HomeMy WebLinkAbout8365RESOLUTION NO. 8365
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
PUEBLO COUNTY BOARD FOR DEVELOPMENTAL
DISABILITIES, INC. AND THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, FOR AFFORDABLE HOUSING DEVELOPMENT
SERVICES IN FURTHERANCE OF THE CITY'S HOUSING
STRATEGY, AND AUTHORIZING THE PRESIDENT OF THE
COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that:
SECTION 1
The Agreement dated March 23, 1998, between Pueblo County Board for Developmental
Disabilities, Inc. and the City of Pueblo, a Municipal Corporation, ( "the Agreement ") to provide
affordable housing development services in furtherance of the City's consolidated plan in
conjunction with the U.S. Department of Housing and Urban Development ( "HUD ") HOME
Program, a copy of which is attached and incorporated, having been approved as to form by the City
Attorney, is hereby approved, and made subject to and contingent upon receipt of the federal
financial assistance therefor.
SECTION 2
Payment for services rendered and activities performed under the Agreement shall be paid
from Account No. 60 -1998- 652 - 619 -40 -7404 up to and not exceeding $175,000.00, subject to
and contingent upon sufficient Fiscal Year 1998 funds being appropriated by Congress and awarded
to the City by HUD for HOME Program Activities and the appropriation and allotment of same for
the Agreement.
SECTION 3
The President of the City Council is hereby authorized to execute said Agreement on behalf
of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and
attest same.
an
ATTEST:
\—Pi —* 01�� 1 2)�'c 9rs�
City Cle
INTRODUCED: March 23 ,1998
Al Gurule
Councilperson
APPROVED:
President of 6e City ouncil
F:\ FILES \CITY\HOUSING \HOME \BALTIMRE \I9WRESOLUTIMM -2-
COUNCIL AGENDA
A RESOLUTION APPROVING AN AGREEMENT
BETWEEN PUEBLO COUNTY BOARD FOR
DEVELOPMENTAL DISABILITIES, INC. AND
THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, FOR AFFORDABLE HOUSING
DEVELOPMENT SERVICES IN FURTHERANCE
OF THE CITY'S HOUSING STRATEGY, AND
AUTHORIZING THE PRESIDENT OF THE
COUNCIL TO EXECUTE SAME
A. ISSUE:
1. 5 f. rX � M:
A resolution authorizing ($175,000) of HOME funds to be provided to Pueblo Board
for Developmental Disabilities ( PCBDD) for 28 new town home units on vacant land
located on Baltimore in Pueblo , CO.
B. RECOMMENDATION:
Approve the resolution, thus approving a contract with PCBDD for 1997 HOME funds.
The project meets the HOME eligibility program in that affordable housing are targeted
toward Pueblo family households below 80% area median income (AMI). 22 of the
units will be for households at 50 % of median income and 6 of the units will be for
households at 40% median income.
R Q0 ►1�
The City of Pueblo has been the recipient of HOME funds since 1992. The city is in the 4rd
year of the CDBG /HOME Consolidated Plan. As part of that Plan the city must implement an
affordable housing strategy housing using HOME funds. This project will assist the city in
meeting the goals and objectives of that Plan by entering into a partnership with PCBDD for
multi - family units.
I e E l ►_ 1
The City of Pueblo
175,000
Pueblo County Board
578,923
Pueblo County
175,000
Colorado Division of Housing
280,000
Equity Investors
1,666,076
Developer Fee Loan
171,077
Fed Home Loan Bank
98,900
3,144,076
j(e,X 1�t �3&-�_
� 3 -Z3 -18
Agenda Item #
will provide $175,000 to PCBDD to be used for financing the project cost of $3,144,076 (see
schedule). PCBDD will provide additional financing in partnership with other project revenue
sources.
MAINEWMI :►:
A. The City could elect to not partner with PCBDD and let PCBDD the project without
city assistance
B. The City could approve this resolution
PUE]BLw
CITY OF PUEBLO
AFFORDABLE HOUSING DEVELOPMENT AGREEMENT
This Agreement is made and entered into this 23rd day of March 1998 by and between the
City of Pueblo, a Municipal Corporation (hereinafter referred to as "City ") and Pueblo County Board
for Developmental Disabilities, Inc. (hereinafter referred to as "PCBDD ").
WITNESSETH, that:
WHEREAS, the City has, under date of March 1, 1997, entered into an agreement with the
U.S. Department of Housing and Urban Development ( "HUD "), whereby federal financial assistance
may be made available to City as a participating jurisdiction for the purpose of expanding the
availability of affordable housing pursuant to the Home Investment Partnerships Act ( "the Act ") (42
U.S.C. 12701 et. seq.), the Cranston - Gonzales National Affordable Housing Act and implementing
regulations, including but not limited to those at 24 CFR Part 92; and
WHEREAS, in accordance with the provisions of the Act and 24 CFR Sections 92.200 and
92.205, a portion of such financial assistance, subject to deobligation (and subject to appropriation
with respect to any assistance payable out of future fiscal year allotments), may be made available
to qualifying non - profit entities for the purpose of carrying out specific elements of the participating
jurisdiction's housing strategy including new construction of affordable rental housing; and
WHEREAS, PCBDD has represented to City that it is a duly qualified non - profit entity
which is eligible and willing to undertake certain approved elements of City's housing strategy
identified herein and in the Scope of Services attached hereto; and
WHEREAS, based upon PCBDD's representations, the City believes PCBDD is capable or
can reasonably be expected to become capable of carrying out said approved elements of City's
housing strategy, and City is willing to allocate federal funds to PCBDD for investment in housing
to be developed, sponsored or assisted by PCBDD which will comply with and fulfill said approved
elements of City's housing strategy;
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants, terms and
conditions set forth herein, the parties agree as follows:
PCBDD SERVICES
(a) PCBDD shall assist, in accordance with all applicable federal, state and local laws
and regulations, in the development of a project, to be known as the Baltimore Apartments Project
(hereafter referred to as "the Project ") in furtherance of City's housing strategy and approved by the
City by providing necessary loan financing therefor using federal HOME funds provided under this
Agreement. PCBDD shall also undertake and perform the tasks and functions described in the
Scope of Services attached hereto as Exhibit "A" and incorporated herein by reference, in full
compliance with all provisions of this Agreement. Before proceeding with such financing for the
Project, PCBDD shall furnish City with all information which City may reasonably request
concerning the Project, demonstrate eligibility of the Project for assistance under this Agreement,
and obtain the written approval of City's authorized representative as to the Project, which approval
will not be unreasonably withheld. Upon and after such approval, PCBDD shall enter into a written
loan agreement with the Owner /Developer of the Project setting forth the terms and conditions of
the loan assistance to be provided by PCBDD, which loan agreement shall comply with all
requirements of this Agreement and the regulations incorporated by reference.
(b) PCBDD warrants and represents that (i) it has the requisite authority and capacity to
perform all terms and conditions on PCBDD's part to be performed hereunder; (ii) that it is duly
organized as a non - profit corporation under state law and is in good standing with the Secretary of
State of Colorado; (iii) that it is aware of and understands its duty to perform all functions and
services in accordance with the regulatory requirements of 24 CFR Part 92 and those identified in
Exhibit "C" hereto; and (iv) that it is accepting federal financial assistance hereunder subject to
certain mandatory repayment provisions.
(c) Time is of the essence hereof. PCBDD agrees that it shall meet the following
deadlines with respect to the Project:
(i) PCBDD shall obtain satisfactory evidence that the Owner /Developer of the
Project has the financial ability to undertake and construct the Project, including proof that
it has secured loan commitments for a construction loan and the primary loan permanent
financing for the Project, and furnish such evidence to City, on or before May 1, 1998;
PCBDD shall thereafter provide to the Owner /Developer a loan commitment which sets forth
the terms and conditions of the loan.
(ii) PCBDD shall enter into a loan agreement with the Owner /Developer of the
Project consistent with the terms of this Agreement on or before June 1, 1998;
(iii) PCBDD shall require the Owner/Developer to commence construction of the
Project not later than July 1, 1998; and
(iv) PCBDD shall require the Owner /Developer to substantially complete
construction of the Project not later than September 1, 1999.
(d) PCBDD acknowledges that because the Project contemplated by this agreement
concerns the construction of affordable housing consisting of more than 12 units, PCBDD shall
require in the loan agreement that in all contracts for the construction of the Project (i) prevailing
wages shall be paid to all laborers and mechanics performing work on the Project pursuant to 24
CFR §92.354 and the Davis -Bacon Act [40 U.S.C. 276a -5] and (ii) the contract shall be subject to
applicable requirements of the Contract Work Hours and Safety Standards Act [40 U.S.C. 327 -332].
2. RESPONSIBILITIES OF THE CITY
The City shall designate a representative of the City who will be authorized to make all
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necessary decisions required of the City on behalf of the City in connection with the performance
of this Agreement, approval of the Project to be undertaken by PCBDD hereunder and the
disbursement of funds in connection with the program. In the absence of such a designation, the
City Manager shall be deemed as City's authorized representative.
3. FINANCIAL ASSISTANCE AND METHOD OF PAYMENT
(a) Upon execution of all documents required by City, the City will grant to PCBDD an
amount up to that specified in subparagraph (c) of this paragraph as the public investment in the
Project assisted under this Agreement. Disbursement of funds to PCBDD is subject to all of the
following requirements, which shall be conditions precedent to payment: (i) that the
Owner /Developer of the Project has expended funds after March 23, 1998 for eligible approved
expenditures with respect to the Project, (ii) that neither PCBDD nor the Owner /Developer is in
default of any material provision of this Agreement nor applicable law or regulation, (iii) that
PCBDD has timely submitted requests for loan disbursement detailing the eligible loan draw -down
items in a format approved by City, (iv) that PCBDD has certified with each payment or loan draw -
down request compliance with the requirements identified in Exhibit "C" and that all expenditures
for which draw -down is sought were made for and in furtherance of the Project and are an eligible
use of federal assistance under the Act, and (v) that City has timely received from HUD sufficient
federal assistance under the Act to pay the disbursement hereunder.
(b) Payment hereunder is also subject to and may only be disbursed in accordance with
HUD regulations including but not limited to those at 24 CFR Part 92, as presently promulgated and
as same may be revised from time to time in the future. All payments received by PCBDD
hereunder are subject to repayment by PCBDD as provided in 24 CFR Part 92. Funds provided
hereunder for Project may only be used for development hard costs and acquisition costs, as
provided in 24 CFR § §92.205(d) and 92.206(a) and (c).
(c) The aggregate of all payments made hereunder shall not exceed One Hundred
Seventy -Five Thousand Dollars (U.S. 125 000).
(d) Upon expiration of the term of this agreement or upon any prior termination, PCBDD
shall transfer to City any funds provided hereunder which are on hand at the time of expiration or
termination together with any accounts receivable attributable to the use of funds provided
hereunder.
4. TERM OF AGREEMENT
(a) Unless sooner terminated, the term of this Agreement, for purposes of undertaking
the loan and construction and completion of the project, shall be from the date of execution hereof
until July 1, 2000; provided however, that with the respect to the Project for which PCBDD has
received financial assistance under and during the term of this Agreement, PCBDD and the
Owner /Developer of the Project shall have continuing responsibility to comply with the
performance, certifications, repayment, affirmative marketing, housing affordability compliance and
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recordkeeping requirements of this Agreement, and 24 CFR Part 92 (including, without limitation
24 CFR Sections 92.252, 92.254, 92.301, 92.351 and 92.508) which shall survive expiration or
termination and remain in effect throughout the required full period of affordability, notwithstanding
termination or expiration of this Agreement. As used herein, "period of affordability" shall mean
20 years from the completion of the Project except that if the assistance provided hereunder is used
in connection with other financing insured by HUD under Chapter II of Title 24, Code of Federal
Regulations, the period of affordability shall be the full original term of said mortgage or 20 years,
whichever is longer.
(b) (i) The full amount of loan assistance provided to the Project pursuant to this
Agreement shall constitute an indebtedness of the Owner /Developer to PCBDD which shall be
evidenced by a promissory note (hereinafter referred to as the "Promissory Note" or "Note ") which
shall be due and payable with interest as provided therein and which shall be secured by the
following real property located in Pueblo County, Colorado (the "Property "):
Lot 5 EXCEPT the Northerly 55 feet and all of Lot 7, Block 2, Baltimore Plaza,
County of Pueblo, State of Colorado
AND
A parcel of land being a portion of Lots 1, 2 and 3, and all of Lot 6, Block 2,
Baltimore Plaza, County of Pueblo, State of Colorado, according to the recorded plat
thereof recorded in Book 1833 at Page 222, being more particularly described as
follows:
BEGINNING at the Southeast corner of said Lot 1;
thence North 78 deg. 10 min. 00 sec. West, along the South line of said Lots 1, 2, 3
and 6, a distance of 529.45 feet (529.51 - plat) to the Southwest corner of said Lot 6
said point also being on the East right -of -way line of Baltimore Avenue;
thence along the West line of said Lot 6 and said East right -of -way line the following
three (3) courses:
1) North 01 deg. 50 min. 42 sec. East, a distance of 7.50 feet;
2) North 00 deg. 00 min. 00 sec. West, a distance of 118.30 feet;
3) Northerly along the arc of a curve to the right whose radius is 1324.00 feet
and a central angle of 01 deg. 28 min. 56 sec., a distance of 34.25 feet to the
Northwest corner of said Lot 6;
thence South 78 deg. 17 min. 33 sec. East (South 78 deg. 10 min. 00 sec. East - plat),
a distance of 561.50 feet to a point on the East line of said Lot 1;
thence South 11 deg. 47 min. 44 sec. West (South 11 deg. 48 min. 14 sec. West -
plat) along the East line of said Lot 1, a distance of 158.02 feet to the POINT OF
BEGINNING
AKA Parcel C of Lot Line Rearrangement recorded March 6, 1990 in Book 2487 at
Page 184.
n
, as evidenced by a Deed of Trust to be executed contemporaneously with said Promissory Note.
The loan instruments shall require the Owner /Developer to pay to PCBDD or holder the
indebtedness as and to the extent same becomes due under the provisions of the Promissory Note
and this Agreement. The amount of the assistance shall continue as an indebtedness until paid in
full and thereafter for the full period of affordability.
(ii) In order to secure PCBDD's repayment obligations hereunder to City, City
may, at any time, require an assignment and transfer of said Note and Deed of Trust to City.
(c) During the full Term of this Agreement and for the period of affordability, (i) any
failure by the Owner /Developer or PCBDD to perform any obligation, covenant or provision of the
Note or this Agreement required to be performed by the Owner /Developer or PCBDD, or (ii) any
breach of any warranty made by PCBDD in this Agreement, or (iii) any other violation of any
material term of this Agreement or the Deed of Trust given to secure the Note, shall constitute a
default under this Agreement. Upon any such default, the City may demand that PCBDD repay to
City the full amount of assistance provided hereunder, plus interest at the rate of 12% per annum
from and after the date of such default. PCBDD further agrees that no release of any security for the
indebtedness or extension of time for payment of same, or any installment thereof, and no alteration,
amendment or waiver of any provision of the Note or the Deed of Trust securing same shall in any
manner, release, discharge, modify or affect the obligations of PCBDD under this Agreement.
5. TERMINATION OF AGREEMENT
(a) For Cause This Agreement may be terminated by City for cause, including any
nonperformance by PCBDD, upon ten (10) days written notice to PCBDD including a statement of
the reasons therefor, and after an opportunity for a hearing has been afforded. If a hearing is
requested, it shall be held before the City's Director of Housing and Community Development whose
decision as to both the grounds for termination and the appropriateness thereof shall be final and
binding upon both City and PCBDD. In accordance with 24 CFR 85.43, cause for termination shall
include any material failure by PCBDD to comply with any term of this Agreement.
(b) For Convenience This Agreement may be terminated for convenience in accordance
with the provisions of 24 CFR 85.44. This Agreement shall terminate immediately upon any non -
appropriation of funds, or upon any suspension or non - receipt of federal assistance provided to City
under the Act, regardless of cause.
(c) Post Termination Procedures In the event of termination, PCBDD shall continue to
be responsible for those matters which survive termination identified in paragraph 4 above, unless
City takes over the Project and, in connection therewith, prospectively releases PCBDD from one
or more specific responsibilities in writing. Additionally, at City's sole option, all property acquired
by PCBDD with grant funds, all grant funds, program income, and mortgage loans originated with
grant funds or by payments therefrom and payments received under such mortgage loans, held,
owned or retained by PCBDD shall immediately become the sole and separate property of the City
and PCBDD shall perform all acts and execute all instruments necessary to transfer and assign such
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property, funds, income, and mortgage loans to City. All finished or unfinished documents, data,
studies reports and work product prepared by PCBDD under this Agreement or with grant funds
shall, at the option of the City, become its property and PCBDD shall be entitled to received just and
equitable compensation only for satisfactory work completed and eligible costs for which
compensation has not previously been paid nor reimbursement made.
6. ASSIGNABILITY
This Agreement shall not be assigned or transferred by PCBDD without the prior written
consent of the City. Any assignment or attempted assignment made in violation of this provision
shall, at City's election, be deemed void and of no effect whatsoever.
7. CONFLICT OF INTEREST
HOME Regulation 24 CFR, Part 92.356 is incorporated herein by reference, and sets forth
applicable laws and regulations that apply to Conflict of Interest. PCBDD shall avoid all conflicts
prohibited by applicable regulations, including but not limited to those set forth in 24 CFR Part 92
as presently promulgated and as same may be revised from time to time in the future.
8. PCBDD RECORDKEEPING
PCBDD shall maintain, and shall require the Owner /Developer to maintain, records as to
the Project work and activities undertaken with assistance hereunder, services provided,
reimbursable expenses incurred in connection with the Project and complete accounting records.
Accounting records shall be kept on a generally recognized accounting basis and as requested by the
City's auditor. PCBDD agrees to comply with all applicable uniform administrative requirements
described or referenced in 24 CFR Part 92. The compliance provisions attached as Exhibit "B"
hereto are made a part of this Agreement, and PCBDD agrees to perform and comply with same, and
shall require the Owner /Developer to do likewise. The City, HUD, the Comptroller General of the
United States, the Inspector General of HUD, and any of their authorized representatives, shall have
the right to inspect and copy, during reasonable business hours, all books, documents, papers and
records of PCBDD and the Owner /Developer which relate to this Agreement for the purpose of
making an audit or examination. Upon completion of the work and end of the term of this
Agreement, the City may, at any time during the period of affordability or within 5 years thereafter,
require all of PCBDD's and the Owner /Developer's financial records relating to this Agreement to
be turned over to the City.
9. MONITORING AND EVALUATION
The City shall have the right to monitor and evaluate the progress and performance of
PCBDD to assure that the terms of this Agreement are being satisfactorily fulfilled in accordance
with HUD's, City's and other applicable monitoring and evaluation criteria and standards. The City
shall at least quarterly review PCBDD's performance using on -site visits, progress reports required
to be submitted by PCBDD, audit findings, disbursement transactions and contact with PCBDD as
H
necessary. PCBDD shall furnish to the City monthly or quarterly program and financial reports of
its activities in such form and manner as may be requested by the City. PCBDD shall fully
cooperate with City relating to such monitoring and evaluation.
10. PCBDD FILES AND INFORMATION REPORTS
PCBDD shall maintain files containing information which shall clearly document all
activities performed in conjunction with this Agreement, including, but not limited to, financial
transactions, conformance with assurances, activity reports, and program income. These records
shall be retained by PCBDD for a period of five years, except that with respect to the Project
undertaken with assistance provided hereunder, such records shall be maintained for the full required
period of affordability. Activity reports shall be submitted monthly or quarterly no later than the
ninth day of the month following the end of month or quarter for which the report is submitted.
11. INDEPENDENCE OF PCBDD
Nothing herein contained nor the relationship of PCBDD to the City, which relationship is
expressly declared to be that of an independent contractor, shall make or be construed to make
PCBDD or any of PCBDD's agents or employees, or the Owner/Developer, the agents or employees
of the City. PCBDD shall be solely and entirely responsible for its acts and the acts of its agents,
employees and subcontractors.
12. LIABILITY & INSURANCE
(a) As to the City, PCBDD agrees to assume the risk of all personal injury, including
death and bodily injury, and damage to and destruction of property, including loss of use therefrom,
caused by or sustained, in whole or in part, in conjunction with or arising out of the performance or
nonperformance of this Agreement by PCBDD or by the conditions created thereby. PCBDD further
agrees to indemnify and save harmless the City, its officers, agents and employees, from and against
any and all claims, liabilities, costs, expenses, penalties and attorney fees arising from such injuries
to persons or damages to property or based upon or arising out of the performance or
nonperformance of this Agreement by PCBDD or out of any violation by PCBDD of any statute,
ordinance, rule or regulation.
(b) PCBDD agrees that it shall procure and will maintain during the term of this
Agreement, such insurance as will protect it from claims under workers' compensation acts, claims
for damages because of personal injury including bodily injury, sickness or disease or death of any
of its employees or of any person other than its employees, and from claims or damages because of
injury to or destruction of property including loss of use resulting therefrom; and such insurance will
provide for coverage in such amounts as set forth in subparagraph (c).
(c) The minimum insurance coverage which PCBDD shall obtain and keep in force is
as follows:
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(i) Workers' Compensation Insurance complying with statutory requirements in
Colorado.
(ii) Comprehensive General and Automobile Liability Insurance with limits not
less than Six Hundred Thousand and No /100 Dollars ($600,000.00) per person and occurrence for
personal injury, including but not limited to death and bodily injury, and Six Hundred Thousand and
No /100 Dollars ($600,000.00) per occurrence for property damage.
(d) PCBDD further agrees that it shall require the Owner /Developer of the Project to
procure and maintain, at the Owner /Developer's expense, hazard and fire insurance upon the property
described in the Deed of Trust on an "all risk" form in such amounts as City's Department of
Housing and Community Development may require, but in any event, for not less than the amount
of all liens against the property and the amount of funds provided to PCBDD by City pursuant to this
Agreement. PCBDD shall furnish a certificate of insurance certifying such coverage to City's
Director of Finance prior to disbursement of any funds to PCBDD. Both said certificate of insurance
and the policy procured by the Owner /Developer shall name the City as an additional loss payee.
13. CERTIFICATIONS
PCBDD agrees to execute and abide by the certifications contained in Exhibit "C" hereto,
which are hereby expressly made a part of this Agreement.
14. PROGRAM INCOME, REVERSION OF ASSETS
(a) Unless otherwise authorized by City in writing in a separate instrument executed after
date of this Agreement, all program income shall be returned to City within 30 days of receipt by
PCBDD. In the event City authorizes PCBDD to retain any portion of program income, it shall only
be used to accomplish the work set forth in the Scope of Services, and the amount of grant funds
payable by City to PCBDD shall be adjusted as provided by 24 CFR 92.503 and the applicable
requirements of 24 CFR 85.
(b) Upon expiration of the term of this Agreement, or upon any prior termination,
PCBDD shall transfer to City any funds provided hereunder which are on hand at the time of
expiration or termination together with any accounts receivable attributable to the use of funds
provided hereunder.
(c) The Project, the Property, and any other real property acquired, constructed or
improved in whole or in part with funds provided pursuant to this Agreement shall be used as
affordable rental housing within the meaning of 24 CFR § 92.252 for the full period of affordability
as defined in paragraph 4 hereof. In the event the Project, the Property or such other property ceases
to be so used, PCBDD shall immediately pay to City the greater of (i) an amount equal to the current
market value of the Project and property less any portion of the value attributable to expenditures
of funds not provided under this Agreement for the construction of the Project or acquisition of, or
improvement to, the Property or, (ii) the remaining principal balance and accrued interest owing
under the Note. The use restriction and repayment obligation set forth in this subparagraph shall
In
survive termination or expiration of this Agreement and shall be fully enforceable and subject to
collection by City or HUD in accordance with applicable laws. PCBDD shall require the
Owner /Developer to comply with the requirements of this paragraph and to execute a Deed of Trust
which shall be and constitute a lien upon the Property and all other real property acquired or
improved with funds provided hereunder, and which shall secure the affordability requirements
hereunder.
(d) In the event City incurs any cost or expense in enforcing the requirements of this
Agreement, including but not limited to the requirements of this paragraph 14, or in bringing any
action to recover the amount of any repayment obligation, or, upon assignment of the Note and the
Deed of Trust to City, to foreclose or obtain sale under the Deed of Trust or mortgage instrument,
City shall be entitled to recover its costs and expenses, including reasonable attorneys fees.
(e) To further ensure that the funds provided hereunder do not constitute an investment
of more HOME funds than are necessary to provide affordable housing (as required by 24 CFR
§92.250(b)), PCBDD shall require the Owner /Developer to retain ownership of the Project for a
period of not less than 20 years from and after the completion of the Project. Consequently, in the
event the Owner /Developer should sell or transfer title to the Project, the Property or other real
property or improvements constructed or improved with funds provided pursuant to this Agreement,
within 20 years after substantial completion of the Project or said improvements, the Loan
Agreement, Note and Deed of Trust shall provide that the entire indebtedness under the Note shall
immediately become due and payable and shall be collected by PCBDD and repaid to City, together
with interest thereon at the rate of 12% per annum from the time of substantial completion until said
repayment is made.
(f) It is the intent of the parties that §38 -30 -165, C.R.S. and any similar statute hereafter
enacted, be preempted under federal law and regulations in order to maintain affordability of the
rental units within the Property. Consequently, the Loan Agreement between PCBDD and the
Owner /Developer and the Note and Deed of Trust executed by the Owner /Developer shall not be
assumable, and the indebtedness shall be due and payable upon sale, transfer or assignment, or any
attempted sale or transfer of the Property by the Owner /Developer, unless all of the following
circumstances are demonstrated to exist: (i) more than 20 years have elapsed since the substantial
completion of the Project, (ii) the Primary Lender also consents to assumption of the mortgage or
obligation to which the Deed of Trust is subordinate, (iii) the sale of the Property is to a subsequent
purchaser who agrees in writing to comply with the affordability requirements of this Agreement and
applicable requirements, including those set forth at 24 CFR, §92.252, (iv) the sale price and
payment of principal, interest, property taxes and insurance by the subsequent purchaser must permit
the rental units to remain affordable for the remaining period of affordability specified in this
Agreement, with affordability determined by applicable regulations and requirements, and (v) both
the City and the holder of the Note expressly consent to assumption of the Owner /Developer's
obligations under the loan agreement and the Note by the subsequent purchaser prior to sale or
transfer, which consent shall be granted only upon the Owner /Developer's showing circumstances
(1) through (iv) have or will be satisfied.
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15. SPECIAL REQUIREMENTS APPLICABLE TO IMPROVEMENTS TO
PROPERTY
(a) In addition to all procurement requirements otherwise applicable to the Project
pursuant to any other provision of this Agreement or pursuant to any requirement of law or
regulation incorporated in this Agreement by reference, PCBDD shall comply with all requirements
of this Paragraph 15.
(b) No improvements shall be undertaken to the Property or other real property with
funds (or reimbursement) provided hereunder unless and until: (i) plans and specifications therefor
have been prepared by either a registered Professional Engineer in good standing and duly licensed
to practice in the State of Colorado or an Architect duly licensed and authorized to conduct a practice
of architecture in the state of Colorado; (ii) such plans and specifications have been filed with the
City and approved by both the City's designated representative and the City's Director of Public
Works; and (iii) all construction contracts for improvements for which funds are provided from City
shall have been awarded only after an open, competitive bidding process which has been approved
by City's Director of Purchasing and which allows qualified contractors to reasonably participate in
the competitive bidding procedures.
(c) No disbursement of funds to PCBDD shall be made by City hereunder unless and
until all conditions precedent to payment specified elsewhere in this Agreement have been satisfied
and PCBDD files with City's Director of Housing and Community Development a written request
for payment signed by an officer of PCBDD that certifies (i) that the amounts included in the request
for payment have not been included in any prior request for payment, (ii) that the improvements
listed therein for which payment is sought have been completed in accordance with the approved
plans and specifications therefor, and (iii) that the improvements for which payment is sought have
been constructed so as to comply with City of Pueblo building codes and Section 8 Housing Quality
Standards.
(d) In every contract for construction of improvements for which payment or
reimbursement from City is to be provided under this Agreement, PCBDD shall include a contract
clause or clauses, approved by City's Director of Purchasing, requiring the Owner /Developer, the
contractor, and all of the contractor's subcontractors of all tiers, to comply with the requirements of
the Davis -Bacon Act and implementing regulations, and to pay all laborers and mechanics engaged
in work upon the improvements at the prevailing wage rates for such work as determined by the U.S.
Department of Labor.
(e) Every contract for construction of improvements, and all lower tier covered
transactions, shall include a requirement that the contractor, subcontractor or vendor certify that
neither it nor its principal is debarred, suspended, proposed for debarment, declared ineligible or
voluntarily excluded from participation in any federally funded project.
16. RECOGNITION OF HUD, CITY
In all printed materials, project descriptions and other activities undertaken with funds
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provided under this Agreement, PCBDD shall either provide recognition that funds have been
provided by the U.S. Department of Housing and Urban Development and the City of Pueblo or shall
cause the Owner /Developer to do so. Recognition shall be accomplished by prominent disclosure
of the role of HUD and the City in all such printed materials and project signage, if any.
17. ENTIRE AGREEMENT, AMENDMENTS
The provisions set forth in this Agreement, and all Exhibits and attachments to this
Agreement, constitute the entire and complete agreement of the parties hereto and supersede all prior
written and oral agreements, understandings or representations related thereto. No amendment or
modification of this Agreement, and no waiver of any provision of this Agreement, shall be binding
unless made in writing and executed by the duly authorized officers of both the PCBDD and City.
18. SIGNATURES
The persons signing this Agreement on behalf of PCBDD represent and warrant that such
persons and PCBDD have the requisite power and authority to enter into, execute and deliver this
Agreement and that this Agreement is a valid and legally binding obligation of PCBDD enforceable
against PCBDD in accordance with its terms.
IN WITNESS WHEREOF, PCBDD and the City have executed this Agreement as of the
date first above written and under the laws of the State of Colorado.
CITY OF PUEBLO,
ATTEST: A Municipal Corporation
By:
City Clerk6 President of gy Co cil
[SEAL]
ATTEST:
Title: --./
PUEBLO COUNTY BOARD FOR
DEVELOPMENTAL DISABILITIES, INC.
a Colorado Non - Profit Corporation
By: /� A eg� '
Name: c?s (r • "e - ro
Title: -�-�"
f �f.
Rev. 3/13/98 TJF
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EXHIBIT A
SCOPE OF SERVICES
1. PCBDD shall undertake the services and activities and provide a loan in compliance with
all requirements and conditions stated in the Affordable Housing Development Agreement to which this
Exhibit is attached.
2. The Baltimore Apartments Project is described in more detail in the attachments to this
Exhibit, and incorporated herein by reference.
PROJECT NARRATIVE
BALTIMORE APARTMENTS
Pro - ject Overview
The developer proposes the development of a 28 -unit housing project located in the Northwest
Pueblo area. The new housing units are 1050 square feet town homes with three bedrooms and
two bathrooms. Two units will be fully accessible for the disabled. This neighborhood in
Northwest Pueblo is experiencing a severe need for quality affordable housing for low /moderate
income persons. The surrounding area has experienced significant growth in retail chain stores
whose employees are income eligible for the proposed units. This development would meet an
urgent housing need as identified by the City of Pueblo.
Site Control
The project is proposed for construction on a parcel under contract by the developer. The four
acre site is properly zoned for the proposed development and all infrastructure is in place
including street paving, curb and gutter, sidewalks, water, sewer, gas, electric, cable and
telephone service.
Developer /General Contractor
The developer team, Pueblo Board for Disabilities and the National Development Council, will
jointly develop the project and have considerable experience in the development, construction
and management of affordable housing utilizing a variety of private and public financing
programs. Pueblo Board for Disabilities is recognized statewide in the services delivered to their
clients. NDC is recognized nationally as one of the leaders in the development of quality
affordable housing using LlHTC's and other public funds. NDC presently owns and manages in
excess of 500 units. NDC has also committed to providing equity to the project.
The developer has obtained the services of Hurtig, Gardner and Froelich (HGF) for architectural
services and they will assist in the selection of a qualified General Contractor. HGF recently
supervised construction of 52 units in Fremont County utilizing identical design and feel very
comfortable with the cost estimates provided.
Use of Funds
The project will be approximately $3,144,076.
Land Acquisition
$ 442,000
New Construction
1,694,000
Site Improvements & New Construction
322,200
Architectural & Engineering
82,350
Contingency
150,000
Developer Fee
305,000
Other Expenses
Construction Interest
40,620
Construction Insurance
5,406
Environmental Study
2,500
Tax Credit Application Fee
6,500
Cost Certification
2,500
Legal Fees
33,000
Appraisal
8,000
Property Tax
5,000
Title & Recording
10,000
Inspection Fees
10,000
Permanent Loan Fees
5,000
Operating Reserve
20,000
Total Other Expenses
148,526
Total Development Costs
$ 3,144,076
Debt Financing
The developer has obtained permanent and construction financing from Pueblo County Board
for Developmental Disabilities based on the following. Permanent financing was based on a
9.5% rate on a twenty year term in the amount of $578,923. Public sector financing will also be
provided thru the Colorado Division of Housing HOME program in the amount of $280,000, the
City and County of Pueblo in the amount of $350,000, and $98,000 in Federal Home Loan Bank
Affordable Housing funds. HOME funds will be at the applicable federal interest rate and
deferred until cash flow allows repayment. The developer will also lend $170,848 on a 100%
residual receipt of excess cash flow. The developer is also requesting a loan of $580,000 to be
used for construction financing.
Proforma
The project will provide the first mortgage lender with a debt coverage ratio of 1.15 to 1 based
on a Net Operating Income of $82,869 calculated below.
Gross Rent
$165,336
- Vacancy
(8,267)
Effective Gross Rent
157,069
- Operating Expenses
Administrative
10,200
Advertising
1,000
Legal
1,500
Water
6,500
Sewer
1,500
Gas
16,000
Grounds
4,000
Electric
10,000
Insurance
4,000
Taxes
5,000
Maintenance
6,300
Management
11,000
Trash
1,400
Operating Expense
4,200
Net Operating Income
74,469
- Debt Service 1st
64,756
-Debt Service Soft Mortgages
9,713*
Cash Flow
0
*Residual receipts loan of 100% of excess cash flow. This allows the developer access to cash
of up to approximately $9,000 per year to provide cash to the project for any emergency that
may arise on the project.
Rents were projected at $503 /month on rental units at 50% of median income and $452 /month
on rental units at 40% of median income. Rents include all utilities.
Expenses were estimated at $2,950 per year per unit.
Sources of Funds
Project Costs
$3,144,076
- Equity Investors
(1,666,076)
- Pueblo County Board for Developmental Disabilities
(578,923)
- City and County of Pueblo)
(350,000)
- Federal Home Loan Bank
( 98,000)
Colorado Division of Housing
(280,000)
Developer Fee Loan
(170,848)
Financing Gap
0
EXHIBIT B
ACCOUNTING SYSTEM COMPLIANCE PROVISIONS
As used in this Exhibit, the term "Sponsor" shall mean the entity entering into the Agreement with
the City of Pueblo, a Municipal Corporation to which this Exhibit is attached.
2. Sponsor is subject to and shall comply with the requirements of OMB Circular A -133 applicable
to a Nonprofit Institution as defined in OMB Circular A -133.
Sponsor agrees to maintain (and require the Developer to maintain) Project and accounting records
in accordance with generally accepted accounting principles which accurately reflect all costs
chargeable to the Project, utilize adequate internal controls, and maintain source documentation
for all costs incurred. The City shall have the right to review and approve Sponsor's account
system and internal controls prior to the release of any funds under the Agreement.
4. During the preconstruction and construction phases of the Project, the Sponsor shall not allow there
to be any material deviation from any approved Project budget unless any proposed major revision
thereto has been submitted to City and approved in writing. Change orders of less than $10,000
each or $50,000 in the aggregate shall not be deemed to be material deviations or major revisions
to the Project budget.
Nothing in the Agreement or the Exhibits thereto shall obligate City to any third parties nor to any
Developer, contractors, subcontractors, consultants, suppliers or workmen who have contracted
with Sponsor or provided any materials or services to Sponsor.
6. The City has the right to periodically perform interim audits and a final audit of the Project and
funds provided under the Agreement. Sponsor shall fully cooperate (and shall require the
Developer to cooperate) with City in undertaking any such audit and shall provide a suitable work
area for City's audit personnel to inspect and copy records.
EXHIBIT C
CERTIFICATIONS
Sponsor hereby certifies that the project will be conducted and administered in compliance with all
of the following requirements:
(1) Title VI of the Civil Rights Act of 1964 (Pub. L. 88 -352; 42 U.S.C. 2000d, et sea .) and
implementing regulations issued at 24 CFR Part 1;
(2) Title VIII of the Civil Rights Act of 1968 (Pub. L. 90 -284; 42 U.S.C. 3601, et seq.), as
amended; and that the grantee will administer all programs and activities related to housing and community
development in a manner to affirmatively further fair housing;
(3) Section 109 of the Housing and Community Development Act of 1974, as amended; and the
regulations issued pursuant thereto;
(4) Section 3 of the Housing and Urban Development Act of 1968, as amended;
(5) Executive Order 11246, as amended by Executive Orders 11375 and 12086, and
implementing regulations issued at 41 CFR Chapter 60;
(6) Executive Order 11063, as amended by Executive Orders 12259, and implementing
regulations at 24 CFR Part 107;
(7) Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93 -112), as amended, and
implementing regulations when published for effect;
(8) The Age Discrimination Act of 1975 (Pub. L. 94 -135), as amended, and implementing
regulations when published for effect;
(9) The relocation requirements of Title II and the acquisition requirements of Title III of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and the HUD
implementing regulations set forth in 24 CFR Part 42;
(10) Executive Order H988 relating to the evaluation of flood hazards and Executive Order
11288 relating to the prevention, control and abatement of water pollution;
(11) The flood insurance purchase requirements of Section 102(a) of the Flood Disaster
Protection Act of 1973 (Pub. L. 93 -234);
(12) The applicable regulations, policies, guidelines and requirements of OMB Circular Nos.
A -102, Revised, 24 CFR 85 and Subpart J of 24 CFR 570, A -87, A -110, A -122, A -128 and A -133 as they
relate to the acceptance and use of federal funds under this federally- assisted program;
(13) The Clean Air Act (42 U.S.C. 7401 et. seq.) as amended; particularly section 176 (c) and
(d) [42 U.S.C. 7506 (c) and (d)];
(14) HUD environmental criteria and standards [24 CFR Part 51, Environmental Criteria and
Standards];
(15) The Safe Drinking Water Act of 1974 (42 U.S.C. 201, 300 (f) et. seq., and 21 U.S.C. 349)
as amended; particularly section 1424 (e) (42 U.S.C. 300 (h)- 303(e));
(16) The Endangered Species Act of 1973 (16 U.S.C. 1531 et. seq.) as amended; including but
not limited to section 7 (16 U.S.C. 1536) thereof;
(17) The Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1272 et. seq.) as amended; particularly
section 7 (b) and (c) [16 U.S.C. 1278 (b) and (c)];
(18) The Reservoir Salvage Act of 1960 916 U.S.C. 469 et. seq.); particularly section 3 (16
U.S.C. 469a -1); as amended by the Archeological and Historical Preservation Act of 1974;
(19) Flood Disaster Protection Act of 1973 (42 U.S.C. 4001 et. seq.) as amended; particularly
sections 102(a) and 202(a) [42 U.S.C. 4012a(a) and 4106(a)];
(20) Executive order 11990, Protection of Wetlands, May 24, 1977 (42 FR 26961 et. seq.);
particularly sections 2 and 5;
(21) It will comply with the Lead -Based Paint Poisoning Prevention requirements of 25 CFR Part
35 issued pursuant to the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821 et. seq.);
(22) The National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.) as amended;
particularly section 106 (16 U.S.C. 470f); and
(23) Executive Order 11593, Protection and Enhancement of the Cultural Environment, May 13,
1971 (36 FR 8921 et. seq.); particularly section 2(c).
(24) Construction work financed in whole or in part with federal funds is subject to the prevailing
wage requirements of the Davis Bacon Act (29 CFR, Parts 3 and 5), the Copeland Act (29 CFR Part 3), and
the Contract Work Hours and Safety Standards Act (Public Law 91 -54, 83 Stat. 96). When a project meets
this applicability requirement, the labor standards provisions of the HUD 4010 and the Davis Bacon Wage
Decision issued for the project will be incorporated into this contract document and shall be incorporated
into all construction contracts and subcontracts of any tier thereunder.
(25) No CDBG funds may be expended for lobbying purposes and payments from other sources
for lobbying must be disclosed 24 CFR Part 87.
(26) Where asbestos is present in property undergoing rehabilitation, Federal requirements apply
regarding worker exposure, abatement procedures and disposal. CPD -90 -44 EPA /OSHA.
(27) When HOME Investment Partnership Act funds are used, the Sponsor will comply with
implementing regulations and requirements under 24 CFR 92.
S ignat