23-1380ORDINANCE NO. 23-1380
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO
EXECUTE A FUNDING AGREEMENT BETWEEN THE CITY OF DENTON AND HABITAT
FOR HUMANITY OF DENTON COUNTY, [NC. TO PROVIDE HOME INVESTMENT
PARTNERSHIP PROGRAM FUNDS FOR THE NEW CONSTRUCTION OF FOUR (4)
HOMEBUYER UNITS LOCATED AT HABITAT VILLAGE (LOCATED IN SOUTHEAST
DENTON BETWEEN DUNCAN ST. AND HILL ST. AND ALONG SMITH ST.), DENTON,
TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS IN AN AMOUNT NOT TO
EXCEED $309,350.93; AND PROVIDING 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 2023 Action Plan for Housing and Community
Development which adopts an authorized budget expenditure of 2023 HOME Investment
Partnership Program funds; and
WHEREAS, the 2023 Action Plan includes funding allocated for a Habitat for Humanity
of Denton County, Inc. project provided for the new construction of four homebuyer units located
at Habitat Village (Located in Southeast Denton between Duncan St. and Hill St. and along Smith
St.), Denton, Texas (the “Project”) with an authorized budget of $309,350.93; and
WHEREAS, Habitat for Humanity of Denton County, Inc. 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 with Habitat
for Humanity of Denton County, Inc. 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 $309,350.93 in the manner specified in the Agreement, and to take any other actions 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.
Page 1
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval .
The motion to approve this ordinance was made by BfA.., ) ,A Chose hcGte and
seconded by avI Fl $1+u/ . The ordinance was passed and approved by
the following vote LZ -1] :
Aye
J
.,/
L/
,/
,'/
./
a
Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck, District 2:
Paul Meltzer. District 3:
Joe Holland, District 4:
Brandon Chase McGee, At Large Place 5 :
Chris Watts, At Large Place 6:
PASSED AND APPROVED thi, th, IOt- d,y ,f CL,.,,y _, 2024.
aiR–rmrNRt–Ol
ATTEST:
JESUS SALAZAR CITY SECRETARY L\\\\ tIll IIII
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
BY: a%Scott Bray
2024.02.06
16:28:03 -06'OO’
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
AGREEMENT BETWEEN THE CITY OF DENTON
AND HABITAT FOR HUMANITY OF DENTON COUNTY, INC.
This HOME Agreement (“AGREEMENT”) is made and entered into by and between the City of
Denton, a Texas municipal corporation ("CITY"), acting by and through its City Manager,
pursuant to ordinance, and Habitat For Humanity of Denton County, Inc., a Texas non-profit
corporation, ("DEVELOPER"), acting by and through the Executive Director on this the 20
day of February , 2024.
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 (the Act);
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 the department of Community Development as the City
Department responsible for the administration of this Agreement and all matters pertaining thereto;
and
WHEREAS, DEVELOPER proposes to use HOME funds for an eligible project under the HOME
Regulations whereby DEVELOPER will develop and sell four (4) affordable single-family units
in Denton, Texas, to be known as Habitat Village, in the City of Denton; and
WHEREAS, the CITY has approved a deferred loan to DEVELOPER to carry out the Project as
specified in this agreement, subject to the terms specified herein below; and
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.
A. Project Description
The Project comprises the construction and sale of four (4) affordable single-family units in
Denton, Texas, to be known as Habitat Village, Denton, Texas (sometimes referred to herein
as the “Property”), more particularly described as Lots 10, 1 1, 12, 13 Block B of the HABITAT
VILLAGE ADDITION, Denton, Texas. DEVELOPER shall complete the Project in
accordance with the specifications and schedule set forth in the Scope of Services attached
hereto as Exhibit A and the Budget attached hereto as Exhibit B.
B. Tasks and Schedule
To ensure that the Project progresses adequately toward completion, DEVELOPER must
achieve the following benchmarks.
1. Final Plans and Specifications: No later than February 29, 2024 and prior to initiating
construction activity, DEVELOPER must provide evidence to CITY that all Code and
Physical Requirements will be met as provided in Section 7 of this agreement.
2. Construction: Unless otherwise extended by CITY, DEVELOPER must begin
construction on the Project no later than July 1, 2024 and substantially complete
1
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
construction within twenty (24) months. Per the requirements of 24 CFR 92.2, in any event
DEVELOPER must begin construction no later than twelve (12) months from the date of
execution of AGREEMENT (See Exhibit A, Scope of Services).
3.Cost Certification: Within one hundred-twenty (120) days of completing construction,
DEVELOPER must provide a cost certification prepared by an independent certified public
accountant outlining the final sources and uses of all funds or a summary and backup of
bids
4.Completion Report: Prior to final disbursement of funds, DEVELOPER 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 AGREEMENT, CITY may cancel its commitment of funding, and the DEVELOPER
shall repay any HOME funds previously provided for the Project. In any case, if the Project
is not completed in HUD’s IDIS system within four years of the date of 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 DEVELOPER to the CITY.
C. Budget
1.HOME Investment: Conditioned upon the availability of HOME Program Funds, and
DEVELOPER’s compliance with the conditions set out herein, CITY intends to provide
up to $309,350.93 in HOME funds to DEVELOPER toward eligible project costs. In no
case will CITY’s funding of the Project be less 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 (Amounts are effective 7/ 1/2019) :
(a) 0-bedroom units are $153,314; and
(b) 1-bedroom units are $175,752; and
(c) 2-bedroom units are $213,718; and
(d) 3-bedroom units are $276,482; and
(e) 4-bedroom+ units are $303,490.
2. TERM
The term of AGREEMENT shall begin on the date represented by the date of the last signature of
either party executing AGREEMENT and shall expire upon completion of both the HOME
Affordability Period and Extended Use Period, as those terms are defined below.
This AGREEMENT shall terminate on February 28, 2026, unless sooner terminated because
funding is no longer available or in accordance with Section 23. “Termination”. The City shall
have the right, but not the obligation, to extend the term of this agreement for two (2) additional
one-year periods.
The HOME Affordability Period, and the Deed of Trust as outlined in section 5.A.4, shall continue
irrespective of any payment/payoff of the HOME Deferred Payment Loan. 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.
2
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
HOME Investment PeriodPartnership Program Affordabili
Length of Compliance /HOME Investment Per
Unit Affordabilt Period
Less than $15,000 5 years
10 years$15,000 - $40,000
15 years$40,000+
HOME Activity
Homebuyer+ and Rental housing
acquisition and/or rehabilitation
New construction of rental
housin
Refinancing of rental housin=
20 years
15 years
A.HOME Affordability Period: DEVELOPER and its successors in interest shall ensure
that any HOME-assisted units are sold to and continue to be owned by persons with
qualifying incomes for the entire HOME Affordability Period, which shall begin with
initial occupancy of the Project and shall run for fifteen (15) years following the date on
which the Project has met the requirements for Project Completion outlined in 24 CFR 92.2
and this Agreement. DEVELOPER and its successors in interest must maintain compliance
with this Agreement and all applicable HOME rules for the entirety of the HOME
Affordability Period.
Establishment of Affordability Completion: Upon entering all required information in
HUD’s IDIS system, CITY will notify DEVELOPER 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, DEVELOPER
shall execute an amendment to the Covenant Running with the Land identifying the exact
dates of expiration of the HOME Affordability Period and Extended Use Period.
Extension of Agreement: Request for an extension must be in writing and is to be
submitted to CITY’s department of Community Development, 401 N. Elm Street, Denton
TX 76201
B.
C.
D.Security during Affordability Period: DEVELOPER shall ensure that purchasers of
HOME-assisted units comply with the terms of this Agreement by requiring purchasers
execute a promissory note and deed of trust or deed restrictions, as appropriate, which
secure compliance with all applicable HOME Program requirements and relevant portions
of this Agreement during the HOME Affordability Period. DEVELOPER shall act in a
timely manner to enforce the terms of this Agreement as incorporated in any deed of trust
or deed restrictions pursuant to this section
Annual review of eligibility. DEVELOPER shall take full responsibility for ensuring that
housing it has assisted with HOME funds meets the affordability and resale requirements
of 24 CFR 92.254 as applicable and shall repay the forgivable loan amount in full pursuant
to Section 21 of this Agreement if any of the HOME-assisted units does not meet the
affordability requirements of this section. The DEVELOPER must provide CITY with this
information within thirty (30) days of the completion of each review. These annual reviews
and reports shall be completed for the entirety of the Affordability Period.
Homebuyer compliance with housing quality standards and codes. DEVELOPER shall
require all homeowners of housing assisted with HOME funds to maintain the housing in
compliance with applicable Housing Quality Standards and local housing code
3
E.
F
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
requirements for the duration of the agreement. The DEVELOPER must educate HOME
fund recipients of the Standard and local housing codes prior to the expenditure of HOME
funds and where possible must provide assistance and education to recipients to enable
them to meet these standards.
3. RESPONSIBILITIES
A.DEVELOPER hereby accepts the responsibility for the performance of all services and
activities, described in the Scope of Services attached hereto as Exhibit A and incorporated
herein as if set forth at length, in accordance with the Program Budget attached hereto as
Exhibit 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 accordance with the terms
herein
B.
C.
DEVELOPER's Executive Director shall be DEVELOPER’s representative responsible for the
management of all contractual matters pertaining hereto, unless written notification to the
contrary is received from DEVELOPER and approved by CITY.
CITY's Community Development Manager will be CITY's representative responsible for the
administration of AGREEMENT.
D. DEVELOPER shall comply with 2 CFR Part 200, Uniform Administrative Requirements, Cost
Principals and Audit Requirements for Federal Awards, Final Guidance, and the regulations
found at 24 CFR Part 92.
E.DEVELOPER 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). If any program income is generated, DEVELOPER shall expend such
program income for the activities detailed in the Scope of Services before DEVELOPER
requests further disbursement of funds.
F.
G.
DEVELOPER understands that, in accordance with 2 CFR Part 200, suspension or termination,
at CITY’s option, may occur if the DEVELOPER materially fails to comply with any term of
AGREEMENT. AGREEMENT may also be terminated for convenience.
DEVELOPER shall not change the Program Budget without prior written approval from the
CITY
4. CITYtS & DEVELOPER'S OBLIGATIONS
A.
B.
C
CITY shall provide funds in the amount of $309,350.93 or less to the DEVELOPER for
specific housing projects and programs as described in the Scope of Services, Exhibit A.
DEVELOPER agrees to hold and save harmless the CITY, its officers 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 AGREEMENT.
Environmental Review: CITY shall be responsible for performing an environmental review
to ensure necessary compliances are met.
4
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
1.
2.
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, DEVELOPER 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:
(a) cause this AGREEMENT to terminate immediately;
(b) require DEVELOPER to repay to CITY any HOME Funds received and forfeit any
future payments of HOME Funds; and
(c) DEVELOPER must pay 10% of the HOME Funds to CITY as liquidated damages.
The Parties agree that CITY’s actual damages in the event of DEVELOPER 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 DEVELOPER to CITY under this section is liquidated damages and not a
penalty.
3.
D. Mitigation. DEVELOPER must take the mitigation actions if required. Failure to complete
the required mitigation action is an event of default under this AGREEMENT.
E.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 any contrary
provisions hereof, should such funds be discontinued for any reason.
Upon dissolution of the DEVELOPER or upon expiration or termination of this Agreement,
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 transferred to the CITY.
F.
5. FORM OF FINANCING AND DISBURSEMENTS
A. Form and Terms of Assistance
1 HOME Deferred Payment Loan: CITY will provide HOME funding as a forgivable loan
for construction of the Project. The term of the HOME Deferred Payment Loan will
commence at execution of the Mortgage and Note and continue for a term of fifteen (15)
years from the date of Project Completion as 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
The HOME Deferred Payment Loan will carry (0%) interest (provided there is no default)
and shall be forgiven following expiration of the HOME Affordability Period, as described
herein
5
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
2. Security: The HOME Forgivable Payment Loan must be secured by a promissory note, a
first-position mortgage on the Property.
DEVELOPER 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 consistent with this AGREEMENT and are
reasonably necessary for perfection of City’s lien or lien interests in the form submitted by
Counsel for the City. Borrower 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 project, CITY will perform a preliminary title
search. Should any items on the search arise that CITY identifies as title issues,
DEVELOPER 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 municipal corporation.
The policy shall show fee simple title to the Property in DEVELOPER, 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 { insert priority i.e. first, second, etc.} -
position lien 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.
3.
4.Deed of Trust and Restrictive Covenants: DEVELOPER must convey to City a deed of
trust, in form satisfactory to CITY, that provides a means for enforcement of the
affordability restrictions of 24 CFR 92.252. The deed of trust must be senior to all other
financing liens and be enforceable against all successors in interest to DEVELOPER.
Developer must also execute and deliver to CITY for recording Restrictive Covenants
binding on the Property, in form satisfactory to CITY, which enjoin the Property from
being sold to persons that do not meet the affordability requirements of 24 CFR 92.252.
Guarantors5.
CITY will require guarantees from the underlying corporate and individual owners of the
DEVELOPER and from any other guarantors required by the CITY or other financing
sources investing in the Project, without limitation.
Guarantees shall include, at a minimum, the following terms:
(a) A guarantee of completion, ensuring that DEVELOPER 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 1.B.2. Failure to complete the Project
under these terms will result in DEVELOPER’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 it
carrying out any of DEVELOPER’s unfulfilled obligations. This guarantee will
expire upon CITY’s final inspection and approval of the Project’s construction.
6
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
(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 DEVELOPER 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 amount
consistent with the Loan Documents.
6.DEVELOPER Entity: CITY’s willingness to make the HOME Deferred Payment Loan
as anticipated herein is contingent upon and made with specific reliance on the evaluation
of the specific individuals and entities making up the DEVELOPER. DEVELOPER agrees
that no sale or transfer of general or limited partnership interests in the DEVELOPER wil i
be made without the prior written consent of CITY.
B. Disbursement
1. CITY’s HOME Loan is intended as construction financing. DEVELOPER may request
disbursements no more than monthly and not less than quarterly from CITY during the
construction period in accordance with the terms set forth in this section.
2.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 Deferred Payment Loan.
Further, CITY shall retain the right to review and approve all draws for the Project,
regardless of whether the HOME Deferred 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
funding source.
Conditions of Construction Draws: Proceeds of the HOME Loan will only be released
to DEVELOPER for actually incurred HOME-eligible project costs. The obligation 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 such disbursement:
(a) CITY shall pay DEVELOPER for activities carried out under this Agreement o a
reimbursement basis within twenty-one (2 1) days after CITY has received a request for
reimbursement and all required supporting documentation of eligible expenditures
from DEVELOPER (a “Reimbursement Request”). Documentation of expenditures
must be submitted to the Community Development Manager by the dates required by
Community Development. DEVELOPER’s failure to provide information in a timely
manner may delay reimbursements. Funds are to be used for the sole purpose of
carrying out the activities described in the Scope of Work and the Budget.
3.
4
7
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
(b) DEVELOPER 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) DEVELOPER shall have submitted at least fifteen (15) days prior to the date a
disbursement is desired a completed disbursement and such other appropriate source
documentation as may be required by CITY including, without limitation, the
following:
i. 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, 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 prior to the date 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.
11.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 no environmental impact statement is required or
that such environmental impact statement has been properly filed and approved.
111.Appropriate certifications of compliance in all respects with labor standards and
prevailing wage requirements applicable under federal law.
IV .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 compliance.
(g) An inspection of work completed will need to be completed
Development Division staff prior to request for reimbursement.
by Community
8
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
(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 Disbursement: in addition to the requirements set forth in section
5 .B.1, CITY shall require the following prior to the final disbursement 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 :
5.
(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.
6 Limitation on Draw Requests.
(a) in all cases, DEVELOPER 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 DEVELOPER shall advise CITY of its intention to so
store materials prior to their delivery. It is specifically agreed that the propriety of
disbursements for materials stored shall be determined in CITY's sole discretion.
(c) 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
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;
The Contractor (or subcontractor as applicable) is in actual possession of and
has clear, marketable title to the materials and that such materials are not subject
to any lien by the supplier or manufacturer; and
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;
11
iii. That any disbursement for materials stored are otherwise subject to the contract’s
standard retainage provisions;
9
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
(d) 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 DEVELOPER 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
DEVELOPER 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 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 DEVELOPERts Funds: if CITY shall at any time in good faith
determine that the undisbursed amount of available financing is less than the amount
required to pay all costs and expenses of any kind which reasonably may be anticipated in
connection with the completion of the Project and shall thereupon send written notice
thereof to DEVELOPER specifying the amount required to be deposited by DEVELOPER
with CITY or its agent to provide sufficient funds to complete the Project, the
DEVELOPER 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 Lender’s notice. DEVELOPER agrees that any such funds deposited with
CITY, or its agent may be disbursed by CITY or its agent, before any further disbursement
of loan proceeds from CITY, to pay any and all costs and expenses of any kind in
connection with completion of the Project.
7.
8.
6. HOME PROGRAM REQUIREMENTS
A. Affordability Period Requirements.
The Project must comply with all requirements of 24 CFR 92.252 for the duration of the
Project’s HOME Affordability Period.
B.Designation of HOME Units.
Four (4) units will be designated as HOME-assisted. 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.
2 CITY Approval of Sale Price and Fees.
(a) Upon completion of the PROJECT, DEVELOPER shall sell the property, through fee
simple title, to an eligible low- to moderate-income first-time homebuyer who will
occupy the property as their principal residence for the applicable affordability period.
Periods of affordability required by 24 C.F.R. § 92.254 shall be enforced by a
10
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
subordinate deed of trust (no lower than second position) as more fully described
herein. Properties sold to low-income homebuyers will be secured by a subordinate
lien, payable to the City of Denton for the Affordability Period for the amount of
HOME funds reimbursed to DEVELOPER for that particular unit.
(b) Sale price of the home will not exceed the applicable HUD approved HOME
Homeownership Value Limits ("95% limits") for New Homes.
(c) DEVELOPER shall not charge any servicing, origination, or other fees for costs of
administering the HOME program, except as permitted by 24 CFR 92.214(b)(1).
Income Restrictions: All HOME units must be offered for sale exclusively to homebuyers
with household incomes at or below 80% of the Area Median Income (AMI) as determined
annually by HUD and as adjusted for household size. The most current income chart must
be used when determining eligibility for a prospective homebuyer.
(a) DEVELOPER must apply the definition of annual income defined in 24 CFR Part
5.609. Prior to selling any HOME-assisted unit, DEVELOPER must obtain and examine
at least two months of source documents evidencing household income.
(b) DEVELOPER acknowledges that the HOME Income Limits are released by HUD on
independent schedules.
Income Verification .
3.
4.
(a) DEVELOPER shall use the most current HUD Income Guidelines.
(b) DEVELOPER shall obtain financial information on all members of a homebuyer’s
household.
(c) DEVELOPER must maintain copies of homebuyer’s household Documentation as
required under this AGREEMENT.
Treatment of Over-Income Homebuyers: in the event a homebuyer has a household
income above the applicable HUD’s Income Limit for HOME, the DEVELOPER shall
take the following actions:
(a) if the HOME unit homebuyer’s income is greater than 80% AMI, then the
DEVELOPER will need to sell to an eligible homebuyer another qualifying unit that
that was not funded with HOME funds or deny the homebuyer.
5.
C Homebuyer Selection Plan.
1. DEVELOPER must develop a homebuyer selection plan meeting the requirements of 24
CFR 92.253(d). The homebuyer 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.
2. The homebuyer selection policy must be consistent with the purpose of providing
housing for very low and low-income persons. The homebuyer selection policy must
provide for:
(a) Selection of homebuyer from a written waiting list in the chronological order of their
application, insofar as is practicable;
(b) Prompt written notification to any rejected applicant of the grounds for such rejection;
and
11
DocuSign Envelope ID: A8531830-13EF4956-A761-1 90BBED57A5C
(c) Bi-lingual assistance.
(d) The homebuyer selection policy must address non-discrimination and affirmative
marketing as discussed in section 8.E.
Faith-Based Organizations.
1. 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,
DEVELOPER may not engage in inherently religious activities such as worship, religious
instruction, or proselytization, as part of the Project. If DEVELOPER does engage in such
religious activities, those activities must be offered separately from the HOME-assisted
housing, and participation by homebuyer of the Project must be voluntary. Additionally,
DEVELOPER shall not discriminate against a homebuyer or prospective homebuyer on
the basis of religion or religious belief.
2. Separation of Explicitly Religious Activities: DEVELOPER 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), or in any other manner
prohibited by law.
D.
3.Explicitly Religious Activities: if DEVELOPER 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 homebuyers ofa HOME-funded unit.
7. CONSTRUCTION, PROPERTY STANDARDS AND MANAGEMENT
A. Construction Schedule.
DEVELOPER will construct the improvements in accordance with the schedule set forth in
the attached Exhibit A. DEVELOPER shall not begin construction until CITY sends a Notice
to Proceed. DEVELOPER’s failure to meet the Construction Schedule or the Completion
Deadline shall be an event of default. DEVELOPER 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.
DEVELOPER 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.
2 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,
12
DocuSign Envelope ID: A8531830-13EF-4956-A76 1-190BBED57A5C
along with any applicable final inspection approval from the CITY building inspectors at
the completion of the construction of the project.
B.Property Standards.
DEVELOPER shall comply with the following as applicable during the construction of the
Required Improvements and for the entire affordability period:
Property Standards. All projects must meet all applicable state and local codes,
rehabilitation standards (if applicable), ordinances and zoning requirements and also
mitigate disaster impact, as applicable, per state and local codes, ordinances, etc. in
effect at the time of Project completion.
New Units. DEVELOPER shall comply with the applicable standards for new
construction as specified in 24 CFR §92.25 1 (a)(2) property standards.
any City property standards, and
all other applicable accessibility standards for the project.
2.Sustainability. All projects should “demonstrate responsible, quality construction with
respect to energy efficiency, environmental impact, and reductions in the use of shared
municipal resources”. DEVELOPER shall construct New Units to meet the International
Energy Conservation Code, Energy Star (or equivalent) certified building standards and
receive the Energy Star label or certification
3.Accessibility improvement.
features in all new units:DEVELOPER shall attempt to incorporate the following
•
•
•
•
•
Zero-step entrance to central living area connected to public street, sidewalk, or
driveway
36-inch entry door that provides clear opening of no less than 32 inches
All interior doors on main floor (including bathroom) will have 36-inch doors that
provide clear openings of no less than 32 inches
36-inch wide path of travel through the main floor of the home
One (1) bathroom on the main floor of each home will include a clear floor space of at
least 30” x 48”
• The toilet, counter, and door swings of each home will not encroach into the clear floor
space of each home
4. Lead-Based Paint. DEVELOPER shall comply with HUD’s Lead Safe Housing Rule at
24 CFR part 35, subparts A, B, J, and R
5. The Project must be maintained in compliance with the requirements of 24 CFR 92.251.
C. Construction Codes.
1 The Plans and construction for the Required Improvements shall
(a) conform to all applicable Federal, state, city and other local laws, ordinances, codes,
rules and regulations, including the HOME Regulations;
(b) meet all City building codes;
13
DocuSign Envelope ID: A8531 830-13EF4956-A761-190BBED57A5C
(c) meet the Energy Conservation requirements as required by the State of Texas in
Chapter 1 1 of the International Building Code;
(d) if new construction, must conform to the Model Energy Code published by the Council
of American Building Officials; and
(e) must pass a HUD Compliance Inspection Report and inspection by City’s inspectors.
D. Lead-Based Paint Requirements.
Not applicable. New construction.
E.Review, Acceptance, or Approval of Construction Plans and Specifications by CITY Not
Release of Responsibility.
1.Review, acceptance, or approval of the plans by CITY shall not constitute or be deemed:
(a) to be a release of the responsibility or liability of DEVELOPER 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
(b) 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 DEVELOPER or any of its
architects, contractors or subcontractors, and their respective officers, agents,
employees and lower tier subcontractors.
F.Contractor, Subcontractor and Vendor Requirements.
1. DEVELOPER will use commercially reasonable efforts to ensure that all contractors or
vendors utilized by DEVELOPER or subcontractors utilized by DEVELOPER’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. DEVELPOER shall have written agreements with any contractors,
subcontractors, vendors, or other parties which will receive HOME funds in relation to this
Agreement.
2 DEVELOPER shall ensure that all contractors utilized by DEVELOPER, subcontractors
utilized by DEVELOPER’s general contractor in the construction of the Required
Improvements, or vendors utilized by DEVELOPER in the operation of the project are not
debarred or suspended from performing the contractor’s, subcontractor’s or vendor’s work
by the City, the State of Texas, or the Federal government.
(a) For purposes of this AGREEMENT, the term “vendors” does not include suppliers or
materialmen.
(b) DEVELOPER acknowledges that 2 CFR Part 200 forbids DEVELOPER from hiring
or continuing to employ any contractor, subcontractor or vendor that is listed on the
Federal System for Award Management, www.sam.gov (“SAM”).
(c) DEVELOPER 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
14
DocuSign Envelope ID: A8531830-13EF-4956-A76 1-190BBED57A5C
submitting a Reimbursement Request which includes invoices from any such
contractor, subcontractor, or vendor.
(d) Failure to submit such proofs of search shall be an event of default, if not cured within
any applicable notice or cure period.
(e) in the event that CITY determines that any contractor, subcontractor or vendor has been
debaned, suspended, or is not properly licensed, DEVELOPER or DEVELOPER’s
general contractor shall immediately cause such contractor, subcontractor or vendor to
immediately stop work on the project and DEVELOPER shall not be reimbursed for
any work performed by such contractor, subcontractor or vendor.
(f) 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.
8. COMPLIANCE WITH OTHER FEDERAL REQUIREMENTS, APPLICABLE LAWS
AND REGULATIONS.
A. The CITY and DEVELOPER 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 CFR Part 200.
B. Other Federal Requirements.
DEVELOPER agrees to develop and operate the Project in full compliance with other related
federal requirements.
C. Compliance with All Applicable Laws and Regulations.
DEVELOPER 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.
2.
3.
4.
5.
6.
7.
8
HOME Investment Partnerships Act as set out above
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 1 1063, 11246 as amended by 1 1375 and 12086 and as supplemented by
Department of Labor regulations 41 CFR, Part 60
The Age Discrimination in Employment Act of 1967
The Age Discrimination Act of 1975 (42 U.S.C. Sections 6101 et seq.)
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 CFR
Part 8 where applicable
15
DocuSign Envelope ID: A8531830-13EF+956-A76 1-190BBED57A5C
9. 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.
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 1 1738 and
Environmental Protection Agency Regulations at 40 CFR Part 15. 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 23,
Subpart F
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 Part 882.708(c) pertaining to site and neighborhood standards for
new constructron projects
17. Regulations at 24 CFR Part 983.6 for Site and Neighborhood Standards Review
18. Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act
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
Contract Work Hours and Safety Standards Act (40 U.S.C. 327A 300) as supplemented by
29 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)
16
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
26. Federal Whistleblower Regulations, 10 U.S.C. 2409, 41 U.S.C. 4712, 10 U.S.C. 2324, 41
U.S.C. 4304 and 41 U.S.C. 4310.
D. 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
E.Affirmative Marketing.
1. DEVELOPER must adopt and implement affirmative marketing procedures for the Project
consistent with the requirements of 24 CFR 92.351. DEVELOPER 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 the HOME-assisted units.
2.The procedures and requirements must include methods for informing the public, and
potential homebuyers 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 DEVELOPER to inform and solicit
applications for homebuyers from persons 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. DEVELOPER’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.
3. CITY reserves the right to require DEVELOPER 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.
4. DEVELOPER 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.
F Compliance with the Uniform Relocation Act: Displacement, Relocation, and
Acquisition.
DEVELOPER shall comply with the Uniform Administrative Requirements, Cost Principals
and Audit Requirements for Federal Awards, Final Guidance as described in 2 CFR Part 200.
DEVELOPER will take all reasonable steps to minimize the displacement of persons (families,
individuals, businesses, nonprofit organizations, and farms) as a result of the Project.
17
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
Additionally, DEVELOPER will assure compliance with appropriate relocation and real
property acquisition requirements as provided in 24 CFR 92.353.
G. RESERVED
H. Use of Contractors and Subcontractors
1.DEVELOPER 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. DEVELOPER 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 assisted contracts.
2.DEVELOPER understands and agrees that all terms of this AGREEMENT, whether
regulatory or otherwise, shall apply to any and all contractors, subcontractors and vendors
of DEVELOPER which are in any way paid with HOME Funds or who perform any work
in connection with the project. DEVELOPER 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 Affordability Period.
DEVELOPER 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. DEVELOPER is
responsible to cure all violations of the HOME Regulations committed by its contractors
subcontractors or vendors. CITY maintains the right to insist on DEVELOPER’s full
compliance with the terms of this AGREEMENT and the HOME Regulations and
DEVELOPER is responsible for such compliance regardless of whether actions to fulfill
the requirements of this AGREEMENT or the HOME Regulations are taken by
DEVELOPER or by DEVELOPER’s contractors, subcontractors or vendors
DEVELOPER 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
Affordability Period and for 5 years thereafter.
3.DEVELOPER shall, at a minimum, search at www.sam.gov to verify that each contractor
and subcontractor is not listed as an excluded party.
1.Certification Regarding Lobbying.
DEVELOPER 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. DEVELOPER further agrees that it shall disclose any
lobbying with non-Federal funds that takes place in connection with obtaining any Federal
award
J. DEVELOPER Procurement Standards.
DEVELOPER shall ensure that procurement of materials and services is done in a cost-
effective manner. DEVELOPER shall comply with all applicable federal, state and local laws,
18
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
regulations, and ordinances for making procurements under this AGREEMENT.
DEVELOPER shall establish written procurement procedures to ensure that materials and
services are obtained in a cost-effective manner.
Sealed bids (Formal Advertising) should be used for all construction contracts or for goods
costing more than $100,000.
K. 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.
L. Financial Management Standards.
DEVELOPER 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 in accordance with 2 CFR Part 200.302 and
Part 200.303 .
M. Uniform Administrative Requirements.
DEVELOPER 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.
N. Compliance with FFATA and Whistleblower Protections.
1.DEVELOPER 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 and 41 U.S.C. 4310.
2. DEVELOPER shall provide CITY its DUNS number prior to the payment of any HOME
Funds.
O. Internal Controls.
In compliance with the requirements of 2 CFR 200.303, DEVELOPER shall:
Establish and maintain effective internal control over the HOME Funds that provides
reasonable assurance that DEVELOPER 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;
3. Evaluate and monitor DEVELOPER’s compliance with statutes, regulations and the
terms and conditions of this AGREEMENT;
19
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
4.
5.
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 DEVELOPER considers
sensitive consistent with applicable federal, state, local and tribal laws regarding privacy
and obligations of confidentiality.
P. 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 DEVELOPER. HUD and
CITY shall possess all rights to invention or discovery, as well as rights in data which may
arise as a result of DEVELOPER’s performance under this AGREEMENT.
DEVELOPER 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.
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 DEVELOPER 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.
DEVELOPER 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.
Q.
R.
S.
T. DEVELOPER 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.
U. DEVELOPER agrees to comply with all project requirements in 24 CFR Part 92, Subpart F.
V. DEVELOPER 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 DEVELOPERs that are currently listed.
W. DEVELOPER agrees to comply with the maximum per unit subsidy limits, underwriting
requirements and subsidy layering limits in 24 CFR 92.250.
X. DEVELOPER agrees to comply with labor requirements set out in 24 CFR 92.354.
Y. DEVELOPER agrees to comply with all applicable Federal laws, laws of the State of Texas
and ordinances of the City of Denton.
20
DocuSign Envelope ID: A8531830-13EF-4956-A76 1-190BBED57A5C
9. REPRESENTATIONS
A.
B.
C.
D.
The CITY is providing funding to the DEVELOPER in order to promote the development of
affordable housing for low-income households. Use of funds for programming will meet this
stated goal.
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.
DEVELOPER 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 DEVELOPER, do
hereby warrant and guarantee that he, she, or they have been fully authorized by DEVELOPER
to execute this Agreement on behalf of DEVELOPER and to validly and legally bind
DEVELOPER 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 DEVELOPER or the
person signing the Agreement to enter into this Agreement. DEVELOPER 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.
DEVELOPER agrees that the funds and resources provided DEVELOPER 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, DEVELOPER had this Agreement not been executed.
E.
F.
10. PROGRAM INCOME
A.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 DEVELOPER. Program income may be retained by the DEVELOPER to be
used for HOME-eligible activities included in the Work Statement included herein as Exhibit
B
B.Any income generated from the use of HOME funds, proceeds, or any income generated
through subsequent use of these funds shall continue to be used by the DEVELOPER for
HOME-eligible activities included in the Work Statement in the City of Denton. 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 DEVELOPER must be available
to the CITY as a matching contribution for the HOME program. Upon request, DEVELOPER
will approve appropriate certifications stating that funding is available as a HOME program
match to the CITY.
11. MAINTENANCE OF RECORDS
A. DEVELOPER 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
21
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
to any other applicable Federal and/or State regulations establishing standards for financial
detailed support and justification for each expenditure. Nothing in this section shall be
construed to relieve DEVELOPER of fiscal accountability and liability under any other
provision of this Agreement or any applicable law. DEVELOPER shall include the substance
of this provision in all subcontracts.
DEVELOPER 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 DEVELOPER 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 DEVELOPER 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 DEVELOPER shall give the City of Denton, 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 DEVELOPER pertaining to this Agreement. Such rights to access shall continue as long
as the DEVELOPER is required to retain the records.
B.
C.
D.
E.
12. REPORTS AND INFORMATION
A.DEVELOPER 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. DEVELOPER shall provide any additional information as requested by the
CITY within 10 days.
An audit must be conducted in accordance with 2 CPR Part 200 as applicable. DEVELOPER
shall submit a copy of said audit to the Community Development Division within thirty days
of receipt of the completed report.
B.
C.General Requirements.
DEVELOPER 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. DEVELOPER also
agrees to provide CITY, HUD, HUD’s Office of Inspector General, the Comptroller General
of the United States (aka the U.S. Government Accountability Office or “GAO”), or their
representatives access to the Project and its records for the purpose of monitoring
DEVELOPER’s compliance with applicable requirements.
D. Reports
DEVELOPER 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
22
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
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 reports as follows:
1. Prior to the commencement of construction, DEVELOPER 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); 7.2.2 During the construction period, DEVELOPER shall
report monthly on progress, submit invoices being paid, and provide evidence of
appropriate lien waivers to CITY regardless of whether DEVELOPER is requesting a
disbursement from CITY during that month;
2. Upon reaching Stabilized Occupancy, DEVELOPER shall report on the occupancy and
financial status of the Project not less than annually.
Annual reports shall include HOME Annual Certification of Occupancy form.
Additionally, DEVELOPER shall submit copies of its annual audit, prepared by an
independent certified public accountant, within one hundred-twenty (120) days of the end
of its fiscal year.
E.Change in Reporting Requirements and Forms.
CITY retains the right to change reporting requirements and forms at its reasonable discretion.
CITY will notify DEVELOPER in writing at least 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.
F.Recordkeeping and Inspections
1.DEVELOPER 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.
During the Period of Affordability, 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.
2.
'1J.DEVELOPER 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 SubpaH F of 24 CFR);
(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 CFR
92.250
(d) Information about contractors, vendors and other lenders to include but not necessarily
be limited to verification of non-debarment and suspension, verification of
23
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
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;
(f) 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:
i. Documentation of efforts to affirmatively further fair housing;
ii. If applicable, records documenting compliance with federal law regarding
displacement, relocation and property acquisition in accordance with the URA;
111.
IV.
V.
Vl.
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 24
CFR 92.352.
G. Records Retention
DEVELOPER shall retain all applicable administrative and project records and records
pertinent to other federal requirements, as specified in Section 92.508 of the HOME Final Rule,
for a period of fifteen (15) 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.
Records for non-expendable property acquired with HOME Program Funds shall be retained
for fifteen (15) years after the period of affordability.
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.
H. Inspections
DEVELOPER 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 and at Project completion to ensure the Project is progressing and
construction activity meets applicable property standards.
1.CITY Reserves the Right to Audit.
CITY reserves the right to perform an audit of ’s project operations and finances at any time
during the term of this AGREEMENT and during the Affordability Period and for 5 years
24
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
thereafter, if CITY determines that such audit is necessary for CITY’s compliance with the
HOME Regulations or other CITY policies, and DEVELOPER 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 15 business days after notice to
DEVELOPER 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 DEVELOPER. IF AS A RESULT OF ANY AUDIT IT IS DETERMINED
THAT DEVELOPER HAS FALSIFIED ANY DOCUMENTATION OR MISUSED,
MISAPPLIED OR MISAPPROPRLATED HOME FUNDS OR SPENT HOME FUNDS ON
ANY INELIGIBLE ACTIVITIES, DEVELOPER AGREES TO REIMBURSE CITY THE
AMOUNT OF SUCH MONIES PLUS THE AMOUNT OF ANY SANCTIONS, PENALTY
OR OTHER CHARGE LEVIED AGAINST CITY BY HUD BECAUSE OF SUCH
ACTIONS
13. INSURANCE
A.
B.
DEVELOPER shall observe sound business practices with respect to providing such bonding
and insurance as would provide adequate coverage for services offered under this Agreement.
The premises on and in which the activities described in Exhibit A are conducted, and the
employees conducting these activities, shall be covered by premise liability insurance,
commonly referred to as "DEVELOPER" coverage with CITY named as an additional insured.
Upon request of DEVELOPER, CITY may, at its sole discretion, approve alternate insurance
coverage arrangements.
DEVELOPER 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.
DEVELOPER will maintain adequate and continuous liability insurance on all vehicles owned,
leased or operated by DEVELOPER. All employees of DEVELOPER 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 employee’s current
possession of a valid license and insurance must be maintained on a current basis in
DEVELOPER’s files.
C.
D.
E.
F.
G.
Actual losses not covered by insurance as required by this section are not allowable costs under
this Agreement and remain the sole responsibility of DEVELOPER.
The policy or policies of insurance shall contain a clause which requires that CITY and
DEVELOPER 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 and until such time as the new
home DEVELOPER takes possession and obtains homeowner’s insurance.
14. EQUAL OPPORTUNITY
A. During the performance of this Agreement, the DEVELOPER is subject to Executive Order
11246, as amended, and, therefore, agrees to the following:
25
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
(1) The DEVELOPER will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, gender identity,
national origin, or familial status. The DEVELOPER will 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 DEVELOPER agrees to post in
conspicuous places, available to both employees and applicants for employment, notices
to be provided by the CITY setting forth provisions of this nondiscrimination clause.
(2) The DEVELOPER, in all solicitations or advancements for employees placed by or on
behalf of DEVELOPER, shall state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, sexual orientation, gender
identity, national origin, or familial status.
(3) DEVELOPER will not discharge or in any other manner discriminate against any employee
or applicant for employment because such employee or applicant has inquired about,
discussed, or disclosed the compensation of the employee or applicant or another employee
or applicant. This provision shall not apply to instances in which an employee who has
access to the compensation information of other employees or applicants as a part of such
employee’s essential job functions discloses the compensation of such other employees or
applicants to individuals who do not otherwise have access to such information, unless
such disclosure is in response to a formal complaint or charge, in furtherance of an
investigation, proceeding, hearing, or action, including an investigation conducted by the
employer, or is consistent with the contractor’s legal duty to furnish information.
(4) DEVELOPER will send to each labor union or representative of workers with which it has
a collective bargaining agreement or other contract or understanding, a notice, to be
provided by the agency contracting officer, advising the labor union or workers’
representative of the contractor’s commitments under Section 202 of Executive Order No.
11246 of September 24, 1965, and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
(5) DEVELOPER will comply with all provisions of Executive Order No. 11246 of Sept. 24,
1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) DEVELOPER will furnish all information and reports required by Executive Order No.
11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of
Labor, or pursuant thereto, and will permit access to his books, records, and accounts by
the contracting agency and the Secretary of Labor for purposes of investigation to ascertain
compliance with such rules, regulations, and orders.
(7) in the event of the DEVELOPER’s noncompliance with the nondiscrimination clauses of
this contract or with any of such rules, regulations, or orders, this contract may be
cancelled, terminated, or suspended in whole or in part and DEVELOPER may be declared
ineligible for further Government contracts in accordance with procedures authorized in
Executive Order No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed
and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965,
or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
26
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
(8) CITY has included these provisions of paragraphs (1) through (8) in this Agreement
pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such
provisions will be binding upon each subcontractor or vendor. CITY will take such action
with respect to any subcontract or purchase order as may be directed by the Secretary of
Labor as a means of enforcing such provisions including sanctions for noncompliance:
Provided, however, that in the event CITY becomes involved in, or is threatened with,
litigation with a subcontractor or vendor as a result of such direction, CITY may request
the United States to enter into such litigation to protect the interests of the United States.
B. 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, DEVELOPER shall develop, operate, and maintain the Project in accordance with
the following:
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. 2000(i) (Nondiscrimination in Federally Assisted
Programs) and implementing regulations issued at 24 CFR Part 1 ;
2.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
3.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 DEVELOPER (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 gender
identity 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 1 968 (U.S.C.
1701 u) as evidenced by submission of Form HUD-60002 which the DEVELOPER shall
complete and return to CITY within ninety days of the date of this agreement, that:
(a) To the greatest extent feasible, opportunities for training and employment arising in
connection with the planning and carrying out of any project assisted with HOME funds
27
4.
5
DocuSign Envelope ID: A8531830-13EF4956-A761-1 90BBED57A5C
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
(b) To the greatest extent feasible, contracts for work to be performed in connection with
any 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.
14.11.2 DEVELOPER Responsibilities for Section 3 Requirements.
CITY and DEVELOPER 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 DEVELOPER, and their respective
successors, assigns, contractors and subcontractors. Failure to fulfill these
requirements shall subject DEVELOPER 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. DEVELOPER’s responsibilities include:
Implementing procedures to notify Section 3 residents and business concerns about
training, employment, and contracting opportunities generated by Section 3
covered assistance;
111.Notifying potential contractors working on Section 3 covered projects of their
responsibilities;
Facilitating the training and employment of Section 3 residents and the award of
contracts to Section 3 business concerns;
IV.
V.
Vl.
Vll.
Vlll.
Assisting and actively cooperating with the Neighborhood Services Department in
making contractors and subcontractors comply;
Refraining from entering into contracts with contractors that are in violation of
Section 3 regulations;
Documenting actions taken to comply with Section 3; and
Submitting Section 3 Annual Summary Reports (form HUD-60002) in accordance
with 24 CFR Part 135.90.
IX.Section 3 Reporting Requirements.
In order to comply with the Section 3 requirements, DEVELOPER must submit the
forms Section 3 Reporting Forms and take the following actions:
• 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.
28
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
•Advertise available positions to the public for open competition and provide
documentation to CITY with the quarterly report that demonstrates such open
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.
•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.
6.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.
DEVELOPER must make efforts to encourage the use of minority and women’s business
enterprises in connection with HOME-funded activities. DEVELOPER 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),
DEVELOPER 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.
7 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.
(b) No Discrimination in Employment during the Performance of this AGREEMENT.
(c) DEVELOPER agrees to post notices containing this policy against discrimination in
conspicuous places available to applicants for employment and employees. All
solicitations or advertisements for employees, placed by or on the behalf of the
DEVELOPER, shall state that all qualified applicants will receive consideration for
employment without regard to race, color, national origin, religion, or sex.
(d) During the performance of this AGREEMENT DEVELOPER 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 and vendors:
1 [Contractor’s, Subcontractor’s or Vendor’s Name] 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.
11.[Contractor’s, Subcontractor’s or Vendor’s Name] will 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
29
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
are treated fairly during employment without regard to their race, 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.
8.DEVELOPER’s Contractors and ADA.
In accordance with the provisions of the Americans With Disabilities Act of 1990
(“ADA”), DEVELOPER 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 of
DEVELOPER. DEVELOPER 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 HARMLESS AGAINST ANY CLAIMS OR ALLEGATIONS ASSERTED BY
THIRD PARTIES, CONTRACTORS, SUBCONTRACTORS OR VENDORS AGAINST
CITY ARISING OUT OF DEVELOPER’S AND/OR ITS CONTRACTORS’,
SUBCONTRACTORS’, VENDORS’, AGENTS’ OR EMPLOYEES’ ALLEGED
FAILURE TO COMPLY WITH THE ABOVE-REFERENCED LAWS CONCERNING
DISABILITY DISCRIMINATION IN THE PERFORMANCE OF THIS AGREEMENT.
15. CONFLICT OF INTEREST AND VIOLATIONS OF CRIMINAL LAW
A.DEVELOPER 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. DEVELOPER 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.
DEVELOPER further covenants that no member of its governing body or its staff,
DEVELOPERs 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.
B.
C.
D. No officer, employee, agent, or consultant of DEVELOPER (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 DEVELOPER who occupies a housing unit in the Project
as a project manager or maintenance worker.
30
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
CITY may approve a waiver to allow a covered person to occupy a unit in the Project based
on a written request from DEVELOPER if, in CITY’s sole discretion, a waiver would be
appropriate under the provisions of 24 CFR 92.356(f)(2).
DEVELOPER shall comply with the applicable conflict of interest provisions in 24 CFR
92.356 for the procurement of goods and services associated with the development or operation
of the Project, and DEVELOPER 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 DEVELOPER, its owners, 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 such a contract will be in CITY’s sole discretion.
1. DEVELOPER shall establish conflict of interest policies for Federal Awards and shall
provide such policies in writing to CITY in accordance with the requirements of 2 CFR
Part 200. 1 12.
2.
3.
Disclosure of Conflicts of Interest. In compliance with 2 CFR Part 200.112,
DEVELOPER is required to timely disclose to CITY in writing any potential conflict of
interest, as described in this section.
Disclosure of Texas Penal Code Violations. DEVELOPER affirms that it will adhere to
the provisions of the Texas Penal Code which prohibits bribery and gifts to public
servants.
4. Disclosure of Federal Criminal Law Violations. In compliance with 2 CFR Part 200.113,
DEVELOPER is required to timely disclose to CITY all violations of federal criminal
law involving fraud, bribery or gratuity violations potentially affecting this
AGREEMENT.
16. POLITICAL OR SECTARIAN ACTIVITY
A.
B.
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.
17. WARRANTIES
DEVELOPER 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 condition
of DEVELOPER.
C. No litigation or legal proceedings are presently pending or threatened against DEVELOPER.
31
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
D. None of the provisions herein contravenes or is in conflict with the authority under which
DEVELOPER is doing business or with the provisions of any existing indenture or agreement
of DEVELOPER.
E. DEVELOPER 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 DEVELOPER is subject to any lien or encumbrance of any character,
except for current taxes not delinquent, except as shown in the financial statements furnished
by DEVELOPER 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.
18. COVENANTS
DEVELOPER 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 of Denton as Trustee, must remain with the property for the required affordability period.
During the period of time that payment may be made hereunder and so long as any payments
remain unliquidated, DEVELOPER shall not, without the prior written consent of the
Community Development Manager or his/her authorized representative :
1.Mortgage,pledge or otherwise encumber or suffer to be encumbered any of the assets of99
DEVELOPER 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
DEVELOPER which are allocated to the performance of this AGREEMENT and with
respect to which CITY has DEVELOPER hereunder.
2.Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims
for money due or to become due.
Sell, convey, or lease all or substantial part of its assets.
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.
Sell, donate, loan or transfer any equipment or item of personal property purchased with
funds paid to DEVELOPER by CITY, unless CITY authorizes such transfer.
C. DEVELOPER agrees, upon written request by CITY, to require its employees to attend
training sessions sponsored by the Community Development Division.
D. The DEVELOPER shall not be permitted to assign this Agreement or designate a third party
to undertake any part of this program without the express written permission of the City. In
such an instance where a third party is permitted, said third party must be bound in writing to
the same provisions as required in this Agreement.
32
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
19. MONITORING AND EVALUATION
A. CITY shall perform on-site monitoring of DEVELOPER’s performance under this
AGREEMENT.
B. DEVELOPER 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 Affordability Period. DEVELOPER will provide reports and access to
project files as requested by CITY during the Affordability Period and for 5 years after it ends.
C. DEVELOPER 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.
D. DEVELOPER 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.
E. CITY shall provide a written
within 30 days of the monitoring.
evaluation of contract performance to the DEVELOPER
F. Within 60 days of notification by the CITY, the DEVELOPER shall provide complete
responses include a statement acknowledging any corrective action required to be taken due to
City of Denton monitoring findings and concerns.
G. DEVELOPER shall submit copies of any fiscal, management, or audit reports by any of
DEVELOPER's funding or regulatory bodies to CITY within five (5) working days of receipt
by DEVELOPER.
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 48 hours
prior notice, to DEVELOPER’s offices and records and to DEVELOPER’s officers and agents
that are related to the use of the HOME Funds and the requirements of the HOME Regulations
during the Affordability Period, and to DEVELOPER’s officers, agents, employees,
contractors, subcontractors and vendors for the purpose of such monitoring
1.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 DEVELOPER’s
compliance with the terms and conditions of this AGREEMENT and the Loan. After each
monitoring visit, CITY shall provide DEVELOPER with a written report of the monitor’s
findings. If the monitoring report notes deficiencies in DEVELOPER’s performance, the report
shall include requirements for the timely correction of said deficiencies by DEVELOPER.
Failure by DEVELOPER 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.
J.
K
DEVELOPER shall annually provide to CITY the results of any state or federal monitoring
related to the project including any monitoring by 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 Affordability Period and shall survive the earlier
termination or expiration of this AGREEMENT.
33
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
20. DIRECTORS' MEETINGS
A. DEVELOPER shall ensure that the CITY is notified of all meetings, regular and special called,
of the board of directors. Notice should be received by the CITY at least 72 hours prior to the
meeting. Such notice shall include an agenda and a brief description of the matters to be
discussed.
B. DEVELOPER understands and agrees that CITY representatives shall be afforded access to
all of the Board of Directors’ meetings.
C. Minutes of all meetings of DEVELOPER's governing body shall be available to CITY within
fifteen (15) working days of approval.
21. NEPOTISM
DEVELOPER 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 DEVELOPER, or is a member of
DEVELOPER'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.
22. BREACH; SUSPENSION OF FUNDING
A.Upon determination by CITY of DEVELOPER'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 fifteen (15) working days written
notice to DEVELOPER, withhold fbrther payments to DEVELOPER. Such notice may be
given by mail to the Executive Officer and the Board of Directors of DEVELOPER. The notice
shall set forth the default or failure alleged, and the action required for cure.
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) calendar days. At the end of the
suspension period, if CITY determines the default or deficiency has been satisfied,
DEVELOPER may be restored to full compliance status and paid all eligible funds withheld
or impounded during the suspension period. If, however, CITY determines that DEVELOPER
has not come into compliance, this AGREEMENT may be terminated under section 23 of this
AGREEMENT.
B.
23. 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 DEVELOPER has failed to comply with any term of
this AGREEMENT. The CITY shall notify the DEVELOPER in writing thirty (30) days prior
to the date of termination, the effective date of such termination, and in the case of partial
termination, the portion of the AGREEMENT to be terminated. Property shall be subject to
disposition.
The CITY shall have the right to terminate this AGREEMENT for convenience, in whole or
in part by written notification to the DEVELOPER which shall include the reason for such
termination, the effective date and the portion to be terminated.
B
34
DocuSign Envelope ID: A8531830-13EF-4956-A76 1-190BBED57A5C
C.
D.
E.
The DEVELOPER shall have the right to terminate this AGREEMENT for convenience, in
whole or in part, by written notification to the CITY, which shall include the reason for such
termination, the effective date and 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 award is not sufficient to accomplish the project as described in the Work Statement,
CITY may require that the entire grant be terminated.
In the event of termination, all property and finished or unfinished documents, data, studies,
and reports purchased or prepared by the DEVELOPER under this Agreement shall, at the
option of the City, become the property of the City.
F. Default.
The actions noted below shall constitute an event of default by DEVELOPER hereunder. CITY
may give written notice of default to the DEVELOPER, by registered or certified mail,
addressed to the address stated in this AGREEMENT, or such other address as may
subsequently, upon appropriate written notice thereof to CITY, be designated by the
DEVELOPER as its legal business address:
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 DEVELOPER under any other of the Loan Documents; and
4.Any event of fraud, misrepresentation, gross negligence, or willful misconduct by
DEVELOPER in the execution or performance of this AGREEMENT or in its application
for participation in the HOME Program.
G. Remedies.
In the event of default by DEVELOPER hereunder, which is not cured within thirty (30) days
of the mailing of written notice by CITY as described in section 23.E, CITY may seek any
combination of the following remedies:
1.Withhold any further payments to be made under this AGREEMENT until such time as
DEVELOPER'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);
2.Apply to any appropriate court, State or Federal, for specific performance, in whole or in
part, of the covenants and agreements contained herein, or for an injunction against any
violation of such covenants and agreements;
3.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
DEVELOPER, as the attorney-in-fact of the DEVELOPER (which authority is coupled
with an interest and is irrevocable by the DEVELOPER), to complete or cause to be
completed the Project, at the cost and expense of the DEVELOPER;
4 Require the use of or change in professional property management;
DocuSign Envelope ID: A8531830-13EF4956-A761.190BBED57A5C
5.
6.
7.
Require the replacement of the General Partner of DEVELOPER;
Pursue the appointment of a receiver to collect mortgage payments and profits or to take
possession of the Project;
Declare immediately due and payable all principal, accrued interest and annual fees on the
HOME Forgivable Payment Loan and/or Note, together with all other sums payable
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;
Apply sanctions set forth in 24 CFR 92, if determined by CITY to be applicable;
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 would be difficult
to ascertain; and
8.
9.
10. Terminate this AGREEMENT by giving written notice to DEVELOPER of such
termination and specifying the effective date of such termination. If the AGREEMENT is
terminated by CITY as provided herein, DEVELOPER shall have no claim of payment or
claim of benefit for any incomplete project activities undertaken under this AGREEMENT.
H. Termination for Convenience.
In addition to the termination provision, this AGREEMENT may be terminated by CITY upon
thirty (30) days written notice. In the event of termination under this section, DEVELOPER
shall have no claim of payment or claim of benefit for any incomplete project activities
undertaken under this AGREEMENT and shall not be entitled to, and hereby waives, all claims
for lost profits and all other damages and expenses.
In terminating in accordance with 2 CFR 200, Appendix II, this AGREEMENT may be
terminated in whole or in part only as follows:
By CITY with the consent of DEVELOPER in which case the Parties shall agree upon the
termination conditions, including the effective date and in the case of partial termination,
the portion to be terminated; or
2.By DEVELOPER upon written notification to CITY setting forth the reasons for such
termination, the effective date, and in the case of partial termination, the portion to be
terminated. In the case of a partial termination, CITY may terminate the Contract in its
entirety if CITY determines in its sole discretion that the remaining portion of the Contract
to be performed or HOME Funds to be spent will not accomplish the purposes for which
this AGREEMENT was made.
1.Failure to Submit Required Reports and Documentation During Affordability Period.
If DEVELOPER 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
DEVELOPER in writing and the DEVELOPER will have 30 calendar days from the date of
36
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
the written notice to obtain or recreate the missing records or documentation, or submit or
resubmit any such report or documentation to CITY. If DEVELOPER 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 intent with no penalty or liability to CITY. In the
event of termination under this Section 1 1.3, any HOME Funds paid to DEVELOPER 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 the
Loan Documents.
J. In General.
1.Unless specifically provided otherwise in this AGREEMENT, DEVELOPER shall be in
default if DEVELOPER breaches any term or condition of this AGREEMENT. In the event
that such a breach remains uncured after 30 calendar days following written notice by
CITY (or such other notice period as may be specified herein or as determined by both
Parties mutually and in good faith), CITY shall have the right to elect, in CITY’s sole
discretion, to:
(a) extend DEVELOPER’s time to cure;
(b) terminate this AGREEMENT effective immediately upon written notice of such intent
to DEVELOPER; or
(c) pursue any other legal remedies available to CITY.
2 CITY’s remedies may include:
(a) Direct DEVELOPER 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 Affordability Period.
(b) Direct DEVELOPER to establish and follow a management plan that assigns
responsibilities for carrying out the remedial activities.
(c) Cancel or revise activities likely to be affected by the performance deficiency, before
expending HOME Funds for the activities.
(d) Reprogram HOME Funds that have not yet been expended from affected activities to
other eligible activities or withhold HOME Funds.
(e) Direct DEVELOPER to reimburse CITY in any amount of HOME Funds not used in
accordance with the HOME Regulations.
(f) Suspend reimbursement of HOME Funds for affected activities.
(g) Any other appropriate action including but not limited to any remedial action legally
available such as declaratory judgment, specific performance, damages, temporary or
permanent injunctions, termination of this AGREEMENT or any other contracts with
DEVELOPER, and any other available remedies.
(h) in the event of termination under this Section, all HOME Funds awarded but unpaid to
DEVELOPER pursuant to this AGREEMENT shall be immediately rescinded and
DEVELOPER shall have no further right to such funds and any HOME Funds already
37
DocuSign Envelope ID: A8531 830-13EF4956-A761-190BBED57A5C
paid to DEVELOPER 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 or the Loan Documents.
K. No Funds Disbursed while in Breach.
DEVELOPER understands and agrees that no HOME Funds will be paid to DEVELOPER
until all breaches or defaults are cured to CITY’s satisfaction.
L. No Compensation After Date of Termination.
In the event of termination, DEVELOPER shall not receive any HOME Funds in compensation
for work undertaken after the date of termination.
M. Rights of CITY Not Affected.
Termination shall not affect or terminate any of the existing rights of CITY against
DEVELOPER, or which may thereafter accrue because of such default, and this provision shall
be in addition to any and all other rights and remedies available to CITY under the law and
Loan Documents including, but not limited to, compelling DEVELOPER to complete the
Required Improvements in accordance with the terms of the Contract. Such termination does
not terminate any applicable provisions of this AGREEMENT that have been expressly noted
as surviving the term 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 DEVELOPER default.
N. Waiver of Breach Not Waiver of Subsequent Breach.
The waiver of a breach of any term, covenant, or condition of this AGREEMENT shall not
operate as a waiver of any subsequent breach of the same or any other term, covenant or
condition hereof.
O. Civil, Criminal and Administrative Penalties.
Failure to perform all the Contract terms may result in civil, criminal or administrative
penalties, including, but not limited to those set out in this AGREEMENT.
P. Termination for Cause.
1 CITY may terminate this AGREEMENT in the event of DEVELOPER’s default, inability,
or failure to perform, subject to notice, grace and cure periods. In the event CITY
terminates this AGREEMENT for cause, all HOME Funds awarded but unpaid to
DEVELOPER pursuant to this AGREEMENT shall be immediately rescinded and
DEVELOPER shall have no further right to such funds and any HOME Funds already paid
to DEVELOPER must be repaid to CITY within 30 calendar days of termination. Failure
to repay such HOME Funds will result in CITY exercising all legal remedies available to
CITy under this AGREEMENT or the Loan Documents. DEVELOPER
ACKNOWLEDGES AND AGREES THAT IF CITY TERMINATES THIS
AGREEMENT FOR CAUSE, NEITHER DEVELOPER NOR ANY AFFILIATES OF
DEVELOPER SHALL BE CONSIDERED FOR ANY OTHER CITY CONTRACT FOR
HOME FUNDS FOR A MINIMUM OF 5 YEARS FROM THE DATE OF
TERMINATION. This provision shall not apply to the Investor.
38
DocuSign Envelope ID: A8531830-13EF-4956-A76 1-190BBED57A5C
DEVELOPER may terminate this AGREEMENT if CITY does not provide 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 Affordability Period.
Q. Dissolution of DEVELOPER Terminates Contract.
In the event DEVELOPER 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 all of its remedies under this AGREEMENT and the Loan Documents.
R. Reversion of Assets.
In the event this AGREEMENT is terminated with or without cause, all tangible personal
property owned by DEVELOPER 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. Any unspent HOME funds and any accounts receivable attributable to the use of
HOME funds held by DEVELOPER at the time of termination shall be returned to CITY.
S. Notice of Termination under Subordination Agreements.
CITY shall not terminate this AGREEMENT without first giving notice and opportunity to
cure as required in the Subordination Agreements.
T. Notice to Investor of Default.
CITY shall furnish Investor with notice of any default under this AGREEMENT at the address
shown below.
24. INDEMNIFICATION
A.It is expressly understood and agreed by both parties hereto that CITY is contracting with
DEVELOPER as an independent DEVELOPER and that as such, DEVELOPER shall save
and hold CITY, its officers, agents 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 character whatsoever resulting in whole or in part from the
performance or omission of any employee, agent or representative of DEVELOPER.
DEVELOPER agrees to provide the defense for, and to indemnify and hold harmless CITY its
agents, employees, or DEVELOPERs from any and all claims, suits, causes of action,
demands, damages, losses, attorney’s fees, expenses, and liability arising out of the use of these
contracted funds and program administration and implementation except to the extent caused
by the willful act or omission of CITY, its agents, employees, or DEVELOPERs.
DEVELOPER hereby agrees to reimburse, indemnify and save and hold CITY and its
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 attorney's 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,
B.
C
39
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
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
DEVELOPER under the Loan Documents;
2. Any failure of the DEVELOPER to fully perform or observe or cause to be performed or
observed any term, provision, covenant, or agreement to be performed or observed by the
DEVELOPER, or after an assumption, by a subsequent DEVELOPER, pursuant to the
Loan Documents;
3.
4.
Any claims, assessments, or liabilities for charges, penalties, liens, taxes, or deficiencies
arising from or relating to the use and operation by the DEVELOPER, or after an
assumption, DEVELOPER’s successors to the Property or 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 or
indirectly by the DEVELOPER or any of their past or present affiliates on the Property
described on Exhibit A, which occurs prior to possession passing from the DEVELOPER
pursuant to a Sheriffs Deed upon completion of a foreclosure or upon acceptance of a
Deed in Lieu of Foreclosure.
D. The provisions of this section shall survive the termination of this HOME AGREEMENT, the
other Loan Documents, the payment of CITY Deferred Payment Loan, and the liabilities and
the exercise of any right or remedy under the Loan Documents.
25. IMMIGRATION NATIONALITY ACT.
CITY actively supports the Immigration & Nationality Act (INA) which includes provisions
addressing employment eligibility, employment verification, and nondiscrimination.
DEVELOPER shall verify the identity and employment eligibility of all employees who perform
work under this AGREEMENT. DEVELOPER 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. DEVELOPER 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.
DEVELOPER shall provide CITY with a certification letter that it has complied with the
verification requirements required by this AGREEMENT. DEVELOPER shall indemnify CITY
from any penalties or liabilities due to violations of this provision. CITY shall have the right to
immediately terminate this AGREEMENT for violations of this provision by DEVELOPER.
26. NOTICE
For purposes of this Agreement, all official communications and notices among the parties shall
be deemed made as of the date mailed if sent postage paid to the parties and address set for below:
TO CITY: TO DEVELOPER:
Community Development Manager
City of Denton
Executive Director
Habitat For Humanity of Denton County, Inc.
40
DocuSign Envelope ID: A8531830-13EF-4956-A76 1-190BBED57A5C
401 N. Elm Street
Denton, Texas 76201
172 1 N Carroll Blvd
Denton, Texas 76201
27. 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.
28. MISCELLANEOUS
A.DEVELOPER acknowledges that in accordance with Chapter 2271 of the Texas Government
Code, CITY is prohibited from entering into a contract with a company for goods or services
unless the contract contains a written verification from the company that it: (1 ) does not boycott
Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel”
and “company” shall have the meanings ascribed to those terms in Section 808.001 of the
Texas Government Code. By signing this agreement, DEVELOPER certifies that
DEVELOPER’s signature provides written verifIcation to the CITY that DEVELOPER: (1)
does not boycott Israel; and (2) will not boycott Israel during the term of the agreement.
Failure to meet or maintain the requirements under this provision will be considered a material
breach
Sections 2252 and 2270 of the Texas Government Code restrict CITY from contracting with
companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing
this agreement, DEVELOPER certifies that DEVELOPER’s signature provides written
verification to the CITY that DEVELOPER, pursuant to Chapters 2252 and 2270, is not
ineligible to enter into this agreement and will not become ineligible to receive payments
under this agreement by doing business with Iran, Sudan, or aforeign terrorist organization .
Failure to meet or maintain the requirements under this provision will be considered a material
breach
DEVELOPER acknowledges that in accordance with Chapter 2274 of the Texas Government
Code, CITY is prohibited from entering into a contract with a company for goods or services
unless the contract contains written verification from the company that it (1) does not boycott
energy companies; and (2) will not boycott energy companies during the term of the contract.
The terms “boycott energy company” and “company” shall have the meanings ascribed to
those terms in Section 809.001 of the Texas Government Code. By signing this agreement,
DEVELOPER certifies that DEVELOPER’s signature provides written verification to the
CITY that DEVELOPER: (1) does not boycott energy companies; and (2) will not boycott
energy companies during the term of the agreement. Failure to meet or maintain the
requirements under this provision will be considered a material breach.
DEVELOPER acknowledges that in accordance with Chapter 2274 of the Texas Government
Code, CITY is prohibited from entering into a contract with a company for goods or services
unless the contract contains written verification from the company that it (1) does not have a
practice, policy, guidance, or directive that discriminates against a firearm entity or firearm
trade association; and (2) will not discriminate during the term of the contract against a
firearm entity or firearm trade association. The terms “discriminate against a firearm entity or
firearm trade association,” “firearm entity” and “firearm trade association” shall have the
meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By
B.
C.
D
41
DocuSign Envelope ID: A8531830-13EF4956-A761-190BBED57A5C
signing this agreement, DEVELOPER certifies that DEVELOPER’s signature provides
written verification to the City that DEVELOPER: (1) does not have a practice, policy,
guidance, or directive that discriminates against a firearm entity or fIrearm trade
association; and (2) will not discriminate during the term of the contract against a fIrearm
entity or firearm trade association. Failure to meet or maintain the requirements under this
provision will be considered a material breach.
IN WITNESS OF WHICH this Agreement has been executed on this the 20 day of
February , 20 24
CITL(lfuRFIqON
BY:1 s''' H„@
HABITAT FOR HUMANITY OF DENTON
COUNTY, INC. r.,.„„,„., M
By: [ (pr& HALLaM £lttiwsowj eP
Lora Blakeslee Atkinson, MNM
2
SARA HENSLEY, CITY MANAGER
ATTEST:
JESUS SALAZAR, CITY SECRETARY
ATTEST: Brian Strohl
BOARD POSITION: President
Habitat For Humanity of Denton County, Inc.
tXx:uSlgned by:
JaM S aIM)ar
DoeuSigned by:
BgMTr
A#38-+
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
Scott Bray
2024.02.06
16:26:15 -06'OO'
42
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational
obligations and business terms
Director of Community Services
Title
Community Services
Department
Date Signed : 2/6/2024
43
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
EXHIBIT A
SCOPE OF SERVICES
Description of Project: HOME funds will be used to pay costs associated with construction of
four (4) homebuyer units located at Habitat Village (located in Southeast Denton between Duncan
St. and Hill St. and along Smith St.), Denton, Texas. The following will be completed but not
limited, based on cost and funding availability:
•
•
•
HVAC
Plumbing
Flatwork/Foundation
Connections of utilities from house to city utilities
other construction costs as needed
Unit 1 Lot 10
Unit 2 Lot 1 1
Unit 3 Lot 12
Unit 4 Lot 13
$77,337.74
$77,337.73
Estimated Project Timeline
Habitat Village: 4 Units
Project 1 : 2 Homes
September - December 2024
Project 2: 2 Homes
February - June 2025
CONSTRUCTION TIMELINE
Feb 2024 Funding Benchmark: DEVELOPER has identified or raised
for 4 homes
_% of funding
Feb 2024 Project Approval: Contract is executed with DEVELOPER and approved by City
Council
Mar 2024
Jul 2024
Training: Subrecipient Agreement Training
Financial Reporting: DEVELOPER begins reporting financial information
2024-2026
Pro
2 homes
Quaderly Check-In: Status of Project & Fundraising (September, December,
March, & June)
ect 1 Mp (ii
2 Homes
Review Homebuyer’s Income – if project and closing takes
longer than 6 months to complete, income will need be
recertified
July 2024
Aug 2024
Dec 2024
Jan 2025 Construction Bidding
DocuSign Envelope ID: A8531830-13EF-4956-A761-190BBED57A5C
Sep - Dec 2024 1 Feb – Jun 2025 Project Construction
Project Construction Completion Project 1 / Final Inspection by
Community Development
Request for Reimbursement after portions completed
Construction Portion of Project Closed
Dec 2024 1 Jun 2025
e
Jan 2024 1 Jul 2025
OSING FOR HOMEBUYER
Apr 2025 Sep 2025 Review Homebuyer Income again if did not meet the 6-month
requirement
City of Denton Lien is provided at CLOSING to be signed
Provide: Homebuyer Contracts, Updated Title Policy,
Closing Docs
Project Closed
Apr 2025
Apr 2025
Apr 2025
Sep 2025
Sep 2025
Sept 2025
DocuSign Envelope ID: A8531830-13EF-+956-A761-190BBED57A5C
EXHIBIT B
BUDGET
Construction costs: 5309,350.93
Please note: if other funding sources and improvements are included in the project, Habitat for
Humanity of Denton County, Inc., prior to the start of construction, shall provide the Community
Development Department with a total project budget, documentation of all funding sources and
commitments, and a project planning/construction schedule.
HOME FUNDS BUDGET
Construction of four (4) single family homebuyer units
$77,337.74
$77,337.73
r
r