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HomeMy WebLinkAbout4835 RESOLUTION NO. 4 8 3 5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE NEGOTIATIONS AND EXECUTION OF A CONTRACT FOR NON-PROFIT FACILITATOR SERVICES WITH THE NATIONAL DEVELOPMENT COUNCIL FOR THE AUBURN COMMUNITY CENTER AT THE LES GOVE COMMUNITY CAMPUS WHEREAS, the Aubum City Council has identified the construction of a 20,100 square foot community center.at the Les Gove Community Campus as a priority capital project that will benefit the public health, safety and welfare through the provision of educational, cultural and social activities and large non- programmed community meeting spaces; and WHEREAS, the Aubum Community CeMer will operate as a joint-use facility featuring a spacious and welcoming 'lobby and a large community gathering space for up to 350 people as well as dividable space for recreational activities, programs and classes as well as meeting space/classrooms, office, lobby, kitchen, restrooms and storage; and WHEREAS, the Aubum Community Center is intended to serve the entire Auburn community and will be open year-rbund and be used for various health, fitness and wellness programs; multi-generational and multi-cultural events; special events; evening family programs; art, craft and music; community education and specialty classes; expanded youth and pre-school programs; meetings and corporate events; and wedding receptions; and WHEREAS, the City of Auburn has worked with a team of professionals to complete the design process, prepare construction bid level drawings and obtain Resolution No.4835 Jury 5, 2012 Page 1 of 4 all necessary permits for the Community Center; and WHEREAS, the City has secured funding for a portion of the total cost of the Community Center, but a funding gap remains; and WHEREAS, the City has determined the need to identify and explore altemative means of funding to address this funding gap including one or more or combination thereof of 63-20 tax exempt bonds, New Market Tax Credfts, City funds, non-profd institutional grants and other local, state, regional or federal funds. WHEREAS, after substantive research and analysis, the City determined that the services of a qual�ed non-profit facilitator should be sought to assist the City in the development and operation of the community center through single asset/bankruptcy remote 501(c)(3)' entity creation and implementation, project financing structuring, coordination and compliance, real estate development oversight and management and asset management and operation; and WHEREAS, the City of Auburn anticipates a deal structure will occur with the selected Non-Profd Facilitator that will consist of the following key actions: non-profd facilitator selected by the City; Non-profit facilitator creates a single- purpose nonprofd corporation; single-purpose non-profit corporation contracts with a developer for design consultatibn services and construction of the facility; city leases facility from single-purpose non-profit corporation; single-purpose non-profit corporation contracts for facility operations and maintenance during the lease period; and, facility is turned over to the City at no cost at the end of the ' 26 USC 501(c)(3). Resolution No. 4835 July 5, 2012 Page 2 of 4 lease; and, WHEREAS, following input and direction from the Les Gove Community Gampus Committee, staff issued a Request for Proposals for said non-profit facilitator services.with a submittal deadline date of June 22, 2012 and advertised in ttie May 25, 2012 and June 1, 2012 editians of The Seattle Times and The Daily Joumal of Commer�e, respectively, as well as publication of the Request and relevant associated information on the Cily's web site; and WHEREAS, the City of Aubum received one (1) response to the Request for Proposals from the National Development Council, a national non-profit community and economic development organization founded in 1969 whose stated key purpose is to increase the flow of capital to underserved urban and rural areas across the United States; and WHEREAS, the Les Gove Community Campus Committee and staff reviewed the response from the National Development Council and found it to be in substantial conformance with the requirements of the Request for Proposal; and WHEREAS, the Les Gove Community Campus Committee, at its meeting on July 11, 2012, recommended on motion action to the full City Council approval of Resolution No. 4835, authorizing the Mayor to conduct negotiations and execute a contract with the National Development Council; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DOES RESOLVE as follows: Section 1. Contract Nes�otiations and Ezecution. The Mayor and City Resolution No.4835 July 5, 2012 Page 3 of 4 Clerk are authorized to conduct negotiations, and upon successful conclusion of said negotiations, execute a co�tract with the National Development Council for the provision of Non-Profit Facilitator Services for the Aubum Community Center at the Les Gove Community Campus in substantial conformity with the documents attached hereto, collectively marked as Exhibit "A" to this Resolution and incorporated herein by reference. Section 2. Imalementation. The Mayor of the City of Auburn is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. Effective Date. This resolution shall be in full force and effect upon passage and signatures hereon. DATED AND SIGNED THIS�l� D , 2012. _ � PETER B. LEWIS MAYOR ATTEST ,���°�� Danielle E. Daskam, City.Clerk APPRO S T M: Dani B. Heid, City Attomey Resolution No.4835 July 5,2012 Page 4 of 4 CFFY OF �AUa TJRN WASHINGTON Agreement for Non-Profit Facilitator Services for the Auburn Community Center at the Les Gove Community Campus SECTION I - GENERAL AGREEMENT REQUIREMENTS This Agreement is made effective as of (Month) 5 (Day), 2012, by and between NDC-HOUSING AND ECONOMIC DEVELOPMENT CORPORATION. ("NDC-HEDC"), or its assigns, a non-profit company, and the CITY OF AUBURN ("CITY"), a municipal corporation of the State of Washington. The parties agree as follows. 1 DESCRIPTION OF SERVICES. NDC-HEDC agrees to perform the services and/or deliverables specified in Section II of this Agreement, as may be amended by mutual agreement in the future. 2. CHANGES TO SCOPE OF WORK. The CITY shall have the right to make changes within the general scope of services and/or deliverables upon execution in writing. 3 TERM. All services shall be satisfactorily completed on or before December 31, 2014 and this Agreement shall expire on said date unless mutually extended in writing by the Parties. Neither party shall be construed to be in default in the performance of this Agreement to the extent such performance is prevented or delayed by any cause which is beyond the reasonable control of the affected party and, in such event, the time for performance may be extended for a period equal to any time lost as a result thereof In the event NDC-HEDC is unable to proceed due to delay solely attributable to the CITY, NDC-HEDC shall advise CITY of such delay in writing as soon as practicable. 4 PAYMENT NDC-HEDC shall only be entitled to payment of fees under the following two scenarios: 1) for services associated with final project financing, as may be applicable and paid as part of any financing action; and 2) for lease fees and any other associated costs specified in an executed lease agreement. All other services and/or deliverables to be provided by NDC-HEDC specified in this Agreement shall not be charged to the City of Auburn 5 EXPENSE REIMBURSEMENT NDC-HEDC shall pay all "out-of-pocket" expenses, and shall not be entitled to reimbursement from the CITY 6. RELATIONSHIP OF PARTIES. The services and deliverables shall be furnished by NDC- HEDC as an independent contractor and nothing herein shall be construed to create a relationship of employer/employee. No payroll or employment taxes shall be withheld or paid by the CITY By reason of NDC-HEDC's status as an independent contractor, no worker's compensation insurance has been or will be obtained by the CITY on account of NDC- Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 1 HEDC NDC-HEDC may be required to provide the CITY proof of payment of these said taxes and benefits. If the CITY is assessed or deemed liable in any manner for those charges or taxes, NDC-HEDC agrees to hold the CITY harmless from those costs, including attorney's fees. The CITY will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of NDC-HEDC NDC-HEDC shall provide at its sole expense all materials, office space and other necessities to perform its duties under this Agreement, unless otherwise specified in writing herein 7 EMPLOYEES. The provisions of this Agreement shall also bind NDC-HEDC employees who perform services for the CITY under this Agreement. 8 LEASE / LEASEBACK AUTHORIZED BY RCW 35.42: The CITY AND NDC-HEDC agree and understand that the CITY can have a community center built for CITY use on a CITY owned site by means of a lease-leaseback transaction under RCW 35.42.070- 090. This statute says that the leaseback to the CITY "Shall contain terms as agreed upon between the parties," but sets forth four required provisions: a. No part of the cost of construction of the building shall ever be or become an obligation of the CITY, b The CITY shall have a prior right to occupy any or all of the building upon payment of rental as agreed upon by the parties, which rental shall not exceed prevailing rates for comparable space, c. During the time that all of any portion of the building is not required for occupancy by the CITY, the lessee of the land may rent the unneeded portion to suitable tenants approved by the CITY, and, d. Upon the expiration of the lease, all buildings and improvements on the land shall become the property of the CITY In addition to the foregoing, the lease-leaseback statute requires that the lease arrangement be made "pursuant to a call for bids upon terms most advantageous to the (City) [RCW 35 42.080]. Because this statutory language does not require that the lease arrangement be made with the lowest responsible bidder, it expressly differs in this respect from the conventional public bid process. 9 RIGHTS IN DELIVERABLE, DATAS AND OTHER PUBLICATIONS. All deliverables, documents, designs and other data which is developed pursuant to this Agreement shall be "works for hire' as defined by the U S Copyright Act of 1976, as amended and shall be owned by the CITY Pursuant to 17 U S.C, Subsection 201, the CITY will be deemed the author of the data and will own all copyrights in the data. "Data" shall mean all work products to be provided by the NDC-HEDC under this Agreement and shall include, but not be limited to, drafts and final reports, design documents, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes and/or sound reproductions. The NDC-HEDC shall obtain the CITY'S written approval prior to any publication of any results of studies and/or services performed or to be performed for any purpose other than CITY use. This provision shall not apply to any data that is developed independent of this Agreement. Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 2 C abed uoijeiodioO luawdojanaO 01wou003 pue 6omsnoH-OGN luawaai6y saowag i01ellPej 140ad-u0N smollol se passaippe 'pledaid abe;sod pew salelg pa;!uf1 a4; ul pa;!sodap jo uosiad u! paJaA!lap Ua4nn paaan!lap paweep aq llegs PUB 6u!;!jm ui aq llegs ;uawaaj6y s14; japun pappiad jo paa!nbaj sao!;ou IIV 'S30110N '£6 AllO a4l to uo!lualle eqj o; ;46naq aq llegs lualu! 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JO 1! ;e41 sa6palnnouiioe 003H-00N a41 S11WU3d 4NV S3SN3013 `S3XVI '01, IF for NDC-HEDC IF for the CITY John Finke Kevin Snyder, AICP Senior Director Planning and Development Director NDC-HEDC CITY OF AUBURN 1218 Third Avenue, Suite 1403 25 W Main Street Seattle, WA 98101 Auburn, WA 98001 Such address may be changed from time to time by either party by providing written notice to the other in the manner set forth above. 14 ASSIGNMENT NDC-HEDC shall not assign, subcontract, delegate or transfer any obligation, interest or claim to or under this Agreement without the prior written consent of the CITY, provided that NDC-HEDC may perform some or all of the services hereunder through personnel or other resources provided by the National Development Council (NDC). 15 ENTIRE AGREEMENT This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties. 16. AMENDMENT This Agreement may be modified or amended if the amendment is made in writing and is signed by both parties. 17 SEVERABILITY If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 18. WAIVER. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. 19 APPLICABLE LAW This Agreement shall be governed by the laws of the State of Washington. Venue for any court action shall be in King County, Washington. SECTION II —SCOPE OF SERVICES, TASKS AND PROJECT TIMELINE The CITY has selected NDC-HEDC as its qualified non-profit entity ("Non-Profit") to assist the CITY in the development of the Auburn Community Center at the Les Gove Community Campus. The Auburn Community Center will as currently proposed be a 20,100 square foot community center building located at the Les Gove Community Campus that will be used for educational, cultural and social activities and large non-programmed community meeting spaces. The joint-use facility will feature a spacious and welcoming lobby and an initial large community gathering space for up to 350 people as well as dividable space for recreational activities, programs and classes. The Center also includes meeting space/classrooms, office, lobby, kitchen, restrooms and storage. The CITY is interested in pursuing Leadership in Energy and Environmental Design (LEED) designation for the Center, however, the decision to pursue actual obtainment of this designation will be separately made by the CITY Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 4 r NDC-HEDC shall perform the following tasks and provide deliverables, as specified. The CITY and NDC-HEDC, upon mutual agreement, may modify, by reducing or expanding, project scope elements or task work items or project timeline components if it is determined to be advantageous and appropriate for the development and operation of the Auburn Community Center A. PRE-DEVELOPMENT PHASE — STAGE 1 Task 1 — Meeting (s) with Potential Developer (s): NDC-HEDC shall facilitate one or more meetings between City staff and one or more potential developer party (ies) to discuss and assess project scope, cost, timeline and other key project development issues. NDC-HEDC and one or more potential developer party (ies) may consult with partner contractors and subcontractors to obtain preliminary assessments and feedbacks on project cost and scope to help identify methods to address the current project funding gap. NDC-HEDC, and if appropriate, one or more potential developer party (ies) may participate, as requested, in one or more meetings with staff, Mayor or Council Committees to discuss project development issues. Task 2 — Conceptual Master Schedule: NDC-HEDC and/or its development partner shall work with the CITY to establish a Conceptual Master Schedule from the Pre-Development Phase through the Development Phase with distinct milestones and decision points. NDC-HEDC will participate, as requested, in one or more meetings with staff, Mayor or Council Committees to discuss the Conceptual Master Schedule Task 3 — Potential Financing Structures — Building upon work previously conducted by the National Development Council under contract to the CITY, NDC-HEDC will assess potential financing structuring options that are likely to be most favorable for the Community Center's development taking into account such factors as likelihood of financing, cost of financing, debt burden and structuring. NDC-HEDC will prepare a summary presentation on the potential financing structuring options. NDC-HEDC will participate, as requested, in one or more meetings with staff, Mayor or Council Committees to review and discuss this presentation. B. PRE-DEVELOPMENT PHASE — STAGE 2: Task 1 — Qualified Developer Selection and Engagement: NDC-HEDC shall identify a qualified developer with CITY concurrence to determine buildability of the current design, develop estimated costs of construction and participate as the project developer The selected developer shall have strong financial capacity, experience in similar projects and be willing to procure a guaranteed maximum price general contract. Task 2 — Cost Effectiveness Evaluation: NDC-HEDC may elect to conduct a cost effectiveness evaluation to achieve project affordability relative to project financing. The CITY may be involved in all meetings and conversations with NDC-HEDC and the project development team. As part of this effort, NDC-HEDC and the developer shall meet with the current project architect under Agreement to the CITY to determine whether such firm should be retained. Any decision to retain or not retain the current architect shall be mutually made by the CITY and NDC-HEDC THE CITY may review and advise on all information and documents pertaining to the cost effectiveness evaluation. Any final decisions to modify, revise, remove or otherwise change one or more of the current design elements of the Community Center shall be subject to the direct approval of the CITY Non-Profit Facilitator services Agreement NDC-Housing and Economic Development Corporation Page 5 9 abed uogeJodioo juawdolanap oiwou003 pue 6wsnoH-oQN 1uaw9aa6y saoiNag io7e111ioed WOJd-uoN pue s;uawaaJ6e yons ;o uo!;noaxe ay; Jo; po4;aw PUB 6u!w!; ay; (;loads Ileys Juawa9J6y ;uawdolanaQ ayl AJ!I!Oe; ayJ 6u!u!e;u!ew pue bu!JonJ;suoo u! asn Jo; papaau sJuawnoop Jay;o pue s;uawaaJ6e pue (s) a;ea aseal Joafwd '(dW0) aoud wnw!xelN pae;ueJenE) pa;oafoJd 'alnpayoS uo!;onJ;suoo ;oafoJd ay; ssaJppe lleys JuawaaJ6y ;uawdolana(] a41 '02-0L1 OOL'9£ MOb bo suo!s!AoJd ay; o; ;uensmd ;uawa9J6y JuawdolanaQ a aJedaJd Ile4s aouaJJnouoo pue Me[AOJ s,A110 4;!M O03H-OGN :;uewaaa6y ;uawdolanaQ — 9 mse1 uo!;eo!;!paO 4331 ansJnd o;Jay;aynn wJIJUOO pue MGIAeJ o; saa11!ww03 I!Ounoo Jo WeW ;;8Js tVAA sbugaaw aJow Jo auo u! 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AiIO ay; LIPm (19sO10 �JOm II!M O03H-OON 'uogeq!ui uogonJ;suoo o;Joud spun; a;enbape ;o l!I!gel!ene amsui o; aJn;onJ;s aoueu!; ;oafwd aq; a;noaxe pegs 'paJ!nbei Jo papaau se uo!;ed!o!ped s,43 9q1 LIPm '003H-OaN :uolln38x3 6uunjonJJS 6ul3ueu!j — L Hsel :6unueu!;;oafoJd ay;;o bu!solo le (molaq Z �sel Japun pegs!IgeJsa (;gua a4; Jo) 043H-OGN o; pled aq o; q I uoiJoes ul qpo; ;as se seal ay; bu!u!wJaJap Jo; ws!ueyoaw ay; o; se ;uawaaJ6e 6uipnlou! ;uawdolanap o; paaowd o; aseyd ;uawdolanaQ-aJd ay; ;o Z pue I. sate;S Jo; pa;aldwoo spo;}a 6uimollo; ;uawaaJ6e len;nw s! aJay; ;! y;oq Jo Allo '0(13H-OdN Aq pays!Idw000e aq II!M sNseJ 6u!mollo; aqj 3SVHd 1N3WdO13A30 'D aJn;onJJs ;uawaaJ6e aseal pue s;soo aoueua;u!ew pue suo!;eJado 'sa;eJ aseal pa;oafwd ayJ wJ!;uoo pue Ma!AW o; saa;;!WWOO I!ounoo Jo Jo(eW 'gels ql!m sbu!;aaw aJow Jo auo u! 'pa;sanbaJ se 'ejed!o!ped II!M 043H-OaN ;oafwd a43 4;!M paaowd Jou o; ;oala Rew J! 'uo!;ewJo;ui sly; y;!nn pa!;s!Jes Jou s! /J!o ayJ;I uo!JonJJsuoo o; paaowd of Jou Jo J9y;et4m auiwJaJap o; uo!;ewJo;ui sly; aimbei Ile4s Allo ayl -aJnJonJ;s ;uawaaJ6e aseal pue (s) a;eJ aseal (la�!q ay; ou!wJaJap /pu!of 'ain;onJ;s bu!oueu!; pue aoud ;oafwd a ;o ;uawdolanap 6u1mOII0b 'Ile4s AiIO 94; PUB 0(13H-OUN 060 -OLO ZV 9£ AAOH Japun paz!Joy;ne uo!JoesueJJ �Oegaseaj-eseal a saAlonui aJn;onJ;s 6u!oueu!; paJJa;aJd ay; 11 — aJnjona;S ;uawaaJ6y aseal pue s;so0 aoueuejuleW pue suo!JeJadO `(s)a;em aseal pa;oafoid — q )Isel aJn;oru;s 6u!oueu!; paJJa;aJd ay; wn;uoo PUB M91AGJ of seepwwoo I!ounoo Jo Jo(eW ';;e;s y;!nn sbui;aaw aJow Jo auo u! 'pa;sanbaJ se a;ed!o! w ;I leu!; pue ;;eJp aJedaJd I1e4s 0431-1-OON Ja;ueo Apnwwoo ay; ;o uogonJ;suoo ay; Jo; aJn;onJJs bu!oueu!; paJJa;aJd ay; puawuJOOaJ 01 AllO 84; 4 1!M MJOM II!M 043H-OGN :6uljnl3nj;S 6uloueulj — g mse1 documents. The Development Agreement shall be submitted to the Auburn City Council for its review and approval. The inclusion of a Development Agreement as a task item in this Agreement in no way binds or commits the Auburn City Council to approve a Development Agreement nor binds or commits it to only the elements specified herein. Any Development Agreement shall only be effective following City Council action. Conditions of the Development Agreement shall include, but are not limited to: 1) execution of the Project Lease Agreement, if applicable to occur at the time of project financing, but no later than thirty (30) calendar days prior to construction initiation; and 2) execution of any and all other documents needed for use in constructing and operating the facility to occur at the time of project financing, but no later than thirty (30) calendar days prior to construction initiation. Task 6 — Project Accounting System. NDC-HEDC shall establish a project accounting system to monitor all project costs and provide cash flow projections for the term of the project. Task 7 — Construction Bidding: NDC-HEDC working with the project development team and the CITY will conduct construction bidding of the project in accordance with all applicable laws and regulations. Task 8 — Construction Agreement Negotiations and Execution: Subject to closing of project financing, NDC-HEDC shall negotiate and execute a construction Agreement with the selected contractor inclusive of any subcontractors. The CITY shall be involved in these negotiations, as appropriate, to ensure that the CITY's interests and needs are adequately represented. Task 9 — Construction Management: If applicable, based on the structure mutually agreed upon by NDC-HEDC and the CITY, NDC-HEDC working through its project developer will act as construction manager during the development phase of the project. NDC-HEDC shall hold regular meetings with the project development team and the CITY to review construction progress, milestones, schedule, budget and pending or proposed changes, if necessary Any pending or proposed changes shall only occur pursuant to procedures outlined in the development agreement and facility lease. NDC-HEDC shall prepare and submit to the CITY a monthly written project status report during the term of construction addressing the meeting issues described above. During the period of construction, NDC-HEDC shall be responsible for complying with all local, regional, state and federal permitting requirements, inspection findings or other regulatory requirements. Task 10 — Facilities Operation Plan: If applicable, based on the structure mutually agreed upon by NDC-HEDC and the CITY, NDC-HDEC and the CITY shall jointly prepare a facility operations plan that will address facility and property management, operations and maintenance. As part of this effort, the CITY shall determine whether it shall provide property management services during the lease period or whether these services shall be outsourced to a private party property manager, whose services shall be obtained by NDEC-HDC subject to the review and approval of the CITY NDC-HDEC and the CITY shall execute a memorandum of understanding or similar instrument that addresses the City's reasonable right to assume property management responsibilities during the period of private property management, if so desired by the CITY Task 11 — Commissioning of Building Systems — NDC-HEDC and the CITY, where appropriate, shall perform building commission efforts to insure that the building operates as intended and that the building operators are prepared to operate and maintain its systems and equipment. Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 7 Task 12 — Construction Completion and Building Occupancy- If applicable, based on the structure mutually agreed upon by NDC-HEDC and the CITY, NDC-HDEC shall complete all required construction including any authorized change orders within the budget and timeframe specified and obtain all final approvals necessary to insure legal building occupancy SECTION III - NONDISCRIMINATION AND AFFIRMATIVE ACTION PART 1 NON-DISCRIMINATION A. Auburn City Code Chapters 3.10 (Purchasing Policy), 312 (Public Agreements), 3.14 (Public Agreements) and 3.18 (Reimbursable Labor Rates) are incorporated by reference as if fully set forth herein and such requirements apply to this Agreement; provided, however, that no specific levels of utilization of minorities and women in the workforce of the NDC- HEDC shall be required, and the NDC-HEDC is not required to grant any preferential treatment on the basis of race, sex, color, ethnicity or national origin in its employment practices; and provided further that, notwithstanding the foregoing, any affirmative action requirements set forth in any federal regulations, statutes or rules included or referenced in the Agreement documents shall continue to apply B. During the performance of this Agreement, neither the NDC-HEDC nor any party subcontracting under the authority of this Agreement shall discriminate nor tolerate harassment on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation, age, or the presence of any sensory, mental, or physical disability in the employment or application for employment or in the administration or delivery of services or any other benefits under this Agreement. C NDC-HEDC shall, prior to the commencement of the work and during the term of this Agreement, furnish the CITY, upon request and on such forms as may be provided by the CITY, a report of the affirmative action taken by the NDC-HEDC in implementing the terms of this section. The NDC-HEDC will permit access by the CITY to the NDC-HEDC's records of employment, employment advertisements, application forms, other pertinent data and records related to this Agreement for the purpose of monitoring and investigation to determine compliance with these requirements. D NDC-HEDC shall implement and carry out the obligations contained in its Affidavit and Certificate of Compliance regarding equal employment opportunity Failure to implement and carry out such obligations in good faith may be considered by the CITY as a material breach of this Agreement and grounds for withholding payment and/or termination of the Agreement and dismissal of the NDC-HEDC E. NDC-HEDC shall comply fully with all applicable federal, state and local laws, ordinances, executive orders and regulations that prohibit such discrimination. These laws include, but are not limited to, RCW Chapter 49.60 and Titles VI and VII of the Civil Rights Act of 1964 F During the performance of this Agreement, neither NDC-HEDC nor any party subcontracting under the authority of this Agreement shall engage in unfair employment practices. It is an unfair employment practice for any - 1 Employer or labor organization to discriminate against any person with respect to referral, hiring, tenure, promotion, terms, conditions, wages or other privileges of employment; 2. Employment agency or labor organization to discriminate against any person with respect to membership rights and privileges, admission to or participation in any Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 8 guidance program, apprenticeship training program, or other occupational training program; 3 Employer, employment agency, or labor organization to print, circulate, or cause to be printed, published or circulated, any statement, advertisement, or publication relating to employment or membership, or to use any form of application therefore, which indicates any discrimination unless based upon a bona fide occupation qualification; 4 Employment agency to discriminate against any person with respect to any reference for employment or assignment to a particular job classification, 5 Employer, employment agency or a labor organization to retaliate against any person because this person has opposed any practice forbidden by applicable local, state or federal laws or because that person has made a charge, testified or assisted in any manner in any investigation, proceeding or hearing, 6 Publisher, firm, corporation, organization or association printing, publishing or circulating any newspaper, magazine or other written publication to print or cause to be printed or circulated any advertisement with knowledge that the same is in violation of local, state or federal laws, or to segregate and separately designate advertisements as applying only to men and women unless such discrimination is reasonably necessary to the normal operation of the particular business, enterprise or employment, unless based upon a bona fide occupational qualification; and/or 7 Employer to prohibit any person from speaking in a language other than English in the workplace unless: a. The employer can show that requiring that employees speak English at certain times is justified by business necessity, and b. The employer informs employees of the requirement and the consequences of violating the rule. PART 2: NONDISCRIMINATION IN SUBAGREEMENTING PRACTICES A. Compliance with Initiative 200 In accordance with the provisions of Washington Initiative 200, no CITY Minority and Women Business (M/WBE) utilization requirements shall apply to this Agreement. No minimum level of M/WBE sub-contractor participation or purchase from M/WBE certified vendors is required and no preference will be given by the CITY to a bidder, proposer or submitter for their M/WBE utilization or M/WBE status. Provided, however, that any affirmative action requirements set forth in any federal regulations or statutes included or referenced in the Agreement documents will continue to apply B Non-Discrimination. During the term of this Agreement, NDC-HEDC shall not create barriers to open and fair opportunities to participate in CITY Agreements or to obtain or compete for Agreements and subcontracts as sources of supplies, equipment, construction and services. In considering offers from and doing business with sub-contractors and suppliers, the NDC-HEDC shall not discriminate against any person on the basis of race, color, creed, religion, sex, age, nationality, marital status, sexual orientation or the presence of any mental or physical disability in an otherwise qualified disabled person. During the performance of work performed under any contract resulting from this Agreement, neither the NDC-HEDC nor any party subcontracting under the authority of the agreement shall discriminate or engage in unfair subcontracting practices. C Record-Keeping Requirements. 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REQUIREMENTS DURING WORK A. Site Visits The CITY at any time may visit the site of the work and NDC-HEDC's office to review records related to actual utilization of and payments to subcontracting firms. NDC-HEDC shall maintain sufficient records necessary to enable the CITY to review utilization of subcontracting firms. NDC-HEDC shall provide every assistance requested by the CITY during such visits. PART 4. COMPLIANCE WITH SECTION 504 OF THE REHABILITATION ACT OF 1973, AS AMENDED AND THE AMERICANS WITH DISABILITIES ACT OF 1990 A. NDC-HEDC shall complete a Disability Self-Evaluation Questionnaire for all programs and services offered by the NDC-HEDC (including any services not subject to this Agreement) and shall evaluate its services, programs and employment practices for compliance with Section 504 of the Rehabilitation Act of 1973, as amended ("504"), and the Americans with Disabilities Act of 1990 ("ADA"). The NDC-HEDC shall complete a 504/ADA Disability Assurance of Compliance prior to execution of an Agreement. SECTION IV - GENERAL AGREEMENT REQUIREMENTS PART 1 TERMINATION CLAUSES A. The Agreement may be terminated by NDC-HEDC or the CITY without cause, in whole or in part, upon providing the other party ten (10) calendar days advance written notice of the termination. If the Agreement is terminated pursuant to this Section IV, paragraph A. (1) the CITY will be liable only for payment in accordance with the terms of this Agreement for services rendered prior to the effective date of termination; and (2) the NDC-HEDC shall be released from any obligation to provide further services pursuant to the Agreement. B The CITY may terminate the Agreement, in whole or in part, upon ten (10) calendar days advance written notice in the event: (1) the NDC-HEDC materially breaches any duty, obligation, or services required pursuant to this Agreement, or (2) the duties, obligations, or services required herein become impossible, illegal, or not feasible. If the Agreement is terminated by the CITY pursuant to this Subsection IV(B) (1), NDC-HEDC shall be liable for damages, including any additional costs of procurement of similar services from another source. If the termination results from acts or omissions of the NDC-HEDC, including but not limited to misappropriation, nonperformance of required services or fiscal mismanagement, NDC-HEDC shall return to the CITY immediately any funds, misappropriated or unexpended, which have been paid to the NDC-HEDC by the CITY C If expected or actual funding is withdrawn, reduced or limited in any way prior to the termination date set forth above in Section II or in any amendment hereto, the CITY may, upon written notice to NDC-HEDC, immediately terminate this Agreement in whole or in part. If the Agreement is terminated pursuant to this Section IV, paragraph C (1) the CITY will be liable only for payment, if payment is legally due, in accordance with the terms of this Agreement for services rendered prior to the effective date of termination; and (2) NDC- Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 11 HEDC shall be released from any obligation to provide further services pursuant to the Agreement. Funding under the Agreement beyond the current appropriation year is conditional upon appropriation by the CITY Council of sufficient funds to support the activities described in this Agreement. Should such an appropriation not be approved, this Agreement will terminate at the close of the current appropriation year D Nothing herein shall limit, waive, or extinguish any right or remedy provided by this Agreement or law that either party may have in the event that the obligations, terms and conditions set forth in this Agreement are breached by the other party PART 2: INDEMNIFICATION AND HOLD HARMLESS A. In providing services under this Agreement, the NDC-HEDC is an independent Contractor, and neither NDC-HEDC nor its officers, agents or employees are an employee of the CITY for any purpose. NDC-HEDC shall be responsible for all federal and/or state tax, industrial insurance, and Social Security liability that may result from the performance of and compensation for these services and shall make no claim of career service or civil service rights which may accrue to a CITY employee under state or local law The CITY assumes no responsibility for the payment of any compensation, wages, benefits or taxes to, or on behalf of, the NDC-HEDC, its employees or others by reason of this Agreement. NDC-HEDC shall defend, indemnify and hold the CITY, its officers, agents and employees harmless from and against any and all claims, costs and/or losses whatsoever occurring or resulting from 1) NDC-HEDC's failure to pay any such compensation, wages, benefits or taxes; and 2) the supplying to NDC-HEDC of work, services, materials and/or supplies by NDC-HEDC employees or other suppliers in connection with the performance of this Agreement. B. NDC-HEDC further agrees that it is financially responsible for and shall repay the CITY all indicated amounts following an audit exception which occurs due to the negligence, acts or omissions for any reason to comply with the terms of this Agreement by NDC-HEDC, its officers, employees, agents and/or representatives. This duty to repay the CITY shall not be diminished or extinguished by the prior termination of the Agreement pursuant to the Termination section. C NDC-HEDC shall, defend, indemnify, and hold the CITY, [and the State of Washington (when any funds for this Agreement are provided by the State of Washington)) their officers, employees, and agents harmless from any and all costs, claims, judgments, and/or awards of damages, arising out of or in any way resulting from the negligent acts or omissions of NDC-HEDC, its officers, employees, and/or agents. NDC-HEDC agrees that its obligations under this subparagraph extend to any claim, demand and/or cause of action brought by or on behalf of any of its employees or agents in performing its obligations under this Agreement. For this purpose, NDC-HEDC, by mutual negotiation, hereby waives, as respects the CITY only, any immunity that would otherwise be available against such claims under the Industrial Insurance provisions of Title 51 RCW In the event that CITY incurs attorney fees and/or costs in the defense of claims, for damages within the scope of this section, such fees and costs shall be recoverable from NDC-HEDC In addition, the CITY shall be entitled to recover from NDC-HEDC fees, and costs incurred to enforce the provisions of this section. Claims shall include, but not be limited to, assertions that the use or transfer of any software, book, document, report, film, tape, or sound reproduction or material of any kind, Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 12 delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, or otherwise results in unfair trade practice. Nothing contained within this provision shall affect and/or alter the application of any other provision contained within this agreement. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24 115, then, in the event of liability for damages arising out of the services provided by NDC-HEDC, bodily injury to persons, or damage to property caused by resulting from the concurrent negligence of NDC-HEDC and the CITY, its officers, officials, employees and volunteers, NDC-HEDC's liability hereunder shall be only to the extent of NDC-HEDC's negligence. PART3: INSURANCE A. Minimum Scope of Insurance: NDC-HEDC shall obtain insurance of the types described below and submit evidence of to the CITY 1 Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury The CITY shall be named as an insured under NDC-HEDC's Commercial General Liability insurance policy with respect to the work performed for the CITY 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4 Professional Liability, if applicable, insurance appropriate to NDC-HEDC's profession. B. Minimum Amounts of Insurance: NDC-HEDC shall maintain the following insurance limits: 1 Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of$1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Professional Liability insurance, if applicable, shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance. Non-Profit Facilitator services Agreement NDC-Housing and Economic Development Corporation Page 13 1 NDC-HEDC's insurance coverage shall be primary insurance as respect to the CITY Any insurance, self-insurance, or insurance pool coverage maintained by the CITY shall be excess of NDC-HEDC's insurance and shall not contribute with it. 2. NDC-HEDC's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the CITY 3. Acceptability of Insurers: Insurance is to be placed with insurers with a current A.M. Best rating of not less than A. VII 4 Verification of Coverage: NDC-HEDC shall furnish CITY with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of NDC- HEDC before commencement of the work PART 4 CORRECTIVE ACTION If the CITY determines that a breach of Agreement has occurred, that NDC-HEDC has failed to comply with any terms or conditions of this Agreement or NDC-HEDC has failed to provide in any manner the work or services agreed to herein, and if the CITY deems said breach to warrant corrective action, the following sequential procedure will apply A. The CITY will notify NDC-HEDC in writing of the nature of the breach, B. NDC-HEDC shall respond in writing within three (3) working days of its receipt of such notification, which response shall indicate the steps being taken to correct the specified deficiencies. The corrective action plan shall specify the proposed completion date for bringing the Agreement into compliance, which date shall not be more than ten (10) days from the date of NDC-HEDC's response; unless the CITY, at its sole discretion, specifies in writing an extension in the number of days to complete the corrective actions; C The CITY will notify NDC-HEDC in writing of its determination as to the sufficiency of the NDC-HEDC's corrective action plan. The determination of sufficiency of NDC-HEDC's corrective plan shall be at the sole discretion of the CITY, D In the event that NDC-HEDC does not respond within the appropriate time with a corrective action plan, or NDC-HEDC's corrective action plan is determined by the CITY to be insufficient, the CITY may commence termination of this Agreement in whole or in part pursuant to Section IV.B; E. In addition, the CITY may withhold any payment owed NDC-HEDC or prohibit NDC-HEDC from incurring additional obligations of funds until the CITY is satisfied that corrective action has been taken or completed; and F Nothing herein shall be deemed to affect or waive any rights the parties may have pursuant to Section IV, Termination Clauses, Subsections A, B, C, and D PART 5. ASSIGNMENT/SUBAGREEMENTING A. NDC-HEDC shall not assign or subcontract any portion of this Agreement or transfer or assign any claim arising pursuant to this Agreement without the written consent of the CITY Said consent must be sought in writing by NDC-HEDC not less than fifteen (15) calendar days prior to the date of any proposed assignment. B. "Subcontract" shall mean any agreement between NDC-HEDC and a Subcontractor or between Subcontractors that is based on this Agreement, provided that the term Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 14 "subcontract" does not include the purchase of (i) support services not related to the subject matter of this Agreement, or (ii) supplies. SECTION V - ADDITIONAL INFORMATION & REQUIREMENTS A Disclosure — Conflict of Interest NDC-HEDC agrees to abide by all of the following requirements. Failure by NDC-HEDC to comply with any requirements specified below shall be a material breach of Agreement: 1 NDC-HEDC covenants that no officer, employee, or agent of the CITY who exercises any functions or responsibilities in connection with the planning and implementation of the scope of services funded herein, or any other person who presently exercises any functions or responsibilities in connection with the planning and implementation of the scope of services funded herein shall have any personal financial interest, direct or indirect, in NDC-HEDC or any affiliate of NDC-HEDC NDC-HEDC shall take appropriate steps to assure compliance with this provision. 2. If NDC-HEDC violates the provisions of Section V (1) or does not disclose other interest required to be disclosed the CITY will not be liable for payment of services rendered pursuant to this Agreement. Violation of this Section shall constitute a substantial breach of this Agreement and grounds for termination pursuant to Section IV (B) above as well as any other right or remedy provided in this Agreement or law B. Recycled/Recyclable Products NDC-HEDC shall use recycled paper for the production of all printed and photocopied documents related to the fulfillment of this Agreement and shall ensure that, whenever possible, the cover page of each document printed on recycled paper bears an imprint identifying it as recycled paper If the cost of recycled paper is more than fifteen percent higher than the cost of non-recycled paper, NDC-HEDC may notify the Agreement Administrator, who may waive the recycled paper requirement. NDC-HEDC shall use both sides of paper sheets for copying and printing and shall use recycled/recyclable products wherever practical in the fulfillment of this Agreement. C Proprietary Rights The parties to this Agreement hereby mutually agree that if any patentable or copyrightable material or article should result from the work described herein, all rights accruing from such material or article shall be the sole property of the CITY The foregoing shall not apply to existing training materials, consulting aids, check lists and other materials and documents of NDC-HEDC which are modified for use in the performance of this Agreement. SECTION VI - MAINTENANCE OF RECORDS/AUDITS A. NDC-HEDC shall maintain including records related to subcontractors, accounts and records, including personnel, property, financial and programmatic records and other such records as may be deemed necessary by the CITY to ensure proper accounting for all project funds and compliance with this Agreement. All such records shall sufficiently and properly reflect all direct and indirect costs of any nature expended and services provided in the performance of this Agreement. The NDC-HEDC shall make such documents available to the CITY for inspection, copying, and auditing upon request. B All records referenced in subsection (A) shall be maintained for a period of six (6) years after completion of work or termination hereof unless permission to destroy them is granted by Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 15 the CITY Clerk in accordance with RCW Chapter 40 14, or unless a longer retention period is required by law C NDC-HEDC shall provide access to its facilities and shall require its subcontractors to provide access, to the CITY, the state and/or federal agencies or officials at all reasonable times in order to monitor and evaluate the services provided under this Agreement. The CITY will give advance notice to the NDC-HEDC in the case of fiscal audits to be conducted by the CITY D NDC-HEDC agrees to cooperate with the CITY or its designee in the evaluation of services provided under this Agreement and to make available all information reasonably required by any such evaluation process. The results and records of said evaluation shall be maintained and disclosed in accordance with RCW Chapter 42.17 E. If NDC-HEDC received a total of $300,000.00 or more in federal financial assistance during its fiscal year from the CITY, and is a non-profit organization or institution of higher learning or a hospital affiliated with an institution of higher learning, and is, under this Agreement, carrying out or administering a program or portion of a program, it shall have an independent audit conducted of its financial statement and condition, which shall comply with the requirements of GAAS (generally accepted auditing standards), GAO's Standards for Audits of Governmental Organizations, Programs, Activities, and Functions and OMB Circulars A-133 and A-128, as amended and as applicable. If NDC-HEDC receives federal funds from more than one CITY Department or Division, then NDC-HEDC shall be responsible for determining of the combined financial assistance is equal or greater than $300,000.00. NDC-HEDC shall provide one copy of the audit report to each CITY department or division providing federal financial assistance to NDC-HEDC no later than six (6) months subsequent to the end of the NDC-HEDC's fiscal year SECTION VII — REQUIRED FORMS The following completed forms will be required from NDC-HEDC within seven (7) calendar days of Agreement execution. A. Statement of Compliance - Union or Employee Referral Agency Statement (if applicable) B. 504/ADA Disability Assurance of Compliance and Corrective Action Plan SECTION VIII — REQUIRED SIGNATURES The undersigned have read the above statements, understand them and agree to abide by their terms. CITY OF AUBURN Signature: Printed Name. Peter B. Lewis Title: Mayor Date. 1 6 bey 1::A01 c9_0IJ, Non-Profit Facilitator services Agreement NDC-Housing and Economic Development Corporation Page 16 - 1 NDC-HOUSING D I4DEVELO ENT CORPOR ATION: Signature: L Printed Name: 0a Uo�l� Title. S� Date: �� Ste' 20 n, Non-Profit Facilitator Services Agreement NDC-Housing and Economic Development Corporation Page 17