HomeMy WebLinkAbout16- Grant Agreement - Homeword - Impact Fee Payment Assistance for Larkspur Commons ProjectGRANT AGREEMENT
HOMEWORD — IMPACT FEE PAYMENT ASSISTANCE FOR LARKSPUR COMMONS PROJECT
THIS AGREEMENT is made and entered into this ��day of C)Cfrin Y , 2016 by and between
the City of Bozeman, Montana, a self-governing municipal corporation located at 121 N. Rouse
Ave., Bozeman MT 59771 ("City') as Grantor and Homeword, Inc. ("Homeword"), a Montana
nonprofit corporation located at 1535 Liberty Lane, Suite #116A, Missoula Montana 59808 as
Grantee.
WHEREAS, on October 17, 2005 the Bozeman City Commission adopted Resolution No. 3866
establishing policies for the granting of funds from the City of Bozeman to a requesting entity;
and
WHEREAS, the City approved a 2012-2016 Affordable Housing Action Plan on May 21, 2012 (the
"Action Plan") which identified payment of impact fees as an eligible use of Affordable Housing
Funds, restricted to buyers with incomes at or below 60% of area median income ("AMI"), as an
activity eligible for City funding; and
WHEREAS, the Action Plan identified a goal to produce 200 affordable rental units by the end of
2016; and
WHEREAS, Homeword is the developer of the Larkspur Commons development (the "Project")
to be located at the northeast corner of Manzanita Drive and North 14th Avenue, Bozeman MT;
and
WHEREAS, Homeword, jointly with GMD Development LLC ("GMD") presented a request for a
grant of up to $200,000 from the City's Community Housing Fund to be used for assistance to
develop and construct between 110-136 affordable rental units; and
WHEREAS, State of Montana Board of Housing has funding available for Low Income Housing
Tax Credits at the four percent level; and
WHEREAS the City's Community Affordable Housing Advisory Board ("CAHAB") reviewed
Homeword and GMD's request and recommended that the City approve the request for
funding up to $50,000; and
WHEREAS, on May 11, 2015, the City Commission approved the grant request made jointly by
Homeword and GMD Development, LLC.
THE PARTIES AGREE:
Grant Agreement — Homeword Impact Fee Payment Page 1
1. The Grant. The City will grant and release to Homeword a sum of up to two -hundred
thousand dollars ($200,000) from its Community Housing Fund (the "Grant") pursuant
to the payment terms in Section 3.
2. Use of Grant Funds. Grant funds will be used by Homeword for the sole purpose of
paying transportation impact fees for the development of affordable rental units at
Larkspur Commons. Homeword will apply to the City to defer payment of the
transportation impact fees for the Project until issuance of the certificate of occupancy
for the Project rental units.
3. Payment of Grant Funds
a. Once Homeword has secured all the financing it requires to fund the Project
besides the Grant, it will notify the City and provide evidence of such financing as
is requested by the City Attorney.
b. The Grant payment will be applied toward the deferred transportation impact
fees when they become due, unless Homeword has failed to provide evidence
satisfactory to the City that it has received 100% of the financing it requires for
the Project other than the Grant. If Homeword fails to provide such evidence,
the grant funds will remain in the City's Community Housing Fund and will not be
granted to Homeword.
c. Should Homeword receive additional funding for the Project from other funding
sources, or if for any other reason Homeword requires less than $200,000 to
fully fund the Project, it will notify the City of such reduction in need as soon as
reasonably possible and the City may reduce the amount of the Grant and the
payment(s) of Grant funds.
d. Per Bozeman Commission Resolution No. 3866, all Grant funds must be awarded
within a one-year period from the date of the first payment by the City to
Homeword. Any funds from the Grant not awarded during the one-year period
will remain in the City's Community Housing Fund.
Grant Agreement — Homeword Impact Fee Payment Page 2
4. Grantee Representations
a. Homeword has familiarized itself with the nature and extent of this Agreement
and with all local conditions and federal, state and local laws, ordinances, rules,
and regulations that in any manner may affect Homeword's performance under
this Agreement.
b. Homeword represents and warrants to City that it has the experience and ability
to perform its obligations under this Agreement; that it will perform said
obligations in a professional, competent and timely manner and with diligence
and skill; that it has the power to enter into and perform this Agreement and
grant the rights granted in it; and that its performance of this Agreement shall
not infringe upon or violate the rights of any third party, whether rights of
copyright, trademark, privacy, publicity, libel, slander or any other rights of any
nature whatsoever, or violate any federal, state and municipal laws. The City will
not determine or exercise control as to general procedures or formats necessary
for Homeword to meet this warranty.
c. Homeword represents and warrants to City that the Grant funds are necessary
to accomplish the financing requirements of the Project, and that Grant funds
will not be requested until all other sources of financing have provided such
financing to Homeword.
5. Occupant Eligibility Criteria
a. Homeword will prequalify or cause to be prequalified each renter household
prior to executing a lease, using the criteria in this Agreement and such
additional criteria as Homeword deems appropriate.
b. Each renter's total household income may not exceed 60 percent of AMI for the
size of that household for one-half of the rental units in the Project, and may not
exceed 50 percent of AMI for the size of that household for the remaining rental
units in the Project. The City acknowledges Larkspur Commons is funded with
and regulated by the Low Income Housing Tax Credit Program, and household
pre -qualification and on-going eligibility will be in alignment with that program.
6. Continuing Affordability. The Project will have a long-term affordability restriction for a
minimum of 40 years.
Grant Agreement — Homeword Impact Fee Payment Page 3
7. Reports/Accountability/Public Information. By the end of January of each year after
the effective date of this Agreement, Homeword will provide to the City a written
financial report that includes, at a minimum, the following:
a. Total number of units rented in each AMI category,
b. Vacancy rate of rental units in each AMI category,
c. Information regarding each qualifying household sufficient to show the renter's
household met the household income restrictions set out in this Agreement, and
d. Such other information as requested by the City, subject to the privacy rights of
the tenants under applicable law.
Homeword agrees to develop and/or provide such other documentation as requested
by the City demonstrating Homeword's compliance with the requirements of this
Agreement. Homeword shall allow the City, its auditors, and other persons authorized
by the City to inspect and copy its books and records for the purpose of verifying that
monies provided to Homeword pursuant to this Agreement were used in compliance
with this Agreement and all applicable provisions of federal, state, and local law.
Homeword will retain such records for fifteen years after receipt of final payment under
this Agreement unless permission to destroy them is granted by the City. Homeword
shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
8. Independent Contractor Status. The parties agree that Homeword, its agents,
employees, contractors, or subcontractors, are independent contractors for purposes of
this Agreement and are not to be considered employees or agents of the City for any
purpose. Homeword and its agents, employees, contractors, or subcontractors, are not
subject to the terms and provisions of the City's personnel policies handbook and may
not be considered a City employee for workers' compensation or any other purpose.
Homeword, its agents, employees, contractors, or subcontractors, are not authorized to
represent the City or otherwise bind the City in any way.
9. Default and Termination. If Homeword fails to comply with any condition of this
Agreement at the time or in the manner provided for, the City may terminate this
Agreement if the default is not cured within fifteen (15) days after written notice is
provided to Homeword. The notice will set forth the items to be cured. If this
Agreement is terminated pursuant to this Section, Homeword will repay to the City any
Grant funds already applied toward transportation impact fees owed by Homeword for
the Project.
Grant Agreement — Homeword Impact Fee Payment Page 4
10. Limitation on HOMEWORD's Damages; Time for Asserting Claim
a. In the event of a claim for damages by HOMEWORD under this Agreement,
HOMEWORD's damages shall be limited to contract damages and HOMEWORD
hereby expressly waives any right to claim or recover consequential, special,
punitive, lost business opportunity, lost productivity, field office overhead,
general conditions costs, or lost profits damages of any nature or kind.
b. In the event HOMEWORD wants to assert a claim for damages of any kind or
nature, HOMEWORD shall provide City with written notice of its claim, the facts
and circumstances surrounding and giving rise to the claim, and the total amount
of damages sought by the claim, within ninety (90) days of the facts and
circumstances giving rise to the claim. In the event HOMEWORD fails to provide
such notice, HOMEWORD shall waive all rights to assert such claim.
11. Representatives
a. City's Representative. The City's Representative for the purpose of this
Agreement shall be Mayana Rice or such other individual as City shall designate
in writing. Whenever approval or authorization from or communication or
submission to City is required by this Agreement, such communication or
submission shall be directed to the City's Representative and approvals or
authorizations shall be issued only by such Representative; provided, however,
that in exigent circumstances when City's Representative is not available,
Homeword may direct its communication or submission to other designated City
personnel or agents and may receive approvals or authorization from such
persons.
b. HOMEWORD's Representative. Homeword's Representative for the purpose of
this Agreement shall be Heather McMilin (Housing Development Director) or
such other individual as Homeword shall designate in writing. Whenever
direction to or communication with Homeword is required by this Agreement,
such direction or communication shall be directed to Homeword's
Representative; provided, however, that in exigent circumstances when
Homeword's Representative is not available, City may direct its direction or
communication to other designated Homeword personnel or agents.
12. Indemnity/Waiver of Claims/Insurance. To the fullest extent permitted by law,
Homeword agrees to defend, indemnify and hold the City and its agents,
representatives, employees, and officers (collectively referred to for purposes of this
Section as the City) harmless against all third party claims, demands, suits, damages,
Grant Agreement — Homeword Impact Fee Payment Page 5
losses, and expenses, including reasonable defense attorney fees, which arise out of,
relate to or result from Homeword's (i) negligence, (ii) willful or reckless misconduct, or
(iii) making or refusing to enter into a lease agreement for any Project rental unit.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of
this Section must not be construed to negate, abridge, or reduce any common-law or
statutory rights of the indemnitee(s) which would otherwise exist as to such
indemnitee(s). Homeword's indemnification obligations under this Section shall be
without regard to and without any right to contribution from any insurance maintained
by City.
Should any indemnitee described herein be required to bring an action against
Homeword to assert its right to defense or indemnification under this Agreement or
under Homeword's applicable insurance policies required below the indemnitee shall be
entitled to recover reasonable costs and attorney fees incurred in asserting its right to
indemnification or defense but only if a court of competent jurisdiction determines
Homeword was obligated to defend the claim(s) or was obligated to indemnify the
indemnitee for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City's performance under
this Agreement, the City may elect to represent itself and incur all costs and expenses of
suit.
Homeword also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or
property arising from, growing out of, or in any way connected with or incident to the
performance of this Agreement except "responsibility for his own fraud, for willful injury
to the person or property of another, or for violation of law, whether willful or
negligent" as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services
performed hereunder.
In addition to and independent from the above, Homeword shall at Homeword's
expense secure insurance coverage through an insurance company or companies duly
licensed and authorized to conduct insurance business in Montana which insures the
liabilities and obligations specifically assumed by Homeword in this Section. The
insurance coverage shall not contain any exclusion for liabilities specifically assumed by
Grant Agreement — Homeword Impact Fee Payment Page 6
Homeword in this Section unless and to the extent coverage for such liability is not
reasonably available.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the
City without limit and without regard to the cause therefore and which is acceptable to
the City and Homeword shall furnish to the City an accompanying certificate of
insurance and accompanying endorsements in amounts not less than as follows:
• Workers' Compensation — statutory;
• Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate
The City of Bozeman, its officers, agents, and employees, shall be endorsed as an
additional or named insured on a primary non-contributory basis on the Commercial
General policy. The insurance and required endorsements must be in a form suitable to
City and shall include no less than a thirty (30) day notice of cancellation or non-
renewal. The City must approve all insurance coverage and endorsements prior to
commencement of loan activities by HOMEWORD. HOMEWORD shall notify City within
two (2) business days of HOMEWORD's receipt of notice that any required insurance
coverage will be terminated or Homeword's decision to terminate any required
insurance coverage for any reason.
13. Non -Discrimination. Homeword will have a policy to provide equal employment
opportunity in accordance with all applicable state and federal anti -discrimination laws,
regulations, and contracts. Homeword will not refuse employment to a person, bar a
person from employment, or discriminate against a person in compensation or in a
term, condition, or privilege of employment because of race, color, religion, creed,
political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable
demands of the position require an age, physical or mental disability, marital status or
sex distinction. Homeword shall be subject to and comply with Title VI of the Civil Rights
Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated
thereunder. Homeword shall require these nondiscrimination terms of its sub -
Contractors providing services under this agreement.
Grant Agreement — Homeword Impact Fee Payment Page 7
14. Public Meetings and Access to Public Records
a. Meetings of Homeword that pertain to the receipt or expenditure of Grant funds
from the City are subject to the open meeting requirements of Montana law,
including those set forth in Title 7, Chapter 1, Part 41, MCA and Title 2, Chapter 3,
MCA. To ensure compliance, Homeword will provide agendas for meetings that
pertain to the receipt or expenditure of Grant funds covered by this Agreement to
the City Clerk's office no later than 72 working hours prior to meeting for notice on
the City's official posting board and any other sites deemed reasonable by the
Clerk's office. In addition, meeting minutes will be kept by Homeword and provided
to the City Clerk's office no later than 90 days after the meeting. These minutes
shall be posted and made available to the public by the City Clerk's office except for
those minutes taken during a closed meeting in accordance with 7-1-4144, MCA.
Minutes taken during a closed meeting shall also be provided to the City Clerk's
office but shall be handled in accordance with the City Clerk's regular executive
session protocol and kept private in a secured cabinet.
b. In accordance with 7-1-4144, MCA and subject to any applicable legal obligation to
protect and preserve individual confidential or private information, upon reasonable
request and at reasonable times during normal business hours, Homeword shall
make such records available for inspection and copying by members of the public.
HOMEWORD may charge for such copying in accordance with the policies of the
City, which Homeword hereby adopts for such purposes.
c. To determine whether a meeting or part of a meeting may be closed to the public
and to determine whether information contained in Homeword documents is
protected by law from disclosure, Homeword may seek a determination of the City
Attorney at no cost to Homeword. Such request and determination shall not create
an attorney-client relationship between Homeword and the City.
15. Attorney's Fees and Costs. In the event it becomes necessary for a party to this
Agreement to retain an attorney to enforce any of the terms or conditions of this
Agreement or to give any notice required herein, then the prevailing party shall be
entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-
house counsel to include City Attorney.
16. Integration and Modification. This document contains the entire agreement between
the parties and no statements, promises or inducements made by either party or agents
of either party not contained in this written Agreement may be considered valid or
binding. This Agreement may not be modified except by written agreement signed by
both parties.
Grant Agreement — Homeword Impact Fee Payment Page 8
17. Dispute Resolution
a. Any claim, controversy, or dispute between the parties, their agents, employees,
or representatives shall be resolved first by negotiation between senior -level
personnel from each party duly authorized to execute settlement agreements.
Upon mutual agreement of the parties, the parties may invite an independent,
disinterested mediator to assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a
court of competent jurisdiction in compliance with the Applicable Law provisions
of this Agreement.
18. No Assignment. Homeword may not subcontract or assign Homeword's rights,
including the right to Grant payments, or any other rights or duties arising hereunder,
without the prior written consent of City.
19. No Third Party Beneficiary. The terms and provisions of this Agreement are intended
solely for the benefit of each party and their respective successors and assigns. It is not
the parties' intent to confer third party beneficiary rights upon any other person or
entity.
20. Choice of Law. This Agreement shall be governed and construed in accordance with the
laws of the State of Montana without regard to conflict of law provisions. The Parties
agree to submit to the personal and exclusive jurisdiction of the courts located within
Gallatin County, Montana.
21. Non -Waiver. A waiver by either party of any default or breach by the other party of any
terms or conditions of this Agreement does not limit the other party's right to enforce
such term or conditions or to pursue any available legal or equitable rights in the event
of any subsequent default or breach.
22. Severability. If any portion of this Agreement is held to be void or unenforceable, the
balance of the Agreement shall continue in effect.
23. Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
Grant Agreement — Homeword Impact Fee Payment Page 9
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
indicated below.
CSA xj"��
Chris Kukulski, City Manager
City of Bozeman
STATE OF MONTANA
MIM
County of Gallatin
Date: 1o' 10-1
On this <t day of (7 CA-c)Dcr , 2016, this instrument was acknowledged
before me by Chris A. Kukulski as City Manager of the City of Bozeman, a self-governing
municipal government.
0, A.1Iy
PEARL MICHALSON
for
Notary Public
the State of Montana'
9. SEAL.-' #
Residing at:
Bozeman, Montana
OF we"
My Commission Expires:
11,,,.
March 10, 2020
Notary Public for the State of Montana
Printed Name:2e 'r L M;c �•Gl�v�
Residing at: J�ozer-�..� &AZ , Montana
My commission expires: 7 to 7�0
Date: qhy/!�a
Andres �Am [print name]
Cx'*- 6IreOtCY_[title]
Homeword, Inc.
STATE OF MONTANA
. ss.
County of Missoula
On this N_rH day of 2016, this instrument was acknowledged
before me by 'C£A D19V'15 , as XEC u rl-Vf— 02)2-F Crn>e [title]
of Homeword, Inc., a Montana nonprofit corporation.
EY M/ WCEY MU v -
y'r� NOWY PUBLIC to VW a r
* SEAL*
WOO' of
r to
(W* My Commbdon ExXmi d i
December 9, 20,J Q_ _
PuAc for the State of Montana
Name: 5-129CCX /22"LiCR
at: Montana
emission expires:
Grant Agreement — Homeword Impact Fee Payment Page 10