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HomeMy WebLinkAboutR-2013-027 Great Western Building Renovation Agreement with National Development CouncilRESOLUTION NO. R- 2013 -027 A RESOLUTION authorizing the City manager to execute an agreement between National Development Council (NDC) and City of Yakima professional services to assist with implementing and processing HUD Section 108 Loan Funding ( "Great Western" Building Renovation Project) WHEREAS, on May 24, 2012, the City of Yakima was awarded $1,095,000 in HUD Section 108 Loan Funding, which must be obligated toward a qualifying project on or before May 31, 2013, and WHEREAS, the purpose of HUD Section 108 Loan funding is to promote economic development and creation of jobs within qualifying low- to moderate - income standards, and provides a twenty -year loan for qualified projects secured by collateral of real property and contribution of private developer funds; and WHEREAS, the City of Yakima has received an application from JEM Development Company for the renovation of the "Great Western" Building to become a hotel, which project has been found to be a qualifying project under such loan funding program; and WHEREAS, the City needs the assistance of an experienced provider of HUD Section 108 Loan Fund support services, which services include underwriting the loan and administering all HUD requirements, and WHEREAS, NDC is a qualified nonprofit organization that has the ability and experience in providing such loan underwriting and administration services; and WHEREAS, the City and NDC have negotiated an Agreement for the provision of such services in conjunction with the Great Western Building Project; and WHEREAS, the City Council finds and determines that approval of such Agreement is in the best interests if residents of the City of Yakima and will promote the general health, safety and welfare; therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute and administer the "Agreement by and between City of Yakima and National Development Council Regarding Community and Economic Development Advisement," a copy of which Agreement is attached hereto and by reference made a part hereof, now, therefore, ADOPTED BY THE CITY COUNCIL this 19th day of February, 2013 ATTEST: L`ft�ys� Micah Cawley Mayor S • Sonya Cl "r Tee, City Cler �+`� AGREEMENT BY AND BETWEEN CITY OF YAKIMA, WASHINGTON AND NATIONAL DEVELOPMENT COUNCIL REGARDING COMMUNITY AND ECONOMIC DEVELOPMENT ADVISEMENT This Agreement is made and entered into this''day of 2013, by and between the City of Yakima, Washington, a municipal corporation of the Uate of Washington whose address is 129 North 2nd Street, Yakima, Washington 98901 (the "Client ") and NATIONAL DEVELOPMENT COUNCIL ( "NDC" or the "Contractor "), 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 708 Third Avenue, Suite 710, New York, New York 10017. WITNESSETH THAT: WHEREAS, the Client desires to receive professional services from NDC to develop and assist in the implementation of the Client's community and economic development programs by retaining, NDC to provide assistance in implementing HUD Section 108 Loan funding for JEM Development Company, by and through Joseph R. Morrier for a project commonly described as a renovation of the Great Western Building for hotel uses (the "Project "). WHEREAS, NDC is willing to provide, on such terms and conditions as are hereinafter provided, technical assistance to the Client for implementation of HUD Section 108 Loan funding for such Project. NOW THEREFORE, in consideration of the above - mentioned premises and of the mutual covenants contained herein, the parties hereto agree as follows: I. SCOPE OF SERVICES The Client acknowledges that NDC regularly performs services for various governmental agencies and public benefit corporations located across the United States. The purpose of this Agreement is to set forth the terms upon which NDC will provide the Client with assistance it has requested, which is generaily described as Exhibit A attached hereto. NDC agrees to perform such services as are requested by the Client and to provide such services, as it deems necessary to accomplish the ,goals requested. Exhibit A attached hereto fully describes the services to be offered to the Client by NDC. In performing the requested services, NDC shall consult with officers and employees of the Client and shall meet, as appropriate, with such NDC- Yakima TA Services Agreement 2013 representatives or other entities when necessary, including, without limitation, State and Federal officials and other local organizations. II. DURATION, TERMINATION NDC agrees to commence work for the Client effective February 19, 2013, and shall continue providing technical assistance for the Project for a period of eighteen (18) months (through August 19, 2014) or until completion and close -out of the Project whichever sooner occurs. In the event final completion and close -out of the Project extends beyond August 19, 2014, the parties by written agreement or amendment hereto may extend the term of this Agreement upon terms and compensation mutually agreed.. 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. M. COMPENSATION The Client shall compensate NDC for performance of services received hereunder in the total amount of Three Thousand Three Hundred Thirty -three Dollars ($3,333.00) per month, with a final payment for the eighteenth month in the amount of $3,339.00. Total compensation under this Agreement shall not exceed $60,000.00; provided, however, in the event the parties agree that it is necessary and appropriate to extend the term of this Agreement pursuant to Section II above, the parties may amend this Agreement to provide for the agreed extension and compensation to be paid thereunder. The monthly fee amount constitutes full compensation for all of NDC's work, time, travel expenses, supplies, postage, telephone, and other similar expenses incurred for provision of services during the month for ,which compensation is paid. As an independent contractor, NDC is responsible for all taxes and other benefits of the employees of NDC and nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between the Client and the NDC. Payment by the Client for services rendered under this Agreement evidences the Client's acceptance of such services in accordance with the terms of this Agreement. In the event of termination pursuant to Section II prior to expiration of the initial eighteen - month term, each party agrees that the $3,333.00 monthly installment represents and constitutes fair and full compensation for the services rendered by NDC each month, and NDC shall be entitled to compensation in the amount of $3,333 per month, or prorated portion thereof, for services provided up to the effective date of termination. After the effective date of termination, Client shall have no continuing obligation to compensate NDC. NDC- Yakima TA Services Agreement 2013 IV. MISCELLANEOUS PROVISIONS 4.1 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 and Client designates in writing as confidential. Such information shall not be made available to any person, firm, corporation or entity without first obtaining the prior written consent of Client unless otherwise mandated by applicable law. 4.2 Equal Opportunity. NDC shall comply with all provisions of Title VI of the Civil Rights Act of 1964 and of the rules, regulations and relevant order of the Secretary of Labor regarding discrimination. In the event a party is determined by the final order of an appropriate agency or court to be in violation of any non - discrimination provision of federal, state, or local law, this Agreement may be cancelled, terminated or suspended in whole or in part by the Client, and that party may be declared ineligible for further Client contracts. 4.3 Conflicts of Interest. No board member, officer or employee of Client 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. 4.4 Notices. All notices shall be sent by certified mail, hand - delivery or overnight mail and in all events with a written acknowledgment of receipt to the address set forth at the beginning of this Agreement. 4.5 Responsibility for Claims - Mutual Indemnification. Client agrees to indemnify and save harmless NDC, their agents, officials, and employees from any liability, damage, expense, cause of action, suit, claim, judgment or expenses (including attorneys' fees) arising from injury to person, including death or personal property or otherwise, caused by or resulting from the activities in furtherance of the work described herein. NDC agrees that such indemnity shall not apply to any actions, claims or damages arising as a result of NDC's bad faith, willful misconduct or gross negligence. NDC agrees to indemnify and save harmless Client, their agents, officials, and employees from any liability, damage, expense, cause of action, suit, claim, judgment or expenses (including attorneys' fees) arising from injury to person, including death or personal property or otherwise, caused by or resulting from the activities in furtherance of the work described herein. Client agrees that such indemnity shall not apply to any actions, claims or damages arising as a result of Client's bad faith, willful misconduct or gross negligence. NDC- Yakima TA Services Agreement 2013 4.6 Release of News Information. No news release, .including photographs, public announcements or confirmation of same, or any part of the subject matter of this Agreement or any phase of any program hereunder shall be made without prior written approval of the Client. 4.7 Compliance with Laws. NDC agrees to comply with all applicable federal, state and local laws in the conduct of the work hereunder. This Agreement shall be construed, interpreted and the rights of the parties determined, in accordance with the laws of the State of Washington, and venue for litigation brought to interpret or enforce the provisions hereof shall lie in Yakima County, State of Washington. 4.8 Assignment. Neither this Agreement nor any rights, duties or obligations described herein may be assigned by either party without the prior expressed written consent of the other party. 4.9 Severability. A determination that any part of this Agreement is invalid shall not invalidate or impair the force of the remainder of this Agreement. 4.10 Acknowledgement. The Client expressly acknowledges that all opinions and advice (written or oral) given by NDC to the Client in connection with NDC's engagement are intended solely for the benefit and use of the Client considering the financing and the Client agrees that no such opinion or advice shall be u"'sed for any other purpose or reproduced, discriminated, quoted or referred to at any time without the prior consent of NDC. 4.11 Disclaimer. The Client is a sophisticated business enterprise and has retained NDC for the purposes set forth in this Agreement and the parties acknowledge and agree that their respective rights and obligations are contractual in nature. Each party disclaims an intention to impose fiduciary agency rights or obligations on the other by virtue of the engagement hereunder. 4.12 Entire Agreement. This Agreement contains the final agreement between the parties regarding the matters covered and supersedes any and all other agreement, either oral in writing, regarding the matters contained herein. NDC- Yakima TA Services Agreement 2013 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first written above. CITY OF YAKIMA: 0 ke, City Manager —(r D¢0 Telephone E -mail Attest: ft 11,'_� Q Sonya Claidree, City Clerk�.r.1 "� {- R,x.i� CITY CONTRAC r NN0��jj`��_ RESOLUTION NDC- Yakima TA Services Agreement 2013 NDC TECHNICAL ASSISTANCE AGREEMENT SCOPE OF SERVICES ( "Morrier -Great Western Building Project ") EXHIBIT A A. Assistance in implementing HUD Section 108 Loan Fund for JEM Development Company by and through Joseph R. Morrier, Sr. for a project commonly described as a renovation of the Great Western Building for hotel uses. The HUD Section 108 Loan Fund services provided by NDC for this project include , but are not limited to: 1. Provide eligibility review for compliance with Section 108 guidelines. 2. Evaluating sponsor /developer experience and capacity. 3. Financial review of development sources and uses, operating proformas, and financial statements. 4. Structuring of transactions with available public and private sector economic development finance sources. 5. Review of appraisals, cost assumptions, capital budgets, operating statements, marketing date and other funding commitments. 6. Assisting with development issues during pre - development and development. 7. Advising on program regulations issues in loan administration. 8. Establishment of compliance monitoring and record - keeping systems. 9. Provide assistance with project completion and close -out. 10. Other support necessary to carry out the Section 108 loan guarantee program. NDC- Yakima TA Services Agreement 2013 • .7 JC BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT f^� Item No. For Meeting of- February 19, 2013 ITEM TITLE: Resolution authorizing an agreement with National Development Council (NDC) for professional services to assist with implementing and processing HUD Section 108 Loan Funding ( "Great Western" Building Renovation Project). SUBMITTED BY: Sean Hawkins, Economic Development Manager Mark Kunkler, Senior City Attorney CONTACT Sean Hawkins, Economic Development Manager, 575 - PERSON /TELEPHONE: 6274 SUMMARY EXPLANATION: On May 24, 2012, the City of Yakima was awarded $1,095,000 in HUD Section 108 Loan Funding, which must be obligated toward a qualifying project on or before May 31, 2013. City staff has been working with JEM Development on a project to turn the former Great Western Building into a 38 Room boutique hotel, which includes a full rennovation of the 6th Floor Masonic Temple into a meeting and events room. The National Development Council would underwrite the loan on behalf of the City of Yakima and ensure the project complies with HUD Section 108 rules. Resolution X Ordinance Contract: X Mail to: Contract Term: 18 months Amount: $60,000 Insurance Required? No Funding Section 108 HUD Funds Source: APPROVED FOR �. SUBMITTAL: STAFF RECOMMENDATION: Other (specify) Expiration Date: August 19, 2014 Phone: City Manager BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ Resolution NDC Agreement 2 6 13 ❑ NDC City of Yakima Draft Agreement 1 30 2013 m • 0 0 AGREEMENT BY AND BETWEEN CITY OF YAKIMA AND JEM BUILDING, LLC (HUD Section 108 Loan — Great Western Project) THIS AGREEMENT is entered into by and between the City of Yakima, a municipal corporation, and JEM Building, LLC, a Washington limited liability company, for the uses and purposes set forth below. I. Recitals A. City of Yakima (hereafter called "City ") is a municipal corporation of the State of Washington with City Hall located at 129 North 2nd Street, Yakima, Washington 98901. B. JEM Building, LLC (hereafter called "JEM ") is a limited liability company duly formed and existing under the laws of the State of Washington with business offices located at 402 E. Yakima Avenue, Suite 1200, Yakima, Washington 98901. C. Pursuant to Resolution No. 2013 -027 adopted February 19, 2013, the City approved an Agreement with National Development Council ( "NDC "), which Agreement was executed and effective February 26, 2013, whereby NDC agreed to provide assistance to City in implementing federal .Housing and Urban Development (HUD) Section 108 loan funding for rehabilitation and improvement of the Great Western building to create boutique hotel facilities. Pursuant to such project, JEM will prepare and submit an application for the applicable HUD Section 108 financing, and NDC will provide eligibility review of the applicant and the application, together with underwriting review and support necessary to compile, submit and monitor compliance with the HUD Section 108 loan guarantee program. A copy of such Agreement between City and NDC, with approving Resolution No. 2013 -027, is attached hereto and incorporated herein as Exhibit "A" by this reference. E. The parties agree and understand that the services provided by NDC are necessary to enable City to review and process such application, and that Applicant receives benefit therefrom. G. The parties desire to enter into an Agreement setting forth provisions regarding repayment of monies expended by City to NDC for underwriting of JEM's application and processing of applicant's HUD Section 108 funding for the Great Western rehabilitation project. 1 II. Agreement WHEREFORE, in consideration of the mutual covenants, conditions, promises herein, and mutual benefits received, the parties agree as follows: 1. Reimbursement of Expenditures for NDC Services. In the event JEM's HUD Section 108 loan guarantee funding application for the rehabilitation and improvement of the Great Western building, as described in the February 26, 2013 Agreement between City and NDC, is rejected, found ineligible for funding, or not funded for any reason, JEM agrees to repay City all amounts expended by City in payment to NDC for services rendered by NDC pursuant to said February 26, 2013 Agreement. In the event JEM's HUD Section 108 application is granted and funded by HUD, the amount expended by City in payment to NDC for services rendered by NDC pursuant to said February 26, 2013 Agreement shall be incorporated into the overall project costs, with repayment secured by collateral and /or personal guarantee in accordance with rules, regulations and procedures of the HUD Section 108 loan guaranty program. Upon any final determination and decision by HUD that JEM's application for HUD Section 108 loan guarantee funding has been rejected, found ineligible for funding, or not funded for any reason, or if HUD determines that JEM is in breach of such loan guarantee program after funding has been awarded and received, JEM shall tender and pay to City that amount equal to the amount paid by City to NDC pursuant to the Agreement between City and NDC dated February 26, 2013, together with any additional amount for which City is obligated to NDC for services provided pursuant to the terms of such Agreement. Such amounts shall be deemed immediately due and payable to City and unpaid principal shall accrue interest at the rate of twelve percent (12 %) per annum commencing on the date such amounts are deemed due and payable. 2. Inclusion Within Application and Project. This Agreement shall be construed to be included within the HUD Section 108 loan guarantee program and funding as it relates -to the Great Western project, and shall be construed to be additional consideration for City's agreement to process JEM's application for HUD Section 108 loan guarantee funding for such project. 3. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Washington, and venue for any action to enforce or interpret this Agreement shall lie in Yakima County, Washington. 2 4. Implementation of HUD Section 108 Loan Guarantee Application. This Agreement constitutes implementation of the HUD Section 108 project underwriting authorized by the. City Council pursuant to. Resolution No. 2013 -027, and memorializes the understanding of the parties regarding retention of NDC and the payment of funds to NDC for such project underwriting services. 5. Authority of Limited Liability Company. The undersigned member of JEM represents that he is duly authorized to act as manager of the limited liability company or is a member authorized pursuant to RCW 25.15.150 to enter into this Agreement on behalf of the limited liability company. 6. Effective Date — Retroactive Effect. This Agreement shall be effective upon the date signed by the last party to sign, and shall apply retroactively to and from February 26, 2013 to include worked performed by NDC, and payments made by City to NDC pursuant to the February 26, 2 -13 Agreement between City and NDC. WHEREFORE, this Agreement is executed by the parties as set forth below: CITY OF YAKIMA To6rO'Ro r e, City Manager Date: 211 ) -3 ATTEST- By- CITY CONTRAc r NOC- O�— ✓9 RESOLUTION NO:-4-;1L0/ 2 ZM)' JEM BUILDING, LLC ZBy:J_ �er/Membeir oseph R. Morrier, Sr., Man Date: '311! 3 �� 3-