HomeMy WebLinkAbout07827ORDINANCE NO. 7827
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE HOUSING AUTHORITY OF
THE CITY OF PUEBLO AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, FOR THE
DEVELOPMENT OF AFFORDABLE HOUSING, AND AUTHORIZING THE PRESIDENT OF THE
COUNCIL TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Agreement dated June 23, 2008 between the Housing Authority of the City of Pueblo,
and the City of Pueblo, A Municipal Corporation, ( "the Agreement "), for the development of
affordable housing, substantially in the form as attached hereto with such minor changes as the
President of the City Council and the City Attorney shall approve, is hereby approved.
SECTION 2.
The President of the City Council is hereby authorized to execute and deliver the
Agreement in the name of the City, and the City Clerk to attest the same, by and on behalf of the
City of Pueblo.
INTRODUCED June 9, 2008
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Background Paper for Proposed
ORDINANCE
AGENDA ITEM #
DATE: JUNE 9, 2008
DEPARTMENT: HOUSING AND CITIZEN SERVICES / ADA RIVERA CLARK
TITLE
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE HOUSING
AUTHORITY OF THE CITY OF PUEBLO AND THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION, FOR THE DEVELOPMENT OF AFFORDABLE
HOUSING, AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO
EXECUTE SAME
ISSUE
Shall•City Council approve7a $250,000 grant to the Housing Authority of the City
of Pueblo for the construction of senior rental housing.
RECOMMENDATION
Approve
BACKGROUND
The Housing Authority has applied and received Low Income Housing Tax
Credits (LIHTC) from the State of Colorado, for the Project commonly known as
Ashwood Apartments. The Housing Authority has applied to the Department of
Housing and Citizen Services for $250,000 in HOME funds. The funds will be
provided as a grant. Total project costs are $2,935,113.
The funds are to be used for the construction of 25 -units of senior rental housing
located at E 21 St. and Mildred Place. The units will serve seniors at or below
60% of the median income of $18,850. Restrictions placed on the project require
that the properties remain affordable for a period of 20 years for the HOME funds
and 40 years for the Tax Credit funds.
FINANCIAL IMPACT
The funding is available in the 251 Fund and Council had previously appropriated
funding for this type of project.
2/8/2008
CITY OF PUEBLO
AFFORDABLE HOUSING DEVELOPMENT AGREEMENT
This Agreement is made and entered into this 23rd day of June 2008, by and between the
City of Pueblo, a Municipal Corporation (hereinafter referred to as "City ") and the Housing
Authority of the City of Pueblo, a public housing authority (hereinafter referred to as "HAP ").
WITNESSETH, that:
WHEREAS, the City has entered into agreements with the U.S. Department of Housing and
Urban Development ( "HUD "), whereby federal financial assistance maybe made available to City on
behalf of the Pueblo Consortium ( "Consortium "), established under Agreements between City and
Pueblo County, Colorado ( "County "), as a Participating Jurisdiction for the purpose of expanding the
availability of affordable housing pursuant to the Home Investment Partnerships Act ( "the Act ") (42
U.S.C. 12701 et. seq.), the Cranston - Gonzales National Affordable Housing Act and implementing
regulations, including but not limited to those at 24 CFR Part 92; and
WHEREAS, in accordance with the provisions of the Act and 24 CFR Sections 92.200 and
92.205, a portion of such financial assistance, subject to deobligation (and subject to appropriation
with respect to any assistance payable out of future fiscal year allotments), maybe 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, HAP 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, HAP 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 HAP's representations, the Consortium and the City believe HAP 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 grant to HAP for investment in housing to be developed,
sponsored or assisted by HAP which will comply with and fulfill said approved elements of City's
housing strategy;
WHEREAS, HAP has applied for and received from the Colorado Housing and Financing
Authority a preliminary reservation of Federal Low- Income Housing Tax Credits in the amount of
$222,290 for allocation to HAP'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 ofthe
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. HAP SERVICES
(a) HAP shall, directly or indirectly, in accordance with all applicable federal, state and
local laws and regulations, undertake the construction of a new twenty -five (25) unit affordable
housing project for seniors, with ten (10) of the housing units being assisted hereunder, in
furtherance of the Consortium's housing strategy and as approved by the City. The affordable
housing project, as described herein, maybe referred to as the "Ashwood Apartments Project" or the
"Project." HAP may undertake same as the Project sponsor with ownership of the Project to be held
by either the HAP or by a limited liability partnership or limited liability limited partnership in which
HAP acts as the sole general partner, or by a limited liability company in which HAP is the
managing member. HAP 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, HAP shall furnish City with all reasonable information which
City may request concerning the Project, execute all certifications, security instruments required by
this Agreement and applicable laws and regulations, demonstrate eligibility of the Project for
assistance under this Agreement and the Act, and obtain the written approval of City's authorized
representatives as to the Project, which approval will not be unreasonably withheld.
(b) HAP warrants and represents that (i) it has the requisite authority and capacity to
perform all terms and conditions on HAP'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 seMc ., 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. HAP agrees that it shall meet the following deadlines
with respect to the Project:
(i) HAP shall obtain satisfactory evidence that it or the Owner of the Project 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 July
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1, 2008.
(ii) HAP or Owner shall obtain all required loans on or before July 1, 2008;
(iii) HAP or the Project Owner shall commence construction of the Project not
later than October 1, 2008;
(iv) HAP or the Project Owner shall substantially complete construction of the
Project not later than September 30, 2009; and
(v) Lease -up of the Project shall be accomplished by not later than November 1,
91 ej
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 HAP 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
HAP 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.
FINANCIAL ASSISTANCE AND METHOD OF PAYMENT
(a) Upon execution of all documents required by City, the City will grant to HAP 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 HAP is subject to all of the following
requirements, which shall be conditions precedent to payment: (i) that HAP or the Owner of the
Project has expended funds after April 1, 2008 for eligible approved expenditures with respect to the
Project, (ii) that neither HAP nor the Owner is in default of any material provision of this Agreement
nor applicable law or regulation, (iii) that HAP has timely submitted requests for disbursement
detailing the eligible draw -down items in a format approved by City, (iv) that HAP has certified with
each payment or loan draw -down request compliance with the requirements identified in Exhibit "C"
and that all expenditures for which draw -down is sought were made for and in furtherance of the
Project and are an eligible use of federal assistance under the Act, and (v) that City has timely
received from HUD sufficient federal assistance under the Act to pay the disbursement hereunder.
(b) Payment hereunder is also subject to and may only be disbursed in accordance with
HUD regulations including but not limited to those at 24 CFR Part 92, as presently promulgated and
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as same may be revised from time to time in the future. All payments received by HAP hereunder
are subject to repayment by HAP as provided in 24 CFR Part 92. Funds provided hereunder for
Project may only be used for development hard costs and acquisition costs, as provided in 24 CFR
' ' 92.205(d) and 92.206(a) and (c).
(c) The aggregate of all payments made hereunder shall not exceed Two Hundred Fifty
Thousand and No /100 Dollars (U.S. $250,000.00
(d) Upon expiration of the term of this agreement or upon any prior termination, HAP
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 April 1, 2009; provided however, that with the respect to the Project for which
HAP has received financial assistance under and during the term of this Agreement, HAP and the
Owner of the Project shall have continuing responsibility to comply with the performance,
certifications, repayment, affirmative marketing, housing affordability compliance and recordkeeping
requirements of this Agreement, and 24 CFR Part 92 (including, without limitation 24 CFR Sections
92.252, 92.254, 92.301, 92.351 and 92.508) which shall survive expiration or termination 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 HAP for the Project pursuant
to this Agreement shall constitute an indebtedness of the Owner to HAP which shall be evidenced by
a promissory note (hereinafter referred to as the "Promissory Note" or "Note ") which shall be due
and payable with interest as provided therein and which shall be secured by the following described
real property situate in the County of Pueblo, State of Colorado (the "Property "):
Lot 1, Block 1, Ashwood Subdivision,
as evidenced by a Deed of Trust to be executed contemporaneously with said Promissory Note. The
loan instruments shall require the Owner to pay to HAP or holder the indebtedness as and to the
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extent same becomes due under the provisions of the Promissory Note and this Agreement. HAP
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
to City.
(c) During the full Term of this Agreement and for the period of affordability, (i) any
failure by the Owner or HAP to perform any obligation, covenant or provision of the Note or this
Agreement required to be performed by the Owner or HAP, or (ii) any breach of any warranty made
by HAP 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 HAP repay to City the full amount of assistance provided
hereunder, plus interest at the rate of 12% per annum from and after the date of such default. HAP
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 HAP under this Agreement.
TERMINATION OF AGREEMENT
(a) For Cause This Agreement may be terminated by City for cause, including any
nonperformance by HAP, upon ten (10) days written notice to HAP 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 HAP. In accordance with 24 CFR 85.43, cause for termination shall include any material failure
by HAP to comply with any term of this Agreement.
(b) For Convenience This Agreement may be terminated for convenience in accordance
with the provisions of 24 CFR 85.44. This Agreement shall terminate immediately upon any non-
appropriation of funds, or upon any suspension or non- receipt of federal assistance provided to City
under the Act, regardless of cause.
(c) Post Termination Procedures In the event of termination, HAP 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 HAP from one or more
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specific responsibilities in writing. Additionally, at City's sole option, all property acquired by HAP
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 HAP shall immediately become the sole and separate property of the City and HAP 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 HAP or its agents and assigns under this Agreement or with grant funds shall, at
the option of the City, become its property and HAP 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.
ASSIGNABILITY
This Agreement shall not be assigned or transferred by HAP without the prior written consent
of the City; provided however, that this limitation shall not be construed to prohibit HAP 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.
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. HAP 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. HAP RECORDKEEPING
HAP shall maintain, and shall require the Owner to maintain, records as to the Project work
and activities undertaken with assistance hereunder, services provided, reimbursable expenses
incurred in connection with the Project and complete accounting records. Accounting records shall
be kept on a generally recognized accounting basis and as requested by the City's auditor. HAP
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 HAP agrees to perform and comply with same, and shall require the Owner to do
likewise. The City, HUD, the Comptroller General of the United States, the Inspector General of
HUD, and any of their authorized representatives, shall have the right to inspect and copy, during
reasonable business hours, all books, documents, papers and records of HAP 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 5 years thereafter, require all of HAP'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 HAP 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 HAP's performance using on -site visits, progress reports required to be submitted
by HAP, audit findings, disbursement transactions and contact with HAP as necessary. HAP 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. HAP shall fully cooperate with City relating to such
monitoring and evaluation.
10. HAP FILES AND INFORMATION REPORTS
HAP 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 HAP for a period of five years, except that with respect to the Project undertaken with assistance
provided hereunder, such records shall be maintained for the full required period of affordability.
Activity reports shall be submitted monthly or quarterly no later than the ninth day of the month
following the end of month or quarter for which the report is submitted.
11. INDEPENDENCE OF HAP
Nothing herein contained nor the relationship of HAP to the City, which relationship is
expressly declared to be that of an independent contractor, shall make or be construed to make HAP
or any ofHAP's agents or employees, or the Owner, the agents or employees of the City. HAP 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, HAP 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 HAP or by the conditions created thereby. HAP further agrees
to indemnify and save harmless the City, its officers, agents and employees, from and against any
and all claims, liabilities, costs, expenses, penalties and attorney fees arising from such injuries to
persons or damages to property or based upon or arising out of the performance or nonperformance
of this Agreement by HAP or out of any violation by HAP of any statute, ordinance, rule or
regulation.
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(b) HAP 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 HAP 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) HAP further agrees that it shall procure and maintain, or require the Owner of the
Project to procure and maintain, at HAP'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 HAP by City pursuant
to this Agreement. HAP shall furnish a certificate of insurance certifying such coverage to City's
Director of Finance prior to disbursement of any funds to HAP. Both said certificate of insurance
and the policy procured by the Owner shall name the City as an additional loss payee.
13. CERTIFICATIONS
HAP agrees to execute and abide by the certifications contained in Exhibit "C" hereto, which
are hereby expressly made a part of this Agreement.
14. PROGRAM INCOME; REVERSION OF ASSETS
(a) (1) Unless otherwise authorized by City in writing in a separate instrument
executed after date of this Agreement, all program income shall be returned to City within 30 days of
receipt by HAP. In the event City authorizes HAP 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 HAP shall be adjusted as provided by 24 CFR 92.503 and the applicable
requirements of 24 CFR 85.
(II) Additionally, all developer fees received by HAP, including any such fees paid
from or out of rental income for the Project, regardless of when received, shall within 30 days of
receipt be deposited by HAP in a restricted account with a regulated financial institution. The
restricted account and such fees shall be used only for such housing programs or purposes as are
authorized and approved by City in writing.
(b) Upon expiration of the term of this Agreement, or upon any prior termination, HAP
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, HAP 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. HAP shall require the Owner to comply with the requirements of this
paragraph and to execute a Deed of Trust which shall be and constitute a lien upon the Property and
all other real property acquired or improved with funds provided hereunder, and which shall secure
the affordability requirements hereunder.
(d) In the event City incurs any cost or expense in enforcing the requirements of this
Agreement, including but not limited to the requirements of this paragraph 14, or in bringing any
action to recover the amount of any repayment obligation, or, upon assignment of the Note and the
Deed of Trust to City, to foreclose or obtain sale under the Deed of Trust or mortgage instrument,
City shall be entitled to recover its costs and expenses, including reasonable attorneys fees.
(e) To further ensure that the funds provided hereunder do not constitute an investment of
more HOME funds than are necessary to provide affordable housing (as required by 24 CFR
92.250(b)), HAP 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, the Loan Agreement, Note and Deed of
Trust shall provide that the entire indebtedness under the Note shall immediately become due and
payable and shall be collected by HAP and repaid to City, together with interest thereon at the rate of
12% per annum from the time of substantial completion until said repayment is made. If Owner is a
limited partnership, nothing in this subparagraph (e), nor in subparagraph (f) of this paragraph 14, is
intended to prohibit a transfer of ownership from Owner to any general partner or limited partner in
Owner.
(f) It is the intent of the ,parties that ' 38 -30 -165, C.R.S. and any similar statute hereafter
enacted, be preempted under federal law and regulations in order to maintain affordability of the
rental units within the Property. Consequently, the Loan Agreement between HAP 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, 1 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 the loan
agreement and the Note by the subsequent purchaser prior to sale or transfer, which consent shall be
granted only upon the Owner's showing circumstances (i) through (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 HAP without prior consent from
the City.
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15. SPECIAL REOUIREMENTS 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, HAP shall comply with all requirements of
this Paragraph 15.
(b) No improvements shall be undertaken to the Property or other real property with
funds (or reimbursement) provided hereunder unless and until: (i) plans and specifications therefor
have been prepared by either a registered Professional Engineer in good standing and duly licensed to
practice in the State of Colorado or an Architect duly licensed and authorized to conduct a practice of
architecture in the state of Colorado; (ii) such plans and specifications have been filed with the City
and approved by both the City's designated representative and the City's Director of Public Works;
and (iii) all construction contracts for improvements for which funds are provided from City shall
have been awarded only after an open, competitive bidding process which has been approved by
City's Director of Purchasing and which allows qualified contractors to reasonably participate in the
competitive bidding procedures; provided, however, that the open competitive bidding process
required herein need not follow the City's procurement requirements for City improvements. HAP
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 HAP shall be made by City hereunder unless and until
all conditions precedent to payment specified elsewhere in this Agreement have been satisfied and
HAP files with City's Director of Housing and Citizen Services a written request for payment signed
by an officer of HAP 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) HAP shall, at HAP'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
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Real Property Acquisition Policies Act of 1970, as amended, and applicable implementing
regulations.
16. RECOGNITION OF HUD, CITY
In all printed materials, Project descriptions and other activities undertaken with funds
provided under this Agreement, HAP shall either provide recognition that funds have been provided
by the U.S. Department of Housing and Urban Development and the City of Pueblo or shall cause
the Owner to do so. Recognition shall be accomplished by prominent disclosure of the role of HUD
and the City in all such printed materials and Project signage, if any.
17. ENTIRE AGREEMENT; AMENDMENTS
The provisions set forth in this Agreement, and all Exhibits and attachments to this
Agreement, constitute the entire and complete agreement of the parties hereto with respect to Phase
II of the Project and supersede all prior written and oral agreements, understandings or
representations related thereto. No amendment or modification of this Agreement, and no waiver of
any provision of this Agreement, shall be binding unless made in writing and executed by the duly
authorized officers of both the HAP and City.
18. SIGNATURES
The persons signing this Agreement on behalf of HAP represent and warrant that such
persons and HAP 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 HAP enforceable
against HAP in accordance with its terms.
IN WITNESS WHEREOF, HAP and the City have executed this Agreement as of the date
first above written and under the laws of the State of Colorado.
CITY OF PUEBLO,
ATTEST: A Municipal Corporation
Bv:
City Jerk President of City Council
[ s -E.A L]
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WIN I I Vi
: MA
M ir
-
OF
Chairman of th r
By:
Frank Pacheco
Executive Director
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EXHIBIT A
SCOPE OF SERVICES
The Project will consist of the construction of 25 units of subsidized rental apartments for seniors.
The funds will be used in the following manner.
Architectural and Engineering $138,000
Tap Permit Fees $87,000
Equipment (Appliances, etc) $25,000
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EXHIBIT B
ACCOUNTING SYSTEM COMPLIANCE PROVISIONS
As used in this Exhibit, the term "Developer" shall mean the entity entering into the Agreement with
the City of Pueblo, a Municipal Corporation to which this Exhibit is attached.
2. Developer is subject to and shall comply with the requirements of OMB Circular A -133
3. Developer agrees to maintain Project and accounting records in accordance with generally accepted
accounting principles which accurately reflect all costs chargeable to the Project, utilize adequate
internal controls, and maintain source documentation for all costs incurred. The City shall have the
right to review and approve Developer's account system and intemal controls prior to the release of
any funds under the Agreement.
4. During the preconstruction and construction phases of the Project, the Developer shall not materially
deviate from any approved Project budget unless any proposed major revision thereto has been
submitted to City and approved in writing. Change orders of less than $10,000 each or $50,000 in the
aggregate shall not be deemed to be material deviations or major revisions to the Project budget.
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.
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EXHIBIT C
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 se q.)
and implementing regulations issued at 24 CFR Part 1;
(2) Title VIII of the Civil Rights Act of 1968 (Pub. L. 90 -284; 42 U.S.C. 3601, et seq.), as
amended; and that the grantee will administer all programs and activities related to housing and
community development in a manner to affirmatively further fair housing;
(3) Section 109 of the Housing and Community Development Act of 1974, as amended;
and the regulations issued pursuant thereto;
(4) Section 3 of the Housing and Urban Development Act of 1968, as amended;
(5) Executive Order 11246, as amended by Executive Orders 11375 and 12086, and
implementing regulations issued at 41 CFR Chapter 60;
(6) Executive Order 11063, as amended by Executive Orders 12259, and implementing
regulations at 24 CFR Part 107;
(7) Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93 -112), as amended, and
implementing regulations when published for effect;
(8) The Age Discrimination Act of 1975 (Pub. L. 94 -135), as amended, and
implementing regulations when published for effect;
(9) The relocation requirements of Title II and the acquisition requirements of Title III of
the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and the
HUD implementing regulations set forth in 24 CFR Part 42;
(10) Executive Order 11988 relating to the evaluation of flood hazards and Executive
Order 11288 relating to the prevention, control and abatement of water pollution;
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(11) The flood insurance purchase requirements of Section 102(a) of the Flood Disaster
Protection Act of 1973 (Pub. L. 93 -234);
(12) The applicable regulations, policies, guidelines and requirements of OMB Circular
Nos. A -102, Revised, 24 CFR 85 and Subpart J of 24 CFR 570, A -87, A -110, A -122, A -128 and
A -133 as they relate to the acceptance and use of federal funds under this federally- assisted program;
(13) The Clean Air Act (42 U.S.C. 7401 et. seq.) as amended; particularly section 176 (c)
and (d) [42 U.S.C. 7506 (c) and,(d)];
(14) HUD environmental criteria and standards [24 CFR Part 51, Environmental Criteria
and Standards];
(15) The Safe Drinking Water Act of 1974 (42 U.S.C. 201, 300 (f) et. seq., and 21 U.S.C.
349) as amended; particularly section 1424 (e) (42 U.S.C. 300 (h)- 303(e));
(16) The Endangered Species Act of 1973 (16 U.S.C. 1531 et. seq.) as amended; including
but not limited to section 7 (16 U.S.C. 1536) thereof;
(17) The Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1272 et. seq.) as amended;
particularly section 7 (b) and (c) [16 U.S.C. 1278 (b) and (c)];
(18) The Reservoir Salvage Act of 1960 916 U.S.C. 469 et. seq.); particularly section 3 (16
U.S.C. 469a -1); as amended by the Archeological and Historical Preservation Act of 1974;
(19) Flood Disaster Protection Act of 1973 (42 U.S.C. 4001 et. seq.) as amended;
particularly sections 102(a) and 202(a) [42 U.S.C. 4012a(a) and 4106(a)];
(20) Executive order 11990, Protection of Wetlands, May 24,1977 (42 FR 26961 et. seq.);
particularly sections 2 and 5;
(21) It will comply with the Lead -Based Paint Poisoning Prevention requirements of 25
CFR Part 35 issued pursuant to the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821 et.
seq.);
(22) The National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.) as amended;
particularly section 106 (16 U.S.C. 470f); and
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(23) Executive Order 11593, Protection and Enhancement of the Cultural Environment,
May 13, 1971 (36 FR 8921 et. seq.); particularly section 2(c).
(24) Construction work financed in whole or in part with federal funds is subject to the
prevailing wage requirements of the Davis Bacon Act (29 CFR, Parts 3 and 5), the Copeland Act (29
CFR Part 3), and the Contract Work Hours and Safety Standards Act (Public Law 91 -54, 83 Stat.
96). When a project meets this applicability requirement, the labor standards provisions of the HUD
4010 and the Davis Bacon Wage Decision issued for the project will be incorporated into this
contract document and shall be incorporated into all construction contracts and subcontracts of any
tier thereunder.
(25) No CDBG funds may be expended for lobbying purposes and payments from other
sources for lobbying must be disclosed 24 CFR Part 87.
(26) Where asbestos is present in property undergoing rehabilitation, Federal requirements
apply regarding worker exposure, abatement procedures and disposal. CPD -90 -44 EPA/OSHA.
(27) When HOME Investment Partnership Act funds are used, the Subrecipient will
comply with implementing regulations and requirements under 24 CFR 92.
Signan1
C:DOCU MEN TS AND SETTINGS \M A DRIDGILOCALSETTINGSITEM ?ORA RY INPIf19 FILES \O1-KF]\AGREEMENT(200811. DOC