22-694ORDiNANCE NO. 22-694
AN ORDINANCE OF THE CITY OF DENTON AUTHORiZrNG THE CITY MANAGER TOEXECUTE A FUNDING AGREEMENT BETWEEN THE CITY OF DENTON AND THEDENTON AFFORDABLE HOUSING CORPORATION TO PROVIDE HOMEINVESTMENT PARTNERSHIP PROGRAM FUNDS FOR THE REHABILITATION OFFIVE RENTAL UNITS LOCATED AT 400 CORONADO DRIVE, DENTON, TEXAS;AUTHORIZING THE EXPENDITURE OF FUNDS IN AN AMOUNT NOT TO EXCEED
$ 100,000.00; AND PROViDrNG AN EFFECTIVE DATE.
WHEREAS, the City Council of the City of Denton recognizes the need to assist low- and
moderate-income families in securing decent, safe, sanitary and affordable housing; and
WHEREAS, the City has received funds from the U.S. Department of Housing and Urban
Development under the National Affordable Housing Act of 1990, as amended; and
WHEREAS, the City Council approved the 2021 Action Plan for Housing andCommunity Development Substantial Amendment 1 which adopts an authorized budgetexpenditure of 2021 HOME Investment Partnership Program funds; and
WHEREAS, the 2021 Action Plan Substantial Amendment 1 includes funding allocated
for a Community Housing Development Organization (“CHDO”) project provided by DentonAffordable Housing Corporation (“DAHC”) for the rehabilitation of four DAHC-owned rental
units located at 400 Coronado Drive, Denton, Texas (the “Project”) with an authorized budget of
$ 100,000; and
WHEREAS, the City has determined that DAHC is the only locally-certified CHDO that
includes the required number of low-income residents from Denton and/or representatives of the
low-income community on its board of directors necessary to satisfy federal requirements to serve
the City’s geographical area; and
WHEREAS, DAHC is a locally based non-profit organization, has a demonstrated capacity
for carrying out housing projects assisted with HOME funds, and has a history of significant service
to the Denton community in the area of affordable housing; and
WHEREAS, the City Council deems it in the public interest to enter into an agreement in
the form attached hereto as Exhibit A (the “Agreement”) for the affordable housing Project withDAHC to provide much needed services for Denton residents; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations in the preamble of this ordinance are
incorporated herein by reference as true and as if fully set forth in the body of this ordinance.
SECTION 2. The City Manager, or their designee, is hereby authorized to execute the
Agreement.
SECTION 3. The City Manager is hereby authorized to expend funds in an amount not
to exceed $100,000.00 in the manner specified in the Agreement, and to take any other actions
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that may be necessary or convenient, in the reasonable opinion of either the City Manager or the
City Attorney, to carry out the City’s rights and obligations under the Agreement.
SECTION 4. The City Manager has designated Community Development responsible
for the administration of this Agreement and all matters pertaining thereto.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by A Ct 50 n Mc\Rut re and
seconded by JeSS e t)Mi b . The ordinance was passed anU4pproved bythe following vote II -a :
Aye
\/
V/
,/‘
,/
Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck, District 2:
Jesse Davis. District 3 :
Alison Maguire, District 4:
Brandon Chase McGee, At Large Place 5
Chris Watts, At Large Place 6:
,/
V/
\/
PASSED AND APPROVED thi, th, \qb d,y of Jw\Lf 2022
/bpaSb3mm3bRtaRElATTEST:
ROSA RIOS, CITY SECRETARY
BY: Z£al
,\\\11111//
APPROVED AS TO LEGAL FORM:MACK RErNWAND, CITY ATTORNEY
Digitally signed by Scott
RV. ga%-DrJ== 2022.06.21 17:05:25
-05'OO'
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HOME AGREEMENT
BETWEEN
THE CITY OF DENTON
AND DENTON AFFORDABLE HOUSING CORPORATION.
This HOME Agreement ("Agreement") is made and entered into as of this day of
2022 by and between the City of Denton, a Texas home-rule municipal
corporation ("CITY"), acting by and through its City Manager, pursuant to ordinance, and Denton
Affordable Housing Corporation a Texas non-profit corporation based in Denton, Texas
("OWNER"), acting by and through its Executive Director.
WHEREAS, CITY is the administrator of HOME Investment Partnership Program funds (“HOME
Funds”) received from the U. S. Department of Housing and Urban Development (“HUD") under
Title II of the Cranston-Gonzalez National Affordable Housing Act of 1990, as amended; and
WHEREAS, the purpose of the HOME Investment Partnership Program (the “HOME Program") is
to increase the supply of decent, safe, sanitary, and affordable housing for very low income, low
income and moderate-income households; and
WHEREAS, CITY has designated Community Development responsible for the administration of
this Agreement and all matters pertaining thereto; and
WHEREAS, OWNER proposes to use HOME Funds for an eligible project under the HOME
regulations whereby OWNER will rehabilitate five (5) rental units in Denton, Texas, to be known
as 400 Coronado #1, #2, #3, #4 and #5, Denton, Texas 76205 (the “Project"); and
WHEREAS, the CITY has recommended approval of a forgivable payment loan to OWNER, subject
to the terms specified herein below, and
WHEREAS, CITY wishes to engage OWNER to carry out the Project as specified in this Agreement;
NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound, to the
mutual obligations and to the performance and accomplishment of the conditions hereinafter
described.
SECTION 1. CHDO Provisions
A.
B
CHDO Designation. OWNER has been designated by CITY as a Community Housing
Development Organization (“CHDO") as defined under 24 CFR 92.2 and shall serve as the
OWNER of the Project as such role is defined under 24 CFR 92.300(a).
Certification of Current and Continuing CHDO Status. OWNER hereby acknowledges that this
Project is being funded with HOME Funds reserved specifically for CHDOs and certifies that
as of the date of this Agreement it meets the definition of a CHDO under 24 CFR 92.2. OWNER
further certifies and agrees that it will continue to operate its affairs such that it continuously
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meets the CHDO definition for the life of this Agreement and will notify CITY immediately if
any change in circumstance results in it no longer meeting these criteria at any time during
the term of this Agreement. It further will provide documentation to CITY as may be
requested from time to time to document that it continues to comply with the CHDOdefinition
Tenant Grievance Procedures and Tenant Participation. OWNER will operate the Project in
compliance with 24 CFR 92.303 and will adhere to a fair lease and grievance procedure
approved by CITY and follow a program of tenant participation in management decisions.
OWNER will update these procedures from time to time as may be appropriate or required
by CITY and will report to CITY on their implementation. In order to assure compliance with
the Project Requirements of the HOME Program (as defined Title 24 of the Code of Federal
Regulations, Part 92, Subparts E and F), OWNER agrees to submit annually the following
documentation to City for review and approval:
1. A copy of the tenant application and a description of the tenant qualification process to
include Tenant Selection Procedures that OWNER will utilize to verify tenant incomes.
A copy of the lease agreement form. OWNER agrees to attach to its standard lease
agreement form, the Mandatory Lease Addendum to control over any conflicting
prohibited lease terms, a copy of which is attached hereto as Attachment C, which must
be completed by OWNER and every tenant household in connection with the executionof the lease.
OWNER hereby agrees to verify all income, assets, household characteristics, and anyother circumstances that affect tenant eligibility- in accordance with 24 CFR Part 5.
Further, OWNER shall assist the City in acquiring tenants' consent and release
authorization for purposes of determining or auditing tenant income eligibility or for
verifying related information from depository or private source of income, or any Federal,
State, or local agency ("source documentation").
A copy of OWNER's plan for tenant participation in management decisions and fair lease
and grievance procedures.
If applicable, a copy of OWNER's procedures for marketing the availability of an accessibleunit to eligible persons such that reasonable, nondiscriminatory steps are taken in
ensuring that the accessible unit that becomes available is offered to persons who require
the accessibility features.
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C.
SEcrION 2. THE PROJECr
A Project Description.
The Project is requiring the rehabilitation of five (5) rental units located at 400 Coronado Dr.,
#1, #2, #3, #4 and #5, Denton, TX 76209 (sometimes referred to herein as the “Property").
[Denton Central Appraisal District legal description: Heritage Oaks Block 3 Lot 3A-1 Coronado
Condos Building Unit 1, 2, 3, 4 and 5.]
A summary of the Project is attached as Attachment A and B.
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B Tasks and Schedule. To ensure that the Project progresses adequately toward completion,OWNER must achieve the following benchmarks.
1. Final Plans and Specifications. No later than August 15, 2022 and prior to initiating
construction activity, OWNER must provide evidence to CITY that all Code and Physical
Requirements will be met (see Section 8. CONSTRUCTION, PROPERTY STANDARDS AND
MANAGEMENT) .
Construction. Unless otherwise extended by CITY, OWNER must begin construction on
the Project no later than September 1, 2022 and substantially complete construction
within twelve (12) months. Per the requirements of 24 CFR 92.2, in any event OWNER
must begin construction no later than twelve (12) months from the date of execution of
this Agreement.
Cost Certification. Within one hundred-twenty (120) days after completing construction,
OWNER must provide a cost certification outlining the final sources and uses of all funds
or a summary and backup of bids.
Completion Report. Prior to final disbursement of funds, OWNER must provide CITY with
demographic data on the initial occupants of all HOME-assisted units in the Project in
order to complete the Project in HUD’s IDIS system. If the Project is not completed in
HUD’s IDIS system within twenty-four (24) months of the date of execution of this
Agreement, CITY may cancel its commitment of funding, and the OWNER shall repay any
HOME Funds previously advanced for the Project. In any case, if the Project is not
completed in HUD’s IDIS system within four years of the date of this Agreement, the
Project will be considered terminated prior to completion and per the requirements of 24
CFR 92.205(e), and all HOME Funds must be repaid by the OWNER.
Absolute Lease-Up Deadline. All HOME-assisted rental units (“HOME Units") must be
occupied within eighteen (18) months of Project Completion, as defined in section 2.B.6.
herein. Any HOME Unit that is not occupied within eighteen (18) months will be deemedineligible pursuant to 24 CFR 92.252, and the OWNER will repay any HOME Funds
attributable to those units based upon a revised cost allocation analysis completed by
CITY
Project Completion. The “Project Completion” means all of the following have occurred:6
(1) the requirements for “Project completion” outlined in 24 CFR 92.2 have been satisfied,
(2) the CITY shall have determined that the Project: a) has reached completion in
accordance with the scope of work as approved by the CITY; b) is in compliance with all
Housing Quality Standards, and c) all HOME Funds have been disbursed by CITY and drawn
from the US Treasury, (3) all required completion data has been entered in HUD’s IDIS
system, and (4) the City and the OWNER have executed the final Deed of Trust and Real
Estate Lien Note and have updated such documents by identifying the date on which
Project Completion has occurred.
Budget.
HOME Investment. Conditioned upon the availability of HOME Funds, and OWNER’s1
compliance with the conditions set out herein, CITY intends to provide an amount not to
exceed One Hundred Thousand Dollars and No Cents ($100,000.00) in HOME Funds to
OWNER toward eligible project costs. In no case will CITY’s funding of the Project be less
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than $1,000 per HOME-assisted unit or more than the maximum per-unit subsidy allowed
under 24 CFR 92.250(a). The maximum subsidy limits are based on bedroom size:
Select Bedrooms Available (Amounts are effective 7/4/2020.)
[] 0-bedroom units are $153,314; and
n 1-bedroom units are $175,752; and
N 2-bedroom units are $213,718; and
a 3-bedroom units are $276,482; and
a 4-bedroom+ units are $303,490.
SECTION 3. TERM
The term of this Agreement shall begin on the date represented by the date of the last signature
of either party executing the Agreement and shall expire upon completion of the HOME
Affordability Period, as such term is defined in Section 3.A below.
The HOME Affordability Period, and the Covenant Running with the Land as outlined in Section
6.A.5, shall continue irrespective of any payment/payoff of the HOME Forgivable Payment Loan
(defined in Section 6.A). Failure of the Project to meet all applicable HOME requirements for the
entire HOME Affordability Period will result in a requirement that all HOME Funds be repaid.
A.HOME Affordability Period. As a rehab rental project, the HOME Affordability Period duringwhich OWNER must maintain compliance with all applicable HOME rules shall begin with
initial occupancy of the Project and shall run for ten (10) years following the date on which
the Project has met the requirements for Project Completion outlined in 24 CFR 92.2, which
will require that construction be complete, all HOME Funds have been disbursed by CITY and
drawn from the US Treasury, and required completion data has been entered in HUD’s IDIS
system
Expiration of HOME Affordability Period. Upon entering all required information in HUD’s IDIS
system, CITY will notify OWNER of the actual date of Project Completion and the exact date
of the expiration of the HOME Affordability Period, which shall be calculated based on the
date of Project Completion. If necessary, OWNER shall execute an amendment to the
B
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Covenant Running with the Land identifying the exact date of expiration of the HOME
Affordability Period.
Extension of Agreement. Request for an extension must be submitted in writing within 30
days of the end of the term of the agreement to the Community Development Manager, 401
N. Elm Street, Denton, TX 76201.
C.
SEcrioN 4. RESPONSIBILITIES
A Performance. OWNER hereby accepts the responsibility for the performance of all servicesand activities, described in the Work Statement attached hereto as Attachment A and
incorporated herein as if set forth at length, in accordance with the Program Budget attached
hereto as Attachment B and incorporated herein as if set forth at length, and as otherwise
set forth herein, in a satisfactory and efficient manner as determined by CITY, in accordancewith the terms herein.
Agreement Administration - OWNER. OWNER's executive director shall be OWNER’s
representative responsible for the management of all contractual matters pertaining hereto,
unless written notification to the contrary is received by CITY from OWNER and approved byCITY
Agreement Administration - CITY. The CITY’s Community Development Manager will be CITY's
representative responsible for the administration of this Agreement.
OWNER shall comply with 2 CFR Part 200, Uniform Administrative Requirements, Cost
Principals and Audit Requirements for Federal Awards, Final Guidance, and the regulationsfound at 24 CFR Part 92.
Request for disbursement of funds. OWNER shall not request disbursement of funds until
they are needed for payment of eligible costs. The amount of each request will be limited to
the amount needed as per 24 CFR 92.504 (c)(3)(viii).
Enforcement of the Agreement. OWNER understands that, in accordance with 24 CRF 504
(c)(1)(x) AND 2 CFR Part 200, Appendix II to Part 200 (B), suspension or termination may occur if
the OWNER materially fails to comply with any term of this Agreement. Further, OWNER
acknowledges that the Agreement may also be terminated for convenience in accordance
with the provisions of this Agreement.
Program Budget Changes. OWNER shall not change the Program Budget without prior written
approval from the CITY.
B.
C.
D.
E.
F.
G.
SEcrioN 5. CITY'S & OWNER'S OBLIGATIONS
A
B
HOME Funds. CITY shall provide funds in the amount of One Hundred Thousand Dollars and
No Cents ($100,000.00) or less to the OWNER for specific housing projects and programs as
described in the Work Statement, Attachment A.
Hold Harmless. OWNER agrees to hold and save harmless the CITY, its officers, elected and
appointed officials, and employees from any and all loss, cost, or damage of every kind
[including, property damage, bodily injury or death], nature or description arising under this
Agreement.
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C Environmental Review. CITY shall be responsible for performing an environmental review to
ensure necessary compliances are met. HOME Funds will not be paid and costs cannot be
incurred until CITY has conducted and completed an environmental review and completed
an Environmental Review Record as required by 24 CFR Part 58. The environmental review
may result in a decision to proceed with, modify, or cancel the Project. Further, OWNER will
not undertake or commit any funds to physical or choice limiting actions, including if
applicable, property acquisition, demolition, movement, rehabilitation, conversion, repair or
construction prior to the environmental clearance. Any violation of this section will (i) cause
this Agreement to terminate immediately; (ii) require OWNER to repay to CITY any HOME
Funds received and forfeit any future payments of HOME Funds; and (iii) OWNER must pay
10% of the HOME Funds to CITY as liquidated damages. The Parties agree that CITY’s actual
damages in the event of OWNER violating this section are uncertain and would be difficult to
ascertain and may include a finding by HUD, a repayment of funds to HUD by CITY or
otherwise impact the CITY’s HOME grant or other Federal grant funds. Therefore, the Parties
agree that payment of 10% of the loan amount by OWNER to CITY under this section is
liquidated damages and not a penalty.
Funding Conditions. This Agreement and the payments made hereunder are contingent upon
receipt of U.S. Department of Housing and Urban Development funds pursuant to the HOME
Investment Partnerships Program, and shall terminate immediately, notwithstanding the
provisions of Section 23. hereof, should such funds be discontinued for any reason.
Reversion of Assets. Upon dissolution of the OWNER any remaining funds or assets derived
from the expenditure of the CITY's funds, hereinafter sometimes described as the CITY's
HOME Funds, proceeds or HOME-funded projects, must be immediately reallocated to the
CITY
D.
E
SECTION 6. FORM OF FINANCING AND DISBURSEMENTS
A Form and Terms of Assistance.
1. HOME Forgivable Payment Loan. CITY will provide HOME funding as forgivable payment
loan for construction on the Project (the “HOME Forgivable Payment Loan”). The term of
the HOME Forgivable Payment Loan will commence at execution of the Deed of Trust and
Real Estate Lien Note (which execution is anticipated to occur at or around the execution
of this Agreement) and will continue for a term often (10) years from the date of Project
Completion, which will require that construction be complete, all HOME Funds have been
disbursed by CITY and drawn from the US Treasury, and required completion data has
been entered in HUD’s IDIS system.
2. Interest. The HOME Forgivable Payment Loan will carry zero percent (0%) interest
(provided there is no default) and shall be forgiven following expiration of the HOME
Affordability Period of ten (10) years, to commence on the date of Project Completion asdescribed herein.
3. Security. The HOME Forgivable Payment Loan must be secured by a promissory note and
a first position lien or mortgage on the Property. OWNER agrees to execute any and all
notes, security agreements, financing statements, affordability covenants, builder's and
mechanic's liens and deeds of trust and any other documents or amendments that are
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consistent with this Agreement and are reasonably necessary for perfection of City's lien
or lien interests in the form required by the City. OWNER further agrees to cooperate
with the City in re-signing any documents to correct errors or omissions, if any, in any
form or legal document required by the City or HUD.
Title Search/Insurance. Prior to the start of the Project, CITY will perform a preliminary
title search. Should any items on the search arise, OWNER shall provide a title insurance
policy insuring the Property. OWNER shall provide a title insurance policy insuring the
Property in standard form issued by a title company authorized to do business in the State
of Texas and acceptable to CITY. The name of the insured shall be City of Denton, a Texas
home-rule municipal corporation. The policy shall show fee simple title to the Property in
OWNER, subject only to such exceptions as CITY may approve, be in the full amount of
CITY's loan, contain a comprehensive coverage endorsement and such other
endorsements as CITY may require and shall insure that the mortgage constitutes a valid
Texas Department of Housing and Community Affairs (“TDHCA") first position lien or
mortgage on the Property, and that the Property is free of all liens, encumbrances,
restrictions or other matters of any kind whatsoever, with only such exceptions from
coverage as are satisfactory to CITY.
Covenant Running with the Land. OWNER must record a covenant running with the land,
in form satisfactory to CITY, that provides a means for enforcement of the affordability
restrictions of 24 CFR 92.252. CITY’s covenant running with the land must be senior to all
other financing liens, including the first position mortgage from Texas Department of
Housing and Community Affairs (“TDHCA”), and CITY’s mortgage referenced above, and
be enforceable against all successors in interest to OWNER.
Reserved Guarantees. Guarantees shall include, at a minimum, the following terms.
a. A guarantee of completion, ensuring that OWNER will construct, equip, and complete
the Project free and clear of liens substantially in accordance with the plans and
specifications by the date called for in section 2.B.2. Failure to complete the Project
under these terms will result in OWNER’s and Guarantors’ obligation to:
(i) Pay all costs and expenses incurred in completing any unfulfilled obligations; and(ii) Pay to or reimburse CITY for all expenses incurred by CITY with respect to its
carrying out any of OWNER’s unfulfilled obligations. This guarantee will expire
upon CITY’s final inspection and approval of the Project’s construction.
b. An ongoing guarantee of performance, ensuring that the Project will be operated in
compliance with all applicable federal, state, and local laws or ordinances or
regulations, including but not limited to HOME regulations and fair housing laws.
During the HOME Affordability Period, failure to maintain the Project in compliance
with all applicable laws, or the inability to correct instances of noncompliance, will
result in a requirement that the OWNER and Guarantors satisfy any repayment
obligation to HUD incurred by CITY under 24 CFR 92.503(b).
c. A guarantee of annual deposits to a Replacement Reserve for the Project in an amountconsistent with the HOME Forgivable Payment Loan documents (the “Loan
Documents” ).
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Disbursement. CITY’s HOME Forgivable Payment Loan is intended as construction and
permanent financing. OWNER may request reimbursement no more than monthly and not
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less than quarterly from CITY during the construction period in accordance with the terms set
forth in this section. Notwithstanding anything herein, CITY will draw HOME Funds as needed
to directly reimburse itself for certain project-related soft costs applicable to the Project.
These include but may not be limited to costs incurred by CITY in the underwriting, review,
and oversight of the Project prior to completion and will include internal costs of CITY staff
and external costs of CITY consultants. All CITY project-related soft costs will be included in
the total HOME investment and incorporated into the HOME Forgivable Payment Loan.
Further, CITY shall retain the right to review and approve all draws for the Project, regardless
of whether the HOME Forgivable Payment Loan will be used to fund any given draw. For
draws being funded by other construction or permanent funding sources, CITY shall be
provided with the draw not less than 10 days prior to any monthly inspection and provided
with the opportunity to approve or object to the draw prior to payment by any fundingsource
1. Conditions of Construction Draws. Proceeds of the HOME Forgivable Payment Loan will
only be released to OWNER for actually incurred HOME-eligible Project costs. Theobligation of CITY to approve any draw or to make any disbursement of HOME Funds is
subject to the satisfaction of the following conditions at the time of making suchdisbursement:
a. Payment to OWNER / Reimbursement Request. The CITY shall pay OWNER for
activities carried out under this Agreement on a reimbursement basis within twenty-
one (21) days after CITY has received a request for reimbursement and all required
supporting documentation of eligible expenditures from OWNER (a “Reimbursement
Request”). Documentation of expenditures must be submitted to the Community
Development Manager by the dates required by Community Development. OWNER’s
failure to provide information on a timely basis may delay reimbursements. Funds
are to be used for the sole purpose of carrying out the activities described in the Scope
of Services in Exhibit A and based on the Budget in Exhibit B.
b. OWNER shall not be in default under the terms of this Agreement or of any of the
Loan Documents, and no event shall exist, which by notice, passage of time, or
otherwise would constitute an event of default under this Agreement or any of the
Loan Documents.
c. The Project shall not have been materially damaged by fire or other casualty.
d. CITY shall have received evidence satisfactory to CITY that all work and improvements
requiring inspection by any governmental authority having jurisdiction have been
inspected and approved by such authorities and by any other persons or entities
having the right to inspect and approve construction.
e. OWNER shall have submitted at least ten (10) days prior to the date a disbursementis desired a completed disbursement request and such other appropriate source
documentation as may be required by CITY including, without limitation, the
following:
• Statements identifying all contractors, subcontractors and suppliers along
with their addresses, and identifying all labor and materials furnished to date
along with the amounts paid to date and the balances due and any change
orders, as well as sworn 'lien waivers executed by the contractors,
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subcontractors, and/or suppliers covering all labor and materials identified in
the prior request for disbursement approved by CITY, said sworn statements
and sworn lien waivers to be dated no less than five (5) days precedent to thedate of the requested disbursement, or such other documentation or
supporting evidence as shall enable the Title Company to issue an
endorsement to the title policy, including receipts or other vouchers showing
payments for labor, payments to subcontractors and payments to material
suppliers.
• Evidence satisfactory to CITY that the Project and the contemplated use
thereof are permitted by and comply with all applicable use or other
restrictions and requirements in prior conveyances, zoning ordinances, or
regulations that have been duly approved by the municipal or other
governmental authorities having jurisdiction; that the required building
permits and other permits have been obtained as required; and that noenvironmental impact statement is required or that such environmental
impact statement has been properly filed and approved.
Appropriate certifications of compliance in all respects with labor standards
and prevailing wage requirements applicable under federal law.
Such other supporting evidence as may be requested by CITY or its agent to
substantiate all payments which are to be made out of the relevant
disbursement and/or to substantiate all payments then made with respect to
the Project.
•
•
f. CITY shall have determined that all HOME requirements pertaining to the
disbursement of funds have been met, including but not limited to monitoring of Davis
Bacon Wage Rate Determination compliance as described in Section 9. G-Labor
Standards -Compliance with Davis-Bacon Act.
g. An inspection of work completed will need to be completed by Community
Development staff prior to OWNER’s submission of a Reimbursement Request per6.B.1.a
h. No determination shall have been made by CITY that the undisbursed amount of the
loan is less than the amount received to pay all costs and expenses of any kind that
reasonably may be anticipated in connection with the completion of the Project.
Conditions of Final Payment. In addition to the requirements set forth in Section 6.B.1,
CITY shall require the following prior to the final payment of funds, the request for which
shall not be submitted before completion of the Project, including all landscape
requirements and offsite utilities and streets and correction of defects in workmanship
and/or materials.
a. Evidence satisfactory to CITY that the Project has been completed lien free and
substantially in accordance with the plans and specifications;b. Review and final settlement of the cost certification described below.
c. Such other supporting evidence as may be requested by CITY or its agent to
substantiate all payments which are to be made out of the final disbursement and/or
to substantiate all payments then made with respect to the Project.
Limitation on Draw Requests.
2.
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a. In all cases, OWNER may not request disbursement of HOME Funds until funds are
needed for the payment of eligible costs, and all disbursement requests must be
limited to the amount needed at the time of the request.
b. Notwithstanding anything herein to the contrary, no disbursements for materials
stored will be made by CITY unless OWNER shall advise CITY of its intention to so store
materials prior to their delivery. It is specifically agreed that the propriety ofdisbursements for materials stored shall be determined in CITY's sole discretion. In
addition to any other requirements CITY may impose, any disbursement for materials
stored will require, at minimum:
Certification from the General Contractor (and, as applicable, any
subcontractors) that:
o The materials for which payment is requested are consistent with the
Project’s plans and specification and have been purchased specifically
for incorporation into the Project;
o The Contractor (or subcontractor as applicable) is in actual possessionof and has clear, marketable title to the materials and that such
materials are not subject to any lien by the supplier or manufacturer;and
o The materials are appropriately stored on-site and fully insured against
theft, damage, or other loss OR that materials stored off-site are
located in a licensed, bonded, and insured warehouse where they are
fully insured against theft, damage, or other loss.
Submission of documentation (such as invoices, receipts, shipping manifests,•
or insurance policies) satisfactory to CITY supporting the certifications;
• That any disbursement for materials stored are otherwise subject to the
contract’s standard retainage provisions.
The parties covenant and agree that in the event that CITY discovers a misstatement
in any affidavit, statement, or certificate furnished pursuant to this Agreement, it shall
make no further disbursements until such misstatement has been corrected; that CITY
assumes no liability to the OWNER for mechanic’s lien claims; that if at any time during
the course of construction, the total of the unpaid disclosed cost of construction, as
indicated by the column totals on the general contractor's sworn statement, exceeds
the amount of the undisbursed development sources, CITY shall not be under
obligation to make further disbursement under the terms of the Agreement until the
OWNER has deposited with CITY the sum necessary to make the available funds equal
to the unpaid disclosed cost of construction; and that if, after the first disbursement,
a further title search reveals a subsequently arising exception over which the title
insurance company is unwilling to insure, CITY shall discontinue disbursement until
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the exception has been disposed of to the CITY’s satisfaction.
Withholding Payment. City shall withhold payment on any reimbursement request that
does not include the required complete documentation.
Disbursement of OWNER's Funds. If CITY shall at any time in good faith determine that
the undisbursed amount of available funding is less than the amount required to pay all
costs and expenses of any kind which reasonably may be anticipated in connection with
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the completion of the Project and shall thereupon send written notice thereof to OWNER
specifying the amount required to be deposited by OWNER with CITY or its agent to
provide sufficient funds to complete the Project, the OWNER agrees that it will, within
five (5) calendar days of receipt of any such notice, deposit with CITY or its agent, in a
noninterest bearing account, the amount of funds specified in the CITY’s notice. OWNER
agrees that any such funds deposited with CITY or its agent may be disbursed by CITY or
its agent, before any further disbursement from CITY, to pay any and all costs and
expenses of any kind in connection with completion of the Project.
Reserves and Other Accounts. For Existing Rental Units, please provide the following yearly
budgets:
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[
Existing Rental Units
Replacement Reserve Account
Per TDHCA Requirements
Operating Reserve Account
Per TDHCA Requirements
Term of Reserve Accounts. All required Reserve Accounts must be maintained for the full
term of this Agreement or while CITY HOME Forgivable Payment Loan is outstanding,
whichever is longer.
CITY Approval and Access. Any withdrawal or transfer from Reserve Accounts shall require
the written approval of CITY, by and through its designee. CITY’s approval or request foradditional information to substantiate the need for the withdrawal or transfer shall be
provided within ten (10) business days of its receipt of a request for such action. OWNER
must establish the Reserve Accounts to require the signature of CITY designee and
OWNER for all withdrawals and transfers. Further, OWNER shall authorize the financial
institutions in which Reserve Accounts are held to provide CITY, when requested, verified
statements reflecting account balances and transactions.
Operating Receipts and Expense Account. The OWNER shall establish and maintain an
Operating Receipts and Expense Account to be reviewed by CITY during monitoring visits. All
rents and other receipts of the Project shall be deposited in the name of the OWNER and the
Project. The OWNER shall, upon collection of all Project receipts from whatever source
derived from the operation of the Project, hereinafter referred to as "Operating Receipts,"
forthwith deposit the same in the Operating Receipts and Expense Account. Thereafter, on a
monthly basis the OWNER shall pay, or cause to be paid, in a timely manner out of Operating
Receipts of the Project, in the order and priority as set forth below unless otherwise directed
by CITY, at its sole option, in writing:
1. All of the real estate tax and insurance premium escrow payments required of the
OWNER, which payments shall be deemed to be part of the "Operating Expenses" of the
Project for the purpose of this Agreement; and
The fee of the Project’s managing agent as set forth in the Management Agreement
between the OWNER and said managing agent; and
All remaining "Operating Expenses" of the Project (which specifically exclude the HOME
Forgivable Payment Loan principal, interest, and annual fee payments), including but not
limited to, taxes other than those for which an escrow payment is required under this and
any permitted senior mortgage, maintenance, fuel, management, water and sewage,
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administration, electricity, legal, audit, and all other current expenses, unless other funds
for payment are set aside or deferment of payment has been approved by CITY; and
4. All of the amortized principal, interest, and premium, if any, required to be paid under
the Note and Deed of Trust to CITY; and
5. All amounts required to be deposited with a designated depository in the Replacement
Reserve account, as set forth in this Agreement.
Occupant Security Deposits. The OWNER is further required to segregate or cause to be
segregated (i) all occupant security deposits, to be held in an interest-bearing depository
account (hereinafter referred to as the “Security Depository Account”), and (ii) an amount
equal to the aggregate of all special funds required by CITY to be maintained by or with
respect to the Project.
E.
SECTION 7. HOME PROGRAM REQUIREMENTS
A.Affordability Period Requirements. The Project must comply with all requirements of 24 CFR
92.252, in particular requiring the HOME- assisted units be income and rent restricted for the
duration of the Project’s HOME Affordability Period (see Section 3. Term A.). The Project must
also maintain compliance with the physical standards of 24 CFR 92.251 and be operated
consistent with applicable tenant protection, affirmative marketing, and fair housing
requirements of 24 CFR 92 Subpart H.
Designation of HOME Units. The Project’s five (5) HOME Units will be designated as Floating
Units as defined in 24 CFR Part 92.252 (j) The restrictions of this section shall apply throughout
the term of this Agreement. The CITY reserves the right to adjust the number of HOME-
assisted units if the sources and uses of funds change during development of the Project.
1. Income Qualification.
a. Income Restrictions. The HOME Units rented or available for rent to households
whose annual incomes do not exceed 80% of area median income ("AMI”), as set
annually by HUD with adjustments for family size ("High-HOME Eligible Tenant"), shall
be 4 units ("High-HOME Units"). The HOME Units rented or available for rent tohouseholds whose annual incomes do not exceed 50% of area median income
("AMI”), as set annually by HUD with adjustments for family size ("Low-HOME Eligible
Tenant”), shall be 1 unit ("Low-HOME Unit”).The most current income chart per the
HUD Income Guidelines must be used when determining eligibility for a prospective
tenant or determining the income at recertification for in-place tenants.
i. The Project must utilize the definition of annual income defined in 24 CFR Part
5.609 (often referred to as the “Section 8“ definition). Prior to signing a lease with
any tenant, OWNER must obtain and examine at least two months of source
documents evidencing household income.ii. As a reference, OWNER should consult the most recent version of the HUD
publication: Technical Guide for Determining Income and Allowances for the
HOME Program.
iii. OWNER acknowledges that the HOME Income Limits are released by HUD on
independent schedules.
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b. Income Verification. OWNER must verify that all tenants of HOME Units are HOME
Eligible Households with full Tenant Documentation at the time the initial lease for a
HOME Unit is executed. Tenants must certify the number of people in tenant’s
household along with such person’s names and ages. OWNER shall obtain financialinformation on all members of a tenant’s household.
i. OWNER must maintain copies of Tenant Documentation as required under thisAGREEMENT
ii. CITY will review Tenant Documentation during the HOME Affordability Period as
part of its monitoring.
c. Re-verifying Incomes. OWNER must verify the income of the tenants of the HOME
Units annually after the initial lease is executed, but may use a CITY-approved tenant
self-certification form as Tenant Documentation. Notwithstanding any other
provisions of this Agreement, OWNER shall re-verify the income of in-place tenants
using at least two months of source documentation not less than every 6th year of
the HOME Affordability Period. In years when source documentation is required, all
in-place tenants must be re-verified regardless of how long they have been in place.
d. Treatment of Over-Income Tenants. In the event an in-place tenant, upon re-
verification of the tenant’s income, has a household income above the applicable 80%
AMI HOME Income Limit for Low-HOME or High-HOME tenants, the OWNER shall take
the following actions:
i. If the High-HOME tenant’s income at re-verification increases to greater than 80%
AMI, then the OWNER will first increase the rent for the over-income tenant to the
lesser of i) 30% of the tenant’s adjusted income or ii) the “market rent" for the unit
(i.e. what the unit would be projected to rent for in the local market absent any
income or rent restrictions imposed by HOME, Low-Income Housing Tax Credits, or
other such programs).
ii. The OWNER must also substitute another unit that is comparable or larger by
either i) designating another unit in the Project occupied by an eligible High-HOME
tenant or ii) renting the next available unit as a High-HOME Unit.
Rent Restrictions. The gross rent for each High-HOME Unit may not exceed the High-
HOME rent, as adjusted for unit size and published annually by HUD.
CITY Approval of Rent, Utility Allowances, and Fees. Pursuant to the requirements of 24
CFR 992.252(d) and (f), CITY must approve the rents and utility allowances applied to the
Project on an annual basis. The OWNER may not increase the rents of HOME-units
without prior approval of CITY. Additionally, the OWNER shall provide a fee schedule,
consistent with requirements of Section 7.C.3 below for review and approval by CITY on
an annual basis. Any mandatory tenant fees not otherwise approved by CITY shall be
considered rent and are subject to the gross rent limits outlined herein.
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Project Requirements. OWNER must operate the Project in compliance with the
requirements of 24 CFR Part 92 Subpart F.
1. Lease. OWNER must have a written lease with each tenant of a HOME-assisted unit, in a
form acceptable to CITY. If directed by CITY, OWNER shall include CITY’s HOME Lease
Addendum, as may be updated from time to time, on all HOME leases. The lease must, at
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a minimum, provide all HOME tenants with at least 30 days written notice prior to i)
increasing the rent or ii) terminating or refusing to renew the lease.
a. All tenants must be offered leases with a minimum period of one (1) year. OWNER
cannot terminate or refuse to renew the lease of any tenant for other than good
cause. In particular, good cause does not include an increase in a tenant’s income or
a tenant’s failure to accept or participate in supportive services being offered now or
in the future to residents of the Project.
b. Good cause for terminating or refusing to renew the lease shall include material
violations of the lease or violations of applicable federal, state, or local laws.
c. The lease may not include any provisions prohibited by 24 CFR 92.253(b):
• Lease may not include agreement by tenant to allow landlord to take, hold or sell
tenant’s personal property without notice and a court decision on the rights of the
parties.
Lease may not include agreement by the tenant to excuse owner or owner’s
agents from responsibility for any action or failure to act, whether intentional or
negligent acts
Lease may not authorize landlord to institute a lawsuit without notice to thetenant.
Lease may not include agreement by tenant to waive a jury trial or right of appeal.
Lease may not include an agreement by tenant to pay legal costs of court
proceeding even if the tenant prevails in those proceedings regardless ofoutcome.
Lease may not include an agreement by the tenant to be sued, to admit guilt or to
a judgment in favor of the owner in a lawsuit brought in connection with the lease.
Lease may not include an agreement by the tenant that the owner may evict the
tenant or household members without instituting civil court proceedings in which
the tenant has the opportunity to present a defense, or before a court decision on
the rights of the parties.
Lease may not include an agreement by the tenant to waive the tenant’s right to
appeal or otherwise challenge in court a court decision in connection with thelease
Lease may not include an agreement by the tenant to accept supportive servicesthat are offered.
Revised Lease Forms. OWNER shall provide CITY copies of revised lease forms within 30
days of any change to its lease form. All changes to OWNER’s lease form shall comply
with this Agreement.
Prohibition on Certain Fees to Tenants. OWNER shall not charge tenants fees to cover
operating costs of the Project or administrative costs related to complying with the HOME
program. Specifically, OWNER may not charge tenants fees that are not customarily
charged to tenants of rental housing (e.g., laundry room access fees). However, OWNER
may charge fees approved by CITY for the following:
a. Reasonable application fees to prospective tenants;
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b. Fees or penalties related to the late payment of rent, non-sufficient funds or returned
checks, or the like provided such fees are determined by CITY to be customary for
rental housing projects in the area and not excessive;
c. Parking fees to tenants only if such fees are determined by CITY to be customary for
rental housing projects in the neighborhood and not excessive; and
d. Fees for services such as bus transportation or meals, as long as the services are
voluntary, and fees are charged only for services provided.
Voluntary Services. OWNER must ensure that any supportive services being offered to
tenants of the Project are voluntary. Tenants may not, as a condition of their initial lease
or continued occupancy, be required to accept, participate in, or comply with the
requirements of any supportive services program.
Tenant Selection Plan. OWNER must develop a tenant selection plan meeting the
requirements of 24 CFR 92.253(d). OWNER cannot refuse to lease to a holder of a Section
8 Housing Choice Voucher, recipient of HOME Tenant Based Rental Assistance, or a
prospective tenant receiving similar assistance under another federal, state, or local
program solely because of the tenant or prospective tenant’s participation in such
program. The tenant selection plan will be subject to review and approval by CITY both
prior to initial occupancy of the HOME-assisted units and during the term of this
Agreement.
a. The tenant selection policy must be consistent with the purpose of providing housing
for very low and low-income persons. The tenant selection policy must provide for:
• Selection of tenants from a written waiting list in the chronological order of
their application, insofar as is practicable;
• Prompt written notification to any rejected applicant of the grounds for such
rejection; and
• Bi-lingual leasing and management assistance
• Holders of rental assistance subsidies (such as HUD’s Housing Choice Voucher
or similar subsidy) must not be excluded from renting a unit in the project.
• The tenant selection policy must address non-discrimination and affirmative
marketing as discussed in section 9.E.
b. OWNER must market accessible units in the following order:
• Within the project to persons requiring an accessible unit.
• To persons on the waiting list requiring an accessible unit
• To the general community for persons requiring an accessible unit.
• To persons that do not require an accessible unit.
c. The tenant selection policy must (i) address the lease requirements described in this
Agreement that address managing HOME Unit requirements, and (2) comply with
state and local tenant/landlord laws.
Conditions for Faith-Based Organizations. Faith-based organizations are eligible to
participate in the HOME program on the same basis as any other organization but must
comply with the requirements of 24 CFR 92.257. Among other requirements, OWNER may
not engage in inherently religious activities such as worship, religious instruction, or
proselytization, as part of the Project. If OWNER does engage in such religious activities,
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those activities must be offered separately from the HOME-assisted housing, and
participation by tenants of the Project must be voluntary. Additionally, OWNER shall not
discriminate against a tenant or prospective tenant on the basis of religion or religiousbelief
a. Separation of Explicitly Religious Activities. OWNER retains its independence and may
continue to carry out its mission, including the definition, development practice, and
expression of its religious beliefs, provided that it does not use HOME Funds to
support or engage in any explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or proselytization).
b. Explicitly Religious Activities. If OWNER engages in explicitly religious activities
(including activities that involve overt religious content such as worship, religious
instruction, or proselytization), the explicitly religious activities must be offered
separately, in time or location, from the programs or activities supported by HOME
Funds and participation must be voluntary for tenants of a HOME-funded unit.
SEcrION 8. coNSTRUcrioN, PROPERTY STANDARDS AND MANAGEMENT
A Construction Schedule. OWNER will construct the Required Improvements (defined in
Attachment A hereto). OWNER shall provide the Community Development Manager with a
proposed construction schedule for the Required Improvements and, if approved by the
CITY’s Community Development Manager, such approved construction schedule shall be
referred to herein as the “Construction Schedule”. Owner shall construct the Required
Improvements in accordance with the Construction Schedule. OWNER shall not beginconstruction until CITY sends a Notice to Proceed. OWNER’s failure to meet the Construction
Schedule or the Project Completion deadline shall be an Event of Default in accordance with
Section 24.E. OWNER may not change the Construction Schedule without the CITY’s prior
written approval, which approval shall be in the CITY’s reasonable discretion.
1. Written Cost Estimates, Construction Contracts and Construction Documents. OWNER
shall furnish CITY with the written cost estimates, construction contracts and construction
documents (collectively, the “Construction Documents”) all of which shall describe the
construction of the Required Improvements in sufficient detail so that CITY can perform
inspections. CITY shall review and approve written cost estimates and determine that
costs are reasonable prior to the commencement of construction.
Construction Inspections. CITY will conduct progress and final inspections of construction
of the project to ensure that the work is done in accordance with the applicable building
codes and the Construction Documents. The construction of the project must pass a HUD
Compliance Inspection Report and any other applicable HUD-required inspections during
the construction period, along with any applicable final inspection approval from the CITY
building inspectors at the completion of the construction of the project.
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Property Standards. The Project must be maintained in compliance with the requirements of
24 CFR 92.251. In particular, OWNER shall comply with the following as applicable during the
construction of the Required Improvements: (i) the Property Standards in 24 CFR Part
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92.251(a), (ii) accessibility standards under 24 CFR Part 92.251(a)(2)(i), (iii) any City property
standards, and (iv) all other applicable accessibility standards for the Project..
Construction Codes. The Plans and construction for the Required Improvements shall (i)
conform to all applicable Federal, state, CITY and other applicable laws, ordinances, codes,
rules and regulations, including the HOME Regulations; (ii) meet all City building codes; (iii)
meet the Energy Conservation requirements as required by the State of Texas in Chapter 11
of the International Building Code; (iv) if new construction, must conform to the Model
Energy Code published by the Council of American Building Officials; and (v) must pass a HUD
Compliance Inspection Report and inspection by City’s inspectors.
Lead-Based Paint Requirements. OWNER will comply with any applicable Federal lead-based
paint requirements including lead screening in buildings built prior to 1978 in accordance with
24 CFR Part 92.355 and 24 CFR Part 35, subparts A, B, J, K, M, and R, and the Lead: Renovation,
Repair and Painting Program Final Rule, 40 CFR Part 745, in the construction and/orrehabilitation of the Required Improvements.
Approval of Plans and Specifications by CITY Not A Release of Responsibility. Approval of the
Plans by CITY shall not constitute or be deemed (i) to be a release of the responsibility or
liability of OWNER or any of its contractors or subcontractors, or their respective officers,
agents, employees and lower tier subcontractors, for the accuracy or the competency of the
Plans or the Construction Documents, including, but not limited to, any related investigations,surveys, designs, working drawings and specifications or other documents; or (ii) an
assumption of any responsibility or liability by CITY for any negligent act, error or omission in
the conduct or preparation of any investigation, surveys, designs, working drawings and
specifications or other documents by OWNER or any of its architects, contractors orsubcontractors, and their respective officers, agents, employees and lower tiersubcontractors
Contractor, Subcontractor and Vendor Requirements. OWNER will use commerciallyreasonable efforts to ensure that all contractors or vendors utilized by OWNER or
subcontractors utilized by OWNER’s general contractor are appropriately licensed and such
licenses are maintained throughout the construction of the Required Improvements and the
operation of the project when applicable. OWNER shall ensure that all contractors utilized
by OWNER, subcontractors utilized by OWNER’s general contractor in the construction of the
Required Improvements, or vendors utilized by OWNER in the operation of the project are
not debarred or suspended from performing the contractor’s, subcontractor’s or vendor’swork by the City, the State of Texas, or the Federal government. For purposes of thisAGREEMENT, the term “vendors” does not include suppliers or materialmen. OWNER
acknowledges that 2 CFR Part 200 forbids OWNER from hiring or continuing to employ anycontractor, subcontractor or vendor that is listed on the Federal System for Award
Management, www.sam.gov (“SAM”). OWNER must confirm by search of SAM that all
contractors, subcontractors or vendors are not listed by SAM as being debarred, both prior
to hiring and prior to submitting a Reimbursement Request (see 6.B.1.a.) which includes
invoices from any such contractor, subcontractor, or vendor. Failure to submit such proofs
of search shall be an event of default, if not cured within any applicable notice or cure period.
In the event that CITY determines that any contractor, subcontractor or vendor has been
debarred, suspended, or is not properly licensed, OWNER or OWNER’s general contractor
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shall immediately cause such contractor, subcontractor or vendor to immediately stop workon the project and OWNER shall not be reimbursed for any work performed by such
contractor, subcontractor or vendor. However, this section should not be construed to be an
assumption of any responsibility or liability by CITY for the determination of the legitimacy,
quality, ability, or good standing of any contractor, subcontractor or vendor.
Additional Construction Requirements. The Project must also be constructed in compliance
with the accessibility requirements of 24 CFR 8 which implements Section 504 of the
Rehabilitation Act of 1973. Additionally, if the Project is a “covered multifamily dwelling," as
defined in 24 CFR 100.201, the Project must also meet the design and construction
requirements of 24 CFR 100.205 regarding, among other things, accessibility to the building
G.
and common areas.
1. OWNER must prohibit the use of lead-based paint construction of the project.
2. OWNER will require its contractors to comply with all rules, regulations, ordinances, and
laws bearing on its conduct of work on the Project. OWNER will require its contractors to
stop construction if ground disturbance related to this Project results in the discovery of
any bones, artifacts, foundations, or other indications of past human occupation and
notify both the State Historic Preservation Office and CITY immediately.
Ongoing Maintenance of the Project. OWNER must maintain the Project and Property in
compliance with all applicable state and local codes and ordinances throughout the term of
this Agreement.
1. CITY has determined that the following local codes apply to the ongoing occupancy and
maintenance of the Project and Property:
a. 2018 the ICC Property Maintenance Code
Additionally, OWNER must maintain the Project and Property in compliance with the
Housing Quality Standards (Has) in 24 CFR 982.401. In the event of a conflict between
state and local codes and HCIS, the stricter standard will apply.
As a matter of clarification, as applied by CITY, include compliance with the HUD’s
Uniform Physical Conditions Standards (UPCS). UPCS is generally a more stringent
standard than Has, but in the event a conflict on any given inspectable item or building
component, the stricter standard shall apply.
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Property Management. CITY must approve any professional property management company
employed by OWNER for the Project or Property.
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SECTION 9. COMPLIANCE WITH OTHER FEDERAL REQUIREMENTS, APPLICABLE LAWS AND
REGULATIONS.
A.Federal Requirements. The CITY and OWNER agree to perform their duties arising pursuant
to the Agreement in compliance with the U.S. Department of Housing and Urban
Development HOME Investment Partnerships Program regulations at 24 CFR 92 and 2 CFRPart 200
Other Federal Requirements. OWNER agrees to develop and operate the Project in full
compliance with other related federal requirements.
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C Compliance with All Applicable Laws and Regulations. OWNER agrees to comply fully with all
applicable laws and regulations that are currently in effect or that are hereafter amended
during the performance of this Agreement. These laws include, but are not limited to:
1. HOME Investment Partnerships Act as set out above
2. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) including
provisions requiring recipients of federal assistance to ensure meaningful access by
person of limited English proficiency
The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections 3601 et
seq.)
Executive Orders 11063, 11246 as amended by 11375 and 12086 and as supplemented4
by Department of Labor regulations 41 CFR, Part 60
5. The Age Discrimination in Employment Act of 1967
6. The Age Discrimination Act of 1975 (42 U.S.C. Sections 6101 et seq.)
7. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42
U.S.C. Sections 4601 et seq. and 49 CFR Part 24) ("URA'’)
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sections 794 et seq.) and 24 CFR8
Part 8 where applicable
National Environmental Policy Act of 1969, as amended, 42 U.S.C. sections 4321 et seq.
("NEPA'’) and the related authorities listed in 24 CFR Part 58.
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10. The Clean Air Act, as amended, (42 U.S.C. Sections 1251 et seq.) and the Clean Water Act
of 1977, as amended (33 U.S.C. Sections 1251 et seq.), related Executive Order 11738 and
Environmental Protection Agency Regulations. In no event shall any amount of the
assistance provided under this Agreement be utilized with respect to a facility that has
given rise to a conviction under the Clean Air Act or the Clean Water Act.
11. Immigration Reform and Control Act of 1986 (8 U.S.C. Sections 1101 et seq.) specifically
including the provisions requiring employer verifications of legal status of its employees
12. The Americans with Disabilities Act of 1990 (42 U.S.C. Sections 12101 et seq.), the
Architectural Barriers Act of 1968 as amended (42 U.S.C. sections 4151 et seq.) and the
Uniform Federal Accessibility Standards, 24 CFR Part 40, Appendix A
13. Regulations at 24 CFR Part 87 related to lobbying, including the requirement that
certifications and disclosures be obtained from all covered persons
14. Drug Free Workplace Act of 1988 (41 U.S.C. Sections 701 et seq.) and 24 CFR Part 2429
15. Executive Order 12549 and 24 CFR Part 5.105(c) pertaining to restrictions on participation
by ineligible, debarred or suspended persons or entities
16. Regulations at 24 CFR § 92.202 pertaining to site and neighborhood standards for new
construction projects
17. Regulations at 24 CFR § 891.320 for Site and Neighborhood Standards Review
18. Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act per 7 CFR § 1784.37
19. Guidelines of the Environmental Protection Agency at 40 CFR Part 247
20. For contracts and subgrants for construction or repair, Copeland "Anti-Kickback" Act (18
U.S.C. 874) as supplemented in 29 CFR Part 5
21. For construction contracts in excess of $2,000, and in excess of $2,500 for other contracts
which involve the employment of mechanics or laborers, Sections 103 and 107 of the
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Contract Work Hours and Safety Standards Act (40 U.S.C. 327A 300) as supplemented by29 CFR Part 5
22. Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.), as amended by the
Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851 et seq.) and
implementing regulations at 24 CFR Part 35, subparts A, B, M, and R
23. Regulations at 24 CFR Part 92, Home Investment Partnerships Program Final Rule
24. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for
Federal Awards, 2 CFR Part 200 et seq.
25. Federal Funding Accountability and Transparency Act of 2006, (Pub.L. 109-282, as
amended by Section 6205(a) of Pub.L. 110-252 and Section 3 of Pub.L. 113-101)
26. Federal Whistleblower Regulations, 10 U.S.C. 2409, 41 U.S.C. 4712, 10 U.S.C. 2324, 41U.S.C. 4304 and 41 U.S.C. 4310.
Agreement Not Constituting Commitment of Funds. Notwithstanding any provision of this
Agreement, the Parties agree and acknowledge that this Agreement does not constitute a
commitment of HOME Funds, and that such commitment or approval may occur only upon
satisfactory completion of environmental review and receipt by CITY of an authorization to
use grant funds from HUD under 24 CFR Part 58.
Affirmative Marketing. OWNER must adopt and implement affirmative marketing procedures
for the Project consistent with the requirements of 24 CFR 92.351. OWNER must submit an
Affirmative Fair Housing Marketing Plan (“AFHMIP”), using form HUD-935.2A, or on another
such form as CITY may reasonably require, for CITY review prior to marketing and leasing theHOME-assisted units
1. The procedures and requirements must include methods for informing the public, owners
and potential tenants about fair housing laws and policies so as to ensure that all
individuals are given an equal opportunity to participate in the project without regard to
sex, age, race, color, creed, nationality, national origin, religion, handicap status,
disability, familial status, sexual orientation, gender identity, gender expression or
transgender. The procedures shall include methods to be used by OWNER to inform and
solicit applications for tenancy from person in the housing market area who are not likely
to apply for the housing without special outreach (e.g., through the use of community
organizations, places of worship, employment centers, fair housing groups, or housing
counseling agencies.) The procedures and requirements must designate an individual
who will be responsible for marketing the Project and must establish a clear application
screening plan. OWNER’s affirmative marketing procedures must be submitted to CITY
for approval prior to implementation; provided however, CITY shall have no responsibility
for affirmative marketing of the Project.
CITY reserves the right to require OWNER to update the Project’s AFHMP from time to
time to ensure it remains appropriate given potentially changing demographic
characteristics of the market area and is updated based on the operational experience
with the Project.
OWNER shall keep records describing actions taken to affirmatively market the HOME
Units and the Project sufficient to enable CITY to assess the results of the affirmative
marketing.
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D.
E
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F.Compliance with the Uniform Relocation Act. Displacement, Relocation, and Acquisition.
OWNER shall comply with the Uniform Administrative Requirements, Cost Principals and
Audit Requirements for Federal Awards, Final Guidance as described in 2 CFR Part 200.
OWNER will take all reasonable steps to minimize the displacement of persons (families,
individuals, businesses, nonprofit organizations, and farms) as a result of the Project.
Additionally, OWNER will assure compliance with appropriate relocation and real property
acquisition requirements as provided in 24 CFR 92.353.
Labor Standards - Compliance with Davis-Bacon Act. The Project is subject to the
requirements 24 CFR 92.354. Because there are fewer than eleven (11) HOME-assisted
housing units, the prevailing wage standards of the Davis-Bacon Act do not apply.
1. As applicable, OWNER will ensure that its contracts for construction contain a provision
requiring that not less than the wages prevailing in the locality, as predetermined by the
Secretary of Labor pursuant to the Davis-Bacon Act (40 USC 276a-5), will be paid to all
laborers and mechanics employed in the development of affordable housing involved.
OWNER further will ensure that such agreements must also be subject to the overtime
provisions, as applicable, of the Work Hours and Safety Standards Act (40 USC 327-332).
OWNER shall comply with regulations issued under these Acts and with other federal laws
and regulations pertaining to labor standards and HUD Handbook 1344.1 (Federal Labor
Standards Compliance in Housing and Community Development Programs), as applicable.
CITY shall require certification as to compliance with the provisions of this section and wiI
monitor the Project and its records for such compliance before making any payment
under this Agreement.
2
Use of Contractors and Subcontractors. OWNER will ensure and maintain records
demonstrating that none of the contractors or subcontractors involved in the development
of the Project are suspended, debarred, or otherwise prohibited from participating in
federally-assisted contracts. OWNER will further ensure that its contractors include parallel
provisions in their subcontracts, provide and maintain records showing that subcontractors
are not suspended, debarred, or otherwise prohibited from participating in federally-assistedcontracts.
1. OWNER understands and agrees that all terms of this AGREEMENT, whether regulatory
or otherwise, shall apply to any and all contractors, subcontractors and vendors of
OWNER which are in any way paid with HOME Funds or who perform any work in
connection with the project. OWNER shall cause all applicable provisions of this
AGREEMENT to be included in and made a part of any contract or subcontract executed
in the performance of its obligations hereunder, including its obligations regarding the
Affordability Requirements and the HOME Regulations during the HOME AffordabilityPeriod. OWNER shall monitor the services and work performed by its contractors,
subcontractors and vendors on a regular basis for compliance with the Affordability
Requirements, the HOME Regulations and Agreement provisions. OWNER is responsibleto cure all violations of the HOME Regulations committed by its contractors,
subcontractors or vendors. CITY maintains the right to insist on OWNER’s full compliance
with the terms of this AGREEMENT and the HOME Regulations and OWNER is responsible
for such compliance regardless of whether actions to fulfill the requirements of this
AGREEMENT or the HOME Regulations are taken by OWNER or by OWNER’s contractors,
G.
H
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DocuSign Envelope ID: 875F2108-56604AED-9622-AC92424ABF7F
subcontractors or vendors. OWNER acknowledges that the provisions of this section shall
survive the earlier termination or expiration of this AGREEMENT and be applicable for the
length of the HOME Affordability Period and for 5 years thereafter.
2. OWNER shall, at a minimum, search at www.sam.gov to verify that each contractor and
subcontractor is not listed as an excluded party.
Certification Regarding Lobbying. OWNER certifies that it will not and, to the best of its
knowledge, has not used Federally appropriated funds to pay any person or organization for
influencing or attempting to influence an officer or employee of any Federal agency, a
member of Congress, officer or employee of Congress, or an employee of a member of
Congress in connection with obtaining any Federal contract, grant or any other award.
OWNER further agrees that it shall disclose any lobbying with non-Federal funds that takes
place in connection with obtaining any Federal award.
OWNER Procurement Standards. OWNER shall ensure that procurement of materials and
services is done in a cost-effective manner. OWNER shall comply with all applicable federal,
state and local laws, regulations, and ordinances for making procurements under thisAGREEMENT. OWNER shall establish written procurement procedures to ensure that
materials and services are obtained in a cost-effective manner
Cost Principles/Cost Reasonableness. The eligibility of costs incurred for performance
rendered shall be determined in accordance 2 CFR Part 200.402 through 2 CFR Part 200.405,
as applicable, regarding cost reasonableness and allocability.
Financial Management Standards. OWNER agrees to adhere to the accounting principles and
procedures required in 2 CFR Part 200, as applicable, utilize adequate internal controls, and
maintain necessary supporting and back-up documentation for all costs incurred inaccordance with 2 CFR Part 200.302 and Part 200.303.
Uniform Administrative Requirements. OWNER will comply with the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR Part 200,
as applicable, or any reasonably equivalent procedures and requirements that CITY may
requIre
Compliance with FFATA and Whistleblower Protections. OWNER shall provide CITY with all
necessary information for CITY to comply with the requirements of 2 CFR 300(b), including
provisions of the Federal Funding Accountability and Transparency Act (“FFATA”) governing
requirements on executive compensation and provisions governing whistleblower
protections contained in 10 U.S.C. 2409, 41 U.S.C. 4712, 10 U.S.C. 2324, 41 U.S.C. 4304 and41 U.S.C. 4310
OWNER shall provide CITY its DUNS number prior to the payment of any HOME Funds.
Internal Controls. In compliance with the requirements of 2 CFR 200.303, OWNER shall:
1. Establish and maintain effective internal control over the HOME Funds that provides
reasonable assurance that OWNER is managing the HOME Funds in compliance with
federal statutes, regulations, and the terms and conditions of this AGREEMENT. These
internal controls shall be in compliance with guidance in “Standards for Internal Control
in the Federal Government” issued by the Comptroller General of the United States or the
“Internal Control Integrated Framework";
2. Comply with federal statutes, regulations, and the terms and conditions of this
AGREEMENT;
1.
J
K.
L.
IVI
N.
0.
P
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Evaluate and monitor OWNER’s compliance with statutes, regulations and the terms and
conditions of this AGREEMENT;
Take prompt action when instances of noncompliance are identified including
noncompliance identified in audit findings; and
Take reasonable measures to safeguard protected personally identifiable information and
other information that HUD or CITY designates as sensitive or OWNER considers sensitive
consistent with applicable federal, state, local and tribal laws regarding privacy and
obligations of confidentiality.
3
4
5
Q. Copyright and Patent Rights. No reports, maps, or other documents produced in whole or in
part under this Agreement shall be the subject of an application for copyright by or on behalf
of OWNER. HUD and CITY shall possess all rights to invention or discovery, as well as rights
in data which may arise as a result of OWNER’s performance under this Agreement.
R. Match and Affordability Requirements. OWNER agrees to ensure that all HOME-assisted
housing or housing identified as match for the HOME program meets all affordability
requirements identified in 24 CFR 92 Subpart F as applicable.
S. Disallowed Costs. If it is determined that the use of the funding provided by the CITY does not
meet the requirements of the U.S. Department of Housing and Urban Development HOME
Investment Partnerships Program, the OWNER shall reimburse the CITY for the costs
determined to be disallowed under the U.S. Department of Housing and Urban Development
HOME Investment Partnership Program regulations.
T. OWNER shall comply with all applicable Federal laws and regulations at 24 CFR 92 Subpart H.
Subpart H prescribes procedures for compliance in the following areas: nondiscrimination
and equal opportunity, affirmative marketing, displacement and relocation, labor relations
and conflict of interest
U. OWNER agrees that all housing assisted under this Agreement will meet the property
standards requirements in 24 CFR 92.251 and the lead-based paint requirements in 24 CFR
92.355 upon project completion.
V. OWNER agrees to comply with all project requirements in 24 CFR Part 92 Subpart F.
W. OWNER certifies that it is not currently listed on the General Services Administration's List of
Parties Excluded from Federal Procurement or Non-procurement Programs in accordance
with Executive Orders 12549 and 12689 and will not enter into agreements to expend Federal
funds with OWNERs that are currently listed.
X. OWNER agrees to comply with the maximum per unit subsidy limits, underwriting
requirements and subsidy layering limits in 24 CFR 92.250.
Y. OWNER agrees to comply with all applicable Federal laws, laws of the State of Texas andordinances of the CITY.
SEcrioN 10. REPRESENTATIONS
A. The CITY is providing funding to the OWNER in order to promote the development of
affordable housing for low-income households. OWNER represents that the use of HOME
Funds for the Project will meet this stated goal.
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B.
C.
D.
The CITY is the only agent authorized to designate changes to the Program Budget or to
approve specific projects and programs authorized pursuant to the non-administration
portion of the Program Budget.
OWNER assures and guarantees that it possesses the legal authority, pursuant to any proper,
appropriate and official motion, resolution or action passed or taken, to enter into this
Agreement.
The person or persons signing and executing this Agreement on behalf of OWNER, do hereby
warrant and guarantee that he, she, or they have been fully authorized by OWNER to execute
this Agreement on behalf of OWNER and to validly and legally bind OWNER to all terms,
performances and provisions herein set forth.
CITY shall have the right, at its option, to either temporarily suspend or permanently
terminate this Agreement if there is a dispute as to the legal authority of either OWNER or
the person signing the Agreement to enter into this Agreement. OWNER is liable to CITY for
any money it has received from CITY for performance of the provisions of this Agreement if
CITY has suspended or terminated this Agreement for the reasons enumerated in this section.OWNER agrees that the funds and resources provided OWNER under the terms of this
Agreement will in no way be substituted for funds and resources from other sources, nor in
any way serve to reduce the resources, services, or other benefits which would have been
available to, or provided through, OWNER had this Agreement not been executed.
E.
F.
SEcrION ll. PROGRAM INCOIVIE
A.
B.
Any program income/proceeds from the Project will be considered CHDO proceeds that may
be retained by the OWNER and must be used in conformance with 24 CFR §92.300(a)(2), for
other housing activities to benefit low-income families.
HOME program income is defined as all fees and interest payments on HOME assisted
units/projects and any interest income on deposited HOME Funds or program proceeds
collected by the OWNER. Program income may be retained by the OWNER to be used for
HOME-eligible activities included in the Work Statement included herein as Attachment A.
Use of the funds on projects or programs other than those identified in this Agreement, must
be approved in writing by the CITY. Any income retained and used by the OWNER must be
available to the CITY as a matching contribution for the HOME program. Upon request,
OWNER will approve appropriate certifications stating that funding is available as a HOME
program match to the CITY.
C.
SEcrioN 12. MAINTENANCE OF RECORDS
A OWNER agrees to maintain records that will provide accurate, current, separate, and
complete disclosure of the status of the funds received pursuant to this Agreement and
pursuant to any other applicable Federal and/or State regulations establishing standards for
financial detailed support and justification for each expenditure. Nothing in this section shal
be construed to relieve OWNER of fiscal accountability and liability under any other provision
of this Agreement or any applicable law. OWNER shall include the substance of this provisionin all subcontracts
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B.
C.
D.
OWNER agrees to retain all books, records, documents, reports, and written accounting
policies and procedures pertaining to the operation of programs and expenditures of funds
pursuant to this Agreement for the period of time and under the conditions specified by CITY.
Nothing in the above subsections shall be construed to relieve OWNER of responsibility for
retaining accurate and current records, which clearly reflect the level and benefit of services,
provided pursuant to this Agreement.
At any reasonable time and as often as CITY may deem necessary, the OWNER shall make
available to CITY, or any of its authorized representatives, all of its records and shall permit
CITY, or any of its authorized representatives to audit, examine, make excerpts and copies of
such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of
personnel, conditions or employment and all other data relating to the program requested
by said representatives.
The OWNER shall give the CITY, the U.S. Department of Housing and Urban Development, or
any of their duly authorized representatives, access to and the right to examine all books,
accounts, records, reports, files and other papers belonging to or in use by the OWNER
pertaining to this Agreement. Such rights to access shall continue as long as the OWNER is
required to retain the records.
E.
SECTION 13. REPORTS AND INFORMATION
A.Financial Reporting. OWNER shall provide quarterly financial and beneficiary reports that
shall contain such records, data and information as CITY may request and deem pertinent to
matters covered by this Agreement. OWNER shall provide any additional information as
requested by the CITY within 10 days.
Audit Reporting. An audit must be conducted in accordance with 2 CFR Part 200 as applicable.
OWNER shall submit a copy of said audit to the Community Development Manager within
thirty days of receipt of the completed report.
General Requirements. OWNER agrees to provide reports to CITY and to maintain records
documenting compliance with this Agreement, the Loan Documents and regulatory
agreements, the HOME rule, and all other applicable federal, state, and local laws and
regulations. OWNER also agrees to provide CITY, HUD, HUD’s Office of Inspector General, the
Comptroller General of the United States (a/k/a the U.S. Government Accountability Office
or “GAO"), or their representatives access to the Project and its records for the purpose of
monitoring OWNER’s compliance with applicable requirements.
Progress and Performance Reports. OWNER shall submit periodic reports to CITY on the
progress and performance of the Project. CITY reserves the right to unilaterally alter,
supplement, or otherwise modify the frequency or content of required reports as needed to
maintain adequate oversight of the Project, address changes to HOME regulations, or to
address findings related to noncompliance by the Project. Initially, CITY may require reportsas follows:
1. Prior to the commencement of construction, OWNER shall report not less than quarterly
on progress toward commencement of construction. Quarterly reports will be due on the
15th of the month following the end of the prior quarter (e.g. by April 15th reports on the
first quarter are due). During the construction period, OWNER shall report monthly on
B.
C.
D
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DocuSign Envelope ID: 875F2108-56604AED-9622-AC92424ABF7F
progress, submit invoices being paid, and provide evidence of appropriate lien waivers to
CITY regardless of whether OWNER is requesting a disbursement from CITY during thatmonthI
2. OWNER shall report on the occupancy and financial status of the Project not less than
annually
a. Annual reports shall include a HOME Rental Project Compliance Report, utility
allowance documentation, an Affirmative Fair Housing Marketing Plan, Tenant
Selection Policy, and a copy of the Lease Agreement. Additionally, OWNER shall
submit copies of its annual project audit, prepared by an independent certified public
accountant, within one hundred-twenty (120) days of the end of its fiscal year.
b. All reports pertaining to leasing and occupancy shall include, but will not be limited
to, a statistical report reflecting the actual number of persons served, the types of
services provided and the actual number of persons receiving those services, and a
narrative description of assistance provided, in addition to the aforementioned
statistics, that includes a statement regarding the progress made toward meeting
performance goals.
Change in Reporting Requirements and Forms. CITY retains the right to change reporting
requirements and forms at its reasonable discretion. CITY will notify OWNER in writing at
least thirty (30) days prior to the effective date of such change, and the Parties shall execute
an amendment to the Agreement reflecting such change if necessary.
Recordkeeping and Inspections. OWNER shall maintain detailed records of all persons served
pursuant to this Agreement. Representatives of CITY, HUD, or their designees may examine
any records or information accumulated pursuant to this Agreement.
1. During the Affordability Period, CITY will conduct on-site inspections to verify compliance
with 24 CFR 92.252 as required by 24 CFR 504. All confidential information shall be treated
as such by all aforementioned CITY or HUD representatives or designees.
OWNER shall maintain administrative and financial records as required by 24 CFR 92.508,
applicable to the activities to be carried out under this agreement, including but not
necessarily limited to:
a. Property description and location
b. Records regarding project requirements that applies for the duration of the period of
affordability (all of 24 CFR Subpart F);
c. Documentation that the amount of investment in each housing unit is in compliance
with the requirements in 24 CFR 92.205(c) and maximum subsidy limits in 24 CFR92.250;
d. Information about contractors, vendors and other lenders to include but not
necessarily be limited to verification of non-debarment and suspension, verification
of qualifications and experience, legally binding contracts and agreements, invoices
and payment records and related correspondence. (See: 24 CFR Part 24);
e. Financial information including, but not necessarily limited to, audits and related
correspondence, accounting and financial records, indirect cost analyses, and
operating budgets;
2
E.
F
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Project records in accordance with 24 CFR 92.508(a)(3) that demonstrate that each
HOME assisted renter and each housing unit leased meets the requirements of the
HOME program.
f
g. Other Records that include documentation of compliance with other federal
requirements in accordance with 24 CFR 92.508 that includes the following
requirements to the extent applicable to the funded activity:
• Documentation of efforts to affirmatively further fair housing;
• if applicable, records documenting compliance with federal law regarding
displacement, relocation and property acquisition in accordance with the U RA;
Records demonstrating compliance with labor requirements set out in 24 CFR
92.354, including contract provisions and payroll records (as applicable);
Records concerning lead-based paint set out in 24 CFR Part 35;
Records supporting requests for waivers of the conflict of interest prohibition set
out in 24 CRF 92.356 (if applicable);
Records demonstrating compliance with flood insurance requirements under 24CFR 92.352.
Records related to any decision to terminate the lease of a tenant or refuse to renew the
lease of a tenant, including documentation of the specific lease violations leading totermination or non-renewal
Records Retention. OWNER shall retain all applicable administrative and project records and
records pertinent to other federal requirements, as specified in 24 CFR 92.508 of the HOME
Final Rule, for a period of five (5) years after the termination of all activities funded under this
agreement. In this context funded activities extend throughout the period of affordability as
stipulated in 24 CFR 92.252 and 92.508.
1. Records for non-expendable property acquired with HOME Funds shall be retained for
five (5) years after the period of affordability.
2. Notwithstanding the above, if there are litigation, claims, audits, negotiations or other
actions that involve any of the records cited and that have commenced before the
expiration of the five (5) year period, such records must be retained until completion of
the actions and resolution of all issues, or the expiration of the five (5) year period,whichever occurs later
Inspections. OWNER will provide CITY, applicable federal authorities, and their
representatives with access to the Project for the purposes of conducting physical
inspections, including individual apartments, common spaces, and the grounds. CITY will
conduct periodic physical inspections during construction to ensure the Project is progressing
and construction activity meets applicable property standards. After construction
completion, CITY will inspect the Project annually or on another schedule it determines to
ensure that the Project is being maintained in compliance with all appropriate propertystandards.
CITY Reserves the Right to Audit. CITY reserves the right to perform an audit of OWNER’s
project operations and finances at any time during the term of this Agreement and during the
HOME Affordability Period and for five (5) years thereafter, if CITY determines that such audit
is necessary for CITY’s compliance with the HOME Regulations or other CITY policies, and
•
•
•
•
3.
G
H.
I
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OWNER agrees to allow access to all pertinent materials as described herein. If such audit
reveals a questioned practice or expenditure, such questions must be resolved within fifteen
(15) business days after notice to OWNER of such questioned practice or expenditure. If
questions are not resolved within this period, CITY reserves the right to withhold further
funding under this and/or other Agreement(s) with OWNER. IF AS A RESULT OF ANY AUDIT
IT IS DETERMINED THAT OWNER HAS FALSIFIED ANY DOCUMENTATION OR MISUSED,MISAPPLIED OR MISAPPROPRIATED HOME FUNDS OR SPENT HOME FUNDS ON ANY
INELIGIBLE ACTIVITIES, OWNER AGREES TO REIMBURSE CITY THE AMOUNT OF SUCH IVIONIES
PLUS THE AMOUNT OF ANY SANCTIONS, PENALTY OR OTHER CHARGE LEVIED AGAINST CITYBY HUD BECAUSE OF SUCH ACTIONS.
SECTION 14. INSURANCE
A.
B.
OWNER shall observe sound business practices with respect to providing such bonding and
insurance as would provide adequate coverage for the activities performed and services
offered under this Agreement.
The Property on and in which the activities described in Attachments A and B are conducted,
and the employees conducting these activities, shall be covered by premise liability insurance,
commonly referred to as "Owner/Tenant" coverage, with CITY named as an additional
insured. Upon request of OWNER, CITY may, at its sole discretion, approve alternate
insurance coverage arrangements.
OWNER will comply with applicable workers' compensation statutes and will obtain
employers' liability coverage where available and other appropriate liability coverage for
program participants, if applicable.
OWNER will maintain adequate and continuous liability insurance on all vehicles owned,
leased or operated by OWNER. All employees of OWNER who are required to drive a vehicle
in the normal scope and course of their employment must possess a valid Texas driver's
license and automobile liability insurance. Evidence of the employees’ current possession ofa valid license and insurance must be maintained on a current basis in OWNER’s files.
Actual losses not covered by insurance as required by this Section 14 are not allowable costs
under this Agreement, and remain the sole responsibility of OWNER.
The policy or policies of insurance shall contain a clause which requires that CITY and OWNER
be notified in writing of any cancellation or change in the policy at least thirty (30) days prior
to such change or cancellation.
Insurance will be carried on all housing units under construction, including those beingrehabilitated hereunder.
C.
D.
E.
F.
G.
SECTION 15. EQUAL OPPORTUNITY
A. During the performance of this Agreement, the OWNER is subject to Executive Order 11246,
as amended, and, therefore, agrees to the following:
1. The OWNER will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, national origin, or familial status. The OWNER will
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DocuSign Envelope ID: 875F2108-5660-4AED-9622-AC92424ABF7F
take affirmative action to ensure that applicants who are employed are treated during
employment without regard to their race, color, religion, sex, national origin, or familial
status, concerning such employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or their apprenticeship. The
OWNER agrees to post in conspicuous places, available to both employees and applicantsfor employment, notices to be provided by the CITY setting forth provisions of thisnondiscrimination clause.
2. The OWNER, in all solicitations or advertisements for employees placed by national origin,
or familial status.
In accordance with Sections 24 CFR 92.350 and 92.351 of the HOME regulations, except for
specific exceptions allowing elderly designated projects to apply age restrictions, no person
shall on the ground of race, color, religion, sex, disability, familial status, national origin, or
age be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program activity funded in whole or in part from HOME Funds. In
addition, OWNER shall develop, operate, and maintain the Project in accordance with the
following:
B
1.The requirements of the Fair Housing Act (42 U.S.C. 3601-20) and implementing
regulations at 24 CFR Part 100; Executive Order 11063, as amended by Executive Order
12259 (3 CFR 1958 B1963 Comp., P. 652 and 3 CFR1980 Comp., P. 307) (Equal Opportunity
in Housing) and implementing regulations at 24 CFR Part 107; and of the Civil Rights Act
of 1964 (42 U.S. C. 2000d) (Nondiscrimination in Federally Assisted Programs) and
implementing regulations issued at 24 CFR Part 1;
The prohibitions against discrimination on the basis of age under the Age Discrimination
Act of 1975 (42 U.S.C. 6101-07) and implementing Regulations at 24 CFR Part 146, and
the prohibitions against discrimination against handicapped individuals under Section 504
of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR
Part 8;
The requirements of 24 CFR 5.105(a)(2) requiring that HUD-assisted housing be made
available without regard to actual or perceived sexual orientation, gender identity, or
marital status and prohibiting owners (or their agents) from inquiring about the sexual
orientation or gender identity of an applicant for, or occupant of, HUD-assisted housing
for the purpose of determining eligibility for the housing or otherwise making such
housing available. This prohibition on inquiries regarding sexual orientation or genderidentity does not prohibit any individual from voluntarily self-identifying sexual
orientation or gender identity;
The requirements of Executive Order 11246 (3 CFR 1964-65, Comp., p. 339) (Equal
Employment Opportunity) and the implementing regulations issued at 41 CFR Chapter 60;
The nondiscrimination requirements of section 282 of the HOME Investment Partnerships
Act at Title II of the Cranston-Gonzales National Affordable Housing Act, as amended;
The requirements of Section 3 of the Housing and Urban Development Act of 1968 (U.S.C.
1701u) as evidenced by submission of Form HUD-60002 which the OWNER shall complete
and return to CITY within ninety days of the date of this agreement, that:
2.
3.
4.
5
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a.To the greatest extent feasible, opportunities for training and employment arising inconnection with the planning and carrying out of any project assisted with HOME
Funds be given to low-income persons residing within the unit of general local
government or the metropolitan area as determined by HUD, in which the project is
located; and
To the greatest extent feasible, contracts for work to be performed in connection withany such project be awarded to business concerns, including but not limited to
individuals or firms doing business in the field of planning, consulting, design,
architecture, building construction, rehabilitation, maintenance, or repair, which are
located in or owned in substantial part by persons residing in the same metropolitan
area as the project.
• OWNER Responsibilities for Section 3 Requirements. CITY and OWNER understand
and agree that compliance with the provisions of Section 3, the regulations set
forth in 24 CFR Part 135, and all applicable rules and orders of HUD shall be a
condition of the federal financial assistance provided to the project binding upon
CITY and OWNER, and their respective successors, assigns, contractors and
subcontractors. Failure to fulfill these requirements shall subject OWNER and its
contractors and subcontractors and their respective successors and assigns to
those sanctions specified by the grant agreement through which federal
assistance is provided and to such sanctions as are specified by 24 CFR Part 135.
OWNER’s responsibilities include:
o Implementing procedures to notify Section 3 residents and business concerns
about training, employment, and contracting opportunities generated by
Section 3 covered assistance;
o Notifying potential contractors working on Section 3 covered projects of their
responsibilities;
o Facilitating the training and employment of Section 3 residents and the award
of contracts to Section 3 business concerns;
o Assisting and actively cooperating with the Neighborhood Services
Department in making contractors and subcontractors comply;
o Refraining from entering into contracts with contractors that are in violation
of Section 3 regulations;
o Documenting actions taken to comply with Section 3; and
o Submitting Section 3 Annual Summary Reports (form HUD-60002) inaccordance with 24 CFR Part 135.90.
• Section 3 Reporting Requirements. In order to comply with the Section 3
requirements, OWNER must submit the forms Section 3 Reporting Forms and take
the following actions:
o Report to the CITY all applicants for employment, and all applicants for
employment by contractors and any subcontractors on a quarterly basis. This
shall include name, address, zip code, date of application, and status
(hired/not-hired) as of the date of the report.
o Advertise available positions to the public for open competition and provide
documentation to CITY with the quarterly report that demonstrates such open
b
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advertisement, in the form of printout of Texas Workforce Commission
posting, copy of newspaper advertisement, copy of flyers and listing of
locations where flyers were distributed, and the like.
o Report to the CITY all contracts awarded by contractors and any
subcontractors on a quarterly basis. This shall include name of contractor
and/or subcontractor, address, zip code, and amount of award as of the date
of the report.
Subcontracting with Small and Minority Firms, Women’s Business Enterprises: The
requirements of Executive Orders 11625 and 12432 (concerning Minority Business
Enterprise), and 12138 (concerning Women's Business Enterprise) apply to this
Agreement. OWNER must make efforts to encourage the use of minority and women's
business enterprises in connection with HOME-funded activities. OWNER will cooperate
with CITY in its minority outreach program to ensure the inclusion, to the maximum
extent possible, of minorities and women, and entities owned by minorities and women,
in the procurement of property and services including; without limitation, real estate
firms, construction firms, financial institutions, investment banking firms, underwriters,
accountants, and providers of legal services.
a. In order to comply with the reporting requirements of 24 CFR Part 92.508 (a)(7)(ii),
OWNER must submit the form Contract and Subcontract Activity Reporting Form for
each contract or subcontract with a value of $10,000 or more paid, or to be paid, with
HOME Funds. This form shall be submitted with the final Reimbursement Request.
Non-discrimination. The nondiscrimination requirements of Section 282 of the HOME
Investment Partnerships Act at Title II of the Cranston-Gonzales National Affordable
Housing Act, as amended.
a. No Discrimination in Employment during the Performance of this Agreement. OWNER
agrees to post notices containing this policy against discrimination in conspicuQus
places available to applicants for employment and employees. All solicitations or
advertisements for employees, placed by or on the behalf of the OWNER, shall state
that all qualified applicants will receive consideration for employment without regard
to race, color, national origin, religion, or sex.
b. During the performance of this Agreement OWNER agrees to the following
provision, and will require that its contractors, subcontractors and vendors also
comply with such provision by including it in all contracts with its contractors andvendors:
• OWNER and OWNER’S procured contractors, subcontractors and vendors will
not unlawfully discriminate against any employee or applicants for
employment because of race, color, sex, gender, religion, national origin,
familial status, disability or perceived disability, sexual orientation, gender
identity, gender expression or transgender. OWNER will cause OWNER’s
contractors, subcontractors and vendors to take affirmative action to ensure
that applicants are hired without regard to race, color, sex, gender, religion,
national origin, familial status, disability or perceived disability, sexual
orientation, gender identity, gender expression or transgender and that
employees are treated fairly during employment without regard to their race,
6.
7
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color, sex, gender, religion, national origin, familial status, disability or
perceived disability, sexual orientation, gender identity, gender expression or
transgender. Such action shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of
compensation, and selection for training, including apprenticeship.
OWNER and the ADA. In accordance with the provisions of the Americans With Disabilities
Act of 1990 (“ADA"), OWNER warrants that it will not unlawfully discriminate on the basis
of disability in the provision of services to the general public, nor in the availability, terms
and/or conditions of employment for applicants for employment with, or employees ofOWNER. OWNER WARRANTS IT WILL FULLY COMPLY WITH ADA’S PROVISIONS AND ANY
OTHER APPLICABLE FEDERAL, STATE AND LOCAL LAWS CONCERNING DISABILITY AND
WILL DEFEND, INDEMNIFY AND HOLD CITY HARIVILESS AGAINST ANY CLAIMS OR
ALLEGATIONS ASSERTED BY THIRD PARTIES, CONTRACTORS, SUBCONTRACTORS OR
VENDORS AGAINST CITY ARISING OUT OF OWNER’S AND/OR ITS CONTRACTORS’,
SUBCONTRACTORS’, VENDORS’, AGENTS’ OR EMPLOYEES’ ALLEGED FAILURE TO COMPLYWITH THE ABOVE-REFERENCED LAWS CONCERNING DISABILITY DISCRIMINATION IN THE
PERFORIVIANCE OF THIS AGREEMENT.
8
SEcrION 16. colyFLlcr OF INTEREST AND VIOLATIONS OF CRIMINAL LAW
A.OWNER covenants that neither it nor any member of its governing body presently has any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of services required to be performed under this Agreement. OWNER further
covenants that in the performance of this Agreement, no person having such interest shall
be employed or appointed as a member of its governing body.
OWNER further covenants that no member of its governing body or its staff, OWNERs or
employees shall possess any interest in or use this position for a purpose that is or gives the
appearance of being motivated by desire for private gain for themselves, or others,
particularly those with which they have family, business, or other ties.
No officer, member, or employee of CITY and no member of its governing body who exercises
any function or responsibilities in the review or approval of the undertaking or carrying out
of this Agreement shall participate in any decision relating to the Agreement which affects
his/her personal interest or the interest in any corporation, partnership, or association in
which he/she has direct or indirect interest.
No officer, employee, agent, or consultant of OWNER (known as covered persons) may
occupy a HOME-assisted affordable housing unit in the Project. However, this provision does
not apply to an employee or agent of OWNER who occupies a housing unit in the Project as
a project manager or maintenance worker.
1. Notwithstanding, CITY may approve a waiver to allow a covered person to occupy a unit
in the Project based on a written request from OWNER if, in CITY’s sole discretion, a
waiver would be appropriate under the provisions of 24 CFR 92.356(f)(2).
2. While the conflict of interest provisions in 24 CFR 92.356 do not technically apply toOWNER’s procurement of goods and services associated with the development or
B.
C.
D
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operation of the Project, OWNER agrees to notify CITY in writing and seek CITY approval
prior to entering into any contract with an entity owned in whole or in part by a covered
person or an entity owned or controlled in whole or in part by OWNER, the General
Partner, any of the underlying individual OWNERs of the General Partner, or any of the
Guarantors. CITY will review the proposed contract to ensure that the contractor is
qualified and that the costs are reasonable. Approval of an identity of interest contractwill be in CITY’s sole discretion.
SECTION 17. POLITICAL OR SECrARiAN AcrlVITY
A.None of the performance rendered hereunder shall involve any political activity (including,
but not limited to, any activity to further the election or defeat of any candidate for public
office) or any activity undertaken to influence the passage, defeat or final content of
legislation.
None of the performance rendered hereunder shall involve or benefit in any manner any
sectarian or religious activity.
B.
SECTION 18. WARRANTIES
OWNER represents and warrants that:
A. All information, reports and data heretofore or hereafter requested by CITY and furnished to
CITY, are complete and accurate as of the date shown on the information, data, or report,
and, since that date, have not undergone any significant change without written notice to
CITY
B. Any supporting financial statements heretofore requested by CITY and furnished to that since
said date, there has been no material change, adverse or otherwise, in the financial conditionof OWNER.
C. No litigation or legal proceedings are presently pending or threatened against OWNER.
D. None of the provisions herein contravenes or is in conflict with the authority under which
OWNER is doing business or with the provisions of any existing indenture or agreement ofOWNER.
E. OWNER has the power to enter into this Agreement and accept payments hereunder, and
has taken all necessary action to authorize such acceptance under the terms and conditions
of this Agreement.
F. None of the assets of OWNER is subject to any lien or encumbrance of any character, except
for current taxes not delinquent, except as shown in the financial statements furnished byOWNER to CITY.
G. Each of these representations and warranties shall be continuing and shall be deemed to have
been repeated by the submission of each request for payment.
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SECTION 19. COVENANTS
A. OWNER agrees to take appropriate measures to enforce the affordability requirements on
property assisted with HOME Funds. Property liens or other forms of enforcement, with the
CITY as Trustee, must remain with the Property for the required affordability period.
B. During the period of time that payment may be made hereunder and so long as any payments
remain unliquidated, OWNER shall not, without the prior written consent of the CITY’s
Community Development Manager or his/her authorized representative:
(1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets
of OWNER now owned or hereafter acquired by it, or permit any pre-existing mortgages,
liens, or other encumbrances to remain on, or attached to, any assets of OWNER which
are allocated to the performance of this Agreement and with respect to which CITY has
ownership hereunder.
(2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims
for money due or to become due.
(3) Sell or convey all or a substantial part of any assets of OWNER which are allocated to the
performance of this Agreement.
(4) Make any advance or loan to, or incur any liability for any other firm, person, entity or
corporation as guarantor, surety, or accommodation endorser.
(5) Sell, donate, loan or transfer any equipment or item of personal property purchased with
funds paid to OWNER by CITY, unless CITY authorizes such transfer.
C. OWNER agrees, upon written request by CITY, to require its employees to attend training
sessions sponsored by Community Development.
SEcrioN 20. MONITORING AND EVALUATION
A.
B.
CITY shall perform on-site monitoring of OWNER’s performance under this Agreement.
OWNER understands and agrees that it will be subject to monitoring by CITY for compliance
with the HOME Regulations, the terms of this AGREEMENT and the Loan Documents during
the HOME Affordability Period. OWNER will provide reports and access to project files as
requested by CITY during the HOME Affordability Period and for five (5) years after it ends.OWNER agrees to cooperate fully with CITY in the development, implementation and
maintenance of record-keeping systems and to provide data determined by CITY to be
necessary for CITY to effectively fulfill its monitoring and evaluation responsibilities.
OWNER agrees to cooperate in such a way so as not to obstruct or delay CITY in such
monitoring and to designate one of its staff members to coordinate the monitoring process
as requested by CITY staff.
CITY shall provide a written evaluation of contract performance to the OWNER within thirty
(30) 30 days of the monitoring.
Within sixty (60) days of notification by the CITY, the OWNER shall provide complete
responses including a statement acknowledging any corrective action required to be taken
due to CITY’s monitoring findings and concerns.
OWNER shall submit copies of any fiscal, management, or audit reports by any of OWNER's
funding or regulatory bodies to CITY within five (5) working days of receipt by OWNER.
C.
D.
E.
F.
G
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H.Representatives of CITY, HUD, HUD Office of the Inspector General, and the United States
Comptroller General shall have access during regular business hours, upon at least forty-eight
(48) hours prior notice, to OWNER’s offices and records and to OWNER’s officers, employees
and agents that are related to the use of the HOME Funds and the requirements of the HOME
Regulations during the HOME Affordability Period, and to OWNER’s officers, agents,
employees, contractors, subcontractors and vendors for the purpose of such monitoring
In addition to other provisions of this Agreement regarding frequency of monitoring, CITY
reserves the right to perform desk reviews or on-site monitoring of OWNER’s compliance with
the terms and conditions of this Agreement and the HOME Forgivable Payment Loan. After
each monitoring visit, CITY shall provide OWNER with a written report of the monitor’s
findings. If the monitoring report notes deficiencies in OWNER’s performance, the report
shall include requirements for the timely correction of said deficiencies by OWNER. Failure
by OWNER to take the action specified in the monitoring report may be cause for suspension
or termination of this Agreement as provided herein, or CITY may take all actions allowed in
the Loan Documents.
OWNER shall annually provide to CITY the results of any state or federal monitoring related
to the project including any monitoring by the Texas Department of Housing and Community
Affairs (“TDHCA"). Such results shall be submitted annually to CITY with the submission of its
annual audit and financial statements.
This shall be applicable for the duration of the HOME Affordability Period and shall survive
the earlier termination or expiration of this Agreement.
1.
J.
K.
SECTION 21. DIRECTORS' MEETINGS
A.OWNER shall ensure that the CITY is notified of all meetings, regular and special called, of
OWNER’s Board of Directors. Notice should be received by the CITY at least seventy-two (72)
hours prior to the meeting. Such notice shall include an agenda and a brief description of thematters to be discussed.
OWNER understands and agrees that CITY representatives shall be afforded access to all of
the Board of Directors' meetings.
Minutes of all meetings of OWNER's Board of Directors shall be available to CITY within ten
(10) working days of approval.
B.
C.
SEcrioN 22. NEPOTISM
OWNER shall not employ in any paid capacity any person who is a member of the immediate
family of any person who is currently employed by OWNER or is a member of OWNER’s governing
board. The term "member of immediate family" includes: wife, husband, son, daughter, mother,
father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half-brother
and half-sister.
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SECTION 23. SUSPENSION OF FUNDING
A.Upon determination by CITY of OWNER's failure to timely and properly perform each of the
requirements, time conditions and duties provided herein, CITY, without limiting any rights it
may otherwise have, may, at its discretion, and upon ten (10) working days written notice to
OWNER, suspend or withhold further payments to OWNER. Such notice may be given by mail
to the Executive Officer and the Board of Directors of OWNER. The notice shall set forth the
default or failure alleged, and the action required for cure.
Without limiting any rights the CITY may otherwise have, the period of such suspension shall
be of such duration as is appropriate to accomplish corrective action, but in no event shall it
exceed thirty (30) days. At the end of the suspension period, if CITY determines the default
or deficiency has been satisfied, OWNER may be restored to full compliance status and paid
all eligible funds withheld or impounded during the suspension period. If, however, CITY
determines that OWNER has not come into compliance, this Agreement may be terminated
under Section 24 of this Agreement. Nothing in this Section 23 shall operate as a condition
to CITY’s right to terminate this Agreement in accordance with Section 24 or to otherwise
limit in any way CITY’s pursuit of any rights or remedies under this Agreement, at law or in
equity
B.
SEcrioN 24. TERMINATION
A.The CITY shall have the right to terminate this Agreement, in whole or in part, at any time
whenever the CITY determines that the OWNER has failed to comply with any of the terms or
conditions of this Agreement. The CITY shall notify the OWNER in writing thirty (30) days priorto the date of termination and the notice shall state the effective date of such termination
and, in the case of partial termination, the portion of the Agreement to be terminated.
The CITY shall have the right to terminate this Agreement for convenience, in whole or in part
by thirty (30) days prior written notification to the OWNER stating the effective date of the
termination and, in the case of partial termination, the portion to be terminated.
The OWNER shall have the right to terminate this Agreement for convenience, in whole or in
part, by thirty (30) days prior written notification to the CITY stating the effective date of the
termination and, in the case of partial termination, the portion to be terminated.
If, in the case of a partial termination, it is the determination of CITY that the remaining
portion of the funding under this Agreement is not sufficient to accomplish the Project asdescribed in the Work'Statement in Attachment B, the CITY may require that the entire
Agreement and funding be terminated.
Default. The actions noted in this Section below, or as provided elsewhere in this Agreement,
shall constitute an event of default (“Event of Default”) by OWNER hereunder. The CITY may
give written notice of default to the OWNER in accordance with the provisions of Section 27.
1. Failure to comply with the terms and conditions hereof;
2. Failure to comply with HOME Program regulations, fair housing laws, and other federal
requirements related to the Project;
3. A default by OWNER under any of the Loan Documents; and/or
B.
C.
D.
E
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Any event of fraud, misrepresentation, gross negligence, or willful misconduct by
OWNER in the execution or performance of this Agreement or in its participation in the
HOME Program.
4
Remedies. If the Event of Default remains uncured thirty (30) days after delivery of written
notice by CITY (or such other notice period as may be specified herein), or if OWNER hasdiligently and continuously attempted to cure following receipt of such written notice but
reasonably required more than thirty (30) calendar days to cure, as determined by both
Parties mutually and in good faith, CITY shall have the right to elect, in CITY’s sole discretion,
to (i) extend OWNER’s time to cure, (ii) terminate this AGREEMENT effective immediately
upon written notice of such intent to OWNER, or (iii) pursue all or any combination of the
following the remedies or any other remedies available to CITY at law or in equity:
1. Suspend reimbursement and/or disbursement of HOME Funds or withhold any further
payments to be made under this Agreement until such time as OWNER’s breach has been
cured in accordance with the terms and conditions of any cure period provided by CITY
(but CITY may, in its sole discretion, make disbursement after the occurrence of an Event
of Default without thereby waiving its rights and remedies hereunder);
Reprogram HOME Funds that have not yet been expended from affected activities to
other eligible activities;
Direct OWNER to prepare and follow a schedule of actions for carrying out the affected
activities, consisting of schedules, timetables and milestones necessary to implement the
affected activities, including extending the HOME Affordability Period;
Direct OWNER to establish and follow a management plan that assigns responsibilities for
carrying out the remedial activities;
Cancel or revise activities likely to be affected by the performance deficiency, before
expending HOME Funds for the activities;
Direct OWNER to reimburse CITY in any amount of HOME Funds not used in accordance
with the HOME Regulations;
Apply to any appropriate court, State or Federal, for specific performance, in whole or in
part, of the terms, conditions, covenants and/or agreements contained herein, or for an
injunction against any violation of such terms, conditions, covenants and/or agreements;
Enter upon the Property and take possession thereof, together with the Project then in
the course of construction, and proceed either in its own name or in the name of the
OWNER, as the attorney-in-fact of the OWNER (which authority is coupled with an
interest and is irrevocable by the OWNER), to complete or cause to be completed the
Project, at the cost and expense of the OWNER;
2
3
4
5
6
7
8
9. Require the use of or change in professional property management;
10. Pursue the appointment of a receiver to collect rents and profits or to take possession of
the Project;
11. Declare immediately due and payable all unpaid principal, accrued interest and annual
fees on the HOME Forgivable Payment Loan and/or Note, together with all other sumspayable thereunder and the same shall thereupon be immediately due and payable
without presentment or other demand, protest, notice of dishonor or any other notice of
any kind, all of which are hereby expressly waived;
F
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12. Apply sanctions set forth in 24 CFR 92, if determined by CITY to be applicable;
13. Take or seek any other appropriate action including, but not limited to, any remedial
action legally available such as declaratory judgment, specific performance, breach of
contract, temporary or permanent injunctions and/or any other available remedies;
14. Apply to any appropriate court, State or Federal, for such other relief as may be
appropriate and allowed by law, since the injury to CITY arising from a default under any
of the terms of this Agreement would be irreparable and the amount of damage wouldbe difficult to ascertain; and
15. Terminate this Agreement or any other agreements with OWNER by giving written notice
to OWNER of such termination and specifying the effective date of such termination. If
the Agreement is terminated by CITY as provided herein, OWNER shall have no claim of
payment or claim of benefit for any incomplete Project activities undertaken under this
Agreement. Any delay by CITY in exercising any right or remedy provided herein or
otherwise afforded by law or equity shall not be a waiver of or preclude the exercise of
such right or remedy. All such rights and remedies shall be distinct and cumulative and
may be exercised singly, serially (in any order) or concurrently, and as often as the
occasion therefore arises. In the event of any termination under Section 24 of this
Agreement, all HOME Funds awarded but unpaid to OWNER pursuant to this Agreement
shall be immediately rescinded and OWNER shall have no further right to such funds and
any HOME Funds already paid to OWNER must be repaid to CITY within 30 days of
termination. Failure to repay such HOME Funds will result in CITY exercising all legalremedies available to CITY under this Agreement or the Loan Documents. OWNERACKNOWLEDGES AND AGREES THAT IF CITY TERIVIINATES THIS AGREEMENT FOR AN
EVENT OF DEFAULT, NEITHER OWNER NOR ANY AFFILIATES OF OWNER SHALL BE
CONSIDERED FOR ANY OTHER CITY CONTRACT, GRANT OR AWARD FOR HOME FUNDS
FOR A MINIMUM OF 5 YEARS FROM THE DATE OF TERMINATION
Failure to Submit Required Reports and Documentation During HOME Affordability Period. If
OWNER fails to maintain all records and documentation as required in Section 12, or fails to
submit any report or documentation required by this Agreement after the Required
Improvements are completed, or if the submitted report or documentation is not in
compliance with this Agreement or the HOME Regulations as determined by CITY, CITY will
notify OWNER in writing and the OWNER will have thirty (30) days from the date of the
written notice to obtain or recreate the missing records or documentation, or submit or
resubmit any such report or documentation to CITY. If OWNER fails to maintain the required
reports or documentation, or submit or resubmit any such report or documentation within
such time, CITY shall have the right to terminate this AGREEMENT effective immediately upon
written notice of such termination with no penalty or liability to CITY. In the event of
termination under this Section 24.G, any HOME Funds paid to OWNER must be repaid to CITY
within 30 days of termination. Failure to repay such HOME Funds will result in CITY exercising
all legal remedies available to CITY under this Agreement and/or the Loan Documents.
No Funds Disbursed while in Breach. OWNER understands and agrees that no HOME Funds
will be paid to OWNER until all Events of Default are cured to CITY’s satisfaction.
No Compensation After Date of Termination. In the event of termination, OWNER shall not
receive any HOME Funds in compensation for work undertaken after the date of termination.
G.
H
I
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Rights of CITY Not Affected. Termination shall not affect or terminate any of the existing rights
of CITY against OWNER, or which may thereafter accrue because of an Event of Default, and
this provision shall be in addition to any and all other rights and remedies available to CITY
under the law, this Agreement or the Loan Documents including, but not limited to,
compelling OWNER to complete the Required Improvements in accordance with the terms of
this Agreement. Such termination does not terminate any applicable provisions of this
Agreement that have been expressly noted as surviving the expiration or termination of this
Agreement. No delay or omission by CITY in exercising any right or remedy available to it
under this Agreement shall impair any such right or remedy or constitute a waiver or
acquiescence in any OWNER default.
J
K. Civil, Criminal and Administrative Penalties. Failure by OWNER to perform in accordance with
all of the terms and conditions of this Agreement may result in civil, criminal or administrative
penalties, including, but not limited to those set out in this Agreement.
Termination for Cause by OWNER. OWNER may terminate this AGREEMENT if CITY does notprovide the HOME Funds substantially in accordance with this AGREEMENT. In such event, the
termination of the Contract shall have the effect of returning the Parties to their respective
circumstances as existed prior to the execution of this AGREEMENT, and no terms or obligations shall
survive the date of termination, including but not limited to, reporting, inspections or the HOME
Affordability Period.
L
M. Dissolution of OWNER Terminates Contract. In the event OWNER is dissolved or ceases to
exist, this Agreement shall terminate. In the event of termination under this Section, all
HOME Funds are subject to repayment and/or CITY may exercise any or all of its remedies
under this AGREEMENT and/or the Loan Documents.
N. Reversion of Assets. In the event this Agreement is terminated by OWNER without cause, al
tangible personal property owned by OWNER that was acquired or improved with the HOME
Funds shall belong to CITY and shall automatically transfer to CITY or to such assignees as CITY
may designate.
O. Notice to Investor of Default. CITY shall furnish Investor with notice of any default under thisAGREEMENT at the address shown below.
SECTION 25. INDEMNIFICATION
A.It is expressly understood and agreed by both parties hereto that CITY is contracting with
OWNER as an independent owner, and that as such, OWNER shall save and hold CITY and
CITY’s officers, agents, elected and appointed officials, and employees harmless from all
liability of any nature or kind, including costs and expenses for, or on account of, any claims,
audit exceptions, demands, suits or damages of any kind or character whatsoever resulting
in whole or in part from the performance, act or omission of OWNER or of any employee,
agent or representative of OWNER.
OWNER agrees to provide the defense for, and to indemnify and hold harmless CITY and
CITY’s agents, elected and appointed officials, employees from any and all claims, suits,
causes of action, demands, damages, losses, attorneys’ fees, expenses, and liability arising
out of the use of these contracted funds, program administration, and implementation
B
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except to the extent caused by the willful act or omission of CITY, its officers, agents, or
employees.
OWNER hereby agrees to reimburse, indemnify and save and hold CITY and CITY’s successors
and assigns harmless from and against any damage, liability, loss, penalty, charge, cost or
deficiency, including but not limited to any repayment obligation to HUD incurred by CITY
under 24 CFR 92.503(b), reasonable attorneys’ fees, and other costs and expenses incident
to monitoring, remedial actions, proceedings or investigations and the defense of any claim,
arising out of, resulting from, or related to, and to pay to CITY or its successor in interest, on
demand, the full amount of any sum which CITY or its successor has paid or becomes
obligated to pay on account of:
1. Any misrepresentation, omission, or the breach of any representation or warranty of the
OWNER made in, under, or in connection with the Loan Documents;
Any failure of the OWNER to fully perform or observe, or to cause to be performed or
observed, any term, provision, covenant, or agreement to be performed or observed by
the OWNER, or after an assumption, by a subsequent owner, pursuant to the LoanDocuments;
Any claims, assessments, or liabilities for charges, penalties, liens, taxes, or deficiencies
arising from or relating to the use and operation by the OWNER, or after an assumption,
OWNER’s successors to the Property or the Project; or
The manufacture, generation, storage, use, treatment, transportation, or disposal of solid
waste, or any toxic or hazardous materials, substances, or pollutants either directly orindirectly by the OWNER or any of OWNER’s past or present affiliates on the Property
described on Attachment A, which occurs prior to possession passing from the OWNER
pursuant to a Sheriff’s Deed upon completion of a foreclosure or upon acceptance of aDeed in Lieu of Foreclosure
2
3
4
The provisions of this section shall survive the termination of this HOME Agreement, the term
or termination of the Loan Documents, the payment or forgiveness of the HOME Forgivable
Payment Loan, and the liabilities and the exercise of any right or remedy under the Loan
Documents.
C.
D.
SECTION 26. IMMIGRATION NATIONALITY ACT.
CITY actively supports the Immigration & Nationality Act (INA) which includes provisions
addressing employment eligibility, employment verification, and nondiscrimination. OWNER
shall verify the identity and employment eligibility of all employees who perform work under this
Agreement. OWNER shall complete the Employment Eligibility Verification Form (1-9), maintain
photocopies of all supporting employment eligibility and identity documentation for all
employees, and upon request, provide CITY with copies of all 1-9 forms and supporting eligibility
documentation for each employee who performs work under this Agreement. OWNER shall
establish appropriate procedures and controls so that no services will be performed by any
employee who is not legally eligible to perform such services. OWNER shall provide CITY with a
certification letter that it has complied with the verification requirements required by this
Agreement. OWNER shall indemnify CITY from any penalties or liabilities due to violations of this
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provision. CITY shall have the right to immediately terminate this Agreement for violations of this
provision by OWNER.
SEcrioN 27. NOTICE
For purposes of this Agreement, all official communications and notices among the parties shall
be in writing, delivered by hand delivery, overnight mail service or by United States Mail, and
shall be deemed to be delivered and received, upon the earlier to occur of (a) the date delivered
if provided by hand delivery or overnight mail service, and (b) the date of the deposit in a regularlymaintained receptacle for the United States Mail, registered or certified, return receipt
requested, postage prepaid, addressed to the parties as set forth below:
TO CITY:
City Manager
City of Denton
215 E. McKinney
Denton, Texas 76201
TO OWNER:
Executive Director,
Denton Affordable Housing Corp1104 Dallas Drive #229
Denton, Texas 76205
w/ a copy to:
City Attorney
215 E. McKinney
Denton, Texas 76201
SEcrioN 28. VENUE
This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue
of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in
Denton County, Texas.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date firstwritten above.
CITY OF DENTON DENTON AFFORDABLE HOUSING CORP.
BY: r-'’""'W"‘
[raF"ifas\-=-•=12qAF23C3ASA+25PAT THOMAS, PRESIDENTSARA HENSLEY, CITY
ArrEST:ArrEST:
BY:
,D''':"#-'d IVI/iaa:\-----D£T313-*0762F+$7.BOARD SECRETARY
DENTON AFFORDABLE HOUSING CORP.ROSA RIOS, CITY SECRETARY
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APPROVED AS TO LEGAL FORIVI
MACK REINWAND, CITY ATrORNEY
THIS AGREEMENT HAS BEEN BOTH REVIEWED
gighaia ri
AND APPROVED as to financial and
operational obligations and business terms.
Director of Community Services
Title
Community Services
Date Signed: 6/29/2022
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ATrACHMENT A
WORK STATEMENT
Description of improvements: HOME Funds of $100,000.00 will be used to pay costs associated
with improvements to rehabilitate five (5) rental units at 400 Coronado Drive, Denton, Texas
76209. The following improvements will be completed, based on cost and funding availability
(the “Required Improvements”):
400 Coronado #1
1. Attic Stair
2. Bathrooms Rehab: Replace Commode, Vinyl Floor, Faucet, Light Fixtures, Shower Faucet, Shower
Head, Refinish Cabinets
3. Electrical: Smoke Detector & Combo Smoke/Carbon Monoxide Detector, Outlet
4. Painting Exterior Doors
5. Replace Retaining Wall6. ExteriorVacuum Breaker
7. Replace Flooring Vinyl Plank & Carpet
8. HVAC Repairs
9. Kitchen Rehab: Refinish Cabinets, Countertop, Appliances: Vent-A-Hood, Oven/Range, Energy Star:
Refrigerator, Dishwasher
10. Water Heater Flood Stop
400 Coronado #2
1. Bathrooms Rehab: Replace Commode, Vinyl Floor, Faucet, Light Fixtures, Shower Faucet, Shower
Head,
Electrical: Smoke Detector & Combo Smoke/Carbon Monoxide Detector, Outlets
Replace Retaining Wall
HVAC Repairs
Replace Flooring Vinyl Plank & Carpet
Kitchen Rehab: Countertop, Appliances: Vent-A-Hood, Oven/Range, Energy Star: Refrigerator,Dishwasher
Replace Water Heater
2
3
4
5
6
7
400 Coronado #3
1. Bathrooms Rehab: Replace Commode, Vinyl Floor, Faucets, Light Fixtures, Shower Faucet, Shower
Head
Electrical: Smoke Detector & Combo Smoke/Carbon Monoxide Detector, Outlets, Ceiling Fans
Replace Retaining Wall
2
3
HVAC Repairs4
Replace Flooring Vinyl Plank & Carpet
Paint Handrail
5
6
Kitchen Rehab: Countertop, Appliances: Vent-A-Hood, Oven/Range, Energy Star: Refrigerator,Dishwasher
7
400 Coronado #4
1. Bathrooms Rehab: Replace Commodes, Faucets, Light Fixtures, Shower Faucets, Shower Heads,
43
DocuSign Envelope ID: 875F2108-56604AED-9622-AC92424ABF7F
2.
3
4
5
6.
Electrical: Replace Dining Room Light Fixture, Smoke Detector & Combo Smoke/Carbon Monoxide
Detector, Outlet
HVAC Repairs & Replacements
Replace Carpet Flooring
Paint stair handrail & repair stair treadKitchen Rehab: Countertop, Appliances: Vent-A-Hood, Oven/Range, Energy Star: Refrigerator,
Dishwasher
400 Coronado #5
1. Bathrooms Rehab: Replace Commode, Vinyl Floor, Faucet, Light Fixtures, Shower Faucet, Shower
Head, Refinish Cabinets
2. Electrical: Smoke Detector & Combo Smoke/Carbon Monoxide Detector, Outlets
3. Replace Retaining Wall4. Paint Interior
5. Replace Carpet Flooring
6. HVAC Repairs & Replacement
7. Kitchen Rehab: Refinish Cabinets, Countertop, Appliances: Vent-A-Hood, Oven/Range, Energy Star:
Refrigerator, Dishwasher
8. Replace Water Heater & Flood Stop
The actual costs will be based on the bids received and awarded by Denton Affordable Housing
Corporation (DAHC). Actual costs over the $100,000 will be paid by DAHC. If needed, cosmetic items will
be removed from the work to be completed.
Construction Schedule: The construction schedule approved pursuant to Section 8.A of this Agreement,
provided that the Project will be completed by no later than August 30, 2023.
44
DocuSign Envelope ID: 875F2108-5660-4AED-9622-AC92424ABF7F
ATrACHMENT B
HOME FUNDS BUDGET
Construction costs: One Hundred Thousand Dollars and No Cents ($100,000.00) of 2021-22
HOME Investment Partnership Program funds.
Please note: if other funding sources and improvements are included in this project, prior to the
start of construction, OWNER shall provide the Community Development Manager with a total
project budget, documentation of all funding sources and commitments, and a project plan.
45
DocuSign Envelope ID: 875F2108-5660-4AED-9622-AC92424ABF7F
ATrACHIVIENT C
HOME Investment Partnerships Program
LEASE ADDENDUM
This lease addendum adds the following paragraphs to the lease between a tenant and an
owner of rental housing assisted with HOME Investment Partnerships Program (HOME) funds,
as specified under HOME Federal HUD Regulations 24 CFR 92.
Conflict with Other Provisions of the Lease. In case of any conflict between the provisions of
this Addendum and other sections of the Lease, the provisions of this Addendum shall prevail.
A. Lead Paint Disclosure. For property built prior to January 1, 1978, owner shall provide
tenant with an EPA approved lead hazard information booklet and execute the Lead Based
Paint Acknowledgement Disclosure form.
B. Lease. The lease between a tenant and an owner of rental housing assisted with HOME
Funds must be for not less than one year, unless by mutual agreement between the tenantand the owner.
C. Prohibited Lease Terms. The lease may NOT contain any of the following provisions:
(1) Agreement to be sued. Agreement by the tenant to be sued, to admit guilt, or to a
judgment in favor of the owner in a lawsuit brought in connection with the lease;
(2) Treatment of property. Agreement by the tenant that the owner may take, hold, or seI
personal property of household members without notice to the tenant and a court
decision on the rights of the parties. This prohibition, however, does not apply to an
agreement by the tenant concerning disposition of personal property remaining in the
housing unit after the tenant has moved out of the unit. The owner may dispose of this
personal property in accordance with State law;
(3) Excusing owner from responsibility. Agreement by the tenant not to hold the owner or
the owner’s agents legally responsible for any action or failure to act, whether
intentional or negligent;
(4) Waiver of notice. Agreement of the tenant that the owner may institute a lawsuit
without notice to the tenant;
(5) Waiver of legal proceedings. Agreement by the tenant that the owner may evict the
tenant or household members without instituting a civil court proceeding in which the
tenant has the opportunity to present a defense, or before a court decision on the
rights of the parties;
(6) Waiver of a jury trial. Agreement by the tenant to waive any right to a trial by jury;
(7) Waiver of right to appeal court decision. Agreement by the tenant to waive the tenant's
right to appeal, or to otherwise challenge in court, a court decision in connection withthe lease; and
(8) Tenant chargeable with cost of legal action regardless of outcome. Agreement bY the
tenant to pay attorney’s fees or other legal costs even if the tenant wins in a court
proceeding by the owner against the tenant. The tenant, however, may be obligated to
pay costs if the tenant loses.
(9) Mandatory supportive services. Agreement by the tenant (other than a tenant in
transitional housing) to accept supportive services that are offered.
D. Termination of Tenancy. An owner may not terminate the tenancy or refuse to renew the
lease of a tenant of rental housing assisted with HOME Funds except for serious or repeated
46
DocuSign Envelope ID: 875F2108-56604AED-9622-AC92424ABF7F
violation of the terms and conditions of the lease; for violation of applicable Federal, State,
or local law; for completion of the tenancy period for transitional housing; or for other good
cause. To terminate or refuse to renew tenancy, the owner must serve written notice upon
the tenant specifying the grounds for the action at least 30 days before the termination of
tenancy.
Annual Income Review. During the duration of lease the tenant agrees to cooperate with
the required recertification of annual household income determination process and sign a
release of information form. Owner may terminate the lease or refuse to renew the lease
for failure to cooperate, if the tenant does not respond within thirty days of the initial
notification to recertify. Providing false information and/or failure to cooperate is a
violation of the lease and can result in termination of the lease.
Tenant Income and Rent Restrictions. Owner and tenant acknowledge that as a participant
in the HOME program the rents charged by the Owners are subject to the HOME Rent
Limits. Should a tenant’s household income exceed the applicable HOME limits their rent
will be increased according to the HOME regulations.
Inspection. Owner retains the right to permit City of Denton Community Development and
the Department of Housing and Urban Development (HUD), to inspect HOME-assisted units
during the affordability period. Tenants must receive at least twenty-four (24) hour notice
for inspections.
Housing Standards. Owner agrees to maintain the building and premises in compliance with
all applicable building and/or occupancy codes of the City of Denton. Furthermore, building
and premises must comply with HUD Housing Quality Standards or additional standards as
adopted by the City of Denton.
Fair Housing and Non-Discrimination. The Fair Housing act prohibits discrimination in
housing upon the basis of Race, Color, National Origin, Disability, Sex, Religion, and FamilialStatus
E.
F.
G.
H.
1.
Owner or authorized representative and tenant(s) have reviewed the above information and
agree to the terms of this Lease Addendum and hereby acknowledge the receipt of a signed
and dated copy hereof.
Owner/Agency Date Tenant Date
Tenant Date
Tenant
Tenant
Date
Date
47
[k>cuSign
Certificate Of Completion
Envelope Id: 875F210856604AED9622AC92424ABF7F
Subject: Please review and Sign the DocuSign: 22-XXXX DAHC-CHDO-2021
Source Envelope:
Document Pages: 47
Certificate Pages: 5AutoNav: Enabled
Envelopeld Stamping: Enabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
Status: Completed
HOME CORONADO - AGREEMENT.pdf
Signatures: 4
Initials: 0
Envelope Originator:
Lauri Nack
901 B Texas Street
Denton, TX 76209
Lauri.Nack@cityafdenton.com
IP Address: 198.49.140.10
Record Tracking
Status: Original
6/28/2022 4:01 :30 PM
Holder: Lauri Nack
Lauri.Nack@cityofdenton.com
Location: DocuSign
Signer Events
Scott Bray
Scott.Bray@cityofdenton.com
Security Level: Email. Account Authentication(None)
Signature Timestamp
Sent: 6/28/2022 4:22:21 PM
Viewed : 6/29/2022 11:10:49 AM
Signed: 6/29/2022 11:12:07 AM
Signature Adoption: Uploaded Signature Image
Signed by link sent to Scott.Bray@cityofdenton.com
Using IP Address: 198.49.140.10
Electronic Record and Signature Disclosure:Accepted: 6/29/2022 1 1:10:49 AMID: e5326528-b02f-49f9-8df9-73568ed28c24
Danielle Shaw
Danielle.Shaw@cityofdenton.com
Director of Community Services
Security Level: Email, Account Authentication(None)
Sent: 6/29/2022 1 1:12:09 AM
Viewed: 6/29/2022 12:33:40 PM
Signed: 6/29/2022 12:33:48 PM
Signature Adoption: Pre-selected Style
Signed by link sent to
Danielle.Shaw@cityafdenton.com
Using IP Address: 198.49.140.10
Electronic Record and Signature Disclosure:Accepted: 6/29/2022 12:33:40 PMID: 7d59o442-dld3-4f95-b778-ldca50478060
Pat Thomas
Cpthomas525@gmail.com
Security Level: Email, Account Authentication(None)
/DoaBIWd br1 rd AAas Sent: 6/29/2022 12:33:51 PM
Viewed: 6/29/2022 5:33:11 PM
Signed: 6/29/2022 5:38:32 PM
Signature Adoption: Pre-selected Style
Signed by link sent to Cpthomas525@gmail.com
Using IP Address: 174.197.78.90
Signed using mobile
Electronic Record and Signature Disclosure:Accepted: 6/29/2022 5:33:11 PMID: beb06c36-e056-4bf0-8bd0-ac9ca03d6951
Signer Events
Daniel Abasolo
dabasolo@gmail.com
Security Level: Email, Account Authentication(None)
Signature Timestamp
Sent: 6/29/2022 5:38:33 PM
Viewed : 6/30/2022 11 :26:27 PM
Signed: 6/30/2022 11 :26:51 PM
a:b,DE731310762F4$7
Signature Adoption: Drawn on Device
Signed by link sent to dabasolo@gmail.com
Using IP Address: 47.186.219.30
Signed using mobile
Electronic Record and Signature Disclosure:Accepted : 6/30/2022 11 :26:27 PMID: b2f8252c4bc7-4ff8-a658-026d6aa99aed
In Person Signer Events Signature
Status
Timestamp
Editor Delivery Events Timestamp
Agent Delivery Events Status
Status
Timestamp
Intermediary Delivery Events
Lauri Nack
lauri.nack@cityofdenton.com
City of Denton - Community Services
Security Level: Email, Account Authentication(None)
Timestamp
Sent: 6/29/2022 12:33:49 PM
Viewed: 6/29/2022 1:18:44 PM
Completed: 6/30/2022 11 :26:53 PM
Using IP Address: 198.49.140.10
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Certified Delivery Events Status
Status
Timestamp
Carbon Copy Events
Lauri Nack
lauri.nack@cityofdenton.com
City of Denton - Community Services
Security Level: Email, Account Authentication(None)
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Timestamp
Sent: 6/30/2022 1 1 :26:53 PM
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events
Envelope Sent
Certified Delivered
Signing Complete
Completed
Status Timestamps
6/28/2022 4:22:21 PM
6/30/2022 1 1 :26:27 PM
6/30/2022 1 1 :26:51 PM
6/30/2022 1 1 :26:53 PM
Hashed/Encrypted
Security Checked
Security Checked
Security Checked
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM
Parties agreed to: Scott Bray, Danielle Shaw, Pat Thomas, Daniel Abasolo
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