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Res 091-2013 8/20/2013RESOLUTION NO. 91 -2013 Resolution Authorizing The City Manager To Execute A Contract With Habitat For Humanity Of Wichita Falls, Inc. Acting As An Eligible Community Housing Development Organization (CHDO) Under The HOME Investment Partnership Program, To Allocate HOME Investment Partnership Program Set -Aside Funds WHEREAS, Habitat for Humanity of Wichita Falls, Inc. has met the federal regulatory criteria to qualify as a Community Housing Development Organization (CHDO); and WHEREAS, the City of Wichita Falls, acting as a Participating Jurisdiction under the HOME Investment Partnership Program, is required to allocate 15% of each year's funding authorizations to an eligible CHDO; and WHEREAS, Habitat for Humanity of Wichita Falls, Inc. has been previously approved and designated as a CHDO for the City of Wichita Falls and has submitted plans for using the CHDO set -aside funds in an affordable housing project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is authorized to execute a contract with Habitat for Humanity of Wichita Falls, Inc., acting as an approved Community Housing Development Organization, and allocates to said entity: • $73,060.35 from the Fiscal Year 2011 HOME Investment Partnership Program set - aside, and • $52,016.10 from the Fiscal Year 2012 HOME Investment Partnership Program set - aside. PASSED AND APPROVED this the 20th day of August, 2013. ATTEST: Ci Clerk CONTRACT between City of Wichita Falls, Texas and Habitat for Humanity of Wichita Falls, Inc. &a&- _AQ& This contract is made and entered into this, the 20th day f August, 2013 by and between the City of Wichita Falls, Texas, whose address is 1300 Seventh Street, Wichita Falls, TX, hereinafter referred to as "City" and Habitat for Humanity of Wichita Falls, Inc. whose address is 1206 Lamar Street, Wichita Falls, TX, hereinafter referred to as "Contractor." X0606 Whereas the City is approved as a Participating Jurisdiction through the U.S. Department of Housing and Urban Development to implement eligible activities under the HOME Investment Partnership Program (HOME Program), and, federal regulations as stated in 24 CFR 92.300 require that 15% of each year's HOME Program funding appropriation to the City be set aside for qualified Community Housing Development Organizations' (CHDO's) use in housing- related activities within the community. WITNESSETH: For and in consideration of the mutual covenants herein contained, the parties do hereby agree as follows: 1. Scope of Services. The Contractor agrees to perform the following in a satisfactory and proper manner as determined by the City: a. Undertake an affordable housing project during Program Years 2013 and 2014 that proposes to construct approximately 6 -8 new single family dwellings each year on individual vacant lots within the city limits of Wichita Falls as permitted by 24 CFR 92.300. The project proposes to use CHDO set -aside funding to pay for HOME Program eligible items such as project development costs, project delivery costs directly related to the construction of the homes, and /or for "non bricks and sticks" items such as driveway and approach, building permits, pre- construction site work, fencing, gas & sewer lines, landscaping, mowing, portable toilet, rough -in plumbing, power usage, sidewalk, porch, storage building and slab construction, landfill & tap fees. b. Prior to the start of construction of a HOME - assisted project, provide to the City evidence of ownership to land acquired for the project. c. Provide to the City building plans for the project after they become available to the Contractor and prior to the start of construction. d. Insure that construction of the project conforms to all applicable local building and housing codes and to federal Property Standards referenced in 24 CFR 92.251 (Property Standards) and 92.355 (Lead -based Paint Regulations), including the International Energy Conservation Code (IECC), and provide to the City copies of various required City Building Inspection Division approvals for electrical, plumbing, building, etc. at the completion of construction, a verification of compliance with IECC as well as a final Certificate of Occupancy. e. Maintain adequate, experienced staff and /or consultants to successfully perform the responsibilities of the project to its completion. f. Provide to the City dates of scheduled meetings of the Board of Directors and make available during on -site monitoring, copies of Board /committee minutes that document actions related to the projects undertaken. g. Provide to the City certification that potential buyers of the individual dwellings meet Habitat requirements and are eligible Habitat applicants, and do not exceed current low to moderate annual income requirements for the household size (at or below 80% of median income) for the Wichita Falls area as established by the U.S. Department of Housing and Urban Development. h. Direct Habitat applicants to call the City early during the application process for the purpose of making an appointment with staff to begin the City- required and City- administered HOME Program qualification process, including income verification, for the purpose of determining eligibility for HOME Program acquisition assistance to the Habitat - qualified applicant. Applicants must meet current HUD low- moderate income standards. Household income must be equal to or less than 80% of median income for the correct family size in Wichita Falls, Texas. i. Provide to the City, by individual property addresses, a list of volunteers and individual hours worked on that property and an accounting of any contributions of materials or financial support made for the construction of each home built with HOME Program assistance that will be counted toward non - federal match requirements. j. Comply with all applicable federal regulations governing the HOME Program related to CHDOs as contained in the most recently published 24 CFR Part 92 including but not limited to CHDO provisions found in 92.300 and 92.301. k. Comply with requirements found in 24 CFR 92, Subpart F, which includes project requirements addressing maximum per -unit subsidy amounts and qualification as affordable housing. 1. If the project contains 5 or more HOME - assisted units, comply with affirmative marketing responsibilities as enumerated by 24 CFR 92.351 and submit an affirmative marketing plan for review by the City during the program year. m. Notify the City of Habitat's proposal or intent to build a dwelling on a specified lot in a timely manner and prior to any commitment of funds and prior to the start of any construction related activity so that an environmental review of the property can be conducted. Each proposed Habitat construction project must pass environmental requirements to be eligible to receive assistance through the HOME Program. n. In the event of Habitat's knowledge of a possible or impending foreclosure, action on HOME - assisted dwellings or of voluntary intent or actions by the HOME Program- assisted owner /occupant to resale the property to another buyer, notify the City of such circumstances in a prompt and timely fashion and keep the City informed of the process of any foreclosure or resale proceeding. 2. Term of Contract. The term of this agreement shall begin from the date of execution of the contract and remain in effect for the duration of the project's applicable program year. 3. Compensation. The City agrees to pay to the Contractor a maximum amount of $73,060.35 from FY 2011 CHDO Set -Aside Funding which shall constitute full compensation for the Contractor's actual services and expenses incurred in the performance of services described under this contract, and the City agrees to pay to the Contractor a maximum amount of $52,016.10 from FY 2012 CHDO Set -Aside Funding, which shall constitute full compensation for the Contractor's actual services and expenses incurred in the performance of services described under this contract. 4. Method of Payment. Payments will be made by the City as a reimbursement to the Contractor based upon the Contractor's invoice reflecting actual itemized costs for allowable project expenses. Payment shall be processed upon receipt of an invoice and evidence of payment by the Contractor for such expenses. Receipt of invoice for reimbursement should be presented to the City no less than 3 business days before a scheduled closing for a HFH property. Checks will be delivered at closing only if the transaction is accurately represented on the Settlement Statement (HUD -1). 5. Budget. For each home built, provide to the City a budget of costs by activity to include estimated itemized costs and uses of HOME funds. In performing the services called for under the provisions of this contract, the Contractor shall conform expenditures to the approved budget items for construction of the specified properties. Said budget and any account set out herein can be altered, amended or modified as mutually agreeable between the two parties hereto, so that the full intent and purpose of this contract can be carried out. Upon request of the Contractor, line item changes may be made in the budget referred to herein without further City Council action if approved by the City; provided, however, no such change may alter the intent or purpose of this contract. 6. Contractor's Contribution. In the event that the total sum to be paid by the City on behalf of the Contractor under the terms of this agreement is not sufficient for the Contractor to continue performance of his obligations there under until termination date hereof, the Contractor shall contribute sufficient funds for continued performance to fulfill terms of the contract. 7. Refund. At the termination date hereof, the Contractor shall pay to the City any sums paid to or on behalf of the Contractor by the City for the project that have not been expended or committed as budgeted. 8. Proceeds. Any proceeds that derive from the project will be retained by the Contractor but must be used for HOME - eligible or other housing activities for the benefit of low to moderate - income families. However, funds recaptured because housing no longer meets the affordability requirements under 24 CFR 92.254(a)(5)(ii) are subject to the requirements of 24 CFR 92.503 as applicable to CHDO's. 9. Project Completion. For Program Year 2013 Contractor must complete the project in total no later than September 30, 2014 and for Program Year 2014 Contractor must complete the project in total no later than September 30, 2015 in order to comply with 24 CFR 92.500 (d) (3). Completion includes the expenditure of HOME funds for the project. 10. Sanctions for Non - Performance. Should the Contractor fail to complete any project in whole or in part described within this contract by the specified Project Completion Date for which HOME Program funds have been expended, or fail to comply with Affordability Requirements for any purchaser subsequent to the initial qualified purchaser during the Period of Affordability, Contractor shall reimburse the City in the amount of such funds applied to said incomplete or non - complying project within 90 days of Notice given to the Contractor by the City, unless an extension of the Project Completion Date is granted. In such event, provisions of this paragraph apply following the date of extension. 11. Financial Reports. A budget and expenditure report, including sources and uses of funds, and containing financial information and data as required by the City, shall be submitted by the Contractor as requested by the City, but not less than quarterly, and shall include and/or account for all activity through the end of the previous quarter. The Contractor shall keep and make available to the City all necessary documentation that corresponds to budget and financial reports. 12. Future Funding. The funding of this project in no way commits the City to future funding of this program beyond the current contract period. The Contractor understands and agrees that the assistance made available under this agreement is contingent upon the actual receipt of adequate federal funds to meet the City's liabilities under this contract. It is expressly understood that this agreement in no way obligates the General Fund or any other monies or credit of the City of Wichita Falls. 13. Technical Assistance and Monitoring. The City will serve as a resource to the Contractor for technical advice and assistance in the implementation of the project. The City is responsible for monitoring the performance of the Contractor to ensure that the program is delivered in accordance with federal regulations that govern the HOME Program. Thus, in addition to the budget and expenditure reports described above, the City will conduct both intermittent desk reviews and an annual review of the Contractor's compliance with CHDO requirements under the contract. In addition, during the period of construction of each dwelling, the City may conduct periodic on -site inspections for the purpose of monitoring the progress of the project. 14. Environmental Review. The City is responsible for conducting any required environmental reviews of the project implemented with HOME Program funds. Habitat will notify the City of its intent to build a dwelling on a specified lot in a timely manner and prior to the start of any construction- related activity. Each Habitat dwelling proposed for construction must pass environmental requirements (as specified in 24 CFR Part 58) to be eligible to receive assistance through the HOME Program. 15. Affordability and Recapture. The Contractor agrees to ensure that applicable HOME resale or affordability requirements as described in 24 CFR 92.254 are met. The regulations at 24 CFR 92.254 state: 1. The housing must be single - family housing. 2. The housing must be modest in that the housing does not exceed 95 percent of the median purchase price for the area. 3. The housing must be acquired by a homebuyer whose family qualifies as a low- income family and it must be their principal residence. 4. The housing will be required to meet the applicable Period of Affordability as described in 24 CFR 92.254(a)(4). If the housing does not continue to be the principal residence of the family for the duration of the Period of Affordability, the housing must be made available for subsequent purchase only to a buyer whose family qualifies as a low- income family and the family must use the property as its principal residence. The CHDO must reimburse the City's Local HOME Trust account, from non - federal funds, if the recapture or affordability requirements are not met as set forth in 24 CFR 92.254. a. If a sale of the property occurs, the City requires the recapture of HOME funds based on the Period of Affordability and the net proceeds available from the sale. Net Proceeds are defined as proceeds remaining after payoff of the first mortgage loan balance and payment of seller's closing costs. If the HOME - assisted unit is sold during the Period of Affordability, the City prorates the amount subject to recapture based on the period of time the homeowner occupied the property as a principle residence and the net proceeds to the homeowner from the sale. b. If the property is subject to foreclosure proceedings and subsequently sold, it is subject to the net proceeds provisions. If there are no net proceeds payable from the sale to repay the HOME assistance amount subject to recapture, the City can forgive the remaining balance of the loan as authorized by HOME regulations at 24 CFR 92.254(a)(5)(ii)(A)(3). c. If However, if the homeowner should cease to occupy the property as a principal residence during the Period of Affordability for any reason other than foreclosure or sale, the total principal amount of the Note shall be immediately due and payable. 16. Termination of the Contract. a. This agreement shall continue in full force and effect until the expiration of the term set forth above. If either party fails to fulfill their obligations under this contract in a timely and proper manner, the other party shall have the right to terminate this contract for cause. Written notice stating the grounds for termination will be given to the other party not less than thirty (30) days prior to the effective date of such termination. This contract shall at all times be subject to any corrective actions taken or directives issued by HUD in relation to the City's HOME Program. The Contractor shall comply with any and all such communications received by the City from HUD, including elimination of this contract, as if such communication were made a part hereof. b. If either party to the contract should desire to terminate the contract prior to the date of expiration, they may do so by giving written notice to the other party not less than sixty (60) days prior to the intended termination date. c. Notwithstanding the above, the Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the Contractor. 17. Changes. The City and /or the Contractor may, from time to time, request changes in the Scope of Services of the Contractor as may be mutually agreed to be performed hereunder. Such changes, including any increase or decrease in the amount of funds provided to or on behalf of the Contractor, which are mutually agreed upon by and between the City and the Contractor, shall be incorporated by written amendments to the contract. 18. Assi ng ability. The Contractor shall not assign any interest in this contract, and shall not transfer any interest in the same (whether by assignment or novation) without the prior written consent of the City; provided, however, that claims for money due or to become due to the Contractor from the City under this contract may be assigned to a bank, trust company, or other financial institution without such approval. Notice of any such assignment or transfer shall be furnished promptly to the City. 19. Records. a. Establishment and Maintenance of Records. The Contractor shall maintain, prepare and disseminate records and reports as required by federal regulations governing the HOME Program. Contractor shall maintain records relating to the project to include documentation of client income in accordance with HOME Program guidelines, affirmative marketing activities, compliance with property standards, documentation of project costs by individual property, transfer of property ownership, enforcement of affordability, resale or recapture requirements, foreclosure proceedings, minutes of the Board of Directors and financial records. Except as otherwise authorized by the City, the Contractor shall retain such records for the duration of the Period of Affordability. b. Documentation of Costs. All costs shall be supported by properly executed payrolls, time records, invoices, contracts, vouchers, orders, loan documents, settlement statements, and /or any other accounting, legal or financial documents. Any of the above, related in whole or in part to this contract, shall be clearly identified and readily accessible. c. Reports and Information. In a timely manner and well before any transfer of title to a low to moderate income program applicant of any project property that is or will be HOME - assisted, the Contractor shall provide to the City a Habitat approval letter for each applicant. The Contractor at such time and in such forms as the City may require, shall furnish to the City such statements, records, reports, data, and information as the City may request pertaining to matters covered by this contract. All of the reports, information, data and other related materials, prepared or assembled by the Contractor under this contract are confidential and shall not be made available to anyone without the prior written approval of the City, with the exception that such materials shall be made available to the Comptroller General of the United States (Comptroller General), and/or the Department of Housing & Urban Development (HUD), or their authorized designees. Information restricted by law or Contractor policy and relating to personal, medical and financial data will be treated as confidential and will not be released by the City except as may be required by law. d. Audits and Inspections. The Contractor shall at any time during normal business hours and as often as the City may deem necessary, make available to the City, the Comptroller General or (HUD), or their authorized designees, its records and data with respect to all matters covered by this contract and shall permit the City, Comptroller General, HUD, or their designated authorized representatives to audit and inspect all invoices, materials, payrolls, records of personnel conditions of employment and other data relating to all matters covered by this contract. In addition, the Contractor shall submit to the City as required an audit report which is in compliance with the provisions of the Single Audit Act of 1984 as amended and OMB Circular No. A -133. The audit shall be prepared by an independent Certified Public Accountant and shall include as supplemental information statements of compliance and internal control with respect to federal financial assistance provided to the Contractor by the City. The audit report shall be submitted no later than 180 days following the end of the Contractor's fiscal year. If the Contractor receives less than $500,000 in federal funds in a given fiscal year, the Contractor is not required to submit an audit; however, the Contractor shall submit year -end financial reports and asset/liability reports and asset/liability reports for review by the City. e. Accounting. The Contractor shall establish and maintain on a current basis an adequate accounting system on an accrual or other accounting basis in accordance with generally accepted accounting principles and standards. 20. Limitation on Compensation for Personal Services. Compensation for personal services includes, but is not limited to, wages, salaries, and supplementary compensation and benefits. Compensation for employees of the Contractor shall not exceed that paid for similar work paid by the City. In cases where the kinds of personal services provided have no counterpart in local governmental agencies, compensation shall not exceed that paid for similar work in the labor market in which the Contractor competes for the kinds of personal services involved or the compensation level established by the Contractor's primary funding source. 21. Compliance with Local Laws. The Contractor shall comply with applicable laws, ordinances, and codes of the State and local governments and the Contractor shall save and hold harmless the City with respect to damages arising from any tort committed in performing any of the work embraced by this contract. 22. Compliance with Federal Laws. It is expressly understood by the Contractor that this assistance is made available as part of the City's HOME Program, and as such, the activities undertaken must comply with all of the rules and regulations established by said program, including those assurances and conditions which are incorporated as Part II of this contract and hereby adopted for all purposes. Contractor agrees that the services provided by the Contractor under this agreement shall be devoted to assist low and moderate income households. 23. Political Activity Prohibited. None of the funds, materials, property or services provided directly or indirectly under this contract shall be used in the performance of this contract for any partisan political activity. 24. Lobbying prohibited. None of the funds provided under this contract shall be used for publicity or propaganda purposes designed to support or defeat legislation pending before any governmental entity. 25. Conflict of Interest. Habitat for Humanity of Wichita Falls acting as an eligible Community Housing Development Organization (CHDO) under the HOME Investment Partnership will adhere to and conform with all Federal Requirements of 24CFR 92.356. Persons covered by the provision apply to any person who is an employee, agent, consultant, officer, or elected official or appointed official of the City of Wichita Falls, or Habitat for Humanity of Wichita Falls. 26. Equal Employment Opportunity. During the performance of this contract, the Contractor agrees as follow: a. The Contractor will not discriminate against any applicant for assistance because of race, color, religion, sex, familial status, disability, or national origin. The Contractor agrees to post in conspicuous places publicly accessible to all applicants for assistance, notices setting forth the provisions of this nondiscrimination clause. b. The Contractor will, in all solicitations or advertisements for applicants placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for assistance without regard to race, color, religion, sex, familial status, disability, or national origin. c. The Contractor shall keep such records concerning the racial and ethnic origin of qualified applicants and make available such reports to the City as required by the City. 27. Renegotiation. This contract may be renegotiated at the request of either party in the event alternate sources of funding become available during the term of the contractual agreement for the project. The Contractor must notify the City of all occurrences where alternate funding becomes available. 28. Liability Insurance. The Contractor shall maintain during the term of this contract liability insurance in the amount of $250,000 for bodily injury or death to any individual and in the amount of $500,000 for any single occurrence for bodily injury or death. Liability insurance for injury or destruction to property shall also be maintained in the amount of $100,000. The City shall be named as a co- insured and a certificate of insurance evidencing the above liability limits shall be furnished and kept on file with the City Clerk during the duration of this agreement. Such liability policy shall further provide that in the event the insurance is canceled for any reason that the City shall be immediately notified of the intent to terminate coverage by the insurance provider. This agreement, with the attachments adopted herein by reference, constitutes and expresses the entire agreement between the parties hereto and shall not be amended or modified except by written instrument signed by both parties. This agreement made and entered into the 20th day of August, 2013. CITY OF WICHITA FALLS, TEXAS BY: ATTEST: City Clerk APPROVED AS TO FORM: Miles Risley City Attorney Darron Leiker, City Manager HABITAT FOR HUMANITY OF WICHITA FALLS, INC. BY: Dan Gray, Executive Director