HomeMy WebLinkAboutContract 42289STATE OF TEXAS
COUNTY OF TARRANT
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CITY SECRETARY
CONTRACT NO. :;\d-.;;t ~:j
This contract ("Contract") is made and entered into by and between the City of
Fort Worth (hereafter "City") and Tarrant County Housing Partnership, Inc. (hereafter
"Developer"), a Texas nonprofit corporation. City and Developer may be referred to
individually as a "Party" and jointly as "the Parties".
The Parties state as follows:
WHEREAS, City has received a grant from the United States Department of
Housing and Urban Development ("HUD") through the HOME Investment Partnerships
Program ("HOME"), Program No. M-09-MC-480204 Catalog of Federal Domestic
Assistance No. 14.239, with which City desires to promote activities that expand the
supply of affordable housing and the development of partnerships among City, local
governments, local lenders, private industry and neighborhood-based nonprofit housing
organizations;
WHEREAS, the primary purpose of the HOME program pursuant to the HOME
Investment Partnerships Act at Title II of the Cranston Gonzales National Affordable
Housing Act of 1990, as amended, 42 U.S.C. 12701 et seq. (the "Act") and the HOME
Investment Partnerships Program Final Rule, as amended, 24 CFR Part 92 et seq. (the
"HOME Regulations" or "Regulations") is to benefit low income citizens by providing
them with affordable housing;
WHEREAS, the Act requires a 15% set-aside of City's HOME funds for
investment only in housing to be developed, sponsored or owned by certain housing
development entities that qualify under the HOME Regulations as a Community Housing
Development Organization ("CHDO");
WHEREAS, Developer is a nonprofit corporation managed by a volunteer Board
of Directors and qualified as a CHDO according to HOME Regulations, and is working
to increase the number of quality, accessible, and affordable housing units available to
low and moderate income persons;
WHEREAS, Developer submitted a proposal to use HOME funds for an eligible
project under the HOME Regulations whereby Developer will acquire, rehabilitate and
redevelop 71 existing multifamily rental units located in the 5500 block of Beaty Street in
the City of Fort Worth into 66 multifamily rental units and a community center (the
"Required Improvements" or project), as further described in Exhibit "A"-Project
Summary;
WHEREAS, City citizens and the City Council have determined that the
development of quality, accessible, and affordable housing is needed for moderate, low,
and very low-income citizens of Fort Worth;
OFFICIAL RECORD
CITY SECRETARY
09 -20 -1 AliTJ. Mf~R1iti, TX
NOW, THEREFORE, in consideration of the mutual covenants and obligations
and responsibilities contained herein, including all Exhibits and Attachments, and subject
to the terms and conditions hereinafter stated, the Parties understand and agree as
follows:
1. INCORPORATION OF RECITALS.
City and Developer hereby agree that the recitals set forth above are true and
correct and form the basis upon which the Parties have entered into this Agreement.
2. DEFINITIONS.
In addition to terms defined in the body of this Contract, the following terms shall
have the definitions ascribed to them as follows:
Accessible Units means units accessible to handicapped tenants. Developer must comply
with Section 504 requirements and other federal accessibility requirements.
The Required Improvements must contain 6 Accessible Units. Of these 6 units, 4 must
be accessible to individuals with mobility impairments, and the other 2 must be
accessible to individuals with visual or hearing impairments.
Affordability Period means the period of time that housing that is purchased, renovated
or constructed with HOME Funds must remain affordable and subject to recapture
provisions for the affordability periods described in 24 CFR Part 92.254 of the HOME
Regulations. Housing assisted with HOME funds must remain affordable housing for the
following minimum periods:
• New construction, 20 years
• Refinancing with rehabilitation, 15 years
• Rehabilitation and/or acquisition of existing housing, then
• An investment of $14,999 or less per unit, 5 years
• An investment of$15,000 to $39,999 per unit, 10 years
• An investment of $40,000 or more per unit, 15 years
The Affordability Period for this project is 15 years. The Affordability Period begins on
the date that the project status is changed to "complete" in HUD's Integrated
Disbursement Information System ("IDIS") maintained by the City and HUD as required
by the HOME Regulations.
Area Median Income (AMI) means the median family income for the Fort Worth-
Arlington metropolitan statistical area as established annually by HUD.
Complete Documentation means a report or reports in a form reasonably acceptable to
City that contains a summary of all HOME eligible costs expended for the Required
Improvements with the following supporting documentation as appropriate: (i) copies of
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invoices for all completed work and other documents such as cancelled checks or wire
transfers necessary to demonstrate that such amounts were actually paid , including
without limitation ; (ii) final lien releases signed by the general contractors or appropriate
subcontractors ; (iii) copies of all City permits issued for such work and City-issued
"pass" inspections for such work ; (iv) documentation to show compliance with M/WBE
bidding process for such work, as applicable; (v) Exhibits A -J ; (vi) sufficient proof to
show tenant income eligibility; and (vii) any other document or records reasonably
necessary to verify costs spent for such project.
Completion shall mean the substantial completion of the Required Improvements , as
evidenced by a HUD Compliance Inspection Report with final inspection appro val from
the City.
Completion Deadline means May 31 , 2013.
Effective Date means the date of this Contract is fully executed by the Parties and the
City Secretary as shown by their respective signatures .
HOME Funds means City's HOME funds supplied by City to Developer under the
terms of this Contract.
HOME Unit means a unit that is subject to the HOME Regulations. HOME Units can
be designated as either High and \or Low HOME units.
This project contains 21 Home Units . Of these HOME units , 7 are one-bedroom units , 12
are two-bedroom units , and 2 are four-bedroom units . The HOME units are floating.
High HOME Unit means a unit that must be leased to High HOME Eligible Tenant and
leased for High HOME Rent. High HOME Units can float among units that are
materially similar in number of bedrooms , square footage, and amenities ; however, if the
units are not materially similar, then the High HOME units must be fixed.
This project contains 16 High HOME Units.
Low HOME Unit means a unit that must be leased to Low HOME Eligible Tenant and
leased for Low HOME Rent. Low HOME Units can float among units that are materially
similar in number of bedrooms , square footage , and amenities ; however, if the units are
not materially similar, then the Low HOME units must be fixed .
If there are more than 5 HOME Units , then 20% of the total HOME units must be
designated as Low.
This project contains 5 Low HOME Units.
High HOME Eligible Tenant means (i) for a tenant who is the first to occupy a High
HOME Unit, a tenant whose annual income adjusted for family size does not exceed 60%
of AMI , and (ii) for a tenant who is not the first to occupy a High HOME Unit, a tenant
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whose annual income adjusted for family size does not exceed 80% of AMI. Tenant
income must be verified using the most current HUD Income Guidelines and Technical
Guidance for Determining Income and Allowances subject to the income verification
requirements of Section 7 .2 of this Contract. The definition of annual income to
determine tenant income eligibility under this Contract shall be the definition contained
in 24 CFR Part 5.609 as amended from time to time.
High HOME Rent means a rent amount that is the lesser of (i) the HUD established Fair
Market Rent for existing comparable housing units in the area; or (ii) 30% of the adjusted
income of a family whose annual income equals 65 % of AMI with applicable adjustment
for the bedroom size of the relevant housing unit.
Low HOME Eligible Tenant means a tenant whose annual income adjusted for family
size does not exceed 50% of AMI established by HUD. Tenant income must be verified
using the most current HUD Income Guidelines and Technical Guidance for Determining
Income and Allowances subject to Section 7 .2 of this Contract. The definition of annual
income to determine tenant income eligibility under this Contract shall be the definition
contained in 24 CFR Part 5.609 as amended from time to time
Low HOME Rent means a rent amount that is no more than 30% of the annual income
of a family at 50 % of AMI adjusted for family size.
Loan Documents means security instruments including without limitation, notes , deeds
of trust , security agreements , guaranties , pledges or other similar security instruments
evidencing, securing or guaranteeing City's interest in the Required Improvements
constructed under this Contract and further evidencing, securing, or guaranteeing
Developer 's performance during the Affordab ility Period, as the same may from time to
time be extended, amended , restated , supplemented or otherwise modified.
Property means the land on which the Required Improvements shall be constructed as
more particularly described in and encumbered by the deed of trust.
Proceeds means proceeds resulting from the investment of the CHDO set-aside funds .
Rental income which is generated by a CHDO-owned project does not constitute
Proceeds. HOME funds recaptured because housing no longer meets affordability
requirements under 24 CFR Part 92(a)(5)(ii) of the HOME Regulations are not
considered Proceeds , and are subject to HOME requirements on program income.
Required Improvements or the project means all the improv ements to the Property for
an affordable rental housing project to be constructed on the Property, together with all
fixtures , tenant improvements and appurtenances now or later to be located on the
Property and/or in such impro vements . The Required Improvements are commonly
known as the Beaty Street Apartments.
Source Documentation means any documentation allowed under the 24 CFR Part 5.609
definition of annual income.
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3. TERM AND EXTENSION.
3.1 Term.
The term of this Contract begins on the Effective Date and terminates in 2 years
unless terminated as provided in this Contract.
3 .2 Extension.
This Contract may be extended for 1 year upon Developer submitting a request
for an extension in writing at least 60 days prior to the end of the Contract term. The
request for extension shall include Developer's anticipated budget and goals and
objectives for the extended term. It is specifically understood that it is within City's sole
discretion whether to approve or deny Developer's request for an additional term. Any
such extension must be in writing as an amendment to this Contract.
4. DUTIES AND RESPONSIBILITIES OF CITY.
4.1 Loan of HOME Funds.
City shall loan up to One Million and Noll 00 Dollars ($1 ,000 ,000.00) of HOME
Funds in the form of a subordinate loan to complete the construction of the Required
Improvements, under the terms and conditions described herein (the "Loan").
4.2 City Will Monitor.
City will monitor the activities and performance of Developer and its contractors
as necessary, but no less than annually as required by the HOME Regulations , 24 CFR
Part 92.504 .
5. DEVELOPER OBLIGATIONS.
5.1 Required Improvements.
In accordance with the terms and conditions of this Contract, Developer shall
construct the Required Improvements as described in Exhibit "A" -Project Summary.
5 .1.1 Inspections.
The project must pass inspection and be approved during the construction period
as shown on a HUD Compliance Inspection Report completed by the City's Housing and
Economic Development Department inspectors .
5.2 . Construction Schedule.
Developer will construct the Required Improvements in accordance with the
schedule set forth in the attached Exhibit "C" -Construction Schedule. Developer
shall not begin construction until City sends a Notice to Proceed. Developer's failure to
meet the Construction Schedule shall be an ev ent of default. The City may at its sole
di scretion appro v e any changes to the Construction Schedule after Developer has
submitted a written request for the change and a proposed modified Construction
Schedule. If appro ved, then the Parties shall execute an amendment to the Contract.
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5.3 Use of HOME Funds.
5.3.1 Expenditures in Compliance with HOME Regulations and Contract.
Developer shall be reimbursed for the project costs with HOME Funds only if:
5.3.1.1 Costs are eligible expenditures in accordance with HOME
Regulations as determined by the City in its sole discretion.
5.3 .1.2 Costs are in compliance with this Contract as determined by the
City in its sole discretion and are reasonable and consistent with
industry norms.
5.3.1.3 Complete Documentation as determined by the City in its sole
discretion is submitted by Developer.
5.3.2 Budget.
Developer agrees that the HOME Funds will be reimbursed in accordance with
Exhibit "B" -Budget. Developer may not increase or decrease line-item amounts in the
Budget without the prior written approval of the director of the Housing and Economic
Development department of the City of Fort Worth .
5.3.3. Security for City's Interest.
To secure City's interest in the Required Improvements in the event that
Developer is unable for any reason to fully complete its obligations under this Contract,
Developer shall execute the Promissory Note and any other Loan Documents and record
the Deed of Trust encumbering the real property on which the Required Improvements
will be constructed. No funds will be paid or reimbursed until the Deed of Trust is
recorded.
5.3.4 Loan Terms and Conditions.
Developer will be required to:
5.3.4 .1 Execute a subordinate Promissory Note and Deed of Trust Security
Agreement -Financing Statement and other Loan Documents
secured by Developer's interest in the Property and Required
Improvements in the amount of the Loan.
5.3.4.2 Provide City with a Mortgagee's Policy of title insurance in the
amount of the Loan.
5.3.4 .3 Pay all costs associated with closing the Loan.
5.3.4.4 At least 1 business day before closing, Developer will provide to
City the estimated settlement statement.
5.3.4.5 Ensure City's lien is only subordinate to the senior indebtedness
described in a subordination agreement between City and the
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construction lender and /or the permanent finance lender. City
must approve in writing any secured financing that is to be
subordinate to City' Loan.
5.3.4.6 The term of the Loan shall commence on the date of the
Promissory Note and shall terminate with the end of the
Affordability Period.
5.3.4 .7 Payment will be deferred throughout the Loan term. The Loan is
forgivable at the end of the Affordability Period, provided that all
Affordability Requirements and HOME Program requirements
have been met and Developer is not otherwise in default of the
Loan terms or of this Contract.
5.3.4.8 Early repayment of the Loan shall not relieve Developer of its
obligations under this Contract or the HOME Regulations and will
not result in the release of the Deed of Trust which must remain in
place until the end of the Affordability Period to secure
Developer's performance hereunder.
5.3.4.9 City agrees that its Loan shall be subordinate to Developer's
construction and/or permanent lenders and City agrees to execute
subordination agreements as requested by the construction and /or
permanent lender. City also agree to execute partial releases as
may be necessary as determined by City in its sole discretion to
allow Developer to complete its obligations under this Contract
provided that Developer is not otherwise in default of the
provisions of this Contract including but not limited to those
provisions relating to tenant income eligibility under the HOME
Program requirements , and so long as the partial release is in the
City's best interest. The Deed of Trust will continue to secure
Developer 's performance of its obligations hereunder throughout
the Affordability Period regardless of any repayment of the Loan.
5.3.4.10 Except for permanent loan conversion with Developer 's
permanent lender, refinancing by Developer shall require the
review and prior written approval of City for the purpose of
ensuring compliance with the HOME affordability requirements ,
which approval shall not be unreasonably withheld.
5.3.4.11 Any failure by Developer to comply with this Section 5.3.4
will be an Event of Default under this Contract and the Loan
Documents.
5.3.5 Payment of HOME Funds to Developer.
HOME Funds will be disbursed to Developer on a reimbursement basis upon
Developer's written and signed request for reimbursement and submission of Complete
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Documentation to City in accordance with Exhibit "C" -Construction Schedule,
attached hereto and made apart hereof for all purposes.
5.3.6 Maintain Affordability Requirements.
Developer shall ensure that Required Improvements shall remain affordable
throughout the Affordability Period as required by the HOME Regulations. There shall
be a 10% payment of the total Loan amount by Developer to City as liquidated damages
if Affordability Requirements are not maintained during Affordability Period.
5.3.6.1 City Monitoring for Affordability Requirements.
City will monitor the activities and performance of Developer and
its contractors in order to ensure that the Required Improvements
remain affordable and are in compliance with the HOME
Regulations and this Contract.
5.3.7 Affordability Requirement Survives Transfer.
The HOME Units must remain affordable without regard to the term of any
mortgage or transfer of ownership , pursuant to the terms of the Loan Documents, any
deed restrictions or other mechanism provided by HUD. Any sale or transfer of the
project during the Affordability Period, excluding a transfer due to condemnation or to
obtain utility services , will require the repayment of any unpaid principal or the new
owner or transferee must affirmatively assume in writing the obligations established
hereunder for the HOME Units.
5.4 Acknowledgement of Completion.
Within 90 days of Completion, Developer shall sign an acknowledgement that
City has met all of its obligations under this Contract, or shall sign a document stating
what City obligations are outstanding. Once City has met all of its obligations, Developer
shall sign an acknowledgement of same.
5.5 HOME Unit Reporting.
Developer must notify the City m writing within 30 days of either of the
following occurrences:
5 .5.1 any HOME Unit is occupied by a tenant who is not income eligible or,
5.5.2 any HOME Unit remains vacant for more than 90 days.
6. RENTAL HOUSING CONSTRUCTION WITH HOME FUNDS
6.1 Construction to Conform to All Applicable Laws, Building Codes and
Ordinances.
All plans , specifications and construction for the Required Improvements shall (i)
conform to all applicable Federal , state and local laws , ordinances , rules and regulations ,
including HOME Regulations; (ii) meet all City building codes; (iii) be certified as
meeting the Energy Conservation requirements as required by the State of Texas in
Chapter 11 of the International Residence Code; (iv) for new construction, must conform
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to the Model Energy Code, published by the Council of American Building Officials ; and
(v) pass inspection by City's Housing and Economic Development Department
inspectors. Housing units constructed with HOME Funds furnished under this Contract
shall meet all applicable standards under City Codes and ordinances.
6.2 Property Standards.
Dev eloper shall comply with the requirements contained in 24 CFR Part 92.251
as relates to Property Standards and Housing Quality Standards (HQS), and Accessibility
Standards under 24 CFR Part 92.251 (a)(3) as applicable, for the Required
Improvements .
6.2 .1 Property Maintenance and Inspections.
Developer shall ensure that the project is maintained to the standards described in
Section 6 for the duration of the Affordability Period. City will verify maintenance of the
project to these standards through on-site inspections according to the following schedule
as applicable: for projects with I to 4 units , every 3 years; for projects with 5 to 25 units,
every 2 years ; for projects with 26 or more units , every year.
6.3 Lead-Based Paint Requirements.
If the Required Improvements include units built prior to 1978 , Developer must
conduct a lead assessment in accordance with Lead Based Paint Requirements as found
in 24 CFR Part 92.355 and 24 CFR Part 35. Developer will comply with Federal lead-
based paint requirements including lead screening in housing built prior to 1978 in
accordance with 24 CFR Part 92.355 , 24 CFR Part 35 , subparts A , B , J , K , M , and R, and
the Lead ; Renovation, Repair and Painting Program Final Rule, 40 CFR Part 745 in the
construction and rehabilitation of the Required Improvements.
6.4 Approval by City of Plans and Specifications Not Release of
Responsibility.
Approval of any plans and specifications relating to the Required Improvements
by City shall not constitute or be deemed (i) to be a release of the responsibility or
liability of Developer or any of its contractors , their respective officers, agents ,
employees and subcontractors, for the accuracy or the competency of the plans and
specifications, including, but not limited to , any related investigations , surveys , designs ,
working drawings and specifications or other documents; or (ii) an assumption of any
responsibility or liability by City for any negligent act, error or omission in the conduct or
preparation of any investigation, surveys , designs , working drawings and specifications
or other documents by Developer or any of its contractors , and their respective officers ,
agents , employees and subcontractors.
6.5 Approval by City of Subcontractors.
Developer will use commercially reasonable efforts to ensure that all
subcontractors utilized by Developer or Developer's general contractor are appropriately
licensed and such licenses are maintained throughout the construction of the Required
Improvements. Dev eloper shall ensure that all subcontractors utilized by Developer or
Developer 's general contractor in the construction of the Required Improvements are not
debarred or suspended from performing the subcontractor's work within the City, the
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State of Texas , or the Federal government. Developer must confirm that all
subcontractors are not listed on the Federal Excluded Parties List System, www.epls.gov ,
and must submit printed verification of such searches with the first reimbursement
request which include invoices from any subcontractor. Failure to submit such proof
shall be an event of default. In the event that City determines that any subcontractor has
been debarred , suspended , or is not properly licensed, Developer or Developer's general
contractor shall immediately cause the subcontractor to stop work on the project. In the
event that any subcontractor has been debarred , suspended , or is not properly licensed,
Developer or Developer's general contractor shall not be reimbursed for any work
performed by such subcontractor. However, this Section should not be construed to be an
assumption of any responsibility or liability by City for the determination of the
legitimacy, quality, ability, or good standing of any subcontractor.
7. TENANT SELECTION AND INCOME VERIFICATION.
7 .1 Income Eligibility.
Developer must use the annual income definition used by 24 CFR 5.609 to establish
tenant income eligibility. Developer shall use the most current HUD Income Guidelines
and Technical Guidance for Determining Income and Allowances to determine tenant
eligibility.
7 .2 Income Verification.
7.2.1 Before executing any lease, Developer must verify all new tenants '
income eligibility with Source Documentation. Afterward , Developer must annually
verify the tenant's income , but may use the City-approved tenant self-certification form
attached hereto as Exhibit K rather than Source Documentation.
7.2.2 Not withstanding the foregoing , every 6th year of the Affordability Period ,
Developer must verify the income eligibility of all tenants with Source Documentation.
7 .2.3 Developer must maintain copies of such Source Documentation and all
tenant self-certification forms as required under this Contract.
7.3 Tenant Lease.
Developer shall use a tenant lease that complies with the pro vision in the HOME
Regulations , 24 CFR Part 92 .253 , regarding the following issues:
7.3.1 Length of lease term shall not exceed 2 years and may not be shorter than 1
year.
7.3.2 Lease may not include agreement by tenant to allow landlord to take , hold
or sell tenant's property without notice.
7.3.3 Lease may not include agreement b y the tenant to excuse owner from
responsibility for intentional or negligent acts.
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7.3.4 Lease may not authorize owner to institute a lawsuit without notice to the
tenant.
7 .3 .5 Lease may not include agreement by tenant to waive a jury trial or right of
appeal.
7.3.6 Lease may not include an agreement by tenant to pay legal costs of court
proceeding even if the tenant prevails in those proceedings regardless of outcome.
7.3.7 Within 30 days of execution of each lease for HOME Units , Developer
must submit to City Exhibit "F" -Tenant Demographic Report.
7 .3 .8 Developer shall provide City copies of revised lease forms within 30 days
of any change to its lease form.
7.4 Tenant Rent.
As applicable to the number of HOME Units designated for the Required
Improvements and outlined in Exhibit "A" -Project Summary, rents charged to tenants
are subject to the HOME Regulations at 24 CFR 92.252 (a) and (b). Rents charged to
tenants in HOME Units are subject to review and approval by City. Under no
circumstances may the maximum rental amounts charged to tenants of HOME Units
exceed the High Home Rent minus monthly allowances for utilities and services
(excluding telephone) established by HUD. Developer agrees to abide by HUD-approved
schedules of HOME rent levels and locally adopted utility allowances published by the
Fort Worth Housing Authority.
7 .5 Tenant Selection.
Within 30 days of Contract execution, Developer must submit to City for
approval written tenant selection policies and criteria that address the following:
7.5 .1 Tenant Selection policy must be consistent with the purpose of providing
housing for very low and low income persons.
7.5.2 Tenant Selection policy must provide for:
7.5.2.1 The selection of tenants from a written waiting list in the
chronological order of their application , insofar as is practicable;
7.5 .2.2 The prompt written notification to any rejected applicant of the
grounds for such rejection; and
7.5.2.3 Bi-lingual leasing and management assistance.
7.5 .3 Holders of rental assistance subsidies (such as HUD's Housing Choice
Voucher or similar subsidy) must not be excluded from renting a unit in the Required
Improvements.
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7.5.4 The Tenant Selection policy must address non-discrimination and
affirmative marketing as discussed in Section 7.6.
7.5.5 The Developer must market accessible units in the following order:
7.5 .5.1 Market within the project to persons requiring an accessible unit.
7.5.5.2 Reference waiting list to check for persons requiring accessible
unit.
7.5.5.3 Market to general community for persons requiring accessible unit.
7.5.5.4 Market to persons that do not require accessible unit.
7.5.6 The Tenant Selection policy must address lease requirements as discussed
in Section 7.3.
7.5.7 The Tenant Selection policy must address managing HOME Unit mi x
under HOME Regulations.
7.5.8 The Tenant Selection policy must comply with state and local
tenant/landlord laws.
7.6 Affirmative Marketing.
Developer must adopt and implement affirmative marketing procedures and
requirements for all housing assisted with HOME Funds as required by 24 CFR 92.351 if
the project involves the construction of 5 or more HOME Units. The procedures and
requirements must include methods for informing the public , owners and potential
tenants about fair housing laws and policies so as to ensure that all individuals , without
regard for sex , age , race , color, creed , nationality, national origin, religion , handicap
status, disability, familial status , sexual orientation, gender identity, gender expression or
transgender, are given an equal opportunity to participate in the project. The procedures
and requirements must also include the designation of an individual that will be
responsible for marketing the project and establishing a clear application screening plan
and the maintenance of documentation and records to evidence affirmative marketing
procedures have been implemented. Developer 's affirmati ve marketing procedures must
be submitted to City for approval prior to implementation. City shall have no
responsibility with regard to affirmative marketing of the project.
8. Additional HOME Requirements.
Developer agrees to comply with all requirements of the HOME Program as
stated in the HOME Regulations, including, but not limited to the following:
8.1 Environmental Review.
HOME Funds will not be paid and costs cannot be incurred until City has
conducted and completed an environmental review of the proposed project site as
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required under 24 CFR Part 58. The environmental re view may result in a decision to
proceed with, modify, or cancel the project. Further, Developer will not undertake or
commit any funds to physical or choice limiting actions , including property acquisition ,
demolition , mo vement , rehabilitation , conversion, repair or construction prior to the
environmental clearance, and any violation of this provision will result in the denial of
any funds under this Contract.
8.2 Contract Not Constituting Commitment of Funds or Site Approval.
Notwithstanding any provision of this Contract, the Parties agree and
acknowledge that this Contract does not constitute a commitment of funds or site
approval , and that such commitment of funds or approval may occur only upon
satisfactory completion of environmental review and receipt by City of an authorization
to use grant funds from HUD under 24 CFR Part 58.
8.3 Compliance with the Uniform Relocation Act.
Developer shall comply with the relocation requirements of 24 CFR Part 92.353
and all other applicable federal and state laws and city ordinances and requirements.
8.4 Compliance with Davis-Bacon. Developer will comply with the
Davis-Bacon Act as described in Section 15.14 and Exhibit J of this Contract. In order to
monitor for compliance, Developer shall provide City access to employee payrolls ,
contractor and subcontractor payrolls and other wage information for persons performing
construction of the Required Improvements. In addition , Developer shall ensure that City
will have access to employees , contractors and subcontractors and their employees in
order to conduct onsite interviews with laborers and mechanics.
8.5 . Monitoring.
8.5 .1 Developer understands and agrees that it will be subject to monitoring by
City for compliance with the HOME Regulations for the duration of the Affordability
Period and until the project is closed in HUD's IDIS system. Developer will provide
reports and access to project files as requested by City during the Affordability Period
and for five (5) years after closeout of this Contract in HUD's !DIS system , and will meet
all the reporting requirements set out in this Contract. This Section shall survive the
termination or expiration of this Contract.
8.5.2 City shall have access at all reasonable hours to the Developer's records
that are related to the use of the HOME Funds , and its officers , directors , agents,
employees , and contractors for the purpose of such monitoring.
8.5.3 In addition to other provisions of this Contract regarding frequency of
monitoring, City reserves the right to perform desk reviews or on-site monitoring of
Developer's compliance with the terms and conditions of this Contract , and of the
adequacy and timeliness of Developer 's performance under this Contract. After each
monitoring visit , City shall provide Developer with a written report of the monitor's
findings . If the monitoring report notes deficiencies in Developer's performance, the
report shall include requirements for the timely correction of said deficiencies by
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Developer. Failure by Developer to take the action specified in the monitoring report
may be cause for suspension or termination of this Contract as provided in Section 11.
8 .6 Developer Procurement Standards.
Developer shall establish procurement procedures to ensure that materials and
services are obtained in a cost effective manner. When procuring services to be provided
under this Contract, Developer shall comply at a minimum with the procurement
standards at 24 CFR Part 84.40 through 24 CFR Part 84.48. Developer shall comply with
all applicable federal, state and local laws, regulations, and ordinances for making
procurements under this Contract.
8.7 Cost Principles/Cost Reasonableness.
Developer shall administer its use of HOME Funds in compliance with 0MB
Circular A-122, "Cost Principles for Non-Profit Organizations", as amended from time to
time. The allowability of costs incurred for performance rendered shall be determined in
accordance with 0MB Circular A-122 as supplemented by the provisions of this
Contract.
8.8 Terms Applicable to Contractors and Subcontractors.
Developer understands and agrees that all terms of this Contract, whether
regulatory or otherwise, shall apply to any and all contractors and subcontractors of
Developer which are in any way paid with HOME Funds or who perform any work in
connection with Developer's program. Contractor shall cause all applicable provisions of
this Contract to be included in and made a part of any contract or subcontract executed in
the performance of it obligations hereunder. Developer shall monitor the services and
work performed by its contractors and subcontractors on a regular basis for compliance
with the HOME Regulations and Contract provisions. Developer is liable for all failure to
perform and violations of the HOME Regulations by its contractors or subcontractors.
City maintains the right to insist on Developer's full compliance with the terms of this
Contract and Developer is responsible for such compliance regardless of whether actions
taken to fulfill the requirements of this Contract are taken by Developer or by
Developer's contractors or subcontractors.
8.9 Proceeds.
Developer as a CHDO shall be permitted to retain any Proceeds, and use such
funds for any low-income housing activities or operational support of the CHDO.
9. REPORTING AND DOCUMENTATION REQUIREMENTS.
Developer shall maintain a record-keeping system as part of its performance of
this Contract and shall promptly provide City with copies of any document City deems
necessary for the effective fulfillment of City's monitoring and evaluation
responsibilities. Specifically, Developer will keep or cause to be kept an accurate record
of all actions taken and all funds spent, with supporting and back-up documentation.
10. REIMBURSEMENT REQUIREMENTS.
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10 .1 With each reimbursement request, De veloper shall provide City with the
following reports and supporting documentation:
10.1.1 Exhibit "E" -Narrative Report. This report shall contain information
detailing activities since last submitted reimbursement request.
10.1.2 Exhibit "G" -Request For Funds. This report shall contain the amount
of funds requested for reimbursement and shall be signed by the authorized signatory of
the Developer.
10 .1.3 Exhibit "H" -Detail Statement of Costs. This report shall contain
information regarding the current reimbursement request and cumulative balance and
shall be signed by the authorized signatory of the Developer.
10.1.4 Exhibit "I" -Expenditures Worksheet. This report shall and shall be
signed by the authorized signatory of the Developer and shall contain an itemized
listing of all eligible expenses requested for reimbursement. In order for this report to
be complete the following must be submitted:
10.1.4.1 Invoices for all expenses listed -the invoice must clearly show it
pertains to the site described in the project description ;
10.1.4.2 Proof that the expenses were paid by the Developer which can be
satisfied by cancelled checks , wire transfers or other appropriate
banking documentation; and
10.1.4.4 Lien releases as City reasonably determines necessary. The final
reimbursement shall not be disbursed until all liens are released
to City's satisfaction as evidenced by a title report and proof of
Completion is provided.
10.1.5 Exhibit "J" -Davis Bacon Report.
10 .2 The City retains the right to change reporting requirements and forms at its
discretion. Upon such change, then the Parties shall execute an amendment to the
Contract.
10.3 Withholding Payment. IF THE REQUIRED REPORTS AND
APPROPRIATE SUPPORTING DOCUMENTATION ARE NOT RECEIVED BY
THE DUE DATE, CITY SHALL WITHHOLD PAYMENTS REQUESTED
UNDER THIS CONTRACT. Failure to submit required reports shall be an event
of default.
11. DEFAULT AND TERMINATION.
11.1 Failure to Begin or Complete the Required Improvements
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11.1.1 If Developer fails to begin construction, which for the purposes of this
Contract shall be defined as substantial completion of the rehabilitation of the buildings
as described on Exhibit "A" -Project Summary, within 12 months of the execution of
this Contract, the Contract shall automatically terminate without further warning or
opportunity to cure, and with no penalty or liability to City.
11.1.2 If City determines that the Required Improvements were not completed by
the Completion Deadline, City shall have the right to terminate this Contract with no
penalty or liability to City, with such termination to be effective immediately upon
written notice.
11.2 Failure to Submit Required Documentation During Construction.
If Developer fails to submit any report or provide documentation required by this
Contract during construction of the Required Improvements as described in Section 10 ,
or if the submitted report or documentation is not in compliance with this Contract or
HOME Regulations as determined by City, City will notify Developer in writing and the
Developer will have 15 calendar days from the date of the written notice to submit or
resubmit any such report or documentation. If the Developer fails to submit or resubmit
any such report or documentation within such time, City shall have the right to withhold
payments or terminate this Contract effective immediately upon written notice of such
intent with no penalty or liability to City. Notwithstanding anything to the contrary
herein, City will not be required to pay any HOME Funds to Developer during the period
that any report or documentation is past due or is not in compliance with this Contract or
the HOME Regulations. In the event of termination under this Section 11.2 , all HOME
Funds awarded but unpaid to Developer pursuant to this Contract shall be immediately
rescinded and Developer shall have no further right to such funds, and any HOME Funds
already paid to Developer must be repaid to City within 30 days of the termination.
Failure to repay such HOME Funds will result City exercising all legal remedies
available to City under this Contract and the Loan Documents .
11.3 Failure to Submit Required Reports and Documentation During
Operation.
If Developer fails to submit any report or documentation required by this Contract
after Required Improvements are completed, or if the submitted report or documentation
is not in compliance with this Contract or the HOME Regulations as determined by City,
City will notify Developer in writing and the Developer will have 15 calendar days from
the date of the written notice to submit or resubmit any such report or documentation to
City. If the Developer fails to submit or resubmit any such report or documentation
within such time, City shall have the right to terminate this Contract effective
immediately upon written notice of such intent with no penalty or liability to City.
11.4 In General.
Subject to Sections 11 .1, 11.2 , and 11.3 and unless specifically provided
otherwise in this Contract, Developer shall be in default under this Contract if Developer
breaches any term or condition of this Contract or any other Contract between City and
Developer. In the event that such a breach remains uncured after 30 calendar days
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following written notice by City or, if Developer has diligently and continuously
attempted to cure following receipt of such written notice but reasonably required more
than 30 calendar days to cure, as determined by both Parties mutually and in good faith ,
City shall have the right to elect, as determined in City 's sole discretion, to terminate this
Contract effective immediately upon written notice of such intent to Developer, or to
pursue any other legal remedies available to City to ensure compliance with this Contract
and the Loan Documents. In the event of termination under this Section 11.4 , all HOME
Funds awarded but unpaid to Developer pursuant to this Contract shall be immediately
rescinded and Developer shall have no further right to such funds. In the event HOME
Funds have been paid to Developer, Developer agrees to repay them to City within 30
days of termination. If such HOME Funds are not repaid to City within the 30 day
period, City shall exercise all of its remedies under the Loan Documents including but
not limited to foreclosure under the Deed of Trust.
11.5 No Funds Disbursed while in Breach.
Developer understands and agrees that no HOME Funds will be paid to Developer
until all defaults are cured to the satisfaction of City.
11.6 No Compensation After Date of Termination.
In the event of termination , Developer shall not receive any compensation for
work undertaken after the date of the termination.
11. 7 Rights of City Not Affected.
Termination shall not affect or terminate any of the existing rights of City against
Developer, or which may thereafter accrue because of such default , and the foregoing
provision shall be in addition to any and all other rights and remedies available to City
under the law and Loan Documents including, but not limited to , compelling Developer
to complete the Required Impro v ements in accordance with the terms of the Contract.
Such termination does not terminate any applicable provisions of this Contract that have
been expressly noted as surviving the term or termination of the Contract.
11.8 Waiver of Breach Not Waiver of Subsequent Breach.
The waiver of a breach of any term , covenant , or condition of this Contract shall
not operate as a waiver of any subsequent breach of the same or any other term , covenant
or condition hereof.
11.9 Civil, Criminal and Administrative Penalties.
Failure to perform all the Contract terms may result in civil , criminal or
administrative penalties , including, but not limited to those set out in this Contract.
11.10 Termination for Cause.
City may terminate this Contract in the event of Developer's default , subject to
notice, grace and cure periods , inability, or failure to perform. Likewise, Developer may
terminate this Contract if City does not provide the HOME Funds substantially in
accordance with this Contract.
11.11 Termination for Convenience.
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In terminating in accordance with 24 C.F.R. 85.44 , this Contract may be
terminated in whole or in part only as follows:
11.11.1 By City with the consent of Developer in which case the Parties shall
agree upon the termination conditions , including the effective date and in the case of
partial termination, the portion to be terminated , or
11.11.2 By the Developer upon written notification to City, setting forth the
reasons for such termination, the effective date , and in the case of partial termination, the
portion to be terminated. However, if, in the case of a partial termination , City
determines that the remaining portion of the Contract to be performed or HOME Funds to
be spent will not accomplish the purposes for which the Contract was made , City may
terminate the Contract in its entirety.
11.12 Dissolution of Developer Terminates Contract.
In the event Developer is dissolved or ceases to exist , all assets acquired with
HOME Funds including cash, interest payments from loans or otherwise , all outstanding
notes , mortgages or other security instruments used to secure HOME Funds , any accounts
receivable attributable to the use of HOME Funds , and any real or personal property
owned by Developer that was acquired or improved with HOME Funds shall
automatically transfer to City and this Contract shall terminate.
12. REPAYMENT OF HOME FUNDS.
All HOME Funds are subject to repayment in the event the project does not meet
the requirements as set out in this Contract or in the HOME Regulations.
13. MATERIAL OWNERSHIP CHANGE.
Subject to limited partnership transfers with City consent, if ownership of the
Developer materially changes after the date of this Contract , City may but is not
obligated to , terminate this Contract. City has 30 days to make such determination after
receipt of notice from Developer and failure to make such determination will constitute a
waiver. In the event of termination under this Section 13 , all HOME Funds awarded but
unpaid to Developer pursuant to this Contract shall be immediately rescinded and
Developer shall have no further right to such funds , and any HOME Funds already paid
to Developer must be repaid to City within 30 days of the termination.
14. SURVIVAL.
Any provision of this Contract that pertains to affordability, monitoring, tenant
income eligibility, tenant rent and selection, tenant lease , record keeping and reports , and
City Building Codes , ordinances and housing quality standards , as well as any applicable
HOME requirements , and any default and enforcement provisions necessary to enforce
such provisions , shall survive the termination of this Contract and shall be enforceable by
City against Developer throughout the Affordability Period.
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15. GENERAL PROVISIONS
15.1 Developer Independent Contractor.
Developer shall operate hereunder as an independent contractor and not as an
officer, agent, servant or employee of City. Developer shall have exclusive control of,
and the exclusive right to control , the details of the work and services performed
hereunder, and all persons performing same, and shall be solely responsible for the acts
and omissions of its officers, members, agents, servants, employees, contractors, tenants,
licensees or invitees.
15.2 Doctrine of Respondeat Superior.
The doctrine of respondeat superior shall not apply as between City and
Developer, its officers, members , agents, servants, employees, contractors, tenants,
licensees or invitees, and nothing herein shall be construed as creating a partnership or
joint enterprise between City and Developer. City does not have the legal right to control
the details of the tasks performed hereunder by Developer, its officers, members, agents,
employees, contractors, licensees or invitees.
15.3 Developer Property. City shall in no way be nor under any
circumstances be responsible for any property belonging to Developer, its officers,
members, agents, employees, contractors, tenants, licensees or invitees that may be lost,
stolen or destroyed or in any way damaged and DEVELOPER HEREBY
INDEMNIFIES AND HOLDS HARMLESS CITY AND ITS OFFICERS,
AGENTS, AND EMPLOYEES FROM ANY AND ALL CLAIMS OR SUITS
PERTAINING TO OR CONNECTED WITH SUCH PROPERTY, SAVE AND
EXCEPT THOSE ARISING SOLELY OUT OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF CITY, ITS AGENTS OR EMPLOYEES.
15 .4 Religious Organization.
No portion of the HOME Funds shall be used in support of any sectarian or
religious activity. In addition, there must be no religious or membership criteria for
tenants of a HOME-funded property.
15.5 Audit.
15.5.1 Entities that Expend $500,000 or more in Federal Funds Per Year.
All non-federal entities that expend $500,000 or more in Federal funds within one
year, regardless of the source of the Federal award, must submit to City an annual audit
prepared in accordance with specific reference to 0MB Circular A-133. The audit shall
cover the Developer's fiscal years during which this Contract is in force. The audit must
be prepared by an independent certified public accountant, be completed within 6 months
following the end of the period being audited and be submitted to City within 30 days of
its completion. Developer's audit certification is attached hereto as Exhibit "D" -
"Audit Certification Form" and "Audit Requirements". The Audit Certification Form
must be submitted to City within 60 days of the end of period being audited (Developer's
fiscal year). Entities that expend less than $500,000 a year in Federal funds are exempt
from Federal audit requirements for that year, but records must be available for review or
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audit by appropriate officials of the Federal agency, City, and General Accounting
Office.
15.5.2 City Reserves the Right to Audit.
City reserves the right to perform an audit of Developer's project operations and
finances at any time during the term of this Contract, if City determines that such audit is
necessary for City's compliance with 0MB Circular A-133 , and Developer agrees to
allow access to all pertinent materials as described herein. If such audit reveals a
questioned practice or expenditure, such questions must be resolved within 15 business
days after notice to Developer of such questioned practice or expenditure. If questions
are not resolved within this period , City reserves the right to withhold further funding
under this and/or future contract(s) with Developer. IF AS A RESULT OF ANY
AUDIT IT IS DETERMINED THAT DEVELOPER HAS FALSIFIED ANY
DOCUMENTATION OR MISUSED, MISAPPLIED OR MISAPPROPRIATED
HOME FUNDS OR SPENT HOME FUNDS ON ANY INELIGIBLE ACTIVITIES,
SUBJECT TO CURE TO THE EXTENT OF ANY NEGLIGENT ACTION,
DEVELOPER AGREES TO REIMBURSE CITY THE AMOUNT OF SUCH
MONIES PLUS THE AMOUNT OF ANY SANCTIONS, PENALTY OR OTHER
CHARGE LEVIED AGAINST CITY BY HUD BECAUSE OF SUCH ACTIONS.
15.6 Venue.
Venue for any action, whether real or asserted, at law or in equity, arising out of
the execution , performance, attempted performance or non-performance of this Contract,
shall lie in Tarrant County, Texas.
15 . 7 Governing Law.
In any questions involving state law, for any action, whether real or asserted, at
law or in equity, arising out of the execution , performance or non-performance of this
Contract, in any issue not governed by federal law , the choice of law shall be the law
from the State of Texas.
15.8 Severability.
The provisions of this Contract are severable , and , if for any reason a clause ,
sentence, paragraph or other part of this Contract shall be determined to be invalid by a
court or Federal or state agency, board or commission having jurisdiction over the subject
matter thereof, such invalidity shall not affect other provisions which can be given effect
without the invalid provision.
15 .9 Written Agreement Entire Agreement.
This written instrument and the Exhibits attached hereto, which are incorporated
by reference and made a part of this Contract for all purposes , constitutes the entire
agreement 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 executed by each Party to this Contract.
15.10. Paragraph Headings for Reference Only, No Legal Significance.
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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.
15.11 Compliance With All Applicable Laws and Regulations.
Developer agrees to comply fully with all applicable laws and regulations that are
currently in effect or that are hereafter amended during the performance of this Contract.
Those laws include, but are not limited to:
}.> HOME Investment Partnership Act as set out above
}.> Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.)
including provisions requiring recipients of federal assistance to ensure
meaningful access by person of limited English proficiency
}.> The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C.
Sections 3601 et seq.)
}.> Executive Orders 11063, 11246 as amended by 11375 and 12086 and as
supplemented by Department of Labor regulations 41 CFR, Part 60
}.> The Age Discrimination in Employment of 1967
}.> The Age Discrimination Act of 1975 (42 U.S.C. Sections 6101 et seq.)
}.> The Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 (42 U.S.C. Sections 4601 et seq . and 49 CFR Part 24) ("URA")
}.> Section 504 of the Rehabilitation Act of1973 (29 U.S.C. Sections 794 et seq.)
and 24 CFR Part 8 where applicable
}.> National Environmental Policy Act of 1969, as amended, 42 U.S.C. sections
4321 et seq. ("NEPA") and the related authorities listed in 24 CFR Part 58.
}.> The Clean Air Act, as amended, (42 U.S.C. Sections 1251 et seq .) and the
Clean Water Act of 1977, as amended (33 U.S.C. Sections 1251 et seq.) and
the related Executive Order 11738. In no event shall any amount of the
assistance provided under this Contract be utilized with respect to a facility
that has given rise to a conviction under the Clean Air Act or the Clean Water
Act.
}.> Immigration Reform and Control Act of 1986 (8 U.S .C. Sections 1101 et seq.)
specifically including the provisions requiring employer verifications of legal
status of its employees
}.> The Americans with Disabilities Act of 1990 (42 U.S.C. Sections 12101 et
seq.), the Architectural Barriers Act of 1968 as amended (42 U.S.C. sections
4151 et seq.) and the Uniform Federal Accessibility Standards, 24 CFR Part
40 , Appendix A
}.> Regulations at 24 CFR Part 87 related to lobbying, including the requirement
that certifications and disclosures be obtained from all covered persons
}.> Drug Free Workplace Act of 1988 (41 U.S.C. Sections 701 et seq .) and 24
CFR Part 23, Subpart F
}.> Executive Order 12549 and 24 CFR Part 5.105(c) pertaining to restrictions on
participation by ineligible, debarred or suspended persons or entities
}.> Regulations at 24 CFR Part 882. 708( c) pertaining to site and neighborhood
standards for new construction projects
}.> Regulations at 24 CFR Part 983.6 for Site and Neighborhood Standards
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Review
);.> Regulations at 24 CFR Part 92 Home Investments Partnership Program Final
Rule
Requirement that Law Be Quoted in Covered Contracts. -Certain Requirements
Pertaining to Section 3 of the Housing and Urban Development Act of 1968 as amended
{12 U.S.C. Sections 1701 et seq.) and its related regulations at 24 CFR Part 135
If the work performed under this Contract is on a project assisted under a program
providing direct Federal financial assistance from HUD, Section 3 of 24 CFR 135.38
("Section 3") requires that the following clause, shown in italics, be inserted in all
covered contracts ("Section 3 Clause"):
Section to be quoted in covered contracts begins:
"A . The work to be performed under this contract is subject to the
requirements of Section 3 of Housing and Urban Development Act of
1968, as amended, 12 US.C. section 170lu (Section 3). The purpose of
Section 3 is to ensure that employment and other economic opportunities
generated by HUD assisted or HUD-assisted projects covered by Section
3, shall to the greatest extent feasible, be directed to low-and very-low
income persons, particularly persons who are recipients of HUD
assistance for housing.
B. The parties to this contract agree to comply with HUD 's
regulations in 24 CFR Part 135, which implement Section 3. As evidenced
by their execution of this contract, the parties to this contract certify that
they are under no contractual or other impediment that would prevent
them from complying with the Part 135 regulations.
C. The contractor agrees to send to each labor organization or
representative of workers with which it has a collective bargaining
agreement or other understanding, if any, a notice advising the labor
organization or workers ' representatives of the contractor's commitments
under this Section 3 clause and will post copies of the notice in
conspicuous places at the work site where both employees and applicants
for training and employment positions can see the notice. The notice shall
describe the Section 3 preference, sha ll set forth minimum number and job
titles subject to hire, availability of apprentice and training positions, the
qualifications for each; and the name and location of the person(s) taking
applications for each of the positions; and the anticipated date the work
sha ll begin.
D. The contractor agrees that it will include this Section 3 clause in
every subcontract to comply with regulation in 24 CFR Part 135, and
agrees to take appropriate action, as provided in an applicable provision
of the subcontract or in this Section 3 clause, upon finding that the
subcontractor is in violation of the regulations in 24 CFR Part 135. The
contractor will not subcontract with any subcontractor where it has notice
or knowledge that the subcontractor has been found in violation of
regulations in 24 CFR 135.
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E. The contractor will certify that any vacant employment positions,
including training positions that are filed: (I) after the contractor is
selected but before the contract is executed, and (2) with persons other
than those to whom the regulations of 24 CFR Part 135. The contractor
will not subcontract with any subcontractor where it has notice or
knowledge that the subcontractor has been found in violation of
regulations in 24 CFR 135.
F. Noncompliance with HUD 's regulation in 24 CFR Part 135 may
result in sanctions, termination of this contract for default, and debarment
or suspension from future HUD assisted contracts.
G. With respect to work performed in connection with Section 3
covered Indian housing assistance, section 7(b) of the Indian Self-
Determination and Education Assistance Act (25 US.C. section 450e) also
applies to the work to be performed under this Contract. Section 7(b)
requires that to the greatest extent feasible (i) preference and
opportunities for training and employment shall be given to Indians, and
(ii) preference in the award of contracts and subcontracts shall be given to
Indian organizations and Indian-owned Economic Enterprises. Parties to
this contract that are subject to the provisions of Section 3 and Section
79b) agree to comply with Section 3 to the maximum extent feasible, but
not in derogation of compliance with Section 7(b)."
Section to be quoted in covered contracts ends.
City and Developer understand and agree that, if applicable to the Project,
compliance with the provisions of Section 3, the regulations set forth in 24 CFR Part 135,
and all applicable rules and orders of HUD shall be a condition of the Federal financial
assistance provided to the Project binding upon City and Developer, and their respective
successors, assigns and the contractors. Failure to fulfill these requirements shall subject
Developer and its contractors and their respective successors and assigns to those
sanctions specified by the grant agreement through which Federal assistance is provided
and to such sanctions as are specified by 24 CFR Part 135.
15 .12 Prohibition Against Discrimination.
15.12.1 General Statements.
Developer, in the execution, performance or attempted performance of this
Contract, shall comply with all non-discrimination requirements of 24 CFR 92.350 and
the ordinances codified at Chapter 17, Article III, Division 4 -Fair Housing of the City
Code. Developer may not discriminate against any person because of race, color, sex,
gender, religion, national origin, familial status, disability or perceived disability, sexual
orientation, gender identity, gender expression, or transgender, nor will Developer permit
its officers, members, agents, employees, or Project participants to engage in such
discrimination.
This Contract is made and entered into with reference specifically to the
ordinances codified at Chapter 17, Article III, Di vision 3 -Employment Practices of the
City Code, and Developer hereby covenants and agrees that Developer, its officers,
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members, agents , employees and contractors , have fully complied with all provisions of
same and that no employee, or applicant for employment has been discriminated against
under the terms of such ordinances by either or its officers, members , agents , employees
or contractors.
15.12.2 No Discrimination in Employment during the Performance of
this Contract.
During the performance of this Contract Developer agrees , and will require the
following provision in all contracts with its contractors:
[Contractor's Name] will not unlawfully discriminate against any employee or
applicants for employment because of race, color, sex , gender, religion, national origin,
familial status , disability or perceived disability, sexual orientation, gender identity,
gender expression or transgender. [Contractor's Name] will take
affirmative action to ensure that applicants are hired without regard to race, color, sex,
gender, religion, national origin, familial status, disability or perceived disability, sexual
orientation, gender identity, gender expression or transgender and that employees are
treated fairly during employment without regard to their race , color, sex , gender, religion,
national origin, familial status , disability or perceived disability, sexual orientation,
gender identity, gender expression or transgender. Such action shall include, but not be
limited to , the following: employment, upgrading, demotion or transfer, recruitment or
recruitment advertising, layoff or termination, rates of pay or other forms of
compensation, and selection for training, including apprenticeship. [Contractor's Name]
agrees to post in conspicuous places , available to employees and applicants for
employment, notices setting forth the provisions of this nondiscrimination clause.
[Contractor's Name] will , in all solicitations or advertisements for
employees placed by or on behalf of [Contractor 's Name] , state that all
qualified applicants will receive consideration for employment without regard to race,
color, sex , gender, religion, national origin, familial status, disability or perceived
disability, sexual orientation, gender identity, gender expression or transgender.
[Contractor's Name] covenants that neither it nor any of its officers ,
members, agents, employees, Project participants or contractors, while engaged in
performing this Contract, shall , in connection with the employment, advancement or
discharge of employees or in connection with the terms , conditions or privileges of their
employment, discriminate against persons because of their age or because of any
disability or perceived di sability, except on the basis of a bona fide occupational
qualification, retirement plan or statutory requirement.
[Contractor 's Name] further covenants that neither it nor its officers ,
members , agents , employees , contractors, Project participants , or persons acting on their
behalf, shall specify, in solicitations or adverti sements for employees to work on this
Contract, a maximum age limit for such employment unless the specified maximum age
limit is based upon a bona fide occupational qualification, retirement plan or statutory
requirement.
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15.12.3 Developer's Contractors and ADA.
In accordance with the provisions of the Americans With Disabilities Act of 1990
("ADA"), Developer warrants that it and any of its contractors will not unlawfully
discriminate on the basis of disability in the provision of services to the general public,
nor in the availability, terms and/or conditions of employment for applicants for
employment with , or employees of Developer or any of its contractors. DEVELOPER
WARRANTS IT WILL FULLY COMPLY WITH ADA'S PROVISIONS AND
ANY OTHER APPLICABLE FEDERAL, STATE AND LOCAL LAWS
CONCERNING DISABILITY AND WILL DEFEND, INDEMNIFY AND HOLD
CITY HARMLESS AGAINST ANY CLAIMS OR ALLEGATIONS ASSERTED
BY THIRD PARTIES OR CONTRACTORS AGAINST CITY ARISING OUT OF
DEVELOPER'S AND/OR ITS CONTRACTORS' ALLEGED FAILURE TO
COMPLY WITH THE ABOVE-REFERENCED LAWS CONCERNING
DISABILITY DISCRIMINATION IN THE PERFORMANCE OF THIS
CONTRACT.
15 .13. Prohibition Against Interest / Conflict of Interest.
15.13.1 Developer shall establish safeguards to prohibit its employees ,
board members , advisors and agents from using positions for a purpose that is or gives
the appearance of being motivated by a desire for private gain for themsel ves or others ,
particularly those with whom they have family , business or other ties. Developer shall
disclose to City any conflict of interest or potential conflict of interest described above ,
immediately upon discovery of such.
15 .13.2 No persons who are employees , agents , consultants , officers or
elected officials or appointed officials of City or of Developer who exercise or have
exercised any functions or responsibilities with respect to acti vities assisted with HOME
funds or who are in a position to participate in a decision-making process or gain inside
information with regard to these activities may occupy a HOME Unit , may obtain a
financial interest or benefit from a HOME-assisted activity, or have an interest in any
contract , subcontract or agreement with respect thereto , or the proceeds thereunder, either
for themselves or those with whom they have family or business ties , during their tenure
or for 1 year thereafter, unless they are accepted in accordance with the procedures set
forth at 24 C.F.R. Part 92.356.
15 .13.3 Dev eloper affirms that it will adhere to the provisions of the Texas
Penal Code which prohibits bribery and gifts to public servants.
15.13.4 In the procurement of property and services by Developer, the
conflict of interest provisions of 24 CFR Part 85.36 and 24 CFR Part 84.42 , respectively,
shall apply. In all cases not governed by those sections, the pro visions of 24 CFR Part
92.356 of the HOME Regulations shall apply.
15.14 Labor Standards.
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc . -Beaty Street
Rev 08-15-11
Page 25
15.14.1 As applicable, Developer agrees to comply with the requirements of the
Secretary of Labor in accordance with the Davis-Bacon Act (40 U.S.C. 276a-7) as
amended , the provisions of Contract Work Hours and Safety Standards Act (40 U.S.C.
327 et s eq.) and all other applicable Federal, state and local laws and regulations
pertaining to labor standards insofar as those acts apply to the performance of this
Contract. Developer agrees to comply with the Copeland Anti-Kick Back Act (18 U .S.C.
874 et seq.) and its implementing regulations of the U.S. Department of Labor at 29 CFR
Part 5. Developer shall maintain documentation that demonstrates compliance with hour
and wage requirements of this Contract and HOME Regulations. Such documentation
shall be made available promptly to City for review upon request.
15.14 .2 Developer agrees that, except with respect to the rehabilitation or
construction of residential property containing less than 12 units assisted with HOME
funds , all contractors engaged under contract for construction, renovation or repair work
financed in whole or in part with assistance provided under this Contract , shall comply
with Federal requirements adopted by City pertaining to such contracts and with the
applicable requirements of the regulations of the Department of Labor under 29 CFR
Parts 1, 3, 5 and 7 governing the payment of wages and ratio of apprentices and trainees
to journey workers ; provided that, if wage rates higher than those required under these
regulations are imposed by state or local law, nothing hereunder is intended to relieve
Developer of its obligation, if any, to require payment of the higher wage. Developer
shall cause or require to be inserted in full , in all such contracts subject to such
regulations, provisions meeting the requirements of this paragraph.
15 .15 Minority and Women Business Enterprise Commitment.
Developer agrees to abide by City 's policy to involve Minority and Women
Business Enterprises ("M/WBEs ") 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 , Developer agrees to incorporate City Ordinance No. 15530,
and all amendments or successor policies thereto , into all contracts and subcontracts and
will further require all persons or entities with whom it contracts to comply with said
ordinance.
15 .16 Other Laws.
The failure to list any federal , state or City ordinance, law or regulation that is
applicable to Developer does not excuse or relieve Developer from the requirements or
responsibilities in regard to following the law, nor from the consequences or penalties for
Developer's failure to follow the law, if applicable.
15.17 Assignment.
Developer shall not assign all or any part of its rights , privileges , or duties under
this Contract without the prior written approval of City. Any attempted assignment of
same without approval shall be void , and shall constitute a breach of this Contract.
15.18. Right to Inspect Contractor Contracts.
It is agreed that City has the right to inspect and approve in writing any proposed
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc. -Beaty Street
Rev 08-15-11
Page 26
contracts between Developer and any contractor engaged in any activity in conjunction
with this HOME funded Project prior to any charges being incurred.
15 .19 Force Maieure
If Developer becomes unable, either in whole or part , to fulfill its obligations
under this Agreement due to acts of God, strikes, lockouts , or other industrial
disturbances , acts of public enemies , wars, blockades, insurrections , riots, epidemics,
earthquakes, fires , floods , restraints or prohibitions by any court, board, department,
commission or agency of the United States or of any States , civil disturbances, or
explosions, or some other reason beyond such Developer's control (collectively, "Force
Majeure Event"), the obligations so affected by such Force Majeure Event will be
suspended only during the continuance of such event. Developer will give City written
notice of the existence, extent and nature of the Force Majeure Event as soon as
reasonably possible after the occurrence of the event. Developer will use commercially
reasonable efforts to remedy its inability to perform as soon as possible. Failure to give
notice will result in the continuance of the Developer's obligation regardless of the extent
of any existing Force Majeure Ev ent.
16. Indemnification and Release.
DEVELOPER COVENANTS AND AGREES TO INDEMNIFY, HOLD
HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS
OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST
ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE
AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE
EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR
NONPERFORMANCE OF THIS CONTRACT AND/OR THE OPERATIONS,
ACTIVITIES AND SERVICES OF THE PROJECT DESCRIBED HEREIN,
WHETHER OR NOT CAUSED IN WHOLE OR IN PART , BY ALLEGED
NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS OR SUBCONTRACTORS OF CITY, AND DEVELOPER
HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND
ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND
ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR
PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF
WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED,
ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE
OF THIS CONTRACT AND AGREEMENT AND/OR THE OPERATIONS,
ACTIVITIES AND SERVICES OF THE PROJECT DESCRIBED HEREIN,
WHETHER OR NOT CAUSED IN WHOLE OR IN PART BY ALLEGED
NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS OR SUBCONTRACTORS OF CITY. DEVELOPER
LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc. -Beaty Street
Rev 08-15-11
Page 27
ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY,
ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS
OF DEVELOPER, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, INVITEES, LICENSEES, OR
PROJECT PARTICIPANTS, OR CAUSED, IN WHOLE OR IN PART, BY
ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF CITY.
IT IS THE EXPRESS INTENTION OF THE PARTIES, BOTH
DEVELOPER AND CITY, THAT THE INDEMNITY PROVIDED FOR THIS
SECTION INCLUDES INDEMNITY BY DEVELOPER TO INDEMNIFY AND
PROTECT CITY FROM THE CONSEQUENCES OF CITY'S OWN
NEGLIGENCE, WHETHER THAT NEGLIGENCE IS ALLEGED TO BE THE
SOLE OR CONCURRING CAUSE OF THE INJURY, DAMAGE OR DEATH.
DEVELOPER AGREES TO AND SHALL RELEASE CITY, ITS AGENTS,
EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL
LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR
PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO
PERFORMANCE UNDER THIS CONTRACT, EVEN IF THE INJURY, DEATH,
DAMAGE OR LOSS IS CAUSED BY CITY'S SOLE OR CONCURRENT
NEGLIGENCE.
DEVELOPER SHALL REQUIRE ALL OF ITS CONTRACTORS AND
SUBCONTRACTORS TO INCLUDE IN THEIR CONTRACTS AND
SUBCONTRACTS A RELEASE AND INDEMNITY IN FAVOR OF CITY IN
SUBSTANTIALLY THE SAME FORM AS ABOVE.
17. Waiver of Immunity by Developer.
If Developer, 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, Developer hereby expressly waives its rights to
plead defensively such immunity or exemption as against City. This section shall not be
construed to affect a governmental entity's immunities under constitutional , statutory or
common law.
18. Insurance and Bonding.
Developer will maintain blanket fidelity coverage in the form of insurance or
bond in the amount of $30 ,000 to insure against loss from the fraud , theft or dishonesty of
any of Developer 's officers , agents , trustees , directors or employees. The proceeds of
such bond shall be used to reimburse City for any and all loss of HOME Funds
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 use and benefit of Developer.
HOME DEVELOPER RENTAL CONTRACT
Tarrant County Housing Partnership , Inc. -Beaty Street
Re v 08-15-11
Pag e 28
Developer shall furnish to City, in a timely manner, but not later than 1 O days
after Developer has signed the Contract, certificates of insurance as proof that it has
secured and paid for policies of commercial insurance 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. Developer
shall maintain, or require its general contractor to maintain , the following coverages and
limits thereof:
Commercial General Liability (CGL) Insurance
$500 ,000 each occurrence
$1,000,000 aggregate limit
Business Automobile Liability Insurance
$1 ,000 ,000 each accident on a combined single-limit basis , or
$250 ,000 Property Damage
$500,000 Bodily Injury per person per occurrence
$2 ,000 ,000 Aggregate
Insurance policy shall be endorsed to cover "Any Auto"
Pending availability of the above coverage and at the discretion of City, the policy shall
be the primary responding insurance policy versus a personal auto insurance policy if or
when in the course of Developer's business as contracted herein.
Workers' Compensation Insurance
Part A: Statutory Limits
Part B: Employer's Liability
$100,000 each accident
$100 ,000 disease-each employee
$500 ,000 disease-policy limit
Note: Such insurance shall cover employees performing work on any and all
projects including but not limited to construction, demolition , and rehabilitation.
Developer or its contractors shall maintain coverages , if applicable. In the event
the respective contractors do not maintain coverage , Developer shall maintain the
coverage on such contractor, if applicable, for each applicable contract.
Directors and Officers Insurance
Optional (Highly Recommended)
Note: This insurance shall cover Developer and any associated Board of
Directors members.
Additional Requirements
Such insurance amounts shall be revised upward at City's reasonable option and
no more frequently than once every 12 months , and Developer shall revise such amounts
within thirty (30) days following notice to Developer of such requirements .
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc . -Beaty Street
Rev 08-15-11
Page 29
Developer will submit to City documentation that it, and its general contractor,
has obtained insurance coverage and has executed bonds as required in this Contract prior
to payment of any monies provided hereunder.
Each insurance policy shall be endorsed to provide City with a minimum sixty (60) days
notice of cancellation, non-renewal , and/or material change in policy terms or coverage.
Insurance policies required herein shall be endorsed to include City as an additional
insured as its interest may appear. Additional insured parties shall include employees ,
officers , agents , and volunteers of City.
The Workers' Compensation Insurance policy shall be endorsed to include a waiver of
subrogation, also referred to as a waiver of rights of recovery, in favor of City.
Any failure on part of City to request certificate(s) of insurance shall not be construed as
a waiver of such requirement or as a waiver of the insurance requirements themselves.
Insurers of Developer's insurance policies shall be licensed to do business in the state of
Texas by the Department of Insurance or be otherwise eligible and authorized to do
business in the state of Texas. Insurers shall be acceptable to City insofar as their
financial strength and solvency and each such company shall have a current minimum
A.M. Best Key Rating Guide rating of A: VII or other equivalent insurance industry
standard rating otherwise approved by City.
Deductible limits on insurance policies shall not exceed $5 ,000 per occurrence unless
otherwise approved by City.
In the event there are any local , federal or other regulatory insurance or bonding
requirements for the Program , and such requirements exceed those specified herein, the
former shall prevail.
Developer shall require its contractors to maintain applicable insurance coverages , limits ,
and other requirements as those specified herein ; and , Developer shall require its
contractors to provide Developer with certificate(s) of insurance documenting such
coverage. Also, Developer shall require its contractors to have City and Developer
endorsed as additional insureds (as their interest may appear) on their respective
insurance policies.
Developer shall require its builder to maintain builders risk insurance at the value of the
construction.
19. Certification Regarding Lobbying.
The undersigned representative of Developer hereby certifies , to the best of his or
her knowledge and belief, that:
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc. -Beaty Street
Rev 08-15-11
Page 30
No Federal appropriated funds have been paid or will be paid, by or on
behalf of Developer, to any person for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, an
officer or employee of Congress in connection with the awarding of any
Federal contract, the making of any Federal grant, the making of any
Federal loan, the entering into of any cooperative agreement and the
extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan or cooperative agreement.
If any funds other than federally appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer
or employee of any agency, member of Congress in connection with this
Federal contract, grant, loan or cooperative agreement, Developer shall
complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
This certification is a material representation of fact upon which reliance
was placed when this Contract was made or entered into. Submission of
this certificate is a prerequisite for making or entering into this Contract
imposed by 31 U.S .C. Section 1352. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than
$10,000.00 and not more than $100,000.00 for each such failure.
Developer shall require that the language of this certification be included in
all subcontracts or agreements involving the expenditure of Federal funds.
20. Litigation and Claims
Developer shall give City immediate notice in writing of any action, including
any proceeding before an administrative agency, filed against Developer in conjunction
with this Contract or the project. Developer shall furnish immediately to City copies of
all pertinent papers received by Developer with respect to such action or claim.
Developer shall provide a notice to City within 10 days upon filing under any bankruptcy
or financial insolvency provision of law.
21. Notice.
All notices required or permitted by this Contract must be in writing and are
deemed delivered on the earlier date of the date actually received or the third day
following (i) deposit in a United States Postal Service post office or receptacle; (ii) with
proper postage, certified mail return receipt requested; and (iii) addressed to the other
Party at the address set out below or at such other address as the receiving Party
designates by proper notice to the sending Party.
City:
City Attorney's Office
1000 Throckmorton Street
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc. -Beaty Street
Rev 08-15-11
Page 31
Fort Worth, TX 76102
Attention: Vicki Ganske
Telephone: 817-392-7765
Copy to:
Director of Housing and Economic Development
1000 Throckmorton Street
Fort Worth, TX 7 6102
Attention: Jay Chapa
Telephone: 817-392-7540
Copy to:
Beaty Street Project Coordinator
1000 Throckmorton Street
Fort Worth, TX 7 6102
Telephone: 817-392-6342
Developer:
Tarrant County Housing Partnership, Inc.
3204 Collinsworth Street
Fort Worth, TX 76107
Telephone: 817.924.5091 ext. 110
22. Developer Has Legal Authority to Enter Into Contract.
Developer represents that it possesses the legal authority, pursuant to any proper;
appropriate and official motion, resolution or action passed or taken, to enter into this
Contract and to perform the responsibilities herein required.
23. CHDO Requirements.
Developer agrees that as a certified CHDO, it will comply with the requirements
of HUD Notice CPD-97-11 as to its legal status, organizational structure and capacity and
experience, as well as the applicable requirements of 24 CFR Parts 92.300 and 92.301.
CHDO will maintain a Board of Directors in compliance with these requirements and
will notify City in writing within 15 days of any change to the composition of its Board
of Directors. Developer shall notify City in writing of any changes to its 501(c)(3) tax
exempt status.
24. Counterparts.
This Contract may be executed in multiple counterparts, each of which shall be
considered an original , but all of which shall constitute one instrument.
[SIGNATURES APPEAR ON NEXT PAGE]
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc . -Beaty Street
Rev 08-15-11
Page 32
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on ~ / q , 2011 by
Susan Alanis , Assistant Cit .M the City ofFortorth, on behalf the City of
Fort Worth. ..:,...':!!!.'..
, 11\101\ M. HIRRLINGER
,IN COMMISS ION EX.PIRES
~NIIY 2, 2014
STATE OF TEXAS
COUNTY OF TARRANT
§
§
This instrument was acknowledged before me on -P--'-,/E;;_~-..,___,'-r-7~"----'-,.___
VanN ess , President of Tarrant County Housing P
corporation.
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc . -Beaty Street
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Rev 08-15-11
Page 33
EXHIBITS:
Exhibit "A" -Project Summary
Exhibit "B" -Budget
Exhibit "C" -Construction Schedule
Exhibit "D" -Audit Certification Form and Audit Requirements
Exhibit "E" -Narrative Report
Exhibit "F" -Tenant Demographic Report
Exhibit "G" -Request For Funds
Exhibit "H" -Detail Statement of Costs
Exhibit "I" -Expenditures Worksheet
Exhibit "J" -Davis Bacon Report
Exhibit "K" -Tenant Self Certification Form
HOME DEVELOPER RENT AL CONTRACT
Tarrant County Housing Partnership, Inc . -Beaty Street
Rev 08-15-11
Page 34
EXHIBIT "A"
PROJECT SUMMARY -SCOPE OF WORK
TARRANT COUNTY HOUSING PARTNERSHIP, INC. -BEATY STREET
DESCRIPTION:
Tarrant County Housing Partnership, Inc. ("Developer") will acquire 10 multifamily buildings and 1
single family house in the 5500 block of Beaty Street, then rehabilitate and redevelop the 71 existing
units into 66 units plus an office/community center(the "Project"). For the 15 year Affordability
Period, the Project will be managed in compliance with this Contract and applicable provisions of all
HOME Regulations governing rental projects . All units in the Project will be affordable to households
at or below 80% of Area Median Income ("AMI") as established by the United States Department of
Housing and Urban Dev elopment ("HUD").
HOME Funds -Exhibits
EXHIBIT "B"
Sources and Uses
COFWNSP COFWHOME COFWWAP** TCHPLOC TOTAL
Acquisition $1 ,150 ,000 $1,150,000
Acquisition -In surance -property liability, builder's risk $20,000 $20,000
Acquisition -Closing costs, extension/legal fees $118 ,801 $118 ,801
Acquisition-Asbestos Survey $6 ,125 $6,125
Acquisitio n-Lead Base Paint Testing $14,000 $14 ,000
Relocation Agent Fees $135 ,000 $135 ,000
Relocation Expenses (1 tenant) $15 ,000 $15 ,000
Architectural $8 ,360 $8,360
Rehab $170,841 $1 ,000 ,000 $248 ,750 $506,640 $1,926,23 1
Developer Fee 5% NSP* $84,988 $84,988
TOTAL $1,699,755 $1,000,000 $248,750 $530,000 $3,478,505
*$50,000 of Developer Fee to be paid upon closing of Beaty Street property, and the remainder to be paid when
City has received from Developer all information required to close Project in IDIS and begin the Affordability
Period.
**Nothing in this Contract shall be construed as a commitment by the City to provide these funds.
HOME Funds -Exhibits
Beaty Street
EXHIBIT "C"
CONSTRUCTION SCHEDULE
Beaty Street
Activity
PHASE I ACTIVITIES: Contract si gned
Lot Preparation (Demolition)
Plumbing
Foundation
PHASE I completed by: April 1, 2012
PHASE II ACTIVIITES: Framing / TPW
Mechanical s / Sidin g / Paint
PHASE II completed by: August 1, 2012
PHASE III ACTIVIITES: In spections / Insulation
Sheetrock I Brick
Interior Trim / Paint
PHASE III completed by: December 1, 2012
PHASE IV ACTIVIITES: Flooring
Mechanical Trim / Grading / Landscaping
Final Trim / Appliances and Fixtures I Fencing
Final Inspections
Punch List
PHASE IV completed by: May 1, 2013
HO ME Funds -Exh ibits
R P~h , c;;;:,trP.Pt
EXHIBIT "D"
AUDIT REQUIREMENTS
CITY OF FORT WORTH HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
AUDIT REQUIREMENTS
Organizations expending $500,000 or more in federal awards (from City of Fort Worth and other funding
sources) during their fiscal years shall obtain either an annual single audit or a program specific audit.
Organizations may have a program specific audit in accordance with 0MB Circular A-133, or other standard
set forth in the Contract if applicable, if they expended funds for only one federal program as listed in the
Catalog of Federal Domestic Assistance (CFDA). If funds are spent for more than one federal program, a
single audit is required. The audited time period is the organization's fiscal year, and not the City of Fort
Worth's funding period.
The audit shall be conducted by a certified public accountant (CPA) that is licensed at the time of the audit
by the appropriate regulatory body. The CPA shall meet all of the general standards concerning
qualifications, independence, due professional care and quality control as required by Government Auditing
Standards , including the requirements for continuing professional education and external peer reviews.
Auditor selection must adhere to federal procurement requirements.
A separate supplementary schedule of revenues, expenditures and changes in fund balance for each City
of Fort Worth contract is no longer required. The Schedule of Expenditures of Federal Awards should list
City of Fort Worth 's contract numbers, the total expended for each individual federal program, and the
CFDA number (0MB A-133 § .310).
The independent auditor's report should include all of the relevant items listed on the "Audit Report
Checklist." Additional guidance on the conduct and reporting of these audits is contained in the latest issuance
of the following publications:
Government Auditing Standards issued by the Comptroller General of the United States, 2003
0MB Circular A-133 as revised 6/30/97 and amended June 2003
0MB Circular A-133 Compliance Supplement
AICPA's Statement of Position 98-3 , "Audits of States , Local Governments, and Not-for-Profit Organizations
Receiving Federal Awards"
Various AICPA audit guides for nonprofits, colleges and universities and health and welfare organizations
AICPA's Audit Risk Alert "State and Local Governmental Developments"
Government Auditing Standards by the Texas Department of Housing and Community Affairs for Properties
Receiving Low Income Housing Tax Credits
All organizations that receive a City of Fort Worth award must submit the provided Audit Certification Form
which certifies whether you are subject to a single/program audit. Organizations receiving federal awards
from the City of Fort Worth who are not required to have an audit shall certify in writing to the agency.
The organization's Chief Executive Officer or Chief Financial Officer shall make the certification within
60 days of the end of the organization's fiscal year in the year that the project was completed.
The following items should be submitted to the City of Fort Worth Housing and Economic Development
Department within the required timeframe:
HOME Funds -Exhibits
Due 60 days after organization's fiscal year end in the year that the project was completed : (required for all
subrecipients)
Completed Audit Certification Form
Due within the earlier of 30 days after receipt of the auditor's report or nine months after the end of the audit
period.
Two copies of the entire audit report issued by the CPA
Two copies of any management letter issued by the CPA in conjunction with the audit report
Two copies of management's comments on all findings, recommendations , & questioned
costs contained in the audit report and management letter, including a detailed corrective
action plan
Failure to submit any of these items by the required due date may result in holds on current draw
requests , suspension of the organization's contract(s) and eligibility for future funding.
If the organization does not meet the requirements of having a single/program audit conducted, records
must still be kept available for review or audit by City of Fort Worth staff (OMB A-133 Subpart B Sec 200(d).
If additional information is needed concerning the audit requirements , please call (817) 392-6141.
HOME Fund s -Exhibit s
CITY OF FORT WORTH
HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
SINGLE AUDIT REPORT CHECKLIST
The Department developed this checklist to help organizations improve the quality and completeness of
audit reports.
General Purpose or Basic Financial Statements of the Organization Opinion/Report on Organization's Financial
Statements in accordance with Government Auditing Standards
Notes to the General Purpose or Basic Financial Statements of the Organization
A Schedule of Expenditures of Federal Awards, including the Department's contract numbers, the total
expended for the federal program, and the CFDA number (0MB A-133 Subpart C Sec 310).
Opinion/Report on Schedule of Expenditures of Federal and State Awards
Report on Compliance and on Internals Control Over Financial Reporting Based on an Audit of Financial
Statements Performed in Accordance With Government Auditing Standards. (0MB A-133 § 505 (b))
Report on Compliance with Requirements Applicable to Each Major Program and Internal Control over
Compliance in Accordance with 0MB Circular A-133. (0MB A-133 § 505 (c))
Schedule of Findings and Questioned Costs (0MB A-133 §. 505d), including: Summary Schedule of Prior Audit
Findings reporting the status of all findings included in the prior audit's schedule of findings and questioned
costs. (0MB A-133 Sec. 315 (a) and (b))
Corrective Action Plan including (0MB A-133 Sec. 315 (c)) name of person responsible for the corrective
action, corrective action planned, anticipated completion date, and explanation and reason if auditee
does not agree with findings or believes correction is not required.
All reports are signed and dated by the auditor
Two copies of the audit reports are submitted
Two copies of the management letter, if issued in conjunction with the audit report. Two copies of
comments by management concerning all findings and recommendations included in
management letter, including a corrective action plan.
HOME Funds -Exhibits
CITY OF FORT WORTH HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
Audit Certification Form
Subrecipient: -----------Fiscal Year Ending: __ / __ / __
Month Day Year
D We have exceeded the federal expenditure threshold of $500,000. We will have our Single Audit or
Program Specific Audit completed and will submit the audit report within nine (9) months after the end of the
audited fiscal year.
D We did not exceed the $500,000 federal expenditure threshold required for a Single Audit or a Program
Specific Audit to be performed this fiscal year. (Fill out schedule below)
Must be filled out if Single Audit or Program Audit is not required:
Federal Expenditure Disclosure
Federal Grantor
Pass Through
Grantor
Total Federal Expenditures for this Fiscal Year
Federal Funds
Program Name &
CFDA Number
Contract
Number
$ ___ _
Expenditures
Printed Name Title (Must be CFO, CEO or equivalent)
Authorized Signature (Must be CFO, CEO or equivalent) Phone Number Date
Failure to submit this or a similar statement or failure to submit a completed single audit package as
described in the audit requirements by the required due date will result in suspension of funding and will affect
eligibility for future funding.
Submit this form to the City of Fort Worth Housing and Economic Development Department within 60 days after the end of your
Fiscal year
HOME Funds -Exhibits
R P~h , <:;:.trPPt
EXHIBITE
NARRATIVE REPORT
FROM: TO: --------------
Please provide information on project construction progress , the percent of construction completion, anticipated
construction completion date, and; construction problems encountered and solutions proposed.
I. ACCOMPLISHMENTS:
II. ADDITIONAL COMMENTS REGARDING ACCOMPLISHMENTS THIS MONTH:
III. PROBLEMS ENCOUNTERED AND SOLUTIONS PROPOSED:
IV. ANTICIPATED ACTIVITIES DURING NEXT MONTH:
HOME Funds -Exhibits
EXHIBITF
CITY OF FORT WORTH HOUSING AND ECONOMIC DEVELOPMENT DEPARTMENT
TENANT DEMOGRAPHIC REPORT
Client Name Female
Headed
Household
Race :
White
Black/ African-American
Asian
Age
American Indian/ Alaskan Native
Sex Ethnic ity
(His pa ni c :
(Yes/No)
Native Hawaiian / Pacific Islander
American Indian/ Alaskan Native and White
Asian and White
Black/African-American and White
Race Disability
Status
(Y es/N o)
Black/African-American and American Indian/Alaskan Native
Other Multi-Racial
HOME Funds -Exhibits
Number
In
Family
Annual Property Add ress / Type o f Rental Rent Amount
Hous ehold Rental Unit No . As sistance
Income
E thnicity :
All beneficiari es have BOTH an ethnicity AND a ra ce.
Example: Cuban p ers ons are often Hispanic and Black,
Filipino p ers ons are often Hispanic and Asian,
Utility
All o wance
EXHIBITG
CI TY OF FORT W ORTH
H OUSING AND ECON OMIC D EVELOPMENT DEPARTMENT
SUBRECEPIENT'S REIMBURSEMENT REQ UEST F OR FUND S
gency
Program Name:
Contract Numb er : Report Period :
Date of Requ es t:
Cwiinative
CASH B ALANCE ANALYS IS FOR
I . Beginnin g C ash Ba lance
2. Amo un t Receive d :
Progr am In come
C ity ofFort Worth
Interest Earned
3. Total Fund s Av ai lable ( I + 2)
4. Less Expenditure (detail statement cost)
5 . ENDING CAS H BALANCE
ost
6. Estim ated Ex penditures
(3 -4)
7. Fund s Needed (6-5) (Ac tu al Feb Expen ses)
8. Less Es timated Program Income
9. Unp aid Request for Paym ent Previously Submitted
10. Amount of Thi s Req ues t (7-8 & 9)
I. MARS -Pu rch as ing Requ est
A. MARS lN PUT : Ve ndor/PO Number/Req ui sitio n Number
B. Fund/ Acco un t/Cente r
C. Total Amount of th is Requ est
SECTIONffl
1. Ve rification
A. Project Coord inator :
Charlctra Hurt
B. Co mplianc e:
Ba rb ara As bury
C. Acc ou nting :
Step hen Thomas
2. Authorization
A. Sr. Admin. Srvic es:
Socorro dray
B. Comm unity Dev . Ma nager
Robin Bentley
C. Ho usi ng Direc tor
IF OVER $8,500.00 Jesus" Jay" Chapa
$ 0.00 $ 0.0 0
$ 0.00 $ 0.00
$ 0.0 0 $ 0.00
$ 0.00 $ 0.00
$ 0.00 $ 0.00
$ 0.00 $ 0.00
$ 0.00 $ 0.00
$ n/a
$ 0.00
$ 0.00
$ 0 .00
$ 0.00
AGENCY
EXHIBIT I
CITY OF FORT WORTH
HOUSING AND ECONOMIC DEV ELOPMENT DEPARTMENT
MANAGEMENT AND BUDGET DIVISION
EXPENDITURES WORKSHEET
CONTRACT NO. DATE
TO --------------PROGRAM REPORT PERIOD
NO.
I
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CHECK
DATE # PAYEE DESCRIPTION ACC OUNT NO. AMOUNT
TOTAL
Sub-Contractors Certification : I certify that the costs incurred are taken from the books of accounts and that such costs are va lid
and consistent with the terms of the agreement.
NAME and TITLE OF AUTHORIZED OFFICER S IGNATURE and DATE
-
AGENCY
PROGRAM
EXHIBITH
CITY OF FORT WORT H
HO US IN G AN D ECO NOMIC D EVELOPMENT DEPARTME NT
MANAGEMENT AN D B UDGET DI V IS IO N
DETAI L STATE MENT OF CO STS
CONTRACT NO. DATE
PROGRAM MONTHLY C UMULATIVE
CO ST C AT EGORY ACCO UN T B UDGET EXPENDITURES TO D ATE BALAN CE
CO NTRACTUAL SER VICES
Contractual Services
TOTAL ---
S ub-Contractors Certificatio n: I certify that the costs inc urred are taken from the books of acco un ts and that such costs are va lid
and con sistent with the terms of the agreement.
NAME and TITLE OF A UTHORIZED OFFIC ER S IG NA T URE and DATE
-
Federal Labor Standards Provisions
Appllcablllty
The Project or Program to which the construction work
c overed by th i s contract pertains is being assisted by the
United States of America and the following Federal Labor
Standards Provis ions are included i n this Contract
pursuant to the provis io ns applicable to such Federal
assistance .
A . 1 . (I) Minimum Wages. All laborers and mechanics
employed or work i ng upon the s ite of the work , will be paid
unconditionally and not less often than once a week , and
without subsequent deduction or rebate on any account
(except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the
Copeland Act (29 CFR Part 3), the full amount of wages
and bona fide fr i nge benefits (or cash equivalents thereof)
due at t i me of payment c omputed at rates not less than
those contained in the wage determination of the
Secretary of Labor which i s attached hereto and made a
part hereof. regardless of any contractual relationsh i p
which may be alleged to exist between the contractor and
such laborers and mechanics . Contribut i ons made or
costs reasonably anticipated for bona fide fringe benefits
under Section l{b)(2) of the Davis-Bacon Act on behalf of
labore r s or mechan ics are considered wages paid to such
laborers or mechanics. subject to the provisions of 29 CFR
5 .5 {a){1){iv); also , regular contributions made or costs
incurred for more than a weekly period {but not less often
than quarterly ) under plans , funds , or programs , which
cover the particular weekly period , are deemed to be
constructively made or incurred during such weekly period .
Such laborers and mechanics shall be paid the appropriate
wage rate and fr i nge benefi ts on the wage determination
for the classification of work actually performed. without
regard to skill , except as provided in 29 CFR 5 .5{a)(4).
Labo re r s or mechanics performing work in more than one
classification may be compensated at the rate specified for
each classification for the time actually worked there i n :
Provided , That the employer 's payroll records accurately
set forth the time spent in each classifi cation in which
work is performed . The wage determination (including any
additional c l ass ification and wage rates conformed under
29 CFR 5 .5 {a){1)(ii) and the Davis-Bacon poster {WH-
1321) shall be posted at all times by the contractor and its
subcontractors at the site of the work in a prominent and
accessible , place where it can be easily seen by the
workers .
(II) (a) Any class of laborers or mechanics which is not
l i sted in the wage determination and which is to be
employed under the contract shall be classified in
conformance with the wage determ i nation . HUD shall
approve an add i tional classification and wage rate and
fr i nge benefi ts therefor only when the following criteria
have been met:
U.S. Department of Housing
and Urban Development
Office of Labor Relations
(1) The work to be performed by the classification
requested is not performed by a classification In the wage
determination ; and
(2) The classification is ut i lized in the area by the
construction industry ; and
(3 ) The proposed wage rate . including any bona fide
fringe benefits , bears a reasonable relationsh i p to the
wage rates contained in the wage determination .
(b) If the contractor and the laborers and mechanics to be
employed in the class i fication {if known ). or their
representatives . and HUD or its designee agree on the
classification and wage rate {including the amount
designated for fringe benefits where appropriate), a report
of the action taken shall be sen t by HUD or its designee to
the Adm i nistrator of the Wage and Hour Divis i on ,
Employment Standards Administration , U.S . Department of
Labor, Washington, D .C . 20210 . The Administrator , or an
authorized representative , will approve , modify , or
disapprove every additional classification action within 30
days of receipt and so advise HUD or its designee or wil l
notify HUD or its designee w i thin the 30-day period that
additional time is necessary . (Approved by the Office of
Management and Budget under 0MB control number 1215-
0140)
{c) In the event the contractor , the laborers or mechanics
to be employed in the classification or their
representatives . and HUD or its designee do not agree on
the proposed classification and wage rate (including the
amount designated for fringe benefits, where appropriate ).
HUD or its designee shall refer the questions , including
the views of all interested parties and the recommendation
of HUD or its designee , to the Administrator for
determination . The Administrator , or an authorized
representat i ve , will issue a determination within 30 days of
receipt and so advise HUD or its designee or will notify
HUD or its designee within the 30-day per i od that
additional time is necessary . (Approved by the Office of
Management and Budget under 0MB Control Numbe r
1215-0140 .)
{d) The wage rate {including fringe benefits where
appropriate) determined pursuant to subparagraphs
(1 )(ii)(b) or (c) of this paragraph , shall be paid to all
workers performing work in the classification under this
contract from the first day on wh i ch work is performed i n
the classification .
(Ill) Whenever the minimum wage rate prescribed in the
contract for a class of laborers o r mechanics includes a
fringe benefit which is not expressed as an hourly rate , the
contractor shall e it her pay the benefit as stated in the
wage determination or shall pay another bona fide fringe
benefit or an hourly cash equivalent thereof .
(Iv) If the contractor does not make payments to a trustee
or other th i rd person . the contractor may consider as part
Previous editions are obsolete Page 1 of 5
form HU0-4010 (06/2009)
ref . Handbook 1344 .1
of the wages of any laborer or mechanic the amount of any
costs reasonably anticipated in providing bona fide fringe
benefits under a plan or program . Provided , That the
Secretary of Labor has found . upon the written request of
the contractor , that the applicable standards of the Davis-
Bacon Act ha11e been met. The Secretary of Labor may
require the contractor to set aside in a separate account
assets for the meeting of obligat i ons under the plan or
program . (Appro11ed by the Office of Management and
Budget under 0MB Control Number 1215-0140 .)
2. Withholding. HUD or its designee shall upon its own
action or upon written request of an authorized
representati11e of the Department of Labor withhold or
cause to be withheld from the contractor under this
contract or any other Federal contract with the same prime
contractor . or any other Federally-assisted contract
subject to Da11is-Bacon prevailing wage requirements ,
which is held by the same prime contractor so much of the
accrued payments or advances as may be considered
necessary to pay laborers and mechanics , including
apprentices , trainees and helpers , employed by the
contractor or any subcontractor the full amount of wages
required by the contract In the event of failure to pay any
laborer or mechanic , including any apprentice . trainee or
helper , employed or working on the site of the work . all or
part of the wages required by the contract. HUD or its
designee may , after written notice to the contractor .
sponsor . applicant . or owner. take such action as may be
necessary to cause the suspension of any further
payment, advance . or guarantee of funds until such
violations ha11e ceased . HUD or its designee may. after
written notice to the contractor, disburse such amounts
withheld for and on account of the contractor or
subcontractor to the respective employees to whom they
are due . The Comptroller General shall make such
disbursements in the case of direct Davis-Bacon Act
contracts .
3. (I) Payrolls and basic records. Payrolls and basic
records relating thereto shall be maintained by the
contractor during the course of the work preserved for a
period of three years thereafter for all laborers and
mechanics working at the site of the work . Such records
shall contain the name , address . and social security
number of each such worker . his or her correct
classifi cation , hourly rates of wages paid (including rates
of contributions or costs anticipated for bona fide fringe
benefits or cash equi11alents thereof of the types described
in Section l(b)(2)(B) of the Davis-bacon Act). daily and
week l y number of hours worked . deductions made and
actual wages paid . Whenever the Secretary of Labor has
found under 29 CFR 5 .5 (a)( 1 )(iv) that the wages of any
laborer or mechanic include the amount of any costs
reasonably anticipated in providing benefits under a plan
or program described in Section l(b)(2)(B) of the Davis-
Bacon Act . the contractor shall maintain records which
show that the commitment to provide such benefits is
enforceable , that the plan or program is financially
responsible , and that the plan or program has been
Previous editions are obsolete
communicated in writing to the laborers or mechanics
affected . and records which show the costs anticipated or
the actual cost incurred in providing such benefits
Contractors employing apprentices or trainees under
appro11ed programs shall maintain written evidence of the
registration of apprenticeship programs and certification of
trainee programs . the registration of the apprentices and
trainees . and the ratios and wage rates prescribed in the
applicable programs . (Approved by the Office of
Management and Budget under 0MB Control Numbers
1215-0140 and 1215-0017 .)
(II) (a) The contractor shall submit weekly for each week
in which any contract work is performed a copy of all
payrolls to HUD or its designee if the agency is a party to
the contract , but if the agency is not such a party, the
contractor w i ll submit the payrolls to the applicant
sponsor . or owner . as the case may be , for transmission to
HUD or its designee . The payrolls submitted shall set out
accurately and completely all of the information required
to be maintained under 29 CFR 5 .5(a)(3)(i ) except that full
social security numbers and home addresses shall not be
included on weekly transmittals . Instead the payrolls shall
only need to include an individually identifying number for
each employee (e .g ., the last four digits of the employee's
social security number). The required weekly payroll
information may be submitted in any form desired .
Optional Form WH-347 is available for this purpose from
the Wage and Hour Division Web site at
http://www. do/. qovlesalwhdlformslwh347instr. him or its
successor site . The prime contractor is responsible for
the submission of copies of payrolls by all subcontractors .
Contractors and subcontractors shall maintain the full
social security number and current address of each
covered worker, and shall provide them upon request to
HUD or its designee if the agency is a party to the
contract , but if the agency is not such a party , the
contractor will submit the payrolls to the applicant
sponsor . or owner . as the case may be , for transmission to
HUD or its designee , the contractor. or the Wage and Hour
Division of the Department of Labor for purposes of an
investigation or audit of compliance with prevailing wage
requirements . It is not a violation of this subparagraph for
a prime contractor to require a subcontractor to provide
addresses and social security numbers to the prime
contractor for its own records . without weekly submission
to HUD or its designee . (Approved by the Office of
Management and Budget under 0MB Control Number
1215-0149 .)
(b) Each payroll submitted shall be accompanied by a
·statement of Compliance," signed by the contractor or
subcontractor or his or her agent who pays or supervises
the payment of the persons employed under the contract
and shall certify the following :
(1) That the payroll for the payroll period contains the
information required to be provided under 29 CFR 5 .5
(a)(3)(ii ), the appropriate information is being maintained
under 29 CFR 5 .5(a)(3)(i). and that such information is
correct and complete :
Page 2 of 5
fonn HUD--4010 (06/2009)
ref. Handbook 1344 .1
(2) That each laborer or mechanic (i nclud i ng each helper .
apprentice. and t r ainee) employed on the c ontract during
the payroll period has been paid the full weekly wages
earned , without rebate . either d irectly or i ndirectly , and
th a t no deduct i ons have been made either directly or
i nd i rectly fr o m the full w ages earned , other tha n
perm i ssible deducti ons as s et forth i n 29 CFR Part 3 ;
(3) That each laborer or mechan i c has been paid not les s
than the app li cable wage rates and fringe be nefits o r ca s h
equ i valents for the class i f ication of work performed . as
spe c ifi ed in the appl ic able wage determinat i on
incorporated into the cont r a ct.
(c) The weekly submiss i on of a proper l y executed
c ertifi catio n set forth on the reverse side of Optional Form
WH-347 shall sat i sfy the requ i r e ment for submiss ion of the
"Statement of Compliance " requi r ed by subparagraph
A .3 .(ii )(b ).
(d) The fals i f i cation of a n y of the above certifi cat i ons may
s u b j ect the contractor or sub c ontractor to c i vil or cr i mina l
p r ose cu tion under Sect i on 1001 of Title 18 and Se c t i on
231 of T itl e 31 of the Uniled States Code .
(Ill) The contractor o r sub c ontractor shall make the
re c ord s requ i red under subparagraph A .3 .(i) available for
inspect i on . copying , or transcr i ption by authori zed
representatives of HUD or its designee or the Department
of L abo r . and shall permit such representat i ves to
i nterview employees during working hours on the job . If
the contra c tor or subc o ntractor fa i ls to submit the required
reco r ds or to make them a va i lab le , HUD or its des i gnee
may . after wr i tten noti c e to the contracto r , sponsor .
appl ic an t or owner , take su c h act i on as may be necessary
to cause the suspens i on of any further payment , advance .
or g u arantee of funds . Furthermo r e , fa ilure to submit th e
requ ired records upon request o r to make such records
availabl e may be grounds fo r debarment action pursuant to
29CFR5 .12 .
4 . Apprentices and Trainees.
(I) Apprentices . App r entices will be permitled to work at
less than the predetermined r ate for the work they
performed when they are employed pursuant to and
i nd i v i dually reg i stered in a bona fide apprenticesh i p
prog r am registered w ith the U .S . Depa r tment of Labor ,
Employment and Train i ng Adm i nistrat i on , Office o f
App r ent i cesh i p Train i ng , Empl oyer and Labor Services , or
w i th a State Apprenticeship Agency recog ni zed by the
Offic e , or i f a pe r son i s employed i n his or her f i rst 90
days of probati ona r y employment as an app r entice in such
an app r enticesh i p p r ogram , who is not ind i vidually
registered i n the prog r am , but who has been certif i ed by
the O ffi c e of Apprenticesh i p T ra i ning , Employer and Labor
Se r v ic es or a State Apprent i ceship Agency (where
appropriate ) to be eligible for probationary employment a s
an apprentice . The allowable ratio of apprentices to
j o urneymen on the job s i te i n any craft clas s ifi cation sha ll
not be greater tha n the rat i o permit t ed to the contractor as
to the ent i re wo r k force under the re g i ste r ed program . Any
worker l i sted on a pay r oll at an app r ent i ce wage rate , wh o
Previous editions are obsolete
i s not reg i stered or otherwi se employed as stated above .
shall be paid not less than the appl i cable wage rate on the
wage determ i nation for the class ification of wo r k actually
performed . In addition , any apprentice perform i ng work on
the job site i n excess of the ratio permitted under the
reg i stered program shall be paid not less than the
app li cable wage rate on the wage determ i nation for the
work actually performed . Where a contrac t o r i s perform i ng
cons t ruction on a project i n a loca li ty othe r than that in
wh i ch its program is registered , the ratios and wage rates
(expressed in percentages of the journeyman 's hourly
rate) specified in the contractor 's or subcontractor 's
reg i stered prog r am shall be observed . Every apprentic e
must be paid at not less than the rate specified in the
registered program for the apprentice 's level of progress ,
expressed as a percentage of the journeymen hourly rate
spec i f i ed in the applicable wage determ i nation .
Apprentices shall be pa i d fr i nge benefits in accordance
with the p r ovisions of the appren ti ceship program . If the
appren ti cesh i p program does not spec i fy fringe benefi ts ,
apprentice s must be paid the full amount of fr i nge benefits
listed on the wage determinati on for the applicable
class i ficat i on . If the Admin i strator determ i nes that a
different pra c t i ce p r eva il s for the appl i cable apprent i ce
classif i catio n , fringes shall be paid i n acco r dance with tha t
determ i nation . In the event the Offi ce of Apprenticesh i p
Tra i ning , Employer and Labor Services , or a State
Apprenticeship Agency recognized by the Office ,
withdraws approval of an apprenticeship program . the
contractor will no longer be perm i tted to util i ze
apprentices at less than the applicable predeterm i ned rate
for the work perfor med until an a c ceptable program i s
approved .
(II) Trainees . Except as prov i ded in 29 CFR 5 .16 .
trainees wi ll not be permitted to work at less than the
p r edetermined rate for the work performed unless they are
employed pursuant ',to and individually registered in a
prog ram which has rece i ved prior approva l , evidenced by
formal certifi cation by the U .S. Deparlment of Labor ,
Employment and Training Administration . The ratio of
trainees to journeymen on the job site shall not be greater
than permitted under the plan approved by the
Emp loyment and Tra i ning Administration . Every tra i nee
must be pa id at not less than the rate spec i fied in the
approved program for the trainee 's level of progres s ,
expressed as a percentage of the journeyman hourly rate
spec i f i ed in the applicabl e wage determ i nat i on . Tra i nees
shall be paid fr i nge benefi ts in accordance with the
provisions of the trainee program. If the trainee program
does not ment i on fringe benefits . trainees shall be paid
the full amount of fringe benefits listed on the wage
determ i nation unless the Adm i nistrator of the Wage and
Hour Division determines that there is an apprent i ceship
program associated with the corresponding journeyman
wage rate on the wage determ i nation which prov i des for
less than full fri nge benefi ts for apprentices . Any
employee li sted on the payroll at a trainee rate who i s not
registered and parti cipat i ng i n a train i ng plan approved by
Page 3 of 5
fonn HUD~010 (06/2009)
re f. Handbook 1344 .1
the Employment and Training Administration shall be paid
not less than the applicable wage rate on the wage
determination for the work actually performed . In addition ,
any trainee performing work on the Job site in excess of
the ratio permitted under the registered program shall be
paid not less than the applicable wage rate on the wage
dete rmination for the work actually performed . In the
event the Employment and Training Administration
withdraws approval of a training program , the contractor
will no longer be perm itted to utilize trainees at less than
the applicable predetermined rate for the work performed
until an acceptable program is approved .
(Ill) Equal employment opportunity. The utilization of
apprentices . trainees and journeymen under 29 CFR Part 5
shall be in conformity w ith the equal employment
opportunity requirements of Executive Order 11246, as
amended , and 29 CFR Part 30 .
5 . Compliance with Copeland Act requirements . The
contractor shall comply w it h the requirements of 29 CFR
Part 3 which are in corporated by reference in this contract
6. Subcontracts . The contractor or subcontractor will
insert in any subcontracts the clauses contained in
subparagraphs 1 through 11 in this paragraph A and such
other clauses as HUD or its designee may by appropriate
instructions require , and a copy of the applicable
prevailing wage decision , and also a clause requiring the
subcontractors to i nclude these clauses in any lower tier
subcontracts . The prime contractor shall be responsible
for the compliance by any subcontractor or lower tier
subcontractor with all the contract clauses in th i s
paragraph .
7 . Contract termination; debarment . A breach of the
contract clauses in 29 CFR 5.5 may be grounds for
termination of the contract and for debarment as a
contractor and a subcont ractor as provided in 29 CFR
5 .12 .
8. Compliance with Davis-Bacon and Related Act Requirements.
All rulings and i nterpretations of the Davis-Bacon and
Related Acts contained in 29 CFR Parts 1 , 3 , and 5 are
herein i ncorporated by reference in this contract
9. Disputes concerning labor standards. D i sputes
ar isi ng out of the lab or standards prov isi ons of this
cont r act shall not be subject to the general disputes
clause of this cont r act. Such d i sputes shall be resolved in
accordance with the procedures of the Department of
Labor set forth i n 29 CFR Parts 5, 6 , and 7 . Disputes
within the meaning of this clause include disputes between
the contractor (or any of its subcontractors) and HUD or
its designee , the U .S . Department of Labor, or the
employees or the i r representatives .
10. (I) Certification of Eligibility , By entering into this
contract the contractor certifies that neither it (nor he or
she) nor any person or firm who has an interest in the
contracto r's firm is a person or firm ineligible to be
awarded Government contracts by vi rtue of Section 3(a) of
the Davis-Bacon Act or 29 CFR 5 . 12(a)( 1) or to be
Previous editions are obsolete
awarded HUD contracts or participate in HUD programs
pursuant to 24 CFR Part 24 .
(II) No part of this contract shall be subcontracted to any
person or f i rm ineligible for award of a Government
contract by virtue of Section 3(a) of the Davis -Bacon Act
or 29 CFR 5 . 12(a)( 1) or to be awarded HUD contracts or
participate in HUD programs pursuant to 24 CFR Part 24 .
(Ill) The penalty for making false statements is prescribed
in the U .S . Criminal Code , 18 U.S .C . 1001 . Additionally .
U .S . Criminal Code, Section 1 01 0 , Title 18, U .S .C ..
"Federal Housing Administration transact i ons ", provides in
part : "Whoever , for the purpose of influencing in any
way the action of such Administrat i on ..... makes , utters or
publ i shes any statement knowing the same to be false ....
shall be fined not more than $5 ,000 or imprisoned not
more than two years , or both ."
11 . Complaints , Proceedings, or Testimony by
Employees. No laborer or mechanic to whom the wage ,
salary , or other labor standards provisions of this Contract
are applicable shall be d is charged or in any other manner
discriminated against by the Contractor or any
subcontractor because such employee has filed any
complaint or instituted or caused to be instituted any
proceeding or has testified or is about to testify in any
proceeding under o r relat i ng to the labor standards
applicable under this Contract to his employer .
B. Contract Work Hours and Safety Standards Act The
provisions of this paragraph B are applicable where the amount of the
prime contract exceeds $100 ,000 . As used in this paragraph , the
terms "laborers " and ·mechanics " include watchmen and guards .
(1) Overtime requirements . No contractor or subcontractor
contracting for any part of the contract work which may requ ire or
involve the employment of laborers or mechanics shall requ ire or
permij any such laborer or mechanic in any workweek in which the
individual is employed on such work to work in excess of 40 hours in
such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the bas ic
rate of pay for all hours worked in excess of 40 hours in such
workweek .
(2) Violation; liability for unpaid wages ; llqutdated
damages . In the event of any violation of the clause set
forth in subparagraph (1) of this paragraph , the contractor
and any subcontractor responsible therefor shalt be liable
for the unpaid wages . In addition , such contractor and
subcontractor shall be liable to the United States (i n the
case of work done under contract for the District of
Columbia o r a terr i tory , to such District or to such
territory), for liquidated damages . Such liquidated
damages shall be computed with respect to each individual
laborer or mechanic , including watchmen and guards ,
employed i n violation of the clause set forth in
subparagraph ( 1) of this paragraph, in the sum of $10 for each
calendar day on which such individual was required or permitted to
work in excess of the standard workweek of 40 hours without payment
of the overtime wages required by the clause set forth in sub
paragraph (1) of this paragraph .
Page 4 of 5
form HUD-4010 (06/2009 )
ref . Handbook 1344 .1
(3) Wlthholdlng for unpaid wages and liquidated
damages . HUD or its designee shall upon its own action
or upon written request of an authorized representative of
the Department of Labor withhold or cause to be withheld ,
from any moneys payable on account of work performed by
the contractor or subcontractor under any such contract or
any other Federal contract with the same prime contract.
or any other Federally-assisted contract subject to the
Contract Work Hours and Safety Standards Act which Is
held by the same prime contractor such sums as may be
determined to be necessary to satisfy any liabilities of
such contractor or subcontractor for unpaid wages and
liquidated damages as provided in the clause set forth in
subparagraph (2) of this paragraph .
(4) Subcontracts . The contractor or subcontractor shall
insert in any subcontracts the clauses set forth i n
subparagraph (1) through (4) of this paragraph and also a
clause requiring the subcontractors to include these
clauses in any lower tier subcontracts . The prime
contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses
set forth in subparagraphs (1) through (4) of this
paragraph .
C. Health and Safety. The provisions of this paragraph C are
applicable where the amount of the prime contract exceeds $100,000 .
(1) No laborer or mechanic shall be required to work in
surroundings or under working conditions which are
unsanitary , hazardous , or dangerous to his health and
safety as determined under construction safety and health
standards promulgated by the Secretary of Labor by
regulation .
(2) The Contractor shall comply with all regulations
issued by the Secretary of Labor pursuant to Title 29 Part
1926 and fa i lure to comply may result in imposition of
sanctions pursuant lo the Contract Work Hours and Safety
Standards Act , (Public Law 91-54 , 83 Stat 96). ~
3701 et sea .
(3) The contractor shall include the provisions of this
paragraph In every subcontr act so that such provisions will
be binding on each subcontractor . The contractor shall
take such action with respect to any subcontractor as the
Secretary of Housing and Urban Development or the
Secretary of Labor shall direct as a means of enforcing
such provisi ons .
Previous editions are obsolete
Page 5 of 5
form HUD-4010 (06/2009)
ref. Handbook 1344 .1
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 7/26/2011
DATE: Tue sday , July 26, 2011 REFERENCE NO.: C-25072
LOG NAME: 17BEATY STREET APARTMENTS-ADDITIONAL CHDO FUNDING
SUBJECT:
Authorize Change in Use and Expenditure of $1,000,000.00 of HOME Investment Partnerships Program
Grant Funds to Tarrant County Hou sing Partnership , Inc., in the Form of a Subordinate Forgivable Loan for
the Beaty Street Apartments Located in the 5500 Block of Beaty Street, Authorize the Execution of a Contract
and Authorize Substitution of Funding Years (COUNCIL DISTRICT 8)
REC OMMENDATI ON:
It is recommended that the City Council:
1. Authorize a change in use and expenditure of $1,000,000.00 in prior year 's HOME Investment
Partnerships Program Grant funds to Tarrant County Housing Partnership , Inc . in the form of a subordinate
forgivable loan for the acquisition, rehabilitation and redevelopment of the Beaty Street Apartments located
in the 5500 block of Beaty Street;
2. Authorize the City Manager, or hi s de signee, to execute a contract and any related documents for the
project with the Tarrant County Housing Partnership , Inc ., for a two-year term beginning on the date of
execution of the contract;
3. Authorize the City Manager, or hi s designee , to extend or renew the contract for up to one year if Tarrant
County Housing Partnership , Inc. requests an extension and s uch extension i s nece ssary for completion of the
project;
4. Authorize the City Manager, or his designee , to amend the contract if necessary to acheive project goals
provided that the amendment is within the sco pe of the project and in compliance with City policie s and
applicable laws and regulations governing the use of federal grant funds; and
5. Authorize the City Manager to substitute funding years in order to meet commitment, disbursement, and
expenditure deadlines for grant funds from the United States Department of Housing and Urban
Development.
DISCUSSI ON:
On July 13, 2010, City Council approved a contract with Tarrant County Housing Partnership, Inc. (TCHP)
for $1,360,255 .00 of the City's Neighborhood Stabilization Program (NS P) grant funds set aside for
households earning less than 50 percent of area median income (AMI) for the acquisition and redevelopment
of the Beaty Street Apartments located in the 5500 block of Beaty Street just north of Lancaster A venue
(M&C C-24344). On September 14 , 2010, City Council approved an addtional $339,500.00 ofNSP fund s
for the project for a total of $1,699 ,755.00 to be in the form of a subordinate forgivable loan (M&C
C-24455). The State is providing approximately $1.8 million of its NSP fund s for the project and TCHP is
providing approximately $314,000.00 of its own funds for the project.
The project consists of the acquisition of 73 multifamily units to be rehabilitated and redeveloped into 64
units. The 64 units will be in the 10 existing multifamily buildings and a single family house located on the
site will be rehabilitated to serve as an office/community center for on-site enrichment programs such as
budget management classes, credit counseling, job skills, and resume building. The project is now owned by
a lender after foreclosure and existing tenants will be relocated in accordance with Uniform Relocation Act
requirments. The 64 apartment units will provide quality, affordable, accessible housing to individuals and
families earning 50 percent or less of AMI which will increase the total number of very low income
households served by the NSP. TCHP will develop, own , and manage the property.
State and City staff have reviewed the project's development costs and funding sources and the rents that will
be charged. Because NSP requires that the rents be affordable to families earning at or below 50 percent
AMI, State and City staff have identified a gap in the project's finances. Staff recommends awarding an
additional $1,000,000.00 in HOME Community Housing Development Organization (CHDO) Set-Aside
funds to TCHP, a certified CHDO for this project. The funds can be used for acquisition, predevelopment
costs , rehabilitation and redevelopment costs, including, among other things , making the project more
sustainable and energy efficient.
Staff recommends the followin~ contract and loan terms:
i. Units must be rented to tenants who earn at or below 50 percent of AMI;
ii. Secure performance and repayment of HOME funds in case of default with deed of trust;
iii. 15 year Affordability Period ;
iv. Loan term to run concurrently with Affordability Period;
v. Loan forgiven at end of Affordability Period if all HOME requirments and contract terms are met.
The expenditure of HOME funds is conditioned upon the followin~:
i. Satisfactory completion of an environmental review per 24 CFR Part 58; and
ii. Authorization to use grant funds from HUD.
Staff recommends the change in use and expenditure of $1,000,000.00 of HOME CHDO Set-Aside funds for
the project which benefits low and very low income citizens by providing them with affordable housing . A
public comment period on the change in use of these HOME funds was held from June 24, 2011 to July 23,
2011. Any comments are maintained by the Housing and Economic Development Department. The Action
Plan funding years selected may vary and be substituted based on the principle of first in, first out (FIFO) in
order to spend oldest grant funds first.
This project is located in COUNCIL DISTRICT 8.
FISCAL INFORMATION:
The Financial Management Services Director certifies that funds are available in the current operating
budget, as appropriated, of the Grants Fund.
Ell.tS:ll CE.tS:IERS :
I O E1mdLA!i.:!i.:2Yn1LC~nli:[:i E.ROM E11ndLA!i.:!i.:2Yn1LC~ot~[:i
QB.:Z6 532l2Q QQ52Q61285QQ $311,4:Z QB.16 532]2Q QQ52Q6l2824Q $311,4:Z
GR:Z6 53912Q QQ52Q61285QQ $99 ,999.0Q GR76 53912Q QQ52Q612816Q $99,999.QQ
GR:Z6 53912Q QQ52Q66985QQ $1Q,:Z45.27 GR76 53912Q Q052Q669846Q $10,745 .27
QB.:Z6 53212Q QQ52Q6:Z:Z25QQ $44 221 QQ QB.16 53212Q QQ52Q6:Z:Z246Q $44,99:Z,QQ
QB.:Z6 53212Q QQ52Q68~65QQ $25,QQQ,QQ QB.16 53212Q QQ52Q684628Q $25,QQQ,QQ
QB.16 53212Q QQ52Q68465QQ $25,QQQ,QQ QB.16 53212Q QQ52Q68462:ZQ $25,QQQ,QQ
..
QB.16 532]2Q QQ52Q623Q5QQ $16,Q52,65 QB.16 53212Q QQ52Q623Q2IQ
QR16 53212Q QQ52Q623Q5QQ $32,135 .83 QR76 53212Q QQ52Q623022Q
QR16 53212Q OQ52Q623Q5QO $2,376.86 QR16 53212Q 0052Q623028Q
QlQ6 53212Q QQ52Q6QQ65QQ $34Q,326,6l QB.16 53212Q QQ52Q6QQ62]Q
QlQ6 53212Q QQ52Q6QQ65QQ $34,384.11 QR16 53212Q QQ52Q6QQ622Q
QE.16 532l2Q QQ52Q6QQ65QQ $136,424,QQ QB.16 53212Q QQ52Q6QQ622Q
QR16 53212Q QQ52Q6QQ65QQ $%,712.46 QR16 53212Q Q052Q6QQ628Q
QR16 53212Q QQ52Q61415QQ $187,72Q.68 QR16 53212Q QQ52Q614122Q
CERTIFICATIONS:
Submitted for City Mana~er's Office by: Susan Alanis (8 180)
Jay Chapa (5804)
Cynthi a Garcia (8187)
Ori~inatin~ Department Head:
Additional Information Contact :
Ryan H aden (7329)
ATTACHMENTS
1. Available Funds -Beaty Street Apartments.pdf
2. Available Funds.pdf
3. Beaty Street Apartments Map.doc
$]6.Q52,65
$32,735.83
$2,376.86
$34Q 326 6]
$34,384.11
$]36,424,QQ
$36,712.46
$187 ,12Q.68
Promissory Note
HOME Funds
Date: September 19 , 2011
Borrower: Tarrant County Housing Partnership, Inc.
Borrower's Mailing Address:
Tarrant County Housing Partnership , Inc.
3204 Collinsworth Street
Fort Worth TX 76107
With a copy to:
Harris , Finley & Bogle, P.C.
777 Main Street, Suite 3600
Fort Worth, TX 76102
Attn: Ken Adair
Lender: City of Fort Worth, a Texas municipal corporation
Place for Payment:
City of Fort Worth Housing and Economic Development Department
Attn: Cynthia Garcia
1000 Throckmorton Street
Fort Worth, Tarrant County , Texas 76102, or any other place that Lender may
designate in writing.
Principal Amount: $1,000,000.00
Loan Authority:
The loan evidenced by this Note (the "Loan") is being made pursuant to the
HOME Investment Partnerships Program authorized under Title II of the
Cranston-Gonzalez National Affordable Housing Act of 1990, as amended, 42
USC 12701 et seq. ("HOME Program") and the HOME Investment Partnerships
Program Final Rule, as amended , 24 CFR Part 92 et seq. (the "HOME
Regulations") with HOME funds.
Annual Interest Rate: Zero Percent (0 %)
Maturity Date: The expiration of the Affordability Period described in City Secretary
Contract No . ~'J-2.SfJr dated September~, 2011 between the
Borrower and Lender (the "Contract") for the Beaty Street
Apartments project.
Annual Interest Rate on Matured, Unpaid Amounts: Twelve Percent (12%)
PROMISSORY NOTE -HOME FUNDS Page 1
Tarrant County Housing Partnership, Inc. rev.09-13-11
-)v -r 1\J
Terms of Payment:
The Principal Amount is a forgivable deferred payment loan. Payment of the Principal
Amount will only be required if any of the following conditions occur: (i) the Project is not
maintained and operated as affordable housing as described in the Contract for the duration of
the Affordability Period, or (ii) Borrower does not comply with any of the terms of this Note or
the Deed of Trust securing it.
This Note is the Note required in the Contract and has been executed and delivered in
accordance with it. The funds advanced by Lender are HOME funds and the Contract
requires that the 21 residential rental units located on the Property assisted with HOME funds
(the "HOME Units") must qualify and remain affordable rental housing in accordance with
the HOME Program and the HOME Regulations for the 15 year Affordability Period more
particularly defined in the Contract. The obligations described in the Contract pertaining to
the HOME Program and the HOME Regulations including the Affordability Period as well
as the Loan evidenced by this Note will be in default if the HOME Units more particularly
described in the Contract do not remain affordable rental housing for the duration of the
Affordability Period. In the event of such default, Lender may invoke any remedies provided
in the Contract or the Deed of Trust Security Agreement-Financing Statement for default.
Security for Payment: This Note is secured by a Deed of Trust Security Agreement -
Financing Statement dated September 19 , 2011 from Borrower to Vicki S . Ganske, Trustee
or Leann D . Guzman, Trustee (the "Deed of Trust") which covers the following real property
(the "Property"):
Being Tracts I - X in Forty Oaks, an addition to the City of Fort Worth,
Tarrant County, Texas more particularly described in the attached Exhibit
"A " incorporated herein by reference for all purposes.
Other Security for Payment: As set forth in the Contract
If the Principal Amount is not forgiven , Borrower promises to pay to the order of
Lender the Principal Amount plus interest. In that event, this Note is payable at the Place for
Payment and according to the Terms of Payment. All unpaid amounts are due by the Loan
Maturity Date. After the Loan Maturity Date, Borrower promises to pay any unpaid principal
balance plus interest at the Annual Interest Rate on Matured, Unpaid Amounts.
If Borrower defaults in the payment of this Note or in the performance of its
obligations under the Contract or the HOME Program or the HOME Regulations or in the
performance of any obligation in any instrument securing or collateral to this Note , Lender
may inv oke any remedies provided herein or in the Deed of Trust for default.
Notwithstanding any other provision of this Note, in the event of a default, before exercising
any of Lender's remedies under this Note or any deed of trust with security agreement
securing or collateral to it , Lender will first give Borrower written notice of default and
Borrower will have 10 days after notice is given in which to cure the default. If the default is
PROMISSORY NOTE -HOME FUNDS
Tarrant County Housing Partnership, Inc.
Page2
rev.09-13-11
not cured 10 days after notice, Borrower and each surety , endorser, and guarantor waive all
demand for payment, presentation for payment, notice of intention to accelerate maturity,
notice of acceleration of maturity , protest, and notice of protest, to the extent permitted by
law.
Notwithstanding anything to the contrary, if a monetary event of default occurs under
the terms of any of the Loan documents , prior to exercising any remedies Lender shall give
Borrower written notice of such default. Borrower and each of the general and limited partners
on behalf of Borrower shall have a period of 10 days after such notice is given within which to
cure the default prior to exercise of remedies by Lender under the Loan documents.
Notwithstanding anything to the contrary , if a non-monetary event of default occurs under the
terms of any of the Loan documents, prior to exercising any remedies , Lender shall give
Borrower written notice of such default. If the default is reasonably capable of being cured
within 30 days , Borrower shall have such period to effect a cure prior to exercise of remedies
by Lender under the Loan documents. If the default is such that it is not reasonably capable of
being cured within 30 days , and if Borrower (a) initiates corrective action within said period,
and (b) diligently, continually, and in good faith works to effect a cure as soon as possible, then
Borrower shall have such additional time as is reasonably necessary to cure the default prior to
exercise of any remedies by Lender. In no event shall Lender be precluded from exercising
remedies if its security becomes or is about to become materially jeopardized by any failure to
cure a default or the default is not cured within 180 days after the first notice of default is given.
Borrower also promises to pay reasonable attorney's fees and court and other costs if
this Note is placed in the hands of an attorney to collect or enforce the Note . These expenses
will bear interest from the date of default at the Annual Interest Rate on Matured, Unpaid
Amounts. Borrower will pay Lender these expenses and interest on demand at the Place for
Payment. These expenses and interest will become part of the debt evidenced by the Note
and will be secured by any security for payment.
Interest on the debt evidenced by this Note will not exceed the maximum rate or
amount of non-usurious interest that may be contracted for , taken , reserved , charged, or
received under law. Any interest in excess of that maximum amount will be credited on the
Principal Amount or, if the Principal Amount has been paid, refunded. On any acceleration
or required or permitted prepayment, any excess interest will be canceled automatically as of
the acceleration or prepayment or, if the excess interest has already been paid, credited on the
Principal Amount or, if the Principal Amount has been paid, refunded. This provision
overrides any conflicting provisions in this Note and all other instruments concerning the
debt.
Each Borrower, as applicable , is responsible for all obligations represented by this
Note.
When the context requires , singular nouns and pronouns include the plural.
PROMISSORY NOTE -HOME FUNDS
Tarrant County Housing Partnership, Inc.
Page3
rev .09-13-11
The indebtedness evidenced by this Note is and shall be subordinate in right of payment
to the prior payment in full of the indebtedness to be hereafter evidenced by a promissory note in
the amount of $530,000.00 ("Senior Indebtedness") made by Borrower and payable to Wells
Fargo Bank, N.A. ("Senior Lender"). The Deed of Trust securing this Note is and shall be
subject and subordinate in all respects to the liens , terms , covenants and conditions of the deed
of trust or mortgage securing the Senior Indebtedness. The rights and remedies of the payee and
each subsequent holder of this Note under the Deed of Trust securing this Note are subject to the
liens , terms , covenants and conditions of the deed of trust or mortgage securing the Senior
Indebtedness.
Subject to any cure periods provided in the documents evidencing the Senior
Indebtedness, if there is a default in payment of any part of principal or interest of the Senior
Indebtedness or a breach of any covenants contained in any instruments securing it, the debt
evidenced by this Note will immediately become payable at the option of Lender. If
Borrower fails to perform any of Borrower's obligations in the promissory note evidencing
the Senior Indebtedness or in any instruments securing same, Lender may perform those
obligations and be reimbursed by Borrower, on demand, at the Place for Payment for any
amounts advanced, including attorney's fees, plus interest on those amounts from the date of
payment at the Annual Interest Rate on Matured , Unpaid Amounts . The amount to be
reimbursed will be secured by all instruments securing this Note.
If any installment becomes overdue for more than fifteen (15) days , at Lender's option
a late payment charge of five percent ( 5%) of the amount then due may be charged in order to
defray the expense of handling the delinquent payment.
A default exists under this Note if (1) Borrower fails to timel y pay or perform any
obligation or covenant in any written agreement between Lender and Borrower; (2) any
warranty, co venant, or representation in this Note or in any other written agreement between
Lender and Borrower is materially false when made; (3) a receiver is appointed for Borrower,
or any property on which a lien or security interest is created as security (the "Collateral
Security") for any part of this Note; ( 4) any Collateral Security is assigned for the benefit of
creditors other than the holder(s) of the Senior Indebtedness; (5) a bankruptcy or insolvency
proceeding is commenced by Borrower; (6) (a) a bankruptcy or insolvency proceeding is
commenced against Borrower and (b) the proceeding continues without dismissal for 90
days , the party against whom the proceeding is commenced admits the material allegations of
the petition against it, or an order for relief is entered ; (7) any of the following parties is
dissolved , begins to wind up its affairs , is authorized to dissol ve or wind up its affairs by its
gov erning body or persons, or any event occurs or condition exists that permits the
dissolution or winding up of the affairs of any of the following parties: (i) Borrower; and (8)
any Collateral Security is materially impaired by loss , theft , damage, levy and execution,
issuance of an official writ or order of seizure, or destruction, unless it is promptly replaced
with insurance proceeds , collateral security oflike kind and quality or restored to its former
condition.
The execution and deli very of this Note are required under the Contract.
PROMISSORY NOTE -HOME FUNDS
Tarrant County Housing Partnership, Inc.
Page4
rev.09-13-11
If any provision of this Note conflicts with any provision of the Contract, the Deed of
Trust or any other document evidencing the same transaction between Lender and Borrower,
the provisions of the Contract will govern to the extent of the conflict.
This Note will be construed under the laws of the state of Texas without regard to
choice-of-law rules of any jurisdiction.
This Note is a nonrecourse obligation of Borrower. Neither Borrower nor any other
party shall have any personal liability for repayment of the Loan described in the Contract.
The sole recourse of Lender under the Loan documents for repayment of the Loan shall be
the exercise of its rights against the Security for Payment.
[Remainder of Page Intentionally Left Blank]
PROMISSORY NOTE -HOME FUNDS
Tarrant County Housing Partnership, Inc.
Page5
rev.09-13-11
THE CONTRACT, THE NOTE AND THE DEED OF TRUST CONSTITUTE
THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
By :
PROMISSORY NOTE -HOME FUNDS
Tarrant County Housing Partnership, Inc.
GP ARTNERSHIP, INC.
Page 6
rev.09-13-11
EXHIBIT 'A'
LEGAL DESCRIPTION
Tract I:
Lots 16-R and 18-R, Block 14 , Forty Oaks, an Addition to the City of Fort Worth, Tarrant
County, Texas, according to the map or plat thereofrecorded in Volume 388-46 , Page 619,
of the Plat Records of Tarrant County, Texas.
Tract II:
Lots 8, 9 and 10, Block 15, Forty Oaks, an Addition to the City of Fort Worth, Tarrant
County, Texas, according to the map or plat thereof recorded in Volume 388-1, Page 40, of
the Plat Records of Tarrant County, Texas.
Tract III:
Lot 13, Block 14, Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereofrecorded in Volume 388-1, Page 40, of the Plat Records
of Tarrant County, Texas.
Tract IV:
Lot 15, Block 14, of Forty Oaks, an Addition to the City of Fort Worth, Tarrant County,
Texas, according to the map or plat thereofrecorded in Volume 388-1, Page 40, of the Plat
Records of Tarrant County, Texas.
Tract V:
Lot 14, Block 14, of Forty Oaks , an Addition to the City of Fort Worth, Tarrant County,
Texas, according to the map or plat thereofrecorded in Volume 388-1 , Page 40, of the Plat
Records of Tarrant County, Texas.
Tract VI:
Lot 4, Block 15 , Forty Oaks , an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereof recorded in Volume 3 88-1, Page 40, of the Plat Records
of Tarrant County, Texas.
Tract VII:
Lot 3, Block 15 , Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereof recorded in Volume 388-1, Page 40, of the Plat Records
of Tarrant County, Texas.
Tract VIII:
Lot 12 , Block 14, of Forty Oaks, an Addition to the City of Fort Worth, Tarrant County,
Texas , according to the map or plat thereofrecorded in Volume 388-1, Page 40, of the Plat
Records of Tarrant County, Texas.
PROMISSORY NOTE -HOME FUNDS
Tarrant County Housing Partnership, Inc.
Page 7
rev.09-13-11
Tract IX:
Lot 1, Block 15, Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereof recorded In Volume 388-1 , Page 40, of the Plat Records
of Tarrant County, Texas.
Tract X:
Lot 2 , Block 15, Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereof recorded In Volume 388-1 , Page 40, of the Plat Records
of Tarrant County, Texas.
PROMISSORY NOTE -HOME FUNDS
Tarrant County Housing Partnership, Inc .
Page8
rev.09-13-11
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST
IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S
LICENSE NUMBER.
Deed of Trust
Security Agreement -Financing Statement
HOME Funds
Terms
Date: September 19, 2011
Grantor: Tarrant County Housing Partnership, Inc., a Texas limited partnership
Grantor's Mailing Address:
Trustee:
Tarrant County Housing Partnership, Inc.
3204 Collinsworth Street
Fort Worth, TX 76107
Attn: Donna VanNess
With a copy to:
Harris, Finley & Bogle, P.C.
777 Main Street, Suite 3600
Fort Worth, TX 76102
Attn: Ken Adair
Vicki S. Ganske or Leann D. Guzman
Trustee's Mailing Address:
The City Attorney's Office
The City of Fort Worth
1000 Throckmorton St.
1 Fort Worth TX 76102
Tarrant County
• ' ;
.~ ·>
Lender: City of Fort Worth, a Texas municipal corporation
Lender's Mailing Address:
City of Fort Worth Housing and economic Development Department
Attn: Cynthia Garcia
1000 Throckmorton Street
DEED OF TRUST -HOME FUNDS
Tarrant County Housing Partnership, Inc . Rev. 09-13-11
Page 1
' .
Fort Worth, Texas 7 6102
Tarrant County
Loan Authority:
The loan evidenced by the Note (the "Loan") and secured by this Deed of Trust
Security Agreement -Financing Statement ("Deed of Trust") is being made pursuant
to the HOME Investment Partnerships Program authorized under Title II of the
Cranston-Gonzales National Affordable Housing Act of 1990, as amended , 42 USC
12701 et seq. (the "HOME Program") and the HOME Investment Partnership
Program Final Rule , as amended, 24 CFR Part 92 et seq. (the "HOME Regulations")
with HOME funds.
Obligations
Note
Date : September \!\, 2011
Original principal amount: $1 ,000 ,000 .00
Borrower: Tarrant County Housing Partnership, Inc.
Lender: City of Fort Worth
Terms of Payment: As provided in the Note
Maturity Date: The expiration of the Affordability Period described in City
Secretary Contract No . tf'l.2..-Se, dated September
2A> , 2011 between the Borrower and Lender for the Beaty
Street Apartments project (the "Contract").
In addition , Obligations shall include compliance by Grantor with the requirements of
the HOME Program for the 15 year Affordability Period more particularly described
in Section F. below.
Property (including any improvements):
Being Tracts I -X in Forty Oaks, an addition to the City of Fort Worth as
more particularly described in the attached Exhibit "A" incorporated herein
by reference for all purposes.
Together with the following personal property:
All fixtures, supplies, building materials , and other goods of every nature
now or hereafter located, used , or intended to be located or used on the
Property ;
All plans and specifications for development of or construction of
improvements on the Property;
All contracts and subcontracts relating to the construction of improvements
on the Property;
All accounts , contract rights, instruments , documents , general intangibles,
and chattel paper arising from or by virtue of any transactions relating to the
Property;
DEED OF TRUST -HOME FUNDS
Tarrant County Housing Partnership, Inc. Rev. 09-13-11
Page2
! •
All permits, licenses, franchises , certificates , and other rights and privileges
obtained in connection with the Property;
All proceeds payable or to be payable under each policy of insurance relating
to the Property; and
All products and proceeds of the foregoing.
Notwithstanding any other provision in this Deed of Trust, the term "Property" does
not include personal effects used primarily for personal, family, or household
purposes.
In addition to creating a deed-of-trust lien on the Property described , Grantor also
grants to Lender a security interest in all of the above-described personal property
pursuant to and to the extent permitted by the Texas Uniform Commercial Code.
Prior Liens:
The lien created by this Deed of Trust is and shall be subject and subordinate in all
respects to the liens, terms, covenants and conditions of the deed or trust or mortgage
securing that certain promissory note evidencing construction loan and permanent loan
indebtedness in the amount of $530,000.00 ("Senior Note") made by Grantor and
payable to Wells Fargo Bank, N.A. (the "Senior Lender").
Subject to waiver, notice , grace and cure period, if any, if default occurs in payment
of any part of principal or interest of the Senior Note or in observance of any
covenants of the deed of trust or other loan documents securing the Senior Note, the
entire debt secured by this Deed of Trust will immediately become payable at the
option of Lender.
Other Exceptions to Conveyance and Warranty:
The Permitted Exceptions set forth on Exhibit "B" attached hereto and incorporated
herein for all purposes
For value received and to secure performance of the Obligations, Grantor conveys the
Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property,
subject to the Other Exceptions to Conveyance and Warranty. On performance of the
Obligations including payment of the Loan and all other amounts secured by this Deed of
Trust and performance of the requirements of the HOME Program , this Deed of Trust will
have no further effect, and Lender will release it at Grantor's expense.
Clauses and Covenants
A. Grantor's Obligations
Grantor agrees to-
1. pay all taxes and assessments on the Property before delinquency;
DEED OF TRUST -HOME FUNDS
Tarrant County Housing Partnership, Inc. Rev. 09-13-11
Page3
!
2. defend title to the Property subject to the Other Exceptions to Conveyance and
Warranty and preserve the lien's priority as it is established in this Deed of Trust;
3. obey all laws , ordinances, and restrictive covenants applicable to the Property;
4. maintain all insurance coverages with respect to the Property, revenues
generated by the Property , and operations on the Property that Lender reasonably requires
("Required Insurance Coverages"), issued by insurers and written on policy forms acceptable
to Lender, and deliver evidence of the Required Insurance Coverages in a form acceptable to
Lender at least ten (10) days before the expiration of the Required Insurance Coverages.
5. if the lien of this Deed of Trust is not a first lien, pay or cause to be paid all
prior lien notes pursuant to their respective terms and abide by or cause to be abided by all
prior lien instruments; and
6. notify Lender of any change of address.
Granter agrees not to-
1. do or permit anything to be done that will impair the security ofthis Deed of
Trust.
B. Lender's Rights
1. Lender or Lender's mortgage servicer may appoint in writing a substitute
trustee, succeeding to all rights and responsibilities of Trustee.
2. If the proceeds of the Loan are used to pay any debt secured by prior liens,
Lender is subrogated to all the rights and liens of the holders of any debt so paid.
3. Notwithstanding the terms of the Note to the contrary, and unless applicable
law prohibits, all payments received by Lender from Granter with respect to the Obligations
or this Deed of Trust may, at Lender's discretion, be applied first to amounts payable under
this Deed of Trust and then to amounts due and payable to Lender with respect to the
Obligations, to be applied to late charges, principal, or interest in the order Lender in its
discretion determines.
4 . If Granter fails to perform any of Grantor's Obligations under this Deed of
Trust, subject to prior written notice and cure period, Lender may perform those obligations
and be reimbursed by Granter on demand for any amounts so paid, including reasonable
attorney's fees, plus interest on those amounts from the dates of payment at the rate stated in
the Note for matured , unpaid amounts. The amount to be reimbursed will be secured by this
Deed of Trust.
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Page4
5. If there is a default on the Obligations or if Grantor fails to perform any of
Grantor's Obligations under this Deed of Trust and the default continues after any required
notice of the default and the time allowed to cure, Lender may-
a. declare any unpaid principal balance and earned interest on the Obligations
immediately due;
b. direct Trustee to foreclose this lien, in which case Lender or Lender's agent
will cause notice of the foreclosure sale to be given as provided by the Texas
Property Code as then in effect; and
c . purchase the Property at any foreclosure sale by offering the highest bid and
then have the bid credited on the Obligations.
Notwithstanding anything to the contrary, if a monetary event of default occurs under
the terms of any of the Loan documents, prior to exercising any remedies Lender shall give
Grantor written notice of such default. Grantor shall have a period of 10 days after such notice
is given within which to cure the default prior to exercise of remedies by Lender under the Loan
documents. Notwithstanding anything to the contrary, if a non-monetary event of default
occurs under the terms of any of the Loan documents, prior to exercising any remedies, Lender
shall give Grantor written notice of such default. If the default is reasonably capable of being
cured within 30 days, Grantor shall have such period to effect a cure prior to exercise of
remedies by Lender under the Loan documents. If the default is such that it is not reasonably
capable of being cured within 30 days, and if Grantor (a) initiates corrective action within said
period, and (b) diligently, continually, and in good faith works to effect a cure as soon as
possible, then Grantor shall have such additional time as is reasonably necessary to cure the
default prior to exercise of any remedies by Lender. In no event shall Lender be precluded from
exercising remedies if its security becomes or is about to become materially jeopardized by any
failure to cure a default or the default is not cured within 180 days after the first notice of
default is given.
6. Lender may remedy any default without waiving it and may waive any default
without waiving any prior or subsequent default.
C. Trustee's Rights and Duties
If directed by Lender to foreclose this lien, Trustee will-
1. either personally or by agent give notice of the foreclosure sale as required by
the Texas Property Code as then in effect;
2. sell and convey all or part of the Property "AS IS" to the highest bidder for
cash with a general warranty binding Grantor, subject to the Prior Lien and to the Other
Exceptions to Conveyance and Warranty and without representation or warranty, express or
implied, by Trustee;
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3. from the proceeds of the sale, pay, in this order-
a. expenses of foreclosure, including a reasonable commission to
Trustee;
b. to Lender, the full amount of principal, interest, reasonable attorney's
fees, and other charges due and unpaid;
c. any amounts required by law to be paid before payment to Grantor;
and
d. to Grantor, any balance; and
4. be indemnified, held harmless, and defended by Lender against all costs,
expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the
trust created by this Deed of Trust, which includes all court and other costs, including
reasonable attorney's fees, incurred by Trustee in defense of any action or proceeding taken
against Trustee in that capacity.
D. General Provisions
1. If any of the Property is sold under this Deed of Trust, Grantor must
immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor will
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, absent evidence to the contrary.
3. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing
any other remedy will not constitute an election of remedies.
4. This lien will remain superior to liens later created even if the time of
payment of all or part of the Obligations is extended or part of the Property is released, unless
a subordination agreement is executed by the Lender.
5. If any portion of the Obligations cannot be lawfully secured by this Deed of
Trust, payments will be applied first to discharge that portion.
6. Subject to the rights of senior lien holders, Grantor assigns to Lender all
amounts payable to or received by Grantor from condemnation of all or part of the Property,
from private sale in lieu of condemnation, and from damages caused by public works or
construction on or near the Property. After deducting any expenses incurred, including
reasonable attorney's fees and court and other costs, Lender will either release any remaining
amounts to Grantor or apply such amounts to reduce the Obligations and any excess proceeds
shall be paid to Grantor. Lender will not be liable for failure to collect or to exercise
diligence in collecting any such amounts. Grantor will immediately give Lender notice of any
actual or known threatened proceedings for condemnation of all or part of the Property.
DEED OF TRUST -HOME FUNDS
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Page6
Notwithstanding the above, in the event of any fire or other casualty to the Property or
eminent domain proceedings resulting in condemnation of the Property or any part thereof,
Grantor shall have the right to rebuild the Property, and to use all available insurance or
condemnation proceeds therefore, provided that (a) such proceeds are sufficient to keep the
Obligations in balance and rebuild the Property in a manner that provides adequate security to
Lender for repayment or performance of the Obligations or if such proceeds are insufficient
then Grantor shall have funded any deficiency, (b) Lender shall have the right to approve plans
and specifications for any major rebuilding and the right to approve disbursements of insurance
or condemnation proceeds for rebuilding under a construction escrow or similar arrangement,
and ( c) no material default then exists under the Loan documents other than attributable to
casualty or condemnation. If the casualty or condemnation affects only part of the Property and
total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial
repayment of the Obligations in a manner that provides adequate security to Lender for
repayment of the remaining balance of the Obligations, and any excess proceeds shall be paid
to Grantor.
7 . Subject to the rights of senior lien holders, Grantor assigns to Lender
absolutely, not only as collateral, all present and future rent and other income and receipts
from the Property. Grantor may as Lender's licensee collect rent and other income and
receipts as long as Grantor is not in default with respect to the Obligation or this Deed of
Trust. Subject to the terms of the Loan documents, Grantor will apply all rent and other
income and receipts to payment of the Obligations and performance of this Deed of Trust,
but if the rent and other income and receipts exceed the amount due with respect to the
Obligations and the Deed of Trust, Grantor may retain the excess. If Grantor defaults in
payment or performance of the Obligations or performance of this Deed of Trust, Lender may
terminate Grantor's license to collect rent and other income and then as Grantor's agent may
rent the Property and collect all rent and other income and receipts. Lender neither has nor
assumes any obligations as lessor or landlord with respect to any occupant of the Property.
Lender may exercise Lender's rights and remedies under this paragraph without taking
possession of the Property. Lender will apply all rent and other income and receipts
collected under this paragraph first to expenses incurred in exercising Lender's rights and
remedies and then to Grantor's obligations with respect to the Obligations and this Deed of
Trust in the order determined by Lender. Lender is not required to act under this paragraph,
and acting under this paragraph does not waive any of Lender's other rights or remedies.
8. Interest on the debt secured by this Deed of Trust will not exceed the
maximum amount of non-usurious interest that may be contracted for, taken, reserved,
charged, or received under law. Any interest in excess of that maximum amount will be
credited on the principal of the debt or, if that has been paid, refunded. On any acceleration
or required or permitted prepayment, any excess interest will be canceled automatically as of
the acceleration or prepayment or, if already paid, credited on the principal of the debt or, if
the principal of the debt has been paid, refunded. This provision overrides any conflicting
provisions in this and all other instruments concerning the debt.
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Page 7
9. In no event may this Deed of Trust secure payment of any debt that may not
lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law.
10. When the context requires, singular nouns and pronouns include the plural.
11. The term Note includes all extensions, modifications, and renewals of the
Note and all amounts secured by this Deed of Trust.
12. Grantor agrees to (a) keep at Grantor's address, or such other place as Lender
may approve, accounts and records reflecting the operation of the Property and copies of all
written contracts, leases, and other instruments that affect the Property; (b) prepare financial
accounting records in compliance with generally accepted accounting principles consistently
applied; and ( c ), at Lender's request on reasonable notice from time to time, permit Lender to
examine and make copies of such books, records, contracts, leases, and other instruments at
any reasonable time.
13. Grantor agrees to deliver to Lender, at Lender's request from time to time,
internally prepared financial statements of Grantor and any guarantor of the Note prepared in
accordance with generally accepted accounting principles consistently applied, in detail
reasonably satisfactory to Lender and certified to be materially true and correct by the chief
financial officer of Grantor or its certified public accountant, as applicable.
14. If Lender orders an appraisal of the Property while a default exists or to
comply with legal requirements affecting Lender, Grantor, at Lender's request, agrees to
reimburse Lender for the reasonable cost of any such appraisal. If Grantor fails to reimburse
Lender for any such appraisal within 20 days of Lender's written request, that failure is a
default under this Deed of Trust.
15. Grantor agrees to allow Lender or Lender's agents to enter the Property at
reasonable times and inspect it and any personal property in which Lender is granted a
security interest by this Deed of Trust.
16. Gran tor may not sell, transfer, or otherwise dispose of any Property, whether
voluntarily or by operation of law, except for condemnation or to obtain utility easements,
without the prior written consent of Lender. If granted, consent may be conditioned upon (a)
the grantee's integrity, reputation, character, creditworthiness, and management ability being
satisfactory to Lender; and (b) the grantee's executing, before such sale, transfer, or other
disposition, a written assumption agreement containing any terms Lender may reasonably
require, such as a principal pay down on the Obligations, an increase in the rate of interest
payable with respect to the Obligations, a transfer fee, or any other modification of the Note,
this Deed of Trust , or any other instruments evidencing or securing the Obligations.
Gran tor may not cause or permit any Property to be encumbered by any liens, security
interests, or encumbrances other than the liens securing the Obligation and the liens securing
ad valorem taxes not yet due and payable and the Permitted Exceptions without the prior
DEED OF TRUST -HOME FUNDS
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Page8
written consent of Lender. If granted, consent may be conditioned upon Grantor's executing,
before granting such lien, a written modification agreement containing any terms Lender may
require, such as a principal pay down on the Obligations, an increase in the rate of interest
payable with respect to the Obligations, an approval fee, or any other modification of the
Note, this Deed of Trust, or any other instruments evidencing or securing the Obligations.
Grantor may not grant any lien, security interest, or other encumbrance ( a
"Subordinate Instrument") covering the Property that is subordinate to the liens created by
this Deed of Trust without the prior written consent of Lender. If granted, consent may be
conditioned upon the Subordinate Instrument's containing express covenants to the effect
that-
a. the Subordinate Instrument is unconditionally subordinate to this Deed of
Trust;
b. if any action is instituted to foreclose or otherwise enforce the Subordinate
Instrument, no action may be taken that would terminate any occupancy or
tenancy without the prior written consent of Lender, and that consent, if
granted, may be conditioned in any manner Lender determines;
c. rents, if collected by or for the holder of the Subordinate Instrument, will be
applied first to the payment of the Obligations then due and to expenses
incurred in the ownership, operation, and maintenance of the Property in any
order Lender may determine, before being applied to any indebtedness
secured by the Subordinate Instrument;
d. written notice of default under the Subordinate Instrument and written notice
of the commencement of any action to foreclose or otherwise enforce the
Subordinate Instrument must be given to Lender concurrently with or
immediately after the occurrence of any such default or commencement; and
e. in the event of the bankruptcy of Grantor, all amounts due on or with respect
to the Obligations and this Deed of Trust will be payable in full before any
payments on the indebtedness secured by the Subordinate Instrument.
Grantor may not cause or permit any of the following events to occur without the
prior written consent of Lender: if Grantor is (a) a corporation, the dissolution of the
corporation or the sale, pledge, encumbrance, or assignment of any shares of its stock; (b) a
limited liability company, the dissolution of the company or the sale, pledge, encumbrance,
or assignment of any of its membership interests; ( c) a general partnership or joint venture,
the dissolution of the partnership or venture or the sale, pledge, encumbrance, or assignment
of any of its partnership or joint venture interests, or the withdrawal from or admission into it
of any general partner or joint venturer; or (d) a limited partnership, (1) the dissolution of the
partnership, (2) the sale, pledge, encumbrance, or assignment of any of its general partnership
interests, or the withdrawal from or admission into it of any general partner, or (3) except for
a limited partnership interest in a low income housing project, the withdrawal from or
admission into it of any controlling limited partner or partners. If granted, consent may be
conditioned upon (a) the integrity, reputation, character, creditworthiness, and management
ability of the person succeeding to the ownership interest in Grantor ( or security interest in
DEED OF TRUST -HOME FUNDS
Tarrant County Housing Partnership, Inc. Rev. 09-13-11
Page9
such ownership) being reasonably satisfactory to Lender; and (b) the execution, before such
event, by the person succeeding to the interest of Grantor in the Property or ownership
interest in Grantor ( or security interest in such ownership) of a written modification or
assumption agreement containing such terms as Lender may reasonably require, such as a
principal pay down on the Obligations , an increase in the rate of interest payable with respect
to the Obligations, a transfer fee, or any other modification of the Note, this Deed of Trust, or
any other instruments evidencing or securing the Obligations.
Notwithstanding anything to the contrary herein, neither the withdrawal, removal,
replacement, and/or addition of a general partner of the Grantor pursuant to the terms of a
partnership agreement, nor the withdrawal, replacement, and/or addition of any of Grantor's
limited partners or its limited partner's general partners or members, shall constitute a default
under any of the Loan documents, and any such actions shall not accelerate the maturity of the
Loan, provided that any required substitute Grantor's general partner is reasonably acceptable
to Lender and is selected with reasonable promptness. Any substitute general partner that is an
affiliate of Grantor 's limited partner is hereby deemed acceptable to Lender. Further, none of
the actions described in this paragraph will constitute a material change in ownership which
would trigger termination of the Contract as hereinafter defined.
17. Grantor agrees not to grant any lien or security interest in the Property or to
permit any junior encumbrance to be recorded or any claim to otherwise become an
encumbrance against the Property. If an involuntary encumbrance is filed against the
Property, Grantor agrees, within thirty (30) days of actual notice, to either remove the
involuntary encumbrance or insure against it or provide a bond acceptable to Lender against
the involuntary encumbrance.
18. This Deed of Trust binds, benefits, and may be enforced by the successors in
interest of all parties.
19. If Grantor and Borrower are not the same person, the term Grantor includes
Borrower.
20. Grantor and each surety, endorser, and guarantor of the Obligations waive all
demand for payment, presentation for payment, notice of intention to accelerate maturity,
notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by
law.
21. Grantor agrees to pay reasonable attorney's fees, trustee's fees, and court and
other costs of enforcing Lender's rights under this Deed of Trust if this Deed of Trust is
placed in the hands of an attorney for enforcement.
22. If any provision of this Deed of Trust is determined to be invalid or
unenforceable, the validity or enforceability of any other provision will not be affected.
23. The term Lender includes any mortgage servicer for Lender.
DEED OF TRUST -HOME FUNDS
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24. The debt and the performance secured by this Deed of Trust is a nonrecourse
obligation of Borrower. Neither Borrower nor any other party shall have any personal
liability for repayment of the Loan described in the Contract. The sole recourse of Lender
under the Loan documents for repayment of the Loan or performance of any of the
Obligations shall be the exercise of its right against the security for payment as defined in the
Note.
E. Construction Loan Mortgage
1. This Deed of Trust is a "construction mortgage" within the meaning of
Section 9.334 of the Texas Business and Commerce Code. The liens and security interests
created and granted by this Deed of Trust secure an obligation incurred for the construction
or rehabilitation of improvements on land.
2. Grantor agrees to comply with the terms, covenants and conditions of the
Contract which requires the Note and this Deed of Trust. All advances made by Lender
under the Contract will be indebtedness of Grantor secured by the liens created by this Deed
of Trust, and such advances are conditioned as provided in the Gontract.
3. All amounts disbursed by Lender before completion of the improvements to
protect the security of this Deed of Trust up to the principal amount of the Note will be
treated as disbursements under the Contract. All such amounts will bear interest from the
date of disbursement at the rate stated in the Note, unless collections from Grantor of interest
at that rate would be contrary to applicable law, in which event such amounts will bear
interest at the rate stated in the Note for matured, unpaid amounts and will be payable on
notice from Lender to Grantor requesting payment.
4. From time to time as Lender deems reasonably necessary to protect Lender's
interests, Grantor will, on request of Lender, execute and deliver to Lender, in such form as
Lender directs but subject to the rights of any senior lien holders , assignments of any and all
rights or claims that relate to the construction of improvements on the Property.
5. In case of breach by Grantor of the terms, covenants and conditions of the
Contract, Lender, at its option, subject to applicable notice, grace and cure periods, with or
without entry on the Property, may (a) invoke any of the rights or remedies provided in the
Contract, (b) accelerate the amounts secured by this Deed of Trust and invoke the remedies
provided in this Deed of Trust, or ( c) do both.
F. THIS CONVEYANCE IS MADE AND ACCEPTED SUBJECT TO THE
FOLLOWING CONDITIONS AND RESTRICTIONS:
The Note secured by this Deed of Trust is the Note required in the Contract
between Gran tor and Lender and has been executed and delivered in accordance with
its terms. The funds advanced by Lender are HOME funds and the Contract requires
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Page 11
that the 21 residential rental units located on the Property assisted with HOME funds
(the "HOME Units") must qualify and remain affordable rental housing in accordance
with the HOME Program and the HOME Regulations for the 15 year Affordability
Period more particularly defined in the Contract. The Obligations described in the
Contract evidenced by the Note and secured by this Deed of Trust will be in default if
the HOME Units more particularly described in the Contract do not remain affordable
rental housing for the duration of the Affordability Period.
This Deed of Trust has also been executed and delivered pursuant to the terms
of the Contract. Gran tor agrees to perform each and every obligation set forth therein
and will not permit a default to occur thereunder. Any default in the performance of
Grantor's obligations under the terms of the Contract or the HOME Program or
HOME Regulations shall be deemed a default in the terms of the Note and Lender may
invoke any remedies provided herein for default.
THE CONTRACT, THE NOTE AND THE DEED OF TRUST CONSTITUTE
THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
DEED OF TRUST -HOME FUNDS
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STATE OF TEXAS §
COUNTY OF TARRANT §
AFTER RECORDING RETURN TO:
City of Fort Worth City Attorney's Office
Attention: Vicki S. Ganske
1000 Throckmorton Street
Fort Worth, Texas 76102
DEED OF TRUST -HOME FUNDS
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Page 13
Tract I:
Exhibit "A"
Legal Description
Lots 16-R and 18-R, Block 14, Forty Oaks, an Addition to the City of Fort Worth, Tarrant
County, Texas, according to the map or plat thereofrecorded in Volume 388-46, Page 619,
of the Plat Records of Tarrant County, Texas.
Tract II:
Lots 8, 9 and 10, Block 15, Forty Oaks, an Addition to the City of Fort Worth, Tarrant
County, Texas, according to the map or plat thereofrecorded in Volume 388-1, Page 40, of
the Plat Records of Tarrant County, Texas.
Tract III:
Lot 13, Block 14, Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereofrecorded in Volume 388-1, Page 40, of the Plat Records
of Tarrant County, Texas.
Tract IV:
Lot 15, Block 14, of Forty Oaks, an Addition to the City of Fort Worth, Tarrant County,
Texas, according to the map or plat thereofrecorded in Volume 388-1, Page 40, of the Plat
Records of Tarrant County, Texas.
Tract V:
Lot 14, Block 14, of Forty Oaks, an Addition to the City of Fort Worth, Tarrant County,
Texas, according to the map or plat thereofrecorded in Volume 388-1, Page 40, of the Plat
Records of Tarrant County, Texas.
Tract VI:
Lot 4, Block 15, Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereof recorded in Volume 3 88-1, Page 40, of the Plat Records
of Tarrant County, Texas.
Tract VII:
Lot 3, Block 15, Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereof recorded in Volume 388-1, Page 40, of the Plat Records
of Tarrant County, Texas.
Tract VIII:
Lot 12, Block 14, of Forty Oaks, an Addition to the City of Fort Worth, Tarrant County,
Texas, according to the map or plat thereofrecorded in Volume 388-1, Page 40, of the Plat
Records of Tarrant County, Texas .
DEED OF TRUST-HOME FUNDS
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Page 14
Tract IX:
Lot 1, Block 15, Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereofrecorded In Volume 388-1, Page 40, of the Plat Records
of Tarrant County, Texas.
Tract X:
Lot 2, Block 15, Forty Oaks, an Addition to the City of Fort Worth, Tarrant County, Texas,
according to the map or plat thereof recorded In Volume 388-1, Page 40, of the Plat Records
of Tarrant County, Texas.
DEED OF TRUST -HOME FUNDS
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Exhibit "B"
Permitted Encumbrances
1. All deeds of trust, mortgages and other loan documents securing the Senior Note to
Wells Fargo Bank, N.A.
2. Rights of tenants in possession, as tenants only, under any unrecorded leases or rental
agreements.
3. Restrictions set forth in Volume, 2320, Page 230; Page 196 Deed Records, Tarrant
County, Texas and in Volume 388-1, Page 40 and Volume 388-46. Page 619 Plat
Records, Tarrant County, Texas.
4. All leases, grants, exceptions or reservations of coal, lignite, oil, gas and other
minerals, together with all rights, privileges, and immunities relating thereto,
appearing in the Public Records.
5. The following items as set out on plat recorded in Volume 388-1, Page 40, Plat
Records, Tarrant County, Texas, as shown on surveys dated December 13, 2007,
December 19, 2007, December 20, 2007, January 4, 2008, and January 7, 2008, by
Precise Land Surveying, Inc., Robert T. Paul, Jr., RPLS No. 4984:
1) Twenty five foot building set back line; (Tracts 11-X)
2) Twelve and one-half foot building set back line; (Tracts II, & IX)
3) Ten foot utility and storm sewer easement; (Tract IV)
6. The following items as set out on plat recorded in Volume 388-46, Page 619, Plat
Records, Tarrant County, Texas, as shown on survey dated January 8, 2008, by
Precise Land Surveying, Inc., Robert T. Paul, Jr., RPLS No. 4984:
1) Twenty five foot building set back line; (Tract I)
2) Twelve and one-half foot building set back line; (Lot 18-R, Tract I)
3) Five foot utility and storm sewer easement; (Lot 16-R, Tract I)
4) Ten foot utility easement; (Tract I)
5) Twenty foot by twenty foot triangular public open space easement; (Lot 18-R,
Tract I)
7. Easement( s) for the purpose( s) shown below and rights incidental thereto, as granted
in a document:
Granted to: Texas Electric Service Company
Purpose: 5' right of way
Recording Date: October 13, 1968
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Recording No: in Volume 4631, Page 928, Deed Records , Tarrant County, Texas
Affects : Lot 18-R, Tract I
8. Easement(s) for the purpose(s) shown below and rights incidental thereto, as
granted in a document:
Granted to: Texas Electric Service Company
Purpose: 1 O' right of way
Recording Date: September 14, 1971
Recording No: in Volume 5111, Page 349, Deed Records, Tarrant County, Texas
Affects: Lot 16-R, Tract I
9. A subsurface oil and gas lease for the term therein provided, with certain covenants,
conditions and provisions, together with easements, if any, as set forth therein,
disclosed by document:
Entitled: Oil, Gas and Mineral Lease (No Surface Use)
Dated: September 18, 2007
Lessor: 777 Development Group, LLC
Lessee: Dale Property Services, LLC
Recording Date: October 5, 2007
Recording No: under Clerk's File No. D207356452 , Deed Records, Tarrant County,
Texas
Affects: Tracts 1-111 & Tracts VI-X
10 . A subsurface oil and gas lease for the term therein provided, with certain covenants,
conditions and provisions, together with easements, if any, as set forth therein,
disclosed by document:
Entitled: Oil , Gas and Mineral Lease (No Surface Use)
Dated: September 18, 2007
Lessor: TDHB, Inc.
Lessee: Dale Property Services, LLC
Recording Date: October 18 , 2007 Recording No: under Clerk's File No.
D207373366, Deed Records, Tarrant County, Texas
Affects: Tracts IV & V
DEED OF TRUST -HOME FUNDS Page 17
Tarrant County Housing Partnersh ip, Inc . Rev . 09-13 -11