HomeMy WebLinkAboutITEM VIII-B-3
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AGENDA BILL APPROVAL FORM
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Agenda Subject: Resolution No. 4528 Date:
New Market Tax Credit Financial Services A reement Se tember 15, 2009
Department: Attachments: Budget Impact:
Administration/Finance Resolution & Financial Services $45,000
A reement, , Flow Chart & Task List
Administrative Recommendation:
City Council adopt Resolution No. 4528.
Background Summary:
The City of Auburn (City) intends to fund and construct a community center facility with Parks
administrative office space, an activity center/gym and remodel an existing building into a Youth Center at
the City's Les Gove Park complex. The City is qualified for and intends to use "new market tax credits"
(NMTC) financing as one revenue component for this capital improvement project. Due to the complexity
of new market tax credit transactions, it is necessary for the City to retain financial consultant services to
conduct an assessment for the City as to how to navigate the City's NMTC financing initiative, and
coordinate/manage the NMTC financing process in a manner that will result in controlling transaction
fees, legal fees and closing costs.
04.4.13; F6.17
Reviewed by Council & Committees: Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O
❑ Airport ED Finance ❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv. 0 Finance ❑ Parks
❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning
❑ Park Board ED Public Works ED Legal ❑ Police
❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources
❑ Information Services
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Backus Staff: Coleman/Wilson
Meetin Date: September 21, 2009 Item Number: VI11.6.3
AU$[jRN *MORE THAN YOU 1tvtAGINED
RESOLUTION NO. 4 5 2 8
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO
SIGN A FINANCIAL SERVICES AGREEMENT WITH
BRECKENRIDGE CONSULTING SERVICES, INC.
WHEREAS, the City of Auburn (City) intends to fund and construct a
community center facility with Parks administrative office space, an activity
center/gym, and remodel an existing building into a Youth Center at the City's
Les Gove Park complex; and
WHEREAS, the City is qualified for and intends to use "new market tax ,
credits" (NMTC) financing as one revenue component for this capital
improvement project; and
WHEREAS, due to the complexity of new market tax credit transactions,
the City needs to retain financial consulting services to conduct an assessment
for the City as to how to navigate the City's NMTC financing initiative and
coordinate/manage the NMTC financing process in a manner that will result in
controlling transaction fees, legal fees and financial costs; and
WHEREAS, the City advertised and solicited proposals from qualified
financial consultants and interviewed two companies with new market tax credit
financial consulting experience; and
WHEREAS, it has been determined that Breckenridge Consulting
Services (Seattle, WA) best meets the City's financial service needs and scope
of work for the capital funding of this project.
Resolution No. 4528
September 15, 2009
Page 1
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Section 1. Implementation. The Mayor of the City of Auburn is hereby
authorized to sign the Financial Services Agreement with Breckenridge
Consulting Services in substantial conformity with the Agreement identified and
attached hereto as Exhibit "A".
Section 3. Effective Date. This Resolution shall take effect and be in
full force upon passage and signatures hereon.
DATED and SIGNED THIS DAY OF , 2009.
CITY OF AUBURN
ATTEST: PETER B. LEWIS, MAYOR
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
~ Daniel B. Heid,
City Attorney
Resolution No. 4528
September 15, 2009
Page 2
CITY OF AUBURN AGREEMENT
FOR CONSULTING SERVICES
THIS AGREEMENT made and entered into on this day of ,
2009, by and between the City of Auburn, a municipal corporation of the State of Washington,
hereinafter referred to as "City" and Breckenridge Consulting Services, hereinafter referred to as
the "Consultant."
WITNESSETH:
WHEREAS, the City is engaged in the financing and construction of a new community
center and activity center project (Project), and is in need of services of individuals, employees
or firms for "new market tax credits" financial consulting work on the Project; and,
WHEREAS, the City desires to retain the Consultant to provide certain services in
connection with the City's work on the Project; and,
WHEREAS, the Consultant is qualified and able to provide consulting services in
connection with the City's needs for the above-described work/project, and is willing and
agreeable to provide such services upon the terms and conditions herein contained.
NOW, THEREFORE, the parties hereto agree as follows:
1. Scope of Services.
The Consultant agrees to perform in a good and professional manner the tasks described
on Exhibit "A" attached hereto and incorporated herein by this reference. (The tasks
described on Exhibit "A" shall be individually referred to as a"task," and collectively
referred to as the "services.") The Consultant shall perform the services as an
independent contractor and shall not be deemed, by virtue of this Agreement and the
performance thereof, to have entered into any partnership, joint venture, employment or
other relationship with the City.
2. Additional Services.
From time to time hereafter, the parties hereto may agree to the performance by the
Consultant of additional services with respect to related work or projects. Any such
agreement(s) shall be set forth in writing and shall be executed by the respective parties
prior to the Consultant's performance of the services there under, except as may be
provided to the contrary in Section 3 of this Agreement. Upon proper completion and
execution of an addendum (agreement for additional services), such addendum shall be
incorporated into this Agreement and shall have the same force and effect as if the terms
of such addendum were a part of this Agreement as originally executed. The
performance of services pursuant to an addendum shall be subject to the terms and
conditions of this Agreement except where the addendum provides to the contrary, in
which case the terms and conditions of any such addendum shall control. In all other
respects, any addendum shall supplement and be construed in accordance with the terms
and conditions of this Agreement.
Page 1 of 8
3. Performance of Additional Services Prior to Execution of an Addendum.
The parties hereby agree that situations may arise in which services other than those
described on Exhibit "A" are desired by the City and the time period for the completion
of such services makes the execution of addendum impractical prior to the
commencement of the Consultant's performance of the requested services. The
Consultant hereby agrees that it shall perform such services upon the oral request of an
authorized representative of the City pending execution of an addendum, at a rate of
compensation to be agreed to in connection therewith. The invoice procedure for any
such additional services shall be as described in Section 7 of this Agreement.
4. Consultant's Representations.
The Consultant hereby represents and warrants that he has all necessary licenses and
certifications to perform the services provided for herein, and is qualified to perform such
services.
5. Citv's Responsibilities.
The City shall do the following in a timely manner so as not to delay the services of the
Consultant:
a. Designate a person to act as the City's representative with respect to the services.
The City's designee shall have complete autharity to transmit instructions, receive
information, interpret and define the City's policies and decisions with respect to
the services.
b. Furnish the Consultant with all information, criteria, objectives, schedules and
standards for the project and the services provided for herein.
c. Arrange for access to the property or facilities as required for the Consultant to
perform the services provided for herein.
d. Examine and evaluate all studies, reports, memoranda, plans, sketches, and other
documents prepared by the Consultant and render decisions regarding such
documents in a timely manner to prevent delay of the services.
6. Acceptable Standards.
The Consultant shall be responsible to provide, in connection with the services
contemplated in this Agreement, work product and services of a quality and professional
standard acceptable to the City.
7. Compensation.
As compensation for the Consultant's performance of the services provided for herein,
the City shall pay the Consultant the fees and costs specified on Exhibit "B" attached
hereto and made a part hereof (or as specified in an addendum). The Consultant shall
submit to the City an invoice or statement of time spent on tasks included in the scope of
work provided herein, and the City shall process the invoice or statement in the next
billing/claim cycle following receipt of the invoice or statement, and shall remit payment
to the Consultant thereafter in the normal course, subject to any conditions or provisions
in this Agreement or addendum.
8. Term of Agreement.
The Term of this Agreement shall commence on the date hereof or on the day
of September, 2009 and shall terminate on the day of April, 2010, or upon
Page 2 of 8
completion of the performance of the scope of work provided herein, unless otherwise
agreed to in writing by the parties.
9. Ownership and Use of Documents.
All documents, reports, memoranda, diagrams, sketches, plans, surveys, design
calculations, working drawings and any other materials created or otherwise prepared by
the Consultant as part of his performance of this Agreement (the "Work Products") shall
be owned by and become the property of the City, and may be used by the City for any
purpose beneficial to the City.
10. Records Inspection and Audit.
All compensation payments shall be subject to the adjustments for any amounts found
upon audit or otherwise to have been improperly invoiced, and all records and books of
accounts pertaining to any work performed under this Agreement shall be subject to
inspection and audit by the City for a period of up to three (3) years from the final
payment for work performed under this Agreement.
11. Continuation of Performance.
In the event that any dispute or conflict arises between the parties while this Contract is in
effect, the Consultant agrees that, notwithstanding such dispute or conflict, the Consultant
shall continue to make a good faith effort to cooperate and continue work toward
successful completion of assigned duties and responsibilities.
12. Administration of Agreement.
This Agreement shall be administered Paul Breckenridge, on behalf of the Consultant,
and by the Mayor of the City, or designee, on behalf of the City. Any written notices
required by the terms of this Agreement shall be served on or mailed to the following
addresses:
CitX of Auburn Consultant
Finance Department, City of Auburn Breckenridge Consulting Services
25 West Main 229 Broadway E., Suite 21
Auburn, WA 98001-4998 Seattle, WA 98102
(253) 931-3000 FAX (253) 931-3053 (206) 324-0229
13. Notices.
All notices or communications permitted or required to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered in person or
deposited in the United States mail, postage prepaid, for mailing by certified mail, return
receipt requested, and addressed, if to a party of this Agreement, to the address for the
party set forth above, or if to a person not a party to this Agreement, to the address
designated by a party to this Agreement in the foregoing manner.
Any party may change his, her or its address by giving notice in writing, stating his, her
or its new address, to any other party, all pursuant to the procedure set forth in this
section of the Agreement.
Page 3 of 8
14. Insurance.
The Consultant shall be responsible for maintaining, during the term of this Agreement
and at its sole cost and expense, the types of insurance coverages and in the amounts
described below. The Consultant shall furnish evidence, satisfactory to the City, of all
such policies. During the term hereof, the Consultant shall take out and maintain in full
force and effect the following insurance policies:
a. Comprehensive public liability insurance, including automobile and property damage,
insuring the City and the Consultant against loss or liability for damages for personal
injury, death or property damage arising out of or in connection with the performance
by the Consultant of its obligations hereunder, with minimum liability limits of
$1,000,000 combined single limit for personal injury, death or property damage in
any one occurrence.
15. Indemnification.
The Consultant shall indemnify and hold harmless the City and its officers, agents and
employees, or any of them from any and all claims, actions, suits, liability, loss, costs,
expenses, and damages of any nature whatsoever, by any reason of or arising out of the
negligent act or omission of the Consultant, its officers, agents, employees, or any of
them relating to or arising out of the performance of this Agreement. If a final judgment
is rendered against the City, its officers, agents, employees and/or any of them, or jointly
against the City and the Consultant and their respective officers, agents and employees,
or any of them, the Consultant shall satisfy the same to the extent that such judgment was
due to the Consultant's negligent acts or omissions.
16. Assignment.
Neither party to this Agreement shall assign any right or obligation hereunder in whole or
in part, without the prior written consent of the other party hereto. No assignment or
transfer of any interest under this Agreement shall be deemed to release the assignor from
any liability or obligation under this Agreement, or to cause any such liability or
obligation to be reduced to a secondary liability or obligation.
17. Amendment, Modification or Waiver.
No amendment, modification or waiver of any condition, provision or term of this
Agreement shall be valid or of any effect unless made in writing, signed by the party or
parties to be bound, or such party's or parties' duly authorized representative(s) and
specifying with particularity the nature and extent of such amendment, modification or
waiver. Any waiver by any party of any default of the other party shall not effect or
impair any right arising from any subsequent default. -
Nothing herein shall limit the remedies or rights of the parties hereto under and pursuant
to this Agreement.
18. Termination and Suspension.
Either party may terminate this Agreement upon written notice to the other party if the
other party fails substantially to perform in accordance with the terms of this Agreement
through no fault of the party terminating the Agreement.
Page 4 of 8
The City may terminate this Agreement upon not less than seven (7) days written notice
to the Consultant if the services provided for herein are no longer needed from the
Consultant.
If this Agreement is terminated through no fault of the Consultant, the Consultant shall be
compensated for services performed prior to termination in accordance with the rate of
compensation provided in Exhibit "B" hereo£
19. Parties in Interest.
This Agreement shall be binding upon, and the benefits and obligations provided for
herein shall inure to and bind, the parties hereto and their respective successors and
assigns, provided that this section shall not be deemed to permit any transfer or
assignment otherwise prohibited by this Agreement. This Agreement is for the exclusive
benefit of the parties hereto and it does not create a contractual relationship with or exist
for the benefit of any third party, including contractors, sub-contractors and their sureties.
20. Costs to Prevailing Party.
In the event of such litigation or other legal action, to enforce any rights, responsibilities
or obligations under this Agreement, the prevailing parties shall be entitled to receive its
reasonable costs and attorney's fees.
21. Applicable Law.
This Agreement and the rights of the parties hereunder shall be governed by the
interpreted in accordance with the laws of the State of Washington and venue for any
action hereunder shall be in of the county in Washington State in which the property or
project is located, and if not site specific, then in King County, Washington; provided,
however, that it is agreed and understood that any applicable statute of limitation shall
commence no later than the substantial completion by the Consultant of the services.
22. Captions, Headings and Titles.
All captions, headings or titles in the paragraphs or sections of this Agreement are
inserted for convenience of reference only and shall not constitute a part of this
Agreement or act as a limitation of the scope of the particular paragraph or sections to
which they apply. As used herein, where appropriate, the singular shall include the plural
and vice versa and masculine, feminine and neuter expressions shall be interchangeable.
Interpretation or construction of this Agreement shall not be affected by any
determination as to who is the drafter of this Agreement, this Agreement having been
drafted by mutual agreement of the parties.
23. Severable Provisions.
Each provision of this Agreement is intended to lie severable. If any provision hereof is
illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect
the validity of the remainder of this Agreement.
24. Entire Agreement.
This Agreement contains the entire understanding of the parties hereto in respect to the
transactions contemplated hereby and supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
Page 5 of 8
25. Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be one
and the same Agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
effective the day and year first set forth above.
CITY OF AUBURN CONSULTANT
Peter B. Lewis, Mayor Name:
Title:
Attest:
Name:
Danielle E. Daskam City Clerk Title:
Appro to form:
~
Damel B. Heid, Crty Attorney
STATE OF WASHINGTON )
) ss.
COUNTY OF )
ON THIS day of , 200 , before me, personally
appeared and ,to
me known to be the and
of the Contractor, the party(ies) who executed - the corporation/company that executed the within and
foregoing instrument, and acknowledged said instrument to be his/her/their the free and voluntary act and
deed of said corporation/company, for the uses and purposes therein mentioned, and on oath stated that
they were authorized to execute said instrument.
GNEN under my hand and official seal this day of , 200_.
NOTARY PUBLIC in and for the State of
Washington, residing at
My Commission Expires:
Page 6 of 8
EXHIBIT "A"
SCOPE OF WORK
The City of Auburn (City) intends to fund and construct a community center facility with Parks
administrative office space, an activity center/gym and remodel an existing building into a Youth
Center at the City's Les Gove Park complex. The City is qualified for and intends to use "new
market tax credits" (NMTC) financing as one revenue component for this capital improvement
project. The total project investment fund is estimated to be approximately $15 million.
The purpose for the "consultant work" is to conduct an assessment for the City as to how to
navigate the City's NMTC financing initiative, assist the City in maximizing the financial
benefits of a NMTC transaction, and coordinate/manage the NMTC financing process in a
manner that will result in controlling financial and legal costs.
The specific duties of the financial consultant would include the following services:
■ Assess all aspects of existing and proposed funding sources that are committed to the Les
Gove Park Youth Center (the "Project"), and identify a NMTC financial structure that
will optimize the net NMTC subsidy to the project.
■ Create Project financial projections that reflect the identified NMTC structure, and serve
as the basis for expanded projections that will be provided by the Project Accountant.
■ Identify the optimal NMTC financing team, which will involve an internal assessment of
terms and conditions currently being offered by the various Community Development
Entities ("CDEs") and NMTC Investors that could potentially have interest in the Project.
■ Assemble the NMTC financing team, which will involve generating marketing materials,
promoting the Project to targeted CDEs and Investors, working through CDE and
Investor intake/screening processes, and negotiating term sheets with the various
members of the financing team.
■ Maintain and update the Project level financial projections to reflect the expanded
projections that will be provided by the Project Accountant, and serve as liaison between
the City of Auburn and the Project Accountant.
■ Manage the City of Auburn's NMTC financial closing responsibilities (working in
conjunction with City of Auburn counsel and staff).
■ Review closing documentation to ensure that business points negotiated in the term
sheets are reflected in the closing documents.
■ Provide general NMTC guidance to City of Auburn staff.
■ Provide financial consulting support to the Auburn Finance Department after closing of
the NMTC transaction to ensure reporting, auditing and compliance requirements are
being met.
Page 7 of 8
EXHIBIT "B"
PAYMENT
1. Consultant shall account for and be paid by the City on an hourly basis at a rate of
$150/hr. in an amount not to exceed Forty Five Thousand Dollars ($45,000) to complete
the scope of work described in Exhibit "A".
2. The consultant may submit vouchers to the City once per month during the progress of
the work for partial payment for project completed to date. Such vouchers will be
checked by the City, and upon approval thereof, payment will be made to the Consultant
in the amount approved.
3. Final payment of any balance due the Consultant of the total contract price earned will be
made promptly upon its ascertainment and verification by the City after the completion
and closing of the new market tax credit transaction and its acceptance by the City.
Page 8 of 8
Communitv/Activitv Centers Capital Proiect Fundinq - Task List
Date Task Responsibilitv/Action
Aug. 28 Meeting w/ HUD officials to discuss Sec. 108 Loan Staff
Sept. 8 Financial consultant submits NMTC proposals/statement of qualifications Staff
Sept 13 Interview financial consultants Staff
Sept. 14 Negotiate financial consultant agreement Staff
Sept. 21 Council approves financial consultant agreement Council approval
Sept. 29 Meeting w/ Consultant & Legal Counsel - discuss NMTC structure _ Counsel/staff/consultant
Oct. 5 NMTC funding concept finalized Counsel/staff/consultant
Oct. 12 Complete CDBG plan for use of funds for HUD Sec. 108 loan Staff _
Oct. 12 ~ Letter from Legal_Counsel re NMTC structure to State AG/Auditor drafted Legal counsel
Oct. 19 Conduct first public hearing on use of CDBG funds for HUD loan _ Council - public hearing
Oct. 19 Meeting w/ State AG/Auditor to discuss NMTC structure Legal Counsel
Oct. 23 Submit Application for HUD Sec. 908 loan Staff _
Oct. 26 Work out outstanding NMTC issues w/ State AG/Auditor Legal counsel
Nov. 2 Final Decision on NMTC funding structure Decision to proceed
Nov. 2 Conduct public hearing on Human Services Comprehensive Plan, _ Council - public hearing
Second public hearing on use of CDBG funds for Sec. 108 loan
Nov. 3 Commence NMTC funding process _ Consultant/Staff/Legal _
Nov. 9~Initiate negotiations w/ King County Housing Authority re use of facilities Staff
Nov. 16 Present to Counsel 2010 Capital Budget for Community/Activity Centers Public Hearing - Council
Nov. 30 Compete negotiations w/ King County Boy's/Girl's Club, draft agreement KCBG approval
approved by KCBGC _
Dec. 7~Adopt 2010 Budget Amendment - Community/Activity Centers ,Council approval_
Dec. 21 Capital funding agreement w/ KCBGC approved by City Council approval
Jan. 19 Agreement w/ King County Housing Authority re use of facilities _ ;Council approval
Feb. 1 Notice from HUD on loan application approval HUD approval
Feb. 15 Complete financing of HUD loan w/ Council approval of loan documents Council approval
Mar. 1 Complete NMTC transaction w/ approval of final funding documents Council approval
Mar. 15 Obtain bids for Community and Activity Centers QALICB/staff
April 5 Award bids QALICB approval
A ril 26 Commence Construction Contractor