HomeMy WebLinkAboutContract 61698City Secretary Contract No. 61698
STATE OF TEXAS
COUNTY OF TARRANT
This contract ("Contract") is made and entered into by and between the City of Fort Worth
(hereafter "City" or "Lender") and FW Babers Manor, LP, (hereafter "Developer"), a Texas
limited partnership. Lender and Developer may be referred to individually as a "Party" and jointly
as "the Parties".
The Parties state as follows:
WHEREAS, Lender has received a grant from the United States Department of Housing
and Urban Development through the HOME Investment Partnerships Program, Catalog of Federal
Domestic Assistance No. 14.239, with which Lender desires to promote activities that expand the
supply of affordable housing and the development of partnerships among City, local governments,
local lenders, private industry and neighborhood -based nonprofit housing organizations;
WHEREAS, the primary purpose of the HOME program pursuant to the HOME
Investment Partnerships Act at Title II of the Cranston Gonzales National Affordable Housing Act
of 1990, as amended, 42 U.S.C. 12701 et seq. and the HOME Investment Partnerships Program
Final Rule, as amended, 24 CFR Part 92 et seq., is to benefit low and moderate income individuals
and families by providing them with affordable housing;
WHEREAS, Lender and the Housing Authority of the City of Fort Worth doing business
as Fort Worth Housing Solutions ("FWHS") were co -applicants for a federal Choice
Neighborhood Initiatives ("CNI") grant;
WHEREAS, Lender and FWHS were awarded a $35 million CNI grant in spring of 2020
to be used over six phases of development through 2026;
WHEREAS, as part of the third phase of development, FWHS proposes building an 80-
unit mixed -income affordable family rental housing development to be known as Babers Manor
(the "Project") to be located at 4400 Ramey Avenue ("Property"), as more particularly depicted
in the attached Exhibit "A" — Map and Property Description, made a part of this Contract for
all purposes, and will use a portion of the CNI grant funds among various other funding sources;
WHEREAS, Developer proposes to use HOME funds for the development, construction
and operation of the Project, an eligible project under the HOME Regulations, whereby Developer
will receive the funds from Lender in the form of a non -forgivable loan;
WHEREAS, Developer is a Texas limited partnership consisting of FW Babers Manor GP,
LLC a Texas limited liability company, with Fort Worth Affordability, Inc., ("FWAI") as its sole
member, as General Partner; Babers Manor MBS SLP, Inc., a Texas corporation, as Special
Limited Partner; and a Limited Partner ("Investor");
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
WHEREAS, FWAI is an instrumentality of FWHS and operates as a Texas nonprofit
corporation with a purpose of assisting with the creation, development, and rehabilitation of
affordable, decent, and safe housing in Fort Worth;
WHEREAS, Developer has received an award of 2023 Competitive (9%) Housing Tax
Credits from the Texas Department of Housing and Community Affairs for a portion of the costs
of the development of the Project; and
WHEREAS, City residents and the City Council have determined that the development of
quality, accessible, affordable housing is needed for moderate, low, and very low-income City
residents.
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.
Lender and Developer hereby agree that the recitals set forth above are true and correct and
form the basis upon which the Parties have entered into this Contract.
2. DEFINITIONS.
In addition to terms defined in the body of this Contract, the following terms shall have the
definitions ascribed to them as follows:
Accessible Units means units accessible to handicapped tenants. Developer must comply with
Section 504 requirements and all other applicable Federal accessibility requirements.
The Required Improvements must contain 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.
Act means the HOME Investment Partnerships Act at Title II of the Cranston Gonzales National
Affordable Housing Act of 1990, as amended, 42 U.S.C. 12701 et seq.
Affordable Rent means a rent amount that does not exceed the High HOME Rent Limit published
annually by HUD, with adjustment for the bedroom size of the housing unit as more particularly
described on Exhibit "A" — Project Summary.
Affordability Period means the period of time that HOME Units must be leased to HOME
Eligible Households for Affordable Rent.
The Affordability Period for this Project is 20 years. The Affordability Period begins on
the date that the Project status is changed to "complete" in IDIS.
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Affordability Requirements means the HOME Units remain occupied by HOME Eligible
Households paying Affordable Rent throughout the Affordability Period in accordance with the
terms of this Contract and the HOME Regulations.
Area Median Income or AMI means the median family income for the Fort Worth -Arlington
metropolitan statistical area as set annually by HUD.
Business Diversity Enterprise Ordinance or BDE means the City's Business Diversity
Ordinance, Ordinance No. 24534-11-2020, as may be amended from time to time.
Complete Documentation means the following documentation as applicable:
1. Attachments I and II of Exhibit "F", with supporting documentation as follows:
a. Proof of expense: invoices, leases, service contracts, expenses based on work
completed and costs actually incurred or other documentation showing the nature
of the cost and that payment is due Developer.
b. Proof of payment: cancelled checks, bank statements, or wire transfers necessary
to demonstrate that amounts due by Developer were actually paid by Developer.
2. Other documentation: (i) final lien releases signed by the general contractor or
subcontractors, if applicable; (ii) copies of all City permits and City -issued "pass"
inspections for such work; (iii) documentation to show compliance with BDE or DBE
bidding process for procurement or Contract activities, as applicable; (iv) proof of
contractor, subcontractor and vendor eligibility as described in Section 6.6; and (v) any
other documents or records reasonably necessary to verify costs spent for the Project.
3. Complete Documentation shall meet the standards described in Exhibit "J" — Standards
for Complete Documentation.
Completion means the substantial completion of the Required Improvements as evidenced by a
Neighborhood Services Department Minimal Acceptable Standard Inspection report, HUD
Compliance Inspection Report and any other applicable final inspection approval from Lender
showing that the Required Improvements have met City and HOME standards.
Completion Deadline means January 1, 2027.
Conversion means the earlier of (i) the date the Project's construction financing converts to
permanent financing and begins principal amortization, or (ii) June 31, 2026.
DBE means disadvantaged business enterprise in accordance with 49 CFR Part 26.
Deed of Trust means any deed of trust from Developer to Lender securing a loan or performance
made using Lender's HOME Funds and covering the Project and securing the indebtedness
evidenced therein and Developer's performance of the requirements of the Loan and the HOME
Regulations, as the same may be extended, amended, restated, supplemented or otherwise
modified.
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Deed Restrictions means the recorded deed restriction, covenant running with the land, or
agreement restricting the use of the Property, which imposes the Affordability Requirements
beginning after Project completion as required by 24 CFR Part 92.252(e)(1) which will give
Lender the right to require specific performance, among other enforcement rights. The Parties
agree to the use of the Deed Restriction in substantially the same form attached as Exhibit "L" —
Deed Restriction.
Director means the Director of the City's Neighborhood Services Department or any successor
department thereto.
Effective Date means August 1, 2024.
Ground Lease means the lease agreement for the Property executed between Cavile Public
Facility Corporation as lessor and Developer as lessee, as amended or modified from time to time.
High HOME Unit means a unit that must be leased to High HOME Eligible Tenant for High
HOME Rent. High HOME Units can float among units that are materially similar in number of
bedrooms, square footage, and amenities; however, if the units are not materially similar, then the
High HOME units must be fixed.
The Project contains 0 High 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 whose annual income
adjusted for family size does not exceed 80% of AMI. Tenant income must be verified using the
most current HUD Income Guidelines and Technical Guidance for Determining Income and
Allowances subject to the income verification requirements of Section 7.2.
High HOME Rent means a rent amount that is the lesser of (i) the HUD -established Fair Market
Rent for existing comparable housing units in the area, or (ii) 30% of the adjusted income of a
family whose annual income equals 65% of AMI with adjustment for the bedroom size of the
housing unit. High Home Rent may not exceed the maximum rent limitations set by HUD minus
utility allowances as more particularly described in Section 7.5.4.
HOME means the HOME Investment Partnerships Program.
HOME Eligible Household means a household whose annual income adjusted for family size
does not exceed 80% of AMI using the most current HUD Income Guidelines and Technical
Guidance for Determining Income and Allowances. The definition of annual income to determine
tenant income eligibility shall be the definition at 24 CFR Part 5.609, as amended from time to
time.
HOME Funds means the HOME Program grant funds supplied by Lender to Developer under
the terms of this Contract.
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HOME Regulations means the HOME Investment Partnerships Program Final Rule at 24 CFR
Part 92 et seq.
HOME Unit means a housing unit subject to the HOME Regulations leased to a HOME Eligible
Household at Affordable Rent for the duration of the Affordability Period as further described in
Exhibit "A" — Project Summary. The HOME Units must be designated as Low HOME units.
The HOME Units are floating.
The Project contains 4 Home Units. Of these HOME Units, 1 is a one -bedroom unit, 2 is
a two -bedroom unit, and 1 is a three -bedroom unit.
Housing Tax Credits means the federal housing tax credits allocated by the Texas Department of
Housing and Community Affairs under Section 42(h) of the Internal Revenue Code of 1986, as
amended.
HUD means the United States Department of Housing and Urban Development.
IDIS means Integrated Disbursement Information System, HUD's project tracking system.
Investor means the limited partner of Developer, and any successors and assigns.
Loan means the HOME Funds provided to Developer by Lender for the purpose described in the
Loan Documents.
Loan Documents means security instruments which Developer has executed and delivered to
Lender including without limitation, the Promissory Note, the Deed of trust, or any other similar
security instruments evidencing, securing or guaranteeing Lender's interest and further
evidencing, securing, or guaranteeing Developer's performance of all City and federal
requirements, including the Affordability Requirements during the Affordability Period, as the
same may from time to time be extended, amended, restated, supplemented or otherwise modified.
Low HOME Eligible Tenant means a tenant whose annual income adjusted for family size does
not exceed 50% of AMI set by HUD. Tenant income must be verified using the most current
HUD Income Guidelines and Technical Guidance for Determining Income and Allowances subject
to Section 7.2 of this Contract.
Low HOME Rent means a rent amount that is no more than 30% of the annual income of a family
at 50% of AMI adjusted for family size. Low Home Rent may not exceed the maximum rent
limitations established by HUD minus utility allowances as more particularly described in Section
7.5.4.
Low HOME Unit means a unit that must be leased to Low HOME Eligible Tenant for Low
HOME Rent. Low HOME Units can float among units that are materially similar in number of
bedrooms, square footage, and amenities; however, if the units are not materially similar, then the
Low HOME units must be fixed. If there are more than 5 HOME Units, then 20% of the total
HOME units must be designated as Low.
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The Project contains 4 Low HOME Units. Of these Low HOME Units, 1 is a one -bedroom
unit, 2 is a two -bedroom unit, and 1 are three -bedroom unit.
Neighborhood Services Department means the City's Neighborhood Services Department or
any successor department thereto.
Permanent Supportive Housing Program or PSH Program means the combination of dedicated
PSH Units and the accompanying supportive services provided by the Supportive Services
Provider to the tenants of the PSH Units.
Permanent Supportive Housing Tenant means a tenant of the PSH Units.
Permanent Supportive Housing Unit or PSH Unit means a housing unit for which supportive
services are provided to assist homeless persons with disabilities to live independently. The
Project contains 4 PSH Units.
Plans means the plans and specifications related to the Required Improvements prepared by the
Developer's architect which have been delivered to and then reviewed and approved by Lender on
or before the Effective Date, and any and all amendments thereto approved by Lender.
Project Stabilization means issuance of a final certificate of occupancy for the Project and ninety
percent (90%) of the Project's units leased up by tenants.
Promissory Note means any note in the amount of the HOME Funds executed by Developer
payable to the order of Lender, as the same may be extended, amended, restated, supplemented or
otherwise modified. The Parties agree to the use of a Promissory Note in substantially the same
form attached as Exhibit "E" — Loan Documents.
Property means the land on which the Required Improvements shall be constructed as more
particularly described in and encumbered by the Ground Lease, the Developer Deed of Trust and
the Deed Restrictions.
Required Improvements or the Project means all the improvements for an 80-townhome mixed -
income affordable family rental housing project to be constructed on the Property, together with
all fixtures, tenant improvements and appurtenances now or later to be located on the Property
and/or in such improvements. The Required Improvements are commonly known as the Babers
Manor Apailinents. The current address for the Project is 4400, 4408, 4416, and 4424 Ramey
Avenue, Fort Worth, Texas 76105.
Reimbursement Request means all reports and other documentation described in Section 10
submitted by Developer to Lender.
Section 504 requirements means the requirements of Section 504 of the Rehabilitation Act of
1973 to provide accessible housing to persons with disabilities. Section 504 requires that 5% of
the units (but not less than 1 unit) in a newly constructed multifamily project must be accessible
to individuals with mobility impairments, and an additional 2% of the units (but not less than 1
unit) must be accessible to individuals with sensory impairments.
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Special Limited Partner means Babers Manor MBS SLP, Inc., and any Person who becomes a
Substitute Special Limited Partner as provided herein, in each such Person's capacity as special
limited partner.
Subordination Agreement means the Subordination Agreement among Developer' s construction
and permanent financing lenders, Lender, and Developer outlining the relative priorities of the
construction and permanent loans and Lender's Loan for the Project.
TDHCA means the Texas Department of Housing and Community Affairs.
Tenant Documentation means any documentation allowed under the definition of annual income
in 24 CFR Part 5.609 sufficient to show that a tenant is a HOME Eligible Household.
Documentation may include but is not limited to copies of paychecks, Social Security and
disability verification letters, interest or rental income statements, retirement income statements,
child support and alimony verification, unemployment benefit letters, and the like for initial tenant
income eligibility verifications, and the tenant income verification required every 6th year of the
Affordability Period. Documentation for tenant income eligibility verifications for other than the
initial lease and the 6th year of the Affordability Period shall be a Lender -approved income self -
certification form.
3. TERM AND EXTENSION.
3.1 Term of Contract.
The term of this Contract commences on the Effective Date and ends 40 years after Project
Stabilization occurs, unless earlier terminated as provided in this Contract. All provisions relating
to completion of the Required Improvements terminate in 3 years unless earlier terminated as
provided in this Contract or extended as provided in Section 3.2. All provisions relating to the
HOME Program, the HOME Regulations and the HOME Units shall remain in full force and effect
until the end of the Affordability Period.
3.2 Extension of Contract.
This provisions in this Contract relating to completion of the Required Improvements may
be extended for 2 one-year extensions upon Developer submitting a request for an extension in
writing at least 60 days prior to the end of the initial 3 year period described in Section 3.1, or the
end of the first one-year extension. The first one-year extension request shall be granted upon the
written request of Developer. The second one-year extension request shall include the reasons for
the extension, Developer's anticipated budget, construction schedule and goals for the additional
time. It is specifically understood that it is within Lender's reasonable discretion whether to
approve or deny Developer's request for a second one-year extension to complete the Required
Improvements. Any such extension shall be in the form of an amendment to this Contract. It shall
be an event of default under this contract if the Required Improvements are not completed within
the time period required herein, including any extensions.
3.3 Term of Loan.
The term of the Loan shall commence on the date of the Promissory Note and ends 40 years
after Project Stabilization, so long as the terms and conditions of this Contract and the Loan
Documents have been met.
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4. DUTIES AND RESPONSIBILITIES OF CITY.
4.1 Provide HOME Funds.
Lender shall provide up to $1,000,000.00 of HOME Funds to Developer in the form of a
non -forgivable Loan to fund part of the construction of the Required Improvements, under the
terms and conditions of this Contract and the Loan Documents.
4.2 Lender Will Monitor.
Lender will monitor the activities and performance of Developer and any of its contractors,
subcontractors or vendors throughout the Affordability Period, but no less than annually as
required by 24 CFR Part 92.504.
5. DUTIES AND RESPONSIBILITIES OF DEVELOPER.
5.1 Construction of Required Improvements.
Developer shall complete the construction of the Required Improvements as described in
Exhibit "A" — Project Summary in accordance with the Plans, the schedule set forth in Exhibit
"C" - Construction and Reimbursement Schedule, and the terms and conditions of this
Contract.
5.1.1 Written Cost Estimates, Construction Contracts and Construction
Documents.
Developer shall submit any written cost estimates, construction contracts and construction
documents (collectively, the "Construction Documents") to Lender to show the work to be
undertaken for the Required Improvements in sufficient detail that Lender can perform all required
inspections in accordance with 24 CFR Part 92.251 (a)(2)(iv). Lender shall review and approve
written cost estimates for the construction of the Required Improvements to determine that such
costs are reasonable prior to the commencement of construction. In the event Lender in its
reasonable discretion determines that such costs are unreasonable, Developer shall revise said costs
estimates to Lender's satisfaction.
5.2 Use of HOME Funds.
5.2.1 Costs in Compliance with HOME Regulations and Contract.
Developer shall be reimbursed for eligible Project costs with HOME Funds only if Lender
determines in its sole discretion that:
5.2.1.1 Costs are eligible expenditures in accordance with the HOME
Regulations.
5.2.1.2 Costs comply with the requirements of the HOME program and as
otherwise listed in this Contract and are reasonable and consistent with
industry norms.
5.2.1.3 Complete Documentation, as applicable, is submitted by Developer.
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5.2.2 Budget.
Developer agrees that the HOME Funds will be paid on a reimbursement basis in
accordance with Exhibit "B" - Budget and Exhibit "C" - Construction and Reimbursement
Schedule. Developer may increase or decrease line item amounts in the HOME Funds Budget
with the Director's prior written approval, which approval shall be in the Director's sole discretion.
Any such increase or decrease in line items in the Budget shall comply with Section 5.2.1, Exhibit
"A — Project Summary, and shall not increase the total amount of HOME Funds.
5.2.3 Change in Budget.
5.2.3.1 Developer will notify Lender promptly of any additional funds it
receives for construction of the Project, and Lender reserves the right to
amend this Contract in such instances to ensure compliance with HUD
regulations governing cost allocation and subsidy layering.
5.2.3.2 Developer agrees to utilize the HOME Funds to supplement rather than
supplant funds otherwise available for the Project.
5.3 Payment of HOME Funds to Developer.
HOME Funds will be disbursed to Developerwithin ten (10) days of Lender's approval of
Developer's Reimbursement Requests, including submission of Complete Documentation to
Lender in compliance with Section 10. Developer must provide complete documentation to
support the reimbursement request. As more particularly described in the HOME Funds Budget
and in Exhibit "C" - Construction and Reimbursement Schedule, Lender will hold back
$50,000.00 of the HOME Funds until Lender verifies that all HOME Units have been leased to
HOME Eligible Households. It is expressly agreed by the Parties that any HOME Funds not
reimbursed to Developer shall remain with Lender.
5.4 Identify Project Expenses Paid with HOME Funds.
Developer agrees to keep accounts and records in such a manner that Lender may readily
identify and account for Project expenses reimbursed with HOME Funds. These records shall be
made available to Lender for audit purposes and shall be retained as required hereunder.
5.5 Acknowledgement of Lender Payment of HOME Funds.
Within 90 days of Completion, Developer shall sign an acknowledgement that Lender has
paid all HOME Funds due under this Contract, or shall deliver a document executed by an officer
of Developer identifying all or any portion of the HOME Funds that Lender has not been paid to
Developer. Once Lender has met all of its obligations for payment of HOME Funds hereunder,
an officer of Developer shall sign an acknowledgement of same.
5.6. Security for Lender's Interest and Developer's Performance.
To secure Lender's interest in the Required Improvements and Lender's interest in
preserving the affordability of the HOME Units, in accordance with the requirements of the HOME
Regulations , Developer shall execute the Deed Restriction and Deed of Trust, which must be
recorded in lien priority agreed to by Lender at the earlier of (i) the acquisition of the Property, or
(ii) the closing of Developer's construction loan. No HOME Funds will be paid or reimbursed
until the Deed of Trust and the Deed Restriction are recorded.
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5.6.1 Loan Terms and Conditions.
5.6.1.1 Developer will be required to:
5.6.1.1.1 Execute and deliver the Deed Restriction, the Promissory Note and Deed
of Trust along with any other Loan Documents required by Lender.
5.6.1.1.2 Provide Lender with a Mortgagee's Policy of title insurance in the
amount of the Loan.
5.6.1.1.3 Pay all costs associated with closing the Loan.
5.6.1.1.4 Provide Lender with an estimated settlement statement from the title
company at least 3 Business Days before closing.
5.6.1.1.5 Ensure Lender's lien is subordinate only to the permitted exceptions
shown on the Mortgagee's Policy of title insurance. Lender must
approve in writing any secured financing for the Project that is to be
subordinate to the Loan. Lender hereby approves the following loans
to the Developer that are subordinate to the Loan: The $150,000 UDAG
loan from FWAI to Developer, the $440,000 land loan from Cavile
Public Facility Corporation to the Developer, and the $3,150,000 CNI
loan to Developer.
5.6.1.1.6 INTENTIONALLY OMITTED.
5.6.1.1.7 Make all required payments on The Loan. The Loan is a deferred
payment loan and shall bear 0% simple interest on an annual basis. All
unpaid amounts are due at Maturity. After the Maturity Date, Borrower
promises to pay any unpaid principal balance plus 12% interest.
Payment shall be made to the order of Lender and delivered to
Neighborhood Services Department, or any successor depaitiiient
thereto, at the address listed in the notice section of this Contract ("Place
for Payment").
5.6.1.2 Developer acknowledges that:
5.6.1.2.1 Early repayment of the Loan shall not relieve Developer of its
obligations under this Contract or the HOME Regulations including but
not limited to the Affordability Requirements and other HOME
requirements. The Deed of Trust shall secure both repayment of the
HOME Funds and performance by Developer of its obligations under
this Contract during the Affordability Period and through the end of the
Loan Term. This Contract and the Promissory Note shall secure
repayment of the HOME Funds and performance by Developer of all
obligations under this Contract during the term of the Loan.
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5.6.1.2.2 Except for permanent loan conversion with Developer's permanent
lender, any future refinancing by Developer or any new or subordinate
financing shall require the review and prior written approval of Lender
for the purpose of ensuring compliance with the underwriting and
subsidy layering requirements of the HOME Regulations, which
approval shall not be unreasonably withheld, conditioned or delayed.
Such approval will be based on Lender's review of the then -current
financial information, underwriting and subsidy layering requirements,
and may require renegotiation of the Loan terms to comply with the
HOME Regulations. Renegotiation of the Loan term may include
modification of the maturity date (if permitted by any senior lender),
payment amount adjustment, or any other modification necessary to
comply with the HOME Regulations. A refinance of the Senior Loan
or any subsequent refinance shall not automatically cause repayment of
the Loan. Notwithstanding the foregoing, refinancing by Developer of
the Senior Indebtedness will not require prior written approval of
Lender so long as such refinancing would not increase the principal
amount of the Senior Indebtedness beyond the original principal amount
of the Senior Indebtedness (excluding any amounts having been
advanced by Senior Lender for the protection of its security interest
pursuant to the Senior Loan Documents), increase the interest rate of the
Senior Indebtedness, or decrease the original maturity term of the Senior
Indebtedness; provided however that Lender must review and approve
any loan documents, including subordination agreements, approval of
which shall not be unreasonably withheld or delayed, and nothing herein
shall limit Lender' s rights to modify the Loan as allowed herein.
5.6.1.2.3 Failure by Developer to comply with this Section 5.6.1 will be an
event of default under this Contract and the Loan Documents.
5.7 Maintain Affordability Requirements.
The HOME Units must be occupied by HOME Eligible Households throughout the
Affordability Period as required by the HOME Regulations. Developer must notify Lender in
writing within 30 days of either of the following occurrences: (i) a HOME Unit is occupied by a
tenant who is not a HOME Eligible Household, or (ii) a HOME Unit remains vacant for more than
90 days. In the event that a HOME Unit is occupied by a tenant who is not a HOME Eligible
Household, Developer shall have 45 days to determine if another tenant qualifies as a HOME
Eligible Household or fill an empty unit with a HOME Eligible Household. If either (i) or (ii)
takes place and is not cured within the time limits described in this Section, then Developer
shall pay to Lender 10% of the Loan amount as liquidated damages within thirty days after
notice is provided by Lender to Developer. The Parties agree that Lender's actual damages
in the event of either (i) or (ii) happening and remaining uncured are uncertain and would
be difficult to ascertain and may include a finding by HUD, a repayment of funds to HUD by
Lender or otherwise impact Lender's HOME grant or other federal grant funds. Therefore,
the Parties agree that payment under this Section of 10% of the Loan amount by Developer
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to Lender is liquidated damages and not a penalty. Failure by Developer to make payment
under this section shall be an event of default under this Contract.
5.8 Deed Restriction.
Developer shall execute and deliver the Deed Restriction, which shall secure the
Affordability Requirements for the Affordability Period, as required by HUD Regulations. Early
repayment of the Loan shall not relieve Developer of the obligations under the Deed Restriction,
this Contract, or the HOME Regulations including but not limited to the Affordability
Requirements and other HOME requirements.
5.9 Affordability Requirements Survive Transfer.
The HOME Units must remain affordable without regard to the term of any mortgage or
transfer of ownership, pursuant to the terms of the Loan Documents, the Deed Restriction, or any
other mechanism provided by HUD. Developer agrees that any sale or transfer of the Project
during the Loan Term, excluding a transfer due to condemnation or to obtain utility services, may
at Lender's sole discretion require the repayment of the HOME Funds unless the new owner or
transferee affirmatively assumes in writing the obligations established hereunder for the HOME
Units for whatever time remains of the Affordability Period, subject to Lender's consent in its sole
discretion, which shall not be unreasonably withheld or delayed. Failure of the new owner or
transferee to promptly assume all of Developer's obligations under this Contract, the Loan
Documents, and/or the Deed Restriction will result in immediate termination of this Contract and
any HOME Funds already paid to Developer must be repaid to Lender within 30 days of such
termination. In addition, Lender may pursue any of its remedies under the Loan Documents or the
Deed Restriction if the new owner or transferee fails to assume Developer's obligations to maintain
the Affordability Requirements throughout the Affordability Period or any other obligation
hereunder throughout the Loan Term.
6. CONSTRUCTION.
6.1. Construction Schedule.
Developer shall construct the Required Improvements in accordance with the schedule set
forth in the attached Exhibit "C" — Construction and Reimbursement Schedule. Developer
shall not begin construction until Lender sends a Notice to Proceed. Developer's failure to meet
the Construction Schedule (as it may be modified in accordance with Section 14.19) or the
Completion Deadline shall be an event of default under this Contract and the Loan Documents.
Subject to Section 14.19, Developer may not change the Construction Schedule without the
Director's prior written approval, which approval shall be in the Director's reasonable discretion.
6.1.1 Construction Inspections.
Lender will conduct progress and final inspections of construction of the Project to ensure
that the work is done in accordance with the applicable building codes and the Construction
Documents. The construction of the Project must pass a Neighborhood Services Department
Minimal Acceptable Standard Inspection report, a HUD Compliance Inspection Report and any
other applicable HUD -required inspections during the construction period, along with any
applicable final inspection approval from the City building inspectors at the completion of the
construction of the Project.
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6.2 Applicable Laws, Building Codes and Ordinances.
Developer shall require that the Plans and construction for the Required Improvements (i)
conform to all applicable Federal, state, City and other local laws, ordinances, codes, rules and
regulations, including the HOME Regulations; (ii) meet all City building codes; (iii) meet the
Energy Conservation requirements as required by the State of Texas in Chapter 11 of the
International Residential Code; (iv) if new construction, must conform to the Model Energy Code
published by the Council of American Building Officials; and (v) must pass a HUD Compliance
Inspection Report and inspection by City's Neighborhood Services Department inspectors.
6.3 Property Standards During Construction.
Developer shall comply with the following as applicable during the construction of the
Required Improvements: (i) the Property Standards in 24 CFR Part 92.251(a), (ii) accessibility
standards under 24 CFR Part 92.251(a)(2)(i), (iii) any City property standards, and (iv) all other
applicable accessibility standards for the Project.
6.4 Lead -Based Paint Requirements.
Developer shall comply with any applicable Federal lead -based paint requirements
including lead screening in buildings built prior to 1978 in accordance with 24 CFR Part 92.355
and 24 CFR Part 35, subparts A, B, J, K, M, and R, and the Lead: Renovation, Repair and Painting
Program Final Rule, 40 CFR Part 745, in the construction and/or rehabilitation of the Required
Improvements.
6.5 Approval of Plans and Specifications by Lender Not Release of Responsibility.
Approval of the Plans by Lender shall not constitute or be deemed (i) to be a release of the
responsibility or liability of Developer or any of its contractors or subcontractors, or their
respective officers, agents, employees and lower tier subcontractors, for the accuracy or the
competency of the Plans or the Construction Documents, including, but not limited to, any related
investigations, surveys, designs, working drawings and specifications or other documents; or (ii)
an assumption of any responsibility or liability by Lender for any negligent act, error or omission
in the conduct or preparation of any investigation, surveys, designs, working drawings and
specifications or other documents by Developer or any of its architects, contractors or
subcontractors, and their respective officers, agents, employees and lower tier subcontractors.
6.6 Contractor, Subcontractor and Vendor Requirements.
Developer shall use commercially reasonable efforts to ensure that all contractors or
vendors utilized by Developer or subcontractors utilized by Developer' s general contractor are
appropriately licensed and such licenses are maintained throughout the construction of the
Required Improvements and the operation of the Project when applicable. Developer shall ensure
that all contractors utilized by Developer, subcontractors utilized by Developer's general
contractor in the construction of the Required Improvements, or vendors utilized by Developer in
the operation of the Project are not debarred or suspended from performing the contractor's,
subcontractor's or vendor's work by Lender, the State of Texas, or the Federal government. For
purposes of this Contract, the term "vendors" does not include suppliers or materialmen.
Developer acknowledges that 2 CFR Part 200 forbids Developer from hiring or continuing
to employ any contractor, subcontractor or vendor that is listed on the Federal Excluded
Parties List System for Award Management, www.sam.gov ("SAM"). Failure to submit or
require such proofs of search shall be an event of default. In the event that Lender determines
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that any contractor, subcontractor or vendor has been debarred, suspended, or is not properly
licensed, Developer or Developer's general contractor shall immediately cause such contractor,
subcontractor or vendor to immediately stop work on the Project and Developer shall not be
reimbursed for any work performed by such contractor, subcontractor or vendor. However, this
Section should not be construed to be an assumption of any responsibility or liability by Lender
for the determination of the legitimacy, quality, ability, or good standing of any contractor,
subcontractor or vendor. Developer acknowledges that the provisions of this Section
pertaining to the SAM shall survive the termination of this Contract and be applicable for
the length of the Affordability Period.
6.7 Furnish Complete Set of "As Built" Plans.
Developer shall furnish Lender a complete set of "as built" or marked -up plans for the
Project at completion of construction after all final approvals have been obtained.
6.8 Broadband Infrastructure Requirements.
In compliance with the requirements of 24 CFR Part 5.100, Developer shall provide for the
installation of broadband infrastructure, to include cables, fiber optics, wiring, or other permanent
infrastructure, including wireless infrastructure, that is capable of providing access to Internet
connections in individual housing units, and that meets the definition of "advanced
telecommunications capability" determined by the Federal Communications Commission under
Section 706 of the Telecommunications Act of 1996 (47 U.S.C. 1302).
7. TENANT AND LEASE REQUIRMENTS; PROPERTY STANDARDS DURING
AFFORDABILITY PERIOD.
7.1 Income Eligibility.
Developer (1) must use the definition of annual income used by 24 CFR 5.609 to establish
tenant income eligibility, (2) shall use the most current HUD Income Guidelines, and (3) shall
maintain Tenant Documentation sufficient to show that the HOME Units are occupied by HOME
Eligible Households. This Section shall survive the earlier termination or expiration of this
Contract and be applicable for the length of the Affordability Period.
7.2 Income Verification.
Developer shall comply with the following:
7.2.1 Developer must verify that all tenants of HOME Units are HOME Eligible
Households with full Tenant Documentation at the time the initial lease for a HOME Unit is
executed. Tenants must certify the number of people in tenant's household along with such
person's names and ages. Developer shall obtain financial information on all members of a
tenant's household.
7.2.2 Developer must verify the income of the tenants of the HOME Units annually after
the initial lease is executed, but may use a Lender -approved tenant self -certification form as Tenant
Documentation. Notwithstanding the foregoing, Developer must verify the income eligibility
of all HOME Eligible Households with full Tenant Documentation every 6th year of the
Affordability Period.
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7.2.3 Developer must maintain copies of Tenant Documentation as required under this
Contract.
7.2.4 Lender will review Tenant Documentation during the Affordability Period as part
of its monitoring.
7.3 Tenant Lease.
7.3.1 Developer shall submit to Lender the form of its tenant lease prior to leasing any
HOME Unit. Such lease shall comply with the provisions of 24 CFR Part 92.253 regarding the
following issues:
7.3.1.1 Length of lease term shall not exceed 2 years and may not be shorter
than 1 year for the initial lease term. If the lease is renewed, tenant and
landlord may agree to a longer or shorter term.
7.3.1.2 Lease may not include agreement by tenant to allow landlord to take,
hold or sell tenant's personal property without notice and a court
decision on the rights of the parties.
7.3.1.3 Lease may not include agreement by the tenant to excuse owner or
owner's agents from responsibility for any action or failure to act,
whether intentional or negligent acts.
7.3.1.4 Lease may not authorize landlord to institute a lawsuit without notice to
the tenant.
7.3.1.5 Lease may not include agreement by tenant to waive a jury trial or right
of appeal.
7.3.1.6 Lease may not include an agreement by tenant to pay legal costs of court
proceeding even if the tenant prevails in those proceedings regardless of
outcome.
7.3.1.7 Lease may not include an agreement by the tenant to be sued, to admit
guilt or to a judgment in favor of the owner in a lawsuit brought in
connection with the lease.
7.3.1.8 Lease may not include an agreement by the tenant that the owner may
evict the tenant or household members without instituting civil court
proceedings in which the tenant has the opportunity to present a defense,
or before a court decision on the rights of the parties.
7.3.1.9 Lease may not include an agreement by the tenant to waive the tenant's
right to appeal or otherwise challenge in court a court decision in
connection with the lease.
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7.3.1.10 Lease may not include an agreement by the tenant to accept supportive
services that are offered.
7.3.2 Termination of Tenancy of HOME Units.
Developer shall not terminate the tenancy of a HOME Eligible Household in a HOME Unit
except for serious or repeated violation of the terms and conditions of the lease; for violation of
applicable federal, state or local laws; or for other good cause. Good cause does not include an
increase in the income of the HOME Eligible Household. To terminate or refuse to renew the
tenancy, Developer must serve written notice upon the tenant specifying the grounds for the action
at least 30 days before the termination of tenancy.
7.3.3 Revised Lease Forms.
Developer shall provide Lender copies of revised lease forms within 30 days of any change
to its lease form. All changes to Developer's lease form shall comply with the requirement of
Section 7.3.1.
7.4 Tenant Household Characteristics.
7.4.1 Developer shall provide Lender with the information about the household
characteristics of the first tenant renting a HOME Unit on Exhibit "G" — Project Compliance
Report: Rental Housing.
7.4.2 At Lender's request, Developer shall provide demographic information on all
tenants in the Project in order to show compliance with Section 7.7 during the Affordability Period.
7.5 Tenant Rent.
7.5.1 Rents charged to tenants of the HOME Units are subject to 24 CFR 92.252 (a) and
(b) and are subject to review and approval by Lender at initial lease up and prior to any rent
increases. Under no circumstances may the maximum rent charged to tenants of HOME Units
exceed the High Home Rent minus utility allowances (excluding telephone). Developer agrees to
abide by and does abide by the HUD -approved schedules of HOME rent levels.
7.5.2 Lender shall provide Developer with information on updated HOME rent limits so
that rents may be adjusted (not to exceed the maximum HOME rent limits). Developer shall
provide Lender annually with information on rents and occupancy of the HOME Units to
demonstrate compliance with 24 CFR Part 92.252 (a) and (b). Lender shall review the rents for
compliance and approve or disapprove them every year.
7.5.3 Any increase in rents for the HOME Units is subject to the provisions of any
outstanding leases for said units. Developer shall provide tenants of the HOME Units with not
less than 30 days prior written notice before implementing any increase in rents.
7.5.4 Lender shall adopt utility allowances in accordance with HOME Regulations and
HUD guidance. Such allowances shall be updated regularly, and shall be furnished to Developer.
Developer shall adjust tenant rents accordingly in compliance with HOME Regulations.
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7.6 Tenant Selection.
Within 120 days prior to commencement of initial lease up, Developer must submit to
Lender for Lender's approval Developer's tenant selection policy and criteria that address the
following:
7.6.1 The tenant selection policy must be consistent with the purpose of providing
housing for very low and low income persons.
7.6.2 The tenant selection policy must provide for:
7.6.2.1 Selection of tenants from a written waiting list in the chronological order
of their application, insofar as is practicable;
7.6.2.2 Prompt written notification to any rejected applicant of the grounds for
such rejection; and
7.6.2.3 Bi-lingual leasing and management assistance.
7.6.3 Holders of rental assistance subsidies (such as HUD's Housing Choice Voucher or
similar subsidy) must not be excluded from renting a unit in the Project.
7.6.4 The tenant selection policy must address non-discrimination and affirmative
marketing as discussed in Section 7.7.
7.6.5 Developer shall market Accessible Units in the following order:
7.6.5.1 Within the Project to persons requiring an accessible unit.
7.6.5.2 To persons on the waiting list requiring an accessible unit.
7.6.5.3 To the general community for persons requiring accessible unit.
7.6.5.4 To persons that do not require an accessible unit.
7.6.6 The tenant selection policy must (i) address the lease requirements described in
Section 7.3, (ii) address managing HOME Unit requirements, and (iii) must comply with state and
local tenant/landlord laws.
7.7 Affirmative Marketing.
Developer must adopt and implement affirmative marketing procedures as required by 24
CFR 92.351 if the Project involves the construction of 5 or more HOME Units. The procedures
and requirements must include methods for informing the public, owners and potential tenants
about fair housing laws and policies so as to ensure that all individuals are given an equal
opportunity to participate in the Project without regard to sex, age, race, color, creed, nationality,
national origin, religion, handicap status, disability, familial status, sexual orientation, gender
identity, gender expression or transgender. The procedures shall include methods to be used by
Developer to inform and solicit applications for tenancy from persons in the housing market area
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who are not likely to apply for the housing without special outreach (e.g., through the use of
community organizations, places of worship, employment centers, fair housing groups, or housing
counseling agencies.) The procedures and requirements must designate an individual who will be
responsible for marketing the Project and must establish a clear application screening plan.
Developer's affirmative marketing procedures must be submitted to Lender for approval prior to
implementation; provided however, Lender shall have no responsibility for affirmative marketing
of the Project.
7.7.1 Developer shall keep records describing actions taken to affirmatively
market the HOME Units and the Project sufficient to enable Lender to assess the
results of the affirmative marketing.
7.8 Property Inspections During Initial Lease -Up of HOME Units; Annual
Inspections of HOME Units.
Lender shall inspect units in the Project before they are placed into service. Lender shall
inspect the HOME Units prior to a HOME Eligible Household occupying such unit to ensure that
each HOME Unit meets the appropriate HOME standards. Thereafter, Lender will inspect the
HOME Units annually. Developer shall comply with inspection requirements.
7.9 Project Maintenance and Inspections During Affordability Period.
Developer shall ensure that the Project is maintained in accordance with all applicable
HUD property standards for the duration of the Affordability Period, which at a minimum shall be
those property standards required in 24 CFR Part 92. Lender will verify maintenance of the Project
to these standards through on -site inspections every year.
7.10 Violence Against Women Act Requirements.
7.10.1 As Applicable, Developer agrees to comply with the Violence Against Women Act
("VAWA") and shall ensure that its property manager shall, at the time of application for a unit
in the Project, provide all potential tenants receiving rental assistance with a Notice of
Occupancy Rights under the Violence Against Women Act in substantially the same form as the
form attached and incorporated as Exhibit "N" — VAWA Forms in compliance with VAWA
and 24 CFR Part92.359 of the HOME Regulations.
7.10.2 Developer agrees that no applicant for a unit in the Project may be denied on
the basis or as a direct result of the fact that they are or have been a victim of domestic violence,
dating violence, sexual assault, or stalking, as long as they would otherwise qualify for the unit.
7.10.3 Developer agrees to be responsible for reviewing VAWA and any applicable
regulations and shall respond to all emergency transfer requests in accordance with the
requirements of those provisions. Developer may request that all tenants requesting an emergency
transfer under VAWA fill out the form attached and incorporated in Exhibit "N" — VAWA
Forms or its own form that is substantially the same.
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8. ADDITIONAL HOME REQUIREMENTS.
8.1 Environmental Review.
HOME Funds will not be paid and costs cannot be incurred until Lender has conducted and
completed an environmental review and completed an Environmental Review Record as required
by 24 CFR Part 58. The environmental review may result in a decision to proceed with, modify,
or cancel the Project. Further, Developer will not undertake or commit any funds to physical or
choice limiting actions, including if applicable, property acquisition, demolition, movement,
rehabilitation, conversion, repair or construction prior to the environmental clearance. Any
violation of this Section will (i) cause this Contract to terminate immediately; (ii) Developer
shall repay to Lender any HOME Funds received and forfeit any future payments of HOME
Funds within thirty days of receiving notice from Lender; and (iii) Developer shall pay 10%
of the Loan to Lender as liquidated damages within thirty days after notice from Lender.
The Parties agree that Lender's actual damages in the event of Developer violating this
Section are uncertain and would be difficult to ascertain and may include a finding by HUD,
a repayment of funds to HUD by Lender or otherwise impact Lender's HOME grant or other
Federal grant funds. Therefore, the Parties agree that payment of 10% of the Loan amount
by Developer to Lender under this Section is liquidated damages and not a penalty.
8.1.1 Mitigation.
Developer agrees to take the mitigation actions outlined in Exhibit "A-2" —
Environmental Mitigation Actions. Failure to complete the required
mitigation action is an event of default under this Contract.
8.2 Contract Not Constituting Commitment of Funds.
Notwithstanding any provision of this Contract, the Parties agree and acknowledge that
this Contract does not constitute a commitment of HOME Funds, and that such commitment or
approval may occur only upon satisfactory completion of environmental review and receipt by
Lender of an authorization to use grant funds from HUD under 24 CFR Part 58.
8.3. Monitoring.
8.3.1 Developer understands and agrees that it will be subject to monitoring by Lender
for compliance with the HOME Regulations, the terms of this Contract, and the Loan Documents,
during the Affordability Period. Developer shall provide reports and access to Project files as
requested by Lender during the Affordability Period and for 5 years after it ends.
8.3.2 Representatives of Lender, HUD, HUD Office of the Inspector General, and the
United States Comptroller General shall have access during regular business hours, upon at least
48 hours prior notice, to Developer's offices and records and to Developer's officers and agents
that are related to the use of the HOME Funds and the requirements of the HOME Regulations
during the Affordability Period, and to Developer's officers, agents, employees, contractors,
subcontractors and vendors for the purpose of such monitoring
8.3.3 In addition to other provisions of this Contract regarding frequency of monitoring,
Lender reserves the right to perform desk reviews or on -site monitoring of Developer's compliance
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with the terms and conditions of this Contract and the Loan Documents. After each monitoring
visit, Lender shall provide Developer with a written report of the monitor's findings. If the
monitoring report notes deficiencies in Developer's performance, the report shall include
requirements for the timely correction of said deficiencies by Developer. Failure by Developer to
take the action specified in the monitoring report may be cause for suspension or termination of
this Contract as provided herein, or Lender may take all actions allowed in the Contract and the
Loan Documents.
8.3.4 Developer agrees to annually provide to Lender the results of any state or federal
monitoring related to the Project including any monitoring by TDHCA. Such results shall be
submitted annually to Lender with the submission of its annual audit and financial statements.
8.3.5 This Section 8.3 shall be applicable for the duration of the Affordability Period
and shall survive the earlier termination or expiration of this Contract.
8.4 Compliance with the Uniform Relocation Act.
If applicable, Developer shall comply with the relocation requirements of 24 CFR Part
92.353 and all other applicable federal and state laws and City ordinances and requirements
pertaining to relocation.
8.5 Compliance with Davis -Bacon Act.
If applicable, Developer and its general contractor and all lower tier subcontractors shall
comply with the Davis -Bacon Act as described in Section 14.14 and Exhibit "H" — Federal
Labor Standards Provisions - Davis -Bacon Requirements.
8.6 Developer Procurement Standards.
Developer shall ensure that procurement of materials and services is done in a cost effective
manner, that Developer complies with all applicable federal, state and local laws, regulations, and
ordinances for making procurements under this Contract or the Developer Loan Agreement, and
that Developer establishes written procurement procedures to ensure that materials and services
are obtained in a cost-effective manner.
8.7 Cost Principles/Cost Reasonableness.
The eligibility of costs incurred for performance rendered shall be determined in
accordance 2 CFR Part 200.402 through 2 CFR Part 200.405, as applicable, regarding cost
reasonableness and allocability.
8.8 Financial Management Standards.
Developer shall adhere to the accounting principles and procedures required in 2 CFR Part
200, as applicable, utilize adequate internal controls, and maintain necessary supporting and back-
up documentation for all costs incurred in accordance with 2 CFR Part 200.302 and Part 200.303.
8.9 Uniform Administrative Requirements.
Developer shall comply with the Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards in 2 CFR Part 200, as applicable, or any reasonably
equivalent procedures and requirements that Lender may require.
8.10 Compliance with FFATA and Whistleblower Protections.
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Developer shall provide Lender with all necessary information for Lender to comply with
the requirements of 2 CFR 300(b), including provisions of the Federal Funding Accountability and
Transparency Act ("FFATA") governing requirements on executive compensation and provisions
governing whistleblower protections contained in 10 U.S.C. 2409, 41 U.S.C. 4712, 10 U.S.C.
2324, 41 U.S.C. 4304 and 41 U.S.C. 4310.
8.10.1 Developer shall provide Lender its DUNS number prior to the payment of any
Reimbursement Requests.
8.11 Internal Controls.
In compliance with the requirements of 2 CFR 200.303, Developer shall:
8.11.1 Establish and maintain effective internal control over the HOME Funds that
provides reasonable assurance that Developer is managing the HOME Funds in compliance with
federal statutes, regulations, and the terms and conditions of this Contract. These internal controls
shall be in compliance with guidance in "Standards for Internal Control in the Federal
Government" issued by the Comptroller General of the United States or the "Internal Control
Integrated Framework" issued by the Committee of Sponsoring Organizations of the Treadway
Commission ("COSO");
8.11.2 Comply with federal statutes, regulations, and the terms and conditions of this
Contract;
8.11.3 Comply with statutes, regulations and the terms and conditions of this Contract and
the Loan Documents;
8.11.4 Take prompt action when instances of noncompliance are identified including
noncompliance identified in audit findings; and
8.11.5 Take reasonable measures to safeguard protected personally identifiable
information and other information that HUD or Lender designates as sensitive or Developer
considers sensitive consistent with applicable federal, state, local and tribal laws regarding privacy
and obligations of confidentiality.
8.12 Copyright and Patent Rights.
No reports, maps, or other documents produced in whole or in part under this Contract shall
be the subject of an application for copyright by or on behalf of Developer. HUD and Lender shall
possess all rights to invention or discovery, as well as rights in data which may arise as a result of
Developer's performance under this Contract.
8.13 Terms Applicable to Contractors, Subcontractors and Vendors.
All terms of this Contract, whether regulatory or otherwise, shall apply to any and all
contractors, subcontractors and vendors of Developer which are in any way paid with HOME
Funds or who perform any work in connection with the Project. Developer shall cause all
applicable provisions of this Contract to be included in and made a part of any contract or
subcontract executed in the performance of its obligations hereunder, including its obligations
regarding the Affordability Requirements and the HOME Regulations during the Affordability
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Period. Developer shall monitor the services and work performed by its contractors,
subcontractors and vendors on a regular basis for compliance with the Affordability Requirements,
the HOME Regulations and Contract provisions. Developer understands and agrees it is
responsible and obligated to cure all violations of the HOME Regulations committed by its
contractors, subcontractors or vendors. Lender maintains the right to insist on Developer's full
compliance with the terms of this Contract and the HOME Regulations and Developer shall be
responsible for such compliance regardless of whether actions to fulfill the requirements of this
Contract or the HOME Regulations are taken by Developer or by Developer's contractors,
subcontractors or vendors. Developer acknowledges that the provisions of this Section shall
survive the earlier termination or expiration of this Contract and be applicable for the length
of the Affordability Period and for 5 years thereafter.
8.14 Payment and Performance Bonds.
Developer shall furnish Lender with payment and performance bonds in the total amount
of the construction cost in accordance with the requirement of 2 CFR Part 200.325. At Lender's
discretion other forms of assurance, including a guarantee from Developer or other parties on
Developer's behalf, may be acceptable so long as such assurance meets the requirements of the
HOME Regulations.
9. RECORD KEEPING, REPORTING AND DOCUMENTATION
REQUIREMENTS, RIGHT TO AUDIT.
9.1 Record Keeping.
9.1.1 Developer shall maintain a record -keeping system as part of its performance of this
Contract and shall promptly provide Lender with copies of any document Lender deems necessary
for the effective fulfillment of Lender's monitoring and evaluation responsibilities. Specifically,
Developer shall keep or cause to be kept an accurate record of all actions taken and all funds spent,
with supporting and back-up documentation as well as all Tenant Documentation. Developer will
maintain all records and documentation related to this Contract for 5 years after the end of the
Affordability Period. If any claim, litigation, or audit related to this Contract or the Project is
initiated before the expiration of the 5-year period, the relevant records and documentation must
be retained until all such claims, litigation or audits have been resolved.
9.1.2 Access to Records.
Lender representatives and HUD and any duly authorized officials of the federal
government will have full access to, and the right to examine, audit, excerpt and/or transcribe any
of Developer's records pertaining to all matters covered by this Contract throughout the
Affordability Period and for 5 years thereafter. Such access shall be during regular business hours
upon at least 48 hours prior notice.
9.2 Reports.
Developer shall submit to Lender all reports and documentation described in this Contract
in such form as Lender may prescribe, which may also include a final performance and/or final
financial report if required by Lender at the termination of this Contract and/or the termination of
the Loan in such form and within such times as Lender may prescribe. Developer shall be
responsible for the submission of all reports to the extent Developer has not submitted such report.
Lender shall notify Developer of any such failure by Developer and shall provide 45 days' notice
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as required herein for Developer to cure. Failure to require the submission or Developer's
failure to actually submit any report or documentation to Lender required by this Contract
shall be an event of default and Lender may exercise all of it remedies for default under this
Contract, and the Loan Documents. Lender shall not exercise its rights hereunder for default
until it gives Developer 45 days' notice of such failure and Developer has failed to cure such
default.
9.2.1 Additional Information.
Developer shall to provide Lender with additional information as may be required by state
or federal agencies to substantiate HOME Program activities and/or expenditure eligibility.
9.3 Change in Reporting Requirements and Forms.
Lender retains the right to change reporting requirements and forms at its reasonable
discretion. Lender will notify Developer in writing at least 30 days prior to the effective date of
such change, and the Parties shall execute an amendment to the Contractand any other necessary
documents reflecting such change, if necessary.
9.4 Lender Reserves the Right to Audit.
Lender reserves the right to perform an audit of Developer's Project operations and
finances at any time during the term of this Contract and during the Affordability Period and for 5
years thereafter, if Lender determines that such audit is necessary for Lender's compliance with
the HOME Regulations or other City policies. Developer agrees to allow access to all pertinent
materials as described herein. If such audit reveals a questioned practice or expenditure, Developer
shall require that 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, Lender reserves the right to withhold further funding under this Contract, the Developer
Loan Agreement, and/or other contract(s) Developer. IF AS A RESULT OF ANY AUDIT IT
IS DETERMINED THAT DEVELOPER HAS FALSIFIED ANY DOCUMENTATION OR
MISUSED, MISAPPLIED OR MISAPPROPRIATED HOME FUNDS OR SPENT HOME
FUNDS ON ANY INELIGIBLE ACTIVITIES, DEVELOPER AGREES TO REIMBURSE
LENDER THE AMOUNT OF SUCH MONIES PLUS THE AMOUNT OF ANY
SANCTIONS, PENALTY OR OTHER CHARGE LEVIED AGAINST LENDER BY HUD
BECAUSE OF SUCH ACTIONS WITHIN THIRTY DAYS FROM THE DATE THE
LENDER PROVIDES NOTICE.
10. REIMBURSEMENT REQUIREMENTS.
Developer shall provide Lender with Complete Documentation and the following reports
as shown in Exhibit "F" — Reimbursement Forms with each Reimbursement Request:
10.1 Attachment I — Invoice.
This report shall contain the amount requested for reimbursement in the submitted request,
and the cumulative reimbursement requested to date (inclusive of the current request). This report
must be signed by an authorized signatory of Developer. By signing Attachment I, Developer is
certifying that the costs are valid, eligible, and consistent with the terms and conditions of this
Contract, and the data contained in the report is true and correct.
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10.2 Attachment II — Expenditure Worksheet.
This report shall itemize each expense requested for reimbursement by Developer. In order
for this report to be complete the following must be submitted:
10.2.1 Invoices for each expense with an explanation as to how the expense pertains
to the Project, if necessary; and
10.2.2 Proof that each expense was paid by Developer, which proof can be satisfied
by cancelled checks, wire transfer documentation, paid receipts or other appropriate banking
documentation.
10.3. Deadline for Submitting Reimbursement Requests.
Developer shall submit all Reimbursement Requests along with Complete Documentation
to Lender within 60 calendar days from each of the deadlines as shown in Exhibit "C" —
Construction and Reimbursement Schedule.
10.3.1 LENDER SHALL HAVE NO OBLIGATION TO MAKE PAYMENT ON
ANY REIMBURSEMENT REQUEST THAT IS NOT RECEIVED WITHIN 60 DAYS OF
THE DEADLINES SHOWN IN EXHIBIT "C" — CONSTRUCTION AND
REIMBURSEMENT SCHEDULE. In addition, Developer's failure to timely submit
Reimbursement Requests and Complete Documentation along with any required reports
shall be an event of default.
10.3.2 LENDER SHALL HAVE NO OBLIGATION TO MAKE PAYMENT ON
ANY REIMBURSEMENT REQUEST THAT IS NOT RECEIVED WITHIN 30
CALENDAR DAYS OF THE COMPLETION DEADLINE.
10.3.3 Final Payment.
Developer shall not be reimbursed for Final Payment until it submits Exhibit "G" —
Project Compliance Report: Rental Housing to Lender.
10.4 Withholding Payment.
LENDER SHALL WITHHOLD PAYMENT ON ANY REIMBURSEMENT
REQUEST THAT DOES NOT INCLUDE THE REQUIRED COMPLETE
DOCUMENTATION. Lender shall notify Developer when it is withholding payment due
to lack of required complete documentation within 10 Business Days of making such
determination.
11. DEFAULT AND TERMINATION.
11.1 Failure to Begin or Complete the Required Improvements
11.1.1 If Developer fails to begin construction within 3 months of the Effective Date,
this Contract shall automatically terminate without further warning or opportunity to cure, and
with no penalty or liability to Lender.
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11.1.2 If Lender determines that the Required Improvements were not completed by
the Completion Deadline (as may be modified in accordance with Section 14.19) or have failed to
pass any of the inspections described in Section 6.1.1 (or to promptly correct any noted deficiency
and subsequently pass such inspection), within 45 calendar days following written notice by
Lender (or such other longer notice period as may be specified herein), or if Developer has
diligently and continuously attempted to cure following receipt of such written notice but
reasonably required more than 45 calendar days to cure, as determined by both Parties mutually
and in good faith, Lender shall have the right to terminate this Contract with no penalty or liability
to Lender, with such termination to be effective immediately upon written notice. Lender shall
also be entitled to demand repayment of the HOME Funds from Developer and enforce any of the
provisions of Loan documents for default.
11.2 Failure to Submit Complete Documentation During Construction.
11.2.1 If Developer fails to submit all applicable Complete Documentation during
construction of the Required Improvements in accordance with Exhibit "C" — Construction and
Reimbursement Schedule, or if any report or documentation submitted as part of Complete
Documentation is not in compliance with this Contract or the HOME Regulations as determined
by Lender, Lender will notify Developer in writing and Developer will have 15 calendar days from
the date of the written notice to submit or resubmit any such report or documentation. If Developer
fails to submit or resubmit any such report or documentation within such time, Lender shall have
the right to withhold payments. If such failure continues for an additional 30 days (a total of 45
days) Lender shall have the right to terminate this Contract effective immediately upon
written notice of such intent with no penalty or liability to Lender. Notwithstanding anything
to the contrary herein, Lender will not be required to pay any HOME Funds to Developer during
the period that any such report or documentation is not in compliance with this Contract or the
HOME Regulations.
11.2.2 If any of Developer's Reimbursement Requests are incomplete or otherwise not
in compliance with this Contract or the HOME Regulations as determined by Lender, Lender will
notify Developer in writing of such default and Developer will have 15 calendar days from the
date of the written notice to resubmit any such Reimbursement Request to cure the default. If
Developer fails to cure the default within such time, Developer shall forfeit any payments
otherwise due under such Reimbursement Request, and if such failure to resubmit such
Reimbursement Request continues for an additional 30 days (a total of 45 days) the Lender shall
have the right to terminate this Contract effective immediately upon written notice of such
intent with no penalty or liability to Lender. Notwithstanding anything to the contrary herein,
Lender will not be required to pay any HOME Funds to Developer during the period that any such
Reimbursement Request is not in compliance with this Contract or the HOME Regulations.
11.2.3 In the event of more than 3 instances of uncured default under Sections
11.2.1 or 11.2.2 which have a material adverse impact on the Project, Lender reserves the
right at its sole option to terminate this Contract effective immediately upon written notice
of such intent with no penalty or liability to Lender.
11.2.4 Notwithstanding anything to the contrary herein, Lender will not be required to
pay any HOME Funds to Developer during the period that any Reimbursement Requests, reports
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or documentation are past due or are not in compliance with this Contract or the HOME
Regulations, or during any period during which Developer is in default of this Contract.
11.2.5 In the event of termination under this Section 11.2, all HOME Funds awarded
but unpaid to Developer pursuant to this Contract shall be immediately forfeited and Developer
shall have no further right to such funds. Any HOME Funds already paid to Developer must be
repaid to Lender by Developer within 30 days of termination under this Section. Failure to repay
such HOME Funds will result in Lender exercising all legal remedies available to Lender
under this Contract and the Loan Documents. For clarification, the defaults and related
remedies set out in this Section 11.2 are not intended to arise from mathematical errors or other
minor defects in a Reimbursement Request.
11.3 Failure to Submit Required Reports and Documentation During
Affordability Period.
If Developer fails to maintain all records and documentation as required in Section 9, or
fails to submit any report or documentation required by this Contract after the Required
Improvements are completed, or if the submitted report or documentation is not in compliance
with this Contract or the HOME Regulations as determined by Lender, Lender will notify
Developer in writing and Developer will have 45 calendar days from the date of the written notice
to obtain or recreate the missing records or documentation, or submit or resubmit any such report
or documentation to Lender. If Developer fails to maintain the required reports or documentation,
or submit or resubmit any such report or documentation within such time, Lender shall have the
right to terminate this Contract effective immediately upon written notice of such intent with
no penalty or liability to Lender. In the event of termination under this Section 11.3, any
HOME Funds paid to Developer must be repaid to Lender by Developer within 30 days of
termination, and that failure to repay such HOME Funds will result in Lender exercising all
legal remedies available to Lender under this Contract and the Loan Documents.
11.4 In General.
11.4.1 Subject to Sections 11.1, 11.2 and 11.3, and unless specifically provided
otherwise in this Contract, Developer shall be in default if Developer breaches any term or
condition of this Contract, the Loan Documents, its obligations under the Ground Lease, or
breaches any term of its loan agreements with FWAI that use other funds from Lender or the Fort
Worth Housing Finance Corporation related to the Project. In the event that such a breach remains
uncured after 45 calendar days following written notice by Lender (or such other longer notice
period as may be specified herein or with respect to the Ground Lease, in the Ground Lease), or if
Developer has diligently and continuously attempted to cure following receipt of such written
notice but reasonably required more than 45 calendar days to cure, as determined by both Parties
mutually and in good faith, Lender shall have the right to elect, in Lender's sole discretion, to (i)
extend Developer's time to cure, (ii) terminate this Contract effective immediately upon written
notice of such intent to Developer, or (iii) pursue any other legal remedies available to Lender.
11.4.2 Developer to acknowledges that Lender's remedies include but are not limited
to:
11.4.2.1 Direct Developer to prepare and follow a schedule of actions for
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carrying out the affected activities, consisting of schedules,
timetables and milestones necessary to implement the affected
activities, including extending the Affordability Period.
11.4.2.2 Direct Developer to establish and follow a management plan that
assigns responsibilities for carrying out the remedial activities.
11.4.2.3 Cancel or revise activities likely to be affected by the performance
deficiency, before expending HOME Funds for the activities.
11.4.2.4 Reprogram HOME Funds that have not yet been expended from
affected activities to other eligible activities or withhold HOME
Funds.
11.4.2.5 Direct Developer to reimburse Lender in any amount of HOME
Funds not used in accordance with the HOME Regulations.
11.4.2.6 Suspend reimbursement of HOME Funds for affected activities.
11.4.2.7 Any other appropriate action including but not limited to any
remedial action legally available such as declaratory judgment,
specific performance, damages, temporary or permanent
injunctions, termination of this Contract, the Loan Documents, or
any other contracts held by Lender with Developer, and any other
available remedies.
11.4.3 In the event of termination under this Section 11.4, all HOME Funds awarded
but unpaid to Developer pursuant to this Contract shall be immediately rescinded and Developer
shall have no further right to such funds and any HOME Funds already paid to Developer must be
repaid by Developer to Lender within 30 days of termination. Failure to repay such HOME
Funds will result in Lender exercising all legal remedies available to Lender under this
Contract and the Loan Documents.
11.5 No Funds Disbursed While in Breach.
Developer acknowledges and agrees that no HOME Funds will be paid to Developer until
all defaults are cured to Lender's satisfaction.
11.6 No Compensation After Date of Termination.
Developer acknowledges that in the event of termination, Developer shall not receive any
HOME Funds in compensation for work undertaken after the date of termination.
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11.7 Rights of Lender Not Affected.
Developer acknowledges that termination shall not affect or terminate any of the existing
rights of Lender against Developer, or which may thereafter accrue because of such default, and
this provision shall be in addition to any and all other rights and remedies available to Lender
under the law and various loan documents including, but not limited to, compelling Developer to
complete the Required Improvements in accordance with the terms of the Contract or the Loan
Documents. Such termination does not terminate any applicable provisions of this Contract that
have been expressly noted as surviving the term or termination of this Contract. No delay or
omission by Lender in exercising any right or remedy available to it under this Contract shall
impair any such right or remedy or constitute a waiver or acquiescence in any Developer default.
11.8 Waiver of Breach Not Waiver of Subsequent Breach.
The waiver of a breach of any term, covenant, or condition of this Contract, the Loan
Documents, or the Ground Lease shall not operate as a waiver of any subsequent breach of the
same or any other term, covenant or condition hereof.
11.9 Civil, Criminal and Administrative Penalties.
Failure to perform all the Contract terms may result in civil, criminal or administrative
penalties, including, but not limited to those set out in this Contract.
11.10 Termination for Cause.
11.10.1 Developer acknowledges that Lender may terminate this Contract in the event
of Developer's default under this Contract, inability, or failure to perform, subject to notice, grace
and cure periods. In the event Lender terminates this Contract for cause, all HOME Funds awarded
but unpaid to Developer pursuant to this Contract shall be immediately rescinded and Developer
shall have no further right to such funds and any HOME Funds already paid to Developer must be
repaid to Lender by Developer within 30 calendar days of termination. Failure to repay such
HOME Funds will result in Lender exercising all legal remedies available to Lender under this
Contract and the Loan Documents. IF LENDER TERMINATES THIS CONTRACT FOR
CAUSE, NEITHER DEVELOPER, NOR ANY AFFILIATES OF DEVELOPER, SHALL
BE CONSIDERED FOR ANY OTHER CITY CONTRACT FOR HOME FUNDS FOR A
MINIMUM OF 5 YEARS FROM THE DATE OF TERMINATION. This provision shall
not apply to the Investor.
11.10.2 Developer may terminate this Contract if Lender does not provide the HOME
Funds substantially in accordance with this Contract. In such event, the termination of the Contract
shall have the effect of returning the Parties to their respective circumstances as existed prior to
the execution of this Contract, all HOME Funds shall be repaid to Lender by Developer within 30
calendar days, and no terms or obligations shall survive the date of termination, including but not
limited to, reporting, inspections or the Affordability Period.
11.10.3 A default by Developer under the Ground Lease after the expiration of any
applicable cure period will constitute a default under this Contract subject to all of the remedies
for default under this Contract andthe Loan Documents.
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11.11 Termination for Convenience.
In terminating in accordance with 2 CFR 200, Appendix II, this Contract may be terminated
in whole or in part only as follows:
11.11.1 By Lender with the consent of Developer in which case the Parties shall agree
upon the termination conditions, including the effective date and in the case of partial termination,
the portion to be terminated; or
11.11.2 By Developer upon written notification to Lender setting forth the reasons for
such termination, the effective date, and in the case of partial termination, the portion to be
terminated. In the case of a partial termination, Lender may terminate the Contract in its entirety
if Lender determines in its sole discretion that the remaining portion of the Contract to be
performed or HOME Funds to be spent will not accomplish the purposes for which this Contract
was made.
11.12 Dissolution of Developer Terminates Contract.
In the event Developer is dissolved or ceases to exist, this Contract shall terminate. In the
event of termination under this Section, all HOME Funds are subject to repayment as required
herein and/or Lender may exercise all of its remedies under this Contract andthe Loan
Documents.
11.13 Reversion of Assets.
Developer acknowledges that in the event this Contract is terminated with or without cause
by either party, all tangible personal property owned by Developer that was acquired or improved
with the HOME Funds included but not limited to plans, drawings, surveys, renderings,
construction documents and any other real or personal property shall belong to Lender and shall
automatically transfer to Lender or to such assignees as Lender may designate, subject to the rights
of any senior lender.
11.14 Notice of Termination under Subordination Agreement.
Lender shall not terminate this Contract without first giving notice and opportunity to cure
as described herein.
11.15 Notice to Investor and Special Limited Partner of Default.
Lender shall furnish the Investor and the Special Limited Partner with notice of any default
under this Contract or any of the loan documents. Lender shall accept cure by the Investor and
Special Limited Partner on the same terms as cure by Developer.
12. REPAYMENT OF HOME FUNDS.
All HOME Funds are subject to repayment in the event the Project does not meet the
requirements as set out in this Contract or in the HOME Regulations. If Developer takes any
action that results in Lender being required to repay all or any portion of the HOME Funds
to HUD, Developer agrees it will reimburse Lender for the full amount such repayment
within thirty days of such notice. If Developer takes any action that results in Lender
receiving a finding from HUD about the Project, whether or not repayment to HUD is
required of Lender, Developer agrees it will pay Lender an additional 10% of the Loan
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amount as liquidated damages. Developer acknowledge that Lender's damages in the event
of either repayment to HUD being required or receiving a finding from HUD are uncertain
and would be difficult to ascertain and may include an impact on Lender's HOME grant or
other Federal grant funds, in addition to a finding by HUD or a repayment of funds to HUD
by Lender; therefore, the Parties agree that payment under this Section of 10% of the Loan
amount by Developer to Lender is liquidated damages and not a penalty.
13. MATERIAL OWNERSHIP CHANGE.
Developer acknowledges that, except as provided in the Deed of Trust and the Deed
Restriction, and transfers in accordance with Developer's Partnership Agreement, as may be
amended and restated from time to time to admit Investor or other partners, or otherwise with
Lender consent, if ownership of Developer materially changes after the date of this Contract,
Lender may, but is not obligated to, terminate this Contract. Lender has 30 days to make such
determination after receipt of notice from Developer and failure to make such determination in
that time period will constitute a waiver. In the event of termination under this Section 13, all
HOME Funds awarded but not yet paid to Developer pursuant to this Contract shall be immediately
rescinded and Developer shall have no further right to such funds, and any HOME Funds already
paid to Developer must be repaid to Lender within 30 days of termination under this Section in
accordance with the terms of this Contract. Notwithstanding anything to the contrary contained
herein, Lender approves the assumption of the Loan by FWHS, or its designated affiliate, in the
event the right of first refusal is exercised by FWHS, or its designated affiliate, in accordance with
the Developer's Partnership Agreement. Notwithstanding anything herein to the contrary, the
Investor may transfer all or any portion of its membership interest in Developer without prior
consent from Lender. Investor retains the right to remove and replace the Developer's General
Partner and/or Special Limited Partner pursuant to Borrower's organizational documents, without
prior consent from Lender.
14. GENERAL PROVISIONS.
14.1 Developer an Independent Contractor.
Developer shall operate hereunder as an independent contractors and not as an officer,
agent, servant or employee of Lender. Developer shall have exclusive control of, and the exclusive
right to control, the details of the work and services performed hereunder, and all persons
performing same, and shall be solely responsible for the acts and omissions of its officers,
members, agents, servants, employees, contractors, subcontractors, vendors, tenants, licensees or
invitees.
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14.2 Doctrine of Respondeat Superior.
The doctrine of respondeat superior shall not apply as between Lender and Developer, any
officers, members, agents, servants, employees, contractors, subcontractors, vendors, tenants,
licensees or invitees. Nothing herein shall be construed as the creation of a partnership or joint
enterprise between Lender and Developer. It is further understood that Lender shall in no way be
considered a Co -employer or a Joint employer of Developer or any officers, agents, servants,
employees or subcontractor of Developer. Neither Developer nor any officers, agents, servants,
employees or subcontractor of Developer shall be entitled to any employment benefits from
Lender. Developer shall be responsible and liable for any and all payment and reporting of taxes
on behalf of itself, and any of its officers, agents, servants, employees or subcontractor. Lender
does not have the legal right to control the details of the tasks performed hereunder by Developer,
its officers, members, agents, employees, contractors, subcontractors, vendors, licensees or
invitees.
14.3 Developer Property.
Lender shall under no circumstances be responsible for any property belonging to
Developer, any officers, members, agents, employees, contractors, subcontractors, vendors,
tenants, licensees or invitees that may be lost, stolen or destroyed or in any way damaged and
DEVELOPER, TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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 OUT
OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY, ITS
OFFICERS, AGENTS OR EMPLOYEES.
14.4 Religious Organization.
Developer acknowledges that no portion of the HOME Funds shall be used in support of
any sectarian or religious activity. In addition, there must be no religious or membership criteria
for tenants of a HOME -funded property.
14.5 Venue.
Venue for any action, whether real or asserted, at law or in equity, arising out of the
execution, performance, attempted performance or non-performance of this Contract or the
Developer Loan Agreement, shall lie in Tarrant County, Texas.
14.6 Governing Law.
This Contract shall be governed by and construed in accordance with the laws of the State
of Texas. If any action, whether real or asserted, at law or in equity, arises out of the execution,
performance or non-performance of this Contract or on the basis of any provision herein, for any
issue not governed by federal law, the choice of law shall be the laws of the State of Texas.
14.7 Severability.
The provisions of this Contract are severable, and if for any reason a clause, sentence,
paragraph or other part of this Contract shall be determined to be invalid by a court or federal or
state agency, board or commission having jurisdiction over the subject matter thereof, such
invalidity shall not affect other provisions which can be given effect without the invalid provision.
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14.8 Written Agreement Entire Agreement.
This written instrument and the Exhibits, Addendums and Attachments attached hereto,
which are incorporated by reference and made a part of this Contract for all purposes, constitute
the entire agreement by the Parties concerning the work and services to be performed under this
Contract. Any prior or contemporaneous oral or written agreement which purports to vary the
terms of this Contract shall be void. Any amendments to the terms of this Contract must be in
writing and be executed by the Parties.
14.9 Paragraph Headings for Reference Only, No Legal Significance; Number.
The paragraph headings contained herein are for convenience in reference to this Contract
and are not intended to define or to limit the scope of any provision of this Contract. When context
requires, singular nouns and pronouns include the plural and the masculine gender shall be deemed
to include the feminine or neuter and the neuter gender to include the masculine and feminine.
The words "include" and "including" whenever used herein shall be deemed to be followed by the
words "without limitation".
14.10 Compliance With All Applicable Laws and Regulations.
Developer shall comply fully with all applicable laws and regulations that are currently in
effect or that are hereafter amended during the performance of this Contract. These laws include,
but are not limited to:
> HOME Investment Partnerships Act as set out above
➢ Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) including
provisions requiring recipients of federal assistance to ensure meaningful access by
person of limited English proficiency
➢ The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections
3601 et seq.)
➢ Executive Orders 11063, 11246 as amended by 11375 and 12086 and as supplemented
by Department of Labor regulations 41 CFR, Part 60
➢ The Age Discrimination in Employment Act of 1967
> The Age Discrimination Act of 1975 (42 U.S.C. Sections 6101 et seq.)
➢ The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
(42 U.S.C. Sections 4601 et seq. and 49 CFR Part 24) ("URA")
➢ Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sections 794 et seq.) and 24
CFR Part 8 where applicable
➢ National Environmental Policy Act of 1969, as amended, 42 U.S.C. sections 4321 et
seq. ("NEPA") and the related authorities listed in 24 CFR Part 58.
➢ The Clean Air Act, as amended, (42 U.S.C. Sections 1251 et seq.) and the Clean Water
Act of 1977, as amended (33 U.S.C. Sections 1251 et seq.), related Executive Order
11738 and Environmental Protection Agency Regulations at 40 CFR Part 15. In no
event shall any amount of the assistance provided under this Contract be utilized with
respect to a facility that has given rise to a conviction under the Clean Air Act or the
Clean Water Act.
➢ Immigration Reform and Control Act of 1986 (8 U.S.C. Sections 1101 et seq.)
specifically including the provisions requiring employer verifications of legal status of
its employees
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➢ The Americans with Disabilities Act of 1990 (42 U.S.C. Sections 12101 et seq.), the
Architectural Barriers Act of 1968 as amended (42 U.S.C. sections 4151 et seq.) and
the Uniform Federal Accessibility Standards, 24 CFR Part 40, Appendix A
> Regulations at 24 CFR Part 87 related to lobbying, including the requirement that
certifications and disclosures be obtained from all covered persons
> Drug Free Workplace Act of 1988 (41 U.S.C. Sections 701 et seq.) and 24 CFR Part
23, Subpart F
> Executive Order 12549 and 24 CFR Part 5.105(c) pertaining to restrictions on
participation by ineligible, debarred or suspended persons or entities
> Regulations at 24 CFR Part 882.708(c) pertaining to site and neighborhood standards
for new construction projects
> Regulations at 24 CFR Part 983.6 for Site and Neighborhood Standards Review
➢ Section 6002 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act
> Guidelines of the Environmental Protection Agency at 40 CFR Part 247
➢ For contracts and subgrants for construction or repair, Copeland "Anti -Kickback" Act
(18 U.S.C. 874) as supplemented in 29 CFR Part 5
➢ For construction contracts in excess of $2,000, and in excess of $2,500 for other
contracts which involve the employment of mechanics or laborers, Sections 103 and
107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327A 300) as
supplemented by 29 CFR Part 5
➢ Section 3 of the Housing and Urban Development Act of 1968, and implementing
regulations related to housing and community development financial assistance at 24
CFR Part 75
> Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.), as amended by
the Residential Lead -Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851 et
seq.) and implementing regulations at 24 CFR Part 35, subparts A, B, M, and R
➢ Regulations at 24 CFR Part 92, Home Investment Partnerships Program Final Rule
> Uniform Administrative Requirements, Cost Principles, and Audit Requirements for
Federal Awards, 2 CFR Part 200 et seq.
> Federal Funding Accountability and Transparency Act of 2006, (Pub.L. 109-282, as
amended by Section 6205(a) of Pub.L. 110-252 and Section 3 of Pub.L. 113-101)
> Federal Whistleblower Regulations, 10 U.S.C. 2409, 41 U.S.C. 4712, 10 U.S.C. 2324,
41 U.S.C. 4304 and 41 U.S.C. 4310
> Broadband Infrastructure Requirements, 24 CFR Part 5.100 and Section 706 of the
Telecommunications Act of 1996, 47 U.S.C. 1302
14.11 HUD -Assisted Projects and Employment and other Economic
Opportunities; Section 3 Requirements.
14.11.1 Requirement to be included in Construction Contracts.
As mandated by Section 3 of the Housing and Urban Development Act of 1968 and
its related regulations at 24 CFR Part 75, Developer and Project Construction Contractors shall,
to the greatest extent feasible, provide employment opportunities to low and moderate income
workers and to low and moderate income residents of the Project Service Area and to businesses
owned by or employing low and moderate income workers, as further defined and described in the
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Sections below.
14.11.2 Section 3 Definitions
14.11.2.1 Section 3 Worker means either a) a worker whose income is below
the income established by HUD for Section 3 compliance, which is 80% of the area median
income, or b) a worker that is employed by a Section 3 Business.
14.11.2.2 Targeted Section 3 Worker means a worker that lives within the
Project Service Area and also meets the definition of a Section 3 Worker.
14.11.2.3 Section 3 Business means a business that meets one of the following
conditions: a) is at least 51% owned by low or moderate income persons; b) has had over 75% of
its labor hours performed over the last the months by low or moderate income persons; or c) is at
least 51 % owned by public housing residents or residents that currently live in Section 8-assisted
housing.
14.11.2.4 Project Service Area means the geographic area within one mile of
the Project Site which includes 5000 population, or the geographic area around the Project Site
which is large enough to include 5000 residents, as represented on Section 3 Project Service Area
Map attached as Exhibit I-1 to this Contract.
14.11.3 Developer's Responsibilities for Section 3 Requirements.
Lender and Developer understand and agree that compliance with the provisions of
Section 3, the regulations set forth in 24 CFR Part 75, and all applicable rules and orders of HUD
shall be a condition of the federal financial assistance provided to the Project binding upon Lender
and Developer, and their respective successors, assigns, contractors and subcontractors. Failure to
fulfill these requirements shall subject Developer and its contractors and subcontractors and their
respective successors and assigns to those sanctions specified by the grant agreement through
which federal assistance is provided and to such sanctions as are specified by 24 CFR Part 75.
Developer's responsibilities for fulfilling Section 3 requirements include:
14.11.3.1 Implementing procedures to notify potential Section 3 Workers and
Section 3 Businesses about training, employment, and contracting
opportunities generated by this Contract; ;
14.11.3.2 Notifying potential contractors working on Section 3 covered
projects of their responsibilities;
14.11.3.3 Facilitating the training and employment of Section 3 Workers and
the award of contracts to Section 3 Businesses;
14.11.3.4 Assisting and actively cooperating with the Neighborhood Services
Department in making contractors and subcontractors comply;
14.11.3.5 Documenting actions taken to comply with Section 3; and
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14.11.3.6 Submitting Section 3 Reports to Lender as further described below.
14.11.4 Section 3 Reporting Requirements.
In order to comply with the Section 3 requirements, Developer must:
14.11.4.1 Report to Lender within 30 days of award of the prime construction
contract, and regularly thereafter, the names, hourly wages, hours
worked, and related required information for all nonprofessional
workers working on the Project, as shown on Exhibit G-1. This
information must be reported through Lender's designated Section
3 and Davis -Bacon reporting software. These reports shall be
submitted monthly, or with each construction draw request.
14.11.4.2 Require the Prime Contractor and all subcontractors to provide the
information required by Exhibit G-1 via Lender's designated
Section 3 reporting software..
14.11.4.3 Submit, via Lender's designated Section 3 reporting software, or on
applicable forms as attached to this Contract, certifications
regarding the Section 3 Worker and Targeted Section 3 Worker
status of all nonprofessional workers on the Project.
14.11.4.4 Require all subcontractors to complete and submit Section 3
Business Certifications for subsequent submission to Lender.
14.11.4.5 Advertise employment opportunities created by the Project to the
public for open competition within the City of Fort Worth, and
within the Project Service Area(s), and provide copies of such
advertisements to Lender with each quarterly Section 3 report, in
the form of printout of Texas Workforce Commission posting, copy
of newspaper advertisement, copy of flyers and listing of locations
where flyers were distributed, and the like.
14.1 1.4.6 Report to Lender within 30 days of award of the Contract to the
Prime Contractor, and on a monthly basis thereafter, a list of all
contracts awarded to to subcontractors for the Project. This shall
include name of all such subcontractors, their, addresses, zip codes,
and the amounts of each subaward as of the date of the report, as
well as the contact information for each subcontractor's Human
Resources Department or primary hiring official
14.1 1.4.7 Participate in, and require the Prime Contractor and subcontractors
to participate in at least one Neighborhood/Project Service Area Job
Fair organized by the Neighborhood Services Department to
promote employment of Section 3 and Targeted Section 3 Workers
during the contract period.
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14.11.4.8 Coordinate and cooperate with Lender in efforts to publicize
employment and contracting opportunities associated with the
Project, including programs of Lender's Minority and Women's
Business Enterprise (MWBE) office, as described herein.
14.11.5 This Section 14.11 shall be included in its entirety in all Project construction
contracts or subcontracts totaling $200,000 or more.
14.12 Prohibition Against Discrimination.
14.12.1 General Statement.
Developer, in the execution, performance or attempted performance of this Contract shall
comply with all non-discrimination requirements of 24 CFR 92.350 and the ordinances codified at
Chapter 17, Article III, Division 4 — Fair Housing of the City Code. Developer may not
discriminate against any person because of race, color, sex, gender, religion, national origin,
familial status, disability or perceived disability, sexual orientation, gender identity, gender
expression, or transgender, nor will Developer permit its officers, members, agents, employees,
contractors, vendors or Project participants to engage in such discrimination.
This Contract is made and entered into with reference specifically to the ordinances
codified at Chapter 17, Article III, Division 3 - Employment Practices of the City Code, and
Developer hereby covenant and agree that Developer, its officers, members, agents, employees
and contractors, have fully complied with all provisions of same and that no employee, or applicant
for employment has been discriminated against under the terms of such ordinances by either or its
officers, members, agents, employees, contractors or vendors.
14.12.2 No Discrimination in Employment during the Performance of this
Contract.
During the performance of this Contract, Developer agrees to the following provision, and
will require that its contractors, subcontractors and vendors also comply with such provision by
including it or a substantially similar provision in all contracts with its contractors and vendors:
[Contractor's, Subcontractor's or Vendor's Name] will not unlawfully discriminate
against any employee or applicants for employment because of race, color, sex, gender,
religion, national origin, familial status, disability or perceived disability, sexual
orientation, gender identity, gender expression or transgender. [Contractor's,
Subcontractor's or Vendor's Name] will take affirmative action to ensure that applicants
are hired without regard to race, color, sex, gender, religion, national origin, familial status,
disability or perceived disability, sexual orientation, gender identity, gender expression or
transgender and that employees are treated fairly during employment without regard to
their race, color, sex, gender, religion, national origin, familial status, disability or
perceived disability, sexual orientation, gender identity, gender expression or transgender.
Such action shall include, but not be limited to, the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of
pay or other forms of compensation, and selection for training, including apprenticeship.
[Contractor's, Subcontractor's or Vendor's Name] agrees to post in conspicuous places,
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available to employees and applicants for employment, notices setting forth the provisions
of this nondiscrimination clause.
[Contractor's, Subcontractor's or Vendor's Name] will, in all solicitations or
advertisements for employees placed by or on behalf of 'Contractor's, Subcontractor 's or
Vendor's 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, Subcontractor's or Vendor's Name] covenants that neither it nor any of its
officers, members, agents, employees, or contractors, while engaged in performing this
Contract, shall, in connection with the employment, advancement or discharge of
employees or in connection with the terms, conditions or privileges of their employment,
discriminate against persons because of their age or because of any disability or perceived
disability, except on the basis of a bona fide occupational qualification, retirement plan or
statutory requirement.
[Contractor's, Subcontractor's or Vendor's Name] further covenants that neither it nor its
officers, members, agents, employees, contractors, or persons acting on their behalf, shall
specify, in solicitations or advertisements for employees to work on this Contract, a
maximum age limit for such employment unless the specified maximum age limit is based
upon a bona fide occupational qualification, retirement plan or statutory requirement.
14.12.3 Developer's Contractors and ADA.
In accordance with the provisions of the Americans With Disabilities Act of 1990
("ADA"), Developer warrants that it will not unlawfully discriminate on the basis of disability in
the provision of services to the general public, nor in the availability, terms and/or conditions of
employment for applicants for employment with, or employees of Developer. DEVELOPER
SEPARATELY WARRANT IT WILL FULLY COMPLY WITH ADA'S PROVISIONS
AND ANY OTHER APPLICABLE FEDERAL, STATE AND LOCAL LAWS
CONCERNING DISABILITY AND WILL TO THE EXTENT PERMITTED BY
APPLICABLE LAW, DEFEND, INDEMNIFY AND HOLD CITY HARMLESS AGAINST
ANY CLAIMS OR ALLEGATIONS ASSERTED BY THIRD PARTIES,
CONTRACTORS, SUBCONTRACTORS OR VENDORS AGAINST CITY ARISING OUT
OF ITS AND/OR ITS CONTRACTORS', SUBCONTRACTORS', VENDORS', AGENTS'
OR EMPLOYEES' ALLEGED FAILURE TO COMPLY WITH THE ABOVE -
REFERENCED LAWS CONCERNING DISABILITY DISCRIMINATION IN THE
PERFORMANCE OF THIS CONTRACT.
14.13 Conflict of Interest and Violations of Criminal Law.
14.13.1 Developer Safeguards.
Developer shall establish safeguards to prohibit its employees, board members, advisors
and agents from using positions for a purpose that is or gives the appearance of being motivated
by a desire for private gain for themselves or others, particularly those with whom they have
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family, business or other ties. Developer shall disclose to Lender any conflict of interest or
potential conflict of interest described above, immediately upon discovery of such.
14.13.2 General Prohibition Against Conflicts of Interest.
No persons who are employees, agents, consultants, officers or elected officials or
appointed officials of Lender or of Developer who exercise or have exercised any functions or
responsibilities with respect to activities assisted with HOME funds or who are in a position to
participate in a decision -making process or gain inside information with regard to these activities
may occupy a HOME Unit, may obtain a financial interest or benefit from a HOME -assisted
activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the
proceeds thereunder, either for themselves or those with whom they have family or business ties,
during their tenure or for 1 year thereafter, unless they are accepted in accordance with the
procedures set forth at 24 C.F.R. Part 92.356.
14.13.2.1 Developer shall establish conflict of interest policies for Federal
Awards and shall provide such policies in writing to Lender in
accordance with the requirements of 2 CFR Part 200.112.
14.13.3 Disclosure of Conflicts of Interest.
In compliance with 2 CFR Part 200.112, Developer is required to timely disclose to Lender
in writing any potential conflict of interest, as described in this Section.
14.13.4 Disclosure of Texas Penal Code Violations.
Developer will adhere to the provisions of the Texas Penal Code which prohibits bribery
and gifts to public servants.
14.13.5 Disclosure of Federal Criminal Law Violations.
In compliance with 2 CFR Part 200.113, Developer is required to timely disclose to Lender
all violations of federal criminal law involving fraud, bribery or gratuity violations potentially
affecting this Agreement.
14.14 Labor Standards.
Developer acknowledges and agrees to the following:
14.14.1 As applicable, Developer agrees to comply with the requirements of the
Secretary of Labor in accordance with the Davis -Bacon Act (40 U.S.C. 276a-7) as amended, the
provisions of Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.) and all other
applicable Federal, state and local laws and regulations pertaining to labor standards insofar as
those acts apply to the performance of this Contract. Developer agree to comply with the Copeland
Anti -Kick Back Act (18 U.S.C. 874 et seq.) and its implementing regulations of the United States
Department of Labor at 29 CFR Part 5. Developer shall maintain documentation that demonstrates
compliance with hour and wage requirements of this Contract and HOME Regulations. Such
documentation shall be made available promptly to Lender for review upon request.
14.14.2 Developer agrees that, except with respect to the rehabilitation or construction
of residential property containing less than 12 units assisted with HOME funds, all contractors
engaged under contract for construction, renovation or repair work financed in whole or in part
with assistance provided under this Contract, shall comply with Federal requirements adopted by
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Lender pertaining to such contracts and with the applicable requirements of the regulations of the
Department of Labor under 29 CFR Parts 1, 3, 5 and 7 governing the payment of wages and ratio
of apprentices and trainees to journey workers; provided that, if wage rates higher than those
required under these regulations are imposed by state or local law, nothing hereunder is intended
to relieve Developer of its obligation, if any, to require payment of the higher wage. Developer
shall cause or require to be inserted in full, in all such contracts subject to such regulations,
provisions meeting the requirements of this paragraph.
14.14.3 If Davis -Bacon is applicable, Developer shall provide Lender access to
employee payrolls, contractor and subcontractor payrolls and other wage information for persons
performing construction of the Required Improvements. Payrolls must be submitted to the
Neighborhood Services Department with each Reimbursement Request, and must be available to
Neighborhood Services Department staff upon request. In addition, Developer shall ensure that
Lender will have access to employees, contractors and subcontractors and their respective
employees in order to conduct onsite interviews with laborers and mechanics. Developer shall
inform its contractors and subcontractors that Lender or federal agencies may conduct periodic
employee wage interview visits during construction of the Project to ensure compliance.
14.15 Subcontracting with Small and Minority Firms, Women's Business
Enterprises and Labor Surplus Areas.
14.15.1 For contracts $100,000.00 or larger, Developer agrees to abide by Lender's
policy to involve certified Business Equity Firms 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 for the completion of the Project, as stated
herein. For this Contract, Developer must comply with all federal Section 3 requirements.
Additionally, Developer must make good faith efforts to work with the City of Fort Worth's
Diversity and Inclusion Department to ensure that Business Equity Firms certified with the City
are engaged to the extent possible for any covered contracts procured after the effective date of
this Contract.
14.15.2 Developer acknowledges and agrees that it is national policy to award a fair
share of contracts to disadvantaged business enterprises ("DBEs"), small business enterprises
("SBEs"), minority business enterprises ("MBEs"), and women's business enterprises ("WBEs").
Accordingly, affirmative steps must be taken to assure that DBEs, SBEs, MBEs, and WBEs are
utilized when possible as sources of supplies, equipment, construction and services.
14.15.3 In order to comply with the reporting requirements of 24 CFR Part 92.508
(a)(7)(ii), Developer must submit the form attached hereto as Exhibit "K" — Contract and
Subcontract Activity Reporting Form for each contract or subcontract with a value of $25,000
or more paid, or to be paid, with HOME funds. This form shall be submitted with the final
Reimbursement Request.
14.16 Other Laws.
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
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to following the law, nor from the consequences or penalties for Developer' s failure to follow the
law, if applicable.
14.17 Assignment.
14.17.1 Developer shall not assign all or any part of its rights, privileges, or duties under
this Contract without the prior written approval of Lender. Any attempted assignment of same
without approval shall be void, and shall constitute a breach of this Contract. Any approved
assignment of this Contract shall include assumption of the HOME Loan.
14.18. Right to Inspect Developer Contracts.
Lender has the right to inspect and approve in writing any proposed contracts or other
legally binding documents between (i) Developer and its general contractor and subcontractors,
including any lower tier subcontractors engaged in any activity that is funded as part of the
construction of the Required Improvements, (ii) Developer and any vendor contracts arising out
of the operation of the Project, and (iii) Developer and any third party contracts to be paid with
HOME Funds, prior to any charges being incurred.
14.19 Force Majeure.
If Developer becomes unable, either in whole or part, to fulfill its obligations under this
Contract due to acts of God, strikes, lockouts, or other industrial disturbances, acts of public
enemies, wars, blockades, insurrections, riots, pandemics and 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, inclement weather, or some other
reason beyond Developer's control (collectively, "Force Majeure Event"), the obligations so
affected by such Force Majeure Event will be suspended only during the continuance of such event
and the completion date for such obligations shall be extended for a like period. Developer will
give Lender written notice of the existence, extent and nature of the Force Majeure Event as soon
as reasonably possible after the occurrence of the event. Failure to give notice will result in the
continuance of the Developer's obligation regardless of the extent of any existing Force Majeure
Event. Developer will use commercially reasonable efforts to remedy its inability to perform as
soon as possible.
14.20 Survival.
Any provision of this Contract that pertains to Affordability Requirements, indemnity
obligations, reporting requirements, auditing, monitoring, tenant income eligibility, record keeping
and reports, City ordinances, the provisions of Section 6.6 pertaining to SAM, or any HOME
requirements, and any default and enforcement provisions necessary to enforce such provisions,
shall survive the termination of this Contract for the longer of (i) 5 years after the termination date
of this Contract, or (ii) 5 years after the termination of the Affordability Period unless a different
survival period is specifically set forth herein, and shall be enforceable by Lender against
Developer.
14.21 REVIEW OF COUNSEL.
The Parties acknowledge that each Party and its counsel have reviewed and revised this Contract
and that the normal rules of construction to the effect that any ambiguities are to be resolved against
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the drafting party shall not be employed in the interpretation of this Contract or any of the exhibits
attached hereto.
15. INDEMNIFICATION AND RELEASE.
DEVELOPER, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT
ITS OWN EXPENSE, LENDER AND ITS OFFICERS, AGENTS, SERVANTS AND
EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS OF ANY
KIND OR CHARACTER, INCLUDING BUT NOT LIMITED TO CLAIMS 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, BUT NOT FROM THE LENDER'S, OR LENDER'S
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR
SUBCONTRACTORS ACTUAL GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
AND DEVELOPER HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF
LENDER 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 LENDER, BUT NOT
FROM THE LENDER'S, OR LENDER'S OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS ACTUAL GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. DEVELOPER, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, FURTHER COVENANTS AND AGREES TO
AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS LENDER FROM AND
AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF
CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF
DEVELOPER, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, INVITEES, LICENSEES, OR PROJECT PARTICIPANTS, OR
CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF
LENDER, BUT NOT FROM THE LENDER'S, OR LENDER'S OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS ACTUAL
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
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IT IS THE EXPRESS INTENTION OF THE PARTIES, BOTH DEVELOPER AND
LENDER, THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION INCLUDES
INDEMNITY BY DEVELOPER, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, TO INDEMNIFY AND PROTECT LENDER FROM THE CONSEQUENCES OF
LENDER'S OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS ALLEGED TO
BE THE SOLE OR CONCURRING CAUSE OF THE INJURY, DAMAGE OR DEATH,
BUT NOT THE LENDER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
DEVELOPER, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
AGREES TO AND SHALL RELEASE LENDER, 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
LENDER'S SOLE OR CONCURRENT NEGLIGENCE, BUT NOT THE LENDER'S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
DEVELOPER SHALL REQUIRE ALL OF ITS CONTRACTORS AND
SUBCONTRACTORS TO INCLUDE IN THEIR CONTRACTS AND SUBCONTRACTS
A RELEASE AND INDEMNITY IN FAVOR OF LENDER IN SUBSTANTIALLY THE
SAME FORM AS ABOVE.
16. WAIVER OF IMMUNITY BY DEVELOPER.
If Developer is a charitable or nonprofit organization and has or claims an immunity or
exemption (statutory or otherwise) from and against liability for damages or injury, including
death, to persons or property, Developer hereby expressly waives its rights to plead defensively
such immunity or exemption as against Lender. This section shall not be construed to affect a
governmental entity's immunities under constitutional, statutory or common law.
17. INSURANCE AND BONDING.
Developer shall maintain coverage in the form of insurance or bond in the amount of
$1,000,000.00, which is the total amount of the Loan, to insure against loss from the fraud, theft
or dishonesty of any of Developer's officers, agents, trustees, directors or employees. The
proceeds of such insurance or bond shall be used to reimburse Lender for any and all loss of HOME
Funds occasioned by such misconduct. To effectuate such reimbursement, such fidelity coverage
shall include a rider stating that reimbursement for any loss or losses shall name Lender as a Loss
Payee.
Developer shall furnish to Lender, in a timely manner, but not later than 60 days after the
Effective Date, certificates of insurance as proof that it has secured and paid for policies of
commercial insurance as specified herein. Further, if Lender has not received such certificates as
set forth herein, Developer shall be in default of the Contract, and Lender may at its option,
terminate the Contract.
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Such insurance shall cover all insurable risks incident to or in connection with the
execution, performance, attempted performance or nonperformance of this Contract. Developer
shall maintain, or require its general contractor to maintain, the following coverages and limits
thereof:
Commercial General Liability (CGL) Insurance
$1,000,000 each occurrence
$2,000,000 aggregate limit
Business Automobile Liability Insurance
$300,000 each accident on a combined single -limit basis
$300,000 Aggregate
Insurance policy shall be endorsed to cover "Any Auto" defined as autos owned, hired and
non -owned. Pending availability of the above coverage and at the discretion of Lender, the
policy shall be the primary responding insurance policy versus a personal auto insurance policy if
or when in the course of Developer's business as contracted herein.
Workers' Compensation Insurance
Part A: Statutory Limits
Part B: Employer's Liability
$100,000 each accident
$100,000 disease -each employee
$500,000 disease -policy limit
Note: Such insurance shall cover employees performing work on any and all projects
including but not limited to construction, demolition, and rehabilitation. Developer or its
contractors shall maintain coverages, if applicable. In the event the respective contractors
do not maintain coverage, Developer shall maintain the coverage on such contractor, if
applicable, for each applicable contract.
Additional Requirements
Such insurance amounts shall be revised upward at Lender's reasonable option and no more
frequently than once every 12 months, and Developer shall revise such amounts within 30 days
following notice to Developer of such requirements.
Developer must submit to Lender documentation that it, and its general contractor, have obtained
insurance coverage and have executed bonds as required in this Contract prior to payment of any
monies provided hereunder.
where applicable and appropriate, insurance policies required herein shall be endorsed to include
Lender as an additional insured as its interest may appear. Additional insured parties shall include
employees, officers, agents, and volunteers of Lender.
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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 Lender.
Any failure on part of Lender 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 Lender 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 Lender.
Deductible limits on the foregoing insurance policies shall be at commercially reasonable levels,
and in no event exceed $100,000 per occurrence.
In the event there are any local, federal or other regulatory insurance or bonding requirements for
the Project, and such requirements exceed those specified herein, the former shall prevail.
Developer shall require its contractors to maintain applicable insurance coverages, limits, and
other requirements as those specified herein; and, Developer shall require its contractors to provide
Developer with certificate(s) of insurance documenting such coverage. Also, Developer shall
require its contractors to have Lender and Developer endorsed as additional insureds (as their
interest may appear) on their respective insurance policies where applicable and appropriate.
Developer shall require its builder to maintain builders risk insurance at the value of the
construction.
18. CERTIFICATION REGARDING LOBBYING.
The undersigned for Developer hereby certifies, to the best of its knowledge and belief,
that:
No Federal appropriated funds have been paid or will be paid, by or on behalf of
Developer, to any person for influencing or attempting to influence an officer or
employee of any agency, a member of Congress, an officer or employee of Congress
in connection with the awarding of any Federal contract, the making of any federal
grant, the making of any Federal loan, the entering into of any cooperative
agreement and the extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan or cooperative agreement.
If any funds other than federally appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of
any agency, member of Congress in connection with this Federal contract, grant,
loan or cooperative agreement, Developer shall complete and submit Standard
Form-LLL, "Disclosure Form to Report Lobbying, " in accordance with its
instructions.
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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.
19. RELIGIOUS ORGANIZATION.
Developer shall comply with all applicable requirements as more particularly described in
24 CFR Part 5.109. No portion of the HOME Funds shall be used in support of any sectarian or
religious activity. In addition, there must be no religious or membership criteria for tenants of a
HOME -funded unit.
19.1 Separation of Explicitly Religious Activities.
Developer retains its independence and may continue to carry out its mission, including
the definition, development practice, and expression of its religious beliefs, provided that it does
not use HOME Funds to support or engage in any explicitly religious activities (including activities
that involve overt religious content such as worship, religious instruction, or proselytization), or
in any other manner prohibited by law.
19.2 Explicitly Religious Activities.
If Developer engages in explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or proselytization), the explicitly
religious activities must be offered separately, in time or location, from the programs or activities
supported by HOME Funds and participation must be voluntary for tenants of a HOME -funded
unit.
20. LITIGATION AND CLAIMS.
Developer shall give Lender 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 generally. Developer shall furnish immediately to Lender copies of all
pertinent papers received by Developer with respect to such action or claim. Developer shall
provide a notice to Lender within 10 calendar days upon filing under any bankruptcy or financial
insolvency provision of law.
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21. NOTICE.
All notices required or permitted by this Contract must be in writing and shall be effective
upon receipt when (i) sent by U.S. Mail, with proper postage, certified mail return receipt
requested; (ii) by a nationally recognized overnight delivery service; (iii) by electronic mail or
other commercially reasonable manner; and 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.
Lender:
City Attorney's Office
100 Fort Worth Trail (previously 100 Energy Way)
Fort Worth, TX 76102
Attention: Denis McElroy
Telephone: 817-392-2758
Copy to:
Neighborhood Services Department
100 Fort Worth Trail (previously 100 Energy Way)
Fort Worth, TX 76102
Attention: Chad LaRoque
Telephone: 817-392-2661
Developer:
FW Babers Manor, LP
1407 Texas Street
Fort Worth, TX 76102
Attn: Mary -Margaret Lemons
With a copy to:
FW Babers Manor GP, LLC
c/o Fort Worth Affordability, Inc.
1407 Texas Street
Fort Worth, TX 76102
Attn: Mary -Margaret Lemons
Investor:
Hunt Capital Partners Tax Credit Fund 46, LP
15910 Ventura Boulevard, Suite 1100
Encino, CA 91436
Attn: Asset Management
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Nixon Peabody LLP
799 9th Street NW Suite 500,
Washington, DC 20001-5327
Attention: Matthew W. Mullen
Special Limited Partner:
Babers Manor MBS SLP, Inc.,
c/o McCormack Baron Salazar, Inc.
100 N. Broadway, Suite 100
St. Louis, MO 63102
Attention: General Counsel
22. DEVELOPER HAS LEGAL AUTHORITY TO ENTER INTO CONTRACT.
Developer represents that it possesses the legal authority, pursuant to any proper,
appropriate and official motion, resolution or action passed or taken, to enter into this Contract and
to perform the responsibilities herein required.
23. INVESTOR'S AND SPECIAL LIMITED PARTNER'S RIGHTS TO CURE.
The Parties agree that the Investor and the Special Limited Partner shall each independently
have the right, but not the obligation, to cure any default by or complete any obligation of the
Developer under this Contract and the Loan Documents during the cure period or completion
period provided therein, and the Parties hereto agree to accept any such cure or completion
tendered by the Investor or the Special Limited Partner.
24. BOYCOTTING ISRAEL PROHIBITED.
Developer acknowledges that in accordance with Chapter 2270 of the Texas Government
Code, Lender is prohibited from entering into a contract with a company for goods or services
unless the contract contains a written verification from the company that it: (1) does not boycott
Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel"
and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas
Government Code. By signing this Contract, Developer certifies that Developer's signature
provides written verification to Lender that Developer: (1) does not boycott Israel; and (2)
will not boycott Israel during the term of this Contract.
25. IMMIGRATION NATIONALITY ACT.
Developer shall verify the identity and employment eligibility of its employees who
perform work under this Contract, including completing the Employment Eligibility Verification
Form (I-9). Upon request by Lender, Developer shall provide Lender with copies of all I-9 forms
and supporting eligibility documentation for each employee who performs work under this
Contract. Developer shall adhere to all Federal and State laws as well as establish appropriate
procedures and controls so that no services will be performed by any Developer employee who is
not legally eligible to perform such services. DEVELOPER, TO THE EXTENT PERMITTED
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BY APPLICABLE LAW, SHALL INDEMNIFY LENDER AND HOLD LENDER
HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO
VIOLATIONS OF THIS PARAGRAPH BY DEVELOPER, DEVELOPER'S
EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. Lender, upon written
notice to Developer, shall have the right to immediately terminate this Contract for violations of
this provision by Developer.
26. COUNTERPARTS.
This Contract may be executed in multiple counterparts, each of which shall be considered
an original, but all of which shall constitute one instrument which may be sufficiently evidenced
by one counterpart.
27. PROHIBITION ON BOYCOTTING ENERGY COMPANIES.
In accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021,
87th Leg., R.S., S.B. 13, § 2, Lender is prohibited from entering into a contract for goods or
services that has a value of $100,000 or more that is to be paid wholly or partly from public funds
of Lender with a company with 10 or more full-time employees unless the contract contains a
written verification from the company that it: (1) does not boycott energy companies; and (2) will
not boycott energy companies during the term of the contract. The terms "boycott energy
company" and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement, by signing this Agreement,
Developer certifies that Developer's signature provides written verification to Lender that
Developer: (1) does not boycott energy companies; and (2) will not boycott energy companies
during the term of this Contract.
28. PROHIBITION ON DISCRIMINATION AGAINST FIREARM AND
AMMUNITION INDUSTRIES.
Except as otherwise provided by Chapter 2274 of the Texas Government Code, as added
by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, Lender is prohibited from entering into a contract for
goods or services that has a value of $100,000 or more that is to be paid wholly or partly from
public funds of Lender with a company with 10 or more full-time employees unless the contract
contains a written verification from the company that it: (1) does not have a practice, policy,
guidance, or directive that discriminates against a firearm entity or firearm trade association; and
(2) will not discriminate during the term of the contract against a firearm entity or firearm trade
association. The terms "discriminate," "firearm entity" and "firearm trade association" have the
meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by
Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code
is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's
signature provides written verification to Lender that Developer: (1) does not have a practice,
policy, guidance, or directive that discriminates against a firearm entity or firearm trade
HOME DEVELOPER RENTAL CONTRACT
Babers Manor Apartments Page 48
KH 1142495.2
association; and (2) will not discriminate against a firearm entity or firearm trade association
during the term of this Contract.
29. ELECTRONIC SIGNATURES.
This Contract may be executed by electronic signature, which will be considered as an
original signature for all purposes and have the same force and effect as an original signature. For
these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g.
via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted
via software such as Adobe Sign.
[SIGNATURES APPEAR ON NEXT PAGE]
HOME DEVELOPER RENTAL CONTRACT
Babers Manor Apartments Page 49
KH 1142495.2
ii y Secretary
M&C No. 24-0435 Date May 14, 2024
Form 1295: 2024-1150658
T .T:
(
CITY OF FORT WORTH
By:
Fernando Costa, Assistant City Manager
Date: 7/00.24
APPROVED AS TO FORM AND LEGALITY:
Leslie L. Hunt, Senior Assistant City Attorney
FW BABERS MANOR, LP,
a Texas limited partnership
By: FW Babers Manor GP, LLC,
a Texas limited liability company,
its general partner
By: Fort Worth Affordability, Inc.,
a Texas nonprofit corporation,
its sole memb •
By:
Name: Mar, 11 arg
Title: Secretary/T
By: Babers Manor MBS SLP, Inc.,
a Texas corporation,
its Special Limited Partner
By:
Name: Ian McCormack
Title: Vice President
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City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
For the monitoring and administration of this contract, including
Ensuring all performance and reporting requirements.
Dyan Anders
n, Development Project Coordinator
HOME DEVELOPER RENTAL CONTRACT
Babers Manor Apartments List of Exhib
KH 1142495.2
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
IN WITNESS WHEREOF, the Parties have executed 3 duplicate originals of this
Contract to be effective as of the Effective Date.
ATTEST: CITY OF FORT WORTH
By:
City Secretary Fernando Costa, Assistant City Manager
M&C No. 24-0435 Dated May 14, 2024
Form 1295: 2024-1150658 Date:
APPROVED AS TO FORM AND LEGALITY:
Leslie L. Hunt, Senior Assistant City Attorney
FW BABERS MANOR, LP,
a Texas limited partnership
By: FW Babers Manor GP, LLC,
a Texas limited liability company,
its general partner
By: Fort Worth Affordability, Inc.,
a Texas nonprofit corporation,
its sole member
By:
Name: Mary -Margaret Lemons
Title: Secretary/Treasurer
By: Babers Manor MBS SLP, Inc.,
a Texas corporation,
its Specia r ited Part
Nib : fan McCfrmack
Title: Vice President
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
For the monitoring and administration of this contract, including
Ensuring all performance and reporting requirements.
Dyan Anderson, Development Project Coordinator
HOME DEVELOPER RENTAL CONTRACT
Babers Manor Apartments List of Exhibits Page
KH 1142495.2
EXHIBITS:
Exhibit "A" — Project Summary
Exhibit "A-1" — HUD Rent Limits
Exhibit "A-2" — Environmental Mitigation Action
Exhibit "B" — Budget
Exhibit "C" — Construction and Reimbursement Schedule
Exhibit "D" — Audit Requirements — Not Applicable
Exhibit "E" — Loan Documents
Exhibit "F" — Reimbursement Forms
Exhibit "G" — Project Compliance Report: Rental Housing
Exhibit "H" — Federal Labor Standards Provisions — Davis -Bacon Requirements
Exhibit "I" — Section 3 Reporting Forms
Exhibit "I-1" — Section 3 Project Service Area Map
Exhibit "J" — Standards for Complete Documentation
Exhibit "K" - Contract and Subcontract Activity Reporting Form
Exhibit "L" - Deed Restriction
Exhibit "M" - Not Applicable
Exhibit "N" - VAWA Forms
Exhibit "0"— HOME Requirements
HOME DEVELOPER RENTAL CONTRACT
Babers Manor Apartments List of Exhibits Page
KH 1142495.2
EXHIBIT "A"
PROJECT SUMMARY
BABERS MANOR APARTMENTS
Capitalized terms not defined herein shall have meanings assigned to them in the Contract.
DESCRIPTION:
Developer will use HOME Funds for a portion of the costs to develop the Babers Manor
Apartments, an affordable housing development for families to be located at 4400 Ramey Street,
Fort Worth, Texas, 76105 ("Property"). The project will consist of up to 80 units including 18
one -bedroom units, 48 two -bedroom units, and 14 three -bedroom units, along Ramey Street.
Babers Manor will feature amenities to serve all residents of the new community, including a
community room, property management office, furnished fitness center, computer stations, an on -
site after school tutoring program, and two children's playscapes. The common areas will be
lighted to provide added security for residents and Babers Manor Apartments will be located within
close proximity to public transportation and nearby amenities including Rosedale Plaza Park.
In consideration for the HOME Funds, Developer agrees to provide the following information and
meet the following requirements:
• Designate 6 Accessible Units in accordance with Section 504 requirements and the terms of the
Contract, of which 4 must be accessible to individuals with mobility impairments, and 2 must be
accessible to individuals with visual impairments. Accessible Units shall be marketed in
accordance with Section 7.7 of the Contract.
• Designate 4 floating HOME Units in the proj ect. Of these 4 HOME Units, 0 will be High HOME
Units and 4 will be Low HOME Units. HOME Rents will be charged in accordance with the rents
set forth in Exhibit "A-1" — HUD Rent Limits, published annually by HUD, and shall not exceed
the Low HOME Rent.
• Submit Exhibit "G" - Project Compliance Report: Rental Housing regarding the household
income, size, race, ethnicity, gender of head of household, disability status, and rental assistance type
for the initial tenant of the first HOME Unit to be leased. LENDER WILL WITHHOLD $50,000.00
OF THE HOME FUNDS UNTIL LENDER VERIFIES THAT ALL HOME UNITS ARE
LEASED TO HOME ELIGIBLE HOUSEHOLDS.
• If the 4 HOME Units do not qualify as affordable rental housing immediately upon lease -up or at
any time during the Affordability Period, Lender may invoke any remedies provided in the Contract
or the Loan Documents.
• Submit to Lender, throughout the Affordability Period, a copy of its annual audit and annual reports
that are submitted to TDHCA.
SPECIFIC PURPOSE:
The specific purpose of this project is to benefit low- and moderate -income individuals and families
by providing them with affordable housing.
PROJECT OBJECTIVES:
The project will provide 80 mixed -income family development including with 1-, 2- and 3-
bedroom apartments, including thirty-nine (39) project -based voucher (PBV) units for returning
families from Cavile Place; four (4) units reserved for Permanent Supportive Housing (PSH) units
for persons experiencing chronic homelessness; eight (8) units restricted to households earning
eighty percent or less of area median income (AMI); and twenty-nine (29) units dedicated as
market rate units.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments
Rev. 07/12/2024
Page 1
U.S DEPARTMENT OF HUD
STATE: TEXAS
2024HOME PROGRAM RENTS
CC mm arum
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CO ri N PI ri N
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Lc) _I N M IA N
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Il▪ l N CO In N
m A N Ir al N
rl ri ri
EFFICIENCY
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Effective June 1, 2024
*Rent limits are published annually by HUD.
EXHIBIT "A-2"
ENVIRONMENTAL MITIGATION ACTION
BABERS MANOR APARTMENTS
NOT APPLICABLE
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 3
Development Name:
EXHIBIT "B"
BUDGET
BABERS MANOR APARTMENTS
SOURCES AND USES
Babers Manor Apartments
Source #
Funding Description
Priority
of Lien
Construction Financing
Permanent Financing
Financing Participants
1
Construction Loan
1st
$10,355,000
$10,355,000
Mason Joseph - FHA
2
FWHFC Permanent
Supportive Housing
(PSH) Funds
2nd
$100,000
$100,000
FWAI
3
HOME Investment
Partnerships Program
(HOME)
3rd
$1,000,000
$1,000,000
FWAI
4
Urban Development
Action Grant (UDAG)
4th
$150,000
$150,000
FWAI
5
Land/Seller Loan
5th
$440,000
$440,000
Cavile Public
Facility Corporation
6
Choice Neighborhood
Implementation (CNI)
Loan
6th
$3,150,000
$3,150,000
FWAI
FWAI PSH Match
N/A
$100,000
$100,000
FWAI
GP Cap Contribution
N/A
$100
$100
Tax Credit Equity
N/A
$14,834,948
$16,347,284
Hunt Capital Partners,
LLC
Deferred Developer Fee
N/A
$0
$905,000
TOTAL
SOURCES
OF
FUNDS
$30,130,048
$32,547,384
HOME Funds Budget
Construction Hard Costs
$950,000*
Holdback**
$50,000*
TOTAL
$1,000,000
*Developer agrees to be reimbursed for eligible expenses and based on work completed and costs actually
incurred. The amounts are estimates and are subject to change.
** Lender will hold back $50,000.00 of the HOME Funds until Lender verifies that all HOME Units are leased
to HOME Eligible Households as well as the other requirements in Exhibit "C" - Construction and
Reimbursement Schedule.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 4
EXHIBIT "C"
CONSTRUCTION AND REIMBURSEMENT SCHEDULE
BABERS MANOR APARTMENTS
Activity
HOME Funds
PHASE I ACTIVITIES:
Land Acquisition
$0
Predevelopment Soft Costs
PHASE I
COMPLETE by:
January 1, 2025
First Payment**
$0
PHASE II ACTIVIITES:
Construction Hard Costs
$250,000
PHASE II
COMPLETE by:
June 30, 2025
Prior to Reimbursement in Phase II, Developer must submit the
contractor/subcontractor/vendor searches under the Federal
System for Award Management (www.sam.gov).
Second Payment** (approx. 25% complete)***
$250,000
PHASE III ACTIVIITES:
Construction Hard Costs
$350,000
PHASE III
COMPLETE by:
January 1, 2026
Prior to Reimbursement in Phase II, Developer must submit the
contractor/subcontractor/vendor searches under the Federal
System for Award Management (www.sam.gov).
Third Payment** (approx. 50% complete)***
$350,000
PHASE IV ACTIVIITES:
Construction Hard Costs
$350,000
PHASE IV
COMPLETED by:
June 30, 2026
Prior to Reimbursement in Phase III, Developer must submit the
contractor/subcontractor/vendor searches under the Federal
System for Award Management (www.sam.gov).
Third Payment** (approx. 75% complete)***
$350,000
PHASE IV ACTIVITIES:
Initial Lease -up of HOME Units
$50,000.00
PHASE V
COMPLETED by:
January 1, 2027
Prior to Reimbursement in Phase IV, Developer must submit the
following items:
1. Rent Schedule for HOME Units. See Section 7.5
2. Tenant Selection Policy. See Section 7.6
3. Affirmative Marketing Plan. See Section 7.7
Prior to Reimbursement for Final Payment, Exhibit "G" - Project
Compliance Report: Rental Housing must be submitted to
Lender.
Final Payment** (Lease -Up of all HOME Units)***
$50,000.00*
TOTAL
$1,000,000.00
*Developer will request reimbursement for eligible expenses and based on work completed and costs
actually incurred. The amounts are estimates and are subject to change.
**Developer must submit Complete Documentation with Reimbursement Request within 60 days from
each of the abovementioned deadlines in order to be reimbursed. Failure to timely submit
Reimbursement Requests and Complete Documentation along with any required reports shall be an
event of default.
***If milestone is reached before the Phase completion date, reimbursement will be made when the
milestone percentage is reached and Lender is provided all required documentation.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments
Page 5
EXHIBIT "D"
AUDIT REQUIREMENTS
BABERS MANOR APARTMENTS
NOT APPLICABLE
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 6
EXHIBIT "E"
LOAN DOCUMENTS
BABERS MANOR APARTMENTS
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 7
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.
Leasehold Deed of Trust
Security Agreement - Financing Statement
HOME Funds
Terms
Date: August 1, 2024
Grantor: FW Babers Manor, LP, a Texas Limited Partnership
Grantor's Mailing Address:
FW Babers Manor, LP
c/o Fort Worth Affordability, Inc.
1407 Texas Street
Fort Worth, TX 76102
With a copy to:
Babers Manor MBS SLP, Inc.
100 N. Broadway, Suite 100
St. Louis, MO 63102Attention: General Counsel
And to:
Klein Hornig LLP
101 Arch Street, Suite 1101
Boston, MA 02110
Attention: Daniel Rosen
And to:
Coats Rose, P.C.
9 Greenway Plaza, Suite 1000
Houston, TX 77046
Attention: Lauren B. Hodge
And to:
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 1
FW Babers Manor LP to City of Fort Worth
c/o Hunt Capital Partners, LLC
15910 Ventura Boulevard, Suite 1100
Encino, California 91436
And to:
Nixon Peabody LLP
799 9th Street NW Suite 500,
Washington, DC 20001-5327
Attention: Matthew W. Mullen
Trustee: Leslie L. Hunt or Denis McElroy
Trustee's Mailing Address:
The City Attorney's Office
The City of Fort Worth
100 Fort Worth Trail (previously 100 Energy Way) Fort Worth TX 76102
Tarrant County
Lender: City of Fort Worth, a Texas home rule municipality
Lender's Mailing Address:
c/o Neighborhood Services Department
ATTN: Projects Team
100 Fort Worth Trail (previously 100 Energy Way)
Fort Worth, Texas 76102
Loan Authority:
The loan evidenced by the Note (the "Loan") and secured by this Leasehold Deed of
Trust Security Agreement — Financing Statement (this "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:
Original principal amount: $1,000,000.00
Borrower/Grantor: FW Babers Manor, LP
Lender: City of Fort Worth
Maturity Date: 40 years after Project Stabilization as defined in the
HOME Contract, City Secretary Contract No. 61698,
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 2
FW Babers Manor LP to City of Fort Worth
Terms of Payment:
between Grantor and Lender, for a HOME Loan ("HOME
Contract"), but no later than December 31, 2066.
As provided in the Note
In addition, Obligations shall include compliance by Grantor with the requirements of the
HOME Program for the 20-year Affordability Period more particularly described in
Section F. below.
Property (including any improvements): Tenant's Leasehold Estate.
Lease
Date: August 1, 2024
Landlord: Cavile Public Facility Corporation
Tenant: Grantor
Premises:
Real property in the City of Fort Worth, County of Tarrant, State of
Texas commonly known as 4400, 4408, 4416, and 4424 Ramey
Avenue, Fort Worth, TX 76105 as described in EXHIBIT "A" —
Legal Description (the "Property").
Leasehold Estate:
All of Tenant's rights under the Amended and Restated Ground Lease
dated August 1, 2024 executed by and between Cavile Public Facility
Corporation, Landlord, and FW Babers Manor, LP, Tenant
Together with the following personal property to the extent owned by Grantor:
All fixtures, supplies, building materials, and other goods of every nature
now or hereafter located, used, or intended to be located or used on the Property;
All plans and specifications for development of or construction of
improvements on the Property;
All contracts and subcontracts relating to the construction of
improvements on the Property;
All accounts, contract rights, instruments, documents, general intangibles,
and chattel paper arising from or by virtue of any transactions relating to the
Property;
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 Leasehold Estate and all the other
Property described above, Grantor also grants to Lender a security interest in all of the
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 3
FW Babers Manor LP to City of Fort Worth
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 (i) the Multifamily Deed of Trust,
Assignment of Leases and Rents and Security Agreement securing that certain Note
(Multistate) dated August 1, 2024 made by Grantor and payable to Mason Joseph Company,
LLC ("Senior Lender") evidencing the indebtedness arising from the loan by Senior
Lender to Grantor ( the "Senior Indebtedness"), to the extent and in the manner provided in
that certain Subordination Agreement dated August 1, 2024 among Senior Lender and
Grantor (the "Subordination Agreement") and (ii) a Promissory Note dated August 1,
2024, in the original principal amount of $100,000.00 made by the Fort Worth Housing
Finance Corporation and payable to Fort Worth Affordability, Inc. (the "PSH Loan"). This
Deed of Trust is and shall be subject and subordinate in all respects to the liens, terms,
covenants and conditions of the loan documents evidencing the Senior Indebtedness
("Senior Loan Documents") as more fully set forth in the Subordination Agreement, and
the liens, terms, covenants and conditions of the loan documents evidencing the PSH Loan
(collectively the "Senior FWAI Loan Documents"). The rights and remedies of Lender
and each subsequent assignee of the lien under this Deed of Trust are subject to the
restrictions and limitations set forth in the Subordination Agreement.
Subject the terms of the Subordination Agreement and to waiver, notice, grace and cure
period, if any, provided in the Senior Loan Documents and/or the Senior FWAI Loan
Documents, if default occurs in payment of any part of principal or interest of the Senior
Indebtedness and/or the FWAI Loans, or in observance of any covenants contained in the
Senior Loan Documents and/or the Senior FWAI Loan Documents, the entire debt
secured by this Deed of Trust will immediately become payable at the option of Lender
to the extent permitted by the Subordination Agreement.
Any future refinancing by Grantor or any new or subordinate financing shall require the
review and prior written approval of Lender for the purpose of ensuring compliance with
the underwriting and subsidy layering requirements of the HOME Regulations, which
approval shall not be unreasonably withheld, conditioned or delayed. Such approval will
be based on Lender's review of the then -current financial information, underwriting and
subsidy layering requirements, and may require renegotiation of the Loan terms to
comply with the HOME Regulations. Renegotiation of the Loan term may include
modification of the maturity date (if permitted by any senior lender), payment amount
adjustment, or any other modification necessary to comply with the HOME Regulations.
A refinance of the Senior Loan or any subsequent refinance shall not automatically cause
repayment of the Loan. Notwithstanding the foregoing, refinancing by Grantor of the
Senior Indebtedness will not require prior written approval of the City of Fort Worth so
long as such refinancing would not increase the principal amount of the Senior
Indebtedness beyond the original principal amount of the Senior Indebtedness (excluding
any amounts having been advanced by Senior Lender for the protection of its security
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 4
FW Babers Manor LP to City of Fort Worth
interest pursuant to the Senior Loan Documents), increase the interest rate of the Senior
Indebtedness, or decrease the original maturity term of the Senior Indebtedness; provided
however that the City must review and approve any loan documents, including
subordination agreements, approval of which shall not be unreasonably withheld or
delayed, and nothing herein shall limit City's rights to modify the Loan as allowed
herein. Lender agrees to re -subordinate the debt evidenced hereunder in the event that
such senior debt is refinanced.
The terms of this Deed of Trust and the Note are also subject to the limitations of
the HUD Rider to Deed of Trust attached hereto as Exhibit "C" and incorporated
herein for all purposes (the "HUD Rider").
Other Exceptions to Conveyance and Warranty:
The Permitted Exceptions set forth on Exhibit "B" attached hereto and incorporated
herein for all purposes, to the extent that they relate to the Leasehold Estate.
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. perform all of Tenant's obligations under the Lease and Contract and deliver, on
Lender's written request, satisfactory evidence of timely payment of all rents and other charges
due under the Lease and Contract;
2. enforce Landlord's obligations under the Lease;
3. within 10 business days after receipt, deliver a copy of each notice received by
Grantor from Landlord to Lender;
4. timely exercise each option to extend the term of the Lease as long as the
Obligations remain unpaid or otherwise outstanding and concurrently deliver to Lender a copy of
the notice doing so. If Grantor does not exercise an option to extend the term of the Lease,
Lender may, at its option, exercise the option on behalf of Grantor. Grantor appoints Lender its
attorney -in -fact to execute and deliver all instruments necessary to extend the term of the Lease
or to exercise any other rights, powers, or privileges under the Lease in the event Grantor fails to
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 5
FW Babers Manor LP to City of Fort Worth
do so; this power, being coupled with an interest, is irrevocable as long as the Obligations remain
unpaid or are otherwise outstanding;
5. use commercially reasonable efforts to deliver to Lender, within 20 days after
written request by Lender, an estoppel certificate from Landlord setting forth to the extent
accurate (a) that the Lease has not been modified or, if it has been modified, the date of each
modification (together with copies of each modification), (b) the date to which all rent has been
paid by Tenant under the Lease, and (c) whether there are any defaults of Tenant under the Lease
and, if there are, setting forth the nature of the default(s) in reasonable detail;
6. execute and deliver on the request of Lender any instruments required to permit
Lender to cure any default under the Lease or preserve the interest of Lender in the Leasehold
Estate;
7. defend leasehold 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;
8. obey all laws, ordinances, and restrictive covenants applicable to the Property;
9. 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
10. notify Lender of any change of address.
Grantor agrees not to-
1. do or intentionally or knowingly permit anything to be done that will impair the
security of this Deed of Trust or will be grounds for terminating the Lease unless cured within
any applicable cure period; or
2. consent, without Lender's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, to (a) any waiver, cancellation, or amendment of
any provision of the Lease or (b) the subordination of the Lease to any mortgage of the fee
interest of Landlord in the Premises.
Grantor represents that-
1. the Lease is enforceable;
2. except as set forth above, there are no amendments to the Lease; and
3. Grantor is not in default under the Lease and, to the best of Grantor's knowledge,
Landlord is not in default under the Lease, and, to the best of Grantor's knowledge, no event
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 6
FW Babers Manor LP to City of Fort Worth
exists that, with the passage of time or the giving of notice, or both, would constitute a default
under the Lease.: When used in this Deed of Trust or any of the other Loan Documents,
"knowledge" or "notice" means the actual knowledge of any fact or matter by or written notice to
the following officers of the Grantor: FW Babers Manor GP, LLC.
B. Lender's Rights
1. Lender or Lender's mortgage servicer may appoint in writing a substitute trustee,
succeeding to all rights and responsibilities of Trustee.
2. If the proceeds of the Loan are used to pay any debt secured by prior liens, Lender
is subrogated to all the rights and liens of the holders of any debt so paid, subject to the
Subordination Agreement.
3. Notwithstanding the terms of the Note to the contrary, and unless applicable law
prohibits, all payments received by Lender from Grantor with respect to the Obligations or this
Deed of Trust may, at Lender's reasonable discretion, be applied first to amounts payable under
this Deed of Trust and then to amounts due and payable to Lender with respect to the
Obligations, to be applied to late charges, principal, or interest in the order Lender in its
discretion determines.
4. If Grantor fails to perform any of Grantor's obligations under this Deed of Trust,
subject to prior written notice and cure period, Lender may perform those obligations and be
reimbursed by Grantor on demand for any amounts so paid, including reasonable and actually
incurred attorney's fees, plus interest on those amounts from the dates of payment at the rate
stated in the Note for matured, unpaid amounts. The amount to be reimbursed will be secured by
this Deed of Trust.
5. If there is a default on the Obligations or if Grantor fails to perform any of
Grantor's obligations under this Deed of Trust and the default continues after any required notice
of the default and the time allowed to cure ("Event of Default"), 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 and
each of the Partners of Grantor, as identified in the Amended and Restated Agreement of Limited
Partnership of Grantor dated on or about the date hereof (the "Partnership Agreement"),
simultaneous written notice of such default. Grantor and each of its Partners on behalf of Grantor
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shall have a period of 15 days after such notice is given within which to cure the default prior to
exercise of remedies by Lender under the Loan documents. Notwithstanding anything to the
contrary, if a non -monetary event of default occurs under the terms of any of the Loan documents,
prior to exercising any remedies, Lender shall give Grantor and each of Grantor' s Partners, as
identified in the Partnership Agreement, simultaneous written notice of such default. If the default
is reasonably capable of being cured within 45 days, Grantor and each of its Partners on behalf of
Grantor shall have such period to effect a cure prior to exercise of remedies by Lender under the
Loan documents. If the default is such that it is not reasonably capable of being cured within 45
days, and if Grantor or any of its Partners (a) initiates corrective action within said period, and (b)
diligently, continually, and in good faith works to effect a cure as soon as possible, then Grantor or
each of its Partners on behalf of Grantor shall have such additional time as is reasonably necessary
to cure the default prior to exercise of any remedies by Lender. In no event shall Lender be
precluded from exercising remedies, subject to any cure periods included herein, if its security
becomes or is about to become materially jeopardized by any failure to cure a default or the default
is not cured within 180 days after the first notice of default is given. If the default is not cured after
notice within the time periods stated above, Grantor 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.
6. Lender may remedy any default without waiving it and may waive any default
without waiving any prior or subsequent default.
7. If Grantor fails to perform any of its obligations, covenants, or agreements under
the Lease or Contract, Lender may do any act it deems reasonably necessary to cure such failure.
During an Event of Default, Lender may enter the Premises with or without notice and do
anything that Lender reasonably deems necessary or prudent to do.
8. If Lender elects to make any payments or do any act or thing required to be paid
or done by Grantor as Tenant under the Lease, Lender will be fully subrogated to the rights of
Landlord, and any sums advanced by Lender are a part of the Obligations.
C. Trustee's Rights and Duties
If directed by Lender to foreclose this lien, Trustee will-
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then in effect;
2. sell and convey all or part of the Property "AS IS" to the highest bidder for cash
with a general warranty binding Grantor, subject to the Prior Lien and to the Other Exceptions to
Conveyance and Warranty and without representation or warranty, express or implied, by
Trustee;
3. from the proceeds of the sale, pay, in this order -
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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. to the extent permitted by applicable law, 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, fling 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 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 apply such amounts to reduce the Obligations and any
excess proceeds shall be paid to Grantor. Lender will not be liable for failure to collect or to
exercise diligence in collecting any such amounts. Grantor will immediately give Lender notice
of any actual or known threatened proceedings for condemnation of all or part of the Property.
Notwithstanding the above, and subject to the rights and requirements of any senior lien
holder, 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 therefor, provided that (a)
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such proceeds are sufficient to keep the Obligations in balance and rebuild the Property in a manner
that provides adequate security to Lender for repayment or performance of the Obligations or if
such proceeds are insufficient then Grantor shall have funded any deficiency, (b) Lender shall have
the right to approve plans and specifications for any major rebuilding and the right to approve
disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow
or similar arrangement, and (c) no material default then exists under the Loan documents other than
attributable to the casualty or condemnation. If the casualty or condemnation affects only part of
the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and
partial repayment of the Obligations in a manner that provides adequate security to Lender for
repayment of the remaining balance of the Obligations, and any excess proceeds shall be paid to
Grantor.
7. Subject to the rights of senior lien holders, Grantor assigns to Lender all present
and future rent and other income and receipts from the Property pursuant to Chapter 64 of the
Texas Property Code, as may be amended from time to time. If Grantor defaults in payment or
performance of the Obligations or performance of this Deed of Trust, Lender may, upon notice,
cause all rent and other income and receipts that have accrued but remain unpaid on the date of
notice and that accrue on or after the date of notice to be paid to Lender. Payments to Lender
under this paragraph shall begin within thirty days of the date of notice. 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
and retained by Lender under this paragraph first to expenses incurred in exercising Lender's
rights and remedies hereunder 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.
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.
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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 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, following any
applicable notice and cure period, 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 30 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. Grantor may not sell, transfer, or otherwise dispose of any Property, whether
voluntarily or by operation of law, except for transfer to the landlord, condemnation, residential
leases or to obtain utility or other necessary easements, without the prior written consent of
Lender. If granted, consent may be conditioned upon (a) the grantee's integrity, reputation,
character, creditworthiness, and management ability being satisfactory to Lender; and (b) the
grantee's executing, before such sale, transfer, or other disposition, a written assumption
agreement containing any terms Lender may reasonably require, such as a principal pay down on
the Obligations, an increase in the rate of interest payable with respect to the Obligations, a
transfer fee, or any other modification of the Note, this Deed of Trust , or any other instruments
evidencing or securing the Obligations.
Grantor may not cause or knowingly permit any Property to be encumbered by any liens,
security interests, or encumbrances other than the liens securing the Obligation and the liens
securing ad valorem taxes not yet due and payable and the Permitted Exceptions without the
prior written consent of Lender, which shall not be unreasonably withheld, conditioned or
delayed. If granted, consent may be conditioned upon Grantor's executing, before granting such
lien, a written modification 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, an approval fee, or any other reasonable modification of the Note, this Deed
of Trust, or any other instruments evidencing or securing the Obligations. Lender hereby
specifically approves the execution of the proposed Declaration of Land Use Restrictive
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Covenants ("LURA") which will be executed by Grantor on the form required by the Texas
Department of Housing and Community Affairs ("TDHCA"), the Regulatory Agreement for
Multifamily Projects ("HUD Regulatory Agreement") on the form required by HUD, the
Choice Neighborhoods Implementation Grant Program Declaration of Restrictive Covenants
("CNI DORC") on the form required by HUD, and the City of Fort Worth HOME Investment
Partnerships Program Deed Restrictions ("HOME Deed Restrictions"). Approval of the LURA
shall be reflected by Lender's execution of the form of Consent and Subordination of Lienholder
which is required by the TDHCA.
Grantor may not grant any lien, security interest, or other encumbrance (a "Subordinate
Instrument") covering the Property that is subordinate to the liens created by this Deed of Trust
without the prior written consent of Lender. If granted, consent for a Subordinate Instrument
may be conditioned upon the Subordinate Instruments 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.
Lender acknowledges and agrees that, in the event of a foreclosure of its interest
under this Deed of Trust, the following rule contained in Section 42(h)(6)(E)(ii) of the
Internal Revenue Code (the "Code") shall apply:
For a period of 3 years from the date of foreclosure, with respect to any unit that
had been regulated by the LURA, (i) none of the eligible tenants occupying those
units at the time of foreclosure may be evicted or their tenancy terminated (other
than for good cause), and (ii) no rent for said units may be increased except as
otherwise permitted under Section 42 of the Code.
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
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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 Partnership 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 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.
Permitted Transfers. Notwithstanding anything to the contrary herein or in any other Loan
document, the following shall not constitute a default or Event of Default under any of the Loan
documents -
a. the withdrawal, removal, replacement, and/or addition of a General Partner, Special
Limited Partner or Limited Partner of the Grantor in accordance with the
Partnership Agreement, or the withdrawal, replacement, and/or addition of any of
Grantor's Partners or its Partners' general partners or members, provided that prior
notice of any additional or substitute Grantor's General Partner, Special Limited
Partner or Limited Partner is delivered to Lender and is selected with reasonable
promptness. Any additional or substitute General Partner, Special Limited Partner
or Limited Partner that is an affiliate of any of Grantor's Partners are hereby
deemed acceptable to Lender;
b. the sale, transfer, conveyance or pledge of partnership interests in the Grantor;
c. the sale, transfer, conveyance or pledge of any partnership interest in Grantor's
Investor Limited Partner or Special Limited Partner;
d. transfers to an affiliate or subsidiary in accordance with the right of first refusal and
purchase option included in the Amended and Restated Limited Partnership Agreement
of Grantor, however, City must be provided notice within 30 days of the transfer's
completion by the new owner. The new owner shall be required to assume all
obligations of Grantor hereunder in a form acceptable to Lender;
e. the dilution of General Partner's interest in cash flow and/or capital transaction
proceeds in Grantor in accordance with the terms of the Partnership Agreement;
f. assignment of the loan to a borrower that is an affiliate of the Grantor or its
partners, subject to consent from Lender. Any assignment shall also require an
assumption of the loan terms, including all City and HOME Regulations; and
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g.
any amendment to the Partnership Agreement which does not affect terms that
impact loan repayment, and does not otherwise adversely affect Lender's security
interest in the Property.
Further, none of the actions described in this paragraph will constitute a material change in
ownership which would trigger termination of the Contract, as hereinafter defined.
17. Except as otherwise related to the project as defined in the Contract (as
hereinafter defined), Grantor agrees not to grant any lien or security interest in the Property or to
permit any junior encumbrance to be recorded or any claim to otherwise become an encumbrance
against the Property other than the proposed LURA, the HOME Deed Restrictions, the CNI
DORC, or HUD Regulatory Agreement, and any other lien or security interest approved in
advance by Lender. If an involuntary encumbrance is filed against the Property, Grantor agrees,
within 30 days of actual notice, to either remove the involuntary encumbrance or insure against it
or provide a bond acceptable to Lender against the involuntary encumbrance.
18. This Deed of Trust binds, benefits, and may be enforced by the successors in
interest of all parties.
19. If Grantor and Borrower are 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
actually incurred costs of enforcing Lender's rights under this Deed of Trust if this Deed of Trust
is placed in the hands of an attorney for enforcement.
22. If any provision of this Deed of Trust is determined to be invalid or
unenforceable, the validity or enforceability of any other provision will not be affected.
23. As long as the Obligations remain unpaid or otherwise not performed, unless
Lender otherwise consents in writing, the fee title to the Premises and the Leasehold Estate will
not merge but will always remain separate, notwithstanding a union of the estates.
24. This Deed of Trust does not constitute an assignment of the Lease, and Lender has
no liability or obligation under the Lease by reason of its acceptance of this Deed of Trust.
Lender is liable for the obligations of Tenant arising out of the Lease for only that period of time
after Lender has acquired, by foreclosure or otherwise, and is holding Grantor's interest in the
Leasehold Estate.
25. The term Lender includes any mortgage servicer for Lender.
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26. The debt and the performance secured by this Deed of Trust is a nonrecourse
obligation of Grantor. Neither Grantor nor any of its Partners nor any other party shall have any
personal liability for repayment of the Loan described in the Contract (as hereafter defined). 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 of improvements
on land, including the acquisition costs of the Leasehold Estate.
2. Grantor agrees to comply with the terms, covenants and conditions of Loan
Agreement between Grantor and Lender (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 Contract.
3. All amounts disbursed by Lender before completion of the improvements to
protect the security of this Deed of Trust up to the principal amount of the Note will be treated as
disbursements under the 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, and has
been executed and delivered in accordance with the Contract. The funds advanced by
Lender are HOME funds and the Contract and HOME Deed Restrictions require that the
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5 residential rental units described below and located on the Property must qualify and
remain affordable rental housing in accordance with the HOME Program and the HOME
Regulations for the 20-year Affordability Period more particularly defined in the Contract
and HOME Deed Restrictions. The Obligations described in the Contract evidenced by the
Note and secured by this Deed of Trust will be in default if, following any applicable notice
and cure period, the 5 HOME -assisted residential rental units located on the Property
more particularly described in the Contract do not remain affordable rental housing for
the duration of the Affordability Period, subject to the "next available unit rule" under the
Internal Revenue Code Section 42 (g) (2) (D).
This Deed of Trust has also been executed and delivered pursuant to the terms of
the Contract. Grantor agrees to perform each and every obligation set forth therein and
will not permit a default to occur thereunder, following any applicable notice and cure
period. Any default in the performance of Grantor's obligations under the terms of the
Contract or the HOME Program or HOME Regulations, following any applicable notice
and cure period, shall be deemed an Event of Default in the terms of the Note and Lender
may invoke any remedies provided herein for an Event of Default, subject to the terms and
conditions of the HUD Rider.
THE CONTRACT, THE NOTE AND THIS DEED OF TRUST CONSTITUTE
THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES AND NOTARIZATION FOLLOW]
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IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date
first written above.
STATE OF TEXAS
FW Babers Manor, LP,
a Texas limited partnership
By: FW Babers Manor GP, LLC,
a Texas limited liability company,
its general partner
§
§
COUNTY OF TARRANT §
By: Fort Worth Affordability, Inc.,
a Texas nonprofit corporation,
its sole member
By:
Name: Mary -Margaret Lemons
Title: Secretary/Treasurer
By: Babers Manor MBS SLP, Inc.,
a Texas corporation,
its special limited partner
By:
Name: Ian McCormack
Title: Vice President
I HEREBY CERTIFY that on or about this 1st day of August, 2024, before me, a Notary Public
for the state aforesaid, personally appeared Mary -Margaret Lemons, known to me or
satisfactorily proven to be the person whose name is subscribed to the foregoing or attached
document, who acknowledged that she is the Secretary/Treasurer of Fort Worth Affordability,
Inc., a Texas nonprofit corporation, the sole member of FW Babers Manor GP, LLC, a Texas
limited liability company, the general partner of FW Babers Manor, LP, a Texas limited
partnership; that she has been duly authorized to execute, and has executed, such instrument on
its behalf for the purposes therein set forth; and that the same is its act and deed of said limited
partnership.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and year first
above written.
Notary Public, State of Texas
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STATE OF MISSOURI
CITY OF ST. LOUIS
On this, the 1st day of August, 2024, before me, the undersigned officer, personally appeared Ian
McCormack, who states that he is the Vice President of Babers Place MBS SLP, Inc., a Texas
corporation, the special limited partner of FW Babers Manor, LP, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument and acknowledged
that he, being authorized to do so, executed the same for the purpose therein contained, and
desires the same to be recorded as such.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public, State of Missouri
[SIGNATURE AND NOTARIZATION OF LENDER FOLLOWS]
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THIS DEED OF TRUST EXECUTED BY LENDER SOLELY FOR THE PURPOSE
OF INDICATING LENDER'S AGREEMENT TO THE TERMS, CONDITIONS AND
LIMITATIONS OF THE HUD RIDER ATTACHED HERETO AS EXHIBIT "C".
LENDER: CITY OF FORT WORTH
A Texas home rule municipality
By:
Name: Fernando Costa
Title: Assistant City Manager
STATE OF TEXAS
COUNTY OF TARRANT
This instrument was acknowledged before me on August 1, 2024, by Fernando Costa,
Assistant City Manager of the City of Fort Worth, a Texas home rule municipality, on behalf of
said municipality.
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
City of Fort Worth City Attorney's Office
Attention: Leslie L. Hunt
100 Fort Worth Trail (previously 100 Energy Way) Fort Worth, Texas 76102
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EXHIBIT "A"
LEGAL DESCRIPTION
BEING a 4.4719 acre (194,796 square foot) tract of land situated in the George J. Ashabranner
Survey, Abstract No. 7, City of Fort Worth, Tarrant County, Texas, and being a portion of Block
33, Eastwood Addition, Third Filing, an addition to the City of Fort Worth according to the plat
recorded in Volume 388-Z, Page 52, Plat Records, Tarrant County, Texas, and being all of Tracts
1-4 described in Special Warranty Deed to Cavile Public Facility Corporation recorded in
Instrument No. D221131212, Official Public Records, Tarrant County, Texas, and being more
particularly described as follows:
COMMENCING at 1/2-inch iron rod found at the southwest corner of Lot 1, Block 32, said
Eastwood Addition, Third Filing, and being at the intersection of the east right-of-way line of
South Hughes Avenue, a 50-foot right-of-way, and the north right-of-way line of Little John
Avenue, a 50-foot right-of-way;
THENCE North 0°14'14" West, along the west line of said Lot 1, and along the said east right-
of-way line, a distance of 118.00 feet to a chain link fence corner found for the POINT OF
BEGINNING, being the northwest corner of said Lot 1, and being the southwest corner of said
Block 33;
THENCE North 0° 14' 14" West, along the west line of said Block 33, and continuing along the
said east right-of-way line, a distance of 399.64 feet to a mag nail with washer stamped "KHA"
set for corner, being the northwest corner of said Tract 4, and being at the intersection of the said
east right-of-way line, and the south right-of-way line of Ramey Avenue, a variable width right-
of-way;
THENCE North 89°52'35" East, along the north lines of said Tracts 1-4, and along the said south
right-of-way line, a distance of 487.03 feet to a mag nail with washer stamped "KHA" set for
corner, being the northeast corner of said Tract 1, and being at the intersection of the said south
right-of-way line and the west right-of-way line of South Edgewood Avenue, a 60-foot right-of-
way, and being in the east line of said Block 33;
THENCE South 0°31'21" East, along the east line of said Block 33, and along the said west
right-of-way line, a distance of 398.68 feet to a 5/8-inch iron rod with cap stamped "KHA" set
for corner, being the southeast corner of said Block 33, and being the northeast corner of Lot 8,
Block 32, said Eastwood Addition, Third Filing;
THENCE South 89°45'46" West, departing the said west right-of-way line, along the south line
of said Block 33, at a distance of 64.01 feet passing a 1/2-inch iron rod found at the northwest
corner of said Lot 8, and continuing in all a total distance of 489.01 feet to the POINT OF
BEGINNING and containing 4.4719 acres or 194,796 square feet of land, more or less.
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 20
FW Babers Manor LP to City of Fort Worth
EXHIBIT "B"
PERMITTED ENCUMBRANCES
1. All those listed in First American Policy of Title Insurance File No.
[ ]
2. [TDHCA LURA]
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 21
FW Babers Manor LP to City of Fort Worth
Exhibit "C"
HUD RIDER TO DEED OF TRUST
The terms of this Deed of Trust are subject to that certain Subordination Agreement Form
HUD-92420M by and between Mason Joseph, LLC, City of Fort Worth, and FW Babers Manor,
LP.
LEASEHOLD DEED OF TRUST — $1M HOME FUNDS Page 22
FW Babers Manor LP to City of Fort Worth
Promissory Note
HOME Funds
Date: August 1, 2024
Borrower: FW Babers Manor, LP, a Texas limited partnership
Borrower's Mailing Address:
FW Babers Manor, LP
c/o Fort Worth Affordability, Inc.
1407 Texas Street
Fort Worth, TX 76102
Lender: City of Fort Worth, a Texas home rule municipality
Place for Payment:
City of Fort Worth
Neighborhood Services Department
Attn: Assistant Director
100 Fort Worth Trail (previously 100 Energy Way) 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 HOME Note (the "HOME Loan") is being made
pursuant to the HOME Investment Partnerships Program authorized under Title II
of the Cranston -Gonzalez National Affordable Housing Act of 1990, as amended,
42 USC 12701 et seq. ("HOME Program") and the HOME Investment
Partnerships Program Final Rule, as amended, 24 CFR Part 92 et seq. (the
"HOME Regulations") with HOME funds for the development of the Babers
Manor Apartments, located in Fort Worth, Texas (the "Project").
Annual Interest Rate: 4.79% simple annual interest
Maturity Date:
40 years after Project Stabilization as defined in City Secretary
Contract No. 61698 between Borrower and Lender for the HOME
Loan (the "HOME Contract" and, together with this HOME Note
and any other documents evidencing the HOME Loan, the "HOME
Loan Documents"), but no later than December 31, 2066.
Annual Interest Rate on Matured, Unpaid Amounts: 12%
Terms of Payment:
The Principal Amount is a no interest, deferred -payment loan. All unpaid amounts are
due at the Maturity Date, but only to the extent of 75% of available Surplus Cash or
PROMISSORY NOTE — HOME FUNDS Page 1
FW Babers Manor, LP — Babers Manor Apartments
non -Project Assets, as both such terms are defined in that certain Regulatory
Agreement for Multifamily Projects dated August 1, 2024 executed by the United
States Department of Housing and Urban Development ("HUD") and Borrower
("HUD Regulatory Agreement"). To the extent not so paid on the Maturity Date, as
long as HUD is the insurer or holder of the Senior Note on FHA Project No. 113-
36069 as defined in that certain Subordination Agreement (hereinafter defined), the
Principal Amount and accrued interest shall thereafter be due and payable only to the
extent of 75% of available Surplus Cash or non -Project Assets, as both such terms
are defined in the HUD Regulatory Agreement. After the Maturity Date, Borrower
promises to pay any unpaid principal balance plus 12% interest.
This HOME Note is the Note required in the HOME Contract and has been executed
and delivered in accordance with that contract. The funds advanced by Lender are
HOME funds and the HOME Contract requires that the 4 residential rental units
described below and located on the Property must qualify and remain affordable
rental housing in accordance with the HOME Program and the HOME Regulations
for the 20-year Affordability Period more particularly defined in the HOME
Contract. The obligations described in the HOME Contract pertaining to the HOME
Program and the HOME Regulations including the Affordability Period as well as the
HOME Loan evidenced by this HOME Note will be in default if the 4 HOME -
assisted rental units more particularly described in the HOME Contract do not remain
affordable rental housing for the duration of the Affordability Period, subject to the
"next available unit rule" under the Internal Revenue Code Section 42 (g) (2) (D).
In the event of default under the HOME Loan, Lender may invoke any remedies
provided in the HOME Contract for default.
Security for Payment:
Execution by Borrower of the Loan Documents, including this Promissory Note
dated August 1, 2024, in the original principal amount of $1,000,000.00 payable to
Lender by Borrower and Leasehold Deed of Trust Security Agreement — Financing
Statement of even date from Borrower to Lender.
Property to be secured by Loan Documents: Borrower's Leasehold interest in 4400 Ramey
Avenue, Fort Worth, TX 76105 as described in EXHIBIT "A-1" — Legal Description.
Other Security for Payment:
As set forth in the HOME Contract and the HOME Deed Restrictions.
Borrower promises to pay to the order of Lender the Principal Amount on the
Maturity Date. This HOME Note is payable at Place for Payment listed in the HOME
Contract. After the Maturity Date, Borrower promises to pay any unpaid principal balance
plus interest at the Annual Interest Rate on Matured, Unpaid Amounts. As long as HUD is
the insurer or holder of the Senior Note on FHA Project No. 113-36069 as defined in that
certain Subordination Agreement (hereinafter defined), any payment made under the terms of
this Note, including payments after the Loan Maturity Date, shall be due and payable only to
PROMISSORY NOTE — HOME FUNDS Page 2
FW Babers Manor, LP — Babers Manor Apartments
the extent of 75% of available Surplus Cash or non -Project Assets as both such terms are
defined in the HUD Regulatory Agreement.
If Borrower defaults in the payment of this HOME Note or in the performance of its
obligations under the HOME Contract or the HOME Deed Restrictions, or in the
performance of any obligation in any instrument securing or collateral to this HOME Note,
following any applicable notice and cure periods, Lender may declare the unpaid Principal
Amount, any earned interest, and any other amounts owed on this HOME Note immediately
due and payable. 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 HOME Loan Documents, prior to exercising any remedies Lender shall
give Borrower and each of the Partners of Borrower, as identified in the First Amended and
Restated Agreement of Limited Partnership dated on or about the date hereof (the
"Partnership Agreement"), simultaneous written notice of such default. Borrower and each of
its Partners on behalf of Borrower shall have a period of 15 days after such notice is given
within which to cure the default prior to exercise of remedies by Lender under the HOME Loan
Documents. Notwithstanding anything to the contrary, if a non -monetary event of default
occurs under the terms of any of the HOME Loan Documents, prior to exercising any remedies,
Lender shall give Borrower and each of Borrower's Partners, as identified in the Partnership
Agreement, simultaneous written notice of such default. If the default is reasonably capable of
being cured within 45 days, Borrower shall have such period to effect a cure prior to exercise of
remedies by Lender under the HOME Loan Documents. If the default is such that it is not
reasonably capable of being cured within 45 days, and if Borrower or any of its Partners (i)
initiates corrective action within said period, and (ii) diligently, continually, and in good faith
works to effect a cure as soon as possible, then Borrower or each of its Partners on behalf of
Borrower shall have such additional time as is reasonably necessary to cure the default prior to
exercise of any remedies by Lender. In no event shall Lender be precluded from exercising
remedies if its security becomes or is about to become materially jeopardized by any failure to
cure a default or the default is not cured within 180 days after the first notice of default is given.
If the default is not cured after notice within the time periods stated above, Borrower and
each surety, endorser, and guarantor waive all demand for payment, presentation for
payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest,
and notice of protest, to the extent permitted by law.
Borrower also promises to pay reasonable attorney's fees and court and other costs if
this HOME Note is placed in the hands of an attorney to collect or enforce this HOME Note
or the HOME Regulations by Lender. 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 HOME Note and will be secured by any
security for payment.
PROMISSORY NOTE — HOME FUNDS Page 3
FW Babers Manor, LP — Babers Manor Apartments
Interest on the debt evidenced by this HOME 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 HOME Note and all other instruments concerning
the debt.
Each Borrower, as applicable, is responsible for all obligations represented by this
HOME Note.
Borrower may prepay this HOME Note in any amount at any time before the Maturity
Date without penalty or premium; provided however, early payment will not relieve
Borrower of its obligations under the HOME Contract or the HOME Regulations including
but not limited to its obligation to provide the four (4) HOME -assisted units throughout the
Affordability Period.
When the context requires, singular nouns and pronouns include the plural.
The indebtedness evidenced by this Note is and shall be subordinate in right of payment
to the prior payment in full of the indebtedness to be hereafter evidenced by (i) a Note
(Multistate) dated August 1, 2024, made by Borrower and payable to Mason Joseph, LLC
("Senior Lender") (the "Senior Indebtedness") to the extent and in the manner provided in
that certain Subordination Agreement dated August 1, 2024 among Senior Lender, Borrower and
Lender (the "Subordination Agreement"), (ii) and a Promissory Note dated August 1, 2024, in
the original principal amount of $100,000.00 made by Fort Worth Affordability, Inc.
("FWAI") and payable to the Fort Worth Housing Finance Corporation (the "PSH Loan").
The Deed of Trust securing this Note is and shall be subject and subordinate in all respects to the
liens, terms, covenants and conditions of the documents evidencing the Senior Indebtedness
("Senior Loan Documents") as more fully set forth in the Subordination Agreement, and the
liens, terms, covenants and conditions of the documents evidencing the PSH Loan ("Senior
FWAI Loan Documents"). The rights and remedies of the payee and each subsequent holder
of this Note under the Deed of Trust securing this Note are subject to the restrictions and
limitations set forth in the Subordination Agreement and/or the Senior FWAI Loan Documents.
Each subsequent holder of this Note shall be deemed, by virtue of such holder' s acquisition of
the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be
performed or observed by the Subordinate Lender as defined in the Subordination Agreement.
Lender agrees to re -subordinate the debt evidenced hereunder in the event that such senior debt
is refinanced.
Subject to the terms of the Subordination Agreement and any cure periods provided
in the Senior Loan Documents, if there is a default in payment of any part of principal or
interest of the Senior Indebtedness and/or the Senior FWAI Loans, or a breach of any
covenants contained in the Senior Loan Documents and/or the Senior FWAI Loan Documents,
PROMISSORY NOTE — HOME FUNDS Page 4
FW Babers Manor, LP — Babers Manor Apartments
the debt evidenced by this HOME Note will immediately become payable at the option of
Lender. If Borrower fails to perform any of Borrower's obligations in the Senior Loan
Documents and/or the Senior FWAI Loan Documents, and to the extent allowed by the
Subordination Agreement, Lender may perform, but is not obligated to 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.
A default exists under this HOME Note if (1) (a) Borrower or (b) any other person
liable on any part of this HOME Note (an "Other Obligated Party") fails to timely pay or
perform any obligation or covenant in any written agreement between Lender and Borrower,
Lender and FWAI, FWAI and Borrower, or FWAI and the Fort Worth Housing Finance
Corporation ("FWHFC"), regarding the Project or such Other Obligated Party with respect
to the Project; (2) any warranty, covenant, or representation in this HOME Note or in any
other written agreement between Lender and Borrower or any Other Obligated Party with
respect to the Project is materially false when made; (3) a receiver is appointed for Borrower,
any Other Obligated Party, or any property on which a lien or security interest is created as
security (the "Collateral Security") for any part of this HOME Note; (4) any Collateral
Security is assigned for the benefit of creditors other than the holder(s) of the Senior Note or
the Senior FWAI Loan Documents; (5) a bankruptcy or insolvency proceeding is commenced
by Borrower or an Other Obligated Party; (6) (a) a bankruptcy or insolvency proceeding is
commenced against Borrower or an Other Obligated Party and (b) the proceeding continues
without dismissal for 120 days, the party against whom the proceeding is commenced admits
the material allegations of the petition against it, or an order for relief is entered; (7) any of
the following parties is dissolved, begins to wind up its affairs, is authorized to dissolve or
wind up its affairs by its governing body or persons, or any event occurs or condition exists
that permits the dissolution or winding up of the affairs of any of the following parties: (i)
Borrower, FWAI, any partner of Borrower, FWHS, or (ii) an Other Obligated Party; (8) any
Collateral Security is materially impaired by loss, theft, damage, levy and execution, issuance
of an official writ or order of seizure, or destruction, unless it is promptly replaced with
insurance proceeds, collateral security of like kind and quality or restored to its former
condition; or (9) the Project is not completed by January 1, 2027.
The execution and delivery of this HOME Note and HOME Loan Documents are
required under the HOME Contract.
If any provision of this HOME Note conflicts with any provision of the HOME
Contract, the HOME Deed Restrictions, or any other document evidencing the same
transaction between Lender and Borrower, the provisions of the HOME Contract will govern
to the extent of the conflict. Capitalized terms not defined herein shall have meanings
assigned to them in the HOME Contract.
This HOME Note will be construed under the laws of the state of Texas without
regard to choice -of -law rules of any jurisdiction.
PROMISSORY NOTE — HOME FUNDS Page 5
FW Babers Manor, LP — Babers Manor Apartments
This HOME Note is a nonrecourse obligation of Borrower. Neither Borrower nor any
nor any other party shall have any personal liability for repayment of the HOME Loan
described in the HOME Contract. The sole recourse of Lender under the HOME Loan
Documents for repayment of the HOME Loan shall be the exercise of its rights against the
Security for Payment.
[SIGNATURES FOLLOW]
PROMISSORY NOTE — HOME FUNDS Page 6
FW Babers Manor, LP — Babers Manor Apartments
THE HOME CONTRACT, HOME NOTE, HOME DEED OF TRUST, AND
HOME DEED RESTRICTIONS 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.
FW BABERS MANOR, LP,
a Texas limited partnership
By: FW Babers Manor GP, LLC,
a Texas limited liability company,
its general partner
By: Fort Worth Affordability, Inc.,
a Texas nonprofit corporation,
its sole member
By:
Name: Mary -Margaret Lemons
Title: Secretary/Treasurer
BABERS MANOR MBS SLP, INC.,
a Texas corporation,
its special limited partner
By:
Name: Ian McCormack
Title: Vice President
PROMISSORY NOTE — HOME FUNDS Page 7
FW Babers Manor, LP — Babers Manor Apartments
EXHIBIT "A-1"
FW BABERS MANOR, LP
LEGAL DESCRIPTION
Lot 1, Block 33R, Eastwood Addition, being a replat of a portion of Block 33, Eastwood
Addition, Third Filing, George J. Ashabranner Survey Abstract No. 7, City of Fort Worth,
Tarrant County, Texas, according to plat thereof recorded in Instrument No.
D224122361, Official Public Records, Tarrant County, Texas.
PROMISSORY NOTE — HOME FUNDS Page 8
FW Babers Manor, LP — Babers Manor Apartments
EXHIBIT "F"
REIMBURSEMENT FORMS
BABERS MANOR APARTMENTS
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 8
Attachment I
Developer:
Address:
City, State, Zip:
Project:
Tax ID Number
INVOICE
FW Babers Manor, L.P.
4400 Ramey Ave.
Fort Worth, TX 76105
Babers Manor Project
92-1639666
Amou
This Invoice
A
Cumulative to Date
Developer's Certification: I certify that the costs incurred are valid and consistent with the terms and
conditions of the HOME Contract. By signing this invoice, I certify that to the best of my knowledge and
belief the data included in this report is true and accurate. It is acknowledged that the provision of false
information could leave the certifying official subject to the penalties of federal, state, and local law.
Original Signature and Date:
Name:
Title:
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 9
Attachment II
Developer:
Project:
City of Fort Worth
Neighborhood Services Department
Expenditure Worksheet
FW Babers Manor, L.P.
Babers Manor Project
Line No.
Date
Check No.
Payee or Beneficiary*
Description*
Amount
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Total
*Payroll must identify employee. Rent must identify tenant. Other payments should identify individuals, if
applicable.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments
Page 10
EXHIBIT "G"
PROJECT COMPLIANCE REPORT: RENTAL HOUSING
BABERS MANOR APARTMENTS
PROJECT COMPLIANCE REPORT: RENTAL HOUSING
Prated Marne: Contract #:
Reporting Period_ From
# of HOME -Assisted Units:
Owner Marne:
To
if of High HOME Units Required- # of Lox HOME Units Required:
'All data reported should be consistent with requirements described in contract and any amendments
EXHIBIT "G"
Lease date
find Number
Low x High
HOME
Rent Unit?
Tenaa-1 Name
# ct
Persons
in HH
if of BRs
Care of Last
Income
Certification
Max Rent
Utility
Allowance
Unit
Monthly
bent
Tenant's
Annual
Gross
% of
Medan
Income
i't5p13lI. 7
Rae..
Other
Assistance
Type
Type of
household
Type or Heemil oh]
Select
1 Sng12, nornIdeny
2 Ecery
3 sexpe
5 Two parents
sooner
Other Aaetetanre Type
Select
1 .secann n
2 HOME THRA
3 Other ieee,2I, stale,
or radar ansistanne
He a65IEtarroa
Rasa
".,elec9:
1 lMllre d A1nEACar InelanrAla5ran Native d Mite
2 reach A1mcan American 7 Asian 8 W Yl1E
3 Asian n Blatt a Millie
d American 51 Akiaekal Na5Ye 9 American lndoniAlaQ2n Natives. BIaM
5 Naive aiawaran_iOBrer P3CIIIC Islamic- 10 Wier
tow HOKAE retire tray not exceed 312°6 c5 Hie alJu5led Income or hu5e1lod5 at 50% 71 ar5a mann
rnd7 n5, a5Jl6:Ed rernoune1GM812Earmachmmd r5rtena'rt-p5I5 ICE1Tao Aeconco1 : - -.
may not exceed Ole H1 1 HOME stanaara rktich may be capper/ by Ora FMR}. Al IE __ .: - '_
,.mns In proJrs51 Mt° 5 or more HOME-ass1ELee silts mire nave Iow HowE rents.
High HOME rents apply to all olherHOME-aes:s7 u-:s:,da-=_caEa3::::E.-
Cholce'drunner) Fat 'Markel Rent IN 3D%or a.. �:_: --
r1Yei2n 19C011E, dtlJUE1E4 Ta[noe5ehdd Size, and as JE=a S. 1155.
Both rem orrants are published by HUD, andpoth IIm1 Cie local canoaci rani hduc. • -r ::
assistance, except To 5rl5eet-0aasd assistance for ;he Low HOME rent mils.
Oertitcabon: The undersigned, Neseby, gives assurance that to the best of my knowledge and belie'. Gee data itdudee
n this reports true and accurate, and if is a non-profit agency, has been approved by sns govern snn bony of the orgav"2ation
prior to submission.
This completed and signed document should be submitted to the City annually per your contract A copy should be retained an your tiles.
Tide:
Print Name -
Signature:
Date:
Phone Na.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 11
EXHIBIT "H"
FEDERAL LABOR STANDARD PROVISIONS - DAVIS-BACON REQUIREMENTS
BABERS MANOR APARTMENTS
Davis -Bacon Requirements are applicable to the Project due to the Senior Indebtedness and Section 8
Project -Based Vouchers. The HOME funds did not trigger Davis -Bacon. In the event a HUD monitor
requests proof of compliance with the Davis -Bacon Requirements, Developer shall produce reports
showing compliance in the form agreed upon and required by the Senior Lender to Lender within 10
business days.
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 12
EXHIBIT "I"
SECTION 3 REPORTING FORMS
BABERS MANOR APARTMENTS
SECTION 3 BUSINESS CERTIFICATION
SECTION 3 SUMMARY REPORT (Form HUD-60002)
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 13
FORT WORT1i.
City of Fort Worth
Section 3 Business Certification for Contracting
Instruction: Enter the following information and select the criteria that applies to certify your busine_ `
Section 3 Business stmts.
Business Information:
Name of Business:
Address of Business-.
Name of Business Owner_
Telephone and Fmxil of
Business Owner:
ype of Business:
(check tpe that apply : •
Pius erlup
Sole Proprietorship
Jou r, Venture
Select from ONE of the fallowing three options that applies.:
At least 51% of the business is owned and controlled b). low- or very law -income persons. A low -
or very low-incorue person is an individual who earns at or below 80 , AMI or no more than S57,050.00
wally effective June 1, 2024.
At least 51 % of the business is owned and controlled by current public housing residents who
currently live in Section S.-assisted housing.
017er 75% of the labor hours performed for the business over the prior three-month period are
performed by Section 3 woken. A Section 3 worker is anindividual who earns at or below SO% AMI ar
no more than. S57,05Ct00 annually effective time 1.2024.
Business Affirmation:
I affirm that the above statements are time, complete_ and correct to the best of my knowledge. Iunderstand
that businesses who misrepresent themselves as Section 3 businesses and report false information to the
City of Fort Worth may have their contracts temainated as default and be bated from ongoing and future
considerations for contracts 2 opportunities. I hereby cert4, under penalty of law, we meet the definition
of a Section 3 Business under federal regulations of the U_S. Department of Rousing and Urban
Development at24 Ci- Part 75, and that the following information is correct to the best ofmyl aowIedge.
Print Name:
Signature: Date:
Cert{icariorr expos: r1*hi T six m9Nrhs of Ike date qI' irriatu e.
FOR C.T\V- USE ONLY
I_ the b _iness a Section 3 lyitsiness based upon their certificate?
YES NO
DIRLO IERS 3.1137 REED THIS FORM THEIR .sECrIOY3 C O LL-I CE i ILE FOR
FTE1ERS.
CO of Fort Worth hoc.
item t eCave asofAe.r[IA t2021
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 14
City of Font Worth
Section 3 Worker and Tar6rted Section 3 Worker Certifction
Background:Section 3 is a provision tithe HUD Act of 1466 that promo:es ho• economic dmmlopment, neighborhood economic emprownerrci arni individual self: uFT..- .y.T the greatest ex tent possible, Section 3 requires that the City of Pars Worth
!MY)as a recipient of certain THUD financial assistance{eg., 013G, HOME. and HOPWd program fonds) provide job training and empiryment opportunities to love or very low-income cements rn connection with project and activities mat these Funds Help
provide in their neighborhoods Developers, contractors. or3ubcomsrcnrs receivingcW funds must mate reasonable effortsto comply with this program. Misreport dcmonscratc how lousiness enn nncrtify the racoon 3 srnus of :brit. employees and
se port on their labor hours that support Section 3 employment goals.
Project Name and Address:
9usinesslnformation
Name of Staines:
Address of 6usines:
Nome orCcotact:
Contort Telephone:
Eorrtr t EmtiF.
Pryect Start Qetc
keportim Period
Rt Wfj rIL
EmHIoHee Certification Information and Total Labor Hours Report
Employee Name
Employer Address
Em pfatee Date of
HireeHor
Employed
nWt°Y
Section3
gusines3
Within the Post 5 Veers
Hourly
Wage Rate
Wage Rate
{A.ud neixed)
loin
kscome
Worker
TotalTotal No. of tabor Hours
Section 3
Worker
Targeted
Section3
Worker
lives with in the Service Area
the Neiglsbnrhood cF the
Project
YouthE:uiEd
Participant
Construction
Professional
Service
No
No
No
No
No
Ho
No
No
No
No
No
Ho
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
Ho
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
No
Total LaborHou-3
ACO
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 15
GIs summary
HUD eta blished Sction 3 goals to h&d redpieim{floe GfW) a ccountable for their:Roots to support the program. The goals set are that 25% of the total bhor hours reported are performed by Section 3 workers and that 5%oFthemtal labor hours reported
are • wormed . Tar. d Section 3 workers
Tote! Labor Mears TBeinduoes.CCsrslIGion Law How, Prnleaiaal xrrioefoa Haul cart moused to het? meddle Sedan end TregereSSedisn 31mor3a:us 'Ame .% he include1 theTabl tarn nixes.
Goal met if at least 25U of the pmjecc hours are atribo.ted to Senior, 3 Workers.
Section 3 Worker Labor Hours 101310! % of Tote/ Labor Hoes Goal Met? Cell turns green if rot and yellow iF not met
Goal met if at least 5% of the tebl project hours are atrributed Oa Targeted
Targeted Section 3 Worker Labor Holes IMMO! % of Tad Labor Holes God Met? Section 3 WeAers. fell mums green if met and yellow iF not met.
Outreach Evens:Contractor must provide evidence that they have made mabmtive efforts m assist Tax and very low-income persons with employment and tra r.: n6 opportunities. gvatitative efforts consist of,, bat ate a rot limited to, EnYeion Center
community outreach events. err oyrnant jobfair or training, imp Ioyo ent opportunRyf5ers orjob mraoncy ads, commmo5 meeting. Other oomples of activities aye nciuded in the Definitions Section.
Dote
Type of Event a Actin -Tr
in
Attendraxe
Oesoi6e Husinea Participation
Ex 071 (1.3921
Ccmmvnitlr Brsh@Fan[recant Cumrn,ny Can fa r
aepatr. 1,105
Coacheapasobleo_piicor's,reianad aAolticatiurrs undreamt.,
if either goal was not inet jmeanirn the goal labor hours MI is yellow], please explain your efforis to meet the umne3 goal. You may reference die above events held and activities undertaken.
Business nfti ration:
1 affirm that the abax statements are true, complete, and correct to the hest/ of my know1S n. I understand that busine-oes who misrepresent information about their ern p'ayees and report false information to Sheeny of Feat Worth may ha. their
contract terminated as defauh and he barred From ongoing and futurr emxderations Forcorrtractng opportuntes. thereby artily, under penalty of law, we meet the def.nrtior- of Seaton 3 Rusin:,, under frdnal regulations of the ll.5. Department of
Housing and Urban Dewehprrenc at 24 CiR Part 75, and that she following information is cartels to the best erf my knowledge.
Pri nt Name:
55naare.
Dell ,:bons
For the purpose: this report, akne. eery low-income waters one who comsat or below 20%and SO%of the area median ineeme{AM/}, rmpecOody. For fiscal year 2021, Hug has established a Ion foam. salary for an individual as no more: than
Sz5,300.90 a -- -a .-- lee April 1, 202i�
di Outreaeffoa,'-c c .e but are not limited to the fdlavdng:
{i) En_: ere - ._ ,arch efforts m generate lob applionts who are Targeted Section 3 workers.
¢}P._. s EC -g o appreoticeshipapportun0ies.
{3} Yro4 deer techn:ol assistance Whelp Section 3 workers compete for jobs ]e.g., resume assistance coaching).
{Wield One or mote job !altar
{5} Warded assistance to apply fortor atxnd community collrye, a Four-year education./ institution, or w0aoe* techniol training.
{E}provided techniol assistance Whelp section 3 business concerns understand and bid on contract,
{7} Divided contracts nto srn oiler jobs to facilitate participation by section 3 business concerns.
Professional "mice, means nanconstuctiion services thY require an advanced oiegreeor professionallicensing, iraduline but not limited m. contract for legal senior., financial consulting accounting services, environmental axeamen., architectural
and cMil engineering work:,. Pro!eo'ona: service hours are eoduded From the mtai labor hours hot GM he included in the Section 3 or Targeted action 3 Labor hours if the employee rneen the definition of a Section 3 or Targeted section 3 worker.
A Section 3 bronma is one that meets at 3east one of to Fo:iowing feria, documented within the prior six-nwnth period of submitting the certification and report:
{3} At least 5156 owned and controlled bt lore or very !six -income persons; OR
{2}O.er 754 of she labor hours perFonnedfor the basins over the prior three -.re•:'} period are performed by Section 3 workers: OR
3}it is a business at least in owned and controlled bycurrens public housing re: ere-:s orres.derts who currenttr live in Section 89GFC.Li housing.
A Section 3 worker is any worker who currently vier when hired within the pact' . e .es s Ft rat 1••^t err of the Fnllaw;ng categories, as documented:
11}The worker's income for the preaioos or annualized calendar year is ban. to -.e 7e..-:.ned by HOD; OR
2} The worker is emplofed by a certified section 3 hastiness; OR
3}The worker is a Yeutheuild participant
A Targeted Sector Itemiser for projects receiving housing and mmmunictydomlopment 5nanial assistance means aSection 3worker who
(1i is employed try a Section 3 business ; OR
12} currently the or when hired fat at least one of the following crtegones. as docmented within the past five yews:
{) living within the ewice art/ or the neighborhood of the projector
fli}AYouthf3uikl partidp=nt
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 16
EXHIBIT "I-1"
SECTION 3 Project Service Area Map
BABERS MANOR APARTMENTS
One Mile Buffer Area
440D Ramey Ave
-
Omit
1 int equais 1,5017 felt
ID 750 1,500
Feet
Projeii 1cxatio 3
1 Mile Buffer
0.4ra brde Rural x7: 3Rr354
F
c:+
0 i111 R
Paz-1T :at
Laauonin Mali
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments Page 17
EXHIBIT "J"
STANDARDS FOR COMPLETE DOCUMENTATION
BABERS MANOR APARTMENTS
.___...viro„Standard of Documentation
FORT WORTH
for Reimbursement of Development Costs
Cost Type
Documentation Standard
Acquisition of Real Property
- Notice to- Seller (date must be on or before the date of options agreement
or sales contract and signed by the buyer and seller)
- Recorded Deed of Trust
- Purchase Agreement wf Required HUD language
- Master Settlement Statement/HUD-1
- Appraisal or other document used to determine purchase price
- Proof of Payment(i_e_, bank staternent/cancelledcheck)
- Verification of Vacant Status (as applicable)
Pre -Development and Soft
Costs (Architect, Engineer,
Landscape Design, Surveys,
Appraisals, Environmental, Legal
Fees, Other Consultants, Etc.)
- Invoice
- Proof
- Fully
applicable
- If
documentation
should include:
• date;
• company's letterhead;
• address forwhich service is provided;
• description of seruice(s) and item(s);
• amount for itemized services; and
• total amount
of Payment (i.e., bank statement or cancelled check)
executed contracijservice agreements fietter agreements and
amendments
o Provide printout from www_sarn_gov verifying
contractor/subcontractor is not listed on the debarred and
suspension list
only a portion is being paid with City funds, then show calculation and
of how costs are allocated_
Neighborhood Services
FINAL as of 6 f 21/2R17 Page L
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments
Page 18
Standard of Documentation
FORT WORTH
____,.....r„.
for Reimbursement of Development Costs
Constriction Costs
(Contractors & Subcoritra._tcr=:
- Invoice
- Proof
- Copy
- Copy
- If
documentation
- For
- List
should include:
• date;
• company's letterhead;
• addressfor which service is provided;
• description of services) and item{s};
• amount for itemized services; and
• total an -fount
of Payment (i.e., bank statement or cancelled check)
of applicable inspection reports) conducted by MD Inspector
of executed agreements
• Provide printout from www_sam_govverifying
contractor/subcontractor is not listed an the debarred and
suspension list
only a portion is being paid with City funds, then show calculation and
of how costs are allocated_
payment of final retainage for the prime contractor, provide lien
waivers for the prime and all subcontractors_
of subcontractors
Materials Purchased by developer
(if applicahle)
- Invoice should include:
• date;
• company's letterhead;
• address for which service is provided;
• description of serwice{s} and items);
• amount for itemized services; and
• total amount
- Proof of Payment .(i.e., bank statement or cancelled check}
- Verification of delivery
Developer Fee
(if paid directly from HOME Funcls)
- Final Invoice Reflecting Total Development Cost
- Proof of payment for any other entity/funding source contributing to
development costs
- Show calculation of agreed upon developer fee percentage
- Copies of final lied releases from contractorjsubcontractor
- Complete Documentation income eligibility of buyers/renters (i.e., income
documents for eligible homebuyerltenants, sales contract between
developerfhomebuyer, HAP Deed of Trust with required affordability
period language, etc_)
- Lease documents
- Final inspections of completed units
Neighborhood Services
FIFNAL as of 6/21/2017 Page 2
HOME DEVELOPER RENTAL CONTRACT — EXHIBITS
Babers Manor Apartments
Page 19
EXHIBIT "K"
CONTRACT AND SUBCONTRACT ACTIVITY REPORTING FORM
BABERS MANOR APARTMENTS
Excel spreadsheet to be provided. This form must be completed and returned to NSD
within 30 days after the pre -construction meeting
and annually thereafter on June 30th of each year while the contract is active.
Contract and Subcontract Activity
U.S. Department of Housing and Urban Development
OMB Approval No.: 2535-0117 (exp. 1131/2013)
Public Aeporong Burden to this collection of information is estimated to average 50 hours per response. including the time for reviewing Instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the
collection of information. This information is voluntary. HUD may not collect this information and you are not required to complete this form, unless it displays a currently valid OMB Control Number
Ereculive Order 12421 dated July 14,1983, drerds rile Minority Business Development Plans shall be developed by each Federal Agency and that these annual plans shall establish minority business development oblec1Nes. The information is used by HUD to monitor
and evaluate MBE activities against the total program activity and the designated minority business enterprise (MBE) goals. The Departhtent requires the information to provide guidance and oversight for programs for the development of minority business enterprise
concerning Minority Business Development. II the Information is not collected HUD would not be able to establish meaningful MBE goals nor evaluate MBE perlormanrs against these goals.
While no assurances of conf13entiality is pledged to respondents, HUD generally discloses this data only in response to a Freedom of Informalon request
Privacy AM Notice -The United Slates Department of Housing and Urban Development, Federal Housing Administration, is authorized to solicit the information requested in the form by virtue of Tide 12, United States Cede, Section 1701 et seg., and regulations
promulgated thereunder at Title 12, Cadent Federal Regulalfons. It will not be disclosed or released outside the Unted Stales Department of Housing and Urban Development without your consent, except as required or permitted by law.
1. Granle&Proiecl Owner/Developer/Spomm1Eu1Ner1Agenry Check it:
PHA ❑
IHA❑
2. Location (Cily, State, ZIP Gods)
ea Nameof Contact Person
3b, Phone Number deducing Area Cede) 4, Reporting Period
EO6L1-Sept. 3D(Annual-FY)
5. Program Code (Mal applicada for GPO programs.)
S. Dale Sabre
edto H01d Mda
see explanation meedes at bog. dpago.
N. a separate abed for each program coda.
noose number)
HUD Casa Number or
ogan identrimationot.. e.,
soh.. on, deelleg ark ac.
,
Cwdrad
or Subcontract
]b.
Type or
Tratle
Code
(see
be.)
h_
ntrador or
5
nBudnesser
RadapEhnic
code
....below)
]d
Mead
Business
Ivor
No)
]e.
Itlren1brication 11D1
Number
]f
3
]9.
Iden5ricetkm (ID)
Number
fi.
cmiranomsLbm ameand Address®
3 M ;orN
Nrre Street
T.
C.
State Lp Code
70: Type of Trade Codes:
CPO: Heusing4Publlc Housing:
1 =New Construction 1 =New Construction 6 = Professional
2= EducaUMr✓Training 2 = Substantial Rehab. ]=Tenant Services
3 = Other 3 = Repair a = Education/Training
4 = Service 9 = Arch/Engrg. Appraisal
5 = Project Mang 0 = Other
7C: Racial/Ethnic Cedes:
= White Americans
2 = Black Americans
3 = Native Americans
4 = Hispanic Americans
5 = AsianePacita Americans
6 = Hasidic Jews
5: Program Codes (C.O. for Housing and Pubic end Indan Housing programs..):
= All insured, including Section 8 5 = Section 202
2= Fsxi6fe Subsidy 6 = HUD -Held (Management)
3 = Section 8 Noninsured, Nun-HFDA 7 = Public/Indian Housing
4 = Insured (Management
Previous editions are obsolete_
form HUO-2516 (6/08)
DEED RESTRICTIONS - HOME Page 20
Babers Manor Apartments
EXHIBIT "L"
DEED RESTRICTION
BABERS MANOR APARTMENTS
DEED RESTRICTIONS - HOME Page 21
Babers Manor Apartments
DEED RESTRICTIONS
HOME Funds
THESE DEED RESTRICTIONS ("Deed Restrictions") are made effective as of August
1, 2024, by and between FW BABERS MANOR, LP, a Texas limited partnership ("Owner"), as
Grantor, and CITY OF FORT WORTH, TEXAS, a home rule municipality in the State of Texas
("City"), as Grantee.
WITNESETH:
WHEREAS, City has received a grant from the United States Department of Housing and
Urban Development ("HUD") through the HOME Investment Partnerships Program, Catalog of
Federal Domestic Assistance No. 14.239 ("HOME"), with which City desires to promote activities
that expand the supply of affordable housing and the development of partnerships among City,
local governments, local lenders, private industry and nonprofit housing organizations;
WHEREAS, the primary purpose of the HOME program pursuant to the HOME
Investment Partnerships Act at Title II of the Cranston Gonzales National Affordable Housing Act
of 1990, as amended, 42 U.S.C. 12701 et seq. (the "Act") and the HOME Investment Partnerships
Program Final Rule, as amended, 24 CFR Part 92 et seq. ("HOME Regulations"), is to benefit
low- and moderate -income individuals and families by providing them with affordable housing;
WHEREAS, Owner proposes to use HOME funds for a project whereby Owner will
construct, develop, own, and operate a new 80-unit affordable housing development in the City to
be known as Babers Manor Apartments (the "Project");
WHEREAS, City has agreed to lend Owner $1,000,000.00 in HOME funds (the "Loan"),
pursuant to the requirements of the HOME program and in accordance with all obligations
assigned to it from that certain HOME Contract, City Secretary Contract No. 61698, between
Owner and City, for the purpose of assisting Owner in developing the Project;
WHEREAS, as a condition to City making the Loan of the HOME Funds, Owner must
agree to comply with certain occupancy, rent and other restrictions for a period of time in order to
comply with the HOME affordability requirements, and agrees to convey to City certain covenants
and restrictions that will burden the hereinafter described real property so that the Project will meet
the HOME requirements ("HOME Requirements");
NOW, THEREFORE, in consideration of the making of the Loan of HOME Funds, and
the disbursement of any part thereof, and in order to comply with the requirements of the Act and
the HOME Regulations, Owner (together with its successors and assigns and subsequent owners
of the Project), hereby agrees that the following restrictions shall apply to the real property
described in the attached Exhibit "A", incorporated herein for all purposes:
1) In compliance with the maximum per unit subsidy amount rules at 24 CFR Part
92.250(a) and the minimum amount of assistance rules at 24 CFR Part 92.205(c), the number of
units in the Project which have been designated by Owner and approved by the City as subject to
DEED RESTRICTIONS - HOME Page 1
Babers Manor Apartments
KH 1142496.2
all occupancy, rent, and affordability requirements contained in the HOME Regulations shall be 4
units of the 80 total residential townhome units in the Project ("HOME Units").
2) The HOME Units rented or available for rent to households whose annual incomes
do not exceed 80% of area median income ("AMI"), as set annually by HUD with adjustments
for family size ("High HOME Eligible Tenants"), shall be 0 units ("High HOME Units"). The
number of HOME Units rented or available for rent to families whose annual incomes do not
exceed 50% percent of AMI ("Low HOME Eligible Tenants") shall be 4 units ("Low HOME
Units"). The HOME Units are floating.
3) Owner hereby acknowledges and agrees that the Project is to be owned, managed
and operated as a rental housing project for affordable housing as set forth in 24 CFR Part 92.252
and, that the HOME Units must be occupied only by HOME Eligible Households as defined in the
HOME Contract and must also meet the following requirements to qualify as affordable housing
and will be subject to the following restrictions and covenants:
a. High HOME Rents. The maximum HOME rents are the lesser of:
(1) The fair market rent for existing housing for comparable units in the
area as established by HUD under 24 CFR Part 888.111; or
(2) A rent that does not exceed 30% of the adjusted income of a family
whose annual income equals 65% of AMI with applicable adjustment for the
bedroom size of the relevant housing unit. High Home Rent may not exceed the
maximum rent limitations established by HUD minus utility allowances. For the
purposes of these Deed Restrictions, "utility allowances" are those monthly
allowances for utilities (excluding telephone) adopted by City in accordance with
the HOME Regulations and HUD guidance, as more particularly described in the
HOME Contract.
b. Low HOME Rents. Rents for Low HOME Units must meet one of the
following rent requirements:
(1) The rent does not exceed 30% of the annual income of a family at
50% of AMI as set annually by HUD with adjustments for family size. Low Home
Rent may not exceed the maximum rent limitations established by HUD minus
utility allowances. However, if the rent determined under this paragraph is higher
than the applicable rent under (a) of this section, then the maximum rent for HOME
Units under this paragraph is that calculated under paragraph (a); or
(2) The rent does not exceed 30% of the family's adjusted income. If
the family receives Federal or Texas project -based rental subsidy and the very low-
income family pays as a contribution toward rent not more than 30% of the family's
adjusted income, then the maximum rent (tenant contribution plus project -based
rental subsidy) is the rent allowable under the Federal or Texas project -based rental
subsidy program.
DEED RESTRICTIONS - HOME Page 2
Babers Manor Apartments
KH 1142496.2
c. The Owner will not refuse to lease a HOME Unit to a certificate or voucher
holder under 24 CFR Part 982 (Section 8 Tenant -Based Assistance: Unified Rule for
Tenant -Based Assistance under the Section 8 Rental Certificate Program and the Section
8 Rental Voucher Program) or to the holder of a comparable document evidencing
participation in a HOME tenant -based rental assistance program because of the status of
the prospective tenant as a holder of such certificate, voucher, or comparable HOME
tenant -based assistance document.
4) Initial Rent Schedule and Utility Allowances. Owner must verify that all tenants
of HOME Units are HOME Eligible Households with full Tenant Documentation at the time the
initial lease for a HOME Unit is executed as more particularly described in the HOME Contract.
Tenants must certify the number of people in tenant's household along with such person's names
and ages. Owner shall obtain financial information on all members of a tenant's household.
5) Tenant Income. Owner must use the definition of annual income used by 24 CFR
Part 65.609 to establish tenant income eligibility and shall use the most current HUD Income
Guidelines. Owner must verify that all tenants of HOME Units are HOME Eligible Households
with full Tenant Documentation as more particularly described in the HOME Contract. Owner
must verify the income of the tenants of the HOME Units annually after the initial lease is executed
but may use a City -approved tenant self -certification form as Tenant Documentation.
Notwithstanding the foregoing, Owner must verify the income eligibility of all HOME Eligible
Households with full Tenant Documentation every 6th year of the Affordability Period. Owner
must maintain copies of Tenant Documentation as required under the HOME Contract. In the
event that a HOME Unit is occupied by a tenant who is not a HOME Eligible Household, Owner
shall have 30 days to determine if a market rate tenant qualifies as a HOME Eligible Household
or fill an empty market rate unit with a HOME Eligible Household.
6) Tenant Lease and Tenant Selection. Owner's lease for the HOME Units shall
comply with 24 CFR Part 92.253 as more particularly described in the HOME Contract. Owner's
tenant selection policy and criteria shall be consistent with the purpose of providing housing in
accordance with the HOME Regulations including addressing non—discrimination and affirmative
marketing as more particularly set out in the HOME Contract.
7) The Project shall be maintained to and fully comply with all City codes and federal
Housing Quality Standards.
8) The Affordability Period for the Project is 20 years ("Affordability Period"). The
Affordability Period begins on the date that the project status is changed to "complete" in IDIS,
HUD's project tracking system. City will provider Owner notice of the date on which the
Affordability Period began within 90 days of said date.
9) The preceding use restriction and Affordability Period (i) shall run with the land,
(ii) shall be binding upon the Owner and Owner's heirs, personal representatives, successors and
assigns, and (iii) shall be enforceable by actions at law or in equity by the City, its successors and
assigns and/or one or more third -party beneficiaries. For the purpose of these Deed Restrictions, a
DEED RESTRICTIONS - HOME Page 3
Babers Manor Apartments
KH 1142496.2
third -party beneficiary shall be any member of a HOME Eligible Household as defined in the
HOME Regulations. Owner hereby subjects the Project (including the Project site) to the
covenants, reservations and restrictions set forth in these Deed Restrictions and Owner hereby
declares its express intent that the covenants, reservations and restrictions set forth herein shall, be
deemed covenants running with the land and shall, pass to and be binding upon Owner' s successors
in title to the Project. Each and every contract, deed or other instrument hereafter executed
covering or conveying the Project or any portion thereof shall conclusively be held to have been
executed, delivered and accepted subject to such covenants, reservations and restrictions as set
forth in such contract, deed or other instruments.
10) Owner hereby agrees to execute further documentation required by the City or
HUD which may be necessary to cause these Deed Restrictions to comply with the laws,
ordinances and/or regulations referenced herein or in the Developer Loan Agreement or the City's
HOME Contract, or the HOME Regulations (or any other applicable laws that supplement, amend,
restate, replace or otherwise pertain to such laws, ordinances and/or regulations).
11) Sale or Transfer of the Land or Project. Until the termination of these Deed
Restrictions, Owner hereby covenants and agrees not to sell, transfer or otherwise dispose of any
portion of the real property or Project, without obtaining the prior written consent of the City, not
to be unreasonably withheld, conditioned, or delayed. Any transfer or disposition of the real
property or the Project without the written agreement of the City, in a form as will meet the
requirements of a conveyance of real property in Texas, shall be null, void and without effect, shall
cause a reversion of title to Owner and shall be ineffective to relieve Owner of its obligations under
this document. Notwithstanding anything else in this section to the contrary, transfers by Owner
to an affiliate or subsidiary in accordance with the right of first refusal and purchase option, as
included in the Amended and Restated Limited Partnership Agreement of Owner shall not require
City's consent; however, Owner shall provide City notice within 30 days of the transfer's
completion. The new owner shall be required to assume all obligations of Owner hereunder.
Notwithstanding anything herein to the contrary, the Owner's Investor Limited Partner may
transfer all or any portion of its membership interest in Owner without prior consent from the City.
Owner's Investor Limited Partner retains the right to remove and replace the Owner's General
Partner pursuant to Owner's organizational documents, without prior consent from the City.
12) Owner and City hereby declare their understanding and intent that the covenants,
reservations and restrictions set forth herein directly benefit the real property.
13) Default; Remedies. City shall declare an "Event of Default" to have occurred
hereunder if City becomes aware or is notified in writing of a default in the performance or
observance of any covenant, agreement or obligation of Owner set forth in these Deed Restrictions,
and if such default remains uncured for a period of 60 days after written notice of such default
shall have been given by City to Owner, or if such default is not able to be cured within 60 days,
if Owner is not diligently pursuing a cure, in City' s sole discretion. Notwithstanding anything to
the contrary contained herein, Owner's Investor Limited Partner shall have the right, but not the
obligation, to cure an event of default hereunder and City agrees to accept or reject such cure on
the same basis as if provided by Owner itself.
DEED RESTRICTIONS - HOME Page 4
Babers Manor Apartments
KH 1142496.2
No failure to exercise and no delay in exercising any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise
thereof, or the exercise of any other right. The rights and remedies herein provided shall be in
addition to all other rights or remedies provided by law. No modification or waiver of any
provision of these Deed Restrictions, or consent to departure here from, shall be effective unless
in writing and signed by the parties and no such modification, consent, or waiver shall extend
beyond the particular case and purpose involved. No notice or demand given in any case shall
constitute a waiver of the right to take other action in the same, similar or other instances without
such notice or demand.
14) Owner shall cause this document, and all amendments and supplements hereto and
thereto, to be recorded and filed in the real property records of Tarrant County and in such other
places as City may reasonably request. Owner shall pay all fees and charges incurred in connection
with any such recording.
15) These Deed Restrictions shall be governed by the laws of the State of Texas.
16) Headings and titles herein are for convenience only and shall not influence any
construction or interpretation.
17) If any provision of these Deed Restrictions shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not
in any way be affected or impaired thereby.
18) All terms not defined herein shall have the meaning proscribed to them in the
City's HOME Contract. If any provision of these Deed Restrictions conflicts with any
provision of the HOME Contract, the provisions of the HOME Contract will govern to the
extent of the conflict.
19) THE TERMS AND CONDITIONS OF THESE DEED RESTRICTIONS ARE
SUBJECT TO HUD'S REQUIREMENTS SET FORTH IN THE ATTACHED HUD RIDER
INCORPORATED HEREIN FOR ALL PURPOSES.
[Signature Pages to Follow]
IN WITNESS WHEREOF, Owner and the City have executed this document by duly
DEED RESTRICTIONS - HOME Page 5
Babers Manor Apartments
KH 1142496.2
authorized representatives, all on the date first written hereinabove.
STATE OF TEXAS
§
§
COUNTY OF TARRANT §
OWNER:
FW BABERS MANOR, LP,
a Texas limited partnership
By: FW BABERS MANOR GP, LLC,
a Texas limited liability company,
its general partner
By: Fort Worth Affordability, Inc.,
a Texas nonprofit corporation,
its sole member
By:
Name: Mary -Margaret Lemons
Title: Secretary/Treasurer
By: Babers Manor MBS SLP, Inc.,
a Texas corporation,
its Special Limited Partner
By:
Name: Ian McCormack
Title: Vice President
I HEREBY CERTIFY that on or about this 1st day of August, 2024, before me, a Notary
Public for the state aforesaid, personally appeared Mary -Margaret Lemons, known to me or
satisfactorily proven to be the person whose name is subscribed to the foregoing or attached
document, who acknowledged that she is the Secretary/Treasurer of Fort Worth Affordability, Inc.,
a Texas nonprofit corporation, the sole member of FW Babers Manor GP, LLC, a Texas limited
liability company, the general partner of FW Babers Manor, LP, a Texas limited partnership; that
she has been duly authorized to execute, and has executed, such instrument on its behalf for the
purposes therein set forth; and that the same is its act and deed of said limited partnership.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and year first
above written.
DEED RESTRICTIONS - HOME
Babers Manor Apartments
KH 1142496.2
Page 6
Notary Public, State of Texas
STATE OF MISSOURI
CITY OF ST. LOUIS
§
§
§
On this, the day of , 2024, before me, the
undersigned officer, personally appeared Ian McCormack, who states that he is the Vice President
of Babers Manor MBS SLP, Inc., a Texas corporation, the special limited partner of FW Babers
Manor, LP, known to me (or satisfactorily proven) to be the person whose name is subscribed to
the within instrument and acknowledged that he, being authorized to do so, executed the same for
the purpose therein contained, and desires the same to be recorded as such.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public, State of Missouri
[Signatures Pages Continue]
DEED RESTRICTIONS - HOME
Babers Manor Apartments
KH 1142496.2
Page 7
IN WITNESS WHEREOF, Owner and the City have executed this document by duly
authorized representatives, all on the date first written hereinabove.
CITY OF FORT WORTH
By:
Fernando Costa, Assistant City Manager
Date:
APPROVED AS TO FORM AND LEGALITY:
Leslie L. Hunt, Senior Assistant City Attorney
STATE OF TEXAS
COUNTY OF TARRANT
§
§
§
This instrument was acknowledged before me on August 1, 2024, by Fernando Costa, Assistant
City Manager of the City of Fort Worth, a Texas home rule municipality, on behalf of such
municipality.
Notary Public, State of Texas
DEED RESTRICTIONS - HOME
Babers Manor Apartments
KH 1142496.2
Page 8
EXHIBIT "A"
Legal Description
Lot 1, Block 33R, Eastwood Addition, being a replat of a portion of Block 33, Eastwood
Addition, Third Filing, George J. Ashabranner Survey Abstract No. 7, City of Fort Worth,
Tarrant County, Texas, according to plat thereof recorded in Instrument No. D224122361,
Official Public Records, Tarrant County, Texas.
DEED RESTRICTIONS - HOME Page 9
Babers Manor
KH 1142496.2
HUD Rider To Restrictive Covenants
This RIDER TO RESTRICTIVE COVENANTS is made as of August 1, 2024, by FW Babers
Manor, LP ("Borrower") and the City of Fort Worth ("Agency").
WHEREAS, Borrower has obtained financing from Mason Joseph, LLC. ("Lender") for the
benefit of the project known as Babers Manor Apartments ("Project"), which loan is secured by a
Leasehold Deed of Trust Security Agreement — Financing Statement ("Security Instrument") dated
as of August 1, 2024, and will be recorded in the Real Property Records of Tarrant County, Texas
("Records") and is insured by the United States Department of Housing and Urban Development
("HUD");
WHEREAS, Borrower has received HOME funds from Agency, for which Agency is requiring
certain restrictions be recorded against the Project; and
WHEREAS, HUD requires as a condition of its insuring Lender's financing to the Project, that the
Agency agree to the terms in this Rider; and
WHEREAS, the Agency has agreed to such terms of this Rider.
NOW, THEREFORE, in consideration of the foregoing and for other consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
(a) In the event of any conflict between any provision contained elsewhere in the Restrictive
Covenants and any provision contained in this Rider, the provision contained in this Rider shall
govern and be controlling in all respects as set forth more fully herein.
(b) The following terms shall have the following definitions:
"HUD" means the United States Department of Housing and Urban Development.
"HUD Regulatory Agreement" means the Regulatory Agreement between Borrower and HUD
with respect to the Project, as the same may be supplemented, amended or modified from time to
time.
"HUD -FHA Requirements" means (i) the Mortgage Loan Documents, including without
limitation, the Security Instrument, the HUD Regulatory Agreement, and (ii) Program Obligations.
"Lender" means Mason Joseph, Inc., its successors and assigns.
"Mortgage Loan" means the mortgage loan made by Lender to the Borrower pursuant to the
Mortgage Loan Documents with respect to the Project.
"Mortgage Loan Documents" means the Security Instrument, the HUD Regulatory Agreement and
all other documents required by HUD or Lender in connection with the Mortgage Loan.
DEED RESTRICTIONS - HOME Page 10
Babers Manor
KH 1142496.2
"National Housing Act" means the National Housing Act of 1934, as amended.
"Program Obligations" has the meaning set forth in the Security Instrument.
"Residual Receipts" has the meaning specified in the HUD Regulatory Agreement.
"Security Instrument" means the mortgage or deed of trust from Borrower in favor of Lender, as
the same may be supplemented, amended or modified.
"Surplus Cash" has the meaning specified in the HUD Regulatory Agreement.
(c) Notwithstanding anything in the Restrictive Covenants to the contrary, Borrower covenants
that it will not take or permit any action that would result in a violation of the HUD -FHA
Requirements or Restrictive Covenants. In the event of any conflict between the provisions of the
Restrictive Covenants and the provisions of the HUD -FHA Requirements, HUD shall be and
remains entitled to enforce the HUD -FHA Requirements. Notwithstanding the foregoing, nothing
herein limits the Agency' s ability to enforce the terms of the Restrictive Covenants, provided such
terms do not conflict with statutory provisions of the National Housing Act or the regulations
related thereto. The Borrower represents and warrants that to the best of Borrower's knowledge
the Restrictive Covenants impose no terms or requirements that conflict with the National Housing
Act and related regulations.
(d) Intentionally omitted
(e) Borrower and the Agency acknowledge that Borrower's failure to comply with the covenants
provided in the Restrictive Covenants does not and shall not serve as a basis for default under the
HUD -FHA Requirements, unless a default also arises under the HUD -FHA Requirements.
(f) Except for the Agency' s reporting requirement, in enforcing the Restrictive Covenants the
Agency will not file any claim against the Project, the Mortgage Loan proceeds, any reserve or
deposit required by HUD in connection with the Security Instrument or HUD Regulatory
Agreement, or the rents or other income from the property other than a claim against:
i. Available surplus cash, if the Borrower is a for -profit entity;
ii. Available distributions of surplus cash and residual receipts authorized for release by
HUD, if the Borrower is a limited distribution entity; or
iii. Available residual receipts authorized by HUD, if the Borrower is a non-profit entity.
(g) For so long as the Mortgage Loan is outstanding, Borrower and Agency shall not further amend
the Restrictive Covenants, with the exception of clerical errors or administrative correction of non -
substantive matters, without HUD's prior written consent.
DEED RESTRICTIONS - HOME Page 11
Babers Manor
KH 1142496.2
(h) Subject to the HUD Regulatory Agreement, the Agency may require the Borrower to indemnify
and hold the Agency harmless from all loss, cost, damage and expense arising from any claim or
proceeding instituted against Agency relating to the subordination and covenants set forth in the
Restrictive Covenants, provided, however, that Borrower's obligation to indemnify and hold the
Agency harmless shall be limited to available surplus cash and/or residual receipts of the Borrower.
(i) [Intentionally omitted]
IN WITNESS WHEREOF, Owner and the City have executed this document by duly
authorized representatives, all on the date first written hereinabove.
STATE OF TEXAS
COUNTY OF TARRANT
§
§
§
OWNER:
FW BABERS MANOR, LP,
a Texas limited partnership
By: FW Babers Manor GP, LLC,
a Texas limited liability company,
its general partner
By: Fort Worth Affordability, Inc.,
a Texas nonprofit corporation,
its sole member
By:
Name: Mary -Margaret Lemons
Title: Secretary/Treasurer
By: Babers Manor MBS SLP, LP, Inc.,
a Texas corporation,
its Special Limited Partner
By:
Name: Ian McCormack
Title: Vice President
I HEREBY CERTIFY that on or about this 1st day of August, 2024, before me, a Notary
Public for the state aforesaid, personally appeared Mary -Margaret Lemons, known to me or
satisfactorily proven to be the person whose name is subscribed to the foregoing or attached
document, who acknowledged that she is the Secretary/Treasurer of Fort Worth Affordability, Inc.,
DEED RESTRICTIONS - HOME Page 12
Babers Manor
KH 1142496.2
a Texas nonprofit corporation, the sole member of FW Babers Manor GP, LLC, a Texas limited
liability company, the general partner of FW Babers Manor, LP, a Texas limited partnership; that
she has been duly authorized to execute, and has executed, such instrument on its behalf for the
purposes therein set forth; and that the same is its act and deed of said limited partnership.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and year first
above written.
Notary Public, State of Texas
STATE OF MISSOURI
CITY OF ST. LOUIS
§
§
§
On this, the day of , 2024, before me, the
undersigned officer, personally appeared Ian McCormack, who states that he is the Vice President
of Babers Manor MBS SLP, LP, Inc., a Texas corporation, the special limited partner of FW
Babers Manor, LP, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument and acknowledged that he, being authorized to do so, executed
the same for the purpose therein contained, and desires the same to be recorded as such.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public, State of Missouri
[Additional Signatures on Next Page]
DEED RESTRICTIONS - HOME Page 13
Babers Manor
KH 1142496.2
IN WITNESS WHEREOF, Owner and the City have executed this document by duly
authorized representatives, all on the date first written hereinabove.
CITY OF FORT WORTH
a Texas home rule municipality
Fernando Costa, Assistant City Manager
Date:
APPROVED AS TO FORM AND LEGALITY:
Leslie L. Hunt, Senior Assistant City Attorney
STATE OF TEXAS
COUNTY OF TARRANT
§
§
§
This instrument was acknowledged before me on April , 2024, by Fernando Costa, Assistant
City Manager of the City of Fort Worth, a Texas home rule municipality, on behalf of such
municipality.
Notary Public, State of Texas
DEED RESTRICTIONS - HOME Page 14
Babers Manor
KH 1142496.2
EXHIBIT "N"
VAWA FORMS
BABERS MANOR APARTMENTS
Notice of Occupancy Rights under the Violence Against Women Act (Form HUD-5380)
Model Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual
Assault, or Stalking (Form HUD-5381)
Emergency Transfer Request for Certain Victims of Domestic Violence, Dating Violence,
Sexual Assault, or Stalking (Form HUD-5383)
Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking and
Alternate Documentation (Form HUD-5382)
Violence, Dating Violence or Stalking Lease Addendum (Form HUD-91067)
Where permitted by federal regulations, Developer may use its own forms so long as they
meet the requirements of the VAWA and its accompanying regulations. Developer is
responsible for ensuring that the proper forms and required actions are taken in compliance
with VAWA and any applicable regulations, and acknowledges that it is solely responsible
for using the appropriate forms as they may be changed from time to time.
DEED RESTRICTIONS - HOME Page 23
Babers Manor Apartments
EXHIBIT "0"
HOME REQUIREMENTS
BABERS MANOR APARTMENTS
Capitalized terms not defined herein shall have meanings assigned to them in the Contract.
Developer shall ensure that the Property Manager receives a copy of the HOME Contract which
outlines the HOME Regulations. Below is an outline of the HOME Requirements that the Property
Manager will be responsible for while managing the HOME Units in the project.
Developer shall ensure compliance with the following and include the following requirements in
its property management agreement:
1. Property Manager acknowledges that the project operates under the HOME Program's
Section 504 requirements. Accordingly, Property Manager shall exercise its commercially
reasonable efforts to take the following steps to:
Comply with Section 504 requirements and other federal accessibility
requirements. The project must contain [6 Accessible Units. Of these, 4 must be
accessible to individuals with mobility impairment, and 2] must be accessible to
individuals with visual impairments.
2. Property Manager will follow the procedures given by Developer to rent HOME Units to
tenants who have incomes at or below 80% AMI; provided however, the first tenant to
occupy a High HOME Unit, as defined in the HOME Contract, must be a tenant whose
annual income adjusted for family size does not exceed 60% of AMI.
3. Property Manager must manage the HOME Units as set forth in the chart below to ensure
that they are occupied by tenants that are either High HOME Eligible Tenants or Low
HOME Eligible Tenants as described in the chart. Of the 4 HOME Units, 0 must be HIGH
HOME Units and 4 must be LOW HOME Units. The Low HOME Units must be occupied
by households earning at or below 50% AMI. These very low-income tenants must occupy
HOME Units at or below the Low HOME Rent. The mix of bedroom units for the HOME
Units is shown on the chart below. The mix of bedrooms of the HOME Units must be
proportional to the overall bedroom mix of all the units in the project. Property Manager
must manage the HOME Units in accordance with the chart, the HOME Requirements and
the guidelines contained in the Managing Rental Unit Mix Under HOME published by
HUD at:
https://files.hudexchange.info/resources/documents/Managing-Rental-Unit-Mix-Under-
HOME.pdf.
DEED RESTRICTIONS - HOME Page 24
Babers Manor Apartments
HOME UNIT MIX
Proposed Units
(80 total)
18 1-BR
48 2-BR
14 3-BR
0 4-BR
High HOME Units
(0 total)*
0 1-BR
0 2-BR
0 3-BR
0 4-BR
Low HOME Units
(4 total)*
1 1-BR
2 2-BR
1 3-BR
0 4-BR
*The HOME Units may be designated as floating, if the HOME Units are comparable to the non -assisted
units in the project.
4. Property Manager must notify Developer in writing within 30 days if any HOME Unit is
occupied by a tenant who is not income eligible, or if any HOME Unit remains vacant for
more than 90 days.
5. The HOME Units are floating. When a "floating" unit is changed within the project, the
newly designated "floating" unit must be comparable to the non -HOME assisted units.
6. Property Manager must charge the appropriate High HOME and Low HOME rents and not
charge rents in excess of the HOME Program rents for any given year. These program rents
change annually and Lender will provide Developer and Property Manager with updated
HOME rent limits so that rents may be adjusted (not to exceed the maximum HOME rent
limits). For projects that have floating HOME Units, per HUD regulations, changes may
need to be made where instances of tenant's income either rises above or falls below certain
thresholds. Property Manager should refer to the Managing Rental Unit Mix Under
HOME found at https://files.hudexchange.info/resources/documents/Managing-Rental-
Unit-Mix-Under-HOME.pdf for guidance. Property Manager should retain necessary
documentation to demonstrate that each HOME Unit is occupied by an income -eligible
tenant. General rental housing records must be kept on -file for 5 years after the
Affordability Period, as defined in the HOME Contract, ends.
7. Before executing any lease for a HOME Unit, Property Manager must verify all new
tenants' income eligibility using the annual income definition in 24 CFR 5.609. Income
documentation must be sufficient to show that a tenant is a HOME Eligible Household.
Tenant Documentation may include but is not limited to copies of paychecks, Social
Security and disability verification letters, interest or rental income statements, retirement
income statements, child support and alimony verification, unemployment benefit letters,
and the like for initial tenant income eligibility verifications, and the tenant income
verification required every 6th year of the Affordability Period. Documentation for tenant
income eligibility verifications for other than the initial lease and the 6th year of the
Affordability Period shall be a Lender approved income self -certification form. Property
Manager shall use the most current HUD Income Guidelines and Technical Guidance for
Determining Income and Allowances to determine tenant eligibility.
8. Property Manager shall maintain copies of Tenant Documentation and all tenant self -
certification forms as required under the HOME Contract.
9. Property Manager shall submit for Lender approval a sample tenant lease prior to accepting
DEED RESTRICTIONS - HOME Page 25
Babers Manor Apartments
tenant applications. This sample lease must include:
a. Tenant must be given at least 30 days written notice before rent increases may be
implemented, and 30 days written notice must be given notifying the tenant must
vacate the unit.
b. The lease term for a HOME Unit must be for at least 1 year, unless the tenant and
Property Manager agree on a shorter term.
c. Tenant rents may not increase until the original lease expires, or until the 1-year
anniversary of tenant entering into the lease, whichever occurs first.
d. HUD publishes the HIGH and LOW HOME rents annually, and Property Manager
should use the numbers provided to calculate rents for the HOME Units.
e. Maximum allowable HOME rents must be reduced if the tenant pays utilities.
f. Tenant lease must inform tenant that their income will be reexamined annually,
either at the anniversary of the initial income verification, or at lease renewal.
Tenant lease must explicitly state that their rent may increase if the tenant is placed
in a HOME Unit and at the time of income recertification, their income increases
above the required thresholds.
10. Rents charged to tenants are subject to the HOME Regulations at 24 CFR 92.252 (a) and
(b). Under no circumstances may the maximum rental amounts charged to tenants of
HOME Units exceed the High Home Rent minus monthly allowances for utilities and
services (excluding telephone) established by HUD. Property Manager agrees to abide by
HUD -approved schedules of HOME rent levels and locally adopted utility allowances
published by the local housing authority. Property Manager should keep records that
include documentation to back up rent levels and utility allowances.
g.
11. Property Manager must have a tenant selection policy which provides for:
a. The selection of tenants from a written waiting list in the chronological order of
their application, insofar as is practicable;
b. The prompt written notification to any rejected applicant providing the grounds for
such rejection; and bi-lingual leasing and management assistance.
c. Ensure that holders of rental assistance subsidies (such as HUD's Housing Choice
Voucher or similar subsidy) are not excluded from renting a unit in the Required
Improvements.
d. The tenant selection policy must address non-discrimination and affirmative
marketing per federal guidelines.
e. Market accessible units in the following order:
1. Market within the property to persons requiring an accessible unit.
2. Reference waiting list to check for persons requiring accessible unit.
3. Market to general community for persons requiring accessible unit.
4. Market to persons that do not require accessible unit.
DEED RESTRICTIONS - HOME Page 26
Babers Manor Apartments
The tenant selection policy must address managing HOME Unit mix under HOME
Regulations. The tenant selection policy must comply with state and local tenant/landlord
laws.
Property Manager shall adopt affirmative marketing procedures and requirements for the
HOME Units. The procedures and requirements must include methods for informing the
public, owners and potential tenants about fair housing laws and policies so as to ensure
that all individuals, without regard for sex, age, race, color, creed, nationality, national
origin, religion, handicap status, disability, familial status, sexual orientation, gender
identity, gender expression or transgender, are given an equal opportunity to participate in
the project. The procedures and requirements must also include the designation of an
individual that will be responsible for marketing the project and establishing a clear
application screening plan and the maintenance of documentation and records to evidence
affirmative marketing procedures have been implemented. Lender shall have no
responsibility with regard to affirmative marketing of the project. Affirmative marketing
procedures shall be submitted to Lender for approval prior to implementation.
12. Property Manager shall abide by all federal non-discrimination and fair housing laws.
13. Property Manager understands and agrees that it will be subject to monitoring by Lender
for compliance with the HOME Regulations for the duration of the 20-year Affordability
Period. Property Manager will provide reports and access to project files as requested by
Lender during the Affordability Period and for 5 years after the end of the Affordability
Period, and will meet all the reporting requirements set out in the HOME Contract. These
requirements shall survive the early termination or expiration of the HOME Contract.
Lender shall have access at all reasonable hours to the Property Manager's offices and
records dealing with the HOME Units, and its officers, directors, agents, employees, and
contractors for the purpose of such monitoring.
DEED RESTRICTIONS - HOME Page 27
Babers Manor Apartments
FORT WORTH
Routing and Transmittal Slip
Neighborhood Services
Department
DOCUMENT TITLE: HOME Babers/Manor
HOME DEVELOPER RENTAL CONTRACT
M&C 24-0435
CPN
CSO # 61698
DOC#
DATE:
TO:
INITIALS
DATE OUT
1. Allison Tidwell
2.
3.
DOCUMENTS FOR CITY MANAGER'S SIGNTURE: All documents received from any and all City
Departments requesting City Manager's signature for approval MUST BE ROUTED TO THE
APPROPRIATE ACM for approval first. Once the ACM has signed the routing slip, David will review
and take the next steps.
NEEDS TO BE NOTARIZED: ❑ Yes ❑ No
RUSH: ❑ Yes ❑ No SAME DAY: ❑ Yes ❑ No NEXT DAY: ❑Yes ❑ No
ROUTING TO CSO: X Yes ❑ No
Action Required:
❑ As Requested
❑ For Your Information
Signature/Routing and or Recording
❑ Comment
❑ File
❑ Attach Signature, Initial and Notary Tabs
X Attach Signature
Return to: Please call Virginia Villalobos at ext. 7744 for pick up when completed. Thank you.