claims,
losses, costs, and liabilities that are the direct result of willful
misconduct or negligence of Agent or its officers, agents,
subcontractors or employees.
7. Termination. Within 30 (thirty) days of termination of the
Agreement, the parties shall account to each other with respect to
all uncompleted business as follows: (i) the Agent shall deliver to
the Owner all funds and other moneys, and all leases, subleases,
corporate files, books, records and other instruments relating to the
Premises and the Owner, that may be in the possession of the
Agent; and (ii) the Agent shall concurrently take payment of all
fees required to be paid hereunder through the date of termination
of the Agreement by deducting same from all funds and money
otherwise transferred to the Owner under this paragraph.
8. Assignment. The Agent may not assign this Agreement without
the prior written consent of the Board of Commissioners. Subject
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to the provisions hereof, all of the covenants, conditions and
~" obligations contained in this Agreement shall be binding and to the
benefit of the respective successors and assignors of the Owner
and the Agent to the same extent as if each successor and assignor
were in each case named as a party to this Agreement.
9. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
10. Applicable Law. This agreement shall be construed and
enforced in accordance with the laws of the State of Minnesota.
li. Notices. All notices, demands, requests or other
communications which may be or are required to be given, served
or sent by either party to the other, shall be in writing and
delivered personally or by certified mail, return receipt requested,
with postage prepaid, at the address first above mentioned. A
party may change the name or address for the giving of notice
provided above by written notice to the other party.
12. Entire Agreement. This agreement and the documents to
which reference in it has been made, shall be construed together
and constitute the entire, full and complete agreement between the
Owner and the Agent, and there are no representations,
inducements, promises, or agreements, oral or otherwise, between
the parties not embodied herein, which are of any force or effect.
13. Modifications. This Agreement may not be changed or
modified except by written document signed by both the Owner
and the Agent.
14. Workers Compensation Insurance. This Agreement shall not
become effective until Agent has provided Owner written evidence
that Agent complies with all applicable worker compensation
insurance requirements.
15. Relationship of Agent to Owner. The relationship of the
parties to this Agreement shall be that of Principal and Agent, and
all duties to be performed by Agent under this Agreement shall be
for and on behalf of Owner, in Owner's name, and for Owner's
account. In taking any action under this Agreement, Agent shall be
acting only as Agent for Owner, and nothing in this Agreement shall
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be construed as creating a partnership, joint venture, or any other
relationship between the parties to this Agreement except that of
Principal and Agent, or as requiring Agent to bear any portion of
losses arising out of or connected with the ownership or operation
of the Premises. Nor shall Agent at any time during the period of
this Agreement be considered a direct employee of Owner. Neither
party shall have the power to bind or obligate the other except as
expressly set forth in this Agreement, except that Agent is
authorized to act with such additional authority and power as may
be necessary to carry out the spirit and intent of this Agreement.
16. Save Harmless. Except as to the willful misconduct or
negligence of Agent, Owner shall indemnify, defend, and save
Agent harmless from all loss, damage, cost, expense (including
attorney's fees), liability, or claims for personal injury or property
damage incurred or occurring in, on or about the Premises. Agent
shall indemnify, defend and save Owner harmless in the same
manner based on the willful misconduct on negligence of Agent.
17. Liability Insurance. Owner shall obtain and keep in force
adequate insurance against physical damage (e.g. fire with
extended coverage endorsement, boiler and machinery, etc.) and
against liability for loss, damage, or injury to property, or persons
that might arise out of the occupancy, management, operation, or
maintenance of the Premises. The amounts and types of insurance
shall be acceptable to both Owner and Agent, and any deductible
required under such insurance policies shall be Owner's expense.
Agent shall be covered as an additional insured on all liability
insurance maintained with respect to the Premises. Liability
insurance shall be adequate to protect the interests of both Owner
and Agent and in form, substance, and amounts reasonably
satisfactory to Agent, Owner agrees to furnish Agent with
certificates evidencing such insurance or with duplicate copies of
such policies within three business days of the execution of the
Agreement. If Owner fails to do so, Agent may, but shall not be
obliged to, place said insurance and charge the cost thereof to the
Operating (and/or) Reserve Account(s).
18. Agent Assumes No Liability. Agent assumes no liability
whatsoever for any acts or omissions of Owner, or any previous
Owner of the Premises, or any previous management or other
agent of either. Agent assumes no liability for any failure of or
default by a 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 lease or otherwise, nor does Agent
assume any liability for previously unknown violations of
environmental or other regulations which may become known
during the period this Agreement is in effect. Any such regulatory
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violations or hazards discovered by Agent shall be brought to the
attention of the Owner in writing, and Owner shall promptly cure
them.
19. Equal Employment Opportunities. During the performance
of this contract, Westport Properties, Incorporated agrees as
follows:
a. Westport Properties, Incorporated will not discriminate
against any employee or applicant for employment because
of race, color, religion, sex, or national origin.
b. Westport Properties, Incorporated will cause the foregoing
provision to be inserted in all subcontractors for any work
covered by this contract so that such provisions will be
binding upon each subcontractor, provide that the foregoing
provision shall not apply to contractors or subcontractors for
standard commercial supplies or raw materials.
20. HUD Rules and Regulations. In the management of Indian
Knoll Manor, Westport Properties Incorporated shall comply with
rules and regulations established by United States Department of
Housing and Urban Development (HUD) and other appropriate
government agencies.
Agent shall comply with all applicable requirements of the General Conditions
for Non-Construction Contracts (Form HUD-5370-C dated 05/20/2006)
attached hereto as Exhibit A, and the Maintenance Wage Rate Determination
(Form HUD-52158 dated 04/2005) with effective date October 1, 2005,
attached hereto as Exhibit B. Agent shall require compliance with said
requirements by all subcontractors engaged to assist the Agent for any
subcontract in excess of two thousand dollars ($2,000).
HRA is responsible for monitoring Agent's compliance. Non-compliance by
Agent and its subcontractors will result in findings of non-performance under
the Management Agreement and shall be grounds for termination. Any
finding of non-compliance in underpayment of wages and benefits shall be an
expense from Agent's compensation.
Nothing contained in this Management Agreement shall prohibit or limit the
HRA from the exercise of any other right or remedy existing under applicable
law or available at equity. The HRA's exercise or non-exercise of any right or
remedy under this Management Agreement shall not be construed as a
waiver of the HRA's right to exercise that or any other right or remedy at any
time.
Westport Properties Incorporated shall provide all normal public housing
related management functions, including yearly inspections of all units and
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building common area's, annual income reviews and rent calculations,
maintaining a waiting list in accordance with the HRA Occupancy Policies,
admission, evictions, and any housing management related functions.
Westport Properties Incorporated shall prepare a monthly report on the
management of Indian Knoll Manor for the HRA Executive Director and HRA
Board of Commissioners. A representative of Westport Properties
Incorporated shall attend HRA Commissioners meetings at least once per
month and at other times as necessary to provide information to the HRA
Board of Commissioners on the Indian Knoll Manor activities and to secure
the HRA Executive Director and/or the Board approvals for purchases/
contracts of over $1,000.
Westport Properties, Incorporated shall ensure that its representative attends
the monthly Resident Council Meeting. The Westport Properties Incorporated
representative shall work with the Resident Council as necessary for the
efficient and amicable operation of Indian Knoll Manor.
Westport Properties, Incorporated shall maintain records on-site and off-site
in accordance with HUD and state records maintenance/disposition
requirements.
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IN WITNESS WHEREOF, the parties hereto intending to be legally
~~ bound hereby, have executed this Agreement of the day and year first above
written.
Housing and Redevelopment
Authority of Mound
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-ia-y:
Kandis Hanson
Its: EXECUTIVE DIRECTOR
Date:
AGENT: Westport Properties, Incorporated
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Cynthia Reiter
Its: PRESIDENT
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