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HomeMy WebLinkAbout26. 14-489 OCTOBER 28, 2014 14-489 RESOLUTION (CARRIED__7-0______LOST________LAID OVER________WITHDRAWN________) PURPOSE: APPROVE PROFESSIONAL SERVICE AGREEMENT WITH ELIZABETH HARTMAN TO USE DEPARTMENT OF DEFENSE GRANT FUNDS TO CREATE DEVELOPMENT MANUAL, RESTRICTIVE COVENANTS & LEASE PURCHASE AGREEMENT RELATING TO OSHKOSH AVIATION BUSINESS PARK DEVELOPMENT ($30,020) INITIATED BY: COMMUNITY DEVELOPMENT WHEREAS, the City previously entered into an agreement with East Central Wisconsin Regional Planning Commission (ECWRPC) for grant funds under a Department of Defense Office of Economic Adjustment (DOD-OEA) to undertake a regional aviation/ aerospace business cluster development -- the Oshkosh Aviation Business Park; and WHEREAS, DOD-OEA has offered additional grant funds to ECWRPC and ECWRPC is offering additional grant funds to the City in the amount of $30,020 to develop a Business Development Manual, Restrictive Covenants for the Oshkosh Aviation Business Park and standard lease agreement for properties in the Business Park; and WHEREAS, the City desires to enter into an agreement with Elizabeth Hartman for this purpose who has experience in drafting these resource documents. NOW, THEREFORE BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached professional service agreement with Elizabeth Hartman is hereby approved and the proper City officials are hereby authorized to execute and deliver the agreement in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the Agreement. Acct. No 504-1040-6450-00000 TIF #26 Fund - Aviation Business Park /�;;� ��:,, 01HKOlH on n�e w�hn TO: Honorable Mayor and Members of the Common Council FROM: Allen Davis, Community Development Director DATE: October 23, 2014 RE: Res 14-485 Approve Revised Intergovernmental Agreement with East Central Wisconsin Regional Planning Commission for Department of Defense Office of Economic Adjustment Grant Funds for Regional Aviation /Aerospace Business Cluster Res 14-486 Approve Intergovernmental Agreement with Fond du Lac County Regional Airport to Undertake a Regional Aviation/ Aerospace Business Cluster Development; Accept $3,000 Contribution Res 14-487 Approve Intergovernmental Agreement with Outagamie County Regional Airport to Undertake a Regional Aviation/ Aerospace Business Cluster Development; Accept $3,000 Contribution Res 14-488 Approve Amendment to Professional Service Agreement with Explorer Solutions Inc. to Undertake Aerospace Cluster Study for Aviation Business Park ($60,000) Res 14-489 Approve Professional Service Agreement with Elizabeth � Hartman to use Department of Defense Grant Funds to create a Development Manual, Restrictive Covenants & Lease Purchase Agreements Relating to Aviation Business Park Development ($30,020) BACKGROUND The Department of Defense (DoD) Office of Economic Adjustment (OEA) identified the Oshkosh region as a region affected by a reduction in DoD purchasing. That reduction then resulted in layoffs at Oshkosh Corporation in 2013. DoD's staff at OEA contacted East Central Wisconsin Regional Planning Commission (ECWRPC) to explore ways to assist the region respond to the layoffs and better diversify the regional economy. ECWRPC then contacted the many regional Economic Development partners, including the City of Oshkosh, and convened a meeting with DoD and ECWRPC to develop projects that could address these economic issues expected to be caused by the decreases in defense spending in the region. ECWRPC and its Economic Development partners developed a list of possible projects for grant funding through DoD — OEA. The DoD OEA office selected 6 projects that they thought best addressed the reduction of DoD-related employment. One of the projects proposed was the next step in the development of an Aerospace/Aviation cluster identified in the Targeted Industry Study. City staff worked with Chamco and the other Economic Development partners on a project that would directly benefit the City by helping develop and fill the newly created Oshkosh Aviation Business Park. Since that time, DoD has added additional funding to include Outagamie and Fond du Lac County Airports to the Aerospace/Aviation Cluster study. The attached revised Intergovernmental Agreement would serve as the mechanism for the City to receive an additional $90,020 in grant funds from ECWRPC for the Aviation project. Two additional agreements with Outagamie County and Fond du Lac County would fund the 10% matching funds necessary for the DoD funding. The additional County airports will be paying for the City's 10% grant match in staff time. The next agreement relates to the contract amendment to increase the City contract amount with the aviation consultant, Explorer Solutions. The $60,000 in DoD grant funds will incorporate both Outagamie and Fond du Lac airports to the Aviation Cluster study. One new element of the DoD assistance to the Oshkosh Aviation Business Park development is the DoD's interest in helping create a Business Development Manual, a new set of Restrictive Covenants, and standard lease agreements for the Oshkosh Aviation Business Park. The $30,020 in DoD grant funds would be used to contract with Elizabeth Hartman to create and deliver all the documents necessary for the physical development of the private investments in the Oshkosh Aviation Business Park. ANALYSIS The DoD and ECWRPC have a grant agreement (with ECWRPC as the grant awardee) that works as a master agreement for 6 projects that will be undertaken as part of the DoD grant. The Aviation Study and Aviation Business Park is one of those projects. ECWRPC has drafted the attached revised Intergovernmental Agreement so that it can serve as a pass- through of the additional $90,020 in grant funds to the City. This agreement also passes to the City the responsibility for perForming the elements of Aviation Study and Aviation Business Park. The finro partner airports are providing $3,000 each in matching funds for the Aviation Study that will fund staff time from City. No City funds are required for the DoD's requirement for matching grant funds. Construction of the infrastructure in the Aviation Business Park should be completed by October 31, 2015. The Business Development Manual, Restrictive Covenants, and Lease Agreements will be completed by June 30, 2015. The Aviation Study project will be completed by July 31, 2015. The DoD grant will terminate in December, 2015. The result of these actions will create a regional, complementary aviation cluster approach for all three airports, and create the legal documents to guide private development in the Oshkosh Aviation Business Park. The project is an example of collaboration in economic development that will help diversify our economy and provide more job opportunities to residents, and more business development opportunities to existing employers. RECOMMENDATION Approvai of Intergovernmental Agreement with East Central Wisconsin Regional Planning Commission for Department of Defense Office of Economic Adjustment Grant Funds for Regional Aviation/Aerospace Business Cluster Development & Planning Assistance Activities and 4 additional agreements — Outagamie County and Fond du Lac County, Explorer Solutions, and Elizabeth Hartman. FtSCAL IMPACT No direct fiscal impact, matching grant funds will be provided in stafF time and from Outagamie County and Fond du Lac County. Approved, �..c�._ ��--�f�'�.-- City Manager CONSULTANT AGREEMENT THIS AGREEMENT, made on the day of October, 2014, by and befinreen the CITY OF OSHKOSH, hereinafter referred to as CITY, and ELIZABETH A. HARTMAN, hereinafter referred to as the CONSULTANT, WITNESSETH: That the CITY and the CONSULTANT, for the consideration hereinafter named, agree as follows: ARTICLE I. CONSULTANT The following individual shall perForm all work pertaining to this Project: Elizabeth Hartman CONSULTANT is an independent contractor and is not an employee of the CITY. ARTICLE II. CITY REPRESENTATIVE The CITY shall assign the following individual to manage the project described in this contract: Allen Davis, Community Development Director ARTICLE III. SCOPE OF WORK The amended Intergovernmental Agreement between the City of Oshkosh and East Central Wisconsin Regional Planning Commission (ECWRPC)dated October 29, 2014 to undertake an aviation/aerospace business cluster study and development of an Aviation Business Park with grant funds from the Department of Defense, Office of Economic Adjustment (DoD-OEA) is included as part of this agreement by reference. Consultant shall develop a Business Development Manual and Restrictive Covenants for the Oshkosh Aviation Business Park and prepare a standard lease agreement for use by City and Winnebago County Airport.The cost for said services shall not exceed $30,020 under the terms of the DoD-OEA grant to be provided through services of the City's Community Development Director necessary for the DoD-OEA grant funding. The standard of care applicable to CONSULTANT's Services will be the degree of skill and diligence normally employed by professional CONSULTANTs or consultants performing the same or similar Services at the time said services are perFormed. CONSULTANT will re-perForm any services not meeting this standard without additional compensation. 1 ARTICLE IV. CITY RESPONSIBLITIES The CITY shall furnish, at the CONSULTANT'S request, such information as is needed by the CONSULTANT to aid in the progress of the project, providing it is reasonably obtainable from CITY records. To prevent any unreasonable delay in the CONSULTANT'S work the CITY will examine all reports and other documents and will make any authorizations necessary to proceed with work within a reasonable time period. ARTICLE V. TIME OF COMPLETION All work to be performed under this contract shall be completed on or before June 30, 2015 unless the parties agree in writing to extend this date. ARTICLE VI. PAYMENT A. The Contract Sum. The CITY shall pay to the CONSULTANT for the performance of the contract the total sum of $30,020 to develop a business development manual, and Restrictive Covenants for the Oshkosh Aviation Business Park and prepare a standard lease agreement for properties in the Oshkosh Aviation Business Park adjusted by any changes as provided in the proposal, or any changes hereafter mutually agreed upon in writing by the parties hereto. B. Method of Payment. The CONSULTANT shall submit itemized monthly statements for services. The CITY shall pay the CONSULTANT within 30 calendar days after receipt of such statement. If any statement amount is disputed, the CITY may withhold payment of such amount and shall provide to CONSULTANT a statement as to the reason(s) for withholding payment. C. Additional Costs. Costs for additional services shall be negotiated and set forth in a written amendment to this agreement executed by both parties and ECWRPC prior to proceeding with the work covered under the subject amendment. ARTICLE VII. CONSULTANT TO HOLD CITY HARMLESS The CONSULTANT covenants and agrees to protect and hold the CITY harmless against all actions, claims and demands of any kind or character whatsoever which may in any way be caused by or result from the intentional or negligent acts of the CONSULTANT, its agents or assigns, employees or subcontractors related however remotely to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation, and shall indemnify or refund to the CITY all sums including court costs, attorney fees and punitive damages which the CITY may be obliged or adjudged to pay on any such claims or demands within thirty (30) days of the date of the CITY'S written demand for indemnification or refund. 2 ARTICLE VIII. INSURANCE The CONSULTANT agrees to abide by the attached CityofOshkosh Insurance Requirements— Professional Services. ARTICLE IX. TERMINATION A. For Cause. If the CONSULTANT shall fail to fulfill in timely and proper manner any of the obligations under this Agreement, the CITY shall have the right to terminate this Agreement by written notice to the CONSULTANT. In this event, the CONSULTANT shall be entitled to compensation for any satisfactory, usable work completed. B. For Convenience. The CITY may terminate this contract at any time by giving written notice to the CONSULTANT no later than 10 calendar days before the termination date. If the CITY terminates under this paragraph, then the CONSULTANT shall be entitled to compensation for any satisfactory work perFormed to the date of termination. ARTICLE X. RECORDS AND INSTRUMENTS OF SERVICE All reports, data, documents and instruments prepared by the CONSULTANT as instruments of service shall remain the property of the CITY. Any document related to this agreement,whether in electronic or paper form, is considered a public record and shall be provided to the City upon request. The contractor may provide the City with an explanation of why they believe any document should not be released to the public. The City shall make all final determinations regarding the existence or release of any document related to this agreement. ARTICLE XI. COOPERATION IN LITIGATION AND AUDITS Contractor 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) in connection with (a) 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; other than a third party proceeding in which Contractor is a named party and Contractor and the City have not entered into a mutually acceptable joint defense agreement. Such cooperation may include, but shall not be limited to, responding to requests for documents and/or other records, and making Contractor'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. 3 City shall reimburse Contractor for reasonable direct expenses incurred in connection with providing documents and records required under this paragraph and may require, at the City's sole discretion, such expenses to be documented by receipts or other appropriate documentation. Reasonable direct expenses include costs, such as copying, postage and similar costs; but do not include wages, salaries, benefits and other employee compensation. Contractor shall not be entitled to additional compensation for employee services provided under this paragraph. ARTICLE XII. PROVISIONS REQUIRED FOR COMPLIANCE WITH GRANT FUNDING 1. Consultant shall cooperate with City to provide ECWRPC information required to submit SF 270 "Request for Reimbursement" (Request), which includes detail for both federal and in- kind funds, in order to reimburse the City for costs incurred in connection with the Project. 2. Consultant shall undertake all necessary actions, as determined by City and ECWRPC, and as authorized by Federal, State and Local laws, to carry out the requirements of the DoD- OEA grant and to comply with all applicable laws and to perform all services pertaining to the Regional Aviation Aerospace Business Cluster Study in accordance with the generally accepted standards of the profession. 3. Consultant shall not assign this Agreement without prior written consent from City. 4. Nondiscrimination in Employment a) In connection with the perFormance of services under this Agreement, Consultant agrees not to discriminate against any employee or applicant for employment because of age, race, handicap, sex, physical condition, development disability as defined in sec. 51.01(5) Wis. Stats., sexual orientation as defined in sec. 111.32(13m) Wis. Stats., or national origin. This provision includes, but is not limited to, employment, upgrading, demotion, transfer, recruitment, recruitment advertising, layoff, termination, rates of pay, other forms of compensation, selection for training including apprenticeship. b) Except with respect to sexual orientation, Consultant agrees to take affirmative action to ensure equal employment opportunities. Consultant agrees to post in conspicuous places, available for employees and applicants, notices setting forth the provisions of the nondiscrimination clause. 5. Equal Employment Opportunity a) Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 4 b) Consultant assures that no person shall on the grounds of race, color, national origin, or sex as provided by Title VI of the Civil Rights Act of 1964, and the Civil Rights Restoration Act of 1987 (P.L. 100.259) be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity. Consultant further assures every effort will be made to ensure non-discrimination in all of its programs and activities, whether those programs and activities are federally funded or not. c) Consultant will comply with all provisions of Executive Order 11246, "Equal Opportunity" as amended by Executive Order 11375, and as supplemented in the Department of Labor regulations (41 CFR Part 60). d) Consultant will furnish all information and reports required by Executive Order 11246 and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by the City, ECWRPC, Department of Defense-Office of Economic Adjustment, and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. 6. Errors and Omissions a) Consultant shall be responsible for the accuracy of the services performed under this Agreement, and shall promptly make necessary revisions or corrections to its services resulting from its negligent acts, its errors or its omissions without additional compensation. Consultant shall give immediate attention to these revisions or corrections to prevent or minimize delay to the Project. Consultant shall be responsible for any losses to or costs to repair or remedy as a result of the Consultant's negligent acts, errors, or omissions. b) Consultant warrants that the services to be provided under this Agreement will be executed in a workmanlike manner, consistent with professional standards of comparable work in this field. 7. Conflict of Interest a) Consultant warrants that neither it nor any of its affiliates has any financial or personal interest that would conflict in any manner with the perFormance of the Services under this Agreement, and that neither it nor any of its affiliates will acquire directly or indirectly any such interest. b) Consultant warrants that it will immediately notify City if an actual or potential conflict of interest arises or becomes known to Consultant. Upon receipt of such notification, City will review and written approval is required for Consultant to continue to perform work under this Agreement. 8. Certification Regarding Lobbying. Consultant certifies, by entering into this Amendment to its Agreement with the City, that it complies with and will properly execute and file with City the Office of Economic Adjustment Certification Regarding Lobbying, attached to this Amendment and incorporated herein by reference. 5 9. Certification Regarding Debarment a) Consultant certifies, by entering into this Agreement, that it and its principals (1) are not debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (2) have not been convicted of or had a civil judgment rendered against them within the previous three years; (3) are not indicted or otherwise criminally or civilly charged by a government entity; and (4) have not had one or more public transactions terminated for cause or default within the previous three years. b) Consultant agrees that it will not knowingly enter into any transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this transaction unless authorized by the City and ECWRPC. 10. Disadvantaged Business Utilization a) Consultant agrees to ensure that Disadvantaged Business as defined in 49 CFR Part 26 have the maximum opportunity to participate in the perFormance of any subcontracts finances in whole or in part with federal funds provided under this agreement. In this regard, Consultant shall take all necessary and reasonable steps in accordance with 49 CFR Part 26 to ensure that Disadvantaged Businesses have the maximum opportunity to compete for and perform subcontracts. Consultant shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of contracts. Failure to carry out the requirements of this provision constitutes a breach of this Agreement and may result in termination of the Agreement or other such remedy as the City may deem appropriate. b) Consultant shall identify by name, the disadvantaged business whose utilization is intended to satisfy this provision, the items of services involved, and the dollar amounts of such items of service. c) Consultant shall maintain records and document its performance under this item. ARTICLE XIII. AGREEMENT NOT TO BE CONSTRUED AGAINST ANY 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. ARTICLE IV. NO WAIVER Failure of either party to insist upon the strict perFormance of terms and provisions of this agreement, or any of them, shall not constitute or be construed as a waiver or relinquishment of that party's right to thereafter enforce such term or provision, and that term of the provisions shall continue in full force and effect. 6 ARTICLE XV. 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. ARTICLE XVI. CHOICE OF LAW AND VENUE 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. This document and any specified attachments contain all terms and conditions of the Agreement and any alteration thereto shall be invalid unless made in writing, signed by both parties and incorporated as an amendment to this Agreement. In the Presence of: CONSULTANT By: Elizabeth A. Hartman (Seal of Contractor if a Corporation.) By: (Specify Title) CITY OF OSHKOSH By: Mark A. Rohloff, City Manager (Witness) And: (Witness) Pamela R. Ubrig, City Clerk I hereby certify that the necessary provisions have been made to pay the liability which will Approved: accrue under this contract. City Attorney Finance Director 7 Office of Economic Adjustment CERTIFICATION REGARDING LOBBYING Certification for contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and CONTRACTs under grants, loans, and cooperative agreements) and that all subcontractors shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. For CITY For Consultant By: By: Mark Rohloff, City Manager Elizabeth A. Hartman City of Oshkosh Date: Date: 8