Loading...
HomeMy WebLinkAboutAGMT - Bancap Commercial Real Estate (Property Management) /f/o'Adc'tD /0-24 —®/ • AGREEMENT FOR PROPERTY MANAGEMENT SERVICES THIS AGREEMENT is made and entered into this Z d ay of, 2001, by and between the CITY OF SEAL BEACH, a municipal corporation, hereinafter referred to as "CITY" and Bancap Commercial Real Estate Services hereinafter referred to as "PROPERTY MANAGER." WITNESSETH: WHEREAS, on August 14, 2001, CITY invited bids for a property management firm; and WHEREAS, pursuant to said invitation, PROPERTY MANAGER submitted a proposal; and WHEREAS, PROPERTY MANAGER represents it is a competent and qualified property management firm. NOW, THEREFORE, for and in consideration of the mutual promises, obligations, and covenants contained herein, the parties herein agree as follows: • 1. TERM. The term of this Agreement shall be for a period of one (1) year, beginning December 1, 2001 and ending November 30, 2002. The City shall have the sole discretion to extend the term for two additional one -year terms. 2. CITY'S OBLIGATIONS. For and in consideration of PROPERTY MANAGER furnishing service(s) specified in this Agreement, CITY shall pay PROPERTY MANAGER compensation as set forth in Exhibit A. Payments to PROPERTY MANAGER shall be made within thirty (30) days after receipt by CITY of invoices from PROPERTY MANAGER which shall be rendered not more often than monthly. Special services of any nature outside the scope of this Agreement shall be billed separately by PROPERTY MANAGER and must be specifically authorized in writing by CITY in advance of such additional services proposed to be provided. Telephone authorization subsequently confirmed in writing complies with this provision. 3. PROPERTY MANAGER OBLIGATIONS. For and in consideration of payments and agreements hereinafter mentioned to be made and performed by CITY, PROPERTY MANAGER agrees with CITY to furnish those services as set forth in Exhibit B, Request for Proposal for Property Management Services, attached hereto and incorporated herein by reference, and to perform as required by this Agreement. In the event of any inconsistencies between the Proposal and this Agreement, the terms and provisions of this Agreement shall control. 4. INSURANCE. PROPERTY MANAGER shall procure and maintain for the entire term of this Agreement, valid insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by PROPERTY MANAGER, or PROPERTY MANAGER agents, representatives, employees, or subcontractors. PROPERTY MANAGER shall have insurance as follows: General Liability (including premises and operations, contractual liability, personal injury, independent contractors liability): One Million Dollars ($1,000,000.00) Single Limit, per occurrence. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate shall apply separately to this project, or the general aggregate limit shall be three times' the occurrence limit. Automobile Liability (including owned, non - owned, and hired autos): One Million Dollars ($1,000,000.00), Single limit, per occurrence for bodily injury and property damage. • 677105.1 1 5. MUTUAL INDEMNIFICATION. CITY and PROPERTY MANAGER, shall save, indemnify, defend and hold harmless each other from and against all claims, lawsuits, liabilities, attorneys fees, expert witness fees, court costs, damages or expenses of whatever nature including without limitation all consequential damages arising out of or in connection with, or relating in any manner to each party's performance of the Agreement herein and attributable to the fault and/or liability by agreement between the parties or by a court of competent jurisdiction. The party responsible for liability to the other will indemnify the other party for the percentage of liability determined as set forth herein. Each party is responsible for the acts or omissions.of its own officers, agents, employees, volunteers and subcontractors and employees. 6. AMENDMENTS. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon written approval by the CITY MANAGER or his /her designee. 7. TERMINATION. If, at any time during the term of this Agreement, CITY determines that PROPERTY MANAGER is not faithfully abiding by any term or condition contained herein, CITY may notify PROPERTY MANAGER in writing of such defect or failure to perform; which notice must give PROPERTY MANAGER a ten (10) -day notice of time thereafter in which to perform said work or cure the deficiency. If PROPERTY MANAGER has not performed the work or cured the deficiency within the ten (10) days specified in the notice (or if such deficiency requires more than 10 days to cure, Property Manager commences such cure within said 10 day period and diligently pursues such cure), such defect or failure to • perform shall constitute a breach of this Agreement and CITY may terminate this Agreement immediately by written notice. Thereafter, neither party shall have any further duties, obligations, responsibilities or rights under this Agreement except, however, any and all obligations of PROPERTY MANAGER surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any manner waived by the termination hereof. In said event, PROPERTY MANAGER shall be entitled to its agreed upon compensation for services performed on a pro rata basis, less any offset from such payment representing the CITY'S damages from such breach. 8. MANAGEMENT OF PROPERTY. PROPERTY MANAGER shall do everything reasonably necessary for the proper management of the property. PROPERTY MANAGER shall handle all tenant requests and negotiations on behalf of CITY and shall use all reasonable efforts to assure compliance by tenants with the provisions of their leases. This includes conducting periodic inspections, supervision of maintenance and arranging for such improvements, alternations and repairs as may be required of CITY. No single improvement, alteration or repair costing more than One Thousand and XX/100 Dollars ($1,000.00) shall be made by PROPERTY MANAGER without CITY's prior authorization. However, in case of emergency, which requires immediate repairs or alterations, if CITY is not readily available for consultation, PROPERTY MANAGER shall use its discretion regarding the same. 9. PROPERTY MANAGER is not authorized to practice law. Where legal assistance is needed for such matters including but not limited to enforcing the collection of rent or eviction of a tenant, legal assistance shall be obtained through counsel designated by CITY and legal action undertaken shall be in CITY's name only. All such legal expenses, including that of counsel, shall be borne by CITY. 10. MONIES COLLECTED. Monies collected by PROPERTY MANAGER on behalf of CITY shall be deposited into a building operating account, separate and apart from PROPERTY MANAGER's funds, in a state or national bank wherein deposits are insured by an agency of the Federal Government. After deducting all authorized expenses, operating funds and reserves from the gross collections from the property the net amount of all funds collected for CITY's account shall be remitted monthly by PROPERTY MANAGER to CITY at the address specified herein or as CITY may otherwise direct in writing. PROPERTY MANAGER shall also render to CITY a statement showing all receipts and disbursements for the month reported, together with supporting documentation. 11. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the final, complete, and exclusive agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically 677105.1 2 f r • incorporated herein or executed as an amendment hereto, shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. 12. AGREEMENT ASSIGNMENT. PROPERTY MANAGER shall not assign, transfer, convey, or otherwise dispose of this Agreement, or its right, title, or interest, or its power to execute such an Agreement to any individual or business entity of any kind without the prior written consent of CITY. 13. INDEPENDENT CONTRACTOR. a. PROPERTY MANAGER is, and at all times hereafter shall be, an independent contractor of CITY during the entire term of this Agreement. PROPERTY MANAGER specifically recognizes and acknowledges said status as an independent contractor and not as an employee of CITY. All personnel of PROPERTY MANAGER shall be employees of PROPERTY MANAGER and not employees of CITY. PROPERTY MANAGER shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all withholding taxes. b. PROPERTY MANAGER shall comply with all Federal and State statutes and regulations relating to the employer /employee relationship including, but not limited to, minimum wage, non- discrimination, equal opportunity, workers compensation, hazardous /unsanitary or dangerous surroundings, the Fair Labor Standards Act 29 USCA Section 201 et seq., and the Immigration Reform and Control Act of 1986* USCA Section 245(a) et seq. 14. ANTI - DISCRIMINATION. In the performance of the terms of this Agreement, PROPERTY MANAGER agrees that it will not engage in discrimination in employment of persons because of the age, race, color, sex, national origin or ancestry, or religion of such persons. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735. • 15. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: CITY: City of Seal Beach Attn: City Manager 211 Eighth Street Seal Beach, CA 90740 PROPERTY MANAGER: BANCAP COMMERCIAL REAL ESTATE SERVICES Attention: R. Whitney Latimer 6265 E. 2 Street, Suite 102 Long Beach, Ca. 90803 All notices sent pursuant to this Agreement shall be deemed received (1) immediately if served by personal delivery, and (2) on the fifth day after deposited in the custody of the U.S. Postal Service if served by mail. 16. ATTORNEY'S FEES. In the event an action is commenced by either party to enforce any rights under this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and court costs, in addition to any other relief granted by the Court. 677105.1 3 17. CONFLICT OF INTEREST. a. All information gained by PROPERTY MANAGER in performance of this Agreement shall be considered confidential and shall, not be released by PROPERTY MANAGER without CITY'S prior written authorization excepting that information which is a public record and subject to disclosure pursuant to the Public Records Act, Government Code Section 6250 et seq. PROPERTY MANAGER, its officers, employees,, agents, or subcontractors, shall not voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the project or cooperate in any way with a party who may be adverse to CITY or whom PROPERTY MANAGER reasonably should know may be adverse in any subsequent litigation. PROPERTY MANAGER shall incur no liability under this Agreement for materials submitted by it which are later released by CITY, its officers, employees, or agents. PROPERTY MANAGER shall also incur no liability for statements made by it at any public meeting, or for any document released by it for which prior written CITY authorization was obtained. If PROPERTY MANAGER or any of its officers, employees, consultants, or subcontractors does voluntarily provide information in violation of this Agreement, CITY has the right to reimbursement and indemnity from PROPERTY MANAGER for any damages caused by PROPERTY MANAGER'S conduct- - including attorney's fees. PROPERTY MANAGER shall promptly notify CITY should PROPERTY MANAGER, its officers, employees, agents or subcontractors be served with any Summons, Complaint, Subpoena, Notice of Deposition, Request for Documents, Interrogatories, Request for Admissions or other discovery requests from any party regarding this agreement and the work performed thereunder. CITY retains the right, but not the obligation, to represent PROPERTY MANAGER and /or to be present at any deposition, hearing, or similar proceeding. PROPERTY MANAGER agrees to cooperate fully with CITY and to provide CITY with the opportunity to review any response to discovery requests provided by PROPERTY MANAGER. However, CITY'S right to review any such response does not imply or mean the right by CITY to control, direct, or rewrite said response. CITY warrants that PROPERTY MANAGER will have fully met the requirements of this provision by obtaining CITY'S written approval prior to providing documents, testimony, or declarations; consulting with CITY before responding to a Subpoena or court order; in the case of depositions upon providing Notice to CITY of same; or providing CITY opportunity to review discovery responses prior to submission. For purposes of this section, a written authorization from CITY shall include a "faxed" letter. b. PROPERTY MANAGER covenants that neither it nor any of its officers or principals has any interest, nor shall they acquire any interest, directly or indirectly which will conflict in any manner or degree with the performance of their services hereunder. PROPERTY MANAGER further covenants that in . the performance of this Agreement, to PROPERTY MANAGER'S knowledge, no person having such interest shall be employed by them as an officer, employee, agent, or subcontractor. PROPERTY MANAGER further covenants that to its information and belief, PROPERTY MANAGER has not Contracted with nor is performing any services directly or indirectly, with any developer, property owner, firm or partnership owning property in the CITY and further covenants and agrees that PROPERTY MANAGER shall provide no service or enter into any Agreement with any developer, property owner, firm or partnership owning property in the CITY during the term of this Agreement which relates to such property. Notwithstanding the foregoing, CITY acknowledges PROPERTY MANAGER manages and operates on Marina Drive in the City of Long Beach • the following properties and neither the continued management nor operation of the following properties violates the provisions of this paragraph: (i) Alamitos Bay Landing; (ii) Alamitos Bay Marine Center; (iii) Crab Pot Restaurant; and (iv) Farmers Market. 18. AUTHORITY TO EXECUTE AGREEMENT. Both CITY and PROPERTY MANAGER hereby represent and covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute agreements for such party. 677105.1 4 . r r . IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. CITY OF SEAL BEACH: PROP cTY MANAGER: r i By: _ i ��.J / By: William Doane R. Whi ty Latimer Mayor CFO fo ROPERTY MANAGER ATTEST: 1111V i / AP "-- Clerk A ROVED AS TO FORM: • ______2_6" c- Quinn Barrow City Attorney 677105.1 5