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Res 1702 - FHDC (Block Grant) COUNCIL BILL NO. 2420 RESOLUTION NO. 1702 A RESOLUTION ENTERING INTO AN AGREEMENT WITH THE FARMWORKER HOUSING DEVELOPMENT CORPORATION AND AUTHORIZING THE MAYOR TO SIGN SAID AGREEMENT. WHEREAS, the City made application to the State of Oregon Economic and Community Development Department (OECDD) for a $600,000 Community Development Block Grant to construct the Cipriano Ferrell Education Center; and WHEREAS, the OECDD awarded the grant to the City; and WHEREAS, the Farmworker Housing Development Corporation (FHDC) will construct the center with the grant funds and additional funding that FHDC has agreed to provide; and WHEREAS, it is necessary for the City to enter into an agreement with FHDC in order to enable the construction of the center and to clarifY the respective rights and responsibilities of the parties; and WHEREAS, one provision of the agreement requires that FHDC execute a trust deed against its property so that performance is secured under the grant; NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City enter into Agreement with the Farmworker Housing Development Corporation for the construction of the Cipriano Ferrell Education Center. A copy of said Agreement is affixed hereto as "Attachment A" and by this reference is incorporated herein. Section2. That the Mayor is auth<:;iz:d t~n said Agreement on behalf of the City. Approved as to formrr7. ")/V"f I~ I D - 2 g - '2 t) I 1- City Attorney Date Approved: ( Passed by the Council Submitted to the Mayor Approved by the Mayor October 28, 2002 October 29, 2002 October 29, 2002 Filed in the Office ofthe Recorder ATTEST: ----.ffiGU-M--1 ~ Mary 'TenhtrtClty Recorder City of Woodburn, Oregon October 29, 2002 Page I - COUNCIL BILL NO. 2420 RESOLUTION NO. 1702 ATTACHMENT A- Page -L- of II AGREEMENT This Agreement is entered into this day of , 2002, between the City of Woodburn, Oregon, an Oregon Municipal Corporation, (hereinafter "CITY") and Farmworker Housing Development Corporation (hereinafter "FHDC"). RECITALS WHEREAS, CITY applied for and received a Community Development Block Grant (Project No. C02004) from the State of Oregon through the Oregon Economic and Community Development Department (OECDD) in the amount of $600,000 for the purposes of constructing a portion of the "Project" as specified in the "Grant Agreement" as these terms are hereinafter defined; and WHEREAS, the "Grant Agreement" means all provisions of that document signed by CITY and OECDD and dated April 15, 2002, and the Special Conditions, Certifications of Compliance incorporated in it, and the relevant descriptive material in the approved grant application; and WHEREAS, the "Project" means the facility described in Exhibit "E" of the Grant Agreement and in Section 1 of this Agreement; and WHEREAS, the total cost of constructing the Project is estimated by FHDC to be $991,335 and only $600,000 has been made available to CITY through grant funds; and WHEREAS, FHDC will fund the construction of the remainder of the Project by the use of additional funding supplied by FHDC; and WHEREAS, FHDC has represented to and assured CITY that it has sufficient additional funding to pay for that portion of the Project not funded by grant funds; and WHEREAS, in awarding the construction contract for the Project, CITY will be specifically relying on the promise ofFHDC to provide sufficient additional funding for the construction contractor to be paid and for the Project to be constructed; and WHEREAS, FHDC owns the real property upon which the Project will be constructed and shall own and manage said Project; and WHEREAS, in return for the $600,000, the Grant Agreement requires CITY to construct the Project and to assume responsibility to OECDD to see to it that, for a period of five years thereafter, the Project is used for the purposes specified in the Grant Agreement and conforms to all relevant conditions and guidelines; and Page 1 - Agreement ATTACHMENT A Page ~ of 11 WHEREAS, FHDC's failure to conform to the grant conditions and guidelines could subject CITY to enforcement sanctions, which could include a return ofthe $600,000 to the OECDD, as well as other measures involving potential financial loss to CITY; and WHEREAS, FHDC's failure to provide sufficient additional funding for the construction of the Project could subject CITY to claims by the construction contractor for payment; and WHEREAS, OECDD requires specific assurance that the conditions of the Grant Agreement will be carried out; and WHEREAS, CITY requires specific assurance from FHDC that the necessary additional funding will be available to construct the Project prior to awarding the construction contract; NOW, THEREFORE, the parties have determined to enter into this Agreement to set forth their various responsibilities during the grant administration and construction periods and to address issues relating to the transfer of the completed improvements from CITY to FHDC. 1. DESCRIPTION OF PROJECT. The "Project" to be constructed is the Cipriano Ferrel Education Center. The Project will house a Head Start program and a day care center and will provide space to conduct a variety of adult education services as specified in Exhibit "E" of the Grant Agreement. It will include classrooms, bathrooms, storage, commercial kitchen, daycare, playground and outdoor plaza area, parking and supporting facilities. 2. PROPERTY SUBJECT TO AGREEMENT. FHDC represents to CITY that it is the owner of the following described real property upon which the Project shall be constructed: Parcel 3 of Partition Plat No, 93-15, recorded March 2,1993 in Reel 1037, Page 403, Deed Records for Marion County, Oregon. together with all and singular the tenements, hereditaments and appurtenances and all other rights thereunto belonging or in any way now or hereafter appertaining, and the rents, issues and profits thereof, and all fixtures now or hereafter attached to or used in connection with the property. 3. TRUST DEED AS SECURITY. Pursuant to OECDD grant requirements, and in order to secure the performance of FHDC, FHDC shall execute a Trust Deed on the property described in Section 2 of this Agreement. Said Trust Deed shall be in a form acceptable to CITY and be executed prior to the commencement of construction. Page 2 - Agreement ATTACHMENT ....a Page..2- of i 4. TERM OF AGREEMENT. The term of this Agreement shall be from the date of execution by both parties until tasks required hereunder are complete and accepted, unless earlier terminated in accordance herewith. 5, BIDDING THE CONSTRUCTION. CITY shall publish its invitation to bidders in the manner and form prescribed by law; and, if it is satisfied from the bids that the money available to it is sufficient to fully fund the construction and that the lowest responsible bidder is approved by OECDD, CITY will accept the same and authorize the construction, Otherwise, CITY will reject all bids and may elect whether to proceed with the Project. 6. CONSTRUCTION - ADMINISTRATION. After contracting for the construction of the Project, CITY shall designate its Project Manager, who will have authority to act in its behalf in all matters connected with the Project (and the subsequent use of the premises) but the Project Manager will have no authority to bind CITY to the payment of any funds in excess of the $600,000 received by CITY in grant funds from OECDD. The Project Manager shall have authority to require and receive from FHDC such records and data connected with the supervision and construction of the Project as may be required by OECDD under the gGrant Agreement, and FHDC shall maintain and supply such data and records in a time and manner as to comply with OECDD's requirements, Supervision of the construction will be provided by FHDC and FHDC shall be responsible for the proper and timely performance of all phases of the construction. In no event will the contract documents authorize anyone to approve a change order that has the effect of increasing the amount payable to the contractor unless such change is approved in writing by CITY. 7. CONSTRUCTION - ADDITIONAL FUNDING. FHDC understands and agrees that CITY's total financial contribution to the construction of the Project shall be limited to providing the $600,000 in grant funds in conformance with OECDD rules and regulations. FHDC agrees to provide whatever amount of additional funding is necessary to construct the Project in addition to the grant funds obtained by CITY. In awarding the construction contract for the Project, CITY will be specifically relying on the promise ofFHDC to provide all necessary additional funding. 8. INDEMNIFICATION. In consideration of CITY's reliance on FHDC's representations and agreement to provide all necessary additional funding for construction of the Project and in further consideration of CITY's enabling FHDC to secure the grant funds, FHDC agrees to indemnify and save CITY, its officers, agents, and employees harmless from and against any and all claims, demands, losses, damages, actions, causes of action, including expenses, costs, and reasonable attorneys' fees Page 3 - Agreement ATTACHMENT A page.....!L of 11 which CITY, its officers, agents, and employees may sustain or incur by reason of CITY's reliance on FHDC's representations and agreement. 9. CONSTRUCTION - FUNDS. CITY shall maintain the $600,000 in grant funds in a separate account and no funds shall be disbursed without CITY approval. CITY shall review, sign and submit draw requests, progress reports and other documents to OECDD as required by the Grant Agreement. CITY shall also make authorized payments to the general contractor, grant administrator and others entitled to funds during the development and construction of the Project. CITY may perform any monitoring it considers necessary to protect the CITY's interest during the development and construction phase. All surety bonds and undertakings and insurance policies required during construction shall be retained in CITY's custody. 10, CONSTRUCTION - COMPLETION. FHDC may not take ownership of the facility until OECDD has issued its Certificate of Completion and all remaining costs of construction have been paid and all amounts advanced by CITY have been repaid, or funds deposited with CITY sufficient for these purposes. When these conditions have been met, FHDC shall assume exclusive ownership and possession of the facility subject only to the 5-year restrictions prescribed herein. If any surplus money remains in the CITY's hands from the cost of construction, CITY shall return the same to the party entitled to it, it being understood that the Grant Agreement requires that "local funds" be the first expended and OECDD may therefore claim any such surplus. II. OPERATION OF FACILITY. For a period of five years after the issuance by OECDD of its Certificate of Completion for the Project and occupancy by FHDC, FHDC promises CITY that it will: (a) Be responsible for and provide funding for a Head Start program, a day care center, and adult education services in compliance with all the requirements imposed by OECDD in the Grant Agreement. (b) Maintain all records and data required by OECDD under the Grant Agreement and furnish the same timely to CITY's Project Manager; and (c) Defend and save CITY harmless from any claim for damages or sanctions in any form arising from any alleged failure to conform with the requirements of the Grant Agreement, or for injury or damages alleged to arise from any actionable act or omission in the operation of the Project, or activity on the premises. FHDC shall not, during said period of time, use the facility, or lease or rent it, or allow it or any part of it to be used for any purpose other than the purposes to which it is committed by the Page 4 - Agreement ATTACHMENT A Page...2- of 1\ Grant Agreement, or commit any act or omission which subjects the CITY to any sanctions by OECDD. 12. PERFORMANCE OF FHDC AND RELEASE OF TRUST DEED. Prior to any action that binds CITY to any financial obligation, FHDC shall deliver to CITY the Trust Deed referenced in Section 3 of this Agreement. If, at the end of the five-year period, nothing remains due CITY from FHDC under this Agreement, and CITY is not subject to any pending sanctions or any claims of financial loss arising from any breach of this Agreement, CITY shall promptly release all covenants and its interest under the Trust Deed, and thereafter shall neither have nor claim any further interest in the premises or FHDC' s use thereof. 13. INSURANCE. Before taking possession of the completed facility, FHDC shall obtain fire insurance and liability coverage as provided herein. FHDC shall obtain, and at all times during the five-year period keep in effect, liability insurance issued by a company authorized to transact business in Oregon, which coverage shall cover all ofFHDC's professional activities on, and any injury or loss arising from the condition of, the premises. The policy shall provide for 30 days written notice to CITY prior to cancellation of the policy. The insurance shall have limits provided therein of at least $50,000 to any claimant for any number of claims for damage to property arising out of a single accident or occurrence, $200,000 for injury to anyone person, and $500,000 for total injuries or damages arising out of a single accident or occurrence. These limits shall not limit the indemnities set out herein. It is understood that CITY is in no sense, during the five-year period, in control of the premises or any part of the physical facility, and is in no way related to the operation ofFHDC, nor will FHDC be CITY's agent in any respect during that time. Nevertheless, to protect CITY against claims made against it on that theory or supposition, the continued effective coverage is of the essence of this Agreement. In addition, FHDC shall at all times maintain a policy insuring the facility against fire or other casualty in an amount not less than the insurable value of the improvements and include CITY as a named insured, and shall cause a certificate evidencing such coverage to be delivered to CITY prior to possessing or using the FHDC facility, and thereafter maintain the said coverage. In the event that the premises are wholly or partially destroyed or damaged by any insurable event within the five-year period, it is mutually agreed that the proceeds of the policy will be applied to the replacement of the facility to the extent required by the terms of the Grant Agreement. 14. DEFAULT. The failure ofFHDC to comply with this Agreement shall constitute a default and entitle CITY to terminate this Agreement after providing FHDC an opportunity to cure as provided herein. Page 5 - Agreement ATTAC~MENT -i1 Page of ~ IS. OPPORTUNITY TO CURE. Prior to declaring a default and terminating this Agreement, CITY shall provide to FHDC, in the manner provided by this Agreement, written notice of the default and 30 days after the notice is given to cure the default. 16. NONDISCRIMINATION AND CIVIL RIGHTS. FHDC shall comply with all applicable federal, state, and local laws, rules and regulations regarding non-discrimination in employment. FHDC agrees to comply with all provisions ofORS Chapter 659. 17. STATUTORY PROVISION. All parties are, at all times covered under this Agreement, bound by the applicable provisions of the Oregon Revised Statutes, the Oregon Administrative Rules, applicable federal law, and all local county and city ordinances, orders, regulations, and resolutions. Any applicable provisions ofORS Chapter 279 are incorporated into this Agreement by reference. 18. AUDIT. FHDC shall maintain records to ensure conformance with the terms and conditions of this Agreement, and to ensure adequate performance and accurate expenditures within this Agreement period. FHDC agrees to permit CITY, the State of Oregon, the federal government, and their duly authorized representatives the right to audit all records pertaining to this Agreement to ensure the accurate expenditures of funds. If, in the opinion of the CITY, a site audit becomes necessary, FHDC shall allow such an audit. Any independent audit report of FHDC's activities or finances prepared for FHDC use to the extent it pertains to the Project shall be submitted to CITY upon request. 19. DISPUTE RESOLUTION. If a dispute arises with respect to this Agreement, the parties agree to attempt to resolve such dispute through mediation prior to resorting to the courts. The parties agree to equally share the cost of mediation, if any. Any party to this Agreement may seek relief, including injunctive relief, in a court of competent jurisdiction in the State of Oregon. Venue for any state court action shall be in Marion County, Oregon. 20. ATTORNEY FEES. If any suit or action is filed by any party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement, the prevailing party or parties shall be entitled to recover reasonable attorney fees incurred in preparation or in prosecution or defense of such suit Page 6 - Agreement ATTACHMENT Page -::L of l( It or action as fixed by the trial court, and if any appeal is taken from the decision of the trial court, reasonable attorney fees as fixed by the appellate court. 21. ASSIGNMENT. Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other, and no assignment shall be of any force or effect whatsoever unless and until the other party has so consented. 22. SEVERABILITY. In the event that any provision ofthis Agreement or the application thereofto any person, property or circumstances shall be held to any extent to be invalid or unenforceable, the remainder of this Agreement and the application of such provision to persons, properties and circumstances other than those as to which it has been held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 23, NO WAIVER. CUMULATIVE REMEDIES. No failure or delay on the part of either party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies herein provided are cumulative and not exclusive of any remedies provided by law or otherwise available to the parties. 24. AMENDMENT OF AGREEMENT. This Agreement may be amended by mutual agreement of the parties. Such amendments shall be in writing and signed by each party. 25. COMPLETION OF IMPROVEMENTS AND CONVEYANCE OF PROPERTY. Upon completion of the Project and issuance of a Certificate of Completion by OECDD, CITY shall convey the Property to FHDC. The conveyance documents shall contain a reversion provision which provides that in the event the Property is not used by FHDC as provided in the Grant Agreement or for other purposes which meet one ofthe national objectives of the Community Development Block Grant Program and which are eligible under Section 105 of the Housing and Community Development Act of 1974, as amended, 42 V.S.C. g5305 (1994), then the property shall be reconveyed to the CITY, Such condition of use shall be secured by the Trust Deed conveyed by FHDC to CITY Each party shall have the right to specifically enforce the terms of this provision, and shall be entitled to any other remedy accorded by note, trust deed or other security instrument, or which may otherwise available at law. Page 7 - Agreement ATTACHMENT fl Page~ of <l 26. MAINTENANCE OF PROPERTY AFTER CONVEYANCE. After the Project is conveyed to FHDC, FHDC shall be responsible for maintenance, repairs and operation of the facility, with the exception of those repairs covered by warranty of the general contractor or any manufacturers. As part of this Agreement, CITY agrees to assign to FHDC all warranties and contractual benefits to the fullest extent possible. 27. NOTICES. Any notice or other communication required or permitted to be given under this Agreement shall be mailed by certified mail, return receipt requested, postage prepaid and addressed to the parties as follows: To CITY: John C. Brown City Administrator 270 Montgomery Street Woodburn, Oregon 97071 To FHDC: Roberto Franco, Executive Director Farmworker Housing Development Corporation 1274 N. Fifth Street, Suite IA Woodburn, Oregon 97071 Any notice or other communication shall be deemed to be given upon deposit in the United States mail. The addresses to which notices or other communications shall be mailed may be changed from time to time by giving written notice to the other party as provided in this section. FARMWORKER HOUSING DEVELOPMENT CORPORATION CITY OF WOODBURN, a municipal corporation of the State of Oregon Executive Director Date Mayor Date Chair, FHDC Date Attest: City Recorder Page 8 - Agreement