HomeMy WebLinkAboutContract 53649CITY SECRUARY
CONTRACT 0. "
OF TEXAS §
§
COUNTY OF TARRANT §
This contract ("Contract") is made and entered into by and between the City of Fort Worth
(hereafter "City") and Everly Plaza, 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
Everly, LLC, a Texas limited liability company, as Managing Member; and HPC-ILP, LLC a
Nevada limited liability company, as Investor Member;
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 88-unit
senior mixed -income multifamily rental complex in the City;
WHEREAS, to further the City's goal of ending chronic homelessness, the City Council
adopted a policy for the inclusion of Permanent Supportive Housing units as a condition for
obtaining a Resolution of Support from the City Council for applications to the Texas Department
of Housing and Community Affairs for 2019 Competitive (9%) Housing Tax Credits (M&C G-
19421 and M&C G-19435). The policy required that a minimum of 10% of the total project units
be market rate units and 5% of the total project units be permanent supportive housing units;
WHEREAS, based on Developer's representations that it would include 9 market rate units
and 8 permanent supportive housing units in the project, the City Council adopted a Resolution of
Support for Developer's tax credit application (Resolution No. 5056-02-2019).
WHEREAS, Developer has received an award of 2019 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 the Everly Plaza; and
HOME DEVELOPER RENTAL CONTRACT
Everly Plaza, LLC -- Everly Plaza CITY SEC `KARy
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
citizens.
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 7 Accessible Units. Of these 7 units, 5 must be
accessible to individuals with mobility impairments, and the other 2 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" inIDIS.
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.
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Business Diversity Enterprise Ordinance or BDE means the City's Business Diversity
Ordinance, Ordinance No. 20020-12-2011.
CIosing means the closing of the acquisition of the Property and construction financing by
Developer.
Complete Documentation means the following documentation as applicable:
1. Attachments I and II of Exhibit "F" — Reimbursement Forms, 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 December 31, 2021.
Conversion means the earlier of (i) the date the project's construction financing converts to
permanent financing and begins principal amortization, or (ii) October 1, 2022.
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 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
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beginning after project completion, as required by 24 CFR Part 92.525(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 "L" — 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 of this Contract.
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 aretloating.
This project contains 6 Home Units. Of these HOME Units, 4 are one -bedroom units and
2 are two -bedroom units.
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.
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.
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High HOME Unit means a unit that must be leased to a 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 4 High HOME Units. Of these High HOME Units, 3 are one -
bedroom units and 1 is a two -bedroom unit.
Housing Tax Credits means the federal housing tax credits allocated to Developer for the project
by TDHCA 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.
Investor Member means HPC-ILP, LLC a Nevada limited liability company.
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, including the Deed Restriction, all 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 as more particularly described in Section
7.5.4.
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.
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This project contains 2 Low HOME Units. Of these Low HOME Units, I is a one -
bedroom unit, and I is a two -bedroom unit.
Neighborhood Services Department or NSD means the City's Neighborhood Services
Department.
Permanent Supportive Housing or PSH means the combination of dedicated PSH Units and the
accompanying supportive services provided to the tenants of the PSH Units as further described in
Exhibit "O" — Requirements for Permanent Supportive Housing Units.
Permanent Supportive Housing Tenant or PSH 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 chronically homeless persons with disabilities and their dependents
to live independently as further described in Exhibit "O" — Requirements for Permanent
Supportive Housing Units. The PSH Units may also be HOME Units.
This project contains 8 PSH Units.
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.
Property Manager means the entity hired by Developer to manage the project as a senior mixed
income multifamily rental project including market rate units, Housing Tax Credit units, HOME
Units and PSH units.
Reimbursement Request means all reports and other documentation described in Section 10.
Required Improvements or the project means all the improvements for an 88-unit affordable
senior 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 Everly
Plaza. The current street address of the project is 1801 8th Ave., Fort Worth, TX 76110.
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 I unit) in a newly constructed multifamily project must be accessible
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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.
Senior Indebtedness means all present and future indebtedness, obligations, and liabilities of
Developer to Senior Lender under or in connection with the loan documents evidencing or securing
the first lien, HUD -insured 221 d4 loan to Developer by Senior Lender for the development of the
project, all as more particularly defined in the Subordination Agreement.
Senior Lender means Mason Joseph Company, Inc.
Stabilization means the earlier of (i) the date the project's senior loan converts to its permanent
phase and begins principal amortization, or (ii) October 1, 2022.
Subordination Agreement means the Subordination Agreement among Developer's construction
and permanent financing lender, Developer, and City outlining the relative priorities of the
construction and permanent loan, and the City's Loan for the project.
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 6tn year of the
Affordability Period. Documentation for tenant income eligibility verifications for other than the
initial lease and the 6t" 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 terminates in 3 years unless
earlier terminated as provided in this Contract
3.2 Extension of Contract,
This Contract 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 Contract term. The request
for extension shall include the reasons for the extension, and Developer's anticipated budget,
construction schedule and goals for the extended term. It is specifically understood that it is within
City's sole discretion whether to approve or deny Developer's request for an additional term. Any
such extension shall be in the form of an amendment to this Contract.
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3.3 JUm of Loan.
The term of the Loan shall commence on the date of the Promissory Note and terminates on
the earlier of (i) February 1, 2062 or (ii) the earlier payment in full of the Senior Indebtedness
defined in the Subordination Agreement.
4. DUTIES AND RESPONSIBILITIES OF CITY.
4.1 Requirements Prior to Commitment of HOME Funds.
4.1.1 Project Assessment.
Prior to commitment of the HOME Funds to the specific local project
described herein, City has (i) identified the address of the project; (ii) assessed
the current market demand in the neighborhood where the project will be
located; (iii) completed an environmental review in accordance with 24 CFR
Part 58; (iv) reviewed all necessary commitments of financing, secured or
otherwise including grants; (v) established a complete budget for the project
in sufficient detail to determine total project development costs and its
funding, including proposed sources and uses; (vi) determined that project
costs are reasonable; (vii) completed underwriting and subsidy layering
requirements and determined that HOME funds are needed to fill a funding
gap; (viii) assessed the feasibility of project construction commencing within
12 months of the commitment date; and (ix) established a completion schedule
with deadlines that meet all HOME requirements.
4.1.2 Developer Assessment.
Prior to commitment of the HOME Funds to the specific local project described
herein, City has determined that (i) Developer has the financial capacity and
experience to undertake the specific local project; and (ii) Developer meets
the requirements to own, develop, or sponsor the housing set out in 24 CFR
Part 92300(a).
4.2 Provide HOME Funds.
City shall provide up to $1,000,000.00 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.
4.3 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 Secure Firm Written Financial Commitments.
Developer must obtain and furnish City with one or more firm written financial
commitments from non -speculative identified sources in a total amount necessary to complete the
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project. All award or commitment letters received from fenders must be dated prior to the date of
the Contract.
5.1.1 City will assess the firm written financial commitments prior to the
execution of this Contract to ensure that they are in fact, firm commitments
and that (i) the terms and amounts are consistent with the City's financial
underwriting of the project; (ii) alI sources are compatible with HOME
requirements; and (iii) all funds can reasonably be expected to close prior to
the disbursement of the HOME Funds.
5.2 Con fr etion of Required Improvements.
Developer shall complete the construction of the Required Improvements as described in
Exhibit "A" -- Project Summary in accordance with the flans, the schedule set forth in Exhibit
"C" - Construction and Reimbursement Schedule, and the terms and conditions of this Contract.
5.2.1 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 and approve written cost estimates for the construction of the Required
Improvements to determine that such costs are reasonable prior to
commencement of construction. In the event City in its reasonable discretion
determines that such costs are unreasonable, Developer shall revise said costs
estimates to City's satisfaction.
5.3 Use of HOME Funds.
5.3.1 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:
5.3.1.1 Costs are eligible expenditures in accordance with the
HOME Regulations.
5.3.1.2 Costs comply with this Contract and are reasonable and
consistent with industry norms.
5.3.1.3 Complete Documentation, as applicable, is submitted by
Developer.
5.3.2 ud et.
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
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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.
5.3.3 Change in Budget.
5.3.3.1 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.
5.3.3.2 Developer agrees to utilize the HOME Funds to
supplement rather than supplant funds otherwise available
for the project.
5.4 Payment of HOME Funds to Developer.
HOME Funds will be disbursed to Developer upon City's approval of Developer's
Reimbursement Requests, 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
$50,000.00 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.
5.5 Identify Project Paxd_wiIOME 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.
5.6 Acknowledgement of City PUment 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.
5.7. 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 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. In accordance with the HOME
Regulations and HUD requirements, the City's interest in preserving the affordability of the
HOME Units and maintaining the Affordability Requirements will be secured by the Deed
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Restriction in addition to the Deed of Trust. The City's interest in preserving the affordability of
the project will be secured by the Declaration of Land Use Restrictive Covenants ("LURA")
established and enforced by TDHCA for the Housing Tax Credits. The TDHCA's LURA shall
restrict the project and Property to certain occupancy and rent requirements for a period of 35
years.
5.7.1 Loan Terms and Conditions.
Developer will be required to:
5.7.1.1 Execute and deliver the Deed Restriction, the Promissory
Note and Deed of Trust along with any other Loan
Documents required by City.
5.7.1.2 Provide City with a Mortgagee's Policy of title insurance in
the amount of the Loan.
5.7.1.3 Pay all costs associated with Closing the Loan.
5.7.1.4 Provide City with an estimated settlement statement from the
title company at least 3 business days before Closing.
5.7.1.5 Ensure City's lien is subordinate only to the Senior
Indebtedness described in the Subordination Agreement. City
must approve in writing any secured financing for the project
that is to be subordinate to the Loan.
5.7.1.6 The term of the Loan shall be as specified in Section 3.3.
5.7.1.7 Interest on the Loan during construction shall be 1%.
Beginning February 1, 2022, interest shall accrue at the lesser
of 1 % per annum or the Long Term Applicable Federal Rate
in effect on the date of the Promissory Note. Accrued interest
on the Loan shall be payable in annual installments beginning
March 1, 2022 and continuing annually until the Maturity
Date in the Promissory Note. Interest is payable only from
75% of Surplus Cash or Non -Project Sources as more
particularly described and defined in the Subordination
Agreement. Interest to the extent not paid from Surplus Cash
shall be deferred and shall be paid out of Developer's Surplus
Cash in subsequent years. Principal and accrued unpaid
interest shall be payable in full on the earlier of (i) February
1, 2062 or (ii) the earlier payment in full of the Senior
Indebtedness. The Promissory Note shall include certain
provisions (the "HUD Provisions") so long as HUD is the
insurer or holder of the Senior Note as more particularly
described and defined in the Subordination Agreement,
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5.7.1.8 The Deed Restriction shall remain in effect for the entire
Affordability Period to secure Developer's performance of
the Affordability Requirements and all provisions of this
Contract pertaining to the HOME Program regardless of early
payment of the Loan. The Deed Restriction shall include
certain provisions (the "HUD Rider") evidencing its
subordination to the Senior Security Instrument as more
particularly described and defined in the Subordination
Agreement.
5.7.1.9 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 performance by Developer of its obligations under this
Contract during the Affordability Period.
5.7.1.10 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.
5.7.1.11 Failure by Developer to comply with this Section 5.7.1
will be an event of default under this Contract and the
Loan Documents.
5.8 Maintain riff rdabili Re uirements.
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) 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 a market rate tenant
qualifies as a HOME Eligible Household or fill an empty market rate unit 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 City 10% of the Loan amount as liquidated damages.
The Parties agree that City's actual damages in the 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
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Section of 10% of the Loan amount by Developer to City is liquidated damages and not a
penalty.
5.9 Reserved.
5.10 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. Subject to the terms and conditions of the Subordination
Agreement, 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.
6.1 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.
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
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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 Annlicable 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 Iaws, 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 13 of the International Building Code;
(iv) if new construction, must conform to the locally adopted International Energy Conservation
Code; 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 properly 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 3 5, 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 Annroval of Plans and Specifications by City Not Releas_e_ofResnonsibility.
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 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
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that 2 CFR Part 200 forbids Developer from hiring or continuing to employ any contractor,
subcontractor or vendor that is listed as debarred 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. Developer acknowledges that the provisions of this Section pertaining
to the SAM shall survive the termination of this Contract and be applicable for the length of
the Affordability Period.
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 REOUIRMENTS: PROPERTY STANDARDSDURING
RJI ING
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.
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
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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 Iease 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 farm 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
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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.
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.
7.6 Tenant Selection Policy; Accessible Unit Marketing.
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 The tenant selection policy must address non-discrimination and affirmative
marketing as discussed in Section 7.7.
7.6.4 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.
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7.6.5 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.
7.6.6 Developer must market Accessible Units in the following order:
7.6.6.1 Within the project to persons requiring an accessible unit.
7.6.6.2 To persons on the waiting list requiring an accessible unit.
7.6.6.3 To the general community for persons requiring accessible
units.
7.6.6.4 To persons that do not require an accessible unit.
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 persons 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 Durin __ Initial Lease-UA of HOME Units; Annual
Inspections of HOMIE 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.
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7.9 Project Maintenance and Inspletions 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.
7.10 Violence Against Women Act Reguirements.
7.10.1 As Applicable, Developer shall comply with the Violence Against Women
Act ("VAWA") and shall ensure that its property manager shall, at the time
of application for a unit in the project, provide all potential tenants receiving
rental assistance with a Notice of Occupancy Rights under the Violence
Against Women Act in substantially the same form as the form attached and
incorporated as Exhibit "M" — VAWA Forms in compliance with VAWA
and 24 CFR Part
92.359 of the HOME Regulations.
7.10.2 Developer agrees that no applicant for a unit in the project may be denied
on the basis or as a direct result of the fact that they are or have been a victim
of domestic violence, dating violence, sexual assault, or stalking, as long as
they would otherwise qualify for the unit.
7.10.3 Developer shall be responsible for reviewing VAWA and any applicable
regulations and shall respond to all emergency transfer requests in
accordance with the requirements of those provisions. Developer may
request that all tenants requesting an emergency transfer under VAWA fill
out the form attached and incorporated in Exhibit "M" — VAWA Forms
or its own form that is substantially the same.
7.11 PSH Program, Units and Tenants.
Developer acknowledges that it obtained an allocation of HOME funds from the City
Council by committing to provide 8 PSH Units in the project. Developer is responsible for
coordinating with providers of project -based vouchers, tenant -based rental assistance or other rental
assistance to subsidize the rents for the PSH Units. The supportive services for the PSH Tenants
will be provided as part of the rental assistance. In no event will Developer be responsible for
providing the supportive services for the PSH Tenants. The PSH Program for the project will be
managed in accordance with the requirements of Exhibit "O" --- Requirements for Permanent
Supportive Housing Units.
7.11.1 Developer agrees to furnish City with final, executed copies of contracts, if
any, it has with agencies or third parties for vouchers or other forms of rental
assistance for the PSH Tenants.
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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.
HOME Funds will not be paid and costs cannot be incurred until City has conducted 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 Iiquidated 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
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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 DeveIoper'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 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.
83.5 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 withavis-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 Princioles/Cost Reasonableness.
The eligibility of costs incurred for performance rendered shall be determined in accordance
with 2 CFR Part 200.402 through 2 CFR Part 200.405, as applicable, regarding cost reasonableness
and allocation.
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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 Uni orm 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
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 follow the 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, IocaI
and tribal laws regarding privacy and obligations of confidentiality.
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8.12 Copyright and Patent Rim
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,
subcontractors and vendors on a regular basis for compliance with the Affordability Requirements,
the HOME Regulations and Contract provisions. Developer is responsible for curing 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.,000,000.00, which is the total amount of the Loan. At City's discretion,
other forms of assurance may be acceptable so long as they meet the requirements of the HOME
Regulations.
8.15 Compliance with HOME Requirements by Property Manager.
Developer will ensure that the property manager complies with the HOME Requirements,
including, but not limited to, adding a provision in its property management agreement that the
property manager will follow the HOME Requirements outlined in Exhibit "N" — HOME
Requirements and attaching it as an exhibit to its property management agreement.
9. RECORD KEEPING, REPORTING AND DOCUMENTATION REQUIREMENTS,
RIGHT TO AUDIT.
9.1 Record Keeuin
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,
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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
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 Chan in Rep ortin Re uirements and Form
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
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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).
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:
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 Reauests.
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, DeveIoper'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 OF THE COMPLETION
DEADLINE.
10.3.3 Final Pam.
Developer shall not be reimbursed for Final Payment until it submits Exhibit
"G" --HOME Project Compliance Report: Rental Housing to City.
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10.4 Withholdin2 Pa me
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 Reauir mprovements
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 6.1.2
(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.
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 34 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
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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 1n 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.
11.3 Failure to Submit Reauired 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
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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.
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
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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 ftmds 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'ssatisfaction.
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 C* Not Affecte .
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.
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
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rescinded and Developer shall have no filrther 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. Thisprovision 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 HOME
Loan.
11.11 Termination for Convenience.
In terminating in accordance with 2 CFR 200, Appendix II, 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 beterminated. 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 C� ract.
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.
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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.
11.14 Notice of Termination under Subordination Agreement,
City shall not terminate this Contract without first giving notice and opportunity to cure,
which will be incorporated as a requirement in the Subordination Agreement.
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 Iiquidated 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 transfers otherwise consented to by City, and except as permitted in
accordance with Developer's Amended and Restated Operating Agreement (the
"Operating Agreement") as may be amended and restated from time to time to
admit Investor or other Members, 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 Operating Agreement to effectuate such
transfers shall not require City consent.
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14. GENERAL PROVISIONS.
14.1 Develo er 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,
Iicensees 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 Pro en rtv.
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. 1f 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 Agreemel1 j.
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.
149 Paragraph Headings for Reference Only. No Lal 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 Compliangi 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, defined above as "Act"
➢ 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 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.
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➢ 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
➢ 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 proj ects
➢ 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) ofPub.L. 110-252 and Section 3 ofPub.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
➢ Violence Against Women Act of 1994, 42 U.S.C. 13981.
14.11 Section 3 Requirements for HUD -Assisted Projects; Employment and Other
Economic Opportunities.
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.
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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
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 CIause"):
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 the Housing and Urban Development Act of 1968, as amended, 12
U.S.C. 1701 u (Section 3). The purpose of Section 3 is to ensure that employment and other
economic opportunities generated by HUD assistance or HUD -assisted projects
covered by Section 3, shall, to the greatest extentfeasible, 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 the contractor has a collective bargaining agreement or
other understanding, if any, a notice advising the labor organization or workers'
representative 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 apprenticeship 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 to include this Section 3 clause in every subcontract
subject to compliance with regulations 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 a finding that the subcontractor is in violation of the
regulations in 24 CFR Part 135. The contractor will not subcontract with any
subcontractor where the contractor has notice or knowledge that the subcontractor
has been found in violation of the regulations in 24 CFR part 135.
K The contractor will certify that any vacant employment positions, including
training positions, that are filled: (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.
F. Noncompliance with HUD's regulations 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 workperformed in connection with Section 3 covered Indian
housing assistance, section 7(b) of the Indian Self -Determination and Education
Assistance Act (25 US C. 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 7(b) 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 Cooperating with and supporting City Section 3 promotional
efforts, including Job Fairs, neighborhood outreach
communications activities, referral of contractor and
subcontractor employees to job training opportunities as
advised by City, provision of the attached Section 3 Business
Certification to all subcontractors that may be eligible for
Section 3 Business designation, referral of applicable
subcontractors to HUD Section 3 registration, and related
City promotional efforts to enhance Section 3 employment.
14.11.2.2 Implementing procedures, and cooperating with City in its
efforts, to notify Section 3 residents and business concerns
about training, employment, and contracting opportunities
generated by Section 3 covered assistance;
14.11.2.3 Notifying potential contractors working on Section 3 covered
projects of their responsibilities;
14.11.2.4 Facilitating the training and employment of Section 3
residents and the award of contracts to Section 3 business
concerns, and cooperating with City in activities to promote
such training and award of contracts;
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14,11.2.5 Assisting and actively cooperating with the Neighborhood
Services Department in ensuring compliance by contractors
and subcontractors;
14.11.2.6 Refraining from entering into contracts with contractors that
are in violation of Section 3 regulations;
14.11.2.7 Documenting actions taken to comply with Section 3; and
14.11.2.8 Submitting Section 3 Annual Summary Reports (Form HUD-
60002) in accordance with 24 CFR Part 135.90.
14.11.3 Section 3 Re ortin Requirements_.
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 on a quarterly basis, all employment
opportunities created by the project, and all applicants for
employment by contractor and each subcontractor 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 City all contracts awarded by contractor and
subcontractor 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.
14.11.3.4 Cooperating with City in all Section 3 reporting activities,
including use of designated software, communication to the
City of identity and contact information for all project
subcontractors, communication with subcontractors to ensure
reporting compliance, and related activities to ensure
compliance with HUD Section 3 reporting requirements.
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14.11.3.5 Report to the City on a quarterly basis all subcontractors for
the project that have identified as Section 3 businesses by
using the attached Section 3 Business Certification form.
14.12 Prohibition Against Discrimination.
14.12.1. General Statgment.
Developer, in the execution, performance or attempted performance of this
Contract, shall comply with all non-discrimination requirements of 24 CFR
92.3 50 and the ordinances codified at Chapter 17, Article 111, 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 Dis riminatiQn in Emplovment Burin 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:
[Contractor's Subcontractor's or Vendor's Name1 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,
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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 Namagrees 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 Namel 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 requirement.
14.12.3 Dever er'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 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 -
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REFERENCED LAWS CONCERNING DISABILITY
DISCRIMINATION IN THE PERFORMANCE OF THIS CONTRACT.
14.13 Conflict of Interest and Violations of Criminal Law.
14.13.1 Deer 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
ofsuch.
14.13.2 General ProhibitW11 Againat Cqnflicts 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 I 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 Violatw"
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 Contract.
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14.14 Labor Standards.
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.
14.14.3If 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.
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14.15 Subcontracting with Small and Minority Firms, VY_omen'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 of $50,000.00 or larger, and will further
require all persons or entities with which it so contracts to comply with said
ordinance.
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 Law
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. Rieht to Insoect 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.
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14.19 Forge MaieuLe
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.
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 KIND 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 KINDS 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
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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
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 $1,000,000.00, which is the total amount of the 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
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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
$2,000,000 aggregate limit
Business Automobile Liability Insurance
$1,000,000 each accident on a combined single -limit basis, or
$ 250,000 Property Damage
$ 500,000 Bodily Injury per person per occurrence
$2,000,000 Aggregate
Insurance policy shall be endorsed to cover "Any Auto" defined as autos owned, hired and
non -owned. Pending availability of the above coverage and at the discretion of City, the policy
shall be the primary responding insurance policy versus a personal auto insurance policy if or
when in the course of Developer's business as contracted herein.
Workers' Compensation Insurance
Part A: Statutory Limits
Part B: Employer's Liability
$100,000 each accident
$100,000 disease -each employee
$500,000 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.
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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 obliges 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.
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 eertificate(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 require its builder to maintain builders risk insurance at the value of the
construction.
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18. CERTIFICATION REGARDINGREGARMNG 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 ofDeveloper,
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 135.2. 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.
Developer shall require that the language of this certification be included in all subcontracts
or agreements involving the expenditure of federal funds.
19. RELIGIOU 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 Seliaration of Explicitiv Religious Activi i
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 Ex 1,Ia icitly Religious Acti�i ies.
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 HOME -funded units.
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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.
Cites:
City Attorney's Office
200 Texas Street
Fort Worth, TX 76102
Attention: Jo Pate
Telephone: 817-3 92-625 9
Copies to:
Neighborhood Services Department
200 Texas Street
Fort Worth, TX 76102
Attention: Assistant Director
Telephone: 817-3 92-7540
Neighborhood Services Department
200 Texas Street
Fort Worth, TX 76102
Attention: Neighborhood Development Coordinator
Telephone: 817-392-863 8
Developer•
Everly Plaza, LLC
5501 A Balcones Drive, 4302
Austin, TX 78731
Telephone: (352) 213-8700
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Copies to:
Saigebrook Everly, LLC
220 Adams Dr., Ste. 280, 4138
Weatherford, Texas 76086
Attention: Lisa Stephens, President
Telephone: (352) 213-8700
Shutts & Bowen
Attn: Robert Cheng
200 S. Biscayne Blvd, Ste. 4100
Miami, FL 33131
Investor:
HPC-ILP, LLC
15910 Ventura Blvd., Suite 1100
Encino CA 91436
Attention: Billy Teschke
With copy to:
Hunt Capital Partners, LLC
15910 Ventura Boulevard, Suite 1100
Encino, California 91436
Attention: Dana Mayo, Executive Managing Director
Telephone: (818) 380-6100
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. 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 Contract. 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 I-9 forms and supporting eligibility
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documentation for each employee who performs work under this Contract. 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 Contract.
Developer shall indemnify City from any penalties or liabilities due to violations ofthis provision.
City shall have the right to immediately terminate this Contract for violations of this provision by
Developer.
25. BOYCOTTING ISRAEL PROHIBITED.
If Developer is a company with ten (10) or more full-time employees and if this Contract is
for $100,000.00 or more, 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 good
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. If applicable under this Contract and Developer is
considered a "company,"by, signing this Contract, Developer cert�fles 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.
26. 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.
[Signature Pages to Follow]
HOME DEVELOPER RENTAL CONTRACT REV. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 51
WHEREOF, the Parties have executed 3 duplicate originals of this
IN WITNESS WHE p
ct to be effective as of the Effective Date.
T. T: CITY OF FORT WORTH
�. - By: Ls
. ity Secretary Fernando Costa, Assistant City Manager
Date:
M&C 19-0016 Dated August 6, 2019
M&C 20-0011 Dated January 14, 2020
Form 1295: 2019-561558
APPR VEDAS TO
' S'TO FO AND LEGALITY:
Vicki Ganske, Senior Assistant CityAttorney
EVERLY PLAZA, LLC
a Texas limited liability company
By: Saigebrook Everly, LLC,
a Texas limited liability company,
its Managing Member
By:
Lisa Stertphens, P esident
Date: A - a 3- 21;12
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
For the monitoring and administration of this contract, including
Ensuring all performance 94 reporting requirements.
Chad LaRoque, Housing Development and Grants Manager
HOME DEVELOPER RENTAL CONTRACT
Everly Plaza, LLC — Everly Plaza
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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"
— Deed Restriction.
Exhibit "M"
- VAWA Forms
Exhibit "N"
— HOME Requirements
Exhibit "O"
— Requirements for Permanent Supportive Housing Units
I-IOME DEVELOPER RENTAL CONTRACT REV. 04/28/2020
Everly PIaza. LLC — Everly Plaza Page 53
EXHIBIT "A"
PROJECT SUMMARY
EVERLY PLAZA, 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 Everly Plaza, an affordable
housing development for seniors age 62 years and older on approximately 1.36 acres. The project
will have a total of 88 units in 1 residential building which will consist of 64 one -bedroom units
and 24 two -bedroom units. There will also be a community room, fitness center, media room and
cyber lounge.
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 7 Accessible Units in accordance with Section 504 requirements and the terms
of the Contract, 5 for mobility impairments and 2 for visual or hearing impairments.
Accessible Units shall be marketed in accordance with Section. 7.7 of the Contract.
• Designate 6 floating HOME Units in the project, 4 as High HOME Units and 2 as 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.
• Set aside 8 floating PSH Units in the project in accordance with Exhibit "O" —
Requirements for Permanent Supportive Housing Units. The PSH units may also be
counted as HOME units.
• 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 $50,000.00 OF THE HOME FUNDS UNTIL CITY VERIFIES THAT AT
LEAST 1 HOME UNIT IS LEASED TO A HOME ELIGIBLE HOUSEHOLD.
• If the 6 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 any annual reports that are submitted to TDHCA to
City throughout the Affordability Period.
SPECIFIC PURPOSE:
The specific purpose of this project is to increase the availability of both PSH Units for homeless
persons with disabilities and quality, accessible, affordable housing for low and moderate income
City residents in central Fort Worth.
PROJECT OBJECTIVES:
The project will provide 79 housing units affordable to households earning at or below 60% of
AMI, of which 6 will be designated as HOME Units and 8 set aside as PSH Units.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2.020
Everly Plaza, LLC - Everly Plaza Page 1
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EXHIBIT "A--2"
ENVIRONMENTAL MITIGATION ACTION
EVERLY PLAZA, 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:
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.
Law, Authority, or Factor
Mitigation. Measure,
Histol is Preservation
The City 111U3 t be 113forn-ed innnediatel.y upon any
inadvertent discollefies ofarchaeoloF--Acal significance
I.
aifit`acts, blulals, etc_) made dining the construction
process so that e may notify Coushatta �� Tribe of
Louisiana and the Delaware Nation -
Noise Abatement & Control
Before, construction cmi be9m, the dev. eloper must
supply the City with a lener from the architect cr a
qualified acoustical engineer certifying that the.
constl-action Materials that wifl be used are sufficient to
xeduce the interior noise level to below 45 db, HU 's
ulterior noise standard.
Waste eater a` Sanitary Sewers
The developer must supply seiner load mi g ealculat ons
to the City of Fort North Water Department, in. Order
for the City to determine w1ether or not the existing
in&astructure has adequate c.apac:ity to support the
proposed Froject_ If an U' lipaet .is noted, it must be
addressed With a new waste water infrasta-L.iehwre plan.
that is approved by the City of Fort Worth pilot to
construction of Everly Plaza_
HOME DEVELOPER RENTAL CONTRACT - EXHIBITS Rev. 04/2. 8/2020
Everly Plaza, LLC -- Everly Plaza Page 3
Law, Authwity, or Factor
Mitigation M asiue
Water Supply
Tlie developer must .supply water amid calculatimns
to the City of Fort Worth eater De arfii ent, In. order
for the City to deter nime -whether or not the existing
infrastnicture has adequate capacity to support the
proposed P160jeet.- If ail impact is noted, it must be
aCl i-essed with a new eater infra. tmettre. plan that is.
approved by the City of Fort Wcgih prior to constmetion.
of Everly Pla ca_
Vegetation, Wildlife
During colistnictio n, all active oasts shoitld be avoided,
and if foinid, a biologist with the USFWS must be
n ifiecl_ Vo trees car hushes that lime active nests h1
them may be cut down. without filst consulting with the
USFWS,, who will their deternmi.e if an onsite
assessment f om a qualified biologist is necessary_
olid Waste Disposal I Recycling
Solid waste and recycling providers- must be selected
and ill place before construction can begin.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 4
EXHIBIT "B"
BUDGET
EVERLY PLAZA, LLC
SOURCES AND USES
Source #
Funding Description
Priority of
Construction Loan
Permanent Loan
Financing Participants
Lien
Stage Amount
Stage Amount
I
Construction Loan
Mason Joseph Company,
2
HUD 221(d)(4) Loan
1st
4,550,000
4,550,000
Inc.
Housing Tax Credit
3
Syndication Proceeds
12,986,263
Hunt Capital Partners, LLC
4
HOME Loan
2nd
1,000,000
1,000,000
City of Fort Worth
5
Bridge Loan
6
Tax Exempt Bonds
Other Federal Loan or
7
Grant
8
Other State Loan or Grant
9
NEZ Incentive Fee Waivers
City of Fort Worth
10
Private Loan
11
Cash Equity
In -Kind Equity/Deferred
12
Developer Fee
556,927
Sai ebrook Everly, LLC
13
Operating Reserves
TOTAL
— - --
SOURCES
OF
- ■
FUNDS
19,093,190
TOTAL
USES OF
I
FUNDS
19,093,190
HOME Funds Budget
Land Acquisition and/or Pre -Development Soft Costs
$900,000*
Construction Hard Costs
$50,000*
Holdback'
$505000*
TOTAL
$1,000,000
*Developer will only be reimbursed for eligible expenses. The amounts are estimates and are subject to change.
** City will hold back $50,000.00 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 Rev. 04/28/2020
Everly Plaza, LLC --- Everly Plaza Page 5
EXHIBIT "C"
CONSTRUCTION AND REIMBURSEMENT SCHEDULE
EVERLY PLAZA, LLC
Activi
HOME Funds
Land Acquisition
PHASE I ACTIVITIES:
$900,000.00*
Predevelopment Soft Costs
PHASE I
COMPLETE by:
First Payment**
$900,000.00
May 8 2020
PHASE II ACTIVIITES:
Construction Hard Costs
$25,000.00*
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
December 31, 2020
(www.sam.gov).
Second Payment** (approx. 25% complete)***
PHASE III ACTIVIITES:
Construction Hard Costs
$25,000.00*
Prior to Reimbursement in Phase III, Developer must
PHASE HI
submit the contractor/subcontractor/vendor searches
COMPLETED by:
under the Federal System for Award Management
May 31, 2021
(www.sam.gov).
Third Payment** (approx. 75% complete)-**
PHASE IV ACTIVITIES:
Initial Lease -up of HOME Units
$50,000.00*
PHASE IV
Prior to Reimbursement in Phase IV, the following items
COMPLETED
must be submitted:
by: December 31, 2021
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 Payment** (Lease -Up of HOME Unit)***
TOTAL
$15000,000.00
*Developer will only be reimbursed for eligible expenses. The amounts 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
Reimbursement Requests and Complete Documentation along with any required reports shall be an
event of default.
***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 Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza - Page 6
EXHIBIT "D"
AUDIT REQUIREMENTS
EVERLY PLAZA, LLC
NOT APPLICABLE
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 7
EXHIBIT "E"
LOAN DOCUMENTS
EVERLY PLAZA, LLC
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 8
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: April 29, 2020
Grantor: Everly Plaza, LLC, a Texas Iimited liability company
Grantor's Mailing Address:
Everly Plaza, LLC
5501 A Balcones Drive, #302
Austin TX 78731
With a copy to:
Shackelford, Bovrren, McKinley & Norton; LLP
9201 N. Central Expressway, 0' Floor
Dallas,'Texas 75231
Attention. Michelle Siiedden
Trustee: Jo Aini Fate or Leanii D. Guzm n
Trustee's Mailing Address:
The City Attorney's Office
The City of Fort Worth
200 Texas St.
Fort Worth, TX 76102
Tarrant Comity
Lender: City of Fort W oxth, a Texas municipal corporation
Lender's Mailing Address:
City of Fort Worth
Neighborhood Services Department
Attn: Assistant Director
200 Texas Street
Fort Worth, Texas 76102
Tarrant County
DEED OF TRUST —$1M HOME FUNDS Page 1
Everly Plaza, LLC Rev. 04-22-20
Loans Authority:
The loan evidenced by the Note (the "Loan") and secured by this Deed of Trust
Security Agreement — Financing Statement (the "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, as amended, 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 Regulations")
with HOME funds for the development of Everly Plaza, a mixed income senior
multifamily complex located in Fort Worth, Texas (the "project"), all as more
particularly described in a HOME Contract, City Secretary Contract No. 53649
between Grantor and Lender for the Loan (the "HOME Contract").
Obligations
Note
Date: April 29, 2020
Original Principal Amount: S1,000,000.00
Borrower: Everly Plaza, LLC
Lender: City of Fort Worth
Maturity Date: -rhe earlier of i) February 1, 2062, or (ii) the earlier
payment in full of the Senior Indebtedness (defined
below)
Terms of Payment: As provided in the Note
In addition, Obligatium, shall include compliance by Grantor with the requirements of
the HOME Program for the 20 year Affordability Period more particularly described
in Section F. below.
Property (including any imp rovements)-
1,ots 1, 2, 3, 4, 5, 6, 7, 8, 9, .I 0. 11, 12, 13, 14, 27, 28 and 29, Block 11, FAIRMOUNT
ADDITION to the City of I ort Worth, Tarrant County, Texas, according to plat
recorded in Volume 63, Page 25, Deed Records of Tarrant County, Texas, and being
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;
All accounts, contract rights, instruments, documents, general
intangibles, and chattel paper arising from or by virtue of any transactions
DEED OF TRUST — $1 M HOME FUNDS Page 2
Everly Plaza, LLC Rev. 04-22-20
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, dated April 29, 2020 (the "Operating Agreement");
All permits, licenses, franchises, certificates, and other rights
and privileges obtained in connection with the Property;
All proceeds payable or to be payable under each policy of
insurance relating to the Property; and
All products and proceeds of the foregoing.
Notwithstanding any other provision in this Deed of Trust, the term "Property" does
not include personal effects used primarily for personal, family, or household purposes.
In addition to creating a deed -of -trust lien on Proper y described above, Grantor also
grants to Lender a security interest in all of the above -described personal property
pursuant to and to the extent permitted by Lite Texas Uniform Commercial Code.
Prior Liens:
The lien created by this Deed of Trust is and shall be subject and subordinate in all respects
to the liens, terms, covenants and conditions of (i) the Multifamily Deed of Trust,
Assignment of Leases and Rents and. Security Agreement (Texas) securing that certain
Note (Multistate) dated April 29, 2020 i i the original principal amount of $4,550,000.00
made by Grantor and payable Io Mason Joseph Company, Inc. ("Senior Lender")
evidencing the indebtedness arising from the Irian by Senior Lender to Grantor ( the
"Senior Indebtedness"), to the extent and in the manner provided in that certain
Subordination Agreement among Senior Lender, Lender, and Grantor (the
"Subordination Agreement"). This Deed of Trust is and shall be subject and subordinate
in all respects to the liens, trams, covenants and conditions of the loan documents
evidencing the Senior Indebtedness ("Senior Loan. Documents") as more fully set forth
in the Subordination Agreement. The rights and remedies of Lender and each subsequent
assignee of the lied under this Deed of 'Trust are subject to the restrictions and limitations
sul forth in the Subordination Agreement and to waiver, notice, grace and cure period, if
any, provided in the Senior Loan Documents. If default occurs in payment of any part
of principal or interest of the Senior Indebtedness or in observance of any covenants
contained in the Senior 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 Agreement.
Other Exceptions to Conveyance and Warranty:
The Permitted Exceptions set forth on Exhibit "B" attached hereto and incorporated
herein for all purposes.
For value received and to secure performance of the Obligations, Grantor conveys the
Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property,
subject to the Other Exceptions to Conveyance and Warranty. On performance of the
Obligations, including payment of the Loan and all other amounts secured by this Deed of
DEED OF TRUST -- $1M HOME FUNDS Page 3
Everly Plaza, LLC Rev. 04-22-20
Trust and performance of the requirements of the HOME Program, this Deed of Trust will
have no further effect, and Lender will release it at Grantor's expense.
CIauses and Covenants
A. Grantor's Obligations
Grantor agrees to-
1. defend title to the Property subject to the Other Exceptions to Conveyance and
Warranty and preserve the lien's priority as it is established M this Deed of Trust;
2. obey all laws, ordinances, and restrictive covenatits applicable to the Property;
3. if the lien of this Deed of Trust is riot a first lien, pay or cause to be paid all
prior lien notes pursuant to their respective tees and abide by or carve to be abided by all
prior lien instruments; and
4. notify Lender of any change of address.
Grantor agrees not to-
1. do or intentionally or knoiATingly permit anything to be done that will impair the
security of this Deed of Trust.
B. Lender's Rights
l , Lender or Lender's mortgage servi cer 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 suh5-ogated to all the rights and liens of the holders of any debt so paid, subject to the
Subordination Agreement.
3. Notwiilis tanding the terms of the Note to the contrary, and unless applicable
law prohibits, all payments rep-eived 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 perform any of Grantor's obligations 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, plus interest on those amounts from the dates of payment at the rate
DEED OF TRUST — $IM HOME FUNDS Page 4
Everly Plaza, LLC Rev. 04-22-20
stated in the Note for matured, unpaid amounts. The amount to be 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 of Trust and the default continues after any required
notice of the default and the time allowed to cure, Lender may -
a, declare any unpaid principal balance and earned interest on the
Obligations immediately due;
b. direct Trustee to foreclose this lien, in which case Lender or Lender's
agent will cause notice of the foreclosure sale to be given as provided
by the Texas Property Code as then in effect; and
G. purchase the Property at any foreclosure &-fle by offering the highest bid
and then have the bid credited on the Obli rations.
Notwithstanding anything to the contrary, if a monetary event of de f-biult occurs under the
terms of any of the Loan documents, prior to exercising any remedies Lender shall give Grantor
and each of Grantor's Members, as identified in the Operating Agreement, simultaneous written
notice of such default. Grantor, and its Members on beMlf of Grantor, shall have a period of 15
days after such notice is given within whiub to cure the default prior to exercise of remedies by
Lender under the Loan documents. Not-vvithstanding anything to the contrary, if a non -monetary
event of default occurs under the terms of any ofthe Loan documents, prior to exercising any
remedies, Lender shall give Grantor and Grantor's Members, as identified in the Operating
Agreement, simultaneous vnitten notice of such default. If the default is reasonably capable of
being cured within 30 days, Grantor and each of Members on behalf of Grantor shall have such
period to effect a cure p6or to exercise of remedi e;, by Lender under the Loan documents. If the
default is such that it is not ivasonably capable of being cured within 30 days, and if Grantor or
Grantor's Wiiibcrs (a) initiates corrective action within said period, and (b) diligently,
continual Iy, and in good faith works to effect -a cum as soon as possible, then Grantor or Grantor's
Members on behalf ofClrantor shall Have such additional time as is reasonably necessary to cure
the defaulk prior to exercise of any n~medies 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 cw-e a default or the default is not cured within 180 days after the first notice of
default is given. II' the default is not cured after notice within the time periods stated above,
Grantor and each sLIFOty, 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.
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 obligations, covenants, or agreements
under the HOME Contract or this Deed of Trust, 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.
DEED OF TRUST — $1M HOME FUNDS Page 5
Everly Plaza, LLC Rev. 04-22-20
8. If Lender elects to make any payments or do any act or thing required to be paid
or done by Grantor under the Loan documents, any sums advanced by Lender 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 Lied and to the Other Exceptions
to Conveyance and Warranty and without representation or warranty. -express or implied, by
Trustee;
3. from the proceeds of the sale, pay, in this order -
a. expenses offal-eclosure;
b. to Lender, the fixll amount of principal, interest, reasonable attorney's
fees, and other charges due and unpaid;
C. any &-nounts required by law to be paid before payment to Grantor; and
d. to Urantor, 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 tins Deed of Trust, whirl; ineJudes all court and other costs, including
reasonable attorney's fees, incurred by Trustee in defense of any action or proceeding taken
against Trustee in that c:ap;.city.
D. General Provisions
1. If any of the Property is sold under this Deed of Trust, Grantor must
immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor will
become a tenant at sufkranm-of the purchaser, subject to an action for forcible detainer.
2. Recitals in any trustee's deed conveying the Property will be presumed to be
true, absent evidence to the contrary.
3. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any
other remedy will not constitute an election of remedies.
4. This lien will remain superior to liens later created even if the time of payment
of all or part of the Obligations is extended or part of the Property is released.
DEED OF TRUST — $IM HOME FUNDS Page 6
Everly Plaza, LLC Rev. 04-22-20
5. If any portion of the Obligations cannot be lawfully secured by this Deed of
Trust, payments will be applied first to discharge that portion.
6. Subject to the rights of senior Iien 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 cif the Property.
Notwithstanding the above, in the event of any fire or other casualty to the Property or
eminent domain proceedings resulting in carrdemnation of the Property or any part thereof,
Grantor shall have the right to rebuild the Property, and to use all available insurance or
condemnation proceeds therefor, provided that (a) slleb proceeds are sutlieient to keep the
Obligations in balance and rebuild lbe Property in a mariner that provides adequate security to
Lender for repayment or performance of [he Obligations or if such proceeds are insufficient then
Grantor shall have funded any deficiency, (b) Lender shall Imve 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 constmetion escrow or similar arrangement, and
(c) no material default tlien exisrs under the Loam docrr1Y Tents tither than attributable to the casualty
or condemnation. If the casualty or condemnation affects only part of the Property and total
rebuilding is infeasible, then proceed s 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 I he rights of senior lien holders, Grantor assigns to Lender absolutely,
not only as collateral, al.l present and future rent and other income and receipts from the
Property. Oran!or 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 flip 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 terminate 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 Property. Lender may exercise Lender's rights
and remedies under this paragraph without taking possession of the Property. Lender will
apply all rent and other income and receipts collected under this paragraph first to expenses
incurred in exercising Lender's rights and remedies and then to Grantor's obligations with
respect to the Obligations and this Deed of Trust in the order determined by Lender. Lender
DEED OF TRUST — $1M HOME FUNDS Page 7
Everly Plaza, LLC Rev. 04-22-20
is not required to act under this paragraph, and acting under this paragraph does not waive any
of Lender's other rights or remedies.
8. Interest on the debt secured by this Deed of Trust will not exceed the maximum
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 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, refimded. This provision overrides any cs n.l`licting provisions in this and
all other instruments concerning the debt.
9. In no event may this Deed of Trust se -cure payment of any debt that may not
lawfully be secured by a lien on real estate or create a lien othenxl_s& prohibited by law.
10. When the context requires, singe lar nouns and pronouns include the plural.
11. The term Note includes all extensions- modifications, and ren(-.ovals of the Note
and all amounts secured by this Deed of Trust.
12. Grantor agrees to (a) keep at Grantor's addresw.. or such other place as Lender
may approve, accounts and records reflecting the operation of the Property and copies of all
written contracts, leases, grid other instruments that affect the iroperty; (b) prepare financial
accounting records in comp.l iance with generally a=epted 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. Gra«tur agrees to deliver to Lerider, at Lender's request from time to time,
internally prepared finan6al statements of Grantor and any guarantor of the Note prepared in
accordance with generally accepted accounting principles consistently applied, in detail
reasonably satisfactory to Lender and certified to be materially true and correct by the chief
financial officer of Grantor or its certified public accountant, as applicable.
14. If Leveler orders an appraisal of the Property while a default exists or to comply
with legal requirements effecting Lender, Grantor, at Lender's request, agrees to reimburse
Lender for the reasonable cost of any such appraisal. If Grantor fails to reimburse Lender for
any such appraisal within 20 days of Lender's written request, that failure is a default under
this Deed of Trust.
15. Grantor agrees to allow Lender or Lender's agents to enter the Property at
reasonable times and inspect it and any personal property in which Lender is granted a security
interest by this Deed of Trust.
DEED OF TRUST — $1M HOME FUNDS Page 8
EverIy Plaza, LLC Rev. 04-22-20
16. Grantor may not sell, transfer, or otherwise dispose of any Property, whether
voluntarily or by operation of law, except for 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, the liens
securing ad valorem taxes not yet due and payable, and the Perini Eted 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
Lender may require, such as a principal pay down on the Obligations, an in 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 specifical f y a pproves (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 Conunwi ty Affairs ("TDHCA), (ii) the
HOME Deed Restrictions, as more parCieWarly described in the 1400E Contract, and (iii) the
Regulatory Agreement for Mulfifamily Projects (the "Regulatory Agreement"). Approval of
the LURA shall be reflected by Lender's execution of the form of Consent and Subordination
of Lienholder 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 liens created by
this Deed of Trust without the prior written consent of Lender. If granted, consent for a
Subordinate Instrument may be conditioned upon the Subordinate Instrument's containing
express covewts to the effect that -
a. the Subordinate Instrument is unconditionally 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 would 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 maintenance of the Property in any order
Lender may determine, before being applied 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
DEED OF TRUST — $1M HOME FUNDS Page 9
Everly Plaza, LLC Rev. 04-22-20
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 foreclose re., with respect to any unit that
had been regulated by the LURA, (i) none of the e#igible 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 FRalf be increased except as
otherwise permitted under Section 42 of the Code.
Grantor may not cause or permit any of th; following events to occur without the prior
written consent of Lender: if Grantor is (a) a corporation, thw 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, .encumbranco. 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 ofany of its general partnership interests, or the
withdrawal from or admiission into it of any general partner, or (3) except for a limited
partnership interest in a I ow. income housing project, the withdrawal from or admission into it
of any cam, nh�olling limited partner or partners. If granted, consent may be conditioned upon (a)
the inttegri.ty, reputation, character, creditwoithiness, 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 ownership interest in Grantor (or
security interest in such ownership) of a written modification or assumption agreement
containing such teams as Lender may reasonably require, such as a principal pay down on the
Obligations, an increase in the nabe 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.
Permitted Transfers. Notwithstanding anything to the contrary herein or in any other
Loan document, the following shall not constitute a default under any of the Loan documents -
a. the withdrawal, removal, replacement, and/or addition of a Managing Member of
the Grantor in accordance with the Operating Agreement, or the withdrawal,
replacement, and/or addition of Grantor's Managing Member provided that prior
notice of any additional or substitute Grantor's Managing Member is delivered to
DEED OF TRUST — $1M HOME FUNDS Page 10
Everly PIaza, LLC Rev. 04-22-20
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 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 Managing Member;
d. the dilution of Managing Member's interest in cash flow and/or capital transaction
proceeds in Grantor in accordance with the terms of the Operating Agreement;
and
e. any amendment to the Operating Agreement which does not affect the financial
terms of the Operating Agreement, and dueN not otherwise adversely affect
Lender's security interest in the Property.
Further, none of the actions described in this paragraph will constintte a material change in
ownership which would trigger termination of the: HOME Contract.
17. Except as otherwise related to the pi-oject ?.; defined in the. JiOME Contract,
Grantor agrees not to grant any lien .or security interest iri Lhe Property or to pe.fmit any junior
encumbrance to be recorded or any claim to otherwise become an encumbrance against the
Property other than the proposed LURA, the HOME Deed Restrictions, the Regulatory
Agreement and any other lien or security interest approved in advance by Lender. If an
involuntary encumbrance is filed against the Properly, Grantor agrees, within 30 days of actual
notice, to either remove the involuntary enctunb-ran.ce or in:;ure against it or provide a bond
acceptable to Lender against the involuntary encumbrance.
18. This Deed of Trust birids, benefits, and may be enforced by the successors in
interest of a I parties.
19. If Grantor and Borrower are not the same person, the term Grantor includes
Borrower.
20. Grantor and each surety, endorser, and guarantor of the Obligations 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.
21. Grantor agrecs 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 any provision of this Deed of Trust is determined to be invalid or
unenforceable, the validity or enforceability of any other provision will not be affected.
23. RESERVED.
DEED OF TRUST — $1M HOME FUNDS Page 11
Everly Plaza, LLC Rev. 04-22-20
24. RESERVED.
25. The term Lender includes any mortgage servicer for Lender.
26. The debt and the performance secured by this Deed of Trust is a nonrecourse
obligation of Borrower. Neither Borrower nor any of its Members 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 Co&. The liens and security interests created and
granted by this Deed of Trust secure an obligation incurred for the construction of
improvements on land, including the acquisition casts 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 con pletion 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, unluss collections from Grantor of interest at that
rate would be con krary to app] icAle lax, €n which event such amounts will bear interest at the
rate stated in the Nate for matured, unpaid arnoLi1 its and will be payable on notice 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 I lie rights of any senior lien holders, assignments of any and all
rights or claims that relate to tlhe construction of improvements on the Property.
5. In case of breach by Grantor of the terms, covenants and conditions of the
HOME Contract, Lender, at its option, subject to applicable notice, grace and cure periods,
with or without entry on the Property, may (a) invoke any of the rights or remedies provided
in the HOME Contract, (b) accelerate the amounts secured by this Deed of Trust and invoke
the remedies provided in this Deed of Trust, or (c) do both.
DEED OF TRUST -- $1M HOME FUNDS Page 12
Everly Plaza, LLC Rev. 04-22-20
F. THIS CONVEYANCE IS MADE AND ACCEPTED SUBJECT TO THE
FOLLOWING 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
6 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 the 6 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
therein and will not permit a default to occv-r tbervitnder. Any default in the
performance of Grantor's obligafons under the tej-a- € 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 '11-HIS 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 .AC; RE'E ' ENTS BETWEEN THE PARTIES.
[SIGNATURES AND NO`1`ARIZATION FOLLOW]
[REMAINDER OF PACE INTENTIONALLY LEFT BLANK]
DEED OF TRUST — $1M HOME FUNDS Page 13
Everly Plaza, LLC Rev. 04-22-20
EVERLY PLAZA, LLC,
a Texas limited liability company
By: SAIGBROOK EVERLY, LLC, a Texas
limited liability company, its Managing
Member
By:
Lisa Stephens, President
STATE OF TEXAS §
COUNTY OF TARRANT
This instrument was acknowledged beftae me on _, 2020, by Lisa
Stephens, President of Saigebrook Everly, LLC, o Tcxas limited liability company, Managing
Member of Everly Plaza, a Texas limitod liability coi-npa;,y, on behalf of said company.
Notaaytablic, State of Texas
AFTER RECORDING RETURN TO:
City of Fort Worth
City Attorney's Office
Attention: Jo Ann Pate
200 Texas Street
Fort Worth, Texas 76102
DEED OF TRUST — VM HOME FUNDS Page 14
Everly Plaza, LLC Rev. 04-22-20
EXHIBIT "A"
Legal Description
Tract 1:
Being all of Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14, Block 11, FAIRMOUNT
ADDITION, an addition to the City of Fort Worth, Tarrant County, Texas, according
to plat recorded in Volume 63, Page 25, Deed Records of Tarrant County, Texas
(DRTCT), and being more particularly described as follows:
BEGINNING at a 5/8 inch iron rod with a plastic cap stamped "MMA" found at the
southeast corner of the aforementioned Lot 14, I'i-om which a 1/2 inch iron rod with a
plastic cap stamped "FULTON" bears South 70'3220" East a distance of 0.73 feet;
THENCE North 89' 59' 28" West, with the south line of the aforementioned Lot 14, a
distance of 140.00 feet to PK nail with a shiner labeled "MMA" from which a 1/2 inch
iron rod with a cap stamped "FULTON- hears South 85°45'43" East, a. distance of 0.72
feet, said PK nail in the east right of way line of 81h Avenue (a called 80 foot right of
way), for corner;
THENCE North 00' 00' 51" Wost, with the east right of way line of 8th Avenue, and
the west line of Lots 14-1, Block 11, to a Pk nail found with a shiner labeled "MMA",
said PK nail at the southeast corner of the
intersection ,f the afoa-ementioned east right of way line of 8th Avenue and the south
right of way line of Parl; Pace Avenue (a called 60 foat right of way), for corner;
THENCE South 89° 59' 28" East, with the south right of way line of Park Place
Avenue, and the north Iin.- of Lot 1, a distance of 140.00 feet to the northeast corner of
a 20-foot public alley, and a PK nail with a shiner
labeled "MMA, from with a PK nail bears East 1.5 feet, for corner;
THENCE South 00' 00' 5 1 " East, with the east line of Lots 1-14, Block 11, and the
west lire of said 20-1iiot public alley, a distance of 350.00 feet to the POINT OF
BEGINN [N6- containing an area of 49,000 square
feet, or 1.125 acres of laud.
Tract 2:
Being all of Lots 27, 28, and 29, Block 11, FAIRMOUNT ADDITION, an addition to
the City of Fort Worth, Tarrant County, Texas, according to the plat as recorded in
Volume 63, Page 25, Deed Records of Tarrant County, Texas (DRTCT), and being
more particularly described as follows:
COMMENCING at a 1/2 inch iron rod found at the northeast corner of Lot 32, Block
11, Fairmount Addition, said iron rod also being at the southeast intersection of the
DEED OF TRUST - $1M HOME FUNDS Page 15
Everly Plaza, LLC Rev. 04-22-20
south right of way line of Park Place Avenue (a called 60 foot right of way) and the
west right of way line of Hurley Avenue (a called 60 foot right of way);
THENCE South 00' 00' 5 1 " East, with the west right of way line of Hurley Avenue, a
distance of 75.00 feet to a point at the northeast corner of Lot 29, Block 11, Fairmount
Addition and the POINT OF BEGINNING, from which a 1/2 iron rod with a cap
stamped "PRECISE" bears South 81 ° 48' 22" East, a distance of 1.36 feet;
THENCE South 00' 00' 51" East, continuing with the west right of way line of Hurley
Avenue and the east line of Lots 29-27, Block 11, Fairmount Addition, a distance of
75.00 feet to a point at the southeast corner of Lot 27, ftom which a 1/2 inch iron rod
with a plastic cap stamped PRECISE" bears South 81 ° 47' 12" East, a distance of 1.11
feet, for corner;
THENCE North 89' 59' 28" West, departing the west right of way line of Hurley
Avenue, continuing with the south line QFLot 27, a distance of 140,00 feet to a point at
the southwest corner of said Lot 27, said point in
the east line of a 20-foot public alley, for copier;
THENCE North 00' 00' 51" West, with the east line of said 20-foot public alley and
west line of Lots 27-29, Bloch 11, Fairmount Addition, a distance of 75.00 feet to a
point, said point located at the northwest corner of said E.ot 29, for corner;
THENCE South 99' 59' 28" East, with the north line of said Lot 29, a distance of 140.00
feet to the POINT OF BEGINNING containing 10,500 square feet or 0.241 acres of
land.
DEED OF TRUST — $1 M HOME FUNDS Page 16
Everly PIaza, LLC Rev. 04-22-20
EXHIBIT "B"
PERMITTED EXCEPTIONS
This conveyance is made and accepted subject to the following Permitted Encumbrances:
DEED OF TRUST — $l M HOME )FUNDS Page 17
Everly Plaza, LLC Rev. 04-22-20
Promissory Note
HOME Funds
Date: April , 2020
Borrower: Everly Plaza, LLC, a Texas limited liability company
Borrower's Mailing Address:
Everly Plaza, LLC
5501 A Balcones Drive, #302
Austin, TX 78731
With a copy to:
Shackelford, Bowen, McKinley & Morton, LLP
9201 N. Central Expressway, 4°' Floor Dallas, Texas 75211
Attention: Michelle Snedden
Lender: City of Fort Worth, a Texas municipal cwporati na
Place for Payment:
City of Fort Worth
Neighborhood Services Department
Attn: Assistanl Director
200 Texas Street
Fort Worth, Tarrant County, Texas 76102, or any other place that Lender may
designate Vi writing,
Principal Amount: $1,000,000.00
Loan authority:
The loan evidenced by tivs Note (the "Loan") is being made pursuant to the
HOME Investment Partnerships Program authorized under Title 11 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 the Everly
Plaza , a muted income senior multifamily complex located in Fort Worth,
Texas (the "project") as more particularly described in the HOME Contract
between Borrower and Lender for the Loan, City Secretary Contract No. 53649
(the "HOME Contract")
PROMISSORY NOTE -- HOME FUNDS Page 1
Everly Plaza, LLC rev. 04-21-19
Annual Interest Rate: 1 % during construction. Beginning February 1, 2022, the
lesser of 1 % per annum or the Long Term Applicable
Federal Rate CAW') in effect on the date hereof which is
1.44%.
Maturity Date: The earlier of (1) February 1, 2062 or (ii) the earlier payment in full
of the Senior Indebtedness (defined below)
Annual Interest Rate on Matured, Unpaid Amounts: 12%
Terms of Payment:
Interest will accrue on any advance of Loan proceeds under this Note at the Annual
Interest Rate. Interest will be calculated based on a 360 day per year factor
applicable to the actual days on which there exists an LHipaid principal balance.
Accrued interest shall be payable in annual installments be&ning on March 1, 2022
and continuing annually until the Matarity Date. At that time, the unpaid Principal
Amount 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.
Provided however, interest is only payable ftonn 75`Yo of Surplus Cash or Non -Project
Sources, each as more partictl lady described in the Subordination Agreement (defined
below), for the immediately precediag calendar year. Principal and interest to the
extent not paid from 75% of Surplus Cash shall be paid out of 75% of Surplus Cash
in subsequent years_ Notwithstanding anything provided herein, all unpaid Principal
Amount and accrued and unpaid interest remair�tig outstanding shall be paid on or
before the Maturity Dace.
This Note is the Note required in the HOME Contract and has been executed and
delivered in accordance with dial contract. The funds advanced by Lender are
IIOME funds and the HOME Contract requires that the 6 residential rental units
described below a-nd located on the Property must qualify and remain affordable
rectal 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 pertaining to the
HOME Program and (be HOME Regulations including the Affordability Period as
well as the Lu m evidenced by this Note will be in default if the 6 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.
PROMISSORY NOTE —HOME FUNDS Page 2
Everly Plaza, LLC rev. 04-21-19
Notwithstanding the foregoing, as long as HUD is the insurer or holder of the Senior
Note (defined below) on FHA Project No. 113-35848, the provisions set out in
Attachment I, incorporated herein by reference for all purposes (the "HUD
Provisions"), shall be in full force and effect.
Security for Payment:
This Note is secured by a Deed of Trust Security Agreement - Financing Statement
dated April _, 2020 from Borrower to Jo Ann Pate, Trustee or Leann Guzman,
Trustee (the "Deed of Trust") which covers the personal property described therein
and the following real property:
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 27, 28 and 29, Block 11,
FAIRMOUNT ADDITION to the City of Fort Worth, Tarrant County,
Texas, according to plat recorded in Volume 63, Page 25, Deed Records
of Tarrant County, Texas, and being more particularly described in the
attached Exhibit "A", incorporated herein by reference for all purposes
Other Security for Payment: As set forth in the Ht]ME Contract.
Borrower promises to pay to the order of Lender• time Principal Amount plus interest.
This Note is payable at the Place for Pa)gnent and according to the Terms of Payment. All
unpaid amounts are due by the Find Payment Date. After the Final Payment Date,
Borrower promises to pay any unpaid principal banana: plus interest at the Annual Interest
Rate on Matured, Uipaid Amounts.
If Borrower defaults in the payment of this Note or in the performance of its
obligations under the HOME Contract, or in the performance of any obligation in any
instrument secmtring, or collatcnd to this Note, Lender may invoke any remedies provided
herein or in the Deed of Trust for default. 11' 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 "Operating 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 ofthe Loan documents, prior to exercising any remedies, Lender
shall give Borrower and each of the Members of the Borrower as identified in the Operating
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 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
PROMISSORY NOTE — HOME FUNDS Page 3
Everly Plaza, LLC rev. 04-21-19
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 Member, as identified in the Operating 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 Member. For the Investor Member
to exercise effectively its cure rights, the Investor Member must fully pay the amount past
due or perform the defaulted obligations, including the payment of any amounts due for
reasonable Iegal 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, insolvency or assignment of assets for the benefit of creditors by
the Managing Member of Borrower or by any Guarantor of the Loan, or (ii) the withdrawal
from Borrower of the Borrower's Managing Member, t)r the death or incapacity of a
Guarantor, or (iii) a breach of the representations copcerning such Managing Member or
any Guarantor, the Investor Member shall have the option, but not the obligation, within
45 days of receipt of written notice :of such default frorn Lender, to cure any such default
by appointing a substitute or additional Managing Member or Guarantor that is an affiliate
of the Investor Member to act as such Managing Member or Guarantor. Any pledge to the
Investor Member by Borrower's Managing Member of the Managing Member's interest in
the Operating Agj=meat as secs city for the performance of all of the Managing Member's
obligations under the Operating Agreement shall not be an event of default under the Loan
documents.
Borrower also promises 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 de'bi 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
or required or permitted prepayment, any excess interest will be canceled automatically as
of the acceleration of 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.
PROMISSORY NOTE — HOME FUNDS Page 4
Everly Plaza, LLC rev. 04-21-19
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 nouns and pronouns include 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 evi denced by a Note (Multistate)
(the "Senior Note") made by Borrower payable to Mason Joseph Company, Inc. (the "Senior
Lender") (the "Senior Indebtedness") to the extent and in the manner provided in that certain
Subordination Agreement among Senior Lender, Borrower and Mender (the "Subordination
Agreement"). The Deed of Trust securing this Nate is and shall be ,ubject and subordinate in
all respects to the liens, terms, covenants and conditions of the documents evidencing the
Senior Indebtedness (the "Senior Loan Documents") as more frilly set forth in the
Subordination Agreement. The rights and remedies of the payee and each subsequent holder
of this Note under the Deed of Trust securing #iris Note are subject to the restrictions and
limitations set forth in the Subordination Agreement. Fah subsequent holder of this Note
shall be deemed, by virtue of such hDider°s acquisition of the Note, to have agreed to perform
and observe all of the terms, covenants and conditions to he performed or observed by the
Subordinate Lender under the Subordination Agreement.
Subject to the terms o14ti?e Subordination Ak7ecinert and any cure periods provided
in the Senior Loan Documents, if there is a deNult in payment of any part of principal or
interest of the Senior Indebtedness, or a breads of any covenants contained in the Senior
Loan Documents, the debt evidenced by this Note will immediately become payable at the
option oof .ender. If Borrower fails to perform any of Borrower's obligations in the Senior
Loan Documents, and to the extent allowed by the Subordination Agreement, Lender may
perform: those obligations and he 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.
If any installment becomes overdue for more than 15 days, at Lender's option a late
payment charge of 51A 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 if, subject to any applicable notice and/or cure
periods, (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
PROMISSORY NOTE — HOME FUNDS Page 5
Everly Plaza, LLC rev. 04-21-19
is appointed for Borrower, any Other Obligated Party, or any property 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 creditors other than the holder(s)
of the Senior Indebtedness; (5) a bankruptcy or insolvency proceeding is commenced 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 affairs, is authorized to dissolve 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 insir-ance proceeds, collateral
security of like kind and quality or restored to its former condition.
The execution and delivery of this Nate are required under the Contract.
If any provision of this ;10ie conflicts with any provision of the HOME Contract,
the Deed of Trust, the HOME Deed restrictions 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 wiI I be construed under the Iaw,, 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 rather 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
Everly Plaza, LLC rev. 04-21-19
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.
EVERLY PLAZA, LLC,
a Texas limited liability company
By: SAIGEBROOK EVERLY, LLC
a Texas 1 united liability company,
its Managing Mernher
B v:
Lisa Stephens, President
PROMISSORY NOTE — HOME FUNDS
Everly Plaza, LLC
Page 7
rev. 04-21-19
ATTACHMENT I
HUD Provisions
Capitalized terms not defined herein shall have meanings assigned to them in the
Subordination Agreement.
As long as HUD is the insurer or holder of the Senior Note on FHA Project No.113-35848,
the following provisions ("HUD Provisions") shall be in full force and effect:
(1) Any payments due under the Subordinate Note shall be payable only (i) from
permissible distributions from Surplus Cash of the Project; but in no event greater than
seventy-five percent (75%) of the total amount of Surplus Cash; or (ii) from monies received
from Non -Project Sources. In no event may pay-ments due under all subordinate debt of
Borrower cumulatively exceed 75% of available Surplus Cash. '111c restriction on payment
imposed by this paragraph shall not excuse any default caused by the failure of the Borrower
to pay the indebtedness evidenced by the Subordinate Note;
(2) No prepayment of the Subordinate Note shall be made until after final endorsement
by HUD of the Senior Note, unless. such prepayment is rmade from Non -Project Sources and
is approved in writing by HUD.
(3) This Subordinate Note is non-negotiable and may not be sold, transferred, assigned,
or pledged by the Subordinate Lender except with he prior writteo approval of HUD;
(4) Interest on the Subordinate Note shalI not be compounded as long as HUD is the
insurer or holder of the Dote secured by the Security Instrument;
(5) lion:ower hereby waives presentmE:iit. demand, protest and notice of demand, protest
and nonpayment of this Subordinate Note;
(6) Th.- terms and provisions of thi5 Subordinate Note are also for the benefit of and are
enforceable by HUD against airy party hereto, their successors and assigns. This Subordinate
Note may not be modified or amended without the written consent of HUD; and
(7) In the evens of any conflict between the terms of the Subordinate Note and the HUD
Provisions, the terms of the HUD Provisions shall control.
PROMISSORY NOTE — HOME FUNDS Page 8
Everly Plaza, LLC rev. 04-21-19
EXHIBIT "A"
Legal Description
Tract 1:
Being all of Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14, Block 11,
FAIRMOUNT ADDITION, an addition to the City of Fort Worth, Tarrant County,
Texas, according to plat recorded in Volume 63, Page 25, Deed Records of Tarrant
County, Texas (DRTCT), and being more particularly described as follows:
BEGINNING at a 5/8 inch iron rod with a plastic cap stamped "MMA" found at
the southeast corner of the aforementioned Lot 14, from which a 1/2 inch iron rod
with a plastic cap stamped "FULTON" bears South 70'32'20" East a distance of
0.73 feet;
THENCE North 89' 59' 28" West, with the south line of the aforementioned Lot
14, a distance of 140.00 feet to PK nail with a shiner labeled "h{llvhA," from which
a 1/2 inch iron rod with a cap stamped "FULTON" nears South 85" 4.5'43" East, a
distance of 0.72 feet, said Pik nail in the east right of way line of 8t4 Avenue (a
called 80 foot right of way), for corner;
THENCE North 00' 00' 5 1 " West, wit the east right of way line of 8th Avenue,
and the west line of Lots 14-1, Block 11, to a PK nail foiind with a shiner labeled
"MMA", -aicI PIS. nail at the soudieaist corner of the
intersection of the aforementioned east right of way line of 8th Avenue and the
south right of way line of Park Place Avenue (a called 60 foot right of way), for
corner,
WHENCE South 89' 59° 28" East, with the south right of way line of Park Place
Avenue, and the north line -of Lot 1, a distance of 140.00 feet to the northeast corner
of 20-foot public'aIley, end a PK nail with a shiner
labeled "MMA, from with a PK nail bears East 1.5 feet, for corner;
THENCE south 00'.00' 51" East, with the east line of Lots 1-14, Block 11, and the
west line of said 20-foot public alley, a distance of 350.00 feet to the POINT OF
BEGINNING, containing an area of 49,000 square
feet, or 1.125 acres of land.
Tract 2:
Being all of Lots 27, 28, and 29, Block 11, FAIRMOUNT ADDITION, an addition
to the City of Fort Worth, Tarrant County, Texas, according to the plat as recorded
in Volume 63, Page 25, Deed Records of Tarrant County, Texas (DRTCT), and
being more particularly described as follows:
PROMISSORY NOTE — HOME FUNDS Page 9
Everly Plaza, LLC rev. 04-21-19
COMMENCING at a 1/2 inch iron rod found at the northeast corner of Lot 32,
Block 11, Fairmount Addition, said iron rod also being at the southeast intersection
of the south right of way line of Park Place Avenue (a called 60 foot right of way)
and the west right of way line of Hurley Avenue (a called 60 foot right of way);
THENCE South 00' 00' 51" East, with the west right of way line of Hurley Avenue,
a distance of 75.00 feet to a point at the northeast corner of Lot 29, Block 11,
Fairmount Addition and the POINT OF BEGINNING, from which a 1/2 iron rod
with a cap stamped "PRECISE" bears South 81 ° 48' 22" East, a distance of 1.36
feet;
THENCE South 00' 00' 51" East, continuing with the west right of way line of
Hurley Avenue and the east line of Lots 29-27, Block 11, Fairmount Addition, a
distance of 75.00 feet to a point at the southeast corner of Lot 27, from which a 1/2
inch iron rod with a plastic cap stamped PRECISE" bears South 81 ° 47' 12" East,
a distance of 1.11 feet, for corner;
THENCE North 89' 59' 28" West, depai-tiny the ww.st right of way line of Hurley
Avenue, continuing with the south line of Lot 217, a distance of 140.00 feet to a
point at the southwest corner of said Lot 27, said point in
the east line of a 20-foot public, alley, fir corner;
THENCE Nora} 00' 00' 51 Wcst, with the east line of said 20-foot public alley
and west line: of Lots 27-29, Block 11, Fairmount Addition, a distance of 75.00 feet
to a point. said point located at the nog..hwest corner of said Lot 29, for corner;
THENCE South .89' 59' 28" East, with the north line of said Lot 29, a distance of
140.00 feet to the POINT OF BEGINNING containing 10,500 square feet or 0.241
acres of land.
PROMISSORY NOTE — HOME FUNDS Page 10
Everly Plaza, LLC rev. 04-21-19
EXHIBIT "F"
REIMBURSEMENT FORMS
EVERLY PLAZA, LLC
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 9
Attachment I
IhIVOICE
Developer: Everly Plaza, LLC
Address; 5501 A Balcones Drive, #302
City, State, zip: Austin, Texas 78731
Project: Everly Plaza
Tax ID Number
Amount
This Invoke CUM111titive to Dnle
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 10
Attachment II
City of Fort Worth
Neighborhood Services Department
Expenditure Worksheet
Developer: Everly Plaza, LLC
Project: Everly Plaza
Line No.
Date
C'hE aQk NP,
Payee or Bono icia "
Lese-fiLioll"
Amewit
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 Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 11
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EXHIBIT "H"
FEDERAL LABOR STANDARD PROVISIONS - DAVIS-BACON REQUIREMENTS
EVE RLY PLAZA, LLC
NOT APPLICABLE
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everlv Plaza. LLC — Everly Plaza Page 13
EXHIBIT "I"
SECTION 3 REPORTING FORMS
EVERLY PLAZA, LLC
SECTION 3 BUSINESS CERTIFICATION
SECTION 3 SUMMARY REPORT (Form HUD-60002)
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza. LLC — Everly Plaza Page 14
FoRT WORTH.
City of Fort Worth
Section 3 Business Certification
Name of Business:
Address of Business:
Type of Business: Corporation Partnership
Sole Proprietorship Joint Venture
My business meets the definition of Section 3 business because it meets one or
more of the following categories (check all that apply):
Company is owned by a Section 3 resident (see below); or,
On the affected project, my company is subcontracting 25% of its contract amount to
qualified Section 3 businesses; or,
At least 30% of the my company's employees are currently Section 3 residents or were
Section 3 residents within 3 years of first hire date.
To qualify as a Section 3 Resident the individual's household income must be under the income
limits shown below (Ex.: A household of 3 people that makes less than $47,400 annually qualifies as a
Section 3 Resident):
Persons in
1 person
2 people
3 people
4 people
5 people
6 people
7 people
8 people
Household
2019Income
$42,600
$48,650
$54,750
$60,800
$65,700
$70,550
$75,400
$80,300
Limit
I certify that the information I am providing is true and could be subject to verification at any
time by a third party. I also acknowledge that the provision of false information could leave me
subject to the penalties of Federal, State and local law.
Subcontractor's Authorizing Signature:
Subcontractor's Authorizing Printed Name:
Subcontractor's Authorizing Signatory's Title:
For Prime Contractor Only:
Reviewed by:
Reviewer's Job Title:
Date:
Date:
Effective as of April 2014
�z
City of Fort Worth
Section 3 Business Certification
Name of Busrne:
Address of Business:
Type of Business_ Corp=uratlon
Sale ProPrietorship
l'artnershi:p
Joint Venture
y busEness meets he defin tion of Section 3 business because ft meetsone or
Inure of the following categodes f check 0 that apply)_
ounpa erg is awned by a Se•rt]on 3 resident (see betow); or,
err the affected prn.ject, my c=p.any is subcontracting 2536 of its contract arnount to
qualified Section 3 businesses;. or,
At ,east 3046 ofthe mV company's a p_byrees are curren°tlySecion 3 residents or were
Section 3. residents rivith in 3 years of first hire -date.
To qu slily as.a ction 3 Resident the. individual's ous€hold income must be undea the income
limits shown beWw'{l=X_: A KoLisehold of 5 people that: ak;,es less than $47,400 annually quafifies as a.
section 3 ResWentj-
Persons in
Knusehold
l person
2 peokrle
3 people
4 peopl e
5 people
6: people
T eople
G peoples
2019 Inrame
I certify that the inforrnabvn I awn, pravid"an,g'is true and could be subject toverificatiion at any
firne by a third ;Bart'. I also ar&r owiedge that the;piri vision offaSse irifcr: ma.tion cauld leave me
subject to the penalties of Federal, Mate and 'Gcal law -
subcontractor's Authartzing Signature:
Subcontractor's Auth ruing printed Name
afb ntra.ctor's AutharhZdng SkKnataws Tithe:
For Prune ntraaorOnly:
Revkwed by..
Reviewer's Jab This:
Ef%ctiVe as Of sprit 2014
Dale:
Date:
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04f28/2020
Fverly Plaza. LLC — F.verly Plaza Paae 15
Section 3 Summ y Report
Economic Opportunities for
Low- and Very Low-income Persons
Section back of page for Public Reporting Burden statement
U.S. Department of Housing
and Urban Development
Office of Fair Housing
And Equal Opportunity
OMB Approval No: 2529-0043
(exp. 11130120 10)
HUD Field Office.,
L Recipient Name & Address_ (street, city, stale, zip)
2. Federal Identification: (grant no.)
3. Total Amount of Award:
4. Contact Person
5. Phone: (Include area code)
6. Length of Grant
7, Reporting Period_
8. Date Report Submitted:
9, Program Code(Use separate sheet
for each program code)
10. Program Name:
Part I: Employment and Training ("' Columns S, C and F are mandato fields. Include New Hires in E &F)
A
Job Category
B
Number of
New Hires
e
Number of New
Hires that are
Sec. 3 Residents
D
% of Aggregate Number
of Staff Hours of New Hires
that are Sec. 3 Residents
E
% of Total Staff Hours
for Section 3 Employees
and Trainees
F
Number of Section 3
Trainees
�°rrfessione�s
Technicians
�-
—�—
�- -
--�
_
�liu f(`7@ilC81
_
Construction by Trade (List)
Trade
_
Trade
Trade
Tram
Trade
Other (List]
Taal
JJ
* Program Cafes 3 = PublirAndian Housing 4 = Homeless Assistance 8 = CDBG State Administered
1 = Flexible Subsidy A = Development, 5 = HOME 9 - Other CD Programs
2 = Section 2021811 B - Operation 6 = HOME State Administered 10 = Other Housing Programs
C = Modernization 7 = CDBG Entitlement
Page 1 of 2
HOME DEVELOPER RENTAL CONTRACT - EXHIBITS
Everly Plaza. LLC - Everly Plaza
form HUD 60002 (612001)
Ref 24 CFR 135
Rev. 04/28/2020
Page 16
Fart II: Contracts Awarded
1. Construction Contracts:
A. Total dollar amount of all contracts awarded on the project
B. Total dollar amount of contracts awarded to Section 3 businesses $
C. Percentage of the total dollar amount that was awarded to Section 3 businesses %
D. Total number of Section 3 businesses receiving contracts
2. Non -Construction Contracts:
A. Total dollar amount all non -construction contracts awarded on the projectlactivity $
S. Total dollar amount of non -construction contracts awarded to Section 3 businesses $
C. Percentage of the total dollar amount that was awarded to Section 3 businesses %
D. Total number or Section 3 businesses receiving non -construction contracts
Part III: Summary
Indicate the efforts made to direct the employment and other economic opportunities generated by HUD financial assistance for housing
and community development programs, to the greatest extent feasible, toward low -and very low-income persons, particularly those who
are recipients of government assistance for housing. (Check all that apply.)
Attempted to recruit low-income residents through: local advertising media, signs prominently displayed at the project site,
contracts with the community organizations and public or private agencies operating within the metropolitan area (or
nonmetropolitan county) in which the Section 3 covered program or project is located, or similar methods.
Participated in a HUD program or other program which promotes the training or employment of Section 3 residents.
Participated in a HUD program or other program which promotes the award of contracts to business concerns which meet the
definition of Section 3 business concerns.
Coordinated with Youthbuild Programs administered in the metropolitan area in which the Section 3 covered project is located.
Other: describe below.
Public reporting for this collection of information is estimated to average 2 hours per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
This agency may not collect this information, and you are not required to complete this form, unless it displays a currently valid OMB
number.
Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701 u, mandates that the Department ensures that
employment and other economic opportunities generated by its housing and community development assistance programs are directed
toward low- and very -low income persons, particularly those who are recipients of government assistance housing. The regulations are
found at 24 CFft Part 135. The information will be used by the Department to monitor program recipients' compliance with Section 3, to
assess the results of the Department's efforts to meet the statutory objectives of Section 3, to prepare reports to Congress, and by
recipients as self -monitoring tool. The data is entered into a database and will be analyzed and distributed. The collection of information
involves recipients receiving Federal financial assistance for housing and community development programs covered by Section 3. The
information will be collected annually to assist HUD in meeting its reporting requirements under Section 808(e)(6) of the Fair Housing Act
and Section 916 of the HCDA of 1992. An assurance of confidentiality is not applicable to this form. The Privacy Act of 1074 and OMB
Circular A-108 are not applicable. The reporting requirements do not contain sensitive questions. Data is cumulative; personal identifying
information is not included.
Page 2 of 2 farm HUD 00002 (1112010)
Ref 24 CFR 135
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza. LLC — Everly Plaza Page 17
EXHIBIT "J"
STANDARDS FOR COMPLETE DOCUMENTATION
EVERLY PLAZA, LLC
FORT N'RTJ-1,
Stcandare of Doru i entation for Reimbursement of Development Costs.
Cost Type
Documentation Standard
Acquisition of Real Property
a ]suite to Seller (date must be on or before the date of options agreement
or sales contras"€ and signed by the buyer and seller)
Recorded [deed of Trust
Purchase Agreement w/ Required HUD language
Master Settlement Statemen.{HUD-1
d Appraisal or other docurnest used to deterrnine purchase price
® Proof of Payment fi-e., bare. statement/cancelled check)
Verification of Vacant Status (as applicable)
Pre -Development and Soft
w invoice should include:
Cosies (Architect, Engineer,
W date;
Landscape design, Surveys,
company's letterhead. -
Appraisals, Environmental, Legal
° address for which service is provided-,
Fees, Other Consultants, Etc_)
° description of services) and item(s)a
° amount for itemized services; and
total amount
Proof of Payment (Le_, hank s`aterrient or cancelled: check)
a` Fully executed ccntract1service a greernent5fletter agreements and
applicable amendments
o Provide printout from v u_sam.govverifying
contractor/subcontractor is not listed on the debarred and
suspension list
a if only a portion Fs being paid with City funds, then show calculation and
documentation of how costs are allocated_
Neighbo0iocii Semites
FINAL as of f f 21/2017
Page 1
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza. LLC — Everly Plaza Page IS
Foin'ATORTIL,
�:.---..__ :_ :. ,�•—,:_ter . --,.�
Standard Documentation for Reimbursement of Development Costs
Construction Costs
4 invoice should include:
(Contract€ irs & Subcontractors)
® date.;
d company's letterhead;
• address for which service is provided;
10 description of service(s) and item(s);
W1 amvuntfor itemized services;and.
al total amount
Proof of Payment i.e., bank statement or cancelled check)
o Copy of appkcable inspection reports) conducted by NSD Inspector
Copy of executed agreements
n Provide printout from. w49Bw.sam.govverifying
contractor/subcontractor is not listed on the debarred. and
suspension list
Q if only a portion is being paid with City funds, then show calculation and
decumentation of how costs are allocated.
For payment of finaa retainage for the prime contractor, provide lien
waivers for the prime and all subcontractors.
6 Ust of subcontractors
Materials Purchased by Developer
o invoice should include.
(if applicable)
o date,
• company's letterhead;
• address for which service is provided:;
• description of service(s) and item(s);
• amount for itemized services; and
• total amount
o Proof of payment)i_e., bank state mentorcan celled check)
® Verification of delivery
Developer free
. Final ilpvcice Reflecting Total Develop pent Cost
if paid directly from HOME funds)
. proof of payment for anyr other entity/funding source nontributing to
development costs
Show calculation of agreed upon developer fee percentage
a Copies of final lien releases from contractor/,subcontractor
Complete Docurnentation income eligibility of buyers/renters (i.e., income
documents for eligible homebuyer/tenants, sales contract between
d eveloper/hornebuyer, HA Deed of Trust with required affordability
period language, etc_)
Lease documents
Final inspections of completed units
Neighborhood Sarvicez
FINAL as of 6/21 f 2017 Page 2
HOME DEVELOPER RENTAL CONTRACT -- EXHIBITS Rev. 04/28/2020
Everly Plaza. LLC — Everly Plaza Page 19
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EXHIBIT 'W'
DEED RESTRICTIONS
EVERLY PLAZA, LLC
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 21
DEED RESTRICTIONS
HOME Funds
THESE DEED RESTRICTIONS ("Deed Restrictions") are made effective as April 27,
2020, by and between EVERLY PLAZA, 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.
WITNESETH:
WHEREAS, City has received a grant from the United States Department of Housing and
Urban Development ("HUD") through the HOME Invest_ent 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 lenders, private industry and. nonprofit housing organizations;
WHEREAS, the primary purpose of the HOME program pLwsuant to the HOME
Investment Partnerships Act at Title II of the Cranston Gonzales National At1`ordable Housing Act
of 1990, as amended, 42 U.S.C. 1270 i et seq. (the "Act") and the HOME Invesment Partnerships
Program Final Rule, as amended, 24 Cl"R Part 92 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 ILuds for a project whereby Owner will
construct, develop, own, and operate a new 88-unit rnixcd-income .multifamily rental complex
dedicated to serving seiniors in the City to be known as Everly Plaza (the "project");
WHEREAS, City ha,, agreed to lend, and Owner has agreed to accept, a loan of City HOME
funds in the amount of $1,000,00F l.00 (the -'Loan' }, pursuant to the requirements of the HOME
program in accordance with that certain HOME Contract, City Secretary Contract No. 53649,
between Owner and City, for the purpose of assisting Owner in developing the Project ("HOME
Contract");
WHEREAS, as a condition to City making the Loan, Owner must agree to comply with
certain occupancy, ivnt 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 heminafter escribed real property so that the Project will meet the HOME
requirements ("HOME R.oquirements");
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", incorporated herein for all purposes:
DEED RESTRICTIONS - HOME Page 1
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
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 6 units of the 88 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 ("AMV), as set annually by HUD with adjustments
for family size ("High HOME Eligible Tenants"), shall be 4 units ("High HOME Units"). The
number of HOME Units rented or available for rent to families whose annual incomes do not
exceed 50% percent of AMI ("Low HOME Eligible Tenants") shall be 2 units ("Low HOME
Units"). The HOME Units can be designated as either High BIOME Units or Low HOME Units.
The HOME Units are floating.
3) Owner hereby acknowledges and agrees that the Project is to be owned, managed
and operated as a rental housing project for affordable housing 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 covenarfts:
a. High HOME rents. The maximum 1-IOME rents are the lesser of:
(1) The fair market rent for existing housing for comparable units in the
area as established by HUD under 24 CFR Part 888.1 1 l; or
(2) A rent that does not exceed 30% of the adjusted income of a family
whose annual income equals 65% of AMI with applicable adjustment for the
bedroom size. of the relevant housing snit. High Home Rent may not exceed the
maximum rent limitations established by HUD minus utility allowances. For the
purposes of these Reed Restrictions, "utility allowances" are those monthly
allowances for utilities (excluding telephone) adopted by City in accordance with
the HOME Re.gwlations 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 requyuerrrents:
(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
DEED RESTRICTIONS - HOME Page 2
Everly Plaza, LLC — Everly PIaza Rev. 044/22/2020
(2) The rent does not exceed 30% of the family's adjusted income. If
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 prof ect-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 cottiparable document evidencing
participation in a HOME tenant -based rental assistance, program because of the status of
the prospective tenant as a holder of such certificate, voucher, or comparable HOME
tenant -based assistance document.
4) Initial Rent Schedule and Utility Allowances. Owner must verify that all tenants
of HOME Units are HOME Eligible Households with full Tenant Documcntation at the time the
initial lease for a HOME Unit is executed as more particularly described in Elie 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 65.609 to establish tenant income eligibility and shall use Lhe most current HUD Income
Guidelines. Owner must verify That all tenu_nts of HOME Units are HOME Eligible Households
with full Tenant Documentation as more parlictilarly 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 flity-approved tenant self certification form as Tenant Documentation.
Notwithstan—thing the foregoing, Owner must verify the income eligibility of all HOME Eligible
Households with fall Tenant Doctkmentaticni 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 a market rate tenant qualifies as a HOME Eligible Household
or fill an empty ;market rate unit with a HOME Eligible Household.
6) Tenant Lease and Tenant Selection. Owner's lease for the HOME Units shall
comply with 24 CFR Pav 92.253 as more particularly described in the HOME Contract. Owner's
tenant selection policy and Ct iieria shall be consistent with the purpose of providing housing in
accordance with the HOME Regulations including addressing non—discrimination 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
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
9) The preceding use restriction and Affordability Period (1) 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 thereof shall conclusivcly be held to have been executed,
delivered and accepted subject to such covenants, reservation and restrictions as set forth in such
contract, deed or other instruments.
10) Owner hereby agrees to execute fun --they documentation required 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 iii the HOME Contract (or ariv other applicable
laws that supplement, amend, restate, replace or otherwise pertain to such laws, oi-dinances and/or
regulations).
11) Sale or Transfer of the land or Prciject. Until the termination of these Deed
Restrictions, Owner hereby covenants and agrees not to sell, transfer or otherwise dispose of any
portion of the real property or Project, without obtaining the prior wri Lten consent of the City. Any
transfer or disposition of'the real property or the Project without the written agreement of the City,
in a form as will meet [lie requirements of a conveyance of real property in Texas, shall be null,
void and without effect, shall cause a reversion of title to Owner and shall be ineffective to relieve
Owner of its obligations under this dacunieut.
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; Remedie,4. 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 W 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
reasonable sum for the prevailing party's attorneys' fees and costs and other expenses of such action
or suit.
DEED RESTRICTIONS - HOME Page 4
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
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 modification, consent, or waiver shall extend
beyond the particular case and purpose involved. No notice or 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 document, and all amendments and supplements hereto and
thereto, to be recorded and filed in the real property records of Tarrant County and in such other
places as City may reasonably request. Owner shall pay all tees acid charges incurred in connection
with any such recording.
15) These Deed Restrictions shall be governed by the laws o t' the State of Texas.
1 G) Headings and titles herein are for convenience 'only and shall not influence any
construction or interpretation.
17) If any provision of these Deed Restrictions shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not
in any way be affected or impaired thereby.
18) All terw not defined herein shall ltave the meaning proscribed to them in the
HOME Contract. if any provisioni 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.
19) THE TERMS AND +C:`ONDITION OF THESE DEED RESTRICTIONS ARE
SUBJECT TO HUD'S REQUIREMENTS SET FORTH IN THE ATTACHED HUD RIDER
INCORPORATED HEREIN FOR ALL PURPOSES.
[Signature Pages to Follow]
DEED RESTRICTIONS - HOME Page 5
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
IN WITNESS WHEREOF, Owner and the City have executed this document by duly
authorized representatives, all on the date first written hereinabove.
OWNER:
EVERLY PLAZA, LLC,
a Texas limited liability company
By: Saigebrook Eves ly, LLC,
a Texas limited liability company,
its Managing Me.mber
BV
Lisa Stephens, President
Date -
STATE OF TEXAS §
COUNTY OF TARRANT 3
This instrumeait was aoknowlalged before nie on April , 2020, by Lisa Stephens, President of
Saigebroc)k Everly, LLC, a Texas limited liability company, as Managing Member of Every Plaza,
LLC, a Tux4s limited liabi Iity comptmy on behalf said company.
Notary Public, State of Texas
[Signatures Pages Continue]
DEED RESTRICTIONS - HOME Page 6
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
IN WITNESS WHEREOF, Owner and the City have executed this document by duly
authorized representatives, all on the date first written hereinabove.
ATTEST:
City Secretary
M&C 19-0016 Dated August 6, 2019
M&C 20-0011 Dated January 14, 2020
Form 1295: 2019-561558
CITY OF FORT WORTH
Fernando Costa, Assistant City Manager
Date:
APPROVED AS TO FORM AND LEGALITY:
Vicki Ganske, Senior Assistant City Attorney
STATE OF TEXAS
COUNTY OF TARRAN`I' §
This instrument was acknowledged before me uii April 2020, by Fernando Costa, Assistant
City Manager of the City of Fora [)North, a Texas municipal corporation, on behalf of said
corporation.
Notary Public, State of Texas
DEED RESTRICTIONS - HOME Page 7
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
EXHIBIT "A"
Legal Description
Tract 1:
Being all of Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14, Block 11, FAIRMOUNT
ADDITION, an addition to the City of Fort Worth, Tarrant County, Texas, according to
plat recorded in Volume 63, Page 25, Deed Records of Tarrant County, Texas (DRTCT),
and being more particularly described as follows:
BEGINNING at a 5/8 inch iron rod with a plastic eap stamped "MMA" found at the
southeast corner of the aforementioned Lot 14, from which a 1 /2 inch iron rod with a plastic
cap stamped "FULTON" bears South 70°32'20" East a distance of 0.73 feet;
THENCE North 89' 59' 28" West, witb the south line of the aforementioned Lot 14, a
distance of 140.00 feet to PK nail with a shiner labeled "MMA" from which a 1 /2 inch iron
rod with a cap stamped "FULTON" bears South 85°45'43" East, a distance of 0.72 feet,
said PK nail in the east right of way line of $th Avenue (a called 8G foot right of way), for
corner;
THENCE North 00' 00' 5 1 " West, with the east righI of way line of 8th Avenue, and the
west line of Lots 14-1, Block 11; to a PK nail found vw+i th a shiner labeled "MMA", said
PK nail at the southeast corner of the
intersection of the aforementioned east right of way i ine of fit kr Avenue and the south right
of way line of Park Place Avenue (a cal led 60 foot right of way), for corner;
THENCE South 89' 59' 28" East, with the south right of way line of Park Place Avenue,
and the north line of Lot 1, a distance of 140.00 feet to the northeast corner of a 20-foot
public alley, and a PK nail with a slvner
labeled "MMA, from with a PK nail bm-s East 1.5 feet, for corner;
THENCE South 00" 00' 51" East, with the east line of Lots 1-14, Block 11, and the west
line of said 20-foot public alley, a distance of 350.00 feet to the POINT OF BEGINNING,
containing an area of 49,000 square
feet, or 1.125 acres of land.
Tract 2:
Being all of Lots 27, 28, and 29, Block 11, FAIRMOUNT ADDITION, an addition to the
City of Fort Worth, Tarrant County, Texas, according to the plat as recorded in Volume
63, Page 25, Deed Records of Tarrant County, Texas (DRTCT), and being more
particularly described as follows:
COMMENCING at a 1/2 inch iron rod found at the northeast corner of Lot 32, Block 11,
Fairmount Addition, said iron rod also being at the southeast intersection of the south right
of way line of Park Place Avenue (a called 60 foot right of way) and the west right of way
line of Hurley Avenue (a called 60 foot right of way);
DEED RESTRICTIONS - HOME Page 8
Everly Plaza, LLC - Everly Plaza Rev. 04/22/2020
THENCE South 00' 00' 51" East, with the west right of way line of Hurley Avenue, a
distance of 75.00 feet to a point at the northeast corner of Lot 29, Block 11, Fairmount
Addition and the POINT OF BEGINNING, from which a 1/2 iron rod with a cap stamped
"PRECISE" bears South 81° 48' 22" East, a distance of 1.36 feet;
THENCE South 00' 00' 51" East, continuing with the west right of way line of Hurley
Avenue and the east line of Lots 29-27, Block 11, Fairmount Addition, a distance of 75.00
feet to a point at the southeast corner of Lot 27, from which a 1/2 inch iron rod with a
plastic cap stamped PRECISE" bears South 81 ° 47' 12" 'East, a distance of 1.11 feet, for
corner;
THENCE North 89' 59' 28" West, departing the west right of way line of Hurley Avenue,
continuing with the south line of Lot 27, a distancr, of 140.00 Feet to a point at the southwest
corner of said Lot 27, said point in
the east line of a 20-Moot public alley, for comer;
THENCE North 00' 00' 51" West, with the east line of said 20-foot public alley and west
line of Lots 27-29, Block 11, Fairmount Addition; a distance of 75.00 tcc[ io a point, said
point located at the northwest corner of said Lot 29, for corner;
THENCE South 89' 59' 28" East, with the north line of said Lot 29, a distance of 140.00
feet to the POINT OF BEGINNING containing 10,500 squ�tre feet or 0.241 acres of land.
DEED RESTRICTIONS - HOME Page 9
Everly Plaza, LLC -- Everly Plaza Rev. 04/22/2020
HUD RIDER
This HUD RIDER is attached and made a part of the foregoing Deed Restrictions as of April 29,
2020, by Everly Plaza, LLC (`Borrower") and City of Fort Worth ("Agency").
WHEREAS, Borrower has obtained financing from Mason Joseph Company, Inc.
("Lender") for the benefit of the project known as Everly Plaza ("Project"), which Ioan is
secured by a Multifamily Deed of Trust, Assignment of Leases and Rents, and Security
Agreement ("Security Instrument") dated as of April 29, 2020 and recorded in Real Property
Records of Tarrant County, Texas ("Records") on , 2020 as Document
Number , and is insured by the United States Department of Housing
and Urban Development ("HUD");
WHEREAS, Borrower has received a loan of 110ME funds from the Agency, which
Agency is requiring certain restrictions regarding ir►e use of HOME. i-W ids be recorded against the
Project;
WHEREAS, HUD requires as a condition of its insuring Lender's financing to the
Project, that the lien and covenants of the foregoing Deed Restrictions be subordinated to the
lien, covenants, and enforcement of the Security Instrunieo1, and
WHEREAS, the Agency has agreed to subordinate the Deed Restrictions to the lien of
the Lender's loan in accordance with the tenns of this 14UD Rider,
NOW, THEREI-ORE, in consideration of the foreguAig and for other consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
(a) In the event ofany conflict between any provision contained elsewhere in the
Deed Restrictions and any provision contained in this HUD Rider, the provision contained
in this HUD Rider shall govern and be controlling in all respects as set forth more fully
herein.
(b) The following terins shall Piave the following definitions:
"Code" means the Luernal Revenue Code of 1986, as amended.
"HUD" means the United States Department of Housing and Urban Development.
"HUD Regulatory Agreement" means the Regulatory Agreement between Borrower and HUD
with respect to the Project, as the same may be supplemented, amended or modified from time to
time.
"Lender" means Mason Joseph Company, Inc., its successors and assigns.
"Mortgage Loan" means the mortgage loan made by Lender to the Borrower pursuant to the
Mortgage Loan Documents with respect to the Project.
DEED RESTRICTIONS - HOME Page 10
Everly Plaza, LLC -- Everly Plaza Rev. 04/22/2020
"Mortgage Loan Documents" means the Security Instrument, the HUD Regulatory Agreement
and all other documents required by HUD or Lender in connection with the Mortgage Loan.
"National Housing Act" means the National Housing Act of 1934, as amended.
"Program. Obligations" has the meaning set forth in the Security Instrument.
"Residual Receipts" has the meaning specified in the HUD Regulatory Agreement.
"Security Instrument" means the mortgage or deed of trust from Borrower in favor of Lender,
as the same may be supplemented, amended or modified.
"Surplus Cash" has the meaning specified in the HUD Regulatory Agreement.
(c) Notwithstanding anything in the Deed Restrictions to the contrary, the provisions
hereof are expressly subordinate to (i) the Mortgage Loan Documents, including without
limitation, the Security Instrument, and (ii) Program Obligations (the Mortgage Loan Documents
and Program Obligations are collectively referred to herein as the "HUD Rerlu:rements").
Borrower covenants that it will not take or permit any actiory that would result in a violation of
the Code, HUD Requirements or Restrictive Covenants. iri the event of any conflict between the
provisions of the Restrictive Covenants and the provisions of the HUD Requirements, HUD shall
be and remains entitled to enforce the HUD Requirements. Nom thstanding the foregoing,
nothing herein limits the Agency's ability to enforce the terms of die Deed Restrictions, provided
such terms do not conflict with statutory provisions of the rational Dousing Act or the
regulations related thereto. The Borrower represents -Lind warrants that to the best of Borrower's
knowledge the Deed Restrictions impose no terms or requirements that conflict with the National
Housing Act and related regulations.
(d) In the event of foreclosure (or deed in lieu of foreclosure), the Deed Restrictions
(includiug-without limitation, any arcl all land use covenants and/or restrictions contained herein)
shall automatically terminate.
(e) Borrower and the :agency acknowledge that Borrower's failure to comply with
the covenants provided in the Deecl Restrictions does not and shall not serve as a basis for default
under the HUD Requirements, Unless a default also arises under the HUD Requirements.
(f) Except for die Agency's reporting requirement, in enforcing the Restrictive
Covenants the Agency will not file any claim against the Project, the Mortgage Loan proceeds,
any reserve or deposit required by HUD in connection with the Security Instrument or HUD
Regulatory Agreement, or the rents or other income from the Project other than a claim against:
i. Available Surplus Cash, if the Borrower is a for -profit entity;
ii. Available distributions of Surplus Cash and residual receipts authorized for
release by HUD, if the Borrower is a limited distribution entity; or
iii. Available residual receipts authorized by HUD, if the Borrower is a non-profit
entity. or
DEED RESTRICTIONS - HOME Page 11
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
iv. A HUD -approved collateral assignment of any HAP contract.
(g) For so long as the Mortgage Loan is outstanding, Borrower and Agency shall not
further amend the Deed Restrictions, with the exception of clerical errors or administrative
correction of non -substantive matters, without HUD's prior written consent.
(h) Subject to the HUD Regulatory Agreement, the Agency may require the Borrower
to indemnify and hold the Agency harmless from all loss, cost, damage and expense arising from
any claim or proceeding instituted against Agency relating to the subordination and covenants set
forth in the Deed Restrictions, provided, however, that Borrower's obligation to indemnify and
hold the Agency harmless shall be limited to available Surplus Cash and/or residual receipts of
the Borrower.
(i) Intentionally Deleted.
BORROWER:
Everly Plaza, LLC,
a Texas limited liability company
By: Saigebrook Everly, LLC
a Texas limited liability company,
Lo
Lisa Stephens, (President
STATE OF TEXAS 3
COUNT' OF TARRANT
This insa-Lament was acknowledged before me on April , 2020 by Lisa Stephens, President of
Saigebrook Everly, LLC, a Texas limited liability company, the Managing Member of Everly Plaza, LLC,
a Texas limited 115jbility company, on behalf of said company.
Notary Public, State of Texas
[Signatures Pages Continue]
DEED RESTRICTIONS - HOME Page 12
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
AGENCY:
City of Fort Worth,
a Texas municipal corporation
In
Fernando Costa, Assistant City Manager
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on Apra! , 2020 by Fernando Costa, Assistant City
Manager of the City of Fort Worth, a Texas municipal corporation, ran behalf of said corporation.
Notary Public, State of Texas
DEED RESTRICTIONS - HOME Page 13
Everly Plaza, LLC — Everly Plaza Rev. 04/22/2020
EXHIBIT "M"
VAWA FORMS
EVERLY PLAZA, LLC
Notice of Occupancy Rights under the Violence Against Women Act (Form HUD-5380)
Model Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking (Form HUD-5381)
Emergency Transfer Request for Certain Victims of Domestic Violence, Dating Violence, Sexual Assault,
or Stalking (Form HUD-5383)
Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking and Alternate
Documentation. (Form HUD-5382)
Violence, Dating Violence or Stalking Lease Addendum (Form HUD-91067)
Where permitted by federal regulations, Developer may use its own forms so long as they meet the
requirements of the VAWA and its accompanying regulations. Developer is responsible for ensuring that
the proper forms and required actions are taken in compliance with VAWA and any applicable
regulations, and acknowledges that it is solely responsible for using the appropriate forms as they may be
changed from time to time.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 22
NOTICE OF OCCUPANCY RIGHTS UNDER U.S. Department of Housing and Urban Development
THE VIOLENCE AGAINST WOMEN ACT OMB Approval No. 2577-0286
Expires 06/30/2017
Everlj Plaza Apartments -
Notice of Occupancy Rights under the Violence Against Women A&
To all Tenants and Applicants
The Violence Against Women Act (VAWA) provides protections for victims of domestic
violence, dating violence, sexual assault, or stalking. VAWA protections are not only available
to women, but are available equally to all individuals regardless of sex, gender identity, or sexual
orientation.' The U.S. Department of Housing and Urban Development (HUD) is the Federal
agency that oversees that [insert name of program or rental assistance] is in compliance with
VAWA. This notice explains your rights under VAWA. A HUD -approved certification form is
attached to this notice. You can fill out this form to show that you are or have been a victim of
domestic violence, dating violence, sexual assault, or stalking, and that you wish to use your
rights under VAWA."
Protections for Applicants
If you otherwise qualify for assistance under [insert name of program or rental assistance],
you cannot be denied admission or denied assistance because you are or have been a victim of
domestic violence, dating violence, sexual assault, or stalking.
Protections for Tenants
1 The notice uses HP for housing provider but the housing provider should insert its name where HP is used.
HUD's program -specific regulations identify the individual or entity responsible for providing the notice of
occupancy rights.
2 Despite the name of this law, VAWA protection is available regardless of sex, gender identity, or sexual
orientation.
3 Housing providers cannot discriminate on the basis of any protected characteristic, including race, color, national
origin, religion, sex, familial status, disability, or age. HUD -assisted and HUD -insured housing must be made
available to all otherwise eligible individuals regardless of actual or perceived sexual orientation, gender identity, or
marital status.
Form HUD-5380
(06/2017)
2
If you are receiving assistance under linsert name of program or rental assistance], you may
not be denied assistance, terminated from participation, or be evicted from your rental housing
because you are or have been a victim of domestic violence, dating violence, sexual assault, or
stalking.
Also, if you or an affiliated individual of yours is or has been the victim of domestic violence,
dating violence, sexual assault, or stalking by a member of your household or any guest, you
may not be denied rental assistance or occupancy rights under [insert name of program or
rental assistance] solely on the basis of criminal activity directly relating to that domestic
violence, dating violence, sexual assault, or stalking.
Affiliated individual means your spouse, parent, brother, sister, or child, or a person to whom
you stand in the place of a parent or guardian (for example, the affiliated individual is in your
care, custody, or control); or any individual, tenant, or lawful occupant living in your household.
Removing the Abuser or Perpetrator from the Household
HP may divide (bifurcate) your lease in order to evict the individual or terminate the assistance
of the individual who has engaged in criminal activity (the abuser or perpetrator) directly relating
to domestic violence, dating violence, sexual assault, or stalking.
If HP chooses to remove the abuser or perpetrator, HP may not take away the rights of eligible
tenants to the unit or otherwise punish the remaining tenants. If the evicted abuser or perpetrator
was the sole tenant to have established eligibility for assistance under the program, HP must
allow the tenant who is or has been a victim and other household members to remain in the unit
for a period of time, in order to establish eligibility under the program or under another HUD
housing program covered by VAWA, or, find alternative housing.
Form HUD-5380
(06/2017)
In removing the abuser or perpetrator from the household, HP must follow Federal, State, and
local eviction procedures. In order to divide a lease, HP may, but is not required to, ask you for
documentation or certification of the incidences of domestic violence, dating violence, sexual
assault, or stalking.
Moving to Another Unit
Upon your request, HP may permit you to move to another unit, subject to the availability of
other units, and still keep your assistance. In order to approve a request, HP may ask you to
provide documentation that you are requesting to move because of an incidence of domestic
violence, dating violence, sexual assault, or stalking. If the request is a request for emergency
transfer, the housing provider may ask you to submit a written request or fill out a form where
you certify that you meet the criteria for an emergency transfer under VAWA. The criteria are:
(1) You are a victim of domestic violence, dating violence, sexual assault, or
stalking. If your housing provider does not already have documentation that you
are a victim of domestic violence, dating violence, sexual assault, or stalking, your
housing provider may ask you for such documentation, as described in the
documentation section below.
(2) You expressly request the emergency transfer. Your housing provider may
choose to require that you submit a form, or may accept another written or oral
request.
(3) You reasonably believe you are threatened with imminent harm from
further violence if you remain in your current unit. This means you have a
reason to fear that if you do not receive a transfer you would suffer violence in the
very near future.
3
Form HUD-5380
(06/2017)
IN
You are a victim of sexual assault and the assault occurred on the premises
during the 90-calendar-day period before you request a transfer. If you are a
victim of sexual assault, then in addition to qualifying for an emergency transfer
because you reasonably believe you are threatened with imminent harm from
further violence if you remain in your unit, you may qualify for an emergency
transfer if the sexual assault occurred on the premises of the property from which
you are seeking your transfer, and that assault happened within the 90-calendar-day
period before you expressly request the transfer.
HP will keep confidential requests for emergency transfers by victims of domestic violence,
dating violence, sexual assault, or stalking, and the location of any move by such victims and
their families.
HP's emergency transfer plan provides further information on emergency transfers, and HP must
make a copy of its emergency transfer plan available to you if you ask to see it.
Documenting You Are or Have Been a Victim of Domestic Violence, Dating Violence,
Sexual Assault or Stalking
HP can, but is not required to, ask you to provide documentation to "certify" that you are or have
been a victim of domestic violence, dating violence, sexual assault, or stalking. Such request
from HP must be in writing, and HP must give you at least 14 business days (Saturdays,
Sundays, and Federal holidays do not count) from the day you receive the request to provide the
documentation. HP may, but does not have to, extend the deadline for the submission of
documentation upon your request.
Form HUD-5380
(06/2017)
5
You can provide one of the following to HP as documentation. It is your choice which of the
following to submit if HP asks you to provide documentation that you are or have been a victim
of domestic violence, dating violence, sexual assault, or stalking.
0 A complete HUD -approved certification form given to you by HP with this notice, that
documents an incident of domestic violence, dating violence, sexual assault, or stalking.
The form will ask for your name, the date, time, and location of the incident of domestic
violence, dating violence, sexual assault, or stalking, and a description of the incident.
The certification form provides for including the name of the abuser or perpetrator if the
name of the abuser or perpetrator is known and is safe to provide.
® A record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or
administrative agency that documents the incident of domestic violence, dating violence,
sexual assault, or stalking. Examples of such records include police reports, protective
orders, and restraining orders, among others.
® A statement, which you must sign, along with the signature of an employee, agent, or
volunteer of a victim service provider, an attorney, a medical professional or a mental
health professional (collectively, "professional") from whom you sought assistance in
addressing domestic violence, dating violence, sexual assault, or stalking, or the effects of
abuse, and with the professional selected by you attesting under penalty of perjury that he
or she believes that the incident or incidents of domestic violence, dating violence, sexual
assault, or stalking are grounds for protection.
® Any other statement or evidence that HP has agreed to accept.
If you fail or refuse to provide one of these documents within the 14 business days, HP does not
have to provide you with the protections contained in this notice.
Form HUD-5380
(06/2017)
2
If HP receives conflicting evidence that an incident of domestic violence, dating violence, sexual
assault, or stalking has been committed (such as certification forms from two or more members
of a household each claiming to be a victim and naming one or more of the other petitioning
household members as the abuser or perpetrator), HP has the right to request that you provide
third -party documentation within thirty 30 calendar days in order to resolve the conflict. If you
fail or refuse to provide third -party documentation where there is conflicting evidence, HP does
not have to provide you with the protections contained in this notice.
Confidentiality
HP must keep confidential any information you provide related to the exercise of your rights
under VAWA, including the fact that you are exercising your rights under VAWA.
HP must not allow any individual administering assistance or other services on behalf of HP (for
example, employees and contractors) to have access to confidential information unless for
reasons that specifically call for these individuals to have access to this information under
applicable Federal, State, or local law.
HP must not enter your information into any shared database or disclose your information to any
other entity or individual. HP, however, may disclose the information provided if
You give written permission to HP to release the information on a time limited basis.
® HP needs to use the information in an eviction or termination proceeding, such as to evict
your abuser or perpetrator or terminate your abuser or perpetrator from assistance under
this program.
a A law requires HP or your landlord to release the information.
Form HUD-5380
(06/2017)
7
VAWA does not limit HP's duty to honor court orders about access to or control of the property.
This includes orders issued to protect a victim and orders dividing property among household
members in cases where a family breaks up.
Reasons a Tenant Eligible for Occupancy Rights under VAWA May Be Evicted or
Assistance May Be Terminated
You can be evicted and your assistance can be terminated for serious or repeated lease violations
that are not related to domestic violence, dating violence, sexual assault, or stalking committed
against you. However, HP cannot hold tenants who have been victims of domestic violence,
dating violence, sexual assault, or stalking to a more demanding set of rules than it applies to
tenants who have not been victims of domestic violence, dating violence, sexual assault, or
stalking.
The protections described in this notice might not apply, and you could be evicted and your
assistance terminated, if HP can demonstrate that not evicting you or terminating your assistance
would present a real physical danger that:
1) Would occur within an immediate time frame, and
2) Could result in death or serious bodily harm to other tenants or those who work on the
property.
If HP can demonstrate the above, HP should only terminate your assistance or evict you if there
are no other actions that could be taken to reduce or eliminate the threat.
Other Laws
VAWA does not replace any Federal, State, or local law that provides greater protection for
victims of domestic violence, dating violence, sexual assault, or stalking. You may be entitled to
Forme HUD-5380
(06/2017)
8
additional housing protections for victims of domestic violence, dating violence, sexual assault,
or stalking under other Federal laws, as well as under State and local laws.
Non -Compliance with The Requirements of This Notice
You may report a covered housing provider's violations of these rights and seek additional
assistance, if needed, by contacting or filing a complaint with [insert contact information for
any intermediary, if applicable] or [insert HUD field office].
For Additional Information
You may view a copy of HUD's final VAWA rule at [insert Federal Register link].
Additionally, HP must make a copy of HUD's VAWA regulations available to you if you ask to
see them.
For questions regarding VAWA, please contact [insert name of program or rental assistance
contact information able to answer questions on VAWA].
For help regarding an abusive relationship, you may call the National Domestic Violence Hotline
at 1-800-799-7233 or, for persons with hearing impairments, 1-800-787-3224 (TTY). You may
also contact [Insert contact information for relevant local organizations].
For tenants who are or have been victims of stalking seeking help may visit the National Center
for Victims of Crime's Stalking Resource Center at https://www.victimsofcrime.org/our-
programs/stalking-resource-center.
For help regarding sexual assault, you may contact [Insert contact information for relevant
organizations]
Victims of stalking seeking help may contact [Insert contact information for relevant
organizations].
Attachment: Certification form HUD-XXXXX [form approved for this program to be
included]
Form HUD-5380
(06/2017)
MODEL EMERGENCY TRANSFER PLAN FOR U.S. Department of Housing and Urban Development
VICTIMS OF DOMESTIC VIOLENCE, DATING OMB Approval No. 2577-0286
VIOLECE, SEXUAL ASSAULT, OR STALKING Expires 06/30/2017
Every Plaza Apartments
Model Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence,
Sexual Assault, or Stalking
Emergency Transfers
[Insert name of covered housing provider (acronym HP for purposes of this model plan)] is
concerned about the safety of its tenants, and such concern extends to tenants who are victims of
domestic violence, dating violence, sexual assault, or stalking. In accordance with the Violence
Against Women Act (VAWA), ' HP allows tenants who are victims of domestic violence, dating
violence, sexual assault, or stalking to request an emergency transfer from the tenant's current
unit to another unit. The ability to request a transfer is available regardless of sex, gender
identity, or sexual orientation.' The ability of HP to honor such request for tenants currently
receiving assistance, however, may depend upon a preliminary determination that the tenant is or
has been a victim of domestic violence, dating violence, sexual assault, or stalking, and on
whether HP has another dwelling unit that is available and is safe to offer the tenant for
temporary or more permanent occupancy.
This plan identifies tenants who are eligible for an emergency transfer, the documentation
needed to request an emergency transfer, confidentiality protections, how an emergency transfer
may occur, and guidance to tenants on safety and security. This plan is based on a model
'Despite the name of this law, VAWA protection is available to all victims of domestic violence, dating violence,
sexual assault, and stalking, regardless of sex, gender identity, or sexual orientation.
2 Housing providers cannot discriminate on the basis of any protected characteristic, including race, color, national
origin, religion, sex, familial status, disability, or age. HUD -assisted and HUD -insured housing must be made
available to all otherwise eligible individuals regardless of actual or perceived sexual orientation, gender identity, or
marital status.
Form HUD-5381
(06/2017)
N
emergency transfer plan published by the U.S. Department of Housing and Urban Development
(HUD), the Federal agency that oversees that [insert name of program or rental assistance
here] is in compliance with VAWA.
Eligibility for Emergency Transfers
A tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking, as
provided in HUD's regulations at 24 CFR part 5, subpart L is eligible for an emergency transfer,
if. the tenant reasonably believes that there is a threat of imminent harm from further violence if
the tenant remains within the same unit. If the tenant is a victim of sexual assault, the tenant may
also be eligible to transfer if the sexual assault occurred on the premises within the 90-calendar-
day period preceding a request for an emergency transfer.
A tenant requesting an emergency transfer must expressly request the transfer in accordance with
the procedures described in this plan.
Tenants who are not in good standing may still request an emergency transfer if they meet the
eligibility requirements in this section.
Emergency Transfer Request Documentation
To request an emergency transfer, the tenant shall notify HP's management office and submit a
written request for a transfer to [HP to insert location]. HP will provide reasonable
accommodations to this policy for individuals with disabilities. The tenant's written request for
an emergency transfer should include either:
1. A statement expressing that the tenant reasonably believes that there is a threat of
imminent harm from further violence if the tenant were to remain in the same dwelling
unit assisted under HP's program; OR
form HUD-5381
(06/2017)
3
2. A statement that the tenant was a sexual assault victim and that the sexual assault
occurred on the premises during the 90-calendar-day period preceding the tenant's
request for an emergency transfer.
Confidentiality
HP will keep confidential any information that the tenant submits in requesting an emergency
transfer, and information about the emergency transfer, unless the tenant gives HP written
permission to release the information on a time limited basis, or disclosure of the information is
required by law or required for use in an eviction proceeding or hearing regarding termination of
assistance from the covered program. This includes keeping confidential the new location of the
dwelling unit of the tenant, if one is provided, from the person(s) that committed an act(s) of
domestic violence, dating violence, sexual assault, or stalking against the tenant. See the Notice
of Occupancy Rights under the Violence Against Women Act For All Tenants for more
information about HP's responsibility to maintain the confidentiality of information related to
incidents of domestic violence, dating violence, sexual assault, or stalking.
Emergency Transfer Timing and Availability
HP cannot guarantee that a transfer request will be approved or how long it will take to process a
transfer request. HP will, however, act as quickly as possible to move a tenant who is a victim of
domestic violence, dating violence, sexual assault, or stalking to another unit, subject to
availability and safety of a unit. If a tenant reasonably believes a proposed transfer would not be
safe, the tenant may request a transfer to a different unit. if a unit is available, the transferred
tenant must agree to abide by the terms and conditions that govern occupancy in the unit to
which the tenant has been transferred. HP may be unable to transfer a tenant to a particular unit
if the tenant has not or cannot establish eligibility for that unit.
Form HUD-5381
(06/2017)
If HP has no safe and available units for which a tenant who needs an emergency is eligible, HP
will assist the tenant in identifying other housing providers who may have safe and available
units to which the tenant could move. At the tenant's request, HP will also assist tenants in
contacting the local organizations offering assistance to victims of domestic violence, dating
violence, sexual assault, or stalking that are attached to this plan.
Safety and Security of Tenants
Pending processing of the transfer and the actual transfer, if it is approved and occurs, the tenant
is urged to take all reasonable precautions to be safe.
Tenants who are or have been victims of domestic violence are encouraged to contact the
National Domestic Violence Hotline at 1-800-799-7233, or a local domestic violence shelter, for
assistance in creating a safety plan. For persons with hearing impairments, that hotline can be
accessed by calling 1-800-787-3224 (TTY).
Tenants who have been victims of sexual assault may call the Rape, Abuse & Incest National
Network's National Sexual Assault Hotline at 800-656-HOPE, or visit the online hotline at
https:Hohl.rainn.org/online/.
Tenants who are or have been victims of stalking seeking help may visit the National Center for
Victims of Crime's Stalking Resource Center at https://www.victimsoferime.org/our-
programs/stalking-resource-center.
Attachment: Local organizations offering assistance to victims of domestic violence, dating
violence, sexual assault, or stalking.
n
Form HUD-5381
(06/2017)
EMERGENCY TRANSFER U.S. Department of Housing OMB Approval No. 2577-0286
REQUEST FOR CERTAIN and Urban Development Exp. 06/30/2017
VICTIMS OF DOMESTIC
VIOLENCE, DATING VIOLENCE,
SEXUAL ASSAULT, OR STALKING
Purpose of Form: If you are a victim of domestic violence, dating violence, sexual assault, or stalking,
and you are seeking an emergency transfer, you may use this form to request an emergency transfer and
certify that you meet the requirements of eligibility for an emergency transfer under the Violence Against
Women Act (VAWA). AIthough the statutory name references women, VAWA rights and protections
apply to all victims of domestic violence, dating violence, sexual assault or stalking. Using this form does
not necessarily mean that you will receive an emergency transfer. See your housing provider's
emergency transfer plan for more information about the availability of emergency transfers.
The requirements you must meet are:
(1) You are a victim of domestic violence, dating violence, sexual assault, or stalking.
If your housing provider does not already have documentation that you are a victim of
domestic violence, dating violence, sexual assault, or stalking, your housing provider may
ask you for such documentation. In response, you may submit Form H[ JD-53 82, or any
one of the other types of documentation listed on that Form.
(2) You expressly request the emergency transfer. Submission of this form confirms
that you have expressly requested a transfer. Your housing provider may choose to require
that you submit this form, or may accept another written or oral request. Please see your
housing provider's emergency transfer plan for more details.
(3) You reasonably believe you are threatened with imminent harm from further
violence if you remain in your current unit. This means you have a reason to fear that
if you do not receive a transfer you would suffer violence in the very near future.
OR
You are a victim of sexual assault and the assault occurred on the premises during
the 90-calendar-day period before you request a transfer. If you are a victim of sexual
assault, then in addition to qualifying for an emergency transfer because you reasonably
believe you are threatened with imminent harm from further violence if you remain in your
unit, you may qualify for an emergency transfer if the sexual assault occurred on the
premises of the property from which you are seeking your transfer, and that assault
happened within the 90-calendar-day period before you submit this form or otherwise
expressly request the transfer.
Submission of Documentation: If you have third -party documentation that demonstrates why you are
eligible for an emergency transfer, you should submit that documentation to your housing provider if it is
safe for you to do so. Examples of third party documentation include, but are not Iimited to: a letter or
other documentation from a victim service provider, social worker, legal assistance provider, pastoral
counselor, mental health provider, or other professional from whom you have sought assistance; a current
restraining order; a recent court order or other court records; a law enforcement report or records;
communication records from the perpetrator of the violence or family members or friends of the
perpetrator of the violence, including emails, voicemails, text messages, and social media posts.
Form HUD-5383
(06/2017)
2
Confidentiality: All information provided to your housing provider concerning the incident(s) of
domestic violence, dating violence, sexual assault, or stalking, and concerning your request for an
emergency transfer shall be kept confidential. Such details shall not be entered into any shared database.
Employees of your housing provider are not to have access to these details unless to grant or deny VAWA
protections or an emergency transfer to you. Such employees may not disclose this information to any
other entity or individual, except to the extent that disclosure is: (i) consented to by you in writing in a
time -limited release; (ii) required for use in an eviction proceeding or hearing regarding termination of
assistance; or (iii) otherwise required by applicable law.
TO BE COMPLETED BY OR ON BEHALF OF THE PERSON REQUESTING A TRANSFER
1. Name of victim requesting an emergency transfer:
2. Your name (if different from victim
3. Name(s) of other family member(s) listed on the lease:
4. Name(s) of other family member(s) who would transfer with the victim:
5. Address of location from which the victim seeks to transfer:
6. Address or phone number for contacting the victim:
7. Name of the accused perpetrator (if known and can be safely disclosed):
8. Relationship of the accused perpetrator to the victim:
9. Date(s), Time(s) and location(s) of incident(s):
10. Is the person requesting the transfer a victim of a sexual assault that occurred in the past 90
days on the premises of the property from which the victim is seeking a transfer? If yes, skip
question 11. If no, fill out question 11.
It. Describe why the victim believes they are threatened with imminent harm from further
violence if they remain in their current unit.
12. If voluntarily provided, list any third -party documentation you are providing along with this
notice:
This is to certify that the information provided on this form is true and correct to the best of my knowledge,
and that the individual named above in Item I meets the requirement laid out on this form for an emergency
transfer. I acknowledge that submission of false information could jeopardize program eligibility and could
be the basis for denial of admission, termination of assistance, or eviction.
Signature
igned on (Date)
Form HUD-5383
(06/2017)
CERTIFICATION OF U.S. Department of Housing OMB Approval No. 2577-0286
DOMESTIC VIOLENCE, and Urban Development Exp. 06/30/2017
DATING VIOLENCE,
SEXUAL ASSAULT, OR STALKING,
AND ALTERNATE DOCUMENTATION
Purpose of Form: The Violence Against Women Act ("VAWA") protects applicants, tenants, and
program participants in certain HUD programs from being evicted, denied housing assistance, or
terminated from housing assistance based on acts of domestic violence, dating violence, sexual assault, or
stalking against them. Despite the name of this law, VAWA protection is available to victims of domestic
violence, dating violence, sexual assault, and stalking, regardless of sex, gender identity, or sexual
orientation.
Use of This Optional Form: If you are seeking VAWA protections from your housing provider, your
housing provider may give you a written request that asks you to submit documentation about the incident
or incidents of domestic violence, dating violence, sexual assault, or stalking.
hi response to this request, you or someone on your behalf may complete this optional form and submit it
to your housing provider, or you may submit one of the following types of third -party documentation:
(1) A document signed by you and an employee, agent, or volunteer of a victim service provider, an
attorney, or medical professional, or a mental health professional (collectively, "professional") from
whom you have sought assistance relating to domestic violence, dating violence, sexual assault, or
stalking, or the effects of abuse. The document must specify, under penalty of perjury, that the
professional believes the incident or incidents of domestic violence, dating violence, sexual assault, or
stalking occurred and meet the definition of "domestic violence," "dating violence," "sexual assault," or
"stalking" in HUD's regulations at 24 CFR 5.2003.
(2) A record of a Federal, State, tribal, territorial or local law enforcement agency, court, or
administrative agency; or
(3) At the discretion of the housing provider, a statement or other evidence provided by the applicant or
tenant.
Submission of Documentation: The time period to submit documentation is 14 business days from the
date that you receive a written request from your housing provider asking that you provide documentation
of the occurrence of domestic violence, dating violence, sexual assault, or stalking. Your housing
provider may, but is not required to, extend the time period to submit the documentation, if you request an
extension of the time period. If the requested information is not received within 14 business days of when
you received the request for the documentation, or any extension of the date provided by your housing
provider, your housing provider does not need to grant you any of the VAWA protections. Distribution or
issuance of this form does not serve as a written request for certification.
Confidentiality: All information provided to your housing provider concerning the incident(s) of
domestic violence, dating violence, sexual assault, or stalking shall be kept confidential and such details
shall not be entered into any shared database. Employees of your housing provider are not to have access
to these details unless to grant or deny VAWA protections to you, and such employees may not disclose
this information to any other entity or individual, except to the extent that disclosure is: (i) consented to
by you in writing in a time -limited release; (ii) required for use in an eviction proceeding or hearing
regarding termination of assistance; or (iii) otherwise required by applicable law.
Form HUD-5382
(06/2017)
2
TO BE COMPLETED BY OR ON BEHALF OF THE VICTIM OF DOMESTIC VIOLENCE
DATING VIOLENCE, SEXUAL ASSAULT, OR STALKING
1. Date the written request is received by victim:
2. Name of victim:
3. Your name (if different from victim's):
4. Name(s) of other family member(s) listed on the lease:
5. Residence of victim:
6. Name of the accused perpetrator (if known and can be safely disclosed):
7. Relationship of the accused perpetrator to the victim:
8. Date(s) and times(s) of incident(s) (if known):
10. Location of incident(s):
In your own words, briefly describe the incident(s):
This is to certify that the information provided on this form is true and correct to the best of my knowledge
and recollection, and that the individual named above in Item 2 is or has been a victim of domestic violence,
dating violence, sexual assault, or stalking. I acknowledge that submission of false information could
jeopardize program eligibility and could be the basis for denial of admission, termination of assistance, or
eviction.
Signature
Signed on (Date)
Public Reporting Burden: The public reporting burden for this collection of information is estimated to
average l hour per response. This includes the time for collecting, reviewing, and reporting the data. The
information provided is to be used by the housing provider to request certification that the applicant or
tenant is a victim of domestic violence, dating violence, sexual assault, or stalking. The information is
subject to the confidentiality requirements of VAWA. This agency may not collect this information, and
you are not required to complete this form, unless it displays a currently valid Office of Management and
Budget control number.
Form. HUD-5382
(06/2017)
VIOLENCE, DATING VIOLENCE U.S. Department of Housing OMB Approval No. 2502-0204
OR STALKING and Urban Development Exp. 6/30/2017
Office of Housing
LEASE ADDENDUM
VIOLENCE AGAINST WOMEN AND JUSTICE DEPARTMENT REAUTHORIZATION ACT OF 2005
TENANT LANDLORD UNIT NO. & ADDRESS
Everly Plaza Apartments
This lease addendum adds the following paragraphs to the Lease between the above referenced
Tenant and Landlord.
Purpose of the Addendum
The lease for the above referenced unit is being amended to include the provisions of the
Violence Against Women and Justice Department Reauthorization Act of 2005 (VAWA).
Conflicts with Other Provisions of the Lease
In case of any conflict between the provisions of this Addendum and other sections of the Lease,
the provisions of this Addendum shall prevail.
Term of the Lease Addendum
The effective date of this Lease Addendum is This Lease Addendum shall
continue to be in effect until the Lease is terminated.
VAWA Protections
1. The Landlord may not consider incidents of domestic violence, dating violence or stalking as
serious or repeated violations of the lease or other "good cause" for termination of assistance,
tenancy or occupancy rights of the victim of abuse.
2. The Landlord may not consider criminal activity directly relating to abuse, engaged in by a
member of a tenant's household or any guest or other person under the tenant's control, cause
for termination of assistance, tenancy, or occupancy rights if the tenant or an immediate
member of the tenant's family is the victim or threatened victim of that abuse.
3. The Landlord may request in writing that the victim, or a family member on the victim's
behalf, certify that the individual is a victim of abuse and that the Certification of Domestic
Violence, Dating Violence or Stalking, Form HUD-91066, or other documentation as noted
on the certification form, be completed and submitted within 14 business days, or an agreed
upon extension date, to receive protection under the VAWA. Failure to provide the
certification or other supporting documentation within the specified timeframe may result in
eviction.
Tenant Date
Landlord Date
Form HUD-91067
(912008)
EXH1131T "N"
HOME REQUIREMENTS
EVERLY PLAZA, LLC
Capitalized terms not defined herein shall have meanings assigned to them in the Contract.
Developer shall ensure that the Property Manager receives a copy of the HOME Contract which enforces the
HOME Regulations. Below is an outline of the HOME Requirements that the Property Manager will be
responsible for while managing the HOME Units in the project. Some of the Capitalized terms not defined herein
shall have meanings assigned them in the HOME Contract.
1. Property Manager acknowledges that the project operates under the HOME Program's Section 504
requirements. Accordingly, Property Manager shall exercise its commercially reasonable efforts to take
the following steps to:
Comply with Section 504 requirements and other federal accessibility requirements. The project
must contain i Accessible Units. Of these 5 must be accessible to individuals with mobility
impairment, and 2 must be accessible to individuals with visual impairments.
2. Property Manager will follow the procedures given by Developer to rent HOME Units to tenants who
have incomes at or below 80% AMI; provided however, the first tenant to occupy a High HOME Unit,
as defined in the HOME Contract, must be a tenant whose annual income adjusted for family size does
not exceed 60% of AMI.
3. Property Manager must manage the HOME Units as set forth in the chart below to ensure that they are
occupied by tenants that are either High HOME Eligible Tenants or Low HOME Eligible Tenants as
described in the chart. Of the 6 HOME Units, 4 must be HIGH HOME Units and 2 must be LOW HOME
Units. The Low HOME Units must be occupied by households earning at or below 50% AMI. These
very low income tenants must occupy HOME Units at or below the Low HOME Rent. The mix of
bedroom units for the HOME Units is shown on the chart below. The mix of bedrooms of the HOME
Units must be proportional to the overall bedroom mix of all the units in the project. Property Manager
must manage the HOME Units in accordance with the chart, the HOME Requirements and the guidelines
contained in the Managing Rental Unit Mix Under HOME published by HUD at:
https://files,hudexchan e.info/resources/documents/Managiny-Rental-Unit-Mix-Under-HOME.pdf.
HOME UNIT MTX
Proposed Units
64 I -BR
24 2-BR
(88 total)
High HOME Units
3 1-BR
12-BR
(4 total)*
Low HOME Units
1 I -BR
l 2-BR
(2 total
*The HOME Units may be designated as floating, if the HOME Units are comparable to the non -
assisted units in the project.
4. Property Manager must notify Developer in writing within 30 days if any HOME Unit is occupied by a
tenant who is not income eligible, or if any HOME Unit remains vacant for more than 90 days.
5. The HOME Units are floating. When a "floating" unit is changed within the project, the newly designated
"floating" unit must be comparable to the non -HOME assisted units.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 23
6. Property Manager must charge the appropriate High HOME and Low HOME rents and not charge rents
in excess of the HOME Program rents for any given year. These program rents change annually and City
will provide Developer and Property Manager with updated HOME rent limits so that rents may be
adjusted (not to exceed the maximum HOME rent Iimits). For projects that have floating HOME Units,
per HUD regulations, changes may need to be made where instances of tenant's income either rises above
or falls below certain thresholds. Property Manager should refer to the Managing Rental Unit Mix Under
HOME found at https://files.hudexchange.info/resources/documents/Managing-Rental-Unit-Mix-Under-
HOME.pdf for guidance. Property Manager should retain necessary documentation to demonstrate that
each HOME Unit is occupied by an income -eligible tenant. General rental housing records must be kept
on -file for 5 years after the Affordability Period, as defined in the HOME Contract, ends.
7. Before executing any lease for a HOME Unit, Property Manager must verify all new tenants' income
eligibility using the annual income definition in 24 CFR 5.609. Income documentation must be sufficient
to show that a tenant is a HOME Eligible Household. Tenant 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 61 year of the Affordability Period. Documentation for tenant income eligibility
verifications for other than the initial lease and the 6th year of the Affordability Period shall be a City
approved income self -certification form. Property Manager shall use the most current HUD Income
Guidelines and Technical Guidance for Determining Income and Allowances to determine tenant
eligibility.
8. Property Manager shall maintain copies of Tenant Documentation and all tenant self -certification forms
as required under the HOME Contract.
9. Property Manager shall submit for City approval a sample tenant lease prior to accepting tenant
applications. This sample lease must include:
a. Tenant must be given at least 30 days written notice before rent increases may be implemented,
and 30 days written notice must be given notifying the tenant must vacate the unit.
b. The lease term for a HOME Unit must be for at least 1 year, unless the tenant and Property Manager
agree on a shorter term.
c. Tenant rents may not increase until the original lease expires, or until 1 year anniversary of tenant
entering into the Iease, whichever occurs first.
d. HUD publishes the HIGH and LOW HOME rents annually, and Property Manager should use the
numbers provided to calculate rents for the HOME Units.
e. Maximum allowable HOME rents must be reduced if the tenant pays utilities.
f. Tenant lease must inform tenant that their income will be reexamined annually, either at the
anniversary of the initial income verification, or at lease renewal.
g. Tenant lease must explicitly state that their rent may increase if the tenant is placed in a HOME
Unit and at the time of income recertification, their income increases above the required thresholds.
10. Rents charged to tenants are subject to the HOME Regulations at 24 CFR 92.252 (a) and (b). Under no
circumstances may the maximum rental amounts charged to tenants of HOME Units exceed the High
Home Rent minus monthly allowances for utilities and services (excluding telephone) established by
HUD. Property Manager agrees to abide by HUD -approved schedules of HOME rent levels and locally
adopted utility allowances published by the local housing authority. Property Manager should keep
records that include documentation to back up rent levels and utility allowances.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 24
11. Property Manager must have a tenant selection policy which provides for:
a. The selection of tenants from a written waiting list in the chronological order of their application,
insofar as is practicable;
b. The prompt written notification to any rejected applicant providing the grounds for such rejection;
and bi-lingual leasing and management assistance.
c. Ensure that holders of rental assistance subsidies (such as HUD's Housing Choice Voucher or
similar subsidy) are not excluded from renting a unit in the Required Improvements.
d. The tenant selection policy must address non-discrimination and affirmative marketing per federal
guidelines.
e. Market accessible units in the following order:
1. Market within the property to persons requiring an accessible unit.
2. Reference waiting list to check for persons requiring accessible unit.
3. Market to general community for persons requiring accessible unit.
d. Market to persons that do not require accessible unit.
The tenant selection policy must address managing HOME Unit mix under HOME Regulations. The
tenant selection policy must comply with state and local tenant/landlord laws.
Property Manager shall adopt affirmative marketing procedures and requirements for the 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, without regard for sex,
age, race, color, creed, nationality, national origin, religion, handicap status, disability, familial status,
sexual orientation, gender identity, gender expression or transgender, are given an equal opportunity to
participate in the project. The procedures and requirements must also include the designation of an
individual that will be responsible for marketing the project and establishing a clear application screening
plan and the maintenance of documentation and records to evidence affirmative marketing procedures
have been implemented. City shall have no responsibility with regard to affirmative marketing of the
project. Affirmative marketing procedures shall be submitted to City for approval prior to implementation.
12. Property Manager shall abide by all federal non-discrimination and fair housing laws.
13. Property Manager understands and agrees that it will be subject to monitoring by City for compliance with
the HOME Regulations for the duration of the 20 year Affordability Period. Property Manager will provide
reports and access to project files as requested by City during the Affordability Period and for 5 years after
the end of the Affordability Period, and will meet all the reporting requirements set out in the HOME
Contract. These requirements shall survive the early termination or expiration of the HOME Contract.
City shall have access at all reasonable hours to the Property Manager's offices and records dealing with
the HOME Units, and its officers, directors, agents, employees, and contractors for the purpose of such
monitoring.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 25
EXHIBIT "O"
REQUIREMENTS FOR PERMANENT SUPPORTIVE HOUSING UNITS
EVE, RLY PLAZA, LLC
Capitalized terms not defined herein shall have meanings assigned to them in the Contract.
The purpose of the PSH Units is to reduce the population of chronically homeless persons in the City by
combining rental assistance with supportive services so that formerly homeless tenants can maintain stable
housing. The scope of the supportive services is expected to, at a minimum, include regular on -site visits by a
case manager with experience in providing case management to homeless and formerly homeless persons.
1. PSH Tenants must meet the HUD definition of chronically homeless and must be selected from the
prioritized Continuum of Care for TX-601 Fort Worth/Arlington/Tarrant County ("CoC") permanent
supportive housing list maintained by the Tarrant County Homeless Coalition ("TCHC")
2. Developer is responsible for securing the rental assistance and accompanying supportive services for the
PSH Tenants from the CoC. Developer shall have been in contact with the CoC and/or TCHC for the
rental assistance for the PSH Tenants by the time of initial lease -up of the project so that the PSH Units
may be leased as soon as practicable.
3. If requested, Developer will provide onsite space to be used by staff members providing the supportive
services, as well a telephone line and internet access, sufficient for the staff member to access the
Homeless Management Information System ("HMIS") maintained by the CoC. The staff members
providing the supportive services will coordinate with Property Manager on scheduling space needs.
d. Property Manager will coordinate with TCHC or the staff member of the agency providing the rental
assistance regarding selection and placement of PSH Tenants to ensure 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 and any requirements related to the rental assistance. Property
Manager will not unreasonably deny housing to eligible homeless persons who otherwise meet the rental
assistance providers' standards for services.
5. Property Manager will promptly notify TCHC and the agency providing the rental assistance in writing
of the specific date when lease -up of the project will begin so that a referral and coordination process for
potential tenants for the PSH Units can be initiated.
6. Developer must contact TCHC and the agencies providing the rental assistance for referrals when a PSH
Unit is available.
6.1 At the time of initial lease -up and any time afterwards when the Property Manager is notified by a
PSH Tenant of their intent to vacate or determines that the PSH Tenant has vacated the unit without
notice, the Property Manager will hold the PSH Unit available for referral from the CoC for 30 days
from the date TCHC and the agency supplying the rental assistance is notified in writing by the
Property Manager of the PSH Unit's availability.
6.2 Developer and its Property Manager must make all reasonable good faith efforts to process lease
applications in a timely manner to avoid exceeding the 30-day referral period and must document
such efforts. If within the referral period, no eligible PSH Tenant is referred, applies for, or executes
a lease for an available PSH Unit, the Developer may lease such PSH Unit to a non-PSH tenant.
Developer will provide to City each month a summary of PSH Unit leasing efforts with the property
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 26
financial reporting package including any inability to lease a PSH Unit during the preceding month.
6.3 In order to maintain the 8 PSH Units committed to by the Developer, if a PSH Unit is leased to a
non-PSH Tenant under the conditions described in Section 6.1, the next available similar sized unit
as the one leased to a non-PSH Tenant must be made available for an eligible PSH Tenant. The
Property Manager must notify TCHC and any agency supplying the rental assistance in writing or
by email of the unit's availability and hold the unit for referral from the CoC for 30 days from the
date TCHC and any agency supplying rental assistance are notified by Developer of the unit's
availability.
7. Developer shall promptly notify in writing and coordinate with TCHC and the agency supplying the rental
assistance in cases of any PSH Tenant's financial hardship, lease violation, or any other circumstances
deemed appropriate by Developer or Property Manager, to avoid involuntary termination of PSH tenancies
to the maximum extent consistent with sound management of the project.
8. Developer is responsible for all notices of PSH Unit availability to the CoC, TCHC or any agency
providing rental assistance for the PSH Tenants in order to timely fill any vacancy of a PSH Unit.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS Rev. 04/28/2020
Everly Plaza, LLC — Everly Plaza Page 27
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 01/14/20 M&C FILE NUMBER: M&C 20-0011
LOG NAME: 19EVERLY PLAZA SENIOR APARTMENTS
SUBJECT
Authorize Execution of a Contract with Everly Plaza, LLC for HOME Investment Partnerships Program Grant Funds in the Amount of
$1,000,000.00 in the Form of a Subordinate Loan for the Development of the Everly Plaza Apartments Located at 1801-1821 8th Avenue
(COUNCIL DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager or his designee to execute a contract with Everly Plaza, LLC for HOME Investment Partnerships Program grant
funds in the amount of $1,000,000.00 in the form of a subordinate loan for the development of the Everly Plaza Apartments located at 1801-1821
8th Avenue for a three year term beginning on the date of execution of the contract;
2. Authorize the City Manager or his designee to execute all other related contracts or documents necessary for lending activities;
3. Authorize the City Manager or his designee to extend the contract for the HOME funds for two one-year extensions if such extensions are
necessary for completion of the project, and to extend the other contracts for lending activities as necessary for the development of the project;
4. Authorize the City Manager or his designee to amend the contracts for HOME funds and lending activities if necessary to achieve project goals
provided that the amendments are within the scope of the project and in compliance with City policies and applicable laws and regulations
governing the use of federal funds; and
5. Authorize the substitution of current and prior funding years in order to meet commitment, disbursement and expenditure deadlines for grant
funds from the United States Department of Housing and Urban Development.
DISCUSSION:
On February 12, 2019, the City Council approved Resolution No. 5056-02-2019 supporting the application of Everly Plaza, LLC to the Texas
Department of Housing and Community Affairs (TDHCA) for 2019 Competitive (9%) Housing Tax Credits for the development of the Everly Plaza
Apartments, a new 88-unit senior mixed income multifamily complex located at 1801-1821 8th Avenue in the City's Near Southside Medical
District (M&C G-19489). The development received an award of tax credits from TDHCA in July 2019.
On August 6, 2019, the City Council approved the City's 2019-2020 Action Plan for submission to the United States Department of Housing and
Urban Development (HUD), which included $1,000,000.00 in HOME Investment Partnerships Program (HOME) grant funds for the development of
the Everly Plaza Apartments (M&C 19-0016).
Staff recommends execution of a contract with Everly Plaza, LLC for a subordinate loan of HOME funds in the amount of $1,000,000.00 for the
development of the Everly Plaza Apartments based on the following terms and conditions:
Loan Terms:
1. Loan term to commence on execution of the loan documents and terminate at the end of 40 years, or coterminus with the end of the term of
the HUD -insured first lien loan for the project. Annual interest only payments to commence 12 months after conversion. Final payment of
principal and any unpaid interest will be due 40 years after project conversion, or coterminous with final payment date of the HUD -insured
permanent loan;
2. Interest rate of one percent during construction phase; After conversion interest rate of one percent or the Applicable Federal Rate,
whichever is less;
3. HOME loan to be subordinate to the permanent financing for the project;
4. Designate HOME -assisted units according to the HOME regulations with a 20 year Affordability Period; and
5. Payment of the HOME funds and performance of the HOME requirements to be secured by a deed of trust and HOME Deed Restrictions
through the Affordability Period. Deed of Trust to continue to secure payment throughout the remaining loan term after the expiration of the
Affordability Period.
This expenditure of HOME funds is conditioned upon the following;
1. Satisfactory underwriting in accordance with HUD guidance for use of HOME funds;
2. Equity, construction and permanent financing acceptable to City;
3. Satisfactory completion of 24 CFR Part 58 environmental review;
4. Receipt of authorization to use grant funds from HUD; and
5. Closing on equity and all other financing for the development.
The Action Plan funding years selected may vary and be substituted in order to expend oldest grant funds first. A public comment period for the
2019-2020 Action Plan was held from July 1, 2019 to July 31, 2019. Any comments are maintained by the Neighborhood Services Department.
The project is located in Council District 9, Mapsco Grid: 76Q.
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 for verifying sufficiency of funding
before disbursement. This is a reimbursement grant.
Submitted for City Manager's Office b� Fernando Costa 6122
Originating Business Unit Head: Victor Turner 8187
Additional Information Contact: Chad La Roque 2661
Diana Carranza 7369