HomeMy WebLinkAboutR-2008-049 Marvin Gardens OIC AgreementRESOLUTION NO. R-2008-49
A RESOLUTION approving a CDBG Grant of $50,000 for development costs and HOME
loan funds of $125,000 per house with a maximum of $500,000 per phase,
or four houses under construction at any one time, and continue with the
building of 15 total homes in phases of construction to include repayment
to the City of Yakima upon selling each completed home to 'a qualified
low/moderate income first time homebuyer as per HUD regulations, and
authorizing and directing the City Manager and the City Clerk to execute all
necessary documents, including a grant and loan agreement, between the
City of Yakima and OIC of Washington.
WHEREAS, the City of Yakima is a recipient of Federal HOME funds which may be
used, among other things, for Community Housing Development Organization Programs; and
WHEREAS, the City of Yakima is required by the HOME program regulations to make
at least 15% of its annual HOME allocation available to local CHDO's; and
WHEREAS, OIC of Washington is requesting a CDBG grant of $50,000 and HOME loan
funds of $125,000 per home for the construction of a total of fifteen homes, with a maximum of
four homes under construction at any one time with an amount not to exceed $500,000 per
phase.
WHEREAS, at the February 13, 2008, City Council Neighborhood Development
Committee meeting, the committee recommended to forward the proposal to full council; and
WHEREAS, the City Council finds that it is in the best interest of the City to approve the
$50,000 CDBG grant and the HOME loan request of $125,000 per home for a total of fifteen
homes to be constructed and sold to qualified low/moderate income first time homebuyers
within the City of Yakima, now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized and directed to execute the contract between the
City of Yakima and OIC of Washington concerning the project Marvin Gardens, for the CDBG
grant of $50,000 and the HOME loan amounts of $125,000 per home for fifteen homes.
ADOPTED BY THE CITY COUNCIL this 18th of March, 2008.
City Clerk
AGREEMENT BETWEEN THE CITY OF YAKIMA
OFFICE OF NEIGHBORHOOD DEVELOPMENT SERVICES
1. Contracting Organization: OIC of Washington (hereinafter "Contractor")
2. Address: 815 Fruitvale Blvd., Yakima, WA. 98902
3. Phone: (509) 452-2235
4. Contact Person: Chris Link
5. Title of Service or Program being Funded: Marvin Gardens (New home construction)
6. Amount of Contract Award: The City of Yakima shall provide HOME funds to the Contractor for
the construction of up to fifteen (15) homes in the Marvin Gardens Subdivision. These funds
shall be provided in the amount of One Hundred Twenty Five Thousand Dollars ($125,000) per
home with a maximum of four (4) homes under construction at any one time. Funds to be
made available to Contractor for this portion of the agreement shall not exceed Five Hundred
Thousand Dollars ($500,000) per phase.
In addition to the Five Hundred Thousand Dollars ($500,000) in HOME funds available as
described above, a one-time grant of Fifty Thousand Dollars ($50,000) will be given to the
Contractor to be used for °Soft Costs' as defined by HUD regulations. These "Soft Cost" funds
shall be provided at the rate of Five Thousand Dollars ($5,000) per home, at the time a building
permit is issued for the home. This grant may be provided from either CDBG or HOME fund
sources, at the City's discretion, in an amount not to exceed Fifty Thousand Dollars ($50.000).
7. The term of this Contract shall commence upon execution hereof and shall terminate at
midnight, December 31, 2010 , unless sooner terminated by either party in accordance with
Section XXII of Exhibit "A", attached hereto and incorporated herein by this reference.
8. This contract award and the rights and obligations of both parties hereto shall be subject to and
govemed by the following:
1) "Terms and conditions" attached hereto as Exhibit "A" and incorporated herein by this
reference; and
2) Operating budget including the funding sources and uses statement and the work plan,
attached hereto as Exhibit 'B' and incorporated herein by this reference.
3) City of Yakima Resolution No.,2c(R —5/9 , A copy of which is attached hereto as
Exhibit "C' and incorporated herein by this reference.
9. Final Contract payment shall be subject to satisfactory completion of the project described in
Exhibit 'B", the City's receipt of all required Contractor/Subcontractor lien releases, and
satisfaction of all contract terms and conditions as stated in Exhibit "A", Exhibit "B" and Exhibit
"C"
This written document, together with all of the incorporated exhibits hereto, constitutes the entire
Contract and terms of agreement between the parties hereto.
IN WITNESS EREOF t pa :ie. ave executed this Contract as of the d y an year stated below.
William Cook,Date
7/?' 6)f
R.A. Z s, Jr., Manager D to
Contr or Date
CITY CONTRAC f NO: Prea ✓°
RESOLUTION NO: -61-619
-zoo.wo
ATTEST:
City Clerk
City Contract No.:
EXHIBIT "A'
TERMS AND CONDITIONS
DESIGNATION
The City of Yakima, as recipient of a housing and community development grant from the U.S.
Department of Housing and Urban Development, hereby designates Contractor to undertake,
and the Contractor hereby agrees to undertake that certain community development or housing
assistance project described in Exhibit "B", Scope of Work (hereinafter "the project").
II SUB -GRANT
A. NOTICE TO PROCEED
No work on the project shall occur prior to or without written approval from the City of
Yakima Office of Neighborhood Development Services (ONDS). ONDS shall fumish
the Contractor with written notice to proceed upon release of funds from HUD related
to the project pursuant to 24 CFR Part 58.
B. AMOUNT OF GRANT
The City of Yakima shall provide to the Contractor HOME funds for the construction of
up to fifteen (15) homes in the Marvin Gardens Subdivision. HOME funds shall be
provided in the amount of One Hundred Twenty Five Thousand Dollars ($125,000) per
home, with a maximum of four houses under construction at any one time. The total
HOME funds to be made available to the Contractor under this part of the Contract
shall not exceed Five Hundred Thousand Dollars ($500,000) per phase.
In addition to the Five Hundred Thousand Dollars in HOME funds available as
described above, a one-time grant of Fifty Thousand Dollars ($50,000) will be given to
the Contractor to be used for `Soft Costs" as defined by HUD regulations. These "Soft
Cost' funds shall be provided at the rate of Five Thousand Dollars ($5,000) per home,
at the time a building permit is issued for the home. This grant may be provided from
either CDBG or HOME fund sources, at the City's discretion, in an amount not to
esceed Fifty Thousand Dollars ($50,000).
III GENERAL BUDGET PROVISIONS
The City reserves the right to hold payment until adequate documentation has been provided
by the Contractor and reviewed by the City. The Contractor agrees to the following provisions
in satisfying the terms and conditions of this contract:
A. PAYMENT AND DISBURSEMENTS
Disbursements by the City of Yakima from this contract/grant award shall be on a
reimbursement basis covering actual expenditures by the Contractor or obligations of
the Contractor currently due and owing, but not paid. Disbursements shall be limited
to allowable costs and so shall be made upon the occurrence of all the following, in
addition to any other conditions contained herein or in the special conditions:
1. Receipt by the City of Yakima ONDS of a written reimbursement request on
forms provided by the City of Yakima ONDS supported by copies of vouchers,
invoices, salary and wage summaries, or other acceptable documentation; and
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2. Determination by the City of Yakima ONDS that the expenditures or
obligations for which reimbursement is sought constitute allowable costs under
the principles set forth in Federal Management Circular 74-4 "eligible costs
under the HOME Program" and that also fall within the applicable Project
Budget.
B. No payment shall be made for any service rendered by the Contractor except for
services within the scope of a category set forth in the budget in Exhibit "B" of this
Contract, and all funds received must be used for service as identified in Exhibit "B" of
this Contract.
C. 1. The Contractor shall submit to the City of Yakima ONDS a written request for
approval of budget revision when a proposed revision would result in an
increase or decrease of ten percent (10%) or more per home, from what has
been set forth in the approved budget subject category. The City's written
budget revision approval must be received by the Contractor prior to the
Contractor incurring any expenditures against the revised budget subject
categories.
2. When the revision of the Contractor budget does not exceed ten percent (1 0%)
per home, or of an approved budget subject category, the Contractor must
submit a revised budget to the City of Yakima ONDS prior to the submittal of
claims against the budget.
IV COMMENCEMENT OF WORK
The City of Yakima ONDS shall fumish the Contractor with written notice to proceed upon
release of funds from HUD related to the project. No work on the project shall occur prior to
the notice to proceed without written approval from the City of Yakima ONDS.
V BILLING PROCEDURES
A. The Contractor shall submit monthly written claims for reimbursement of services
performed under this contract in the manner prescribed in paragraph III above, and as
prescribed by the City of Yakima ONDS.
VI LOCAL FINANCIAL SUPPORT
The sub -grant shall not be utilized to substantially reduce the amount of local financial support
for community development activities below the level of such support prior to the availability of
such assistance.
VII BUDGET SURPLUS
The Contractor agrees that funds determined by the City of Yakima ONDS to be surplus
budget funds at the end of the project shall be subject to cancellation by the City of Yakima
ONDS and may be negotiated if they are to be included in future Contracts.
VIII COMPLIANCE WITH LAWS
A. GENERAL
The Contractor, in performance of this Contract, agrees to comply with all applicable
Federal, State and Local Laws and ordinances, and the rules and regulations
promulgated by the U.S. Department of Housing and Urban Development, including,
but not limited to, Federal HOME Regulations and other policies and guidelines
established by the City of Yakima ONDS.
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B. PROCUREMENT AND CONSTRUCTION OR REPAIR PROJECT REQUIREMENTS
The following federal provisions may apply, among others, to this Contract:
1. Office of Federal Contract Compliance Programs regulations, 41 CFR Part 60,
Executive Order 11246 as amended by Executive Order 12086, and 24 CFR
570.601 (Discrimination prohibited).
2. The Lead Based Paint Poisoning Prevention Act, 42 USC Section 4831 et
seq., and HUD regulations implementing the Act, 24 CFR Part 35, where,
residential structures are involved. The Contractor shall provide whatever
assistance is necessary to enable the City of Yakima's Building Official to carry
out its inspection and certification responsibility under those regulations.
3. Historic and Archaeological Preservation requirements as set forth in 24 CFR
Section 570.604.36 CFR Part 800, RCW 27.44.010 (Native American Burial
Law), RCW 27.53.010-.090 (Protection of Archaeological Resources), and
RCW 43.51.750-.820 (Preservation of Historic Properties).
4. Architectural Barriers Act of 1968 as amended, 42 USC Section 4151 et seq.,
implementing regulations, and Chapter 70.92 RCW.
5. Clean Air Act as amended, 42 USC Section 1857 et weq; Water Pollution
Control Act; as,amended, 33 USC Section 1251 et seq.; and Environmental
Protection Agency regulations, 40 CFR Part 15.
6. Section 3 of the Housing and Urban Development Act of 1968 (12 USC
Section 1701 u) and 24 CFR Part 135 (Employment opportunities for, project
area businesses and low income persons).
7. Contract Work Hours and Safety Standards Act, 40 USC Sections 327-333,
(Overtime Compensation).
8. Davis -Bacon Act, as amended, 40 USC Sections 276a — 276a — 5, and RCW
Chapter 3 —12 (Prevailing Wage Rates).
9. Attachment 0 of the Office of management and Budget Circular, A-102
(Procurement Standards) and Federal Management Circular, FMC 74-4.
10. The Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970, as amended, and regulations contained in 24 CFR Parts 42 and 570.
11. Title VI of the Civil Rights Act of 1964 (P.L. 88-352) as amended, and HUD
regulations with respect thereto including the regulations under 24 CFR Part 1.
In the sale, lease or other transfer of land acquired, cleared or improved with
assistance provided under this Agreement, and Contractor shall cause or
require a covenant running with the land to be inserted in the deed or lease for
such transfer, prohibiting discrimination upon the basis of race, color, religion,
sex, or national origin, in the sale, lease or rental, or in the use or occupancy of
such land or any improvements erected or to be erected thereon, and
providing that the Contractor, the County, and the United States are
beneficiaries of and entitled to enforce such covenant. • The Contractor, in
undertaking its obligation in carrying out the program assisted hereunder,
agrees to take such measures as are necessary to enforce such covenant and
will not itself so discriminate.
12. Age Discrimination Act of 1975 (24 CFR 146).
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13. Fair Housing Act (24 CFR 100, CFR 107 and 24 CFR 1).
14. Housing Quality Standards (24 CFR 882.109).
15. WBE/MBE (24 CFR 85.36 (e)).
16. ENVIRONMENTAL REVIEW
A. NEPA
The City of Yakima ONDS retains environmental review responsibility
for purposes of fulfilling requirements of the National Environmental
Policy Act, under which the City of Yakima ONDS may require the
Contractor to fumish data, information and assistance for the City's
review and assessment in determining whether the City must prepare
an Environmental Impact Statement.
B. SEPA
The Contractor retains responsibility for fulfilling the requirements of
the State Environmental Policy Act and regulations and ordinance
adopted thereunder.
C. COMPLIANCE AS PRE -CONDITION
Performance by either the City of Yakima ONDS or the Contractor
under this Agreement shall be contingent upon satisfaction of all
applicable requirements of the National and State Environmental
Policy Acts.
IX NON-DISCRIMINATION IN EMPLOYMENT
A. The City of Yakima is an Equal Opportunity Employer.
B. The Contractor agrees that it shall not discriminate against any employee or applicant
on the grounds of race, creed, color, religion, national origin, sex, marital status, age,
or the presence of any sensory, mental or physical handicap. Such action shall
include, but not be limited to: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other forms
of compensation; and programs for training including apprenticeships.
The Contractor specifically agrees to abide by the Office of Federal Contract
Compliance Programs regulations, 41 CFR Part 60, Executive Order 11246 as
amended by Executive Order 12086, and HUD Anti Discrimination Requirements, 24
CFR 570.601.
X NON-DISCRIMINATION IN CLIENT SERVICES
A. The Contractor agrees to affirmatively market units made available through this
contract (24 CFR 92.352), and shall not, on the grounds of race, color, sex, religion,
national origin, creed, marital status, or age:
1. Deny a qualified individual any facilities, financial aid, services or other benefits
provided under this Contract;
2. Provide any service(s) or other benefits to a qualified individual which are
different, or are provided in a different manner, from those provided to others
under this Contract; separate treatment in any manner related to his receipt of
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any service(s) or other benefits provided under this Contract;
3. Deny any qualified individual an opportunity to participate in any program
provided by this Contract through the provision of service(s) or otherwise, or
will afford him an opportunity to do so which is different from that afforded
others under this Contract.
B. The Contractor shall abide by all provisions of Section 504 of the HEW Rehabilitation
Act of 1973 prohibiting discrimination against handicapped individuals either through
purpose or intent.
C. If assignment and/or subcontracting has been authorized, said assignment or
subcontract shall include appropriate safeguards against discrimination in client
services binding upon each Contractor or Subcontractor. The Contractor shall take
such action as may be required to ensure full compliance with the provisions of this
clause,, including sanctions for noncompliance.
XI LICENSING AND PROGRAM STANDARDS
The Contractor agrees to comply with all •applicable Federal, State, County and Municipal
standards for licensing, certification and operation of facilities and programs, and accreditation
and licensing of individuals, and any other standards or criteria as described in the Contract to
assure quality of services.
XII MONITORING AND ACCESS TO RECORDS
A. Contractor agrees that City may carry out monitoring and evaluation activities so as to
ensure compliance by Contractor with this Contractor agreement, with the HOME
Compliance Documents, and with all other laws, regulations, and ordinances related to
the performance hereof.
Contractor agrees to provide City with any data determined by City to be necessary for
its effective fulfillment of its monitoring and evaluation responsibilities.
B. At any reasonable time and as often as City may deem necessary, Contractor shall
make all of its records available to City, HUD, the Comptroller General of the United
States, or any of their authorized representatives, and shall permit City, HUD, the
Comptroller General of the United States, or any of their authorized representatives to
audit, examine, and make excerpts and/or copies of same. Contractor records shall
include, but shall not be limited to, the following: payroll, personnel and employment
records; procurement bidding documents; contracts; sales closing statements; and
invoices.
C. The City shall have the right to review and audit all records of the Contractor pertaining
to any payment by the City. Said records shall be maintained for a period of five years
after the completion of the project.
D. The Contractor shall be required to make reasonable changes in the services as
completed or to be completed if said services fall below the standards and
specifications set forth in the Special Terms and Conditions, Project Description, or
Statement of Work.
XIII SAFEGUARDING OF CLIENT INFORMATION
The use or disclosure by any party of any confidential information conceming a recipient or
client for any purpose not directly connected with the City's or the Contractor's responsibilities
with respect to services provided under this Contract is prohibited except on written consent of
the recipient or client, his/her attomey or his/her responsible parent or guardian or as otherwise
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provided by law.
XIV ASSIGNMENT AND/OR SUBCONTRACTING
The Contractor shall not assign or subcontract any portion of the services provided within the
terms of this Contract without obtaining prior written approval from the City. All terms and
conditions of this Contract shall apply to any approved subcontract or assignment related to the
Contract.
XV STANDARDS FOR FISCAL ACCOUNTABILITY
A. The Contractor agrees 10 provide project line item draw requests, annual verification of
rents, annual audited financial statement to compare income and expenses, records,
documents and accounting procedures which accurately reflect all direct and indirect
costs related to the performance of this Contract. Such fiscal books, records,
documents, reports and other data shall be retained in a manner consistent with the
"Budgeting, Accounting, Reporting System for Counties and Cities, and Other Local
Governments", hereinafter referred to as 'BARS', as issued by the Office of State
Auditor, State of Washington. The Contractor further agrees that the City of Yakima
ONDS shall have the right to monitor and audit the fiscal components of the
organization to insure that actual expenditures remain consistent with the terms of this
Contract. The Contractor shall retain all books, records, documents and other
material relevant to the Contract for seven (7) years after settlement of this Contract.
The Contractor agrees that the City of Yakima, the U.S. Department of Housing and
urban Development, the Washington State Auditor, or their designees, shall have full
access to and a right to examine any of said materials at all reasonable times during
said period.
B. The Contractor agrees that any contributions or payments made for services furnished
under this Contract shall be used for the sole benefit of this program.
XVI PROGRAM PROPERTY
Any personal property having a useful life of more than one year and purchased wholly or in
part with sub -grant funds at a cost of three hundred dollars ($300) or more per item, shall upon
its purchase or receipt become the property of the City of Yakima and/or federal government.
Final ownership and disposition of such property shall be determined under the provisions of'
Attachment N of OMB, A-102. The Contractor shall be responsible for all such property,
including its care and maintenance, and shall comply with the following procedural
requirements:
1. Property records shall be maintained accurately and provide for. A description of the
property; manufacturer's serial number or other identification number, acquisition date
and cost; source of the property; percentage of HOME funds used in the purchase of
property; location, use, and condition of the property.
2. A physical inventory of property shall be taken and the results reconciled with the
property records at least once every two years to verify the existence, current
utilization, and continued need for the property.
3. A control system shall be in effect to insure adequate safeguards to prevent lose,
damage, or theft to the property. Any loss, damage, or theft of the property shall be
investigated and fully documented.
4. Adequate maintenance procedures shall be implemented to keep the property in good
condition.
5. If the Contractor elects to capitalize and depreciate such nonexpendable personal
property in lieu of claiming the acquisition cost as a direct item of cost, title to such
property shall remain with the Contractor. An election to capitalize anddepreciate or
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claim acquisition cost as a direct item of cost shall be irrevocable.
6. Nonexpendable personal property purchased by the Contractor under the terms of this
Contract, in which title is vested in the City of Yakima or Federal Government shall not
be rented, loaned, or otherwise passed to any person, partnership, corporation,
association or organization without the prior express approval of the City of Yakima
ONDS.
7. Any nonexpendable personal property fumished to, or purchased by, the Contractor,
title to which is vested in the City of Yakima ONDS or federal govemment shall, unless
otherwise provided herein or approved by the Contracting Officer, be used only for the
performance of activities defined in this Contract.
8. As a condition prerequisite to reimbursement for the purchase of nonexpendable
personal property, title to which shall vest in the City of Yakima ONDS or federal
govemment, the Contractor agrees to execute such security agreements and other
documents as shall be necessary for the City of Yakima ONDS or federal govemment
to perfect its interest in such property in accordance with the "Uniform Commercial
Code -Secured Transactions" as codified in Article 9A of RCW Chapter 62A.
9. The Contractor shall be responsible for any loss or damage to the property of the City
of Yakima ONDS or federal govemment (including expenses entered thereunto) which
results from negligence, willful misconduct, or lack of good faith on the part of the
Contractor to maintain and administer in accordance with sound management
practices that property, to ensure that the property will be returned to the City of
Yakima ONDS or federal govemment in like condition to that in which condition the
property was acquired by purchase, fair wear and tear accepted.
XVII RELATIONSHIP OF THE PARTIES
The parties intend that an independent contractor/city relationship shall be created by this
Contract. The City of Yakima ONDS is interested only in the results to be achieved, the
implementation of services will lie solely with the Contractor. No agent, employee, or
representatives of the Contractor shall be deemed to be an employee, agent, servant or
representative of the City of Yakima for any purpose, and the employees of the Contractor are
not entitled to any of the benefits the City of Yakima provides for City Employees. The
Contractor shall be solely and entirely responsible for its' acts and for the acts of its agents,
employees, servants, Subcontractors, or otherwise during the performance of this Contract.
XVIII TAXES AND ASSESSMENTS
Contractor shall be solely responsible for and shall pay all taxes, deductions, and
assessments, including but not limited to, sales tax, federal income tax, FICA, social security
tax, assessments for unemployment and industrial injury insurance, and other deductions from
income which may be required by law or assessed against either party as a result of this
Contract. In the event the City is assessed a tax or assessment as a resutt of this Contract,
Contractor shall pay the same before it becomes due.
XIX QUARTERLY REPORT
The Contractor agrees to submit a written quarterly report outlining the progress towards
completion of activities included in Exhibit B, to the City of Yakima.
XX INSURANCE
A. NO INSURANCE
it is understood that the City does not maintain liability insurance for the Contractor
and/or its employees, agents, officers, and subcontractors.
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B. COMMERCIAL LIABILITY INSURANCE
On or before the effective date of this Contract, the Contractor shall provide the City
with a certificate of insurance as proof of liability insurance in the amount of One Million
Dollars ($1,000,000.00) that clearly states who the provider is, the amount of
coverage, the policy number, and when the policy and provisions provided are in effect
(any statement in the certificate to the effect of "this certificate is issued as a matter of
information only and confers no right upon the certificate holder" shall be deleted).
Said policy shall be in effect for the duration of this Contract. The policy shall name
the City, its elected officials, officers, agents and employees as additional insured, and
shall contain a clause that the insurer will not cancel or change the insurance without
first giving the City thirty (30) calendar days prior written notice (any language in the
clause to the effect of "but failure to mail such notice shall impose no obligation or
liability of any kind upon the company' shall be crossed out and initiated by the
insurance agent). The insurance shall be with an insurance company or companies
rated A -VII or higher in Best's Guide and admitted in the State of Washington.
C. COMMERCIAL AUTOMOBILE LIABILITY INSURANCE
On or before the date this Contract is fully executed by the parties, Contractor shall
provide the City with a certificate of insurance as proof of commercial automobile
liability insurance with minimum liability limit of One Million Dollars ($1,000,000.00)
combined single limit bodily injury and property damage. Automobile liability will apply
to "Any Auto" and be shown on the certificate. The certificate shall clearly state who
the provider is, the amount of coverage, the policy number, and when the policy and
provisions provided are in effect (any statement in the certificate to the effect of "this
certificate is issued as a matter of information only and confers no right upon the
certificate holder shall be deleted). Said policy shall be in effect for the duration of this
Contract. The policy shall name the City, its elected officials, officers, agents, and
employees as additional insured/s, and shall contain a clause that the insurer will not
cancel or change the insurance without first giving the City thirty (30) calendar days
prior written notice (any language in the clause to the effect of "but failure to mail such
notice shall impose no obligation or liability of any kind upon the company" shall be
crossed out and initialed by the insurance agent). The insurance shall be with an
insurance company or companies rated A -VII or higher in Best's Guide and admitted in
the State of Washington.
D. WORKERS' COMPENSATION
The Contractor agrees to pay all premiums provided for by the Workman's
Compensation Act of the State of Washington. Evidence of the contractor's workers'
compensation coverage will be fumished to the City. The contractor holds the City
harmless for any injury or death to the contractor's employees while performing this
Contract.
E. INSURANCE PROVIDED BY SUBCONTRACTORS
The Contractor shall ensure that all subcontractors it utilizes for work/services
rendered under this Contract shall comply with all of the above insurance
requirements.
XXI INDEMNIFICATION AND HOLD HARMLESS
All services to rendered or performed under this Contract will be performed or rendered entirely
to the Contractor's own risk and the Contractor expressly agrees to defend, indemnify and hold
harmless the City of Yakima and all of its officers, agents, employees and elected officials from
any and all liability, Toss, fines, penalties or damage, inducing reasonable cost of defense, they
may suffer as a result of claims, demands, actions, or damages to any and all persons or
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property, costs or judgments against the City of Yakima which result from,.arise out of, or are in
any way connected with the services to be preformed by the Contractor under this Contract.
Nothing in this section of the Contract shall be construed to create a liability or a right of
indemnification in any third party.
XXII CONTRACT, TERMINATION AND CLOSE OUT
If the Contractor fails to comply with the terms and conditions of this Contract, the City of
Yakima ONDS may pursue such remedies as are legally available including but not limited to,
the termination of this Contract in the manner specified herein.
A. TERMINATION FOR CAUSE
If the Contractor fails to comply with the terms and conditions of this Contract and any
of the following conditions exist:
1. The lack of compliance with the provisions of this Contract are of such scope
and nature that the City of Yakima ONDS deems continuation of this Contract
to be substantially non -beneficial to the public interest;
2. The Contractor has failed to take satisfactory corrective action as directed by
the City of Yakima ONDS or its authorized representative within the time
specified by same;
3. The Contractor has failed within the time specified by the City of Yakima
ONDS or its authorized representative to satisfactorily. substantiate its
compliance with the terms and conditions of this Contract, then:
The City of Yakima ONDS may terminate this Contract in whole or in part, and
thereupon shall notify the Contractor of the termination, the reasons therefore and the
effective date provided such effective date shall not be prior to notification to the
Contractor. After this effective date, no charges incurred under any terminated
portions are allowable.
B. TERMINATIONS ON OTHER GROUNDS
This Contract may also be terminated in whole or in part by mutual agreement of the
parties.
C. TERMINATION FOR WITHDRAWAL, REDUCTION OR LIMITATION OF FUNDING
In the event that funding from the Federal govemment is withdrawn, reduced or limited
in any way after the effective date of this Contract, and prior to its normal completion,
the City of Yakima ONDS may summarily terminate this Contract as to the funds
reduced or limited, notwithstanding any other termination provision of this Contract. If
the level of funding so reduced or limited is, so great that the City of Yakima ONDS
deems that the continuation of the program covered by this Contract is no longer in the
best interest of the public, the City of Yakima ONDS may summarily terminate this
Contract in whole notwithstanding any other termination provisions of this Contract.
Termination under this Section shall be effective upon receipt of written notice by the
Contractor or its representative.
The City of Yakima ONDS agrees to promptly notify the Contractor of any proposed
reduction in funding by Federal or other officials. The Contractor agrees that upon
receipt of such notice it shall take appropriate and reasonable action to reduce its
spending in the affected funding area so that expenditures do notexceed the funding
level which would result if said proposed reduction became effective.
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This Contract may further be terminated by the City of Yakima upon written demand by
the City of Yakima ONDS for assurances that the terms of the Project Description are
being timely complied with, if such assurances are not made to the City's satisfaction
within thirty (30) days of the date of such written demand.
D. CLOSEOUT
In the event that this Contract is terminated in whole or in part for any reason, the
following provisions shall apply:
1. Upon written request by the Contractor, the City of Yakima shall make or
arrange for payment to the Contractor of allowable reimbursable costs not
covered by previous payments.
2. The Contractor shall submit within thirty (30) days after the date of expiration
of this Contract, all financial, performance and other reports required by this
Contract, and in addition, will cooperate in a program audit by the City of
Yakima or its designee.
3. In the event a financial audit has not been performed prior to closeout of this
Contract, the City of Yakima ONDS retains the right to withhold a just and
reasonable sum from the final payment to the Contractor after fully considering
the recommendation on disallowed costs resulting from the final audit.
XXIII COVENANT AGAINST CONTINGENT FEES
The Contractor warrants that no person or selling agency has been employed or retained to
solicit or secure this contract upon an agreement or understanding for a commission,
percentage, brokerage or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agency maintained by the Contractor for the purpose of
securing business. The City of Yakima ONDS shall have the right, in the event of breach of
this clause by the Contractor, to annul this Contract without liability or, in its discretion, to
deduct from the Contract price or consideration or otherwise recover the full amount of such
commission, percentage, brokerage or contingent fee.
XXIV CONFLICT OF INTEREST
The City may, by written notice to the Contractor:
A. Terminate this Contract if it is found, after due notice and hearing, by the City that
gratuities in the form of entertainment, gifts, or otherwise offered or given by the
Contractor, or agent or representative of the Contractor, to any officer or employee of
the City of Yakima, with a view towards securing this Contract or securing favorable
treatment with respect to the awarding or amending or the making of any
determinations with respect to this contract.
B. In the event this Contract is terminated as provided in (A) above, the City of Yakima
shall be entitled to pursue the same remedies against the Contractor as it could pursue
in the event of a breach of the Contract by the Contractor. The rights and remedies of
the City of Yakima provided for in this clause shall not be exclusive and are in addition
to any other rights and remedies provided by law.
C. The Contractor warrants and covenants that it presently has no interest and shall not
acquire any interest, directly or indirectly, which could conflict in any manner or degree
with the performance of its services hereunder. The Contractor further warrants and
covenants that in the performance of this contract, no person having such interest shall
be employed.
XXV RIGHTS IN DATA
11 of 13 8/30/05
The City of Yakima ONDS may duplicate, use and disclose in any manner and for any
purposes whatsoever, and have others so do, all data delivered under this agreement. The
Contractor hereby grants to the City of Yakima, a royalty -free, non-exclusive, and irrevocable
license to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others to
do so, all data now or hereinafter covered by copyright: Provided, that with respect to data not
originated in the performance of this Contract such license shall be only to the extent that the
Contractor has the right to grant such license without becoming liable to pay compensation to
others because of such grant. The Contractor shall exert all reasonable effort to advise the
City of Yakima ONDS, at the time of delivery of data fumished under this agreement, of all
invasions of the right of privacy contained therein and of all portions of such data copied from
work not composed or produced in the performance of this agreement and not licensed under
this clause. The Contractor shall report to the City of Yakima ONDS, promptly and in written
detail, each notice or claim of copyright infringement received by the Contractor with respect to
all data delivered under this agreement. The Contractor shall not affix any restrictive markings
upon any data, and if such markings are affixed, the City of Yakima ONDS shall have the right
at any time to modify, remove,. obliterate, or ignore such markings.
XXVI RULE OF CONSTRUCTION
In the event of an inconsistency in this contract/grant award unless otherwise provided herein,
the inconsistency shall be resolved by giving precedence in the following order.
1. Appropriate provisions of state and federal statutes and regulations including HUD
Home Regulations.
2. General Terms and Conditions (Exhibit A).
3. Those attachments incorporated by reference herein, including the statement of
work/project description, approved HUD grant budget, in the order in which attached,
(Exhibit B),
4. City of Yakima Resolution No. (Exhibit C), and
5. Any other provisions whether incorporated by reference herein or otherwise provided
that nothing herein shall be construed as giving preference to provisions of this
contract/grant award over any provisions of law.
XXVII GOVERNING LAW
This Contract has been and shall be construed as having been entered into and delivered
within the State of Washington, and it is mutually understood and agreed by each party hereto
that this Contract shall be govemed by laws of the State of Washington, both as to
interpretation and performance.
XXVIII VENUE
The venue for any action to enforce or interpret this Contract shall lie in the Superior Court of
Washington for Yakima County, Washington.
XXIX MODIFICATION
Either party may request changes in this Contract, however, no change or addition to this
Contract shall be valid or binding upon either party unless such change or addition be in
writing, and executed by both parties, except budget adjustments as specified in Section IV of
this Contract.
XXX SEVERABILITY
12 of 13 8/30/05
It is understood and agreed by the parties hereto that if any part, term, or provision of this
Contract is held by the courts to be illegal, the validity of the remaining provisions shall not be
affected; and the rights and obligations of the parties shall be construed and enforced as if the
Contract did not contain the particular provision held to be invalid. If it should appear that any
provision hereof is in conflict with any statutory provision of the United States or the State of
Washington, said provision which may conflict, therewith, and shall be deemed modified to
conform to such statutory provision.
XXXI PROGRAM INCOME
Any program income shall be accounted for by the Contractor, over the contract time period,
and shall be reported to the City. Income is to be used to continue or benefit the program, as
determined by the intent and purpose of the project.
XXXII RETURN OF HOME FUNDS
The Contractor shall retum to the City all monies provided hereunder by the City to the
Contractor if any of the following occur:
1. The Contractor materially changes the primary purpose and scope of the HOME
Project as described on Exhibit 'B" to the Contract; or
2. The Department of Housing and Urban Development requires a 20 year 'Affordability
Period" from the date of the closing of activity as reported in "HUD's IDIS" financial
reporting system, and if the real property that is the subject of the HOME Project
described on Exhibit "B" to the Contract is sold or transferred in any way by the
Contractor, other than sold to qualified low/moderate income homeowner/s as per HUD
program regulations.
XXXIII DEED RESTRICTIONS OR COVENANT
1. The Contractor shall have either a deed restriction outlining a lien on the property to
be forgiven after such time as the affordability period for the project is satisfied
according to HUD guidelines; or
2. The Contractor shall agree to a covenant restriction recorded against the property
outlining the "Affordability Period" and need for the project to continue its low to
moderate benefit as specified within HOME regulatory guidelines.
XXXIV PROJECT PROCEEDS
HOME funds provided by the City of Yakima to the Contractor shall be repaid to the
City at no interest from project cash flow if and to the extent that annual net operating
income to the Contractor (after project operating expense and first lien debt service)
exceeds ten (10) percent of the Contractors investment in the project (including equity
and private lending) in any of the first five (5) years after issuance of a Certificate of
Occupancy.
XXXV NON -COMPLETION OF THE PROJECT
In the unlikely event that the Contractor is unable to complete the project, ownership of
any unsold portion of the project shall be offered with a "First Right of Refusal" to the
City of Yakima subject to any existing project based liens.
13 of 13 8/30/05
Exhibit "B"
Addendum to CHDO Contract
Between City of Yakima and OIC of Washington
for the Construction of
15 Homes in the Marvin Gardens Subdivision
This agreement is between the City of Yakima Office of Neighborhood Development .
Services and OIC of Washington
1. In the Marvin Gardens Subdivision project, the City of Yakima ONDS shall pay the
complete cost of construction of all public infrastructure as approved by the City Council.
2. The City of Yakima shall provide to OIC funds for the construction of up to 15 homes
in the Marvin Gardens Subdivision, in amounts as stipulated in the attached spreadsheets,
for costs eligible for reimbursement with HOME CHDO funds as outlined in 24 CFR
92.206. These funds will be provided to OIC in phases for up to four homes at a time, in
an amount not to exceed $500,000 per phase. Additional funding will not be provided for
subsequent phases until at least the first home in the previous phase has been sold and
construction funding for that home repaid. The only exception to this rule shall be that
OIC may, at its discretion, complete (and be paid for) the foundations for 8 homes (2
phases) as part of the first phase of 4 homes. This will help facilitate a rapid transition
between phases. These construction funds must be repaid to the City upon sale of each
home through the transfer of funds with the title company.
3. Upon sale of each home, the City shall make available (also through the title
company) to a qualified buyer a second mortgage of up to $35,000 from CDBG funds, "
with terms and amounts determined by the buyers' income and need. These loans shall
be subject to 5 -year affordability review, be due upon sale of the home, and shall contain
the necessary resale/recapture language.
4. In addition to the construction "hard costs", ONDS will provide from HOME funds a
one-time grant of $50,000 for "soft costs" as defined by regulation to be used for project
specific expenses. These funds shall be available at the rate of $5,000 per house at the
time a building permit is issued for the house. At the City's discretion, these funds may
be drawn from either CDBG (under 570.201(k)) or from HOME funds (under 92.206(D).
5. Construction funds will be drawn from HOME CHDO budget for fiscal years 2007,
2008, and if needed 2009. Funds for the $35,000 buyer loan and the soft cost funds shall
be drawn from CDBG funds.
6. The amounts to be provided (as outlined in the attached spreadsheets) will be
reviewed and adjusted periodically as necessary, subject to the approval of the City
Council.
7. In the unlikely event that OIC of Washington is unable to complete the project,
ownership of any unsold portion of the project shall be offered with a "first right of
refusal" to the City of Yakima ONDS subject to any existing project based liens.
OIC of Washington
PROJECT: MARVIN GARDENS
20 New Construction Homes
15 OIC of WA / 5 Habitat for Humanity
FOUR PHASES --- HOW THE MONEY WORKS WITH TIMELINE
Phase I
July, 2008 (First house begins)
New Construction Cost
ONDS Construction Loan
OIC of WA: Housing Trust Fund ""
June, 2008 (First house sells)
House Appraisal / Sales Price
Bank Loan Repays ONDS
ONDS 1st Time HomeBuyers Loan
OIC of WA Proceeds (Offset other costs)
Phase II
November 08 (Fifth house begins)
New Construction Cost
ONDS Construction Loan
OIC of WA: Housing Trust Fund
December, 2008 (Fifth house sells)
House Appraisal / Sales Price
Bank Loan Repays ONDS
ONDS 1st Time HomeBuyers Loan
OIC of WA Proceeds (Offset other costs)
Phase III
March 09 (Nineth house begins)
New Construction Cost
ONDS Construction Loan
OIC of WA: Housing Trust Fund
May, 2009 (Nineth house sells)
House Appraisal / Sales Price
Bank Loan Repays ONDS
ONDS 1st Time HomeBuyers Loan
OIC of WA Proceeds (Offset other costs)
Phase IV
July, 2009 (Thirteenth house begins)
New Construction Cost
ONDS Construction Loan
OIC of WA: Housing Trust Fund
December, 2009 (Fifteenth house sells)
House Appraisal / Sales Price
Bank Loan Repays ONDS
ONDS 1st Time HomeBuyers Loan
OIC of WA Proceeds (Offset other costs)
House 1 House 2
July 08 -Oct 08
5142,000
-5125,000
-517,000
$0
5135,000
-$90,000
-535,000
510,000
Nov 08 -Feb 09
5142,000
-5125,000
-$17,000
$0
$135,000
-$90,000
435,000
$10,000
Mar 09- June 09
5142,000
-5125,000
-$17,000
$0
5135,000
490,000
-$35,000
510,000
July 09 - Oct 09
$142,000
-5125,000
-517,000
50
5135,000
-$90,000
-$35,000
$10,000
Aug 08 -Nov 08
$142,000
-$125,000
-$17,000
50
$135,000
490,000
-$35,000
510,000
Dec 08 -Mar 09r
5142,000
-$125,000
-$17,000
$0
5135,000
490,000
435.000
$10,000
Apr 09 -July 09
$142,000
- $125,000
-517,000
$0
$135,000
-590,000
-535,000
510,000
Aug 09 - Nov 09
$142,000
- $125,000
-517,000
50
5135,000
-590,000
-$35,000
"" $17,000 per unit of which 550,000 could be used for remediation costs
2/29/08 mag.ExpensesForProieds.MarvinGardens
$10,000
House 3
Sept 08 -Dec 08
5142,000
-$125,000
-$17,000
$0
$135,000
490,000
-$35,000
510,000
Jan 09 -Apr 09
$142,000
-$125,000
417,000
$0
5135,000
-590,000
-535,000
510,000
May 09 -Aug 09
5142,000
-5125,000
- $17,000
50
5135, 000
- 590,000
-535,000
510,000
Sept 09- Dec 09
5142,000
-$125,000
-$17,000
$0
$135,000
-590,000
-$35,000
$10.000
House 4
Oct 08 -Jan 09
5142,000
- $125,000
-517,000
$0
5135,000
-590,000
-$35,000
510,000
Feb 09 -May 09
$142,000
-$125,000
-517,000
$0
$135,000
- $90,000
- $35,000
$10,000
June 09 -Sept 09
5142,000
- $125,000
-$17,000
$0
$135,000
-$90,000
- $35,000
$10,000
•
•
r
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 9
For Meeting of March 18, 2008
ITEM TITLE: Consideration of a Resolution authorizing Community Housing Development
Organization (CHDO) Request for HOME and CDBG funding for building 15 Single
Family homes by OIC of Washington for the Marvin Gardens Project and
authorizing execution of a grant and loan agreement with OIC of Washington
SUBMITTED BY: William Cook, Director of Community and Economic Development
(509) 575-6113
CONTACT PERSON/TELEPHONE: Archie M. Matthews, Operations Supervisor of Neighborhood
Development Services, Manager (575-6101)
SUMMARY EXPLANATION: The City of Yakima receives an annual allocation of HOME
Investment Partnership funds from the Federal government. These organizations are known as
Community Housing Development Organizations (CHDOs). CHDOs are entitled to receive at least
15% of a jurisdiction's allocated Federal HOME monies. HOME Program funds may be used by
the CHDO's for housing development, which is sponsored and/or owned by the CHDO. Eligible
activities include pre -development costs and the acquisitions, rehabilitation and new construction
of Single Family housing units.
OIC of Washington is requesting a CDBG Grant of $50,000 for development costs and HOME
loan funds of $125,000 per house with a maximum of $500,000 per phase, or four houses under
construction at any one time, and continue with the building of 15 total homes in phases of
construction to include repayment to the City of Yakima upon selling each completed home to a
qualified low/moderate income first time homebuyer as per HUD regulations.
This proposal was discussed at the meeting of the City Council's Neighborhood Development
Committee on February 13, 2008; the committee recommended that this proposal be forwarded to
the full Council for approval. Approval of this resolution will authorize and d direct the City Manager
to execute and contract with OIC of Washington, which will include a project description and a
work plan with identification of funding sources.
Resolution X Ordinance Contract X Other (Specify)
Funding Source 2007, 2008, 2009 HOME funds and 2008 CDBG funds
APPROVED FOR SUBMITTAL:
ity Manager
STAFF RECOMMENDATION: Staff recommends approval
BOARD/COMMITTEE/COMMISSION RECOMMENDATION: Recommended for full Council
consideration by the Council's Neighborhood Development Committee.
COUNCIL ACTION: