IGA; Boulder Housing Partners; Development at 30th and Pearl Contract Tracking> Thank You Page 1 of 1
OFFICE OF THE CITY A770RNEy
STANDARD NOV 13 2018
Contract Routing Cover Sheet TO:---__^may
Please print and attach to your document
You can view the status of your contract using the Contract Tracking Status Page.
Routing Number 20181113-4760
Originating Dept Housing
Contact Person Cori Marin Phone Number 303-441-4134
Project Manager/ Contract Beth Roberts E-mail robe rtsb@ bou lderco lorado,gov
Administrator
Counter Parties Boulder Housing Partners (BHP)
Contract Title / Type Intergovernmental Agreement City and BHP 30th and Pearl
Number
Description Intergovernmental Agreement with BHP for the development of the city- wned sit at the
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https://work.bouldercolorado.gov/ContraetTracking/servlet/Controller 11/13/2018
INTERGOVERNMENTAL AGREEMENT
ON CITY PROPERTY AT 30TH& PEARL
This Intergovernmental Agreement on City Property at 30`h&Pearl ("Agreement") is entered
into as of November, 2018, (the"Effective Date") by and between the City of Boulder,
Colorado, a home rule city ("the City") and the Housing Authority of the City of Boulder,
Colorado, a body corporate and politic, doing business as Boulder Housing Partners ("BHP")
(each a "Party" and together the"Parties").
Background
A. The City owns property approximately 5.63 acres in size, addressed as 2360 30'
Street, Boulder, CO 80304, legally described as Lot 3 Boulder Transit Village Subdivision
Replat A, the City of Boulder, Colorado. This Agreement concerns this City property less the
northeastern half-acre to be used for a City park (the "Property") the metes and bounds of which
will be determined once the Property is surveyed.
B. Consistent with the adopted Transit Village Area Plan ("TVAP"), the City desires
to redevelop the Property into a mixed-use, pedestrian-oriented neighborhood which complies
with the City's form-based code and includes access to transit, a high percentage of affordable
housing, and public spaces that benefit the entire community (the"Entire Site"). Within the
Entire Site, the portion of the property to be developed for affordable housing shall be referred to
as the "Affordable Housing." The City's goals for redevelopment of the Property are described
in more detail in Exhibit A ("Anticipated Development Outcomes").
C. As the City's housing authority, BHP has a long track record of success
developing, constructing, and operating high quality affordable housing and mixed-use
communities in the City.
D. BHP is authorized to issue tax-exempt private activity bonds for qualifying
affordable housing projects. BHP, in its role as issuer, approved an application for an allocation
of private activity bonds dated December 1, 2017 (the "2017 Bond Application") for this
property. The application was submitted jointly by BHP and a partner. As of the Effective Date,
BHP holds all rights and obligations with respect to the 2017 Bond Application.
E. The Property is located within a federally-designated 2017 Qualified Census Tract
("QCT"). Under the rules of the federal low-income housing tax credit program, additional
equity investment is available to an owner who builds a qualifying affordable housing project on
the Property(the "QCT Equity"),provided that bonds are issued for such project no later than
730 days after the date of the 2017 Bond Application (the "QCT Deadline"), which is November
30, 2019.
F. Prior to conveyance to third parties, the City also desires to install certain public
infrastructure on the Property to increase the value and reduce risk (the "Infrastructure
Development").
G. In light of its experience, mission, familiarity with the planning efforts for
redevelopment of the Property, continued efforts to preserve time-limited access to the QCT
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Equity, and commitment to invest the net proceeds of sale of the market-rate parcels within the
Property into the Affordable Housing to increase the community benefit from redevelopment,the
City has determined that the engagement of BHP under this Agreement maximizes the chance of
realizing the Anticipated Development Outcomes.
H. The Parties desire to enter into this Agreement, which amends and restates any
and all prior agreements on the same subject.
Therefore, the Parties agree as follows:
General Provisions
1. Anoointment. The City appoints BHP, as joint Master Developer, in collaboration
with the City, to perform the Pre-Development Services for the Entire Site, the Pre-Development
Services for Affordable Housing, and the Infrastructure Development Services (each as defined
below and, collectively, the "Services") for the redevelopment of the Property in accordance
with the terms of this Agreement. BHP accepts the engagement. The City desires a mutually
beneficial relationship to honor the financial commitment made by BHP in furtherance of the
goals for the Property.
2, Standard of Performance. BHP shall perform the Services diligently,competently,
and in a timely manner, and at all times in accordance with the standards of care and diligence
provided by independent contractors that perform similar services for projects of like size and
kind in the same locality. The City acknowledges that BHP is not a licensed architect, engineer,
accountant, or attorney, and nothing in this Agreement shall be deemed to require BHP to
perform any act which would constitute the practice of architecture, engineering, accounting, or
law. The Services provided by BHP under this Agreement shall not be deemed to constitute the
performance of licensed professional services. The City further acknowledges that in no event
shall BHP have any liability whatsoever for the services or work of any other party on the Entire
Site, including the construction contractor, architect, subcontractors, material suppliers, or
consultants.
3. Budget: Accounting Records; Cost Allocation. Throughout the tern of this
Agreement, BHP shall keep accurate and complete accounting records of its expenditures related
to this Agreement, with expenditures allocable to the Affordable Housing distinguishable from
those allocable to the Entire Site and to the Infrastructure Development. Accounting records shall
be made available to the City upon request.
4. Coordination and Communication.
a. BHP Representative. BHP shall make its lead project manager under this
Agreement and other key personnel available for communications with the City, will
keep the City advised of matters affecting redevelopment of the Property, and will
provide regular updates regarding the status of the redevelopment of the Property.
BHP shall facilitate the coordination and communication between the City,architect,
contractor, consultants and other development team members.
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b. City Representative. The City agrees to designate a representative
authorized to act on the City's behalf and communicate with BHP with respect to
redevelopment of the Property as BHP may reasonably require to perform the Pre-
Development Services, The City Representative shall be the Director of Housing and
Human Services until such time as the City provides notice to BHP of a replacement
or alternate.
5. Insurance. For so long as this Agreement remains in effect and the City owns the
Property, BHP shall procure and maintain, at its sole cost and expense, with a company or
companies authorized to do business in the State of Colorado, the following insurance: (a)
commercial general liability insurance in the amount of at least $1,000,000 combined single
limit, (b) automobile liability insurance in the amount of at least $1,000,000 combined single
limit, and (c) all worker's compensation insurance required by Colorado law. BHP shall deliver
to the City, upon execution of this Agreement and at least 10 days prior to the renewal date of
each insurance policy, a certificate of insurance evidencing such coverages. BHP shall cause all
members of the design and construction team to cavy insurance appropriate to the type of work
performed before such parties are allowed to commence work on the Property, with terms
reasonably satisfactory to BHP, with all insurance policies naming the City as Additional Insured
(and, after exercise of the Option, naming BHP as Additional Insured) with the exception of
worker's compensation coverage.
6. Right of Entry. Subject to compliance with the Insurance section of this
Agreement, the City grants to BHP, its agents, its contractors, and subcontractors the right to
access and enter upon or pass through the Property at any reasonable time for the purpose of
performing due diligence and other Pre-Development Services, including site surveys,
environmental assessments, and geotechnical testing deemed necessary or desirable by BHP to
plan, design, and finance the redevelopment of the Property.
7. OCT Deadline; Cooperation.
a. The Parties share the goal of preserving access to the QCT Equity and
agree that time is of the essence in the performance of this Agreement. This will
require acting expeditiously to secure all necessary contracts, property rights,
entitlements, and commitments for other sources of construction and permanent
financing for redevelopment of the Property. To this end, the Parties agree to use their
best efforts to work together to timely meet each milestone in the Schedule of
Development Milestones attached as Exhibit C (the "Schedule"). BHP shall keep the
City advised on a regular basis as to progress under the Schedule and any acceleration
or delay with respect to a particular stage. Plans and documents submitted by BHP for
review by the City of Boulder Planning and Development Services department shall
be complete, organized, and accurate. City shall as promptly as reasonably possible
review and comment on all budgets, schedules, plans, and other correspondence,
reports, or documents received from BHP related to redevelopment of the Property
that require comments. The Parties agree that the Schedule may need to be adjusted
during the project if there are unexpected delays in the approval process or other
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unforeseen events. The Parties agree to work collaboratively to make any necessary
Schedule adjustments.
b. Notwithstanding the foregoing, failure to obtain the QCT Equity by the
QCT Deadline shall not alone form the basis for termination of this Agreement. The
Parties are committed to working together to pursue all available sources for the
project and using the value of the entitled Property to complete the Affordable
Housing portion of the project as described in this Agreement as the priority even if
the QCT Deadline cannot be met due to unforeseen events or unexpected delays. The
City acknowledges that several applications for tax credit funding may be needed
over more than one year in order to obtain an award. As long as BHP's efforts to
obtain this funding continue in good faith, this Agreement shall continue to remain in
effect.
8. City's Police Powers Reserved. The Parties acknowledge that, as of the Effective
Date of this Agreement, the City owns the Property and is also the locality with land use
jurisdiction over the Property and its redevelopment. No promises, terms, conditions, or
obligations other than those contained herein and in the Option (defined below) exist with
respect to the retention of BHP by the City for services related to redevelopment of the Property.
The rights granted herein and in the Option shall not limit or otherwise restrict the right of the
City to exercise its police power with respect to its land use regulatory powers, control of its
property, control of its rights-of-way, or otherwise. This Agreement shall not be construed as an
approval by the City of redevelopment of the Property for the purpose of any City land use
approvals required under the City's adopted Land Use Code.
9. BHP's Fee for Services. BHP waives any fee for its performance of the Pre-
Development Services and the Infrastructure Development Services under this Agreement. The
fee for services which would normally be due a developer as well as the increase in the property
value after the Property is taken through the entitlements process will be invested by the City
into the Affordable Housing to increase the community benefit from development.
10. Deliverables. BHP's deliverables under this Agreement are included in Exhibit C,
Schedule of Development Milestones,
11. Term. This Agreement shall remain in effect for a tern commencing as of the
Effective Date and delivery of a fully executed Option and, unless terminated by mutual
agreement of the Parties or otherwise in accordance with the terms hereof prior to such date,
continuing through(a) as to the Affordable Housing, the issuance of a building permit for the
first building within the Affordable Housing, and (b) as to the Entire Site, the conveyance by the
City of the last parcel of land within the Property intended for development by a third party.
12. Termination. Either the City or BHP shall have the right to terminate this
Agreement at any time for any default by the other Party in the performance of its duties
hereunder with respect to redevelopment of the Property, subject to a notice and cure period, as
follows. The Party alleging a default shall give the other Party written notice. The Party
receiving notice of default shall have a period of 30 days after receipt of notice of a monetary
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default or 60 days after receipt of notice of a nonmonetary default to cure the default prior to
exercise of remedies by the non-defaulting Party. If the default is such that it is not reasonably
capable of being cured within 30 or 60 days, as applicable, and if the defaulting Party(i) initiates
corrective action within said period, and (ii) diligently, continually, and in good faith works to
effect a cure as soon as possible, then the defaulting Party shall have such additional time as is
reasonably necessary to cure the default prior to the exercise of any remedies by the non-
defaulting Party. If the breaching party fails to correct a breach within the relevant cure period,
the non-breaching party may, in addition to any other rights and remedies available to the non-
breaching party at law or in equity, terminate this Agreement.
BHP's rights hereunder shall not be terminated by the City except for cause as finally determined
by a court of competent jurisdiction. For purposes hereof, "cause" shall mean fraud, dishonesty,
reckless disregard for customary practices, or intentional misconduct. If the City terminates this
Agreement for cause and BHP waives or otherwise abandons any right it may have to dispute
such termination, BHP agrees that it will not exercise the Option.
Pre-Development Services for Entire Site
13. Scope of Work. BHP shall complete or cause to be completed the pre-
development services for the Entire Site described in Exhibit B-1 (the"Entire Site Pre-
Development Services").
14. Contracts. To the extent contracting with one or more third parties is necessary to
complete any of the Entire Site Pre-Development Services, BHP shall enter into such contracts in
its own name (the "Entire Site Pre-Development Contracts"),
15. Reimbursement of Costs. As to expenditures allocable to the Entire Site, the City
shall reimburse BHP as agreed by the Parties in separate funding agreements entered into
pursuant to standard City funding procedures (the "Entire Site Reimbursements"). Entire Site
Reimbursements shall occur within 30 days of receipt of a written request from BHP,
accompanied by sufficient supporting documentation of expenses (or in accordance with such
other payment arrangement mutually agreed upon by the Parties), but no more frequently than
once per month.
16. Ownership of Deliverables. The City shall own the reports, studies, models,plans,
specifications, drawings, site plans, and other deliverables produced under the Entire Site Pre-
Development Contracts, except for such portions as relate to the Affordable Housing, which will
be owned by BHP.
Pre-Development Services for Affordable Housing
17. Scope of Work. BHP shall complete or cause to be completed the pre-
development services for the Affordable Housing described in Exhibit B-2 (the"Affordable
Housing Pre-Development Services" and, together with the Entire Site Pre-Development
Services, the "Pre-Development Services").
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18. Contracts. To the extent contracting with one or more third parties is necessary to
complete any of the Affordable Housing Pre-Development Services, BHP shall enter into such
contracts in its own name (the"Affordable Housing Pre-Development Contracts").
19. Reimbursement of Costs. As to expenditures allocable to the Affordable Housing,
the City shall reimburse BHP as agreed by the Parties in separate funding agreements entered
into pursuant to standard City housing funding procedures (the "Affordable Housing
Reimbursements"). Affordable Housing Reimbursements shall occur within 30 days of receipt of
a written request from BHP, accompanied by sufficient supporting documentation of expenses
(or in accordance with such other payment arrangement mutually agreed upon by the Parties),
but no more frequently than once per month. If BHP successfully closes on construction
financing for the Affordable Housing, the Affordable Housing Reimbursements by the City shall
be treated as a grant to BHP.
20. Ownership of Deliverables. BHP shall own the reports, studies, models, plans,
specifications, drawings, site plans, and other deliverables produced under the Affordable
Housing Pre-Development Contracts;provided, however, that if BHP does not exercise the
Option, upon request from the City, BHP shall assign its rights under(or, in its reasonable
discretion, grant a license to the City to use materials produced under) any or all of the
deliverables produced under the Pre-Development Contracts paid for by the City.
Infrastructure Development Services for Entire Site
21. Scope of Work. BHP shall complete or cause to be completed the infrastructure
development services described in Exhibit B-3 (the "Infrastructure Development Services").
22. Contracts. BHP shall contract with one or more third parties as necessary to
complete the Infrastructure Development Services in its own name (the "Infrastructure
Development Contracts"), in conformance with BHP's purchasing policy, which is based on U.S.
Department of Housing and Urban Development procurement standards.
23. Reimbursement of Costs. The City shall reimburse BHP for all out-of-pocket
costs incurred for the Infrastructure Development (the "Infrastructure Development
Reimbursements"), according to the terns and conditions of separate funding agreements entered
into pursuant to standard City housing funding procedures, up to a total amount to be agreed
upon by the Parties once there is sufficient information about the design and construction plan
for the site to formulate a reasonably accurate estimate of costs. Infrastructure Development
Reimbursements shall occur within 30 days of receipt of a written request from BHP, j
accompanied by sufficient supporting documentation of expenses (or in accordance with such
other payment arrangement mutually agreed upon by the Parties), but no more frequently than
once per month.
24. Ownership of Public Infrastructure Plans. The City shall own the reports, studies,
models, plans, specifications, drawings, site plans, and other deliverables produced under the
Infrastructure Development Contracts related to the public infrastructure (the "Public
Infrastructure Plans"). The City shall grant BHP a license (or such other rights as BHP's
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4
financing partners may require) to use the Public Infrastructure Plans that relate to the Affordable
Housing as part of the development, construction, and operation of the Affordable Housing.
25. Ownership of Infrastructure. Each non-City party that takes title to a given portion
of the Property shall own and maintain the private infrastructure improvements located within
such portion. The City shall own and maintain the public infrastructure within the Property. The
Parties anticipate that the City will retain title to the north-south right of way and the east-west
right of way to be constructed within the Property, both to be re-platted as part of the City
entitlement process, in which rights of way BHP or its affiliate will,upon receipt of all required
City permits, build the majority of the public infrastructure.
Site Control for Affordable Housing; Use Covenants for City
26. Site Control. The City acknowledges that, in order to submit complete and
competitive applications for low-income housing tax credits and construction and permanent
financing with enough time to receive financing commitments prior to the QCT Deadline, BHP
must be able to demonstrate site control over the property on which the Affordable Housing will
be built. To facilitate timely submittal of these applications, the City agrees to execute the
Purchase Option Agreement in the form attached hereto as Exhibit D (the "Option") concurrently
with this Agreement. To the extent the Colorado Housing and Finance Authority or any other
project funder requires the City to consent to an application for project financing, the City's
consent shall not be unreasonably withheld, conditioned, or delayed. The City shall retain
ownership of the property to be developed as a park in the northeastern corner of the City's
parcel, as well as the portions of the project designated for construction of market-rate
development. The City shall have the right to transfer such parcels after subdivision and retain
the sales proceeds to create additional community benefits on the Property.
27. Allocation of Property for Affordable Housing and Other Uses. The Parties
acknowledge that the Purchase Option Property(as that term is defined in the Option)
encompasses more land than is expected to be required for the Affordable Housing. If the Parties
can identify the exact locations on which the Affordable Housing will be built on the Property
prior to exercise of the Option (whether through City approval of a plat, creation of a metes and
bounds description, or some other approach), the Parties agree to amend the Option to adjust the
legal description of the Purchase Option Property accordingly. If, on the other hand, the Parties
cannot identify the exact locations on which the Affordable Housing will be built on the Property
prior to exercise of the Option, on or before the date BHP closes on the acquisition of the
Purchase Option Property, BHP agrees to execute a binding agreement in a form satisfactory to
the City to convey back to the City(or such third party as the City approves in writing) all
property within the Purchase Option Property not necessary for the Affordable Housing.
28. City Livability Standards. For residential improvements in the Project, the City
Livability Standards for Permanently Affordable Housing, as amended and found on the City's
website www.boulderaffordablehomes.com, shall apply to residential unit unless otherwise
approved by the City.
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29. Use Covenants. As consideration for the deed to the Property, BHP agrees to
execute one or more affordability covenants running in favor of the City, the form of which is
attached as Exhibit B to the Purchase Option Agreement, defining allowable uses on the
Property, such covenant(s)to be recorded in the Boulder County real estate records and run with
the land.
Proceeds from Sales of Market-Rate Parcels; Gap Funding for Affordable Housing
30. City Receives Market-Rate Parcel Sales Proceeds. The City shall be entitled to the
net proceeds from the sale of any parcel within the Property (the "Net Proceeds of Sales").
31. City Commitment to Gap Funding. Subject to annual appropriations, the City
agrees to fund BHP's financing gap for the Affordable Housing in an amount to be memorialized
in one or more separate funding agreements entered into pursuant to standard City housing
funding procedures (the "Gap Funding"). The City intends to source the Gap Funding from the
Net Proceeds of Sales,but retains the right to elect another source of funding in its sole
discretion.
32. Parking. The Parties have a shared assumption that the City will require, either as
a condition of entitlements approval or conveyance of title, that (a) the future owner of the
southwestern portion of the Property ("Quadrant 1") will lease parking spaces to the owners of
the parcels adjacent to the east ("Quadrants 4A and 413") in a total number and with an
appropriate allocation across quadrants as is determined during the entitlements process to be
sufficient for the Quadrant 1, 4A, and 4B owners to satisfy City code requirements on parking,
and (b)the future owner of the northeastern portion of the Property("Quadrant 3")will be
responsible for funding its proportionate share of the construction and operation of a parking
facility with the owner of the parcel adjacent to the west ("Quadrant 2"), with the result that the
owners of Quadrants 2 and 3 both satisfy City code requirements on parking, as determined
during the entitlements process. The final decision regarding parking on the Property will be
informed by the shared goal of the parties to optimize the use of the Property to achieve the
Anticipated Development Outcomes.
Miscellaneous Provisions
33. Further Agreements. Each Party agrees to execute and deliver to the other such
reasonable and appropriate additional documents, instruments, or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
34. Notices. All notices provided for herein shall be in writing and shall be sent to the
address set forth below (or such other address as a Party may hereafter designate for itself by
notice to the other Party as required hereby) of the Party for whom such notice or communication
is intended:
If to the City. The City of Boulder
Attn: Director of Housing and Human Services
1300 Canyon Blvd.
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12155963.13
Boulder, CO 80302
FimhaberK@bouldercolorado.gov
If to BHP: Boulder Housing Partners
Attn: Executive Director
4800 Broadway
Boulder, CO 80304
DurhamJ@boulderhousing.org
All notices shall be deemed sufficient (i)upon receipt after dispatch by registered or certified
mail, (ii) upon confirmation of receipt when transmitted by electronic mail, (iii) by hand
delivery, or (iv)by overnight courier service. Any such notice shall be effective the earlier of(x)
the date when received by the addressee, or (y) the date sent if sent by overnight courier for next
business day delivery and actually received on the next business day.
35. . Assignment. This Agreement shall be binding upon the parties hereto and their
respective successors and permitted assigns. Neither the City nor BHP shall have the right to
assign this Agreement to any person or entity without the prior written consent of the other.
36. Waiver of Claims; Limitation of Liabilitv. Notwithstanding anything to the
contrary in this Agreement, except with respect to gross negligence or willful misconduct, the
parties hereby waive any and all claims for any indirect, incidental, special or consequential
damages of any nature whatsoever. Notwithstanding anything to the contrary in this Agreement,
BHP's total aggregate liability to the City in connection with this Agreement or any of the
Services, whether based upon contract, strict liability, civil liability, tort, negligence or any other
legal theory, shall in no event exceed the amount available under the commercial general liability
insurance policy BHP is required to maintain under this Agreement.
37. Independent Contractor. The Parties recognize and agree that BHP is an
independent contractor for all purposes, both legal and practical, in performing services under
this Agreement.
38. No Joint Venture. Nothing herein shall be deemed to create a partnership or joint
venture between BHP and the City.
39. Consent; Approval, Whenever in this Agreement the consent or approval of any
Party is required, such consent or approval shall be in writing only, shall not be unduly delayed
and shall only be effective if given by a duly authorized officer or agent for the Party granting
such consent or approval. Consent by electronic writing such as email or similar means of
electronic communication shall suffice.
40. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
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41. Interoretation. Headings used in this Agreement are for convenience only and are
not to be considered in the interpretation of this Agreement. The word "including"in this
Agreement means "including without limitation."
42. Exhibits. Each Exhibit attached hereto is incorporated into this Agreement by this
reference.
43. No Implied Waiver. The failure of any Party to seek redress for violation of, or to
insist upon the strict performance of, any covenant, agreement, provision, or condition of this
Agreement shall not constitute a waiver thereof nor prevent any subsequent act, which would
have originally constituted a violation, from having all the force and effect of an original
violation.
44. Remedies. In the event of any breach of any covenant or agreement contained in
this Agreement by the other party, each of the parties hereto shall be entitled to any remedy
available at law or in equity.
45. Severability. If any provision of this Agreement is found to be invalid, illegal or
unenforceable, the validity and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
46. No Waiver of Immunity. Nothing in this Agreement shall be construed in any way
to be a waiver by BHP or the City of immunity protection under the Colorado Governmental
Immunity Act, C.R.S. § 24-10-101, et seq., as amended.
47. No Third-Party Beneficiary. The enforcement of the terms and conditions of this
Agreement and all rights of action relating to such enforcement shall be strictly reserved to BHP
and the City. Nothing contained in this Agreement shall give or allow any claim or right of
action whatsoever by any other or third person. It is the express intent of the Parties that any
person receiving services or benefits under this Agreement shall be deemed an incidental
beneficiary only.
48. Annual Appropriation. Nothing in this Agreement shall be deemed or construed
as creating a multiple fiscal year obligation on the part of the City within the meaning of
Colorado Constitution Article X, Section 20 or any other constitutional or statutory provision,
and the City's obligations hereunder are expressly conditional upon annual appropriation by the
City Council, in its sole discretion; provided, however, that for each fiscal year during which this
Agreement remains in effect, the City Manager shall cause the City Finance Department to
include any funds due and owing under this Agreement as a line item in an annual budget request
to City Council, so that City Council may consider appropriating that amount. If City Council in
its discretion makes such appropriation, payment will be made to BHP by January 31 of the
fiscal year for which the appropriation was made. BHP shall refer to this annual appropriation
limitation in each of the contracts that it enters into with architects, engineers, contractors, and
other design and construction team members related to this Agreement.
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49. Entire Agreement; Amendments. This Agreement contains the entire agreement
between the Parties respecting the matters set forth herein. It supersedes all prior agreements
between the Parties hereto respecting such matters. It may not be modified, amended or revised,
except by written instrument signed by each of the parties.
(Signature pages follow.)
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ACCEPTED AND AGREED TO as of the first date written above. This Agreement may be
executed in several counterparts, each of which shall be an original but all of which, taken
together, shall constitute one and the same agreement.
CITY OF BOULDER
City Manager
ATTEST:
City
APPROVED AS TQ FORM:
City Attorney's ffice
Date:
12155963
THE HOUSIM+G AUTHORITY OF THE C'I'TY OF
13OU LL)FIt, A C01 011AP0 1lMiSI(tiC AUTHORITY, W-ft!'A BOULDER
HOUSING PARTNERS
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Chair, ffinard of Couirmssit ienk
Attosred to this—L-4aymt"'tD enwher. 201 R hr
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.lk-ccutive Director
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Summary of Exhibits
A—Anticipated Development Outcomes for the Property
B-1 —Summary of Pre-Development Services for the Entire Site
B-2 — Summary of Pre-Development Services for the Affordable Housing
B-3 —Summary of Infrastructure Development Services
C—Schedule of Development Milestones
D —Form of Purchase Option Agreement
12155963
30th& Pearl Development Agreement—Exhibit A
Anticipated Development Outcomes for the Property
1. Advance the City's long-range vision for a mixed-use, pedestrian-friendly, transit-
oriented development at Boulder Junction that includes substantial public investment in
multimodal transportation, infrastructure improvements, and affordable housing and
otherwise furthers the goals defined in the Transit Village Area Plan
2. Create a development with predominantly residential uses and supporting commercial
uses as determined by a market study, due diligence results, and public outreach, with
access to regional and local transit connections and high quality public spaces
3. Create a neighborhood including a diversity of income levels, tenure (ownership and
rental) and unit types and design; encourage development of housing serving a full range
of households (singles, couples, families with children and other dependents, extended
families, non-traditional households, seniors); integrate permanently affordable and
permanently supportive housing, and a balance of housing units to offer ownership and
rental opportunities with the inclusion of co-housing or cooperative housing options
4. Increase the number of affordable rental and homeownership opportunities in the City,
with a total of between 110 and 150 units on the Property
5. Secure the maximum allocation/reservation of low-income housing tax credits to help
fund the affordable housing on the Property and related infrastructure
6. Create TVAP complementary commercial and retail space in the Boulder Junction area
and explore creative affordable retail models within the project scope
7. Create a development with high quality design, compliant with Form-Based Code
8. To the extent feasible under the rules of the low-income housing tax credit financing
program and other financing sources available to the project, create district parking that
aligns with SUMP principles, Shared, Unbundled, Managed and Paid and in compliance
with City parking regulations
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Anticipated Number and Type of Affordable Rental Housing
Units
Quadrant 2 & the South Portion of Quadrant 4
Bedroom Baths %AMI #of Units Sq Ft/Unit
0 1 30 12 400
0 1 40 1 400
0 1 50 1 400
0 1 60 3 400
1 1 30 3 670
1 1 40 8 670
1 1 50 10 670
1 1 60 28 670
2 1 30 2 850
2 1 40 3 850
2 1 50 15 850
2 1 60 23 850
3 2 30 3 1150
3 2 40 1 1150
3 2 50 2 1150
3 2 60 5 1150
Total 120
Area Median Income #of Units Percentage
30% 20 17%
40% 13 11%
50% 28 23%
60% 59 49%
Total 120
Anticipated Number and Type of Affordable For-Sale Housing
Units
Quadrant #of Units
North Portion of Quadrant 4 (middle- 15-25
income affordable co-housing)
Total 15-25
Anticipated Number and T e of Market-Rate HousingUnits
Quadrant #o Units Percentage
1 southwestparcel) 75 56%
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3 (northeast parcel) 59 44%
Total 134
Anticipated Number of Parking Spaces
]tadrant #of S aces
1 southwest 100
2 and 3 northwest and northeast, respectively) 170
4 (southeast) 0
Total 270
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30t'& Pearl Development Agreement—Exhibit B-1
Summary of Pre-Development Services for Entire Site
(excluding affordable housing component)
1. Negotiate and execute agreements for architectural, engineering, construction, financial,
legal, or other consulting services for the Entire Site, containing the scope of work necessary
to prepare the Entire Site Entitlements Applications (as defined below), and to otherwise
assist with the development, refinement, and furtherance of the Entire Site business plan;
2. Evaluate the economic feasibility and optimal financial structure of the Entire Site through
generation of financial projections, including pre-development costs, construction costs, and
operational expenses for the various components of the Entire Site, as well as analysis of the
available debt, equity, grant, and other possible financing sources;
3. Analyze site use and improvements, selection of materials, building systems, and equipment
and methods of Entire Site delivery; evaluate plans and specifications (the "Plans and
Specifications") during their development for consistency with Entire Site budget
requirements and design parameters; consult with the design and construction team on the
availability and costs of alternative systems and materials and other"value engineering"
opportunities; provide cost evaluations and feasibility assessments of alternative construction
methods, materials, and systems; assess availability of materials and labor, time requirements
for procurement, installation and construction, and possible economies;
4. Coordinate efforts to obtain all necessary approvals, licenses, easements, and other
entitlements required for a third party to commence the construction, use and occupancy of
the Entire Site; attend meetings with governmental authorities and other persons and entities
in connection therewith as required; prepare presentations, reports, and data for such
meetings;prepare written applications and Plans and Specifications at the level of detail
required to submit complete applications for all planning, zoning, subdivision,planned unit
development, and other applicable approvals necessary to permit a third party to commence
the lawful construction, use, occupancy, and operation of projects within the Entire Site (the
"Entire Site Entitlements Applications");
5. Review proposed construction schedules and advise the City on the feasibility of, and
potential alternates to, such schedules; generate and update the proposed schedule for overall
development and construction of the Entire Site;
6. Procure an ALTA survey of the Property, title searches, environmental assessments,
appraisals, and such other studies or reports conducted by qualified parties as may be
necessary to prepare the Entire Site Entitlements Applications;
7. Procure studies, reports, or applications required to ensure the Entire Site can be adequately
served by public or private utilities providing water, sewer, electric, gas, and other utilities, in
appropriate capacities;
8. Adhere to economical, efficient, and desirable design and construction procedures, as well as
any measures necessary to comply with terms and conditions contained in governmental
permits or approvals required for the lawful construction by a third party of projects within
the Entire Site;
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9. Propose and agree upon a public and private infrastructure plan for the Property, whether as
part of or in addition to the proposal to dedicate portions of the Property for public
improvements and amenities;
10. Work with the City to coordinate communications related to the planning, funding,
development, construction, and operation of the Entire Site with the public, regulatory
agencies, and funding partners;
11. Assemble and retain all contracts, agreements, and other records and data as maybe
necessary to carry out BHP's functions hereunder;
12. Perform and administer any and all other services and responsibilities of BHP that are set
forth in any other provisions of this Agreement or that are requested to be performed by the
City and are within the general scope of the services described herein,
I
i
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3011& Pearl Development Agreement—Exhibit B-2
Summary of Pre-Development Services for Affordable Housing
1. Negotiate and execute agreements for architectural, engineering, construction, financial,
legal, or other consulting services for the Affordable Housing, containing the scope of work
necessary to prepare the Affordable Housing Entitlements Applications and the Affordable
Housing Financing Applications (both as defined below), and to otherwise assist with the
development, refinement, and furtherance of the Affordable Housing business plan;
2. Procure a market study conducted by a qualified party to assess market demand for and
inform the design of the Affordable Housing;
3. Prior to submission of the CHFA application for an allocation of low-income housing tax
credits, consult with the City regarding appropriate restricted rent levels and income
qualification levels for low-income housing tax credits and other funding sources,
implications of alternative placement-in-service dates, optimal developer and long-term
ownership structures to achieve the Anticipated Development Outcomes, and anticipated
regulatory and lender constraints;
4. Evaluate the economic feasibility and optimal financial structure of the Affordable Housing
through generation of financial projections, including pre-development costs, construction
costs, and operational expenses for the Affordable Housing, as well as analysis of the
available debt, equity, grant, and other possible financing sources;
5. Analyze site use and improvements, selection of materials, building systems, and equipment
and methods of Affordable Housing delivery; evaluate plans and specifications (the"Plans
and Specifications") during their development for consistency with Affordable Housing
budget requirements and design parameters; consult with the design and construction team on
the availability and costs of alternative systems and materials and other "value engineering"
opportunities; provide cost evaluations and feasibility assessments of alternative construction
methods, materials, and systems; assess availability of materials and labor, time requirements
for procurement, installation and construction, and possible economies;
6. Work to obtain all necessary permits, approvals, licenses, easements and other entitlements
required for the construction, use and occupancy of each portion of the Affordable Housing,
attend meetings with governmental authorities and other persons and entities in connection
therewith as required; prepare presentations, reports, and data for such meetings; prepare
written applications and Plans and Specifications at the level of detail required to submit
complete applications for all planning, zoning, subdivision,planned unit development, site
review, building, health, safety, and other applicable approvals, permits, and licenses
necessary to permit the lawful construction, use, occupancy, and operation of the Affordable
Housing (the"Affordable Housing Entitlements Applications");
7. Review proposed construction schedules produced by the contractor and advise the City on
the feasibility of, and potential alternates to, such schedules; generate and update the
proposed schedule for overall development and construction of the Affordable Housing;
8. Apply for equity, debt, grant, and other sources of construction and permanent financing in
an amount sufficient to fund the construction of the Affordable Housing pursuant to the
budget and the Plans and Specifications (the "Affordable Housing Financing Applications");
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9. Procure an ALTA survey of the Property, title searches, environmental assessments,
appraisals, and such other studies or reports conducted by qualified parties as may be
necessary to prepare the Affordable Housing Entitlements Applications and the Affordable
Housing Financing Applications;
10. Procure studies, reports, or applications required to ensure the Affordable Housing can be
adequately served by public or private utilities providing water, sewer, electric, gas, and
other utilities, in appropriate capacities;
11. Adhere to appropriate administrative and financial controls for the design and construction of
the Affordable Housing, including coordination and administration of the Affordable
Housing's architect, engineers, construction contractor, and other professionals employed in
connection with the Affordable Housing;
12. Adhere to economical, efficient, and desirable design and construction procedures, as well as
any measures necessary to comply with terns and conditions contained in governmental
permits or approvals required for the lawful construction of the Affordable Housing, as well
as in any insurance policy affecting or covering the Affordable Housing;
13. Employ the most advantageous selection procedures for construction contractors,
subcontractors, and suppliers;
14. Obtain quotes for the insurance coverage and surety bonds necessary for the Affordable
Housing during the development phase;
15. Propose and agree upon a public and private infrastructure plan for the Property, whether as
part of or in addition to the proposal to dedicate portions of the Property for public
improvements and amenities;
16. Work with the City to coordinate communications related to the planning, funding,
development, construction, and operation of the Affordable Housing with the public,
regulatory agencies, and funding partners;
17. Assemble and retain all contracts, agreements, and other records and data as may be
necessary to cavy out BHP's functions hereunder;
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30th& Pearl Development Agreement—Exhibit B-3
Summary of Infrastructure Development Services
1. Negotiate and execute agreements for architectural, engineering, construction, financial,
legal, or other consulting services for the Infrastructure Development, containing the scope of
work necessary to prepare the Infrastructure Entitlements Applications (as defined below),
and to otherwise assist with the development, refinement, and furtherance of the
Infrastructure Development business plan;
2. Evaluate the economic feasibility and optimal financial structure of the Infrastructure
Development through generation of financial projections, including pre-development costs,
construction costs, and operational expenses for the Infrastructure Development, as well as
analysis of the available debt, equity, grant, and other possible financing sources;
3. Evaluate plans and specifications for the Infrastructure Development (the "Plans and
Specifications") during their development for consistency with Infrastructure Development
budget requirements and design parameters; consult with the design and construction team on
the availability and costs of alternative systems and materials and other"value engineering"
opportunities; provide cost evaluations and feasibility assessments of alternative construction
methods, materials, and systems; assess availability of materials and labor, time requirements
for procurement, installation and construction, and possible economies;
4. Obtain all necessary permits, approvals, licenses, easements and other entitlements required
for the construction and use of each portion of the Infrastructure Development, attend
meetings with governmental authorities and other persons and entities in connection
therewith as required; prepare presentations, reports, and data for such meetings; prepare
written applications and Plans and Specifications at the level of detail required to submit
complete applications for all applicable approvals, permits, and licenses necessary to permit
the lawful construction and use of the Infrastructure Development (the"Infrastructure
Entitlements Applications");
5. Review proposed construction schedules produced by the contractor and the feasibility of,
and potential alternates to, such schedules; generate and update the proposed schedule for
overall development and construction of the Development;
6. Procure an ALTA survey of the Property, title searches, environmental assessments,
appraisals, and such other studies or reports conducted by qualified parties as may be
necessary to prepare the Infrastructure Entitlements Applications;
7. Procure studies, reports, or applications required to ensure the Infrastructure Development
can be adequately served by public or private utilities providing water, sewer, electric,gas,
and other utilities, in appropriate capacities;
8. Adhere to appropriate administrative and financial controls for the design and construction of
the Infrastructure Development, including coordination and administration of the
Infrastructure Development architect, engineers, construction contractor, and other
professionals employed in connection with the Infrastructure Development;
9. Adhere to economical, efficient, and desirable design and construction procedures, as well as
any measures necessary to comply with terms and conditions contained in governmental
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permits or approvals required for the lawful construction of the Infrastructure Development,
as well as in any insurance policy affecting or covering the Infrastructure Development;
10. Determine most advantageous selection procedures for construction contractors,
subcontractors, and suppliers;
11. Obtain the insurance coverage and surety bonds necessary for the Infrastructure
Development during the development phase;
12. Propose and agree upon an allocation of public versus private ownership of the Infrastructure
Development;
13. Work with the City to coordinate communications related to the planning, funding,
development, construction, and operation of the Infrastructure Development with the public,
regulatory agencies, and funding partners;
14. Assemble and retain all contracts, agreements, and other records and data as may be
necessary to carry out BHP's functions hereunder;
15. Upon execution of a guaranteed maximum price contract with the construction contractor for
the Infrastructure Development, supervise the installation of the Infrastructure Development
as necessary and appropriate to achieve lien-free, timely completion;
16. Perform and administer any and all other services and responsibilities of BHP that are set
forth in any other provisions of this Agreement or that are requested to be performed by the
City and are within the general scope of the services described herein.
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3011& Pearl Development Agreement—Exhibit C
Schedule of Development Milestones
Milestones (including BHP Deliverables, where applicable) Target Date
Execution of City-BHP Agreement on Entire Site November 2018
Entitlements application submitted to City October 2018
Financing Application submitted to CHFA and CDOH January 2019
Hearing or action by Planning Board April 2019
Preliminary Financing Approval by CHFA and CDOH May 2019
Hearing or action by City Council May 2019
Final Plat; Infrastructure construction documents and Affordable August 2019
Housing construction documents review process completed
Transfer of Title to Property to BHP; Restrictive Covenants for City TBD
Building Permits issued for Infrastructure and Affordable Housing October 2019
Financial Closing November 6, 2019
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30th&Pearl Development Aereement—Exhibit D
Form of Purchase Option
(see attached)
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PURCHASE OPTION AGREEMENT
This Purchase Option Agreement (the "Option") is entered into as of November, 2018 (the
"Effective Date") by and between the City of Boulder, Colorado, a home rule the City("the
City") and the Housing Authority of the City of Boulder, Colorado, a body corporate and politic,
doing business as Boulder Housing Partners ("BHP" or"Purchaser").
I. Grant of Purchase Option. Subject only to the terms and conditions stated herein, the
City hereby grants BHP an irrevocable, exclusive option to purchase all of the City's rights and
interests in (a) the property owned by the City located at the northeast comer of 30a,Street and
Pearl Street in the City of Boulder, Colorado, legally described on Exhibit A, attached hereto and
incorporated herein by this reference (the "Purchase Option Property"), and (b) all architecture,
engineering, construction, and other design or construction contracts entered into by the City on
or after the Effective Date related to the Affordable Housing (the"Affordable Housing Pre-
Development Contracts" and, together with the Property, the "the City Property").
2. Consideration for the Option. The City acknowledges that it has received S100.00 and
other good and valuable consideration for this Option, including BHP's agreement to waiye its
fee for acting as master developer for redevelopment of the Property.
3. Purchase Price for the City Property. As consideration for the deed to the City
Property, BHP agrees to execute one or more affordability covenants running with the land for
the benefit of the City defining allowable uses on the Property, to be recorded in the Boulder
County real estate records. Such covenant shall be in substantially the form attached hereto as
Exhibit B.
4. Option Period. This Option shall commence on the Effective Date and shall, unless
sooner exercised by BHP, remain in effect until 5:00 p.m. on December 31, 2023 (the"Option
Period"). If BHP is awarded an allocation or reservation of low-income housing tax credits for an
affordable housing project on the Property during the initial 5-year term of this Option, upon
receipt of a S 100.00 extension fee from BHP, the City shall extend the term of the Option for so
long as necessary to facilitate BHP's use of such award, such extension not to exceed two
additional years.
5. Exercise of Option. The Option may be exercised by BHP at any time during the Option
Period by written notice to the City, delivered or mailed by certified mail to the address set forth
below, or electronic mail to the Director of Housing and Human Services, stating that BHP
desires to acquire the Property(the "Exercise Notice"). In the event this Option is exercised, this
instrument and the provisions hereof shall constitute the Contract of Sale between the City and
BHP. Upon receipt of Exercise Notice,the City shall execute and deliver to BHP a good and
sufficient special warranty deed conveying clear title to the Property, free and clear of all liens,
encumbrances, restrictions, and easements except those permitted by BHP, and a special
warranty bill of sale conveying all of the City's rights and interests in the Affordable Housing
Pre-Development Contracts. The City agrees to deliver the deed promptly upon delivery by BHP
of the affordability covenant(s) described in paragraph 3 above, with closing to occur at a
reasonable time and place mutually agreed upon by the parties, but no later than 180 days after
the date of the Exercise Notice. All notices, tenders, and deliveries hereunder shall be served and
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made at the City of Boulder, 1300 Canyon Blvd., Boulder, CO 80302, Attn: Director of Housing
and Human Services, or such other address provided to BHP by the City. The Option may be
exercised by BHP at any time during the Option Period by written notice to the City, delivered or
mailed by certified mail to the address set forth below, or electronic mail to the Director of
Housing and Human Services, stating that BHP desires to acquire the Property (the "Exercise
Notice"). In the event this Option is exercised, this instrument and the provisions hereof shall
constitute the Contract of Sale between the City and BHP. Upon receipt of Exercise Notice, the
City shall execute and deliver to BHP a good and sufficient special warranty deed conveying
clear title to the Property, free and clear of all liens, encumbrances, restrictions, and easements
except those permitted by BHP, and a special warranty bill of sale conveying all of the City's
rights and interests in the Affordable Housing Pre-Development Contracts. The City agrees to
deliver the deed promptly upon payment or tender by BHP of the entire balance of the Purchase
Price, in cash, lawful money of the United States, or a cashier's check, with closing to occur at a
reasonable time and place mutually agreed upon by the parties, but no later than 180 days after
the date of the Exercise Notice. All notices, tenders, and deliveries hereunder shall be served and
made at the City of Boulder, 1300 Canyon Blvd., Boulder, CO 80302, Attn: Director of Housing
and Human Services, or such other address provided to BHP by the City.
6. Failure to Exercise. If BHP does not exercise this Option, the consideration paid for this
Option shall be retained by the City, and neither party shall have any further right or claim
against the other party.
7. City's Title to the Propert-
y. The City represents and warrants to BHP that it is the
current fee simple owner of the Property. The City will furnish a copy of the warranty deed or an
informational title commitment dated within 30 days of the request showing the City as owning
good and marketable title to the Property.
8. Assignability. BHP's rights of purchase under this Option may not be assigned without
the written consent of the City, except that BHP may without such consent assign this Option to
an entity controlled by BHP or one of its affiliates. This Option shall be binding upon and inure
to the benefit of the City and BHP and their respective permitted assigns.
9. No Marketing. For so long as this Option remains in effect, the City agrees it will not
market the Property for sale or lease.
10. Possession and Risk of Loss. The City shall continue in possession of the Property until
closing occurs, and shall maintain the Property in its present condition, reasonable wear from
ordinary use excepted. Possession shall be transferred to BHP at the closing. Risk of loss from
fire or other casualty to the Property shall be the City's until transfer of possession as provided in
this Option. The City shall maintain adequate insurance against loss, including extended
coverage, during such period. All policies of insurance on the Property shall be transferred to
purchaser at the close of escrow, at BHP's option.
11. Remedies. In recognition of the consideration received from BHP and the fact that BHP
cannot be adequately compensated by monetary damages in the event of any default hereunder,
the City agrees and consents that, for any breach of the provisions hereof, in addition to any
12155963
other remedies provided by law or in equity, BHP shall be entitled to enforce specific
performance by the City of its obligations under this Option.
12. Recording. A memorandum agreement of this Option or this Option itself may, atBHP's
election and expense,be recorded in the real estate records of the Boulder County Clerk &
Recorder's Office.
(Signature pages follow.)
12155963
This Purchase Option is executed as of the Effective Date.
CITY OF BOULDER,
a Colorado home rule city
By: �
Jane S. Brautigam, City Mandger
ATTEST:
L nett Beck, ity Clerk
Approved as to form:
Date:
City Attomey's ffice
Acccptcd and agrr:c-d to as jjI"the L[Tcomi: Da w.
HODS-ING Airru(mtIn OFTI4E C'IT'Y OF
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The foregoing I'm,h:.y I Iplam .Agmefnent t is ALkmn lei gd before Inc lltis_](„dtiy
of F._lr"iFrn e. 2618. 1 ' ViCA-1Cnr_ C-.;>s wc, as
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Exhibit A to Purchase Option Aereement
Legal Description of the Property
Lot 3 Boulder Transit Village Subdivision Replat A, City of
Boulder, State of Colorado, less the northeastern half-acre to be
used for a City park
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Exhibit B to Purchase Option Agreement
Form of Restrictive Covenant
(attached)
121559631
LIMITATIONS ON
RENTS AND TENANT INCOME
Compliance with the provisions of this Covenant shall be deemed to be a
requirement of title.
LOW AND MODERATE INCOME
RENTAL HOUSING COVENANT
This Covenant ("Covenant') is entered into as of the [_] day of [ ], 201 (the
"Effective Date"), by and between TBD, a (the "Owner"), and
the City of Boulder, a Colorado home rule city("City").
This Covenant applies to the real property commonly known as 30' and Pearl, (the
"Property") Boulder, Colorado; the legal description of which is attached hereto as Exhibit A.
RECITALS
WHEREAS, Owner is the fee simple owner of the Property;
WHEREAS, pursuant to the terms and conditions of that certain Local Funding
Agreement for the project, by and between the City and the Housing Authority of the City of
Boulder, Colorado d/b/a Boulder Housing Partners, a Colorado housing authority ("BHP"),
dated as of[_], 2018 (the "Funding Agreement'), the City has provided TBD in Affordable
Housing Funds ("AHF") in (the "Funds") to BHP, to loan to Owner to fund development costs
related to the development of the affordable multifamily housing project on the Property, to be
known as TBD Apartments;
WHEREAS, BHP has loaned the Funds to Owner;
WHEREAS, Owner has benefited from these funds;
WHEREAS, Owner has agreed to permanently limit the rents charged and income
requirements for the occupancy of the Property;
WHEREAS, subsequent residents will benefit from the rent limitations which this
Covenant requires;
WHEREAS, the intent of the City is to permanently preserve through this Covenant
and these funds the affordability of the Property for persons of low and moderate income, and
to assign to the City the right to enforce compliance with this Covenant.
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NOW THEREFORE, in consideration of the benefits received by the parties, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
DEFINITIONS
The following terms shall have the meanings defined herein:
A. "Area Median Income" means the Area Median Income reported annually for single
persons and households of various size by the United States Department of Housing
and Urban Development, or by any successor United States Government department,
agency, or instrumentality, for the Primary Metropolitan Statistical Area "PMSA"
which includes the City of Boulder, Colorado.
B. "HUD" means the United States Department of Housing and Urban Development, or
any successor governmental agency.
C. "HUD Low Income Limit" means the maximum gross household income that allows a
household to be considered "low income" for the purposes of HUD financial assistance.
These limits are reported annually by HUD and reflect the low-income limit for a
particular area. For the City of Boulder, the incomes reported for the Boulder Primary
Metropolitan Statistical Area (PMSA) apply.
D."Income" means the definition of income under Section 8 of the United States Housing
Act of 1937, codified at 42 U.S.C.S. § 1437a(b)(1990), as further determined by the
United States Secretary of Agriculture in 24 CFR § 813.106 (1997). In the event that
Section 8 is repealed or the definition of income under Section 8 is substantially
modified, then "income" shall mean the anticipated total income for the next twelve
month period received from all sources by each member of the household, excluding,
however, temporary or non-recurring income (including gifts), income from the
employment of children under age 18, payments for the care of foster children or foster
adults, and amounts received specifically for the reimbursement of medical expenses
for a member of the household.
E. "Over-Income" means a combined household income that exceeds of 60% of
the area median income for each permanently affordable rental housing unit.
F. "Assets" means the cash and non-cash items that can be converted to cash, including
real property, retirement accounts, pension funds, life insurance payout, taxable
interest, checking, savings, stocks, bonds and other forms of capital investment.
G."Non-Renewal of Lease" means the end of a lease or rental agreement without an
option to renew the lease.
H."Termination of Tenancy"means a termination of the lease or rental agreement prior to
the end of the lease term.
I. "Institutional Lender" means any bank, savings and loan association, or any other
institutional lender which is licensed to engage in the business of providing purchase
money mortgage financing for residential real property.
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J. "Real Property" means land and improvements or common interest ownership and
improvements.
K."Rent," as used in this Covenant shall include without limitation, all customary charges
and fees to manage the rental units including water, sewer and trash service. Rent shall
include the total rent including the established monthly Utility Allowance.
L. "Rental Compliance Manual" means the City of Boulder Division of Housing, Rental
Compliance Manual as it may be amended. The current Manual and all updates are
available at www.boulderaffordablehomes.com.
M. "Transfer" means any sale, assignment or transfer, voluntary, involuntary or by
operation of law (whether by deed, contract of sale, gift, devise, bequest, trustee's sale,
deed in lieu of foreclosure, or otherwise) of any interest in the Property, including but
not limited to a fee simple interest, ajoint tenancy interest, a tenancy in common, a life
estate, a leasehold interest (other than with respect to a lease in the ordinary course of
rental of apartment units), or any interest evidenced by a land contract by which
possession of the Property is transferred and Owner retains title.
N."Utilities" means the average monthly cost of services for electricity and heating.
Utilities do not include water, sewer, and trash services.
O. "Utility Allowance" is the reasonable estimate cost of utilities in the area, given the
type of building, and the size of the unit. Annually, the City will establish monthly
Utility Allowances for Boulder.
COVENANTS
1. Rental Housing: Owner shall maintain the Property and use the number of units to be
inserted permanently affordable units only for residential housing for rent.
I Rental Compliance Manual: Owner agrees to all City rental requirements found in the
Rental Compliance Manual, as it may be amended. The Manual and any updates are
available at www.boulderaffordablehomes.com.
3. Maximum Income: No single household in the specified permanently affordable rental
housing units of the Property shall have an income which is greater than 60% of the
AMI. However, the above notwithstanding, a person, or household, whose income
increases above the limits set forth above after initial occupancy may be allowed to
renew the lease, provided that the person or household's gross income does not exceed
% of 60% AMI or other income limits as approved by the Rental Compliance
Manual.
4. Income Verification & Annual Recertification: At the time of initial occupancy and
every other year thereafter Owner shall verify the combined household income
through third party source documentation. For intervening years, the Owner may
use alternative recertification process per City policy as outlined in the Rental
Compliance Manual.
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5. Maximum Assets: No household in the specified permanently affordable units of the
Property shall have assets which exceed the asset limitations specified in the Division
of Housing Income and asset Limit Policy as established by the City Manager.
6. Maximum Rents: Annually, the City will publish the maximum rents for the city of
Boulder based upon the number of bedrooms and 60% of the AMI. The City will use
the maximum rents published annually by the Colorado Housing and Finance Authority
("CHFA") for Boulder. In the event that the CHFA maximum rent calculation is
substantially changed, re-named, or abandoned, then the City shall have the discretion
to substitute an alternative index which shall be published annually. It is a violation of
this Covenant if the Owner charges rents with the utility allowance that exceed the
maximum rents for the City that are applicable to a specific apartment unit type as
described above. The City's use of CHFA's annually published rents is not an adoption
of CHFA's rental compliance requirements.
7. Rent Increases: Rent may be increased no more than once each year up to the
applicable maximum rents for Boulder described in this Covenant. The Owner must
provide tenants with at least thirty (30) days' written notice before any rent increases
are implemented.
8. Additional Funding: No additional funding for building maintenance or any other
purpose shall be provided by or through the City of Boulder without a reduction of the
Maximum Income, as specified in Subparagraph 3 of this Covenant.
9. Capital Reserves: Owner shall contribute a minimum of TBD annually towards a capital
replacement reserve for the property, provided that at no time shall the balance of such
reserve be required to exceed TBD.
10. Transfer: Except for the sale of the Commercial Unit (as defined in the Funding
Agreement and the Definition Section), Owner shall not Transfer its interest in the
Property to any successor in interest without the express written agreement of the City
that the City's affordable housing interest in the Property will not be jeopardized by
such transfer. To that end, no Transfer shall occur unless a successor in interest
qualifies as a "housing authority" or "similar agency," as those terms are utilized in
Colorado Revised Statutes § 38-12-301, or to any other party as a result of a signed and
recorded voluntary agreement, pursuant to which such successor shall agree to be
legally bound by rent restrictions.
Owner shall inform the City, in writing or via e-mail within thirty (30) days prior to any
Transfer.
City Manager with copy to:
Director of Housing and Human Services
City of Boulder
P.O. Box 791
Boulder, CO 80306
FirnhaberK(a',bouldercolorado.2ov
CMO Fax: 303-441-4478
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Owner acknowledges that failure provide the City with at least thirty (30) business days
in advance of any Transfer could result in enforcement actions as described in
Paragraph 13.
11. City's Rieht to Acquire Owner's Interest: In the case of potential or actual foreclosure,
the City shall reserve the option to acquire the Property. The parties agree to the
following provisions related to foreclosure or foreclosure prevention:
A. Owner shall give immediate notice to the City upon the first to occur of: (a) the date
any notice of foreclosure is provided to the Owner or any foreclosure is commenced
against the Property under any first deed of trust, or (b) the date when the Owner
becomes 21 days late in making a payment on any indebtedness encumbering the
Property required to avoid foreclosure of the first deed of trust.
B. At any time within sixty (60) days after receipt of any notice described in
Subparagraph I IA above, the City may (but shall not be obligated to) proceed to
make any payment required in order to avoid foreclosure or needed in order to
redeem the Property after a foreclosure. Upon making any such payment, the City
shall succeed to all rights of the Owner to the Property and shall assume all of the
Owner's rights and obligations under the first deed of trust, subject to the terns of
this Covenant. In such event, Owner shall forthwith quit the Property and
relinquish possession thereof to the City.
City's rights above to assume all of the Owner's rights to the Property may only be
exercised after the commencement of foreclosure proceedings with respect to
Owner's interest in the Property,which are not dismissed within ninety (90) days.
C. Owner shall repay to the City of all sums paid by the City in connection with the
redemption of the first deed of trust, and all other sums reasonably expended by the
City in relation to the Property, plus one percent simple interest from each date of
expenditure. This redemption may only occur within one of the following time
periods from the date when the City made the first of any payments due pursuant to
Subparagraph 1113, whichever period is longer: (1) twelve months; or (2) the
period of time allowed by Section 38-38-302 C.R.S., or any successor statute, for
redemption by the foreclosed-upon Owner of real property that has been sold
pursuant to the foreclosure of a deed of trust or mortgage. As of the date of such
redemption, Owner shall re-assume all of its rights and obligations under the
collateral assignment of note and deed of trust. At the end of such twelve-month
period, if the Owner's interest has not been so redeemed, all right, title and interest
of the Owner in the Property shall be extinguished, and Owner shall execute a
warranty deed to the City to evidence transfer of the Property to the City. If the
Owner fails or refuses to execute such warranty deed after being sent a written
request therefor by the City, the City may execute it on behalf of the Owner as the
Owner's attorney-in-fact.
12. Enforcement Actions: This Covenant may be specifically enforced against the Owner
or any successor in interest of the Owner. Venue for such action shall be proper in
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Boulder County. Enforcement actions may include, without limitation, repayment of
City-determined overcharges to tenants, eligibility for future funding, or lawsuit.
13. Indemnification: Owner shall defend, indemnify and save harmless the City from and
against all losses, claims, suits, judgments or liabilities incurred as a result of the
Owner's actions or failures to act in connection with this Covenant, and as part of such
indemnification obligation shall pay all costs and attorney's fees, if any, incurred by the
City as a result of any such claims or suits; provided, however, that the Owner shall not
be required to indemnify the City from any losses, claims, suits,judgments or liabilities
arising from the gross negligence or intentional misconduct of the City or its agents or
employees. The time of attorneys and legal assistants in the Boulder City Attorney's
Office spent on any such claims or suits shall be paid for in accordance with generally
prevailing attorney's fees charged in Boulder County for similar services.
14. Compliance with Laws: Owner shall comply with all applicable laws and regulations of
the City, State, and Federal governments.
15. Property Standards: Owner shall maintain the Property in good, safe, and habitable
condition in all respects, except for normal wear and tear, and in full compliance with
all applicable laws, ordinances, rules, and regulations of any governmental authority
with jurisdiction over matters concerning the Property including but not limited to
applicable housing quality standards, Uniform Physical Conditions Standards and City
code requirements.
16. Reporting Requirements: Owner shall comply with annual reporting requirements of
the Division of Housing, or any successor City of Boulder department or agency and
agrees to all City rental requirements found in the Rental Compliance Manual.
A. Quarterly Progress Reports: Reports shall be due January 31, April 30, July 31
and October 31 until all funds have been fully expended.
B. Annual Tenant Reports: Owner shall submit an annual tenant report upon
completion of lease-up and annually thereafter, due January 31 each year. The
report shall include but not limited to:
i. Ethnic characteristics
ii. Racial characteristics
iii. Age of head of household
iv. Female head of household
V. Household size
vi. Combined household income
vii. Combined household assets
viii. Source of all assets
ix. Student status
X. Disabled household: "Disabled Household" is a household composed of
one or more persons at least one of whom is an adult who has a
disability. A person is considered to have a disability if the person is
determined to have a physical, mental or emotional impairment that:
a) Is expected to be of long, continued and indefinite duration;
b) Substantially impedes their ability to live independently; and
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c) Is of such a nature that the ability could be improved by more
suitable housing conditions; OR
d) Has a developmental disability defined in Section 102 of the
Developmental Disabilities Act and Bills of Rights Act.
Notwithstanding the foregoing, the Owner shall not be required to submit any of the
data above to the extent that collection and submission of such data is in violation of
federal, state or local law.
17. Records & Retention Requirements:
A. Retention: Owner shall retain complete records for the most recent five-year
period showing the extent to which applicants have applied for or participated in
the program. The documentation retained shall be sufficient to support the
information provided by the Owner to the City.
B. Records: Owner shall require documentation to verify the income status of all
residents of the affordable rental units. Documentation may include, but is not
limited to, third party income verification, W-2's, Supplemental Security
Income, Social Security Disability Income, child support and pay stubs.
C. Access: Owner shall allow access to these records at any time during normal
business hours by the City upon reasonable advance notice (for which 48 hours
advance notice shall be deemed to be reasonable). These records will be kept in
the Owner's local office.
18. Lease Requirements: Owner shall ensure that leases between the Owner and tenants of
the specified permanently affordable units must be for not less than one year unless
mutually agreed upon by the Owner and tenant. The form of lease and any subsequent
form of addenda must be reviewed and approved by the City prior to execution.
19. Prohibited Lease Terms: No residential lease for the Property or any part thereof may
contain any of the following provisions:
A. Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the
owner in a lawsuit brought in connection with the lease;
B. Agreement by the tenant that the owner may take, hold or sell personal property of
household members without notice to the tenant and a court decision on the rights
of the parties. This prohibition does not apply to an agreement by the tenant
concerning disposition of personal property remaining in the housing unit after the
tenant has moved out of the unit. The Owner may dispose of this personal property
in accordance with state law;
C. Agreement by the tenant not to hold the Owner or the Owner's agents legally
responsible for any action or failure to act, whether intentional or negligent;
D. Agreement of the tenant that the Owner may institute a lawsuit without notice to the
tenant;
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r
E. Agreement by the tenant that the Owner may evict the tenant or household members
without instituting a civil court proceeding in which the tenant has the opportunity
to present a defense, or before a court decision on the rights of the parties;
F. Agreement by the tenant to waive any right to a trial by jury;
G. Agreement by the tenant to waive the tenant's right to appeal or to otherwise
challenge in court a court decision in connection with the lease; and
H. Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant
wins in a court proceeding by the Owner against the tenant. The tenant may be
obligated to pay costs if the tenant loses.
20. Termination of Tenancy: Owner shall not terminate the tenancy of a tenant of the
Property except for serious or repeated violation of the terms and conditions of the
lease; for violation of applicable federal, state or local law; or for other good cause.
Any termination must be preceded by not less than thirty (30) days' notice by service
upon the tenant from the Owner specifying the grounds for the action.
21. Affirmative Marketing: Owner shall affirmatively market the residential units to all
people, regardless of sex, handicap and familial status, consistent with the City of
Boulder's Affirmative Marketing Plan for Permanently Affordable Units, as it may be
amended.
22, Tenant Selection Plan: Owner shall adopt written tenant selection policies and
procedures for the residential units that are consistent with the City of Boulder's Tenant
Selection Policies, as it maybe amended.
23. Wait List Requirement: Owner shall create and maintain a waiting list for the
residential units that is consistent with the City of Boulder's Tenant Selection Plan for
Permanently Affordable Units, as it may be amended.
24. If any provision of this Covenant shall be held by a court of proper jurisdiction to be
invalid, illegal or unenforceable, the remaining provisions shall survive and their
validity, legality or unenforceability shall not in any way be affected or impaired
thereby.
25. Nothing in this Covenant shall be deemed to create an agency, partnership, joint
venture or employment relationship between the City, BHP and the Owner.
26. Except as otherwise provided in this Covenant, and provided that Owner has failed to
cure its breach of any of its non-monetary covenants, agreements and obligations set
forth in this Covenant within sixty (60) days after receipt of written notice from the
City of the same, or longer if such cure cannot reasonably be made within sixty (60)
days, the City shall have the right (but not the obligation) to enforce by a proceeding at
law or in equity, or by mediation if the parties so agree, all restrictions, conditions,
covenants and charges now or hereafter imposed by the provisions of this Covenant.
Failure by the City or owner to enforce any convent or restriction contained in this
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Covenant shall not be deemed a waiver of the right to do so thereafter. The prevailing
party in any judicial proceeding shall be entitled to reimbursement from the non-
prevailing party or parties, for all reasonable costs and expenses, including attorneys'
fees in connection with such judicial proceeding.
27. The City Manager, or his or her designee, shall have the right, with the Owner's prior
approval, which shall not be unreasonably withheld or delayed, to modify the
conditions of this Covenant to deal with exigent circumstances. The City will notify the
Owner of any proposed changes and provide a sixty (60) day response period to any
proposed changes.
(signature22aa¢e follows)
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N WITNESS WHEREOF, the Owner has caused this Covenant to be duly executed as of the
Effective Date.
HOUSING AUTHORITY OF THE CITY OF
BOULDER, COLORADO, a body corporate and
politic, doing business as Boulder Housing
Partners
By:
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this day of
201, by as
of the Housing Authority
of the City of Boulder, Colorado, a body corporate and politic, doing business as Boulder
Housing Partners.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
I
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CITY OF BOULDER
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney' Office
Date: _ �\-` cp-201
STATE OF COLORADO )
ss.
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this day of
, 201, by the of the City of
Boulder, Colorado, a Colorado municipality.
WITNESS my hand and official seal.
Notary Seal
My commission expires:
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Exhibit A
Legal Description of the Property
Lot 3 Boulder Transit Village Subdivision Replat A, City of
Boulder, State of Colorado
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