HomeMy WebLinkAboutContract 42658CITY K- CRETARY
CONTRACT NO. 4 1 b 5�
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 Fort Worth Pilgrim Valley Manor, LP (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, 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. (the "Act ") 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;
WHEREAS, Developer is a Texas limited partnership consisting of IAP Fort
Worth Pilgrim Valley Manor, LLC, a Texas limited liability company, as general partner,
and Wells Fargo Affordable Housing Community Development Corporation as
Investment Limited Partner. The general partner is a single purpose entity controlled by
Itex Apartment Preservation LLC, a manager- managed Texas limited liability company.
WHEREAS, Developer submitted a proposal to use HOME funds for an eligible
project under the HOME Regulations whereby Developer will acquire, rehabilitate and
reconstruct 168 multifamily rental units located at 1701 E. Robert Street in the City of
Fort Worth (the "Required Improvements" or project), with 4 floating units to be rented
to HOME - eligible tenants during the Affordability Period as further described in Exhibit
"A "- Project Summary;
WHEREAS, Developer has received an award of Low Income Housing Tax
Credits ( "LIHTC ") from the Texas Department of Housing and Community Affairs
( "TDHCA ") to finance the rehabilitation and reconstruction of the Required
Improvements commonly known as the Pilgrim Valley Manor Apartments.
WHEREAS, City citizens and the City Council have determined that the
development of quality, accessible, and affordable housing is needed for moderate 1
and very low- income citizens of Fort Worth; Ol`l 1^1AL*-c0,
FT. WOK'TH, TX
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 13 Accessible Units. Of these 13 units, 9 must
be accessible to individuals with mobility impairments, and the other 4 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 92.254 of the HOME
Regulations. Housing assisted with HOME funds must remain affordable housing for the
following minimum periods:
• New construction, 20 years
• Refinancing with rehabilitation, 15 years
• Rehabilitation and/or acquisition of existing housing, then
• An investment of $14,999 or less per unit, 5 years
• An investment of $15,000 to $39,999 per unit, 10 years
• An investment of $40,000 or more per unit, 15 years
The Affordability Period for this project is 15 years. The Affordability Period begins on
the date that the project status is changed to "complete" in HUD's Integrated
Disbursement Information System ( "IDIS ").
Area Median Income or AMI means the median family income for the Fort Worth -
Arlington metropolitan statistical area as established annually by HUD.
Complete Documentation means a report or reports in a form reasonably acceptable to
City that contains a summary of all HOME eligible costs expended for the Required
Improvements with the following supporting documentation as appropriate: (i) copies of
invoices for all completed work and other documents such as cancelled checks or wire
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 2
transfers necessary to demonstrate that such amounts were actually paid; (ii) final lien
releases signed by the general contractors or appropriate subcontractors; (iii) copies of all
City permits and City- issued "pass" inspections for such work; (iv) documentation to
show compliance with MIATE bidding process for such work, as applicable; (v)
Exhibits A - J; (vi) sufficient proof to show tenant income eligibility; and (vii) any other
document or records reasonably necessary to verify costs spent for the project.
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 December 31, 2013.
Director means the Director of the City's Housing and Economic Development
Department.
Effective Date means the date of this Contract is fully executed by the Parties as shown
by their respective signatures.
HOME Funds means the HOME Program grant funds supplied by City to Developer
under the terms of this Contract.
HOME Unit means a unit that is subject to the HOME Regulations. HOME Units can
be designated as either High and \or Low HOME units. The HOME units are floating.
This project contains 5 Home Units. Of these HOME Units, 1_is a one - bedroom unit, 2
are two - bedroom units, and 2 are three - bedroom units.
High HOME Unit means a unit that must be leased to High HOME Eligible Tenant and
leased for High HOME Rent. High HOME Units can float among units that are
materially similar in number of bedrooms, square footage, and amenities; however, if the
units are not materially similar, then the High HOME units must be fixed.
This project contains 4 High HOME Units.
Low HOME Unit means a unit that must be leased to Low HOME Eligible Tenant and
leased for Low HOME Rent. Low HOME Units can float among units that are materially
similar in number of bedrooms, square footage, and amenities; however, if the units are
not materially similar, then the Low HOME units must be fixed.
If there are more than 5 HOME Units, then 20% of the total HOME units must be
designated as Low.
This project contains 1 Low HOME Unit.
High HOME Eligible Tenant means (i) for a tenant who is the first to occupy a High
HOME Unit, a tenant whose annual income adjusted for family size does not exceed 60%
HOME DEVELOPER RENTAL. CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor. LP Page 3
of AMI, and (ii) for a tenant who is not the first to occupy a High HOME Unit, a tenant
whose annual income adjusted for family size does not exceed 80% of AMI. Tenant
income must be verified using the most current HUD Income Guidelines and Technical
Guidance for Determining Income and Allowances subject to the income verification
requirements of Section 7.2 of this Contract. The definition of annual income to
determine tenant income eligibility under this Contract shall be the definition contained
in 24 CFR Part 5.609 as amended from time to time.
High HOME Rent means a rent amount that is the lesser of (i) the HUD established Fair
Market Rent for existing comparable housing units in the area; or (ii) 30% of the adjusted
income of a family whose annual income equals 65% of AMI with applicable adjustment
for the bedroom size of the relevant housing unit.
Investment Limited Partner means Wells Fargo Affordable Housing Community
Development Corporation, a North Carolina corporation, and any successors and assigns.
Low HOME Eligible Tenant means a tenant whose annual income adjusted for family
size does not exceed 50% of AMI established by HUD. Tenant income must be verified
using the most current HUD Income Guidelines and Technical Guidance for Determining
Income and Allowances subject to Section 7.2 of this Contract. The definition of annual
income to determine tenant income eligibility under this Contract shall be the definition
contained in 24 CFR Part 5.609 as amended from time to time
Low HOME Rent means a rent amount that is no more than 30% of the annual income
of a family at 50% of AMI adjusted for family size.
Loan Documents means security instruments including without limitation, the City's
Promissory Note and Deed of Trust, security agreements, financing statements,
guaranties, pledges or other similar security instruments evidencing, securing or
guaranteeing City's interest in the Required Improvements constructed under this
Contract and further evidencing, securing, or guaranteeing Developer's performance
during the Affordability Period, as the same may from time to time be extended,
amended, restated, supplemented or otherwise modified.
Property means the land on which the Required Improvements shall be constructed as
more particularly described in and encumbered by the Deed of Trust.
Required Improvements or the project means all the improvements to the Property for
an affordable rental housing project to be constructed, rehabilitated or reconstructed on
the Property, together with all fixtures, tenant improvements and appurtenances now or
later to be located on the Property and/or in such improvements. The Required
Improvements are commonly known as the Pilgrim Valley Manor Apartments. The
street address of the project is 1701 E. Robert Street, Fort Worth, TX 76104
Source Documentation means any documentation allowed under the 24 CFR Part 5.609
definition of annual income.
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
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3. TERM AND EXTENSION.
3.1 Term.
The term of this Contract begins on the Effective Date and terminates in 2 years
unless terminated as provided in this Contract.
3.2 Extension.
This Contract may be extended for 1 year upon Developer submitting a request
for an extension in writing at least 60 days prior to the end of the Contract term. The
request for extension shall include Developer's anticipated budget and goals and
objectives for the extended term. It is specifically understood that it is within City's sole
discretion whether to approve or deny Developer's request for an additional term. Any
such extension must be in writing as an amendment to this Contract.
4. DUTIES AND RESPONSIBILITIES OF CITY.
4.1 Loan of HOME Funds.
City shall loan up to Two Hundred Thousand and No /100 Dollars ($200,000.00)
of HOME Funds in the form of a subordinate loan to complete the construction of the
Required Improvements, under the terms and conditions described herein (the "Loan").
4.2 City Will Monitor.
City will monitor the activities and performance of Developer and its contractors
or subcontractors as necessary, but no less than annually as required by 24 CFR Part
92.504.
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 "C" — Construction Schedule. Developer
shall not begin construction until City sends a Notice to Proceed. Developer's failure to
meet the Construction Schedule shall be an event of default. Developer may not change
the Construction Schedule without the Director's prior written approval, which approval
shall be in the Director's sole discretion.
5.3 Use of HOME Funds.
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5.3.1 Expenditures in Compliance with HOME Regulations and Contract.
Developer shall be reimbursed for the project costs with HOME Funds only if:
5.3.1.1 Costs are eligible expenditures in accordance with HOME
Regulations as determined by the City in its sole discretion.
5.3.1.2 Costs are in compliance with this Contract as determined by
City in its sole discretion and are reasonable and consistent
with industry norms.
5.3.1.3 Complete Documentation as determined by City in its sole
discretion is submitted by Developer.
5.3.2 Budget.
Developer agrees that the HOME Funds will be reimbursed in accordance with
Exhibit `B" - Budget. Developer may not increase or decrease line -item amounts in the
Budget without Director's prior written approval, which approval shall be in the
Director's sole discretion.
5.3.3. Security for City's Interest.
To secure City's interest in the Required Improvements, Developer shall execute
the Promissory Note and any other Loan Documents and record the Deed of Trust
encumbering the Property. 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 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.
5.3.4 Loan Terms and Conditions.
Developer will be required to:
5.3.4.1 Execute a subordinate Promissory Note and Deed of Trust and
other Loan Documents secured by Developer's interest in the
Property and Required Improvements.
5.3.4.2 Provide City with a Mortgagee's Policy of title insurance in the
amount of the Loan.
5.3.4.3 Pay all costs associated with closing the Loan.
5.3.4.4 At least 1 business day before closing, provide City the
estimated settlement statement.
5.3.4.5 Ensure City's lien is subordinate only to the senior
indebtedness described in a subordination agreement between
City and the construction lender and/or the permanent finance
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 6
lender. City must approve in writing any secured financing
that is to be subordinate to City' Loan. The loan from Tarrant
County Housing Finance Corporation in the amount of
$556,000.00, which is subordinate to the Loan, is hereby
approved.
5.3.4.6 The term of the Loan shall commence on the date of the
Promissory Note and shall terminate 2 years later; provided
however, if the entire project has not been placed in service at
that time, the term of the Loan shall be extended for an
additional year. The Deed of Trust shall secure both
repayment of the Loan and performance by Developer of its
obligations under this Contract and the HOME Regulations
during the Affordability Period and shall terminate at the end
of the Affordability Period.
5.3.4.7 Interest shall accrue at the lesser of the Applicable Federal Rate
in effect on the date of the Promissory Note, or 1% per annum.
Interest shall be due and payable in quarterly installments as
described in the Promissory Note until the maturity date of the
Loan at which time principal and all accrued but unpaid
interest shall be paid in full.
5.3.4.8 Early repayment of the Loan shall not relieve Developer of its
obligations under this Contract or the HOME Regulations and
the Deed of Trust will remain in place until the end of the
Affordability Period to secure Developer's performance of its
obligations hereunder.
5.3.4.9 City agrees that its Loan shall be subordinate to Developer's
construction and/or permanent lenders and City agrees to
execute subordination agreements as requested by the
construction and/or permanent lender. City also agrees to
execute partial releases as needed as determined 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
so long as the partial release is in the City's best interest.
5.3.4.10 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.
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5.3.4.11 Any failure by Developer to comply with this Section 5.3.4
will be an Event of Default under this Contract and the Loan
Documents.
5.3.5 Payment of HOME Funds to Developer.
HOME 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 in accordance with Exhibit "C" — Construction Schedule,
attached hereto and made apart hereof for all purposes.
5.3.6 Maintain Affordability Requirements.
Developer shall ensure that Required Improvements shall remain affordable
throughout the Affordability Period as required by the HOME Regulations. There shall
be a 10% payment of the total Loan amount by Developer to City as liquidated damages
if Affordability Requirements are not maintained during Affordability Period.
5.3.6.1 City Monitoring for Affordability Requirements.
City will monitor the activities and performance of Developer
and its contractors in order to ensure that the Required
Improvements remain affordable and are in compliance with
the HOME Regulations and this Contract.
5.3.7 Affordability Requirement Survives Transfer.
The HOME Units 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 affirmatively assume in writing the obligations established
hereunder for the HOME Units.
5.4 Acknowledgement of Completion.
Within 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.
5.5 HOME Unit Reporting.
Developer must notify the City in writing within 30 days of either of the
following occurrences:
5.5.1 a HOME Unit is occupied by a tenant who is not income eligible or,
5.5.2 a HOME Unit remains vacant for more than 90 days.
6. RENTAL HOUSING CONSTRUCTION WITH HOME FUNDS
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6.1 Construction to Conform to All Applicable Laws, Buildinla Codes and
Ordinances.
All plans, specifications and construction for the Required Improvements shall (i)
conform to all applicable Federal, state and local laws, ordinances, rules and regulations,
including HOME Regulations; (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) if new construction, must conform
to the Model Energy Code published by the Council of American Building Officials; and
(v) must pass inspection by City's Housing and Economic Development Department
inspectors. Housing units constructed with HOME 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 applicable, for the Required
Improvements.
6.2.1 Property Maintenance and Inspections.
Developer shall ensure that the project is maintained to the standards described in
Section 6 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 1 to 4 units, every 3 years; for projects with 5 to 25 units,
every 2 years; for projects with 26 or more units, every year.
6.3 Lead Paint Requirements.
Developer will comply with Federal lead -based paint requirements including lead
screening in housing built prior to 1978 in accordance with 24 CFR Part 92.355 and 24
CFR Part 35, subparts A, B, J, K, M, and R, and the Lead: Renovation, Repair and
Painting Program Final Rule, 40 CFR Part 745 in the construction and/or rehabilitation of
the Required Improvements.
6.4 Approval by City of Plans and Specifications 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.
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Fort Worth Pilgrim Valley Manor, LP Page 9
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
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.epis.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. TENANT SELECTION AND INCOME VERIFICATION.
7.1 Income Eligibility.
Developer must use the annual income definition used by 24 CFR 5.609 to establish
tenant income eligibility. Developer shall use the most current HUD Income Guidelines
and Technical Guidance for Determining Income and Allowances to determine tenant
eligibility.
7.2 Income Verification.
7.2.1 Before executing any lease, Developer must verify all new tenants'
income eligibility with Source Documentation. Afterward, Developer must annually
verify the tenant's income, but may use a City- approved tenant self - certification form
rather than Source Documentation.
7.2.2 Not withstanding the foregoing, Developer must verify the income
eligibility of all tenants with Source Documentation every 6th year of the Affordability
Period.
7.2.3 Developer must maintain copies of Source Documentation and all tenant
self- certification forms as required under this Contract.
7.3 Tenant Lease.
Developer shall use a tenant lease that complies with the provisions of 24 CFR
Part 92.253 regarding the following issues:
7.3.1 Length of lease term shall not exceed 2 years and may not be shorter than
1 year.
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Fort Worth Pilgrim Valley Manor, LP Page 10
7.5.2
7.3.2 Lease may not include agreement by tenant to allow landlord to take, hold
or sell tenant's property without notice.
7.3.3 Lease may not include agreement by the tenant to excuse owner from
responsibility for intentional or negligent acts.
7.3.4 Lease may not authorize owner to institute a lawsuit without notice to the
tenant.
7.3.5 Lease may not include agreement by tenant to waive a jury trial or right of
appeal.
7.3.6 Lease may not include an agreement by tenant to pay legal costs of court
proceeding even if the tenant prevails in those proceedings regardless of outcome.
7.3.7 Developer must submit to City Exhibit "F" — Tenant Demographic
Report within 30 days of execution of each lease for HOME Units,
7.3.8 Developer shall provide City copies of revised lease forms within 30 days
of any change to its lease form.
7.4 Tenant Rent.
As applicable to the number of HOME Units designated for the Required
Improvements as outlined in Exhibit "A" - Project Summary, rents charged to tenants
are subject to 24 CFR 92.252 (a) and (b). Rents charged to tenants in HOME Units are
subject to review and approval by City. Under no circumstances may the maximum
rental amounts charged to tenants of HOME Units exceed the High Home Rent minus
monthly allowances for utilities and services (excluding telephone) established by HUD.
For projects with 5 or more HOME Units, 20% of the HOME Units must be occupied by
families with incomes no higher than 50% of AMI who are paying the Low HOME Rent.
Developer agrees to abide by HUD - approved schedules of HOME rent levels and locally
adopted utility allowances published by the Fort Worth Housing Authority.
7.5 Tenant Selection.
Within 30 days of Contract execution, Developer must submit to City for
approval Developer's written tenant selection policy and criteria that address the
following:
7.5.1 The tenant selection policy must be consistent with the purpose of
providing housing for very low and low income persons.
The tenant selection policy must provide for:
7.5.2.1 selection of tenants from a written waiting list in the
chronological order of their application, insofar as is
practicable;
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Fort Worth Pilgrim Valley Manor, LP Page I I
Rev 12-13-11
7.5.2.2 prompt written notification to any rejected applicant of the
grounds for such rejection; and
7.5.2.3 Bi- lingual leasing and management assistance.
7.5.3 Holders of rental assistance subsidies (such as HUD's Housing Choice
Voucher or similar subsidy) must not be excluded from renting a unit in the Required
Improvements.
7.5.4 The tenant selection policy must address non - discrimination and
affirmative marketing as discussed in Section 7.6.
7.5.5 The Developer must market accessible units in the following order:
7.5.5.1 Market within the project to persons requiring an accessible
unit.
7.5.5.2 Reference waiting list to check for persons requiring accessible
unit.
7.5.5.3 Market to general community for persons requiring accessible
unit.
7.5.5.4 Market to persons that do not require accessible unit.
7.5.6 The tenant selection policy must address lease requirements as discussed
in Section 7.3.
7.5.7 The tenant selection policy must address managing HOME Unit mix under
HOME Regulations.
7.5.8 The tenant selection policy must comply with state and local
tenant/landlord laws.
7.6 Affirmative Marketing.
Developer must adopt and implement affirmative marketing procedures and
requirements as required by 24 CFR 92.351 if the project involves the construction of 5
or more HOME Units. 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 sex, age, race, color, creed,
nationality, national origin, religion, handicap status, disability, familial status, sexual
orientation, gender identity, gender expression or transgender, are given an equal
opportunity to participate in the project. The procedures and requirements must also
include the designation of an individual that will be responsible for marketing the project
and establishing a clear application screening plan and the maintenance of documentation
and records to evidence affirmative marketing procedures have been implemented.
HOME DEVELOPER RENTAL CONTRACT Rev 12 -13- l l
Fort Worth Pilgrim Valley Manor, LP Page 12
Developer's affirmative marketing procedures must be submitted to City for approval
prior to implementation. City shall have no responsibility with regard to affirmative
marketing of the project.
8. Additional HOME Requirements.
Developer agrees to comply with all requirements of the HOME Program as
stated in the HOME Regulations, including, but not limited to the following:
8.1 Environmental Review.
HOME Funds will not be paid and costs cannot be incurred until City has
conducted and completed an environmental review of the proposed project site as
required under 24 CFR Part 58. The environmental review may result in a decision to
proceed with, modify, or cancel the project. Further, Developer will not undertake or
commit any funds to physical or choice limiting actions, including property acquisition,
demolition, movement, rehabilitation, conversion, repair or construction prior to the
environmental clearance, and any violation of this provision will result in the denial of
any funds under this Contract.
8.2 Contract Not Constituting Commitment of Funds or Site Approval.
Notwithstanding any provision of this Contract, the Parties agree and
acknowledge that this Contract does not constitute a commitment of funds or site
approval, and that such commitment of funds or approval may occur only upon
satisfactory completion of environmental review and receipt by City of an authorization
to use grant funds from HUD under 24 CFR Part 58.
8.3 Compliance with the Uniform Relocation Act.
If applicable, Developer shall comply with the relocation requirements of 24 CFR
Part 92.353 and all other applicable Federal and state laws and city ordinances and
requirements.
8.4 Compliance with Davis - Bacon. If applicable, Developer and its
general contractor and all lower tier subcontractors will comply with the Davis -Bacon
Act as described in Section 15.14 and Exhibit J of this Contract
8.5. Monitoring.
8.5.1 Developer understands and agrees that it will be subject to monitoring by
City for compliance with the HOME Regulations for the duration of the Affordability
Period. Developer will provide reports and access to project files as requested by City
during the Affordability Period and for five (5) years after the end of the Affordability
Period, and will meet all the reporting requirements set out in this Contract. This Section
shall survive the termination or expiration of this Contract.
8.5.2 City shall have access at all reasonable hours to the Developer's records
that are related to the use of the HOME Funds, and its officers, directors, agents,
employees, contractors and subcontractors for the purpose of such monitoring.
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Fort Worth Pilgrim Valley Manor, LP Page 13
8.5.3 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 terms and conditions of this Contract, and of the
adequacy and timeliness of Developer's performance under this Contract. After each
monitoring visit, City shall provide Developer with a written report of the monitor's
findings. If the monitoring report notes deficiencies in Developer's performance, the
report shall include requirements for the timely correction of said deficiencies by
Developer. Failure by Developer to take the action specified in the monitoring report
may be cause for suspension or termination of this Contract as provided in Section 11.
8.6 Developer Procurement Standards.
Developer shall establish procurement procedures to ensure that materials and
services are obtained in a cost effective manner. Developer shall comply with all
applicable federal, state and local laws, regulations, and ordinances for making
procurements under this Contract.
8.7 Cost Principles /Cost Reasonableness.
Developer shall administer its use of HOME Funds in compliance with OMB
Circular A -122, "Cost Principles for Non - Profit Organizations ", as amended from time to
time. The allowability of costs incurred for performance rendered shall be determined in
accordance with OMB Circular A -122 as supplemented by the provisions of this
Contract.
8.8 Terms Applicable to Contractors and Subcontractors.
Developer understands and agrees that all terms of this Contract, whether
regulatory or otherwise, shall apply to any and all contractors and subcontractors of
Developer which are in any way paid with HOME Funds or who perform any work in
connection with the project. Contractor shall cause all applicable provisions of this
Contract to be included in and made a part of any contract or subcontract executed in the
performance of its obligations hereunder. Developer shall monitor the services and work
performed by its contractors and subcontractors on a regular basis for compliance with
the HOME Regulations and Contract provisions. Developer is liable for any failures to
perform and violations of the HOME Regulations by its contractors or subcontractors.
City maintains the right to insist on Developer's full compliance with the terms of this
Contract and the HOME Regulations and Developer is responsible for such compliance
regardless of whether actions to fulfill the requirements of this Contract are taken by
Developer or by Developer's contractors or subcontractors.
9. 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.
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Werth Pilgrim Valley Manor, LP Page 14
10. REIMBURSEMENT REQUIREMENTS.
10.1 With each reimbursement request, Developer shall provide City with the
following reports and supporting documentation:
10.1.1 Exhibit "E" — Narrative Report. This report shall contain information
detailing activities since last submitted reimbursement request.
10. 1.2 Exhibit "G" - Request For Funds. This report shall contain the amount
of funds requested for reimbursement and shall be signed by the authorized signatory of
the Developer.
10.1.3 Exhibit "H" - Detail Statement of Costs. This report shall contain
information regarding the current reimbursement request and cumulative balance and
shall be signed by the authorized signatory of the Developer.
10. 1.4 Exhibit "I" - Expenditures Worksheet. This report shall be signed by
the authorized signatory of the Developer and shall contain an itemized listing of all
eligible expenses requested for reimbursement. In order for this report to be complete
the following must be submitted:
10.1.4.1 Invoices for all expenses listed — the invoice must clearly show it
pertains to the site described in the project description;
10.1.4.2 Proof that the expenses were paid by the Developer which can be
satisfied by cancelled checks, wire transfers or other appropriate
banking documentation; and
10.1.4.4 Lien releases as City reasonably determines necessary. The final
reimbursement shall not be disbursed until all liens are released
to City's satisfaction and proof of Completion is provided.
10.1.5 Exhibit "J" -Davis Bacon Report.
10.2 City retains the right to change reporting requirements and forms at its
discretion. City will notify Developer in writing in advance of such change and the
Parties shall execute an amendment to the Contract reflecting such change.
10.3 Withholding Pavment. IF THE REQUIRED REPORTS AND
APPROPRIATE SUPPORTING DOCUMENTATION ARE NOT RECEIVED BY
THE DUE DATE, CITY SHALL WITHHOLD PAYMENTS REQUESTED
UNDER THIS CONTRACT. Failure to submit required reports shall be an event
of default.
11. DEFAULT AND TERMINATION.
11.1 Failure to Begin or Complete the Required Improvements
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11.1.1 If Developer fails to begin construction, which for the purposes of this
Contract shall be defined as substantial completion of the demolition of the buildings as
described on Exhibit "A" — Project Summary, 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.
11.1.2 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.
11.2 Failure to Submit Required Documentation During Construction.
If Developer fails to submit any report or provide documentation required by this
Contract during construction of the Required Improvements as described in Section 10,
or if the submitted report or documentation is not in compliance with this Contract or
HOME Regulations as determined by City, City will notify Developer in writing and the
Developer will have 15 calendar days from the date of the written notice to submit or
resubmit any such report or documentation. If the Developer fails to submit or resubmit
any such report or documentation within such time, City shall have the right to withhold
payments or terminate this Contract effective immediately upon written notice of such
intent with no penalty or liability to City. Notwithstanding anything to the contrary
herein, City will not be required to pay any HOME Funds to Developer during the period
that any report or documentation is past due or is not in compliance with this Contract or
the HOME Regulations. In the event of termination under this Section 11.2, all HOME
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 HOME Funds
already paid to Developer must be repaid to City within 30 days of the termination.
Failure to repay such HOME Funds will result City exercising all legal remedies
available to City under this Contract and the Loan Documents.
11.3 Failure to Submit Required Reports and 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 15 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.
11.4 In General.
Subject to Sections 11.1, 11.2, and 11.3 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
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 16
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 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 11.4, all HOME Funds awarded but unpaid to Developer pursuant to
this Contract shall be immediately rescinded and Developer shall have no further right to
such funds. In the event HOME Funds have been paid to Developer, Developer agrees to
repay them to City within 30 days of termination.. If such HOME 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 Deed of Trust.
11.5 No Funds Disbursed while in Breach.
Developer understands and agrees that no HOME Funds will be paid to Developer
until all defaults are cured to the satisfaction of City.
11.6 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.
11.7 Rishts 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.
11.8 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.
11.9 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.
11.10 Termination for Cause.
City may terminate this Contract in the event of Developer's default, inability, or
failure to perform subject to notice, grace and cure periods. Likewise, Developer may
terminate this Contract if City does not provide the HOME Funds substantially in
accordance with this Contract.
11.11 Termination for Convenience.
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In terminating in accordance with 24 C.F.R. 85.44, this Contract may be
terminated in whole or in part only as follows:
11.11.1 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
11.11.2 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 HOME Funds to
be spent will not accomplish the purposes for which the Contract was made, City may
terminate the Contract in its entirety.
11.12 Dissolution of Developer Terminates Contract.
In the event Developer is dissolved or ceases to exist, all assets acquired with
HOME Funds including cash, interest payments from loans or otherwise, all outstanding
notes, mortgages or other security instruments used to secure HOME Funds, any accounts
receivable attributable to the use of HOME Funds, and any real or personal property
owned by Developer that was acquired or improved with HOME Funds shall
automatically transfer to City and this Contract shall terminate.
12. REPAYMENT OF HOME FUNDS.
All HOME 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.
13. MATERIAL OWNERSHIP CHANGE.
Subject to limited partnership transfers with City consent, if ownership of the
Developer materially changes after the date of this Contract, City may but is not
obligated to, terminate 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 13, all HOME Funds awarded but
not yet paid to Developer pursuant to this Contract shall be immediately rescinded and
Developer shall have no further right to such funds. Any HOME Funds already paid to
Developer must be repaid to City within 30 days of termination under this Section.
14. SURVIVAL.
Any provision of this Contract that pertains to affordability, monitoring, tenant
income eligibility, tenant rent and selection, tenant lease, 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.
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
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15. GENERAL PROVISIONS
15.1 Developer an Independent Contractor.
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.
15.2 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 right to control
the details of the tasks performed hereunder by Developer, its officers, members, agents,
employees, contractors, licensees or invitees.
15.3 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, SAVE AND EXCEPT THOSE ARISING SOLELY OUT OF THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF CITY, ITS AGENTS
OR EMPLOYEES.
15.4 Religious Organization.
No portion of the HOME 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 HOME - funded property.
15.5 Audit.
15.5.1 Entities that Expend $500,000 or more in Federal Funds Per Year.
All non - federal entities that expend $500,000 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. The audit shall
cover the Developer's fiscal years during which this Contract is in force. The audit must
be prepared by an independent certified public accountant, be completed within 6 months
following the end of the period being audited and be submitted to City within 30 days of
its completion. Developer'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 60 days of the end of period being audited (Developer's
fiscal year). Entities that expend less than $500,000 a year in Federal funds are exempt
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 19
from Federal audit requirements for that year, but records must be available for review or
audit by appropriate officials of the Federal agency, City, and General Accounting
Office.
15.5.2 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 OMB Circular A -133, 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
HOME FUNDS OR SPENT HOME 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.
15.6 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 lie in Tarrant County, Texas.
15.7 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.
15.8 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.
15.9 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.
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
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15.10 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.
15.11 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 during 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.)
➢ 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 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. 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
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 21
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
Requirement that Law Be Quoted in Covered Contracts. — Certain Requirements
Pertaininiz to Section 3 of the Housing and Urban Development Act of 1968 as amended
(12 U.S.C. Sections 1701 et seq.) and its related regulations at 24 CFR Part 135
If 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, shown in italics, be inserted in all
covered contracts ( "Section 3 Clause "):
Section to be quoted in covered contracts begins:
"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 1701u (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 anv subcontractor where it has notice
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor. LP Page 22
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 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). "
Section to be quoted in covered contracts ends.
City and Developer understand and agree that, if applicable to the Project,
compliance with the provisions of Section 3, the regulations set forth in 24 CFR Part 135,
and all applicable rules and orders of HUD shall be a condition of the Federal financial
assistance provided to the project binding upon City and Developer, and their respective
successors, assigns and contractors. Failure to fulfill these requirements shall subject
Developer 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.
15.12 Prohibition Against Discrimination.
15.12.1 General Statements.
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
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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,
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.
15.12.2 No Discrimination in Emnloyment 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 Name] will not unlawfully discriminate against any employee or
applicants for employment because of race, color, sex, gender, religion, national origin,
familial status, disability or perceived disability, sexual orientation, gender identity,
gender expression or transgender. [Contractor's Name] will take
affirmative action to ensure that applicants are hired without regard to race, color, sex,
gender, religion, national origin, familial status, disability or perceived disability, sexual
orientation, gender identity, gender expression or transgender and that employees 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. [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
employees placed 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, 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] further covenants that neither it nor its officers,
members, agents, employees, contractors, 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.
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
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15.12.3 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.
15.13. Prohibition Against Interest / Conflict of Interest.
15.13.1 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.
15.13.2 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 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 occupy a HOME Unit, 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 1 year thereafter, unless they are accepted in accordance with the procedures set
forth at 24 C.F.R. Part 92.356.
15.13.3 Developer affirms that it will adhere to the provisions of the Texas
Penal Code which prohibits bribery and gifts to public servants.
15.13.4 If applicable, the conflict of interest provisions of 24 CFR Part
85.36 and 24 CFR Part 84.42, respectively, shall apply in the procurement of property
and services by Developer. In all cases not governed by those sections, the provisions of
24 CFR Part 92.356 of the HOME Regulations shall apply.
15.14 Labor Standards.
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15.14.1 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.
15.14.2 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.
15.14.3 If Davis -Bacon is applicable, Developer shall provide City access
to employee payrolls, contractor and subcontractor payrolls and other wage information
for persons performing construction of the Required Improvements. Payrolls must be
submitted to the Housing and Economic Development Department on a weekly basis
within 7 days after a pay period ends. In addition, Developer shall ensure that City will
have access to employees, contractors and subcontractors and their employees in order to
conduct onsite interviews with laborers and mechanics. Developer shall inform its
contractors and subcontractors that the project is subject to periodic employee wage
interview visits by City staff and/or Federal agencies to ensure compliance.
15.15 Minority and Women Business Enterurise 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.
15.16 Other Laws.
The failure to list any federal, state or City ordinance, law or regulation that is
HOME DEVELOPER RENTAL CONTRACT Rev l2- 13 -1 1
Fort Worth Pilgrim Valley Manor, LP Page 26
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.
15.17 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.
15.18. Right to Inspect Contractor Contracts.
It is agreed that City has the right to inspect and approve in writing any proposed
contracts between Developer and any contractor engaged in any activity in conjunction
with this HOME funded Project prior to any charges being incurred.
15.19 Force Maieure
If Developer becomes unable, either in whole or part, to fulfill its obligations
under this Contract 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.
16. 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
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 27
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
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.
17. 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.
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 28
18. 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 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 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,
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.
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 29
Directors and Officers Insurance
Optional (Highly Recommended)
Note: This insurance shall cover
Directors members.
Developer and any associated Board of
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 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 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
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 30
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.
19. Certification Retarding Lobbying.
The undersigned representative of Developer 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 Developer, 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, Developer 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 U.S.C. 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.
Developer shall require that the language of this certification be included in
all subcontracts or agreements involving the expenditure of Federal funds.
20. 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.
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 31
21. Notice.
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 United 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 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
Attention: Vicki Ganske
Telephone: 817- 392 -7765
Copy to:
Director of Housing and Economic Development
1000 Throckmorton Street
Fort Worth, TX 76102
Attention: Jay Chapa
Telephone: 817- 392 -7540
Copy to:
Project Coordinator
1000 Throckmorton Street
Fort Worth, TX 76102
Attention: Fabiola Suarez
Telephone: 817- 392 -6342
Developer:
Fort Worth Pilgrim Valley Manor, LP
c/o 3735 Honeywood Ct.
Port Arthur, TX 77642
Attn: Chris Akbari
Telephone: 409 - 724 -0020
Copies to:
The Itex Group
3735 Honeywood Ct.
Port Arthur, TX 77642
Attn: K. T. (Ike) Akbari
Telephone: 409 - 724 -0020
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 32
Coats I Rose
3 E. Greenway Plaza, Suite 2000
Houston, Texas 77046
Attn: Tamea A. Dula
Telephone: 713- 653 -7322
Investment Limited Partner:
Wells Fargo Affordable Housing Community Development Corporation
301 South College Street
MAC D1053 -170
Charlotte, NC 28288
Attention: Director of Tax Credit Asset Management
Copy to:
Judy Crosby
Klein Hornig, LLP
145 Tremont Street, Suite 400
Boston, MA 02111
22. Developer Has Legal Authority to Enter Into Contract.
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 perform the responsibilities herein required.
23. Investment Limited Partner's Right to Cure: The Parties agree that the
Investment Limited Partner shall have the right, but not the obligation, to cure any default
by or complete any obligation of the Developer under the Loan Documents during the
cure period or completion period provided therein, and the Parties hereto agree to accept
any such cure or completion tendered by the Investment Limited Partner.
24. Counterparts.
This Contract may be executed in multiple counterparts, each of which shall be
considered an original, but all of which shall constitute one instrument.
[SIGNATURES APPEAR ON NEXT PAGE]
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 33
IN WITNESS WHEREOF, the Parties have executed 4copies of this Contract to
be effective on the last date indicates ,. ,,the Parties' signatures. .
FoRr -14�
e° ° °A 000 OF FORT WORTH
tity Secretary ti o ando Costa, Assistant City Manager
&C: C -24977 Dated June 1 ?y� 00° �yd
a� °00000 ° °t,ry
APP VED AS F AND LEGALITY:
t/A(/
Assistant City Attorney
FORT WORTH PILGRIM VALLEY MANOR,
LP,
a Texas limited partnership
By: IAP Fort Worth Pilgrim Valley Manor,
LLC s. 'mited liability company, its
nera
By:
Ike Akbari, anager
Date: IA L� "
STATE OF TEXAS §
COUNTY OF TARRANT g § � 2011 by
This instrument was acknowled ed before me oPA-M�94
Fernando Costa, Assistant City Manager of the gity of Fort Worth, on behalf the City of
Fort Worth.
EVONIA DANIELS (Notary Public, State of Texas
MY COMMISSION EXPIRES
July 10, 2013
STATE OF TEXAS §
COUNTY OF —,f- §
This instrument was acknowledged before me on 1_ )e (,, kk c V �. G l by Ike
Akbari, Manager of. IAP Pilgrim Valley Manor, LLC, a Texas limited liability company,
General Partner of Fort Worth Pilgrim Valley Manor, LP, a Texas limited partnership,
acting on behalf of such limited partnership. V. A
�j,�Y Notary Pub 'c State of Texas
t - �rCO Nn I UK Mal
[[�� �^ f ]t U �` } ry
OFF I~SAL RIL ;.i~1V
HOME DEVELOPER RENTAL CONTRACT Qivlll X13 -1? "31'
Fort Worth Pilgrim Valley Manor. LP Page 34
EXHIBITS:
Exhibit "A" — Project Summary
Exhibit `B" — Budget
Exhibit "C" — Construction Schedule
Exhibit "D" — Audit Certification Form and Audit Requirements
Exhibit "E" — Narrative Report
Exhibit "F" — Tenant Demographic Report
Exhibit "G" — Request For Funds
Exhibit "H" — Detail Statement of Costs
Exhibit "I" — Expenditures Worksheet
Exhibit "J" — Davis Bacon Report - NOT APPLICABLE
HOME DEVELOPER RENTAL CONTRACT Rev 12-13-11
Fort Worth Pilgrim Valley Manor, LP Page 35
EXHIBIT "A"
PROJECT SUMMARY - SCOPE OF WORK
FORT WORTH PILGRIM VALLEY MANOR, LP.
DESCRIPTION:
Fort Worth Pilgrim Valley Manor, LP, ( "Developer ") will relocate existing tenants and substantially
rehabilitate the Pilgrim Valley Manor Apartments located at 1701 East Robert Street, Fort Worth, TX.
76104 (the "Project "). The Project is comprised of 15 two -story residential buildings consisting of 168
units which include 40 one - bedroom/one -bath units, 64 two - bedroom/one -bath units, and 64 three -
bedroom/one- half -bath units, and a separate building contain community gathering space for the
exclusive use of the tenants.
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
rehabilitated in accordance with the LIHTC proposal and all applicable amendments submitted to
TDHCA during the 2010 application round. For the 15 year HOME - required Affordability Period, the
Project will be managed in compliance with this Contract and applicable provisions of all HOME
Regulations governing rental projects. The units will be available to households earning 60% or less of
Area Median Income ( "AMI "). High HOME Tenants who are not the initial tenant of a HOME Unit
may have incomes that do not exceed 80% AMI.
The term of the Contract for the HOME Funds is for 2 years with a 1 year extension or renewal upon
written request and mutual written consent. Developer will be entitled to make requests for
reimbursement during the 2 year Contract term. Interest will accrue at the lesser of the Applicable
Federal Rate in effect on the date of the Promissory Note or 1% per annum. Interest shall be due and
payable in quarterly installments as described in the Promissory Note. Repayment of the Loan will be
subject to the terms of a Subordination Agreement to be entered into among the City, Developer and
Developer's construction and permanent lender.
In consideration for HOME Funds provided through this Contract, Fort Worth Pilgrim Valley, LP
agrees to provide the following information and meet the following requirements:
• Designate 5 floating units in Project as HOME - assisted units subject to the "next available unit
rule ". Of these units, 1 will be a Low HOME unit; affordable to low- income tenants at 50% of
AMI or below and 4 will be High HOME units, affordable to low - income tenants at 60% of
AMI or below for the initial tenant in the unit and affordable to low income tenants at 80% of
AMI or below for subsequent tenants. The unit mix will consist of 1 one - bedroom, one -bath
designated as High HOME, 2 two - bedroom, one -bath designated as High HOME, 1 three -
bedroom, one and one -half bath designated as High HOME and 1 three- bedroom, one and one -
half bath designated as Low HOME.
• In addition, 13 units will be accessible for the mobile impaired and /or accessible for the hearing
or visually impaired.
• During lease -up period, and until Project is fully leased, report 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 Form E -2 -
Beneficiary Performance Report. If these HOME - assisted housing units do not qualify as
affordable rental housing immediately upon lease -up or at any time during the Affordability
Period, the City may invoke any remedies provided for in the Contract or the Loan Documents.
• During the Affordability Period, submit to City annually a copy of its annual audit, and TDHCA
compliance report.
HOME Funds -Exhibits
Pilgrim Valley Manor, LP
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: The substantial rehabilitation of an affordable housing project consisting
of 168 affordable units, of which five will be HOME - assisted units.
HOME Funds -Exhibits
Pilgrim Valley Manor, LP
EXHIBIT "B"
Budget
Fort Worth Pilgrim Valley Manor, LP
Sources and Uses
Development Name: I Pilgrim Valley Manor Apartments
HOME Funds Budget
Acquisition and Rehabilitation $200,000
TOTAL $200,000
HOME Funds - Exhibits
Pilgrim Valley Manor, LP
Priority
Construction or Rehab. Loan
Financing
Source #
Funding Descri bon
of Lien
Stage Amt.
Permanent Loan Stage Amount
Participants
Wells Fargo
1
Conventional Loan
1
$
$430,000
Bank
Wells Fargo
2
Conventional Loan /FHA
$
$2,825,000
Bank
Wells Fargo
3
Construction Loan
$10,000,000
Bank
City of Fort
4
HOME
$200,000
Worth
5
HTC Syndication Proceeds
$13,594,416
Wachovia Bank
Local Government Loan or
Tarrant County
6
Grant
$556,000
HFC
7
Private Loan or Grant
8
Other Loan
In -Kind Equity /Deferred
9
Developer Fee
$991,354
TOTAL SOURCES OF
FUNDS
"
TOTAL USES OF FUNDS
$10,000,000
$18,596,770
HOME Funds Budget
Acquisition and Rehabilitation $200,000
TOTAL $200,000
HOME Funds - Exhibits
Pilgrim Valley Manor, LP
EXHIBIT "C"
CONSTRUCTION SCHEDULE
Fort Worth Pilgrim Valley, LP
HOME Funds - Exhibits
Pilgrim Valley Manor, LP
Activity
PHASE I ACTIVITIES:
Contract signed
Asbestos Removal
Demolition
Reconstruction
PHASE I COMPLETE by:
March 31, 2012
PHASE II ACTIVIITES:
Rehabilitation of the Buildings
Inspections / Insulation
Sheetrock / Brick
Interior Trim / Paint
PHASE II COMPLETED
by: September 30, 2012
PHASE III ACTIVIITES:
Mechanical Trim / Landscaping
Final Trim / Appliances and Fixtures /
Fencing
Final Inspections
Punch List
PHASE III COMPLETED
by: December 31, 2012
TOTAL
HOME Funds - Exhibits
Pilgrim Valley Manor, LP
EXHIBIT "D"
AUDIT REQUIREMENTS
Fort Worth Pilgrim Valley Manor, LP
CITY OF FORT WORTH HOUSING AND ECONOMIC DEVELOPMENT 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, or other standard
set forth in the Contract if applicable, 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:
Government 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"
Government Auditing Standards by the Texas Department of Housing and Community Affairs for Properties
Receiving Low Income Housing Tax Credits
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 organization's Chief Executive Officer or Chief Financial Officer shall make the certification within
60 days of the end of the organization's fiscal year in the year that the project was completed.
The following items should be submitted to the City of Fort Worth Housing and Economic Development
Department within the required timeframe:
HOME Funds -Exhibits
Pilgrim Valley Manor, LP
Due 60 days after organization's fiscal year end in the year that the project was completed: (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 requirements of 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 the audit requirements, please call (817) 392 -6141.
HOME Funds - Exhibits
Pilgrim Valley Manor, LP
CITY OF FORT WORTH
HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
SINGLE AUDIT REPORT CHECKLIST
The Department developed this checklist to help organizations improve the quality and completeness of
audit reports.
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.
HOME Funds - Exhibits
Pilgrim Valley Manor, LP
CITY OF FORT WORTH HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
Audit Certification Form
Subrecipient:
Fiscal Year Ending: / /_
Month Day Year
❑ 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)
Must be filled out if Single Audit or Program Audit is not required:
Federal Expenditure Disclosure
Federal Funds
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 Housing and Economic Development Department within 60 days after the end of your
Fiscal year
HOME Funds -Exhibits
Pilgrim Valley Manor, LP
FROM:
NARRATIVE REPORT
TO:
EXHIBIT E
Please provide information on project construction progress, the percent of construction completion, anticipated
construction completion date, and; construction problems encountered and solutions proposed.
I. ACCOMPLISHMENTS:
II. ADDITIONAL COMMENTS REGARDING ACCOMPLISHMENTS THIS MONTH:
III. PROBLEMS ENCOUNTERED AND SOLUTIONS PROPOSED:
IV. ANTICIPATED ACTIVITIES DURING NEXT MONTH:
HOME Funds - Exhibits
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EXHIBIT G
CITY OF FORT WORTH
HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
SUBRECEPIENT'S REIMBURSEMENT REQUEST FOR FUNDS
Agency
Program Name:
Contract Number: Report Period:
Date of Request:
SECTION I (AGENCY)
Current Month' - _
Cumulative ,
CASH BALANCE ANALYSIS FOR
I. Beginning Cash Balance
$
0.00
$ 0.00
2. Amount Received:
Program Income
$
0.00
$ 0.00
City of Fort Worth
$
0.00
$ 0.00
Interest Earned
$
0.00
$ 0.00
3. Total Funds Available (1 + 2)
$
0.00
$ 0.00
4. Less Expenditure (detail statement cost)
$
0.00
$ 0.00
5. ENDING CASH BALANCE (34)
$
0.00
$ 0.00
Operating Cost
6. Estimated Expenditures
$
n/a
7. Funds Needed (6 -5) (Actual Feb Expenses)
$
0.00
8. Less Estimated Program Income
$
0.00
9. Unpaid Request for Payment Previously Submitted
$
0.00
10. Amount of This Request (7 -8 & 9)
$
0.00
TOTAL AMOUNT REQUESTED
SECTION H (CITY)
I. MARS - Purchasing Request
A. MARS INPUT: Vendor/PO Number/Requisition Number
B. Fund /Account/Center
GR76 539120
C. Total Amount of this Request
SECTION III
1. Verification
A. Development Project Avis Chaisson
B. Program Manager: Robin Bentley
/ /
C. Accounting: Stephen Thomas
2. Authorization
A. Sr. Admin. Srvices: Socon-o Gray
B. Mgmt & Budget
Administrator Barbara Asbury
.m
Housing Director Jesus "Jay" Chapa
IF OVER $9,5w.00 (N�)
AGENCY
PROGRAM
EXHIBIT H
CITY OF FORT WORTH
HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
MANAGEMENT AND BUDGET DIVISION
DETAIL STATEMENT OF COSTS
CONTRACT NO. DATE
TO
REPORT PERIOD
PROGRAM MONTHLY 1 CUMULATIVE
COST CATEGORY ACCOUNT BUDGET EXPENDITURES TO DATE BALANCE
CONTRACTUAL SERVICES
Contractual Services
TOTAL
Sub - Contractors Certification: 1 certify that the costs incurred are taken from the books of accounts and that such costs are valid
and consistent with the terms of the agreement.
NAME and TITLE OF AUTHORIZED OFFICER
SIGNATURE and DATE
EXHIBIT I
CITY OF FORT WORTH
HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
MANAGEMENT AND BUDGET DIVISION
EXPENDITURES WORKSHEET
AGENCY CONTRACT NO. DATE
PROGRAM TO
REPORT PERIOD
NO.
DATE
CHECK
# PAYEE DESCRIPTION ACCOUNT NO.
AMOUNT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TOTAL
_
Sub - Contractors Certification: I certify that the costs incurred are taken from the books of accounts and that such costs are valid
and consistent with the terms of the agreement.
NAME and TITLE OF AUTHORIZED OFFICER
SIGNATURE and DATE
M &C Review Pagel of 3
Official site of the City of Fort Worth, Texas
CITY CCIUNCIL AGENDA FoRTWORTH
COUNCIL ACTION: Approved on 6/14/2011
DATE: 6/14/2011 REFERENCE C -24977 LOG NAME: 17PILGRIMVALLEYMANOR
NO..
CODE: C TYPE: NOW PUBLIC NO
CONSENT HEARING:
SUBJECT: Authorize Change in Use and Expenditure of $200,000.00 of HOME Investment
Partnerships Program Grant Funds to Fort Worth Pilgrim Valley Manor, LP, in the Form of
a Subordinate Interim Loan for the Acquisition and Rehabilitation of the Pilgrim Valley
Manor Apartments Located at 1701 East Robert Street, Authorize the Execution of
Conditional Commitment and Contract, and Authorize a Substantial Amendment to the
City's 2008 -2009 Action Plan (COUNCIL DISTRICT 8).
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize a substantial amendment to the City' s 2008 -2009 Action Plan;
2. Authorize the City Manager, or his designee, to substitute funding years in order to meet United
States Department of Housing and Urban Development commitment, disbursement and expenditure
deadlines;
3. Authorize a change in use and expenditure of $200,000.00 in prior year's HOME Investment
Partnerships Program grant funds to Fort Worth Pilgrim Valley Manor, LP, in the form of a
subordinate interim loan for acquisition and rehabilitation of the Pilgrim Valley Manor apartments
located at 1701 East Robert Street, Fort Worth, Texas;
4. Authorize the City Manager, or his designee, to execute a conditional commitment with Fort Worth
Pilgrim Valley Manor, LP, for a subordinate interim loan that conditions loan funding, among other
things, on satisfactory completion of HOME requirements;
5. Authorize the City Manager, or his designee, to execute a contract with the Forth Worth Pilgrim
Valley Manor, LP, for the project for a two -year term beginning on the date of execution of the
contract;
6. Authorize the City Manager, or his designee, to extend or renew the conditional commitment or the
contract for up to one year if Fort Worth Pilgrim Valley Manor, LP, requests an extension and such
extension is necessary for completion of the project; and
7. Authorize the City Manager, or his designee, to amend the conditional commitment or 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 governing the use of federal
grant funds.
DISCUSSION:
Fort Worth Pilgrim Valley Manor, LP, has requested $200,000.00 in HOME Investment Partnerships
Program grant funds in the form of a subordinate construction loan for the acquisition and substantial
rehabilitation of the Pilgrim Valley Manor apartments, a 168 unit multifamily complex located at 1701
http://apps.cfwnet.org/council_packet/mc—review.asp?ID=I 5192&councildate=6/ 14/2011 12/27/2011
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Page 2 of 3
East Robert Street. The apartments currently have a 100 percent Section 8 contract subsidy through
the United States Department of Housing and Urban Development (HUD) but the project requires
substantial rehabilitation in order to prevent the cancellation of the HUD Section 8 contract and
preserve the affordable housing.
The project consists of 15 two -story buildings with 168 units including 40 one - bedroom /one -bath
units, 64 two- bedroom /one -bath units and 64 three - bedroom /one- and - one - half -bath units. Of these
168 units, nine will be made accessible for persons with mobility disabilities and four will be
accessible for person with hearing /visual disabilities. The units will be available to households
earning 60 percent or less of the Area Median Income (AMI) as set by HUD.
Fort Worth Pilgrim Valley Manor, LP, has submitted an application for "At- Risk" Low Income Housing
Tax Credits (LIHTC) for the project to the Texas Department of Housing and Community Affairs
(TDHCA). Total project costs including the award of $200,000.00 in HOME funds is approximately
$16,934,894.00.
Staff recommends the following loan terms:
i. Designate HOME - assisted units according to HOME regulations with a 15 Year Affordability
Period;
ii. Secure payment and performance of the HOME requirements by a recorded Deed of Trust on the
real
property for the length of the Affordability Period;
iii. One percent interest rate; and
iv. Repayment of principal and accrued interest due two years from date of loan documents.
The commitment of HOME funds is conditioned upon the following:
i. Award of LIHTC;
ii. Satisfactory completion of the environmental review per 24 CFR Part 58;
iii. Authorization to use grant funds from HUD; and
iv. Receipt of funding for the 2010 -2011 grant year.
Staff recommends the change in use and expenditure of $200,000.00 in HOME funds for the project,
which benefits low and very low income citizens by providing them with affordable housing. A public
comment period on the change in use of these HOME funds was held from May 6, 2011 to June 6,
2011. Any comments are maintained by the Housing and Economic Development Department in
accordance with federal regulations.
All actions described herein are subject to appropriation and receipt of federal funds, as well as
determinations of the City Council as to allocation of the federal funds. This project is located in
COUNCIL DISTRICT 8.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services 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 005206271160 $200.000.00 GR76 539120 005206271080 $200,000.00
Submitted for City Manager's Office by- Susan Alanis (8180)
Originating-Department Head: Jay Chapa (5804)
Additional Information Contact: Cynthia Garcia (8187)
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M &C Review
Fabiola Y. Suarez (6811)
ATTACHMENTS
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