HomeMy WebLinkAboutContract 36275 CITY SECRETARY ��
CONTRACT NO.
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS contract ("Contract') is made and entered into by and between the City of Fort
Worth ("City"), whose address is 1000 Throckmorton St., Fort Worth TX 76102, acting by and
through Dale A. Fisseler, its duly authorized Assistant City Manager, and Samuels Avenue L.P.
("SALP"), whose address is c/o Fort Worth Housing Authority, P.O. Box 430, Fort Worth, Texas
76101 acting by and through Barbara Holston its duly authorized Vice President. (Sometimes
City and SALP are referred to individually as a"Party" and collectively as the"Parties").
WHEREAS, the City of Fort Worth ("City") has received a grant from the United States
Department of Housing and Urban Development ("HUD") through the HOME Investment
Partnerships Program ("HOME"), Program No. M-04-MC-48-0204, Catalog of Federal
Domestic Assistance ("CFDA") No. 14.239, with which the City desires to promote activities
that expand the supply of affordable housing and the development of partnerships among the
City, local governments, local lenders, private industry and neighborhood-based nonprofit
housing organizations;
WHEREAS, the primary purpose of the HOME program ("HOME Program") pursuant to
the HOME Investment Partnerships Act at Title II of the Cranston Gonzales National Affordable
Housing Act of 1990, as amended, 42 U.S.C. 12701 et seq. ("NAHA") and the HOME
Investment Partnerships Program Final Rule, as amended, 24 CFR Part 92 et seq. (the "HOME
Regulations" or"Regulations") is to benefit low and very-low income citizens by providing them
with affordable housing;
WHEREAS, SALP is a single asset for-profit entity created for the purpose of
constructing, owning and managing for a minimum of forty (40) years an affordable multifamily
rental housing project commonly known as The Pavilion at Samuels Avenue;
WHEREAS, SALP has entered into a long term ground lease with the Fort Worth
Housing Authority of the City of Fort Worth, Texas ("FWHA") covering the real property on
which the project shall be constructed;
WHEREAS, SALP is a Texas limited partnership by and between the Fort Worth
Housing Authority ("FWHA"), as Limited Partner and Pioneers of Samuels, LLC as General
Partner. Fort Worth Affordability, Inc., a Texas nonprofit corporation is the sole member of
Pioneers of Samuel, LLC;
WHEREAS, SALP has received an award of Low Income Housing Tax Credits
("LIHTC") from the Texas Department of Housing and Community Affairs ("TDHCA") to
construct The Pavilion at Samuels Avenue; and
WHEREAS, City citizens and the City Council have determii Leo,,t t4t �, pmnt of
safe, decent, and affordable rental housingis needed for moderate low c ' e, V1 K-. o m e
citizens of Fort Worth. v��lT csUu? IL! u
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NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
A. Introductory Provisions
1. Parties. The parties to this Contract are the City of Fort Worth, Texas ("City") and
Samuels Avenue L. P. ("SALP").
Addresses:
City
1000 Throckmorton Street
Fort Worth, TX 76102
SALP
c/o Fort Worth Housing Authority
P. O. Box 430
Fort Worth, Texas 76101
Agents:
City
City Manager, or his or her duly authorized representative, which will include
Dale A. Fisseler, Assistant City Manager
SALP
Barbara Holston, duly authorized Vice President of Fort Worth Affordability, Inc.
the sole member of Pioneers of Samuels 1, LLP, the general partner of SALP, and
authorized signatory
2. Subrecipient. SALP will operate as a subrecipient under this Contract.
3. Independent Contractor. SALP will operate hereunder as an independent contractor and
not as an officer, agent, servant or employee of City. SALP shall have exclusive control
of, and the exclusive right to control, the details of the work and services performed
hereunder, and all persons performing same, and shall be solely responsible for the acts
and omissions of its officers, members, agents, servants, employees, contractors, Project
participants, licensees or invitees. The doctrine of respondeat superior shall not apply as
between City and SALP, its officers, members, agents, servants, employees, contractors,
Project participants, licensees or invitees, and nothing herein shall be construed as
creating a partnership or joint enterprise between City and SALP. It is expressly
understood and agreed that no officer, member, agent, employee, contractor, licensee or
invitee of either SALP or any Project participant is in the paid service of City and that
City does not have the legal right to control the details of the tasks performed hereunder
by SALP, its officers, members, agents, employees, contractors, Project participants,
licensees or invitees. City shall in no way nor under any circumstances be responsible for
any property belonging to SALP, its officers, members, agents, employees, contractors,
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Project participants, licensees, invitees, which may be lost, stolen, destroyed or in any
way damaged and SALP HEREBY INDEMNIFIES AND HOLDS HARMLESS CITY
AND ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY
AND ALL CLAIMS OR SUITS PERTAINING OR CONNECTED WITH SUCH
PROPERTY,
4. Pu ose. The City will provide SALP with HOME funds ("HOME Funds") in the form
of a twenty (20) year interest bearing loan in the amount of ONE HUNDRED TWENTY-
SIX THOUSAND FIVE HUNDRED AND NO/100 dollars ($126,500.00) for the
refinance of a portion of its construction loan (the "Loan") for its affordable housing
apartment complex commonly known as the Pavilion at Samuels Avenue (the "Project").
HOME Funds must be used for eligible activities and costs in connection with the Project
set forth in the HOME Regulations, including but not limited to, direct construction costs,
architectural, engineering, attorney, consultant, appraisal and other applicable fees
directly related to carrying out the Project as well as the refinancing of such costs that
were eligible initially. The Project, located at 1100 Poindexter Street, Fort Worth, Texas
76102 (the "Leasehold Property"), will provide rental housing for low and very low
income persons.
5. Term. The Contract term will begin on the date of its execution. Certain Contract
provisions have different termination dates.
(a) The City's obligation to provide HOME Funds will terminate at the conclusion of
two (2) years. SALP may request that this Contract be continued for an additional six (6)
month term by requesting an extension in writing signed by a person authorized to sign
on behalf of SALP and submitting the request to City sixty (60) days prior to the end of
the Contract term. It is understood that it is within City's sole discretion whether to
approve or deny the request for an additional term. If the request for extension is
approved, the extension must be in writing as an amendment to this Contract and signed
and approved by the City Manager or his or her designee. In such case, the request for an
extension by SALP will be part of the Contract documents.
(b) The Loan term shall be twenty (20) years as described in the Loan Documents, as
hereinafter defined.
(c) The Affordability Period, as hereinafter defined, will be twenty (20) years.
B. SALP Responsibilities
1. Statement of Work and Performance Objectives. SALP will utilize HOME Funds to
refinance a portion of its construction loan on the Project to produce housing units for
lease to qualified low-income tenants in accordance with the terms of this Contract and
Exhibit"A"—Program Summary.
2. Budget. SALP agrees that the HOME Funds will be expended in accordance with
Exhibit "B" — Budget (the "Budget"). No change in the Budget shall be made without
City's prior written approval. SALP shall demonstrate to City's satisfaction that the
HOME Funds are leveraged by other funding sources, including LIHTC proceeds.
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3. Time Line for Goals and Expenditures. SALP shall work in accordance with the
schedule set forth in the attached Exhibit "C" —Project Implementation Timeline, and
ensure that Project goals and expenditures correspond with the completion of the Project.
4. HOME-Assisted Housing Units. Four (4) of the rental units developed by SALP will be
considered HOME-assisted units which will be leased to qualified low income tenants.
The per-unit subsidy provided for in this Contract is described in more detail in the
attached Exhibit "A" - Project Summary. These four (4) units may "float" throughout
the total number of units in the entire apartment complex, and shall be affordable to
tenants whose incomes are verified as being at or below sixty (60%) of area median
income ("AMI") as defined by HUD.
One of these four (4) units will be a one (1) bedroom unit, two (2) of the units will be two
(2) bedroom units, and one (1) unit will be a three (3) bedroom unit. If these four (4)
housing units do not qualify as affordable rental housing immediately upon lease-up or at
any time during the Affordability Period, the loan proceeds under this Contract will be
immediately due and payable to City.
5. Affordability Period.
Twenty Years. The four(4)HOME-assisted rental units developed by SALP must qualify
as affordable rental housing for a period of twenty (20) years from the date these units are
set up in HUD's Integrated Disbursement and Information System ("IDIS") maintained
by City and HUD as required by HOME Regulations (the "Affordability Period"). The
Affordability Period shall commence on the later of. (i) the date the Project is completed
and SALP has reported all income eligible tenant lease-up of all HOME-assisted units by
reporting to City the applicable tenant beneficiary data; or (ii) the data for the HOME-
assisted units is set up and completed in IDIS as required by the HOME Regulations.1
The four (4) rental housing units assisted under this Contract will remain affordable as
required by 24 CFR Part 92.252 of the Regulations.
Affordability Periods for HOME Projects. Housing purchased, renovated or constructed
with HOME Funds must remain affordable and subject to repayment for the following
minimum time periods: Five (5) years when the per unit amount of HOME Funds
provided is less than $15,000.00; Ten (10) years when the per unit amount of HOME
Funds provided is $15,000.00 to $40,000.00; Fifteen (15) years when the per unit amount
of HOME Funds provided is $40,000.00 or HOME-assisted rehabilitation of the units
involved refinancing; and twenty (20) years when the multi-family units are newly
constructed.
Loan Immediately Due Upon Failure to Maintain Affordability. SALP must repay City
all HOME Funds if any of the HOME-assisted rental housing units do not maintain all
the HOME affordability requirements during the Affordability Period.
' The terms"set up"and"completed"as used here in context of entering the information into IDIS,shall have the
meaning set out in HUD's IDIS Manual,which may be found at www.hud.gov/assist/acrobat.cfm
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Affordability Requirement Survives Transfer. Further, the rental housing units must
remain affordable without regard to the term of any mortgage or transfer of ownership,
pursuant to deed restrictions, the terms of the Loan Documents as hereinafter described,
or other mechanism approved by HUD.
Provisions to Secure Affordability.
a. The City's interest in preserving the affordability of the HOME-assisted units will
be secured by a combination of the subordinate Promissory Note and Leasehold
Deed of Trust described herein, and the Land Use Restriction Agreement
("LURA") established and enforced by TDHCA for the Low Income Housing
Tax Credits. If SALP retains ownership of the Project for the full Affordability
Period,no further HOME restrictions will apply.
b. Any sale or transfer of the Project by SALP during the Affordability Period will
require the new owner or transferee to affirmatively assume in writing the
obligations established hereunder for the designated HOME-assisted units.
C. Refinancing by SALP shall require the review and prior written approval of City
for the purpose of ensuring compliance with the HOME affordability
requirements.
6. Loan Conditions. SALP will be required to execute a subordinate Note and Leasehold
Deed of Trust ("Loan Documents") secured by SALP's interest in the Leasehold Property
in the amount of the Loan in conjunction with this Contract. The City's lien on the
Leasehold Property shall be subordinate to the LURA and to SALP's construction loan or
permanent financing. The term of the Loan shall be twenty (20) years. Interest at the
Applicable Federal Rate for long term debt shall be paid annually on the anniversary date
of the Promissory Note out of project cash flow before the payment of any deferred
developer fee. Principal and any accrued but unpaid interest shall be due at the end of the
Loan term. The Applicable Federal Rate for long term debt shall be that which is in
effect at the time of Loan closing. The Loan may be repaid with no prepayment penalty
from loan proceeds or other income prior to the end of the twenty (20)year Loan term.
Repayment of the Loan shall not relieve SALP of its responsibilities to maintain
affordability of the HOME-assisted units for the Affordability Period as set forth in the
Regulations. Further, all provisions of this Contract and particularly those provisions
regarding the requirements of Affordability Period, Income Eligibility, Tenant Rent and
Selection, Tenant Lease, and Housing Quality Standards for the designated HOME-
assisted units must be assigned to any new owner upon sale or transfer of the Project or
Property.
7. Income Eli ibility. The HOME Program uses the income definitions used by HUD's
Housing Choice Voucher Program. Annual income includes earned income, income
from assets, and income from other sources as defined by 24 CFR Part 5.609. Annual
income is used to establish tenant eligibility. SALP shall use the most current HUD
Income Guidelines and Technical Guidance for Determining Income and Allowances to
determine Project and tenant eligibility.
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8. Tenant Lease.
SALP shall use a tenant lease that complies with the provision in the HOME Regulations,
24 CFR Part 92.253, regarding the following issues:
a. Length of lease term shall not exceed one (1)year.
b. Lease may not include agreement by tenant to allow landlord to take, hold or sell
tenant's property without notice.
C. Lease may not include agreement by the tenant to excuse owner from
responsibility for intentional or negligent acts.
d. Lease may not authorize owner to institutes a lawsuit without notice to the tenant.
e. Lease may not include agreement by tenant to waive a jury trial or right of appeal.
f. Lease may not include an agreement by tenant to pay legal costs of court
proceeding even if the tenant prevails in those proceedings.
9. Tenant Rent and Selection. As applicable to the number of HOME-assisted units
designated for the Project and outlined in Exhibit "A" - Project Summary, rents
charged to tenants are subject to the HOME regulatory requirements at 24 CFR 92.252
(a) and (b). Rents charged to tenants in HOME-assisted units are subject to review and
approval by City. Under no circumstances may the maximum rental amounts charged to
tenants of HOME-assisted units exceed the "High HOME Rent" which is defined as the
lesser of(a) the HUD established Fair Market Rent for existing comparable housing units
in the area; or (b) thirty percent (30%) of the adjusted income of a family whose annual
income equals sixty-five percent (65%) of AMI with applicable adjustment for the
bedroom size of the relevant housing unit. Rents may not exceed the above amounts
minus monthly allowances for utilities and services (excluding telephone) established by
City. For projects with five (5) or more HOME-assisted units, twenty percent (20%) of
the HOME-assisted units must be occupied by families with incomes no higher than fifty
percent (50%) of AMI who are paying the "Low HOME Rent" which is defined as no
more than thirty percent (30%) of the annual income of a family at fifty percent (50%) of
AMI adjusted for family size. City agrees to provide SALP with copies of HUD
approved schedules of these HOME rent levels and utility allowances as requested by
SALP.
SALP must adopt written tenant selection policies and criteria that:
a. Are consistent with the purpose of providing housing for very low income and low
income persons.
b. Are reasonably related to Project eligibility and the applicants' ability to perform the
obligations of the lease.
c. Provide for (i) the selection of tenants from a written waiting list in the chronological
order of their application, insofar as is practicable; (ii) the prompt written notification
to any rejected applicant of the grounds for such rejected; and (iii) bi-lingual leasing
and management assistance.
d. Ensure that holders of rental assistance subsidies (such as HUD's Housing Choice
Voucher or similar subsidy) are not excluded from renting a unit in the Project.
10. Other Requirements.
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The Parties acknowledge that the HOME Funds paid hereunder are intended to provide
funding only for SALP's Project-related costs as specified in the attached Exhibit "B" -
Budget.
SALP shall maintain all appropriate documentation to demonstrate that the HOME Funds
shall not be used for costs that are ineligible under the HOME Program and that all such
costs are paid for by other funding sources.
SALP agrees to maintain full documentation supporting fulfillment of Project objectives
in its files. All such documentation shall be furnished to City upon request if necessary
for City to fulfill its obligations under its Federal grant.
11. Construction and Other Local Building Codes/Housing_Quality Standards.
Housing units constructed with HOME Funds furnished under this Contract shall meet
City's Housing Quality Standards and all other applicable standards under City Codes
and ordinances. SALP shall ensure that the Project is maintained to these standards for
the duration of the Affordability Period. City will verify maintenance of the Project to
these standards through on-site inspections according to the following schedule as
applicable: for projects with one (1) to four (4) HOME-assisted units, every three (3)
years; for projects with five (5) to twenty-five (25) HOME-assisted units, every two (2)
years; for projects with twenty-six (26) or more HOME-assisted units, every year.
All Project plans, specifications and work shall conform to all applicable Federal, state
and local laws, ordinances, rules and regulations. Approval of any plans and
specifications relating to the Project by City shall not constitute or be deemed (a) to be a
release of responsibility or liability of SALP, its officers, agents, employees or any of its
contractors, or any of their officers, agents, employees or contractors for the accuracy or
the competency of the plans and specifications, 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 or specifications or other documents by SALP or any
of its contractors, or any of their officers, agents, employees or contractors.
12. Reversion of Assets
SALP agrees to return to City any HOME Funds or property acquired with HOME
Funds, remaining on hand at the end of the Contract term that have not been used or
acquired, as the case may be in accordance with the provisions of this Contract or the
HOME Regulations. This provision specifically does not apply to CHDO Proceeds, if
any, which shall be used as described herein. If repayments, interest or other returns on
investment attributable to HOME Funds are received after the end of the term of this
Contract they shall be returned to City to be deposited in accordance with HOME
Regulations. SALP agrees that it will reimburse City for any expenditure of HOME
Funds disallowed by HUD through its audit exception or other monetary compliance
enforcement action. Any HOME Funds invested in housing that fails to meet
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affordability requirements for the Affordability Period must be repaid to City in
accordance with HOME Regulations.
13. Affirmative Marketing
SALP must adopt affirmative marketing procedures and requirements for all HOME
funded housing. The procedures and requirements must include methods for informing
the public, owners, and potential tenants about Fair housing laws and policies so as to
ensure that all individuals, without regard for race, color, religion, sex, national origin,
familial status or disability, are given an equal opportunity to participate in the Project.
SALP will be solely responsible for the effective marketing responsibilities necessary to
achieve SALP's Project goals.
14. Recordkeeping
a. SALP will keep or cause to be kept an accurate record of all actions taken and all
funds expended in performance of this Contract. Such records and any source
documents shall be kept for the Affordability Period.
b. SALP will obtain and keep on file the following information on each tenant
served by the HOME-assisted units of the Project throughout the Affordability
Period:
1. Annual income and size of the household.
2. Race and ethnicity of each tenant household, using reporting categories
required by HUD.
3. Whether the head of household is male or female, whether the head of
household is single, whether any member of the household is disabled, and
the number of any children in the household (if any).
4. Unit number and bedroom size of each HOME-assisted unit.
5. Type of any rental assistance being provided to each tenant, (i.e. Housing
Choice Voucher, Supportive Housing Program, other federally funded
rental assistance, etc.).
6. Any additional Project performance data and statistical information as
may be required by the City Housing Department, HOME Regulations or
other HUD regulations and any amendments thereto.
C. SALP will keep on file the following information and documentation:
1. Proof that the Project meets applicable property, building construction and
housing quality standards.
2. Documentation verifying compliance with affirmative marketing
requirements and existence of acceptable procedures.
3. Documentation verifying compliance with SALP's temporary relocation
plan and HUD relocation requirements, as applicable.
4. Documentation and other information verifying compliance with HOME
conflict of interest regulations at 24 CFR 92.356(f), which provide that no
officers, agents, consultants or employees of the developer of HOME-
Assisted units may occupy such units.
d. City will monitor and inspect the Project throughout the Affordability Period to
ensure continues compliance with rent restrictions, low-income occupancy
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requirements, and property standards. SALP shall maintain tenant income
recertification documentation in the tenant files available for inspection by City.
15. Reports.
SALP shall report tenant lease-up beneficiary and household characteristics to City on
Attachment IVa—Beneficiary Performance Report.
During the Affordability Period, SALP shall submit initial unit rents including utility
allowances, income verification and beneficiary data within thirty (30) days after
obtaining full occupancy, and annually thereafter due by the 15`h day of the third month
after the end of the calendar year.
During the term of this Contract, SALP will submit to City monthly activity reports and
financial reports due by the 15`h of each month, regarding the services provided by SALP
as a result of this Contract and the expenses charged to the HOME Funds provided
through this Contract, with the first report due on the 15`h of the month immediately
following execution of this Contract. These reports shall be submitted in the format
specified by City. The reports will provide details on:
a. Progress toward achievement of objectives identified in Exhibit "A" — Project
Summary.
b. The dollar amount of funds leveraged by this Contract, including any items that
qualify as HOME match.
SALP will submit to City annually during the Affordability Period a copy of its financial
audit and the report SALP provides to TDHCA for LIHTC reporting purposes.
16. Cost Principles.
SALP shall administer the Project in compliance with OMB Circular A-122, "Cost
Principles for Non-Profit Organizations," as amended from time to time and in
compliance with the following:
a. All non-federal entities that expend $500,000.00 or more in Federal funds within
one year, regardless of the source of the Federal award, must submit to City an
annual audit prepared in accordance with specific reference to OMB Circular A-
133, "Audits of States, Local Governments, and Non-Profit Organizations." The
audit may cover either SALP's fiscal year during which this Contract is in force
or cover the term of this Contract. The audit must be prepared by an independent
certified public accountant, be completed within twelve (12) months following the
end of the period being audited and be submitted to City within thirty (30) days of
its completion. SALP's audit certification is attached hereto as Exhibit "D" —
Audit Certification Form and Audit Requirements. The Audit Certification
Form must be submitted to City within sixty (60) days of the end of the period
being audited (SALP's fiscal year). Costs of preparation of this audit may be an
allowable expenditure of Federal funds in an amount proportional to that of the
Federal Funds used in SALP's total agency operating budget as applicable. Non-
profit entities that expend less than $500,000.00 a year in Federal funds are
exempt from Federal audit requirements for that year, but records must be
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available for review or audit by appropriate officials of the Federal agency, city,
and General Accounting Office.
b. City reserves the right to perform an audit of SALP's Project operations and
finances at any time during the term of this Contract if City determines that such
audit is necessary for City's compliance with OMB Circular A-133 and SALP
agrees to allow access to all pertinent materials including but not limited to those
records and reports described above. If such audit reveals a questioned practice or
expenditure, such questions must be resolved within fifteen (15) days after notice
to SALP of such questioned practice or expenditure. If questions are not resolved
within this period, City reserves the right to withhold further funding under this
Contract and/or future contract(s) with SALP.
C. If as a result of any audit it is determined that SALP has misused, misapplied or
misappropriated all or any part of the HOME Funds, SALP agrees to reimburse
the City the amount of such monies so misused, misapplied or misappropriated,
plus the amount of any sanctions, penalty or other charge levied against City by
HUD because of such misuse,misapplication or misappropriation.
17. Monitor Effectiveness of Services and Work
City will review the activities and performance of SALP for this Project not less than
annually during the term of the Contract as required in Section 92.504 of the HOME
Regulations and not less than every three (3) years during the Affordability Period
following completion of construction of the HOME-assisted units as required by Section
92.504(d)(1) of the HOME Regulations. Monitoring during the Affordability Period
shall include on-site inspection of all HOME-assisted units no less than every three (3)
years during the Affordability Period, and review of tenant income documentation
described in this Contract.
SALP agrees to fully cooperate with City in monitoring the effectiveness of the services
and work to be performed by SALP in compliance with the terms of this Contract. City
shall have access at all reasonable hours for the purpose of such monitoring to offices and
records of SALP, its officers, directors, agents, employees, and contractors and
subcontractors dealing with the use of the HOME Funds.
SALP agrees to likewise monitor the effectiveness of the services and work to be
performed by its contractors and subcontractors.
18. Assignment. SALP shall not assign all or any part of its rights, privileges, or duties under
this Contract without City's prior written consent, which shall not be unreasonably
withheld. Any attempted assignment of this Contract without approval shall be void, and
shall constitute a breach of this Contract. It is agreed that City has the right to inspect
and approve in writing any proposed contracts between SALP and any contractor (and
where applicable, between SALP's contractors and their subcontractors) engaged in any
activity in conjunction with this HOME-funded project prior to any charges being
incurred.
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19. Certification Regarding Lobbying. The undersigned representative of SALP hereby
certifies, to the best of his or her knowledge and belief, that:
No Federal appropriated funds have been paid or will be paid, by or on
behalf of SALP, to any person for influencing or attempting to influence
an officer or employee of any agency, a member of Congress, an officer or
employee of Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any Federal loan,
the entering into of any cooperative agreement and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan or cooperative agreement.
If any funds other than federally appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer
or employee of any agency, member of Congress in connection with this
Federal contract, grant, loan or cooperative agreement, SALP shall
complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
This certification is a material representation of fact upon which reliance
was placed when this Contract was made or entered into. Submission of
this certificate is a prerequisite for making or entering into this Contract
imposed by 31 USC Section 1352. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than
$10,000.00 and not more than$100,000.00 for each such failure.
SALP shall require that the language of this certification be included in all contracts or
agreements involving the expenditure of Federal funds.
20. Indemnification.
SALP COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND
DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS,
SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL
CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR
PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF
WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED,
ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE
OF THIS CONTRACT AND/OR THE OPERATIONS, ACTIVITIES AND
SERVICES OF THE PROJECT DESCRIBED HEREIN, WHETHER OR NOT
CAUSED IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR
SUBCONTRACTORS OF CITY; AND SALP HEREBY ASSUMES ALL
LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS,
SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR
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PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR
CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN
CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED
PERFORMANCE OR NONPERFORMANCE OF THIS CONTRACT AND
AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES OF
THE PROJECT DESCRIBED HEREIN, WHETHER OR NOT CAUSED IN
WHOLE OR IN PART BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF
CITY. SALP LIKEWISE COVENANTS AND AGREES TO AND DOES
HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST
ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF
CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR
OMISSIONS OF SALP, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, INVITEES, LICENSEES, OR
PROJECT PARTICIPANTS, OR CAUSED, IN WHOLE OR IN PART, BY
ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF CITY.
IT IS THE EXPRESS INTENTION OF THE PARTIES, BOTH SALP AND CITY,
THAT THE INDEMNITY PROVIDED FOR THIS SECTION INCLUDES
INDEMNITY BY SALP TO INDEMNIFY AND PROTECT CITY FROM THE
CONSEQUENCES OF CITY'S OWN NEGLIGENCE, WHETHER THAT
NEGLIGENCE IS ALLEDGED TO BE THE SOLE OR CONCURRING CAUSE
OF THE INJURY, DAMAGE OR DEATH.
SALP AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES,
OFFICERS AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR
INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY
SUSTAINED IN CONNECTION WITH OR INCIDENTIAL TO PERFORMANCE
UNDER THIS CONTRACT, EVEN IF THE INJURY, DEATH, DAMAGE OR
LOSS IS CAUSED BY THE CITY'S SOLE OR CONCURRENT NEGLIGENCE.
SALP SHALL REQUIRE ALL OF ITS CONTRACTORS AND
SUBCONTRACTORS TO INCLUDE IN THEIR CONTRACTS AND
SUBCONTRACTS A RELEASE AND INDEMNITY IN FAVOR OF THE CITY
IN SUBSTANTIALLY THE SAME FORM AS ABOVE.
21. Waiver of Immunity. If SALP, as a charitable or nonprofit organization, has or claims an
immunity or exemption (statutory or otherwise) from and against liability for damages or
injury, including death, to persons or property, it hereby expressly waives its rights to
plead defensively such immunity or exemption as against City. This section shall not be
construed to affect a governmental entity's immunities under constitutional, statutory or
common law.
22. Insurance and Bonding. For the term of this Contract, SALP will maintain blanket
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Samuels Avenue, LP REV. 11-29-07
fidelity coverage in the form of insurance or bond in the amount of$25,000.00 to insure
against loss from the fraud, theft or dishonesty of any of SALP's officers, agents, trustees,
directors or employees. The proceeds of such bond shall be used to reimburse City for
any and all loss of HOME Funds occasioned by such misconduct. To effectuate such
reimbursement, such bond shall include a rider stating that reimbursement for any loss or
losses thereunder shall be made directly to City for the use and benefit of SALP.
SALP shall furnish to City, in a timely manner, certificates of insurance as proof that it
has secured and paid for policies of commercial insurance as specified herein. Such
insurance shall cover all insurable risks incident to or in connection with the execution,
performance, attempted performance or nonperformance of this Contract. SALP shall
maintain the following coverages and limits thereof.
Commercial General Liability(CGL) Insurance
$500,000 each occurrence
$1,000,000 aggregate limit
Business Automobile Liability Insurance
$1,000,000 each accident on a combined single-limit basis, or
$250,000 Property Damage
$500,000 Bodily Injury per person per occurrence
$2,000,000 Aggregate
Insurance policy shall be endorsed to cover"Any Auto"
Pending availability of the above coverage and at the discretion of the SALP, the
policy shall be the primary responding insurance policy versus a personal auto
insurance policy if or when in the course of SALP's business as contracted herein.
Workers' Compensation Insurance
Part A: Statutory Limits
Part B: Employer's Liability
$100,000 each accident
$100,000 disease-each employee
$500,000 disease-policy limit
Note: Such insurance shall cover employees performing work on any and all
projects including but not limited to construction, demolition, and rehabilitation.
SALP or its contractors shall maintain coverages. In the event the respective
contractors do not maintain coverage, SALP shall maintain the coverage on such
contractor for each applicable contract.
Directors and Officers Insurance
Optional (Highly Recommended)
Note: This insurance shall cover SALP and any member of its Board of
Directors.
Additional Requirements:
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Samuels Avenue, LP REV. 11-29-07
Such insurance amounts shall be revised upward at City's option, and SALP shall
revise such amounts within thirty (30) days following notice to SALP of such
requirements.
SALP will submit to City documentation showing that it has obtained
insurance coverage and has executed bonds as required in this Contract
prior to payment of any monies provided hereunder.
Each insurance policy shall be endorsed to provide City with a minimum sixty
(60) days notice of cancellation, non-renewal, and/or material change in policy
terms or coverage.
Insurance policies required herein shall be endorsed to include City as an
additional insured as its interest may appear. Additional insured parties shall
include employees, officers, agents, and volunteers of the City.
The Workers' Compensation Insurance policy shall be endorsed to include a
waiver of subrogation, also referred to as a waiver of rights of recovery, in favor
of City.
Any failure on part of the City to request certificate(s) of insurance shall not be
construed as a waiver of such requirement or as a waiver of the insurance
requirements themselves.
Insurers of SALP's insurance policies shall be licensed to do business in the state
of Texas by the Department of Insurance or be otherwise eligible and authorized
to do business in the state of Texas. Insurers shall be acceptable to the City
insofar as their financial strength and solvency and each such company shall have
a current minimum A.M. Best Key Rating Guide rating of A: VII or other
equivalent insurance industry standard rating otherwise approved by City.
Deductible limits on insurance policies shall not exceed $5,000 per occurrence
unless otherwise approved by City.
In the event there are any local, federal or other regulatory insurance or bonding
requirements for the Project and such requirements exceed those specified herein,
the former shall prevail.
As applicable, SALP shall require its contractors to maintain applicable insurance
coverages, limits, and other requirements as those specified herein; and, SALP
shall require its contractors to provide SALP with certificate(s) of insurance
documenting such coverage. Also, SALP shall require its contractors to have City
and SALP endorsed as additional insureds (as their interest may appear) on their
respective insurance policies. SALP shall require its contractors to maintain
builders risk insurance at the limit of applicable project(s) costs when the value of
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Samuels Avenue,LP REV. 11-29-07
materials involved exceeds $10,000 or at a different limit value as specified by the
City of Fort Worth.
C. Duties and Responsibilities of City
1. Disbursement of Funds.
City will furnish HOME Funds for use as stated herein. City will monitor the use of such
funds to ensure appropriate use. Funds shall be disbursed after execution of this Contract
and in compliance with its provisions. Payment to SALP shall require completion of
appropriate City forms and copies of adequate supporting documentation verifying the
eligibility of expenses. Reimbursement of eligible expenses shall be made against the
line item budgets specified in Exhibit "B" — Budget. SALP may not increase or
decrease any HOME-funded line-item amounts of the Budget without City's prior written
approval. No additional funds will be disbursed if the City has not received the necessary
financial reports that account for previously disbursed funds. Costs eligible for
reimbursement may include certain costs directly related to and in support of the Project,
as verified by City, which were incurred prior to execution of this Contract. To further
the purposes of the Project and only as requested in writing by SALP, City may disburse
funds to directly pay SALP vendors in accordance with the City Housing Department's
Disbursement Policy for CHDOs, Model Blocks and Subrecipients.
2. Amount of Funds. It is agreed that the total distribution of HOME Funds made available
to or paid on behalf of SALP during the term of this Contract shall not exceed the total
sum of ONE HUNDRED TWENTY-SIX THOUSAND FIVE HUNDRED and NO/100
Dollars ($126,500.00).
D. General Provisions
1. Legal Authority. This Contract is governed by the statute and regulations governing the
HOME program("HOME Program")pursuant to the HOME Investment Partnerships Act
at Title II of the Cranston Gonzales National Affordable Housing Act of 1990, as
amended, 42 U.S.C. sections 12701 et seq. ("NAHA") and the HOME Investment
Partnerships Program Final Rule, as amended, 24 CFR Part 92 et seq. (the "HOME
Regulations" or "Regulations") which are for the benefit low and very low income
citizens by providing them with affordable housing; and City and SALP agree to follow
these and all other applicable laws.
SALP 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 Contract. Those laws
include, but are not limited to:
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Samuels Avenue,LP REV. 11-29-07
• Federal
HOME Investment Partnership 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
Title VII of the Civil Rights Act of 1968 (42 U.S.C. section 3601 et seq.)
Executive Orders 11063, 11246 as amended by 11375 and 12086 and as
supplemented by Department of Labor regulations 41 CFR, Part 60
The Age Discrimination in Employment 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 (URA) (42 U.S.C. section 4201-4655 and 49 CFR Part 24)
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. sections 794 et seq.) and
24 CFR Part 8 where applicable
National Environmental Policy Act of 1969, as amended, 42 U.S.C. sections 4321
et seq. ("NEPA") and the related authorities listed in 24 CFR Part 58.
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. section 1251 et seq.) and the
related Executive Order 11738. In no event shall any amount of the
assistance provided under this Contract be utilized with respect to a
facility that has given rise to a conviction under the Clean Air Act or the
Clean Water Act.
Immigration Reform and Control Act of 1986 (8 U.S.C. section 1101 et seq.)
specifically including the provisions requiring employer verifications of
legal status of its employees
The American with Disabilities Act of 1990 (42 U.S.C. section 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
Regulations at 24 CFR Part 87 related to lobbying, including the requirement that
certifications and disclosures be obtained from all covered persons
Drug Free Workplace Act of 1988 (41 U.S.C. sections 701 et seq.) and 24 CFR
Part 23, Subpart F
Executive Order 12549 and 24 CFR Part 5.105(c) pertaining to restrictions on
participation by ineligible, debarred or suspended persons or entities
Regulations at 24 CFR Part 882.708(c) pertaining to site and neighborhood
standards for new construction projects
• Certain Requirements Pertaining to Section 3 of the Housing and Urban
Development Act of 1968 as amended (12 U.S.C. section 1701 et sego) and its
related regulations at 24 CFR Part 135
As the work performed under this Contract is on a project assisted under a
program providing direct Federal financial assistance from HUD, Section 3 of 24
CFR 135.38 ("Section 3") requires that the following clause be inserted in all
covered contracts ("Section 3 Clause"):
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Samuels Avenue, LP REV. 11-29-07
"A. The work to be performed under this contract is subject to the
requirements of Section 3 of Housing and Urban Development Act of
1968, as amended, 12 U.S.C. section 170lu (Section 3). The purpose of
Section 3 is to ensure that employment and other economic opportunities
generated by HUD assisted or HUD-assisted projects covered by Section
3, shall to the greatest extent feasible, be directed to low- and very-low
income persons, particularly persons who are recipients of HUD assistance
for housing.
B. The parties to this contract agree to comply with HUD's regulations in 24
CFR Part 135, which implement Section 3. As evidenced by their
execution of this contract, the parties to this contract certify that they are
under no contractual or other impediment that would prevent them from
complying with the Part 135 regulations.
C. The contractor agrees to send to each labor organization or representative
of workers with which it has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers'
representatives of the contractor's commitments under this Section 3
clause and will post copies of the notice in conspicuous places at the work
site where both employees and applicants for training and employment
positions can see the notice. The notice shall describe the Section 3
preference, shall set forth minimum number and job titles subject to hire,
availability of apprentice and training positions, the qualifications for
each; and the name and location of the person(s) taking applications for
each of the positions; and the anticipated date the work shall begin.
D. The contractor agrees that it will include this Section 3 clause in every
subcontract to comply with regulation in 24 CFR Part 135, and agrees to
take appropriate action, as provided in an applicable provision of the
subcontract or in this Section 3 clause, upon finding that the subcontractor
is in violation of the regulations in 24 CFR Part 135. The contractor will
not subcontract with any subcontractor where it has notice or knowledge
that the subcontractor has been found in violation of regulations in 24 CFR
135.
E. The contractor will certify that any vacant employment positions,
including training positions that are filed: (1) after the contractor is
selected but before the contract is executed, and (2) with persons other
than those to whom the regulations of 24 CFR Part 135. The contractor
will not subcontract with any subcontractor where it has notice or
knowledge that the subcontractor has been found in violation of
regulations in 24 CFR 135.
F. Noncompliance with HUD's regulation in 24 CFR Part 135 may result in
sanctions, termination of this contract for default, and debarment or
suspension from future HUD assisted contracts.
G. With respect to work performed in connection with Section 3 covered
Indian housing assistance, section 7(b) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. section 450e) also applies to the
work to be performed under this Contract. Section 7(b)requires that to the
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Samuels Avenue,LP REV. 11-29-07
greatest extent feasible (i) preference and opportunities for training and
employment shall be given to Indians, and (ii) preference in the award of
contracts and subcontracts shall be given to Indian organizations and
Indian-owned Economic Enterprises. Parties to this contract that are
subject to the provisions of Section 3 and Section 79b) agree to comply
with Section 3 to the maximum extent feasible, but not in derogation of
compliance with Section 7(b)."
City and SALP 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 the City and SALP, and their respective
successors, assigns and the contractors. Failure to fulfill these requirements shall
subject SALP and its contractors 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.
Prohibition Against Discrimination
SALP, in the execution, performance or attempted performance of this Contract,
will not discriminate against any person because of sex, race, religion, color,
disability or national origin, or familial status, nor will SALP permit its officers,
members, agents, employees, or Program participants to engage in such
discrimination.
During the performance of this Contract SALP agrees, and will require all its
contractors to agree, as follows:
SALP will not unlawfully discriminate against any employee or applicants for
employment because of race, color, religion, sex, disability or national origin.
SALP will take affirmative action to ensure that applicants are employed and that
employees are treated fairly during employment without regard to their race,
color, religion, sex, disability or national origin. 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.
SALP agrees to post in conspicuous places, available to employees and applicants
for employment, notices setting forth the provisions of this nondiscrimination
clause.
SALP will, in all solicitations or advertisements for employees placed by or on
behalf of SALP, state that all qualified applicants will receive consideration for
employment without regard to race, color, religion, sex or national origin.
SALP covenants that neither it nor any of its officers, members, agents,
employees, Project participants or contractors, while engaged in performing this
Contract, shall, in connection with the employment, advancement or discharge of
HOME FUNDS Page 18
Samuels Avenue, LP REV. 11-29-07
employees or in connection with the terms, conditions or privileges of their
employment, discriminate against persons because of their age or because of any
handicap, except on the basis of a bona fide occupational qualification, retirement
plan or statutory requirement.
SALP further covenants that neither it nor its officers, members, agents,
employees, contractors, Project participants, or persons acting on their behalf,
shall specify, in solicitations or advertisements for employees to work on this
Contract, a maximum age limit for such employment unless the specified
maximum age limit is based upon a bona fide occupational qualification,
retirement plan or statutory requirement.
In accordance with the provisions of the Americans With Disabilities Act of 1990
("ADA"), SALP warrants that it and any of its contractors 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 SALP or any of its contractors.
SALP 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 OR
CONTRACTORS AGAINST CITY ARISING OUT OF SALP'S AND/OR
ITS CONTRACTORS' ALLEGED FAILURE TO COMPLY WITH THE
ABOVE-REFERENCED LAWS CONCERNING DISABILITY
DISCRIMINATION IN THE PERFORMANCE OF THIS CONTRACT.
This Contract is made and entered into with reference specifically to the
ordinances codified at Chapter 17, Article 111, Division 3 ("Discrimination in
Employment Practices") of the City Code, and SALP hereby covenants and
agrees that SALP, its officers, members, agents, employees and contractors, have
fully complied with all provisions of same and that no employee, applicant or
Project participant has been discriminated against under the terms of such
ordinances by either the SALP or its officers, members, agents, employees or
contractors.
• Prohibition Against Interest
No member, officer or employee of City or its designees or agents; no member of
the governing body of the locality in which the Project is situated; and no other
public official of such locality or localities, who exercises any functions or
responsibilities with respect to the Project funded hereunder during his or her
tenure or for one (1) year thereafter, shall obtain a financial benefit or have any
interest, direct or indirect, in any contract or subcontract or the proceeds thereof,
for work to be performed hereunder. SALP shall incorporate, or cause to be
incorporated, like language prohibiting such interest in all contracts and
subcontracts entered into in connection with the Project.
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Samuels Avenue,LP REV. 11-29-07
No officer, employee, member or Project participant of SALP or its contractors
shall have a financial interest, direct or indirect, in this Contract or the HOME
Funds transferred hereunder or be financially interested, directly or indirectly, in
the sale to SALP of any land, materials, supplies or services purchased with any
funds transferred hereunder, except on behalf of SALP as an officer, or employee.
Any willful violation of this paragraph with the knowledge, expressed or implied,
of SALP or its contractors shall render this Contract voidable by the City.
No officer, employee, agent, consultant, elected official or appointed official of
the participating jurisdiction, SALP or its contractors who exercised any functions
or responsibilities with respect to activities assisted with HOME Funds or who are
in a position to participate in a decision making process or gain inside information
with regard to these activities, may obtain a financial interest or benefit from a
HOME-assisted activity, or have an interest in any contract, subcontract, or
agreement with respect thereto, or the proceeds thereunder, either for themselves
or those with whom they have family or business ties, during their tenure or for
one (1) year thereafter.
In the procurement of property and services by SALP, the conflict of interest
provisions of 24 CFR Part 8536 and 24 CFR Part 84.42, respectively, shall apply.
In all cases not governed by those sections, the provisions of 24 CFR Part 92.356
of the HOME regulations shall apply.
• Minority and Women Business Enterprise Commitment
SALP agrees to abide by the City's policy to involve Minority and Women
Business Enterprises ("M/WBEs") in all phases of its procurement practices and
to provide them equal opportunity to compete for contracts for construction,
provision of professional services, purchase of equipment and supplies and
provision of other services required by City. Therefore, SALP agrees to
incorporate City Ordinance No. 15530, and all amendments or successor policies
thereto, into all contracts and subcontracts and will further require all persons or
entities with whom it contracts to comply with said ordinance.
2. Termination.
City: City may terminate this Contract in the event of SALP's default, inability or failure
to perform, or whenever such termination is determined by the City to be in the City's
best interest. City shall notify SALP in writing of any breach of this Contract and specify
a reasonable time to cure the breach. If SALP fails to cure the breach within the time
state in the notice, this Contract shall automatically terminate at the expiration of the
stated time allowed for cure.
SALP: SALP may terminate this Contract if the City does not provide the HOME Funds
set forth in this Contract.
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Samuels Avenue, LP REV. 11-29-07
Unused Home Funds. Upon termination, either by SALP or City, SALP will return to
City all unused HOME Funds previously distributed under this Contract within thirty (30)
days of the effective date of Contract termination. City will have no responsibility or
liability for SALP's expenditures or actions occurring after the effective date of Contract
termination.
Affordability and Certain Other Requirements Survive Termination. SALP agrees that
any provision of this Contract that pertain to affordability, tenant eligibility, and City
Building Codes, ordinances and housing quality standards, as well as any applicable
HOME requirements shall survive the termination of this Contract and shall be governed
by the HOME Regulations and the provisions of the LURA as well as the Loan
Documents securing affordability.
Mutual Agreement. This Contract may be terminated for mutual convenience upon
written agreement of the Parties.
3. Venue. Venue for any action, whether real or asserted, at law or in equity, regarding the
execution, performance, attempted performance or non-performance or any other action
or claim arising out of this Contract shall lie in Tarrant County, Texas.
4. Written Instrument Entire Agreement. This written instrument and the exhibits attached
hereto, which are incorporated by reference and made a part of this Contract for all
purposes, constitute the entire agreement by the City and SALP concerning the work and
services to be performed under this Contract. Any prior or contemporaneous oral or
written agreement which purports to vary the terms of this Contract shall be void. Any
amendments to the terms of this Contract must be in writing and must be approved by
each Party to this Contract.
5. Severable. The provisions of this Contract are severable, and, if for any reason a clause,
sentence, paragraph or other part of this Contract shall be determined to be invalid by a
court or Federal or state agency, board or commission having jurisdiction over the subject
matter hereof, such invalidity shall not affect other provisions which can be given effect
without the invalid provision.
6. No Waiver. The City's failure to insist upon the performance of any term or provision of
this Contract or to exercise any right herein conferred shall not be construed as a waiver
or relinquishment to any extent of the City's right to assert or rely upon any such term or
right on any future occasion.
7. Paragraph Headings. The paragraph headings contained herein are for convenience in
reference to this Contract and are not intended to define or to limit the scope of any
provision of this Contract.
8. Miscellaneous Provisions.
All terms of this Contract shall apply to any and all contractors of SALP who are in any
way paid with HOME Funds or who perform any work in connection with the Project.
HOME FUNDS Page 21
Samuels Avenue,LP REV. 11-29-07
All notices required or permitted by this Contract must be in writing and are deemed
delivered on the earlier date of the date actually received or the third day following (i)
deposit in a Untied States Postal Service post office or receptacle; (ii) with proper
postage, certified mail return receipt requested; and (iii) addressed to the other Party at
the address set out in the preamble of this Contract or at such other address as the
receiving Party designates by proper notice to the sending Party.
If applicable, SALP must meet conditions and limitations for use of HOME Funds
involving a primarily religious entity as set forth in the HOME Regulations.
SALP shall notify City in writing of any changes in its 501 (c) (3) tax exempt status
during the term of this Contract.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
HOME FUNDS Page 22
Samuels Avenue,LP REV. 11-29-07
IN WITNESS WHEREOF, the Parties hav executed fur copies of this Contract in Fort
Worth, Tarrant County, Texas, this day of , 2007.
ATTEST: TY OF FORT W RTH
r
r �
By:
City Secretary I Dale A. Fisseler, A sistant City Manager
Date:Lsk�
APPROVED AS TO FORM AND LEGALITY:
Assistant City Attorney
SAMUELS AVENUE, LP
By: Pioneers of Samuels, LLC
antra t �uthorization Its General Partner
By: Fort Worth Affordability, Inc.
Its Sole Member
By: luaio, L�t�
Barbara Holston, Vice President
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me ±oWokrth, on
, 2007, by
Dale A. Fisseler, Assistant City Manager of the City be if the City of Fort
C
Worth.
t „{J ANA L.BRISENO //�� �lJ
Notary Public.Stale of Texas
My Commission Expires Notary Public, State of Texas
March 07,2011
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on oVem be r 2007'
by Barbara Holston, Vice President of Fort Worth Affordability, Inc., a Texa non-profit
corporation, the Sole Member of Pioneers of Samuels LLC, a Texas limited liability company,
the General Partner of Samuels Avenue, LP, a Texas limited „artnership, on behalf of said limited
partnership.
EVA C.KEY
`* 21��,*' MY COMMISSION EXPIRES
_W. fir•' August 12,M Notary , St to of Texas
I
HOME FUNDS '
Samuels Avenue, LP -
EXHIBIT "A"
PROJECT SUMMARY
SCOPE OF WORK
Samuels Avenue, LP ("SALP")
DESCRIPTION:
Samuels Avenue, LP, an affiliate of the Fort Worth Housing Authority ("FWHA"), has
constructed a 36-unit affordable housing apartment complex known as the Pavilion at
Samuels Avenue, located at 1100 Poindexter, Fort Worth, TX 76102 (the "Project").
Primary funding for the Project will be from Low Income Housing Tax Credits ("LIHTC")
allocated by the Texas Department of Housing and Community Affairs ("TDHCA"). The
Project will be constructed in accordance with the LIHTC proposal and all applicable
amendments submitted to TDHCA during the 2005 application round. For the twenty (20)
year HOME-required Affordability Period, the Project will be managed by SALP (or its
assigns) in compliance with this Contract and applicable provisions of all HOME
Regulations governing rental projects. All units in the Project will be affordable to
households at or below 60% of Area Median Income ("AMI") as established by HUD.
The HOME Funds will be provided in the form of a twenty year balloon loan, with simple
interest at the Applicable Federal Rate for long term debt in effect at the time of Loan
closing. Interest shall be paid annually upon the anniversary date of the Loan Documents
out of Project cash flow before payment of any deferred developer fee. Payment of all
principal and any accrued but unpaid interest will be due and payable on the twentieth
anniversary date of execution of the Loan Documents. In consideration for HOME Funds
provided through this Contract, SALP and FWHA agree to provide the following
information and meet the following requirements:
• Designate four (4) units in Project as HOME-assisted units affordable to low-income
tenants at 60% of AMI or below. The bedroom sizes of the designated HOME-
assisted units shall be one (1) one-bedroom unit, two (2) two-bedroom units, and one
(1) three-bedroom unit. These units shall not be fixed, but shall "float" throughout
the Project.
• During lease-up period and until Project is fully leased, report on a quarterly basis
summary beneficiary data regarding the household income, size, race, ethnicity,
gender of head of household, disability status, and rental assistance type for all
tenants residing in HOME-assisted units, on the form attached to this Contract as
Attachment IVa—Beneficiary Performance Report.
• Submit to City a copy of SALP's annual financial audit and TDHCA LIHTC
compliance report for the Affordability Period.
SPECIFIC PURPOSE: The specific purpose of this Project is to increase the availability of
decent affordable housing for low income residents of the city of Fort Worth.
PROGRAM OBJECTIVES: Construction of affordable housing project to create 36 new
units. Four(4) of these units will be dedicated HOME-assisted units,with a per-unit
subsidy amount of$31,625 per unit($126,500/4 = $31,625).
EXHIBIT "B"
BUDGET
Cost Item HOME Funds* Other Sources
Tax Credits,etc.
Land and Holding Costs 197,500
Construction Hard Costs
General Requirements/Job Overhead 406,271
Site work 396,790
Concrete 433,426
Framing 863,710
Masonry 26,616
Metal /Hardware 35,889
Insulation 35900
Roofing 50,492
Electrical 157,825
Plumbing 185,080
HVAC 103,600
Glass 64,928
Flooring 47,310
Painting/Decorating/Specialties 85,012
Appliances 39,853
Clean-up 66,372
Contractor Fees 153,703
Contingency 74,977
Construction Soft Costs
Architectural Design 175,000
Attorney & Accounting Fees 110,000
Building Permits 20,000
Appraisal & Market Analysis 12,500
Environmental Assessment/ Soils Report 8500
Survey 8,000
Marketing 25,000
Hazard & Liability Insurance 25,000
Developer Fee 425,098
Construction Interest 278,476
Loan Costs 12,750
Title & Recording 25,000
Closing Costs 25,000
Inspection Fees 13,300
Contingency &Reserves 165,000
Totals $126,500 $4,628,378
* To be paid as refinancing costs, upon closing=taking out a portion of SALP's construction loan
through a 20 year permanent loan for this $126,500.00 portion of construction costs.
EXHIBIT "C"
PROJECT IMPLEMENTATION TIMELINE
NEW CONSTRUCTION OF THE PAVILION AT SAMUELS AVENUE
Target Development Activity
Spring 2007 Samuels Avenue, LP executes an agreement for syndication and sale of the
allocation of Low Income Housing Tax Credits, and executes all required TDHCA legal documents,
including the Land Use Restriction Agreement ("LURA").
March 30, 2007 Samuels Avenue, LP executes an agreement for construction of the 36 unit project.
Spring, 2007 Samuels Avenue, LP begins construction of the Project
December, 2007 Samuels Avenue, LP executes an agreement with a lender for permanent financing
of the project. Simultaneously, Samuels Avenue, LP executes its Contract and Loan Documents with the
City of Fort Worth and closes on the HOME Funds loan of $126,500, as a portion of the permanent
financing.
December 31, 2007 Samuels Avenue, LP (or assigns) completes construction of the project.
February 28, 2007 Samuels Avenue, LP (or assigns) leases all units in accordance with established
written tenant-selection procedures and all applicable HOME Regulations.
Jan. to Dec. 2008 During the first year of unit lease-up, Samuels Avenue, LP submits quarterly
reports of the following to City:
a) Copy of rent roll and copy of lease forms used.
b) Designation by unit of the four (4) floating HOME-assisted units for that year, and status
report on occupancy of those units and income eligibility of their tenants on Attachment
Iva-Beneficiary Performance Report.
Anniversary Date of Contract Execution, 2008 to 2027:
During the twenty (20) year Affordability Period, Samuels Avenue, LP (or assigns) will annually submit
reports to the City, including the following:
c) Copy of rent roll and copy of lease forms used.
d) Designation by unit of the four (4) floating HOME-assisted units for that year, and status
report on occupancy of those units and income eligibility of their tenants on Attachment
IVa-Beneficiary Performance Report.
e) Copy of annual financial audit and TDHCA LIHTC compliance report.
f) Other such information as may be necessary and requested by City to verify compliance
with HOME Regulations.
EXHIBIT "D"
CITY OF FORT WORTH HOUSING DEPARTMENT
Audit Certification Form
Subrecipient: Samuels Avenue, L. P.
Fiscal Year Ending:
Mo Day Yr
❑ We have exceeded the federal expenditure threshold of $500,000. We will
have our Single Audit or Program Specific Audit completed and will submit
the audit report within nine (9) months after the end of the audited fiscal
year.
❑ We did not exceed the $500,000 federal expenditure threshold required for
a Single Audit or a Program Specific Audit to be performed this fiscal year. (Fill
out schedule below)
Federal Expenditure Disclosure
Federal Funds
Please list below all federal sources of funds that your organization has received
during the past fiscal year. This section MUST be completed if a Single Audit or
Program Audit is not required (Box 1 above).
Pass Through Program Name & Contract
Federal Grantor Grantor CFDA Number Number Expenditures
Total Federal Expenditures for this Fiscal Year $
Printed Name Title(Must be CFO, CEO or equivalent)
Authorized Signature(Must be CFO, CEO or equivalent) Phone Number Date
Failure to submit this or a similar statement or failure to submit a completed
single audit package as described in the audit requirements by the required due
date will result in suspension of funding and will affect eligibility for future funding.
Submit this form to the City of Fort Worth within 60 days after the end of your Fiscal year
CITY OF FORT WORTH HOUSING DEPARTMENT
AUDIT REQUIREMENTS
Organizations expending $500,000 or more in federal awards (from City of Fort
Worth and other funding sources) during their fiscal years shall obtain either an
annual single audit or a program specific audit. Organizations may have a
program specific audit in accordance with OMB Circular A-133 if they
expended funds for only one federal program as listed in the Catalog of
Federal Domestic Assistance (CFDA). If funds are spent for more than one
federal program, a single audit is required. The audited time period is the
organization's fiscal year, and not the City of Fort Worth's funding period.
The audit shall be conducted by a certified public accountant (CPA) that is
licensed at the time of the audit by the appropriate regulatory body. The CPA
shall meet all of the general standards concerning qualifications,
independence, due professional care and quality control as required by
Government Auditing Standards, including the requirements for continuing
professional education and external peer reviews. Auditor selection must
adhere to federal procurement requirements.
A separate supplementary schedule of revenues, expenditures and
changes in fund balance for each City of Fort Worth contract is no longer
required. The Schedule of Expenditures of Federal Awards should list City of
Fort Worth 's contract numbers, the total expended for each individual
federal program, and the CFDA number (OMB A-133 § .310).
The independent auditor's report should include all of the relevant items
listed on the "Audit Report Checklist." Additional guidance on the conduct and
reporting of these audits is contained in the latest issuance of the following
publications:
Govemment Auditing Standards issued by the Comptroller General of the United States,
2003
OMB Circular A-133 as revised 6/30/97 and amended June 2003
OMB Circular A-133 Compliance Supplement
AICPA's Statement of Position 98-3, "Audits of States, Local Governments, and
Not-for-Profit Organizations Receiving Federal Awards"
Various AICPA audit guides for nonprofits, colleges and universities and health
and welfare organizations
AICPA's Audit Risk Alert "State and Local Governmental Developments"
All organizations that receive a City of Fort Worth award must submit the
provided Audit Certification Form which certifies whether you are subject to a
single/program audit. Organizations receiving federal awards from the City of
Fort Worth who are not required to have an audit shall certify in writing to the
agency. The organizations Chief Executive Officer or Chief Financial Officer
shall make the certification within 60 days of the end of the organization's
fiscal year.
The following items should be submitted to the City of Fort Worth Housing
Department within the required timeframe:
Due 60 days after organization's fiscal year end: (required for all subrecipients)
• Completed Audit Certification Form
Due within the earlier of 30 days after receipt of the auditor's report or nine months
after the end of the audit period.
• Two copies of the entire audit report issued by the CPA
• Two copies of any management letter issued by the CPA in
conjunction with the audit report
• Two copies of management's comments on all findings,
recommendations, & questioned costs contained in the audit
report and management letter, including a detailed corrective
action plan
Failure to submit any of these items by the required due date may result in
holds on current draw requests, suspension of the organization's contract(s)
and eligibility for future funding.
If the organization does not meet the threshold for having a single/program
audit conducted, records must still be kept available for review or audit by City
of Fort Worth staff (OMB A-133 Subpart B Sec 200(d).
If additional information is needed concerning these audit requirements,
please call (817) 392-7540 to speak with staff in the Contract Compliance
Division.
CITY OF FORT WORTH HOUSING DEPARTMENT
SINGLE AUDIT REPORT CHECKLIST
The following components should be included in an audit submission.
General Purpose or Basic Financial Statements of the Organization
Opinion/Report on Organization's Financial Statements in accordance with
Government Auditing Standards
Notes to the General Purpose or Basic Financial Statements of the Organization
A Schedule of Expenditures of Federal Awards, including the Department's
contract numbers, the total expended for the federal program, and the CFDA
number (OMB A-133 Subpart C Sec 310).
Opinion/Report on Schedule of Expenditures of Federal and State Awards
Report on Compliance and on Internals Control Over Financial Reporting Based on
an Audit of Financial Statements Performed in Accordance With
Government Auditing Standards. (OMB A-133 § 505 (b))
Report on Compliance with Requirements Applicable to Each Major Program
and Internal Control over Compliance in Accordance with OMB Circular A-133.
(OMB A-133 § 505 (c))
Schedule of Findings and Questioned Costs (OMB A-133 §. 505d), including:
Summary Schedule of Prior Audit Findings reporting the status of all findings
included in the prior audit's schedule of findings and questioned costs. (OMB A-
133 Sec. 315 (a) and (b))
Corrective Action Plan including (OMB A-133 Sec. 315 (c)) name of person
responsible for the corrective action, corrective action planned,
anticipated completion date, and explanation and reason if auditee does not
agree with findings or believes correction is not required.
All reports are signed and dated by the auditor
Two copies of the audit reports are submitted
Two copies of the management letter, if issued in conjunction with the audit
report
Two copies of comments by management concerning all findings
and recommendations included in management letter, including a
corrective action plan
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 6/7/2005
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DATE: Tuesday, June 07, 2005
LOG NAME: 05FWHSAMUELS REFERENCE NO.: C-20781
SUBJECT:
Reallocate HOME-Affordable Housing Development Funds and Authorize Execution of Contract
with Samuels Avenue L.P., in Partnership with the Fort Worth Housing Authority for the Construction
of a 36-Unit Tax Credit Financed Development
RECOMMENDATION:
It is recommended that the City Council:
1. Reallocate HOME-Affordable Housing Development Funds;
2. Authorize the City Manager to execute a contract not to exceed $126,500 in HOME-Affordable
Housing Development Funds with Samuels Avenue L.P. in partnership with the Fort Worth Housing
Authority for a 36-unit housing tax credit financed project for low-income citizens;
3. Stipulate that the contract performance be contingent on the award of housing tax credits from the
Texas Department of Housing and Community Affairs;
4. Authorize the contract performance period to begin on the date that funds are first drawn and have a
term of 60 months with a deferred balloon payment at its completion and with simple interest calculated and
paid annually;
5. Authorize the extension or renewal of the contract for up to six months, if Samuels Avenue L.P.,
requests an extension and is not in default under the terms of the contract; and
6. Authorize the City Manager to amend the contract, if necessary, to achieve project goals provided that
the amendment is within the scope of the project and in compliance with applicable laws and regulations.
DISCUSSION:
The HOME Investment Partnership Program was designed to be a partnership among federal, state and
local governments, non-profit and for-profit agencies that build, own, manage, finance or support low-
income housing initiatives. HOME Participating Jurisdictions (PJs), such as the City of Fort Worth, are
particularly encouraged to work with existing community-based, housing organizations, such as Samuels
Avenue L.P. and their parent organization, the Fort Worth Housing Authority. The City of Fort Worth
Housing Department has used the HOME Program to set-up and establish the Affordable Housing
Development Fund (AHDF) to address the above mentioned goals.
Samuels Avenue L.P. is proposing to construct 36 affordable housing rental units for qualified low-income
citizens. Twelve of the units, which will serve as replacement units for the Ripley Arnold Housing
Community will serve residents at or below 30% of Average Median Family Income (AMFI). Twenty-four
Logname: 05FWHSAMUELS Page I of 2
units will serve residents at or below 60% of AMFI. Samuels Avenue L.P. has applied for Housing Tax
Credits (HTC) in the amount of $274,014 per year for ten years through the Texas Department of Housing
and Community Affairs.
City funds (AHDF) will be used to leverage the HTC during the construction period. The site is a 2.913 acre
site on the corner of Samuels Avenue and Poindexter Street in the Rock Island/Samuels Avenue
Neighborhood. The unit configuration will consist of 14 one-bedroom units, 16 two-bedroom units and six,
three-bedroom units.
City Staff recommends approval of the funding request, as follows:
REQUEST: $126,500
SOURCE: HOME (AHDF) Funds
TERM: 60 month deferred balloon; Simple Interest calculated on a 60 month
term and paid annually.
CONTINGENCIES: Upon approval of Samuels Avenue L.P. tax credit application for $2,740,140.
INTEREST RATE: 2.75%
TOTAL PROJECT LOAN $126,500.00
The current balance in the City's HOME AHDF fund account, before the above-recommended allocation, is
as follows:
AHDF TOTAL
2005 $1,008,127
Samuels Avenue L.P. proposed Tax Credit project is located in COUNCIL DISTRICT 9.
The Housing and Workforce Development Committee reviewed this proposal on March 29, 2005 and
recommended that the proposal be brought to the full City Council for approval. The construction of these
units will be a positive contribution to the neighborhood's affordable housing stock and provide mixed
income options for the neighborhood.
FISCAL INFORMATIOWCERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated, of
the Grants Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
GR76 539120.00520693OXXX $126,500.00 GR76 539120_005206930060 $126,500.00
Submitted for City Manager's Office by_ Dale A. Fisseler (6266)
Originating_De_partment Head_ Jerome Walker (7537)
Additional Information Contact: Roy C. Lopez (7336)
Logname: 05FWHSAMUELS Page 2 of 2