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HomeMy WebLinkAbout22-382 Grant to expand buildingThis Agreement is between the City of Oshkosh, a Wisconsin municipal corporation (hereinafter "CITY"), and Boys and Girls Club of Oshkosh, Inc., 501 E Parkway Ave, Oshkosh, WI 54901, a Wisconsin nonprofit corporation (hereinafter "GRANTEE"). WHEREAS, the CITY was allocated approximately $20.5 million in federal funds under the American Rescue Plan Act (ARPA) for various eligible purposes, including, among other things, support to entities negatively impacted by the COVID-19 pandemic; and WHEREAS, on September 28, 2021, the Oshkosh Common Council adopted Resolution 21-498, creating parameters for usage of American Rescue Plan Act funds and specifying that funds spent on non -CITY programming or direct assistance should represent approximately 25% of all ARPA expenditures, providing approximately $5,128,000 of the total ARPA allocation for this purpose.; and WHEREAS, on September 13, 2022, the Oshkosh Common Council approved Resolution 22 382, awarding, among others, a grant to GRANTEE for its capital campaign; and WHEREAS, GRANTEE is a Wisconsin nonprofit agency that provides programs emphasizing youth development services and family outreach support to meet the needs of young people; and WHEREAS, the CITY wishes to award a grant to GRANTEE to assist in the renovation of existing buildings and construction of a new building in Oshkosh for GRANTEE to provide a community center and expand classroom and programming space. Now, therefore, the parties agree as follows: Section 1. Status of GRANTEE. GRANTEE represents and warrants that it is a nonprofit organization in good standing under the law, and shall remain as such for the term of this Agreement. GRANTEE represents and warrants that its signatory is authorized to bind GRANTEE and execute this Agreement on GRANTEE's behalf. Section 2. Payment of Grant Award. CITY hereby agrees to pay GRANTEE an amount not to exceed $1,600,000.00 (hereinafter the "grant award") according to the terms and conditions set forth in Exhibit A of this Agreement. Section 3. Expenditure of Grant Award, GRANTEE shall expend the grant award solely on the programs and/or projects set forth in Exhibit A. Any expenditure that does not comply with this Agreement shall constitute a disallowed cost ("disallowed cost") and be subject to reimbursement as specified in section 15 of this Agreement, Under no circumstances shall GRANTEE extend any portion of the grant award for purposes not specified in this Agreement, or for any other purpose prohibited under law. Section 4 Acknowledgment of Funding Source. Unless otherwise agreed upon in writing between the parties, the GRANTEE agrees that any publications, studies, or reports which are made possible by or derived, in whole, or in part, from the grant award, and any news, articles, brochures, seminars, or other promotional materials, or media, or events, through which GRANTEE publicize the programs or projects, funded in whole or in part by CITY will acknowledge the CITY support in the following manner: "Funding for this project has been provided by the City of Oshkosh." Section S. The Parties' Relationship. This Agreement shall not be construed as giving rise to any agency, partnership, joint venture, or employment relationship between CITY and GRANTEE, GRANTEE shall have no ability to bind the CITY, and will not hold itself out, as having any such ability. Neither GRANTEE, nor any of GRANTEE's officers, employees, agents, or subcontractors, if any, is an employee of CITY by virtue of this Agreement. GRANTEE's employees and agents shall not be entitled to any salary or benefit relating to CITY employment. Section 6. No Assignment. GRANTEE shall not assign this Agreement without CITY's written authorization. Any unauthorized assignment shall be void and shall be considered a material breach of this Agreement. Section 7. Indemnification. GRANTEE shall indemnify, hold, harmless, and defend CITY, its' common council, officers, officials, directors, employees, agents, volunteers, and affiliates, and each of them from any and all claims, demands, causes of action, damages, costs, expenses, attorney's fees, consultant's fees, expert fees, losses or liability, in law, or in equity, of every kind and nature whatsoever arising out of or in connection with this Agreement, GRANTEE"s performance hereunder, GRANTEE's or subcontractor's negligence, including active or passive, or strict liability, including but not limited to personal injury, including, but not limited to, bodily injury, emotional injury, sickness or disease, or death to persons and/or damage to property of anyone, including loss of use thereof, caused or alleged to be caused by any act or omission of GRANTEE, or any subcontractor, or anyone directly or indirectly employed by any of them, or anyone for the full period of time allowed by law, regardless of any limitation of coverage by insurance, with the exception of the sole negligence or willful misconduct of the CITY. The provisions of this section shall survive the expiration or termination of this Agreement. Section 8. Insurance Requirements. GRANTEE agrees to comply with all of the insurance requirements set forth in Exhibit C, entitled "Insurance Requirements." Failure to maintain required insurance at all times shall constitute a default and material breach. Section 9. Non -Discrimination. In performing this Agreement, GRANTEE shall ensure that any and all contractors are subcontractors, employees, agents, volunteers, officers, officials, directors, volunteers, and affiliates also shall not, discriminate, harass, or allow harassment against any person on the basis of sex, race, color, ancestry, religion, creed, national origin, physical disability, mental disability, mental condition, age, marital status, sexual orientation, or any other basis prohibited under law. Section 10 Compliance with All Applicable Laws. In performing this Agreement GRANTEE warrants that it shall comply with all applicable state, federal, and CITY laws, rules, and regulations whether now in force or hereinafter enacted. Section 11. Accounting. For purposes of performance under this Agreement, and receipt and expenditure of grant award, GRANTEE shall at all times, maintain an accounting system that comports with generally accepted accounting principles. Section 12 Financial Records and Financial Report. GRANTEE shall maintain satisfactory financial accounts, books, records, documents, and other evidence, sufficient to properly reflect the amount, receipt, and expenditure of Grant award. GRANTEE shall submit to CITY a final report in the form identified in Exhibit B. The CITY reserves the right to request quarterly reports relating to the expenditure of the grant award or additional information as needed, also in in the form identified in Exhibit B. Said final report shall be submitted to CITY within fourteen (14) calendar days following the full expenditure of the grant award, or within thirty (30) calendar days following receipt of the funds, whichever is later. All financial records and financial reports shall be prepared in accordance with generally accepted accounting principles. The annual and quarterly reports shall be public records and may be posted on the CITY's website. Failure to maintain proper financial records and submittal of timely financial reports shall be cause for termination as outlined in this Agreement (see Section 17). Section 13. Audit and Examination. Consultant shall fully and completely cooperate with the CITY, the CITY's insurer, the CITY's attorneys, the CITY's auditors or other representative of the CITY (collectively, the "CITY" for purposes of this Article). a. Cooperation is expected in connection with any internal or governmental investigation or administrative, regulatory, arbitral or judicial proceeding (collectively "Litigation") or internal or governmental Audit, with respect to matters relating to this Agreement. b. Examples of expected cooperation may include, but shall not be limited to, responding to requests for documents and/or other records, and making Consultant's employees available to the CITY (or their respective insurers, attorneys or auditors) upon reasonable notice for: (i) interviews, factual investigations, and providing declarations or affidavits that provide truthful information in connection with any Litigation or Audit; (ii) appearing at the request of the CITY to give testimony without requiring service of a subpoena or other legal process; (iii) volunteering to the CITY all pertinent information related to any Litigation or Audit; and (iv) providing information and legal representations to auditors in a form and within a timeframe requested. c. GRANTEE shall not be entitled to additional compensation for employee services, time or materials necessary for the provision of records under this Section. d. Failure to comply with the request for audit, or a lack of documentation in records may cause termination of this Agreement (see Section 17). Termination of this Agreement for failure to comply may result in all funding becoming disallowed under the terms of this Agreement. Upon termination for failure to comply with this paragraph GRANTEE will promptly repay to CITY on CITY's demand all unused or disallowed funds. Section 14. Preservation of Records. CITY is a governmental entity that is required to comply with Wisconsin Public Records Law. GRANTEE shall preserve and make available all records related to the performance of this Agreement and related to the receipt and expenditure of the grant award until the expiration of seven (7) years from the date of final payment to GRANTEE, or as required by applicable law, whichever is longer. Notwithstanding the above, if there is litigation, claims, audits, negotiations or other actions that involve any of the records cited and that have started before the end of the agreement, then such records must be retained until completion of the actions and resolution of all issues. Section 15. Reimbursement of Disallowed Costs. Within ten (10) business days of the date of CITY's written notice to GRANTEE, GRANTEE agrees to reimburse to CITY any portion of the grant award paid by the CITY, which CITY has in its sole discretion, determine constitutes a disallowed cost. Section 16. Term. This Agreement shall be for a term commencing on January 1, 2023, and expiring on December 31, 2024 or upon acceptance by the CITY of the Final Financial Report whichever is later; unless terminated sooner per this Agreement. Provisions pertaining to liability, preservation of records, and cooperation in audits shall survive termination. Section 17. Termination, The CITY may terminate this Agreement at any time, whenever it is determined that the subgrantee has failed to comply with the conditions of this Agreement. In the event there is cause to believe the subgrantee is in noncompliance with this Agreement or any applicable rules or regulations, the CITY shall promptly notify the subgrantee in writing of the determination of non-compliance, together with the effective date of termination, which shall not be less than thirty (30) days from the date of the notice. If the subgrantee does not correct the noted deficiencies during the correction period above, this Agreement shall terminate. Provisions pertaining to liability, preservation of records, and cooperation in audits shall survive termination. Section 18. Notice. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing, and shall be effective and any applicable time period shall begin the fifth (5th) calendar day from the date of mailing, or if personally delivered, from the date of personal delivery. If notice is given by mail, it shall be delivered by depositing the same in any United States post office, registered or certified mail, postage, prepaid, addressed to: CITY: Mark Rohloff, City Manager City of Oshkosh 215 Church — PO Box 1130 Oshkosh WI 54903 (920) 236-5002 GRANTEE: Boys and Girls Club of Oshkosh, Inc. 501 E Parkway Ave Oshkosh, WI54901 (920) 233-1414 Section 19. Severability. If any term, covenant, condition or provision of this agreement shall be invalid or enforceable, the remainder of this agreement shall not be affected thereby the remainder of the agreement shall be valid and enforceable to the fullest extent permitted by law. Section 20. Waiver. The election to enforce or not enforce, as well as the timing of enforcement, shall be at each party's sole discretion and shall not act as a waiver of any rights to exercise any right relating to this agreement in the future. Section 21. Amendment. This Agreement may be amended at any time only by a written modification mutually agreeable to both parties hereto. Any request by the GRANTEE for amendments must be in writing, stating the amendment request and reason for the request. The GRANTEE shall make request in a timely manner, and in no event, less than thirty (30) calendar days before the effective date of the proposed amendment. Section 22 No Third -Party Beneficiaries. Notwithstanding any provisions pertaining to third parties contained within this agreement, none of the obligations contained in this agreement shall run to or be enforceable by any party who is not a party to this agreement. Section 23. Choice of Law. The laws of the State of Wisconsin shall govern the interpretation and construction of this Agreement. Winnebago County shall be the venue for all disputes arising under this Agreement. Section 24 Agreement not to be Construed against Either Party. This Agreement is the product of negotiation between the parties hereto and no term, covenant or provision herein or the failure to include a term, covenant or provision shall be construed against any party hereto solely on the basis that one party or the other drafted this Agreement or any term, covenant or condition contained herein Section 25. List of Exhibits: Exhibit A - Scope of Work Exhibit B - Grant Agreement Report Exhibit C - Insurance Requirements Section 26. Entire Agreement. This Agreement, and any attached Exhibits shall constitute the entire Agreement between the parties here to relating to the Grant Award, and may not be modified except by an instrument in writing, signed by the parties hereto. IN WITNESS WHEREOF, the parties have entered into this Agreement on the day and year first hereinabove appearing. Boys and Girls Club of Oshkosh, Inc. 501 E Parkway Ave Oshkosh, WI 5 901 By: City of Oshkosh 215 Church - PO Box 1130 Oshkosh WI 54903 By:_- EXHIBIT A SCOPE OF WORK Project Description: The Boys & Girls Club of Oshkosh seeks to build a new building to house a community center and renovate its Head Start, Radford, and Teen Center buildings. The community center space is for local agencies to collaborate to better serve those in need in Oshkosh, including Club families. The ultimate goal is to have all agencies working together so clients have a one stop shop and all agencies are sharing data on progress of clients. The renovations include expanding classroom space in Radford Center to serve more kids, and renovating the Teen Center to become dedicated middle school space and then moving teens to their own floor in the new building. Deliverables & Performance Measures: Boys and Girls Club (B/GC) will provide community center space to departments of the city of Oshkosh (City) at no cost for a minimum of twenty-five (25) years from the time that the Community Center space is completed, in order for the City to provide an extension of their services at the City's discretion. Departments that may utilize these services include, but are not limited to, Police, Fire, Library, Community Development, Finance, Public Works, Transportation, Public Museum, and Parks. Other measures that B/GC will provide to the city annually, continuing annually for a minimum of 5 years after project completion: • # of family memberships, with a goal of achieving 1,800 memberships annually • # of households served through co -located services (goal:1,000 annually) • # of individuals served annually (goal: 3,000 annually) Payment Schedule & Eligible Expenditures: All expenditures must comply with the Coronavirus State and Local Recovery Funds Final Rule. Funding used for ineligible expenditures will require repayment to the City. Failure to acquire Certificate of Occupancy from city of Oshkosh for all new facilities described in B/GC application for ARPA funding may be cause for repayment to the City for all funds awarded by this grant. Such a determination shall be at the sole discretion of the City. City will provide payment of $1.6 million to B/GC as follows: Renovations: $500,000; Community Center: $1,100,000, Payments shall be made in installments, as follows: • Renovations: $250,000: Within 90 days of start of renovations, or within 30 days after execution of this agreement, whichever is later, with documentation of at least $1,000,000 of the estimated costs of $3,960,000 for renovations having been expended. • Remaining $250,000 of renovations will be paid within 90 days after $3 million in renovation costs have been expended and documented, or within 30 days after execution of this agreement, whichever is later. • Community Center: $550,000: Within 90 days of start of construction of Community Center, or within 30 days after execution of this agreement, whichever is later, with documentation of at least $2,000,000 of the estimated costs of $8,400,000 for construction costs of the community center having been expended. • Remaining $550,000 of Community Center construction costs will be paid within 90 days after $6.25 million in renovation costs have been expended and documented, or within 30 days after execution of this agreement, whichever is later. Exhibit B Grant Agreement Report Organization Agreement No. Contact Person Contact Title Phone Number and Email Report Type ❑ annual Reporting Period ❑ quarterly Grantee Information Grant Amount: Funding expended during the reporting period: Funding expended to date: Remaining award amount: Award Details Receipts and thorough documentation of grant fund expenditures have been maintained and can be produced upon request: ❑ yes ❑ no Grant Outcomes Narrative - description of how the funds were used and what was accomplished through the use of grant funds. Please include any relevant quantitative outcomes, as needed. Grantee Representative Signature I hereby declare that the goods or materials covered by this report are complete and accurate, and are eligible tinder the agreement. Printed Name: Title: Signature: Date: EXHIBIT C INSURANCE REQUIREMENTS Grantee shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Grantee, their agents, representatives, or employees or subcontractors. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named Insured; whichever is greater. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the obligations of the Grantee under this agreement. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit (i.e., $2,000,000). 2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto), or if Grantee has no owned autos, Code 8 (hired) and 9 (nonowned), with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employers' Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. (WC insurance is not required if the grantee provides written verification it has no employees). 4. Professional Liability (Errors and Omissions) Insurance appropriates to the Grantee's profession, with limits no less than $1,000,000 per occurrence or claim, $2,000,000 policy aggregate. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Grantee including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Grantee's insurance (at least as broad as ISO Form CG 20 10 1185 or both CG 2010 10 01 and CG 20 3710 01 forms if later revisions used). 2. For any claims related to this contract, the Grantee's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be in excess of the Grantee's insurance and shall not contribute with it. 3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with thirty (30) days prior written notice to the City. Waiver of Subrogation Grantee hereby grants to City a waiver of any right to subrogation which any insurer of said Grantee may acquire against the City by virtue of the payment of any loss under such insurance. Grantee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self -Insured Retentions Any deductibles or self -insured retentions must be declared to and approved by the City. The City may require the Grantee to provide proof of ability to pay losses and related investigations, claim administration and defense expenses within the retention. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of no less than AXII, unless otherwise acceptable to the City. Claims Made Policies If any coverage required is written on a claims -made basis: 1. The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work. 3. If coverage is canceled or non -renewed, and not replaced with another claimsmade policy form with a retroactive date prior to the contract effective date, the Grantee must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work. Verification of Coverage Grantee shall furnish the City with original certificates and amendatory endorsements or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Grantee's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time. Subcontractors Grantee shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Grantee shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a format least as broad as CG 20 10 10 01 and CG 20 37 1001. Special Risks or Circumstances City reserves right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.