HomeMy WebLinkAboutContract 51121 CITY SECRETARY
STATE OF TEXAS § CONTRACT NO.t
COUNTY OF TARRANT §
This contract("Contract")is made and entered into by and between the City of Fort Worth
(hereafter "City") and Mistletoe Station, LLC (hereafter "Developer"), a Texas limited liability
company. City and Developer may be referred to individually as a "Party" and jointly as "the
Parties".
The Parties state as follows:
WHEREAS, City has received a grant from the United States Department of Housing and
Urban Development through the HOME Investment Partnerships Program, Catalog of Federal
Domestic Assistance No. 14.239, with which City desires to promote activities that expand the
supply of affordable housing and the development of partnerships among City, local governments,
local lenders,private industry and neighborhood-based nonprofit housing organizations;
WHEREAS, the primary purpose of the HOME program pursuant to the HOME
Investment Partnerships Act at Title II of the Cranston Gonzales National Affordable Housing Act
of 1990, as amended, 42 U.S.C. 12701 et seq. and the HOME Investment Partnerships Program
Final Rule,as amended, 24 CFR Part 92 et seq.,is to benefit low and moderate income individuals
and families by providing them with affordable housing;
WHEREAS, Developer is a Texas limited liability company consisting of Saigebrook
Mistletoe,LLC,as Managing Member,O-SDA Mistletoe,LLC,a Texas limited liability company,
as Administrative Member; HCP-ILP, LLC, a Nevada limited liability company as Investor
Member and HCP-SLP, LLC, a Nevada limited liability company, as Special Investor Member .
Saigebrook Development, LLC, is the Managing Member of Saigebrook Mistletoe, LLC and a
Texas certified Historically Underutilized Business;
WHEREAS, Developer proposes to use HOME funds for an eligible project under the
HOME Regulations whereby Developer will construct,develop, own, and operate a new 110-unit
mixed income multifamily rental complex in the City;
WHEREAS, Developer has received an award of 2017 Competitive (9%) Housing Tax
Credits from the Texas Department of Housing and Community Affairs for a portion of the costs
of the development of the project to be commonly known as Mistletoe Station;
WHEREAS,Developer has received a commitment of a loan from the Fort Worth Housing
Finance Corporation for a portion of the development costs of the project; and
WHEREAS, City citizens and the City Council have determined that the development of
quality, accessible, affordable housing is needed for moderate, low, and very low-income City
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NOW, THEREFORE, in consideration of the mutual covenants and obligations and
responsibilities contained herein, including all Exhibits and Attachments, and subject to the terms
and conditions hereinafter stated, the Parties understand and agree as follows:
1. INCORPORATION OF RECITALS.
City and Developer hereby agree that the recitals set forth above are true and correct and
form the basis upon which the Parties have entered into this Contract.
2. DEFINITIONS.
In addition to terms defined in the body of this Contract,the following terms shall have the
definitions ascribed to them as follows:
Accessible Units means units accessible to handicapped tenants. Developer must comply with
Section 504 requirements and all other applicable Federal accessibility requirements.
The Required Improvements must contain 9 Accessible Units. Of these 9 units, 6 must be
accessible to individuals with mobility impairments, and the other 3 must be accessible to
individuals with visual or hearing impairments.
Act means the HOME Investment Partnerships Act at Title II of the Cranston Gonzales National
Affordable Housing Act of 1990, as amended, 42 U.S.C. 12701 et seq.
Affordable Rent means a rent amount that does not exceed the High HOME Rent Limit published
annually by HUD, with adjustment for the bedroom size of the housing unit as more particularly
described on Exhibit"A"—Project Summary.
Affordability Period means the period of time that HOME Units must be leased to HOME
Eligible Households for Affordable Rent.
The Affordability Period for this project is 20 years. The Affordability Period begins on
the date that the project status is changed to "complete" in IDIS.
Affordability Requirements means the HOME Units remain occupied by HOME Eligible
Households paying Affordable Rent throughout the Affordability Period in accordance with the
terms of this Contract and the HOME Regulations.
Area Median Income or AMI means the median family income for the Fort Worth-Arlington
metropolitan statistical area as set annually by HUD.
Business Diversity Enterprise Ordinance or BDE means the City's Business Diversity
Ordinance, Ordinance No. 20020-12-2011.
Closing means the closing of the acquisition of the Property by Developer.
Complete Documentation means the following documentation as applicable:
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1. Attachments I and II, with supporting documentation as follows:
a. Proof of expense: invoices, leases, service contracts or other documentation
showing the nature of the cost and that payment is due by Developer.
b. Proof of payment: cancelled checks, bank statements, or wire transfers necessary
to demonstrate that amounts due by Developer were actually paid by Developer.
2. Other documentation: (i) final lien releases signed by the general contractor or
subcontractors, if applicable; (ii) copies of all City permits and City-issued "pass"
inspections for such work; (iii) documentation to show compliance with BDE or DBE
bidding process for procurement or Contract activities, if applicable; (iv) proof of
contractor, subcontractor and vendor eligibility as described in Section 6.6; and (v) any
other documents or records reasonably necessary to verify costs spent for the project.
3. Complete Documentation shall meet the standards described in Exhibit "J" —Standards
for Complete Documentation.
Completion means the substantial completion of the Required Improvements as evidenced by a
Neighborhood Services Department Minimal Acceptable Standard Inspection report, HUD
Compliance Inspection Report and any other applicable final inspection approval from the City
showing that the Required Improvements have met City and HOME standards.
Completion Deadline means two years following Closing.
Conversion means the earlier of (i) the date the project's construction financing converts to
permanent financing and begins principal amortization, or(ii) June 30, 2021.
DBE means disadvantaged business enterprise in accordance with 49 CFR Part 26.
Deed of Trust means any deed of trust from Developer in favor of City covering the Property and
securing the indebtedness evidenced therein and Developer's performance of the requirements of
this Contract and the of the HOME Regulations, as the same may be extended, amended,restated,
supplemented or otherwise modified. The Parties agree to the use of the Deed of Trust in
substantially the form attached as Exhibit "E"—Loan Documents.
Deed Restriction means the recorded deed restriction, covenant running with the land, or
agreement restricting the use of the Property, which imposes the Affordability Requirements
beginning after project completion, as required by 24 CFR Part 92.252(e)(1), which will give the
City the right to require specific performance, among other enforcement rights. The Parties agree
to the use of the Deed Restriction in substantially the form attached as Exhibit "M" — Deed
Restriction.
Director means the Director of the City's Neighborhood Services Department.
Effective Date means the date of execution by the last of the Parties to this Contract.
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Fort Worth Housing Solutions means the Texas municipal housing authority located in Fort
Worth, Texas.
Fort Worth Housing Finance Corporation or FWHFC means the Fort Worth Housing Finance
Corporation, a Texas housing finance corporation and public instrumentality of the City of Fort
Worth.
HOME means the HOME Investment Partnerships Program.
HOME Eligible Household means a household whose annual income adjusted for family size
does not exceed 80% of AMI using the most current HUD Income Guidelines and Technical
Guidance for Determining Income and Allowances. The definition of annual income to determine
tenant income eligibility shall be the definition at 24 CFR Part 5.609, as amended from time to
time.
HOME Funds means the HOME Program grant funds supplied by City to Developer under the
terms of this Contract.
HOME Regulations means the HOME Investment Partnerships Program Final Rule at 24 CFR
Part 92 et seq.
HOME Unit means a housing unit subject to the HOME Regulations leased to a HOME Eligible
Household at Affordable Rent for the duration of the Affordability Period as further described in
Exhibit "A" — Project Summary. The HOME Units can be designated as either High and/or
Low HOME units. The HOME Units are floating.
This project contains 11 Home Units. Of these HOME Units, 2 are one-bedroom units, 7
are two-bedroom units, and 2 are three-bedroom units.
High HOME Unit means a unit that must be leased to High HOME Eligible Tenant for High
HOME Rent. High HOME Units can float among units that are materially similar in number of
bedrooms, square footage, and amenities; however, if the units are not materially similar,then the
High HOME units must be fixed.
This project contains 8 High HOME Units. Of these High HOME Units, 2 are one-
bedroom units, 5 are two-bedroom units, and 1 is a three-bedroom unit.
High HOME Eligible Tenant means (i) for a tenant who is the first to occupy a High HOME
Unit, a tenant whose annual income adjusted for family size at the time of initial occupancy does
not exceed 60% of AMI, and(ii) for a tenant who is not the first to occupy a High HOME Unit, a
tenant whose annual income adjusted for family size does not exceed 80%of AMI. Tenant income
must be verified using the most current HUD Income Guidelines and Technical Guidance for
Determining Income and Allowances subject to the income verification requirements of Section
7.2.
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High HOME Rent means a rent amount that is the lesser of(i)the HUD-established Fair Market
Rent for existing comparable housing units in the area, or (ii) 30% of the adjusted income of a
family whose annual income equals 65% of AMI with adjustment for the bedroom size of the
housing unit. High Home Rent may not exceed the maximum rent limitations set by HUD minus
utility allowances as more particularly described in Section 7.5.4.
Housing Tax Credits means the federal housing tax credits allocated by the Texas Department of
Housing and Community Affairs under Section 42(h) of the Internal Revenue Code of 1986, as
amended.
HUD means the United States Department of Housing and Urban Development.
IDIS means Integrated Disbursement Information System, HUD's project tracking system.
Investor means the entity purchasing the housing tax credits, and any successors and assigns. For
purposes of this Contract, Investor shall mean HCP-ILP, LLC.
Loan means the HOME Funds provided to Developer by City under the terms of this Contract as
more particularly described in the Loan Documents.
Loan Documents means security instruments which Developer or any other party has executed
and delivered to City including without limitation,the City's Promissory Note and Deed of Trust,
or any other similar security instruments evidencing, securing or guaranteeing City's interest in
the Required Improvements constructed under this Contract and further evidencing, securing, or
guaranteeing Developer's performance of the Affordability Requirements during the Affordability
Period, as the same may from time to time be extended, amended, restated, supplemented or
otherwise modified.
Low HOME Eligible Tenant means a tenant whose annual income adjusted for family size does
not exceed 50% of AMI set by HUD. Tenant income must be verified using the most current
HUD Income Guidelines and Technical Guidance for Determining Income and Allowances subject
to Section 7.2 of this Contract.
Low HOME Rent means a rent amount that is no more than 30% of the annual income of a family
at 50% of AMI adjusted for family size. Low Home Rent may not exceed the maximum rent
limitations established by HUD minus utility allowances. For the purposes of this Contract,
"utility allowances"are those more particularly described in Section 7.54.
Low HOME Unit means a unit that must be leased to Low .HOME Eligible Tenant for Low
HOME Rent. Low HOME Units can float among units that are materially similar in number of
bedrooms, square footage, and amenities;however, if the units are not materially similar,then the
Low HOME units must be fixed. If there are more than 5 HOME Units, then 20% of the total
HOME units must be designated as Low.
This project contains 3 Low HOME Units. Of these Low HOME Units,2 are two-bedroom
units, and 1 is a three-bedroom unit.
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FWHFC Loan means the funds provided to Developer by FWHFC under the terms of the FWHFC
Loan Documents.
FWHFC Loan Documents means the Loan Agreement, the Promissory Note and the Deed of
Trust securing the FWHFC Loan.
Neighborhood Services Department means the City's Neighborhood Services Department.
Plans means the plans and specifications related to the Required Improvements prepared by the
Developer's architect which have been delivered to and then reviewed and approved by City on or
before the Effective Date, and any and all amendments thereto approved by City.
Promissory Note means any note in the amount of the HOME Funds executed by Developer
payable to the order of City, as the same may be extended, amended, restated, supplemented or
otherwise modified. The parties agree to the use of a Promissory Note in substantially the form
attached as Exhibit "E"—Loan Documents.
Property means the land on which the Required Improvements shall be constructed as more
particularly described in and encumbered by the Deed of Trust and the Deed Restriction.
Permanent Supportive Housing Program or PSH Program means the combination of
dedicated PSH Units and the accompanying supportive services provided by the Supportive
Services Provider to the tenants of the PSH Units as further described in Exhibit "L"—
Requirements For Permanent Supportive Housing Units.
Permanent Supportive Housing Tenant means a tenant of the PSH Units.
Permanent Supportive Housing Unit or PSH Unit means a housing unit for which supportive
services are provided to assist homeless persons with disabilities to live independently as further
described in Exhibit"L"—Requirements For Permanent Supportive Housing Units. The
PSH Units may also be HOME Units.
This project contains 8 PSH Units.
Reimbursement Request means all reports and other documentation described in Section 10.
Required Improvements or the project means all the improvements for a 110-unit mixed income
multifamily rental housing project to be constructed on the Property, together with all fixtures,
tenant improvements and appurtenances now or later to be located on the Property and/or in such
improvements. The Required Improvements are commonly known as Mistletoe Station. The
current street address of the project is 1916 Mistletoe Blvd, Fort Worth, TX.
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Section 504 requirements means the requirements of Section 504 of the Rehabilitation Act of
1973 to provide accessible housing to persons with disabilities. Section 504 requires that 5% of
the units (but not less than 1 unit) in a newly constructed multifamily project must be accessible
to individuals with mobility impairments, and an additional 2% of the units (but not less than 1
unit) must be accessible to individuals with sensory impairments.
Stabilization means the earlier of(i) the date the project's senior loan converts to its permanent
phase and begins principal amortization, or (ii) 30 months following the date of Closing.
Subordination Agreements means the Subordination Agreements among Developer's
construction and permanent financing lenders, Developer, FWHFC and City outlining the relative
priorities of the construction and permanent loans and the City's Loan for the project.
Supportive Services Provider or SSP means the service provider retained by FWHFC at its cost
to provide supportive services to the PSH Tenants as further described in Exhibit "L" —
Requirements for Permanent Supportive Housing Units.
TDHCA means the Texas Department of Housing and Community Affairs.
Tenant Documentation means any documentation allowed under the definition of annual income
in 24 CFR Part 5.609 sufficient to show that a tenant is a HOME Eligible Household.
Documentation may include but is not limited to copies of paychecks, Social Security and
disability verification letters, interest or rental income statements, retirement income statements,
child support and alimony verification, unemployment benefit letters, and the like for initial tenant
income eligibility verifications, and the tenant income verification required every 6" year of the
Affordability Period. Documentation for tenant income eligibility verifications for other than the
initial lease and the 6" year of the Affordability Period shall be a City-approved income self-
certification form.
3. TERM AND EXTENSION.
3.1 Term of Contract.
The term of this Contract commences on the Effective Date and ends at the termination of
the Affordability Period unless earlier terminated as provided in this contract. All provisions
relating to completion of the Required Improvements terminate in 3 years unless earlier terminated
as provided in this Contract or extended as provided in Section 3.2. All provisions relating to the
HOME Program, the HOME Regulations, and the HOME Units shall remain in full force and
effect until the end of the Affordability Period.
3.2 Extension of Contract.
The provisions in this Contract relating to the completion of the Required Improvements
may be extended for 2 one-year extensions upon Developer submitting a request for an extension
in writing at least 60 days prior to the end of the initial 3 year period described in Section 3.1, or
the end of the first one-year extension. The request for an extension shall include the reasons for
the extension, and Developer's anticipated budget, construction schedule and goals for the
additional time. It is specifically understood that it is within City's sole discretion whether to
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approve or deny Developer's request for additional time to complete the Required Improvements.
Any such extension shall be in the form of an amendment to this Contract.
3.3 Term of Loan.
The term of the Loan shall commence on the date of the Promissory Note and terminates
(i) for the payment of$1,056,000.00 of the HOME Funds, as set forth in the Promissory Note
and (ii) for Developer's performance of the Affordability Requirements, the termination of the
Affordability Period, so long as the terms and conditions of this Contract and the Loan Documents
have been met.
4. DUTIES AND RESPONSIBILITIES OF CITY.
4.1 Provide HOME Funds.
City shall provide up to $1,056,000.00 of HOME Funds in the form of the Loan for part of
the cost of acquisition of the Property and construction of the Required Improvements, under the
terms and conditions of this Contract and the Loan Documents.
4.2 City Will Monitor.
City will monitor the activities and performance of Developer and any of its contractors,
subcontractors or vendors throughout the Affordability Period, but no less than annually as
required by 24 CFR Part 92.504.
5. DUTIES AND RESPONSIBILITIES OF DEVELOPER.
5.1 Construction of Required Improvements.
Developer shall complete the construction of the Required Improvements as described in
Exhibit "A"—Project Summary in accordance with the Plans, the schedule set forth in Exhibit
"C" - Construction and Reimbursement Schedule, and the terms and conditions of this
Contract.
5.1.1 Written Cost Estimates, Construction Contracts and Construction
Documents.
Developer shall submit any construction contracts and construction documents to City to
show the work to be undertaken for the Required Improvements in sufficient detail that City can
perform all required inspections in accordance with 24 CFR Part 92.251 (a)(2)(iv). City shall
review written cost estimates for the construction of the Required Improvements to determine that
such costs are reasonable. In the event City in its reasonable discretion determines that such costs
are unreasonable, Developer shall revise said costs estimates to City's reasonable satisfaction.
5.2 Use of HOME Funds.
5.2.1 Costs in Compliance with HOME Regulations and Contract.
Developer shall be reimbursed for eligible project costs with HOME Funds only if City
determines in its sole discretion that:
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5.2.1.1 Costs are eligible expenditures in accordance with the HOME
Regulations.
5.2.1.2 Costs are in compliance with this Contract and are reasonable and
consistent with industry norms.
5.2.1.3 Complete Documentation, as applicable, is submitted by Developer.
5.2.2 Budget.
Developer agrees that the HOME Funds will be paid on a reimbursement basis in
accordance with Exhibit "B" - Budget and Exhibit "C" - Construction and Reimbursement
Schedule. Developer may increase or decrease line item amounts in the HOME Funds Budget
with the Director's prior written approval,which approval shall be in the Director's sole discretion.
Any such increase or decrease in line items in the Budget shall comply with Section 5.2.1,Exhibit
"A—Project Summary, and shall not increase the total amount of HOME Funds.
5.2.3 Change in Budget.
5.2.3.1 Developer will notify City promptly of any additional funds it receives
for construction of the project, and City reserves the right to amend this
Contract in such instances to ensure compliance with HUD regulations
governing cost allocation.
5.2.3.2 Developer agrees to utilize the HOME Funds to supplement rather than
supplant funds otherwise available for the project.
5.3 Payment of HOME Funds to Developer.
HOME Funds will be disbursed to Developer at Closing or upon City's approval of
Developer's Reimbursement Requests for eligible expenditures, including submission of
Complete Documentation to City in compliance with Section 10. As more particularly described
in the HOME Funds Budget, City will hold back $100,000.00 of the HOME Funds until City
verifies that the first HOME Unit has been leased to a HOME Eligible Household. It is expressly
agreed by the Parties that any HOME Funds not reimbursed to Developer shall remain with City.
5.4 Identify Project Expenses Paid with HOME Funds.
Developer will keep accounts and records in such a manner that City may readily identify
and account for project expenses reimbursed with HOME Funds. These records shall be made
available to City for audit purposes and shall be retained as required hereunder.
5.5 Acknowledgement of City Payment of HOME Funds.
Within 90 days of Completion, Developer shall sign an acknowledgement that City has
paid all HOME Funds due under this Contract, or shall deliver a document executed by an officer
of Developer identifying all or any portion of the HOME Funds that City has not paid to Developer.
Once City has met all of its obligations for payment of HOME Funds hereunder, an officer of
Developer shall sign an acknowledgement of same.
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5.6. Security for City's Interest and Developer's Performance.
To secure City's interest in the Required Improvements and the performance of
Developer's obligations hereunder, Developer shall execute the Deed Restriction and the Loan
Documents and record the Deed of Trust and Deed Restriction encumbering the Property at the
earlier of(i) the acquisition of the Property, or (ii) the closing of Developer's construction loan.
No HOME Funds will be paid or reimbursed until the Deed of Trust and Deed Restriction are
recorded. The City's interest in preserving the affordability of the HOME Units, in accordance
with the requirements of the HOME Regulations, will be secured by the Deed Restriction, and will
be additionally secured by the Declaration of Land Use Restrictive Covenants ("LURA")
established and enforced by TDHCA for the Housing Tax Credits. TDHCA's LURA shall restrict
the project and Property to certain occupancy and rent requirements for a period of 35 years.
5.6.1 Loan Terms and Conditions.
Developer will be required to:
5.6.1.1 Execute and deliver the Deed Restriction, the Promissory Note, and
Deed of Trust along with any other Loan Documents required by City.
5.6.1.2 Provide City with a Mortgagee's Policy of title insurance in the amount
of the Loan.
5.6.1.3 Pay all costs associated with closing the Loan.
5.6.1.4 Provide City with an estimated settlement statement from the title
company at least 3 business days before closing.
5.6.1.5 Ensure City's lien is subordinate only to the senior indebtedness
described in the Subordination Agreements and the FWHFC Loan. City
must approve in writing any secured financing for the project that is to
be subordinate to the Loan.
5.6.1.6 The term of the Loan shall be as specified in Section 3.3.
5.6.1.7 Interest on the Loan shall not accrue during the construction period.
Beginning on the date of Conversion, interest shall accrue on the Loan
at the lesser of the Long Term Applicable Federal Rate or 1% per
annum simple interest. Principal and accrued interest shall be due and
payable in equal annual installments based on a 35 year amortization
schedule beginning 12 months after Conversion and continuing
annually thereafter on the anniversary date of the first payment until the
Final Payment Date in the Promissory Note, which shall be 6 months
after the maturity date of Developer's permanent loan, as defined in the
Company Agreement. Payments of principal and interest are only
payable from 75% of Surplus Cash as defined in the Company
Agreement. Principal and interest to the extent not paid from 75% of
Surplus Cash shall be deferred and shall be paid out of Developer's
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Surplus Cash in subsequent years until the Final Payment Date when the
entire unpaid principal and accrued interest will be due in full. Payments
will be applied first to accrued interest and the remainder to reduction of
principal.
5.6.1.8 In addition to the Deed Restriction, the terms of the Loan pertaining to
performance of the Affordability Requirements shall remain in effect
after the Final Payment Date for the remainder of the Affordability
Period to secure Developer's performance of the Affordability
Requirements and all provisions of this Contract pertaining to the
HOME Program.
5.6.1.9 Early repayment of the Loan shall not relieve Developer of its
obligations under this Contract or the HOME Regulations including but
not limited to the Affordability Requirements and other HOME
requirements. The Deed of Trust shall secure both repayment of the
HOME Funds and performance by Developer of its obligations under
this Contract during the Affordability Period.
5.6.1.10 Except for permanent loan conversion with Developer's permanent
lender, refinancing by Developer, or any subordinate financing other
than that approved herein or otherwise by City, shall require the review
and prior written approval of City for the purpose of ensuring
compliance with the underwriting and subsidy layering requirements of
the HOME Regulations, which approval shall not be unreasonably
withheld, conditioned or delayed.
5.6.1.11 Default under the FWHFC Loan shall be considered a default of the
Loan and a default of the Loan shall be considered a default of the
FWHFC Loan, subject to any applicable notice and/or cure period
contained in the FWHFC Loan Documents.
5.6.1.12 Failure by Developer to comply with this Section 5.6.1 will be an
event of default under this Contract and the Loan Documents.
5.7 Maintain Affordability Requirements.
Developer shall ensure that the HOME Units shall be occupied by HOME Eligible
Households throughout the Affordability Period as required by the HOME Regulations. Developer
must notify the City in writing within 30 days of either of the following occurrences: (i)Developer
has actual knowledge that a HOME Unit is occupied by a tenant who is not a HOME Eligible
Household, or(ii) a HOME Unit remains vacant for more than 90 days. In the event that a HOME
Unit is occupied by a tenant who is not a HOME Eligible Household, Developer shall have 30
days to determine if another tenant qualifies as a HOME Eligible Household or fill an empty unit
in the Project with a HOME Eligible Household. If either(i) or(ii) takes place and is not cured
within the time limits described in this Section, then Developer shall pay to City 10% of the
Loan amount as liquidated damages. The Parties agree that City's actual damages in the
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event of either (i) or (ii) happening and remaining uncured are uncertain and would be
difficult to ascertain and may include a finding by HUD, a repayment of funds to HUD by
City or otherwise impact the City's HOME grant or other federal grant funds. Therefore,
the Parties agree that payment under this Section of 10% of the Loan amount by Developer
to City is liquidated damages and not a penalty.
5.8 Deed Restriction.
Developer shall execute and deliver the Deed Restriction, which shall secure the
Requirements for the Affordability Period, as required by HUD Regulations. Early repayment of
the Loan shall not relieve Developer of its obligations under the Deed Restriction, this Contract,
or the HOME Regulations including but not limited to the Affordability Requirements and other
HOME requirements.
5.9 Affordability Requirements Survive Transfer.
The HOME Units must remain affordable without regard to the term of any mortgage or
transfer of ownership, pursuant to the terms of the Loan Documents, the Deed Restriction, or any
other mechanism provided by HUD. Any sale or transfer of the project during the Affordability
Period, excluding a transfer due to condemnation or to obtain utility services, may at City's sole
discretion require the repayment of the HOME Funds unless the new owner or transferee
affirmatively assumes in writing the obligations established hereunder for the HOME Units for
whatever time remains of the Affordability Period. Failure of the new owner or transferee to
promptly assume all of Developer's obligations under this Contract, the Loan Documents, and/or
the Deed Restriction will result in immediate termination of this Contract and any HOME Funds
already paid to Developer must be repaid to City within 30 days of such termination. In addition,
City may pursue any of its remedies under the Loan Documents or the Deed Restriction if the new
owner or transferee fails to assume Developer's obligations to maintain the Affordability
Requirements throughout the Affordability Period.
6. CONSTRUCTION.
6.1. Construction Schedule.
Developer will construct the Required Improvements in accordance with the schedule set
forth in the attached Exhibit "C" — Construction and Reimbursement Schedule. Developer
shall not begin construction until City sends a Notice to Proceed. Developer's failure to meet the
Construction Schedule or the Completion Deadline shall be an event of default. Subject to
Section 14.19,Developer may not change the Construction Schedule without the Director's prior
written approval, which approval shall be in the Director's reasonable discretion.
6.1.1 Written Cost Estimates, Construction Contracts and Construction
Documents.
Developer shall furnish City with the written cost estimates, construction contracts and
construction documents(collectively,the"Construction Documents")all of which shall describe
the construction of the Required Improvements in sufficient detail so that City can perform
inspections. City shall review and approve written cost estimates and determine that costs are
reasonable prior to the commencement of construction.
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6.1.2 Construction Inspections.
City will conduct progress and final inspections of construction of the project to ensure that
the work is done in accordance with the applicable building codes and the Construction
Documents. The construction of the project must pass a Neighborhood Services Department
Minimal Acceptable Standard Inspection report, a HUD Compliance Inspection Report and any
other applicable HUD-required inspections during the construction period, along with any
applicable final inspection approval from the City building inspectors at the completion of the
construction of the project.
6.2 Applicable Laws, Building Codes and Ordinances.
The Plans and construction for the Required Improvements shall (i) conform to all
applicable Federal, state, City and other local laws, ordinances, codes, rules and regulations,
including the HOME Regulations; (ii) meet all City building codes; (iii) meet the Energy
Conservation requirements as required by the State of Texas in Chapter 11 of the International
Building Code; (iv) if new construction, must conform to the Model Energy Code published by
the Council of American Building Officials; and (v) must pass a HUD Compliance Inspection
Report and inspection by City's Neighborhood Services Department inspectors.
6.3 Property Standards During Construction.
Developer shall comply with the following as applicable during the construction of the
Required Improvements: (i) the Property Standards in 24 CFR Part 92.251(a), (ii) accessibility
standards under 24 CFR Part 92.25 1(a)(2)(i), (iii) any City property standards, and (iv) all other
applicable accessibility standards for the project.
6.4 Lead-Based Paint Requirements.
Developer will comply with any applicable Federal lead-based paint requirements
including lead screening in buildings built prior to 1978 in accordance with 24 CFR Part 92.355
and 24 CFR Part 35,subparts A,B,J,K,M,and R,and the Lead:Renovation,Repair and Painting
Program Final Rule, 40 CFR Part 745, in the construction and/or rehabilitation of the Required
Improvements.
6.5 Approval of Plans and Specifications by City Not Release of Responsibility.
Approval of the Plans by City shall not constitute or be deemed (i) to be a release of the
responsibility or liability of Developer or any of its contractors or subcontractors, or their
respective officers, agents, employees and lower tier subcontractors, for the accuracy or the
competency of the Plans or the Construction Documents, including, but not limited to,any related
investigations, surveys, designs, working drawings and specifications or other documents; or (ii)
an assumption of any responsibility or liability by City for any negligent act, error or omission in
the conduct or preparation of any investigation, surveys, designs, working drawings and
specifications or other documents by Developer or any of its architects, contractors or
subcontractors, and their respective officers, agents, employees and lower tier subcontractors.
6.6 Contractor, Subcontractor and Vendor Requirements.
Developer will use commercially reasonable efforts to ensure that all contractors or
vendors utilized by Developer or subcontractors utilized by Developer's general contractor are
appropriately licensed and such licenses are maintained throughout the construction of the
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Required Improvements and the operation of the project when applicable. Developer shall ensure
that all contractors utilized by Developer, subcontractors utilized by Developer's general
contractor in the construction of the Required Improvements, or vendors utilized by Developer in
the operation of the project are not debarred or suspended from performing the contractor's,
subcontractor's or vendor's work by the City, the State of Texas, or the Federal government. For
purposes of this Contract, the term "vendors" does not include suppliers or materialmen.
Developer acknowledges that 2 CFR Part 200 forbids Developer from hiring or continuing
to employ any contractor, subcontractor or vendor that is listed on the Federal System for
Award Management,www.sam.gov ("SAM"). Developer must confirm by search of SAM that
all contractors, subcontractors or vendors are not listed by SAM as being debarred, both prior to
hiring and prior to submitting a Reimbursement Request which includes invoices from any such
contractor, subcontractor, or vendor. Failure to submit such proofs of search shall be an event
of default, if not cured within any applicable notice or cure period. In the event that City
determines that any contractor, subcontractor or vendor has been debarred, suspended, or is not
properly licensed, Developer or Developer's general contractor shall immediately cause such
contractor, subcontractor or vendor to immediately stop work on the project and Developer shall
not be reimbursed for any work performed by such contractor, subcontractor or vendor. However,
this Section should not be construed to be an assumption of any responsibility or liability by City
for the determination of the legitimacy, quality, ability, or good standing of any contractor,
subcontractor or vendor.
6.7. Furnish Complete Set of"As Built" Plans.
Developer shall furnish City a complete set of"as built"or marked-up plans for the project
at completion of construction after all final approvals have been obtained.
6.8 Broadband Infrastructure Requirements. In compliance with the requirements
of 24 CFR Part 5.100, Developer shall provide for the installation of broadband infrastructure, to
include cables, fiber optics, wiring, or other permanent infrastructure, including wireless
infrastructure, that is capable of providing access to Internet connections in individual housing
units, and that meets the definition of"advanced telecommunications capability" determined by
the Federal Communications Commission under Section 706 of the Telecommunications Act of
1996 (47 U.S.C. 1302).
7. TENANT AND LEASE REQUIRMENTS; PROPERTY STANDARDS DURING
AFFORDABILITY PERIOD.
7.1 Income Eligibility.
Developer must use the definition of annual income used by 24 CFR 5.609 to establish
tenant income eligibility. Developer shall use the most current HUD Income Guidelines.
Developer shall maintain Tenant Documentation sufficient to show that the HOME Units are
occupied by HOME Eligible Households. This Section shall survive the earlier termination or
expiration of this Contract and be applicable for the length of the Affordability Period.
7.2 Income Verification.
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7.2.1 Developer must verify that all tenants of HOME Units are HOME Eligible
Households with full Tenant Documentation at the time the initial lease for a HOME Unit is
executed. Tenants must certify the number of people in tenant's household along with such
person's names and ages. Developer shall obtain financial information on all members of a
tenant's household.
7.2.2 Developer must verify the income of the tenants of the HOME Units annually after
the initial lease is executed, but may use a City-approved tenant self-certification form as Tenant
Documentation. Notwithstanding the foregoing, Developer must verify the income eligibility
of all HOME Eligible Households with full Tenant Documentation every 6th year of the
Affordability Period.
7.2.3 Developer must maintain copies of Tenant Documentation as required under this
Contract.
7.2.4 City will review Tenant Documentation during the Affordability Period as part of
its monitoring.
7.3 Tenant Lease.
7.3.1 Developer shall submit to City the form of its tenant lease prior to leasing any
HOME Unit. Such lease shall comply with the provisions of 24 CFR Part 92.253 regarding the
following issues:
7.3.1.1 Length of lease term shall not exceed 2 years and may not be shorter
than 1 year for the initial lease term. If the lease is renewed, tenant and
landlord may agree to a longer or shorter term.
7.3.1.2 Lease may not include agreement by tenant to allow landlord to take,
hold or sell tenant's personal property without notice and a court
decision on the rights of the parties.
7.3.1.3 Lease may not include agreement by the tenant to excuse owner or
owner's agents from responsibility for any action or failure to act,
whether intentional or negligent acts.
7.3.1.4 Lease may not authorize landlord to institute a lawsuit without notice to
the tenant.
7.3.1.5 Lease may not include agreement by tenant to waive a jury trial or right
of appeal.
7.3.1.6 Lease may not include an agreement by tenant to pay legal costs of court
proceeding even if the tenant prevails in those proceedings regardless of
outcome.
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7.3.1.7 Lease may not include an agreement by the tenant to be sued, to admit
guilt or to a judgment in favor of the owner in a lawsuit brought in
connection with the lease.
7.3.1.8 Lease may not include an agreement by the tenant that the owner may
evict the tenant or household members without instituting civil court
proceedings in which the tenant has the opportunity to present a defense,
or before a court decision on the rights of the parties.
7.3.1.9 Lease may not include an agreement by the tenant to waive the tenant's
right to appeal or otherwise challenge in court a court decision in
connection with the lease.
7.3.1.10 Lease may not include an agreement by the tenant to accept supportive
services that are offered.
7.3.2 Termination of Tenancy of HOME Units.
Developer may not terminate the tenancy of a HOME Eligible Household in a HOME Unit
except for serious or repeated violation of the terms and conditions of the lease; for violation of
applicable federal, state or local laws; or for other good cause. Good cause does not include an
increase in the income of the HOME Eligible Household. To terminate or refuse to renew the
tenancy,Developer must serve written notice upon the tenant specifying the grounds for the action
at least 30 days before the termination of tenancy.
7.3.3 Revised Lease Forms.
Developer shall provide City copies of revised lease forms within 30 days of any change
to its lease form. All changes to Developer's lease form shall comply with the requirement of
Section 7.3.1.
7.4 Tenant Household Characteristics.
7.4.1 Developer shall provide City with the information about the household
characteristics of the first tenant renting a HOME Unit on Exhibit "G" — Project Compliance
Report: Rental Housing.
7.4.2 At City's request, Developer shall provide demographic information on all tenants
in the project in order to show compliance with Section 7.7 during the Affordability Period.
7.5 Tenant Rent.
7.5.1 Rents charged to tenants of the HOME Units are subject to 24 CFR 92.252 (a) and
(b)and are subject to review and approval by City at initial lease up and prior to any rent increases.
Under no circumstances may the maximum rent charged to tenants of HOME Units exceed the
High Home Rent minus utility allowances (excluding telephone). Developer agrees to abide by
HUD-approved schedules of HOME rent levels and City-approved utility allowances.
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7.5.2 City shall provide Developer with information on updated HOME rent limits so
that rents may be adjusted (not to exceed the maximum HOME rent limits). Developer shall
provide City annually with information on rents and occupancy of the HOME Units to demonstrate
compliance with 24 CFR Part 92.252 (a) and (b). City shall review the rents for compliance and
approve or disapprove them every year.
7.5.3 Any increase in rents for the HOME Units is subject to the provisions of any
outstanding leases for said units. Developer shall provide tenants of the HOME Units with not
less than 30 days prior written notice before implementing any increase in rents.
7.5.4 City shall adopt utility allowances in accordance with HOME Regulations and
HUD guidance. Such allowances shall be updated regularly, and shall be furnished to Developer.
Developer shall adjust tenant rents accordingly in compliance with HOME Regulations.
7.5.5
7.6 Tenant Selection.
Within 90 days of the Effective Date, Developer must submit to City for City's approval
Developer's tenant selection policy and criteria that address the following:
7.6.1 The tenant selection policy must be consistent with the purpose of providing
housing for very low and low income persons.
7.6.2 The tenant selection policy must provide for:
7.6.2.1 Selection of tenants from a written waiting list in the chronological order
of their application, insofar as is practicable;
7.6.2.2 Prompt written notification to any rejected applicant of the grounds for
such rejection; and
7.6.2.3 Bi-lingual leasing and management assistance.
7.6.3 Holders of rental assistance subsidies (such as HUD's Housing Choice Voucher or
similar subsidy)must not be excluded from renting a unit in the project.
7.6.4 The tenant selection policy must address non-discrimination and affirmative
marketing as discussed in Section 7.7.
7.6.5 Developer must market Accessible Units in the following order:
7.6.5.1 Within the project to persons requiring an accessible unit.
7.6.5.2 To persons on the waiting list requiring an accessible unit.
7.6.5.3 To the general community for persons requiring accessible unit.
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7.6.5.4 To persons that do not require an accessible unit.
7.6.6 The tenant selection policy must (i) address the lease requirements described in
Section 7.3, (ii)address managing HOME Unit requirements, and(iii)must comply with state and
local tenant/landlord laws.
7.7 Affirmative Marketing.
Developer must adopt and implement affirmative marketing procedures as required by 24
CFR 92.351 if the project involves the construction of 5 or more HOME Units. The procedures
and requirements must include methods for informing the public, owners and potential tenants
about fair housing laws and policies so as to ensure that all individuals are given an equal
opportunity to participate in the project without regard to sex, age, race, color, creed, nationality,
national origin, religion, handicap status, disability, familial status, sexual orientation, gender
identity, gender expression or transgender. The procedures shall include methods to be used by
Developer to inform and solicit applications for tenancy from person in the housing market area
who are not likely to apply for the housing without special outreach (e.g., through the use of
community organizations,places of worship,employment centers,fair housing groups,or housing
counseling agencies.) The procedures and requirements must designate an individual who will be
responsible for marketing the project and must establish a clear application screening plan.
Developer's affirmative marketing procedures must be submitted to City for approval prior to
implementation; provided however, City shall have no responsibility for affirmative marketing of
the project.
7.7.1 Developer shall keep records describing actions taken to affirmatively market the
HOME Units and the project sufficient to enable City to assess the results of the affirmative
marketing.
7.8 Property Inspections During Initial Lease-Up of HOME Units; Annual
Inspections of HOME Units.
City shall inspect units in the project before they are placed into service. City shall inspect
the HOME Units prior to a HOME Eligible Household occupying such unit to ensure that each
HOME Unit meets the appropriate HOME standards. Thereafter, City will inspect the HOME
Units annually.
7.9 Proiect Maintenance and Inspections During Affordability Period.
Developer shall ensure that the project is maintained in accordance with all applicable
HUD property standards for the duration of the Affordability Period,which at a minimum shall be
those property standards required in 24 CFR Part 92. City will verify maintenance of the project
to these standards through on-site inspections every year.
8. ADDITIONAL HOME REQUIREMENTS.
Developer agrees to comply with all requirements of the HOME Program as stated in the
HOME Regulations, including, but not limited to the following:
8.1 Environmental Review.
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HOME Funds will not be paid and costs cannot be incurred until City has conducted and
completed an environmental review and completed an Environmental Review Record as required
by 24 CFR Part 58. The environmental review may result in a decision to proceed with, modify,
or cancel the project. Further, Developer will not undertake or commit any funds to physical or
choice limiting actions, including if applicable, property acquisition, demolition, movement,
rehabilitation, conversion, repair or construction prior to the environmental clearance. Any
violation of this Section will (i) cause this Contract to terminate immediately; (ii) require
Developer to repay to City any HOME Funds received and forfeit any future payments of
HOME Funds; and (iii) Developer must pay 10% of the HOME Funds to City as liquidated
damages. The Parties agree that City's actual damages in the event of Developer violating
this Section are uncertain and would be difficult to ascertain and may include a finding by
HUD, a repayment of funds to HUD by City or otherwise impact the City's HOME grant or
other Federal grant funds. Therefore, the Parties agree that payment of 10% of the Loan
amount by Developer to City under this Section is liquidated damages and not a penalty.
8.1.1 Mitigation.
Developer must take the mitigation actions outlined in Exhibit "A-2" — Environmental
Mitigation Actions. Failure to complete the required mitigation action is an event of default
under this Contract.
8.2 Contract Not Constituting Commitment of Funds.
Notwithstanding any provision of this Contract, the Parties agree and acknowledge that
this Contract does not constitute a commitment of HOME Funds, and that such commitment or
approval may occur only upon satisfactory completion of environmental review and receipt by
City of an authorization to use grant funds from HUD under 24 CFR Part 58.
8.3. Monitoring.
8.3.1 Developer understands and agrees that it will be subject to monitoring by City for
compliance with the HOME Regulations, the terms of this Contract and the Loan Documents
during the Affordability Period. Developer will provide reports and access to project files as
requested by City during the Affordability Period and for 5 years after it ends.
8.3.2 Representatives of City, HUD, HUD Office of the Inspector General, and the
United States Comptroller General shall have access during regular business hours, upon at least
48 hours prior notice, to Developer's offices and records and to Developer's officers and agents
that are related to the use of the HOME Funds and the requirements of the HOME Regulations
during the Affordability Period, and to Developer's officers, agents, employees, contractors,
subcontractors and vendors for the purpose of such monitoring
8.3.3 In addition to other provisions of this Contract regarding frequency of monitoring,
City reserves the right to perform desk reviews or on-site monitoring of Developer's compliance
with the terms and conditions of this Contract and the Loan. After each monitoring visit, City
shall provide Developer with a written report of the monitor's findings. If the monitoring report
notes deficiencies in Developer's performance,the report shall include requirements for the timely
correction of said deficiencies by Developer. Failure by Developer to take the action specified in
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the monitoring report may be cause for suspension or termination of this Contract as provided
herein, or City may take all actions allowed in the Loan Documents.
8.3.4 Developer shall annually provide to City the results of any state or federal
monitoring related to the project including any monitoring by TDHCA. Such results shall be
submitted annually to City with the submission of its annual audit and financial statements.
8.3.5 This Section 8.3 shall be applicable for the duration of the Affordability Period
and shall survive the earlier termination or expiration of this Contract.
8.4 Compliance with the Uniform Relocation Act.
If applicable, Developer shall comply with the relocation requirements of 24 CFR Part
92.353 and all other applicable federal and state laws and City ordinances and requirements
pertaining to relocation.
8.5 Compliance with Davis-Bacon Act.
If applicable, Developer and its general contractor and all lower tier subcontractors will
comply with the Davis-Bacon Act as described in Section 14.14 and Exhibit "H" — Federal
Labor Standards Provisions -Davis-Bacon Requirements.
8.6 Developer Procurement Standards.
Developer shall ensure that procurement of materials and services is done in a cost effective
manner. Developer shall comply with all applicable federal, state and local laws,regulations, and
ordinances for making procurements under this Contract. Developer shall establish written
procurement procedures to ensure that materials and services are obtained in a cost effective
manner
8.7 Cost Principles/Cost Reasonableness.
The eligibility of costs incurred for performance rendered shall be determined in
accordance 2 CFR Part 200.402 through 2 CFR Part 200.405, as applicable, regarding cost
reasonableness and allocability.
8.8 Financial Management Standards.
Developer agrees to adhere to the accounting principles and procedures required in 2 CFR
Part 200, as applicable, utilize adequate internal controls, and maintain necessary supporting and
back-up documentation for all costs incurred in accordance with 2 CFR Part 200.302 and Part
200.303.
8.9 Uniform Administrative Requirements.
Developer will comply with the Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards in 2 CFR Part 200, as applicable, or any reasonably
equivalent procedures and requirements that City may require.
8.10 Compliance with FFATA and Whistleblower Protections.
Developer shall provide City with all necessary information for City to comply with the
requirements of 2 CFR 300(b), including provisions of the Federal Funding Accountability and
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Transparency Act("FFATA")governing requirements on executive compensation and provisions
governing whistleblower protections contained in 10 U.S.C. 2409, 41 U.S.C. 4712, 10 U.S.C.
2324, 41 U.S.C. 4304 and 41 U.S.C. 4310.
8.10.1 Developer shall provide City its DUNS number prior to the payment of any
HOME Funds.
8.11 Internal Controls.
In compliance with the requirements of 2 CFR 200.303,Developer shall:
8.11.1 Establish and maintain effective internal control over the HOME Funds that
provides reasonable assurance that Developer is managing the HOME Funds in compliance with
federal statutes,regulations, and the terms and conditions of this Contract. These internal controls
shall be in compliance with guidance in "Standards for Internal Control in the Federal
Government" issued by the Comptroller General of the United States or the "Internal Control
Integrated Framework" issued by the Committee of Sponsoring Organizations of the Treadway
Commission("COSO");
8.11.2 Comply with federal statutes, regulations, and the terms and conditions of this
Contract;
8.11.3 Evaluate and monitor Developer's compliance with statutes, regulations and the
terms and conditions of this Contract;
8.11.4 Take prompt action when instances of noncompliance are identified including
noncompliance identified in audit findings; and
8.11.5 Take reasonable measures to safeguard protected personally identifiable
information and other information that HUD or City designates as sensitive or Developer considers
sensitive consistent with applicable federal, state, local and tribal laws regarding privacy and
obligations of confidentiality.
8.12 Copyright and Patent Rights.
No reports,maps,or other documents produced in whole or in part under this Contract shall
be the subject of an application for copyright by or on behalf of Developer. HUD and City shall
possess all rights to invention or discovery, as well as rights in data which may arise as a result of
Developer's performance under this Contract.
8.13 Terms Applicable to Contractors, Subcontractors and Vendors.
Developer understands and agrees that all terms of this Contract, whether regulatory or
otherwise, shall apply to any and all contractors, subcontractors and vendors of Developer which
are in any way paid with HOME Funds or who perform any work in connection with the project.
Developer shall cause all applicable provisions of this Contract to be included in and made a part
of any contract or subcontract executed in the performance of its obligations hereunder, including
its obligations regarding the Affordability Requirements and the HOME Regulations during the
Affordability Period. Developer shall monitor the services and work performed by its contractors,
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subcontractors and vendors on a regular basis for compliance with the Affordability Requirements,
the HOME Regulations and Contract provisions. Developer is responsible to cure all violations
of the HOME Regulations committed by its contractors,subcontractors or vendors. City maintains
the right to insist on Developer's full compliance with the terms of this Contract and the HOME
Regulations and Developer is responsible for such compliance regardless of whether actions to
fulfill the requirements of this Contract or the HOME Regulations are taken by Developer or by
Developer's contractors, subcontractors or vendors. Developer acknowledges that the
provisions of this Section shall survive the earlier termination or expiration of this Contract
and be applicable for the length of the Affordability Period and for 5 years thereafter.
8.14 Payment and Performance Bonds.
Subject to the requirements of 2 CFR Part 200, Developer shall furnish City with payment
and performance bonds in a form acceptable to City in the amount of the construction cost for the
project but not less than $1,806,000.00, which is the total amount of the Loan and the FWHFC
Loan. At City's discretion, other forms of assurance may be acceptable so long as they meet the
requirements of the HOME Regulations.
9. RECORD KEEPING, REPORTING AND DOCUMENTATION
REQUIREMENTS, RIGHT TO AUDIT.
9.1 Record Keeping.
Developer shall maintain a record-keeping system as part of its performance of this
Contract and shall promptly provide City with copies of any document City deems necessary for
the effective fulfillment of City's monitoring and evaluation responsibilities. Specifically,
Developer will keep or cause to be kept an accurate record of all actions taken and all funds spent,
with supporting and back-up documentation as well as all Tenant Documentation. Developer will
maintain all records and documentation related to this Contract for 5 years after the end of the
Affordability Period. If any claim, litigation, or audit related to this Contract or the project is
initiated before the expiration of the 5 year period, the relevant records and documentation must
be retained until all such claims, litigation or audits have been resolved.
9.1.2 Access to Records.
City representatives and HUD and any duly authorized officials of the federal government
will have full access to, and the right to examine, audit, excerpt and/or transcribe any of
Developer's records pertaining to all matters covered by this Contract throughout the Affordability
Period and for 5 years thereafter. Such access shall be during regular business hours upon at least
48 hours prior notice.
9.2 Reports.
Developer will submit to City all reports and documentation described in this Contract in
such form as City may prescribe. Developer may also be required to submit a final performance
and/or final financial report if required by City at the termination of this Contract and/or the
termination of the Loan in such form and within such times as City may prescribe. Failure to
submit any report or documentation to City required by this Contract shall be an event of
default and City may exercise all of it remedies for default under this Contract and Loan
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Documents. City shall not exercise its rights hereunder for default until its gives Developer 30
days' notice of such failure and Developer has failed to cure such default.
9.2.1 Additional Information.
Developer shall provide City with additional information as may be required by state or
federal agencies to substantiate HOME Program activities and/or expenditure eligibility.
9.3 Change in Reporting Requirements and Forms.
City retains the right to change reporting requirements and forms at its reasonable
discretion. City will notify Developer in writing at least 30 days prior to the effective date of such
change, and the Parties shall execute an amendment to the Contract reflecting such change if
necessary.
9.4 City Reserves the Right to Audit.
City reserves the right to perform an audit of Developer's project operations and finances
at any time during the term of this Contract and during the Affordability Period and for 5 years
thereafter, if City determines that such audit is necessary for City's compliance with the HOME
Regulations or other City policies, and Developer agrees to allow access to all pertinent materials
as described herein. If such audit reveals a questioned practice or expenditure, such questions
must be resolved within 15 business days after notice to Developer of such questioned practice or
expenditure. If questions are not resolved within this period, City reserves the right to withhold
further funding under this and/or other contract(s) with Developer. IF AS A RESULT OF ANY
AUDIT IT IS DETERMINED THAT DEVELOPER HAS FALSIFIED ANY
DOCUMENTATION OR MISUSED, MISAPPLIED OR MISAPPROPRIATED HOME
FUNDS OR SPENT HOME FUNDS ON ANY INELIGIBLE ACTIVITIES, DEVELOPER
AGREES TO REIMBURSE CITY THE AMOUNT OF SUCH MONIES PLUS THE
AMOUNT OF ANY SANCTIONS,PENALTY OR OTHER CHARGE LEVIED AGAINST
CITY BY HUD BECAUSE OF SUCH ACTIONS.
10. REIMBURSEMENT REQUIREMENTS.
Developer shall provide City with Complete Documentation and the following reports as
shown in Exhibit"F"—Reimbursement Forms with each Reimbursement Request:
10.1 Attachment I—Invoice.
This report shall contain the amount requested for reimbursement in the submitted request,
and the cumulative reimbursement requested to date(inclusive of the current request). This report
must be signed by an authorized signatory of Developer. By signing Attachment I, Developer is
certifying that the costs are valid, eligible, and consistent with the terms and conditions of this
Contract, and the data contained in the report is true and correct.
10.2 Attachment II—Expenditure Worksheet.
This report shall itemize each expense requested for reimbursement by Developer. In order
for this report to be complete the following must be submitted:
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10.2.1 Invoices for each expense with an explanation as to how the expense pertains
to the project, if necessary; and
10.2.2 Proof that each expense was paid by Developer, which proof can be satisfied
by cancelled checks, wire transfer documentation, paid receipts or other appropriate banking
documentation.
10.3. Deadline for Submitting Reimbursement Requests.
All Reimbursement Requests along with Complete Documentation shall be submitted by
Developer to City within 60 calendar days from each of the deadlines as shown in Exhibit"C" —
Construction and Reimbursement Schedule.
10.3.1 CITY SHALL HAVE NO OBLIGATION TO MAKE PAYMENT ON
ANY REIMBURSEMENT REQUEST THAT IS NOT RECEIVED WITHIN 60 DAYS OF
THE DEADLINES SHOWN IN EXHIBIT "C" — CONSTRUCTION AND
REIMBURSEMENT SCHEDULE. In addition, Developer's failure to timely submit
Reimbursement Requests and Complete Documentation along with any required reports
shall be an event of default.
10.3.2 CITY SHALL HAVE NO OBLIGATION TO MAKE PAYMENT ON
ANY REIMBURSEMENT REQUEST THAT IS NOT RECEIVED WITHIN 30
CALENDAR DAYS FOLLOWING THE COMPLETION DEADLINE.
10.3.3 Final Payment.
Developer shall not be reimbursed for Final Payment until it submits Exhibit "G"—HOME
Project Compliance Report to City.
10.4 Withholding Payment.
CITY SHALL WITHHOLD PAYMENT ON ANY REIMBURSEMENT REQUEST
THAT DOES NOT INCLUDE THE REQUIRED COMPLETE DOCUMENTATION.
11. DEFAULT AND TERMINATION.
11.1 Failure to Begin or Complete the Required Improvements
11.1.1 If Developer fails to begin construction within 9 months of the Effective Date,
this Contract shall automatically terminate without further warning or opportunity to cure, and
with no penalty or liability to City.
11.1.2 If City determines that the Required Improvements were not completed by the
Completion Deadline(as may be modified in accordance with Section 14.19)or have failed to pass
any of the inspections described in Section 6.1.1 (or to promptly correct any noted deficiency and
subsequently pass such inspection), City shall have the right to terminate this Contract with no
penalty or liability to City, with such termination to be effective immediately upon written notice.
City shall also be entitled to demand repayment of the HOME Funds and enforce any of the
provisions of Loan documents for default.
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11.2 Failure to Submit Complete Documentation During Construction.
11.2.1 If Developer fails to submit all applicable Complete Documentation during
construction of the Required Improvements in accordance with Exhibit "C"—Construction and
Reimbursement Schedule, or if any report or documentation submitted as part of Complete
Documentation is not in compliance with this Contract or the HOME Regulations as determined
by City, City will notify Developer in writing and the Developer will have 15 calendar days from
the date of the written notice to submit or resubmit any such report or documentation. If Developer
fails to submit or resubmit any such report or documentation within such time, City shall have the
right to withhold payments. If such failure continues for an additional 15 days (a total of 30 days)
City shall have the right to terminate this Contract effective immediately upon written notice
of such intent with no penalty or liability to City. Notwithstanding anything to the contrary
herein, City will not be required to pay any HOME Funds to Developer during the period that any
such report or documentation is not in compliance with this Contract or the HOME Regulations.
11.2.2 If any of Developer's Reimbursement Requests are incomplete or otherwise not
in compliance with this Contract or the HOME Regulations as determined by City,City will notify
Developer in writing of such default and the Developer will have 15 calendar days from the date
of the written notice to resubmit any such Reimbursement Request to cure the default. If the
Developer fails to cure the default within such time, Developer shall forfeit any payments
otherwise due under such Reimbursement Request. If such failure to resubmit such
Reimbursement Request continues for an additional 15 days (a total of 30 days) the City shall
have the right to terminate this Contract effective immediately upon written notice of such
intent with no penalty or liability to City. Notwithstanding anything to the contrary herein,City
will not be required to pay any HOME Funds to Developer during the period that any such
Reimbursement Request is not in compliance with this Contract or the HOME Regulations.
11.2.3 In the event of more than 3 instances of default, cured or uncured, under
Sections 11.2.1 or 11.2.2 which have a material adverse impact on the project, City reserves
the right at its sole option to terminate this Contract effective immediately upon written
notice of such intent with no penalty or liability to City.
11.2.4 Notwithstanding anything to the contrary herein, City will not be required to
pay any HOME Funds to Developer during the period that any Reimbursement Requests, reports
or documentation are past due or are not in compliance with this Contract or the HOME
Regulations, or during any period during which Developer is in default of this Contract.
11.2.5 In the event of termination under this Section 11.2, all HOME Funds awarded
but unpaid to Developer pursuant to this Contract shall be immediately forfeited and Developer
shall have no further right to such funds. Any HOME Funds already paid to Developer must be
repaid to City within 30 days of termination under this Section. Failure to repay such HOME
Funds will result in City exercising all legal remedies available to City under this Contract
and the Loan Documents. For clarification, the defaults and related remedies set out in this
Section 11.2 are not intended to arise from mathematical errors or other minor defects in a
Reimbursement Request.
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11.3 Failure to Submit Required Reports and Documentation During
Affordability Period.
If Developer fails to maintain all records and documentation as required in Section 9, or
fails to submit any report or documentation required by this Contract after the Required
Improvements are completed, or if the submitted report or documentation is not in compliance
with this Contract or the HOME Regulations as determined by City, City will notify Developer in
writing and the Developer will have 30 calendar days from the date of the written notice to obtain
or recreate the missing records or documentation, or submit or resubmit any such report or
documentation to City. If Developer fails to maintain the required reports or documentation, or
submit or resubmit any such report or documentation within such time, City shall have the right
to terminate this Contract effective immediately upon written notice of such intent with no
penalty or liability to City. In the event of termination under this Section 11.3, any HOME
Funds paid to Developer must be repaid to City within 30 days of termination. Failure to
repay such HOME Funds will result in City exercising all legal remedies available to City
under this Contract and the Loan Documents.
11.4 In General.
11.4.1 Subject to Sections 11.1, 11.2 and 11.3, and unless specifically provided
otherwise in this Contract, Developer shall be in default if Developer breaches any term or
condition of this Contract. In the event that such a breach remains uncured after 30 calendar days
following written notice by City (or such other notice period as may be specified herein), or if
Developer has diligently and continuously attempted to cure following receipt of such written
notice but reasonably required more than 30 calendar days to cure, as determined by both Parties
mutually and in good faith, City shall have the right to elect, in City's sole discretion,to (i) extend
Developer's time to cure, (ii)terminate this Contract effective immediately upon written notice of
such intent to Developer, or(iii)pursue any other legal remedies available to City.
11.4.2 City's remedies may include:
11.4.2.1 Direct Developer to prepare and follow a schedule of actions for
carrying out the affected activities, consisting of schedules,
timetables and milestones necessary to implement the affected
activities, including extending the Affordability Period.
11.4.2.2 Direct Developer to establish and follow a management plan that
assigns responsibilities for carrying out the remedial activities.
11.4.2.3 Cancel or revise activities likely to be affected by the performance
deficiency, before expending HOME Funds for the activities.
11.4.2.4 Reprogram HOME Funds that have not yet been expended from
affected activities to other eligible activities or withhold HOME
Funds.
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11.4.2.5 Direct Developer to reimburse City in any amount of HOME Funds
not used in accordance with the HOME Regulations.
11.4.2.6 Suspend reimbursement of HOME Funds for affected activities.
11.4.2.7 Any other appropriate action including but not limited to any
remedial action legally available such as declaratory judgment,
specific performance, damages, temporary or permanent
injunctions, termination of this Contract or any other contracts with
Developer, and any other available remedies.
11.4.3 In the event of termination under this Section 11.4, all HOME Funds awarded
but unpaid to Developer pursuant to this Contract shall be immediately rescinded and Developer
shall have no further right to such funds and any HOME Funds already paid to Developer must be
repaid to City within 30 days of termination. Failure to repay such HOME Funds will result in
City exercising all legal remedies available to City under this Contract or the Loan
Documents.
11.5 No Funds Disbursed while in Breach.
Developer understands and agrees that no HOME Funds will be paid to Developer until all
defaults are cured to City's satisfaction.
11.6 No Compensation After Date of Termination.
In the event of termination,Developer shall not receive any HOME Funds in compensation
for work undertaken after the date of termination.
11.7 Rights of City Not Affected.
Termination shall not affect or terminate any of the existing rights of City against
Developer, or which may thereafter accrue because of such default, and this provision shall be in
addition to any and all other rights and remedies available to City under the law and Loan
Documents including, but not limited to, compelling Developer to complete the Required
Improvements in accordance with the terms of the Contract. Such termination does not terminate
any applicable provisions of this Contract that have been expressly noted as surviving the term or
termination of this Contract. No delay or omission by City in exercising any right or remedy
available to it under this Contract shall impair any such right or remedy or constitute a waiver or
acquiescence in any Developer default.
11.8 Waiver of Breach Not Waiver of Subsequent Breach.
The waiver of a breach of any term,covenant, or condition of this Contract shall not operate
as a waiver of any subsequent breach of the same or any other term, covenant or condition hereof.
11.9 Civil, Criminal and Administrative Penalties.
Failure to perform all the Contract terms may result in civil, criminal or administrative
penalties, including, but not limited to those set out in this Contract.
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11.10 Termination for Cause.
11.10.1 City may terminate this Contract in the event of Developer's default, inability,
or failure to perform, subject to notice, grace and cure periods. In the event City terminates this
Contract for cause, all HOME Funds awarded but unpaid to Developer pursuant to this Contract
shall be immediately rescinded and Developer shall have no further right to such funds and any
HOME Funds already paid to Developer must be repaid to City within 30 calendar days of
termination. Failure to repay such HOME Funds will result in City exercising all legal remedies
available to City under this Contract or the Loan Documents. DEVELOPER
ACKNOWLEDGES AND AGREES THAT IF CITY TERMINATES THIS CONTRACT
FOR CAUSE, NEITHER DEVELOPER NOR ANY AFFILIATES OF DEVELOPER
SHALL BE CONSIDERED FOR ANY OTHER CITY CONTRACT FOR HOME FUNDS
FOR A MINIMUM OF 5 YEARS FROM THE DATE OF TERMINATION. This provision
shall not apply to the Investor.
11.10.2 Developer may terminate this Contract if City does not provide the HOME
Funds substantially in accordance with this Contract. In such event,the termination of the Contract
shall have the effect of returning the Parties to their respective circumstances as existed prior to
the execution of this Contract, and no terms or obligations shall survive the date of termination,
including but not limited to, reporting, inspections or the Affordability Period.
11.10.3 City may terminate this Contract if Developer defaults on the FWHFC Loan.
11.11 Termination for Convenience.
In terminating in accordance with 2 CFR 200,Appendix Il,this Contract may be terminated
in whole or in part only as follows:
11.11.1 By City with the consent of Developer in which case the Parties shall agree
upon the termination conditions, including the effective date and in the case of partial termination,
the portion to be terminated; or
11.11.2 By Developer upon written notification to City setting forth the reasons for such
termination,the effective date, and in the case of partial termination,the portion to be terminated.
In the case of a partial termination, City may terminate the Contract in its entirety if City
determines in its sole discretion that the remaining portion of the Contract to be performed or
HOME Funds to be spent will not accomplish the purposes for which this Contract was made.
11.12 Dissolution of Developer Terminates Contract.
In the event Developer is dissolved or ceases to exist, this Contract shall terminate. In the
event of termination under this Section, all HOME Funds are subject to repayment and/or City
may exercise all of its remedies under this Contract and the Loan Documents.
11.13 Reversion of Assets.
In the event this Contract is terminated with or without cause,all tangible personal property
owned by Developer that was acquired or improved with the HOME Funds shall belong to City
and shall automatically transfer to City or to such assignees as City may designate.
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11.14 Notice of Termination under Subordination Agreements.
City shall not terminate this Contract without first giving notice and opportunity to cure as
required in the Subordination Agreements.
11.15 Notice to Investor of Default.
City shall furnish Investor with notice of any default under this Contract at the address
shown below.
12. REPAYMENT OF HOME FUNDS.
All HOME Funds are subject to repayment in the event the project does not meet the
requirements as set out in this Contract or in the HOME Regulations. If Developer takes any
action that results in City being required to repay all or any portion of the HOME Funds to
HUD, Developer agrees it will reimburse City for such repayment. If Developer takes any
action that results in City receiving a finding from HUD about the project, whether or not
repayment to HUD is required of City, Developer agrees it will pay City 10% of the HOME
Funds as liquidated damages. The Parties agree that City's damages in the event of either
repayment to HUD being required or receiving a finding from HUD are uncertain and would
be difficult to ascertain and may include an impact on City's HOME grant or other Federal
grant funds, in addition to a finding by HUD or a repayment of funds to HUD by City.
Therefore, the Parties agree that payment under this Section of 10% of the Loan amount by
Developer to City is liquidated damages and not a penalty.
13. MATERIAL OWNERSHIP CHANGE.
Except for Permitted Transfers in accordance with the terms of the Deed of Trust,the Deed
Restriction and except as permitted in accordance with Developer's First Amended and Restated
Operating Agreement(the "Company Agreement"), as may be amended and restated from time
to time to admit Investor or other Members, or otherwise with City consent, if ownership of
Developer materially changes after the date of this Contract, City may, but is not obligated to,
terminate this Contract. City has 30 days to make such determination after receipt of notice from
Developer and failure to make such determination in that time period will constitute a waiver. In
the event of termination under this Section 13, all HOME Funds awarded but not yet paid to
Developer pursuant to this Contract shall be immediately rescinded and Developer shall have no
further right to such funds. Any HOME Funds already paid to Developer must be repaid to City
within 30 days of termination under this Section.
Notwithstanding anything to the contrary contained herein,the respective interests of Investor shall
be freely transferable and any amendment to the Company Agreement to effectuate such transfers
shall not require City consent.
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14. GENERAL PROVISIONS
14.1 Developer an Independent Contractor.
Developer shall operate hereunder as an independent contractor and not as an officer,agent,
servant or employee of City. Developer shall have exclusive control of, and the exclusive right to
control, the details of the work and services performed hereunder, and all persons performing
same, and shall be solely responsible for the acts and omissions of its officers, members, agents,
servants, employees, contractors, subcontractors, vendors,tenants, licensees or invitees.
14.2 Doctrine of Respondeat Superior.
The doctrine of respondeat superior shall not apply as between City and Developer, its
officers, members, agents, servants, employees, contractors, subcontractors, vendors, tenants,
licensees or invitees, and nothing herein shall be construed as creating a partnership or joint
enterprise between City and Developer. City does not have the legal right to control the details of
the tasks performed hereunder by Developer, its officers, members, agents, employees,
contractors, subcontractors,vendors, licensees or invitees.
14.3 Developer Property.
City shall under no circumstances be responsible for any property belonging to Developer,
its officers, members, agents, employees, contractors, subcontractors, vendors, tenants, licensees
or invitees that may be lost, stolen or destroyed or in any way damaged and DEVELOPER
HEREBY INDEMNIFIES AND HOLDS HARMLESS CITY AND ITS OFFICERS,
AGENTS,AND EMPLOYEES FROM ANY AND ALL CLAIMS OR SUITS PERTAINING
TO OR CONNECTED WITH SUCH PROPERTY.
14.4 Religious Organization.
No portion of the HOME Funds shall be used in support of any sectarian or religious activity. In
addition,there must be no religious or membership criteria for tenants of a HOME-funded
property.
14.5 Venue.
Venue for any action, whether real or asserted, at law or in equity, arising out of the
execution, performance, attempted performance or non-performance of this Contract, shall lie in
Tarrant County, Texas.
14.6 Governing Law.
This Contract shall be governed by and construed in accordance with the laws of the State
of Texas. If any action, whether real or asserted, at law or in equity, arises out of the execution,
performance or non-performance of this Contract or on the basis of any provision herein, for any
issue not governed by federal law, the choice of law shall be the laws of the State of Texas.
14.7 Severability.
The provisions of this Contract are severable, and if for any reason a clause, sentence,
paragraph or other part of this Contract shall be determined to be invalid by a court or federal or
state agency, board or commission having jurisdiction over the subject matter thereof, such
invalidity shall not affect other provisions which can be given effect without the invalid provision.
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14.8 Written Agreement Entire Agreement.
This written instrument and the Exhibits, Addendums and Attachments attached hereto,
which are incorporated by reference and made a part of this Contract for all purposes, constitute
the entire agreement by the Parties concerning the work and services to be performed under this
Contract. Any prior or contemporaneous oral or written agreement which purports to vary the
terms of this Contract shall be void. Any amendments to the terms of this Contract must be in
writing and be executed by the Parties.
14.9 Paragraph Headings for Reference Only,No Legal Significance; Number.
The paragraph headings contained herein are for convenience in reference to this Contract
and are not intended to define or to limit the scope of any provision of this Contract. When context
requires,singular nouns and pronouns include the plural and the masculine gender shall be deemed
to include the feminine or neuter and the neuter gender to include the masculine and feminine.
The words"include"and"including"whenever used herein shall be deemed to be followed by the
words "without limitation".
14.10 Compliance With All Applicable Laws and Regulations.
Developer agrees to comply fully with all applicable laws and regulations that are currently
in effect or that are hereafter amended during the performance of this Contract. These laws
include, but are not limited to:
➢ HOME Investment Partnerships Act as set out above
➢ Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) including
provisions requiring recipients of federal assistance to ensure meaningful access by
person of limited English proficiency
➢ The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections
3601 et seq.)
➢ Executive Orders 11063, 11246 as amended by 11375 and 12086 and as supplemented
by Department of Labor regulations 41 CFR, Part 60
➢ The Age Discrimination in Employment Act of 1967
➢ The Age Discrimination Act of 1975 (42 U.S.C. Sections 6101 et seq.)
➢ The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
(42 U.S.C. Sections 4601 et seq. and 49 CFR Part 24) ("URA")
➢ Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sections 794 et seq.) and 24
CFR Part 8 where applicable
➢ National Environmental Policy Act of 1969, as amended, 42 U.S.C. sections 4321 et
seq. ("NEPA") and the related authorities listed in 24 CFR Part 58.
➢ The Clean Air Act, as amended, (42 U.S.C. Sections 1251 et seq.) and the Clean Water
Act of 1977, as amended (33 U.S.C. Sections 1251 et seq.), related Executive Order
11738 and Environmental Protection Agency Regulations at 40 CFR Part 15. In no
event shall any amount of the assistance provided under this Contract be utilized with
respect to a facility that has given rise to a conviction under the Clean Air Act or the
Clean Water Act.
➢ Immigration Reform and Control Act of 1986 (8 U.S.C. Sections 1101 et seq.)
specifically including the provisions requiring employer verifications of legal status of
its employees
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➢ The Americans with Disabilities Act of 1990 (42 U.S.C. Sections 12101 et seq.), the
Architectural Barriers Act of 1968 as amended (42 U.S.C. sections 4151 et seq.) and
the Uniform Federal Accessibility Standards, 24 CFR Part 40, Appendix A
➢ Regulations at 24 CFR Part 87 related to lobbying, including the requirement that
certifications and disclosures be obtained from all covered persons
➢ Drug Free Workplace Act of 1988 (41 U.S.C. Sections 701 et seq.) and 24 CFR Part
23, Subpart F
➢ Executive Order 12549 and 24 CFR Part 5.105(c) pertaining to restrictions on
participation by ineligible, debarred or suspended persons or entities
➢ Regulations at 24 CFR Part 882.708(c) pertaining to site and neighborhood standards
for new construction projects
➢ Regulations at 24 CFR Part 983.6 for Site and Neighborhood Standards Review
➢ Section 6002 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act
➢ Guidelines of the Environmental Protection Agency at 40 CFR Part 247
➢ For contracts and subgrants for construction or repair, Copeland "Anti-Kickback"Act
(18 U.S.C. 874) as supplemented in 29 CFR Part 5
➢ For construction contracts in excess of $2,000, and in excess of $2,500 for other
contracts which involve the employment of mechanics or laborers, Sections 103 and
107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327A 300) as
supplemented by 29 CFR Part 5
➢ Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.), as amended by
the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851 et
seq.) and implementing regulations at 24 CFR Part 35, subparts A, B, M, and R
➢ Regulations at 24 CFR Part 92, Home Investment Partnerships Program Final Rule
➢ Uniform Administrative Requirements, Cost Principles, and Audit Requirements for
Federal Awards, 2 CFR Part 200 et seq.
➢ Federal Funding Accountability and Transparency Act of 2006, (Pub.L. 109-282, as
amended by Section 6205(a) of Pub.L. 110-252 and Section 3 of Pub.L. 113-101)
➢ Federal Whistleblower Regulations, 10 U.S.C. 2409, 41 U.S.C. 4712, 10 U.S.C. 2324,
41 U.S.C. 4304 and 41 U.S.C. 4310.
➢ Broadband Infrastructure Requirements, 24 CFR Part 5.100 and Section 706 of the
Telecommunications Act of 1996, 47 U.S.C. 1302
14.11 HUD-Assisted Projects and Employment and other Economic
Opportunities; Section 3 Requirements.
14.11.1 Requirement that Law Be Quoted in Covered Contracts. — Certain
Requirements Pertaining to Section 3 of the Housing and Urban
Development Act of 1968 as Amended (12 U.S.C. Sections 1701 et seq.) and
its Related Regulations at 24 CFR Part 135
If the construction of the Required Improvements will cause the creation of new
employment,training, or contracting opportunities on a contractor or subcontractor level resulting
from the expenditure of the HOME Funds, Developer shall comply with the following and will
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ensure that its contractors also comply. If the work performed under this Contract is on a project
assisted under a program providing direct Federal financial assistance from HUD, Section 3 of 24
CFR 135.38 ("Section 3") requires that the following clause, shown in italics, be inserted in all
covered contracts ("Section 3 Clause"):
Section to be quoted in covered contracts begins:
"A. The work to be performed under this contract is subject to the requirements
of Section 3 of Housing and Urban Development Act of 1968, as amended, 12
U.S.C. section 1701u (Section 3). The purpose of Section 3 is to ensure that
employment and other economic opportunities generated by HUD assisted or
HUD-assisted projects covered by Section 3, shall to the greatest extent feasible,
be directed to low- and very-low income persons, particularly persons who are
recipients of HUD assistance for housing.
B. The parties to this contract agree to comply with HUD's regulations in 24
CFR Part 135, which implement Section 3. As evidenced by their execution of this
contract, the parties to this contract certify that they are under no contractual or
other impediment that would prevent them from complying with the Part 135
regulations.
C. The contractor agrees to send to each labor organization or representative
of workers with which it has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers'
representatives of the contractor's commitments under this Section 3 clause and
will post copies of the notice in conspicuous places at the work site where both
employees and applicants for training and employment positions can see the notice.
The notice shall describe the Section 3 preference, shall set forth minimum number
and job titles subject to hire, availability of apprentice and training positions, the
qualifications for each; and the name and location of the person(s) taking
applications for each of the positions;and the anticipated date the work shall begin.
D. The contractor agrees that it will include this Section 3 clause in every
subcontract to comply with regulation in 24 CFR Part 135, and agrees to take
appropriate action, as provided in an applicable provision of the subcontract or in
this Section 3 clause, upon finding that the subcontractor is in violation of the
regulations in 24 CFR Part 135. The contractor will not subcontract with any
subcontractor where it has notice or knowledge that the subcontractor has been
found in violation of regulations in 24 CFR 135.
E. The contractor will certify that any vacant employment positions, including
training positions that are filed.• (1) after the contractor is selected but before the
contract is executed, and(2)with persons other than those to whom the regulations
of 24 CFR Part 135 require employment opportunities to be directed, were not
filled to circumvent the contractor's obligations under 24 CFR Part 135. The
contractor will not subcontract with any subcontractor where it has notice or
knowledge that the subcontractor has been found in violation of regulations in 24
CFR 135.
F. Noncompliance with HUD's regulation in 24 CFR Part 135 may result in
sanctions, termination of this contract for default, and debarment or suspension
from future HUD assisted contracts.
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G. With respect to work performed in connection with Section 3 covered Indian
housing assistance, section 7(b) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. section 450e) also applies to the work to be performed
under this Contract. Section 7(b) requires that to the greatest extent feasible (i)
preference and opportunities for training and employment shall be given to Indians,
and (ii)preference in the award of contracts and subcontracts shall be given to
Indian organizations and Indian-owned Economic Enterprises. Parties to this
contract that are subject to the provisions of Section 3 and Section 79b) agree to
comply with Section 3 to the maximum extent feasible, but not in derogation of
compliance with Section 7(b). "
Section to be quoted in covered contracts ends.
14.11.2 Developer Responsibilities for Section 3 Requirements.
City and Developer understand and agree that compliance with the provisions of Section
3, the regulations set forth in 24 CFR Part 135, and all applicable rules and orders of HUD shall
be a condition of the federal financial assistance provided to the project binding upon City and
Developer, and their respective successors, assigns, contractors and subcontractors. Failure to
fulfill these requirements shall subject Developer and its contractors and subcontractors and their
respective successors and assigns to those sanctions specified by the grant agreement through
which federal assistance is provided and to such sanctions as are specified by 24 CFR Part 135.
Developer's responsibilities include:
14.11.2.1 Implementing procedures to notify Section 3 residents and
business concerns about training, employment, and
contracting opportunities generated by Section 3 covered
assistance;
14.11.2.2 Notifying potential contractors working on Section 3 covered
projects of their responsibilities;
14.11.2.3 Facilitating the training and employment of Section 3 residents
and the award of contracts to Section 3 business concerns;
14.11.2.4 Assisting and actively cooperating with the Neighborhood
Services Department in making contractors and subcontractors
comply;
14.11.2.5 Refraining from entering into contracts with contractors that
are in violation of Section 3 regulations;
14.11.2.6 Documenting actions taken to comply with Section 3; and
14.11.2.7 Submitting Section 3 Annual Summary Reports (form HUD-
60002) in accordance with 24 CFR Part 135.90.
14.11.3 Section 3 Reporting Requirements.
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In order to comply with the Section 3 requirements, Developer must submit the forms
attached hereto as Exhibit "I"- Section 3 Reporting Forms and take the following actions:
14.11.3.1 Report to the City all applicants for employment, and all
applicants for employment by contractors and any
subcontractors on a quarterly basis. This shall include name,
address, zip code, date of application, and status (hired/not-
hired)as of the date of the report.
14.11.3.2 Advertise available positions to the public for open
competition and provide documentation to City with the
quarterly report that demonstrates such open advertisement,in
the form of printout of Texas Workforce Commission posting,
copy of newspaper advertisement,copy of flyers and listing of
locations where flyers were distributed, and the like.
14.11.3.3 Report to the City all contracts awarded by contractors and any
subcontractors on a quarterly basis. This shall include name
of contractor and/or subcontractor, address, zip code, and
amount of award as of the date of the report.
14.12 Prohibition Aiainst Discrimination.
14.12.1 General Statement.
Developer, in the execution, performance or attempted performance of this Contract, shall
comply with all non-discrimination requirements of 24 CFR 92.350 and the ordinances codified at
Chapter 17, Article III, Division 4 — Fair Housing of the City Code. Developer may not
discriminate against any person because of race, color, sex, gender, religion, national origin,
familial status, disability or perceived disability, sexual orientation, gender identity, gender
expression, or transgender, nor will Developer permit its officers, members, agents, employees,
contractors, vendors or project participants to engage in such discrimination.
This Contract is made and entered into with reference specifically to the ordinances
codified at Chapter 17, Article III, Division 3 - Employment Practices of the City Code, and
Developer hereby covenants and agrees that Developer, its officers, members, agents, employees
and contractors,have fully complied with all provisions of same and that no employee,or applicant
for employment has been discriminated against under the terms of such ordinances by either or its
officers, members, agents, employees, contractors or vendors.
14.12.2 No Discrimination in Employment during the Performance of this
Contract.
During the performance of this Contract Developer agrees to the following provision, and
will require that its contractors, subcontractors and vendors also comply with such provision by
including it in all contracts with its contractors and vendors:
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[Contractor's, Subcontractor's or Vendor's Name] will not unlawfully discriminate
against any employee or applicants for employment because of race, color, sex, gender,
religion, national origin, familial status, disability or perceived disability, sexual
orientation, gender identity, gender expression or transgender. [Contractor's,
Subcontractor's or Vendor's Name] will take affirmative action to ensure that applicants
are hired without regard to race,color,sex,gender,religion,national origin,familial status,
disability or perceived disability, sexual orientation, gender identity, gender expression or
transgender and that employees are treated fairly during employment without regard to
their race, color, sex, gender, religion, national origin, familial status, disability or
perceived disability, sexual orientation, gender identity, gender expression or transgender.
Such action shall include, but not be limited to, the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of
pay or other forms of compensation, and selection for training, including apprenticeship.
[Contractor's, Subcontractor's or Vendor's Name] agrees to post in conspicuous places,
available to employees and applicants for employment,notices setting forth the provisions
of this nondiscrimination clause.
[Contractor's, Subcontractor's or Vendor's Name] will, in all solicitations or
advertisements for employees placed by or on behalf of[Contractor's, Subcontractor's or
Vendor's Namel , state that all qualified applicants will receive consideration for
employment without regard to race, color, sex, gender, religion, national origin, familial
status, disability or perceived disability, sexual orientation, gender identity, gender
expression or transgender.
[Contractor's, Subcontractor's or Vendor's Name] covenants that neither it nor any of its
officers, members, agents, employees, or contractors, while engaged in performing this
Contract, shall, in connection with the employment, advancement or discharge of
employees or in connection with the terms, conditions or privileges of their employment,
discriminate against persons because of their age or because of any disability or perceived
disability, except on the basis of a bona fide occupational qualification, retirement plan or
statutory requirement.
[Contractor's, Subcontractor's or Vendor's Name] further covenants that neither it nor its
officers, members, agents, employees, contractors, or persons acting on their behalf, shall
specify, in solicitations or advertisements for employees to work on this Contract, a
maximum age limit for such employment unless the specified maximum age limit is based
upon a bona fide occupational qualification, retirement plan or statutory requiremdnt.
14.12.3 Developer's Contractors and ADA.
In accordance with the provisions of the Americans With Disabilities Act of 1990
("ADA"), Developer warrants that it will not unlawfully discriminate on the basis of disability in
the provision of services to the general public, nor in the availability, terms and/or conditions of
employment for applicants for employment with, or employees of Developer. DEVELOPER
WARRANTS IT WILL FULLY COMPLY WITH ADA'S PROVISIONS AND ANY
OTHER APPLICABLE FEDERAL, STATE AND LOCAL LAWS CONCERNING
DISABILITY AND WILL DEFEND, INDEMNIFY AND HOLD CITY HARMLESS
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AGAINST ANY CLAIMS OR ALLEGATIONS ASSERTED BY THIRD PARTIES,
CONTRACTORS,SUBCONTRACTORS OR VENDORS AGAINST CITY ARISING OUT
OF DEVELOPER'S AND/OR ITS CONTRACTORS', SUBCONTRACTORS',
VENDORS', AGENTS' OR EMPLOYEES' ALLEGED FAILURE TO COMPLY WITH
THE ABOVE-REFERENCED LAWS CONCERNING DISABILITY DISCRIMINATION
IN THE PERFORMANCE OF THIS CONTRACT.
14.13. Conflict of Interest and Violations of Criminal Law.
14.13.1 Developer Safeguards.
Developer shall establish safeguards to prohibit its employees, board members, advisors
and agents from using positions for a purpose that is or gives the appearance of being motivated
by a desire for private gain for themselves or others, particularly those with whom they have
family, business or other ties. Developer shall disclose to City any conflict of interest or potential
conflict of interest described above, immediately upon discovery of such.
14.13.2 General Prohibition Against Conflicts of Interest.
No persons who are employees, agents, consultants, officers or elected officials or
appointed officials of City or of Developer who exercise or have exercised any functions or
responsibilities with respect to activities assisted with HOME funds or who are in a position to
participate in a decision-making process or gain inside information with regard to these activities
may occupy a HOME Unit, may obtain a financial interest or benefit from a HOME-assisted
activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the
proceeds thereunder, either for themselves or those with whom they have family or business ties,
during their tenure or for 1 year thereafter, unless they are accepted in accordance with the
procedures set forth at 24 C.F.R. Part 92.356.
14.13.2.1 Developer shall establish conflict of interest policies for Federal
Awards and shall provide such policies in writing to City in
accordance with the requirements of 2 CFR Part 200.112.
14.13.3 Disclosure of Conflicts of Interest.
In compliance with 2 CFR Part 200.112, Developer is required to timely disclose to City
in writing any potential conflict of interest, as described in this Section.
14.13.4 Disclosure of Texas Penal Code Violations.
Developer affirms that it will adhere to the provisions of the Texas Penal Code which
prohibits bribery and gifts to public servants.
14.13.5 Disclosure of Federal Criminal Law Violations.
In compliance with 2 CFR Part 200.113, Developer is required to timely disclose to City
all violations of federal criminal law involving fraud, bribery or gratuity violations potentially
affecting this Agreement.
14.14 Labor Standards.
HOME DEVELOPER RENTAL CONTRACT Rev. 08/22/2018
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14.14.1 As applicable, Developer agrees to comply with the requirements of the
Secretary of Labor in accordance with the Davis-Bacon Act (40 U.S.C. 276a-7) as amended, the
provisions of Contract Work Hours and Safety Standards Act(40 U.S.C. 327 et seq.) and all other
applicable Federal, state and local laws and regulations pertaining to labor standards insofar as
those acts apply to the performance of this Contract. Developer agrees to comply with the
Copeland Anti-Kick Back Act (18 U.S.C. 874 et seq.) and its implementing regulations of the
United States Department of Labor at 29 CFR Part 5. Developer shall maintain documentation
that demonstrates compliance with hour and wage requirements of this Contract and HOME
Regulations. Such documentation shall be made available promptly to City for review upon
request.
14.14.2 Developer agrees that, except with respect to the rehabilitation or construction
of residential property containing less than 12 units assisted with HOME funds, all contractors
engaged under contract for construction, renovation or repair work financed in whole or in part
with assistance provided under this Contract, shall comply with Federal requirements adopted by
City pertaining to such contracts and with the applicable requirements of the regulations of the
Department of Labor under 29 CFR Parts 1, 3, 5 and 7 governing the payment of wages and ratio
of apprentices and trainees to journey workers; provided that, if wage rates higher than those
required under these regulations are imposed by state or local law, nothing hereunder is intended
to relieve Developer of its obligation, if any, to require payment of the higher wage. Developer
shall cause or require to be inserted in full, in all such contracts subject to such regulations,
provisions meeting the requirements of this paragraph.
14.14.3 If Davis-Bacon is applicable, Developer shall provide City access to employee
payrolls,contractor and subcontractor payrolls and other wage information for persons performing
construction of the Required Improvements. Payrolls must be submitted to the Neighborhood
Services Department with each Reimbursement Request, and must be available to Neighborhood
Services Department staff upon request. In addition, Developer shall ensure that City will have
access to employees, contractors and subcontractors and their respective employees in order to
conduct onsite interviews with laborers and mechanics. Developer shall inform its contractors and
subcontractors that City staff or federal agencies may conduct periodic employee wage interview
visits during construction of the project to ensure compliance.
14.15 Subcontracting with Small and Minority Firms, Women's Business
Enterprises and Labor Surplus Areas.
14.15.1 For procurement contracts $50,000.00 or larger, Developer agrees to abide by
City's policy to involve Minority Business Enterprises and Small Business Enterprises and to
provide them equal opportunity to compete for contracts for construction,provision of professional
services, purchase of equipment and supplies and provision of other services required by City.
Developer agrees to incorporate the City's BDE Ordinance, if applicable, and all amendments or
successor policies or ordinances thereto, into all contracts and subcontracts for procurement
$50,000.00 or larger, and will further require all persons or entities with which it so contracts to
comply with said ordinance.
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
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14.15.2 It is national policy to award a fair share of contracts to disadvantaged business
enterprises ("DBEs"), small business enterprises ("SBEs"), minority business enterprises
("MBEs"), and women's business enterprises ("WBEs"). Accordingly, affirmative steps must be
taken to assure that DBEs, SBEs, MBEs, and WBEs are utilized when possible as sources of
supplies, equipment, construction and services.
14.15.3 In order to comply with the reporting requirements of 24 CFR Part 92.508
(a)(7)(ii), Developer must submit the form attached hereto as Exhibit "K" —
Contract and Subcontract Activity Reporting Form for each contract or
subcontract with a value of$10,000 or more paid, or to be paid, with HOME
funds. This form shall be submitted with the final Reimbursement Request.
14.16 Other Laws.
The failure to list any federal, state or City ordinance, law or regulation that is applicable
to Developer does not excuse or relieve Developer from the requirements or responsibilities in
regard to following the law, nor from the consequences or penalties for Developer's failure to
follow the law, if applicable.
14.17 Assignment.
Developer shall not assign all or any part of its rights,privileges,or duties under
this Contract without the prior written approval of City. Any attempted assignment of same
without approval shall be void, and shall constitute a breach of this Contract.
14.18. Right to Inspect Developer Contracts.
It is agreed that City has the right to inspect and approve in writing any proposed contracts
between Developer and (i) its general contractor and subcontractors, including any lower tier
subcontractors engaged in any activity that is funded as part of the construction of the Required
Improvements, (ii) any vendor contracts arising out of the operation of the project, and (iii) any
third party contracts to be paid with HOME Funds,prior to any charges being incurred.
14.19 Force Majeure
If Developer becomes unable, either in whole or part, to fulfill its obligations under this
Contract due to acts of God, strikes, lockouts, or other industrial disturbances, acts of public
enemies, wars, blockades, insurrections, riots, epidemics, earthquakes, fires, floods, restraints or
prohibitions by any court,board, department,commission or agency of the United States or of any
States, civil disturbances, or explosions, or some other reason beyond Developer's control
(collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event
will be suspended only during the continuance of such event and the completion date for such
obligations shall be extended for a like period. Developer will give City written notice of the
existence, extent and nature of the Force Majeure Event as soon as reasonably possible after the
occurrence of the event. Failure to give notice will result in the continuance of the Developer's
obligation regardless of the extent of any existing Force Majeure Event. Developer will use
commercially reasonable efforts to remedy its inability to perform as soon as possible.
14.20 Survival.
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Any provision of this Contract that pertains to Affordability Requirements, auditing,
monitoring, tenant income eligibility, record keeping and reports, City ordinances, the provisions
of Section 6.6 pertaining to SAM, or any HOME requirements, and any default and enforcement
provisions necessary to enforce such provisions, shall survive the termination of this Contract for
the longer of (i) 5 years after the termination date of this Contract, or (ii) 5 years after the
termination of the Affordability Period unless a different survival period is specifically set forth
herein, and shall be enforceable by City against Developer.
15. INDEMNIFICATION AND RELEASE.
DEVELOPER COVENANTS AND AGREES TO INDEMNIFY, HOLD
HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS,
AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL
CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL
INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER
HIND OR CHARACTER, WHETHER REAL OR ASSERTED,ARISING OUT OF OR IN
CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED
PERFORMANCE OR NONPERFORMANCE OF THIS CONTRACT AND/OR THE
OPERATIONS, ACTIVITIES AND SERVICES OF THE PROJECT DESCRIBED
HEREIN, WHETHER OR NOT CAUSED IN WHOLE OR IN PART, BY ALLEGED
NEGLIGENCE OF OFFICERS,AGENTS,SERVANTS,EMPLOYEES,CONTRACTORS
OR SUBCONTRACTORS OF CITY, AND DEVELOPER HEREBY ASSUMES ALL
LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS,
SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR
PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY,INCLUDING DEATH,
TO ANY AND ALL PERSONS, OF WHATSOEVER HINDS OR CHARACTER,
WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH
THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR
NONPERFORMANCE OF THIS CONTRACT AND AGREEMENT AND/OR THE
OPERATIONS, ACTIVITIES AND SERVICES OF THE PROJECT DESCRIBED
HEREIN, WHETHER OR NOT CAUSED IN WHOLE OR IN PART BY ALLEGED
NEGLIGENCE OF OFFICERS,AGENTS,SERVANTS,EMPLOYEES,CONTRACTORS
OR SUBCONTRACTORS OF CITY. DEVELOPER LIKEWISE COVENANTS AND
AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM
AND AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF
PROPERTY OF CITY,ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR
OMISSIONS OF DEVELOPER, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROJECT
PARTICIPANTS, OR CAUSED, IN WHOLE OR IN PART, BY ALLEGED
NEGLIGENCE OF OFFICERS,AGENTS,SERVANTS,EMPLOYEES,CONTRACTORS
OR SUBCONTRACTORS OF CITY.
IT IS THE EXPRESS INTENTION OF THE PARTIES,BOTH DEVELOPER AND
CITY, THAT THE INDEMNITY PROVIDED FOR THIS SECTION INCLUDES
INDEMNITY BY DEVELOPER TO INDEMNIFY AND PROTECT CITY FROM THE
CONSEQUENCES OF CITY'S OWN NEGLIGENCE,WHETHER THAT NEGLIGENCE
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
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IS ALLEGED TO BE THE SOLE OR CONCURRING CAUSE OF THE INJURY,
DAMAGE OR DEATH.
DEVELOPER AGREES TO AND SHALL RELEASE CITY, ITS AGENTS,
EMPLOYEES,OFFICERS AND LEGAL REPRESENTATIVES FROM ALL LIABILITY
FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY
SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER
THIS CONTRACT, EVEN IF THE INJURY, DEATH, DAMAGE OR LOSS IS CAUSED
BY CITY'S SOLE OR CONCURRENT NEGLIGENCE.
DEVELOPER SHALL REQUIRE ALL OF ITS CONTRACTORS AND
SUBCONTRACTORS TO INCLUDE IN THEIR CONTRACTS AND SUBCONTRACTS
A RELEASE AND INDEMNITY IN FAVOR OF CITY IN SUBSTANTIALLY THE SAME
FORM AS ABOVE.
16. WAIVER OF IMMUNITY BY DEVELOPER.
If Developer is a charitable or nonprofit organization and has or claims an immunity or
exemption(statutory or otherwise) from and against liability for damages or injury, including
death, to persons or property, Developer hereby expressly waives its rights to plead defensively
such immunity or exemption as against City. This section shall not be construed to affect a
governmental entity's immunities under constitutional, statutory or common law.
17. INSURANCE AND BONDING.
To the extent Developer has employees, Developer will maintain coverage in the form of
insurance or bond in the amount of$1,806,000.00, which is the total amount of the Loan and the
FWHFC Loan, to insure against loss from the fraud, theft or dishonesty of any of Developer's
officers, agents,trustees, directors or employees. The proceeds of such insurance or bond shall be
used to reimburse City for any and all loss of HOME Funds occasioned by such misconduct. To
effectuate such reimbursement, such fidelity coverage shall include a rider stating that
reimbursement for any loss or losses shall name the City as a Loss Payee.
Developer shall furnish to City, in a timely manner, but not later than 60 days after the
Effective Date, certificates of insurance as proof that it has secured and paid for policies of
commercial insurance as specified herein. If City has not received such certificates as set forth
herein, Developer shall be in default of the Contract and City may at its option, terminate the
Contract.
Such insurance shall cover all insurable risks incident to or in connection with the
execution, performance, attempted performance or nonperformance of this Contract. Developer
shall maintain, or require its general contractor to maintain, the following coverages and limits
thereof:
Commercial General Liability(CGL) Insurance
$1,000,000 each occurrence
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
Mistletoe Station,LLC Page 41
$2,000,000 aggregate limit
Workers' Compensation Insurance
Part A: Statutory Limits
Part B: Employer's Liability
$100,000 each accident
$100,000 disease-each employee
$5001000 disease-policy limit
Note: Such insurance shall cover employees performing work on any and all projects
including but not limited to construction, demolition, and rehabilitation. Developer or its
contractors shall maintain coverages, if applicable. In the event the respective contractors
do not maintain coverage, Developer shall maintain the coverage on such contractor, if
applicable, for each applicable contract.
Additional Requirements
Such insurance amounts shall be revised upward at City's reasonable option and no more
frequently than once every 12 months, and Developer shall revise such amounts within 30 days
following notice to Developer of such requirements.
Developer will submit to City documentation that it, and its general contractor and/or prime
subcontractor, as applicable, have obtained insurance coverage and have executed bonds as
required in this Contract prior to payment of any monies provided hereunder, it being understood
and agreed that a payment and performance bond naming the prime subcontractor as principal and
the Developer and City as additional obligees shall satisfy the obligation hereof regarding bonding
of the Project.
Where applicable and appropriate, insurance policies required herein shall be endorsed to include
City as an additional insured as its interest may appear. Additional insured parties shall include
employees, officers, agents, and volunteers of City.
The Workers' Compensation Insurance policy shall be endorsed to include a waiver of
subrogation, also referred to as a waiver of rights of recovery, in favor of City.
Any failure on part of City to request certificate(s) of insurance shall not be construed as a waiver
of such requirement or as a waiver of the insurance requirements themselves.
Insurers of Developer's insurance policies shall be licensed to do business in the state of Texas by
the Department of Insurance or be otherwise eligible and authorized to do business in the state of
Texas. Insurers shall be acceptable to City insofar as their financial strength and solvency and
each such company shall have a current minimum A.M. Best Key Rating Guide rating of A: VII
or other equivalent insurance industry standard rating otherwise approved by City.
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
Mistletoe Station,LLC Page 42
Deductible limits on the foregoing insurance policies shall be at commercially reasonable levels,
and in no event exceed $100,000 per occurrence.
In the event there are any local, federal or other regulatory insurance or bonding requirements for
the project, and such requirements exceed those specified herein, the former shall prevail.
Developer shall require its contractors to maintain applicable insurance coverages, limits, and
other requirements as those specified herein;and,Developer shall require its contractors to provide
Developer with certificate(s) of insurance documenting such coverage. Also, Developer shall
require its contractors to have City and Developer endorsed as additional insureds(as their interest
may appear) on their respective insurance policies where applicable and appropriate.
Professional Liability coverage shall be in force and may be provided on a claim's made basis.
This coverage may also be referred to as Management Liability, and shall protect the insured
against claims arising out of alleged errors in judgment,breaches of duty and wrongful acts arising
out of their management duties.
Developer shall obtain or require its general contractor (or prime subcontractor, if applicable) to
maintain builders risk insurance at the value of the construction.
18. CERTIFICATION REGARDING LOBBYING.
The undersigned Developer hereby certifies,to the best of its knowledge and belief,that:
No Federal appropriated funds have been paid or will be paid, by or on behalf of
Developer, to any person for influencing or attempting to influence an officer or
employee of any agency, a member of Congress, an officer or employee of Congress
in connection with the awarding of any Federal contract, the making of any federal
grant, the making of any Federal loan, the entering into of any cooperative
agreement and the extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan or cooperative agreement.
If any funds other than federally appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of
any agency, member of Congress in connection with this Federal contract, grant,
loan or cooperative agreement, Developer shall complete and submit Standard
Form'LLL, "Disclosure Form to Report Lobbying, " in accordance with its
instructions.
This certification is a material representation of fact upon which reliance was
placed when this Contract was made or entered into. Submission of this certificate
is a prerequisite for making or entering into this Contract imposed by 31 U.S.C.
Section 1352. Any person who fails to file the required certification shall be subject
to a civil penalty of not less than $10,000.00 and not more than $100,000.00 for
each such failure.
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
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Developer shall require that the language of this certification be included in all subcontracts
or agreements involving the expenditure of federal funds.
19. RELIGIOUS ORGANIZATION.
Developer shall comply with all applicable requirements as more particularly described in
24 CFR Part 5.109. No portion of the HOME Funds shall be used in support of any sectarian or
religious activity. In addition, there must be no religious or membership criteria for tenants of a
HOME-funded unit.
19.1. Separation of Explicitly Religious Activities.
Developer retains its independence and may continue to carry out its mission, including
the definition, development practice, and expression of its religious beliefs, provided that it does
not use HOME Funds to support or engage in any explicitly religious activities(including activities
that involve overt religious content such as worship, religious instruction, or proselytization), or
in any other manner prohibited by law.
19.2 Explicitly Religious Activities.
If Developer engages in explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or proselytization), the explicitly
religious activities must be offered separately, in time or location, from the programs or activities
supported by HOME Funds and participation must be voluntary for tenants of a HOME-funded
unit.
20. LITIGATION AND CLAIMS.
Developer shall give City immediate notice in writing of any action, including any
proceeding before an administrative agency, filed against Developer in conjunction with this
Contract or the project. Developer shall furnish immediately to City copies of all pertinent papers
received by Developer with respect to such action or claim. Developer shall provide a notice to
City within 10 days upon filing under any bankruptcy or financial insolvency provision of law.
21. NOTICE.
All notices required or permitted by this Contract must be in writing and shall be effective
upon receipt when(i)sent by U.S.Mail,with proper postage,certified mail return receipt requested
or by a nationally recognized overnight delivery service; and (iii) addressed to the other Party at
the address set out below or at such other address as the receiving Party designates by proper notice
to the sending Party.
City:
City Attorney's Office
200 Texas Street
Fort Worth, TX 76102
Attention: Vicki Ganske
Telephone: 817-392-7765
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
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Copies to:
Neighborhood Services Department
200 Texas Street
Fort Worth, TX 76102
Attention: Housing Development and Grants Manager
Telephone: 817-392-7540
Neighborhood Services Department
200 Texas Street
Fort Worth, TX 76102
Attention: Neighborhood Development Specialist
Telephone: 817-392-7540-7322
Developer:
Mistletoe Station, LLC
5501-A Balcones Drive, #302
Austin, TX 78731
With a copy to:
Shutts &Bowen LLP
200 S. Biscayne Blvd., Ste. 4100
Miami, FL 33131
Attn: Robert Cheng
Investor•
HCP-ILP,LLC
15910 Ventura Boulevard, Suite 1100
Encino, California 91436
Attention: Jeffrey N. Weiss
Email:jeff.weiss@huntcompanies.com
With copy to:
Ballard Spahr LLP
1735 Market Street, 51"Floor
Philadelphia, Pennsylvania 19103
Attention: Jere Thompson
Email: thompsonj@,ballardspahr.com
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
Mistletoe Station,LLC Page 45
22. DEVELOPER HAS LEGAL AUTHORITY TO ENTER INTO CONTRACT.
Developer represents that it possesses the legal authority, pursuant to any proper,
appropriate and official motion,resolution or action passed or taken,to enter into this Contract and
to perform the responsibilities herein required.
23. INVESTOR'S RIGHT TO CURE.
The Parties agree that the Investor shall have the right, but not the obligation, to cure any
default by or complete any obligation of the Developer under the Loan Documents during the cure
period or completion period provided therein, and the Parties hereto agree to accept any such cure
or completion tendered by the Investor.
24. COUNTERPARTS.
This Contract may be executed in multiple counterparts, each of which shall be considered
an original, but all of which shall constitute one instrument which may be sufficiently evidenced
by one counterpart.
25. IMMIGRATION NATIONALITY ACT.
City actively supports the Immigration&Nationality Act(INA)which includes provisions
addressing employment eligibility, employment verification, and nondiscrimination. Developer
shall verify the identity and employment eligibility of all employees who perform work under this
Agreement. Developer shall complete the Employment Eligibility Verification Form (1-9),
maintain photocopies of all supporting employment eligibility and identity documentation for all
employees, and upon request, provide City with copies of all 1-9 forms and supporting eligibility
documentation for each employee who performs work under this Agreement. Developer shall
establish appropriate procedures and controls so that no services will be performed by any
employee who is not legally eligible to perform such services. Developer shall provide City with
a certification letter that it has complied with the verification requirements required by this
Agreement. Developer shall indemnify City from any penalties or liabilities due to violations of
this provision. City shall have the right to immediately terminate this Agreement for violations of
this provision by Developer.
26. BOYCOTTING ISRAEL PROHIBITED.
Developer acknowledges that in accordance with Chapter 2270 of the Texas Government
Code, City is prohibited from entering into a contract with a company for goods or services unless
the contract contains a written verification from the company that it: (1) does not boycott Israel;
and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and
"company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas
Government Code. By signing this Contract, Developer certifies that Developer's signature
provides written verification to City that Developer: (1) does not boycott Israel; and (2) will
not boycott Israel during the term of this Contract
[SIGNATURES APPEAR ON NEXT PAGE]
HOME DEVELOPER RENTAL CONTRACT Rev. 08/22/2018
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IN WITNESS WHEREOF, the Parties have executed 4 duplicate originals of this
Contract to be effective as of the Effective Date.
ATTEST: CITY OF FORT WORTH
By:
City Secretary Fernando Costa, Assistant City Manager
M&C C-26671 Dated June 26, 2018 Date:
Form 1295:2018-362378
APPROVED AS TO FORM AND LEGALITY:
Paige Mebane, Assistant City Attorney
MISTLETOE STATION, LLC, a Texas limited
libility company
By: SAIGEBROOK MISTLETOE, LLC, its Co-
Managing Member
By:
arae: Lisa Step ens
Title: President
Date:
City of Fort Worth Agreement Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
Name: Chad LaRoque
Title:
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
Mistletoe Station,LLC Signature Page
IN WITNESS WHEREOF, the Parties have executed 4 duplicate originals of this
Contract to be effective s of the Effective Date.
ATT T: CITY OF FORT WORTH
By: E" "��L--
Ctty Secr F FOR Fernando Costa, Assistant City Manager
M&O-C-4-1�3a,(� Dated e12 --•2t7t T� te: 8�23/18
Form 1295:2018-3623
T�'CAS
ROVED AS TO FO GALITY:
ige Me ane, Assistant City Attorney
MISTLETOE STATION, LLC, a Texas limited
libility company
By: SAIGEBROOK MISTLETOE, LLC, its Co-
Managing Member
By:
Name: Lisa Stephens
Title: President
Date:
City of Fort Worth Agreement Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all perfo ance and reporting requirements.
Name: Chad LaRo ue IY,
Title: ec.s;`nc c.•t�•D/!.�*�' �/i,ff /h. , ��,
NtB
HOME DEVELOPER RENTAL CONTRACT
Mistletoe Station,LLC Signature Page
EXHIBITS:
Exhibit "A"—Project Summary
Exhibit "A-1"—HUD Rent Limits
Exhibit "A-2"—Environmental Mitigation Action
Exhibit "B"—Budget
Exhibit"C"—Construction and Reimbursement Schedule
Exhibit "D"—Audit Requirements—Not Applicable
Exhibit"E"—Loan Documents
Exhibit "F"—Reimbursement Forms
Exhibit"G"—Project Compliance Report: Rental Housing
Exhibit"H"—Federal Labor Standards Provisions— Davis-Bacon Requirements
Exhibit "I"—Section 3 Reporting Forms
Exhibit"J"—Standards for Complete Documentation
Exhibit "K"—Contract and Subcontract Activity Reporting Form
Exhibit"L"—Permanent Supportive Housing Requirements
Exhibit"M"—Deed Restriction
E
RECORDRETARYTH,TX
HOME DEVELOPER RENTAL CONTRACT Rev.08/22/2018
Mistletoe Station,LLC List of Exhibits Page
EXHIBIT "A"
PROJECT SUMMARY
Mistletoe Station,LLC
Capitalized terms not defined herein shall have meanings assigned to them in the Contract.
DESCRIPTION:
Developer will use HOME Funds for a portion of the costs to develop the Mistletoe Station, a
mixed income multifamily complex on approximately 2.842 acres. The project will have 2
residential buildings which will consist of up to 110 units including 21 one-bedroom units,67 two-
bedroom units, and 22 three-bedroom units. There will also be a community clubhouse which will
include fitness, laundry, and mail facilities. The complex will also include amenities such as a
business center, energy efficient appliances and central heat and air in each unit. The project will
contain 36 market rate units.
Developer will be entitled to make Reimbursement Requests until 30 days after the Completion
Deadline.
In consideration for the HOME Funds, Developer agrees to provide the following information and
meet the following requirements:
• Designate 9 floating Accessible Units in accordance with Section 504 requirements and the
terms of the Contract. Accessible Units shall be marketed in accordance with Section 7.7
of the Contract.
• Designate 11 HOME Units in the project. Of these 11 HOME Units,8 will be High HOME
Units and 3 will be Low HOME Units. HOME Rents will be charged in accordance with
the rents set forth in Exhibit"A-1"—HUD Rent Limits,published annually by HUD, and
shall not exceed the High HOME Rent limit.
• Submit Exhibit "G" - Project Compliance Report: Rental Housing regarding the
household income, size, race, ethnicity, gender of head of household, disability status, and
rental assistance type for the initial tenant of the first HOME Unit to be leased. CITY WILL
WITHHOLD $100,000 OF THE HOME FUNDS UNTIL CITY VERIFIES THAT AT
LEAST 1 HOME UNIT IS LEASED TO A HOME ELIGIBLE HOUSEHOLD.
• If the 11 HOME Units do not qualify as affordable rental housing immediately upon lease-
up or at any time during the Affordability Period, the City may invoke any remedies
provided in the Contract or the Loan Documents.
• Submit a copy of its annual audit and annual reports to TDHCA to City throughout the
Affordability Period.
SPECIFIC PURPOSE:
The specific purpose of this project is to increase the availability of quality, accessible, affordable
housing for low and moderate income City residents in central Fort Worth. The project will also
significantly contribute to the City's revitalization efforts in the Magnolia Village Neighborhood
Empowerment Zone.
PROJECT OBJECTIVES:
The project will provide 74 housing units affordable to households earning less than 60% of
AMI, of which 11 will be designated as HOME-assisted units. There will be 36 market rate units
in the project.
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 1
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
EXHIBIT "A-1"
HUD RENT LIMITS
Mistletoe Station, LLC
US.DEPARTMENT OF HUD
STATE:TEXAS -------- 2018 HOME PROGRAM RENTS
PROGRAM EFMENCY 18R 2 8R 3 8R 4 8R 5 8R 6 8R
Fort Warth-MiWM Tx MUD Metro FMIR Area
LOW HOME RENT UMIT 658 705 846 979 1091 1203 1316
HIGH HOME RENT L1MfT 736 838 1054 1287 1416 1544 1672
For Information OW
FAIR MARKET RENT 736 838 1054 1452 1951 2129 2406
50%RENT UMIT 658 705 946 978 1091 1203 1316
65%RENT UMIT 970 933 1122 1297 L416 1544 1672
*Rent limits are published annually by HUD.
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 2
Mistletoe Station,LLC —Mistletoe Station Rev.08.17.2018
EXHIBIT "A-2"
ENVIRONMENTAL MITIGATION ACTION
Mistletoe Station, LLC
HOME Funds may be reimbursed for exempt activities; however, HOME funds will not be paid, and costs
cannot be incurred, until City has conducted and completed an environmental review of the proposed
project site as required under 24 CFR Part 58. The environmental review may result in a decision to
proceed with, modify, or cancel the project. Further, Developer will not undertake or commit any funds
to physical or choice limiting actions,including property acquisition,demolition,movement,rehabilitation,
conversion, repair or construction until satisfactory completion of environmental review and receipt by
City of an authorization to use grant funds from HUD under 24 CFR Part 58.
Special conditions,procedures,and requirements identified for the project may include and are not limited
to mitigation of any adverse effects identified by the environmental review process. The special conditions,
procedures, and requirements may differ and are subject to approval by City and HUD.
Environmental Mitigations are as follows:
On September 7, 2017, Terracon conducted noise assessment at the project site. The results showed the
combined DNL at the noise assessment location(NAL)to be 83.1 dBA, falling within the "Unacceptable"
range.
The resultant DNL values of both studies would require the completion of Environmental Impact Statement,
pursuant to 51.104(b)(1) (i). However,because no other mitigating factors were identified over the course of
completing the EA, the City was eligible and decided to apply for an EIS waiver from the Certifying Officer,
which was approved on 7/16/18. A condition of securing an EIS waiver is the removal of all outdoor noise-
sensitive uses, of which the site plan included two— an interior courtyard in Building A (which was approved
by HUD as-is due to its interior location and shielding from noise sources) and an exterior courtyard in Building
B,which required removal or modification in order to be compliant. After seeking and receiving guidance from
HUD,the City decided to encircle the exterior courtyard with an 8' masonry wall, and place rocks in the
sloped area between the retaining wall and masonry wall to prevent people from congregating. The attenuated
DNL within the area encircled by the masonry was calculated at 63.5 dB, below the 65 dB exterior noise level
goal defined by HUD. Miller Slayton Architects approximated the interior noise levels to HUD Interior Noise
Guidelines (below 45 dB).
In both the interior and exterior noise calculations, 83.1 dB (i.e. the DNL that does NOT include the proposed
Quiet Zone designation in its calculations)was used. Implementing the City's proposed Quiet Zone will bring the
interior and exterior noise levels down even further.
City will provide Developer the executed environmental review record and certifications. Developer agrees
to abide by the special conditions, procedures, and requirements of the executed environmental review
certification approved by HUD and build the project in accordance with the plans submitted and approved.
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 3
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
EXHIBIT "B"
BUDGET
Mistletoe Station, LLC
SOURCES AND USES
Development Name: Mistletoe Station,LLC
Priority Construction Loan Permanent Loan
Source# Funding Description of Lien Stage Amt. Stage Amount Financin Participants
1 Conventional Loan 1st $22,282,000 JP Chase Bank,N.A.
2 Freddie Loan/FHA 1st $8,300,000 Hunt Mortgage
Housing Tax Credit
3 Syndication Proceeds $2,058,544 $13,723,628 TDHCA
4 HOME
5 Housing Trust Fund
6 CDBG
7 Mortgage Revenue Bonds
Historic Tax Credit
8 Syndication Proceeds
9 USDA/TXRD Loan(s)
10 Other $2,600,000 TIF
City of Fort Worth-
11 Other $134,355 Water Development
Local Government Loan City of Fort Worth-
12 (HOME) 3rd $1,056,000 $1,056,000 Neighborhood Services
13 Private Loan 2nd $750,000 $750,000 FWHFC
14 Cash Equity
In-Kind Equity/Deferred
15 Developer Fee $2,132,063 $1,714,564
16 Operating Reserves
TOTAL
SOURCES
OF
FUNDS $28,278,547 $28,278,547
TOTAL
USES OF
FUNDS $28,278,547
HOME Funds Budget
Land Acquisition and/or Pre-Development Soft Costs $900,000.00*
Construction Hard Costs $56,000.00*
Holdback** $100,000*
TOTAL 1 $190569000
*Developer will only be reimbursed for eligible expenses. The amounts are estimates and are subject to change.
** City will hold back$100,000.00 of the HOME Funds until City verifies that the first HOME Unit is leased to
a HOME Eligible Household as well as the other requirements in Exhibit"C" - Construction and
Reimbursement Schedule.
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 4
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
EXHIBIT "C"
CONSTRUCTION AND REIMBURSEMENT SCHEDULE
Mistletoe Station,LLC
Activity HOME Funds
PHASE I
ACTIVITIES: Land Acquisition
$900,000.00*
Predevelopment Soft Costs
PHASE I
COMPLETE
by: August 31,2018 First Payment" $9001000.00*
PHASE II Construction Hard Costs $28,000.00*
ACTIVIITES:
Prior to Reimbursement in Phase II, Developer must
PHASE II submit the contractor/subcontractor/vendor searches
COMPLETE by: under the Federal System for Award Management
February 28, 2019 (www.sam.gov).
Second Payment" (approx.33% complete)*** $28,000.00*
PHASE III Construction Hard Costs $28,000.00*
ACTIVIITES:
Prior to Reimbursement in Phase III, Developer must
PHASE III submit the contractor/subcontractor/vendor searches
COMPLETED by: under the Federal System for Award Management
August 31,2019 (www.sam.gov).
$283,000.00*
Third Payment" (approx. 66% complete)***
PHASE IV Initial Lease-up of HOME Units $100,000.00
ACTIVITIES:
PHASE IV Prior to Reimbursement in Phase IV, the following
COMPLETED items must be submitted:
by: June 30,2020 1. Rent Schedule for HOME Units. See Section
7.5
2. Tenant Selection Policy. See Section 7.6
3. Affirmative Marketing Plan. See Section 7.7
Prior to Reimbursement for Final Payment,Exhibit
"G"" - Project Compliance Report: Rental Housing
must be submitted to City.
Final Pa ment** Lease-Up of HOME Unit)*** $1001000.00*
TOTAL $1,056,000.00
*Developer will only be reimbursed for eligible expenses. The amounts and completion dates are
estimates and are subject to change.
**Developer must submit Complete Documentation with Reimbursement Request to City within 60 days
from each of the abovementioned deadlines in order to be reimbursed. Failure to timely submit
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 5
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
Reimbursement Requests and Complete Documentation along with any required reports shall be an
event of default at discretion of City.
***If milestone is reached before the Phase completion date, reimbursement will be made when the
milestone percentage is reached and the City is provided all required documentation.
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 6
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
EXHIBIT "D"
AUDIT REQUIREMENTS
Mistletoe Station, LLC
NOT APPLICABLE
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 7
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
EXHIBIT "E"
LOAN DOCUMENTS
Mistletoe Station, LLC
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 8
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
Promissory Note
HOME Funds
Date: August 24, 2018
Borrower: Mistletoe Station, LLC, a Texas Limited Liability Company
Borrower's Mailing Address:
Mistletoe Station, LLC
5501-A Balcones Drive, #302
Austin, TX 78731
With a copy to:
Shutts & Bowen LLP
200 S. Biscayne Blvd `Ste. 4100
Miami, FL 33131
Attn: Robert Cheng
Lender: City of Fort Worth, a Texas Ocipal ation
Place for Payment:_
City of Fort Worth
Neighborhood Services artmerit
Attn: Assistant Director 'ry.
200 Texas Street
Fort Worth,Tarrant County, Texas 76102, or any other place that Lender may
designate in writing.
Principal Amount: $1,056,000.00
Loan Authority:
The loan evidenced by this Note (the "Loan") is being made pursuant to the
HOME Investment Partnerships Program authorized under Title II of the
Cranston-Gonzalez National Affordable Housing Act of 1990, as amended, 42
USC 12701 et seq. ("HOME Program")and the HOME Investment Partnerships
Program Final Rule, as amended, 24 CFR Part 92 et seq. (the "HOME
Regulations") with HOME funds for the development of Mistletoe Station, a
mixed income multifamily complex located in Fort Worth,Texas(the"Project"),
all as more particularly described in a HOME Contract, City Secretary Contract
No. 51121 between Grantor and Lender for the Loan(the"HOME Contract").
PROMISSORY NOTE—HOME FUNDS Page 1
Mistletoe Station rev.08-22-18
Annual Interest Rate: During Construction, 0%. Upon Conversion, the lesser of
1% or the Long-Term Applicable Federal Rate ("AFR") on
the date hereof, which is 3.06% simple interest
Final Payment Date:
6 months after the maturity date of the Borrower's permanent loan, as more
particularly defined in the Senior Loan Documents, as defined below.
Maturity Date: Expiration of the 20 year Affordability Period described in the
HOME Contract
Annual Interest Rate on Matured, Unpaid Amounts:
Subordination Agreements:
Intercreditor and Subordination Agreement
Senior Lender: JP Morgan Chase Bank,N.A.
Senior Loan: $22,282,000
Senior Loan Documents: As described therein
Intercreditor and Subordination Agreement
Senior Lender: Fort Worth Housing Finance Corporation
Senior Doan: $750,000
Senior Loan Documents: As described therein
Terms of Payment:
Pa cift of the Principal Amount and mferest will be based on a 35 year amortization
schele: The Principal Amount and interest afe due and payable in equal annual installments
beginning June 30 after the date of Conversion as described in the HOME Contract and
continuitig annually until the Final Payment Date. At that time,the unpaid principal balance
and accrued,unpaid interest will be payable in full. Payments will be applied first to accrued
interest and the remainder to reduction of the Principal Amount. Interest will be calculated
based on a 360 day per year factor applied to the actual days on which there exists an unpaid
principal balance. Provided however, Principal Amount and interest are only payable from
75%of Surplus Cash for the immediately preceding calendar year as defined in the Company
Agreement.Principal and interest to the extent not paid from 75%of Surplus Cash shall be paid
out of 75% of Borrower's Surplus Cash in subsequent years. Notwithstanding anything
provided herein, all unpaid Principal Amount and accrued and unpaid interest remaining
outstanding shall be paid on or before the Final Payment Date. Interest shall accrue only from
the date funds are advanced.
This Note is the Note required in the HOME Contract and has been executed and
delivered in accordance with that contract.The funds advanced by Lender are HOME funds
and the HOME Contract requires that the 11 residential rental units described below and
located on the Property must qualify and remain affordable rental housing in accordance with
PROMISSORY NOTE—HOME FUNDS Page 2
Mistletoe Station rev.08-22-18
the HOME Program and the HOME Regulations for the 20 year Affordability Period more
particularly defined in the HOME Contract. The obligations described in the HOME
Contract pertaining to the HOME Program and the HOME Regulations including the
Affordability Period as well as the Loan evidenced by this Note will be in default if the
HOME-assisted rental units located on the Property more particularly described in the
HOME Contract do not remain affordable rental housing for the duration of the Affordability
Period,subject to the"next available unit rule"under the Internal Revenue Code Section 42
(g) (2) (D). In the event of such default, Lender may invoke any remedies provided in the
Contract or the Deed of Trust (hereinafter defined) for default.
Security for Payment:
This Note is secured by a Deed of Trust Sooty Agreement-Financing Statement
dated August 24,2018 from Borrower to Vicki S.Ganske 'Trustee or Leann Guzman,
Trustee(the"Deed of Trust")which covers the personal property described therein
and the following real property:
As more particularly described in the Jfthibit"A", incorporated herein by
reference for all purposes.
Other Security for Payment: As set forth in the HOME Contract
Borrowerprmrses to pay to the order of Lender the P. Amount plus interest.
This Note is payable at the Place for Payment and according to the Terms of Payment. All
unpaid amounts are due by the Final Payment Date.After the Final Payment Date,Borrower
promises to.pay any unpaid balance plus interest at the Annual Interest Rate on
Mature+ ���;�rioun� `�T
If Borrower defaults in the payment of this Note or in the performance of its
obligations under the HOME Contract or that Loan Agreement between Borrower and the
Fort Worth Housing Finance Corporation of even date(the"FWHFC Loan Agreement"),
or in the performance of any obligation in any instrument securing or collateral to this Note
or in any instrument securing Borrower's performance of the terms and conditions of the
FWHFC Loan Agreement,Lender may invoke any remedies provided herein or in the Deed
of Trust for default. If a monetary event of default occurs under the terms of any of the Loan
documents, prior to exercising any remedies, Lender shall give Borrower and each of the
members of the Borrower, as identified in the Borrower's First Amended and Restated
Operating Agreement (the "Company Agreement"), simultaneous written notice of such
default. Borrower shall have a period of 15 days after such notice is given within which to cure
the default prior to exercise of remedies by Lender under the Loan documents.
Notwithstanding anything to the contrary,if a non-monetary event of default occurs under the
terms of any of the Loan documents, prior to exercising any remedies, Lender shall give
Borrower and each of the members of the Borrower as identified in the Company Agreement,
simultaneous written notice of such default. If the default is reasonably capable of being cured
within 30 days,Borrower shall have such period to effect a cure prior to exercise of remedies
PROMISSORY NOTE—HOME FUNDS Page 3
Mistletoe Station rev.08-22-18
by Lender under the Loan documents. If the default is such that it is not reasonably capable of
being cured within 30 days, and if Borrower(a)initiates corrective action within said period,
and(b)diligently,continually,and in good faith works to effect a cure as soon as possible,then
Borrower shall have such additional time as is reasonably necessary to cure the default prior to
exercise of any remedies by Lender. In no event shall Lender be precluded from exercising
remedies if its security becomes or is about to become materially jeopardized by any failure to
cure a default or the default is not cured within 180 days after the first notice of default is given.
If the default is not cured after notice within the time periods stated above, Borrower and
each surety, endorser, and guarantor waive all demand for payment, presentation for
payment,notice of intention to accelerate maturity,notice of acceleration of maturity,protest,
and notice of protest,to the extent permitted by law;,
Borrower's Investor"LP" Member, as identified in the Agreement, shall
have the right to cure any default existing under the Loan documents;which right must be
exercised by the later of(a)the cure period provided in the Loan documents, or(b) 15 days
after receipt of written notice of default by the Investor"LP"Member. For the Investor"LP"
Member to exercise effectively its cure rights,the Investor"LP"Member must fully pay the
amount past due or perform the defaulted obligations,including the payment of any amounts
due for legal expenses incurred in connection with the default. Notwithstanding anything to
the contrary in the Loan documents,upon the occurrence of any default arising out of.(i)the
bankruptcy, insolveucy,or assignment of assets for the.benefit ofcreditors by the Managing
Member of BorrQwgT or by any Guarantor of the Loan,or(ii)the withdrawal from Borrower
of the Borrower's_Managing Member, or the death or incapacity of a Guarantor, or (iii) a
breach of the representations concerning such Managing Member or any Guarantor, the
Limited Partner shall have the option, but not the obligation, within 45 days of receipt of
written notice of such default from Lender, to cure any such default by appointing a
substitute or additional Managing Member or Guarantor that is an affiliate of the Investor
"LP"Member to act assuch Managing Member or Guarantor. Any pledge to the Investor
"LP"Member by Borrower's Managing Member of the Managing Member's interest in the
Company Agreement as security for the performance of all of the Managing Member's
obligations under the Company Agreement shall not be an event of default under the Loan
documents.
Borrower also p-nses to pay reasonable attorney's fees and court and other costs if
this Note is placed in the hands of an attorney to collect or enforce the Note. These expenses
will bear interest from the date of default at the Annual Interest Rate on Matured, Unpaid
Amounts.Borrower will pay Lender these expenses and interest on demand at the Place for
Payment. These expenses and interest will become part of the debt evidenced by the Note
and will be secured by any security for payment.
Interest on the debt evidenced by this Note will not exceed the maximum rate or
amount of non-usurious interest that may be contracted for, taken, reserved, charged, or
received under law. Any interest in excess of that maximum amount will be credited on the
Principal Amount or, if the Principal Amount has been paid,refunded. On any acceleration
PROMISSORY NOTE—HOME FUNDS Page 4
Mistletoe Station rev.08-22-18
or required or permitted prepayment,any excess interest will be canceled automatically as of
the acceleration or prepayment or,if the excess interest has already been paid,credited on the
Principal Amount or, if the Principal Amount has been paid, refunded. This provision
overrides any conflicting provisions in this Note and all other instruments concerning the
debt.
Each Borrower, as applicable, is responsible for all obligations represented by this
Note.
Borrower may prepay this Note in any amount,at any time before the Maturity Date
without penalty or premium.
When the context requires, singular P and pronoun de the plural.
The indebtedness evidenced by this Note is and shall be subordinate in right of payment
to the prior payment in full of the indebtedness to be hereafter evidenced by(i)promissory notes
made by Borrower payable to JP Morgan Chase Bank,NA(the"Senior Lender")(the"Senior
Loan") and (ii) to the Fort Worth Housing Finance Corporation ("FWHFC")(the"FWHFC
Loan") to the extent and in the manner provided in those Subordination Agreements among
Senior Lender,Borrower,FWHFC,and Lender(the"Subordination Agreements"), as more
particularly described in the HOME Contract. The Deed of Trust securing this Note is and shall
be subject and subordinate in all respects to the liens, terms, covenants and conditions of the
documents evidencing the Senior Loan("Senior Loan Documents")and/or the FWHFC Loan
("FWHFC Loan Documents"). The rights and remedies of the payee and each subsequent
holder of this Note under the Deed of Trust securing this Note are subject to the restrictions and
limitations set forth in the Subordination Agreements and/or the Senior Loan Documents or the
FWHFC Loan Documents. Each subsequent holder of this Note shall be deemed,by virtue of
such holder's acquisition of the ,to have agreed to perform and observe all of the terms,
covenants_and conditions to be perfined or observed by the Subordinate Lender under the
Subordination Agreements.
Subject to the terms of the Subordination Agreements and any cure periods provided
in the Senior Loan Documents and/or the FWHFC Loan Documents, if there is a default in
payment of any part of principal or interest of the Senior Loan and/or the FWHFC Loan,or a
breach of any covenants contained in the Senior Loan Documents and/or the FWHFC Loan
Documents,the debt evidenced by this Note will immediately become payable at the option
of Lender. If Borrower fails to perform any of Borrower's obligations in the Senior Loan
Documents and/or the FWHFC Loan Documents, and to the extent allowed by the
Subordination Agreement, Lender may perform those obligations and be reimbursed by
Borrower, on demand, at the Place for Payment for any amounts advanced, including
attorney's fees, plus interest on those amounts from the date of payment at the Annual
Interest Rate on Matured,Unpaid Amounts.The amount to be reimbursed will be secured by
all instruments securing this Note.
PROMISSORY NOTE—HOME FUNDS Page 5
Mistletoe Station rev.08-22-18
If any installment becomes overdue for more than 30 days, at Lender's option a late
payment charge of 5%of the amount then due may be charged in order to defray the expense
of handling the delinquent payment.
A default exists under this Note beyond any applicable notice and cure period if(1)
(a) Borrower or(b) any other person liable on any part of this Note (an "Other Obligated
Party") fails to timely pay or perform any obligation or covenant in any written agreement
between Lender and Borrower or such Other Obligated Party;(2)any warranty,covenant,or
representation in this Note or in any other written agreement between Lender and Borrower
or any Other Obligated Party is materially false when made; (3)a receiver is appointed for
Borrower, any Other Obligated Party, or any prope -on which a lien or security interest is
created as security(the "Collateral Security")for any part of this Note; (4) any Collateral
Security is assigned for the benefit of creditorg other than the holder(s)of the Senior Loan;
(5)a bankruptcy or insolvency proceeding is Wmenced by Borrower or an Other Obligated
Party; (6)(a) a bankruptcy or insolvency proceeding is commenced against Borrower or an
Other Obligated Party and (b) the proceeding continues without dismissal for 90 days, the
party against whom the proceeding is commenced admits the material allegations of the
petition against it, or an order for relief is entered; (7) any of the following parties is
dissolved,begins to wind up its affaiks,is authorized to dcplve or wind up its affairs by its
governing body or persons, or any ,;event occurs or condition exists that permits the
dissolution or winding up of the affairs of any of the following parties: (i)Borrower, or(ii)
an Other Obligated Party;and(8)any Collateral Security is materially impaired by loss,theft,
damage, levy and execution, issuance of an official writ or order of seizure, or destruction,
unless it is promptly replaced with insurance.proceeds, collateral security of like kind and
quality or restored to its former condition.
The execution and delb=y of this Note are required under the Contract.
If any provision of this Note conflicts with any provision of the HOME Contract,the
Deed of Trust,the Deed Restriction or any other document evidencing the same transaction
between Lender and Borrower, the provisions of the HOME Contract will govern to the
extent of the conflict.
This Note will be construed under the laws of the state of Texas without regard to
choice-of-law rules of any jurisdiction.
This Note is a nonrecourse obligation of Borrower. Neither Borrower nor any of its
general and limited partners nor any other party shall have any personal liability for
repayment of the Loan described in the Contract. The sole recourse of Lender under the
Loan documents for repayment of the Loan shall be the exercise of its rights against the
Security for Payment.
[SIGNATURE FOLLOWS]
PROMISSORY NOTE—HOME FUNDS Page 6
Mistletoe Station rev.08-22-18
THE HOME CONTRACT, NOTE AND THE DEED OF TRUST
CONSTITUTE THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
MISTLETOE STATION, LLC, a Texas
limited liability company
By:8A.16EBROOK-,MISTLETOE,LLC,its
Managing Member
BY:
Stephens, President
PROMISSORY NOTE—HOME FUNDS Page 7
Mistletoe Station rev.08-22-18
EXHIBIT `A'
LEGAL DESCRIPTION
PROMISSORY NOTE—HOME FUNDS Page 8
Mistletoe Station rev.08-22-18
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
Deed of Trust Security Agreement - Financing Statement
HOME Funds =
Terms
Date: August 24, 2018
Grantor: Mistletoe Station, LLC, a Te :mited liability company
Grantor's Mailing Address:
Mistletoe Station, LLCU
5501-A Balcones Drive,#302
Austin, TX 78731
With a copy Io,
Shutts&Bowen LLP
200 S. Biscayne Blvd ate. 4100
Miami,FL 3313
Attn:Robert Cheng
Trustee: Vicki S. Ske or Leann D. Guzman
Trustee's Mailing Address:
The City Attorney's; ffice
The City of Fort Worth
200 Texas Sty
Fort Worth 102
Tarrant County
Lender: City of Fort Worth, a Texas municipal corporation
Lender's Mailing Address:
City of Fort Worth
Neighborhood Services Department
Attn: Assistant Director
200 Texas Street
DEED OF TRUST—$1.056M HOME FUNDS Page 1
Mistletoe Station. Rev. 8-22-18
Fort Worth, Texas 76102
Tarrant County
Loan Authority:
The loan evidenced by the Note(the"Loan")and secured by this Deed of Trust Security
Agreement — Financing Statement ("Deed of Trust") is being made pursuant to the
HOME Investment Partnerships Program authorized under Title II of the Cranston-
Gonzales National Affordable Housing Act of 1990,anended,42 USC 12701 et seq.
(the"HOME Program")and the HOME Investment Partnership Program Final Rule,as
amended,24 CFR Part 92 et seq. (the"HOME Regui$itions")with HOME funds for the
development of Mistletoe Station,a mixed income multifamily complex located in Fort
Worth, Texas (the "Project"), all as more Oirticularly desffibed in a HOME Contract,
City Secretary Contract No. 51121 between Grantor and' __pder for the Loan (the
"HOME Contract").
Obligations
Note
Date: August 24, 2018
Original Principal Amount: $1,056,000.00
Borrower: Mistletoe Station,LLC
Lender: City of Fort Worth
Find Payment Date: 6 months°after the m ity date of the Borrower's
permanent Ioan, as more particularly described in the
Senior Lo*n Documents, as defined below
Maturity Date: Expiration i,f the 20 year Affordability Period described
in the HOME Contract and in Section F below
Terms o f Payment: As provided in the Note
In addition,Obligations shall include compliance by Grantor with the requirements of the
HONK Program for the 20 year Affordability Period more particularly.described in
Section F. below.
Property (including any improvements):
As more particularly described in the attached Exhibit "A", incorporated herein by
reference for all purposes.
Together with the following personal property to the extent owned by Grantor:
All fixtures,supplies,building materials,and other goods of every nature
now or hereafter located,used,or intended to be located or used on the Property;
All plans and specifications for development of or construction of
improvements on the Property;
All contracts and subcontracts relating to the construction of
improvements on the Property;
DEED OF TRUST—$1.056M HOME FUNDS Page 2
Mistletoe Station. Rev. 8-22-18
All accounts,contract rights,instruments,documents,general intangibles,
and chattel paper arising from or by virtue of any transactions relating to the
Property, except that the foregoing shall not apply to the operating reserve
established under the Borrower's First Amended and Restated Operating
Agreement(the"Company Agreement");
All permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property;
All proceeds payable or to be payab der each policy of insurance
relating to the Property; and
All products and proceeds of foregoi«g,
Notwithstanding any other provision in tbff eed of Trust;the term"Property"does not
include personal effects used primarrstienn
personal, family, °usehold purposes.
In addition to creating adeed-of--tru on Property described alxave, Grantor also
grants to Lender a security interest in all of the above-described j' onal property
pursuant to and to the extentImmutted by the Texas Uniform Commercial Code.
Subordination Agreements:
Intercreditor and Subordination Agreement
Senior Lender: JP Morgan Chase Bank,N.A.
Senior Loan: $22,282,000.00
Senior Loan Documents: As described therein
Intercredrto> and Subordination Aeement
_.�
Semor Under: Fort Wirth Housing Finance Corporation
Senior L -050,000.00
SeniorLo uments: As described therein
Prior Liens: .,
The lien meted by this Deed of Trust is and shall be subject and subordinate in all respects
to the lien terms, covenants and conditions of (i) the Multifamily Deed of Trust,
Assignment ofLeases and Rents and Security Agreement securing those certain promissory
notes made by Gracir and payable to JP Morgan Chase Bank,NA (the"Senior Lender")
(the "Senior Loan") and (ii) to the Fort Worth Housing Finance Corporation
("FWHFC")(the "FWHFC Loan")to the extent and in the manner provided in the
Subordination Agreements among Senior Lender,Borrower,the FWHFC,and Lender(the
"Subordination Agreements"),as more particularly described in the HOME Contract. The
Deed of Trust securing this Note is and shall be subject and subordinate in all respects to the
liens, terms, covenants and conditions of the documents evidencing the Senior Loan
("Senior Loan Documents") and the FWHFC Loan ("FWHFC Loan Documents") as
more fully set forth in the Subordination Agreements.The rights and remedies of Lender and
DEED OF TRUST—$1.056M HOME FUNDS Page 3
Mistletoe Station. Rev. 8-22-18
each subsequent assignee of the lien under this Deed of Trust are subject to the restrictions
and limitations set forth in the Subordination Agreements
Subject the terms of the Subordination Agreements and to waiver,notice,grace and cure
period, if any, provided in the Senior Loan Documents and/or the FWHFC Loan
Documents,if default occurs in payment of any part of principal or interest of the Senior
Loan and/or the FWHFC Loan,or in observance of any covenants contained in the Senior
Loan Documents and/or the FWHFC Loan Documents,the entire debt secured by this
Deed of Trust will immediately become payable at the option of Lender to the extent
permitted by the Subordination Agreements.
Other Exceptions to Conveyance and Warrant:
The Permitted Exceptions set forth on) Mbit "B" attac ereto and incorporated
herein for all purposes.
For value received and to secure perform of the Pbligations, (iratttor conveys the
Property to Trustee in trust. Grantor Warrants and agrees to defend the title to the Property,
subject to the Other Exceptions to C-Qn teyance and Warranty. On performance of the
Obligations,including payment of the Uan and all other amounts secured by this Deed of Trust
and performance of the requirements of the HOME Program, this Deed of Trust will have no
further effect, and Lender ill release it dA.Grantor's ei0ense.
Qauses and '- enants
A. Grantor's Obligations
Qrantor agrees to-
1. defend title':.
the Propel subject to the Other Exceptions to Conveyance and
Warranty a serve the lien's prioritSP9 it is established in this Deed of Trust;
2. obeIY all laws, ordinances, and restrictive covenants applicable to the Property;
3. if the lien Off_this Deed of Trust is not a first lien,pay or cause to be paid all prior
lien notes pursuant to their respective terms and abide by or cause to be abided by all prior lien
instruments; and
4. notify Lender of any change of address.
Grantor agrees not to-
t. do or intentionally or knowingly permit anything to be done that will impair the
security of this Deed of Trust.
DEED OF TRUST—$1.056M HOME FUNDS Page 4
Mistletoe Station. Rev. 8-22-18
B. Lender's Rights
1. Lender or Lender's mortgage servicer may appoint in writing a substitute trustee,
succeeding to all rights and responsibilities of Trustee.
2. If the proceeds of the Loan are used to pay any debt secured by prior liens,Lender
is subrogated to all the rights and liens of the holders of any debt so paid, subject to the
Subordination Agreements.
3. Notwithstanding the terms of the Note to the contrary,and unless applicable law
prohibits,all payments received by Lender from Grantor with respect to the Obligations or this
Deed of Trust may,at Lender's reasonable discretion,be applied first to amounts payable under
this Deed of Trust and then to amounts due and payable to Lender with respect to the
Obligations, to be applied to late charges, principal, or interest in the order Lender in its
discretion determines.
4. If Grantor fails to perfortrihny of Granto ligations under this Deed of Trust,
subject to prior written notice and cure period, Lender may perform those obligations and be
reimbursed by Grantor on demand for any amounts so paid, including reasonable and actually
incurred attorney's fees,.WW interest on those amounts from the dates of payment at the rate
stated in the Note fQriI4atured,-4 'd amounts.The amounttoabe reimbursed will be secured by
this Deed of Trust.
5. If there is a default on the Obligations or if Grantor fails to perform any of
Grantor's obligations:under this Deed ofTWA and the default continues after any required notice
of the fault and the time alio to cure, Lender may-
a. declare any unpaid principal balance and earned interest on the
Obligations imm"diately due;
b. direct Ti Wee to foreclose this lien, in which case Lender or Lender's
agent w R_cause notice of the foreclosure sale to be given as provided by
the Texas Property Code as then in effect; and
C. purchase the Property at any foreclosure sale by offering the highest bid
and then have the bid credited on the Obligations.
Notwithstanding anything to the contrary, if a monetary event of default occurs under the
terms of any of the Loan documents,prior to exercising any remedies Lender shall give Grantor and
Grantor's managing member and each of Grantor's investor"LP" members, as identified in the
Company Agreement, simultaneous written notice of such default. Grantor, and its managing
member or investor"LP"member on behalf of Grantor, shall have a period of 15 days after such
notice is given within which to cure the default prior to exercise of remedies by Lender under the
Loan documents. Notwithstanding anything to the contrary, if a non-monetary event of default
DEED OF TRUST—$1.056M HOME FUNDS Page 5
Mistletoe Station. Rev. 8-22-18
occurs under the terms of any of the Loan documents, prior to exercising any remedies, Lender
shall give Grantor and Grantor's managing member and each of Grantor's investor"LP"members,
as identified in the Company Agreement,simultaneous written notice of such default. If the default
is reasonably capable of being cured within 30 days,Grantor and each of its managing member or
investor"LP"members on behalf of Grantor shall have such period to effect a cure prior to exercise
of remedies by Lender under the Loan documents. If the default is such that it is not reasonably
capable of being cured within 30 days,and if Grantor or Grantor's managing members or investor
"LP"member(a)initiates corrective action within said period,and(b)diligently,continually,and
in good faith works to effect a cure as soon as possible, then Grantor or Grantor's managing
member or any of its investor"LP"members on behalf of Grantor shall have such additional time
as is reasonably necessary to cure the default prior to exercise of any remedies by Lender. In no
event shall Lender be precluded from exercising remedies if its security becomes or is about to
become materially jeopardized by any failure to cure a default or the default is not cured within 180
days after the first notice of default is given. If the default is not cured after notice within the time
periods stated above, Borrower and each surety, endorser, and guarantor wfkve all demand for
payment, presentation for payment, notice of intention to`accelerate maty, notice of
acceleration of maturity, protest, and alptice of protes%41the extent permitted by law.
6. Lender may remedy any,default without waiving it and may waive any default
without waiving any prior or subsequent default.
7. If Grantor fails to perform any of its_pbligatta ,covenants,or agreements under
the HOME Contract,this Deed ofTrust,the NedRestriction,or the FWHFC Loan Documents,
Lender may do any act it deems reasonably necessary to cure such failure. During an event of
default, Lender may enter the Premises with or Without notice and do anything that Lender
reasonably deems necessary or prudent to do.
8. If Lender elects to make any payments or do any act or thing required to be paid
or done by rrantor under the Loan ddetments or the FWHFC Loan Documents, any sums
advanced by1ender are a part of the Obligations.
C. Trustee's Rights and Duties
If directed by Lender to foreclose this lien, Trustee will-
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then in effect;
2. sell and convey all or part of the Property"AS IS"to the highest bidder for cash
with a general warranty binding Grantor,subject to the Prior Lien and to the Other Exceptions to
Conveyance and Warranty and without representation or warranty, express or implied, by
Trustee;
DEED OF TRUST—$1.056M HOME FUNDS Page 6
Mistletoe Station. Rev. 8-22-18
3. from the proceeds of the sale, pay, in this order-
a. expenses of foreclosure, including a reasonable commission to Trustee;
b. to Lender, the full amount of principal, interest, reasonable attorney's
fees, and other charges due and unpaid;
C. any amounts required by law to be paid before payment to Grantor; and
d. to Grantor, any balance; and
4. be indemnified, held harmless, and defended by Lender against all costs,
expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the
trust created by this Deed of Trust,which includes all court aner costs,including reasonable
attorney's fees,incurred by Trustee in defense of any action.or pf fling taken against Trustee
in that capacity.
D. General Provisions
1. If any of the Property is sold under this Deed of Trust,Grantor must immediately
surrender possession to the purchaser.IfOrantor fails to do so, Grantor will become a tenant at
sufferance of the purchaser, subject to an action for forcible=cttainer.
2. Recitals in antrustee's deed conve ' Pro a will be resumed to be true
Y t., X .... PY P
absent evidence toAh,e contrary,
3. Proceeding under this Deed of Trot,filing suit for foreclosure, or pursuing any
n
other rc f c d will not constitute an el�otion of r� , ies.
4. This 11k 11 rem' ,superior to Jipns later created even if the time of payment of
all or part of the Obligati fis is e)dA&d or part of the Property is released.
5. If any portion of the Obliw i ions cannot be lawfully secured by this Deed of Trust,
payments will be
Yplied first to discharge that portion.
W.
Plied
Subject to the rights of senior lien holders,Grantor assigns to Lender all amounts
payable to or received by Grantor from condemnation of all or part of the Property,from private
sale in lieu of condemnation, and from damages caused by public works or construction on or
near the Property. After deducting any expenses incurred, including reasonable attorney's fees
and court and other costs,Lender will either release any remaining amounts to Grantor or apply
such amounts to reduce the Obligations and any excess proceeds shall be paid to Grantor.Lender
will not be liable for failure to collect or to exercise diligence in collecting any such amounts.
Grantor will immediately give Lender notice of any actual or known threatened proceedings for
condemnation of all or part of the Property.
Notwithstanding the above, in the event of any fire or other casualty to the Property or
eminent domain proceedings resulting in condemnation of the Property or any part thereof,Grantor
DEED OF TRUST—$1.056M HOME FUNDS Page 7
Mistletoe Station. Rev. 8-22-18
shall have the right to rebuild the Property, and to use all available insurance or condemnation
proceeds therefor,provided that(a)such proceeds are sufficient to keep the Obligations in balance
and rebuild the Property in a manner that provides adequate security to Lender for repayment or
performance of the Obligations or if such proceeds are insufficient then Grantor shall have funded
any deficiency, (b) Lender shall have the right to approve plans and specifications for any major
rebuilding and the right to approve disbursements of insurance or condemnation proceeds for
rebuilding under a construction escrow or similar arrangement, and (c) no material default then
exists under the Loan documents other than attributable to the casualty or condemnation. If the
casualty or condemnation affects only part of the Property and total rebuilding is infeasible,then
proceeds may be used for partial rebuilding and partial repayment of the Obligations in a manner
that provides adequate security to Lender for repayment of the remaining balance of the
Obligations, and any excess proceeds shall be paid to Grantor.
7. Subject to the rights of senior j rnholders,Grantor assfi to Lender absolutely,
QY
not only as collateral,all present and future renter other income and receipt from the Property.
Grantor may as Lender's licensee collect rent and other income and receipts as long as Grantor is
not in default with respect to the Obligation or this Deed of Trust. Subject to the terms of the
Loan documents, Grantor will apply all rent and other income and receipts to payment of the
Obligations and performance of this Deed of Trust,but if the rent and other income and receipts
exceed the amount due with respect to the Obligations and the Deed of Trust,Grantor may retain
the excess. If Grantor defaults in payment or performance of the Obligations or performance of
this Deed of Trust,.Lender may teamiinate Grantor's license.to collect rent and other income and
then as Grantor's agent may rent the Property and collect all rent and other income and receipts.
Lender neither has nor assumes any obligations as lessor or landlord with respect to any occupant
of the Prope y. Lender may exercise Lender's riA11 p and remedies under this paragraph without
taking:pons scion of the Property. Lender will apply all rent and other income and receipts
collected under this paragraph first to expels incurred in exercising Lender's rights and
remedies and then to Gran 's obligations with respect to the Obligations and this Deed of Trust
in the order determined by Lender. Lendq is not required to act under this paragraph,and acting
under this paragraph does not waive anyf Lender's other rights or remedies.
8. Infton the debt secured by this Deed of Trust will not exceed the maximum
amount of non-usuri6WA interest that may be contracted for,taken,reserved,charged,or received
under law. Any interest in excess of that maximum amount will be credited on the principal of
the debt or, if that has been paid, refunded. On any acceleration or required or permitted
prepayment, any excess interest will be canceled automatically as of the acceleration or
prepayment or,if already paid,credited on the principal of the debt or,if the principal of the debt
has been paid,refunded. This provision overrides any conflicting provisions in this and all other
instruments concerning the debt.
9. In no event may this Deed of Trust secure payment of any debt that may not
lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law.
10. When the context requires, singular nouns and pronouns include the plural.
DEED OF TRUST--$1.056M HOME FUNDS Page 8
Mistletoe Station. Rev. 8-22-18
11. The term Note includes all extensions,modifications, and renewals of the Note
and all amounts secured by this Deed of Trust.
12. Grantor agrees to(a)keep at Grantor's address,or such other place as Lender may
approve, accounts and records reflecting the operation of the Property and copies of all written
contracts,leases,and other instruments that affect the Property;(b)prepare financial accounting
records in compliance with generally accepted accounting principles consistently applied; and
(c), at Lender's request on reasonable notice from time to time, permit Lender to examine and
make copies of such books, records, contracts, leases,and other instruments at any reasonable
time.
13. Grantor agrees to deliver to lender, at Lender's Nest from time to time,
internally prepared financial statements of 0ttor and any guarantorthe Note prepared in
accordance with generally accepted accoun - Princi l ,. consistent) '_aPPlied in detail
reasonably satisfactory to Lender and certified to be ma a 011y true and coi~rect by the chief
_m
financial officer of Grantor or its certified public ace ft, as applicable.
14. If Lender orders an appraisal ofthe Property while a default exists or to comply
with legal requirements affecting Lender, Grantor, at Lender's .request, agrees to reimburse
Lender for the reasonable_cos.of any such appraisal. If Grantor fails to reimburse Lender for any
such appraisal within 20 days ofLeri deCs writtenrequest,f1i lure is a default under this Deed
of Trust.
1 Grantor agrees fo aUfw TLender Lender's agents to enter the Property at
reasonable times and inspect it and any real pfo'perty in which Lender is granted a security
interest by this Deed of Trust.
16.=-„ Grantor may not sell, tnsfer, or otherwise dispose of any Property, whether
voluntarily by operation of aw,exce^r transfer to the landlord,condemnation,or to obtain
utility easements, without the prior written consent of Lender. If granted, consent may be
conditioned upon (a) the grantee's integrity, reputation, character, creditworthiness, and
management ability being satisfactory to Lender; and (b) the grantee's executing, before such
sale,transfer,or other disposition,a written assumption agreement containing any terms Lender
may reasonably require,such as a principal pay down on the Obligations,an increase in the rate
of interest payable with respect to the Obligations,a transfer fee,or any other modification of the
Note,this Deed of Trust, or any other instruments evidencing or securing the Obligations.
Grantor may not cause or knowingly permit any Property to be encumbered by any liens,
security interests, or encumbrances other than the liens securing the Obligation and the liens
securing ad valorem taxes not yet due and payable and the Permitted Exceptions without the
prior written consent of Lender. If granted, consent may be conditioned upon Grantor's
executing, before granting such lien, a written modification agreement containing any terms
DEED OF TRUST—$1.056M HOME FUNDS Page 9
Mistletoe Station. Rev. 8-22-18
Lender may require, such as a principal pay down on the Obligations, an increase in the rate of
interest payable with respect to the Obligations,an approval fee,or any other modification of the
Note, this Deed of Trust, or any other instruments evidencing or securing the Obligations.
Lender hereby specifically approves (i)the execution of the proposed Declaration of Land Use
Restrictive Covenants("LURA")which will be executed by Grantor on the form required by the
Texas Department of Housing and Community Affairs("TDHCA),(ii)the Deed Restriction,as
more particularly described in the HOME Contract. Approval of the LURA shall be reflected by
Lender's execution of the form of Consent and Subordinatio ienholder which is required by
the TDHCA. -°
Grantor may not grant any lien,security interest,or other,encumbrance(a"Subordinate
Instrument")covering the Property that is subordinate to the lierig created by this Deed of Trust
without the prior written consent of Lender. Ifanted, consent for'*subordinate Instrument
may be conditioned upon the Subordinate Instrument's containing expre , venants to the effect
that-
a. the Subordinate Instrument is unconditiaW., ly subordinate to this Deed of Trust;
b. if any action is instituted to foreclose or otherwise enforce the Subordinate
Instrument, no action may be taken that wt ld terminate any occupancy or
tenancy without the prior written consent of Lender,and that consent,if granted,
may be conditioned in any manner Lender determines;
C. rents; if collected.by or for the holder of the:,Subordinate Instrument, will be
applied first to the payment of the Obligations then due and to expenses incurred
in the ownership,operation,and*.--
intenance of the Property in any order Lender
may determine,,'before being d*jed to any indebtedness secured by the
Subordinate Instrument;
d. written notice of default under the Subordinate Instrument and written notice of
the commencement of any action to foreclose or otherwise enforce the
Subordinate Instrument must be given to Lender concurrently with or
immediately after the occurrence of any such default or commencement; and
e. in the event of the bankruptcy of Grantor, all amounts due on or with respect to
the Obligations and this Deed of Trust will be payable in full before any
payments on the indebtedness secured by the Subordinate Instrument.
Lender acknowledges and agrees that, in the event of a foreclosure of its interest
under this Deed of Trust, the following rule contained in Section 42(h)(6)(E)(ii) of the
Internal Revenue Code (the"Code") shall apply:
For a period of 3 years from the date of foreclosure,with respect to any unit that
had been regulated by the LURA, (i) none of the eligible tenants occupying those
units at the time of foreclosure may be evicted or their tenancy terminated (other
than for good cause), and (ii) no rent for said units may be increased except as
otherwise permitted under Section 42 of the Code.
DEED OF TRUST—$1.056M HOME FUNDS Page 10
Mistletoe Station. Rev. 8-22-18
Grantor may not cause or permit any of the following events to occur without the prior
written consent of Lender: if Grantor is(a)a corporation,the dissolution of the corporation or the
sale, pledge, encumbrance, or assignment of any shares of its stock; (b) a limited liability
company,the dissolution of the company or the sale,pledge,encumbrance,or assignment of any
of its membership interests; (c) a general partnership or joint venture, the dissolution of the
partnership or venture or the sale,pledge,encumbrance,or assignment of any of its partnership
or joint venture interests, or the withdrawal from or admission into it of any general partner or
joint venturer; or (d) a limited partnership, (1) the dissolution of the partnership, (2) the sale,
pledge,encumbrance,or assignment of any of its general partnership interests,or the withdrawal
from or admission into it of any general partner,or(3)wept for a limited partnership interest in
a low income housing project,the withdrawal from.w.,admission into it of any controlling limited
partner or partners. If granted, consent may be conditioned upon (a) the integrity, reputation,
character,creditworthiness,and management ability of the person succeeding to the ownership
interest in Grantor (or security interest in such ownership) being reasonably satisfactory to
Lender; and (b) the execution, before such event, by the person succeeding to the interest of
Grantor in the Property or ownersh terest in Granto (Pr security interest in such ownership)
of a written modification or assugflon ,agreement containing such terms as Lender may
reasonably require, such as a principalay do ,on the Obligations, an increase in the rate of
interest payable with respect to the Obligations,I _transfer fee,or any other modification of the
Note,this Deed of Trust,or any other instruments evidencing or securing the Obligations.
Permitted Transfers. Notwithstanding anytlhing to the ntrary herein or in any other Loan
document,the following shall not onstitute a ddfault under any of the Loan documents-
a. the: ithdrawal,removal,replacement,and/or addition of a Managing Member of
the Grantor in adance with the Company Agreement, or the withdrawal,
replacement, and/6f,h dition of Grantor's Investor "LP" Member provided that
prior notice of any additional or substitute Grantor's Managing Member is
delivered to Lender and any additional or substitute Managing Member is
reasonably acceptable to Lender and is selected with reasonable promptness. Any
additional or substitute Managing Member that is an affiliate of Grantor's Investor
"LP"Member is hereby deemed acceptable to Lender;
b. the sale, transfer,conveyance or pledge of partnership interests in the Grantor;
C. the sale,transfer,conveyance or pledge of any membership or ownership interest in
Grantor's Investor"LP"Member;
d. any amendment to the Company Agreement which does not affect the financial
terms of the Company Agreement, and does not otherwise adversely affect
Lender's security interest in the Property.
Further, none of the actions described in this paragraph will constitute a material change in
ownership which would trigger termination of the HOME Contract.
DEED OF TRUST—$1.056M HOME FUNDS Page 11
Mistletoe Station. Rev. 8-22-18
17. Except as otherwise related to the Project as defined in the HOME Contract,
Grantor agrees not to grant any lien or security interest in the Property or to permit any junior
encumbrance to be recorded or any claim to otherwise become an encumbrance against the
Property other than the proposed LURA,Deed Restriction,and any other lien or security interest
approved in advance by Lender. If an involuntary encumbrance is filed against the Property,
Grantor agrees,within 30 days of actual notice,to either remove the involuntary encumbrance or
insure against it or provide a bond acceptable to Lender against the involuntary encumbrance.
18. This Deed of Trust binds, benefits, and may be enforced by the successors in
interest of all parties.
19. If Grantor and Borrower are note same persat;#e term Grantor includes
Borrower. -
20. Grantor and each surety, endorse, and guarantor of the C?I�l gations waive all
demand for payment,presentation for payment,ndof itetion to accelerate maturity,notice
of acceleration of maturity, protest, and notice of prot to the extent permitted by law.
21. Grantor agrees to pay reasonable attorney's fees,trustee's fees,and court and other
actually incurred costs of enforcing Lender's rights under this Deed of Trust if this Deed of Trust
is placed in the hands of an attorney for enforcement.
22. If arty provisiofiW this Deed of Trust is determined to be invalid or
unenforceable, the valift, or eneability of any other provision will not be affected.
23. RESERVED.
24. RESERVED.
25. The term Leader €nCILid es any mortgage servicer for Lender.
26. Th6 bt and tiperformance secured by this Deed of Trust is a nonrecourse
obligation of Borrower. Neither Borrower nor any of its partners nor any other party shall have
any personal liability for repayment of the Loan described in the HOME Contract. The sole
recourse of Lender under the Loan documents for repayment of the Loan or performance of any
of the Obligations shall be the exercise of its right against the security for payment as defined in
the Note.
E. Construction Loan Mortgage
1. This Deed of Trust is a"construction mortgage"within the meaning of section
9.334 of the Texas Business and Commerce Code. The liens and security interests created and
DEED OF TRUST—$1.056M HOME FUNDS Page 12
Mistletoe Station. Rev. 8-22-18
granted by this Deed of Trust secure an obligation incurred for the construction of improvements
on land, including the acquisition costs of the Property.
2. Grantor agrees to comply with the terms,covenants and conditions of the HOME
Contract which requires the Note and this Deed of Trust. All advances made by Lender under
the HOME Contract will be indebtedness of Grantor secured by the liens created by this Deed of
Trust, and such advances are conditioned as provided in the Contract.
3. All amounts disbursed by Lender before completion of the improvements to
protect the security of this Deed of Trust up to the principal amount of the Note will be treated as
disbursements under the HOME Contract. All such amounts will bear interest from the date of
disbursement at the rate stated in the Note,unless collections from Grantor of interest at that rate
would be contrary to applicable law, in which event such amounts will bear interest at the rate
stated in the Note for matured, unpaid amounts and will be payable on Wglice from Lender to
Grantor requesting payment.
4. From time to time as Lender deems reasonably necessary to protect Lender's
interests, Grantor will, on request of Lender, execute and deliver to Lender, in such form as
Lender directs but subject to the rights of any.,, 'or lien ers, assignments of any and all
rights or claims that relate to the construction ofWvement p the Property.
5. In case of breach vy Grantor of the:terms,counts and conditions of the HOME
Contract, Lender, ah its option, subject to applicable notice, grace and cure periods, with or
without entry on the Property, may (a) invoke` ny of the rights or remedies provided in the
HOME Contract} (b) accelerate the mounts seed by this Deed of Trust and invoke the
remediesand fat this Deed of Trust,br(c).do both.
F. "THIS CONVEYANCE IS MADE AND ACCEPTED SUBJECT TO THE
FOLLO�IG CONDITIONS AND RESTRICTIONS:
The Note secured by this Deed of Trust is the Note required in the HOME Contract,
and has been executed and delivered in accordance with the Contract. The funds advanced
by Lender are HOME funds and the HOME Contract requires that the 11 residential
rental units described below and located on the Property must qualify and remain
affordable rental housing in accordance with the HOME Program and the HOME
Regulations for the 20 year Affordability Period more particularly defined in the HOME
Contract. The Obligations described in the HOME Contract evidenced by the Note and
secured by this Deed of Trust will be in default if thel l HOME-assisted residential rental
units located on the Property more particularly described in the HOME Contract do not
remain affordable rental housing for the duration of the Affordability Period, subject to
the next available unit rule.
This Deed of Trust has also been executed and delivered pursuant to the terms of
the HOME Contract. Grantor agrees to perform each and every obligation set forth
DEED OF TRUST—$1.056M HOME FUNDS Page 13
Mistletoe Station. Rev. 8-22-18
therein and will not permit a default to occur thereunder. Any default in the performance
of Grantor's obligations under the terms of the HOME Contract or the HOME Program or
HOME Regulations shall be deemed a default in the terms of the Note and Lender may
invoke any remedies provided herein for default.
THE HOME CONTRACT, THE NOTE AND THIS DEED OF TRUST
CONSTITUTE THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES AND NOTARIZATION FO ]
[REMAINDER OF PAGE INTENTION LLY LEFT BLM ]
DEED OF TRUST—$1.056M HOME FUNDS Page 14
Mistletoe Station. Rev. 8-22-18
MISTLETOE STATION, LLC, a Texas rmited
liability company
By: SAIGEBROOK MISTLETOE, LLC, a
Texas limited liability company,its Managing
Member
isa ens, President
STATE OF §
COUNTY OF §
This instrument was acknowledged :-before me on _ 2018, by
President of Saigebrook 1Vlistl tQe,LLC,a Ups limited liability company,
Managing Member of Mistletoe Station;LLC, a Te limited MWity company, on behalf of
said company.
Notary Public, State of
AFTER RECORDING RETURN TO:
City of Fort Worth
City Attorney's Office
Attention: Paige Mebane
200 Texas Street
Fort Worth,Texas 76102
DEED OF TRUST—$1.056M HOME FUNDS Page 15
Mistletoe Station. Rev. 8-22-18
EXHIBIT "A"
Legal Description
DEED OF TRUST—$1.056M HOME FUNDS Page 16
Mistletoe Station. Rev. 8-22-18
EXHIBIT "B"
PERMITTED ENCUMBRANCES
DEED OF TRUST—$1.056M HOME FUNDS Page 17
Mistletoe Station. Rev. 8-22-18
EXHIBIT "F"
REIMBURSEMENT FORMS
Mistletoe Station,LLC
Attachment I
INVOICE
Developer: Mistletoe Station,LLC
Address:
City, State,Zip:
Project: Mistletoe Station
Tax ID Number
Phase Number:
Amount
This Invoice Cumulative to Date
Developer's Certification: I certify that the costs incurred are valid and consistent with the terms and
conditions of the contract between City and Agency. By signing this invoice,I certify that to the best of my
knowledge and belief the data included in this report is true and accurate. It is acknowledged that the
provision of false information could leave the certifying official subject to the penalties of federal,state,and
local law.
Original Signature and Date:
Name:
Title:
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 9
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
Attachment II
City of Fort Worth
Neighborhood Services Department
Expenditure Worksheet
Developer: Mistletoe Station,LLC
Project: Mistletoe Station
Line No. Date Check No. orDmd Ile
Amount
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Total
*Payroll must identify employee. Rent must identify tenant. Other payments should identify individuals,if
applicable.
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 10
Mistletoe Station,LLC—Mistletoe Station Rev. 08.17.2018
EXHIBIT "G"
PROJECT COMPLIANCE REPORT: RENTAL HOUSING
Mistletoe Station, LLC
PROJECT COMPLIANCE REPORT:RENTAL HOUSING
Project Name:Reporting Period:From:
Contract#:To:
Owner Name:
#of HOME-Assisted Units:
#of High HOME Units R 1-bed ,2-bed ,3-bed ,4-bed
#of Low HOME Units Required:1-bed,2-bed,3-bed_,4-bed_
'All data reported should be consistent with requirements described in contract and anyamendments
Low or High #of Date of Last Unit Unit Tenant' %of Other
Leasedate Unit Number HOME Tenant Name Personsin #of BRs Income Max Rent Utility allowable Monthl s Median Assistance Type of
Rent Unit? HH Certification Allowance Rent Rent Annual Income Hispanic?Race Type Househol
2018 HOME Program Rents(Max RenI
Type of Household Other Assistance7ype Race %of Median Income
Select: Select. Select. Select.
1 Single,nonelderly 1 Section 8 1 While 6 American Indian/Alaskan New&White 1 0-30%limit
2 Elderly 2 HOME TBRA 2 Black/African American 7 Asian&White 2 31-50%lit
3 single 3 Other federal,state, 3Asian 8Black&WTRe 351-60%limt
4 Two parents or local rental assistance 4 American Indian/Alaskan Native 9 American lndiaNAlaskan Native&Black 461-80%limit
5 Other 4 No rental assistance 5 Native Hawaiian/Other Pacificlslander 10 Other 5over 80%limit
121ficlency BR 12BR 3BR 14SR 5BR 6BR
LOW 658 705 846 970 1091 1203 1316
HIGH 1736 1838 11054 11287 11416 11544 11672
'HOME rents enadt v 6/12019.For prior lease tlates,us rent Iimfts and applicable utiltly allowercesfor the year
corresponding tc the start tlate of that years lease.see HUD Evchangeinfo far more information on HOME rents.
Certification:The undersigned,hereby gives assurance that to the best of my knowledge and belief,the data included
in this report is true and accurate,and if is a non-profit agency,has been approved by the governing body of the organization prior to
submission.
This completed and signed document should be submitted to the City annually per your contract.A copy should be retained in yourhles.
Title:
Print Name:
Signature:
Date:
Phone No.:
,exon 3 es of 1z2017
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 11
Mistletoe Station,LLC—Mistletoe Station Rev. 08.I7.2018
EXHIBIT "H"
FEDERAL LABOR STANDARD PROVISIONS - DAVIS-BACON REQUIREMENTS
Mistletoe Station, LLC
NOT APPLICABLE
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 12
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
EXHIBIT "I"
SECTION 3 REPORTING FORMS
Mistletoe Station, LLC
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 13
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
Ex,mrr "r
Section 3 Sumnsm y Report 3_oeowbrwm or rbeaaq orae Apwoi o No 259-00113
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HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 14
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
Pali 9- ConbWk Awrardad
c:alrbutem Canbacfa
A TaW coir arw uM or M to flo aw ass on eop"M
d low au"rnuwi J"016ALft wwwwti W
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sb K
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2 Nw*CagMnrelra c nam b
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Q Tort ftwow d 8sson 3 beak bis isCal M a vaw.mwrtidan owaa ft
Part St baawnary
ftiCE a the efbrt!I Me b chest the effploy VW and other economic GppoAirtbes nlnerated by HUD WAr cW wads nee tar pawl
and oemmurtY devesopncr`t p09ar'^3,b the nr I 1 01, 1 ei1 fteSb1e,Inward i wWW very kwArcome persona pWfttft y those who
are reCp aft or nwemment nS7aece b 806sra (Cheek aN that SMY-1
lMlemaled to ma Kw-* ww resderM t woLWL root adver$WW media,signs pro n wft d1spinyed at ane prom site.
contacts sM the commwrb ongarazoons and pub c or pivalbe agenrcles aoerah MM the rwebop~area(or
w nmetopo4n cot vW n dMCh the Section 3 covered praWw ar pi lect Is IlOcbed or slmnar methods.
Parricipased In a HUD poQam or otter program wlch pqx. the WMIng or wro ft"we of Secfon 3 modern.
PaR}[oNed In a HUD program or cow program wsth porrlDnes the award or Corte to busness concerns which melt re
deftisbon cf Sebbm 3 bnmbness concerns.
CoordInoted wrth YotANK d Programs WMIshned ti ane rtrcbopoibn area in wtlbch the Secson 3 covered prrip et Is wesum
Obiter,desafte below
Ptblc iepoibe for tYs cdlecbon of I ft enaaon Is esdnsated b average 2 hoes per response,bciudrq me bme br revWMV Mnsbucl o ns
semen esasbng dad sources.gatlm"V and mW taN"the dabe necdett and eonrp"V and mwW&anp the eolKbn of Ir f wwWon.
TP*s agency may not cdted lila rdbmMbn,and you are not mWJmd to c r*phft tYs flim ursess K dsplays a c rm"wand OMO
mor 0w.
Sec0on 3 of the Housing and Man DeveRwrnet t Ant of 19N.as amended,12 U.S.C_1701t%mandates out the Dep wb wt ensues OW
emp Ypnerl and othC economu oppwUr.bes gawaaed by!s nonatoq and tonrnwgr devtlopmert a>sustance proms are dtrecneo
tawmd hits:-and verf-4"Craw a persons,parbcuWV ftse Oho are rec%Mets of goyennment aulatmrice housing. The mgUabons we
W nd at 24 CFR Part 135. TTe r. r-atbm W1 be useo by the Deman to monfArp Wam rKblwW eorrphante wah Secbdn 3,to
assess the muff of the Da>IartmerrCs efl b b r.veet the sh*Aory o4KKUves of Section 3 b pnegmm report;b Congress,and by
mcpeels as ser-moMprrq bol The dsd Is cake hto a daaabase and a"be anaf wAd we o wbuted The cosech n of wrbrmaom
ahotyes redpternts recrlvbtp=ederal fhancn►axe br hMn&V and eoemmunri dereapmerw p vgrwm covered by Secoen 3. The
rrbrnntlwt wtu be ooteised arnrratD b assast HUD ti n w 0 as nepor nespiremerds tinder m p r M eoMeX6)of tr Fat Hmnshg Act
and Section 4i5 of 9w HCDA of 1992 M asarrarncr of corMdartlsapr 1s ndt appncsbte b tt+Is tbrrn The Pricy Ada 1974 and OUS
Gncdw A-tW are not 011 1- The mporlia regLoemrards do not cwftkt sera tie gnnetln&m Dad Is ueft alvC personas Iderrbfytp
tdbwddon is not anduded.
Cop 2.2 Non raAaaaQ h mown
N1036 cm ra
HOME DEVELOPER RENTAL CONTRACT-•EXHIBITS Page 15
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
Pam HUD-60002.Seabon$itawwwy Roporl,Esonowa Oppof nigiss torr Loan-ted voy Low.n+owt•piteSoatit.
inabrudiana. Thin ken Y to to And to report aeruab B ProWron Cade Etbr Ibe opp w1aft picW h uadr a babd M
*am nWWI on aod0 effinow mord ow;trtlwr aeYraatvre tits bosom to tts as"
atpatltnfiaa po.i led b bat and my baniacaer bowaL+rw grab a A Ww liver EmM tr tarn d OW A40ar winownfag
aadew S d to liftowi and utltm Otwwiepn"tit has d ttlla TM taw 11"'itow- Ceow in nuntw a
Sudan 3 scoaasarn eppf/to N pAie bed kwfte Aa warft
junow—thol eeaahae 1 iJ dahrelooderw ora umm f"U"to M L Enpkpsaae and lmeirwq C"relh aiwr
Sudan S of to U 9 MouMp Ars of 1037 {7!a we&V aeeralr+aw. Caalrwa A. Cwil ire wwetr Im adepoa w f4eArawaak a e
otaeuerf ti Sed'-%%♦0 N U 9 ►batrng,ABV of av}*T ev Mt dA 60 r c 4 c I atm Leat ahf+c+al 18'aw a p d M Oft—amok",i&
wteserrleabwt 0 anwawr to baelarr 14 d on U a►dna ri;Ad .apenaerw,err►1b, - Mev Brea piweeera eve=noww
d 1037 er.:tu g i bed hooming and aerawraMe do,wimp sovwaeatwaM Fo eanebtaiah phorate let each bode and nomwe
eawabonce an"cow al{2QOA00 aatarded ka 1'i loaded date to ahauwa a ll-A gos FIN abeh tda witrte peso"woo
ahwtatdan;aa:.atdnp ndasary and rbrrenatw d ter mome t pelt wp antred The ealr0 rl d'Otwl'endo"0=4011tha ave*an
bdoo t a,PLU" cowl&4*w a tai Coat pttvuc uumbuhlian whoa&wart►
peyee, and b earillat N ted aaecaorobret r an aroeae of f1MA000 tal&stn b. IMeotrMorr False Edw M rutado of awn bnaa to
awadr ow- gdtwet for Bralor►S-named sea*% ardn cafteco d waiRsn dniltMd M Columb A in oe(atrdeb aft
Farm HUD.a=hoe Mur ped.wAh1eA Mumbo aSnrKa o w!im Aa award New tea welrn b e putere oto k nes tlh Cel caorAohrare
ad paVaraa aoreerd br ger an 3 Pot l iewbau ta wrMls)iwM in tiespntre pepdi to wnt7w wt of to fns of wiecow for to
and I-I 1 0 The ntdpiaa No to Option It daarrI v natoriaai Sersan 3 cowed awed cr is to bele of rsygpt d®ardbn 3— mg
w.pbynrfftat"gale aMha an On bass at Ms ntea bel d neaw aeeYbemou
waled ba maw tare;tab wfe M D E and P Part 11 at Ma Axwo Elaleret C. oinafrd q FAR*Enter to n mebw of aueiot]taw
testa b Bea A aslM and Part 31 ournno ame na-aareu eAtorea to tanto IN meth ewlltpery d wewane tdudiad in Colown,A in
cooloy van Socnan a eaoafrafiah am ran ewbrd aaAon 3 arm the No"b a Arden 3
R 1p I at cambackm aAp d b Sodas+3 to gAro carte truM teeatrrr she is nd an sol aw**d P.at timponre pgwot to
Marten ampapreb aw"mrdabon to aeldieR flet MLO araerwcvab anpayreaH et tPhe Seto d sdedam b Gle Sslx 3 cmvrod emood w
ar.aerta.lo low int and eowenunM eda*RabpmaH promote owed of the tree d taoapt of Sees"3 e am d tarimume
dracfae faatread beer and my bw 4 w w pa+e"' A taipient d Cabinet D. EMw the pwaeewepe d all 1ir"hum of tow tone
Sudan i coraad Menelaus ufdt oa*w one copy of ON roman to 19aadan 3 eoebdeHei an eanrtaeltn with the award
HLO rrrdgaeArs -"oar at Flu twwowV and Eves Onctwiay Caahwa s E. Ear Me psrwdgp d tar tow ail nacos tesrkrd b
"woo Os power"parokov tarrOrrta eoyae an swaal Saciltn 3-IF',tleer and bthinaw;tdatefrep aro Meal aofeteulyd
pwt-m om ramlo!(Ida* IN, t 3 rwoe a b baa aawtimlMud d to with the a.atd eratude out Iota kit m#trta and tJlelaw
wrap Mrs the prapratr pato"once rapaat a" ria od; VMhwo e- oomb to
armdl owfvr+to e&pott a and r¢Mstl,tee 9aedan 3 depart 1e k be Calnew F. Nbredduay FW 4 Erre no wte7hbw of&KIS m 3
dolt+IN R Jamey 1C bard,It Os a&aj ct ends malua Dacarob w 31 mmidwtb ped win beieced In oannedot aper oft evhrrd
100"10 dot+Of-I eo odson ONy l4tae Arrc p' "w MA it cour !OppeAtraft
Ar0aelroJ b lsparf d lM+fl lllr npr7 traotaf(nefoete Blanc 1. owls ad o CbMaesa
of d wepalaata and Naw Sra:lr w a aaaanrved arta A. Err tree hoetr Ooa1M eroerwas d r eaatbade sawdd an t"
eeatlwders anal uiMawsacro. to* "!
MUD Feld Men Erten to Rdd LA=mans ave W Err the roes dolrt.Baas/of aatUade teswcled wash ria
I ReWWawas Enter no mans wd*was d tr tameam to w% aporn that woo anwinded in Sudan 3 banns eaw
wAN d1hrpIda ism aha C. Etas the owtorertge ddin told dater amavt of wttae]r
2 Felons leselaeaeitot Efrw to ownbrer Mad apparent an to too deed weh 11aa ptalucu;taptan,evaeded to 9 den 3 btrneua
awwd tomo(WO daubs" The troch!on"to•plan( amu D. Err the roan Ear of Seca m 3 bawhnaaa I va sawed
___F1 eMw aplwaaen a ooramaA Stack L mwocwwbkgsoo cwwbse
9 000 Aathari d Atwd EAU Rd dtlo lata(ma ded b OW Ma A. EAW to What dict awalf d r carbaal awwded on t"
ftom s deals,Burred bit ra teld ora ptt>teclfprop►Ml
445 Cooled PwtrtA*ott Edell M tt ww wed fdaihoe arMrr ala L Etwr tin taeu calor a&aetl of ametwo teaearA 4 n4h tin
d tte party+wth knowledge d 1w demo add to reajp oro w4od eanttled b Seaton 3 buanwaae
rewe"W i"bat of Soden 9 Iwo C. Err Ms petcarsape d tr few dada amaut of hserovtaaa
t Repal'ei PAW tndr>tse tr tsert►e praad ltnaalr rod td moncacleod with tine prckptWwn awarded b Red- 3 busu am
to MW rswthurs am D. Error Ms nrftdan of Socson 3 baawuwm recolo no award
Dole Report sa8owDea! EON to sppmpbb ddb MA b. Stroma tr d Eftms-tidf-otpionda t,
rvda d am__.mph d the tetpee ah to rnt.0 Mandi4--@ Mad
Few"Weiry and Eva"0"c"w* at Mn crave sero Ma The Mcwtary map awebiM trance aasW how to arwa than it0 tataH
pw%ratarrche Pupmtt is ow itlritboht b On p-go--m dkx The&rester 3 d tta Madsn fat M meet en the bob d arta Sar *Ws h+df Ve ouch IAM
moot is mann ed bf Anto"1s brdhate air cedeads eeartabe I mutare as neeuuuay becewee of p ervabrg wore d aarrrtLdov casae
deny Os paned speabd>n sow b PtteathMa are to tepad of o ttnaawud t tem ar beit�rr fut30 1e11ty loco enooato Iereer"etas+
itio"Xicom stud"n litadu 11%;read.peleeraet wltaee anoeetao de td
award 50 powd of the eeadw luthlr",mer ave a dewrtbud by to
• Tho from Tomorham tow to 'and vr".awPanw m paraoele'have sacna"41"04aftwonso at- w"and ago krrdtee mccet Viet rte
to bane morn a pram M was i,stets, 3;t{;21 d tr Uwewd base"writ,o"tabbun hican a ohgp hk*W of lover than W peens d
Shown McLane Ad of low Laalnraw a!armor"nerve balsa. Do Odin to to roe as to bore d tr Swcno r/a 6 oft+P Mil Mari
Und,am Won petlar"1 volalua snag do not aornee I a0 pu-.one d wle/ee"an paosum because to uthstadr No at mw hrW Wtottea
an"Holm inner IN the Now a ddanraawd M Ms Secretary with
aaMwbaowe for Mnhdw and ego"diel aenutf twit
toga I see amatsm cl ttfbt4
wtrsaCow In
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 16
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
EXHIBIT "J"
STANDARDS FOR COMPLETE DOCUMENTATION
Mistletoe Station,LLC
FORTWORTH.
Standards of Documentation for Reimbursement of Development Costs
Cost Type Documentation Standard
Acquisition of Vacant Lots Notice to Seller(date must be on or before the date of options agreement
or sales contract and signed by the buyer and seller)
• Recorded Deed of Trust
• Purchase Agreement w/Required HUD language
• Master Settlement Statement
• Appraisal or other document used to determine purchase price
• Proof of Payment bank statement/cancelled check
Soft Costs(Architect,Engineer, Invoice
Landscaping,Surveys,Appraisals, - Invoice should include:
Environmental,Legal Fees,Other date;
Consultants,Etc.) company's letterhead;
address for which service is provided;
description of service(s)and item(s);
amount for itemized services;and
total amount
• Proof of Payment('he.bank statement or cancelled check)
• If applicable,fully executed contract/service agreements and applicable
amendments
- Provide printout from wwwsam_eov verifying
contractor/subcontractor is not listed on the debarred and
suspension fist
• If only a portion is being paid with City funds,then show calculation and
documertation of how costs are allocated.
Neiglhbodmmd Services
FINAL as o(4/24/2013 Page 1
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 17
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
FORT WORT H.
Standards of Documentation for Reimbursement of Development Costs
Construction Costs(Contractors& Invoice
Subcontractors) - invoice should include.
d ate;
company's letterhead;
address for which service is provided;
description of service(s)and item(s);
amount for itemized services;and
total amount
• Proof of Payment(i.e.bank statement or cancelled check)
• Timesheet(s)Signed by Employee and Supervisor
- Activity Sheet(s)Signed by Employee and Supervisor
- Pay Period Dates Should be Reflected
• Copy of applicable inspection report(s)conducted by HIED Inspector
• Copy of executed agreements
- Provide printout from www.sam.eov verifying
contractor/subcontractor is not listed on the debarred and
suspension fist
• If only a portion is being paid with City funds,then show calculation and
documentation of how costs are allocated.
• For retainage for the prime contractor,lien waivers for the prime and all
subcontractors.
Materials Purchased by Developer • Invoice
- Invoice should include:
date;
company's letterhead;
address where materials will be used;
description of service(s)and item(s);
cost by quantity;and
total amount
• Proof of Payment(i.e.bank statement or cancelled check)
Neighborhood Services
FINAL as of 4/24/2013 Page 2
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 18
Mistletoe Station, LLC—Mistletoe Station Rev. 08.17.2018
EXHIBIT "K"
CONTRACT AND SUBCONTRACT ACTIVITY REPORTING FORM
Mistletoe Station, LLC
(-1-1 and%ubealdlarl A[U.M) I"S D.fw Wee Pl llm.he and lhbel U..dogveu CI\III gm e.il�o.'.5"OnBA 0'm
WtLt rcpmmgbleden ltt dur[.JIC.Lan Jf wP�ml'epUueaulwalwuvrra¢e 5h'pelnp ee Urhuhflg the twN l�vfn,[wlg vnrmvale sathm_e_vnfg Waeulu[[i palxtugmdueuteuu:gtht daa need[l adeanpeug a,w mtew,mthc tdlnt.Ri.,f W',mw1.uM
W'�m[dwnuailvta, II('D may..aca-thNud,mauttarW yw art na-Furlto t..nplaelWa Lnw d—Aqu�,—�—tfy Vow OMD C—dNImdc
EJnvti5t(Men daM Jnh t m,4—the mm—,NP.ima nnPLYtflea 111 ehdl N,dndgaf by earn h I"ulval ARc y eM the thea mmal Plod shall W.*l A rrvnm mty We—de,,k, nr oRmiee, Tlr Infi mui�rl Ie u!d by Hl.n m motif x xnd rwhlN<VINE> a
Ih vt pagfmn svtvy N Ik dn'yaelM,nirnv}'61noe>E oacrydtx 1AUiEl&�.The Uepwnlau fegtufea Ilse mf®sia w paidc pedeae em.wq�fA(R{nuprame f.'r Ur Jnelpmu efviluviab®rte mteryvs<[mreewlg hlmtin'Bow��Unekpmcu If the ulfemfa�im
va rdloaed HLD Would ort be We to=&1attm m gfd AIDE"b ft bwe MHh prr<epnwt three gaab.
111,aq'AE NaU¢-IhcUNed S[aea Uepaemnu OP}lmyg atW UfWPUeaelopxefP,kedmlHaolivp M111aVtati.R UmllLvtvtd tv rdf[e We 4lf,mlWat«queaed mUtit form q•JututJ Ihle l_'.Lmud San Cude.A 14Jn 1"Ula
aeq.aM f�tdPtw Y WJl vd be duci d.r
Nerd wlade Nle Umd Save Dcpetntm d}lwsng and(lbmLllnrl.�wa wyhv peur t mUa arep mtegslcd spe®ttled by lan'.
I.QWihoTrvlat M11W4k.rkgWSpaneaHWda'Apny ('both&! :.L—im Will)',Sme 74 Cola)
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sibIM1d�HYPmauMda9fop}�gdel,.,a.<. a9'oLsfToam.eea fnCMb.loal PIrSi..flMdY.oCtWeic Nmn&Tue.ees,W NWei aaeW la�e.m yaNv—?lte.atbnEm See
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fPR NmtlaPTaRM NmV•6 1-wtil.Amwinm 1-M ImsN isadaP 9cA W !-Sctim Pa:
1•x..iluauma. 1-Nwl na...wi a P.da.od 2-PlekAmmcr t-Neatic YlWj 6-Ht'I,MJJIVniPeerJ
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HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 19
Mistletoe Station,LLC—Mistletoe Station Rev. 08.17.2018
EXHIBIT "L"
DEED RESTRICTION
Mistletoe Station,LLC
HOME DEVELOPER RENTAL CONTRACT -EXHIBITS Page 20
Mistletoe Station,LLC—Mistletoe Station Rev.08.17.2018
DEED RESTRICTIONS
HOME Funds
THESE DEED RESTRICTIONS ("Deed Restrictions") are made effective as August
24, 2018, by and between MISTLETOE STATION, LLC, a Texas limited liability company
("Owner"), as Grantor, and CITY OF FORT WORTH, TEXAS, a municipal corporation of the
State of Texas("City"),as Grantee.
WITNESSETH:
WHEREAS, City has received a grant from the I;Inited States Department of Housing and
Urban Development ("HUD") through the HOME Investment Partnerships Program, Catalog of
Federal Domestic Assistance No. 14.239 ("HOME"), with which City desires to promote
activities that expand the supply of affordable housing and the development of partnerships
among City, local governments, local lenjkrs, private industry and nonprofit housing
organizations;
WHEREAS, the primary purpose of the HOME program pursuant to the HOME
Investment Partnerships Act at Title II of the Cranston Gonzales National Affordable Housing
Act of 1990, as amended, 42 U.S.C. 12701 et seq.(the "Act") and the HOME Investment
Partnerships Program Final Rule, as amended, 24 CFR Part 0 et seq. ("HOME Regulations"),
is to benefit low and moderate income individuals and families by providing them with
affordable housing;
WHEREAS, Owner proposes to use HOME funds for a project whereby Owner will
construct, develop, own, and operate a new 110-uz imixed-income housing development in the
City to be known as Mistletoe Station Apartments "Project");
Qom:,.
WHEREAS, City has agreed 4o lend, and Owner has agreed to accept, a loan of City
HOME funds in the amount of$1,056,000.00 (the "Load'), pursuant to the requirements of the
HOME progi in accordance with that certain HOME Contract, City Secretary Contract No.
51121, between Owner and Ci'M; for the purpose of assisting Owner in developing the Project
("HOME Contract');
�z.
WHEREAS, as di*Won to City making the Loan, Owner must agree to comply with
certain occupancy, rent and other restrictions for a period of time in order to comply with the
HOME affordability requirements, and agrees to convey to City certain covenants and
restrictions that will burden the hereinafter described real property so that the Project will meet
the HOME requirements ("HOME Requirements");
NOW, THEREFORE, in consideration of the making of the Loan by the City and the
disbursement of any part thereof, and in order to comply with the requirements of the Act and the
HOME Regulations, Owner (together with its successors and assigns and subsequent owners of
the Project), hereby agrees that the following restrictions shall apply to the real property
described in the attached EXHIBIT "A":
DEED RESTRICTIONS-HOME Page 1
Mistletoe Station Apartments Rev.08.22.2018
1) In compliance with the maximum per unit subsidy amount rules at 24 CFR Part
92.250(a) and the minimum amount of assistance rules at 24 CFR Part 92.205(c), the number of
units in the Project which have been designated by Owner and approved by the City as subject to
all occupancy, rent, and affordability requirements contained in the HOME Regulations shall
consist of 11 units of the 110 total residential units in the Project("HOME Units")
2) The HOME Units rented or available for rent to households whose annual
incomes do not exceed 80% of area median income ("AMI"), as set annually by HUD with
adjustments for family size ("High HOME Eligible Tenants"), shall be 8 units ("High HOME
Units"). The number of HOME Units rented or available jpr rent to families whose annual
incomes do not exceed 50% percent of AMI ("Low HJ0A1E Eligible Tenants") shall be 3 units
("Low HOME Units") The HOME Units can be designated as either High HOME Units or Low
HOME Units. The HOME Units are floating.
3) Owner hereby acknowledges and agrees that 74 units in the Project are to be
owned, managed and operated as a rental housing project for^affordable housi-_. .as set forth in 24
CFR Part 92.252 and, that the HOME Units must be occupied only by-HOME Eligible
Households as defined in the HOME Contract and must also meet the following requirements to
qualify as affordable housing and will be subject to the following restrictions and covenants:
a. rv' .rr SOME Rents. The tnaximum HO E;tents are the lesser of:
(1) the fair market revt-i'existing ho'using for comparable units in the
area as established byBUD under 24 CFR Part 888.111; or
(2) a rent that*lps not ei d 30% of the adjusted income of a family
whose annual income equals 650lar of AMI with applicable adjustment for the
bedroom size of the relevant housing unit. High Home Rent may not exceed the
maximum rent limitations established by HUD minus utility allowances. For the
purposes of these Deed Restrictions, "utility allowances" are those monthly
allowances for utilities (excluding telephone) adopted by City in accordance with
the HOME Regulations and HUD guidance, as more particularly described in the
HOME Contract.
b. Low HOME Rents. Rents for Low HOME Units must meet one of the
following rent requirements:
(1) the rent does not exceed 30% of the annual income of a family at
50% of AMI adjusted for family size. Low Home Rent may not exceed the
maximum rent limitations established by HUD minus utility allowances.
However, if the rent determined under this paragraph is higher than the applicable
rent under (a) of this section, then the maximum rent for HOME Units under this
paragraph is that calculated under paragraph(a); or
(2) the rent does not exceed 30% of the family's adjusted income. If
DEED RESTRICTIONS-HOME Page 2
Mistletoe Station Apartments Rev. 08.22.2018
the family receives Federal or Texas project-based rental subsidy and the very
low-income family pays as a contribution toward rent not more than 30% of the
family's adjusted income, then the maximum rent (tenant contribution plus
project-based rental subsidy) is the rent allowable under the Federal or Texas
project-based rental subsidy program.
C. The Owner will not refuse to lease a HOME Unit to a certificate or
voucher holder under 24 CFR Part 982 (Section 8 Tenant-Based Assistance: Unified Rule
for Tenant-Based Assistance under the Section 8 Rental Certificate Program and the
Section 8 Rental Voucher Program) or to the holder of a comparable document
evidencing participation in a HOME tenant-based rental assistance program because of
the status of the prospective tenant as a holder ofsuch certificate, voucher, or comparable
HOME tenant-based assistance document.
4) Initial Rent Schedule and Utility 'llowances. Owner must verify that all tenants
of HOME Units are HOME Eligible Household 'th full Tenant Docurftntation at the time the
initial lease for a HOME Unit is executed as more particularly described in the HOME Contract.
Tenants must certify the number of people in tenant's household along with such person's names
and ages. Owner shall obtain financial information on all members of a tenant's household.
5) Tenant Income. Owner must use the definition of annual income used by 24 CFR
Part 5.609 to establish tenant income eligibility and shall use the most current HUD Income
Guidelines. Owner must verify that all tenants of=HOME Units are HOME Eligible Households
with full Tenant Documentation as more particularly described in the HOME Contract. Owner
must verify the income of the tenants of the HOME Units annually after the initial lease is
executed, but may use a City-approved tenant seiertification form as Tenant Documentation.
Notwithstanding the foregoing, Owner must rify* income eligibility of all HOME Eligible
Households with full Tenant Documentation every 6th year of the Affordability Period. Owner
must maintain copies of Tenant Documentation as required under the HOME Contract. In the
event that a HOME Unit is occupied by a tenant who is not a HOME Eligible Household, Owner
shall have 30 days to determine if another tenant qualifies as a HOME Eligible Household or fill
an empty unit with a HOME Eligible Household.
6) Tenant Tease and Tenant Selection. Owner's lease for the HOME Units shall
comply with 24 CFR A =`92.253 as more particularly described in the HOME Contract.
Owner's tenant selection policy and criteria shall be consistent with the purpose of providing
housing in accordance with the HOME Regulations including addressing nondiscrimination and
affirmative marketing as more particularly set out in the HOME Contract.
7) The Project shall be maintained to and fully comply with all City codes and
federal Housing Quality Standards.
8) The Affordability Period for the Project is 20 years ("Affordability Period") as
more particularly described in the HOME Contract. The Affordability Period begins on the date
that the project status is changed to "complete" in IDIS, HUD's project tracking system.
DEED RESTRICTIONS-HOME Page 3
Mistletoe Station Apartments Rev. 08.22.2018
9) The preceding use restriction and Affordability Period (i) shall run with the land,
(ii) shall be binding upon the Owner and Owner's heirs, personal representatives, successors and
assigns, and (iii) shall be enforceable by actions at law or in equity by the City, its successors and
assigns and/or one or more third-party beneficiaries. For the purpose of these Deed Restrictions,
a third-party beneficiary shall be any member of a HOME Eligible Household as defined in the
HOME Contract. Owner hereby subjects the Project(including the Project site)to the covenants,
reservations and restrictions set forth in these Deed Restrictions and Owner hereby declares its
express intent that the covenants, reservations and restrictions set forth herein shall, be deemed
covenants running with the land and shall, pass to and be binding upon Owner's successors in
title to the Project. Each and every contract, deed or other instrument hereafter executed
covering or conveying the Project or any portion there� 1 conclusively be held to have been
executed, delivered and accepted subject to such coviants, reservations and restrictions as set
forth in such contract, deed or other instruments.
10) Owner hereby agrees to exectte Further documentationuired by the City or
HUD which may be necessary to cause these'Deed Restrictions to comply with the laws,
ordinances and/or regulations referenced herein"or in the HOME Contract (or any other
applicable laws that supplement nmeni , restate r' I ::or otherwise pertab to such laws
ordinances and/or regulations).
11) Sale or Transfer of the Land or Project. Until the expiration or termination of
these Deed Restriction. Qwner hereby covenants and agrees not to sell, transfer or otherwise
dispose of any portion o?the real property or Project, without obtaining the prior written consent
of the City, not to be unreasonably withheld, conditioned, or delayed. Any transfer or disposition
of the real property of the Project in violation of the provisions of this Section 11, shall be null,
void and without effect, shall c*use a reversion of title to Owner and shall be ineffective to
relieve Owner:of its obligations under this document. Notwithstanding the foregoing, prior
written consent of the City shall not,be requireAin connection with a foreclosure or a deed in lieu
of foreo sire by a first m gage luder, nor shall it be required for the first transfer thereafter.
Notwiths_ ng anything -lein to the contrary, the Project may not be conveyed to any person
or entity which at the time of the conveyance has been debarred by HUD.
12) Owner and City hereby declare their understanding and intent that the covenants,
reservations and restrictions set forth herein directly benefit the real property.
13) Default; Remedies. City shall declare an "Event of Default" to have occurred
hereunder if City becomes aware or is notified in writing of a default in the performance or
observance of any covenant, agreement or obligation of Owner set forth in these Deed
Restrictions, and if such default remains uncured for a period of 60 days after written notice of
such default shall have been given by City to Owner.
In the event of any action at law or suit in equity by one party to these Deed Restrictions
against another party with respect to these Deed Restrictions, the party prevailing in such action
shall receive from the other party and the other party shall pay to the prevailing party, in addition
to all other sums which may be payable to the prevailing party as a result of such action, a
DEED RESTRICTIONS-HOME Page 4
Mistletoe Station Apartments Rev. 08.22.2018
reasonable sum for the prevailing party's attorneys' fees and costs and other expenses of such
action or suit.
No failure to exercise and no delay in exercising any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any other or further
exercise thereof, or the exercise of any other right. The rights and remedies herein provided shall
be in addition to all other rights or remedies provided by law. No modification or waiver of any
provision of these Deed Restrictions, or consent to departure here from, shall be effective unless
in writing and signed by the parties and no such modificatip4onsent, or waiver shall extend
beyond the particular case and purpose involved. No noti r demand given in any case shall
constitute a waiver of the right to take other action in the:same,Similar or other instances without
such notice or demand.
14) Owner shall cause this documen , d all amendments and supplements hereto
and thereto, to be recorded and filed in the real iroperty records of Tarrant County and in such
other places as City may reasonably request. UwWr shall pay all fees and charges incurred in
connection with any such recording.
15) These Deed Restrictia be governe ` _the laws of the State of Texas.
16) Headings and titles herein are for convenience 6nly and shall not influence any
construction or interpre `
17) If aril provision of theseestrict shall be invalid, illegal or
unenforceable, the validity, legality and enforcfity of the remaining portions hereof shall not
in any way be affected or impaired thereby.
18) All terms not defined herein shall.Lave the meaning proscribed to them in the
HOME Contract. If any provision of these Deed Restrictions conflicts with any provision
of the HOME Contract, the provisions of the HOME Contract will govern to the extent of
the conflict.
[Signature Pages to Follow]
DEED RESTRICTIONS-HOME Page 5
Mistletoe Station Apartments Rev.08.22.2018
IN WITNESS WHEREOF, Owner and the City have executed this document by duly
authorized representatives, all on the date first written hereinabove.
OWNER:
MISTLETOE STATION, LLC, a Texas limited liability
company
By: SAIGEBROOK MISTLETOE,LLC, a Texas
limited liability company, its Managing Member
By:
Lisa Si end President
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged ;before me on August _, 2018, by Lisa
Stephens, f Saigebrook Mistletoe, LLC, on behalf of Saigebrook Mistletoe, LLC as
Managing Member of Mistletoe Station, LLC.
Notary Public
[Signatures Pages Continue]
DEED RESTRICTIONS-HOME Page 6
Mistletoe Station Apartments Rev.08.22.2018
IN WITNESS WHEREOF, Owner and the City have executed this document by duly
authorized representatives, all on the date first written hereinabove.
ATTEST: CITY OF FORT WORTH:
By: By:
City Secretary jgi Costa,
M&C G-19326 Dated June 26, 2018 tant City Manager
APPROVED AS TO FORM AND LF GALITY.
By:
Paige Mebane, Assistant Citorney
STATE OF TEXAS § -
COUNTY OF TA �;3 y a T §
This instnft�Wqg#A�wledge *fore me on August , 2018, by Fernando
Costa, A" rt V,&'ffi on behalf of the City of Fort Worth.
Notary Public
DEED RESTRICTIONS-HOME Page 7
Mistletoe Station Apartments Rev.08.22.2018
EXHIBIT "A"
DEED RESTRICTIONS-HOME Page 8
Mistletoe Station,LLC Rev.08.22.2018
EXHIBIT "M"
REQUIREMENTS FOR PERMANENT SUPPORTIVE HOUSING UNITS
Mistletoe Station, LLC
The purpose of the PSH Units is to reduce the population of homeless persons in City homeless shelters.
The goal of the PSH Program is to provide permanent,stable and supportive housing for homeless persons
with disabilities in order to promote their self-sufficiency and foster their ability to live independently.
1. The FWHFC will retain the Supportive Services Provider for the PSH Tenants. The scope of the
supportive services shall be determined by FWHFC but at a minimum shall include on-site case
manager with experience in providing case management to homeless and formerly homeless
persons. The cost of the PSH Program will be paid by FWHFC.
2. Developer's property manager for the project will communicate and coordinate as necessary with
the Supportive Services Provider and with the providers of any rental assistance or rental vouchers
to the PSH Tenants to ensure that the objectives of the PSH Program are met. The property
manager may participate in the selection of PSH Tenants.
3. PSH Tenants must meet HUD's definition of chronically homeless, or be designated as having
priority status by the Tarrant County Continuum of Care, or meet some other reasonably
equivalent standards of need for housing and supportive services due to the nature and extent of
their disability and duration of their homeless status.
4. Developer will provide dedicated and secured on-site office space to the Supportive Services
Provider's staff member as well as a telephone line and internet access sufficient for the staff
member to access HMIS, the Homeless Management Information System maintained by the
Tarrant County Continuum of Care. The property manager shall coordinate with the designated
staff member as necessary to fulfill the purposes of the PSH Program.
5. Property manager will coordinate with the Supportive Services Provider regarding selection and
placement of PSH Tenants ensuring that tenant selection criteria for the PSH Units is appropriate
and consistent with the purpose of the PSH Program as well as the property management practices
for the project. Property Manager will not unreasonably deny housing to eligible homeless persons
who otherwise meet the PSH Program's standards for services.
6. Developer will promptly notify City, FWHFC and the Supportive Services Provider in writing of
the specific date when lease-up of the project will begin so that the Supportive Services Provider
can initiate a referral and the coordination process for potential tenants for the PSH Units.
HOME DEVELOPER RENTAL CONTRACT—EXHIBITS Page 21
Mistletoe Station,LLC—Mistletoe Station Rev. 08.17.2018
M&C Review Page I of 3
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FoRr_ IVORTH�
COUNCIL ACTION: Approved on 6/26/2018
DATE: 6/26/2018 REFERENCENAME:LOG NAME: 19ADOPT_2018NOFA_RECOMMENDATIONS
CODE: G TYPE: NOW PUBLIC NO
CONSENTHEARING:
SUBJECT: Adopt Funding Recommendations and Authorize Change in Use and Expenditure of
Community Development Block Grant Funds in the Amount of$1,000,000.00 and HOME
Investment Partnerships Program Grant Funds in the Amount of$1,056,000.00, Authorize
Execution of Related Contracts, Authorize Substantial Amendments to the City's 2011-12,
2013-14, 2014-15, 2015-16, 2016-17, and 2017-18 Action Plans, and Authorize Substitution of
Funding Years (COUNCIL DISTRICTS 3, 5, 8 and 9)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize substantial amendments to the City's 2011-12, 2013-14, 2014-15, 2015-16, 2016-17, and
2017-18 Action Plans;
2. Authorize the City Manager or his designee to substitute current and prior funding years in order to
meet commitment, disbursement and expenditure deadlines for use of grant funds from the United States
Department of Housing and Urban Development ;
3. Adopt the funding recommendations from the City's Community Development Council listed below;
4. Authorize the change in use and expenditure of$1,000,000.00 in prior years Community Development
Block Grant funds and $1,056,000.00 in prior and current years HOME Investment Partnerships Program
grant funds to the entities for the projects listed below;
5. Authorize the City Manager or his designee to execute contracts with the entities for the projects on
the terms and conditions listed below;
6. Authorize the City Manager or his designee to extend the contracts for two one-year extensions if such
extension is necessary to complete the projects; and
7. Authorize the City Manager or his designee to amend the contracts if necessary to achieve project
goals provided that the amendment is within the scope of the project and in compliance with City policies
and applicable laws and regulations governing the use of federal grant funds.
DISCUSSION:
On February 9, 2018, the Neighborhood Services Department issued a Notice of Funding Availability
(NOFA) and Request for Qualifications (RFQ)for available prior and current years Community
Development Block Grant(CDBG)funds and HOME Investment Partnerships Program (HOME)
grant funds from the United States Department of Housing and Urban Development(HUD) for eligible
projects throughout the City. The purpose of the NOFA and RFQ was to integrate the use of federal grant
funds with existing City priorities in order to maximize positive and visible outcomes for neighborhoods,
align planning for the use of federal grant funds with the City's corporate decision-making processes for
capital funding and identify and rank potential projects for both current and future years. A total of 29
proposals in response to the NOFA and RFQ were received from City departments, nonprofit agencies
and affordable housing developers.
http://apps.cfwnet.org/council_packet/mc review.asp?ID=25974&councildate=6/26/2018 8/24/2018
M&C Review Page 2 of 3
Staff reviewed all of the proposals and developed recommendations for allocations of the CDBG and
HOME funds and presented them to the Community Development Council (CDC) on May 16, 2018. The
CDC considered the recommendations and voted to recommend the ones listed below in Tables1 and
2. Staff presented the CDC's recommendations to the Housing and Neighborhood Services Committee
on June 5, 2018 and to the City Council at its Work Session on June 12, 2018. In addition, a notice of a
30-day public comment period was published in the Fort Worth Star-Telegram on May 25,
2018. Summaries of the CDC's recommendations for use of CDBG and HOME funds from the NOFA are
provided in Tables 1 and 2.
TABLE 1
CDBG Projects: Amount
Fort Worth Area Habitat for Humanity,Inc.d/b/a Trinity Habitat for Humanity"Preserve a Home" $400,000.00
Repair Program: Repair assistance for approximately 30 low and moderate income homeowners for $600,000.00
exterior home repairs such as siding, painting, roofs,doors,windows or other improvements,to
promote neighborhood revitalization in the Como, Ash Crescent, Hillside/Morningside and Carver
Heights East neighborhoods. (COUNCIL DISTRICTS 3,5,8 and 9)
CDBG Contract Terms:
1. One year contract term beginning on the date of execution; and
2. Extend or renew the contract for up to one additional year if the agency requests an extension and
such extension is necessary for the completion of the project.
Z Boaz South Park Improvements: Park and facility improvements including covered playground
accessible to children,guard rail to protect the park, adult work-out area,senior and handicap-friendly
walking and cycling trails, covered pavilion with benches, lighting and beautification with
landscaping. (COUNCIL DISTRICT 3)
TABLE 2
HOME Project: Amount
Mistletoe Station, LLC : Construction of the Mistletoe Station Apartments, a new 110-unit mixed $1,056,000.00
income multifamily rental housing development, including eight Permanent Supportive Housing units,
located at 1916 Mistletoe Boulevard, Fort Worth,TX 76104. Financing will be provided by award of
2017 9%tax credits,first lien construction/permanent loans, a loan from the Fort Worth Housing
Finance Corporation(FWHFC), and the City's HOME loan. The Southside/Medical District TIF will
provide$2.6M for infrastructure improvements to benefit both the project and the surrounding
neighborhoods and commercial properties. The City has also provided certain development fee
waivers. (COUNCIL DISTRICT 9)
HOME Contract and Loan Terms:
1. Designate HOME-assisted units according to HOME regulations with a 20 Year Affordability Period;
2. Secure payment of the HOME funds and performance of the HOME requirements by a Deed Trust;
3. Contract and loan term to commence on execution and run concurrently with the Affordability Period;
4. HOME loan subordinate only to first lien construction/permanent financing and FWHFC loan;
5. Interest rate of one percent or the Applicable Federal Rate,whichever is less;
6. Payments of principal and interest out of net cash flow to begin no later than 12 months after
conversion;
7. Construction completed within 3 years; and
8. Payment and performance bonds in full construction amount or acceptable payment and completion
guarantee.
The expenditure of HOME funds is conditioned upon the following:
1. Equity, construction and permanent financing acceptable to City;
2. Satisfactory completion of 24 CFR Part 58 environmental review;
3. Receipt of authorization to use grant funds from HUD;and
4. Closing on equity and all other financing for the development.
Staff recommends that contracts be executed with the parties for the for the projects in the amounts and
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M&C Review Page 3 of 3
on the terms listed in Tables 1 and 2. HUD regulations for the use of CDBG funds require that
Interdepartmental Letters of Agreement be executed for the use of these federal grant funds by City
departments.
Staff recommends the change in use and expenditure of$1,000,000.00 in prior years CDBG funds and
$1,056,000.00 in prior and current years HOME funds for the listed projects which will benefit moderate,
low and very low income City Citizens. All expenditures of CDBG and HOME funds are subject to
satisfactory completion of an Environmental Record Review per 24 CFR Part 58 and receipt of
authorization to use grant funds from HUD. Action Plan funding years selected may vary and be
substituted in order to expend the oldest grant funds first. A public comment period on the change in use
of these prior and current years CDBG and HOME funds was held from May 25, 2018.to June 25, 2018.
Any comments are maintained by the Neighborhood Services Department in accordance with federal
regulations.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the above recommendations, funds will be
available in the current operating budget, as appropriated, of the Grants Operating Federal Fund. The
Neighborhood Services Department is responsible verifying sufficiency of funding before disbursement.
This is a reimbursement grant.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfleld 2
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID I I ID I I Year Chartfield 2
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Aubrey Thagard (8187)
Additional Information Contact: Chad LaRoque (2661)
ATTACHMENTS
Habitat 1295.pdf
mistletoe station map-Corrected.pdf
MS 1295.pdf
ZboazParkSouth.pdf
httn•//anne rfixmat nro/rnnnril narlrat/mr raviaw aen7TTl=75Q 7dRrrnnnrilrlata=(i/7(i/7(11 R R/7d/7(11 R
a- 19 I Q.to
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
lofl
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2018-362378
Mistletoe Station,LLC
Forth Worth,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 06/01/2018
being filed.
City of Fort Worth Date Acknowledged:
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and p Ovide a
description of the services,goods,or other property to be provided under the contract.
Mistletoe Station 4
HOME Funds Contract
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
Saigebrook Mistletoe, LLC Weatherford,TX United States X
Stephens,Lisa Weatherford,TX United States X
Lasch,Megan Austin,TX United States X
5 Check only if there is NO Interested Party. ❑
6 UNSWORN DECLARATION
My name is Megan T.acrh and my date of birth is 7-20-83
My address is 5501-A Balcones#302 Austin TX 7R7-31 USA
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Travis County, State of Texas on the 1 day of Tune 20—iL.
1)14 [VA (month) (Year)
Signatre of aut ized agent of contracting business entity
(Dedarant)
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.5523