HomeMy WebLinkAbout11308RESOLUTION NO. 11308
A RESOLUTION APPROVING AN AGREEMENT BETWEEN POSADA, INC., A COLORADO
NON - PROFIT CORPORATION AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION,
AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Agreement dated June 9, 2008 between Posada, Inc., a Colorado Non - Profit
Corporation and the City of Pueblo, a Municipal Corporation, ( "the Agreement "), for the purchase
and rehabilitation of a sixteen -unit rental complex for the provision of affordable housing, a copy of
which is attached and incorporated herein, having been approved as to form by the City Attorney,
is hereby approved.
SECTION 2.
The President of the City Council is hereby authorized to execute Agreement in the name of
the City and the City Clerk is directed to affix the seal of the City thereto and attest same.
INTRODUCED June 9, 2008
BY Judy Weaver
Councilperson
AP PROVE
ATTEST D BY: �. � y
PPI`81f I T' i ILAHU
o e
Background Paper for Proposed
RESOLUTION
DATE: June 9, 2008 AGENDA ITEM #
DEPARTMENT: HOUSING AND CITIZEN SERVICES / ADA RIVERA CLARK
TITLE
A RESOLUTION APPROVING AN AGREEMENT BETWEEN POSADA, INC., A
COLORADO NON - PROFIT CORPORATION AND THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION, AND AUTHORIZING THE PRESIDENT OF THE
CITY COUNCIL TO EXECUTE SAME
ISSUE
A resolution approving an Affordable Housing Development Agreement between
Posada, Inc., a Colorado Non- Profit Corporation and the City of Pueblo, A
Municipal Corporation, wherein HOME funds would be provided to the Project.
The amount of assistance is $300,000. The funds would be provided to the
Project as a grant.
RECOMMENDATION
Approve
BACKGROUND
The City of Pueblo receives a yearly allocation of HOME funds. The provision of
housing for homeless individuals is an eligible activity under the program
regulations. Posada, Inc., has applied to the Department of Housing and Citizen
Services for $300,000 in HOME funds. Total project costs are $600,000.
The funds are to be used for the purchase and rehabilitation of a 16 -unit project.
The units will provide housing for homeless families under the Agencies
Transitional Housing Program, which will assist homeless families acquire stable
housing and become self- sufficient within a 2 -year period. Families must be
enrolled in a case management program.
FINANCIAL IMPACT
Funding is available in the 251 Fund. The funds were previously appropriated by
the City Council for housing activities.
Rev.5/21/2008
CITY OF PUEBLO
AFFORDABLE HOUSING DEVELOPMENT AGREEMENT
(HOME -CHDO)
This Agreement is made and entered into this 9th day of June, 2008 by and between the City
of Pueblo, a Municipal Corporation (hereinafter referred to as "City ") and Posada, Inc., a Colorado
nonprofit corporation (hereinafter referred to as "Posada ").
WITNESSETH, that:
WHEREAS, the City has entered into agreements with the U. S. Department of Housing and
Urban Development ( "HUD "), whereby federal financial assistance may be made available to City on
behalf of the Pueblo Consortium ( "Consortium "), established under Agreements between City and
Pueblo County, Colorado ( "County "), 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, Posada has submitted a project proposal for acquisition and rehabilitation of
rental housing to create affordable housing for homeless persons and families in transition in
fulfillment of a portion of the City's and Consortium's housing strategy and has been selected to
receive a grant for such project;
WHEREAS, Posada has represented to City and the Consortium that it is a duly qualified
nonprofit corporation with experience assisting the homeless which is eligible and willing to
undertake its proposed affordable housing project, as set forth in its application, as further amended
by this Agreement and the attachments hereto; and
WHEREAS, Posada has represented to City that it is a duly qualified community housing
development organization ( "CHDO ") within the meaning of 24 CFR §92.2, and is eligible and
willing to undertake certain approved elements of City's housing strategy; and;
WHEREAS, Posada has applied for and received commitments for funding the remaining
costs for its project; and
WHEREAS, the City and Consortium intend for this Agreement to, in part, fulfill the
Consortium's obligations for allocation of HOME funds to CHDO's pursuant to 24 CFR §92.300.
WHEREAS, the City is duly authorized to enter into this Agreement for and on behalf of the
Consortium and to undertake all actions required by this instrument;
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants, terms and
conditions set forth herein, the parties agree as follows:
1. POSADA SERVICES
(a) Posada shall, directly or indirectly, in accordance with all applicable federal, state and
local laws and regulations, undertake the acquisition and rehabilitation of a sixteen (16) unit
affordable housing project and transitional housing program for homeless /recently homeless persons
and families, with all of the housing units being assisted hereunder, in furtherance of the
Consortium's housing strategy and as approved by the City. The affordable housing project, as
described herein, may be referred to as the "Monterey Apartments Project" or the "Project'. Posada
may undertake same as the Project sponsor with ownership of.the Project to be held by either the
Posada or by a limited liability partnership or limited liability limited partnership in which Posada
acts as the sole general partner, or by a limited liability company in which Posada is the managing
member. Posada shall satisfactorily perform and complete, or cause to be performed and completed,
all services and items of work, and the furnishing of all labor and materials encompassed within or
reasonably necessary to construct all of the improvements for the Project, and accomplish 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 of the provisions of this Agreement. Before
proceeding with the Project, POSADA shall furnish City with all reasonable information which City
may request concerning the Project, execute all certifications, security instruments required by this
Agreement and applicable laws and regulations, demonstrate eligibility of the Project for assistance
under this Agreement and the Act, and obtain the written approval of City's authorized
representatives as to the Project, which approval will not be unreasonably withheld.
(b) Posada warrants and represents that (i) it has the requisite authority and capacity to
perform all terms and conditions on Posada's part to be performed hereunder; (ii) that it is duly
organized as a nonprofit corporation under the laws of the 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. Posada agrees that it shall meet the following
deadlines with respect to the Project:
(i) Posada shall obtain satisfactory evidence that it or the Owner of the Project
has the financial ability to undertake, acquire and rehabilitate the Project, including proof that
it has secured funds necessary, obtained loan commitments for any construction loan(s)
needed for financing for the Project, and furnish such evidence to City, on or before July 24,
%TITII:1
(ii) Posada or Owner shall obtain all required funds and loans on or before June
30, 2008;
(iii) Posada or the Project Owner shall acquire the real property and improvements
to be rehabilitated and commence rehabilitation of the Project not later than July 30, 2008;
(iv) Posada or the Project Owner shall substantially complete rehabilitation of the
Project not later than October 31, 2008; and
(v) Lease -up of the Project shall be accomplished by not later than November 25,
2008.
2. ROLE AND RESPONSIBILITIES OF THE CITY
Under this Agreement, the City is acting on behalf of the Consortium. Notwithstanding the
foregoing, all obligations of Posada under this Agreement shall run directly to City and be fully
enforceable by City and in the name of the City. The City shall designate a representative of the City
who will be authorized to make all 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
Posada hereunder and the disbursement of funds in connection therewith. 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 Posada an
amount up to that specified in paragraph (c) of this section as the public investment in the Project
assisted under this Agreement. Disbursement of funds to Posada is subject to all of the following
requirements, which shall be conditions precedent to payment: (i) that Posada or the Owner of the
Project has expended funds after July 14, 2008 for eligible approved expenditures with respect to the
Project, (ii) that neither Posada nor the Owner is in default of any material provision of this
Agreement nor applicable law or regulation, (iii) that Posada has timely submitted requests for
disbursement detailing the eligible draw -down items in a format approved by City, (iv) that Posada
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 Posada hereunder
are subject to repayment by Posada 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
—3—
92.205(d) and 92.206(a) and (c).
(c) The aggregate of all payments made hereunder shall not exceed Three Hundred
Thousand and No /100 Dollars (U.S. $300.000.00)
(d) Upon expiration of the term of this agreement or upon any prior termination, Posada
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; SECURITY
(a) Unless sooner terminated, the term of this Agreement, for purposes of making the
grant and undertaking the construction and completion of the Project, shall be from the date of
execution hereof until June 9, 2009; provided however, that with the respect to the Project for which
Posada has received financial assistance under and during the term of this Agreement, Posada and
the Owner of the Project shall have continuing responsibility to comply with the performance,
certifications, repayment, affirmative marketing, housing affordability compliance and 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 andremain
in effect throughout the required full period of affordability, notwithstanding any prior termination or
expiration of this Agreement. As used herein, "period of affordability" shall mean 15 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 15 years, whichever is
longer.
(b) (i) The full amount of grant assistance provided to Posada for the Project
pursuant to this Agreement shall constitute an indebtedness of the Owner to Posada 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 described real property situate in the County of Pueblo, State of Colorado (the "Property "):
W 6 FT OF LOT 4 ALL 5 + E 38 FT OF 6 BLK 42 COUNTY ADD
as evidenced by a Deed of Trust to be executed contemporaneously with said Promissory Note. The
loan instruments shall require the Owner to pay to Posada or holder the indebtedness as and to the
extent same becomes due under the provisions of the Promissory Note and this Agreement. Posada
shall include terms in said Promissory Note or Deed of Trust stating that the amount of the assistance
shall continue as an indebtedness until paid in full, and notwithstanding such payment in full, the
affordability restrictions described in this Agreement shall continue in effect and be enforceable for
the full period of affordability without regard to the term specified in the Note or Deed of Trust for
repayment.
—4—
(ii) In order to secure the affordability provisions and other requirements of this
Agreement, 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 or Posada to perform any obligation, covenant or provision of the Note or this
Agreement required to be performed by the Owner or Posada, or (ii) any breach of any warranty
made by Posada 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 Posada 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. Posada 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 Posada under this Agreement.
5. TERMINATION OF AGREEMENT
(a) For Cause This Agreement may be terminated by City for cause, including any
nonperformance by Posada, upon ten (10) days written notice to Posada including a statement of the
reasons therefore 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 Posada. In accordance with 24 CFR 85.43, cause for termination shall include any
material failure by POSADA 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, Posada shall continue to be
responsible for those matters which survive termination identified in paragraph 4 above, unless City
takes over the Proj ect and, in connection therewith, prospectively releases Posada from one or more
specific responsibilities in writing. Additionally, at City's sole option, all property acquired by
Posada 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 Posada shall immediately become the sole and separate property of the City and Posada
shall perform all acts and execute all instruments necessary to transfer and assign such property,
funds, income, and mortgage loans to City. All finished or unfinished documents, data, studies
reports and work product prepared by Posada or its agents and assigns under this Agreement or with
grant funds shall, at the option of the City, become its property and Posada 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.
—5
6. ASSIGNABILITY
This Agreement shall not be assigned or transferred by Posada without the prior written
consent of the City; provided however, that this limitation shall not be construed to prohibit Posada
from undertaking activities under this Agreement through a Project Owner meeting the requirements
of Section 1(a) of this Agreement. 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. Posada 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. POSADA RECORDKEEPING
Posada shall maintain, and shall require the Owner 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. Posada
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 Posada agrees to perform and comply with same, and shall require the Owner 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 Posada and the Owner which
relate to this Agreement for the purpose of making an auditor 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 Posada's and the Owner'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 Posada
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 Posada's performance using on -site visits, progress reports required to be
submitted by Posada, audit findings, disbursement transactions and contact with Posada as necessary.
Posada 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. Posada shall fully cooperate with City
relating to such monitoring and evaluation.
Elm
10. POSADA FILES AND INFORMATION REPORTS
Posada 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 Posada 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 POSADA
Nothing herein contained nor the relationship of Posada to the City, which relationship is
expressly declared to be that of an independent contractor, shall make or be construed to make
Posada or any of Posada's agents or employees, or the Owner, the agents or employees of the City.
Posada 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, Posada 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 Posada or by the conditions created thereby. Posada 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 Posada or out of any violation by Posada of any statute,
ordinance, rule or regulation.
(b) Posada 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 Posada shall obtain and keep in force is as
follows:
(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
—7—
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) Posada further agrees that it shall procure and maintain, or require the Owner of the
Project to procure and maintain, at Posada's or the Owner'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 Citizen Services 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 Posada by Citypursuant
to this Agreement. Posada shall furnish a certificate of insurance certifying such coverage to City's
Director of Finance prior to disbursement of any funds to Posada. Both said certificate of insurance
and the policy procured by the Owner shall name the City as an additional loss payee.
13. CERTIFICATIONS
Posada 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) (I) 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 Posada. In the event City authorizes Posada 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 Posada shall be adjusted as provided by 24 CFR 92.503 and the applicable
requirements of 24 CFR 85.
(II) Additionally, all developer fees received by Posada, including any such fees
paid from or out of rental income for the Project, regardless of when received, shall within 30 days of
receipt be deposited by Posada in a restricted account with a regulated financial institution. The
restricted account and such fees shall be used only for such housing programs or purposes as are
authorized and approved by City in writing.
(b) Upon expiration of the term of this Agreement, or upon any prior termination, Posada
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, rehabilitated,
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, Posada 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 (that is, the calculation of the portion of value
attributable to expenditures not provided by City under this agreement shall be the market value
multiplied by a fraction whose numerator is the total Project cost or costs of acquisition determined
as of the date of Project completion less the amount of assistance provided by City and whose
denominator is the total Project cost or cost of acquisition determined as of the date of Project
completion) 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 survive termination or
expiration of this Agreement and shall be fully enforceable and subj ect to collection by City or HUD
in accordance with applicable laws. Posada shall require the Owner 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)), Posada shall require the Owner to retain ownership of the Project for a period of not
less than 15 years from and after the completion of the Project. Consequently, in the event the
Owner 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 15 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 Posada 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. If Owner is
a limited partnership, nothing in this subparagraph (e), nor in subparagraph (f) of this paragraph 14,
is intended to prohibit a transfer of ownership from Owner to any general partner or limited partner
in Owner.
(t) It is the intent of the parties that 1 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 Posada and the Owner
and the Note and Deed of Trust executed by the Owner (collectively, the "Loan Documents ") 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, unless all of the following circumstances
are demonstrated to exist: (i) more than 15 years have elapsed since the substantial completion of the
Project, (ii) 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, (iii) 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 (iv) both the City and the holder of the Note expressly
consent to assumption of the Owner'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's
showing circumstances (i) through (iii) have or will be satisfied.
(g) Notwithstanding anything to the contrary in this Agreement or the Loan Documents,
the Owner may transfer its interest in the Project and the Property to Posada without prior consent
from the City.
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, Posada shall comply with all requirements of
this Paragraph 15.
(b) No rehabilitation work or improvements shall be undertaken to the Property or other
real property with funds (or reimbursement) provided hereunder unless and until: (i) plans and
specifications therefore 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, except that if the nature of
the work does not ordinarily require plans or specifications prepared by an engineer or architect, this
requirement may be waived in writing by City's Director of Housing and Citizen Services; (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;
provided, however, that the open competitive bidding process required herein need not follow the
City's procurement requirements for City improvements. Posada or Owner may submit its proposed
bidding process to the City for review and approval or disapproval prior to receipt of any funds
hereunder.
—10—
(c) No disbursement of funds to Posada shall be made by City hereunder unless and until
all conditions precedent to payment specified elsewhere in this Agreement have been satisfied and
Posada files with City's Director of Housing and Citizen Services a written request for payment
signed by an officer of Posada 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 therefore, 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 or rehabilitation work on the
Project, Posada shall include a contract clause or clauses, approved by City's Director of Purchasing,
requiring 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.
(I) Posada shall, at Posada's sole expense, provide for relocation assistance to persons
displaced as a result of the Project, if any, in accordance with the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970, as amended, and applicable implementing
regulations.
16. RECOGNITION OF HUD, CITY
In all printed materials, Project descriptions and other activities undertaken with funds
provided under this Agreement, Posada 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 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 with respect to Phase
II of the Project 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 Posada and City.
—11—
18. SIGNATURES
The persons signing this Agreement on behalf of Posada represent and warrant that such
persons and Posada 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 Posada enforceable
against Posada in accordance with its terms.
IN WITNESS WHEREOF, Posada 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 Corporaf n
By.
City Derk President of City Council
POSA , //IN, C.
By: 6A�, 'r ' ? tir u1L�
Name:
Chairman of the Board
By: NVllckrrEr �� G� l�Ce� — k�{cctr'rc
Name:
Title: C vK�[! M G 1✓
—12—
EXHIBIT A
SCOPE OF SERVICES
Posada, Inc., will undertake the purchase and rehabilitation of a sixteen -unit apartment complex to
provide transitional housing to the homeless. Participants will be required to participate in a case
management program.
Scope of Rehabilitation:
I- Required ADA accessibility to units and common areas.
2- Health and safety requirements.
3- Housing code requirements.
4- Upgrade of appliances as required.
5- Parking requirements.
6- Landscaping of common areas.
—13—
EXHIBIT B
ACCOUNTING SYSTEM COMPLIANCE PROVISIONS
As used in this Exhibit, the term "Developer" shall mean the entity entering into the
Agreement with the City of Pueblo, a Municipal Corporation to which this Exhibit is
attached.
2. Developer is subject to and shall comply with the requirements of OMB Circular A -133.
3. Developer agrees 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 Developer'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 Developer shall not
materially deviate 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 contractors, subcontractors, consultants, suppliers or workmen who have contracted
with Developer or provided any materials or services to Developer.
6. The City has the right to periodically perform interim audits and a final audit of the Project
and funds provided under the Agreement. Developer shall fully 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.
—14—
EXHIBIT C
CERTIFICATIONS
The entity entering into this Agreement with the City hereby certi fies 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 seq .)
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 sue.), 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 11988 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;
—15—
(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.
—16—
(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 Subrecipient will
comply with implementing regulations and requirements under 24 CFR 92.
Signatur {�7
17