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07. Northwest MT Human Resources Agreement - Courtyard AptsCITY OF KALISPELL AND NORTHWEST MONTANA HUMAN RESOURCES JOINT VENTURE AGREEMENT This CONTRACT made and entered into by and between the City of Kalispell, a municipal corporation, hereinafter referred to as "CITY" and the Northwest Montana Human Resources, Inc., a private non-profit corporation, hereinafter referred to as "NWMHR"; W I T N E S S E T H: WHEREAS, the City and NWMHR worked cooperatively to submit a Community Development Block Grant (CDBG) and two Montana Home Investment Partnership Program Grants (HOME) grants to obtain funding for the joint venture construction on site improvements and the creation of twenty-four low and very low income rental units; and WHEREAS, the City will own sixteen units and the NWMHR will own eight units which will be maintained as low and very low income rentals for a minimum of twenty (20) years, and WHEREAS, the CDBG Program is a program funded by the federal Department of Housing and Urban Development (HUD) and administered by the Montana Department of Commerce, hereinafter referred to as "Department"; and WHEREAS, this contract between the City and NWMHR will facilitate mutual cooperation in implementing the above grants for the entire site development and construction of sixteen units to be exclusively owned by the City and eight units to be exclusively owned by NWMHR; and WHEREAS, the City has staff experienced in planning, structuring and implementing general construction activities, and will take the lead role in the development of the joint venture project; and WHEREAS, NWMHR has staff experience in housing administration and tenant qualification and verification and will perform the property management services for the entire twenty-four units; and WHEREAS, the Department has required the City to enter into contract with NWMHR specifying the terms and conditions for the City's delegation of CDBG and/or HOME responsibilities to NWMHR; and WHEREAS, this contract affects only those funding commitments addressed herein and the responsibility of NWMHR to enter into a Property Management Contract; and 1 WHEREAS, both parties to this agreement understand that neither party involved herein has in any way, express or implied, abrogated any of its individual powers, and that this agreement does not create any new organization or legal entity. NOW, THEREFORE, the parties mutually agree as follows: 1. That the City and NWMHR shall jointly develop twenty-four (24) low and very low income rental units on property located at: 2. That the City commits the following funding sources and amounts to the entire site development and general construction costs of twenty-four units: CDBG Grant to the City $247,500 HOME Grant to the City 300,000 UDAG Program Income 100,000 Montana Board of Housing Mortgage 271,000 Land Leased Payments from NWMHR 80,000 $998,500 3. That NWMHR commits the following funding sources and amounts to the entire site development and general construction costs twenty-four units: HOME Grant to NWMHR $300,000 Department of Commerce Match 45,000 Land Lease Payment to the City 80,000 $425,000 4. City agrees to advance from its funds the Land Lease Payment to City, specified in 113, above. NWMHR agrees to reimburse City for the funds from the proceeds of a Farmer's Home Administration Loan anticipated to be approved by October 1, 1994. In the event NWMHR does not receive said funds, NWMHR agrees to repay the funds on a monthly basis over a 20 year period amortized at four per cent (4%) interest. Repayment of the advance, in the amount of $484.78, shall commence on August 1, 1994 and continue in 240 equal monthly payments with the last payment being due on July 1, 2014. 5. The City shall be responsible for all facets of the design and construction phases of the site improvement project, including the following: 2 a. Design engineering to include but not limited to contract administration, inspection and testing, engineering, certification, and provision of as - built drainage; b. Construction engineering; C. Except as provided by paragraph IV, Administration below, compliance with all applicable State and Federal requirements contained in the Statement of Assurances submitted to the Department with the City's application for CDBG assistance, dated d. Except as provided by paragraph IV, Administration below, compliance with all other State and Federal requirements as described in the Montana Community Development Block Grant Program, Grant Administration Manual; e. Preparation of Construction Bid Documents; f. Supervision of the Bid Process, and construction of the project. 6. The City shall receive, review and certify all requests for items contained in T5, supra, and pay in a timely fashion, no later than the third Wednesday of the month following receipt of billing requests received the last day of each month of construction. The City's committed funds as specified in T2, supra, shall be expended in total prior to submission of any claims to NWMHR. 7. During the term of this contract, City and NWMHR will maintain reasonable records of their performances hereunder in a manner consistent with generally accepted accounting principles and with State and federal grant requirements. NWMHR will allow the City and the Department, and their authorized representatives, access to those records at any time during normal business hours. 8. City shall be responsible for reviewing and certifying all payment requests in connection with the design and installation of site improvements. 9. The City will deduct a retainage from each payment request not to exceed 10% of the request for installation costs and hold this retainage until construction is completed, the engineer approves final payment, and the project is accepted by the 3 City, all in accordance with the conditions of the construction contract. 10. The City will also withhold 1% of the amount of any claim submitted for payment of site improvements construction costs and will forward this amount to the Montana Department of Revenue pursuant to MCA §15-50-206(2). 11. The City may refuse to pay any claim which it deems not valid under the terms of the CDBG application or CDBG agreement between the Department and the City. 12. This Contract takes effect when the following conditions are satisfied: 1. The Department and the City have executed the CDBG Grant Agreement; 2. The Department has approved the City's "Request for Release of Funds and Certification"; 3. The City's attorney and the attorney for NWMHR have approved this Contract as to form; and 4. The City Council and NWMHR's Board of Directors have each approved this Contract. As it relates to site improvement installation, this Agreement will terminate 90 days after the project engineer files a certificate of completion with the Department or the Department closes out the CDBG grant with the City, whichever occurs later. 13. The City and NWMHR shall each designate a liaison for ongoing communication concerning performance of this Agreement. The liaisons will meet on a regular basis, but no less than monthly, to provide for the smooth and efficient implementation of this Agreement and shall report to their respective entities as necessary. 14. With respect to any equipment, site improvements or real property under NWMHR or City control that was acquired or improved in whole or in part with CDBG funds in excess of $25,000, NWMHR will, upon expiration of this Agreement and subject to paragraph B below, either: 4 1. Use the property to meet one of the national objectives contained in 24 CFR Section 570.901 and applicable state CBDG; state program final rule under 24 CFR Part 570, for five years after expiration of the agreement or for such longer period of time as is determined to be appropriate by the City; or 2. Dispose of the property in a manner that results in the City being reimbursed in the amount of the current fair market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvements to, the property. The proceeds from such disposition will be subject to the applicable provisions of 24 CFR 570.489E (program income), 24 CFR 85.25, 24 CFR 570.504 (program income), and Part 85.32 (equipment) and 24 CFR 570.489(J) (change of use of real property). 15. Site improvements installed under this Agreement shall, upon expiration of this Agreement, become the property of the City and the City will accept ownership, operate and maintain those facilities subsequent to acceptance of ownership by the City. 16. NWMHR will maintain the real property upon which the site improvements are located for the sole purpose of providing housing for low- and moderate - income occupants for a period of not less than twenty (20) years. 17. NWMHR waives any and all claims and recourse against the City, including the right of contribution for loss or damage to persons or property arising from, growing out of or in any way connected with or incident to NWMHR's performance under this contract, except claims arising from the sole negligence of the City or its officers, agents, or employees. NWMHR will indemnify, hold harmless, and defend the City against all claims, demands, damages, costs, expenses, or liability arising out of NWMHR's performance of this Contract except for liability arising out of the sole negligence of the City or its officers, agents, or employees. 18. In accordance with 24 CFR 85.43, the City may suspend or terminate this Contract if NWMHR materially fails to comply with any term of the 5 City's grant agreement with the Department. In addition, the City may terminate this Contract if its CDBG agreement with the Department is terminated by the Department for convenience in accordance with 24 CFR 85.44. 19. It is understood by the parties hereto that NWMHR is an independent contractor and as such neither it nor its employees, if any, are employees of the City for any purposes including but not limited to taxes, retirement system, or social security (FICA) withholding. 20. NWMHR shall not assign any right or obligation hereunder in whole or in part, without the prior written consent of the City. 21. City retains the right to assign ownership of the City's twenty four (24) units to a public housing authority for the continued use of low income housing, as well a property management and interest in this Agreement. 22. NWMHR will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or disability in employment or provision of services. 23. That in the event it becomes necessary for either party to this agreement to retain an attorney or use an in-house counsel, to include the City Attorney, to enforce any of the terms or conditions of this contract, then the prevailing party shall be entitled to reasonable attorney's fees and costs to include fees, costs and salary of in-house counsel. 24. Any amendments or modifications to this Agreement or any provision herein shall be made in writing and executed in the same manner as the original document and shall after execution become a part of this agreement. This contract has been approved by the City and NWMHR. ATTEST: Dated this day of , 1994. 7 Bruce Williams, City Manager William E. Boharski Chairman of the Board N.W.M.H.R.