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HomeMy WebLinkAboutexhibit 3- agreementEXHIBIT "B" FIRST SOURCE HIRING AGREEMENT FIRST SOURCE HIRING AGREEMENT COMMUNITY BENEFITS PROGRAM This Agreement is made this day of , 2004, by and among the City of Miami, a municipal corporation of the State of Florida (the "City") and Aguaclara, Ltd., a Florida limited partnership (the "Developer"). RECITALS The City agreed to assist Developer with the designation of the subject property, located at 1960-1970 NW 27th Avenue (the "Property"), as a Brownfields Area under Section 376.80(2), Florida Statutes. It is the understanding of the City that the Developer intends to create a multifamily affordable housing development, named Aguaclara (the "Development"). As a result of the Brownfields Area designation, the Developer will be able to take advantage of regulatory and financial incentives that expedite the development process and minimize development costs associated with the Development. Therefore, in order to further satisfy Section 376.80(2)(b)(2), the Developer has agreed to enter into this Agreement with the City. NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: SECTION 1. DEFINITIONS As used in this Agreement, the following capitalized terms shall have the following meanings. All definitions include both the singular and plural form. Capitalized terms not specifically defined herein are as defined in the Interlocal Agreement. "Agency" shall mean the South Florida Work Force, a state and federally funded 501 C3 organization, or a similar agency reasonable acceptable to the City. In the event the Agency eoc1REALEsn137e47.2 2O35410015 fir_ �fr(-ozfDooacf ceases to exist, upon request of City or the Developer, the Developer shall select a similar entity capable of handling the responsibilities designated to the Agency hereunder, reasonably acceptable to the City. The Developer may depend on the Agency to determine economic status (low-income, unemployed, etc.), residency, nationality, and other vital information of applicants or employees and may rely on all such determinations by the Agency for all purposes hereunder. "Agreement" shall mean this First Source Hiring Agreement in its entirety. "City" shall mean the City of Miami, as represented by the City Manager of the City of Miami. "Construction Contract" shall mean a contract with a total contract volume of $500,000 or more related to the construction of the Development or part thereof. "Construction Contract" shall not include lease agreements or contracts related to operations of ongoing business at the Site. "Construction Contractor" shall mean a prime contractor, a subcontractor, or any other business entering into a Construction Contract. "County" shall mean Miami -Dade County, a municipal Corporation of the State of Florida. "Development" shall mean the multifamily affordable housing development contemplated by the Developer. "Full Time Employee" shall mean an individual employed for a minimum of thirty-two (32) hours per standard five-day workweek. "Low to Moderate -Income Individual" shall mean an individual whose household income is no greater than 80% of the median income for Miami -Dade County (the "County") based on the local Census data or who is unemployed. 2 DOC 11REALEsT137617.2 20351/0015 "Qualifying Individuals" are Low to Moderate -Income Individuals or minorities who are Residents. The Developer may depend on the Agency to determine whether individuals are Qualifying Individuals, as well as their employment, economic status, residency, nationality, and other vital information of applicants, or employees and may rely on all such determinations by the Agency for all purposes hereunder. "Residents" shall mean residents of the City or the County, which may include prior residency with accompanying proof, reasonably satisfactory to the Agency, of residency within the City or the County, as of November 2001 or since. "Site" or "on -site" shall mean within the boundaries of the Development. SECTION 2. HIRING AND MINORITY EMPLOYMENT PROGRAM 1. This section is intended to develop reliable resources for community outreach associated with exceeding a participation goal of 51 % for new job opportunities for Qualifying Individuals during the construction phase of Development, the prescreening of resumes and operation of training programs that will facilitate the skills and the employment of Qualifying Individuals. This section aims to accomplish these goals by (i) holding events, at least annually, that provide adequate notice to Residents of job opportunities, and (ii) collaborating with community -based organizations and other groups that provide appropriate training programs to establish (a) a mechanism whereby Qualifying Individuals can receive job training in the skills requested by employers in the Development, and (b) a system for prompt reliable pre-screening and referral of applicants to employers as jobs become available. During the Construction phase, the Developer will utilize the services of the City of Miami Department of Economic Development, the Florida Venture Foundation and the Black 3 BOC1REALE81 137e17.2 20351/001B Business Association for community outreach in striving to meet and/or exceed a goal of 51% for new job opportunities for Qualifying Individuals. For each Construction Contract, Developer shall use commercially reasonable efforts to require that the Construction Contractor and each of the subcontractors retained by the Construction Contractor provide employment opportunities generated by the project to Qualifying Individuals, including, but not limited to, those who are participants in the Agency's training and employment programs, subject to such Construction Contractors' obligations pursuant to applicable laws, rules, regulations or orders or pursuant to any collective bargaining or other employment or labor agreement and such Contractors' obligations to fill vacancies generated by the Development with (i) such Construction Contractors' employees from other jobs, and (ii) persons laid off by such Construction Contractor within .the last two (2) years. It is understood that jobs may be offered on the basis of qualifications. However, should qualifications be equal, Developer shall use commercially reasonable efforts to cause such Construction Contractors to cause such employment opportunities to be offered in the following order of priority, subject to the terms and conditions above: (a) to Residents of the City; and (b) to Residents of the County. 2. Provisions Benefiting Residents. a) Developer shall use commercially reasonable efforts to cause the Construction Contractor to collaborate with community -based organizations that provide appropriate skills training programs with the objective of training Qualified Individuals for employment as part of the on -site construction work force; b) For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to notify the Agency in a timely manner, as necessary and appropriate to develop customized training programs, with the objective of enabling Qualifying Individuals to qualify for and secure entry level and 4 S OC 11 R EAL E s 11137817.2 2035110015 apprenticeship construction positions, whether union or non -union. The Developer may provide rent-free space within the Site or any areas it may license from the City, or elsewhere, for the site or local offices of the Agency. In the event the Agency does not perform in a timely manner, for each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to notify the Agency, with a copy to the City, of such deficiency. If the Agency does not implement steps to cure such deficiency within fifteen (15) days of such notice, unless modified by the City, the Developer shall immediately identify a new agency reasonably acceptable to the City to fill the role of the Agency; c) For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to notify the Agency in a timely manner of entry-level and apprenticeship positions whether union or ,non -union job openings resulting from the Construction Contract requirements, including the number of positions needed and the minimum qualifications required for each position; d) For. each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to utilize the Agency as the "first source" in identifying candidates for entry-level, apprenticeship and union and non -union positions; e) For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to give preference and first consideration on the basis of qualifications; however, should qualifications be equal among candidates, the Developer shall use commercially reasonable efforts to cause Construction Contractor, to the extent permitted by law and any existent labor agreements, and except as otherwise provided for in Section 1 hereof, to offer such employment opportunities in the following order of priority (a) to Residents of the City and (b) to Residents of the County to fill entry-level, apprenticeship, and union and non- union positions; f) For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to advertise or cause to be advertised through the Agency, in local minority media and City TV, the City community 5 5OG1 RLALEan137617.2 2O3 V O15 television channel, and hold job fairs seeking to attract Qualifying Individuals to seek training and employment at the Development; g) For each Construction Contract, the Developer further agree to use commercially reasonable efforts to cause the Construction Contractor to use its commercially reasonable efforts to ensure that fifty-one percent (51 %) or more of those individuals offered employment are Qualifying Individuals. It is understood that successful completion of training includes mastery of many performance, attitude, and team skills. As long as these persons remain employed, their positions will continue to be counted toward the thresholds of Developer' performance regardless of any change in their status as a Qualifying Individual. Annual thresholds shall be pro -rated monthly as required. In the event that the Agency is unable to identify Qualified Individuals to fill these positions identified by the Construction Contractor within a reasonable time frame acceptable to the Developer or Construction Contractor and the City, any unfilled targeted positions may be filled by any qualified person, irrespective of their status as Qualifying Individuals; h) For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to register a resident apprentice training program with the local unions in order to involve trained Qualifying Individuals as apprentices and ultimately as journeypersons for the benefit of the Development; i) The City acknowledges that all employees of the Development will be required to have the necessary employment skills, as well as meeting the requirements of the Development insurance policy, including, without limitation, requirements for a drug free workplace. In addition, the City acknowledges that various employment opportunities may require union membership, and may require security clearances consistent with the Development's security policies and procedures. For purposes of this Agreement, to the extent the Agency provides the above services, the Developer may rely on the information provided by the Agency for verification purposes; j} To the extent that the procedures set forth in this section are in conflict with the procedures implemented by the Developer or Construction Contractors in order to comply with the applicable federal, state and local laws, the Developer and the 6 BOC 11REALL3 i1S 37E 17.2 203510011 Construction Contractors may substitute other procedures, reasonably acceptable to the City, in order to accomplish the purpose and intent of this Agreement; SECTION 3. REPORTING Quarterly Reports Analysis: For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractors to prepare, or cause to be prepared, detailed quarterly reports on the implementation of all sections of this Agreement during construction of the Development. These reports will be coordinated and reported by the Agency or other qualifying entity, as submitted to and reasonably approved by the City, upon whom the Developer may rely, and shall provide, at a minimum, a listing of the individuals, ethnicity, residency, classification applied for, employer's name, date of hire, status of employment (i.e. still employed or date terminated), total hours worked for the reporting period, gross monthly eamings, recruitment source and percentage of Qualifying Individuals when they were initially hired for any component of the Development, which status shall continue to be applicable to any thresholds that are set, no matter of changes in employee status as a Qualifying Individual. These reports should further provide a comprehensive summary of the above, including, but not limited to, the following: • total number of positions hired to -date • total number of positions held by Qualifying Individuals residing in the City at date of hire • total number of positions held by Qualifying Individuals residing in the County at date of hire • total new hires this reporting period • total new hires from prior reporting period • total new hires to -date • total number of individuals referred from each respective recruiting source 7 BOC11REAIES11137517.2 20351 /001 S • total number of individuals hired and not hired from each respective recruiting source. These reports shall be provided to the City, consistent with any security provisions of the Development. If the report indicates that the percentage threshold requirement is not being met, the Developer use commercially reasonable efforts to cause the Construction Contractors to include as part of the report a discussion of the reasons why that is the case. Further, in the event the Agency prepared the report or the initial data on Qualifying Individuals, on behalf of the Developer, the Developer shall be entitled to rely on information providedI the Agency. SECTION 4. IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM Inclusion of this Agreement in Construction Contracts: Construction Contracts: For each Construction Contract, the Developer shall use commercially reasonable efforts to cause this Agreement, or any amended version thereof, to be included as a material term of such Construction Contract. SECTION 5. NOTICES Correspondence: All correspondence shall be in writing and shall be addressed to the affected parties at the addresses set forth below. A party may change its address by giving notice in compliance with this Section 5 the addresses of the parties are: If to the Developer: If to the City: Aguaclara, Ltd. 9400 S. Dadeland Boulevard Suite 100 Miami, Florida 33156 Attn: David O. Deutch Chief Executive Officer (City Manager) City of Miami Florida 3500 Pan American Drive Miami, Florida 33133 With a copy to: Department of Economic Development City of Miami Doc1 REALEST►137817.2 2035110015 8 With copy to: With a copy to: 444 SW 2 Avenue, 3" Floor Miami, Florida 33130 Department of Community Development City of Miami 444 SW 2 Avenue, 2id Floor Miami, FL 33130 City Attorney, City of Miami 444 SW 2 Avenue, 9th Floor Miami, Florida 33130 SECTION 6. GENERAL PROVISIONS Severability Clause: If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall continue in full force and effect. Binding on Successors: This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of each of the parties hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor in interest, heir, administrator, executor, or assign of such party. Intended Beneficiaries: The City is an intended third -party beneficiary of contracts and other agreements, which incorporate this Agreement, with regard to the terms of this Agreement. The City shall therefore have the right to enforce the provisions of this Agreement against all parties incorporating this Agreement into contracts or other agreements. Term: This Agreement shall become effective on the date of mutual execution of this Agreement. Waiver: The waiver of any provision or term of this Agreement shall not be deemed as a waiver of any other provision or term of this Agreement, The mere passage of time, or failure to act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement. 9 BOC 11R SALES T1137617.2 2035110316 Estoppel: The parties hereto agree to provide each other, within 15 days of request, an estoppel letter acknowledging that the other party is not in default of this Agreement. Construction: The parties hereto have been represented by counsel in the negotiation and drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against any party, and the rule of construction that any ambiguities be resolved against the drafting party shall not apply to this Agreement. No termination of Existing Employees: Neither the Developer, nor any Construction Contractor shall be obligated to terminate any existing employees to comply with the terms and provisions of this Agreement. Should either of the Developer or any Construction Contractor not be able to meet th'e thresholds or objectives of this Agreement due to low employment position vacancy, the threshold will be based upon the job openings that are available. Entire Agreement: This Agreement contains the entire agreement between the parties and supersedes any prior agreements, whether written or oral. This Agreement sets forth the general framework for a First Source Hiring Policy and may be supplemented by additional memoranda approved by the Developer and the City detailing the procedures and deadlines for carrying out this policy. Amendments: This Agreement may not be altered, amended or modified, except by an instrument in writing signed by the Developer and the City. Authority of Signatories: The individuals executing this Agreement represent and warrant that they have the authority to sign on behalf of the respective parties. Waiver of Jury Trial: The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this 10 B OC 11REALE ST1137617.2 2035110015 Agreement or any amendment or modification of this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement of the City and Developer entering into the subject transaction. IN WITNESS WHEREOF, the City and the Developer executed this Agreement the day and year first above written: WITNESSES: AGUACLARA, LTD., A FLORIDA LIMITED PARTNERSHIP ATTEST: By: By: PHG-AGUA, LLC, its sole general partner David O. Deutch, Vice President THE CITY OF MIAMI, a municipal corporation of the State of Florida Priscilla A. Thompson, City Clerk Joe Arriola, City Manager APPROVED AS TO FORM APPROVED AS TO INSURANCE AND CORRECTNESS: REQUIREMENTS: 11 SRC 11REALEST1137617.2 20351/0015 Alejandro Vilarello, Dania Carrillo, City Attorney Risk Management Administrator 12 BOC1 RE11LEan137e17.2 2036110015 EXHIBIT 1. ADDITIONAL, AGREED UPON MECHANICS For each Construction Contract, the Developer will use commercially reasonable efforts to cause the Construction Contractors to adhere to the following additional procedures: 1. Provide such information reasonably required by the Agency in a timely manner as required by the Agency in order to provide the requisite training and identification of Qualifying Individuals for training and employment as contemplated by this Agreement. 2. Establish procedures that will facilitate ease of electronic file, data, and report transfer. 3. Developer may work with the Agency, security personnel and any other available agency reasonably acceptable to the City to help the Developer obtain requirements and records necessary for security clearances. 13 BOCI IREALE8T1137617.2 2035110016