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HomeMy WebLinkAboutR-2005-077 Yakima Hotel / Hilton Garden Inn Hotel, LLC Section 108 Loan Extension (Joseph & Elizabeth Morrier)RESOLUTION NO. R-2005- 77 A RESOLUTION authorizing the City Manager to grant an extension of the deadline of May 15 to May 31, 2005, for Joseph R. Morrier and Elizabeth Monier of JEM Development and Yakima Hotel, LLC to meet all conditions and execute all documents related to the $3,560,000 Section 108 loan for construction of a Hilton Garden Inn Hotel. WHEREAS, the City of Yakima has been awarded HUD Section 108 loan funds to carry out eligible economic development activities; and WHEREAS, the City Council approved a loan for $3,560,000 to Joseph R. Morrier and Elizabeth Morrier, dba Yakima Hotel, LLC (the developer), on November 16, 2004 for construction of a Hilton Garden Inn Hotel at 401 East Yakima Avenue; and WHEREAS, the City provided and executed a Conditional Approval Letter on December 7, 2004, hereto attached, that describes the terms and conditions to be met by the developer prior to loan closing; and WHEREAS, the Conditional Approval Letter also provides a deadline to meet the conditions and execute loan documents of April 15, 2005, unless approved in writing by the City; and WHEREAS, Joseph R. Monier and Elizabeth Monier, as guarantors, accepted and signed the Conditional Approval Letter on December 14, 2005; and WHEREAS, the City approved a 30 -day extension of the April 15, 2005 deadline on April 5, 2005; and WHEREAS, closing of the Section 108 loan also requires meeting the terms and conditions and acceptance of documents by Trans Capital, the New Markets Tax Credits investor, and from Matrix Bank; WHEREAS, it is anticipated that the terms and conditions of Trans Capital and acceptance of documents by all parties will not be satisfied before May 15, 2005; and WHEREAS, the developer has demonstrated significant progress and expense toward meeting the terms and conditions of the Section 108 loan, and other project financing; and WHEREAS, the current status of the terms and conditions for all of the project's financial sources is beyond the control of the developer; and WHEREAS, the developer requests and City staff recommends that the deadline be extended from May 15, 2005, to May 31, 2005; and WHEREAS, City Council deems it to be in the best interest of the City to grant the requested extension of the deadline from May 15 to May 31, 2005, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute an extension of the deadline of May 15 to May 31, 2005, for Joseph R. Morrier and Elizabeth Morrier of JEM Development and Yakima Hotel, LLC to meet all conditions and execute all documents related to the $3,560,000 Section 108 loan for construction of a Hilton Garden Inn Hotel. The City Manager is hereby designated as the official representative of the City to act in connection with that funding application and is authorized to take such additional actions as may be necessary and prudent to complete the application process, including the execution of all related documents. ADOPTED BY THE CITY COUNCIL this 11th day of May, 2005. A 1 I EST: Paul P. George, Mayor' City Clerk zooms �7 CONSTRUCTION PROJECT MANAGEMENT SERVICES AGREEMENT THIS AGREEMENT is made and entered into by and between the City of Yakima, a Washington municipal corporation (hereafter the "City"), and Michael C. McGuire, an individual (hereafter "Project Manager"). WHEREAS, the City of Yakima desires to engage Michael C. McGuire to perform professional Project Management services on an independent contractor basis as Project Manager for the Hilton Garden Inn Section 108 Loan Project (hereinafter the "Project"). WHEREAS, Michael C. McGuire has the experience and expertise necessary to provide said independent contractor services and is willing to provide such services in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, it is agreed by and between the City and the Project Manager as follows: 1. Scope of Services. a. The Project Manager shall perform, to the best of his ability, services for the City relating to the customary duties for the position of Project Manager for the Project. The Project Manager understands that such duties are diverse and are not fully set forth in this Agreement, but include such work as: i. Manage the progress and construction schedule for the Project in order to avoid unnecessary delays in and satisfactory completion of the Project. ii. Coordinate with the Project Manager from Matrix Bank to authorize financial draws on the project in accordance with satisfactory completion of project tasks by the contractor. iii. Prepare Project progress reports to the City Manager and Director of Community and Economic Development as required or requested by the City Manager or Director of Community and Economic Development. iv. Monitor compliance with applicable federal regulations of the Community Development Block Grant and Section 108 Loan Programs of the U.S. Department of Housing and Urban Development, including compliance with prevailing wage rules. b. The City shall provide the Project Manager with all requested information reasonably necessary for the Project Manager to carry out his services under this Agreement. 2. Term. The term of this Agreement shall commence upon execution hereof and shall terminate upon completion of the project unless terminated sooner by either party in accordance with Section 3. 3. Termination. Either party may terminate this Agreement at any time, with or without cause, by providing the other party with written notice of termination ten (10) calendar days Page 1 of 5 prior to the termination date. In the event of such termination, the City shall pay the Project Manager for satisfactory services provided through the date of termination. 4. Consideration. The City shall pay the Project Manager for services rendered hereunder at the rate of Forty Dollars ($40.00) per hour. The Project Manager shall submit to the City monthly invoices itemizing all hours worked by date. Upon receipt of said monthly invoice, the City shall make payment to the Project Manager within thirty (30) calendar days. The Project Manager shall maintain adequate time records/logs to substantiate all amounts itemized on the monthly invoices. Unless otherwise amended in writing by the parties, the total amount of compensation paid to the Project Manager by the City under this Agreement shall not exceed Thirty Thousand Dollars ($30,000) based upon seven hundred fifty (750) hours at the rate of Forty Dollars ($40.00) per hour. 5. Inspection and Audit. The Project Manager shall maintain books, accounts, records, documents and other evidence pertaining to the costs and expenses allowable and consideration paid under this Agreement in accordance with generally accepted accounting practices. All such books of account and records required to be maintained by this Agreement shall be subject to inspection and audit by representatives of the City and/or of the Washington State Auditor at all reasonable times, and the Project Manager shall afford the proper facilities for such inspection and audit. Such books of account and records may be copied by representatives of the City and/or of the Washington State Auditor where necessary to conduct or document an audit. The Project Manager shall preserve and make available all such books of account and records for a period of three (3) years after final payment under this Agreement. 6. Status of Project Manager. The Project Manager and the City understand and expressly agree that the Project Manager is an independent contractor in the performance of each and every part of this Agreement. The Project Manager, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. The Project Manager expressly represents, warrants and agrees that his status as an independent contractor in the performance of the work and services required under this Agreement is consistent with and meets the six -part independent contractor test set forth in RCW 51.08.195. The Project Manager and his employees, agents and/or subcontractors shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and/or retirement. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership or agency between the Project Manager and the City. 7. Taxes and Assessments. The Project Manager shall be solely responsible for compensating his employees, agents, and/or subcontractors and for paying all related 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 or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, the Project Manager shall pay the same before it becomes due. 8. Nondiscrimination Provision. During the performance of this Agreement, the Project Manager shall not discriminate on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical Page 2 of 5 handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 9. Americans with Disabilities Act. The Project Manager shall comply with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), and its implementing regulations, and Washington State's anti -discrimination law as contained in RCW Chapter 49.60 and its implementing regulations, with regard to the activities and services provided pursuant to this Agreement. The ADA provides comprehensive civil rights to individuals with disabilities in the area of employment, public accommodations, public transportation, state and local government services, and telecommunications. 10. Compliance with Law. The Project Manager agrees to perform those services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. 11. No Conflict of Interest. The Project Manager covenants that he does not have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. The Project Manager further covenants that he will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 12. No Insurance. It is understood the City does not maintain liability insurance for the Project Manager and/or his employees. 13. Indemnification. a. The Project Manager agrees to hold harmless, indemnify, and defend the City, its elected officials, officers, employees, and agents from and against any and all suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attorney's fees) which result from or arise out of the sole negligence of the Project Manager in connection with or incidental to the performance or non-performance of this Agreement. b. In the event that both the Project Manager and the City are negligent, each party shall be liable for its contributory share of negligence for any resulting suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attorney's fees). c. Nothing contained in this Section or this Agreement shall be construed to liability or a right of indemnification in any third party. d. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 14. Delegation of Professional Services. The services provided for herein shall be performed by the Project Manager, and no person other than regular associates or employees of the Project Manager shall be engaged upon such work or services except upon written approval of the City. create a Page 3 of 5 15. Assignment. This Agreement, or any interest herein or claim hereunder, shall not be assigned or transferred in whole or in part by the Project Manager to any other person or entity without the prior written consent of the City. 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 Project Manager stated herein. 16. Waiver of Breach. A waiver by either party hereto of a breach by the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 17. Confidentiality. The Project Manager agrees to maintain total confidentiality with regard to information discerned from access to City records. Such information shall be held in strict confidence in accordance with the standards of Conduct of the Project Manager Profession. 18. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 19. Integration. This written document constitutes the entire agreement between the City and the Project Manager. There are no other oral or written Agreements between the parties as to the subjects covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties. 20. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY: City Manager City Hall 129 North Second Street Yakima, WA 98901 TO PROJECT MANAGER: Michael C. McGuire 2751 Cowiche Mill Road Cowiche, WA 98923 or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 21. Third Parties. The City and the Project Manager are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide, any right or benefit, whether directly or indirectly or otherwise, to third persons. Page 4 of 5 22. Survival. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this agreement and shall be binding on the parties to this Agreement. 23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 24. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. 25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. CITY OF YAKIMA By: R. A. Zais, Jr., City Manager DATE: ZlN c 4 .Oo.r A1"1'EST: 6oti.„ /20-64.4,, City Clerk City Contract No. 2 0 0 x 3 MICHAEL C. MCGUIRE By: Slaze,6,aga----. Michael C. McGuire DATE: 6 - Page 5 of 5 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting Of: May 11, 2005 ITEM TITLE: Consideration of a an extension to May 31, 2005 for Joseph and Elizabeth Morrier, dba Yakima Hotel, LLC, to meet the terms and conditions of, and execute closing documents for a Section 108 loan to construct a Hilton Garden Inn Hotel. SUBMITTED BY: Michael Morales, Economic & Community Affairs Specialist CONTACT: Michael Morales, 575-3533 SUMMARY EXPLANATION: On November 16, 2004 the City Council approved a $3,560,000 Section 108 loan for Joseph and Elizabeth Morrier, dba Yakima Hotel, LLC, to partially finance construction of a Hilton Garden Inn Hotel at the site of the former Mervyn's department store in downtown Yakima. A Conditional Approval Letter was accepted and signed by the Morrier's on December 14, 2004. That letter included a condition that all conditions must be met and the loan closed by April 15, 2005. Due to circumstances beyond his control, Mr. Monier requested, and the Council approved, a 30 day extension to this deadline. Final negotiations and review of the loan documents will not be completed by Friday, May 13, and an additional two weeks is needed to complete the process. The targeted closing date is May 20, 2005. Resolution _ _ Ordinance _ Contract _ Other: Approval for Submittal: City nager STAFF RECOMMENDATION: Staff recommends granting the extension BOARD RECOMMENDATION: Council Economic Development Committee recommends granting the extension COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2005-77 1