HomeMy WebLinkAboutContract 27169 CITY SECRETARY ,-
STATE OF TEXAS § CONTRACT NO.
���
COUNTY OF TARRANT §
THIS contract is made and entered into by and between the City of Fort Worth ("City"), acting
by and through Joe Paniagua, its duly authorized Assistant City Manager, and Texas Housing and
Economic Resources, Inc. ("Contractor"), by and through Nehemiah Davis, its duly authorized Board
President. Contractor's business address is 1801 Evans Street, Fort Worth, Texas 76104.
WHEREAS, the City of Fort Worth ("City").has received grant monies from the United States
Department of Housing and Urban Development ("HUD") through the Home Investment Partnerships
Program ("HOME") funds, Nos. M-97-MC-48-0204 and M-00-MC-48-0204, with which the City
desires to promote activities that expand the supply of affordable housing and the development of
partnerships among the City, local governments, local lenders, private industry and neighborhood based,
nonprofit housing organizations; and
WHEREAS, the primary purpose of the HOME program pursuant to the National Affordable
Housing Act of 1990 ("NAHA") and 24 CFR 92, ("the Regulations") is to benefit low and very-low
income citizens by providing them with affordable housing; and
WHEREAS, Contractor, a corporation managed by a volunteer Board of Directors, is working
to revitalize distressed neighborhoods in Fort Worth and to increase the number of decent, affordable
housing units available to low and very-low income families and individuals; and
WHEREAS, Council has approved funding for the Glen Eden project, in the amount of Two
Hundred Seventy-three Thousand, Five Hundred and No/100 Dollars ($273,500.00);
NOW, THEREFORE, THIS AGREEMENT FURTHER WITNESSETH:
1 GENERAL PROVISIONS
1.1 Purpose and Program Funding
1.1.1 The express purpose of this agreement is to provide Contractor with supplementary
financing in the form of a loan (HOME funds) from the Affordable Housing Development Fund
(AHDF) not to exceed Two Hundred Seventy-three Thousand, Five Hundred and No/100
Dollars, ($273,500.00).
1.1.2 The funds may be used for the following activities in connection with the planned Glen
Eden project: 1) clearing of land; 2) topographic survey; 3) MIA appraisal/market study; 4)
Phase I environmental study; 5) legal fees; 6) city permits and platting fees; 7) architect and
engineer fees and surveys; 8); construction feasibility assessments; 9) accounting; and 10)
miscellaneous contingencies.
1.1.3 This project is to develop 125 buildable lots for sale to individual homeowners or
experienced homebudders with a proven track record of offering quality home construction.
"Program Summary" - Attachment A. �(�� (� p e
Page 1 00 FF �DQ�
1.1.4 The funds shall be disbursed in two stages: Predevelopment Stage I(Stage.I) and
Predevelopment Stage II (Stage II).
1.1.5 Stage I funding in an amount not to exceed$25,800 is to cover the following "Soft Costs":
® Clearing of Land $ 7,500
® Topographic Survey $ 8,000
® *MAI Appraisal/Market Study $ 7,500
® Phase I Environmental Study $ 1,800
• ' Miscellaneous and Contingencies 1,000
$25,800.
*Member of American Institute of Real Estate Appraisers
1.1.6 Contractor will submit copies of all of the completed studies listed in Subsection 1.1.5 to the
city within 10 days of Contractor's receipt of same.
1.1.7 Upon receipt of the studies listed in Subsection 1.1.5, City will present the results of the
studies to City Council to obtain approval of funding for Stage II. This report along with staff.
recommendation will provide detail as to whether:
a)there is a market for the product within the expected price range;
b) the expected number of lots can be obtained from the proposed,site;
c) any severe environmental problems exist.
1.1.8 If fimding is approved by City Council, funding for Stage II, in an amount not to.exceed
$247,700, is to cover the following "Soft Cost":
a) Contractual Services, legal and accounting fees
b) City Permits and Platting Fees
c) Architect and Engineer Fees and Surveys
d) Feasibility Assessment
e) Contingency Costs
1.1.9 Funding for Stage 11 may be broken down into additional increments as the City determines.
1.1.10 The eligible costs are-those allowed under the HOME regulations for the specific activities
mentioned in 1.1.2.
1.1.11 The City shall act through its agent, the City Manager, or his duly authorized representative,
unless otherwise stated in this agreement. Contractor agrees to comply with the Uniform
Administrative requirements contained in Section 92.505 of the HOME regulations, including Subpart
F, and applicable City Codes and regulations.
Page 2 ORE: ���Cu�a
CDC D ` PY
L Q11 HrTq-
RJE _j
1.2 Duration/Period of Affordability
1.2.1 This Contract period begins on the date of execution of this contract and remains in
effect through the period of affordability of the last house sold under this program or 5 years,
whichever is sooner. Affordability means that the actual principal, interest, property taxes, and
insurance (PITI) for the purchase does not exceed thirty percent (30%) of the monthly adjusted
income of a family with an income at or below eighty percent (80%) of the median income of
the area, adjusted for family size, as established by HUD.
1,2,2 At least twenty-five percent (25%) of the housing produced under this Contract will
remain affordable as required by Section 92.254 of the Regulations. If the housing does not
meet the affordability requirements as stated below, the funds used to produce said housing
must be repaid to the City. HOME funded homebuyer program housing must remain affordable
for minimum periods o£ 5 years where the per-unit amount of HOME funds provided is less
than $15,000; 10 years where the per unit amount of HOME fiends provided is $15,000 to
$40,000; and 15 years where the per unit amount of HOME finds provided is greater than
$40,000.' HOME Program Affordability requirements will survive this contract. Repayment of
unit or units that do not maintain the HOME affordability
the HOME funds attributable to the
requirements will be required from the Contractor, if, at any time the Contractor is found to be
non-compliant to the above time limits.
1,2.3 Contractor covenants and agrees that, in the event it desires to extend the terms of
this agreement'beyond its stated date of expiration, it shall submit a written request for
extension to the City at least 60 days prior to the current expiration date hereof and that said
submission shall include the Contractor's anticipated budget, goals and objectives for the
extended period; provided, however, that the City is under no duty or obligation to grant the
requested extension, and that and such extension must be in writing as an amendment to this
contract and approved by the City Council. If no request for extension is received and after the
expiration of.the term of three (3) years, the unexpended balance of funds shall automatically
revert to the City's HOME Program Fund. In such event, the contract is deemed terminated.
1.3 . Income Requirement and Use of House as Principal Residence
1.3.1 The HOME Program uses the income definitions used in the Section 8 Program.
Annual income includes earned income, income from assets, and income from other source
i s �s
defined by 24 CFR 813. Annual income is used to establish homeowner eligibility. The annual
income of the homebuyer, adjusted for family size, shall not exceed 80% of the area median
income as established by HUD. Contractor shall use the most current HUD Program Income
Guidelines to determine program eligibility.
1 3 2 The homebuyer must use the home purchased under this program as his/her principal
residence during the period of affordability.
1.4 Housing Quality and Other Standards
1.4.1 Housing units built and sold to homebuyers under this program shall meet all current
applicable standards and ordinances under-City Codes, and the Model Energy Code published
Page 3 .
by the Council of American Building officials.
1.5 Other Requirements
1.5.1 The sales price of no more than 25% of the houses shall not exceed 95% of the median ✓
purchase price for the type of single family housing for the Fort Worth as determined by HUD.
1.5.2 Every project site under the Program shall comply with environmental review requirements in
Sec. 92.350 of HOME regulations.
1.5.3 The sales price of the house shall not.exceed the appraised value of the property as determined
by an independent appraiser
1.5.4 Contractor shall comply with equal opportunity housing provisions pursuant to Sec. 2.350 of
HOME regulations.
1.5.5 Contractor shall demonstrate that the Affordable Housing Day-elopment-Flinds shall e
leveraged by other funding sources. ..
1.5.6 Contractor, its agents or assignees, or subsequent developers or builders is/are required by City
to include Section 1.2, Duration of Period of Affordability; 1.3, Income Requirement and Use of Home as
Principal Residence; and 1.4, Housing Quality and Other Standards, in any conveyance and/or contract.
1.6. Independent Contractor
1.6.1. Contractor shall operate hereunder as an independent contractor and not as an officer,agent,
servant or employee of the City. Contractor 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, subcontractors, program participants, licensees or invitee. The doctrine of respondeat superior
shall not apply as between City and Contractor; its officers, members, agents, servants, employees,
subcontractors, program participants, licensees or invitee, and nothing herein shall be construed as
creating a partnership or joint enterprise between City and Contractor. It is expressly understood and
agreed that no officer, member, agent, employee, subcontractor, licensee or invitee of the Contractor, nor
any program participant hereunder, is in the paid service of City and that City does not have the legal right
to control the details of the tasks performed hereunder by Contractor, its officers, members, agents,
employees, subcontractors, program participants, licensees or invitee.
1.6.2 City shall in no way nor under any circumstances be responsible for any property belonging to
Contractor, its officers, members, agents, employees, subcontractors, program participants, licensees or
invitee, which may be lost, stolen, destroyed or in,any way damaged; and Contractor hereby indemnifies
and holds harmless City and its officers, agents, and employees from and against any and all claims or
suits.
Page 4
1.7 Termination
1.7.1 This contract may be terminated by the City in the event of default, inability, or failure to
perform on the part of Contractor, or whenever such termination is determined by the City to be
in the City's best interest. Likewise, Contractor may terminate the contract if the City does not
provide funds pursuant to this agreement. The contract may be terminated for mutual
convenience upon agreement of the parties.
1.7.2 The parties acknowledge that HOME funds paid hereunder are intended to provide only
partial funding for Contractor's program operations. If non-HOME funds to implement the
program are not forthcoming to the Contractor within a reasonable time but, not more than 180
days, the City may.terminate this contract.
1.7.3 City shall notify the Contractor in writing of any breach of this contract, and specify a
reasonable time within which to cure the particular breach. After being notified of such breach,
if Contractor fails to cure the material breach within the time stated in the notice, this contract
shall automatically terminate at the expiration of the stated time allowed for cure.
1.7.4 Contractor will return to City any unused monies previously distributed under this
contract within thirty (30) days of the effective date of contract termination. City will have no
responsibility or liability for Contractor's expenditures or actions occurring after the effective
date of the contract termination.
1.7.5 Contractor recognizes and acknowledges that paragraphs 1.2, 1.2.2, and 1.3 survive
termination of this contract.
1.8 Venue
1.8.1 Should any action, whether real or asserted, at law or in equity, arise out of the
execution, performance, attempted performance or non-performance of this agreement, venue
for said action shall be in Tarrant County, Texas.
1.9 Written Instrument is Entire Agreement
1.9.1 All terms of this contract shall apply to any and all subcontractors of Contractor which
are in any way paid with HOME funds or who perform any work in connection with
Contractor's Program.
1.9.2 The provisions of this agreement are severable, and, if for any reason a clause, sentence,
paragraph or other part of this agreement 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.
1.9.3 The failure of the City to insist upon the performance of any term or provision of this
agreement or to exercise any right herein conferred shall not be construed as a waiver or
relinquishment to any extent of the City's right to assert or rely upon any such term or right on
Page 5
this contract. However, if the City fails to insist upon-performance of any term of this agreement, or to
exercise any right hereunder shall not be used against the contractor for future.contracts. Such would be
unfair to the contractor.
1.9.4 This written instrument and the Attachments attached hereto, which are incorporated by
reference and made a part of this contract for all purposes, constitutes the entire contract by the parties
hereto 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 must be approved by each
party to this contract.
1.9.5 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.
2 DUTIES AND RESPONSIBILITIES OF CITY '
2.1 Disbursement of Funds
2.1.1 The City will furnish federal grant Home Investment Partnerships Program("HOME") .. funds,
Nos. M-97-MC-48 7-0204 and M-00-MC-48-0204 for use as stated herein. The City will monitor the use of
such funds to ensure appropriate use of the funds. Funds shall be disbursed after execution of this contract
and compliance with the provisions therein. Disbursements from the HOME account(s) will not be made
until actually needed for, payment. Payment of expenses will require completion of a "Request For
Funds" form, and a copy of supporting documents.
2.2 Amount of Funds
2.2.1 It is agreed that the total distribution of federal grant funds made available to or paid on behalf
of Contractor, during the term of this contract shall not exceed the total sum of Two Hundred Seventy-.
three Thousand, Five Hundred Dollars($273,500).
2.2.2 Contractor shall provide evidence or support documentation, i.e. invoices, receipts, contracts,
consultant agreements, and for all other expenses incurred under this agreement,prior to payment by City.
3 DUTIES AND RESPONSILITIES OF CONTRACTOR
3.1 Statement of Work Budget and Time Line for Goals and Expenditures
3.1.1 In the Stage I of funding, Contractor will accomplish.1)the clearing of land, 2)
Topographic Survey, 3) MAI Appraisal/Market Study, and 4) Phase I Environmental Study to determine
whether:
04 t�i,1 Y
a)there is a market for the proposed product price range; 1r' 4
b)the proposed number of lots can be obtained from the development;
c) any severe environmental problems exist.
3.1.2 Contractor's second increment of activities, if funded, by this contract will include 1 ) site
engineering and platting, 2) lot appraisals, 3) cost estimating, 4)preliminary architectural
Page 6
f
design,,york, 5) accounting and legal, and (6) environmental assessments.
3.2 Budget
3.2.1 Contractor agrees that the HOME funds will be expended in accordance with
"Development Budget"- Attachment B. Any change exceeding plus or minus 10% of line item
amounts shown in this Budget shall be made only with the prior written approval of the City.
Under no circumstances shall the total amount of program funds expended by Contractor from
funds paid by the City exceed Two Hundred Seventy-three Thousand, Five Hundred Dollars,
($273,500.00).
3.3 Reversion of Assets
3.3.1 In the event the Contractor administering the HOME funds ,established under this
contract is dissolved, this contract shall thereupon terminate. In the event this contract is
terminated with or without cause, or for any reason whatsoever, all assets of the HOME funds
shall belong to the City and shall be transferred to the City or to such assignees as the City may
designate. Contractor agrees to return to the City any HOME funds remaining on hand at the
end of the contract.
3.4 Affirmative Marketing
3.4.1 Contractor must adopt affirmative marketing procedures and requirements for all
HOME-funded housing. The procedures and requirements must include methods for informing
the public, owners and potential homebuyers about fair housing laws and policies so as to
ensure that all individuals, without regard for race, creed, nationality or.religion,.are given an
equal opportunity to participate in the Program. The Contractor will be solely responsible for
the effective marketing responsibilities necessary to achieve the Contractors' production goals
set forth in Paragraph 1.1.1 above.
3.5 Recapture Provisions
3.5.1 Contractor understands that there are specific property .recapture requirements on
HOME-funded properties, including the requirement that homebuyers must use the property as
their principal residence. This requirement must be incorporated in the property conveyance as
a deed restriction or covenant running with the land. In addition, loan documents (Deed of
Trust, Community Lien Note) shall also incorporate this requirement. The recapture provisions
will remain in effect on property purchased with HOME funds for the affordability periods
described in Paragraph 1.2.2 above.
3.5.2 Any complete sale of the property by the initial Contractor during the term of
affordability other than a title transfer to an entity which the Contractor retains a material
ownership interest will require repayment of the HOME funds or other subsidy in accordance
with Section 92.254 (a) (4) (ii) of the HOME regulations.
Page 7
.6 Contractual Liability_to Pay
3.6.1 Contractor promises to repay to the City of Fort Worth, the sum of Two Hundred Seventy-
three Thousand, Five Hundred Dollars, ($273,500.00) at its location at 1000 Throckmorton Street, Fort
Worth, Texas 76102 subject to the following conditions and limitations:
3.6.1.1 The loan ($273,500) will be secured with a lien on the realty, situated within the City of
Fort Worth, Texas, as soon as it is acquired by Texas Housing and Economic Resources, Inc. The City
will take a subordinate position, in relation to outside financing.
3.6.1.2 A portion (dollar amount to be determined) of the loan amount will be assigned,
equally, to each lot based upon the total number of lots that can be generated by the property. The
Principal of the loan balance shall be repaid, by Texas Housing and Economic Resources,Inc., the l't day
„. of the month following 30 days after the first mortgage lien holder (the loan utilized for land acquisitions .
and lot development expenditures) is paid in full. The amount of monthly installments will be determined
by the number of months remaining within the 5-year pay back period.
3.6.1.3 The term of the loan will be 5 years at 0% interest. The contract period begins with the
execution of this contract. A copy of the documentation for the above transactions will be attached to this
contract and labeled "Attachments C &D."
3.6.1.4 The entire unpaid principal amount of this loan shall immediately become subject to a
determination of default upon the first to occur of the following: (a) the vacation or abandonment by the
Contractor of the Project for a period of 6 months any time during the affordability period; (b )
assignment of the property and improvements for the benefit of creditors; (c) become insolvent; (d) be
adjudged a bankrupt; or (e) to the extent allowed under 1.2.2 of this Contract, non-compliance with the
HOME affordability requirements, after notice and demand to cure. If such default remains uncured after
judicial proceedings have occurred in favor of the City, the City may then or thereafter, declare the entire
indebtedness to be immediately-- due and payable.
3.6.1.5 If any default be made as herein above set forth, the failure of the City to promptly
exercise its right to declare the indebtedness immediately due and payable shall not constitute a waiver of
such right nor a waiver of such right in connection with any future default on the part of the Contractor. In
the even of default by Contractor under this Contract, the City shall deliver written notice of the default to
all. lienholders and shall grant such lienholders the opportunity to cure any such default. So long as. there
are loans made by secured lienholders with respect to the project that remain outstanding, the City shall
not exercise its right to accelerate the indebtedness evidenced hereby without the prior written consent pf
the secured lienholders.
Page 8
3. 7 Accounting. Records and Reports
3.7.1 Contractor will keep or cause to be kept an accurate record of all actions taken
and all funds expended, with source documents, in the pursuit of the objectives of the
performance of this contract. Such records shall be kept for the period of affordability as
mandated by the Regulations defined within this Contract.
3.7.2 All HONE funds, as distributed to Contractor, will be immediately deposited by Contractor
in a Federally-insured local bank checking account and thereafter disbursed by check by Contractor for
the purpose allowed under this contract ("allowable costs" hereinafter defined). Only HOME funds
will be deposited to this account and no other funds will commingled with this account. The City will
have access to the records relating to this account for purpose of auditing Contractor's expenditures of
the City grant, and Contractor will so advise appropriate bank officials.
3.7.3 Contractor Will only use HOME funds received to defray expenditures which are: (I )made
in conformance with the specified purposes set out in Attachment A and all other provisions of this
Contract; (2) necessary to accomplish the Program objectives; (3) reasonable in amount of goods and
services purchased; (4) .actual net costs,to the Contractor (i.e., the price paid minus any refunds,
rebates, discounts or any other items of value received by Contractor that have the effect of reducing
the cost actually incurred) (5) incurred after execution of this Contract, with the exception of the
Topographic Survey and legal fees, unless specific,authorization from the City to the contrary-is
received; *(6) satisfactorily documented; and (7) treated uniformly and consistently under the
accounting system established by Contractor for these purposes.
3.7.4 All costs defrayed from HOME funds will be supported by properly executed checks,
orders, payrolls, time records, invoices, contracts, vouchers, or other accounting documents evidencing,
in detail the nature and propriety of the charges.. Such documentation will be clearly identified, readily ..
accessible and, to the extent possible,kept separate and apart from an other such documents.
3.7.5 The City expressly reserves, for a period of five (5) years from the date of execution 'Of
this Contract, the right to audit compliance with the terms of this Contract, and any and all records and
documents relating to expenditures made for which HONE funds are used, or relating to any other
activity under this Contract or use of HOME funds. Contractor agrees to retain all such records and
documents for the five (5) year period.
3.7.6 Contractor will obtain and keep on file the following information on each client served by
the Program. Such records shall be kept for the period of affordability mandated by the Regulations.
3.7.6.1 annual income and size of the household of which the client is a member;
3.7.6.2 ethnic group of the client, using one of the following five categories: White, not Hispanic;
Black, not Hispanic;Hispanic;Asian or Pacific Islander; American Indian or Alaskan Native;
Page 9
3.7.6.3 whether the head of the client's household is male or female; and
3.7.6.4 additional statistical information as may be required by HUD regulations and
any amendments thereto.
3.7.7 Contractor will keep on file the following information and documentation on
each individual project:
3.7.7.1 proof that the project meets the applicable property standards;
3.7.7.2 the per unit amount of HOME dollars invested;
3.7.7.3 the compliance with the affirmative marketing requirements and existence of
acceptable procedures;
3.7.7.4 compliance with relocation requirements;
3.7.7.5 minority and female owned business data, and affirmative fair housin •
ZD
actions;
3.7.7.6 compliance with lead based paint and Davis-Bacon requirements; and
3.7.7.7 compliance with.conflict of interest rules.
3.7.8 By the 15th of each month during which this program is. supported by the HOME
fiends provided under this contract (to be construed as including the use of any asset obtained
through the expenditure of HOME funds), Contractor will supply the City with a report
detailing: -
3.7.8.1 progress toward goal achievement; and
3.7.8.2 expenditure detail.
3.7.9 Reports shall be submitted in the format specified by City. _
3.8 Cost Principles
3.8.1 Contractor shall comply with the requirements and standards of OMB Circular
A-122, "Cost Principles for Non-Profit Organizations" and attachments and revisions thereto,.
regarding principles for determining costs for the Program (it is understood that all items below
may not be applicable to the Contractor's operations):
Attachment A, "Cash Depositories", except for Paragraph 4 concerning deposit
insurance;
Attachment B, `Bonding and Insurance";
Attachment C, "Retention and Custodial Requirements for Records";
Attachment F, "Standards for Financial Management Systems";
Page 10
Attachment H, "Monitoring and Reporting Program Performance",paragraph 2;
Attachment N, "Property Management, Standards", except for paragraph 3
concerning the standards;
Attachment 0, "Procurement Standards"; and
Attachment P, "Audit Requirements".
3.8.2 All non-federal entities that expend $300,000 or more in federal fiends within one
year, regardless of the source of the Federal award, must submit to the City an annual audit
prepared in accordance with CFR part 84, generally with specific reference to OMB Circulars A-
128 and A-133 as appropriate. The audit must be prepared by an independent certified public
accountant, be completed within twelve (12) months following the end of the period being
audited and be submitted to City within thirty (30) days of its completion. Costs of preparation
of the,audit may be an allowable expenditure of federal funds in an amount proportional to that
of the federal funds used in Contractor's total agency operating budget: Non-federal entities that
expend less than $300,000 a year in federal funds are exempt from Federal audit requirements
for that year, but records must be available for review or audit by appropriate officials of the
Federal Agency,pass-through entity(City), and General Accounting Office (GAO)."
3.8.3 City reserves the right to perform an audit of Contractor's program operations and
finances at any time during the term of this contract, if City. determines that such audit is
riecessary for City's compliance with OMB Circular A-128, and Contractor agrees to allow
access to all pertinent materials as described in section headed records and reports above. If
such audit reveals a questioned practice or expenditure, such questions must be resolved
within (15) days after notice to Contractor 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 fixture contract(s).
3.8.4 If as a result of any audit it is determined that Contractor has misused, misapplied or
misappropriated all or any part of the grant funds described herein, Contractor agrees to
reimburse the City the amount of such monies so misused, misapplied or misappropriated, plus
the amount of any sanctions, penalty or other charge levied against City because of such
misuse, misapplication or misappropriation.
3.9 Monitor Effectiveness of Services and Work
3.9.1 The City will review the activities and performance of each contractor and subrecipient
-not less than annually as required in Section 92.504 (e) of the HOME regulations.
3.9.2 Contractor agrees to fully cooperate with City in monitoring the effectiveness of the
services and work to be performed by Contractor's compliance with the terms of this contract.
The City shall have access at all reasonable hours to offices and records.(dealing with the use of
the funds that are the basis of this contract) of Contractor, its officers, directors, agents,
employees, and subcontractors for the purpose of such monitoring..
3.9.3 Contractor agrees to likewise monitor the effectiveness of the services and work to be
performed by its subcontractors.
3.10 Compliance with All Applicable Laws and Regulations
Page 11
3.10.1 Federal
3.10.1.1 Contractor agrees to comply with the following laws and the regulations
issued thereunder as they are currently written or are hereafter amended
during performance of this contract:
3.10.1.1.1 Title VI of Civil Rights Act of 1964 (42 USC 2000d et seq.)
3.10.1.1.2 Title VIII of Civil Rights Act of 1968 (42 USC 3601 et seq.)
3.10.1.1.3 Executive Orders 11063, 11246, as amended by 11375 and as
supplemented by Department of Labor regulations (41 CFR,
Part 60)
3.10.1.1.4 Section 504 of the Rehabilitation Act of 1973 (29 USC 794)
3.10.1.1.5 The Age Discrimination Act of 1975 (42 USC 6101 et Seq.)
3.10.1.1.6 National Environmental Policy Act of 1969 (NEPA) and the..,..
related authorities listed HUD's implementing regulations (24
CFR Part 58).
3.10.1.1.7 Immigration Reform and Control Act of 1986 (Pub.L. 99-603,
100 State..3359, as amended) specifically including the
provisions requiring employer verifications of.legal worker
status of its employees
3.10.1.1.8 Housing and Community Development Act of 1987 (Pub. L.
100-242, 101 Stat. 1815, as amended)
3.10.1.1.9 The Americans with Disabilities Act of 1990 (42 USC 12101
et seq.)
3.10.1.1.10 National Affordable Housing Act of 1990
3.101.1.11. The Drug Free Workplace Act of 1988 (24 CFR part 23, subpart F)
3.10.1.2 Contractor, in the operation of its program, will also. comply with Office of
Management and Budget Circular A-122 and attachments and revisions thereto,
regarding principles for determining costs for HOME-funded programs.
3.10.2 Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 USC
1701
3.10.2.1 As the work performed under this contract is on a project assisted under a
program providing direct federal financial assistance from the Department of
Housing and Urban Development and is subject to the requirements of Section of
the Housing and Urban Development Act of 1968, as amended, 12 USC 1701,
Contractor covenants to abide by the requirements of the said Section 3. It
requires as follows:
3.10.2.1.1 That, to the greatest extent feasible, opportunities for training and
employment be given to lower income residents of the project area,
and
3.10.2.1.2 That, to the greatest extent feasible, contracts for work in connection
with the project be awarded to business concerns which are located in
Page 12
or owned in substantial part by persons residing in the area of the
project.
3.10.2.2 Contractor will comply with the provisions of said Section 3 and the
regulations issued pursuant thereto by the Secretary of Housing and Urban
Development, set forth in 24 CFR 135, and all applicable rules and orders of the
Department issued thereunder prior to the execution of this contract. Contractor
certifies and agrees that it is under no contractual or other disability that would
prevent it from complying with these requirements.
3.10.2.3 Contractor agrees that it will send to each labor organization or
representative of workers with which it has a collective bargaining agreement or
other contract or understanding, if any, a notice advising the said. labor
organization or workers representatives of its commitments under this Section 3
clause and shall post copies of the notice in conspicuous places available to
employees and applicants for employment or training.
3.10.2.4 Contractor agrees that it will include the said Section 3 clause in every
subcontract for work in connection with the project and will, at the direction of
City, take appropriate action pursuant to the subcontract upon a finding that the
subcontractor is in violation of regulations issued by the Secretary of Housing
and Urban Development, CF135. Contractor agrees that it will not subcontract
with any subcontractor where it has notice or knowledge that the latter has been.
found in violation of regulations under 24 CFR 135 and will not let any
subcontract unless the subcontractor has first provided Contractor with a
preliminary statement of ability to comply with the requirements of these
regulations.
3.10.2.5 City and Contractor understand and agree that compliance with the
provisions of Section 3, the regulations set forth in 24 CFR 135, and all
applicable rules and orders of the Department issued thereunder prior to the
execution of this contract shall be condition of the Federal financial assistance
provided to the project, binding upon City and Contractor, and their respective
successors, assignees and subcontractors. Failure to fulfill these requirements _
shall subject Contractor and its subcontractors, its successors and assignees, to
those sanctions specified by the Grant Agreement through which federal
assistance is provided and to such sanctions as are specified by 24 CFR
3.10.3 Clean Air Act; Clean Water. Act; Environmental Protection Agency
(EPA) Acts and Regulations
3.10.3.1 This contract is subject to the requirements of Section 306 of the Clean
Air Act, as amended (42 USC 1857(h) et seq.), Section 508 of the Clean Water
Act (33 USC 1368), Water Pollution Control Act, as amended (33 USC 1251 et
seq.) and the regulations of the EPA with respect thereto at 40 CFR, Part 15, as
amended from time to time, and Executive Order 11738(42 USC 7606 nt.). In
compliance with said regulations, Contractor agrees and, with respect to a
Page 13
nonexempt transaction, shall require each subcontractor to agree to the following
requirements:
3.10.3.1.1 A stipulation that no facility to be utilized in the performance of
nonexempt contract or subcontract work is included on the List of
Violating Facilities issued by the (EPA) pursuant to 40 CFR 15.20;
3.10.3.1.2 Compliance with all the requirements of Section 114 of the Clean Air
Act, as amended (42 USC 1857c-8), and Section 308 of the Federal
Water Pollution Control Act, as amended (33 USC 1318), relating to
inspection, monitoring, entry, reports and information, as well as all
other requirements specified in said Section 114 and Section 308 and
all regulations and guidelines issued hereunder;
3.10:3.1:3 A stipulation that, as a condition for the award of the contract,
prompt notice will be given of any notification received from the
Director, Office of Federal Activities, EPA, indicating that a facility
utilized or to be utilized for the contract is under consideration to be
listed on the EPA List of Violating Facilities;
3.10.3.1.4 Agreement by Contractor that it will include or cause to be included
the criteria and requirements of this section in every nonexempt
subcontract, requiring that Contractor will take such action as City
may direct as a means of enforcing such provisions.
3.10.3.2 In no event, shall .any amount of the assistance provided under this
contract be utilized with respect to a facility which has given rise to a conviction
under,the Clean Air Act or the Clean Water Act.
3.10.4 Contractor covenants and agrees that its officers, members, agents, employees,
program participants and subcontractors shall abide by and comply with all other laws, (federal,
state and local) relevant to the performance of this contract, including all ordinances, rules and
regulations of the City of Fort Worth and the Regulations. Contractor further promises_and
agrees that it has read, and is familiar with, terms and conditions of the Regulations urider
which funds are granted and that it will fully comply with same. It is agreed and understood
that, if City calls the attention of Contractor to any such violations on the part of Contractor or
any of its officers, members, agents, employees, program participants or subcontractors, then
Contractor shall immediately desist from and correct such violation.
3.11 Prohibition Against Discrimination
3.11.1 Contractor, in the execution, performance or attempted performance of this contract and
agreement, will not discriminate against any person because of sex, race, religion, color or
national origin, nor will Contractor permit its officers, members, agents, employees,
subcontractors or program participants to engage in such discrimination.
3.11.2 During the performance of this contract Contractor agrees, and will require all its
Page 14
subcontractors to agree, as follows:
3.11.2.2 Contractor will not unlawfully discriminate against any 'employee or
applicant for employment because of race, color, religion, sex or national origin.
Contractor will take affirmative action to ensure that applicants are employed
and that employees are treated fairly regard ring employment without to their
0 C,
race, color, religion, sex or national origin. Such action shall include, but not be
limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination, rates of pay or
other forms of compensation, and selection for training, including
apprenticeship. Contractor agrees to post in conspicuous places, available to
employees and applicants for employment, notices setting forth the Provisions of
this nondiscrimination clause*.
3.11.2.3 Contractor will, in all solicitations or advertisements for employees
placed by or on behalf of Contractor, state tha*t all qualified applicants will
receive consideration for employment without'recard to race, color, religion, sex
or national origin.
3.11.3 In accordance with the policy* of the Executive Branch of the federal government,
Contractor covenants that neither it nor any of its officers, members, agents, employees,
program participants or subcontractors, while engaged in performing this contra
.rmi
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 handicap, except on the basis of a bona fid& occupational
qualification, retirement plan or statutory requirement.
3.11..4 Contractor further covenants that neither it nor its officers, members, agents, employees,
subcontractors, program participants, or persons acting on their behalf, shall specify, in
solicitations or advertisements for employees to work on this contract, a m' aximum.ace
., limit for
such employment. unless the specified maximum age limit is based upon a bona fide
occupational qualification, retirement plan or statutory requirement.
3.11.5 In accordance with the provisions of the Americans With Disabilities Act of 1990
("ADA"), Contractor warrants that it and any of its- subcontractors 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 Contractor or any of its subcontractors. Contractor warrants it will fully comply.
with RDA's provisions and any other applicable federal, 'state and local laws concerning
armless against disability and will defend, indemnify and hold City h ' C)
ainst any claims or allegations
asserted by third parties or subcontractors against City arising out of Contractor's and/or its
subcontractors' alleged failure to comply with the above-referenced law's concerning disability
discrimination in the performance of this agreement.
This agreement is made and entered into with reference,specifically to the ordinances
codified at Chapter 17, Article HI, Division 3 ("Discrimination in Employment Practices"), of
the City Code of the City of Fort Worth, and Contractor hereby covenants and agrees that
Page 15
Contractor, its officers,,members, agents, employees and subcontractors, have fully complied
with all provisions of same and that no employee, applicant or program participant has been
discriminated against by the terms of such ordinances by either the Contractor or its officers,
members, agents, employees or subcontractors.
3.12 Prohibition Against Interest
3.12.1 No member, officer or employee of City or its designees or I agents; no member of the
governing body of the locality in which the Program is situated; and no other public official of
such locality or localities, who exercises any Rinctions or responsibilities with respect to the
program funded hereunder during his tenure or for one year thereafter, shall have any interest,
direct or indirect, in any n y contract or subcontractor the proceeds thereof, for work to be
.
performed hereunder. Contractor shall incorporate, or cause to be incorporated, like language
prohibiting such interest in all contracts and subcontracts hereunder.
3.12.2 No officer, employee, member or program participant of Contractor or its
subcontractors shall have a financial interest, direct or indirect,.in this contract:.or the monies
transferred hereunder or be financially interested, directly or indirectly, in the sale to Contractor
of any land, materials, supplies or services purchased with any funds transferred hereunder,
except on behalf of Contractor, as an officer, employee,*member or program participant. Any
willful violation o'f this paragraph with the knowledge, expressed or implied, of Contractor or
its subcontractors shall render this contract voidable by the City of Fort Worth.
3.12.3 No officer, employee, agent, consultant, elected official or appointed official of the
participating jurisdiction, Contractor or its subcontractors who exercised any functions or
responsibilities with respect to activities assisted with HOME Rinds or who are in a osition t o
participate in a decision making process or gain inside inform p ' .
ation with regard to these
activities, 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 one year thereafter.
3.13 Minority and Women Business Enterprise Commitment
3.13.1 Contractor agrees to abide by the City of Fort Worth's policy to involve Minorityf
Women Business Enterprises (M/WBE) in all phases of its procurement practices 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. Therefore, Contractor agrees to incorporate City Ordinance No. 13471,
amended, "M/WBE Ordinance"-Attachment "E", and all amendments or successor policies
thereto, into all contracts and will furthefrequire all persons or entities with whom it contracts
to comply with the City's M/WBE ordinance and requirements,.
3.14 Assignment
3.14.1 Contractor 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. It is agreed that the City
Page 16
has the right to inspect and approve in writing any proposed subcontracts between Contractor
and any subcontractor engaged in any activity in conjunction with this HOME funded project
prior to any charges being incurred.
3.15 Insurance, Indemnity and Bonding
3.15.1 Contractor 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 e'xecution, performance, attempted performance or nonperformance of this
contract and agreement and/or the operations, activities and services of the Program 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�'Contrabtor 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 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 agreement and/or the operations, activities and services of the programs described
herein, whether or not caused in whole or in part, by alleged negligence of officers, agents,
servants, employees, contractors or subcontractors of City. Contractor 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 to City for the uses and benefit of Contractor.
3.15.2 Contractor will maintain a blanket fidelity coverage in the form of insurance or bond in
0 -Lid, theft or dishonesty of any of
the amount of $30,000, to insure against loss from the fraud,
Contractor's officers, agents, trustees, directors or employees. The proceeds of such bond shall
be used to reimburse City for any and all loss of HOME monies occasioned by such
misconduct. To effectuate such reimbursement, such bond shall include a rider stating that
reimbursement for any loss or losses thereunder shall be made directly to City for the uses and
benefit of Contractor.
3.1 53 Contractor shall furnish to the City, within 60 days of contract execution, and prior to
payment of any monies, certificates of insurance as proof that it has secured and paktfor*
policies of comm ercial iri"urance as specified herein. Such insurance shall cover all insurable
risks incident to or in connection with the execution, performance, attempted performance or
nonperformance of this contract and agreement. Contractor shall maintain the following
coverage and limits thereof:
3.15.3.1 Directors and Officers (D. & 0) Liability Insurance (Optional but, highly
recommended)
$1,000,000. each claim
3.15.3.2 Commercial General Liability(CGL) Insurance
$500,000. each occurrence
$1,000,000 aggre'gate limit
3.15.3.3 Business Automobile Liability(BAP) Insurance
$1,000,000 each accident on a combined single limit basis or
Page 17
, t
$250,000 Property Damage
$500,000 Bodily Injury per person per occurrence e
$2,000,000 Aggregate
The policy is to be endorsed to cover"Any Auto"used in the course of
services contracted herein. Such insurance may be excess to primary
personal auto liability insurance maintained by employees and volunteers
to.the Contractor.
3.15.3.4 Workers' Compensation Insurance Policy
Part A: Statutory Limits
3.15.3.5 Part B: Employer's Liability
$100,000 each accident/occurrence
$100,000 disease-per employee
$500,060 disease-policy limit
115.4 Additional Requirements
3.15.4.1 Insurance policies required herein shall be endorsed to include the City of Fort
Worth as an additional insured as its interests may appear. Additional insured
parties shall include employees, officers, agents, and volunteers of the City of Fort
Worth.
3.15.4.2 Each insurance policy shall be endorsed to provide the City of Fort Worth a
minimum thirty(30) days notice of cancellation or non-renewal.
3.15.4.3 The Texas Department of Insurance (TDI) shall authorize insurers of policies
to do business in the state of Texas and shall be of financial strength and
solvency equivalent to the A.M.Best Key Rating A:VII.
3.15.4.4 Contractor shall provide the City of Fort Worth certificate(s) of insurance
documenting coverage specified in 3.8, with thirty days of the release of any funds
under this contract
3.15.4.5 Stated insurance amounts shall be revised upward at City's option and that
Contractor shall revise such amounts within thirty (30) days following notice to
Contractor of such requirements. "
3.15.4.6 In the event any state or federal or other applicable regulatory entity requires
additional insurance or bonding requirements which supersede those specified
herein, such state or federal or other applicable regulatory entity's requirements
shall prevail.
3.16 Waiver of Immunity
3.16.1 If Contractor, as a charitable or nonprofit organization, has or claims an immunity or
exemption (statutory or otherwise) from and against liability for damages or injury, including
death, to persons or property, Contractor 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.
Page 18
3.17 Program Income Qualifications for Families
3.17.1 Contractor agrees to abide by HUD income guidelines, which are specific.to the type of
project that is undertaken by the Contractor.
3.18 Certification Regarding Lobbying
3.18.1 The undersigned representative of Contractor hereby certifies, to the best of his or her
knowledge and belief, that:
3.18.1.1 No federal appropriated funds have been paid or will be paid, by or on
behalf of Contractor, 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 awvarding 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.
3.18.1.2 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, .Contractor shall complete and
submit .Standard Form-LLL, "Disclosure Form to * Report Lobbying," in
accordance with its instructions.
3.18.1.3 The Contractor shall require that the language of this certification be
included in all subcontracts or agreements'involving the expenditure of federal
funds.
M
Page 19
IN WITNESS WHEREOF, the parties hereto v e cuted four copies of this contract in Fort Worth,
Tarrant County, Texas, this day of , AD 20.21.
ATTEST: CITY OF FORT WO
By.
W.City S cretary Joe P iab
Assist nt ity Manager
lam
contract Authorization
APPROVED AS TO FORM AND LEGALITY:
Date
s
Asst. C Attorney
TEXAS HOUSING AND ECONOMIC
RESO C ,INC.
By:
er v/6"l/l/v
/ AILI I UMO kwll�v
N hemiah Davis, Board President
MUM LRIEC00 RD
Page 20 `I U �(SC-U�;I5Ulrt1R
__ o WV S�W U � n
STATE OF TEXAS 8 v
S _
COUNTY OF TARRANT 8
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this
day personally appeared Joe Paniagua, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and
that she executed the same as the act of said City of Fort Worth for the purposes and consideration
therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this XAd day of
JA�54R,--.� ROSELLA BARNES
NOTARY PUBLIC
' Notary ublic in and for the State of Texas
y State of Texas
' f''fComm,Exp.03-31-2005 ry
STATE OF TEXAS
S .
COUNTY OF TARRANT 8
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this
day personally appeared Nehemiah Davis, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that the same was the act of Texas Housing and
Economic Resources, Inc., Inc. and that he executed the same as the act of said Texas Housing and
Economic Resources, Inc., Inc. for the purposes and consideration therein expressed and in the capacity
therein stated as its duly authorized officer or representative.
IVEN UNDER MY HAND AND SEAL OF OFFICE this /5-71 day f
c , AD 20�. y
-- Notary Public in and for the State o - exas
• _ LEA TRICE L CHAPPED.
_ • " MYCOMMISSIONEXPIRES
,,ms�s December78,20Q4
Page 21 U U�UOWL� P L�� RD
VVB 1lUlJUi'tlUll ��.v/�0
• a
ATTACHMENT "A" PROGRAM SUMMARY
Organization Name: Texas Housing And Economic Resources,Inc
Program Title: Glen Eden Residential Development
Instrument: Development Loan To Provide Supplementary Financing
Loan Amount: Two Hundred Seventy-three Thousand,Five Hundred Dollars ($273,500)
Funding Source: Affordable Housing Development Fund (HOME)
Interest Rate: 0%
Length of Loan: 5 Years
Monthly Payment: $0 (Payment due upon sale of individual or multiple sites)
Security: Lien on development sites
Description: Texas Housing and Economic Resources (T.H.E.R.), Inc. was incorporated as
a Texas non-profit corporation. The mission of the organization is to own,
develop and sell residential single-family and multi-family real estate.
holdings in the state of Texas
Program Objectives The Glen Eden Residential Development is planned and designed 'by
T.H.E.R. to meet the aims of the organization by providing a high quality and
affordable new residential community local within the Southeast corridor of
Fort Worth. The development will consist of a 35.22 acre, gated, residential
community offering a total of approximately 125 residential lots for sale to
individual homeowners or experienced home builders with a proven track
record of offering quality, affordable homes
Program Measures: Determine feasibility of project
Arrange additional financing
Acquire development site _
Establish 20%(minimum)ratio of affordable units
Develop home sites, individually or in corporation with other builders. -
Pay off loan
Page 22 J Mc ALS RECORD
-- ��01 it RIC MARY
R oVRIH Teo
ATTACHMENT "B" DEVELOPMENT BUDGET
Fill out the following form
USE OF FUNDS SOURCES OF FUNDS
TOTAL BUDGET BUDGET AHDF FUNDING OTHER FUNDS
ITEMS 1+2+3=(4) 1+2+3=(4) PASE II (NAMES)
1 2 3)
1.l lorkoF£Fudy 3,rif1fl 3.=500
2.Site Control
3. Feaselbily assessment(e.g.preliminary work
write-up cost estimates or designs) 10,000 10,000
4.Other,Community Outreach 5,000 5,000
S.Land and/or building acquisitions
6.Site Preparation 7,500 7,500
7.Other 9,000 1,800 7,200
S.Materials
9.Labor
10,Contingency 14,500 14,500
11.A prlsal 4,000 4,000
12.Architect$En Inner Fees 194,000 8,000 186,000
13.Construction Management Fee
14.City Permit/Platt fee 5,000 5,000
15,Insurance 1,000 1,000
15.Construction loan Interest
17.Property survey
18.Legal fees 20,000 20,000
19,Real estate fees
20.Utility hook-up fees
21.Title& Recording fees -_
22. Developers fee
Total Soft Cost
TOTAL DEVELOPMENT COST 273,500 25,800 247,700
Pace 23
ATTACHMENT "C"
DEED OF TRUST
Date: August 13, 2001
Grantor: Texas Housing and Economic Resources,Inc. (THER)
Grantor's Mailing Address (including county):
Texas Housing and Economic Resources, Inc. .
1801 Evans Ave.
Fort Worth, Tarrant County,Texas 76104
Trustee: Jim Keyes
Trustee's Mailing Address (including.county):
Jim Keyes
c/o City of Fort Worth
1000 Throck morton
Fort Worth, Tarrant County,Texas 76102
Lender: City of Fort Worth
Lender's Mailing Address (including county):
City of Fort Worth
c/o Housing Department
1000 Throckmorton
Fort Worth, Tarrant County,Texas 76102
Note: -
Date: Date of contract execution
Amount: $273,500.00
Borrower: Texas Housing and Economic Resources,Inc. (THER)
Lender: City of Fort Worth
Final Maturity Date: Five years for the date of contract execution.
Terms of Payment: as therein provided
Page 24
t
t
Property (including any improvements): _
35.22 Acres of the J. Armendaris Survey, Abstract 1768 and a Portion of Lot 1,-Block 1, Jean
Hills Addition to Fort Worth,Tarrant County,Texas
Prior Lien(s) (including recording information): The lien created by this instrument shall be
subordinate to the lien securing payment of a note, as renewed, extended, reamortized, or otherwise
adjusted periodically, in the original principal amount of TWO HUNDRED SEVENTY-THREE
THOUSAND, FIVE BRED N01100 DOLLARS ($273,500.00), which is dated
executed by Texas Housing and Economic Resources, Inc., payable to the order of
and more fully described in a deed of trust recorded in Volume [* *], Page
[ *] of the Official Public'Records of Real Property of Tarrant County, Texas. If default occurs in
.payment of any part of principal or interest of that TWO HUNDRED SEVENTY-THREE THOUSAND,
FIVE HUNDRED N01100 DOLLARS ($273,500.00)note or in observance,of any covenants of the deed
of trust securing it, the debt secured by this deed of trust shall immediately become payable at the option
of Lender.
Other Exceptions to Conveyance and Warranty: . .'None
For value received and to secure payment of the note, Grantor conveys the property to Trustee all the
trust. Grantor warrants and agrees to defend -the title to the property. If performs
covenants and pays the note according to its terms, this deed of trust shall have no further effect, and
Lender shall release it at Grantor's expense.
Grantor's Obligations
Grantor agrees to:
1, Comply with all valid laws, ordinances, and regulations, whether state,
Federal or municipal
applicable to the Property and its ownership,use and operation, specifically but not limited to: (a)
the restriction of the property; (b) the Texas Solid Waste Disposal Act, Health and Safety Code
Sections 361.001 et seq.; (c) the Toxic Chemical Release Reporting Act, Health and Safety Gode
Sections 370.001 et seq.; (d) the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 United States Code Sections 9601 et seq.; (e) th VI of he Civil Rights Act f
Recovery Act, 42 United States Code Sections 6901 et seq.; (f)Title
q (g)Title VIII of the Civil Rights Act of 1968,.
1964, 42 United States Code Section 2000d et seq.;
42 United States Code Section 3601 et seq.; (h) Executive Orders 11063, 11246, as amended by
11375 and as supplemented by Department of Labor regulations,41 Code of Federal Regulations,Stion 794;'0)
Part 60; (i) Section 504 of the Rehabilitation Act of 1973,d Section 6101 et segeC(k) National
the Age Discrimination Act of 1975, 42 United States C
Environmental Policy Act of 1969 (NEPA) and the related authorities listed in HUD's
implementing regulations,
24 Code of Federal Regulations Part 58, (1) Immigration Reform and
the
amended, specifically
Control Act of 1986 Pub. L 99-603, 100 Stat. 3359, as fically including
provisions requiring employer verifications of legal worker status of its employees; (m0 HOTv1E
Investment Partnerships (HOME) Program, 24.Code of Federal Regulations Part 92; (n) the
Page 25
x;
Americans with Disabilities Act of 1990, 42 United States Code Section 12101 et seq.; (o)
National Affordable Housing Act of 1990.
2. Keep the Property in good repair and condition;
2. Pay all taxes and assessments on the Property before delinquency;
3. Preserve the lien's priority as it is established in this deed of trust;
4. Maintain, in a form acceptable to Lender, an insurance policy that:
a. covers all improvements for their Rill insurable value as determined when the policy is
issued and renewed,unless Lender approves a smaller amount in writing;
b. contains an 80%coinsurance clause;
C. provides fire and extended coverage,including windstorm coverage;
d. protects Lender with a standard mortgage clause;
e. provides flood insurance at any time the property is in a flood hazard area; and
f. contains such other coverage as Lender may reasonably require;
5. Comply at all times with the.requirements of the 80% coinsurance clause;
6. ' Deliver the insurance policy to Lender and deliver renewals to Lender within ten days;
7. Keep any buildings occupied as required by the insurance policy; and
8. If this is not a first lien,pay or cause to be paid all prior lien notes that Grantor is personally liable
to pay and abide by all prior lien instruments.
Lender 's Rights
1. Lender.may appoint in writing a substitute or successor'trustee, succeeding to all rights and
responsibilities of Trustee.
2. If the.proceeds of the Note are used to pay any debt secured by prior liens, Lender is subrogated to
all of the rights and liens of the holders of any debt so paid.
3. Lender may apply any proceeds received under the insurance policy either to reduce the Note or to
repair or replace damaged or destroyed improvements covered by the policy.
4. If Grantor fails to perform any of Grantor's obligations,Lender may perform those obligations and
be reimbursed by Grantor on demand at the place.where the note is payable for any sums so paid, ,
including attorney's fees, plus interest on those sums from the dates of payment at.the rate stated
in the note for matured, unpaid amounts. The sum to be reimbursed shall be secured by this deed
of trust.
5. If Grantor defaults on the note or fails to perform any of Grantor's obligations or if default occurs
on a prior.lien note or other instrument, and the default continues after Lender gives Grantor
notice of the default and the time within which it must be cured, as may be required by law or by_
written agreement, then Lender may:
a. declare the unpaid principal balance and earned interest on the note immediately due;
b. request Trustee to foreclose this lien, in which case Lender or Lender's agent shall give
notice of the foreclosure sale as provided by the Texas Property. Code as then amended;
and
C. purchase the property at any foreclosure sale by offering the highest bid and then have the
bid credited on the note.
Trustee's Duties
If requested by Lender to foreclose this lien,Trustee shall:
Page 26
i. Either personally or by agent give notice of the foreclosure sale as required by the Texas Property
Code as then amended; 4
2. Sell and convey all or part of the property to the highest bidder for cash with a general warranty
binding Grantor, subject to prior liens and to other exceptions to conveyance and warranty; and
3. From the proceeds of the sale,pay,in this order:
a. expenses of foreclosure,including a commission to Trustee of 5%of the bid;
b. to Lender, the full amount of principal, interest, attorney's fees, and other charges due and
unpaid;
c. any amounts required by law to be paid before payment to Grantor; and
d. to Grantor, any balance.
General Provisions
1. If any of the property is sold tinder this deed of trust, Grantor shall irruricdiately surrender
possession to the purchaser. If Grantor fails to do so, Grantor shall become a tenant at sufferance
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.
3. Proceedings under this deed of trust, filing suit for foreclosure, or pursuing any other remedy will
not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of payment of all or part of
the note is extended or part of the property is released.
5. If any portion of the note cannot be lawfully secured by this deed of trust, payments shall be .
applied first to discharge that portion.
6. Grantor assigns to Lender all sums 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 attorney's fees, Lender may release any remaining sums to Grantor or apply such sums
to reduce the note. Lender shall not be liable for failure to collect or to exercise diligence in
collecting any such sums.
7. Grantor assigns to Lender absolutely, not only as collateral, all present and future rent and other
income and receipts from the property. Leases are not assigned. Grantor warrants the validity and
enforceability of the assignment. Grantor may as Lender's licensee collect rent and other income
and receipts as long as Grantor is not in default under the note or this deed of trust. Grantor will
apply all rent and other income and receipts to payment of the note and performance of this deed
of trust, but if the rent and other income and receipts exceed the amount due under the note and-_
deed of trust, Grantor may retain the excess. . If Grantor defaults in payment of the note or
performance of this deed of trust, Lender may terminate Grantor's license to collect and then as
Grantor's agent may rent the property if it is vacant 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 shall 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 under the. note and this deed of trust in the order
determined by Lender. Lender is not required to act under this paragraph, and acting under this
paragraph does not waive any of Lender's other rights or remedies. If Grantor becomes a
voluntary or involuntary bankrupt, Lender's filing a proof of claim in bankruptcy will be
tantamount to the appointment of a receiver.under Texas law.
Page 27
.8. Interest on the debt secured by this deed of trust shall not exceed the maximum amount of
nonusurious interest that may be contracted for, taken, reserved, charged, or received under law;
any interest in excess of that maximum amount shall be credited on the principal of the debt or, if
that has been paid, refunded. On any acceleration or required or permitted prepayment, any such
excess shall be canceled automatically as of the acceleration or prepayment or, if already paid,
credited on the principal of the debt or, if the principal of the debt has been paid, refunded. This
provision overrides other provisions in this and all other instruments concerning,the debt.
9. When the context requires, singular nouns and pronouns include the plural.
10. The term "note" includes all sums secured by this deed of trust.
11. This deed of trust shall bind, inure to the benefit of, and be exercised by successors in interest of
all parties.
12. If Grantor and Maker are not the same person, the term "Grantor" shall include Maker.
13. Grantor represents that this deed of trust and the note are given for the following purposes:
Purpose Clause: ' The note represents $273,500.00 in cash that Lender advanced to Grantor on
this day at its request and that it will use under its char-ter powers to discharge corporate debts.
Grantor represents to Lender that its board of directors has authorized its legally elected, qualified,
and acting officers to execute the note and this deed of trust.
14. Due On Sale Clause: If Grantor transfers any part of the property without Lender's prior written
consent, Lender may declare the debt secured by this deed of trust immediately payable. In that
event Lender will notify Grantor that the debt is payable; if it is not paid within thirty days after
notice to Grantor, Lender may without further notice or demand to Grantor invoke any remedies
provided in this instrument for default. Exceptions to this provision for declaring the note due on
sale or transfer are limited to the following: (a) creation of a lien or encumbrance subordinate to
this deed of trust; (b) creation of a purchase-money security interest for household appliances; (c)
transfer by devise, descent, or opera'tion of law on the death of a joint tenant; (d) grant 'of a
leasehold interest'of three years or less without an option to purchase; and (e) a transfer from one
spouse to the other.
15.. Purchaser Must Assume: If any part of the property is transferred, the transferee must assume
the debt and become personally liable for its payment.
16. Wraparound Provisions: The lien created by this Deed of Trust is subordinate to the lien
securing the unpaid balance of a prior promissory note in the original principal amount of TWO
HUNDRED SEVENTY-THREE THOUSAND, FIVE HUNDRED N01100 DOLLARS
($273,500.00), which is described in and secured by a deed of trust recorded in Volume
Page [*_*] of the Official Public Records of Real Property of Tarrant County,Texas. Grantor
in this deed of trust has not assumed payment of that prior note, but Lender is obligated to pay it
according to its terms. The warranty deed with vendor's lien referred to above provides that in the
event of default in payment of that.prior'note, Grantor shall have the right to cure any such default
as lonar as Grantor is not in default in payment of-the wraparound lien note in the original principal
amount of $273,500.00 secured in part by this instrument or in default in performance of the
covenants of this i'ristrument. If Grantor cures a default in payment of the prior note, Grantor may
receive credit on the wraparound lien note secured in part by this instrument for all amounts so
paid as of the date of the payment, in the manner that Grantor directs.
Page 28
If Lender fails to make when due any deposit to the tax and insurance reserve fund provided for
under the deed of trust securing payment of the prior note, Grantor in this instrument shall have
the right to make the deposit to the tax and insurance reserve fund as long as Grantor is not in
default in payment of the subordinate lien note secured in part by this instrument or in
performance of the covenants of this instrument. If Grantor makes such a deposit, Grantor may
receive credit on the tax and insurance reserve fund provided for in this instrument for all amounts
so deposited, as of the date of the deposit, in the manner that Grantor directs.
When the context requires, singular nouns and pronouns include the plural.
Texas Housing and Economic Resources,Inc.
BY:
'Nphemiah Davis
President
Page 29
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on 2001, by
Nehemiah Davis, President of Texas Housing and Economic Resources, Inc., a Texas corporation, on
behalf of said corporation.
LEA TRICE L CHAPPELL �
MY COMMISSION EXPIRES C)'.
Oecember28,2004 NotaryPublic,.State of Texas
AFTER RECORDING RETURN TO:
City of Fort Worth
c/o Housing Department
1000 Throckmorton
Fort Worth,Texas 76102
Page 30
Compliance with the City's MinorityAVomen Business Enterprise Ordinance
The City has adopted a goal-oriented program for the inclusion of minority and
women business enterprises (MAVIBE) in City contracts through Ordinance No. 13471, as
amended. The Contractor has committed to meeting a 25%MAVBE goal on this project.
The total of the dollars budgeted in this contract for Housing Development/Economic
Development/Landscaping will be used to determine the achievement of the percentage
goal on.the project. Compliance by the Contractor with the goal and/or procedures
outlined in the Ordinance is mandatory; failure, by the Contractor to comply with such
procedures'shall constitute a breach of this contract and shall be grounds for termination
by the City.
EXHIBIT
ORDINANCE NO. -�!C
REPEALING ALL MINORITY AND WOMEN BUSINESS ENTERPRISE
POLICIES AND DISADVANTAGED BUSINESS ENTERPRISE POLICIES
PREVIOUSLY ADOPTED; ADOPTING AN ORDINANCE TO REMEDY THE
UNDERUTILIZATION OF MINORITY AND WOMEN BUSINESSES , AND TO
ENHANCE THE UTILIZATION OF SAME; DEFINING MINORITY
BUSINESS ENTERPRISE, AND WOMEN BUSINESS ENTERPRISE FOR
PURPOSE OF CERTIFICATION; REQUIRING MINORITY BUSINESS
ENTERPRISE AND. WOMEN BUSINESS ENTERPRISE PARTICIPANTS TO
BE QUALIFIED AND DOING BUSINESS IN LOCALITY FROM WHICH
THE CITY REGULARLY SOLICITS; ADOPTING THE U. S . S-MAI,L
BUSINESS.ADMINISTRATION'S DEFINITION FORA SIZE STANDARD;
ESTABLISHItIG SEPARATE GOALS FOR MINORITY BUSINESS
ENTERPRISES AND WOMEN BUSINESS ENTERPRISES IN THE
SPECIFIC AREAS OF CONSTRUCTION, PROFESSIONAL SERVICES AND'
PURCHASING; ESTABLISHING PROCEDURES FOR PROJECT SPECIFIC
GOALS; PROVIDING GENERALLY FOR THE - PROCEDURES TO BE
FOLLOWED IN THE BID/PROPOSAL PROCESS; REQUIRING BIDDERS
TO SUBMIT DOCUMENTATION OF COMPLIANCE IN ORDER TO BE
RESPONSIVE TO BID/PROPOSAL SPECIFICATIONS; ESTABLISHING
WAIVER OF GOALS PROCEDURES; ALLOWING FOR DEBAR2•IENT FOR
MISREPRESENTATION OF FACTS AS IT RELATES TO COriPLIANCE;
PROVIDING SEVER.ABILITY CLAUSE; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS , the City Council commissioned an Availability/Disparity
Study (Study) conducted by Browne, Bortz & ' Coddington,
Inc. (BBC) and a Public Hearing (Hearing) conducted by
Carl Anderson, Esq, and found disparities - in' the
utilization of minority and women business enterprises in
contracts awarded by the City of Fort Worth (City) ; and
. WHEREAS , the Study and Hearing 'found that discrimination occurred%
in the major contracting areas (construction, purchasing,
and professional services) of the City of Fort Worth and
resulted in significant underutilization of minority and .
women business enterprises; and
WHEREAS, minority and women business enterprises have had and
continue to have difficulties in obtaining financing,
bonding, credit, insurance, and assistance programs 'have
Pot been effective in either remedying the effects of
underutilization in City contracting or in preventing
ongoing underutilization; and
WHEREAS, the Study and the Hearing determined that race-neutral
alternatives for enhancing minority Wand women business
enterprise contracting are not completely sufficient; and
WHEREAS , the City has also been a passive participant in
discriminatory behavior practiced by private industry
Within the reievanc Marketplace in the award of contracts
to minorities and women businesses, the' purpose Of fs-this
ordinance is to. overcome the effects of this
underutilization in the City's contractin g processes;; and
WHEREAS, the provisions of this ordinance may increase the
utilization of minority arid. women business enterprises in
contracts awarded by the City of Fort Worth; and
WHEREAS, the City Council now desires to provide a narrowly
tailored remedy. for past underutilization of minority and
women business.es through the annual setting and defining
of percentage goals for different categories of
contracts, providing penalties for 'fraudulent misuse.,'of
this ordinance, requiring regular rewiew 'of the necessity
for the provisions of this ordinance, limiting those
minority and women's business enterprises that
participate under this ordinance to those that qualify
and do business in the City"s Marketplace, providing for
post bid submission of required . information about
minority and women business enterprises and establishing
waiver of goals procedures;
NOW THEREFORE, BE IT ORDAINED BY ;THE CITY COUNCIL OF THE .CITY
OF FORT WORTH, : TEXAS, THAT:
SECTION 1.
..it is the policy of the City of Fort Worth to attempt to
Provide a remedy for past underutilization of qualified minority
and women businesses and prevent ongoing underutilization of
minority and women business enterprises in the City's contracting
process by ensuring the full and equitable participation of`
minority and women business enterprises in the provision of goods
and services to the City on a contractual basis in the manner
identified in Attachment I of this ordinance, said Attachment I
being a part of this ordinance.
-2-
SECTION 2.
The ultimate goal of this ordinance is to remedy the effects
Of past underutilization in the Marketplace by increasing the use
of minority and women business enterprises above the present low
level- to one more comparable to their availability in -the* Fort
Worth Marketplace. The City Council shall set an annual goal for
MBE and WBE participation in City procurement activities, based
upon the availability. within the Marketplace. The
-initial
based upon availability, shall• be thirteen percent for
minority businesses and twei•ve percent (12-1) for. women businesses
and shall be reviewed as provided for elsewhere hetein. These
goals are not quotas.
SECTION 3.
The provisions of this ordinance shall apply, to all contracts
awarded by the City, except as may be hereafter specifically
exempted, and shall be 'liberally construed for the accomplishment
of its policies and purposes. Specific goals shall be established
in the areas of construction, professional services and purchases
of other goods and services. Goals may be set on individual
Projects based on the type of work or services to be performed, or
goods to be acquired and the availability of minority and women
businesses in the City's Marketplace.
SECTION 4.
The provisions of this ordinance shall be consEclered in
.determining the responsiveness to specifications of offerors to
the bid/proposal. The City shall consider the offeror's
responsiveness to this ordinance in the evaluation of
bids/proposals and shall award contr acts -to the lowest responsible
offeror meeting the specifications, inclusive of compliance to this
minority and. women business enterprise ordinance.
SECTION 5.
Debarment procedures shall be established for firms willfully
misrepresenting the
facts-in-compliances with this ordinance to the
City.
SECTION 6..
Wai��er procedures to the regulations established in this
ordinance shall be provided for City procurement activities where
a public calamity requires the emerge-n iaxpenditure of fund 'the
Purchase of goods or services from source (s) where subcontracting
or supplier opportunities are nonexistent; where an economic risk
or undue delay for the acquisition . of goods or services will be
imposed on the City, or when the availability of minority and women
businesses is negligible.
SECTION 7.
From and after the date this ordinance takes effect, it shall `-
supersede all previous City Council Policies affecting minority and
women business enterprise and disadvantage business enterftises .
SECTION 8,
The City Manager, with the advice and counsel of the
Disadvantaged Business Enterprise Advisory Committee ("DBEAC") in
accord with' City of Fort Worth Resolution NO- 1148, is - hereby
authorized to establish, implement and administer regulations
necessary to carry out the intent of this ordinance.
SECTION 9.
The City Council shall regularly, at least every three (3)
years, determine whether there is a continuing need for a•minority
and women business enterprise program, make relevant findings, and,
r
if necessary, repeal in -whole or in part or enact appropriate
amendments to this ordinance. .
SECTION 10.
It is .hereby declared to be the . intention of the City Council
that the sections, paragraphs, sentences, clauses and phrases of
this ordinance are severable, and, if any phrase; clause, sentence,
paragraph or section of this ordinance shall be declared
unconstitutional by the valid judgment or decree of any court of
competent jurisdiction, such. unconstitutionality shall not. affect
any of the remaining phrases, clauses, sentences, paragraphs and
sections of this ordinance, since the same would have been enacted
by the City Council without the' incorporation 'in this ordinance of `.
any such unconstitutional phrase, clause, sentence, paragraph or
section.
SECTION 11.
This ordinance shall take effect and be in full force and
effect from on and after June 1, 1995; provided, however, that this
ordinance shall not affect any procurement activity whe'r'e formal
solicitation began before the effective date of this ordinance, and
it -is so ordained.
• _5r
APPROVED 'AS TO FORM AND LEGALITY:
ty Att
Date•
ADOPTED•_ `�' ' �•.�" ��
EFFECTIVE: *
ATTACHMENT I
I• DEFINITIONS:
1. /1Bidder" means any person, firm, corporation,. or partnership
which submits a bid or proposal to provide labor-, goods or
services to the City for which City funds are expended. The
term includes "Offeror" as well as offers received from
providers of professional services.
2 • "Certified" means those firms, within the Marketplace, that
are certified by either the North Central Texas 'Regional
Certification Agency (NCTRCA) or the Texas Department of
Transportation •(TxDOT) , highway division.
3 . "City" means the City of Fort Worth, * Texas.
4 _ "Constructioh', means the erection, rehabilitation, alteration,
conversion, extension, demolition, improvement, remodeling or
repair to any real property,. including streets, storm drains
and facilities providing utility service owned' by the City.
5. "Contract" means a binding agreement whereby the City either
grants a privilege or is committed to expend or does expend
its funds or other resources for 'or in' connection with a)
construction of any public improvement, and ,b) .purchase of any
services (including professional services) . The tern includes
"purchase order".
6. "Contract Officer" means the person employed by the City to .
oversee the performance of the contract.
7 . "Contracting Department" means the department responsible for
payment of contract obligations,
8 . "Contractor" means the person, firm, corporation, or
Partnership with whom the City has entered into an agreement.
Includes the terms "Vendor" and "Prime Contractor":
9 . "Coordinator" means the administrator of the MBE/WBE Office.
10. "Good Faith Effort" means having: absence of malice or any
intentions to deceive, g-bod intentions and sincerity, to meet
the goals of this ordinance. Documentation submitted by the
bidders to explain why its good and honest efforts did not
meet or exceed the stated MBE/WBE goals. , Compliance with each
of the following steps* shall satisfy the Good Faith Effort
requirement absent proof of fraud, misrepresentation, or
intentional discrimination by the bidder:
10. 1. List each and every subco'ntracting -and/or supplier
opportunity for the completion of this project.
10. 2 . Obtain a current (less than two (2) months old from
the bid open date) list of M/WBE subcontractors
and/or suppliers from the City's M/WBE Office. .
10. 3 . Attend the pre-bid conference, if scheduled by the
City, and attempt to utilize M/WBEs that attended.
10. 4'. Solicit bids from M/WBEs, within the subcontracting
and/or supplier areas previously listed, at least
ten * days prior to bid opening by mail.
10 . 5 . Solicit bids from M/WBEs, within the subcontracting
and/or supplier areas previously listed, at least
ten days prior to bid opening by telephone.
10. 6 . ' Solicit bids from M/WBEs, within the subcontracting
and/or supplier areas previously listed, * at least
ten days prior to bid opening by advertisement in a
local newspaper.
Provide plans and specifications or- information
regarding the location of plans and specification
to M/WBEs.
10. 8 . Submit documentation if M/WBE bids were rejected on
the basis of quotation not being... commercially
reasonable, qualifications, etc.
Note: If a SIC code list of M/WBEs is five or less, the
bidder must contact the entire list -to be in
compliance with 10. 4 and 10 . 5 . If a SIC code list
Of M/WBEs is more than five, the bidder must :
contact at least two-thirds of the list but not
less than five to be in compliance with 10. 4 and
10 . 5 .
Note: Bidders who continuously list the same. M/WBEs when
contact has previously been unsuccessful as result
of disconnected numbers or returned mail, will not
be deemed in compliance with the Good Faith Effort
requirements .
] 1 . "Joint Venture" means an association of two or more persons or
businesses to carry .out a single business enterprise for
profit for which purpose they combine their property, capital,
skills , knowledge and management in an agreed to proportionate
share.
12 . "Marketplace" neaps the geographic market area represented by
the Fort Worth/ Dallas Consolidated Metropolitan Statistical
Area.
13 . "Minority" means a citizen of the United States or lawfully
admitted permanent resident who is Asian-American, American
Indian, Black or Hispanic.
14.. "Minority Business Enterprise" is defined as a qualified
business concern located in the Marketplace or doing business
in the --Marketplace . at the time ..of bid opening or during
negotiations related to proposals meeting the following
criteria
a. which is at least 51 percent owned by one or more
minority persons, or, in the case of any publicly ..owned . -
business, at least 51 percent of the stock is owned by
one or more minority persons; and
b: whose management- and daily business operations are*
controlled by one or more minority persons who 'own it;
and
C. meeting the size standards set 'forth by SBA.
15. "Procurement" means the buying, renting, leasing or otherwise
obtaining or acquiring any supplies, materials, equipment or
services.
16. "Professional Services" means services which require
predominantly' mental or intellectual labor and skills, ,
includes, but is not necessarily. limited to, architects,
engineers, surveyors, • doctors, attorneys, and .account.ants.
17 . "Project Manager" see Contract Officer.
18 . "Purchasing" means the buying, renting, leasing or otherwise
obtaining or acquiring any supplies, materials, equipment or
services excluding construction and professional services
previously defined.
3.,9 . "Qualified' means an individual or , )usiness entity having
previously performed or received training in the work,
industry or profession required.
20 . "size standard' is the average annual gross receipts for a
company and its affiliates for the previous three (3) fiscal
years which must not exceed _the amounts as defined by -the
United States Small Business Administration's (SBA) standard
industry classification (sic) codes. These codes are outlined
in the most recent edition of SBA 49 CFR 23 . 62, appendix B and
13 CFP. 121. 401--407 and 601 .
-9-
4
21 . "Subcontract" means an agreement between the contractor and
another business entity for the performance of work.
22 . "Women Business Enterprise') is defined as a qualified business
concern located in the Marketplace or doing business in the
Marketplace at the time of competitive bid opening or during .
negotiations related to proposals meeting the following
criteria:
a. which is' at least 51 percent owned by one or more
women, or, in the case of any publicly owned business, at
least 51 percent of the stock is owned by one or more
women; and
b. whose Management 'and daily business operations are
controlled by one or more women who own it.
C. meeting the size standards set forth by SBA.
II . PROGRAM GOALS
(A) City-wide goals for the utilization of minority business
enterprises (MBE) and women business enterprises (WBE) shall,
be reviewed and approved annually by the. City. Council .
(l) The City -Manager shall, on or before October 31 of each
year, beginning October 31, . 1996, conduct an analysis of the
availability of MBEs *and WBEs and present to the City Council
an annual report on MBE and VIBE availability and utilization.
Based on the availability of MBE/WBEs in the Marketplace and
the City's most recent goals attainment and with the advice
and counsel of the DBEAC, the City Manager shall recommend to
the City Council reasonable .goals for the remainder of the
current fiscal year.
(2-) These goals shall be expressed in terms of percentages of T=:
the total dollar value of all contracts to be awarded by the _
City, and shall be established separately for categories of
construction, professional services, and purchasing as well as
any other categories that the City Council or City Manager ,
deem appropriate.
(B) Individual project goals shall be set by the M/WBE Office in
collaboration with the Contract officer and Risk Managebent
(where appropriate) prior to solicitation. These project
goals shall be reasonable and shall be based upon:
(1) Specific subcontracting and/or materials opportunities
required to complete the project, and
-10-
(2) Th-e availability of MBE/WBE in the identified
subcontracting and/or materials opportunities in the
Marketplace.
(C) MBE/WBE participation shall be counted toward meeting MBE and
WBE goals in accordance with the following provisions:
(1) For the purpose of determining compliance with the goals
requirements established in this ordinance, businesses
will be counted as MBE and WBE only when they have been
certified as such prior to award of the bid or proposal.
(2) Any business (es) Iisted by an offeror which is not
certified prior to award of bid/proposal will have that
amount of participation deducted from the total MBE/WBE
utilization • in order to determine the offerors
responsiveness. It is the responsibility of the offeror
to secure additional certified or certifiable MBE/WBE -
participation before responsiveness to this ordinance is
determined.
(3) The offeror 'may count ..toward its MBE or "WBE goals first
and second tier MBE and WBE subcontractors and/or
suppliers.
(4)` The offeror will be given credit toward the MBE/WBE
contract goal only when the MBE or WBE performs a.
commercially useful function. An MBE or WBE is
considered to have -performed a commercially useful
function when:
a) it is responsible for the execution of a distinct
element of . the work by actually performing,
managing and supervising the work involved in
accordance with normal .business' practice; and
b) the firm receives due compensation as agreed upon
for the work performed.
(5) Regardless * of whether an arrangement between the
contractor and the MBE/WBE represents standard industry
practice, if the arrangement erodes the ownership,
control or independence of the rIBE/WBE or does not meet
the commercially useful function requirement, the offeror
shall receive no credit toward the goals.
(6) An offeror may count toward its rIBE or WBE goal "a portion
of the total dollar value of a contract with a joint
venture equal to the percentage of ?,'BE or WBE participa-
tion in the joint venture. The t4BE or WBE involved in
the joint venture rust be responsible for a clearly
defined portion of the work: to be performed, equal to a
share in the ownership, control, knowledge, management,.
responsibility, risks, and profits of the joint-venture.
(7) Except for joint ventures, all prime contractors, whether
same be majority firms, all
or WBE, shall comply with
this ordinance in order. to be considered responsive.
($) The bidder may not count toward the goal any agreements
with MBE or WBE that are not located within the
Marketplace or otherwise do not meet the guidelines as
set forth in this section.
III. MBE AND E UTILIZATION REQUIREMENTS
(A) In addition to the requirements ' set forth elsewhere, bid
conditions and requests for proposals shall include a
statement of both MBE and WBE goals established for the
project.
(B) Bid conditions, requests for proposals, and all other
specifications for contracts to be awarded by the City shall
require that offerors make a good faith effort, to subcontract
with . or .purchase supplies from 'MBE and WBE. Such
specifications shall require the offeror to meet or exceed the
stated goals or submit documentation of GFE for•all contracts.
of $25, 000 or- more to' permit a determination of compliance
with the specifications or requests for proposals.
(C) Construction and Professional Services contracts and such
other contracts which may be competed for under sealed
Proposal procedures (estimated cost of $25 , 000 or more) and
Purchasing contracts (estimated cost of $15, 000 or more) shall
be awarded and administered in accordance with the following
standards and procedures :
(1) Competitive bids shall include the MBE and WBET
specifications in the bid specifications. MBE and WBE
specifications consist of the SPECIAL INSTRUCTIONS TO
BIDDERS, AFFIDAVIT STATEMENT, MBE/WBE UTILIZATION FORM,
PRIME CONTRACTOR FIAIVER FORM and the GOOD FAITH EFFORT
FORM.
(a) The AFFIDAVIT STATEMENT shall be submitted with the
bid on the bid opening date.
(b) The MBE/WBE UTILIZATION FORM, PRIME CONTRACTOR
WAIVER FORM and/or the GOOD FAITH EFFORT FORM shall
be submitted to the contracting department-no later
than 5: 00 p.m. , five (5) City business days after
bid opening date.
-12-
(c) An offeror that equals or exceeds the MBE and WBE
project goals, shall submit the MBE/WBE UTILIZATION
FORM.
(d) The PRIME CONTRACTOR WAIVER FORM shall be submitted
with any bid that includes no subcontracting
and/supplier opportunities. If substantial
subcontracting and/or substantial supplier
opportunities arise in the performance of a
contract awarded in reliance on the PRIME
'CONTRACTOR WAIVER FORM, the contractor shall notify
the City before subcontracts for work and/or
Supplies.,..are let and •the contractor shall comply
with the requirements of this ordinance.
(e) GOOD FAITH DOCUMENTATION, :including the GOOD FAITH*'.
EFFORT FORM, shall be submitted with any bid and/or
proposal that fails to include MBE/WBE
participation that equals or exceeds the MBE/WBE
project goals.
(f) The submission of the applicable completed forms)
within the allotted . time will be considered when
. .determining the responsiveness of the bid. Failure
to comply with the bid specifications, inclusive of
the MBE and WBE specifications, shall render the
bid non-responsive.
(2) Other than responses to Requests for Proposals for those
professional services defined in Chapter 2254 of the
Texas Gov t ernmen Code, responses to Requests for
Proposals shall include a section which identifies ..the
Particular MBEs and/or WBEs to be utilized in performing
the contract.
(a) Specify as to MBEs and WBEs, the estimated
percentage of the MBE and WBE participation, the -_
type of work to be performed by the MBE or WBE, and-
such other information as may reasonably be
required 'to determine the responsiveness to the
Request for Proposal.
.(b) Responses that do not meet or exceed the MBE and
WBE utilization goals, as required by the request
for proposal , must submit a GFE explanation.
Failure to include such GFE explanation shall
render the response non-responsive. -�
(3) Initial responses to requests for proposals for those
professional services defined in Chapter 2255 of the
Texas Government Code shall not include a response to
the requirements of this ordinance. The City shall
-13-
Comply with the requirements of said Chapter and Z
the rank
Professional ' on the basis . of demonstrated
competence and qualifications. During negotiating the
contract with the highest ranked professional,
Professional shall he
11 respond - to this ordinance in the
manner specified in paragraph 2 (a) above.
.(4) The GOOD FAITH EFFORT documentation shall demonstrate the
Offeror's commitment and honest efforts to utilize MBE
and WBE. The burden of preparing and submitting the GFE
information is on the Offeror and will be evaluated as
part. of the responsiveness to the bid or appropriate
proposal . . Any willful misrepresentation 'of facts on the
• documentation submitted will constitute a basis for
classification as non-responsive and possible debarment..
(5) The contracting department may request the MBE/WBE Office
to. waive the goal requirements Of this subsection, or to
reduce the amount of the goals., for either or both
MBE/WBE, in accordance with . the provisions of
Exceptions and Waivers section. the
(D) The city Manager, with the advice and counsel of the DBEAC in
accord with City of Fort worth Resolution No. ' 1148 , shall
adopt regulations governing the Purchase of croods and services
under $15, 000.
In addition to such other requirements as may be set forth
elsewhere, the following shall apply to construction,onstructlon, prof es-
pal : service*, discretionary service, and applicable
purchasing contracts awarded by the City:
(1) Contracts shall incorporate this ordinance by reference,
and shall Provide that the failure of any bidd er'
contractor or subcontractor to comply with this ordinance
shall be a material breach of contract.
(2) During the term of any contract, any Proposed . chan g
deletion in MBE/WBE participation identified in the be r
id,
Proposal Or contract shall be reviewed by the MBE/WBE
Office to determine whether such change or deletion is
justified in accord with the immediate following two .(2)
pa'ragraphs. Any unjustified change or deletion shall be
a material breach of the contract.
(3) Contracts shall require that during the term of the
contract, the contractor shall :
(a) Make no unjustified changes or 'deletions in its 14BE
and WBE participation commitments submitted with
the bids/ Proposals or during negotiations ;
(b) If substantial subcontracting and/or substantial
supplier opportunities arise during the tern of any
contract that the contractor represented to' the
City that the contractor alone would perform
required by the contract, the- contractor shall
notify the City before subcontracts for work and/or
supplies are let and shall be required to comply
With the provisions of this ordinance; and
(c) Maintain records reasonably necessary for monitor-
ing their* compliance with the provisions of this
ordinance.
(4) The contractor shall submit to the MBE/WBE. Office for
approval a REQUEST FOR APPROVAL OF CHANGE FORM if, during
the term of any contract, a contractor wishes to change
or delete one or more MBE and/or WBE subcontractor's.,)
(a) Within three (3) business days after receipt by the
MBE/WBE Office, the Request shall be reviewed. The
Request shall be approved if the change or
deletions is justified. The following shall
constitute justification for the requested
change or deletion:
(1) an MBE or WBE's failure to provide workers,,
compensation insurance evidence as required by
state law; or
(2) an MBE or WBE's failure to provide evidence of
general liability or other insurance under the
same or similar terms as contained in the
contract documents with limits of coverage no
greater than the lower of 1) the limits
required of the contractor by the City; or 2)
the limits contained in the contractor's
standard subcontract or supply agreements used
on other projects of similar size * and scope _
and within the contractor's normal business "
practice with non MBE or WBE subcontractor's
or suppliers; or
(3) an MBE or FIBE's failure to execute the
contractor ' s standard subcontract form in the
amount of the bid , if -entering a'- subcontract
is required by the contractor in its normal
course of business; or
(4) an MBE or WBE' s default in the performance of
the executed subcontract; and
-15-
(5) all MBE and WBE , subcontractors previousl
submitting bids for the work are requested to
bid on the work, and if
Practicable due to time and, if
contractor obtains bids from previousl the
bidding MBEs and WBEs, and no MBE oz non-
subcontractor submits the lo��,�est bid. WBE
(b) If the MBE/WBE office approves
MBE or WBE and replacement by s the deletion. of an .nOn-ME Or such approval shall constitute a Post a ward waiver
to the extent of the value
subcontract. of the deleted
(c) If the MIBE/4,,BE office denies the Request for Change
or Deletion, the contractor may a g
to the City Manager whose decision will be final.
NOTE: The contractor shall submit such documentation
as may reasonably be requested by the MBE/WBE
Office 'to support the contract orIs request.
The . time between the request by the MBE/WBE
Office for additional documentation and the
delivery of such documentation shall not be
included within the time period that the
MBE/WBE Office is required to respond.
NOTE: Upon completion of the contract and within ten
. (10) days after receipt of final payment from
the City, . the contractor shall provide the
MBE/WBE Office with documentation to reflect
the final participation of each subcontractor
and/or supplier used on the project, inclusive
Of MBEs and 47BEs.
(5) Whenever contract, amendments, change order, or extra
work orders are made individually or in the aggregate,
the contractor shall comply with t
ordinance he provisions of this
with respect to the alternates, _
change orders, or extra work order. amendment,
(a) If the amendment, change order, or extra work
affects the subcontract of an MBE or F78E, such MBE
or WBE shall be 'given the opportunity
such . to perform
amendment, change order or extra work.
(b) If the amendment, change order or extra work is not
covered by any subcontract of like or similar work,
is work not to be performed by the contrt--ctor, and
the amount of such amendment, change order or extra
work exceeds ten percent ( 10%) of the original
CO , amount, the contractor shall com-�ply with
--16-
the provisions of this ordinance with respect to
such amendment, change order, or extra work,
=V• EXCEPTIONS AND WAIVERS
(A) If a bidder is unable to comply with the goal requirements
such bidder shall submit one of f the two forms this ordinance
Within the allotted time. below'
(� ) A Prime Contractor Waiver Form
(Attachment
submitted if the bidder will perform the entire co ntracs
without subcontractors or suppliers.
(2) A Good Faith Effort . Form (Attachment 1C) is subm'
the bidder has subcontracting tted er
g and/o
Opportunities but was unable to r supplier
WBE 5 meet or , exceed the'
Project M
/ goals. The bidder submit requested
documentation which demonstrates a
comply with the goals requirements good
as described fin effort to Program Goals section above. he
(B) A. contracting department -may request the .MBE/WBE .
waive or modify the goal requirementE of
f WBE bo
s for MB
submitting a Departmental Waiver Form in writing, o
solicitation of bids or proposals. g. prior to
grant such a waiver or reduction upon determination f that:
may
(�) The reasonable and necessary requirements of the contract
render subcontracting or other participation other than the bidder or propo er infeasible-of
(2) A public or administrative emergency exists which
requires the goods or services to be pr
unusual immediacy; or ovided with
(3) Sufficient MBE and WBE providing the services required b
the contract are unavailable in the market area of the
Project, despite attempts to locate them; or
(4) The application of the provisions of this ordinance will
impose an unwarranted risk on the City or unduly delay
acquisition of the goods or services.
(5) Whenever the MBE/WBE Office denies a request to waive a
goal, the contracting department may appeal that denial
to the City Manager whose deci
be final. sion on the request shall
.z
-17-
V. PROGRAM ADMINISTRATION -
(A) The .City Manager, with the advice and counsel of the DB
accord with City of Fort Worth Resolution No. 1148, is
authorized to establish and implement the regulations set
'forth in this ordinance. The 'MBE/WBE Office shall be
responsible for the overall administration of the city�s MBE
and WBE Program, and its duties and responsibilities shall
include:
. (1) Recommending rules and regulations to• effectuate this
ordinance;
(2) Maintaining a current listing of certified .WBE and MBE
for distribution internally and e xt ernally on contracts;
(3) Providing information and needed assistance to MBE and
WBE to increase their ability to compete effectively for
the award of City contracts;
(4) Investigating alleged violations of this ordinance and
making written recommendations to appropriate
authorities for remedial action when appropriate;
City
e;
(5) Developing and distributing all necessary forms, aplica-
tions, and documents necessary to comply wit p
ordinance; h this
(6) Reviewing, on 'a regular basis, the progress of depart
ments toward achieving the category
utilization 'of minority and women's usiness enterprises;
(7) Making recommendations to appropriate
regarding methods to further t plicies and goals staff
this ordinance;'
(8) Determining MBE/WBE compliance on contracts before they.-,.
are submitted. to the City Council for award;
(9) Maintaining accurate contract performance reporting
system; and
(10) Compiling a report reflecting he
pals . g Progress in attaining
the City's annual
goals; quarterly and annually.
(B) It shall be the responsibility of the contracting department
to ensure that bids or proposals emanating from the department
adhere to the procedures and provisions set forth in this
ordinance .
(1) The department director or designee shall assume primary
responsibility for achieving the goals of this program
-18-
and shall review, on a continuing basis the program's operations to assure
ure that aspects of
being attained, the purpose is
(2) The contracting department shall take
action to ensure that MBEs and �7BEs the following
Opportunity to participate on City contracts:he maximum
(a) The advertisements for formal bids required to
advertised according to statute shall a be
minority and women to
media appear in
days before bids are due for specific lcontractirig
opportunities;
�(b) A written notification shall be sent to
and women trade associations and
associations, and minority and women chambers rof
commerce about the availabilit
advertised contracting o y of formally
30 days before bids are pportunities no less than
(c) All contract solicitations shall include the
and WBE policy; MBE
(d) All contracting opportunities shall be evaluated
an effort to divide the total requirements
la
contract to provide reasonable opportuniti of
es for
MBE and WBE;
• (e) For construction contracts, establish roce
ensure that . all contractors submittin dunes to
invoices are paid twice a g . correct•
subcontractors month and that
are paid. in accord with the
subcontract within five 5
receipt of payment; ( ) business days after
a contractor's failure to make _
Payments within five (5) business
authorize the City to withhold future days shall
the contractor until compliance with this ordinan�e
is attained. -
(f) Establish guidelines to ensure that a . notice to
Proceed is not issued until signed letters of
intent or executed agreements with the MBE and WBE '
have been submitted;
(g) Ensure that all required statistics and documenta-
tion are submitted to the . MBE/WBE office as
requested; and
(h)
If circumstances prevent the contractin g
from meeting the thirty-day advertising and'
notification recruirements, the contracting department
-19-
shall perform extensive outreach 'to ME
associations or other relevant organizatio an
ds WBE
inform them of the contracting opportunity, to
Vz • CERTIFICATION
The City will recognize 24BE and WBE that are certif '
Department of Transportation led b
North Central Texas Re (1xDOT) , highway division/ or ex e
Regional Certification Agency (NCTRCA) , the
VII. CONTRACT MONITORING REPORTING
AND COMPLIANCE
(A) The MBE/WBE Office shall
requirements during the term monitor thecompli ce with t
determined that there is cause to believe that a co hese
subcontractor has failed to com 1 'If it is
meets of this ordinance, or the contract Provisions contra e-
p t with any of the require-
to MBE and WBE utilization, the MBE/WBE Office shall notify
p ions pertaining'
the contracting department and the contractor.
The MBE/WBE Office shall attempt to resolve the none
through conciliation, noncompliance be
sesohved, the Coordinator and' the contracting noncompliance gdepartm department cannot
submit written 'shall
recommendations to the city hall
designee, and if the City Manager concurs with ytheafindin sr
sanctions shall be imposed as stated in ordinance.
findings,
(B) Whenever the MBE/WBE Office finds, after investigation,a contracting department has failed to Comply 9 n, that
provisions of this ordinance, a written finding sp cif Yy g
in the
nature o.f the - noncompliance shall be' transmitted to the
contracting department, and the MBE/WBE Office shall attem t
to resolve any p
conciliation. noncompliance through conference and
noncompliance Should such attempt fail to resolve the
findings of noneompliance�,n with ahstate ransmit a co
was attempted and failed, to the City Manager COPY °f the_ ..
meet that conciliation `.
appropriate action to secure compliance, g who shall take
(C) The MBE/WBE Office may require such reports, information,
documentation from contractors, bidders, contracting agencies
and the head of any department, division, or office of the
City of Fort Worth
compliance with the requirements, to* deterriiine
the notice of noncompliance . Y er
(D) Contracting departments shall maintain. accurate records for
each contract awarded, including dollar value, the"nature of
the goods or services to be provided, the name of the contrac-
tor awarded the contract, the efforts it employed to solicit
bids from MBE and WBE, identifying for each its dollar value,
-20-
the nature of the goods or services Provided * e
the subcontractor. and the
name of
(E) The City Manager, with 'the advice and counse
accord with City of Fort' Worth Resolution 1Noo,� the DBEAC in
submit an annual report to the city Council on
the cit ��'�� � shall
Y toward the utilization goals establishedo b ess of
ordinance, together with an
specific recommendations for improving the Cit°fs y this
problems and
Y performance.
Vim- DEBARMENT
(A) The misrepresentation of facts
misrepresentation) and/or the (other than
Offeror will result in the offeror beinlode of a negligent
irresponsible offeror and barred from arti fraud by an
work for a g determined to be an
Period of time of not less than cipa ting in City .
(B) The MBE./Fagg pffi.ce will send a written state �3) � years,
a recommendation for debarment to the
meet of facts and
City Manager, after consultation with the D panne Manag6r. The
Will make the decision regardin
certified notice to the Offeror, g debarment ,andnt of Law'
send a
(C) An offeror that receives notification o
to an Appeal Board, f debarment ma appeal
notice within ten hereinafter created, by y i.
debarment (�0) days from the date of greceiptwof the
notice, to the City Manager . of its request for
appeal. .
(D) An Appeal . Board
appointed b consisting of not less than three members
Council will the City Manager with the a
ill meet within thirty (30 days roval of the city
receipt of the request for a ) from the date of
requests an extension of time of debarment, unless Offeror
Of the meeting time and location.
Offeror will be
notified '
(E) The Offeror will be afforded an o
Counsel if they so desire, pportunity to a
confront an documentary evidence , w
submit and
Y Person the City presents.
(F) The Appeal Board will render its decision not no
(30) days of the hearing and send certified noti e thirty
a certifi
Offeror, c to the
(G) If the Appeal Board
Offeror ma upholds the original debarment, the
Y appeal to the City Council within ten
from the date of receipt of the A
giving written notice to the City Ii apna g e Board 's deci�io naby
-zl--
(H) The appeal will be
Placed
thirty '(30) da s on the City Council
Y from receipt of written
agenda within
Off - requests an extension in writing.
notice, unless
(Z) From the date of notification of
pendency of any appeal, the city debarment and durin
from, award contracts to Y wall not consider g the
With, or contract directly or otherwise e offers
with the offeror Y indirectly through contracts
Pending the Appeal Boards gh subcontracts
decision.
=X• SEVEPABILITY
if any provision of .this attachment or ordi
thereof to any person or circumstance is nance p
reason in a court of competent jurisdiction such the aPPlacatiny
. not affect the other held, invalid for any
attachment or ordinance provisions c f an ch invalidity shall
Y other application of this
invalid provision or application ,an be given effect
Provisions of this attacm nt or ordinancetare Without the .
be severable, this end, all .the
hereby declared to
-22 *
t
ATTACHMENT "D" COMMUNITY LIEN NOTE
Date: August 13, 2001
Maker: Texas Housing and Economic Resources, Inc.
Maker's Mailing Address (including county):
Texas Housing and Economic Resources, Inc.
1801 Evans Ave.
Fort Worth, Tarrant County, Texas 76104
Payee: City of Fort Worth
Place for Payment (including county):
City of Fort Worth
c/o Housing Department
1000 Throckmorton'
Fort Worth, Tarrant County, Texas
Principal Amount: TWO HUNDRED SEVENTY THREE THOUSAND FIVE HUNDRED AND
NO11OO DOLLARS ($273,500.00).
Annual Interest Rate on Unpaid Principal Balance from Date of Funding: 0 Percent Per Annum
Annual Interest Rate on Matured Unpaid Amounts: The maximum lawful rate of interest per annum
Terms of Payment (principal and interest): Principal and interest are payable as follows:
The first payment will be paid by Texas Housing and Economic Resources, Inc., the 1'` day of the month
following 30 days after the first mortgage lien holder (the loan utilized for land acquisitions and lot
development expenditures) is paid in full. The amount of monthly installments will be determined by the .
number of months remaining within the 5-year pay back period.
Maker may prepay all or any part of the principal of this note before maturity without penalty, and no
interest shall accrue on any amount so prepaid.
Page 31