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HomeMy WebLinkAboutR-1999-012 Great Western Building• • • RESOLUTION NO. R -99-l. 2 A RESOLUTION authorizing the City Manager and City Clerk to execute separate Agreements with the National Development Council and Joseph Morrier related to a Section 108 loan application to the U.S. Department of Housing and Urban Development for the Great Western Building Redevelopment Project. WHEREAS, the City of Yakima has been awarded a $1 million Economic Development Initiative ("EDI") grant from the U.S. Department of Housing and Urban Development (HUD) for the Great Western Building Redevelopment Project ("the Project"); and WHEREAS, the grant award is conditioned upon successful application by the City to the HUD Section 108 loan guarantee program for $4 million of financial assistance for the Project; and WHEREAS, the City needs technical assistance for the Section 108 loan •application, and such technical assistance is an eligible expense for the Section 108 loan program and EDI grant; and WHEREAS, the National Development Council ("NDC") has extensive experience providing technical assistance for successful Section 108 loan applications; and WHEREAS, City staff and NDC have negotiated a proposed "Technical Assistance Agreement," a copy of which is attached to this resolution, to govern NDC's technical assistance to the City to prepare the City's Section 108 loan application; and WHEREAS, the City and Joseph Morrier, owner of the Great Western Building and developer of the Project, agree that NDC should be engaged by the City to provide technical assistance for the City's Section 108 loan application; and WHEREAS, City staff and Joseph Morrier have negotiated a proposed "Agreement Between the City of Yakima and Joseph Morrier to Pay for Section 108 Loan Technical Assistance Provided by National Development Council," a copy of which is attached to this resolution, for payment of the costs of technical assistance provided by NDC; and WHEREAS, the City's share of the NDC contract is an eligible expense under the Community Development Block Grant program; and WHEREAS, it is in the best interests of the City to contract with NDC according to the terms of the proposed "Technical Assistance Agreement" and to contract with Joseph Morrier according to the terms of the proposed "Agreement Between the City of Yakima and Joseph Morrier to Pay for Section 108 Loan Technical Assistance Provided by National Development Council," now, therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk are authorized to execute the "Technical Assistance Agreement" and the "Agreement Between the City of Yakima and Joseph Morrier to Pay for Section 108 Loan Technical Assistance Provided by National Development Council,"copies of which are attached to this resolution. ADOPTED BY THE CITY COUNCIL this ATTEST: 1 Gym. City Clerk C:\word\ced\sec 108\taa&morrier k res .doc Last printed 01/28/99 9:31 AM 0.>a day of February, 1999. RA ( A(br ct`1—I i John Puccinelli, Mayor TECHNICAL ASSISTANCE AGREEMENT This Technical Assistance Agreement is made and entered into this JO day of , 1999, by and between the CITY OF YAKIMA, a state of Washington municipality, whose address is 129 North Second Street, Yakima, Washington 98901, (hereinafter called "the City") and NATIONAL DEVELOPMENT COUNCIL, a New York non-profit corporation, which is a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code, whose address is 51 East 42nd Street, Suite 300, New York, New York 10017 (hereinafter called "NDC"). WITNESSETH: WHEREAS, the City has determined that it needs the professional services of an advisor to work with the City to assist it in achieving its public goals of developing and implementing community and economic programs, and WHEREAS, NDC is willing to provide, on such terms and conditions as are hereinafter provided, technical assistance to the City utilizing NDC's expertise in economic and community development activities. NOW THEREFORE, the City and NDC do hereby agree as follows: I. SCOPE OF SERVICES The City acknowledges that NDC regularly performs services for various local governments located across the United States. The purpose of this Agreement is to set forth the terms upon which the NDC will provide the City with requested assistance generally described as technical assistance in drafting, negotiation, and closing of a U.S. Department of Housing and Urban Development ("HUD") Section 108 loan guarantee to assist in financing rehabilitation of the Great Western Building in Yakima, Washington. NDC agrees to perform such services as are requested from time to time by the City and to provide such services as it deems necessary to accomplish the goals requested, all to the best of NDC's abilities. The assistance available under this agreement to be offered to the City by NDC during the specified contract period is fully described as follows: 1. NDC will assist the City of Yakima to apply for a Section 108 loan guarantee to support financing the rehabilitation of the Great Western Building and the adjacent Yakima Mall. NDC's assistance may include, as directed: > structuring and drafting a HUD Section 108 loan guarantee application. > review of appraisals, cost assumptions, capital budgets, operating statements, marketing data and other funding commitments. TECHNICAL ASSISTANCE AGREEMENT - Page 1 of 5 ➢ identifying other funding sources, if required. ➢ advising the City on HUD and other program requirements. ➢ negotiating on behalf of the City with HUD and with the project's developers. ➢ assisting in structuring loan documents and development agreements (see note below). ➢ assistance in selecting a custodian for the Section 108 loan funds. In performing the requested services, NDC shall consult with officers and employees of the City and shall meet, as appropriate, with such representatives or other entities when necessary, including without limitation State and Federal officials and other local organizations. The City will direct NDC's activities and determine which services are to be rendered by NDC. Payment by the City evidences the City's acceptance of the assistance provided under this Agreement. Note: The scope of services of this contract expressly excludes the actual drafting of loan documentation. Such loan documentation shall be the responsibility of the City of Yakima. The City and NDC may, by mutual agreement, revise this scope of services. II. DURATION, TERMINATION NDC agrees to commence work for the City effective the first date above and shall continue providing technical assistance for twelve months. Either party may, at any time, terminate this Agreement with or without cause by sending written notice to the other party, in which event this Agreement shall be terminated effective 30 days after receipt of such notice. III. COMPENSATION The City shall compensate NDC for performance of services received hereunder in the total amount of forty thousand dollars ($40,000), payable in installments as follows: ten thousand dollars ($10,000) upon submission to HUD of a Section 108 loan guarantee application, ten thousand dollars ($10,000) upon approval by HUD of the Section 108 application, ten thousand dollars ($10,000) upon submission of the Contract for Loan Guarantee Assistance to HUD as authorized by the City, ten thousand dollars ($10,000) upon approval of the Contract for Loan Guarantee Assistance by HUD. Payment by the TECHNICAL ASSISTANCE AGREEMENT - Page 2 of 5 City for services rendered under this Technical Assistance Agreement evidences the City's acceptance of such services in accordance with the terms of the Agreement. Interest will accrue at a rate of 1 percent per month on delinquent payments to NDC made more than (45 or 60) days after the invoice date. NDC shall be solely responsible for compensating its employees and for paying all related benefits, taxes, deductions, and assessments, including but not limited to federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law as a result of this Agreement. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between NDC or any officer, employee, or agent of NDC and the City. IV. MISCELLANEOUS PROVISIONS 4.1 Ownership of Material and Documents. All final reports and other materials prepared by NDC for the City shall be the property of the City; however, all work papers and other source materials shall be the property of NDC. NDC shall deliver such materials to the City in accordance with the terms and conditions of this Agreement. The City shall not, without NDC's written consent, associate NDC's name with the report/product, if a subsequent change is made in such report/product after submission to the City. 4.2 Right to Audit. NDC shall establish and maintain appropriate procedures which will assure the proper accounting of all funds paid to it under this Agreement. The City or any of its duly authorized representatives shall have access to any books, documents, papers and records of NDC and/or its subcontractors which are directly pertinent to a specific program for the purpose of making an audit, an examination, excerpts and transcriptions. All such books and records shall be retained for such periods of time as required by applicable law, provided, however, notwithstanding any shorter periods of retention, all books, records and supporting details shall be retained for a period of at least three (3) years after the expiration of the term of this Agreement. 4.3 Confidentiality of Reports. NDC shall keep confidential all reports, information and data given to, prepared or assembled by NDC pursuant to NDC's performance hereunder which the City designates as confidential. Such information shall not be made available by NDC to any person, firm, corporation or entity without the prior written consent of the City. 4.4 Equal Opportunity/Non-Discrimination. NDC shall comply with all provisions of Title VI of the Civil Rights Act of 1964 and of the rules, regulations and TECHNICAL ASSISTANCE AGREEMENT - Page 3 of 5 relevant orders of the United States Secretary of Labor and the laws of the state of Washington regarding discrimination. 4.5 Conflicts of Interest. No board member, officer or employee of the City or its designees or agents, and no other public official who exercises any functions or responsibilities with respect to any requested technical assistance, shall be permitted to financially benefit from this Agreement or have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with this Agreement. 4.6 Limitation on Scope of Services. NDC will advise the City to the best of its ability concerning the matters within the scope of services under this Agreement. Nevertheless, and notwithstanding any other agreement between the parties, the following will apply. NDC does not and cannot warrant or guarantee that the City will obtain any particular result. Furthermore, while NDC can advise the City as to the practices or procedures of government entities, NDC does not and cannot warrant or guarantee to the City that those practices or procedures will be followed or will not change. NDC cannot warrant or guarantee future rates of return on government bonds or securities or the future performance of financial markets. NDC cannot be responsible for giving legal advice or opinions and the City understands that such advice or opinions can only be given by legal counsel. While NDC will give its opinion as to the contents of documents prepared by third parties it may review at the request of the City in the course of providing services under this Agreement, NDC will not be responsible for errors in such documents. NDC is responsible for errors in documents it prepares, except that NDC may reasonably rely on factual statements provided by sources outside NDC's control. 4.7 Notices. All notices shall be sent by certified mail, hand -delivery or over- night mail and in all events with a written acknowledgment of receipt to the address set forth at the beginning of this Agreement. 4.8 Compliance with Laws. NDC agrees to comply with all applicable federal, state and local laws in the conduct of the work hereunder. This Agreement and the rights of the parties shall be construed, interpreted, and determined in accordance with the laws of the State of Washington. 4.9 Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by the City or NDC to any other person or entity without the prior written consent of the other party. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of the assignor as stated herein. TECHNICAL ASSISTANCE AGREEMENT - Page 4 of 5 4.10 Severability. If any portion of this Agreement is changed by mutual agreement, or if any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 4.11 Entire Agreement. This Agreement contains the final agreement between the parties regarding the matters covered and supersedes any and all other agreement, either oral or in writing, regarding the matters contained herein. 4.12 •Interpretation of Terms of Agreement. The terms of this Agreement shall be governed by and construed according to the laws of the State of Washington. 4.13 Venue of Legal Proceedings. Venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first written above. THE CITY: THE CITY OF YAKIMA, WASHINGTON By: Richard A. Zais, Jr.; pity Manager ATTEST: NDC: NATIONAL DEVELOPMENT COUNCIL City Clerk City Contract No. 99-11 Resolution No. R-99-12 C:\word\ced\sec 1081NDC Kdoc obert W. Daverl• o' , Pres: ent TECHNICAL ASSISTANCE AGREEMENT - Page 5 of 5 AGREEMENT BETWEEN THE CITY OF YAKIMA AND JOSEPH MORRIER TO PAY FOR SECTION 108 LOAN TECHNICAL ASSISTANCE PROVIDED BY NATIONAL DEVELOPMENT COUNCIL THE PARTIES to this agreement are the City of Yakima, Washington, ("the City") and Joseph Morrier ("Morrier"). WHEREAS, Morrier owns real properties located in the City of Yakima known as the Great Western Building and Yakima Mall, and WHEREAS, the City and Morrier have undertaken cooperative preliminary efforts to obtain federal financial assistance for rehabilitation of the Great Western Building and adjacent Yakima Mall ("the Project"), and WHEREAS, in cooperation with Morrier, the City has applied for and received notice of initial approval for financial assistance for the Project in the total amount of $5 million from the U.S. Department of Housing and Urban Development ("HUD") Section 108 Loan Program and the Economic Development Initiative ("EDI") Grant Program, contingent on submission by the City of an approvable Section 108 loan application by April 18, 1999, and WHEREAS, the Section 108 loan program requires that a unit of local government stand as the applicant for the financial assistance, and WHEREAS, to be successful, an application for Section 108 assistance requires the technical assistance of a consultant with substantial experience in the relevant federal programs, and WHEREAS, the National Development Council ("NDC") is such an experienced consultant, and WHEREAS, NDC has offered to contract with the City to provide technical assistance in the application process at a cost of $40,000 according to the attached proposed Technical Assistance Agreement, and WHEREAS, the City is willing to contract with NDC for its technical assistance in the application process on the condition that Morrier agree to be responsible for the costs of such assistance as provided below; AGREEMENT TO PAY FOR SECTION 108 LOAN TECHNICAL ASSISTANCE Page 1 of 3 NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, the City and Morrier agree and promise as follows: 1. The City shall stand as the applicant for the Section 108 loan to finance rehabilitation of the Great Western Building and adjacent Yakima Mall ("the Project"). 2. The City and Morrier shall act in good faith and to use their best efforts to make t• he application suLLe9sfui. 3. Morrier approves NDC as the technical consultant for the application. 4. The City shall contract with NDC to provide technical assistance in the Section 108 loan application process, according to the provisions of the attached proposed Technical Assistance Agreement (TA Agreement"). 5. The City shall pay NDC according to the terms of the TA Agreement. The City, in its sole discretion, shall determine whether NDC is entitled to payment under the TA Agreement. 6. Morrier acknowledges that he will be a third -party beneficiary to the TA Agreement and promises to pay the City one-half the amounts billed by NDC within 3 days after the City provides Morrier with a copy of NDC's bill. 7. In the event the application is successful, the City and Morrier intend and agree that the cost of technical assistance provided by NDC shall be paid entirely from the financial assistance including the EDI Grant and the Section 108 loan, and that the City shall be entitled, as part of the loan closing, to reimbursement of all City funds used to pay NDC. 8. Subject to the provisions of the following paragraph, in the event the application is unsuccessful, or if the project is canceled, the City and Morrier intend and agree that the cost of technical assistance provided by NDC shall be shared equally by the City and Morrier. 9. The City and Morrier intend and agree that if either party fails to act in good faith or fails to use its best efforts to succeed in the application, then that party shall be responsible for all costs of any technical assistance provided by NDC. 10. The parties acknowledge that nothing in this agreement precludes further agreements for sharing other costs which may be necessary to close the loan sought by the application process. AGREEMENT TO PAY FOR SECTION 108 LOAN TECHNICAL ASSISTANCE Page 2 of 3 4.10 Severability. If any portion of this Agreement is changed by mutual agreement, or if any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 4.11 Entire Agreement. This Agreement contains the final agreement between the parties regarding the matters covered and supersedes any and all other agreement, either oral or in writing, regarding the maters contained herein. 4.12 Interpretation of Terms of Agreement. The terms of this Agreement shall be governed by and construed according to the laws of the State of Washington. 4.13 Venue of Legal Proceedings. Venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first written above. THE CITY: THE CITY OF YAKIMA, WASHINGTON NDC: NATIONAL DEVELOPMENT COUNCIL By: Richard A. Zais, Jr.; 6ity Manager • obert W. Dave ATTEST: City Clerk City Contract No. 99-11 Resolution No. R-99-12 C:\word\ced\sec 108\NDC K.doc TECHNICAL ASSISTANCE AGREEMENT - Page 5 of 5 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting Of: February 2, 1999 ITEM TITLE: Consideration of a Resolution authorizing the City Manager to execute: 1) A Technical Assistance Agreement with the National Development Council (NDC) for the Great Western Building Section 108 Loan Application; and 2) An Agree SUBMITTED BY: t ith Joseph Morrier for payment of NDC. ook, Director of Community and Economic Development CONTACT: Bill Cook, 575-6113 SUMMARY EXPLANATION: In November 1998, the City was awarded a $1 million grant from the U.S. Department of Housing and Urban Development (HUD) for the Great Western Building Redevelopment Project. The grant award was conditioned upon the City obtaining a $4 million loan guarantee from HUD's Section 108 program. This was also stated in the grant application approved by City Council in July of 1998. The Department of Community and Economic Development is proposing that the City enter into a professional services agreement with the National Development Council for the development, submittal, underwriting and closing of the loan guarantee application. NDC's technical assistance will cost $40,000.00. City staff and Joseph Morrier have negotiated a proposed agreement to split 50/50 the cost of technical assistance provided by NDC during the application process. The source of the City's share of payments to NDC is the Community Development Block Grant budget for Economic Development. Upon closing of the loan and initial draw down of funds, both Mr. Morrier and the City would be fully reimbursed for payments to NDC, which are an allowable expense against both the grant and loan. Should the application fail despite the good faith efforts of both parties, the costs of NDC's technical assistance would be shared equally by the City and Mr. Morrier. Resolution X Ordinance _ Contract X Other (Specify) Funding Source: CDBG , followed by HUD Financial Aid APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Approve the contracts by adopting the resolution. BOARD/COMMISSION RECOMMENDATION: Draft contracts were reviewed and approved by the City Council Economic Development Committee on January 15, 1999. COUNCIL ACTION: Page 1 of 1