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2004-241ORDINANCE NO. ~q0/7~')4- o~q~/ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND HABITAT FOR HUMANITY OF DENTON COUNTY; PROVIDING FOR THE TERMS OF SAID CONTRACT; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT AND TO EXPEND FUNDS WITH RESPECT TO THE AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, thc City has received funds ficom thc U.S. Department of Housing and Urban Development under the National Affordable Housing Act of 1990 as amended by the Housing and Community Development Act of 1992; and WHEREAS, the City has adopted a budget for such funds included therein an authorized program budget for expenditure of funds, for acquisition of properties for the purpose of developing affordable single family housing units to be purchased by low-income households; and WHEREAS, Habitat for Humanity of Denton County has developed a program to assist low-income households that will purchase the housing units constructed through the use of City of Denton HOME funding; and WHEREAS, the City Council deems it in the public interest to enter into an agreement for an affordable housing program with Habitat for Humanity of Denton County; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAiNS: SECTION 1. The City Council hereby approves the attached Agreement between the City and Habitat for Humanity of Denton County to acquire property for the development of affordable housing units in accordance with the terms of this Agreement, which Agreement is made a part of this ordinance for all purposes, and authorizes the City Manager to execute this Agreement. SECTION 2. That the City Council authorizes the expenditure of funds for property acquisition. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED tls the day of .~, ,2004. EULINEBROCK, MAYOR ATTEST: JENN~ER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND HABITAT FOR HUMANITY OF DENTON COUNTY This Agreement between the City of Denton and Habitat for Humanity of Denton County ("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, PO Box 425, Denton, Texas a non-profit corporation, ("CONTRACTOR"). WHEREAS, CITY has received funds from the U. S. Department of Housing and Urban Development under the National Affordable Housing Act of 1990 as amended by the Housing and Community Development Act of 1992; WHEREAS, CiTY has adopted a budget for such funds and included therein an authorized Program Budget for expenditure of funds for acquisition of properties for the development of affordable single-family housing units by Habitat for Humanity of Denton County, included as Attachment "B"; WHEREAS, CITY has designated the Community Development Division as the division responsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, CiTY wishes to engage CONTRACTOR to carry out such project; 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. This Agreement shall commence on or as of September 15, 2004, and shall terminate on July 31, 2006, unless adjusted by the CITY. Request for such an adjustment must be in writing and is to be submitted to the Community Development Division, 101 S Locust Ste 500, Denton TX 76201. RESPONSIBILITIES A. CONTRACTOR hereby accepts the responsibility for the performance of all services and activities, described in the Work Statement attached hereto as Attachment "A" and incorporated herein as if set forth at length, in accordance with the Program Budget attached hereto as Attachment "B" and the Schedule of Contract Activities attached hereto as AttacNnent "C" incorporated herein as if set forth at length, and as otherwise set forth herein, in a satisfactory and efficient maimer as determined by CITY, in accordance with the terms herein. B. CONTRACTOR's executive director shall be CONTRACTOR's representative responsible for the management of all contractual matters pertaining hereto, unless written notifica~ tion to the contrary is received fi.om CONTRACTOR, and approved by CITY. C. The CITY's Commurdty Development Administrator will be CITY's representative responsible for the administration of this Agreement. D. CONTRACTOR shall comply with HUD Office of Management and Budget circulars A-122 and the regulations found'at 24 CFR Part 84. E. CONTRACTOR shall not request disbursement of funds until they are needed for payment of eligible costs. The mount of each request will be limited to the amount needed as per 92.504 (c)(2)(vii). F. CONTRACTOR shall not change the Program Budget without prior written approval from the CITY. CITY'S & CONTRACTOR'S OBLIGATIONS A. CITY shall provide funds in the amount of $25,000 or less in project funds to the CONTRACTOR for specific housing projects and programs as described in the Work Statement, Attachment "A". B. CONTRACTOR 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 this Agreement. C. CITY shall be responsible for performing an environmental review to insure necessary compliances are met. D. 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 Partnership Program, and shall terminate immediately, not withstanding the provisions of Article XIX hereof, should such funds be discontinued for any reason. E. The CONTRACTOR may not request disbursement of funds until they are needed for payment of elig/ble costs. The amount of each request by the CONTRACTOR shall be limited to the amount needed in accordance with 24 CFR 92.504 (c)(2)(vii) and shall involve the activities set forth in the "Contract Activity Schedule" attached as Attachment C. F. Upon dissolution of the CONTRACTOR any remairfing 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 returned to the CITY. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS A. The CITY and CONTRACTOR agree to perform their duties arising pursuant to the Agreement in compliance with the U.S. Department of Housing and Urban Development HOME Investment Partnership Program regulations at 24 CFR 92. B. CONTRACTOR shall comply with the uniform administrative requirements, as described in 24 CFR 92.505 in the HOME Investment Parmership Program regulations, a copy of which is attached hereto. C. CONTRACTOR 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 92.252 or 92.254 as applicable. D. If it is determined that the use of the landing provided by the CITY does not meet the requirements of the U.S. Department of Housing and Urban Dex/elopment HOME Investment Partnerskip Program, the CONTRACTOR 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. E. CONTRACTOR 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 opporttmity, affirmative marketing, displacement and relocation, labor relations and conflict of interest. F. CONTRACTOR 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 part 35, subparts A, B, J, K, M and R upon project completion. S~pmF. CONTRACTOR agrees to comply with all project requirements in 24 CFR Part 92, H. CONTRACTOR agrees to comply with all applicable Federal laws, laws of the State of Texas and ordinances of the City of Denton. REPRESENTATIONS A. The CITY is providing funding to the CONTRACTOR in order to promote the development of affordable housing for low-income households. Use of funds for programming will meet this stated goal. B. 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. C. CONTRACTOR 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. D. The person or persons signing and executing this Agreement on behalf of CONTRACTOR, do hereby warrant and guarantee that he, she, or they have been fully authorized by CONTRACTOR to execute this Agreement on behalf of CONTRACTOR and to validly and legally bind CONTRACTOR to alt terms, peffom~ances and provisions herein set forth. E. 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 CONTRACTOR or the person signing the Agreement to enter into this Agreement. CONTRACTOR 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. F. CONTRACTOR agrees that the funds and resources provided CONTRACTOR 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, CONTRACTOR had this Agreement not been executed. 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 CONTRACTOR. Program income may be retained by the CONTRACTOR to be used for HOME-eligible activities included in the Work Statement included herein as Attachment "B". Provided, however that any interest on deposited HOME funds must be remitted to the CITY on a quarterly basis. 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 CONTRACTOR 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 CONTRACTOR must be available to the CITY as a matching contribution for the HOME program. Upon request, CONTRACTOR will approve appropriate certifications stating that funding is available as a HOME program match to the CITY. MAINTENANCE OF RECORDS A. CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received pursuant to this Agreement and pursuant to any other applicable Federal and/or State regulations establishing standards for financial management. CONTRACTOR's record system shall contain sufficient documentation to provide detailed support and justification for each expenditure. Nothing in this Section shall be construed to relieve CONTRACTOR of fiscal accountability and liabihty under any other provision of this Agreement or any applicable law. CONTRACTOR shall include the substance of this provision in ail subcontracts. B. CONTRACTOR 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. C. Nothing in the above subsections shall be construed to relieve CONTRACTOR of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services, provided pursuant to this Agreement. D. At any reasonable time and as often as CITY may deem necessary, the CONTRACTOR shall make available to CITY, or any of its authorized representatives, ail of its records and shail 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. E. The CONTRACTOR shall g/ye 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 ail boolcs, accounts, records, reports, files and other papers belonging to or in use by the CONTRACTOR pertaining to this Agreement. Such rights to access shall continue as long as the CONTRACTOR is required to retain the records. REPORTS AND INFORMATION A. CONTRACTOR 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. CONTRACTOR shail provide any additional information as requested by the CITY within 10 days. B. An audit must be conducted in accordance with 24 CFR parts 44 and 45 as applicable. CONTRACTOR shall submit a copy of said audit to the Community Development Division within ten days of receipt of the completed report. INSURANCE A. CONTRACTOR shall observe sound business practices with respect to providing such bend'mg and insurance as would provide adequate coverage for services offered under this Agreement. B. The premises on and in which the activities described in Exhibit A are conducted, and the employees conduct'mg these activities, shall be covered by premise liability insurance, com- monly referred to as "Owner/Tenant" coverage with CITY named as an additional insured. Upon request of CONTRACTOR, CITY may, at its sole discretion, approve alternate insurance coverage arrangements. C. CONTRACTOR 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. D. CONTRACTOR will ma'mtain adequate and continuous liability insurance on all vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR 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 CONTRACTOR's files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of CONTRACTOR. F. The policy or policies of insurance shall conta'm a clause which requires that CITY and CONTRACTOR be notified in writing of any cancellation or change in the policy at least thirty (30) days prior to such change or cancellation. G. Insurance will be carried on all housing units under construction until such time as the new homeowner takes possession and obtains homeowner insurance. 10. EQUAL OPPORTUNITY During the performance of this Agreement, the CONTRACTOR is subject to Executive Order 11246, as amended, and, therefore, agrees to the following: (1) The CONTRACTOR will not disCrkninate against any employee or applicant for employment because of race, color, religion, sex, national origin, or familial status. The CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR, in all solicitations or advertisements for employees placed by or on behalf of the CONTRACTOR, shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, or familial status. 11. CONFLICT OF INTEREST A. CONTRACTOR 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. CONTRACTOR 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. B. CONTRACTOR further covenants that no member of its governing body or its staff, contractors 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. C. 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. 12. POLITICAL OR SECTARIAN ACTIVITY A. None of the performance rendered hereunder shall involve any political activity (including, but not limited to, any activity to further the election or defeat of any candidate for public office) or any activity undertalcen to influence the passage, defeat or final content of legislation. B. None of the performance rendered hereunder shall involve or benefit in any, manner any sectarian or religious activity. 13. WARRANTIES CONTRACTOR 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 CiTY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR. C. No litigation or legal proceedings are presently pending or threatened aga'mst CONTRACTOR. D. None of the provisions herein contravenes or is in conflict with the authority under which CONTRACTOR is doing business or with the provisions of any existing indenture or agreement of CONTRACTOR. E. CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR 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. 14. COVENANTS A. CONTRACTOR agrees to take appropriate measure to enforce the affordability requirements on property assisted with HOME funds. Property liens or other forms of enforcement must remain with the property for the required affordability period. B. During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, CONTRACTOR shall not, without the prior written consent of the Community Development Admi~fistrator or her authorized representative: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of CONTRACTOR 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 CONTRACTOR which are allocated to the performance of this Agreement and with respect to which CITY has ownership hereunder. (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or cla'uns for money due or to become due. (3) 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. (5) Sell, donate, loan or transfer any equipment or item of personal property purchased with funds paid to CONTRACTOR by CiTY, unless CITY authorizes such transfer. C. CONTRACTOR agrees, upon written request by CITY, to reqnire its employees to attend training sessions sponsored by the Community Development Division. 15. MONITORING AND EVALUATION A. CITY shall perform on-site monitoring of CONTRACTOR's performance under this Agreement. B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by CONTRACTOR to the Work Statement, and Program Goals and Objectives, which are attached hereto as Attachment A, as well as other provisions of this Agreement. C. CONTRACTOR 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. CONTRACTOR 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 evaluation of contract performance to the CONTRACTOR within 30 days of the monitoring. F. Within 60 days of notification by the CITY, the CONTRACTOR shall provide complete responses include a statement acknowledging any corrective action required to be taken due to City of Denton monitoring find'rags and concems. G. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by any of CONTRACTOR's funding or regulatory bodies to CITY within five (5) working days of receipt by CONTRACTOR. 16. DIRECTORS' MEETINGS A. CONTRACTOR 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. CONTRACTOR understands and agrees that CITY representatives shall be afforded access to all of the Board of Directors' meetings. C. Minutes of all meetings of CONTRACTOR's governing body shall be available to CITY withiu ten (10) working days of approval. 17. NEPOTISM CONTRACTOR 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 CONTRACTOR, or is a member of CONTRACTOR'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. 18. SUSPENSION OF FUNDING A. Upon detennination by CITY of CONTRACTOR's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any rights it may otherwise have, may, at its discretion, and upon ten (10) working days written notice to CONTRACTOR, withhold further p~tyments to CONTRACTOR. Such notice may be given by mail to the Executive Officer and the Board of Directors of CONTRACTOR. The notice shall set forth the default or failure alleged, and the action required for cure. B. 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, CONTRACTOR may be restored to full compliance status and paid all eligible funds withheld or impounded during the suspension period. If, however, CITY determines that CONTRACTOR has not come into compliance, this Agreement maybe terminated under Section 19 of this Agreement. 19. 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 CONTRACTOR has failed to comply with any term of this Agreement. The CITY shall notify the CONTRACTOR in writing thirty (30) days prior to the date of term/nation, 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. B. The CITY shall have the right to terminate this Agreement for convenience, in whole or in part by written notification to the CONTRACTOR which shall include the reason for such termination, the effective date and the portion to be terminated. C. The CONTRACTOR shall have the right to terminate this Agreement for convenience, in whole or in part, by written notification to the CITY, wlfich shall include the reason for such termination, the effective date and the portion to be terminated. D. 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. 20. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with CONTRACTOR as an independent CONTRACTOR and that as such, CONTRACTOR 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 CONTRACTOR. B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorneys fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of CITY, its agents, employees, or contractors. 21. NOTICE For purposes of this Agreement, all official communications and notices among the parties shall be deemed made as of the date mailed ii' sent postage paid to the parties and address set for below: TO CITY: Community Development Administrator City of Denton 10I S Locust Ste 500 Denton, Texas 76201 TO CONTRACTOR: Executive Director Habitat for Humanity of Denton County PO ]Box 425 Denton, Texas 76202 22. VENUE This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS DF WHICH this Agreement has been executed on this the ~ day of '~ ~Y/9'"~I~L/ ,2004. CITY OF DENTON MICHAEL A. CONDUIt, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY HABITAT FOR HUMANITY OF DENTON COUNTY BY: ~ I~OARD P~"~IbENT ATTEST: SECRETARY ATTACHMENT "A" WORK STATEMENT City of Denton HOME funding will be used to purchase single-family lots for the construction of affordable housing for low-income families. The lots will be located within the city limits of Denton in areas that would support Habitat's building criteria. Lots will be zoned NR 4 or NR 6, or will be appropriate for residential zoning. Lots will be purchased through real estate companies, by working directly with owners or through the foreclosure sale process. Habitat for. Humanity of Denton County will use volunteer labor resources and donated materials when possible to lower the cost of housing production. Program participants will also provide "sweat equity" of some form (either on site or other volunteer work) to assist in the production of their home or provide assistance to other low-income households. Habitat will provide each family with a "no interest" rate loan for a twenty-year term. New homeowners will receive information on how to budget to ensure they have sufficient resources to make their payment to Habitat and maintain insurance, taxes and utility payments. Homeowners will also receive information regarding home maintenance. ATTACHMENT "B" PROJECT BUDGET . Land Acquisition TOTAL PROJECT BUDGET $25~000 $25,000