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RESOLUTION NO. 13825
A RESOLUTION APPROVING AN AFFORDABLE HOUSING
DEVELOPMENT AGREEMENT BETWEEN UPLANDS
TOWNHOMES, LLLP, A COLORADO LIMITED LIABILITY
LIMITED PARTNERSHIP 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 City of Pueblo Affordable Housing Development Agreement dated November 27,
2017, between Uplands Townhomes, LLLP, a Colorado limited liability limited partnership and the
City of Pueblo, a Municipal corporation, (the “Agreement”), for the development of affordable
housing, a copy of which is attached and incorporated herein, l having been approved as to form
by the City Attorney, is hereby approved.
SECTION 2.
The funds are available in Fund 251, and those funds will be dedicated to this Agreement.
SECTION 3.
The officers and staff of the City are directed and authorized to perform any and all acts
consistent with the intent of this Resolution and the attached agreement to effectuate the
transactions described therein.
SECTION 4.
This Resolution shall become effective immediately upon final passage.
INTRODUCED November 27, 2017
BY: Ed Brown
City Clerk’s Office Item # M-3
Background Paper for Proposed
RESOLUTION
COUNCIL MEETING DATE:
November 27, 2017
TO: President Stephen G Nawrocki and Members of City Council
CC: Sam Azad, City Manager
VIA: Brenda Armijo, Acting City Clerk
FROM: Ada Clark, Director of Housing and Citizen Services
SUBJECT: A RESOLUTION APPROVING AN AFFORDABLE HOUSING DEVELOPMENT
AGREEMENT BETWEEN UPLANDS TOWNHOMES, LLLP, A COLORADO
LIMITED LIABILITY LIMITED PARTNERSHIP AND THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION, AND AUTHORIZING THE PRESIDENT OF THE
CITY COUNCIL TO EXECUTE SAME
SUMMARY:
This Resolution approves the City of Pueblo’s Affordable Housing Development Agreement with
Uplands Townhomes, LLLP, for the development of a seventy-two (72) unit affordable housing
rental project known as Uplands Townhomes.
PREVIOUS COUNCIL ACTION:
There has been no previous Council action on this issue.
BACKGROUND:
In November of 2016, the Department of Housing and Citizen Services issued a Notice of Funding
Availability (NOFA) under the HOME Program. The Housing Authority (d/b/a Uplands
Townhomes, LLLP) applied for HOME funds for the development of a 72-unit rental project to be
known as Uplands Townhomes. HOME funds will assist all 72 of the units. This Project is part of
Phase I of the replacement of the Sangre de Cristo public housing complex. The Project will
serve households at 30-60% of the area median income (AMI). Eighty-four percent of the
residents will have incomes at 30% of AMI. This is a Rental Assistance Demonstration (RAD)
HUD sponsored project, and as such, existing residents at Sangre de Cristo will have preference
in the unit rentals.
Project costs are approximately $18.2 million, and are being funded through multiple sources:
1. Pueblo Bank and Trust $12,080,000
2. Colorado Housing and Finance Authority $ 990,000
3. Pueblo County HOME and HOME Match $ 100,000
4. City of Pueblo HOME and HOME Match $ 1,050,000
5. Colorado Division of Housing Neighborhood Stabilization Program $ 720,000
6. Housing Authority of the City of Pueblo $ 3,693,043
7. Housing Authority of the City of Pueblo (Deferred Developer Fee) $ 413,447
The Richman Group Affordable Housing Corporation will provide $11,373,863 in capital
contributions to the Uplands Townhomes LLLP as an equity partner throughout the project. This
is the tax credit limited partner contribution.
FINANCIAL IMPLICATIONS:
The City HOME contribution is available in the 251 Fund, and is comprised of HOME grant funds,
program income, and City match contributions.
BOARD/COMMISSION RECOMMENDATION:
Not applicable.
STAKEHOLDER PROCESS:
None.
ALTERNATIVES:
N/A
RECOMMENDATION:
Approval of the Resolution.
Attachments:
City of Pueblo Affordable Housing Development Agreement
Deed of Trust
Promissory Note
CITY OF PUEBLO
AFFORDABLE HOUSING DEVELOPMENT AGREEMENT
This Agreement is made and entered into this 28th day of December, 2017, by and
between the City of Pueblo, a Municipal Corporation (hereinafter referred to as "City") and
Uplands Townhomes, LLLP, a Colorado limited liability limited partnership (hereinafter referred
to as "Developer" or "Owner").
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 de-obligation (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, Developer has submitted a project proposal for new construction of rental
housing to create affordable housing 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, Developer has represented to City and the Consortium that it is a duly
qualified public housing authority 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, based upon Developer's representations, the Consortium and the City
believe Developer is capable or can reasonably be expected to become capable of carrying out
said project, and City is willing to allocate federal funds as a loan to Developer for investment in
housing to be developed, sponsored or assisted by Developer which will comply with and fulfill
said approved elements of City's housing strategy;
WHEREAS, Developer has applied for and received from the Colorado Housing and
Financing Authority a preliminary reservation of Federal Low-Income Housing Tax Credits in
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the amount of$1,250,000.00 for allocation to Developer's project upon placement of the housing
in service; and
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. DEVELOPER SERVICES.
(a) Developer shall, directly or indirectly, in accordance with all applicable federal,
state and local laws and regulations, undertake the construction of a new seventy-two (72) unit
affordable housing project for low to moderate income households, with eight (8) of the housing
units being assisted hereunder, in furtherance of the Consortium's housing strategy and as
approved by the City. The eight (8) units of affordable housing shall be part of the Developer's
construction of seventy-two (72) total units. The affordable housing project, as described herein,
may be referred to as the "Upland Townhomes Project" or the "Project." Developer may
undertake same as the Project sponsor with ownership of the Project to be held by either the
Developer or by a limited liability partnership or limited liability limited partnership in which
Developer acts as the partner, or by a limited liability company in which Developer is the
managing member. Developer 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, Developer 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. Upon project completion, housing must meet or
exceed the minimum property standards required by 24 CFR 92.251. Owner must continue to
maintain the housing in compliance with 24 CFR 92.251 during the period of affordability.
(b) Developer warrants and represents that (i) it has the requisite authority and
capacity to perform all terms and conditions on Developer's part to be performed hereunder; (ii)
that it is duly organized as a public housing authority under the laws of the State of Colorado,
including but not limited to the Colorado Housing Authority Law, as amended, '29-4-201 et
C.R.S. (Vol. 9, 2000); (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. Developer agrees that it shall meet the following
deadlines with respect to the Project:
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(i) Developer shall obtain satisfactory evidence that it has the financial ability
to undertake and construct the Project, including proof that it has secured approval for tax
credits, obtained loan commitments for a construction loan and the primary loan
permanent financing for the Project, and furnish such evidence to City, on or before
November 20, 2017.
(ii) Developer shall obtain commitments for all required loans on or before
December 1, 2017;
(iii) Developer shall commence construction of the Project not later than
December 31, 2017;
(iv) Developer shall substantially complete construction of the Project not later
than April 4, 2019; and
(v) Lease-up of the Project shall be accomplished by not later than July 15,
2019.
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 Developer 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 Developer 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
Developer 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 Developer is subject to
all of the following requirements, which shall be conditions precedent to payment: (i) that
Developer has expended funds after September 11, 2017, for eligible approved expenditures with
respect to the Project, (ii) that Developer is not in default of any material provision of this
Agreement nor applicable law or regulation, (iii) that Developer has timely submitted requests
for disbursement detailing the eligible draw-down items in a format approved by City, (iv) that
Developer 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. Developer may not request disbursement of funds
under the Agreement until the funds are needed for payment of eligible costs, and the amount of
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each request must be limited to the amount needed.
(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 Developer hereunder are subject to repayment by Developer as provided in 24 CFR Part 92. If
the housing does not meet the affordability requirements or has not been rented to eligible
tenants within twelve (12) months after the date of project completion, such failures shall be a
default of this Agreement, any related loan agreement, and the Deed of Trust, and all HOME
funds must be returned to City. In case of such default, City may pursue remedies through this
Agreement, loan agreements, and/or the Deed of Trust. Funds provided hereunder for Project
may only be used for development costs, as provided in 24 CFR 92.205(d) and 92.206(a), (c) and
(d), where such costs can be separated, and funds are only applied to the units designated for the
affordable housing project. Funds committed hereunder meet the requirements of"commit to a
specific local project"under 24 CFR 92.504 and 24 CFR 92.2.
(c) The aggregate of all payments made hereunder shall not exceed One Million
Fifty-Thousand and No/100 Dollars (U.S. $1,050,000.00).
(d) Upon expiration of the term of this agreement or upon any prior termination,
Developer 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 September 30, 2037; provided however, that with the respect to the Project
for which Developer has received financial assistance under and during the term of this
Agreement, Developer shall have continuing responsibility to comply with the performance,
certifications, repayment, nondiscrimination, affirmative marketing, displacement, relocation,
acquisition, labor, conflict of interest, housing affordability compliance, recordkeeping and other
requirements of this Agreement, and 24 CFR Part 92 (including, without limitation 24 CFR
Sections 92.251, 92.252, 92.350, 92.351, 92.353, 92.354, 92.356, 92.359, and 92.508) which
shall survive expiration or termination and remain 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 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 grant assistance provided to Developer for the Project
pursuant to this Agreement shall constitute an indebtedness of the Developer to City 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
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the following described real property situate in the County of Pueblo, State of Colorado (the
"Property"):
LOT 1, UPLAND TOWNHOMES, FILING NO. 1, IN THE CITY OF PUEBLO,
COUNTY OF PUEBLO, STATE OF COLORADO ACCORDING TO THE
PLAT THEREOF RECORDED SEPTEMBER 28, 2017 UNDER RECEPTION
NO. 2083772.
as evidenced by a Deed of Trust to be executed contemporaneously with said Promissory Note
(together the "loan instruments"). The loan instruments shall require the Owner to pay to City or
holder the indebtedness as and to the extent same becomes due under the provisions of the
Promissory Note and this Agreement. Developer 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.
(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.
(c) During the full Term of this Agreement and for the period of affordability, (i) any
failure by the Owner to perform any obligation, covenant or provision of the Note or this
Agreement required to be performed by the Owner, or (ii) any breach of any warranty made by
Developer 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 Developer repay to City the full amount of
assistance provided hereunder, plus interest at the rate of four percent (4%) per annum from and
after the date of such default. Developer 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 Developer under this
Agreement.
5. TERMINATION OF AGREEMENT.
(a) For Cause. This Agreement may be terminated by City for cause, including any
nonperformance by Developer, upon ten (10) days written notice to Developer 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 Citizen Services
whose decision as to both the grounds for termination and the appropriateness thereof shall be
final and binding upon both City and Developer. In accordance with 2 CFR 200.338, cause for
termination shall include any material failure by Developer to comply with any term of this
Agreement.
(b) For Convenience. This Agreement may be terminated for convenience in
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accordance with the provisions of 2 CFR 200.339. 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, Developer 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
Developer from one or more specific responsibilities in writing. Additionally, at City's sole
option, all property acquired by Developer 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 Developer shall immediately become the
sole and separate property of the City, and Developer 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
Developer or its agents and assigns under this Agreement or with grant funds shall, at the option
of the City, become its property and Developer 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 Developer without the prior
written consent of the City; provided however, that this limitation shall not be construed to
prohibit Developer 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. Developer 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. DEVELOPER RECORDKEEPING.
Developer shall 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. Developer 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 Developer agrees to perform and comply with same. The City, HUD, the
Comptroller General of the United States, the Inspector General of HUD, and any of their
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authorized representatives, shall have the right to inspect and copy, during reasonable business
hours, all books, documents, papers and records of Developer and the Owner 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 five (5) years thereafter, require all of Developer'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
Developer 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 Developer's performance using on-site visits,
progress reports required to be submitted by Developer, audit findings, disbursement transactions
and contact with Developer as necessary. Developer 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. Developer shall fully cooperate with City relating to such monitoring and
evaluation.
10. DEVELOPER FILES AND INFORMATION REPORTS.
Developer 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 Developer for a period of five (5) 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 DEVELOPER.
Nothing herein contained nor the relationship of Developer to the City, which
relationship is expressly declared to be that of an independent contractor, shall make or be
construed to make Developer or any of Developer's agents or employees, or the Owner, the
agents or employees of the City. Developer 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, Developer 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 Developer or by the conditions created
thereby. Developer further agrees to indemnify and save harmless the City, its officers, agents
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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 Developer or out of any
violation by Developer of any statute, ordinance, rule or regulation.
(b) Developer 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 Developer 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 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) Developer further agrees that it shall procure and maintain, or require the Owner
of the Project to procure and maintain, at Developer'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 Developer
by City pursuant to this Agreement. Developer shall furnish a certificate of insurance certifying
such coverage to City's Director of Finance prior to disbursement of any funds to Developer.
Both said certificate of insurance and the policy procured by the Owner shall name the City as an
additional loss payee.
13. CERTIFICATIONS.
Developer agrees to execute and abide by the certifications contained in Exhibit "D"
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 thirty (30) days
of receipt by Developer. In the event City authorizes Developer 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 Developer shall be adjusted as provided by 24 CFR
92.503.
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(b) Upon expiration of the term of this Agreement, or upon any prior termination,
Developer 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, Developer 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 subject to collection by City or HUD in accordance with applicable laws.
Developer 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 foreclose or obtain sale under the Deed of Trust or mortgage instrument,
City shall be entitled to recover its costs and expenses, including reasonable attorney's 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)), Developer shall require the Owner 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 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, any 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 Developer and repaid to
City, together with interest thereon at the rate of two-percent (2%) per annum from the time of
substantial completion until said repayment is made; provided, however, such repayment shall
not be required to the extent permitted by federal law, if the City has granted prior written
approval of the sale or transfer, and the acquirer of the property becomes subject to this
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Agreement, all HOME affordability restrictions, and the obligations of the Owner under this
Agreement, the Note, and Deed of Trust have been assigned to and assumed by the Project
purchaser, then Owner shall no longer be indebted to City and the City shall look to the Project
purchaser for performance of any remaining obligations hereunder . 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.
(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, any loan agreement between
Developer 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 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's obligations under any 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 (iv) 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 Developer
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, Developer 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
10
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. Developer or Owner may submit its proposed
bidding process to the City for review and approval or disapproval prior to receipt of any funds
hereunder.
(c) No disbursement of funds to Developer shall be made by City hereunder unless
and until all conditions precedent to payment specified elsewhere in this Agreement have been
satisfied and Developer files with City's Director of Housing and Citizen Services a written
request for payment signed by an officer of Developer 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) [reserved]
(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.
(f) Developer shall, at Developer'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, and in accordance with 24 CFR 92.353.
16. RECOGNITION OF HUD, CITY.
In all printed materials, Project descriptions and other activities undertaken with funds
provided under this Agreement, Developer 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 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 Developer and City.
11
18. SIGNATURES.
The persons signing this Agreement on behalf of Developer represent and warrant that
such persons and Developer 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
Developer enforceable against Developer in accordance with its terms.
IN WITNESS WHEREOF, Developer 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 PU�BE
ATTEST: A Mu c al Co •! tr6
'-tt.f2il( IL .VIA.A.fBy: — —
Ami-;,i City Clerk President of City Council
[ SEAL ] Date: 4 .--(/-----79
UPLANDS TOWNHOMES, LLLP
A COLORADO LIMITED LIABILITY
LIMITED PARTNERSHIP
By: El Centro Pueblo Develo smwilD o •..)ation
Inc. it j-neral ..rtner �/
By: A A AP
" eodore R. Ortiviz '
Secretary/Treasurer
Date: ' i''L cS[2,,C. I.7
SCHEDULE OF EXHIBITS
Exhibit A Statement of Project/Scope of Work
Exhibit B Accounting System Compliance Provisions
Exhibit C Federal Debarment Certification
Exhibit D Certifications
Exhibit E Annual Rent Reporting Form for Monitoring
12
Exhibit F Section 3
Also, available on request
• Technical Guide for Determining Income and Allowances for the HOME Program
• HOME Monitoring Forms
13
EXHIBIT A
STATEMENT OF PROJECT/SCOPE OF WORK
STATEMENT OF PROJECT AND SCOPE OF WORK:
General Description
The Project will consist of the construction of 72 townhome rental units of subsidized rental
housing for low to moderate income households. The HOME funds will be used for the costs
associated with the construction of a total of 8 of the 2-bedroom 2 bath units. The units will be
fixed units for the purposes of accounting for the HOME per unit subsidies and affordability
requirements
The Developer agrees to perform the work described under the Project/Work Description in
compliance with all the provisions of this Agreement. The Developer warrants and represents that
it has the requisite authority and capacity to perform all terms and conditions on the Developer's
part to be performed hereunder.
HOME Units
Based on preliminary budget figures of$18,228,043, provided in the Application for HOME funds
and $1,050,000.00 of HOME funds, eight (8) of the units must be HOME units for the
affordability period. HOME units shall be fixed. The number of HOME units may change if the
overall project budget changes. The actual per unit HOME subsidy amount is $131,250.
Low Income Housing Tax Credit rent limits will prevail.
Initial rent for each HOME unit shall be established at $642 per month (inclusive of the utility
allowance; set according to the Section 8 RAD Housing Assistance Payments contract).
The procedures for rent increases are as follows: As required by the RAD Use Agreement and
RAD program.
Each home unit is 1164 square feet.
The Owner or Developer must provide the address and apartment number of each HOME unit to
City, no later than the time of initial occupancy.
Owner and Developer are prohibited from charging fees that are not customarily charged in rental
housing, except for extra services voluntarily provided by Owner or Developer, such as bus
transportation or meals.
Violence Against Women Act (VAWA)
VAWA requirements set forth in 24 CFR part 5, subpart L, apply to rental housing assisted with
HOME funds, and therefore apply to this Project. The Developer will comply with these
requirements by providing the notification requirements, bifurcation lease requirements, the
VAWA lease term/addendum, and will develop and submit to the City a copy of the Emergency
Transfer Plan.
Change Orders
14
Once final development plans have been approved by the City, it is the Developer's responsibility
to notify the City of any problems the contractor has in conforming to the accepted plans for any
element of the proposed Project prior to construction.
It is the responsibility of the Developer during construction activities to resolve construction
problems due to changed conditions or design errors encountered by the contractor during the
progress of any portion of the Project. If, in the opinion of the City, the modifications to the
accepted plans proposed by the Developer involve significant changes to the character of the work,
or to the future contiguous public or private improvements, the Developer shall be responsible for
resubmitting the revised plans to the City for acceptance prior to any further construction related to
that portion of the Project. Any improvements not constructed in accordance with the accepted
plans, or the accepted revised plans, shall be removed and reconstructed according to the approved
plans. The City shall be notified of any changes to the originally accepted plans and/or any
accepted revised plans.
The Developer shall be in compliance with any "General Notes" found on the accepted plans.
Davis Bacon
This Agreement is for less than 12 HOME-assisted units; therefore, there are no Davis Bacon
responsibilities.
Section 3 Economic Opportunity
Because this agreement is for an amount greater than $100,000.00, the City's Section 3 Plan must
be implemented by the Developer. The Section 3 Compliance Plan is made a part of this
Agreement as Exhibit F. The Compliance Plan must be a part of all bid documents for the Project
(contracts and subcontracts), and the Section 3 Clause must be a part of all bid processes and
contracts.
The Policies and Procedures for Section 3, which include the Compliance Plan, are available for
the Developer's review upon request.
Debarred Contractors
The Developer must ensure compliance with 24 CFR 570.609 regarding Debarred Contractors
through use of the Federal Debarment Certification, attached as Exhibit C.
Procurement
Developer will ensure that all procurement transactions are conducted in a manner providing full
and open competition consistent with the standards of Title 24 of the Code of Federal Regulations.
The bid process must allow for preference to a certified Section 3 business concern.
Environmental Assessment
15
[Reserved]
Native American Tribal Issues
In the event of an inadvertent discovery (cultural resources and/or human remains), a Stop Work
Order on construction activities must be issued and immediate notification provided to the
Authority so that notification can be provided to Native American Tribes with an interest in the
area. Construction shall cease until proper treatment of cultural resources and/or human remains is
achieved and such notification has been provided by the affected tribe to the Authority.
Tenant Selection, Income,and Lease
Developer shall be responsible for tenant selection and for verifying the income of all tenants at
the time of application, as well as during the required annual recertification and providing copies
of all pertinent documentation to the City upon request.
1) Income Verification at Occupancy: Developer shall determine tenant income eligibility at the
time of initial tenancy by using the Part Five of HUD's income determination schedule.
Source documentation must be obtained and verified in accordance with the Part Five income
definition. Under this income verification method, income from certain assets must also be
included. Guidance on calculating incomes under the Part Five definition shall be provided by
the Housing Authority upon request.
Total income is based on the income of the entire household (not just the primary tenant), as
further defined under Part Five income definitions. Further, income is based on anticipated
income and shall take into account any expected changes in income to the extent possible.
2) Income Re-certification: Developer shall re-certify annually the income of all current tenants
on the anniversary date of each lease. Re-certification at this time can consist of a written
statement and certification from the household with regard to current income and household
size. The certification must state that the information is complete and accurate and must
indicate that source documentation will be provided upon request.
3) Tenant Lease: The Developer must execute a written lease and Rules of Occupancy statement
with every Project tenant covered under this agreement. The lease between a tenant and the
Owner shall be for not less than six(6) months, unless by mutual written agreement. At no
time will a lease be for less than thirty (30) days. The written agreement between the
Developer and the tenant for a lease term of less than one(1) year must be retained in the
tenant file. Termination of tenancy may be for cause only.
4) Prohibited Lease Terms: The lease between a tenant and the Owner may not contain any of the
following provisions:
i. Agreement to be sued: Agreement by tenant to be sued, admit guilt, or consent to a
judgment in favor of the Owner in a lawsuit brought in connection with the lease.
ii. Treatment of property: Agreement by tenant that the owner may seize or sell personal
property of household members without notice to the tenant and a court decision on the
16
rights of the parties. (This provision does not apply to disposition of personal property
left by a tenant who has vacated a property.)
iii. Excusing Owner from responsibility: Agreement by the tenant not to hold the Owner or
the Owner's agents legally responsible for actions or failure to act, whether intentional or
negligent.
iv. Waiver of notice: Agreement by the tenant that the Owner may institute a lawsuit without
notice to the tenant.
v. Waiver of legal proceedings: by tenant that the Owner may evict the tenant or household
members without instituting a civil court proceeding in which the tenant has the
opportunity to present a defense or before a court decision on the rights of the parties
vi. Waiver of a jury trial: Agreement by the tenant to waive any right to a jury trial.
vii. Waiver of right to appeal court decision: Agreement by tenant to waive the tenant's right
to appeal or otherwise challenge in court a decision in connection with the lease.
viii. Tenant chargeable with cost of legal actions regardless of outcome: Agreement by the
tenant to pay attorney fees or other legal costs even if the tenant wins the court
proceeding by the Owner against the tenant. The tenant, however, may be obligated to
pay costs if the tenant loses.
Tenant Selection
Prior to any tenancies, the Owner shall adopt written tenant selection policies and criteria.
Monitoring Schedule
The City monitors for compliance with HOME requirements annually. The Owner will be
responsible for reporting beneficiary and rent data on each HOME unit on HOME Monitoring
Checklist 6-D (attached as Exhibit "E") during that time. Additionally, an on-site monitoring to
inspect individual units (a minimum of 20%); review rent and occupancy requirements; review
the lease in effect and tenant selection policies, and other items noted in this Agreement will be
conducted in the first year of this Agreement and, because the Project has a projected eight (8)
HOME units, every-third-year following that. (This is in accordance with HUD's requirements
for projects of this size).
EXHIBIT B
ACCOUNTING SYSTEM COMPLIANCE PROVISIONS
17
1. 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 2 CFR Part 200—
Uniform Administrative Requirements, Cost Principles, and Audit Requirements for
Federal Awards.
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 $75,000.00 each or $300,000.00 in the aggregate shall not be deemed to be
material deviations or major revisions to the Project budget.
5. 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.
18
EXHIBIT C
FEDERAL DEBARMENT CERTIFICATION
CERTIFICATION REGARDING DEBARMENT, SUSPENSION
INELIGIBILITY AND VOLUNTARY EXCLUSION - LOWER TIER COVERED
TRANSACTIONS
This certification is required by the regulations implementing Executive Order 12549,
Debarment and Suspension, 7 CFR Part 3017, Section 3017.510, Participants responsibilities.
The regulations were published as Part IV of the January 30, 1989, Federal Register (pages
4722-4733).
*** BEFORE COMPLETING CERTIFICATION, READ INSTRUCTIONS ON NEXT
PAGE ***
(1) The prospective lower tier participant certifies, by submission of this proposal, that
neither it nor its principals is presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) Where the prospective lower tier participant is unable to certify to any of the statements
in this certification, such prospective participant shall attach an explanation to this
proposal.
C AV ki C)°11
) o I t1•12 C-ktl u( I u e b l c,Cil t el)(1O 1 L ,A 0446k ( ta,7 l urn-el
rganization Name PR/Award Number or Project Name
Name(s) an. le(/Authorized Representative(s)
Signature(s) Date
Federal Debarment Certification—continued on following page
19
INSTRUCTIONS FOR CERTIFICATION
1. By signing and submitting this form, the prospective lower tier participant is providing
the certification set out on the reverse side in accordance with these instructions.
2. The certification in this clause is a material representation of fact upon which reliance
was placed when this transaction was entered into. If it is later determined that the
prospective lower tier participant knowingly rendered an erroneous certification, in
addition to other remedies available to the Federal Government, the department or agency
with which this transaction originated may pursue available remedies, including
suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the
person to whom this proposal is submitted if at any time the prospective lower tier
participant learns that its certification was erroneous when submitted or has become
erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier
covered transaction," "participant," "person," "primary covered transaction," "principal,"
"proposal," "voluntarily excluded," as used in this clause, have the meanings set out in
the Definitions and Coverage sections of rules implementing Executive Order 12549.
You may contact the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this form that, should the
proposed covered transaction be entered into, it shall not knowingly enter into any lower
tier covered transaction with a person who is debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction, unless authorized by
the department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by submitting this form that it will
include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion - Lower Tier Covered Transactions," without modification, in
all lower tier covered transactions and in all solicitations for lower tier covered
transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that it is not debarred, suspended,
ineligible, or voluntarily excluded from the covered transaction, unless it knows that the
certification is erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but is not required to,
check the Non-Procurement List.
8. Nothing contained in the foregoing shall be construed to require establishment of a
system of records in order to render in good faith the certification required by this clause.
The knowledge and information of a participant is not required to exceed that which is
normally possessed by a prudent person in the ordinary course of business dealings.
20
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant
in a covered transaction knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily excluded from participation
in this transaction, in addition to other remedies available to the Federal Government, the
department or agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
Form AD-1048 (1/92)
EXHIBIT D
21
CERTIFICATIONS
The entity entering into this Agreement with the City 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
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
seg.), 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 Subpart J of
24 CFR 570 and 2 CFR Part 200, 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)];
22
(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, in accordance with 24 CFR Parts 87 and 91.
(26) Where asbestos is present in property undergoing rehabilitation, Federal
requirements apply regarding worker exposure, abatement procedures and disposal. CPD-90-44
EPA/OSHA.
23
(27) When HOME Investment Partnership Act funds are used, the Subrecipient will
comply with implementing regulations and requirements under 24 CFR 92.
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Reception 2190496
08/28/2020
AMENDED AND RESTATED
DEED OF TRUST &RECORDS
D
THIS DOc/weNTwow
RECORDED
THIS AMENDED AND RESTATED DEED OF TRUST,hereinafter referred to as the"AR Deed",
made this 01 day of August, 2020 between Uplands Townhomes, LLLP, a Colorado limited liability limited
partnership, hereinafter referred to as "Grantor", and the Public Trustee of the County of Pueblo, in the State of
Colorado,hereinafter referred to as"Trustee",WITNESSETH:
WHEREAS,Grantor has entered into the City of Pueblo Affordable Housing Development Agreement dated
November 27,2017 with the City of Pueblo,a Municipal Corporation,hereinafter referred to as the"Agreement";and
WHEREAS, the Grantor has executed a Promissory Note, hereinafter referred to as "Note No. 1", dated
November 27,2017 for the principal sum of One Million Fifty Thousand and No/100 Dollars(U.S.$1,050,000.00),
payable to the order of the City of Pueblo,a Municipal Corporation,which amount is an indebtedness of Grantor payable
with interest in accordance with the terms of said Note No. 1;and
WHEREAS, the Grantor has executed a Deed of Trust, hereinafter referred to as "Deed No. 1", dated
September 27,2017 and recorded on December 04,2017 under Reception No.2090069,to secure the Agreement and
Note No. 1;and
WHEREAS,Grantor executed a second City of Pueblo Affordable Housing Development Agreement dated
December 28,2017 that was signed by a City of Pueblo representative without the proper authority and was void and
ineffective upon execution,hereinafter referred to as the"Void Agreement";and
WHEREAS, the Grantor has executed a Promissory Note, hereinafter referred to as "Note No. 2", dated
December 28,2017 for the principal sum of One Million Fifty Thousand and No/100 Dollars(U.S.$1,050,000.00),
payable to the order of the City of Pueblo,a Municipal Corporation,which amount is an indebtedness of Grantor payable
with interest in accordance with the terms of said Note No.2; and
WHEREAS,the Grantor has executed a Deed of Trust,hereinafter referred to as"Deed No.2",dated December
28,2017 and recorded on December 29,2017 under Reception No.2092578,to secure the Void Agreement and Note
No.2;and
WHEREAS,the Grantor has executed an Amended and Restated Promissory Note,hereinafter referred to as the
"AR Note", dated the,.7 day of August, 2020 for the principal sum of One Million Fifty Thousand and No/100
Dollars(U.S.$1,050,000.00),payable to the order of the City of Pueblo,a Municipal Corporation,which amount is an
indebtedness of Grantor payable with interest in accordance with the terms of said AR Note;and
WHEREAS,the Grantor is desirous of securing performance of all obligations of Grantor under said Agreement
and AR Note and payment of the indebtedness as specified therein.
AMENDMENT AND RESTATEMENT. The aforementioned documents shall be amended and restated as
follows.The Agreement shall remain in full force and effect and the AR Note shall evidence the indebtedness of Grantor
payable with interest in accordance with the terms of the Agreement and the AR Note.This AR Deed shall secure the
Agreement and the AR Note,and Deed No.2 shall be amended and restated in its entirety and superseded by this AR
Deed which shall retain the same recording priority as the superseded Deed No.2.The associated Note No.2 shall be
amended and restated in its entirety and superseded by the AR Note. Following execution of the AR Note and the
execution and recording of this AR Deed,Deed No. 1 and Note No.1 will be released and no longer encumber Grantor.
The Void Agreement shall remain void and ineffective.
NOW,THEREFORE,the Grantor,in consideration of the premises and for the purposes aforesaid,does hereby
grant,bargain,sell and convey unto Trustee in trust forever,for the use and benefit of the City of Pueblo,a Municipal
Corporation(the"Beneficiary"),the following described property,situated in the County of Pueblo,State of Colorado to
wit:
I •
;.;''; "
See Exhibit A
Also known as Uplands Townhomes
TO HAVE AND TO HOLD the same,together with all and singular the privileges and appurtenances thereunto
belonging: In Trust Nevertheless,That in case of default in the AR Note or any part thereof or payment as specified
therein, according to the tenor and effect of said AR Note,or in the payment of any prior encumbrances,principal or
interest, if any,or in case of a breach of any term of the Agreement, or in case default shall be made in or in case of
violation or breach of any of the terms,conditions,covenants or agreements herein contained,the Beneficiary hereunder
may declare a violation of any of the covenants herein contained and elect to advertise said property for sale and demand
such sale,then,upon filing notice of such election and demand for sale with the Trustee,who shall upon receipt of such
notice of election and demand for sale cause a copy of the same to be recorded in the recorder's office of the county in
which said real estate is situated,it shall and may be lawful for said Trustee to sell and dispose of the same(en masse or
in separate parcels,as the said Trustee may think best),and all the right,title and interest of Grantor,its successors or
assigns therein,at public auction at the south front door of the Court House,in the County of Pueblo,State of Colorado,
or on said premises,or any part thereof as may be specified in the notice of said sale,for the highest and best price the
same will bring in cash,four weeks'public notice having been previously given of the time and place of such sale,by
advertisement,weekly,in some newspaper of general circulation at that time published in said County of Pueblo,a copy
of which notice shall be mailed within ten days from the date of the first publication thereof to the Grantor at the address
herein given and to such person or persons appearing to have acquired a subsequent record interest in said real estate at
the address given in the recorded instrument;where only the county and state is given as the address then such notice
shall be mailed to the county seat,and to make and give to the purchaser or purchasers of such property at such sale,a
certificate or certificates in writing describing such property purchased,and the sum or sums paid therefor,and the time
when the purchaser or purchasers(or other person entitled thereto)shall be entitled to a deed or deeds therefor,unless the
same shall be redeemed as is provided by law;and said Trustee shall,upon demand by the person or persons holding the
same certificate of purchase,when said demand is made,or upon demand by the person entitled to a deed to and for the
property purchased,at the time such demand is made,the time for redemption having expired,make and execute to such
person or persons a deed or deeds to the said property purchased,which said deed or deeds shall be in the ordinary form
of a conveyance,and shall be signed,acknowledged and delivered by the said Trustee,as grantor,and shall convey and
quit-claim to such person or persons entitled to such deed,as grantee,the said property purchased as aforesaid and all the
right,title,interest,benefit and equity of redemption of the Grantor,its successors and assigns therein,and shall recite
the sum or sums for which the said property was sold and shall refer to the power of sale therein contained,and to the
sale or sales made by virtue thereof;and in case of an assignment of such certificate or certificates of purchase,or in case
of the redemption of such property,by a subsequent encumbrancer,such assignment or redemption shall also be referred
to in such deed or deeds;but the notice of sale need not be set out in such deed or deeds and the said Public Trustee shall,
out of the proceeds or avails of such sale,after first paying and retaining all fees,charges and costs of making said sale,
pay to the Beneficiary hereunder or the legal holder of the indebtedness,all moneys and amounts due,according to the
tenor and effect thereof,and all moneys advanced by such Beneficiary or legal holder of said indebtedness for insurance,
taxes and assessments,with interest thereon at four percent per annum,rendering the overplus, if any, unto the said
Grantor,his legal representatives or assigns;which sale or sales and said deed or deeds so made shall be a perpetual bar,
both in law and equity,against the Grantor,its successors and assigns,and all other persons claiming the said property,
or any part thereof, by, from, through or under said Grantor, or any of them. The Beneficiary or holders of the
indebtedness may purchase said property or any part thereof; and it shall not be obligatory upon the purchaser or
purchasers at such sale to see to the application of the purchase money. If a release deed be required,it is agreed that
Grantor,its successors,and assigns,will pay the expense thereof.
And the Grantor,for itself and for its successors and assigns covenants and agrees to and with the Trustee,that
at the time of the ensealing of and delivery of these presents he is well seized of the said land and tenements in fee
simple,and has good right,full power and lawful authority to grant,bargain,sell and convey the same in the manner and
form as aforesaid; hereby fully and absolutely waiving and releasing all rights and claims he may have in or to said
lands,tenements and property as a Homestead Exemption,or other exemption,now existing or which may hereafter be
enacted in relation thereto and that the same are free and clear of all liens and encumbrances whatsoever,and the above
bargained property shall be in the quiet and peaceable possession of the said Trustee,his successors and assigns,against
all and every person or persons lawfully claiming or to claim the whole or any part thereof,the said Grantor shall and
will Warrant and Forever Defend.
2
And that during the continuance of said AR Note or the indebtedness arising thereunder,the said Grantor will in
due season pay all taxes and assessments levied on said property;all amounts due on account of principal and interest on
prior encumbrances,if any;and will keep all buildings that may at any time be on said lands,insured against loss by fire
with extended coverage endorsements in a company authorized to issue such insurance in the State of Colorado,for such
sum or sums as such company or companies will insure for,not to exceed the amount of said indebtedness and any prior
encumbrances,except at the option of said Grantor,with loss,if any,payable to the Beneficiary hereunder,as its interest
may appear,and will deliver the policy or policies of insurance to the Beneficiary hereunder,as further security for the
indebtedness aforesaid. And in case of the failure of Grantor to thus insure and deliver the policies of insurance,or to
pay such taxes or assessments or amounts due or to become due on any prior encumbrances,if any,then the Beneficiary
may procure such insurance,or pay such taxes or assessments or amount due upon prior encumbrances,if any,and all
moneys thus paid,with interest thereon at twelve percent per annum,shall become so much additional indebtedness,
secured by this AR Deed,and shall be paid out of the proceeds of the sale of the property aforesaid,if not otherwise paid
by Grantor,and Beneficiary may for such failure declare a violation of this covenant and agreement.
If all or any part of the property or an interest therein is sold or transferred by Grantor without Beneficiary's
prior written consent,excluding the creation of a lien or encumbrance subordinate to this AR Deed,Beneficiary may,at
Beneficiary's option,declare all the sums secured by this AR Deed to be immediately due and payable.
AND THAT IN CASE OF ANY DEFAULT, Including but not limited to any breach of the affordability
requirements detailed in the Agreement, AR Note, or as otherwise may be required pursuant to 24 C.F.R. Part 92,
whereby the right of foreclosure occurs hereunder,the Trustee or the Beneficiary or holder of certificate of purchase,
shall at once become entitled to the possession,use and enjoyment of the property aforesaid,and to the rents,issues and
profits thereof, from the accruing of such right and during the pendency of foreclosure proceedings and through the
period of redemption,if any there be;and such possession shall at once be delivered to the Trustee or the Beneficiary or
the holder of the certificate of purchase on request,and on refusal,the delivery of such possession may be enforced by
the Trustee or the Beneficiary or holder of the certificate of purchase by any appropriate civil suit or proceeding,and the
Trustee or Beneficiary or the holder of the certificate of purchase,or any thereof,shall be entitled to a Receiver for said
property, and of the rents, issues and profits thereof, after such default, including the time covered by foreclosure
proceedings and the period of redemption,if any there be,and shall be entitled thereto as a matter of right without regard
to the solvency or insolvency of the Grantor or of the then owner of said property and without regard to the value thereof,
and such Receiver may be appointed by any court of competent jurisdiction upon ex parte application and without
notice--notice being hereby expressly waived--and all rents,issues and profits,income and revenue therefrom shall be
applied by such Receiver to the payment of the indebtedness hereby secured,according to the law and the orders and
directions of the Court.
AND,That in case of default in any of said payments of principal or interest,according to the tenor and effect
of AR Note aforesaid,or any part thereof,or a breach of any term of the Agreement,or of a breach or violation of any of
the covenants or agreements herein,by the Grantor, its successors or assigns,then and in that case the whole of the
indebtedness hereby secured,and the interest thereon to the time of the sale,may at once,at the option of the Beneficiary
or the legal holder of the indebtedness,become due and payable,and the said property be sold in the manner and with the
same effect as if said indebtedness had matured, and that if foreclosure be made by the Public Trustee,a reasonable
attorney's fee for services in the supervision of said foreclosure proceedings shall be allowed by the Public Trustee as
part of the cost of foreclosure,and if foreclosure be made through the courts a reasonable attorney's fee shall be taxed by
the court as a part of the costs of such foreclosure proceedings.
Nothing in this AR Deed is intended,nor shall it be construed,to grant any rights whatsoever to Grantor or
create any condition precedent to the exercise of any right or remedy by the Beneficiary;nor shall any noncompliance
with the requirements of this AR Deed constitute any defense against enforcement of the AR Note or this AR Deed,
including without limitation,Beneficiary's right to accelerate maturity of the entire indebtedness and demand sale of the
said property.
Beneficiary shall give the Grantor,through notice to the General Partner, a copy of any written notice,at El
Centro Pueblo Development Corporation, Inc., 201 South Victoria Ave., Pueblo, CO 81003, Attention:
Secretary/Treasurer. Beneficiary will allow the Grantor thirty(30)days from receipt of such notice to cure or cause the
cure of any monetary default under loan documents. Beneficiary shall allow the Grantor ninety(90)days from receipt of
3
such notice to cure any non-monetary default under the loan documents or such longer period as is reasonably necessary
for the Grantor to cure such non-monetary defaults provided that Grantor commences such cure,and continues with due
diligence,and that the cure is not required sooner in order to comply with federal regulations. Any cure of any Grantor
default under any of the loan documents made or tendered by the Grantor's limited partner shall be deemed to be a cure
by the Grantor and shall be accepted or rejected on the same basis as if made or tendered by the Grantor. Any notice
from the Beneficiary to the Grantor under this AR Deed shall be deemed to have been received by the Grantor three days
after being mailed by certified mail,return receipt requested,to the Grantor at 201 South Victoria Avenue,Pueblo,CO
81003,or at such other address as Grantor may designate in writing to Beneficiary.Copies of any and all notices given
by Beneficiary to the Grantor shall be sent,in the same manner as such notice is given to the Grantor,to the Grantor's
limited partner(the"Equity Investor")at the following address:USA Institutional Tax Credit Fund CXI L.P.,777 West
Putnam Avenue,Greenwich,CT 06830,Attention:Joanne D.Flanagan,Esq.Equity Investor may change its address for
receipt of copies of notices by giving notice in writing stating its new address to the Beneficiary.Commencing on the
tenth day after the giving of such notice,such newly designated address shall be effective for purposes of all such copies
of notices required to be sent by the Beneficiary to the Equity Investor.
The final payment of the AR Note and performance of the Agreement and other obligations secured by this AR
Deed are due on December 31,2054.
The person signing this AR Deed on behalf of the Grantor represents and warrants that he or she has the
requisite power and authority to enter into,execute,and deliver this AR Deed on behalf of the Grantor and that this AR
Deed is a valid and legally binding obligation of Grantor enforceable against it in accordance with its terms.
Should any provisions of this AR Deed be found to violate the statutes or court decisions of the State of
Colorado,or of the United States,such provision shall be deemed to be amended to comply with and conform to such
statutes and decisions.
RAD Rider. The RAD Rider attached to this AR Deed as Exhibit B is,by this reference,incorporated into and
deemed a part of this AR Deed. In the event of a conflict between any provisions of this AR Deed and any provisions of
the RAD Rider,the provisions of the RAD Rider shall control.
[REMAINDER OF PAGE LEFT BLANK]
4
IN WITNESS,WHEREOF,the Grantor has hereunto set its hand and seal the day and year first above written.
GRANTOR:
Uplands Townhomes,LLLP
A Colorado Limited Liability Limited Partnership
By:El Centro Pueblo Development Corporation,Inc.,
its general partner
By:Ciff:Lif?1_ '%11-4624°.--
Name: rank D.Pacheco
Title: Secretary/Treasurer
STATE OF COLORADO )
ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me in Pueblo County, Colorado, this ierkal day of
August, 2020 by Frank D. Pacheco as Secretary/Treasurer of El Centro Pueblo Development Corporation, Inc., on
behalf of Uplands Townhomes,LLLP,a Colorado Limited Liability Limited Partnership.
Witness my hand and official seal.
My commission expires:( ClvLLA M y y)0)
[SEAL]
hvtt(
4(--otary Public
DAPHNE LOPEZ
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20104001300
MY COMMISSION EXPIRES JANUARY 11,2022
5
EXHIBIT A
TO THE
AMENDED AND RESTATED
DEED OF TRUST
Legal Description
LOT 1,UPLAND TOWNHOMES,FILING NO. 1,IN THE CITY OF PUEBLO,COUNTY OF PUEBLO, STATE
OF COLORADO ACCORDING TO THE PLAT THEREOF RECORDED SEPTEMBER 28,2017 UNDER
RECEPTION NO.2083772.
6
•
EXHIBIT B
TO THE
AMENDED AND RESTATED
DEED OF TRUST
RAD RIDER
This RAD Rider to Loan Documents(the"Rider")modifies the Amended and Restated Deed of Trust(HOME)(the
"AR Deed")and any documents executed in connection therewith entered into between the City of Pueblo,a Municipal
Corporation("Lender")and Uplands Townhomes,LLLP,a Colorado limited liability limited partnership("Borrower"),
in connection with a loan by Lender to Borrower(the"Loan")to be used in financing a 72-unit affordable housing rental
development of which 72 of the units are RAD(defined below)units known as Uplands Townhomes(the"Project")on
the property described in Exhibit A attached hereto(the"Property").
WHEREAS,the Loan is evidenced and/or secured by the following documents and agreements
(collectively with all other agreements,instruments and documents now or hereafter executed in connection with the
Loan,all as may be amended,supplemented or replaced from time to time in accordance with the terms thereof,the
"Subordinate Documents"):
A. This AR Deed by and between Borrower and the Public Trustee of the County of Pueblo,Colorado for
the benefit of Lender.
B. City of Pueblo Affordable Housing Development Agreement by and between the City of Pueblo,a
Municipal Corporation, and Uplands Townhomes, LLLP, a Colorado Limited Liability Limited
Partnership.
WHEREAS,the U.S.Department of Housing and Urban Development("HUD")has authorized,as part of
the Project,the conversion of public housing to Section 8 assistance under the Rental Assistance Demonstration
("RAD")program,pursuant to Public Law 112-55,as amended;and
WHEREAS,the Project will be assisted by funding provided pursuant to the RAD program,thereby
subjecting the Project to requirements contained in that certain RAD Conversion Commitment(Form HUD-52624)
("RCC"),executed by HUD,Borrower and Lender with respect to conversion of public housing units to RAD units;
and
WHEREAS,as a condition of the RAD conversion,Borrower executed a Rental Assistance Demonstration
Use Agreement dated and recorded as of substantially even date herewith(the"RAD Use Agreement")for the
benefit of HUD;and
WHEREAS,HUD requires as a condition of the RAD conversion that Lender and Borrower agree to
subordinate the Subordinate Documents to the RAD Use Agreement.
NOW THEREFORE, let it be known to all interested parties, that for good and valuable consideration,the
receipt of which is hereby acknowledged,the undersigned do hereby agree:
1. So long as the RAD Use Agreement,and all extensions thereto,is in effect,the Subordinate Documents shall
unconditionally be and remain at all times subject in all respects to the Program Requirements(as defined in
Section 1 of that certain RCC)and subordinate to the RAD Use Agreement.
2. Subordination to the RAD Use Agreement shall extend to and continue in effect with respect to any future
amendment, extension, renewal, or any other modification of the RAD Use Agreement or the Subordinate
Documents.
3. In the event of a conflict between a Subordinate Document and the RAD Use Agreement, the RAD Use
Agreement shall control.
7
4. The following amendments to the Subordinate Documents require the prior written consent of HUD:(i)any
amendment to any HUD-required provisions in the Subordinate Documents,(ii)an increase in the interest rate
of the Loan,(iii)an increase of the total indebtedness of the Loan,(iv)an acceleration of the amortization or
payment schedule of the Loan,and(v)any changes that would preclude or impair a reasonable opportunity to
cure any defaults by Borrower under the Subordinate Documents.
5. Subordination to the RAD Use Agreement is intended to survive any bankruptcy and foreclosure filed by
Borrower.
6. This Rider may be signed in counterparts.
7. The invalidity,in whole or in part,of any of the provisions set forth in this Rider,shall not affect or invalidate
any remaining provisions.
8. This Rider and every covenant hereof shall be binding upon Lender and Borrower and their respective
successors and assigns. This Rider shall not be modified or amended except by a written instrument executed
by all parties hereto and approved in writing by HUD.
[Signatures on Following Pages]
8
•
IN WITNESS WHEREOF,the Borrower and Lender have duly executed and delivered this Rider
contemporaneous with the Loan Documents.
BORROWER:
Uplands Townhomes,LLLP
A Colorado Limited Liability Limited Partnership
By:El Centro Pueblo Development Corporation,Inc.,its general
partner
By /(1
g'°a-r466-4r-----
Name:Frank D.Pacheco
Title: Secretary/Treasurer
LENDER:
City of Pueblo,a Municipal Corporation
By: ,
Name:Nicholas A.Gra tsar
Title:Mayor
Reception 2092578
12/29/2017 11 :51:46 AM
DEED OF TRUST
THIS DEED OF TRUST,made this 28 th day of December,2017,between Uplands Townhomes,LLLP,
a Colorado limited liability limited partnership,hereinafter referred to as"Grantor",and the Public Trustee ofthe County
of Pueblo,in the State of Colorado,hereinafter referred to as"Trustee",WITNESSETH:
WHEREAS,Grantor has entered into the City of Pueblo Affordable Housing Development Agreement dated the
28th day of December,2017 with the City of Pueblo,a Municipal Corporation,hereinafter referred to as the"Agreement;"
and
WHEREAS,the Grantor has executed a Promissory Note,hereinafter referred to as the"Note",dated the 28 th
day of December, 2017 for the principal sum of One Million Fifty Thousand and No/100 Dollars (U.S.,
$1,050,000.00),payable to the order of the City of Pueblo,a Municipal Corporation,which amount is an indebtedness of
Grantor payable with interest in accordance with the terms of said Note; and,
WHEREAS,the Grantor is desirous of securing performance of all obligations of Grantor under said Agreement
and Note and payment of the indebtedness as specified therein.
NOW,THEREFORE,the Grantor,in consideration of the premises and for the purposes aforesaid,does hereby
grant,bargain, sell and convey unto Trustee in trust forever, for the use and benefit of the City of Pueblo,a Municipal
Corporation(the"Beneficiary"),the following described property,situated in the County of Pueblo,State of Colorado to
wit:
See Exhibit A
Also known as Uplands Townhomes
TO HAVE AND TO HOLD the same,together with all and singular the privileges and appurtenances thereunto
belonging:In Trust Nevertheless,That in case of default in the Note or any part thereof or payment as specified therein,
according to the tenor and effect of said Note,or in the payment of any prior encumbrances,principal or interest,if any,
or in case of a breach of any term of the Agreement,or in case default shall be made in or in case of violation or breach
of any of the terms, conditions, covenants or agreements herein contained, the Beneficiary hereunder may declare a
violation of any of the covenants herein contained and elect to advertise said property for sale and demand such sale,
then, upon filing notice of such election and demand for sale with the Trustee,who shall upon receipt of such notice of
election and demand for sale cause a copy of the same to be recorded in the recorder's office of the county in which said
real estate is situated,it shall and may be lawful for said Trustee to sell and dispose of the same(en masse or in separate
parcels, as the said Trustee may think best), and all the right, title and interest of Grantor, its successors or assigns
therein,at public auction at the south front door of the Court House, in the County of Pueblo,State of Colorado,or on
said premises,or any part thereof as may be specified in the notice of said sale, for the highest and best price the same
will bring in cash, four weeks' public notice having been previously given of the time and place of such sale, by
advertisement,weekly,in some newspaper of general circulation at that time published in said County of Pueblo,a copy
of which notice shall be mailed within ten days from the date of the first publication thereof to the Grantor at the address
herein given and to such person or persons appearing to have acquired a subsequent record interest in said real estate at
the address given in the recorded instrument;where only the county and state is given as the address then such notice
shall be mailed to the county seat,and to make and give to the purchaser or purchasers of such property at such sale,a
certificate or certificates in writing describing such property purchased,and the sum or sums paid therefor,and the time
when the purchaser or purchasers(or other person entitled thereto)shall be entitled to a deed or deeds therefor,unless the
same shall be redeemed as is provided by law;and said Trustee shall,upon demand by the person or persons holding the
same certificate of purchase,when said demand is made,or upon demand by the person entitled to a deed to and for the
property purchased,at the time such demand is made,the time for redemption having expired,make and execute to such
person or persons a deed or deeds to the said property purchased,which said deed or deeds shall be in the ordinary form
of a conveyance,and shall be signed,acknowledged and delivered by the said Trustee,as grantor,and shall convey and
quit-claim to such person or persons entitled to such deed,as grantee,the said property purchased as aforesaid and all the
I
•:f
2092578 12/29/2017 11 :51:46 AM
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Gilbert Ortiz Clerk!Recorder Pueblo County, Co
111114ilr1RreiR IiiiiiViliiii Mlik1/2' 1511 111Y�,�1�,� �� 111 II 1
right,title,interest,benefit and equity of redemption of the Grantor,its successors and assigns therein,and shall recite the
sum or sums for which the said property was sold and shall refer to the power of sale therein contained,and to the sale or
sales made by virtue thereof;and in case of an assignment of such certificate or certificates of purchase,or in case of the
redemption of such property,by a subsequent encumbrancer,such assignment or redemption shall also be referred to in
such deed or deeds;but the notice of sale need not be set out in such deed or deeds and the said Public Trustee shall,out
of the proceeds or avails of such sale,after first paying and retaining all fees,charges and costs of making said sale,pay
to the Beneficiary hereunder or the legal holder of the indebtedness,all moneys and amounts due,according to the tenor
and effect thereof,and all moneys advanced by such Beneficiary or legal holder of said indebtedness for insurance,taxes
and assessments,with interest thereon at four percent per annum,rendering the overplus,if any,unto the said Grantor,his
legal representatives or assigns;which sale or sales and said deed or deeds so made shall be a perpetual bar,both in law
and equity,against the Grantor,its successors and assigns,and all other persons claiming the said property,or any part
thereof,by,from,through or under said Grantor,or any of them. The Beneficiary or holders of the indebtedness may
purchase said property or any part thereof;and it shall not be obligatory upon the purchaser or purchasers at such sale to
see to the application of the purchase money. If a release deed be required,it is agreed that Grantor,its successors,and
assigns,will pay the expense thereof.
And the Grantor,for itself and for its successors and assigns covenants and agrees to and with the Trustee,that
at the time ofthe ensealing of and delivery of these presents he is well seized ofthe said land and tenements in fee simple,
and has good right,full power and lawful authority to grant,bargain,sell and convey the same in the manner and form as
aforesaid; hereby fully and absolutely waiving and releasing all rights and claims he may have in or to said lands,
tenements and property as a Homestead Exemption,or other exemption,now existing or which may hereafter be enacted
in relation thereto and that the same are free and clear of all liens and encumbrances whatsoever,and the above bargained
property shall be in the quiet and peaceable possession of the said Trustee, his successors and assigns,against all and
every person or persons lawfully claiming or to claim the whole or any part thereof, the said Grantor shall and will
Warrant and Forever Defend.
And that during the continuance of said Note or the indebtedness arising thereunder,the said Grantor will in due
season pay all taxes and assessments levied on said property; all amounts due on account of principal and interest on
prior encumbrances,if any;and will keep all buildings that may at any time be on said lands,insured against loss by fire
with extended coverage endorsements in a company authorized to issue such insurance in the State of Colorado,for such
sum or sums as such company or companies will insure for,not to exceed the amount of said indebtedness and any prior
encumbrances,except at the option of said Grantor,with loss,if any,payable to the Beneficiary hereunder,as its interest
may appear,and will deliver the policy or policies of insurance to the Beneficiary hereunder,as further security for the
indebtedness aforesaid. And in case of the failure of Grantor to thus insure and deliver the policies of insurance,or to
pay such taxes or assessments or amounts due or to become due on any prior encumbrances,if any,then the Beneficiary
may procure such insurance,or pay such taxes or assessments or amount due upon prior encumbrances, if any,and all
moneys thus paid,with interest thereon at four percent per annum,shall become so much additional indebtedness,secured
by this Deed of Trust,and shall be paid out of the proceeds of the sale of the property aforesaid, if not otherwise paid by
Grantor,and Beneficiary may for such failure declare a violation of this covenant and agreement.
If all or any part of the property or an interest therein is sold or transferred by Grantor without Beneficiary's
prior written consent,excluding the creation ofa lien or encumbrance subordinate to this Deed of Trust,Beneficiary may,
at Beneficiary's option,declare all the sums secured by this Deed of Trust to be immediately due and payable.
AND THAT IN CASE OF ANY DEFAULT,Whereby the right of foreclosure occurs hereunder,the Trustee or
the Beneficiary or holder of certificate of purchase,shall at once become entitled to the possession,use and enjoyment of
the property aforesaid, and to the rents, issues and profits thereof, from the accruing of such right and during the
pendency of foreclosure proceedings and through the period of redemption,if any there be;and such possession shall at
once be delivered to the Trustee or the Beneficiary or the holder of the certificate of purchase on request,and on refusal,
the delivery of such possession may be enforced by the Trustee or the Beneficiary or holder of the certificate of purchase
by any appropriate civil suit or proceeding,and the Trustee or Beneficiary or the holder of the certificate of purchase,or
any thereof,shall be entitled to a Receiver for said property,and of the rents,issues and profits thereof,after such default,
including the time covered by foreclosure proceedings and the period of redemption,if any there be,and shall be entitled
thereto as a matter of right without regard to the solvency or insolvency of the Grantor or of the then owner of said
property and without regard to the value thereof, and such Receiver may be appointed by any court of competent
2
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Gilbert Ortiz Clerk/Recorder Pueblo County. Co
1111111i1rdr hi,' k;w'100, 14, 11 III
jurisdiction upon ex parte application and without notice--notice being hereby expressly waived--and all rents,issues and
profits, income and revenue therefrom shall be applied by such Receiver to the payment of the indebtedness hereby
secured,according to the law and the orders and directions of the Court.
AND,That in case of default in any of said payments of principal or interest,according to the tenor and effect of
said Note aforesaid, or any part thereof,or a breach of any term of the Agreement,or of a breach or violation of any of
the covenants or agreements herein, by the Grantor, its successors or assigns, then and in that case the whole of the
indebtedness hereby secured,and the interest thereon to the time of the sale,may at once,at the option of the Beneficiary
or the legal holder of the indebtedness,become due and payable,and the said property be sold in the manner and with the
same effect as if said indebtedness had matured, and that if foreclosure be made by the Public Trustee, a reasonable
attorney's fee for services in the supervision of said foreclosure proceedings shall be allowed by the Public Trustee as part
of the cost of foreclosure,and if foreclosure be made through the courts a reasonable attorney's fee shall be taxed by the
court as a part of the costs of such foreclosure proceedings.
Nothing in this Deed of Trust is intended,nor shall it be construed,to grant any rights whatsoever to Grantor or
create any condition precedent to the exercise of any right or remedy by the Beneficiary;nor shall any noncompliance
with the requirements of this Deed of Trust constitute any defense against enforcement of the Note or this Deed of Trust,
including without limitation,Beneficiary's right to accelerate maturity of the entire indebtedness and demand sale of the
said property.
Lender shall give the Grantor,through notice to the General Partner,a copy of any written notice,at El Centro
Pueblo Development Corporation, Inc., 201 South Victoria Ave, Pueblo, CO 81003,Attention: Secretary/Treasurer.
Lender will allow the Grantor thirty (30) days' notice after receipt of such notice to cure or cause the cure of any
monetary default under loan documents. Lender shall allow the Grantor ninety(90)days after giving Grantor notice to
cure any non-monetary default under the loan documents or such longer period as is reasonably necessary for the Grantor
to cure such non-monetary defaults provided that Grantor commences such cure,and continues with due diligence.Any
cure of any Grantor default under any of the loan documents made or tendered by the Grantor's limited partner shall be
deemed to be a cure by the Grantor and shall be accepted or rejected on the same basis as if made or tendered by the
Grantor.
Copies of any and all notices required to be given by the Grantor pursuant to this Deed of Trust shall also be sent,in the
same manner as such notice is given to the Grantor, to the Grantor's limited partner (the "Equity Investor") at the
following address: U.S.A. Institutional Tax Credit Fund CXI L.P.,777 West Putnam Avenue,Greenwich,Connecticut
06830,Attention: Joanne D.Flanagan,Esq. The Equity Investor may change its address for receipt of copies of notices
by giving notice in writing stating its new address to the Beneficiary. Commencing on the tenth (10th)day after the
giving of such notice,such newly designated address shall be effective for purposes of all such copies of notices required
to be sent by the Beneficiary to the Equity Investor.
Should any provisions of this Deed of Trust be found to violate the statutes or court decisions of the State of
Colorado,or of the United States, such provision shall be deemed to be amended to comply with and conform to such
statutes and decisions.
RAD Rider. The RAD Rider attached to this Deed of Trust as Exhibit B is,by this reference,incorporated into
and deemed a part of this Deed of Trust. In the event of a conflict between any provisions of this Deed of Trust and any
provisions of the RAD Rider,the provisions of the RAD Rider shall control.
3
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Gilbert Ortiz Clerk/Recorder. Pueblo County. Co
1111 KM !L'iI WAD: 11111
IN WITNESS, WHEREOF, the Grantor has hereunto set its hand and seal the day and year first above
written.
GRANTOR:
Uplands Townhomes,LLLP
A Colorado Limited Liability Limited Partnership
By: El Cent : 'ueblo Developmen I• li' ation, Inc.,
its gener�� ner .40f
By:
Na •. Theodore R.Ortiviz
Ti e: Secretary/Treasurer
STATE OF COLORADO )
ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me in Pueblo County, Colorado, this I 1 day of
December, 2017 by Theodore R. Ortiviz, as Secretary/Treasurer of El Centro Pueblo Development Corporation,
Inc. as general partner of Uplands Townhomes, LLLP, a Colorado limited liability limited partnership, on behalf of
the partnership.
Witness my hand and official seal.
My commission expires: 03 p$t Z-0 •
[SEAL] , 1,
YU Notary Public
CHERYL L.WILKERSON
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID#19964004153
MY COMMISSION EXPIRES 03.08-2020
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Gilbert Ortiz Clerk/Recorder Pueblo County. Co
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Exhibit A
To
Deed of Trust
Legal Description
LOT 1, UPLAND TOWNHOMES, FILING NO. I, IN THE CITY OF PUEBLO, COUNTY OF
PUEBLO, STATE OF COLORADO ACCORDING TO THE PLAT THEREOF RECORDED
SEPTEMBER 28, 2017 UNDER RECEPTION NO. 2083772.
5
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Gilbert Ortiz Clerk/Recorder. Pueblo County, Co
1111 IN 11,1.J1ii'iIA 11111
EXHIBIT B
TO
DEED OF TRUST
RAD RIDER
This RAD Rider to Loan Documents(the"Rider")modifies the Deed of Trust(HOME)(the"Deed of Trust")and any
documents executed in connection therewith entered into between the City of Pueblo, a municipal corporation
("Lender") and Uplands Townhomes, LLLP, a Colorado limited liability limited partnership ("Borrower"), in
connection with a loan by Lender to Borrower(the"Loan")to be used in financing a 72-unit affordable housing rental
development of which 72 of the units are RAD(defined below)units known as Uplands Townhomes(the"Project")on
the property described in Exhibit A attached hereto (the"Property").
WHEREAS,the Loan is evidenced and/or secured by the following documents and agreements(collectively
with all other agreements, instruments and documents now or hereafter executed in connection with the Loan,all as
may be amended,supplemented or replaced from time to time in accordance with the terms thereof,the
"Subordinate Documents"):
A. This Deed of Trust by and between Borrower and the Public Trustee of the County of Pueblo,
Colorado for the benefit of Lender.
B. The City of Pueblo Affordable Housing Development Agreement dated 28"day of December,2017
with the Lender.
WHEREAS,the U.S. Department of Housing and Urban Development("HUD")has authorized,as part of
the Project,the conversion of public housing to Section 8 assistance under the Rental Assistance Demonstration
("RAD")program,pursuant to Public Law 112-55,as amended;and
WHEREAS,the Project will be assisted by funding provided pursuant to the RAD program,thereby
subjecting the Project to requirements contained in that certain RAD Conversion Commitment(Form HUD-52624)
("RCC"),executed by HUD,Borrower and Lender with respect to conversion of public housing units to RAD units;
and
WHEREAS,as a condition of the RAD conversion, Borrower executed a Rental Assistance Demonstration
Use Agreement dated and recorded as of substantially even date herewith(the"RAD Use Agreement")for the
benefit of HUD;and
WHEREAS,HUD requires as a condition of the RAD conversion that Lender and Borrower agree to
subordinate the Subordinate Documents to the RAD Use Agreement.
NOW THEREFORE, let it be known to all interested parties,that for good and valuable consideration,the
receipt of which is hereby acknowledged,the undersigned do hereby agree:
1. So long as the RAD Use Agreement,and all extensions thereto,is in effect,the Subordinate Documents shall
unconditionally be and remain at all times subject in all respects to the Program Requirements(as defined in
Section 1 of that certain RCC)and subordinate to the RAD Use Agreement.
2. Subordination to the RAD Use Agreement shall extend to and continue in effect with respect to any future
amendment, extension, renewal, or any other modification of the RAD Use Agreement or the Subordinate
Documents.
3. In the event of a conflict between a Subordinate Document and the RAD Use Agreement, the RAD Use
Agreement shall control.
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Gilbert Ortiz Clerk/Recorder. Puebla CountyCo
1111 1�JIiw���Gtt�1Gi+I�IIMI�'��EUI14��.�rll� L�u�Y�lll III ISI
4. The following amendments to the Subordinate Documents require the prior written consent of HUD:(i)any
amendment to any HUD-required provisions in the Subordinate Documents,(ii)an increase in the interest rate
of the Loan,(iii)an increase of the total indebtedness of the Loan,(iv)an acceleration of the amortization or
payment schedule of the Loan,and(v)any changes that would preclude or impair a reasonable opportunity to
cure any defaults by Borrower under the Subordinate Documents.
5. Subordination to the RAD Use Agreement is intended to survive any bankruptcy and foreclosure filed by
Borrower.
6. This Rider may be signed in counterparts.
7. The invalidity, in whole or in part,of any of the provisions set forth in this Rider,shall not affect or invalidate
any remaining provisions.
8. This Rider and every covenant hereof shall he binding upon Lender and Borrower and their respective
successors and assigns. This Rider shall not be modified or amended except by a written instrument executed
by all parties hereto and approved in writing by HUD.
[Signatures on Following Pages)
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Gilbert Ortiz Clerk/Recorder, Pueblo County. Co
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IN WITNESS WHEREOF,the Borrower and Lender have duly executed and delivered this Rider
contemporaneous with the Loan Documents.
BORROWER:
UPLANDS TOWNHOMES,LLLP,a Colorado limited
liability limited partnership
By: El Centro Pueblo Development Corporation, •c.,a
Colorado no ; ofit corporation, its g ne a .., ner
By: ' /
eodore R.Ortiviz, Secretary/T o.urer
LENDER:
CITY OF PUEBLO,a municipal corporation
/°.
By:
President of City Council
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Gilbert Ortiz Clerk/Recorder Pueblo County. Co
fill M����RW�h4�lrl���,l��ti:10.1'I'i��KM'URA Ili I(I
EXHIBIT A
LEGAL DESCRIPTION
LOT 1, UPLAND TOWNHOMES, FILING NO. 1, IN THE CITY OF PUEBLO, COUNTY OF
PUEBLO, STATE OF COLORADO ACCORDING TO THE PLAT THEREOF RECORDED
SEPTEMBER 28, 2017 UNDER RECEPTION NO. 2083772.
frI
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Gilbert Ortiz Clerk/Recorder, Pueblo County. Co
1III !,P Rik Vi MO, 1I 111
SUBORDINATION AGREEMENT
(City of Pueblo Deed of Trust)
This Agreement is made and effective the 28th day of December, 2017, by and between
Pueblo Bank& Trust Company ("Lender"), the City of Pueblo, Colorado, a Municipal
Corporation ("The City") and Uplands Townhomes, LLLP, a Colorado limited liability limited
partnership("Borrower"). Lender, The City and Borrower sometimes collectively are called the
"Parties"and individually may be called a"Party."
RECITAI..S
A. Borrower owns or is about to acquire the title to certain real property located in the
City of Pueblo, Pueblo County, Colorado (hereafter"Property") as more particularly described in
Exhibit A attached hereto and incorporated herein by reference.
B. To assist Borrower in obtaining a portion of the financing necessary to construct a low
income housing tax credit project in Pueblo, Colorado commonly known as the "Uplands
Townhomes Project" on the Property (the "Project") The City has agreed to loan to Borrower the
sum of One Million Fifty Thousand and No/l 00 Dollars ($1,050,000.00 U.S.) pursuant to the
terms and provisions contained in the promissory note from Borrower to The City dated effective
December 28, 2017 (the "Note") to be secured by a deed of trust ("The City's Deed of Trust")
also dated effective December 28,2017, in which Borrower, as Grantor, shall grant a lien in and
against the title to Property to the Pueblo County Public Trustee (the"Public Trustee") for the
benefit of The City. The City intends to record or cause to be recorded The City's Deed of Trust
in the real property records of the Pueblo County Clerk & Recorder(the"Clerk & Recorder").
C. Lender has made a commitment to Borrower, on certain terms and conditions, to fund
a construction loan (the"Construction Loan") in the amount of$12,365,000.00, the proceeds of
which shall be utilized in the course of the construction of the Project. The Construction Loan
shall be evidenced by a promissory note (the "Construction Note") dated effective December 28,
2017,and Borrower shall secure the Borrower's payment of the Construction Note, in part, by
granting a deed of trust (the"Lender's Deed of Trust") against the title to the Property to the
Public Trustee for the benefit of Lender in the amount of$12,365,000.00, and by executing for
the benefit of Lender an Assignment of Rents ("Lender's Assignment of Rents") pertaining to the
Property. One of the conditions on which Lender has agreed to loan funds to Borrower pursuant
to the terms and conditions contained in the Construction Note that Lender's Deed of Trust,
when recorded, shall be a first lien on, in and against the title to the Property subject only to
certain title items described in the Lender's Deed of Trust and other items of public record as
agreed by the Parties to this Agreement. Lender shall not loan funds to Borrower without The
City's prior and effective, unconditional subordination of the lien of The City's Deed of Trust to
the lien of the Lender's Deed of'Trust and to the lien held by Lender described in Lender's
Assignment of Rents.
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Gilbert Ortiz Clerk/Recorder, Pueblo County Co II
1111
D. The Borrower and The City recognize and acknowledge it is in their collective best
interests for The City to subordinate the lien of The City's Deed of Trust to the liens of the
Lender's Deed of Trust and Lender's Assignment of Rents. Therefore, The City has agreed to
execute the document or documents, including but not limited this Agreement, necessary to
effectuate the subordination of The City's Deed of Trust to the Lender's Deed of Trust and
Lender's Assignment of Rents.
E. The Parties desire to reduce their various agreements to written form.
AGREEMENT
Now therefore, in consideration of the foregoing Recitals and in consideration of the
following agreements and covenants Lender. Borrower and The City agree as follows:
1. Subordination of the Lender's Deed of Trust. Notwithstanding anything contained in
The City's Deed of Trust to the contrary and upon (a)Borrower's execution of the Construction
Note, Lender's Deed of Trust and Lender's Assignment of Rents, and (b) the recording of
Lender's Deed of Trust and Lender's Assignment of Rents with the Clerk & Recorder,The
City's Deed of Trust and the lien against the Property created thereby shall be subordinate and
junior to Lender's Deed of Trust and Lender's Assignment of Rents and the liens against the
Property created thereby. For so long as, and at any and all times during which there is any
unpaid balance owed by the Borrower to Lender under the Construction Note and Lender's Deed
of Trust or otherwise secured by the Lender's Deed of"frust and Lender's Assignment of Rents,
the liens or liens held or asserted by The City in and against the Property as evidenced by The
City's Deed of Trust and any and all documents related thereto shall be junior and subordinate to
Lender's Deed of Trust, Lender's Assignment of Rents and the liens against the Property created
thereby.
2. The City's Additional Acknowledgments. In addition to the agreements and
acknowledgments contained in the preceding Section 1 of this Agreement The City also
acknowledges and agrees as follows:
a. The City consents to, and approves all of the provisions contained in the Construction
Note, Lender's Deed of Trust, Lender's Assignment of Rents and the Construction Loan
Agreement between Lender, Borrower, the Housing Authority of the City of Pueblo and El
Centro Pueblo Development Corporation, Inc. dated effective December 28, 2017, pertaining to
the Project(the"Loan Agreement");
b. Except as otherwise provided in the Loan Agreement Lender shall not have any
obligation to The City concerning the Lender's manner and method of the disbursement of funds
under or pursuant to the Construction Note, Lender's Deed of Trust, Lender's Assignment of
Rents or the Construction Loan Agreement, nor shall Lender have any obligation to The City to
monitor the application of any proceeds disbursed under or pursuant to the Construction Note,
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Gilbert Ortiz Clerk/Recorder. Pueblo County Co
VIII krjV W,i h+hliri liti 'l1,N,101? aktirIA IR III III
Lender's Deed of Trust, Lender's Assignment of Rents or the Construction Loan Agreement;
c. The City is receiving and has received adequate consideration for The City's
willingness to execute, and The City's execution and delivery to Lender of this Agreement;
d. The City consents to the subsequent modification or modifications of the Lender's
Construction Note, Lender's Deed of Trust and Lender's Assignment of Rents in the event the
Borrower and the Lender reach subsequent agreements concerning such modification so long as
such subsequent modification or modifications are in the best interests of the completion and
long term financing of the Project, and such subsequent modification or modifications do not
materially increase the principal amounts of the Construction Note, Lender's Deed of Trust and
Lender's Assignment of Rents. .In the event the Borrower and the Lender reach an agreement or
agreements concerning the subsequent modification of the Construction Note, Lender's Deed of
Trust or Lender's Assignment of Rents, The City agrees that the subordination of the lien of The
City's Deed of Trust as described in this Agreement shall be effective with respect to any such
subsequent modification agreement or agreements. In addition, The City agrees to execute such
other and additional documents which Lender deems reasonably necessary to effectuate The
City's obligations under this Section 2(d). and
e. The City is executing this Agreement and agrees to be bound by the provisions
contained in this Agreement at Borrower's request and not at the request of Lender.
3. This Section intentionally has been left blank.
4. Miscellaneous.
a. Notices. Any notice, demand, or communication required or permitted to be given by
any provision of this Agreement shall be deemed to have been sufficiently given or served for all
purposes if delivered in accordance with applicable law.
h. Application of Law. This Agreement and the application and interpretation of this
Agreement, shall be governed exclusively by its terms and by the laws of the United States of
America and the State of Colorado with the exception of any laws pertaining to conflicts of law.
c. Amendments. This Agreement may be modified or amended only in writing executed
by the Parties.
d. Execution of Additional Instruments. The Parties shall execute such other documents
and instruments reasonably necessary to effectuate the terms and provisions contained in this
Agreement.
e. Severability. If any provision of this Agreement or the application of any provision
contained in this Agreement to any person or circumstance shall be invalid, illegal or unenforce-
able to any extent, the remainder of this Agreement and the application thereof shall not be
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affected and shall be enforceable to the fullest extent permitted by law.
f. Successors and Assigns. Each and all of the covenants,terms, provisions and agree-
ments contained in this Agreement are binding upon and inure to the benefit of the Parties and to
their respective agents, legal representatives, successors and assigns.
g. Venue for any legal proceeding initiated by any of the parties to this Agreement in
connection with the enforcement of this Agreement or otherwise shall be proper solely in Pueblo
County, Colorado.
Lender: The City:
Pueblo Bank& Trust Company City of Pueblo, Colorado,
a Municipal Co.•, atie
1/4- L..0 aPoitiLL
By: Tamm Fesmire, Senior Vice President By: Steve Nawrocki,
President of City Council
ATTEST: '�
CUL
A�+,n City Clerk
1
i , r 1 0 '
C .� t 4)
o Borrower: '�
Uplands Townhomes, LLLP
By: El Centro Pueblo Develo•men
orporation, Inc., - .�' ' ner
7, '0
y: Theodore R. Ortiviz,
Secretary/Treasurer A
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Palgert50rofiz6C1Rk3.00 ripe
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38`00Y Co
VIII frr11141.1.aa i 'h41,1I ,lin 4:+F'i i Ai II III
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO ) W\
The foregoing instrument was acknowledged before me this day of December,
2017,by Tammy S. Fesmire, Senior Vice President of Pueblo Bank & Trust Company.
Witness my hand and official seal. /
My commission expires: l`q-
9- ? (
4,
SUE MAUCH �
�'p,RY PUBLIC ,�--t,/L--Q.- �'��.,(,(_ C &_/S "bF COLORADO
NOTARY ID 19974021361 Notary Public
My Commission Expires 12-04-2021
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this I day of December,
2017,by Steve Nawrocki, as the President of City Council, City of Pueb o.
Witness my hand and official seal.
My commission expires: f q 1 ) 1
. ..i
JUDY L. KAGEY t N Vtti
NOTq 15 s ;UBUC N ry Public
TAT .OF COLORADO
LMIY c'" 't �-� �! 9, 19 )
) ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this I I` l' day of December,
2017,by Theodore R. Ortiviz, Secretary of El Centro Pueblo Development Corporation, Inc.,
General Partner of Uplands Townhomes, LLLP.
Witness my hand and official seal.
My commission expires: c 31 c )20
1
[Seal] (/� 0.4A1A---
CHERYL L.WILKERSON Page 5 of 6
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID#19964004153
MY COMMISSION EXPIRES 03-08-2020
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Gilbert Ortiz Clerk/Recorder Pueblo County. Co
■IIII�a�'kw1'111 II1
EXHIBIT A
The Property
I..,ot I, UPLAND TOWNHOMES, FILING NO. 1, in the City of Pueblo,
County of Pueblo, State of Colorado,
According to the Plat Thereof Recorded September 28, 2017, under Reception No. 2083772
Page 6 of 6
Official Records of Pueblo County Clerk & Recorder 2190496
08/28/2020 08:23:16 AM Page 1 of 9
Deed Of Trust R: $53.00 D: $0.00 Gilbert Ortiz
AMENDED AND RESTATED E-RECORDED
DEED OF TRUST THIS DOCUMENT WAS RECORDED
THIS AMENDED AND RESTATED DEED OF TRUST,hereinafter referred to as the"AR Deed",
made this,A/ day of August, 2020 between Uplands Townhomes, LLLP, a Colorado limited liability limited
partnership, hereinafter referred to as "Grantor", and the Public Trustee of the County of Pueblo, in the State of
Colorado,hereinafter referred to as"Trustee",WITNESSETH:
WHEREAS,Grantor has entered into the City of Pueblo Affordable Housing Development Agreement dated
November 27,2017 with the City of Pueblo,a Municipal Corporation,hereinafter referred to as the"Agreement";and
WHEREAS, the Grantor has executed a Promissory Note, hereinafter referred to as "Note No. 1", dated
November 27,2017 for the principal sum of One Million Fifty Thousand and No/100 Dollars(U.S.$1,050,000.00),
payable to the order of the City of Pueblo,a Municipal Corporation,which amount is an indebtedness of Grantor payable
with interest in accordance with the terms of said Note No. 1;and
WHEREAS, the Grantor has executed a Deed of Trust, hereinafter referred to as "Deed No. 1", dated
September 27,2017 and recorded on December 04,2017 under Reception No,2090069,to secure the Agreement and
Note No. 1;and
WHEREAS,Grantor executed a second City of Pueblo Affordable Housing Development Agreement dated
December 28,2017 that was signed by a City of Pueblo representative without the proper authority and was void and
ineffective upon execution,hereinafter referred to as the"Void Agreement";and
WHEREAS, the Grantor has executed a Promissory Note, hereinafter referred to as "Note No. 2", dated
December 28,2017 for the principal sum of One Million Fifty Thousand and No/100 Dollars(U.S.$1,050,000.00),
payable to the order of the City of Pueblo,a Municipal Corporation,which amount is an indebtedness of Grantor payable
with interest in accordance with the terms of said Note No.2;and
WHEREAS,the Grantor has executed a Deed of Trust,hereinafter referred to as"Deed No.2",dated December
28,2017 and recorded on December 29,2017 under Reception No.2092578,to secure the Void Agreement and Note
No.2;and
WHEREAS,the Grantor has executed an Amended and Restated Promissory Note,hereinafter referred to as the
"AR Note", dated theA7 day of August,2020 for the principal sum of One Million Fifty Thousand and No/100
Dollars(U.S.S1,050,000.00),payable to the order of the City of Pueblo,a Municipal Corporation,which amount is an
indebtedness of Grantor payable with interest in accordance with the terms of said AR Note;and
WHEREAS,the Grantor is desirous of securing performance of all obligations of Grantor under said Agreement
and AR Note and payment of the indebtedness as specified therein.
AMENDMENT AND RESTATEMENT.The aforementioned documents shall be amended and restated as
follows.The Agreement shall remain in full force and effect and the AR Note shall evidence the indebtedness of Grantor
payable with interest in accordance with the terms of the Agreement and the AR Note.This AR Deed shall secure the
Agreement and the AR Note,and Deed No.2 shall be amended and restated in its entirety and superseded by this AR
Deed which shall retain the same recording priority as the superseded Deed No.2.The associated Note No.2 shall be
amended and restated in its entirety and superseded by the AR Note. Following execution of the AR Note and the
execution and recording of this AR Deed,Deed No.I and Note No.1 will be released and no longer encumber Grantor.
The Void Agreement shall remain void and ineffective.
NOW,THEREFORE,the Grantor,in consideration of the premises and for the purposes aforesaid,does hereby
grant,bargain,sell and convey unto Trustee in trust forever,for the use and benefit of the City of Pueblo,a Municipal
Corporation(the"Beneficiary"),the following described property,situated in the County of Pueblo,State of Colorado to
wit:
1 c: '