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HomeMy WebLinkAboutResolution - 2015-R0410 - Contract - NELCDC - NELCDC Administration - 12/03/2015Resolution No. 2015-R0410 Item No. 5.30 December 3, 2015 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Community Development funding contract and all related documents, between the City of Lubbock and the North & East Lubbock Community Development Corporation (NELCDC), to allocate funding from the HOME Investment Partnership Program Grant in order to provide partial payment for the administration of NELCDC programs designed to assist first time homeowners. Said funding contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on December 3, 2015 GLEN C. ROBERTSON, MAYOR ATTEST: Rebecc Garza, City Secretary APPROVED AS TO CONTENT: Bill How n, Assist/ Manager r/ APPROVED AS TO FORM: A7�� /L -p Ju 'n ruitt, Assi tant City Attorney ccdocs/RES. Agreement— NELCDC Housing Assistance— HOME Funds November 11, 2015 Resolution No. 2015-RO410 AGREEMENT BETWEEN THE CITY OF LUBBOCK, TEXAS AND North & East Lubbock Community Development Corporation (NELCDC) FOR HOMEBUYER NEW CONSTRUCTION THIS AGREEMENT MADE this 3rd day of December, 2015, by and between the City of Lubbock Community Development Department, hereinafter referred to as the "GRANTEE", and the North & East Lubbock Community Development Corp (NELCDC), a Texas Non-profit hereinafter referred to as the "SUBRECIPIENT" and which is located at: P. 0. Box 3893, Lubbock, Texas 79452. WITNESSETH WHEREAS, the GRANTEE is the recipient of HOME Investment Partnerships Program (HOME) Program Funds from the U.S. Department of Housing and Urban Development (HUD); and WHEREAS, the SUBRECIPIENT has submitted a proposal for use of HOME funds for an HOME - eligible PROJECT; WHEREAS, the SUBRECIPIENT shall use HOME funds for the purpose of creating new single family homebuyer opportunities through the construction of new units in the City of Lubbock, which is an eligible activity under the rules and regulations regarding HOME Program funds; and NOW, THEREFORE in consideration of the mutual covenants and obligations herein contained, including the Attachments, and subject to the terms and conditions hereinafter stated, the parties hereto understand and agree as follows: I. Definitions Unless specifically provided otherwise or the context otherwise requires, when used in this Agreement: 1. "Appraisal" means an appraisal which meets the criteria specified in the Uniform Relocation Assistance and Real Property Acquisition Policies Act ("URA"), as further defined in 49 CFR 24.103. 2. "Current market appraised value" means the value of a property that is established through an appraisal made in conformity with the appraisal requirements of the URA at 49 CFR 24.103 and completed within 60 days prior to a final offer made for the property by the Subrecipient, SUBRECIPIENT, or individual homebuyer; provided, however, if the anticipated value of the proposed acquisition is estimated at $25,000 or less, the current market appraised value of the property may be established by a valuation of the property that is based on a review of available data and is made by a person the Subrecipient (with GRANTEE approval) determines is qualified to make the valuation. 3. "Eligible Costs" means costs for the activities specified in Exhibit B of this Agreement for which HOME funds are budgeted, provided that such conform to all HOME requirements. 1 4. "Environmental Requirements" means the requirements described in 24 CFR Part 58. 5. "HUD" means the United States Department of Housing and Urban Development. 6. "HOME Funds" mean those funds to be provided by the GRANTEE pursuant to the terms of this Agreement, as specified in Section II of this Agreement. 7. "Program Income" means the HOME portion of any proceeds received by the SUBRECIPIENT and repaid to the GRANTEE. 8. "PROJECT" means the activities described in the Proposal and in Exhibit A of this Agreement which are to be carried out to meet the objectives of the HOME Program. 9. "Proposal' means the SUBRECIPIENT's response to the GRANTEE's HOME Request for Proposals or such other submittals, as are specified in Exhibit A of this Agreement. II. Terms and Conditions of the Funding A. Program Description—SU BRECIPI ENT will undertake a HOME New Construction program designed to assist eligible low income households to purchase newly constructed homes. SUBRECIPIENT will market the program, take and screen applications from low income households, acquire buildable lots, procure homebuilders, oversee construction, facilitate the provision of direct homebuyer assistance to participating households, and coordinate the sale and closing for participating buyers' purchase of the homes. SUBRECIPIENT agrees to implement the program in compliance with all requirements of the GRANTEE's New Construction Program Guidelines attached hereto as Exhibit A. B. Term of Agreement—This agreement take effect upon being signed and dated by both the SUBRECIPIENT and GRANTEE with the date of the last signature representing the beginning of the term. Unless otherwise extended by written agreement, the agreement will expire on September 30, 2017. Following the expiration of the term, SUBRECIPIENT shall not be entitled to receive any additional HOME funds but will continue to be obligated to fulfill any responsibilities to the GRANTEE related to reporting, maintenance of records, providing access to records for monitoring, other similar duties. C. Funding Amount — HOME Funds (NOT TO EXCEED) in the amount of $100,000 are committed for use in compliance with this agreement, as reflected in the budget in Exhibit B. 1. These amounts represent an allocation of the GRANTEE's total HOME funding contingent upon SUBRECIPIENT performance and not an entitlement to a certain grant amount, and shall only be disbursed for approved projects and costs. 2. Approved budget —The approved budget is attached to this agreement as Exhibit B. It is understood and agreed that funds will be used according to the approved budget. SUBRECIPIENT will request approval from GRANTEE for any line item budget change. D. Use of Funds — HOME funds obligated under this agreement may be used as follows: 1. No Commitment or Expenditure Prior to Environmental Clearance — Notwithstanding any provision of this Agreement, the parties hereto agree and 2 acknowledge that this Agreement does not constitute a commitment of funds to any specific project or site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of a site-specific environmental review under 24 CFR Part 58 as provided in Section VIII.B below, potentially including a receipt by GRANTEE of a release of funds from HUD. The parties further agree that the provision of any funds to the project is conditioned on GRANTEE's determination to proceed with, modify or cancel any proposed project based on the results of environmental review. Further, the SUBRECIPIENT will not undertake or commit any funds to physical or choice -limiting actions, including property acquisition, demolition, movement, rehabilitation, conversion, repair or construction prior to the environmental clearance, and understands that violation of this provision may result in the denial of any project funds under the agreement and may, at the GRANTEE's option, be cause for termination of the agreement. 2. Eligible Activities — Funds may be used for the HOME eligible activities that are checked below: ® New construction 1 single family home homeowner ® New construction 0 duplex or single family rental 3. Eligible Properties —The SUBRECIPIENT may only utilize HOME funds for properties approved by the GRANTEE. The SUBRECIPIENT must prepare and submit a Property Approval Request Form attached in Exhibit C for each property to be assisted with HOME funds. Eligible properties must meet the following conditions for approval by GRANTEE: a. Must be located in the City of Lubbock. b. Must have no substantial adverse environmental factors as determined by an environmental review. C. Must otherwise be in suitable locations for marketing and sale to low-income homebuyers. d. Must not result in the displacement of existing residential or commercial tenants and otherwise be eligible for acquisition under HOME. 4. Activity Limitations — In implementing projects, SUBRECIPIENT shall undertake only those activities permitted by this agreement, and comply with all provisions of this agreement, including the project requirements in Section III, as they may be modified by HUD. In particular a. Acquisition — In order to ensure that only HOME -eligible properties are acquired, SUBRECIPIENT may acquire only those properties listed in Exhibit A or subsequently approved by GRANTEE. No acquisitions may occur without environmental clearance, and determination of the applicability of URA provisions. 3 b. Construction— SUBRECIPIENT may use HOME funds for the construction of properties as approved by the GRANTEE and permitted by this agreement, and shall implement the requirements in Section VII as applicable to all projects. Specific limitations and budget items are included as part of Exhibit B. E. Cost Limits —AII uses of funds are subject to the approval of the GRANTEE. 1. Cost Limits on Individual Units —The cost and assistance limits checked below apply to every unit assisted with HOME funds under this agreement, unless approved by the GRANTEE ® Maximum HOME expenditure per dwelling unit $ 150,000 ® Average HOME expenditure per dwelling unit $ 125,000 ® Maximum HOME mortgage assistance per buyer S 35,000 In all cases, the SUBRECIPIENT must ensure that projects require a minimum HOME investment of $1,000 as required by §92.205(c). In no case may the total HOME investment in a project exceed the HOME Maximum Per -Unit Subsidy Limit as published by HUD. The applicable Maximum Per -Unit Subsidy is that in effect at the time of project commitment and varies based on the number of bedrooms in the unit. F. Deadlines — Timely completion of the work specified in this agreement is an integral and essential part of performance. The HOME funds are subject to Federal deadlines and failure to comply could result in the loss of the Federal funds. By the acceptance and execution of this agreement, it is understood and agreed by the SUBRECIPIENT that the PROGRAM will be completed as expeditiously as possible and that the SUBRECIPIENT will make every effort to ensure that the project will proceed and will not be delayed. Failure to meet these deadlines can result in cancellation of this contract and the revocation of HOME funds. 1. Project Commitment Deadline — All projects funding provided by this agreement must be committed to specific projects on or before September 30, 2016. Project Commitment Requirements — HOME funds committed to a specific project will be deemed committed upon GRANTEE's acceptance of the project and set-up of the project in HUD's IDIS System. In order to commit HOME funds to a project, the SUBRECIPIENT must meet the following standards: a. No funds are obligated until the GRANTEE has completed environmental review and approval of the project as contained in Section VIII, and has obtained the release the funds. b. SUBRECIPIENT has demonstrate site control evidenced by: L Prior to completion of a site specific environmental review, including a release of funds approved by HUD and the GRANTEE as applicable, the SUBRECIPIENT must have a valid option to purchase the property that is contingent upon successful environmental clearance; or 0 ii. If the specific site has been cleared by the GRANTEE pursuant to 24 CFR Part 58, by entering into a valid purchase and sales agreement with the seller of the property in compliance with all HOME requirements. C. SUBRECIPIENT has completed a detailed set of plans and specifications (or work write-up) and completing a detailed construction/rehabilitation cost estimate based upon those specifications. Such cost estimate may include a contingency for construction change orders of up to 15% for rehabilitation and up to 5% for new construction. d. SUBRECIPIENT has submitted to the GRANTEE a detailed budget for the project, identifying all I. Hard and soft costs, including any project -related soft costs associated with SUBRECIPIENT's staff and overhead costs; ii. Estimates of SUBRECIPIENT's future selling costs, including any realtor fees, transfer taxes, or seller's closing costs subject to the limitations in Exhibit B. e. SUBRECIPIENT has provided written commitments for any non -HOME funds, including any required HOME Match, required to fully fund the project; f. SUBRECIPIENT has obtained an "as completed" appraisal based on the plans and specifications from an independent state licensed appraiser; g. SUBRECIPIENT has identified an income eligible buyer who has completed homeownership counseling, been prequalified for an acceptable first mortgage, and entered into a preliminary purchase agreement with the SUBRECIPIENT to purchase the completed home, and otherwise meets all requirements in the Program Statement. h. SUBRECIPIENT must report fund obligations on a monthly basis or when requests for reimbursements are made, whichever occurs sooner. 2. Project Deadlines a. SUBRECIPIENT must begin construction on each specific project within 12 months of committing HOME funds to the project. In any case, if construction does not commence within 12 months of commitment, the project will be cancelled. b. SUBRECIPIENT shall ensure that construction on all projects is complete within 24 months of commitment. C. In the event a pre -identified buyer is unable to complete the purchase of a home following construction completion, SUBRECIPIENT must identify an alternate buyer and enter into a binding sales agreement within nine (9) months of construction completion. Failure to enter into such an agreement within this deadline will result in a requirement that the SUBRECIPIENT convert the project to a HOME rental unit meeting the requirements of §92.252 or, in the GRANTEE's sole discretion, repay all HOME funds invested in the project. G d. Project completion is deemed to occur upon completion of all necessary construction activity, transfer of title to the assisted homebuyer, drawing all HOME funds against the project, and entry by the GRANTEE of all required demographic and project information in HUD's IDIS system. Failure of the subrecipient to complete a project within Two (2) years of the commitment of HOME funds will result in the project being terminated prior to completion, and SUBRECIPIENT shall repay all HOME funds invested in the project to the GRANTEE. 3. Project Expenditure Deadlines — All project activities and all expenditures of HOME funds must be completed by September 30, 2017. If checked the additional interim deadlines apply to project expenditures: ® 50% of HOME funds expended and 9/30/2016 drawn by ❑ 75% of HOME funds expended and drawn by ® 100% of HOME funds expended and drawn by 9/30/2017 4. The SUBRECIPIENT expressly agrees to complete all work required by this agreement in accordance with the timetable set forth in Exhibit B and as provided above. a. If SUBRECIPIENT fails to obligate or expend HOME funds as indicated in this agreement, GRANTEE in its sole discretion may cancel a portion or all of the SUBRECIPIENT's total HOME funding allocation. b. Changes to the timetable may be approved by the GRANTEE, in the event the SUBRECIPIENT is unable to meet the above deadlines or complete the above services because of delays resulting from Acts of God, untimely review and approval by the GRANTEE and other governmental authorities having jurisdiction over the PROGRAM, or other delays that are not caused by the SUBRECIPIENT, the GRANTEE shall grant a reasonable extension of time for completion of the WORK. It shall be the responsibility of the SUBRECIPIENT to notify the GRANTEE promptly in writing whenever a delay is anticipated or experienced, and to inform the GRANTEE of all facts and details related to the delay. However, GRANTEE may not provide extensions beyond deadlines imposed by HUD. 5. Since it is mutually agreed that time is of the essence, the SUBRECIPIENT shall cause appropriate provisions to be inserted in all contracts or subcontracts relative to the work tasks required by this agreement, in order to ensure that the PROGRAM will be completed according to the timetable set forth in this agreement. G. Sale to Buyers — All units constructed under this agreement shall be sold to eligible buyers in accordance with the provisions of this section. 1. Eligible Buyers — Eligible homebuyers must be have household incomes at or below 80% of the Area Median Income based upon the applicable HOME Income Limits as F, published annually by HUD. Buyers must further meet all program requirements included in the Program Statement, including but not limited to the ability to obtain an acceptable first mortgage. 2. Sales Price — Sales prices must be set at the appraised value of the property based on an "as built" appraisal completed by an independent state licensed appraiser. In all cases, the value of the home must not exceed the applicable HOME Homeownership Value Limits published by HUD and updated annually. The sales price of each property, including any adjustments based on changing market values or differences in the market value estimated by an appraisal provided by a proposed buyer's first mortgage lenders, must be approved by GRANTEE. 3. Income Certification and Documentation – SUBRECIPIENT must utilize the definition of annual income defined in 24 CFR Part 5.609 (often referred to as the "Section 8" definition) and determine eligibility for every purchaser according to the requirements at §92.203. Pursuant to those requirements, SUBRECIPIENT must obtain and examine at least two months of source documents evidencing household income. If more than six (6) months have elapsed following completion of the income determination process at the time the SUBRECIPIENT enters into a sales contract with a buyer, SUBRECIPIENT must re -verify the buyer's income to ensure continued eligibility. As a reference, the SUBRECIPIENT should use the CPD Income Calculator available online at https://www.hudexchange.info/incomecalculator/ and consult the most recent version of the HUD publication: Technical Guide for Determining Income and Allowances for the HOME Program. 4. HOME Financing to Buyers –All buyers must have acceptable first mortgages from a mortgage lender. To further ensure the affordability of the home purchase, SUBRECIPIENT may offer direct homebuyer assistance in the form of a HOME - funded second mortgage. These funds are included in the amount of funding provided under this agreement, and not an additional amount, and represent a transfer of HOME funds used for the development of the project by SUBRECIPIENT to the eligible buyer. The terms of this assistance are as follows: a. Amount — The amount of the HOME buyer financing shall be determined as checked below: ❑ The gap between the sums of the approved sales price, buyer's closing costs and prepaid expenses, and any tax proration and the sum of buyer funds from the first mortgage, any non -HOME assistance provided from other sources, and buyer's cash investment for down payment and/or closing costs. ® Not to exceed $ 35,000.00 b. Affordability Period – The term shall be at least Ten (10) years, forgivable at the end of the term, based on the amount of the HOME direct buyer assistance in the unit. C. Owner Occupancy—Assisted buyers must occupy the home as their primary FA place of residence for the duration of the affordability period and may not vacate the property and convert it to rental or nonresidential use. Failure to maintain the home as the buyer's primary place of residence will result in a requirement that the buyer repay all outstanding HOME funds invested in the property, including any development costs not included in the HOME -funded second mortgage. d. Transfer of Title During Affordability Period – If the buyer voluntarily or involuntarily transfers' title prior to the end of the affordability period, HOME funds will be recaptured by the GRANTEE out of the net proceeds of the sale according to the formula contained in the HOME recapture note and mortgage. e. Buyer Note & Mortgage – All HOME -assisted properties are subject to ongoing compliance requirements for at least Ten (10) years from the date of project completion in IDIS, based on the required affordability period. At the sale of an HOME -funded home, SUBRECIPIENT will cause the homebuyer(s) to execute a promissory note and mortgage deed in favor of GRANTEE as mortgagee for the combined amount of the mortgage assistance and down payment assistance as defined herein. L The note and mortgage documents must be approved by GRANTEE prior to their being executed by the homebuyer(s). ii. After each closing occurs, SUBRECIPIENT will provide the recorded note and mortgage to GRANTEE. f. Written Agreement—In addition to the note and mortgage in favor of the GRANTEE, SUBRECIPIENT must enter into a separately enforceable written agreement with the buyer meeting all requirements of §92.504(c)(5) and enforcing the terms of this section. GRANTEE must approve the form of written agreement which shall, at minimum, provide GRANTEE with direct rights of enforcement in the event of noncompliance or default by an assisted buyer. 5. Net Proceeds of Sale – Upon sale of an HOME -funded home, from the net proceeds of the sale after payment of all closing costs and any approved SUBRECIPIENT costs not yet reimbursed by HOME funds, SUBRECIPIENT will return all net proceeds to the GRANTEE as Program Income. III. Project Requirements The SUBRECIPIENT agrees to comply with all requirements of the HOME Program as stated in the HOME regulations §92.504, including but not limited to the following: A. HOME Eligible Use and Eligible Activities – The SUBRECIPIENT will ensure and document that its HOME activities meet eligible use, allowable cost, and eligible activity requirements of the HOME Regulations in 24 CFR Part 92, Subpart E, including §92.205- 92.214. The SUBRECIPIENT will ensure that any expenditure of HOME funds will be in compliance with the requirements, and acknowledges that HOME funds will only be provided as reimbursement for eligible costs incurred, including actual expenditures or invoices for work completed. Specific eligible cost are set forth in §92.206. B. SUBRECIPIENT further agrees that all projects will be completed in compliance with 24 CFR Part 92, Subpart F, including but not limited to the affordability requirements of §92.254 C. Construction — For any construction in this project, SUBRECIPIENT will comply with the provisions of Section VII. D. Property Standards — The SUBRECIPIENT will carry out all HOME -assisted activities in accordance with applicable laws, codes, and other requirements relating to housing safety, quality, and habitability, in order to sell, rent, or redevelop such homes and properties, §92.251. 1. Accessibility — The SUBRECIPIENT shall work with any participating household that includes a person with disabilities to provide accessibility modifications required under the policy of reasonable accommodations and reasonable modifications. All such modifications shall be considered to be eligible HOME costs under this agreement. E. Sale and Occupancy—All of the funds made available under this Agreement shall be used with respect to. 1. Marketing and Selection — In the marketing, intake and selection of buyers for projects developed within the program, the SUBRECIPIENT shall comply with non- discrimination and fair housing requirements listed in Section VIII. Additionally, SUBRECIPIENT must develop and follow an affirmative marketing plan that identifies and makes special efforts to reach those deemed least likely to apply for program units. 2. Counseling Requirement — Each HOME -assisted homebuyer is required to complete at least eight hours of homebuyer counseling from a HUD -approved housing counseling agency or a counselor approved by the GRANTEE, §92.254 (a)(3). F. Project Monitoring and Recordkeeping — The SUBRECIPIENT will be monitored by the GRANTEE for compliance with the HOME requirements and the applicable HOME regulations. The SUBRECIPIENT will provide reports and access to project files as requested by the GRANTEE during the PROGRAM and for Five (5) years after completion and closeout of the AGREEMENT as required under Section IX of this Agreement. SUBRECIPIENT will maintain records in compliance with §92.508 Recordkeeping requirements. IV. GRANTEE Responsibilities A. GRANTEE is responsible for the following tasks and deliverables. B. The GRANTEE shall furnish the SUBRECIPIENT with information regarding requirements for the project, including any changes in HOME regulations or program limits that affect the project, including but not limited to income limits. LS C. Environmental Review — GRANTEE will complete environmental assessments and provide clearances for all HOME target areas, as well as approvals of site-specific environmental reviews. SUBRECIPIENT will provide all information required by GRANTEE. D. Property Approval — GRANTEE will provide prompt approval of any property selected by SUBRECIPIENT and submitted on the form with all required documentation for approval. Failure to provide all required information will result in a delay in approval. Approval can only be provided on completion of environmental review. E. Inspections — The GRANTEE will conduct progress inspections of work completed and review of project files and information to protect its interests as lender and regulatory authority for the project, and will provide information to the SUBRECIPIENT regarding any progress inspections or monitoring to assist it in ensuring compliance. The GRANTEE's review and approval of the WORK will relate only to overall compliance with the general requirements of this Agreement and HOME requirements, and all GRANTEE regulations and ordinances. F. Disbursements — GRANTEE will manage all draws of HOME funds from HUD and payment of valid and properly documented draw requests from SUBRECIPIENT. The GRANTEE will disburse funds as provided in Section IV of this Agreement. GRANTEE will process requests for disbursements of HOME funds, including necessary construction inspections, in a timely manner. GRANTEE will clearly and promptly describe any deficiencies identified by GRANTEE that prevent a disbursement or portion of a disbursement from being approved. G. Reporting — GRANTEE will report to HUD via the Integrated Disbursement and Information System (IDIS) in a timely manner as required by HUD. H. Monitoring — GRANTEE will monitor all program activities of SUBRECIPIENT to assure compliance with the terms of this Agreement including all HOME requirements and cross cutting federal requirements. I. Nothing contained herein shall relieve the SUBRECIPIENT of any responsibility as provided under this Agreement. V. Disbursement of Funds A. Project expenses shall be paid based on vouchers for actual expenses incurred or paid. All such expenses shall be in conformance to the approved project budget. Budget revision and approval shall be required prior to payment of any expenses not conforming to the approved project budget. B. Requests for payment must be submitted by the SUBRECIPIENT on forms specified by the GRANTEE, with adequate and proper documentation of eligible costs incurred in compliance with HOME rules. The SUBRECIPIENT agrees to submit requests for payment in a timely manner in the form and times directed by the GRANTEE. In all cases, SUBRECIPIENT may not request funds until they are needed for the payment of HOME - eligible costs, and requests for disbursement may not exceed the amount needed. C. The GRANTEE will pay to the SUBRECIPIENT funds available under this Agreement based 10 upon information submitted by the SUBRECIPIENT and consistent with any approved budget and GRANTEE policy concerning payments. Payments will be made for eligible HOME related expenses actually incurred by the SUBRECIPIENT, and will not exceed actual cash requirements. Payments will be adjusted by the GRANTEE in accordance with advance fund and program income balances available in SUBRECIPIENT accounts, if any. In addition, the GRANTEE reserves the right to liquidate funds available under this contract for costs incurred by the GRANTEE on behalf of the SUBRECIPIENT. D. Funds will be drawn through the Integrated Disbursement and Information System (IDIS) by the GRANTEE. To ensure expeditious implementation of activities, GRANTEE will draw funds from IDIS and make payment to the SUBRECIPIENT promptly on receipt of the SUBRECIPIENT's complete and properly submitted requests for payment for activities under this agreement, if feasible. E. The HOME funds advanced to the Project will be secured by a note and mortgage on the property, which shall be released upon sale to an eligible buyer. F. The GRANTEE reserves the right to inspect records and project sites to determine that reimbursement and compensation requests are reasonable. The GRANTEE also reserves the right to hold payment until adequate documentation has been provided, reviewed and approved. G. The SUBRECIPIENT may submit a final invoice upon completion. Final payment shall be made after the GRANTEE has determined that all services have been rendered, files and documentation delivered, and units have been placed in service in full compliance with HOME regulations, including submission of a completion report and documentation of eligible occupancy, property standards and long-term use restrictions. H. The SUBRECIPIENT shall report to GRANTEE at time of sale any net proceeds of sales, after the payment of all closing costs and approved SUBRECIPIENT fee, under this contract, and shall return the net proceeds of each sale to the GRANTEE at each closing. All net proceeds should be returned to: City of Lubbock, Community Development P. O. Box 2000 Lubbock, Texas, 79457 A. Repayment of Funds A. SUBRECIPIENT shall repay the GRANTEE for any HOME funds expended towards ineligible expenses including but not limited to funds expended on any project that fails to meet the requirements of §92.254 or the Project Requirements and Other Requirements as outlined in this Agreement, including deadlines. SUBRECIPIENT shall also repay any HOME funds expended without appropriate documentation or that are subsequently disallowed by an audit or monitoring conducted by the GRANTEE, HUD, the HUD Office of Inspector General, the GAO, or any other relevant authority. B. It is understood that, upon the completion of this agreement, any HOME funds committed but not expended under this agreement will revert to the GRANTEE and any uncommitted funds will be similarly cancelled. 11 C. All net sales proceeds after payment of all development and closing costs, shall be returned to the GRANTEE. D. Prior to each closing or sale to an eligible buyer, the SUBRECIPIENT will provide to the GRANTEE the estimated settlement statement, along with a reconciliation statement and the draft note and mortgage. The reconciliation statement shall account for use of HOME funds for the individual unit, and identify those funds that are to be lent to the buyer secured by the HOME homebuyer assistance note and mortgage, the use of sales proceeds for unreimbursed costs, and the amount of net sales proceeds to be returned to the GRANTEE. VII. Contracting, Labor & Hiring Provisions During the performance of this contract, the SUBRECIPIENT agrees as follows: A. The SUBRECIPIENT will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin(s). The SUBRECIPIENT will take affirmative action to ensure the applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin(s). Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The SUBRECIPIENT agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer of the GRANTEE setting forth the provisions of this nondiscrimination clause. B. The SUBRECIPIENT will, in all solicitations or advertisements for employees placed by or on behalf of the SUBRECIPIENT, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. C. The SUBRECIPIENT will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. D. The SUBRECIPIENT will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by the AGENCY and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and order. 1. In the event the SUBRECIPIENT is found to be in noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations or orders, this contract may be canceled, terminated or suspended in whole or in part and the SUBRECIPIENT may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in 12 Executive Order 11246 of September 24, 1965 or by rule, regulations, or order of the Secretary of Labor or as otherwise provided by law. E. The SUBRECIPIENT shall conduct all contracting and purchases with HOME funds to ensure that materials and services are obtained in a cost-effective manner. When procuring for services to be provided under this agreement, the SUBRECIPIENT shall adhere to the following requirements: F. The SUBRECIPIENT will include the provisions of this Section in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The SUBRECIPIENT will take such action with respect to any subcontract or purchase order as the AGENCY may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the SUBRECIPIENT becomes involved in, or is threatened with litigation with a subcontractor or vendor as a result of such direction by the AGENCY, the SUBRECIPIENT may request the United States to enter into such litigation to protect the interest of the United States. G. The SUBRECIPIENT agrees to comply with the non-discrimination in employment, disclosure requirements, debarment of contractor, and Drug -Free Workplace requirements as detailed in 24 CFR 5.105. H. The SUBRECIPIENT agrees to comply with the requirements of the Secretary of Labor in accordance with the Davis -Bacon Act, as amended, the provisions of Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.) and all other applicable Federal, state and local laws and regulations pertaining to labor standards insofar as those acts apply to the performance of this Agreement. The SUBRECIPIENT agrees to comply with the Copeland Anti -Kick Back Act (18 U.S.C. 874 et seq.) and it's implementing regulations of the U.S. Department of Labor at 29 CFR Part 5. The SUBRECIPIENT shall maintain documentation that demonstrates compliance with hour and wage requirements of this part. Such documentation shall be made available to the GRANTEE for review upon request. J. The SUBRECIPIENT will use its best efforts to afford small businesses, minority business enterprises, and women's business enterprises the maximum practicable opportunity to participate in the performance of this contract. As used in this contract, the terms "small business" means a business that meets the criteria set forth in Section 3(a) of the Small Business Act, as amended (15 U.S.C. 632), and "minority and women's business enterprise" means a business at least fifty-one (51) percent owned and controlled by minority group SUBRECIPIENTs or women. The SUBRECIPIENT may rely on written representations by businesses regarding their status as minority and women -owned business enterprises in lieu of an independent investigation. K. Compliance with the provisions of Section 3 of the Housing and Urban Development Act of 1968, as amended, and as implemented by the regulations set forth in 24 CFR 135, and 13 all applicable rules and orders issued hereunder prior to the execution of this contract, shall be a condition of the Federal financial assistance provided under this contract and binding upon the GRANTEE, the SUBRECIPIENT and any of the SUBRECIPIENT's contractors and subcontractors. The SUBRECIPIENT certifies and agrees that no contractual or other disability exists that would prevent compliance with these requirements. 1. The SUBRECIPIENT further agrees to comply with these Section 3 requirements and to include the following language in all subcontracts executed under this Agreement: "The work to be performed under this Agreement is a project assisted under a program providing direct Federal financial assistance from HUD and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended (12 U.S.C. 1701). Section 3 requires that to the greatest extent feasible opportunities for training and employment be given to low- and very low-income residents of the project area, and that contracts for work in connection with the project be awarded to business concerns that provide economic opportunities for low- and very low-income persons residing in the metropolitan area in which the project is located." 2. The SUBRECIPIENT further agrees to ensure that opportunities for training and employment arising in connection with a housing rehabilitation (including reduction and abatement of lead-based paint hazards), housing construction, or other public construction project are given to low- and very low-income persons residing within the metropolitan area in which the HOME -funded project is located; where feasible, priority should be given to low- and very low-income persons within the service area of the project or the neighborhood in which the project is located, and to low - and very low-income participants in other HUD programs; and award contracts for work undertaken in connection with a housing rehabilitation (including reduction and abatement of lead-based paint hazards), housing construction, or other public construction project to business concerns that provide economic opportunities for low- and very low-income persons residing within the metropolitan area in which the HOME -funded project is located; where feasible, priority should be given to business concerns that provide economic opportunities to low- and very low- income residents within the service area or the neighborhood in which the project is located, and to low- and very low-income participants in other HUD programs. 3. The SUBRECIPIENT further warrants and agrees to include or cause to be included the criteria and requirements of this Section in every non-exempt subcontract in excess of $100,000. The SUBRECIPIENT also agrees to take such action as the federal, state or local government may direct to enforce aforesaid provisions. VIII. Compliance with Other Federal, State & Local Laws A. The SUBRECIPIENT covenants and warrants that it will comply with all applicable laws, ordinances, codes, rules and regulations of the state local and federal governments, and all amendments thereto. 14 B. Environmental review — All HOME assistance is subject to the National Environmental Policy Act of 1969 and related federal environmental authorities and regulations at 24 CFR Part 58. 1. No HOME project funds will be advanced, and no costs can be incurred, until the GRANTEE has conducted an environmental review of the proposed project site as required under 24 CFR Part 58. The environmental review may result in a decision to proceed with, modify or cancel the project. Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of environmental review and receipt by the GRANTEE of a release of funds from the U.S. Department of Housing and Urban Development [or the State of Texas] under 24 CFR Part 58. 2. Further, the SUBRECIPIENT will not undertake or commit any funds to physical or choice -limiting actions, including property acquisition, demolition, movement, rehabilitation, conversion, repair or construction prior to the environmental clearance, and must indicate that the violation of this provision may result in the denial of any funds under the agreement. 3. A copy of the Environmental Review Record shall be maintained by both the SUBRECIPIENT and the GRANTEE. C. Flood Disaster Protection — In accordance with the requirements of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001), the SUBRECIPIENT shall assure that for activities located in an area identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards, flood insurance under the National Flood Insurance Program is obtained and maintained as a condition of financial assistance for acquisition or construction purposes (including rehabilitation.) D. Historic Preservation — The SUBRECIPIENT agrees to comply with the Historic Preservation requirements set forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470) and the procedures set forth in 36 CFR Part 800, Advisory Council on Historic Preservation Procedures for Protection of Historic Properties, insofar as they apply to the performance of this agreement. E. Relocation — The SUBRECIPIENT agrees to comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA), and implementing regulations at 49 CFR Part 24; 24 CFR Part 42 — Displacement, Relocation Assistance and Real Property Acquisition for HUD and HUD Assisted Programs; and 24 CFR 570.606 — Displacement, relocation acquisition, and replacement of housing, as may be amended by the HOME NOFA. The SUBRECIPIENT also agrees to comply with applicable GRANTEE or local ordinances, resolutions and policies concerning the displacement of persons. 1. To meet these requirements, the owner of record must be notified in writing that Federal financial assistance will be used in the transaction and that if agreement cannot be reached through negotiation, that the acquisition will not take place. There are specific URA voluntary acquisition requirements that must be met 15 depending on whether or not the buyer has the power of eminent domain and will not use it (see 49 CFR 24.101(b)(1)(i)-(iv)) or if the buyer does not have the power of eminent domain (see 49 CFR 24.101(b)(2)). Any acquisition under possible threat of eminent domain, cannot be considered a "voluntary acquisition" (even if the seller is willing to negotiate). 2. The relocation provisions of the Uniform Relocation Act apply to HOME funds. An unlawful occupant (see 49 CFR 24.2(a) (29)) who is displaced for an HOME -funded acquisition will not be entitled to relocation assistance and payments. However, a lawful occupant displaced for an HOME -funded acquisition will generally be eligible for relocation assistance and payments under URA. The SUBRECIPIENT shall provide appropriate relocation assistance (URA or Section 104(d)) to eligible displaced persons as defined by applicable HUD and/or URA regulations that are displaced as a direct result of acquisition, rehabilitation, demolition or conversion for an HOME - assisted project. F. The SUBRECIPIENT agrees to comply with applicable state, The Fair Housing Act (42 U.S.C. 3601-19,) and local civil rights ordinances and with Title VI of the Civil Rights Act of 1964 as amended, Title VIII of the Civil Rights Act of 1968 as amended, Section 104(b) and Section 109 of Title I of the Housing and Community Development Act of 1974 as amended (the HCDA), Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and Executive Order 11246 as amended by Executive Orders 11375, 11478, 12107 and 12086, and will include the provisions in every subcontract or purchase order, specifically or by reference, so that such provisions will be binding upon each of its contractors and subcontractors. G. SUBRECIPIENT agrees to comply with the requirements of 24 CFR 5.105(a)(2) requiring that HUD -assisted housing be made available without regard to actual or perceived sexual orientation, gender identity, or marital status and prohibiting owners (or their agents) from inquiring about the sexual orientation or gender identity of an applicant for, or occupant of, HUD -assisted housing for the purpose of determining eligibility for the housing or otherwise making such housing available. This prohibition on inquiries regarding sexual orientation or gender identity does not prohibit any individual from voluntarily self -identifying sexual orientation or gender identity; H. The SUBRECIPIENT agrees to comply with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act (42 U.S.C. 1857(h)), Section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). The SUBRECIPIENT agrees that no funds provided, nor personnel employed under this Agreement, shall be in any way or to any extent engaged in the conduct of political activities in violation of Chapter 15 of Title V of, the United States Code. The SUBRECIPIENT is prohibited from using funds provided herein or personnel employed in the administration of the program for inherently religious activities, lobbying, political patronage, and nepotism activities. The Authority certifies that it will not and, to the best 16 of its knowledge, has not used Federally appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award. The Authority further agrees that it shall disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. J. Conflict of Interest — The provisions of 24 CFR 92.356, apply to the award of any contracts under the agreement and the selection of buyers for HOME -assisted units. This section apply to any person who is an employee, agent, consultant, officer, or elected official or appointed official of this section who exercise or have exercised any functions or responsibilities with respect to activities assisted with HOME funds or who are in a position to participate in a decision making process or gain inside information with regard to these activities, may obtain a financial interest or benefit from a HOME -assisted activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. IX. Reporting, Monitoring & Access to Records A. The SUBRECIPIENT agrees to submit any and all reports required by HUD or the GRANTEE. Initially the GRANTEE will require the submission of the following reports: 1. The SUBRECIPIENT shall submit to GRANTEE, quarterly progress reports, no later than 10 business days after quarter ending. These reports shall include: pipeline of applicants, status of commitments and expenditures, status of construction on housing units, and barriers to progress. B. The GRANTEE reserves the right to unilaterally alter, supplement, or otherwise modify the frequency or content of required reports as needed to maintain adequate oversight of the program, address changes to HOME regulations, or to address findings related to noncompliance by the SUBRECIPIENT. C. The SUBRECIPIENT shall collect and maintain Project beneficiary information pertaining to household size, income levels, racial characteristics, and the presence of Female Headed Households in order to determine low and moderate -income benefit in a cumulative and individual manner. Income documentation shall be in a form consistent with HOME requirements. D. The SUBRECIPIENT agrees to provide the GRANTEE access to records and projects at any time during project implementation or for five years after project closeout for purposes of verifying compliance with HOME requirements and this agreement. Access shall be immediately granted to the GRANTEE, HUD, the Comptroller General of the United States (commonly known as the GAO), or any of their duly authorized representatives to any books, documents, papers, and records of the SUBRECIPIENT or its contractors which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. • 17 E. The GRANTEE reserves the right to audit the records of the SUBRECIPIENT any time during the performance of this Agreement and for a period of five years after final payment is made under this Agreement. If required by 2 CFR Part 200 Subpart F, A-133, the SUBRECIPIENT will provide the AGENCY with a certified audit of the SUBRECIPIENT's records representing the all Fiscal Years during which the PROGRAM takes place. F. Project Closeout — The SUBRECIPIENT's obligation to the GRANTEE shall not end until all close-out requirements are completed. Activities during this close-out period shall include, but are not limited to: making final payments, accounting for use of funds, provision of all reports and records required by the GRANTEE. X. Suspension & Termination Suspension or termination may occur if the SUBRECIPIENT materially fails to comply with any term of this agreement. Further, the award may be terminated for convenience in accordance with 2 CFR 200, Appendix II (B). A. If the SUBRECIPIENT fails in any manner to fully perform and carry out any of the terms, covenants, and conditions of the agreement, or if the SUBRECIPIENT refuses or fails to proceed with the work with such diligence as will insure its completion within the time fixed by the schedule set forth in this agreement, the SUBRECIPIENT shall be in default and notice in writing shall be given to the SUBRECIPIENT of such default by the AGENCY or an agent of the AGENCY. If the SUBRECIPIENT fails to cure such default within such time as may be required by such notice, the GRANTEE, acting by and through the AGENCY, may at its option suspend, terminate, or cancel the contract. 1. In the event of such termination, all funds awarded to the SUBRECIPIENT pursuant to this agreement shall be immediately revoked and any approvals related to the PROGRAM shall immediately be deemed revoked and canceled. In such event, the SUBRECIPIENT will no longer be entitled to receive any compensation for work undertaken after the date of the termination of this agreement, as the grant funds will no longer be available for this project. 2. In such event, the SUBRECIPIENT shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder to the date of said termination. 3. Notwithstanding the above, the SUBRECIPIENT shall not be relieved of liability to the GRANTEE for damages sustained by the GRANTEE by virtue of any breach of the contract by the SUBRECIPIENT and the GRANTEE may withhold any payments to the SUBRECIPIENT for the purpose of setoff until such time as the exact amount of damages due the GRANTEE from the SUBRECIPIENT is determined whether by court of competent jurisdiction or otherwise. 4. Such termination shall not effect or terminate any of the rights of the GRANTEE as against the SUBRECIPIENT then existing, or which may thereafter accrue because of such default, and the foregoing provision shall be in addition to all other rights and remedies available to the GRANTEE under the law and the note and mortgage (if in fln effect), including but not limited to compelling the SUBRECIPIENT to complete the project in accordance with the terms of this agreement, in a court of equity. 5. The waiver of a breach of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term, covenant, or condition hereof. B. The GRANTEE may terminate for its convenience this contract at any time by giving at least thirty (30) days notice in writing to the SUBRECIPIENT. If the contract is terminated by the GRANTEE, as provided herein, the GRANTEE will reimburse for any actual and approved expenses incurred, including those costs involved in terminating the contracts and shutting down the work as of the date of notice, less payments of compensation previously made. Claims and disputes between the parties will be submitted to the American Arbitration Association for resolution. Award or judgment may be entered in any court having jurisdiction thereof. Xl. General Conditions A. All notices or other communication which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. GRANTEE City of Lubbock, Community Development Karen Murfee, Director P. O. Box 2000 Lubbock, Texas 79457 SUBRECIPIENT NELCDC Monique Coleman, Executive Director P. O. Box 3893 Lubbock, Texas 79452 B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms in this Agreement shall rule. D. No waiver or breach of any provision of this Agreement shall constitute a waiver of a subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. E. The GRANTEE's failure to act with respect to a breach by the SUBRECIPIENT does not waive its right to act with respect to subsequent or similar breaches. The failure of the GRANTEE to exercise or enforce any right or provision shall not constitute a waiver of 19 such right or provision. F. The parties hereto agree that this Agreement shall be construed and enforced according to the laws of the State of Texas. G. Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Texas or the GRANTEE, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. H. The obligations undertaken by SUBRECIPIENT pursuant to this Agreement shall not be delegated or assigned to any other person or agency unless GRANTEE shall first consent to the performance or assignment of such service or any part thereof by another person or agency. I. The Agreement shall be binding upon the parties hereto, their heirs, executors, legal representative, successors and assigns. J. SUBRECIPIENT shall indemnify and save GRANTEE harmless from and against any negligent claims, liabilities, losses and causes of action which may arise out of SUBRECIPIENT's activities under this Agreement, including all other acts or omissions to act on the part of SUBRECIPIENT, including any person acting for or on its behalf, and, from and against any orders, judgments, or decrees which may be entered and from and against all costs, attorneys fees, expenses and liabilities incurred in the defense of any such claims, or in the investigation thereof. K. SUBRECIPIENT and its employees and agents shall be deemed to be independent contractors, and not agents or employees of the GRANTEE, and shall not attain any rights or benefits under the civil service or pension ordinances of the GRANTEE, or any rights generally afforded classified or unclassified employee; further they shall not be deemed entitled to state Compensation benefits as an employee of the GRANTEE. L. Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and is subject to amendment or termination due to lack of funds, or authorization, reduction of funds, and/or change in regulations. 20 IN WITNESS WHEREOF, the Parties have executed this contract as of the date first written above. CITY OF LUBBOCK GLEN rR&ERTSON MAYOR ATTEST: Reb cca Garza, City Secretar APPROVED AS TO CONTENT: NORTH& EAST LUBBOCK CDC —69o4LAgL ' Karen Murfee, Community Development Director APPROVED AS TO FORM: Justin Pr id, Assistant City Attorney 21 i 2 iqu o man, Executive Director 4A. 064�-.j 2L W. David Haynes, Board &airman FED. I.D.# 71-0961103 Exhibit B. Project Budget & Schedule This exhibit should contain the entire project budget, including all funding sources and uses. It should also show deadlines for selection, construction and completion of units. A sample budget and schedule is in an attached MS Excel file (Exhibit_B_Project_Budget.xls). 23 Exhibit C. HOME Project Approval Request Form 24