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HomeMy WebLinkAboutContract 41876 (2)CITY SECRETARY �QIVTRACT NO. `-� 181Z . STATE OF TEXAS § COUNTY OF TARRANT § This contract ("Contract") is made and entered into by and between the City of Fort Worth (hereafter "City") and Race Street Lofts, Ltd. (hereafter "Developer"), a Texas limited partnership. City and Developer may be referred to individually as a "Party" and jointly as "the Parties". The Parties state as follows: WHEREAS, Developer and City entered into City Secretary Contract No. 41635 dated March 31, 2011 to use City HOME funds for an eligible project whereby Developer will construct 36 multifamily rental units to be located at 2817 Race Street in the City of Fort Worth, ("Required Improvements" or project) as further described in Exhibit "A"- Project Summary, WHEREAS, Developer is a Texas limited partnership consisting of Race Street Lofts GP, LLC, a Texas limited liability company, as general partner; an entity controlled by NRP Holdings, an Ohio limited liability company, as Class B limited partner; Bank of America, N.A., as Investor limited partner; and an affiliate of Investor as special limited partner. The Fort Worth Housing Finance Corporation, a Texas housing finance corporation, is the sole member of the general partner and will be the fee owner of the land on which the Required Improvements will be constructed, WHEREAS, Developer has received an award of Low Income Housing Tax Credits (" Lill TC") from the Texas Department of Housing and Community Development ("TDHCA") to finance the construction of the Required Improvements to be commonly known as the Race Street Lofts; WHEREAS, 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-09-MC 480204 Catalog of Federal Domestic Assistance No. 14.239, with which City desires to promote activities that expand the supply of affordable housing and the development of partnerships among City, local governments, local lenders, private industry and neighborhood -based nonprofit housing organizations; WHEREAS, the primary purpose of the 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 income citizens by providing them with affordable housing; AWL WHEREAS, Section 220ch jurisdiction participating in the HOME Program to make cont 'l��jgns o ,�_a i ousing in an amount equal to 25% of appropriated HOME funds drawn down for housing projects ("Match") but City's Match obhgation is 12.5% because it has been determined to be in fiscal distress; WHEREAS, Developer has agreed that 19 of the 36 rental units to be developed in the project will be HOME -assisted and rented to HOME Eligible Tenants during the Affordability Period; WHEREAS, the Race Street Lofts is a partially HOME -assisted project and City wishes to make a permanent contribution from nonfederal sources to the portion of the project that is not HOME -assisted to count as Match; WHEREAS, the City's contribution to the project will be made from the City's general funds and not from federal funds provided by the United States government or any agency thereof, or the proceeds of an obligation the interest on which is exempt from federal tax; and WHEREAS, City citizens and the City Council have determined that the development of quality accessible, and affordable housing is needed for moderate, low, and very low-income citizens of Fort Worth. NOW, THEREFORE, in consideration of the mutual covenants and obligations and responsibilities contained herein, including all Exhibits and Attachments and subject to the terms and conditions hereinafter stated, the Parties understand and agree as follows: 1. INCORPORATION OF RECITALS. City and Developer hereby agree that the recitals set forth above are true and correct and form the basis upon which the Parties have entered into this Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Contract, the following terms shall have the definitions ascribed to them as follows: Accessible Units means units accessible to handicapped tenants. Developer must comply with Section 504 requirements and other federal accessibility requirements The Required Improvements must contain 3 Accessible Units. Of these 3 units, 2 units must be accessible to individuals with mobility impairment, and the other 1 unit must be accessible to individuals with visual or hearing impairments Affordability Period means the period of time that housing that is purchased, renovated or constructed with HOME Funds must remain affordable and subject to recapture provisions for the affordability periods described in 24 CFR Part 92.252 of the HOME Regulations The Affordability Period for this project is 20 years. The Affordability Period begins on HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 2 the date that the project status is changed to "complete" in HUD's Integrated Disbursement Information System ("IDIS") maintained by the City and HUD as required by the HOME Regulations. The Affordability Period in this Contract shall be the same as the Affordability Period described in the HOME Contract. Area Median Income (AMI) means the median family income for the Fort Worth - Arlington metropolitan statistical area as established by HUD. Complete Documentation means a report or reports in a form reasonably acceptable to City. City Funds means the City's permanent contribution of non-federal City funds to the project, subject to the terms and conditions of this Contract. Completion shall mean the substantial completion of the Required Improvements, as evidenced by a HUD Compliance Inspection Report with final inspection approval from the City. Completion Deadline means January 31, 2013. HOME Affordability Requirements means those requirements in the HOME Regulations and the HUD Notice for Match contributions to housing that qualifies as affordable under Section 215 of NAHA. HOME Contract means City Secretary Contract No. 41635 dated March 31, 2011. HOME Funds means City's HOME funds supplied by City to Developer under the terms of the HOME Contract. HOME Match or Match means a permanent contribution from nonfederal sources to housing that qualifies as affordaL: e under Section 215 of NAHA. HOME Unit means a unit that is subject to the HOME Regulations pursuant to the HOME Contract. This project contains 19 Home Units. HUD Notice means HUD Notice CPD 97-03 regarding HOME Program Match Guidance. Loan Documents means appropriate security instruments including without limitation, notes, deeds of trust, security agreements, pledges or other similar security instruments securing City's interest in the Required Improvements constructed under this Contract and further securing the Developer's performance during the Affordability Period. Property means the land on which the Required Improvements shall be constructed. Source Documentation means any documentation allowed under the 24 CFR Part 5.609 definition of annual income. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 3 3. TERM AND EXTENSION. The term of this Contract begins on the date of execution by the Parties (the "Effective Date") and terminates at the end of the Affordability Period unless terminated earlier as provided in this Contract. 4. DUTIES AND RESPONSIBILITIES OF CITY. 4.1 Provision of City Funds. City shall provide up to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) of the City's general funds in the form of a forgivable deferred payment subordinate loan to complete the Required Improvements, under the teams and conditions herein (the "Loan"). 5. DEVELOPER OBLIGATIONS. 5.1 Required Improvements In accordance with the terms and conditions of this Contract, Developer shall construct the Required Improvements as described in Exhibit "A" — Project Summary. 5.1.1 Inspections. The project must pass inspection and be approved during the construction period as shown on a HUD Compliance Inspection Report completed by the City's Housing and Economic Development Department inspectors. 5.2 Construction Schedule. Developer will construct the Required Improvements in accordance with the schedule set forth in the attached Exhibit "B" — Construction Schedule of the HOME Contract. Developer's failure to meet the construction schedule shall be an event of default 5.3 Use of City Funds. 5.3.1 Contributions to HOME -Assisted Housing and Compliance with Contract. City will make a permanent contribution of non-federal funds to the portion of the project that is not HOME -assisted housing to be counted as Match in accordance with the HUD Notice and the HOME Regulations. Developer will operate as the owner of HOME -assisted housing under this Contract as set forth the in the HUD Notice and will ensure compliance with the applicable requirements for HOME -assisted projects as provided therein and in the HOME Regulations including any required compliance after initial occupancy of the project. 5.3.2 Security for City's Interest. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 4 To secure City's interest in maintaining the HOME Affordability Requirements in the event that Developer is unable for any reason to fully complete its obligations under this Contract, Developer shall execute the subordinate Promissory Note and any other Loan Documents and record the Leasehold Deed of Trust — Security Agreement Financing Statement encumbering the personal property and leasehold estate in the Property (the 'Deed of Trust"). No funds will be paid or reimbursed until the Deed of Trust is recorded. The City's interest in preserving the affordability of the HOME Units and the non -assisted units will be additionally secured by the Declaration of Land Use Restrictive Covenants ("LURA") established and enforced by TDHCA for the tax credits. The TDHCA's LURA shall restrict the Project and Property to certain occupancy and rent requirements for a period of 40 years. 5.3.3 Loan Terms and Conditions. Developer will be required to: 5.3.3.1 Execute a subordinate Promissory Note and the Leasehold Deed of Trust and other Loan Documents secured by Developer's interest in the leasehold estate in the Property and Required Improvements in the amount of the Loan. 5.3.3.2 Pay all costs associated with closing the Loan. 5.3.3.3. Ensure City's lien is only subordinate to the senior indebtedness described in a subordination agreement between City and the construction lender and/or the permanent finance lender and the hen securing the City's HOME Funds. City must approve in writing any secured financing that is to be subordinate to City's Loan. City specifically approves the loan to Developer from Lifestyle Neighborhood Corp. 5.3.3.4 The term of the Loan shall be concurrent with the Affordability Period in the HOME Contract. 5 3.3.5 The Loan is a forgivable deferred payment loan. Payment of the City Funds will only be required if the project is not maintained and operated as affordable housing as described in the HOME Contract for the Affordability Period or Developer does not comply with the other terms of this Contract, the Loan Documents or the HUD Notice. Provided that Developer complies with the terms of this Contract and the HOME Contract, the Loan Documents and the HUD Notice, the Loan shall be forgiven at the end of the Affordability Period. 5.3.3.6 City agrees to subordinate its Loan or execute partial releases as may be necessary as deteiuiined by City in its sole discretion to allow Developer to complete its obligations under this Contract provided that Developer is not otherwise in default of the provisions of this Contract including but not limited to those provisions relating to tenant income eligibility under both TDHCA and the HOME Program requirements, and HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 5 so long as the subordination or partial release is in the City's best interest. The Deed of Trust will continue to secure Developer's performance of its obligations hereunder throughout the Affordability Period regardless of any repayment of the Loan. 5.3.3.7 Except for permanent loan conversion with Developer's permanent lender, refinancing by Developer shall require the review and prior written approval of City for the purpose of ensuring compliance with the HOME Affordability Requirements, which approval shall not be unreasonably withheld. 5.3.3.8 Any failure by Developer to comply with Section 5 3 3 will be an Event of Default under this Contract and the Loan Documents. 5.3.4 Payment of City Funds to Developer. City Funds will be disbursed to Developer on a reimbursement basis upon Developer's written and signed request for reimbursement and submission of Complete Documentation to City and the execution of the Loan Documents and the recording of the Deed of Trust. 5.3.5 Maintam Affordability Requirements. Developer shall ensure that Required Improvements shall remain affordable throughout the Affordability Period as required by the HOME Regulations. In the event that Developer fails to ensure that the HOME Affordability Requirements are not maintained during Affordability Period, there shall be a 10% payment of the total Loan amount by Developer to City as liquidated damages in addition to repayment of the Loan. 5.3.5.1 City Monitoring. City will monitor the activities and performance of Developer and its contractors as required by the HOME Regulations and City requirements in order to ensure that the Affordability Requirements and Required Improvements are in compliance with this Contract. 5.3.6 Affordability Requirement Survives Transfer. The project must remain affordable without regard to the term of any mortgage or transfer of ownership pursuant to the terms of the Loan Documents any deed restrictions or other mechanism provided by HUD. Any sale or transfer of the project during the Affordability Period, excluding a transfer due to condemnation or to obtain utility services, will require the repayment of any unpaid principal or the new owner or transferee must affin natively assume in writing the obligations established hereunder for the project. 5.4 Acknowledgement of Completion. After payment of City Funds but no later than 90 days of Completion, Developer shall sign an acknowledgement that City has met all of its obligations under this Contract, or shall sign a document stating what City obligations are outstanding. Once City has met all of its obligations, Developer shall sign an acknowledgement of same. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 6 6. RENTAL HOUSING CONSTRUCTION WITH CITY FUNDS 6.1 Construction to Conform to All Applicable Laws, Building Codes and Ordinances. All plans, specifications and construction for the Required Improvements shall (i) confonnn to all applicable Federal, state and local laws, ordinances, rules and regulations, including HOME Regulations and the HUD Notice; (ii) meet all City building codes; (iii) be certified as meeting the Energy Conservation requirements as required by the State of Texas in Chapter 11 of the International Residence Code; (iv) for new construction, must conform to the Model Energy Code, published by the Council of American Building Officials; and (v) pass inspection by City's Housing and Economic Development Department inspectors. Housing units constructed with City Funds furnished under this Contract shall meet all applicable standards under City Codes and ordinances. 6.2 Property Standards. Developer shall comply with the requirements contained in 24 CFR Part 92.251 as relates to Property Standards and Housing Quality Standards (HQS), and Accessibility Standards under 24 CFR Part 92.251(a)(3) as apphcable, for the Required Improvements. 6.2.1 Property Maintenance and Inspections. Developer shall ensure that the project is maintained to the standards described in this Section 6 for the duration of the Affordability Period. City at its discretion may verify maintenance of the project to these standards through on -site inspections. 6.3 Lead Paint Requirements. For units built prior to 1978, a lead assessment in accordance with Lead Based Paint Requirements as found in 24 CFR Part 92.355 and 24 CFR Part 35 in the construction and rehabilitation of the Required Improvements funded under this Contract. 6.4 Approval of Plans and Specifications by City Not Release of Responsibility. Approval of any plans and specifications relating to the Required Improvements by City shall not constitute or be deemed (i) to be a release of the responsibility or liability of Developer or any of its contractors, their respective officers, agents, employees and subcontractors, 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 (ii) an assumption of any responsibility or liability by City for any negligent act, error or omission in the conduct or preparation of any investigation, surveys, designs, working drawings and specifications or other documents by Developer or any of its contractors, and their respective officers, agents, employees and subcontractors. 6.5 Approval by City of Subcontractors. Developer will use commercially reasonable efforts to ensure that all subcontractors utilized by Developer or Developer's general contractor are appropriately licensed and such licenses are maintained throughout the construction of the Required HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 7 Improvements. Developer shall ensure that all subcontractors utilized by Developer or Developer's general contractor in the construction of the Required Improvements are not debarred or suspended from performing the subcontractor's work within the City, the State of Texas, or the Federal government. Developer must confirm that all subcontractors are not listed on the Federal Excluded Parties List System, www.epls.gov and must submit printed verification of such searches with the first reimbursement request which include invoices from any subcontractor. Failure to submit such proof shall be an event of default In the event that City determines that any subcontractor has been debarred, suspended, or is not properly licensed, Developer or Developer's general contractor shall immediately cause the subcontractor to stop work on the project. In the event that any subcontractor has been debarred, suspended, or is not properly licensed, Developer or Developer's general contractor shall not be reimbursed for any work performed by such subcontractor. However, this Section should not be construed to be an assumption of any responsibility or liability by City for the determination of the legitimacy, quality, ability, or good standing of any subcontractor. 7. Additional HOME Match Requirements. Developer agrees to comply with all applicable requirements of the HOME Program as stated in the HOME Regulations, including, but not limited to the followings 7.1 Compliance with Davis Bacon. Developer will comply with the Davis Bacon Act as described in Section 13.14 of this Contract. In order to monitor for compliance, Developer shall provide City access to employee payrolls, contractor and subcontractor payrolls and other wage information for persons performing construction of the Required Improvements In addition, Developer shall ensure that the City will have access to employees, contractors and subcontractors and their employees in order to conduct onsite interviews with laborers and mechanics. 7.2 Monitoring. 7.2.1 Developer understands and agrees that it will be subject to monitoring by City for compliance with the applicable HOME Regulations for the duration of the Affordability Period and until the project is closed in HUD's IDIS system. Developer will provide reports and access to project files as requested by City during the Affordability Period and for five (5) years after closeout of the HOME Contract in HUD's IDIS system, and will meet all the reporting requirements set out in this Contract. This Section shall survive the termination or expiration of this Contract. 7.2.2 City shall have access at all reasonable hours to Developer's records that are related to the use of the City Funds, and its officers, directors, agents, employees, and contractors for the purpose of such monitoring. 7.2.3 In addition to other provisions of this Contract regarding frequency of monitoring, City reserves the right to perform desk reviews or on -site monitoring of Developer's compliance with the tenns and conditions of this Contract, and of the adequacy and timeliness of Developer's performance under this Contract. After each HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 8 monitoring visit, City shall provide Developer with a written report of the findings. If the monitoring report notes deficiencies in Developer s performance, the report shall include requirements for the timely correction of said deficiencies by Developer. Failure by Developer to take the action specified in the monitoring report may be cause for suspension or termination of this Contract as provided in Section 9 of this Contract. 8. REPORTING AND DOCUMENTATION REQUIREMENTS. Developer shall maintain a record -keeping system as part of its performance of this Contract and shall promptly provide City with copies of any document City deems necessary for the effective fulfillment of City's monitoring and evaluation responsibilities. Specifically, Developer will keep or cause to be kept an accurate record of all actions taken and all funds spent, with source and back-up documentation. 9. DEFAULT AND TERMINATION. 9.1 Failure to Begin or Complete the Required Improvements 9.1.1 If Developer fails to begin construction, which for the purposes of this Contract shall be defined as pouring the foundation for the Required Improvements, within 12 months of the execution of this Contract, the Contract shall automatically terminate without further warning or opportunity to cure, and with no penalty or liability to City. 9.1.2 If City determines that the Required Improvements were not completed by the Completion Deadline, City shall have the right to terminate this Contract with no penalty or liability to City, with such termination to be effective immediately upon written notice. 9.2 Failure to Submit Documentation During Operation. If Developer fails to submit any report or documentation required by this Contract after Required Improvements are completed, or if the submitted report or documentation is not in compliance with this Contract or the HOME Regulations as determined by City, City will notify Developer in writing and the Developer will have 30 calendar days from the date of the written notice to submit or resubmit any such report or documentation to City. If the Developer fails to submit or resubmit any such report or documentation within such time, City shall have the right to terminate this Contract effective immediately upon written notice of such intent with no penalty or liability to City. 9.3 In General. Subject to Sections 9.1, and 9.2, and unless specifically provided otherwise in this Contract, Developer shall be in default under this Contract if Developer breaches any term or condition of this Contract. In the event that such a breach remains uncured after 30 calendar days following written notice by City or, if Developer has diligently and continuously attempted to cure following receipt of such written notice but reasonably required more than 30 calendar days to cure, as determined by both Parties mutually and in good faith, City shall have the right to elect, as determined in City's sole discretion, to HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 9 terminate this Contract effective immediately upon written notice of such intent to Developer, or to pursue any other legal remedies available to City to ensure compliance with this Contract and the Loan Documents. In the event of termination under this Section 9 3, all City Funds awarded but unpaid to Developer pursuant to this Contract shall be immediately rescinded and Developer shall have no further nght to such funds. In the event City Funds have been paid in full to the Developer, Developer agrees to repay them to City within 30 days of termination. If such funds are not repaid to City within the 30 day period, City shall exercise all of its remedies under the Loan Documents including but not limited to foreclosure under the Leasehold Deed of Trust. 9.4 No Funds Disbursed while in Breach. Developer understands and agrees that no City Funds will be paid to Developer until all defaults are cured to the satisfaction of City. 9.5 No Compensation After Date of Termination. In the event of termination, Developer shall not receive any compensation for work undertaken after the date of the termination. 9.6 Rights of City Not Affected. Termination shall not affect or terminate any of the existing rights of City against Developer, or which may thereafter accrue because of such default, and the foregoing provision shall be in addition to any and all other rights and remedies available to City under the law and Loan Documents including, but not limited to, compelling Developer to complete the Required Improvements in accordance with the terms of the Contract. Such termination does not terminate any applicable provisions of this Contract that have been expressly noted as surviving the term or termination of the Contract. 9.7 Waiver of Breach Not Waiver of Subsequent Breach. The waiver of a breach of any term, covenant, or condition of this Contract shall not operate as a waiver of any subsequent breach of the same or any other term, covenant or condition hereof. 9.8 Civil, Criminal and Administrative Penalties. Failure to perform all the Contract terms may result in civil, criminal or administrative penalties, including, but not limited to those set out in this Contract. 9.9 Termination for Cause. City may terminate this Contract in the event of Developer's default, subject to notice, grace and cure periods, inability or failure to perform, or otherwise whenever such termination is determined by City to be in City's best interest. Likewise, Developer may terminate this Contract if City does not provide the City Funds substantially in accordance with this Contract. 9.10 Termination for Convenience In terminating in accordance with 24 CFR. 85.44, this Contract may be terminated in whole or in part only as follows: HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 10 9.10.1 By City with the consent of Developer in which case the Parties shall agree upon the termination conditions, including the effective date and in the case of partial termination, the portion to be terminated, or 9.10.2 By the Developer upon written notification to City, setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. However, if, in the case of a partial termination, City determines that the remaining portion of the Contract to be performed or City Funds to be spent will not accomplish the purposes for which the Contract was made, City may terminate the Contract in its entirety. 9.11 Dissolution of Developer Terminates Contract. In the event Developer is dissolved or ceases to exist, all assets acquired with City Funds including cash, interest payments from loans or otherwise, all outstanding notes, mortgages or other security instruments used to secure City Funds any accounts receivable attributable to the use of City Funds, and any real or personal property owned by Developer that was acquired or improved with City Funds shall automatically transfer to City and this Contract shall terminate. 10. REPAYMENT OF CITY FUNDS. All City Funds are subject to repayment in the event the project does not meet the requirements as set out in this Contract or in the HOME Regulations or the HUD Notice. 11. MATERIAL OWNERSHIP CHANGE. Subject to limited partner transfers with City consent, if ownership of the Developer materially changes after the date of this Contract City may but is not obligated to, teiuiinate this Contract City has 30 days to make such determination after receipt of notice from Developer and failure to make such determination will constitute a waiver. In the event of termination under this Section 11, all City Funds awarded but unpaid to Developer pursuant to this Contract shall be immediately rescinded and Developer shall have no further right to such funds, and any City Funds already paid to Developer must be repaid to City within 30 days of the termination. 12. SURVIVAL. Any provision of this Contract that pertains to affordability, monitoring, record keeping and reports, and City Building Codes, ordinances and housing quality standards, as well as any applicable HOME requirements, and any default and enforcement provisions necessary to enforce such provisions shall survive the termination of this Contract and shall be enforceable by City against Developer throughout the Affordability Period. 13. GENERAL PROVISIONS 13.1 Developer Independent Contractor. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 11 Developer shall operate hereunder as an independent contractor and not as an officer, agent, servant or employee of City. Developer 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, tenants, licensees or invitees. 13.2 Doctrine of Respondeat Superior. The doctrine of respondeat superior shall not apply as between City and Developer, its officers, members agents, servants, employees, contractors, tenants, licensees or invitees, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Developer. City does not have the legal nght to control the details of the tasks performed hereunder by Developer, its officers, members, agents, employees, contractors, licensees or invitees 13.3 Developer Property. City shall in no way be nor under any circumstances be responsible for any property belonging to Developer, its officers, members, agents, employees, contractors, tenants, licensees or invitees that may be lost, stolen or destroyed or in any way damaged and DEVELOPER HEREBY INDEMNIFIES AND HOLDS HARMLESS CITY AND ITS OFFICERS, AGENTS, AND EMPLOYEES FROM ANY AND ALL CLAIMS OR SUITS PERTAINING TO OR CONNECTED WITH SUCH PROPERTY. 13.4 Religious Organization. No portion of the City Funds shall be used in support of any sectarian or religious activity. In addition, there must be no religious or membership criteria for tenants of a City -funded property. 13.5 Audit. 13.5.1 City Reserves the Right to Audit. City reserves the right to perform an audit of Developer'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 federal regulations or City requirements, and Developer agrees to allow access to all pertinent materials as described herein. If such audit reveals a questioned practice or expenditure, such questions must be resolved within 15 business days after notice to Developer of such questioned practice or expenditure. If questions are not resolved within this period, City reserves the right to withhold further funding under this and/or future contract(s) with Developer. IF AS A RESULT OF ANY AUDIT IT IS DETERMINED THAT DEVELOPER HAS FALSIFIED ANY DOCUMENTATION OR MISUSED, MISAPPLIED OR MISAPPROPRIATED CITY FUNDS OR SPENT CITY FUNDS ON ANY INELIGIBLE ACTIVITIES, SUBJECT TO CURE TO THE EXTENT OF ANY NEGLIGENT ACTION, DEVELOPER AGREES TO REIMBURSE CITY THE AMOUNT OF SUCH MONIES PLUS THE AMOUNT OF ANY SANCTIONS, PENALTY OR OTHER CHARGE LEVIED AGAINST CITY BY HUD BECAUSE OF SUCH ACTIONS. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 12 13.6 Venue. Venue for any action, whether real or asserted, at law or in equity, arising out of the execution, performance, attempted performance or non-performance of this Contract, shall he in Tarrant County, Texas. 13.7 Governing Law. In any questions involving state law, for any action, whether real or asserted, at law or in equity, arising out of the execution, performance or non-performance of this Contract, in any issue not governed by federal law, the choice of law shall be the law from the State of Texas. 13.8 Severability. 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 thereof, such invalidity shall not affect other provisions which can be given effect without the invalid provision. 13.9 Written Agreement 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, constitutes the entire agreement by the Parties hereto 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 executed by each Party to this Contract. 13.10 Paragraph Headings for Reference Only, No Legal Significance. 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. 13.11 Compliance With All Applicable Laws and Regulations. Developer agrees to comply fully with all applicable laws and regulations that are currently in effect or that are hereafter amended dunng the performance of this Contract. Those laws include, but are not limited to: ➢ 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 ➢ The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.) ➢ Executive Orders 11063, 11246 as amended by 11375 and 12086 and as 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.) HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 13 ➢ The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. Sections 4601 et seq. and 49 CFR Part 24) ("URA") ➢ Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sections 794 et seq.) and 24 CFR Part 8 where applicable ➢ 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. Sections 151 et seq.) and the related Executive Order 11738. In no event shall and °...mount 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. Sections 1101 et seq.) specifically including the provisions requiring employer verifications of legal status of its employees ➢ The Americans with Disabilities Act of 1990 (42 U.S.C. Sections 12101 et seq.), the Architectural Barriers Act of 1968 as amended (42 U.S.C. sections 4151 et seq.) and the Uniform Federal Accessibility Standards, 24 CFR Part 40, Appendix A ➢ 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 ➢ Regulations at 24 CFR Part 983.6 for Site and Neighborhood Standards Review ➢ Regulations at 24 CFR Part 92 Home Investments Partnership Program Final Rule 13.12 Prohibition Against Discrimination. 13.12.1 General Statement. Developer, in the execution, performance or attempted performance of this Contract, shall comply with all non-discrimination requirements of 24 CFR 92.350 and the ordinances codified at Chapter 17, Article III, Division 4 - Fair Housing of the City Code. Developer may not discriminate against any person because of race, color, sex, gender, religion, national origin, familial status, disability or perceived disability, sexual orientation, gender identity, gender expression, or transgender, nor will Developer permit its officers, members, agents, employees, or Project participants to engage in such discrimination. This Contract is made and entered into with reference specifically to the ordinances codified at Chapter 17, Article III, Division 3 - Employment Practices of the City Code, and Developer hereby covenants and agrees that Developer, its officers, HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 14 members, agents, employees and contractors, have fully complied with all provisions of same and that no employee, or applicant for employment has been discriminated against under the terms of such ordinances by either or its officers, members, agents, employees or contractors. 13.12.2 No Discrimination in Employment during the Performance of this Contract. During the performance of this Contract Developer agrees, and will require the • following provision in all contracts -with its contractors: (Contractor's Namel_ will not unlawfully discriminate against any employee or applicants for employment because of race, color, sex, gender, religion, national origin, familial status, disability or perceived disability, sexual orientation, gender identity, gender expression or transgender. [Contractor's Name] will take affinuative action to ensure that applicants are hired without regard to race, color, sex, gender religion, national origin, familial status, disability or perceived disability, sexual orientation gender identity, gender expression or transgender and that employees are treated fairly during employment without regard to their race, color, sex, gender, religion, national origin, familial status, disability or perceived disability sexual orientation, gender identity, gender expression or transgender. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. f Contractor's Name], agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. [Contractor's Name] will, in all solicitations or advertisements for employeesplaced by or on behalf of (Contractor s Name] , state that all qualified applicants will receive consideration for employment without regard to race, color, sex, gender, religion, national origin, familial status, disability or perceived disability, sexual orientation, gender identity, gender expression or transgender. Contractor's Name 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 employees or in connection with the terms, conditions or privileges of their employment, discriminate against persons because of their age or because of any disability or perceived disability, except on the basis of a bona fide occupational qualification, retirement plan or statutory requirement [Contractor's Name l 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 hmit for such employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan or statutory requirement. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 15 13.12.3 Developer's Contractors and ADA. In accordance with the provisions of the Americans With Disabilities Act of 1990 ( `ADA"), Developer 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 Developer or any of its contractors Developer WARRANTS IT WILL FULLY COMPLY WITH ADA'S PROVISIONS AND ANY OTHER APPLICABLE FEDERAL, STATE AND LOCAL LAWS CONCERNING DISABILITY AND WILL DEFEND, INDEMNIFY AND HOLD CITY HARMLESS AGAINST ANY CLAIMS OR ALLEGATIONS ASSERTED BY THIRD PARTIES OR CONTRACTORS AGAINST CITY ARISING OUT OF DEVELOPER'S AND/OR ITS CONTRACTORS' ALLEGED FAILURE TO COMPLY WITH THE ABOVE -REFERENCED LAWS CONCERNING DISABILITY DISCRIMINATION IN THE PERFORMANCE OF THIS CONTRACT. 13.13 Prohibition Against Interest / Conflict of Interest. 13.13.1 Developer shall establish safeguards to prohibit its employees, board members, advisors and agents from using positions for a purpose that is or gives the appearance of being motivated by a desire for private gain for themselves or others, particularly those with whom they have family, business or other ties. Developer shall disclose to City any conflict of interest or potential conflict of interest described above, immediately upon discovery of such. 13.13.2 No persons who are employees, agents, consultants, officers or elected officials or appointed officials of City or of Developer who exercise or have exercised any functions or responsibilities with respect to activities assisted with City funds or who are in a position to participate in a decision -making process or gain inside information with regard to these activities may occupy a City -assisted unit, may obtain a financial interest or benefit from a City -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 1 year thereafter, unless they are accepted in accordance with applicable City policies and ordinances and/or the procedures set forth at 24 C.F.R. Part 92.356. 13.13.3 Developer affirms that it will adhere to the provisions of the Texas Penal Code which prohibits bribery and gifts to public servants. 13.13.4 In the procurement of property and services by Developer the conflict of interest provisions of 24 CFR Part 85.36 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. 13.14 Labor Standards. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 16 13.14.1 As applicable, Developer agrees to comply with the requirements of the Secretary of Labor in accordance with the Davis -Bacon Act (40 U.S.C. 276a-7) as amended, the provisions of Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.) and all other applicable Federal state and local laws and regulations pertaining to labor standards insofar as those acts apply to the performance of this Contract. Developer agrees to comply with the Copeland Anti -Kick Back Act (18 U.S.C. 874 et seq.) and its implementing regulations of the U.S. Department of Labor at 29 CFR Part 5. Developer shall maintain documentation that demonstrates compliance with hour and wage requirements of this Contract and HOME Regulations. Such documentation shall be made available promptly to City for review upon request. 13.14.2 Developer agrees that, except with respect to the rehabilitation or construction of residential property containing less than 12 units assisted with HOME funds, all contractors engaged under contract for construction, renovation or repair work financed in whole or in part with assistance provided under this Contract, shall comply with Federal requirements adopted by City pertaining to such contracts and with the applicable requirements of the regulations of the Department of Labor under 29 CFR Parts 1, 3, 5 and 7 governing the payment of wages and ratio of apprentices and trainees to journey workers; provided that, if wage rates higher than those required under these regulations are imposed by state or local law, nothing hereunder is intended to relieve Developer of its obligation, if any, to require payment of the higher wage. Developer shall cause or require to be inserted in full, in all such contracts subject to such regulations, provisions meeting the requirements of this paragraph. 13.15 Minority and Women Business Enterprise Commitment. Developer agrees to abide by 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, Developer 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. 13.16 Other Laws. The failure to list any federal, state or City ordinance, law or regulation that is applicable to Developer does not excuse or relieve Developer from the requirements or responsibilities in regard to following the law, nor from the consequences or penalties for Developer s failure to follow the law, if applicable. 13.17 Assignment. Developer shall not assign all or any part of its rights, privileges, or duties under this Contract without the prior written approval of City. Any attempted assignment of same without approval shall be void, and shall constitute a breach of this Contract. 13.18 Force Majeure HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 17 If Developer becomes unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemies, wars, blockades, insurrections, riots, epidemics, earthquakes, fires, floods, restraints or prohibitions by any court, board, department, commission or agency of the United States or of any States, civil disturbances, or explosions, or some other reason beyond such Developer's control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. Developer will give City written notice of the existence, extent and nature of the Force Majeure Event as soon as reasonably possible after the occurrence of the event. Developer will use commercially reasonable efforts to remedy its inability to perform as soon as possible. Failure to give notice will result in the continuance of the Developer's obligation regardless of the extent of any existing Force Majeure Event. 14. Indemnification and Release. DEVELOPER 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 DEVELOPER HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR 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. DEVELOPER 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 DEVELOPER, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, INVITEES, LICENSEES, OR HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 18 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 DEVELOPER AND CITY, THAT THE INDEMNITY PROVIDED FOR THIS SECTION INCLUDES INDEMNITY BY DEVELOPER TO INDEMNIFY AND PROTECT CITY FROM THE CONSEQUENCES OF CITY'S OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS ALLEGED TO BE THE SOLE OR CONCURRING CAUSE OF THE INJURY, DAMAGE OR DEATH. DEVELOPER 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 INCIDENTAL TO PERFORMANCE UNDER THIS CONTRACT, EVEN IF THE INJURY, DEATH, DAMAGE OR LOSS IS CAUSED BY CITY'S SOLE OR CONCURRENT NEGLIGENCE. DEVELOPER SHALL REQUIRE ALL OF ITS CONTRACTORS AND SUBCONTRACTORS TO INCLUDE IN THEIR CONTRACTS AND SUBCONTRACTS A RELEASE AND INDEMNITY IN FAVOR OF CITY IN SUBSTANTIALLY THE SAME FORM AS ABOVE. 15. Waiver of Immunity by Developer. If Developer, 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, Developer 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. 16. Insurance and Bonding. Developer will maintain blanket fidelity coverage in the form of insurance or bond in the amount of $30,000 to insure against loss from the fraud, theft or dishonesty of any of Developer's officers, agents, trustees, directors or employees. The proceeds of such bond shall be used to reimburse City for any and all loss of City 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 Developer. Developer shall furnish to City, in a timely manner, but not later than 10 days after Developer has signed the Contract, 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, HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-I1 Page 19 performance, attempted performance or nonperformance of this Contract. Developer shall maintain, or require its general contractor to 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 City, the policy shall be the primary responding insurance policy versus a personal auto insurance policy if or when in the course of Developer'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. Developer or its contractors shall maintain coverages, if applicable. In the event the respective contractors do not maintain coverage, Developer shall maintain the coverage on such contractor, if applicable, for each applicable contract. Directors and Officers Insurance Optional (Highly Recommended) Note: This insurance shall cover Developer and any associated Board of Directors members. Additional Requirements Such insurance amounts shall be revised upward at City s reasonable option and no more frequently than once every 12 months, and Developer shall revise such amounts within thirty (30) days following notice to Developer of such requirements. Developer will submit to City documentation that it, and its general contractor has obtained insurance coverage and has executed any bonds as required in this Contract prior to payment of any monies provided hereunder. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 20 Each insurance policy shall be endorsed to provide City with a minimum thirty (30) days notice of cancellation, non -renewal, and/or material change in policy teens 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 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 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 Developer'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 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 Program, and such requirements exceed those specified herein, the former shall prevail. Developer shall require its contractors to maintain applicable insurance coverages, limits, and other requirements as those specified herein; and, Developer shall require its contractors to provide Developer with certificate(s) of insurance documenting such coverage. Also, Developer shall require its contractors to have City and Developer endorsed as additional insureds (as their interest may appear) on their respective insurance policies. Developer shall require its builder to maintain builders risk insurance at the value of the construction. 17. Litigation and Claims Developer shall give City immediate notice in writing of any action, including any proceeding before an administrative agency, filed against Developer in conjunction with this Contract or the project. Developer shall furnish immediately to City copies of all pertinent papers received by Developer with respect to such action or claim. Developer shall provide a notice to City within 10 days upon filing under any bankruptcy or financial insolvency provision of law. 18. Notice. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 21 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 fifth day following (1) deposit in a United States Postal Service post office or receptacle; (i1) with proper postage to be sent certified mail return receipt requested; and (iii) addressed to the other Party at the address set out below or at such other address as the receiving Party designates by proper notice to the sending Party. City: City Attorney's Office 1000 Throckmorton Street Fort Worth, TX 76102 Telephone: 817-392-7600 Copy to: Director of Housing and Economic Development Department 1000 Throckmorton Street Fort Worth, TX 76102 Telephone* 817-392-7540 Copy to: Project Coordinator Housing and Economic Development Department 1000 Throckmorton Street Fort Worth, TX 76102 Telephone: 817-3 92-63 42 Developer : Race Street Lofts, Ltd. C/O Fort Worth Housing Finance Corporation 1000 Throckmorton Fort Worth, Texas 76102 Telephone: 817-3 92-5 8 04 Copy to: NRP Group LLC 111 Soledad, Suite 1220 San Antonio, Texas 78205 Attention: Debra Guerrero NRP Group LLC c/o Race Street Lofts 5309 Transportation Blvd. Cleveland OH 44125 Attention General Counsel 19. Developer Has Legal Authority to Enter Into Contract. HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 22 Developer represents that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Contract and to perfoiuu the responsibilities herein required. [SIGNATURES APPEAR ON NEXT PAGE] HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 23 047 0000000 IN WITNESS WHE th Pa f reto have executed four copies of this Contract in Fort Worth, Tarioff4Lo o ° i _� day of 4 ,ftw , 2011. QC)° Uxd .. 0 Y 0 oa° dd ATTEST: � 0000 oot OF FORT WORTH 00000° all Apo a AS 4 OA0 City Secrkary §us Alanis, Assistant City Manager M&C: C-24884 Date: May 3, 2011 aaaH NJIS APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney RACE STREET LOFTS, LTD. By: Race Street Lofts GP, LLC, its General Partner, By: Fort Worth Housing Finance Corporation, its Sole Member Jesus J. Chapa, Assistailt General Manager STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on is , 2011 by the City of Fort Worth, on behalf the City of Er` Notary Public, State of Texas STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on 3 , 2011 rt ATE by 3ZIad10N Jesus J. Chapa, Assistant General Manager of V e Fo Worth Housing Finance Corporation, a Texas housing finance corporation, on behalf of said corporation, as Sole Member of Race Street Lofts GP, LLC, a Texas limited liability. company, General �11,4}; ner of Race Street Lofts, Ltd., a Texas limited partnership, acting on behalf of such Gool Notary TCH DEVELOPER RENTAL CONTRACT Lofts, Ltd. by 3ZIad10N Jesus J. Chapa, Assistant General Manager of V e Fo Worth Housing Finance Corporation, a Texas housing finance corporation, on behalf of said corporation, as Sole Member of Race Street Lofts GP, LLC, a Texas limited liability. company, General �11,4}; ner of Race Street Lofts, Ltd., a Texas limited partnership, acting on behalf of such Gool Notary TCH DEVELOPER RENTAL CONTRACT Lofts, Ltd. Exhibits: Exhibit "A" — Project Summary HOME MATCH DEVELOPER RENTAL CONTRACT Race Street Lofts, Ltd. Rev 06-13-11 Page 25 EXHIBIT "A" PROJECT SUMMARY - SCOPE OF WORK RACE STREET LOFTS, LTD. DESCRIPTION: Race Street Lofts, Ltd ("Developer') will acquire five (5) lots, relocate existing residents, demolish any existing structures, and construct the Race Street Lofts including a clubhouse located at 2817 Race Street, Fort Worth, TX. 76111 (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") and City HOME Funds under City Secretary Contract No. 41635 (the "HOME Contract"). The Project will be constructed in accordance with the LIHTC proposal and all applicable amendments submitted to TDHCA during the 2010 application round. For the 20 year Affordability Period as defined in the HOME Contract, the Project will be managed in compliance with the HOME Contract, this Contract and all applicable provisions of all HOME Regulations governing rental projects and HOME Match requirements. The term of the Contract for the $250,000.00 of non-federal City Funds to be used as HOME Match is for 20 years. The City Funds are provided to Developer in the form of a forgivable deferred payment loan In consideration for City Funds provided through this Contract, Developer agrees to provide the following information and meet the following requirements: • During the Affordability Period, submit to City annually a copy of its annual audit, and TDHCA compliance report. • Meet all requirements for HOME Match housing. SPECIFIC PURPOSE* The specific purpose of this Project is to increase the availability of quality, accessible, and affordable housing for low income City residents. PROJECT OBJECTIVES: Acquisition demolition and new construction of affordable housing project to create 36 affordable units. Nineteen units will be HOME -assisted units as described in the HOME Contract. HOME MATCH — Exhibits RarP Rtravt T nfte T trl Page 1 M&C - Council Agenda Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 5/3/2011 - Ord. No. 19669-05-2011 DATE: Tuesday, May 03, 2011 LOG NAME: 17FY10-11HOMEMATCH S UBJECT: Approve the Use of $614,972.50 from the Fort Worth Housing Trust Fund to Satisfy the City's Fiscal Year 2010-2011 HOME Investment Partnerships Program Match Obligations, Authorize the Transfer of $250,000.00 from the Fort Worth Housing Trust Fund to the General Fund, Authorize the Expenditure of $250,000.00 to Race Street Lofts, Ltd., for the Development of the Race Street Lofts Located at 2817 Race S treet, Authorize the Execution of a Contract and Adopt Appropriation Ordinance (COUNCIL DISTRICT 2) RECOMMENDATION It is recommended that the City Council: REFERENCE NO.: **C-24884 1. Approve the use of $614,972.50 from the Fort Worth Housing Trust Fund to satisfy the City's Fiscal Year 2010-2011 HOME Investment Partnerships Program match obligations; 2. Authorize the transfer of $250,000.00 from the Fort Worth Housing Trust Fund to the the City's General Fund 3. Authorize the expenditure of $250,000.00 to Race Street Lofts, Ltd., for development of the Race S treet Lofts, an affordable multifamily development located at 2817 Race Street; 4. Authorize the City Manager, or his designee, to execute a contract for the development with Race S treet Lofts, Ltd., for a 20 year term to run concurrently with the HOME Affordability Period; 5. Authorize the City Manager, or his designee, 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 City policies and applicable laws and regulations; and 6. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations of the General Fund by $250,000.00. DISCUSSION: As part of its annual entitlement from the United States Department of Housing and Urban Development (HUD), the City is obligated each program year to match 12.5 percent of the HOME funds drawn from its HOME Treasury Account. The City's match obligation must be satisfied annually from non federal sources used for qualified housing projects, such as donated materials, cash donations in -kind contributions, and sweat equity The City anticipates drawing down $4,919 780.00 in HOME funds for the current program year, therefore its current match obligation is $614,972.50. In order to satisfy the City's match obligations and to simplify the documentation of eligible forms of match, staff proposes using City general funds directly in HOME -funded projects and programs. On March 22, 2011 staff informed Council in Informal Report No. 9370 that it would request the transfer of $614,972.50 from the City's general fund portion of its Fort Worth Housing Trust Fund in order to meet the current year's match requirements and begin operating under this proposed change in policy. Staff recommends that $364,972.50 of these funds be used for the City s Homebuyer Assistance Program (HAP) and $250,000.00 be used for the development of the Race Street Lofts. The HAP program provides down payment and closing cost assistance of up to $14,999.00 in HOME funds to eligible homebuyers citywide. The Race Street Lofts will benefit low and very low income citizens by providing them with http://apps.cfwnet.org/ecouncil/printmc.asp?id=15172&print=true&DocType=Print 06/13/2011 M&C - Council Agenda Page 2 of 2 affordable housing. The City Council has previously approved the award of HOME funds to this project (M&C C-24290 and M&C C-24553). This transfer and expenditure will satisfy the City's match obligation for the Fiscal Year 2010-2011 HUD entitlement of HOME funds. In future years, staff will recommend that the match requirement be included in the Housing and Economic Development Department' s budget. The HAP program benefits residents in ALL COUNCIL DISTRICTS and the Race Street Lofts development is located in COUNCIL DISTRICT 2. FISCAL INFORMATION / CERTIFICATION: The Financial Management Services Director certifies that upon approval of the above recommendations and adoption of the attached appropriation ordinance, funds will be available in the current operating budgets as appropriated, of the General Fund FUND CENTERS: TO Fund/Account/Centers 0001 472109 0177000 GG01 539120 0177000 FROM Fund/Account/Centers $250,000.00 GG01 539120 0177000 $250,000.00 R109 538070 005109007006 CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact Susan Alanis (8180) Jay Chapa (5804) Cynthia Garcia (8187) Avis F. Chaisson (6342) ATTACHMENTS 1. 17FY10 11 HOMEMATCH AO11 VG (1).doc (Public) 2. R109 539120.pdf (CFW Internal) $250,000.00 $250,000.00 http://apps.cfwnet.org/ecouncil/printmc.asp?id-15172&print=true&DocType=Print 06/13/2011