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HomeMy WebLinkAboutR-1990-D5732 U.S. Department of Housing and Urban Development• • i • • RESOLUTION NO. D-5732 A RESOLUTION authorizing execution of a grant agreement with the United States Department of Housing and Urban Development for the acceptance of an urban development action grant in connection with the construction of a carbon dioxide hop plant by John I. Haas, Inc. WHEREAS, the City of Yakima, Washington ("City"), has heretofore made application to the United States Department of Housing and Urban Development ("HUD") for an urban development action grant ("UDAG"); and WHEREAS, HUD has issued its preliminary approval of such grant and has offered to the City a grant agreement in the form attached hereto; and WHEREAS, the City has determined that it is in the best interests of the City of Yakima and the citizens of this community that the City of Yakima approve such proposed grant agreement and undertake the activities contemplated thereby; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Yakima: Section 1. The City Council hereby approves acceptance of the UDAG grant agreement attached hereto. The Mayor of the City is hereby authorized to execute such UDAG grant agreement and all other documents necessary and appropriate in connection therewith. Section 2. Appropriate officials of the City are hereby authorized to undertake such actions and execute such documents as are necessary and appropriate to perform the functions and accomplish the objectives contemplated by the attached grant agreement. ADOPTED by the City Council this day of ATTEST: City Clerk K \FWW\25739-83 001\RUDAG (;:;;:ajt-Ai.vudf4- Mayor _2_ 1990. 1 • • • • • • CERTIFICATE , the undersigned, Clerk of the City of Yakima, Washington (the "City") and keeper of the records of the City Council (herein called the "Council"), DO HEREBY CERTIFY: 1. That the attached resolution is a true and correct copy of Resolution No. D—G73D-- of the Council (herein called the "Resolution"), duly adopted at a regular meeting thereof held on • 1/' the\\ day of Hpr. , 1990. 2. That said meeting was duly convened and held in all respects in accordance with law, and to the extent required by law, due and proper notice of such meeting was given; that a legal quorum was present throughout the meeting and a legally sufficient number of members of. the Council voted in the proper manner for the adoption of said Resolution; that all other requirements and proceedings incident to the proper adoption of said Resolution have been duly fulfilled, carried out and otherwise observed; and that I am authorized to execute this certificate. IN WITNESS WHEREOF, I have hereunto set my hand this Oday of rrkl , 1989. City Clerk PRESTON THORGRIMSON SHIDLER GATES & ELLIS •ATTORNEYS AT LAW • April 10, 1990 VIA EXPRESS MAIL Mr. Fred Stouder Assistant City Manager City of Yakima 129 N. 2nd Street Yakima, WA 98901 5400 COLUMBIA CENTER 701 FIFTH AVENUE SEATTLE, WA 98104-7078 TELEPHONE: (206) 623.7580 FACSIMILE: (206) 623-7022 PECE:iVED (-TY CF YAKPAA APR 1 2 1990 OFFICE OF CITY MANAGER Re: Urban Development Action Grant - John I. Haas, Inc. Carbon Dioxide Hop Plant Dear Fred: We have received the UDAG grant agreement (Grant No. B -87 -AA - 53 -0068) provided by the U. S. Department of Housing and Urban Development with regard to the above project. We have reviewed that agreement, the supporting exhibits and application materials. The proposed grant agreement is consistent with the application made and consistent with the requirements for the tax- exempt financing which has been undertaken with regard to that project through the Yakima County Public Corporation. It is appropriate for the City to accept and authorize the execution of the proposed grant agreement from HUD. Enclosed is a brief resolution for Council action authorizing the approval of the UDAG grant agreement and its execution by the Mayor. I hope the foregoing is of assistance. If any questions arise, please do not hesitate to call. FWW:ml Enclosure K \FWW\25739-83 001\LFS4 10 cc: Mr. John Vanek, w/encl. ELLEVUE WA (206) 453•CO FAX. (206) 6463081 SPOKANE, WA (561) 6241103 FAX. (509) 456-0146 TACOMA, WA (2G5) n2 1E33 FAX. (2)272.13 Very truly yours, PRESTON THORGRIMSON SHIDLER GATES & ELLIS By Forrest W. Walls ANCHORAGE, AK (907) 7761N9 FAX (907) 2761365 A PARTNERSHIP INCLUDING A PROFESSIONAL CORPORA770N PORTLAND, OR (5G3) 236.3203 FAX. (503) 2484015 WASHINGTON, DC (2M) 6213170D FAX. (2�)D1.1 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WASHINGTON, D.C. 20410-7000 OFFocE OF TME Ass/STAHT SECRETARY FOR COMMUNRY P A/ONNG AND DEVELOPMENT Honorable Patricia Bernott Mayor of Yakima Yakima, Washington 98901 Dear Mayor Bernott: SUBJECT: UDAG Grant Agreement City of Yakima, Washington Grant Number B -87 -AA -53-0068 Project Name: Carbon Dioxide Hop Plant R CEIVED CITY OF YAKIV MAR 2 L 1990 OFFICE OF CITY COU Ai Pursuant to the preliminary approval your City received for an Urban Development Action Grant for the above project in the amount of $606,154 I am pleased to forward for your signature four (4) copies of the Grant Agreement setting forth the terms and conditions of the Grant. I have signed the Signature Page of all copies. If the Grant Agreement meets with your approval, kindly sign all four (4) copies on the line indicated on the Signature Page. Please be advised that (1) by Rider to Section 4.01, the Grant Agreement now makes clear reference to the relocation requirements of Section 104(j) of the Housing and Community Development Act of 1974, as amended, and (2) by Rider to Section 11.14, the City is given 60 days to execute and return the Grant Agreement. These changes will be found in Exhibit A to the Grant Agreement. When you have signed the copies of the Grant Agreement, please forward two (2) executed duplicate originals of the Grant Agreement to the appropriate HUD Field Office. The Field Office will then complete the processing of the Grant. Also, one (1) executed duplicate original of the Grant Agreement should be immediately forwarded to: U.S. Department of Housing and Urban Development Office of Urban Development Action Grants 451 Seventh Street, S.W., Rom 7244 Washington, DC 20410 Your attention is particularly directed to Exhibits E and F of the Grant Agreement. Exhibit E sets forth the required evidentiary materials which must be submitted and accepted prior to the use of grant funds and Exhibit F sets forth the performance schedule. You will note that the drawdown of funds from the Letter of Credit is conditioned upon the prior submission and acceptance by HUD of certain evidentiary materials relating to the required commitments. 2 While the execution of the Grant Agreement by HUD obligates the grant funds for this project in the amount stated above, it does not automatically authorize disbursement of the grant funds. Authority for the actual drawdown of any grant funds against your Letter of Credit is contingent upon your 1110 meeting conditions set forth in the Grant Agreement. Unlessotherwise provided for in the Grant Agreement, no costs may be reimbursed out of grant funds until all environmental clearances have been completed and the conditions in the Grant Agreement have been met to HUD's satiTiction. You should also be aware that 24 CFR Section 570.461(f) of the Action Grant program regulations published on February 23, 1982 requires submission of semi-annual progress reports. Such reports are due at HUD Headquarters and at the HUD Field Office servicing your project on April 10 and October 10 of each year until the Closeout Agreement for your project has been signed by you and by the HUD Field Office concerned and received by our Action Grant office. There are two major sections to the semi-annual progress report: Part which is computer-generated at HUD and sent to your project contact person two weeks before the end of each reporting period; and Parts II through VII on which you provide the latest narrative information on specified topics. Detailed instructions and an initial supply of narrative forms are enclosed. Sincerely, Roy 0. Priest Acting Director Office of Urban DeVelopment Action Grants Enclosures UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ASSISTANT SECRETARY FOR COMMUNITY PLANNING AND DEVELOPMENT Office of Urban. Development Action Grants U D A G GPANT AGREEMENT Urban. Development Action, Grant Under Sectior 119 of the Housing and Community Development Act of 1974 (Public Law 93-383, as Amended) Na,e of Recipient: City of Yakima, Washington (Carbon Dioxide Hop Plant) C2 UDhG Grant NUmber: B -87-M-53-0068 Address of Recipient Honorable Patricia Bernott Mayor of Yakima Yakima, Washington 98901 Preliminary Approval Date' September 29, 1989 Amount of Grant I I 5606,154 UDAG OFFICE USE ONLY C183 Reviewer SHINDERMAN C510 Draft Attorney DUNN C520 Draft Typist BROWN C202 First LAC Due Date C:C C180 Obligation Date " , C203 LBC Code S (Single) M (Mutt iple ) C177 HUD Sign Date: DATA SYSTEMS USE ONLY C181 Number of Transactions 1 C198 Corsti-Jctior. Jobs: 139 C196 Retained Jobs C190 New Permanent Jobs: 36 C191 Lo/Mod New Permanent Jobs 23 C192 CETA Qualified New Permanent Jobs 23 C193 Minority New Perm Jobs 3 C174 Private Investment: $11,516,930 C172 Other Public Investment: $ Commencement Dote Completion. Date Land Acquisition. C452 C458 Construction C462 10/30/90 C468 03/31/92 Capital FCuipment C472 10/30/90 C478 03/31/92 Other Activity C482 C488 P DiRLE OF COM TS UDAG GRANT ACREEMEN1 INTROCUCIORS Fede Preamble 1 Recitals 1 ARTICLE I - GENERAL PROVISIONS Page Section 1.01 Contents of Agreement 2 Section 1.02 Exhibits Incorporated 2 Section 1.03 General Definitions 2 ARTICLE II - MOUNT AND AUTHORIZED USS OF GRANT F ILTS P� Section 2.01 Grant Assistance Provided 3 Secti&n 2.02 Authorized Uses of Grant Furds 4 Section 2.03 Adjustments to Grant ands 4 Section 2 04 Recipient's Use of Program Inoue 4 AK.ICLL III - CISEURSEMFNT OF GRAV1 ELMS Page Section 3.01 Letter of Credit Procedures 4 Section 3.02 Incurring Costs for Project Activities 5 Section 3.03 Authorization by the Secretary for the Recipient to 6 Craw Grant Funds I FiICLL IV - COMPLIANCE W1Th FELERAL RUES ANL ULAG REGLLAIICNS lege Section 4.01 Lelegation and Acceptance of Responsibilities 7 Under Federal Rules Section 4.02 Compliance with MAC Regulations 7 ARTICLE V - REPRESC'IATIONS, hT,RRANTIES ANP SPECIFIC CLCIGATIONS Page Section 5.01 Recipient's Representations and warranties 7 Section 5.02 Obligation to Complete Recipient Activities 8 As Scheduled Section 5.03 Obligation to Achieve Projected Jobs 8 Section 5.04 Obligation to Cure Title Defects 9 Section 5.05 Iotification and Action Lpon Default 9 AICICLF VI - INSPECTION AND REVIE. Page Section 6.01 Daty to t,aintain, and Rights to Inspect and Copy, 9 Woks, Records and Documents Section 6.02 Site Visits 9 Section 6.03 Duration of Inspection Rights 9 Section 6.04 Reports S ARTICLE VII-.DE:FALL:S ANL REFILDICS Page Section 7.01 Defaults 10 Section 7.02 Remedies Upon Default 10 ARTICLE VIII - CERIIFICATIC S EY RECIPIEATT Rage Section 8 01 Section 8.02 Section 8.03 Certifications Upon Draw of Fuhls Certification After Completion of All Recipient Activities Certification After Completion of A11 Non -Recipient Activities 10 11 11 Al- • • • • • • TABLE OF CJ TU FI5 - Continued ARTICLE IX - THIRD PARTY CXrTIRPCC REf,UIROlEMS Page Section 9.01 Escrow of Program Inane 11 Section 9.02 Progtan Inane Applied to Costs 11 Section 9.03 Program Income for Title I Activities 11 Section 9.04 Assurance of Governmental Approvals 12 Section 9.05 C37npletion of Project 12 Section 9.06 Assurances of Projected Jabs 12 Section 9.07 Maintaining Records and Right to Inspect 12 Section 9.08 Access to Project 12 Section 9.09 !o Assignment or Succession 12 Section 9.10 Secretary Approval of Amendments 13 Section 9.11 Disclaimer of Relationships 13 Section 9.12 Limitation of Recipient Liability for Project 13 Activities Section 9.13 Conflict of Interest 13 Section 9.14 Project Signs 13 ARTICLE X - EVIDENTIARY MATERIALS Section 10.01 CQmitments of Participating Parties - General 13 Section 10 02 Form of Documentary Evidence - General 14 Section 10.03 Opinions of Recipient's Counsel 14 Section 10.04 Evidence of Contracts - Form 14 Section 10.05 Evidence of Loan Commitments - Form 14 Section 10.06 Evidence of Loans - Form 15 Section 10.07 Evidence of Liquid Assets - Form 15 Section 10.08 Evidence of Finances Satisfactc:ry to 16 Counsel - Form Section 10.09 Anti -Speculation Provisions - Sale of 16 Real Property Section 10.10 Evidence of Title to Real Property - Foam 16 AFCLICLE XI - I.ISCELIANYncci Section 11.01 Notices 17 Section 11 02 Assignment 17 Section 11.03 Successors Saud 17 Section 11.04 Remedies Not Impaired 17 Section 11.05 Cumulative Remedies 17 Section 11.06 Severability 17 Section 11.07 Entire Agreement 18 Section 11.06 Execution in Counterparts 18 Section 11.09 Table of Contents; Titles and headings 18 Section 11.10 Amendment of this Crant Agreement 18 Section 11.11 Disclaimer of Relationships 18 Section 11.12 Governing Law 18 Section 11.13 haiver by Secretary 18 Section 11.14 Effective Cate 18 Section 11.15 Termination of Crant Agreement 19 EJHHI EI T A EXFII SIT b DUiIEIT C uail BIT C EXhILIT E EXHIBIT F SCHEDULE OF EKLIEITS SUPPLEhENTARY PR3VISICAS EESCRIP.ICN OF RFCIPIEM ACTMTIES CFSCRIPTIOt. OF NLN-ELC:IPIENT ACIIVITIES FHWEC1 ECL+GET - SUMMARY OF' PROPCSLC E.XPENCITtIiiS REWIRED EVIDENTIARY MAMERIALS FRDJECT PERFORMANCE SCRUM Revised 6/81 ii PREAMBLE 1FIS CRAP Eij.0 i is made and entered into by and between TEL SECNITARI CF MUSING ANL URBAN DEVELOPMENT, acting by and through the Assistant Secretarl for Ca munity Planning and Development, as representative of the United States of America, and the RECIPIENT. R E C I 1 A L 5 i1 -L RE.CIPIEI ; has applied to the Secretary for grant assistance under the LEAL• Program, to undertake activities which are consistent with the provisions of Section 119 of the Act and the UGAG Regulations; and i}I SLCFZTIFE, it reliance upon the representations set forth in the Application., has aprroved the award of grant funds to the Recipient, to be expendea by the Recipient in conformity with the requirements and provisions of this Crant rees rt; ID CU:SI:EPA-MN of the mut-wit prcmises and covenants contained in this Grant Agreement, the Secretary and the Recipient agree as follows Revised 6/81 • ARTICLE I GENERAL PROVISI0* Section 1.01 Contents of Agreement This agreement shall consist of this Grant Agreement and the Application, as may, from time to time, be amended. Section 1.02 Exhibits Incorporated All exhibits which are referred to in this Grant Agreement and are attached hereto are incorporated herein and made a part hereof. Section 1.03 General Definitions Unless specifically provided otherwise or the context otherwise requires, when used in this Grant Agreement: (1) 'Act' means the housing and Community Development Act of 1974, Pub. L. No. 93-383, as amended. (2) "Application" means the Application Fur Federal Assistance, and such other submittals, as are specified in Exhibit A of this Grant Agreement. (3) "Default" means any default set forth in subsection (a) of Section 7.01 of this Grant Agreement. (4) "Eligible Costs" means costs for the activities specified in Exhibits E and C of this Grant Agreement for which grant funds are budgeted as specified in Exhibit C of this Grant Agreement, provided that such costs (i) are not incurred in connection with any activity which, under 24 C.F.R. Part 570, as may be from time to time amended, are ineligible under the LIAG Program, and (ii) conform to the requirements of Attachment E to Federal Faiagement Circular 74-4 (Cost Principles Applicable to Crants and Contracts with State and Local Government), as may be from time to time amended. For purposes of determining the conformity of costs to said Attachment E, all costs set forth in Section C thereof except for "prearrangement costs" and "proposal costs" (which are eligible only to the extent authorized in Section 570.454 of 24. C.F.F. Part 570) may be considered eligible without prior approval of the Secretary. (5) 'Environmental Conditions" means the conditions imposed by law, particularly 24 C.F.R. Part 58, and the provisions of this Grant Agreement which prohibit or limit the cav itment and use of grant funds until certain procedural requirements have been completed. (6) "Environmental Requirements" means the requirements described in 24 C.F.R. Part 58. (7) "Environmental Studies" means all eligible activities necessary to produce an "environmental document", as that term is defined at Section 1508.10 of 40 C.F.F. Part 1506, or to comply with the requirements of 24 C.F.R. Part 5E. (8) 'Grant Funds" means those funds to be provided by hUC to Recipient pursuant to the terms of this Grant Agreement, as specified in Exhibit A of this Grant Agreement. (9) "HOC" means the United States Department of housing and Urban Development. (10) "Letter of Credit" means the letter of credit to be issued or amended by the Department of the Treasury pursuant to Section 3.01 of this Grant Agreement. Revised 6/81 2 (11) "Abn-Recipient Activities" means those activities of the Project to to carried out by Participating Parties, other than the Recipient or an agent or agency of the Recipient, which activities are described in Lxhibit C of this Grant Agreement. (12) "Participating Party" means any person, firm, corporation or entity identifies as such in Exhibit A of this Grant Agreement. Identification as a "Participating Party" signifies that the Secretary, in selecting the Recipient for the award of this grant, relied in material part upon a representation that the party so identified will complete 6 specified portion of the Project or a specific activity necessary for the completion of the 'Project. (13) "Program Inane" means the UXAG percentage of: (i) any income earned by Recipient, or an agent or agency of Recipient, fro:, the disposition cf real or personal property acquired in whole or in part with grant funds; (ii) the repayment proceeds (including principal and interest) of any loan made in whole or in Fart with grant funds; (iii) any other revenues defined as program income in 24 C.t.R. Part 570, Subpart 3, and (iv) any inane from an activity where it is specifically declared in Exhibit A of this Grant Agreement that the income from such activity shall be deemed to be Program Income. The "L%LAG percentage" means an amount computed by applying the percentage of participation of grant funds in the total cost of acquisition of property, in the total amount of a loan, or in the total cast of an activity, to the income from the disposition of such property, the total repayment proceeds of such loan, or the income fret such activity (14) "Pockets of Poverty Project" r..eans a Project approved based on an application submitted and approved pursuant tc Section 119(b)(2) of the Act. (15) "Project" rreans the activities described in the Application and in Exhibits E, C and t ot this Crant Agreement which are tc be carried out to meet the objectives of the Li.0 Program. (16) "recipient" means the local governrental entity receiving grant funds pursuant to this Grant Agreement, as more particularly identified on the cover page ot this Grant Agreement (17) "Recipient Activities" means those activities of the Project to be carried out by the Fecipient, or an agent or agency of the Fecipient, which activities are described in Exhibit E of this Grant Agretr:ent. (16) "Secretary" means the Secretary of fousiny and Urban Development or any other official of LLL to whom the Secretary has &legated authority to act with respect to matters covered by this Grant Agreement. (19) 'LEAD Program^° means the Urban Development Action Crant Program established by )tit pursuant to Section 119 of the Act. (20) "LCAC Regulations" means the regulations set forth in 24 C.F R. >•art 570, Subpart C, as the same ray, from time to time, be amenaec. AA:ICL.L II AECU... A1:L AL'IilLIFS2ir USES OF C3tAt : FELE Section 2.01 Grant Assistance Provided In consideration of the various obligations undertaken by the Fecipient pursuant to this Grant Agreement, and in consideration of the obligations to be undertaken by Participating Parties, as represented by the Recipient in the Application, the Secretary agrees, subject to the terms and conditions set forth herein, to provide the Recipient with grant funds in the amount specified in Exhibit A of this L,rant Agreement. Revised 6/81 Section 2.02 rized Uses of t The grant funds provided to the Recipient pursuant to this Grant Agreement shall be used only for the specific purposes described in Exhibits b and C of this Grant Agreement and in the amounts budgeted in Exhibit D of this Grant Agreement, subject to the project amendments provisions of the UDAG Regulations. Section 2.03 Adjustments to Grant Funds The amount of grant funds which the Secretary has agreed to provide to the Recipient under this Grant Agreement has been determined by the Secretary in reliance upon the cost estimates of the Recipient with respect to the activities set forth in the Application and the investment commitments of Participating Parties. The Secretary reserves the right to reduce the grant amount (i) to conform to any revision to which the Recipient and the Secretary may agree with respect to Exhibits B, C or C of this Grant Agreement, (ii) if the actual costs for activities are lower than those set forth in Exhibits B, C or L of this Grant Agreement, or (iii) if the investment by Participating Parties is less than the amounts specified in Exhibits B, C, C or E of this Grant Agreement. Section 2.04 Recipient's Use of Program Income (a) In order to provide funds to assure completion of the Recipient Activities, the Secretary shall have the right to require all Program Income received by the Recipient, or by any Participating Party, prior to the completion of all Recipient Activities, to be deposited in escrow under arrangements approved by the Secretary. The Secretary may exercise said right either by specifying such requirement in Exhibit A of this Grant Agreement or by separate written instructions to the Recipient delivered at any time prior to the completion of all Recipient Activities and the draw of grant funds to pay costs incurred for such activities. (b) Unless otherwise specifically stated in Exhibit A of this Crant Agreement, all Program Income which is received by the Recipient or any Participating Party, prior to oo pletion of all Recipient Activities shall be used prior to, and in place of, any draw under the Letter of Credit to the extent adequate to pay costs so incurred (c) Unless otherwise specifically stated in Exhibit A of this Grant Agreement or in the close -cut agreement between the Recipient and HUE', all Program Incase received by the Recipient, or any Participating Party, after the completion of all Recipient Activities shall be used by the Recipient, or the Participating Party subject to the approval of the Recipient, for community or economic deAelopnent activities eligible for assistance under Title I of the Act. (d) For Pockets of Poverty Projects, all Program Marne received by the Recipient, or any Participating Party, after the completion of all Recipient Activities shall be used only for activities which directly benefit low- and moderate -income residents of the pocket. APTTCLL III CISEURSEVENT OF GRAFT FINES Section 3.01 Letter of Credit Procedures (a) Promptly after the Secretary has received from the Recipient not less than three (3) fully executed copies of this Grant Agreement and has approved evidentiary materials required by Inhibit E of this Grant Agreement that would allow a drawdown of grant funds pursuant to the terms of Exhibit F of this Grant Agreement, the Secretary shall cause a Letter of Credit to be issued to the Recipient by the Department of the Treasury, or shall cause the Letter of Credit previously issued to the Recipient by the Department of the Treasury with respect to the Community Revised 6/81 4 Development Block Grant Program under Title I of the Act to be increased, in accordance with procedures established by the Department of the Treasury, in an amount not to exceed the amount of grant funds referenced in Section 2.01 and specified in Exhibit A of this Grant Agreement. (b) The authorization to use the Letter of Credit and to prey costs out of grant funds shall be governed by the provisions of this Grant Agreement and shall be subject to all conditions precedent to the Recipient's draw of grant funds which are specified in this Grant Agreement. The Recipient shall not draw upon the Letter of Credit until the Secretary has authorized the Recipient to draw pursuant to Section 3.03 of this Grant Agreement. (c) The Recipient is authorized to draw grant funds against the Letter of Credit only in accordance with the provisions of this Grant Agreement and the procedures established by the Secretary and the Department of the Treasury. No payment by the Department of the Treasury of an improper or unauthorized draw to the Recipient shall constitute a waiver of the right of the Secretary to challenge the validity of such draw, to enforce all riyhts and remedies set forth in this Grant Agreement, of take corrective or remedial administrative action pursuant to the UDAG Regulations, which action may include, without limitation, suspension or termination of the Recipient's funding under this Grant Agreement, (d) The disposition of any grant funds that remain available under the Letter of Credit following completion of the Project, or the termination of this Grant Agreement by the Secretary, or its termination for any cause, shall be in accordance with close-out procedures then in effect or established by the Secretary, and the Recipient shall not have any rights to such grant funds. Section 3.02 Incurring Costs for Project Activities (a) The use of grant funds is conditioned upon the Recipient incurring costs to be paid in accordance with this Grant Agreement or as otherwise approved by the Secretary in writing. The incurring of costs to be paid out of grant funds shall be governed by the following: (1) Except for the cost of application preparation for small cities as specified in the UD4G regulations, no costs incurred prior to the preliminary approval date may be paid out of grant funds. (2) After the preliminary approval date, eligible administrative costs, including out not limited to costs of Environmental Studies, and costs incurred by Participating Parties, other than the Recipient, its agent or agency, for any activity not t� be paid for in whole or in part with grant funds, may be incurred before or after the effective date of this Grant Agreement, as defined in Section 11 14 below, and the satisfaction of environmental conditions. (3) Except as permitted by 24 C.F.R. part 58, no other costs to be paid out of grant funds may be incurred by the Recipient or any Partici- pating Party until all Environmental Conditions of 24 C.F R. Part 58 have been fully satisfied and the Secretary has issued the environmental releases required by 24 C.F.R. Part 58. (4) After the Recipient has satisfied all of the Environmental Conditions and the Secretary has issued the required environmental releases, then at any time after the Preliminary Approval Date for this Project, the Recipient and the Participating Party may incur eligible costs to be paid out of grant funds. 5 Revised 6/81 (b) The authozisatian to ince costs in subsection (a) above is not an authorisation to reimburse those costs and does not moan or imply that such costs will be reimbursed out of grant funds. The Recipient and Participating Parties may voluntarily, at their own risk, and upon their own credit and manse, incur oasts as authorized in subsection (a) above, but their authority to reimburse or to be reit:burted out of grant Hada shall be governed by the provisiass of this Gant Agreement apglicahle to the payment of costs and the release of funds by the Secretary. (c) Neither the Recipient nor any Participating Party shall incur any coats in =mection with any activity to be paid for, in whole or in part, with grant funds, even though such costs will not be reimbursed out of grant funds, unless such costs could be incurred pureuent to subsections (a) of this Section 3.02 if such costs were to be paid out of grant funds. (d) Prior to the issuance by the Secretary of the envirorrental releases required by 24 C.F.R. Part 58, the Recipient may not use any funds, including local funds, to take any action with respect to the Project where such action might have an adverse environmental effect, would limit choices ammnq competing alternatives, or might alter the envir:oriental premises on whirls the pending clearance is based in such a fashion that the validity of the conclusions to be reached would be affected Section 3.03 Authorization by the Secretary for the Recipient to Draw Grant Funds (a) No costs may be paid out of grant funds prior to the issuance by the Secretary of the environmental releases required by 24 C.F R. Part 58, a written, approval by the Secretary of required evidentiary materials as specified in Exhibits E and F of this Grant Agreement, and written authorization from the Secretary to draw grant funds under the Letter of Credit. (b) A11 certifications and other materials required by this Gant Agreement to be submitted to the Secretary as oanditicns precedent to the Recipient's authority to pay ousts out of grant funds shall be submitted by the Recipient prior to any draw of grant funds under the Letter of Credit. (c) Unless Exhibit E or F of this Grant Agreement authorizes the phasing or staging of the Recipient's draw of grant funds, than upon a firing by the Secretary that the Recipient has submitted, in a timely manner and in acceptable form and content, all of the evidentiary materials specified in Exhibit E of this Grant Agreement and upon approval by the Secretary of said evidentiary materials; and if no default has occurred, as defined in subsection (a) of Section 7 01 of this Grant Agreement, the Secretary shall promptly issue to the Recipient a written authorization to draw grant funds under the Letter of Credit for the purposes authorized by this Grant Agreement. (d) If Exhibit E or F of this Grant Agreement authorizes the phasing or staging of the Recipient's draw of grant funds, then upon a finding by the Secretary that the Recipient has submitted, in a timely manner and in acceptable form and content, all of the evidentiary materials specified in Exhibit E of this Grant Agreement to be submitted to and accepted by the Secretary for any particular phase or stage of the draw of grant funds; and upon approval by the Secretary of said evidentiary materials; and if no default has occurred, as defined in subsection (a) of Section 7.01 of this Grant Agreement, the Secretary shall promptly issue to the Recipient a written authorization to draw grant funds under the Letter of Credit in accordance with any requirements or authorizations described in Exhibit E or F respecting the partirrnlit* phase or stage of the drew of grant funds. (e) Prior to the Recipient's payment of any costs with grant funds, and prior to the Recipient's drawing of any grant funds under the Letter of Credit, the Recipient shall not have been served by the Secretary with any notice suspending the Recipient's authority to draw grant funds under the Letter of Credit, nor be in breach of the Recipient's obligation to report a default, pursuant to subsection (a) of Section 5.05 of this Grant Agreement Revised 6/81 ARTICLE IV COMPLIANCE WITH FEDERAL MULES AND tA!AG REGULATIONS Section 4.01 Delegation and Acceptance of Responsibilities Under Federal Rules By its execution of this Grant Agreement, the Recipient represents and warrants that it has the legal capacity to assume the responsibilities for acuplianoe with all applicable Federal rules and agrees and undertakes to assure and carry out all such responsibilities in .000rdanoe with all the reguirecants which are or may be established pursuant thereto. Section 4.02 Compliance with tn-G Regulations The Recipient shall comply with the.UDAG regulations, including the certifications specified therein. AEFICLE V WARRANT ES, AND SPECIFIC OBLIGATIONS Section 5.01 Recipient's Iieprasentaticns and warranties The Recipient has, by and through consultations among all appropriate members of the Recipient's governing body and its officers, examined into each of the following and by its execution of this Grant Agreement the Recipient does, upon information and belief, represent and warrant to the Secretary that (1) The Recipient is duly organized and validly existing under the laws.of the jurisdiction of which the Recipient is a part, and has all requisite power and authority to ester into this Grant Agreement. (2) A resolution, notion, cedar or ordinance has been duly adopted, passed or enacted as an official act of the Recipient's governing body,, authorizing the execution and delivery of this Grant Agreement by the Recipient and authorizing and directing the person executing this Grant Agreement to do ab for and on behalf of the Recipient (3) This Grant Agreement has been emea tad and delivered by the Recipient, in such manner and fora as to comply with all applimihlos laws to maks this Grant Agreement the valid and legally binding act and agreement of the Recipient. (4) Except as set forth in Exhibit A of this Grant Agreement, there is no action, proceeding, or investigation now pending, nor any basis therefor, known or believed to exist by the Recipient, which (i) questiona the validity of this Grant Agrearent, or any action taken or to be taken Hander it, or (ii) is likely to result in any material adverse flange in the authorities, properties, assets, liabilities, or Conditions (financial or otherwise) of the Recipient which would materially and substantially impair time Recipient's ability to perform any of the obligations imposed upon the Recipient by this Grant Agreement. (5) The representations, statements, and other matters contained in the Application were true and complete in all material respects as of the date of filing. Except as est forth in Exhibit A of this Grant Agreement, the Recipient is aware of no event which weld require any amendment to the Application (other than an amendment which hu been filed with and approved by the Secretary.) in order to make such reprasentatiorns, statements, and other matters true and complete in all material respects and not misleading in any material respect. She Recipient is aware of no event or other fact which should have been, and has not been, reportad in the Application as material information: (6) The Recipient has obtained, or has rasa:noble asauranoes that it will obtain, all Federal, Stats and lural goverment approvals and reviews required by lar to be obtained by the Recipient for the Project; and all Participating Parties have obtained, Cr the Recipient has redeemable assurances that such Participating Parties will obtain, all such appzovals and reviews required by law to be obtained by the Participating Parties for the Project. Revised 6/81 7 (7) Insofar as the capacity of the Recipient to carry out any obligation under this Grant Agreement is concerned, (i) the Recipient ie not in material violation of its Carter, ob any mortgage, indenture, agreement, instrument, judgment, decree, order, statute, rule ar regulation and (ii) the execution and performance of this Grant Agreement will not result in any such violation. (8) swept for approved eligible administrative and personnel costs, no member, officer, or employee of the Recipient, or its designees, or agents, no consultant, no member of the governing body of the Recipient or the locality in which the program is situated, and no other public official of the Recipient or such locality or localities, who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure, or who is in a position to participate in a deciaicnmaking process or gain insider information with regard to the project, stall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the Project or in any activity, or benefit therefrom, which is pert of this Project at any time during or after such person's tenure. This provision shall be in addition to the require- ments in Attachments 0 of OP® Circular A-102 and A-110. (however, upon written request of the Recipient, the Secretary may agree in writing to waive a conflict otherwise prohibited by this provision whenever there has been full public disclosure of the conflict of interest, and the Secretary determines that undue hardship will result either to the Recipient or the person affected by applying the prohibition and that the granting of a waiver is in the public interest. No such request for a waiver shall be made by Recipient which would, in any way, permit a violation of State or local law or any charter provision of the Recipient ) Section 5 02 Obligation to Complete Recipient Activities as Scheduled (a) The Recipient shall use its best efforts to assure the completion of the Recipient Activities described in Exhibit B of this Grant Agreement within the time periods specified in Exhibit F of this Grant Agreement. (b) The Recipient agrees that the foregoing undertaking and assurance means that Recipient shall, to the maximum extent permitted by law, use and apply all of its governmental and proprietary powers for such completion, including but not limited to those powers governing taxes, other revenues, credit, eminent domain and appropriations, if necessary, for the purpose of providing any shortfall between funds available under this grant and funds necessary to complete all of the Recipient Activities described in Exhibit B of this Grant Agreement. Section 5.03 Obligation to Achieve Projected Jobs (a) In selecting the Recipient for this grant, the Secretary considered certain representations by the Recipient to the Secretary that this grant is expected to create a specific number of permanent new job opportunities, including a specific number of new permanent job opportunities for minorities, CETA-eligible persons, and persons who, at the time of their employment, will be persons of low- or moderate -income within the meaning of Section 570 3 of 24 C.F R. Part 570, as may be from time to time amended (b) The Recipient acknowledges its representations in the Application pertaining to the creation of jobs and obligates itself to use its best efforts to create, or cause to be created, the numbers and kinds of jobs within a specified time period as specified in Exhibit A of this Grant Agreement as being expected to be created through this grant. (c) For Pockets of Poverty Projects, Recipient shall ensure that at least 75 percent of all permanent jobs initially resulting from the Project are provided to low- and moderate -income persons and that at least 51 percent of all permanent jobs initially resulting frau the Project are provided to low - and moderate -income residents from the pocket. Recipient shall continuously use best efforts to ensure that at least 75 percent of all permanent jabs resulting from the Project are provided to lar- and moderate -income persons and that at least 51 percent of all permanent jobs resulting frac the Project are provided to lour and moderate -income residents from the Pocket. (d) The Recipient obligates itself to use all powers availaole to 8 Revised 6/81 Recipient to enforce the undertakings or assurances of Participating Parties respecting the creation of jots which are specified in Exhibit A of this Grant Agreement. Section 5.04 Obligation to Cure Title Defects (a) The Recipient shall use its best efforts to promptly cure, or cause to be cured, any defect in the title to any real property necessary to the completion of Recipient Activities, where such defect will or may have a material adverse effect on the use of such real property for the Project. (b) The Recipient agrees that the foregoing obligation means that the Recipient shall, to the maximum extent permitted by law, use and apply all of its governmental and proprietary powers, including but not limited to those powers governing taxes, other revenues, credit, eminent domain and appropria- tions, if necessary, for the purpose of assuring the availability of all real property, free and clear of adverse and inhibiting title defects, which is necessary to complete Recipient Activities. Section 5.05 Notification and Action Upon Default (a) The Recipient shall promptly give written notice to the Secretary upon the discovery by the Recipient of any default involving any Participating Party, as defined in Section 7.01 of this Grant Agreement. (b) Promptly upon the discovery of any default involving any Participating Party, the Recipient shall vigorously pursue, to the fullest extent possible, all remedies available to Recipient to remove or cure such default, or to seek redress or relief from its effects, including reimbursement for any grant funds expended on the Project, and to prevent or mitigate any adverse effects on the Project Recipient shall keep the Secretary fully informed as to the status of such actions ARTICLE VI INSPECTION AND REVIEW Section 6.01 Duty to Maintain, and Rights to Inspect and Copy, Books, Records and Documents (a) The Recipient shall keep and maintain such books, records and other documents as shall be required under rules and regulations now or hereafter applicable to grants made under the UDAG Program, and as may be reasonably necessary to reflect and disclose fully the amount and disposition of the grant funds, the total cost of the activities paid for, in whole or in part, with grant funds, and the amount and nature of all investments related to such activities which are supplied or to be supplied by other sources. (b) All such books, records and other documents shall be available at the offices of the Recipient (except that books, records and other documents of a Participating Party which are subject to this Section 6.01 may be maintained at the offices of such Participating Party) for inspection, copying, audit and examination at all reasonable times by any duly authorized representative of the Secretary or the Comptroller General of the United States. Section 6.02 Site Visits Any duly authorized representative of the Secretary shall, at all reasonable times, have access to all portions of the Project. Section 6.03 Duration of Inspection Rights The rights of access and inspection provided in this. Article VI shall continue until the completion of all close-out procedures respecting this grant, and until the final settlement and conclusion of all issues arising out of this grant. Section 6.04 Reports The Recipient shall promptly furnish to the Secretary all reports required to be filed in accordance with any directives of the Secretary or any statute, rule or regulation of FUD. Recipient shall provide to the HUD Area and Central Offices an annual report on the use of Program Income as long as such funds are generated by the Project. ARTICLE VII DEFAULTS AND REMEDIES Section 7.01 Defaults A default shall consist of any use of grant funds for any purpose other than as authorized in Exhibits B, C and D of this Grant Agreement; or any breach of any covenant, agreement, provision, or warranty of (i) the Recipient made in this Grant Agreement; (ii) the Recipient made in any agreement entered into between the Recipient and any Participating Party relating to the Project; (iii) any Participating Party made in any agreement specified in Exhibit E of this Grant Agreement, or; (iv) the performance schedule specified in Exhibit F of this Grant Agreement. Section 7.02 Remedies ',loon Default (a) Upon occurrence of any default as described in Section 7.01, the Secretary may suspend the Recipient's authority to draw any Grant Funds under the Letter of Credit at any time by notice to the Recipient. If a default is not cured within thirty (30) consecutive days frau notice of such default by the Secretary to the Recipient, the Secretary may continue such suspension or by delivery of notice terminate this Grant Agreement. In the event of a termination, the Recipient's authority to draw grant funds under the Letter of Credit shall have terminated at the dale of the notice of termination and the Recipient shall have no right, title or interest in or to any grant funds remaining under the Letter of Credit. (b) In addition to any other rights or remedies, if a default consists of the Recipient's failure to submit the evidentiary materials described in Exhibit E of this Grant Agreement by the date specified in Exhibit F of this Grant Agreement, the Secretary shall have the right to terminate this Grant Agreement and the award of grant funds to which this Grant Agreement relates by delivery of written notice to the Recipient. Upon such termination, all obliga- tions of the Secretary pursuant to this Grant Agreement and such award shall cease and the Recipient shall neither have nor retain any rights whatsoever with respect to the grant funds provided under this Grant Agreement. (c) If a default occurs, the Secretary may at any time or frau time to time proceed to protect and enforce all rights available to the Secretary under this Grant Agreement by suit in equity, action at law, or by any other appropriate proceedings, whether for specific performance of any covenant or agreement contained in this Grant Agreement, or damages, or other relief, or proceed to take any action authorized or permitted under applicable law or regulations, including the recapture of any expended grant funds from any payments received by Recipient as a result of the default of any Participating Party. (d) The rights and remedies available to the Secretary in the event of a suspension or termination of this Grant Agreement shall survive such suspension or termination. ARTICLE VIII CERTIFICATICr1S BY RECIPIENT Section 8.01 Certifications Upon Draw of Funds Execution by the Recipient of each request for a draw of grant funds under the Letter of Credit shall constitute a certification that: (1) A11 of the representations and warranties of the Recipient as set forth in Section 5.01 of this Grant Agreement continue to be valid, true, and in full force and effect. (2) The Recipient is in compliance with all of the Recipient's obligations specified in this Grant Agreement which, by their terms or intent, are applicable at the time of the draw of grant funds. 10 Revised 6/81 (3) A11 conditions precedent to the Recipient's authority to draw the grant funds shall have been satisfied, in accordance with Section 3.03 of this Grant Agreement. (4) The grant funds to be drawn will be used for Eligible Costs actually incurred in accordance with the provisions of Exhibits 6, C and D to this Crant Agreement. (5) All Program Inane which has been received by the Recipient or by a participating party has been deposited or used in accordance with the provisions of Section 2.04 of this Grant Agreement. Section 8.02 Certification After Carpletion of all Recipient Activities Within thirty (30) days after the completion of all Recipient Activities, the Recipient shall submit to the Secretary a written certification, executed by the chief executive officer of the Recipient, stating that all Recipient Activities, have been completed consistent with the terms of this Grant Agreement, and specifying the date of completion and the cost for each Recipient Activity. Section 8.03 Certification After Completion of All Non -Recipient Activities Within thirty (30) days after the completion of all ton -Recipient Activities, the Recipient shall submit to the Secretary a written certification, executed by the chief executive officer of the Recipient, stating that all Pon- Pecipient Activities, have been completed consistent with the terms of this Grant Agreement, and specifying the date of completion and the cost for each Non -Recipient Activity. The certification shall have attached to it a statement from each Participating Party that the information in the certification with respect to the non -Recipient l.ctivities carried out by that Participating Farty is complete ant correct AW,ICL. IX ihIRL PARA LQ ZRACa RICLIRDUL t.S Section 9.01 Escrow of Program Intone The Recipient shall include in all contracts with Participating Parties involving activities to be paid for with grant funds, a provision that, upon instruction by the Secretary, all Program Incase received by the Participating Party, prior to the completion of all Recipient Activities, shall be deposited in.escrow under arrangements approved by the Secretary, in order to provioe funds to assure the completion of the Recipient Activities. Section 9.U2 Program income Applied to Costs Ihless Exhibit A of this Crant Agreement authorizes or requires otherwise, the Recipient shall include in all contracts with Participating Parties involving activities to be paid for with grant funds, a provision that all PLuycam Income received by the Participating Party, prior to the completion of all Recipient Activities, shall be transmitted to the Recipient for payment of costs incurred for Recipient Activities Section 9.03 Program Income for Title I Activities Unless Exhibit A to this Crant Agreement authorizes or requires otherwise, the Recipient shall include in all contracts with Participating Parties involving activities to be paid for with grant funds, a provision that all Program Inca a received by the Participating }arty after the completion of all Recipient Activities shall, at the option of the Recipient, either be transmitted to the Recipient, or used by the Participating Party with Recipient approval, for community and economic development activities which would be eligible for assistance under Title I of the Act, unless otherwise provided in the close-out agreement between Recipient and HLC. Revised 6/81 11 Section 9.04 Assurance of Governmental Approvals The Recipient shall include in all contracts with Participating Parties a warranty that the Recipient and each Participating Party has obtained, or has reasonable assurance that it will obtain, all Federal, State and local governmental approvals and reviews required by law to be obtained by the Recipient or Participating Party for the Project. Any such approvals or reviews which have not been obtained shall be specified in the contract. Section 9.05 Completion of Project The Recipient shall cause to be included in all contracts with Participating Parties a representation on the part of each Participating Party that the Participating Party acknowledges that the Secretary, in selecting the Recipient for the award of this grant, relied in material part upon the assured completion of the Project and that the Participating Party assures the Recipient that such activities will be completed by the Participating Party. Section 9.06 Assurances of Projected Jobs (a) The Recipient shall either include in all appropriate contracts with Participating Parties, or shall secure in the mort legally binding and enforceable form for such assurance available under the laws of Recipient's State, written assurances frau each Participating Party that such Participating Party will use its best efforts to create or cause to be created, within a time specified in Exhibit A of this Grant Agreement, a specified number of new permanent job opportunities, including a specified number of new permanent job opportunities for minorities, CEZA-eligible persons, aro persons who, at the time of their employment, will be persons of low -and moderate -intone. (b) For Packets of Poverty Projects, Recipient shall also includ► assurances necessary to comply with Section 5 03(c) of this Grant Agreement. A11 assurances shall (i) state that in order to assist and enable the Recipient to report to the Secretary, as the Secretary may require, the assuring Partici- pating Party agrees to report to the Recipient, as the Recipient nay from time to time require, on the nurrrbers and kinds of such jobs created or caused to be created and filled, and (ii) contain such other provisions as may be required by the Recipient to enable the Recipient to comply with any reporting require- ments of the Secretary and to cause the assurances to be legally binding and enforceable to the maximum extent permitted by the applicable law. Section 9.07 h,eintaining Records and Right to Inspect The Recipient shall include in all contracts with Participating Parties receiving grant funds provisions requiring that (i) each such Partici- pating Party keep and maintain books, records and other documents relating directly to the receipt and disbursement of such grant funds; and (ii) any duly authorized representative of the Secretary or Comptroller General of the United States shall, at all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books, records and other docurents of such Participating Party until the completion of all close-out procedures respecting this grant and the final settlement and conclusion of all issues arising out of this grant. Section 9.08 Access to Project The Recipient shall include in all contracts with Participating Parties a provision that each Participating Party agrees that any duly authorized representative of the Secretary shall, at all reasonable tines, have access to any portion of the Project in which such Participating Party is involved until the completion of all closeout procedures respecting this grant. Section 9.09 No Assignment or Succession The Recipient shall include in all contracts with Participating Parties receiving grant funds an acknowledgement and agreement by the Parti- cipating Party that no transfer of grant funds by the Recipient to the Parti- cipating Party shall be or be deemed an assignment of grant funds, and that such Reviled 6/81 12 Participating Party shall neither succeed to any rights, benefits or advantages of the Recipient under this Grant Agreement, nor attain any rights, privileges, authorities or interests in or under this Grant Agreement. Section 9.10 Secretary Approval of Amendments The Recipient shall include, or cause to be included, in all contracts which are required to be submitted to and approved by the Secretary in accordance with Exhibit E of this Grant Agreement a provision that during the term of this Grant Agreement such contract shall not be amended in any material respect, after such approval and acceptance, without the prior written approval of the Secretary. 'Material' shall be defined as anything which cancels or reduces any developmental, construction, job creating, or financial obligation of any Participating Party by more than ten (10%) percent, changes the sites or character of any development activity, or increases any time for performance by a party by more than thirty (30) days. Section 9.11 Disclaimer of Relationships The Recipient shall include in all contracts with Participating Parties, and in all contracts with any party involving the use of grant funds, an acknwledgenent that nothing contained in this Grant Agreement, or in the contract between the parties, nor any act of the Secretary, the Recipient, or arty of the parties, shall be deemed or construed by any of the parties, or by the third persons, to create any relationship of third -party beneficiary, principal and agent limited or general partnership, or joint venture, or of any association or -relationship involving the Secretary. Section 9.12 Limitation of Recipient Liability for Project Activities Unless otherwise specified in Exhibit A of this Grant Agreement, the Recipient shall include in all contracts with Participating Parties, and in all contracts with any party involving the use of grant funds, an acknowledgement that the Recipient shall not be liable to any Participating Party, or to any party except HUD, for completion of, or the failure to complete, any activities which are a part of the Project, except those specified in Exhibit B of this Grant Agreement. Section 9.13 Conflict of Interest The Recipient shall include in all contracts with Participating Parties, and in all contracts with any party involving the use of grant funds, a conflict of interest provision consistent with Section 5.01(8) of this Grant Agreement. Section 9.14 Project Signs The Recipient shall include in all contracts with Participating Parties, and in all contracts with any party involving the use of grant funds, a project sign provision consistent with any criteria which may be established by the Secretary. ARTICLE X EVIDENTIARY MATERIALS Section 10.01 Commitments of Participating Parties - General (a) In selecting the Recipient for the award of this grant, the Secretary has relied, in material part, upon the representations of the Recipient and Participating Parties that the Recipient and the Participating Parties (i) will carry out certain activities connected with the Project; (ii) will canplete those activities; (iii) have, or will have, the financial capability to assure the carrying out of the activities to their ca spletion; and (iv) will invest, or cause to be invested, a specific value amount in the Project. The Secretary has also relied upon the Recipient and Participating Parties' representations that such Participating Parties will, prior to any use of grant funds for the Project, enter into legally binding agreements evidencing the commitments which were so relied upon by the Secretary. 13 Revised 6/81 (b) Evidentiary materials to be submitted to and approved by the Secretary as specified in Exhibit E of this Grant Agreement shall include: (i) a complete index describing the materiel submitted; (ii) the legally binding and enforceable commitment of the Participating Party, in unequivocal terms, to undertake and =plots specified activities connected with the Project, and to expend on the Project a specified minimae amount of funds or other form of investment; and (iii) clear and convincing proof that the Participating Party has on hand, or will have available to it, any finances or other things of value necessary to carry out the pro mixes of completing the activities and making the specified investment. (c) Evidentiary materials which have been submitted to and approved by the Secretary shall not be amended in any material respect without prior written approval of the Secretary. Section 10.02 Form of Documentary Evidence - General All documentary evidence of oammitments submitted to the Secretary for approval shall be in the form of either (i) a duplicate original, or (ii) a photographic copy of the fully executed original, of the documents. Section 10.03 Opinions of Recipient's Counsel (a) Whenever, in Exhibit E to this Grant Ar+ree ant or otherwise, the opinion of an attorney is required as part of any evidentiary material to be submitted to the Secretary, the opinion shall be in writing and shall be that of counsel for the Recipient, unless otherwise specified. (b) In the formulation or rendering of an opinion, Recipient's counsel may rely upon the certification of other persons, or the written statements or opinions of other counsel; provided, a copy of each such certi- fication, statement, or opinion is attached to the opinion of Recipient's counsel. (c) If, in the formulation and rendering of an opinion, the Recipient's counsel predicates the opinion upon "information and belief," then in all such cases the opinion of Recipient's counsel shall contain, or have attached thereto, a statement or description of all of the informa- tion upon which the belief of counsel is predicated. Section 10.04 Evidence of Contracts - Form (a) Evidence of contractual commitments submitted to the Secretary shall be in the form specified in Section 10.02 above; shall include all of the documents evidencing the contractual commitment; and shall have attached the opinion of Recipient's counsel made in accordance with Section 10.03 above. (b) The opinion of Recipient's counsel shall certify that the documents comply with Section 10.02 above, that Recipient's counsel has examined into the authority of all parties to the documents, and of all persons executing the documents on behalf of the parties, and that said parties and persons were authorized to enter into and execute the documents. (c) The opinion of Recipient's counsel shall state that the documents constitute a valid and legally enforceable contract under the laws of the Recipient's State and that the documents conform to the provisions of this Grant Agreement, except as to any particulars specified in the opinion. Section 10.05 Evidence of Loan Commitments - Form (a) Evidence of loan commitments from private lending institutions shall be in the form specified at Section 10.02 above; shall include all of the documents evidencing the loan commitment, an acceptance by the borrower, the purposes of the loan, the authorized use of loan funds, and all other terms and conditions of the loan commitment, the acceptance, and the loan; and shall have attached the opinion of Recipient's counsel, made in accordance with Section 10.03. 14 Revised 6/81 (b) A loan cnritrent ray specify contingencies or conditions which rust be satisfied before the closing of the loan, or the disbursement of loan funds, but the commitment shall be an irrevocable commitment, enforceable by the borrower upon satisfaction of all contingencies or conditions. (c) ;hie opinion of recipient's counsel shall certify that the uacuments comply with rection 10.02; that Recipient's counsel has examined into the authority ot all parties to the loan commitment and the acceptance, and of all persons executing the loan commitment and, acceptance on behalf of the parties; and that said parties and persons were authorizes to make the loan oormitment and acceptance. (d) :he opinion of recipient's counsel shall state that, subject only to such contingencies and conditions as are expresseo in the documents, the lending institution is irrevocably aormmitted to loan, and the borrower to accept upon the terns and conditions specified, the principal amount specified in the loan commitment; and that the loan eimutment, and the acceptance, and all of the terms and conditions of the loan commitment, and the loan, are lawful and enforceable under the laws of the Recipient's State; and that the documents conform to the provisions of this Crant Agreement, except in any particulars specified in the opinion. (e) If, under the tears of the loan commitment, the making of the loan is contingent upon the happening of any condition precedent, then the approval of the commitment by the Secretary as the evidence required under this (rant Agreement nay be conditioned by the Secretary upon the submittal and acceptance of further evidence that such contingencies have been satisfied, or that the contingencies have been otherwise removed, or that the loan has closed (f) hhere evidence ot a loan eonnitrent is required to Le submitted to the Secretary under this Grant Agreement, evidence of the actual closing of the loan shall Le acceptable, in lieu of the foreyoiny,,provioed such evidence ca-:p.lies with Section )Cada. Section 10.C( lvicenoe of Loans - Form (a) Lvidence of a loan having been rade or closed shall be in the fort specified at Section 11.1 02; shall be on the letterhead of the lending institution; shall state the principal amount of the loan, its purposes (interim, or permanent), and the authorized uses of loan funds; shall describe or identify the security tor the loan; shall state the terra of the loan; shall identify all parties to the loan; shall to executed by an authorized officer of the lending institution; and shall have attached an opinion of Recipient's counsel rade in accordance with Section 1C.03, certifying that the documents comply with Section 10.02, and that the officer of the lending institution was authorize< to execute the docurrents. (b) Evidence of a loan having been made or closed may also be submitted in the form of copies of recorded notes, deeds, bonds, indentures and other documents which comply with Section 10.02 and which contain sufficient evidence, including evidence of recordatiai, to enable the Secretary to determine the netters specified above at subsection (a) of this Section 10.06 and that the loan has been rade or closes.. Section 10.C7 Lvidence of Liquid Assets - Form hhenever a Farticipatiny Party is required to provide evidence of liquid assets for an activity in an amount and manner satisfactory aco acceptable to a lending, institution, such, evidence shall be in the form specified at Section 1(..U2; shall be en the letterhead of the lending institution; shall identify the participating Farty; ammo shall state that the Participating Party has on hand or irraediately available to the participating Farty, liquid assets of a value arch in an amount satisfactory and acceptable to the lending institution, and that the availability and use of the liquid assets tor the activity to be carried out by the Participating Party in connection with the Project is assured to the satisfaction of'the lending institution. 'The aocument shall be executed by an authorized officer of the lending institution; and shall have attached an gp.inion of Recipient's counsel, made in accordance with Revised 6/81 15 Section 10.03, that the documents comply with Section 10.02 and that the officer of the lending institution was authorized to execute the sane. Section 10.08 Evidence of Finances Satisfactory to Counsel - Form (a) Whenever evidence is required in the form of a statement and opinion of Recipient's counsel that a Participating Party will provide a specific amount of finances for purposes of carrying out the commitment of that Participating Party in connection with the Project, such evidence shall be in the form of an opinion of Recipient's counsel made in accordance with Section 1C.03. (b) The opinion of Recipient's counsel shall certify that counsel has examined into the availability to the Participating Party of liquid assets and/or of debt financing; shall state the amount and the source of liquid assets on hare; or immediately available to the Participating Party for use in the Project; and shall state the amount and the source of debt financing which is available, or irrevocably committed, to the Participating Party for use in the Project. The evidence of these funds shall be consistent with the provisions of Sections 10.05, 10.06 and 10.07 above to the extent possible. (c) Tile opinion of Recipient's counsel shall be that the Parti- cipating Party has on hand, or immediately available, or irrevocably committed to the Participating party, for use in carrying out the ocsrmitments of the Participating Party to the Project, liquid assets and/or debt financing in a sun equal to the specified amount of finances required in this C,rant Agreement. (d) Submissions pursuant to this Section shall Le subject to HLD approval as to form and content. Section 10.09 Anti -Speculation Provisions - Sale of Real Property (a) Whenever, in Exhibit E of this Grant Agreement, a document is required to contain a provision for the prevention or discouragement of speculation in the purchase and sale of property by a beneficiary of grant funds, then, unless otherwise specified, such provision shall comply with this Section, (b) The document shall prohibit the beneficiary of grant funds from selling or otherwise disposing of the property within a period specified in Exhibit L of this Crant Agreement after the date of the purchase, for an amount in excess of the purchase price paid, Flus the actual costs of any improvements to the property by the beneficiary. The prohibition against sale shall have the sage force and effect as a lis pendens, and shall specify that in the event of any attempted sale, in violation of the provision, the Recipient shall be entitled to the ex parte issuance of an injunction restraining such sale. .he document shall be executed and authenticated in such manner and form as may be required under State law to authorize its recordation at the place of recordation of deeds, as if a lis pendens; and the docurent shall be so recorded. (c) She document may, in conjunction with the foregoing, or in lieu thereof, describe a procedure whereunoer, in the event of any sale of the property within the period specified in Exhibit Lof this Grant Agreement, the amount of grant funds which benefited the beneficiary shall be repaid by the beneficiary to the Recipient. Such procedure may include a pro -rata reduction of the amount to be repaid, based upon the time elapsing between the oate of the initial purchase of the property and its disposition by the beneficiary. The document nut either specify the amount of grant funds which benefited the beneficiary, or set forth a formula or agreed method for determining such amount. The document shall be executed and authenticated in such manner and form as may be required to authorize its recordation, as if a lis pendens; ard the document stall be so recorded. Section 10.10 Evidence of Title to Real Property - Form Whenever, in Exhibit E of this Grant Agreement, a Participating Party or the Recipient is required to acquire fee simple or leasehold title to real property, and proof of aurin acquisition is required, evidence shall oe in the form of an opinion of Recipient's counsel, made in accordance with Section 10 03. The opinion shall certify that on a specified date, either an original ALTAR policy of land or mortgage title insurance, or other records ident_fied in 16 Revised 6/81 the opinion, aware examined by Recipient's aovTssl; and that said policy or other records identified the Participating party, or a wholly -coned subsidiary of ti* Participating may, or the Recipient or its agent or agency, as required, as the owner or lessee of record, in fee simple or leasehold,of said property The opinion shall further state that on the date specified by Recipient's counsel, the record fare single or leasehold title to said reel property ,,was vested, in the Participating Party, or such subsidiary thereof, or in the Recipient or its agent or icy as required In lieu thereof, evidence may be in the form of documents which comply with Section 10.02 and which contain sufficient evidence, including evidence of recordation, to enable the Secretary to determine, to the satiafaction of the Secretary, that the Participating Party or the Recipient did acquire the title, as required APTICLE XI MISCELIAMOUS Section 11.01 Notices (a) A11 amendments, notices, requests, objections, waivers, rejections, agreements, approvals, disclosures an, consents of any kind made pursuant to this Grant Agreement shall to in writing. (b) Any such communication shall be deemed effective for all pur- poses as of the date such communication is mailed, postage prepaid, by registered or certified mail, return receipt requested, to be delivered only to the office of the addressee,- addressed as follows (1) Communications to the Secretary shall be mailed simultaneously to (A) The Director, Office of Urban Development Action Grants, U.S Department of Housing and Urban Development, 451 7th'Street, S.W., loan 7258,, Washington, D.C. 20410, and (E) The Area Office Manager of the HLE Area Office authorized to receive the Application of the Recipient for the grant hereunder; and (C) such other persons or at such other addresses as may be furnished by the Secretary to the Recipient. (2) Communications to the Recipient shall be addressed to the Recipient, at the address set forth in Exhibit A of this Grant Agreement, or such other address as may be furnished by the Recipient to the Secretary. Section 11.U2 Assignment No right, benefit, or advantage inuring to the Recipient under this Grant Agreement and no burden imposed on the Recipient hereunder may be assigned without the prior written approval of the Secretary. An authorization by the Secretary for the transfer of grant funds by Recipient to a Participating Party shall not be deemed an authorization for an assignment, and such Participating Party shall not succeed to any rights, benefits or advantages of the Recipient hereunder. Section 11.03 Successors Bound This Crant Agreement shall bind, and the rights, benefits and advan- tages shall inure to, the Recipient's successors. Section 11.04 Remedies Not Impaired No delay or omission of the Secretary in exercising any right or remedy available under this Grant Agreement shall impair any such right or remedy or constitute a waiver of any Default, or an acquiescence therein. Section 11.05 Qxmulative Remedies all rights and remedies of the Secretary under this Grant Agreement shall be cumulative. Section 11.06 Severability Time invalidity of any article, section, subsection, clause or pro- vision of this Grant Agreement shall not affect the validity of the remaining Revised 6/81 17 articles, sections, subsections, clauses or provisions hereof. Section 11.07 Entire Agreement This Grant Agreement constitutes the entire agreement between the Secretary and the Recipient and supersedes all prior oral and written agreements between the parties hereto with respect to the subject grant. Notwithstanding the provisions of Section 1.01 of this Grant Agreement, in the event of any inconsistency between the provisions of this Grant Agreement and anything contained in the Application, then the provisions of this Gant Agreement shall prevail. Section 11.08 Execution in Counterparts This Grant Agreement may be executed in any number of counterparts. All such counterparts shall be deemed to be originals and together shall con- stitute but one and the same instrument. Section 11.09 Thble of Contents; Titles and Headings Any table of contents, the title of the Articles, and the headings of the sections and subsections set forth herein are not a part of this Grant Agreement and shall not be deemed to affect the meaning or construction of any of its provisions. Section 11.10 Amendment of this Grant Agreement This Grant Agreement, or any part hereof, may be amended from time to time hereafter only in writing executed by the Secretary and the Recipient. Section 11.11 Disclaimer of Relationships The Recipient acknowledges that the obligation of the Secretary is limited to providing grant tunds in the manner and on the terms set forth in this Grant Agreement. Nothing in this Crant Agreement, nor any act of either the Secretary or of the Recipient, shall be deemed or construed by either of them, or by third persons, to create any relationship of third -party beneficiary, principal and agent, limited or general partnership, or joint venture, or of any association or relationship whatsoever involving the Secretary. Section 11.12 Governing Law This Grant Agreement as it may affect the rights, remedies, duties, and obligations of the Secretary shall be governed by and construed in accordance with Federal law. Insofar as Federal law does not apply, the provisions of this Grant Agreement shall be governed by and construed in accordance with the laws of the Recipient's State. Section 11.13 Waiver by Secretary The Secretary reserves and shall have the exclusive right to waive, at the sole discretion of the Secretary, and to the extent permitted by law, any requirement or provision under this Grant Agreement. No act by or on behalf of the Secretary shall be, or be deemed or construed to be, any waiver of any such requirement or provision, unless the same be in writing, signed by the Secretary, and expressly stated to constitute such waiver. Section 11.14 Effective tate (a) This (.rant Agreement shall, when executed and dated by the Secretary, constitute an offer by the Secretary to the Recipient to make the within grant and to enter into this Grant Agreement. Wen delivered to the Recipient so executed and dated, the same shall constitute a tender of said offer, which shall be promptly accepted, if at all, by the Recipient and which stall not be altered without the Secretary's approval. The Secretary may revoke the tender and rescind the offer at any time prior to its acceptance by the Fecipient, by written notice of the Secretary to the Recipient, given as specified at Section 11.01 of this Grant Agreement. Revised 6/81 18 (b) lois Grant Agreement shall be deemed to have been accepted, and shall became effective, as of the date this Grant Agreement is executed and dated by the recipient. Section 11.15 Termination of Grant Agreement Unless otherwise terminated by the Secretary pursuant to Article VII of this Grant Agreement, or by the mutual consent of recipient and the Secretary, this Grant Agreement shall terminate upon the completion of all clove -cut procedures respecting this grant and the final settlement and conclusion between Recipient and the Secretary of all issues arising out of this grant, unless otherwise provided in the close-out agreement between Recipient and the Secretary. Revised 6/81 19 SIGNATURE PAGE THIS GRANT AGREEMENT, numbered B -87 -AA -53-0068 is hereby executed and. delivered by the Parties hereto on the dates set forth below THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT Date 3/16/q6 By THE CITY OF YAKIMA, WASHINGTON Roy 0 Priest Acting Director Office of Urban Development ACtion Grants Date 3/-1-(490 BY Honorable Patricia Berndt Title Mayor IMPORTANT One (1) fully executed copy of this Grant Agreement must be mailed to the Office of Urban Development Action Grants, and two (2) fully executed copies of this Grant Agreement must be mailed to the HUD Field Office.Manager, in accordance with Section 11 01, on the same date executed by Recipient -20- • • • Recipient City of Yakima, WashingEor Grant Number B -B7 -AA -53-0068 EXHIBIT A SUPPLEMENTARY PRO✓ISIONS Rider to Section. 1 03(2). Ir addition to Recipient's AAplicatior for Federal Assistance (SF 424), the 'Application" shall ircl.ide any additional s4bmittals since the date the Applicatio was filed .ipor which the Secretary relied in making this ward. Ride: to Sectio 1.03(12). The term 'Participating Party' consists of each of the following persons, firms, corporations end entities 'Developer' means John I. Naas Inc., a corporation, Incorporated in the State of Del ware whose address is Hap Farms, Washington,. ' L.e er" means Bayerische Vereirsbank, New York Branch, 335 Madisor AvenJe, New Yo i , New York 10017 ' A.,thority" nears Yakima Public Corporation in care of the Eittiktas-Yakima Reso.i:ce Corservatior and Economic Developme-t District, Yakima Cwrty Couitho.ise, Room 30, Yakima, Washi-gto- 95901. "Bond P.irchase:" means Ehrlich Bober and Ci pay Inc , whose address 101 Park Aven4e, New York, New Yo_* 10178 Ride. to Section l 03(13). The phrase "the UDAG pe:ce-tage of cortained or the first line of paragraph (13) and the last se-te-ce of paragraph (13) are deleted it their entirety Rider:to Sectio.- 1 03(21). "Proiect Eleme-ts" means the exnansi-- of ar existing haps plant ty the Johr I. Hass, Inc., to incl.ide the corstr.rctior of two additional b.rilriir s of approximately 6,500 so.jare feet which will conp:ise a liquid carbon dioxide hop extraction plant. Rider to Section. 1.03(22). 'Project Site means 1112 North 16th Aven.ie, Yakima, Washington. Rider to Sectior. 2.01. The mmo.int of this UEAG grant is SIX HUNDRED SIX THCUSAND ONE HUNDRED FIFTY FOUR COLLARS ($606,154). EXHIBIT A Pace 1 of 3 Recipient City of Yakima, Washington Grant Number B -87 -AA -53-0068 Exhibit A --Continuation Sheet Rider to Sections 2 04, 9 0], 9.02 and 9 03 Ary repayment or other payments received pursuant to Paragraph III of Exhibit E of this Grant Agreement and received prior to completion of the UDAG fended Recipient Activities shall be held in escrow pursuant to Section 2.04(a) of this Grant Agreement until completion of the UDAG funded Recipient Activities. All escrowed funds shall bear interest with the accounts insured by an agency of the U S. Government. Upon completion of the UDr1G funded Recipient Activities, any funds held in said escrow shall be spent for activities eligible under Title I of the Housing and Community Development Act of 1974, as amended, and shall be spent in accordance with Part 570 of Title 24 Code of Federal Regulations. Any repayments received after completion of the WAG funded Recipient Activities shall be deemed miscellaneous revenues and shall be spent for activities eligible under Title I of the Housing and Community Development Act of 1974, as amended, and shall not be governed by Part 570 Ride. to Section 4 01 The Recipient will comply with the acquisition and relocatior requirements of the Uniform Relocation Assistance and Real Property Acq.risitior Policies Act of 1970 as.requi:ed under 24 CFR Sectior 570 606(a) and HUD implementing regulations at 24 CFR Part 42, the requirements ir Section 570 606(b) Bove -irq the residential antidisplaceme-t and relocation assistance plan under section 104(d) of the Housing and Community Development Act of 1974 the relocation, requiremenets of Sectior 570 606(c), as modified by Sectir 570.457(b), governing displacement subject to secm•ior 104(k) of the Act; the relocation requirements of Sectior 570.606(d) Bove ^inn notional relocation assistance under Section. 105(a)(11) of Act; arc1 the appeals procedures, grantee responsibilities and displacement provisions of Section. 570.606(e), (f) and (q). Rider to Section, 5.01(8). Paragraph (8) shall be deleted ir. its entirety and the following shall be inserted in place thereof: '(8) Recipient shall comply with the conflict of interest provision set forth ir 24 CFR Section 570.611 (48 Federal Register 186, pp 43571-72, 9/23/83).• EXHIBIT A Paoe 2 of 3 Recipient City of Yakima, Washi:.gtor, Grant N,anber B -87 -AA -53-0068 Exhibit A --Cont inuat ion. Sheet Rider to Sections 5.03 and 9.06. The jobs referenced at Section 5.03 and the assure -roes regiired at Section, 9.06 shall aggregate Total New Permanent Jobs 36 Total New Permanent Jobs for Lw- and Moderate -Income Persons 23 Total New Permanent Jobs for CETA-Eligible Persons 23 Total New Permanent Jobs for Minorities. 3 Job Requirements shall be completed within. 36 months from the Date of Preliminary Approval Ride: to Section: 9 13 Conflict of Interest. Sectior 9.13 shall be deleted it its entirety and the following shall be inse:-ted in place thereof 'The Recipient shall include it all contracts with Participating Parties and it all contracts with any party involving the use of Grant Funds, a conflict of interest provision, consistent with 24 CFR Section 570 611 (48 Federal Register 186, pp. 43571-72, 9/23/83)." Ride. to Sectior 11 01 The address of the Recinie-t fro: the pu. ose of c,Tr -ications relating to this Grant is Honorable Patricia Ber-ott Mayo: of Yakima Yakima, Washington 98901 Contact Person Fred Stoude: Assistant City Manage: 129 North Second Street Yakima, Washington 98901 (509) 575-6123 Ride: to Section. 11.14. Ir the event Recipient shall not execute and ret.rrn one counterpart of this Grant Agreement to the Secretary and two (2) counterparts to the HUD Field Office within. 60 days from the date the Secretary signed the Grant Agreement, this tender and offer may be revoked and rescinded by the Secretary. EXHIBIT A Page 3 of 3 • • • Recipient City of Yakima, Washington. Grant Number B -87 -AA -53-0068 EXHIBIT B DESCRIPTION OF RECIPIENT ACTIVITIES Ride: to Sectior 1.03(17). The 'Recipient Activities' shall consist of the following Recipient shall lend to Developer not more than 5606,154 of Grant FJrds which shall be Jsed in accordance with Exhibit D to this Grant Agreement. DOIIBIT B Page 1 of 1 Recipient City of Yakima, Washington Grant Number B -87 -AA -53-0068 EXHIBIT C DESCRIPTION OF NON -RECIPIENT ACTIVITIES Rider to Section 1.03(11). The 'Non -Recipient Activities" shall consist of the following Developer shall: (i) oarplete the Project Elements on the Project Site at a total cost of not less than 512,123,084 in accordance with Exhibit D to this Grant Agreenent using not less than 51,516,930 of private loan funds, not less than 510,000,000 of Industrial Revenue Bonds, and not more than 5606,154 of Grant Funds; (ii) borrow from Lender not less than 51,516,930 for financing the Project; (iii) borrow not less than 510,000,000 of Industrial Revenue Bonds proceeds for financing the Project; (iv) borrow frau Recipient not less than 5606,154 of Recipient funds for financing the Project; and (v) unconditionally and irrevocably guarantee the repayment of the UDAG Loan and the completion of the Project in accordance with the schedule set forth in Exhibit F to this Grant Agreement II Lender shall lend to Developer not less than 51,516,930 for financing the Project. III Authority shall issue and sell and Bond Purchaser shall purchase not less than 510,000,000 of Industrial Revenue Bonds, the proceeds of which shall be used for financing the Project. EXHIBIT C Page 1 of 1 • • • Recipient City of Yakima, Washington Grant Number B -87 -AA -53-0068 EXHIBIT D Project Budget - Summary of Projected Evenditures USE OF FUNDS 901JRCES OF FUNDS Line Item Activity UD4G Funds Private Funds Other Funds TOTAL COSTS a On Site Improvements S 134,600 S 134,600 b. Building Construction 5606,154 1,807,684 2,413,838 c. Capital Equipment 6,062,800 6,062,800 d. Professional Fees 1,143,846 1,143,846 e Interim Costs 1,468,000 1,468,000 f Patent Royalty Fee 400,000 400,000 g Contingency 500,000 500,000 j k Capital Equipment I Equipment not counted in leverage ratio m. Working Capital (not counted in leverage ratio) n. Profit i Overhead (not counted in leverage ratio) 5606,154 511,516,930 512,123,084 o. 'ICTAL PROJECT COST p. Recipient administrative costs reimbursed from UDPG funds q. Cess. items not counted in - leverage ratio (lines 1.-n.) _^ r. Total private investment to be reported on QPR's ('countable private') 11,516,930 s. Plus: Discounted value of UD4G—loan repayment + 583,803 t. Plus. Discounted value of otpublic loan repayments u. Plus. Present value of lease payments + v. Totals used in computing leverage ratio $606,154 512,100,733 Discount Rate 8% EXHIBIT D Page 1 of 1 Recipient City of Yakima, Washington Grant Number B -87 -AA -53-0068 EXHIBIT E REQUIRED EVIDENTIARY MATERIALS The evidentiary materials to be submitted by the Recipient for the approval of the Secretary shall include the applicable provisions of Article IX of this Grant Agreement and shall consist of the following: I (a) All governmental approvals and permits necessary for the commencement of the Recipient and No` -Recipient Activities shall have been obtained. (b) Evidence of this commitment shall be a written certification. from Recipient, signed.by the chief executive officer, in accordance with Sectior 10.02 of this Grant Agreement, that all such governmental approvals and permits have beer obtained. II (a) Title to all land necessary for the Project, except land to be acquire with Grant Fu -ds, shall be held by Recipient or the appropriate Participating Pasty . (b) Evidence of this commitment shall be ir accordance with Section 10 10 of this Grart Agreeme-t. III (a) Recipient and Developer shall enter into ar agreement which shall contain provisions consistent with the following (1) Recipient shall agree to carry out all Recipient Activities set forth ir Exhibit B to this Grant Agreement. (2) Developer shall agree to carry out all Nor -Recipient Activities ascribed to Developer it Exhibit C to this Grant Agreement. The agreement shall set forth the scope of the work, its location, and the obligation of Develope. to invest rot less than 511,516,930 of private funds in the Project it accordance with Exhibit D to this Grant Agreement. (3) -Recipient shall be obligated to make a loan to Developer of not more than 5606,154 of Grant Funds (the "UAG Loar"), which shall be used in accordance with Exhibit D to this Grant Agreement. The terms and corditiors of the MPG Loan shall be consistent with the following EXHIBIT E Page 1 of 5 Recipient City of Yakima, Washington Grant Number B -87 -AA -53-0068 Exhibit E --Continuation Sheet (aa) Interim UbAG Loan (i) Term - Term of the Interim UDAG Loan shall commence upon the initial disbursement of Grant Funds, but in no event later than October 30, 1990, and shall end upon the completion of construction, but in no event later than March 31, 1992. (ii) Principal - The principal amount of the Interim UDAG Loan shall be no more than $606,154. (iii) Interest - There shall be no interest. (iv) Disbursement/Ratio - Disbursements of UDAG Ivan funds shall be based on vouchers submitted by Developer, verified by Recipient, and certified by the architect, construction manager, or other certifying official acceptable to Recipient. All submissions by contractors of monthly requisitions shall be on AIA Fors 702 and 703 or their equivalent. No disbursement of the UDAG Loan shall be rade until: a) Developer has furnished Recipient with an ALTA Loan Policy of title insurance in the original principal amount of the UDAG Loan, insuring that Recipient is the holder of a subordinated lien on the Project Site, free of encumbrances and other exceptions to title other than those approved in advance by Recipient, and not subordinated to any interest except the superior mortgages in original principal amounts not to exceed $11,516,930, plus any further advances by the mortgagees which are invested in the Project and are required for its completion (the 'Superior Mortgages"); b) Developer has furnished Recipient with a Builder's Risk and Fire Insurance policy or policies duly endorsed to indicate Recipient as an insured mortgagee; c) All of the requirements for draw down of Grant Funds set forth in Paragraph I (b) of Exhibit F to this Grant Agreement have been satisfied; and d) Developer has expended not less than 53,000,000 of cash equity funds and private loan funds for the countable costs of the Project. After the above requirements have been satisfied, UDAG Ivan funds may be drawn down and disbursed for use in accordance with Exhibit D to this Grant Agreement in a ratio to countable private funds of not more than 51.00 of UDAG Loan funds to $19 00 of countable private funds expended on the Project EXHIBIT E Page 2 of 5 Recipient City of Yakima, Washington. Grant Number B -87 -AA -53-0068 Exhibit E --Continuation Sheet including the funds above required to be expended prior to disbursement of UDAG Loar funds. 'Countable private' funds mean the funds described on line r of Exhibit D to this Grant Agreement. (bb) Permanent UDAG Loar. - (i) Term - Term of the Permanent UDAG Loan shall be 2 year roe encing upon completion, of construction„ but in no event later than March 31, 1992. (ii) Principal - The principal amount of the Permanent UDAG Loan shall be the amrount disbursed under the Interim UDAG Loar.. (iii) Interest -The interest rate shall be 5.3% per annum. (iv) Repayment - Principal and interest payments shall be made i- equal quarterly irstallmerts in ar amount sufficient to fully amortize the Permanent UDAG Loar over the Term. RDWIRED ADDITIONAL PROVISIONS APPLICABLE TO INTERIM AND PERMANENT UDAG LOANS (cc) Security - The UDAG Loan shall be secured by a deed of trust or mortgage i- favor of Recipient upor all land, buildings, fixtures, equipment and other assets of the Developer comprising the P:oiect The security positirr of the Recipient may be subordinated only to Superior Mortgages of 511,516,930 The deed of trust or mortgage shall also cor.tair standard provisions to protect the interestof the subordinate mo:tgagee, including, for example, a provision that a default .rider the superior mortgages which could permit a foreclosure by the superior mortgagees shall constitute a default under the subordinate mortgage and the entire principal balance plus accrued and unpaid interest of the UDAG Loar. shall become immediately due and payable. The deed of trust or mortgage shall not contain an exculpation clause in favor of Developer. To the extent permitted by law, all of the pe amoral property described it the deed of trust or mortgage shall be deemed to be fixtures and part of the real property. As to any part of such personal property not deemed or permitted by law to be fixtures, the deed of trust or mortgage shall constitute a security agreement under the Uniform Commercial Corte. Ir. addition:, the MAC Loan, shall be secured by a second lien in favor of Recipient upon all capital equipment purchased with the proceeds thereof which EXHIBIT E Page 3 of 5 Recipient City of Yakima, Washington Grant Number B -87 -AA -53-0068 Exhibit E--Cortiruatior Sheet shall rot be subordinated to any other interest. Developer shall cause to be recorded all appropriate Uriform Commercial Code security agreements, financing statements or other security documents required to secure the U)]AG Lear.. The security agreements shall not contain exculpation clauses ir. favor of Developer. (dd) Acceleration. of WAG roar - The entire principal balance of the UDAG Loan phis accrued and unpaid interest thereon shall become immedi- ately due and payable upon the (1) bankruptcy or reorganization of the Devel- oper under the Bankruptcy Code or the Internal Revenue Code of 1954, as amended, (2) dissolutior or liquidation of the Developer, (3) syrdicatior of the Developer, (4) change it ownership of the general partnership interest or transfer of 50% or more of the corporate stock or cortrolli q interest ir the Developer, or (5) refinance, sale, partial sale, exchange, transfer, sale under foreclosure, or ary other dispositior of the Protect Site, improvements or capital equipment situated thereon. No improvements or capital eguipme-t situated or the Project Site shall be removed, demolished 0: materially altered, without prior writter consent of Recipient, except that Developer shall have the right, without such corse -t, to remove and dispose of, free from any lie- of Recipient, such equipment as from time to time may become worr out or obsolete, provided that simultaneously with or prior to such removal ary such equipment shall be replaced with othe. equipment of value at least equal to that of the replaced equipment and free from any title retention or other encumbrance unless permitted in paragraph (cc) above, and by such removal and replacement Developer shall be deemed to have subjected such equipment to the lien of Recipient. (eel Guarantee - Developer shall unconditionally and irrevocably guarantee the repayment of the UDAG Loan and the completion of the Nor -Recipient activities pertairing to Developer in accordance with the schedule set forth in Exhibit F to this Grant Agreement. (ff) Prepayment - Prepayment may occur at any time only with prior writter approval of Recipient. EXHIBIT E Page 4 of 5 Recipient City of Yakima, Washington, Grant Number B -87 -AA -53-0068 Exhibit E--Cor.tir..atior, Sheet (4) All applicable terns and conditiors of this Grant Agreement, including Article IX provisions and job ass..irances specified in Sections 5.03 and 9.06 shall be set forth ir. the agreement. (5) The agreement shall specify a schedule for performance of Recipient and Nor -Recipient Activities consistent with Paragraph II of Exhibit F to this Grant Agreement. (6) Curing the term of this Grant Agreement, Developer shall agree to provide necessary data and information as to private investment and jobs relatirq to this Grant Agreement (b) Evidence of this commitment shall be ir. accordance with Sectio- ]0 04 of this Grant Agreement together with copies of the forms of al] UDAG Loar documents to be used at closing ry (a) Authority shall issue and sell and Bond Purchase: shall p..rchase not less than $10,000,000 of Industrial Revenue Bonds, the proceeds of which shall be .ised for financing the Project. (b) Evidence of this commitment shall be in the form of a certification frau the trustee and/or depository of the proceeds of the bond sale stating that said trustee and/or depository has on hand and immediately available to Developer the net bond proceeds for use only for financing the cor,strJctio- and development of the Project and that all conditions precedent to ar initial disbursement of said bond proceeds have been satisfied. v (a) Lender shall lend not less thar $],516,930 to Develeoe: for financing the Project. (b) Evidence of this commitment shall be in accordance with Section 10.06 of this Grant Agreement. EXHIBIT E Page 5 of 5 • • • Recipient: City of Yakima, Washington Grant Number B -87 -AA -53-0068 EXHIBIT F PROTECT PERFORMANCE SCHEDULE I (a) The Evidentiary Materials described in Exhibit E of this Grant Agree- ment must be submitted to the Secretary by Recipient not later than six (6) months from the date the Secretary executed this Grant Agreement. (b) Upon notification to Recipient of the approval by the Secretary of the Evidentiary Materials required by subparagraph (a) above, and :spa': receipt by the HUD Field Office of (1) a written certification, from Recipient to the Secretary that construction of the Developer's portion of the Project has commenced and is continuing, and (2) a writter certification from counsel for Recipient to the Secretary that the deed of trust or mortgage and all security agreements, financing statements or other security documents required to secure the UDIAG Iran have beer recorded and that the note or its ecjivale-t evidencing the UDAG Loan has bee- executed and delivered to the Recipient, Recipient shall be authorized to draw down Gra-t Funds ir accordance with Paragraph III of Exhibit E to this Grant Agreement for Eligible Costs consis- tent with Letter of Credit procedures and the provisions of this Grant Agree - me -t. Recipient shall be authorized to draw down. Grant Fur.ds for reimburse- ment of eligible administrative costs provided that such reimbursement is authorized in Exhibit B to this Grant Agreement. II The Recipient and Nor -Recipient Activities shall be conne,ced and com- pleted ir. accordance with the following schedule Activity Commencement Date Completion. Date Construction. October 30, 1990 March 31, 1992 Capital Eauipmert October 30, 1990 March 31, 1992 III Notwithstanding anything to the contrary in this Grant Agreement, con- struction of the Project must be commenced no later than. 12 months from the date the Secretary executed this Grant Agreement. No time extensions shall be giver. to this 12 month cannenceme-t of con- struction requirement. EXHIBIT F Page 1 of 1